DWI Defense Attorneys
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For many residents of the Houston area, their first (and hopefully only) contact with law enforcement comes in the form of a DWI arrest. Drunk driving is a criminal offense in Texas, so you need to take any such charge seriously. Even first-time offenders face significant consequences to their life and liberty, which is why you need to work with an experienced Houston DWI defense attorney who understands the Texas criminal justice system.
The Law Offices of Tad Nelson & Associates focuses on DWI defense. Attorney Tad Nelson is a former prosecutor who is intimately familiar with how these cases work. He and his team know that you are likely overwhelmed by your arrest and may not even fully comprehend your constitutional and legal rights. Indeed, we find that in many criminal DWI cases the police or prosecution make mistakes that undermine their case. We will seek to expose such weaknesses and aggressively defend your interests.
What Does It Mean to Be “Intoxicated” in Texas?
Section 49.04 of the Texas Penal Code defines the basic offense of DWI. The prosecution needs to prove that you were “intoxicated while operating a motor vehicle in a public place.” A first-time DWI offense is normally treated as a Class B misdemeanor with a minimum jail term of three days (72 hours). Your driver’s license can also be suspended in a separate administrative proceeding.
You probably know that a person is “intoxicated” if they have a blood-alcohol concentration of at least 0.08 percent, which is the DWI limit in all states. But this is just one standard for legal intoxication. In fact, you can be convicted of DWI if the prosecution can prove–beyond a reasonable doubt–that you did not have the “normal use of mental or physical faculties” due to the use of any alcohol or drug. For example, you may be convicted of DWI even if you just took prescription medication that impaired your ability to safely operate a vehicle.
Dealing With Special Circumstances in Drunk Driving Cases
While a first DWI offense is normally a Class B misdemeanor, second and subsequent offenses are treated more severely and in some cases are felonies. At the Law Offices of Tad Nelson & Associates we can assist you with many types of “enhanced” DWI cases involving issues like the following:
- Commercial Driver DWI (CDL license)
- Driving Under the Influence of Drugs (DUID)
- DWI With a Child in Car
- Intoxication Assault
- Intoxication Manslaughter
- Third DWI Offense
- Underage Drinking and Driving (DUI)
The Cost Of A Texas DWI Conviction
Some Texas DWI defense attorneys estimate the financial costs of a drunk driving conviction anywhere between $10,000 and $20,000 for even a first-time offender. For those who made one mistake or for those who were wrongly accused of driving while impaired, the cost of just three drinks can quickly become very expensive.
A driver can be arrested for a Texas DWI if his or her blood alcohol content is at or above .08. Consuming three beers is enough for some people to reach the level of legal intoxication; others may consume more and others may consume less and still reach the same BAC.
The penalties for a DWI conviction increase with the number of repeat offenses. The fine for a first-time DWI in Texas is capped at $2,000. A second DWI conviction can result in up to a $4,000 fine and a third or felony conviction can mean up to a $10,000 fine. That’s not including court costs, insurance costs, bail if posted, an ignition interlock device, costs of reinstating your driver’s license, attorney’s fees, and surcharges.
What Is A DWI Surcharge?
The Texas Driver Responsibility Program allows surcharges to be assessed for specific traffic offenses committed after September 1, 2003. Surcharges are administrative fees that are in addition to any other fees and fines related to a DWI conviction.
From the date of a DWI conviction, a DWI surcharge will be assessed annually for the next three years. There are no points added to your Texas driver’s license related to the surcharges because the conviction itself mandates the assessment of the surcharge. Drivers may be surprised to learn that a DWI conviction in another state can still result in surcharges in Texas.
A first offense DWI surcharge is $1,000, for a total of $3,000 over three years. A second or subsequent DWI conviction earns a surcharge of $1,500 annually, for a total of $4,500 in Texas surcharges. Those who are convicted of an ‘extreme DWI,’ which means that the BAC reading was .16 or greater regardless of whether or not it is the first offense, will be assessed a $2,000 annual surcharge, for a total of $6,000 over three years.
In addition to the DWI surcharges after conviction, you may face an additional surcharge of $250 for three years if you are caught driving before your license is reinstated and/or another $250 for three years if you are caught driving uninsured.
Suspension Of Your Texas Driver’s License For A DWI Arrest Or Conviction
After you’ve been arrested for DWI in Texas, your driver’s license will be suspended. If you refused to consent to a blood or breath test or if you failed the blood alcohol test, your license will be immediately suspended, even before you are convicted of drunk driving. You will be issued a temporary license that will expire shortly after the issue. In the meantime, you must request a review hearing within 15 days of your arrest to maintain your driving privileges.
The Administrative License Revocation (ALR) process is separate from the criminal proceedings in a DWI case. It is important to your DWI defense strategy because if you are successful, you will have your license reinstated after the hearing. It is also an important opportunity for your DWI defense attorney to find out what evidence has been collected against you to prove the DWI charges.
At the hearing, the Department of Public Safety must prove that the arresting officer had reasonable suspicion to pull you over as well as probable cause to then arrest you for DWI. If your driver’s license was suspended for refusing a blood or breath test, DPS must also show that the arresting officer warned you of the consequences of refusing the test.
What Happens if I Refuse a Breathalyzer in Texas?
Texas severely punishes those who violate laws on driving while intoxicated (DWI), and some would argue that the penalties for a conviction are even harsher than other states. If your blood alcohol concentration (BAC) is above the legal limit of .08 percent, a first-time offense is a Class B Misdemeanor. You face up to 180 days of incarceration and a maximum fine of $2,000. However, when your BAC exceeds .15 percent, the crime is a Class A Misdemeanor punishable by a year in jail and a fine up to $4,000.
From this brief overview, you can see that your BAC is an important factor in a Texas drunk driving case. Under the circumstances, you probably assume that it is in your best interests to make sure officers do NOT get this key piece of evidence. This assumption is not entirely true for reasons a Houston DWI defense lawyer can explain in more detail. In some cases, the breathalyzer test can be defective which provides grounds for challenging the charges.
What Defenses Can I Use Against a DWI?
Drunk driving charges in Texas should be taken extremely seriously. Even if you are facing a first offense, you can still end up spending a significant amount of time in jail, losing your driver’s license, and owing a substantial fine. Indeed, the Texas Department of Transportation underscores that a first-offense conviction for driving while intoxicated (DWI) will result in a fine of up to $2,000, up to 180 days in jail (with three days mandatory), and the loss of your driver’s license for up to one year. Those penalties increase significantly with a second-offense conviction, and even more if you are convicted of a third offense. To be sure, a conviction for a second DWI will result in a jail sentence of anywhere from one month to one year in jail, a $4,000 fine, and the loss of your driver’s license for up to two years. A third offense can result in up to 10 years in prison.
Penalties increase even more if you are charged with a DWI while you have a child passenger. Indeed, a first offense can result in up to two years in jail. All of this is to say that you need to build a strong defense strategy in order to beat the DWI charges you are facing. The following are some possible defenses that may apply to your case.
Defective Breathalyzer Test
As mentioned above, your BAC is a crucial part Texas drunk driving cases. If you were stopped on suspicion of a DWI and the law enforcement officer administered a breathalyzer test, you may be able to argue that the breathalyzer results were defective. In some cases, breathalyzer results are inaccurate because the law enforcement official was not properly trained to use the device and administered the breath test incorrectly. In other situations, the machine itself may be defective and might not have given an accurate readout of your blood alcohol concentration (BAC).
No Reasonable Suspicion to Stop You
In order to stop you, law enforcement officials must have reasonable suspicion of a criminal offense. There are many situations in which police stop drivers in what are known as “pretextual stops,” where a law enforcement official pulls over a driver for discriminatory reasons. You may be able to work with a DWI defense lawyer in Houston to prove that the officer who stopped you did not have reason to do so. You should also remember that sobriety checkpoints are not supported by Texas law, so you should never be arrested for a DWI as a result of going through a Texas sobriety checkpoint.
Challenging a DWI Blood Test
Those who are arrested for and charged with driving while under the influence of drugs or alcohol in Texas can only be convicted if a prosecutor has enough evidence to prove guilt. In some cases, this may take the form of a police officer’s testimony about a driver’s behavior, the results of a roadside breath test, or even the results of a chemical or blood test administered at the police station. Fortunately, even when those results indicate that a driver was intoxicated, he or she isn’t out of legal options. In fact, an experienced Houston DWI lawyer could even help a driver avoid conviction or get his or her charges reduced if able to successfully challenge a blood test in court.
Errors in Blood Drawing Procedures
While blood tests are generally considered to be more accurate than roadside breath tests, they are by no means foolproof. There are, for instance, a number of simple mistakes that, if made during a blood drawing procedure, could significantly alter a person’s results, including:
- Blood sample contamination, which often occurs when an officer fails to take sanitary precautions before drawing blood, such as using needles that have been sanitized with non-alcoholic solutions,
- Drawing blood from an artery instead of a vein, which is more likely to result in a higher, albeit less accurate, concentration of alcohol in a person’s bloodstream;
- Drawing an inadequate amount of blood to perform the test;
- Using alcohol swabs to clean the skin prior to drawing blood, which can adversely impact test results; and
- Drawing blood without the proper qualifications.
All of these mistakes could have significant repercussions on the accuracy of a driver’s blood test. Fortunately, an experienced DWI lawyer will be well-versed in these arguments and able to use them to challenge a tainted sample.
Drawing blood is not the only difficult part of taking a BAC blood test, as the processes required to test the blood itself are also extremely complex. This means that even a minor error during testing can lead to a skewed result. Failing to recalibrate plasma blood test results to whole blood value, for instance, can adversely affect a blood sample, as can failing to properly mix a sample with the correct preservatives or anticoagulant agents. Failing to properly clean and calibrate the equipment used to perform a blood test is also a relatively common occurrence that can result in the improper testing of hundreds of samples.
Once they have been drawn, blood samples are stored by law enforcement officers who are required to comply with strict chain of custody procedures, which ensures that samples are not lost or tainted. If the chain of custody for a sample is broken, that sample will often be barred from entry as evidence in a DWI case. Similarly, blood samples must be refrigerated before being taken to a lab for testing. Failing to store blood samples in safe containers of a certain temperature can affect the integrity of the sample itself. If either of these errors is discovered, a court could throw out the test results and if officers failed to secure additional vials for retesting, could even dismiss the charges entirely.
Blood Draw Was Unlawful
In some DWI cases, law enforcement officials will do a blood draw to determine a motorist’s BAC. Yet in order to do a blood draw, law enforcement officials must operate within the bounds of Texas law. Under Texas law, your blood can only be drawn for a sample to determine your BAC if you give consent to the blood draw, if the law enforcement officer has a warrant, or if an exception applies. To be clear, while you do give implied consent to a breath test as a motorist on Texas roads, you do not give implied consent, in the same way, to have your blood drawn.
Details on Texas’ Implied Consent Law
The key to understanding the implications of refusing a breathalyzer is the Texas implied consent law. The statute provides that you implicitly agree to submit to chemical testing upon arrest for drunk driving, and it is essentially a condition attached to your driver’s license. There are penalties if you do not uphold your end of the bargain by complying with a request for a breath, blood, or urine test. If you refuse:
- Your driver’s license will be suspended for 180 days for a first-time refusal; and
- You will lose your driving privileges for up to two years if you have a prior DWI or refused a chemical test in the past.
These penalties do not apply to a roadside breathalyzer test; a refusal to blow only operates when you have already been arrested.
Special Considerations to Note
It is important to keep in mind that refusing to blow does not guarantee you will avoid drunk driving charges. Police can still base a DWI arrest upon intoxication, which does not require proof of BAC at all. If officers observe that you do not have the normal use of your mental or physical faculties because of alcohol, you will face charges. Drunk driving is a separate offense from refusing to blow, you also face the penalties for a DWI conviction mentioned above.
You should also realize that police may have the authority to collect a chemical sample despite your refusal. They can compel a blood or breathalyzer test if you were:
- Previously convicted of DWI with a child in the vehicle;
- Involved in a DWI accident that caused injury or death; or
- Convicted twice for drunk driving in the past.
The Law Of Enhanced Offenses
Texas is somewhat unique in that an entire category of crime exists within the Penal Code – specifically at Sec. 49.09 – that assesses harsher penalties on offenses if they were committed under the influence of drugs or alcohol. If one examines the text of the law itself, there is a list of offenses from public intoxication to intoxication manslaughter – nearly all of them deal with driving a vehicle of some kind while under the influence. Section 49.09 then mandates that if someone has been convicted of any of the listed offenses more than once, the charge turns into a felony (whereas previously most of the listed crimes are class A misdemeanors).
In essence, serious crimes are made more serious by the introduction of alcohol. The category of enhanced offenses seeks to make sure that distinction is understood.
Intoxication Assault and Intoxication Manslaughter
While ordinary offenses are elevated to “enhanced” status after multiple convictions or serious injuries caused, there are a few select crimes that have their own category. In most states, the assault or death of another human being while under the influence of alcohol may differentiate from the ordinary cause of action at the sentencing phase, but the cause of action is essentially the same. In Texas, there is an entirely different cause of action, to begin with.
Intoxication manslaughter, in particular, carries a stiff sentence. It is classified as a second-degree felony, with a possible prison sentence of anywhere between two and 20 years, plus fines of up to $10,000 and mandatory community service. If you cause the death of another person by your actions, with a blood alcohol content of more than 0.08, the charge against you will not be voluntary or involuntary manslaughter, but intoxication manslaughter.
Be advised that there are other offenses that can qualify as ‘enhanced,’ such as DWI with a minor in the vehicle, but many do not deal with operating a vehicle while intoxicated. Also, it is within a judge’s discretion for a first offense to reduce a prison term to probation, though it is rarely done.
What Questions Should I Ask When I Hire a DWI Lawyer in Texas?
Driving while intoxicated charges, or DWI charges, in Texas, are extremely serious. To be sure, DWI charges are criminal charges and depending upon your own record and the circumstances surrounding your arrest, you can face penalties for a misdemeanor or felony offense under Texas law. Accordingly, it is absolutely critical to begin working with an experienced Texas DWI defense attorney on your case as soon as possible so that you can begin strategizing about the best defense plan to beat the charges you are facing. Yet it can be difficult to find the best DWI lawyer for your case and to feel secure knowing that you have a lawyer on your side who has the experience necessary to help you fight these DWI charges.
What questions should you ask a potential DWI lawyer in Texas when you are hiring a defense attorney? The following are some questions you should consider when you meet with an attorney for a consultation.
- How Often Do You Represent Clients in DWI Cases?
It is important to find out how frequently a potential DWI defense lawyer handles DWI cases in Houston and in Texas more generally. Some criminal defense attorneys take almost any kind of criminal case, while others focus on DWI and drunk driving defense strategies. You should ask questions to help understand how much experience a DWI attorney has handled cases like your own.
- How Many DWI Cases Have You Defended?
By asking how many DWI cases an attorney has handled, you can gain a better sense of that lawyer’s particular experience in DWI and drunk driving defense law in Texas.
- What Is Your Record of Getting Acquittals in DWI Cases?
Finding out more about a lawyer’s rate of acquittal is very important, especially in cases that have similar fact patterns to your own. At the same time, it is not possible to win every case and to get an acquittal in every DWI defense, so it is important to be reasonable yet demanding when you hire a lawyer.
- Have You Been Able to Get Charges Reduced If an Acquittal Is Not Possible?
Even when an attorney cannot get an acquittal in a particular case, it may be possible to get the charges reduced. You should ask a potential lawyer about acquittals and reductions in charges.
- How Can I Contact You During My Case?
You should have a good sense of how you can contact your lawyer throughout your case, whether it is by phone, email, text, or another form of communication.
- How Will I Pay You for DWI Defense Services?
You should find out upfront how you will pay for your case, the amount the defense is likely to cost, and how payment for the lawyer’s services will work more generally.
We Can Help You Fight Your DWI Charge
Whatever the charge you face, the important thing to remember is that you have a constitutional right to the assistance of qualified legal counsel to prepare your defense. The Law Offices of Tad Nelson & Associates has been helping Harris and Galveston County residents like you fight DWI charges for nearly two decades. Contact us today at (281) 280-0100 if you have been charged with drunk driving and need to speak with an attorney right away.