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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.
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Additional Conditions of Probation
that may be Ordered:
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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.
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Enhanced Penalties: (Prior alcohol
or drug related criminal history)
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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.
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DWI, Second Offense: Class A Misdemeanor.
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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.
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Texas DWI and the Administrative
License Suspension (ALR)
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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.
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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.
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Hearing Request Provisions
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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.
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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:
- That
there was reasonable suspicion to stop
or probable cause to arrest the driver,
- That
probable cause existed that the driver
was driving or in actual physical control
of a motor vehicle in a public place while
intoxicated,
- 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
- 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.
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Suspension Provisions for Adult
Drivers
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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.
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Reinstatement of Drivers License
After Suspension
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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
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