Mendoza Law: San Marcos Criminal Defense

Overview Of DWI In Texas

After being arrested for DWI in San Marcos, you might not realize there are two cases against you. The first is the civil case with the Department of Public Safety regarding your driver’s license and the administrative suspension that happened when you were arrested. The other case is the criminal one that occurs in court with the county prosecutor and judge. You will want to win both cases if you can.

In Texas, DWI is defined as operating a motor vehicle in a public place while intoxicated. You are considered intoxicated under Texas law if you lack the normal use of your mental and physical faculties because you are using alcohol or drugs. You also are considered intoxicated if you have a BAC of at least .08%. So, remember that you can be charged with DWI even if your BAC is under the legal limit; it is sufficient for a charge if the police believe you are not in full possession of your faculties because of alcohol or drugs.

When you are stopped for suspected DWI, the police officer will ask you to take a breath or blood test and possibly do a field sobriety test. You can refuse the breath or blood test and the field tests. If you decide to refuse the tests, your driver’s license will be automatically suspended. However, note that the police officer will probably have a video recorder in their vehicle and will use the test videos against you in court, so refusing the tests is an option.

Field sobriety tests are not necessarily accurate in determining if someone is intoxicated or under the influence of drugs. Many things can make you fail the tests, including the ground on which the tests are taken, your shoes, nervousness, and more. Your DWI attorney in San Marcos will review how the field sobriety tests were conducted and look for holes in the prosecution’s case.

It is common for the defendant’s intoxication to be a major issue in the DWI trial. An experienced DWI attorney knows how to cross-examine witnesses to cast doubt on whether you were intoxicated or not. Your attorney will review the case to determine if there is a way to question whether you were drunk or not.

Probable Cause in DWI Cases in Texas

In Texas, establishing probable cause is a critical element in driving while intoxicated (DWI) cases. Probable cause refers to the reasonable belief that a person has committed a crime, and it is a legal requirement for law enforcement to initiate a DWI arrest. Several factors contribute to establishing probable cause in DWI cases in Texas:

  • Observations of Erratic Driving: Law enforcement officers often base probable cause on observations of erratic driving behavior, such as swerving, abrupt lane changes, or driving at inconsistent speeds.
  • Failed Field Sobriety Tests: If a driver exhibits signs of impairment during field sobriety tests, such as poor balance, lack of coordination, or inability to follow instructions, it can contribute to the establishment of probable cause.
  • Bloodshot Eyes or Odor of Alcohol: Physical signs, such as bloodshot or watery eyes, and the odor of alcohol on the driver’s breath can be indicators of impairment and contribute to the establishment of probable cause.
  • Admission of Alcohol Consumption: If a driver admits to consuming alcohol, either during a traffic stop or after being pulled over, it can be considered in establishing probable cause.
  • Breath or Blood Test Results: Subsequent breath or blood tests that reveal a blood alcohol concentration (BAC) above the legal limit of 0.08% are strong evidence of impairment and can support probable cause.
  • Refusal to Submit to Testing: Refusal to submit to chemical testing, such as a breathalyzer or blood test, can also be used as evidence in establishing probable cause.

The determination of probable cause is a subjective assessment made by law enforcement officers based on their observations and the circumstances surrounding a traffic stop. Challenging the establishment of probable cause is a common defense strategy in DWI cases, and legal professionals may scrutinize the officer’s actions to ensure they adhere to constitutional standards during the arrest process. Understanding the factors that contribute to probable cause is crucial for individuals facing DWI charges in Texas.

Difference Between DWI and DUI in Texas

In Texas, the terms DWI (Driving While Intoxicated) and DUI (Driving Under the Influence) are often used interchangeably, but they have distinct legal meanings.

DWI typically refers to cases involving alcohol impairment, and individuals may be charged with DWI if they are found to have a blood alcohol concentration (BAC) of 0.08% or higher. On the other hand, DUI in Texas generally pertains to cases involving minors (individuals under 21 years old) who are driving with any detectable amount of alcohol in their system.

While the legal limit for adults is 0.08%, Texas has a zero-tolerance policy for minors, making it illegal for them to drive with any measurable amount of alcohol. Both DWI and DUI offenses carry serious consequences, including fines, license suspension, and, in certain cases, imprisonment. Understanding the distinction between these terms is crucial for individuals facing alcohol-related driving charges in Texas.

Can You Refuse a DWI Test in Texas?

In Texas, drivers have the right to refuse a field sobriety test or a portable breath test during a traffic stop without facing immediate legal consequences. However, if law enforcement has probable cause to believe a driver is impaired, refusing a chemical test, such as a breathalyzer or blood test, can result in penalties under the state’s implied consent law.

Refusal may lead to an automatic driver’s license suspension, ranging from 90 days to two years, depending on previous refusals. While drivers can refuse certain tests initially, doing so may carry significant consequences, and consulting with a San Marcos, TX, DWI attorney is advisable to understand the best course of action based on the specific circumstances.

What Happens To Your Driver’s License After A DWI Arrest?

If you fail the blood or breath test, your driver’s license will probably be suspended for 90 days. If you do not take the test after the DWI stop, your license is suspended for six months. However, you and your San Marcos DWI attorney can petition the DWI court for an administrative hearing to get your license back while the charges are pending.

Hiring a DWI attorney to represent you at the administrative hearing to get your license back while the drunk driving charges are pending is strongly recommended. You can contest the suspension within 15 days of the DWI arrest. Your attorney will offer the best arguments for reinstating your driver’s license. If the court grants your petition, you can keep your license while you wait for the administrative hearing.

At the hearing, the judge will decide if the officer made a reasonable traffic stop and probable cause to arrest you. If the judge agrees with the stop, your license is suspended.

However, your attorney could help you qualify for an occupational driver’s license. This would let you drive up to 12 hours per day and seven days a week for work, school, and duties related to maintaining a household. Your attorney can help you keep your license while the case is pending, which can be for several weeks or months.

Penalties For Texas DWI Convictions

The penalties for DWI convictions in Texas are serious and worsen based on the number of offenses and other factors involved in the case. For instance, if there was a minor in the car, you could receive enhanced DWI penalties.

Texas does not use a look-back period for drunk driving. This means every charge will stay on your record forever and may be used as a prior charge. Punishments for DWI charges are:

First DWI Conviction

This is a Class B misdemeanor punishable by up to a $2,000 fine, a term in jail between three and 180 days, and a license suspension of up to two years. You also can have a $2,000 surcharge on your driver’s license annually for up to three years and up to 100 hours of community service. You may also be required to pay for an ignition interlock device on your car and a DWI education program.

Second DWI Conviction

This is a Class A misdemeanor and punishable by up to a $4,000 fine and a term in jail between 30 days and one year. Your license can be suspended for up to two years, and you may need to pay a $2,000 annual surcharge for three years to keep your license active. You also must serve up to 200 community service hours and pay for an interlock ignition device and DWI education.

Third DWI Conviction

This is a third-degree felony; you can receive between two and 10 years in prison and a fine of up to $10,000. A $2,000 annual surcharge on your license is likely, and so is an ignition interlock device and DWI education programming. Up to 600 hours of community service may be required.

What Are DWI Punishments For Minors Under 21?

If you are a minor and convicted of drunk driving, you may receive a $500 fine for a first or second offense, community service, and alcohol abuse classes. This crime is usually charged as a Class C misdemeanor. If you are under 21 and charged with public intoxication, you also can be charged with a Class C misdemeanor.

If you are charged with minor in possession of alcohol, also known as MIP, you may be fined $500 for the first or second offense. The third offense may result in a $2,000 fine and a sentence of up to 180 days in jail.

How A DWI Stop Can Be Thrown Out?

If you are stopped for DWI, the stop could be illegal or mistaken. Your attorney will carefully review the stop to see if it was illegal and if your Constitutional rights for violated. Some of the ways the traffic stop might be inadmissible in court are:

  • You were stopped because of an anonymous 911 call: Sometimes someone will call 911 and tell them a person is drunk and getting in a car to drive. However, the police officer needs to personally observe the matter himself and must have probable cause to stop you. A random 911 call should not be enough reason to stop a driver.
  • Stopping the car without probable cause: It’s illegal in the US to pull someone over for no reason. If the police lacked probable cause to stop you for suspected DWI, the evidence may be inadmissible in court.
  • Testing equipment mistakes: Breathalyzers can pick up tiny amounts of alcohol in food and related substances that make the device read incorrectly. If you chew gum, take medicine, or use mouthwash, it’s possible they could affect how the equipment performs. Also, smoking, dieting, and diabetes can influence how the device reads. Breathalyzers that police officers carry also can be inaccurate. In fact, they are not approved by the state to be used in criminal prosecutions.

608 S Guadalupe St #103
San Marcos, TX 78666 United States

Phone: 512-757-8830



January 3, 2024