DWI – 1st Offense

DWI, 1st Offense: Class B Misdemeanor.
A fine not to exceed $2,000.00.
Confinement in the County Jail for a term of not less than 72 hours nor more than six (6) months.
If there was an open container of alcohol in your car when arrested, the minimum term of confinement is six (6) days in the county jail.
Texas law mandates that a judge order not less than 24 hours nor more than 100 hours.
Absent unusual facts, most persons convicted of a first offense DWI are granted community supervision (probation). The general length of DWI probation is two years. There are also conditions of community supervision ordered that are fairly standard in most courts. Typical conditions imposed are: Drug/Alcohol Evaluation, Alcohol Education, and attendance at a MADD Victim Impact Panel.

Additional Conditions of Probation that may be Ordered:

If your case presents unusual facts (such as an accident, a demonstrable alcohol problem, prior alcohol contacts, bad driving record etc.), the court has discretion to order additional conditions, such as an Ignition Interlock Device.

Enhanced Penalties: (Prior alcohol or drug related criminal history)

Under Texas law, if it is shown that a person has been previously convicted of DWI, the punishment and penalties after conviction are increased or enhanced. The prior DWI arrest must have occurred within ten (10) years of the present arrest for DWI.

DWI, Second Offense: Class A Misdemeanor.

It is important to note that if arrested and accused of a DWI Second or greater offense, Texas law now requires the Court to Order as a CONDITION OF RELEASE FROM JAIL ON BOND, that the person install and maintain an ignition interlock device on the car that the person intends to drive and operate while charges are pending. Punishment also includes a fine, jail time, community service, and possibly other terms, depending upon the facts of the case. Third and subsequent offenses are considered felonies, with prison exposure of ten (10) years in addition to other consequences.

Texas DWI and the Administrative License Suspension (ALR)

Many Texas drivers who are arrested for driving while intoxicated do not realize that a DWI arrest creates two cases. More specifically, a DWI arrest results in a criminal charge, but it also initiates a civil proceeding against the arrested motorist’s driving privileges called an administrative license revocation, or ALR.

An ALR suspension is initiated against an arrested driver when he either refuses to submit to breath or blood testing, or alternatively, fails a breath or blood test where test results are above the legal limit.

The legal authority to impose an ALR suspension against a driver lies in the Texas implied consent statute. This law states that each person who operates a motor vehicle on Texas roadways has impliedly consented to provide a specimen of breath or blood if arrested for DWI and provided with the applicable consequences of refusing to submit to testing.

The implied consent statute also applies to operators of watercraft in Texas.

Further, in all intoxication-related offenses, Texas courts have decided that an individual does not have the right to consult with an attorney before making the decision to refuse or provide a requested specimen. Indeed, in cases where an accident which produced serious life-threatening injury or the possibility of death has occurred, a citizen can be forced to provide a sample of blood.

Notice of ALR Suspension

Many police officers, after arresting a citizen, will tell the arrested driver that if he does not agree to take a breath or blood test that his license will be automatically and immediately suspended. This is incorrect. When making an arrest for DWI, peace officers are required to take possession of any Texas license issued by this state and held by the person arrested and issue the person a temporary driving permit that expires on the 41st day after the date of issuance. Further, a request for a hearing to challenge the proposed suspension will delay any ALR sanctions until a hearing takes place.

Hearing Request Provisions

WARNING !!! An ALR suspension is AUTOMATIC…UNLESS you request a hearing to challenge the suspension, in writing, WITHIN FIFTEEN (15) DAYS after receiving notice of suspension from the arresting agency on a Department of Public Safety approved form (generally received on the day of arrest).

If a hearing is not timely requested, the suspension will automatically begin on the forty-first (41st) day after notice was received. If a hearing is requested, no action will be taken regarding suspension until after the hearing has taken place, even if the hearing takes place more than forty days after the arrest. Further, in the event of an ALR appeal, the suspension can be delayed for an additional 90 days.

The ALR Hearing

The burden of proof at an ALR hearing is on the Department of Public Safety. Once a driver or his attorney has made a timely request for an ALR hearing, no suspension may be imposed against the driver until the Department of Public Safety proves the following elements by a preponderance of the evidence at the hearing:

  1. That there was reasonable suspicion to stop or probable cause to arrest the driver,
    2. That probable cause existed that the driver was driving or in actual physical control of a motor vehicle in a public place while intoxicated,
    3. That the driver was placed under arrest and was offered an opportunity to give a specimen of breath or blood after being notified both orally and in writing of the consequences of either refusing or failing a breath or blood test, AND
    4. That the driver refused to give a specimen on request of the officer, OR, that the driver failed a breath or blood test by registering an alcohol concentration of .08 or greater per 100ml of blood or 210 liters of breath.

Suspension Provisions for Adult Drivers

Without any prior alcohol or drug related contacts against the accused driver during the previous 10-year period, the periods of suspension are 180 days where there is a refusal to submit to the chemical test, or 90 days where the test results are above the legal limit.
In a case where the accused has a prior alcohol or drug related contact within the past 10 years, a refusal will result in a two year suspension, and a one year suspension where the test is taken, but the results are above the legal limit.

Reinstatement of Drivers License After Suspension

If no suspension is imposed at the hearing, DPS is obligated to return the Texas license to the person arrested. If a suspension is ordered either automatically or after hearing, a driver must submit a reinstatement fee of $125.00 to TDPS before the license will be reinstated. Many experienced Texas lawyers advise their clients to send their fee to TDPS as soon as they learn that a suspension has been ordered. Because of the huge bureaucracy that has been created under the new law, waiting until the 60th or 90th day to submit your reinstatement fee will prolong reinstatement of your license until the fee has been both received and entered on the TDPS computer system. There is a special TDPS form that must be submitted to reinstate your driving privileges. This form together with the reinstatement fee must be paid by money order, cashier’s check or personal check and sent by certified mail, return receipt requested for proper documentation of payment and receipt to: Driver Improvement and Control Texas Department of Public Safety P.O. Box 15999 Austin, Texas 78761-5999