HOUSTON CRIMINAL DEFENSE & DWI DEFENSE ATTORNEY BLOG

Section 49.01(2) of the Texas Penal Code:

“Intoxicated” means:

(B) having an alcohol concentration of 0.08 or more.

Just a few things that are important to point out under this definition. First, the State does not have to prove that you are “drunk” in a DWI case. Under subsection (B), the State need only prove by proof beyond a reasonable doubt that your blood alcohol concentration (BAC) was 0.08 or above. This illustrates why in most cases I would advise individuals to refuse any breath or blood tests requested by law enforcement, because you might not be “drunk”, but a breath/blood test might show you with BAC at or above 0.08.

Even if you have a BAC lower the 0.08, the State could still choose to charge an individual with DWI under subsection (A). So there may be cases in which an individual is below the legal limit, but still might be charged with DWI, if they perform poorly on the Standard Field Sobriety Tests (SFSTs). Again, if you are stopped and suspected of DWI, I would politely refuse to perform the SFSTs.

Furthermore, section 49.01(2)(A) also states that you are “intoxicated” if your normal physical/mental abilities are diminished by the introduction of drugs or a combination of alcohol and drugs, this includes the use of illegal drugs, over the counter drugs, and prescription drugs. A lot of people, including some attorneys, are not aware that a person can be charged with a DWI while operating a motor vehicle under the use of prescription drugs and/or other controlled substance. Subsection (A) does not require that an individual have introduced alcohol into the body to charged with DWI. The State could accuse you of having a diminished physical/mental capacity due to the introduction of medications prescribed by your doctor or taken over-the-counter. Of course in these cases, the State has to prove whether the medication or controlled substance actually diminished your normal physical/mental capacity to state that you are “intoxicated”. The State often uses a Drug Recognition Expert (DRE) to attempt to prove these types of DWI cases.

To briefly summarize, there are several aspects of “intoxication” in a DWI case, that the average person might not realize. “Intoxication” does not equal “drunk”. Generally, it’s advisable to refuse to submit to any field sobriety testing or any breath/blood testing. Don’t give the State any evidence to help them prove their DWI charge against you.

Administrator DWI Elements, DWI/DUI LAW, Texas DWI/DUI Laws DWI/DUI LAW

We are now a few weeks into the implementation of the Harris County DA’s DWI DIVERT program. Just a few of my thoughts regarding the program so far.

1) No one really knows the procedure for the program. I have spoken with several different Assistant DA’s regarding the DIVERT program, and have gotten several different answers. What that suggests to me is that this program was launched with very little communication between the top level people at the DA’s Office and the Assistant DA’s. Of course all the confusion is frustrating to defense attorneys, because we have to go back and try to explain the details of a program which no one is really sure about to our clients. The procedure from what I have gathered seems to be that defendants charged with DWI 1st offense are screened and determined whether they are eligible for the program. Those defendants eligible and interested in the DIVERT program are then given an evaluation to determine the extent of their drug/alcohol issues and whether they are “accepted” into the DIVERT program. Of course, the cost just to take the evaluation is around $200. After the evaluation, the next step for those accepted is that a diversion contract with specific terms is drafted. At this point, the defendant with the advice of his/her attorney can decide to enter into this contract or decline the offer. If a defendant declines the offer, then a defendant is basically can either accept the DA’s offer of 30 days in Harris County jail, going to the judge with no plea recommendation from the State, or setting the case for trial. I would suggest taking the case to trial given the other alternatives offered for those declining the DIVERT program.

2) Even if your client is eligible, you should really evaluate whether the DIVERT program is a better option than proceeding to trial. Clients should understand that terms and the costs of the DIVERT program are not going to easy or cheap. Like I mentioned earlier, it costs around $200 just to take the initial evaluation. Those defendants that enter the DIVERT program will incur costs for such things as alcohol/drug counseling, ignition locks, drug testing, monthly administrative costs, as well as other costs. Not to mention to the value of the person’s time in having to comply all these requirements. I personally would only use the DIVERT programs for those defendants where the facts and the law are really not in the favor, and that the DIVERT program would be a better option than the other alternatives. However, if you have a client with a good sets of facts on his/her side, I would urge that client to go to trial on that case given the terms and costs of the DIVERT program. Also, going to trial is certainly much better than any of the other options outside of the DIVERT program.

3) There are some potential legal/ethical issues regarding the DIVERT program. Unlike other pretrial diversion programs, those defendants entering into the DIVERT program must sign a judicial confession regarding the facts of the arrest. Generally, if a defendant is unable to fulfill the terms of pretrial diversion contract, that defendant basically starts off at scratch with underlying criminal offense. Under the DIVERT program, if a defendant is unable to fulfill the terms of the contract, the State now has a signed confession from the defendant that they can use against the defendant. Basically, the DIVERT program is requiring that individuals waive certain constitutional rights that they would not have to waive in other types of pretrial diversions.

In addition, the DA’s office initial offer for those either not eligible for the DIVERT program or those not interested in the program is minimum 30 days jail in Harris County. I thought the purpose of the program was to help with overcrowding of the jails for 1st time offenders and to help decrease the number of these types of cases going to trial and crowding the dockets. I believe that the DA’s new plea recommendations for DWI cases will actually increase the number of DWI 1st offense cases going to trial. I guess they believe that they can coerce people into entering the DIVERT program by scaring people with the thought of 30 day jail sentence. The DA’s office even went to the judges to try to get them on board with their new plea recommendations. Of course, many defense lawyers believe that these tactics are questionable to say the least.

Lastly, there is an issue as to whether a client that completes the DWI DIVERT program is then eligible to have his/her record expunged. I mean the ultimate goal of a person entering the program would be to have it expunged from their record. However, one of the terms of the DIVERT contract is that the defendant promises to wait two (2) years before they file a petition to have the records expunged, and after that two (2) years the DA’s office will not object to expungement. In addition, the DA’s office can not guarantee a defendant or defense counsel that even if they wait for two (2) years whether or not it will be expunged. The reason is because the DA’s office is not sure whether DPS, one of the agencies responsible for maintaining criminal records, will view the DIVERT program as a diversionary program or treat it more like Deferred Adjudication. If it’s treated more like a deferred, then a defendant would not be eligible to have the DWI expunged. Furthermore, that would raise the issue as to whether the DA’s office would have the legal authority for such a program if it is viewed as a type of deferred adjudication, since the Texas legislature has made it clear that deferred adjudication is not allowed from DWI offenses.

I think that the DIVERT program is a good idea, but there were some issues that should have been addressed in greater detail before the commencement of the program. The program may still be a better alternative for some defendants, but a defense attorney should really evaluate and investigate a clients case to determine whether DIVERT is actually a better option than going to trial in certain cases, and not be coerced into the program.

Administrator DWI Pretrial Diversons, DWI/DUI LAW DWI/DUI LAW

CLASS A MISDEMEANOR. An individual adjudged guilty of a Class A misdemeanor shall be punished by:

(3) both such fine and confinement.

Examples of Class A misdemeanors include:

* Assault Bodily Injury
* Violation of a Protective Order
* Burglary of a Motor Vehicle
* DWI (2nd Offense)
* Criminal Trespass (Habitat/Dwelling)
* Resisting Arrest
* Stealing Checks
* Perjury
* Deadly Conduct (No firearm)
* Possession of Firearm (Prior family violence conviction)
* Obscenity
* Unlawfully Carrying Weapon
* Unlawful Restraint (No Child)

CLASS B MISDEMEANOR. An individual adjudged guilty of a Class B misdemeanor shall be punished by:

(3) both such fine and confinement.

Examples of Class B misdemeanors include:

* Assault (by threat or offensive contact with sports participant)
* Criminal Trespass (Not habitation/dwelling)
* Disorderly Conduct (Firearm)
* DWI (1st Offense)
* Evading Arrest (not in a vehicle and no injury)
* False Report to a Peace Officer
* Harassment (1st Offense)
* Possession of Marijuana (Less than 2 ounces)
* Prostitution
* Terroristic Threat

CLASS C MISDEMEANOR. An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500.

Examples of Class C misdemeanors include:

* Assault (Threat or Offensive Contact)
* Disorderly Conduct
* DUI by a Minor
* Gambling
* Issuance of a Bad Check
* Minor in Possession of Alcohol
* Possession of Alcohol in a Motor Vehicle
* Public Intoxication
* Traffic Violations

Administrator CRIMINAL DEFENSE LAW, Criminal Law FAQ's

A capital felony is punishable by life in prison or death by lethal injection.

Examples of capital felonies are any number of versions of capital murder:

* Murder of a police officer or fireman
* Murder committed during a kidnapping, burglary, robbery, aggravated sexual assault, or arson
* Murder committed while incarcerated or while escaping from a penal institution
* Murder for remuneration or hire
* Murder of a child of six years of age or less
* Murder of multiple people

First Degree Felony

A First Degree felony is punishable by a jail sentence ranging from 5 to 99 years in prison. Additionally you may be forced to pay a fine of up to $10,000.00.

Examples of First Degree Felonies are:

* Murder
* Aggravated Sexual Assault
* Aggravated Robbery
* Aggravated Kidnapping
* Arson to a place of worship
* Arson that results in bodily harm
* Theft or criminal mischief of $100,000.00 or more
* Burglary of a habitation with the intent to commit felony other than felony theft

Second Degree Felony

A Second Degree felony is punishable by 2 to 20 years in prison and you may be required to pay a fine of up to $10,000.00.

Examples of Second Degree felonies are:

* Murder committed in sudden passion
* Manslaughter
* Indecency with a child by sexual contact
* Sexual Assault
* Robbery
* Theft or criminal mischief of $20,000 or more
* Aggravated Assault
* Burglary of a habitation
* Arson

Third Degree Felony

A third Degree felony is punishable by 2 to 10 years in prison and you may be required to pay a fine of up to $10,000.00.

Examples of Third Degree felonies are:

* Violating Protective/Magistrate’s Order (third conviction or commits assault or stalking);
* Theft/Criminal Mischief of $20,000 or more
* Kidnapping
* Stalking with prior conviction
* Intoxication assault
* DWI (third offense)
* Violating a protective order or magistrateʼs order

Fourth Degree Felony

A Fourth Degree felony is punishable by 180 days to 2 years in state jail and you may be required to pay a fine of up to $10,000.00. In some cases the court will require you to serve the same punishment as a Class A misdemeanor.

Examples of Fourth Degree felonies are:

* Criminally negligent homicide
* Criminal nonsupport
* Burglary of a nonresidential building
* Theft or criminal mischief of $1500.00 or less
* Forgery or a check or credit card
* Criminal mischief to a habitation with a firearm or explosive weapon

Administrator CRIMINAL DEFENSE LAW, Criminal Law FAQ's

If a law enforcement officer pulls you over and asks to search your vehicle, You have the RIGHT to politely tell the officer “NO”!!!! By telling the officer “no”, the officer must have probable cause or some recognized exception under the law to probable cause before an officer can legally conduct a search of a vehicle. For example, a police officer can not just pull you over for a routine traffic stop, and then conduct a full search of your vehicle without some probable cause or reasonable suspicion to first of all stop you, and secondly probable cause to perform a search. However, often individuals waive this right by consenting to a search. That’s why officers generally ask you, “may I search your vehicle”. By stating yes, you have effectively waived any privacy interests under the 4th Amendment of the U.S. Constitution and under the Texas Constitution. By saying yes, you basically allow an officer to search your vehicle without needing probable cause to do such. Thus, if an officer’s search turns up evidence of criminal activity, that evidence can be used against you in a criminal prosecution. So in other words, don’t voluntarily make law enforcement’s job any easier to prosecute you. If law enforcement conducts a search without your consent and lacks probable to do so, then any evidence obtained as a result of the search generally cannot be used against you in a criminal prosecution. JUST SAY NO!!!

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Currently, a DWI conviction will result in an individual having to pay DPS an annual surcharge for three (3) years from the date of the conviction. The surcharges for a DWI conviction include:

1st Conviction: License Suspension from 90 days to 365 days;
2nd Conviction: License Suspension from 180 days to 2 years.

Administrator DPS Surcharges & Driver Responsibility Program, DWI & DUI Penalties DPS Surcharges, DWI/DUI LAW

In Texas, if your license is suspended for any reason you have a right to request an ALR hearing. An ALR hearing is basically an informal mini-trial to determine if your license was or is about to become suspended for a legitimate reason. In a DWI case, an ALR hearing is a useful tool to determine how good the State’s case is against you. You get to subpoena the officers and experts to the ALR hearing, and take their testimony. This is very helpful in determining what route you should take in your DWI defense, and what evidence that the State has against you. This is evidence that you likely will not uncover prior to the time of your criminal DWI trial.It can help to keep you from being surprised,and can help in defending your DWI case. If you intend to fight your DWI, you should consider asking for an ALR hearing. You have 15 days from the date of service with the notice of suspension letter to request an ALR hearing.

An ALR hearing may also be requested for drivers that have received notice of a license suspension due to habitual traffic ticket convictions, failure to maintain financial responsibility and causing an accident, and other criminal and traffic law violations.

Administrator Administrative License Revocation (ALR) Hearings, DWI/DUI LAW ALR, DWI/DUI LAW

Generally, the penalties for DUI as a minor, in addition to suspension of your driving license, include:

3rd Offense: Class B misdemeanor. For a third offense the minor will still be required to complete between 40 and 60 hours of community service, however deferred adjudication is no longer an option. As with the first two offenses the minor will be required to attend an alcohol awareness program within 90 days of your conviction, and if the minor is under age 18 a parent or guardian will be required to attend both the minor’s court appearances and the alcohol awareness program. If, on the other hand, the minor is 18 years of age or older at the time of his third offense, the penalty is much higher. Specifically, the minor will receive a fine ranging from $500.00 to $2,000.00; confinement in jail for up to 180 days; or both a fine and some jail time in addition to a license suspension.

Administrator DWI & DUI Penalties, DWI/DUI LAW DWI/DUI LAW

Generally, the penalties for DWI include:

1st offense: a first-offense conviction includes a fine not to exceed $2,000.00 and/or the possibility of serving jail time from 3 days to 180 days, and a driver’s license suspension of 90 to 365 days. (Class B Misdemeanor).

DWI where a death has occurred as a proximate cause of the intoxication: here, the crime is intoxication manslaughter. Upon conviction you might have to pay a maximum fine of $10,000.00 and/or be imprisoned from 2 to 20 years (Intoxicated Manslaughter or Manslaughter with use of Deadly Weapon are both 2nd Degree Felonies).

In some of the above minor classifications you may be eligible for probation, but there is no guarantee that you will receive a probated jail sentence or fine.

Administrator DWI & DUI Penalties, DWI/DUI LAW DWI/DUI LAW

J. Cole Brooks
Attorney & Counselor At Law
Kubosh & Associates
1619 Lubbock
Houston, TX 77007
Cell: 281-795-4720
Office: 713-222-0880
fax: 713-222-7020
email: jcole@colebrookslaw.com
website: www.colebrookslaw.com

Administrator CRIMINAL DEFENSE LAW