Criminal Defense and family law

AuClair Law Firm

DRIVING WHILE INTOXICATED 

Under the Texas Penal Code a person commits this offense if the individual is operating a motor vehicle in a public place and is intoxicated. Intoxicated means having an alcohol concentration of 0.08 or more. It also means not having the normal use of your mental and physical faculties. This is a Class B Misdemeanor with a minimum term of confinement of 72 hours. 

It is a Class B Misdemeanor with a minimum term of confinement of six (6) days if it is proven that there was an open container of alcohol in the persons immediate possession at the time the offense was committed. 

It is a Class A Misdemeanor if it is proven that the blood, breath, or urine specimen shows an alcohol concentration of 0.15 or more. 

It is also a Class A Misdemeanor if the defendant has been previously convicted of a DWI. 

It is a Third Degree Felony if the defendant has been previously convicted of two (2) DWI's.


what if? 

  • I have been charged with a DWI but I wasn't drinking. 
    • A DWI can be charged against a person who has been drinking, under the influence of dangerous drug, under the influence of prescription drugs, or a combination of any of the above. 
  • I am pulled over, what am I required to provide to the officer? 
    • You are required by law to provide your identification and proof of insurance only. You are not required to talk with the officer or answer any questions. 
  • I have been asked to do a field sobriety test, can I refuse? 
    • You have the RIGHT to refuse a field sobriety test. We recommend that you respectfully decline. 
  • The officer has requested that I give consent to a blood or breath test, should I consent? 
    • The answer is NO! You should not consent to any testing as it becomes extremely difficult to overcome that consent. 
    • If you refuse a breath test you may be asked to consent to a blood test. Or the officer may get a warrant to draw your blood. If the officer gets a warrant, then the warrant can possibly be attacked if probable cause was not established. When you give consent to a breath or blood test, it becomes easier for the State to make their case. 
  • I gave a breath test, do I have the right to have my blood tested? 
    • Yes you do. You have the right to be transported to a hospital so that your blood can be taken and tested, this will be done at your own expense.
  • I was given a roadside breath test, can this be used against me in court? 
    • While the test it self is not admissible in court the officer can testify that it showed a positive result for the presence of alcohol. 



DRIVING WHILE INTOXICATED WITH CHILD PASSENGER 

Under the Texas Penal Code this offense is committed when a person is operating a motor vehicle in a public place while intoxicated and the vehicle is occupied with a passenger that is younger than fifteen (15) years of age. Intoxicated means having an alcohol concentration of 0.08 or more. It also means not having the normal use of  your mental and physical faculties. This offense is a State Jail Felony.