First DWI - What To Expect

Nov. 18, 2021

Texas Law prohibits “driving while intoxicated” (DWI). If you have been arrested for a DWI, we understand you have many questions about what comes next, and we’ll begin to answer some of those below. But the first thing to understand is this:

This is the beginning of a long process, and you should get a DWI criminal defense lawyer to represent you as soon as possible. DWI Defense is a unique specialty in criminal law, and the best DUI defense attorneys—such as the Law Office of Kenneth W Mullen PC—have both years of experience and specialized training for these cases.    

Major Steps in Prosecution of First Offense DWI

Arraignment: At the arraignment, you are formally charged in court with a DWI where you may be required to post bail.

Administrative License Revocation (ALR) Hearing: An ALR hearing is your opportunity to contest a DWI-related suspension of your driver’s license. But time is of the essence. You only have 15 days to request the hearing after receiving notice that your license will be suspended—which is given at the time of a DWI arrest. A successful ALR hearing can make a huge difference.

It’s important to note that if you refuse to do complete a field sobriety test, there is no legal penalty for this refusal.

The law is different if you refuse a breath test. Texas law says that, at the time you got your driver’s license, you implicitly promised that you would agree to a chemical test to determine your blood alcohol concentration (BAC) if you were ever pulled over under suspicion of DWI.

Therefore, if you refuse to comply with the police’s request for a breath test, then the police will immediately confiscate your driver’s license and give you a temporary license that is good for 40 days.

But the process isn’t over that point; again, the law says you already promised you’d comply with a BAC test, and it is entirely up to police which test they will administer: blood, breath, or urine. IF you refuse the test, the police can either obtain a warrant for a blood test, or treat your case as a refusal case.

Without the ALR hearing, your license is suspended after the 40-day notice period, and you’re prohibited from driving on a public highway for 180 days. (Similarly, if you don’t have a license, you won’t be able to get a license for the same 180-day period.). Texas does provide an option for an ignition interlock device to be installed; the device may be required as a condition of your bond or as a condition of an Occupational Driver’s License. You may also opt for an ignition interlock device upon the advice of your attorney.

Plea Bargaining: During a plea bargain, you, your attorney, and the prosecutor will review your case, and the prosecutor may agree to charge you with a lesser crime in exchange for your pleading guilty to that crime. During these conversations, your attorney may discuss facts or related issues regarding the allegations made against you—things that explain your behavior or other reasons why you don’t deserve a harsh sentence.

Factors that may make a prosecutor more inclined to agree to a lesser charge include:

  • This is a first DWI offense
  • Your blood-alcohol level was less than .015
  • There are no facts that support enhanced penalties
  • There was no DWI-related accident or property damage
  • No one was injured

Range of Punishments/Enhanced Penalties for DWI:

For a first offense DWI, penalties vary depending on the facts of the case. In some cases, certain conditions can result in “enhanced penalties.”

These are ranges of punishments for different types of DWI cases, beginning with the most basic penalties:

Class B Misdemeanor:

  • BAC range of .08 - .14, or 1st time DWI
  • A mandatory fine of up to $2,000
  • A mandatory jail sentence of at least 72 hours and up to 180 days
  • Loss of your license for up to one year
  • Possible requirement for a DWI intervention or education program
  • Possible requirement for ignition interlock device installed in your vehicle

Class A Misdemeanor:

  • A 2nd DWI, or 1st time DWI with BAC > 0.15
  • A mandatory fine of up to $4,000
  • A mandatory jail sentence of at least 6 days in jail and up to one year sentence
  • Loss of your license for up to one year
  • Possible requirement for a DWI intervention or education program
  • Possible requirement for ignition interlock device installed in your vehicle

DWI with An Open Container of Alcohol in The Car:

  • Class B misdemeanor
  • Increased possible fine (up to $2,000)
  • Increased mandatory minimum jail sentence (6 days–180 days)
  • Additional penalties are also possible (e.g., probation, community service)

DWI with A Child Passenger:

If there was a child (younger than 15) in the car at the time of the DWI, potential penalties can be much more severe:

  • State jail felony
  • A possible fine of up to $10,000
  • Possible jail sentence of between 180 days to 2 years
  • Loss of your license for up to six months
  • Possible requirement for DWI intervention or education program
  • Possible requirement for ignition interlock device installed in your vehicle
  • Additional penalties are possible (e.g., probation, community service)

If the DWI involves property damage, injury, or loss of life, penalties increase, while other charges (such as reckless driving or involuntary manslaughter) are also likely to be filed.

Pre-trial/Trial: Trial preparation has two components, the first relating to the facts of your case and the second relating to the law. From the factual perspective, you and your attorney will review video or audience footage of the DWI stop, analyze police and witness statements, and examine the results of the chemical blood-alcohol test (including how the test was taken, what equipment was used, and how the results were produced). From the legal perspective, your attorney will want to make sure that the police officers did not violate your Constitutional rights (e.g., with an improper search), as well as consider other state laws that may be relevant in your case.

Once you’ve seen all the evidence and reviewed the law, you and your lawyer will likely want to discuss whether you should agree to a plea bargain. For example, if the video of the DWI stop shows you as appearing highly intoxicated, that might be a reason to accept a plea because exoneration would seem more likely, and a judge might render a harsher sentence after seeing the video.

If you decide to go to trial, your attorney may file and argue pre-trial motions, such as a motion asking the judge to exclude a particular piece of evidence from trial. For example, if your attorney could argue that the police stopped you illegally. If your attorney were to win such a motion, then none of the evidence relating to the DWI stop—including your BAC test results—would be admissible in court. In that case, the prosecutor may have no other evidence against you and might drop the charges.

After pre-trial motions, the trial will proceed; you may have either a bench trial or a jury trial. If you are found guilty in a bench trial, the judge will decide your punishment. If you are found guilty in a jury trial, the judge may pass sentence, or the jury will decide your punishment consistent with the range of punishments discussed above.

This is just a brief overview of the prosecution process and possible penalties, but the bottom line is that a DWI is a serious allegation. You need a DWI defense attorney as soon as possible.

Every case is different, but defendants can and do win in a DWI defense with the right facts and the right attorney.

If you have been arrested under suspicion of DUI, or any other criminal allegation, don’t wait. Contact the Law Office of Kenneth W. Mullen PC for a free consultation.


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