“DWI – YOU CAN’T AFFORD IT”

You’ve seen the blue and white signs posted all over Texas roadways that read “DWI – You Can’t Afford It.” The signs offer a simple warning, but they don’t detail the actual costs related to a DWI arrest. So, we thought we’d help give you a general idea of what to expect financially if you or someone you know is faced with a DWI charge in Texas. The figures that we provide may not be 100% accurate for every case or situation but are drawn from our experience in representing well over 500 Texans charged with all types of DWI offenses.

1. Attorney Fees (Varies)

The cost of hiring a DWI attorney is probably the first thing that comes to mind for most folks when they consider the cost of a DWI. As you know, if you are charged with a DWI in Texas, having solid, experienced DWI representation is paramount. Keep in mind that your attorney can often help you save or offset some of the costs we will discuss in detail below, so it is important to retain counsel that is experienced in handling DWIs in your jurisdiction.

*A word of warning… “Nothing is more expensive than a cheap lawyer.” The range of DWI attorney’s fees is broad and can vary by experience and expertise. Contact our DWI defense team to learn about our fees for DWI representation.

2. Bail Bond Costs (Est. $100 – $2,500)

After being arrested for DWI, paying the bond to secure jail release will be the first expense incurred. Depending on the type of DWI charge and the jurisdiction, judges across the state set bond amounts that we’ve seen range from $500 – $10,000. Bail Bondsmen typically charge 10-15% of the total bond amount, but that amount you pay the bondsman is kept by the bondsman. You can also pay a Cash Bond. A cash bond requires payment in full of the bond amount, but the money is returned to you upon disposition of the case (minus any administrative fees charged by your county.) Some counties offer bond release programs for low-risk offenders. This option is often the cheapest route initially, but there can be monthly reporting requirements that require additional fees.

*If you plan to pay a bail bondsman, you will probably pay between $100 and $500.

*If you pay the full cash bond, you can estimate between $500 and $2500 in our experience.

3. Ignition Interlock and/or Alcohol Monitoring ($65 – $250 monthly)

Counties vary on how and when they require an ignition interlock device or alternative alcohol monitoring device as a condition of bond. If required in your case, the court will require you to maintain the device as a condition of your bond. Additionally, if you are convicted and placed on probation for certain DWI offenses, the law requires the ignition interlock device requirement. There are several different companies that offer these devices and we’ve seen the monthly costs of the devices range from $65-105 monthly. Some companies require deposits or administrative fees at the time of device installation.

*If you are required to install an ignition interlock device on your vehicle, the monthly cost will range from $65 – $150.

*If you are required to have a home alcohol monitor or use a wearable SCRAM device that measures alcohol 24/7, the monthly cost will range from $65 to $250.

4. Occupational Driver’s License Costs ($180 – $420)

If, during your arrest for DWI, you refuse to provide a specimen of breath or blood, or the specimen that you provide is over the legal limit of .08, DPS will seek to suspend your license for a period of 90 days – 2 years. You have a right to a hearing on that suspension (a good attorney will request a hearing on the suspension and contest it.) However, if the license is ultimately suspended, you should be eligible for an occupational driver’s license.

An occupational license gives you the ability to drive for employment purposes as well as essential household duties. In order to obtain an occupational license, you must file a petition with the court. The filing fees associated with a Petition for Occupational License range from $45-$285, depending on the court.

Once the occupational license is granted, the order granting the license has to be processed by DPS. At that time, DPS will charge a $125 license reinstatement fee and $10 fee to process the plastic occupational license. It is important to note that a request for occupational license requires proof of financial responsibility also known as an SR22.

5. SR22 Insurance Costs ($25 to $125 monthly)

An SR22 is proof of your financial responsibility. Ultimately, you will maintain your liability insurance. The SR22 is an additional endorsement that monitors your status as an insured driver and confirms for DPS that you are insured. The costs of an SR22 can vary from $25-$125 monthly depending on the insurance company and how the SR22 is requested.

6. DWI Fines (Est. $500 – $1,250)

If you are ultimately convicted of DWI, whether as a result of a plea agreement or after a jury trial, the court will typically impose a fine. The fines misdemeanor DWI convictions in Texas range from $0 – $4,000 and the fines for felony DWI convictions range from $0 – $10,000. Regardless of the charge, fines are typically negotiated by your attorney during plea negotiations with the prosecution.

* If you are found Not Guilty of your DWI charge, there are no fines imposed.

7. Court costs (Est. $300 – $400)

True to their name, “court costs” are the costs charged by the court for processing your case. Court costs are only incurred when there is a guilty finding or a guilty plea and they usually range from approximately $300-400.

* If you are found Not Guilty of your DWI charge, there are no court costs.

8. DWI Probation Fees (Est. $60 monthly)

If your DWI case results in a probation sentence, the judge will order you to pay a monthly supervision fee to the probation department. We’ve seen these fees waived and seen them imposed up to $60 monthly depending on the person’s financial status.

9. DWI Eduction Program Costs (Est. $100 – $125)

If you are convicted and placed on probation, you will be required to complete a 12 hour DWI Education Program class. The cost of the DWI Education program class is typically around $100-125.

10. Victim Impact Panel (Est. $50 – $70)

Another requirement that is typically imposed by the court as a condition of probation is the Victim Impact Panel (VIP). VIP is a presentation by Mothers Against Drunk Driving (M.A.D.D.) or similar organizations where people or family members of people affected by intoxicated offenses describe their experiences with those situations.

* The fee for attending the panel is usually $50-70.

11. Substance Abuse Evaluation (Varies)

If sentenced to probation, you will be required to submit to an assessment to confirm whether you have any underlying alcohol or drug-related disorders. Once the assessment is performed, there will be a recommendation made if there are findings of alcohol or drug-use issues. Those recommendations can range from individual counseling to outpatient treatment to residential treatment. As you know, these services are not free and can be very expensive.

12. Restitution to Impacted Party or Labs (Varies)

If you were involved in an accident where property damage or medical bills are incurred by a third party, you can be required to provide restitution to that person or persons. We also see restitution requested by the labs that perform blood alcohol analysis for the state (typically around $180).

13. DPS License Surcharges ($3,000 – $6,000)

License surcharges are usually the last cost incurred, but also the most expensive. Texas has a highly controversial program known as the “Texas DPS Driver Responsibility Surcharge Program.” The purpose of the program is to penalize people convicted of DWI with an additional financial penalty related to their driver’s license. If not paid, the consequence is an automatic, indefinite suspension of their driver’s license until paid.

The surcharges range from $3,000 – $6,000 depending on the type of DWI charge.

14. Insurance Rate Increase (Varies)

Many people report their car insurance rates skyrocketing after a DWI conviction. In the alternative, several insurance companies will deny future coverage altogether. This can be one of the most expensive consequences of getting a DWI and it is hard to forecast the exact impact because it will last for a long time.

Conclusion

While every DWI arrest is different, it is easy to see how a DWI conviction in Texas could end up costing $15,000 in the long run. Hiring an attorney experienced in handling DWI cases is essential. The majority of these costs are only applicable if you are convicted. The best thing you can do is hire an attorney who can review your case to determine what problematic issues there are for the state and whether the state has the evidence they need for a conviction. If they don’t, you might be able to avoid some of these costs altogether. If you or someone you know is charged with a DWI, please give Barnett, Howard & Williams, PLLC a call at (817) 993-9249. We will gladly offer a free in-person consultation to sit down and discuss your case with you.

Existence of a Single Prior Conviction for Misdemeanor DWI is a Punishment-Only Issue in a Case for DWI (Misdemeanor Repetition), says the CCA

Oliva v State (Tex. Crim. App. 2018)

It is well established in both Texas statutes and case law that the existence of two prior DWI misdemeanors will enhance the third DWI to a felony-level offense. See Texas Penal Code § 49.09(b); Ex Parte Benson, 459 S.W.3d 67, 75-76 (Tex. Crim. App. 2015). A variable “three strikes and you’re out” type of statute, the law was enacted as a legislative response to deter potential repeat offenders from creating dangerous and preventable hazards on Texas roads. In this statutory enhancement scenario, the third strike becomes the offense itself, thus, the third DWI offense is an element of the felony. As a result, the defendant is punished according to the felony sentencing guidelines.

But what happens when the defendant only has one strike—one prior misdemeanor DWI on his record? Would it make any difference if that DWI happened nearly a decade prior, on an otherwise clean driving and criminal record? Recently, the Court of Criminal Appeals sought to determine the legal significance of companion statute TPC § 49.09(a), whereby the defendant had only one prior misdemeanor DWI offense. TPC § 49.09(a) states that the “existence of a single prior conviction elevates a second DWI offense from a Class B misdemeanor to a Class A misdemeanor.” The CCA had to decide whether having one single prior DWI constituted an element of the crime or whether the one single prior DWI was only relevant in the punishment phase.

Law Enforcement Responds to Phone Call Reporting a Mysterious Person

Early in the morning in May of 2015, two Houston-area police officers responded to a call from dispatch about a suspicious person. Tex. R. App. P. 47.2(b), accessed 24 May 2018 via https://law.justia.com/cases/texas/fourteenth-court-of-appeals/2017/14-15-01078-cr.html. Sitting slumped over in a parked car was Jose Oliva, illegally parked with the engine on, in a lane of moving traffic. Concerned for Oliva’s health and safety, law enforcement attempted to alert Oliva, but he remained unresponsive. Police opened the car door and Oliva fell out onto the curb. Once Oliva woke up, law enforcement administered a field sobriety test; Oliva failed and was arrested. Blood testing later confirmed that Oliva had a blood alcohol level equivalent to having just ingested nine alcoholic drinks within the hour. Oliva was charged with DWI “by information” which mentioned a previous DWI on Oliva’s record.

What is an Information?

In Texas, a person may be charged via an indictment or via an instrument called an information. Article 21.20 of the Texas Code of Criminal Procedure defines an “information” as a written statement filed and presented in behalf of the State by the district attorney, charging the defendant with an offense. Oliva’s information described the May of 2015 DWI arrest and it mentioned a prior misdemeanor-level DWI offense on his record.

Oliva Heads to Court

During the trial, Oliva’s prior DWI was never mentioned, even though it was present on the information before trial. The jury convicted Oliva of DWI. Finding that he also had a prior DWI as alleged on the information, Oliva’s conviction was then increased, or enhanced, to DWI 2nd, which carried a sentence of 180 days confinement. Oliva appealed to the Fourteenth Court of Appeals in Houston.

On appeal, the appellate court held that under the statute’s plain language meaning, one singular prior DWI conviction is an element of the offense of Class A misdemeanor DWI under section 49.09(a)—much like the “three strikes and you’re out” felony-enhancement statute of 49.09(b). The appeals court reasoned that a fact that elevates the degree of an offense is necessarily an element of the offense and that § 49.09 lacked the “shall be punished” language present in other statutes containing punishment-only enhancements.

The State of Texas petitioned the Court of Criminal Appeals to review this case once again, to determine whether the introduction of a defendant’s prior DWI is proper at the guilt-innocence phase of a criminal trial, or whether such a disclosure is only relevant under 49.09(b) during the punishment phase. Such distinction could have implications for bias, or taint, at trial, among other defense strategies. To recap, Texas Penal Code § 49.09(a) provides that the existence of a single prior conviction elevates a second DWI offense from a Class B misdemeanor to a Class A misdemeanor.

The CCA Weighs In on Whether the Prior DWI is Actually an Element of DWI 2nd that Must Be Introduced to a Jury at Trial

Is the prior DWI conviction an element of the offense, or is the prior conviction a punishment-only issue? The Court of Criminal Appeals made a surprising conclusion, holding that the existence of a single prior conviction for misdemeanor DWI is a punishment-only issue. Broadly, the CCA reasoned that introducing the prior before the punishment phase

“would seem to benefit the State in most cases because it would enable the State to introduce evidence of the prior conviction at the guilt stage of trial instead of having to wait until the punishment stage.”

The CCA Analyzes the Statute

First, the CCA looked to the wording of the statute to find its “plain language” meaning. “In construing the meaning of, and interplay between, these statutes, we give effect to the plain meaning of the text, unless the text is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended.” Here, the CCA found that the plain language meaning was ambiguous and could lead the interpreter to conclude mixed, confusing results.

Second, the CCA took a closer look at how the statute was labeled in the Code to see if the legislature labeled the statute as guilt-innocence phase element. Unfortunately, this was not the case here, and the CCA had to look to grammatical construction. Texas case law has informed Texas courts, generally, that the Penal Code’s most obvious and common method of prescribing elements of an offense is prefacing incriminatory facts with the language, “A person commits an offense if ______.” Ex parte Benson, 459 S.W.3d 67, 85 (Tex. Crim. App. 2015). Unfortunately, the DWI statutes were not written with clarity as to preface incriminatory facts—the prior DWIs—with language specifying that “an offense is committed if____.”

Third, the CCA reasoned that it would have to deep dive into existing case law to assist with determining the meaning of the statute. Looking to Calton v. State, the CCA suggested that “a statute could unambiguously prescribe an element of an offense by setting forth a fact that would increase the degree of the offense; a punishment enhancement “does not change the offense, or the degree of the offense of conviction, as there can be no enhancement until a person is first convicted of an offense of a certain degree.” 176 S.W.3d 231, 233-34 (Tex. Crim. App. 2005).

Next, looking to Ex parte Benson, another DWI case, the CCA held that “a prior conviction that merely enhances the offense level would not be an element of the offense.” Benson, 459 S.W.3d at 74-75. In conclusion, the CCA held that although the statutory language is ambiguous, various factors suggest that the legislature intended that § 49.09(a) prescribe a punishment-only issue.

It is important to note that Justices Keasler and Yeary filed a dissenting opinion about the CCA’s holding. In the dissent, the Justices aver that the CCA should adhere to the language of the case law in Calton, regardless of the wording of a particular statutory provision, so long as the provision is not explicitly labeled a punishment issue. Even though this case law is not supported by authority, the dissent claims that the interests of swift justice “would be better served by the wholesale adoption of this language…[as] such adoption would simplify our analysis by creating an easy, bright-line rule.” Further, the dissent also states that Calton’s language is consistent with the use of the phrase “degree of offense” in connection with the word “convicted” in the statute that prescribes the requisites of a criminal judgment, Article 42.01, so that the prior DWI conviction should be introduced at the guilty-innocence phase of a criminal trial.

Which is More Important, Swift Justice or a Fair Trial?

In sum, this ruling is a win for those who have made a couple of DWI mistakes, but are not repeat, habitual offenders. For defense attorneys, knowing exactly when evidence of a prior DWI can be admitted on the record during a criminal trial is paramount to developing a successful legal strategy. Should evidence of a prior DWI be introduced too early, the judge or jury may become biased, or tainted, against the facts and evidence in the case before them. If the evidence is introduced at the punishment phase, for the purposes sentencing enhancements only, the defendant may have more solid footing to defend against the DWI charge before the court.