Board Certified Lawyer answers Top Texas Questions about DWI Law
If you’ve been charged with a DWI or are curious about what it entails, you’ve come to the right place. I’m Brian Foley, a criminal defense lawyer and DWI attorney based in Montgomery County, Texas—just north of Houston. I practice across Montgomery County, Houston, and nearby counties, helping people navigate the complex world of DWI law. In this blog post, I’ll answer some of the most frequently asked questions about DWI cases, offering insights into the legal process, your rights, and how my firm can assist you. Let’s dive in!
Immediate Steps After a DWI Arrest
Q: What are the immediate steps someone should take if they are arrested for a DWI?
If you’re arrested for a DWI in Texas, the first priority is getting out of jail. After your arrest, you’ll be taken to jail, but you don’t have to stay there. You can secure your release by paying bail or a bond. In Montgomery County, a typical bond for a first-time DWI—assuming no complicating factors like a wreck or a high blood alcohol content (BAC)—is around $600. However, if your BAC is 0.15 or higher, or if this isn’t your first DWI, the bond amount might increase, and additional conditions could apply.
Once you’re out, you’ll need to comply with any bond conditions. For example, a DWI with a BAC of 0.15 or greater often requires you to report to the probation department. You might also need to install an interlock device in your car—a gadget you blow into to check for alcohol before the vehicle will start. Similar conditions may apply if it’s a second or third DWI, or if the charge involves a child in the car, intoxication assault, or intoxication manslaughter. Staying on top of these requirements is critical to avoid having your bond revoked.
How DWI Cases Differ from Other Criminal Cases
Q: How does the legal process for a DWI case differ from other cases?
DWI cases stand out from other criminal cases in a couple of big ways. First, there’s the potential suspension of your driver’s license, which happens through a separate administrative process called an Administrative License Revocation (ALR) hearing. If you refused a breath or blood test, or if you failed one, the Texas Department of Public Safety (DPS) might try to suspend your license. We typically have 15 days from the arrest to request an ALR hearing to fight that suspension—longer if blood was drawn with your consent.
Second, DWI carries a mandatory minimum jail time. Most Class B misdemeanors in Texas have a punishment range of 0 to 180 days in jail, but a first-time DWI conviction requires at least 3 days in jail, up to 180 days. That said, courts often give credit for time served. If you spent a few hours or a day in jail after your arrest, that might satisfy the minimum, depending on the jurisdiction.
DWI vs. DUI in Texas: What’s the Difference?
Q: What’s the difference between DWI and DUI, and why does it matter in a criminal defense case?
In Texas, DWI and DUI are not the same, and the distinction matters. DWI (Driving While Intoxicated) applies to drivers over 21 who are intoxicated—meaning they’ve lost the normal use of their mental or physical faculties due to alcohol or drugs, or their BAC is 0.08 or higher. In contrast, DUI (Driving Under the Influence) is a Class C misdemeanor for drivers under 21. It doesn’t require intoxication; any detectable amount of alcohol in a minor’s system triggers this “zero tolerance” charge.
Why does this matter? The penalties and defenses differ. A DWI carries harsher consequences—like jail time and license suspension—while a DUI is typically a fine-only offense. If you’re over 21, you can’t be charged with DUI in Texas; it’s DWI or nothing. Understanding which charge applies is the first step in building your defense.
The Impact of Breathalyzer Results in DWI Cases
Q: How do breathalyzer results impact a DWI case, and can they be challenged in court?
Breathalyzer tests—often using devices like the Intoxilyzer—are a key piece of evidence in DWI cases, measuring your BAC to prove intoxication. But they’re not bulletproof, and yes, they can be challenged. Here’s how they can go wrong:
Administration Errors: Officers must observe you for at least 15 minutes before the test (20 minutes per some standards) to ensure no burping or regurgitation skews the results.
Calibration Problems: The device needs regular calibration and a reference sample (a known alcohol concentration, like 0.08 or 0.10) to stay accurate. If it’s off, the results are suspect.
Physiological Issues: Burping can bring metabolized alcohol from your stomach into your breath, artificially inflating the reading.
At my firm, we dig into these details—reviewing calibration logs, officer procedures, and your physical state—to challenge unreliable breath test results in court.
Field Sobriety Tests: What You Need to Know
Q: What role does field sobriety testing play in a DWI case, and how can it affect the outcome?
Field sobriety tests (FSTs) are roadside exercises police use to gauge impairment, and they play a huge role in DWI cases. The standard tests are the Horizontal Gaze Nystagmus (HGN) eye test, the Walk-and-Turn, and the One-Leg Stand. Jurors often watch video footage of these tests to decide if you’ve lost the normal use of your mental or physical faculties.
But FSTs aren’t perfect. Uneven ground, bad lighting, your footwear, or medical conditions—like an old ankle injury—can throw off your performance. I’ve seen clients struggle with balance for reasons unrelated to alcohol, and we use that in court to cast doubt on the results. Jurors tend to weigh the eye test (HGN) less heavily, focusing more on walking and standing tasks, so we tailor our defense accordingly.
Can You Be Convicted of DWI with a BAC Under 0.08?
Q: Can a person be convicted of a DWI if their blood alcohol content is under the legal limit?
Yes, absolutely. In Texas, intoxication isn’t just about BAC. It’s defined three ways: (1) loss of mental faculties, (2) loss of physical faculties, or (3) a BAC of 0.08 or higher. Even if your BAC is below 0.08—or if there’s no BAC test at all—the prosecution can still convict you by proving impairment through FSTs, officer observations, or video evidence. This flexibility in the law makes a strong defense essential.
Long-Term Consequences of a DWI Conviction
Q: What are the long-term consequences of a DWI conviction?
A DWI conviction sticks with you. It’s a permanent mark on your criminal record, which can impact:
Jobs: Employers running background checks might pass you over for someone without a DWI.
Housing: Landlords can deny your application based on your record.
Travel: Countries like Canada may bar entry due to a DWI conviction.
Insurance: Expect your rates to skyrocket.
DWIs are common, but that doesn’t lessen their sting. You don’t have to intend to commit this crime—just being in the wrong place at the wrong time can lead to a lifelong label. That’s why fighting the charge matters.
Common Defenses in DWI Cases
Q: What defenses can be used in a DWI case, and how does your firm approach defending DWI charges?
The state has to prove your guilt beyond a reasonable doubt, and we hold them to that standard. Here are some defenses we explore:
Illegal Traffic Stop: If the officer lacked reasonable suspicion—like a non-dangerous lane change—evidence from the stop might get thrown out.
Test Discrepancies: If your breath or blood test shows a high BAC (say, 0.21), but you’re walking and talking fine on video, we highlight that disconnect.
FST Challenges: We point out external factors (e.g., uneven pavement) or medical issues affecting your performance.
At Brian Foley Law, we dissect the state’s evidence—police reports, videos, test records—to find holes. Our job isn’t to prove your innocence; it’s to show the prosecution can’t prove your guilt.
The Importance of Reasonable Doubt in DWI Defense
Q: What is the role of reasonable doubt in defending a DWI case?
Reasonable doubt is the prosecution’s burden—the highest standard in law. It’s more than “preponderance of the evidence” (50% plus a hair) or even “clear and convincing evidence” (say, 95% certainty). Beyond a reasonable doubt means if jurors have any normal, logical question about the evidence, they must acquit. We amplify those doubts—whether it’s a shaky breath test, a questionable stop, or inconsistent testimony—to protect your freedom.
Refusing a Breath or Blood Test: Consequences and Options
Q: What happens if someone refuses to take a breath or blood test after a DWI arrest?
Texas has an implied consent law: if you refuse a breath or blood test, the DPS can suspend your license for 180 days, even if you’re not convicted. But you’re not out of options. We can fight the suspension at an ALR hearing, challenging the stop or arrest. If we lose, we’ll pursue an occupational driver’s license, letting you drive for essentials like work or groceries—just not to the movies!
Conclusion
Facing a DWI charge is daunting, but knowledge is power. I’m Brian Foley, and at Brian Foley Law, we’re here to guide you through every step—defending your rights and aiming for the best outcome. If you’re in Montgomery County, Houston, or nearby, visit www.brianfoleylaw.com or call us at [insert phone number] for a consultation. Let’s tackle this together.
