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Fort Worth DWI Attorneys Archives | Howard Lotspeich Alexander & Williams, PLLC

Jun 25
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Texas DWI License Suspensions and Occupational Driver’s Licenses - What Texas drivers need to know about DWI license suspensions, ALR hearings, and obtaining an ODL after a DWI arrest.

Texas DWI License Suspensions & Occupational Driver’s Licenses: What You Need to Know (Including Felony DWIs)

By | DWI
Texas DWI License Suspensions and Occupational Driver’s Licenses - What Texas drivers need to know about DWI license suspensions, ALR hearings, and obtaining an ODL after a DWI arrest.

Understanding Texas DWI license suspensions and how to obtain an Occupational Driver’s License (ODL) after a DWI arrest or conviction.

If you’ve been arrested or convicted for a DWI in Texas, one of the first consequences you’ll face is a driver’s license suspension. Whether it’s your first offense or a felony DWI, navigating the suspension and reinstatement process is critical. Fortunately, Texas law allows many drivers to apply for an Occupational Driver’s License (ODL) so they can continue driving for essential purposes.

This guide breaks down everything you need to know about DWI-related suspensions, ODL eligibility, and how to navigate the system—with easy-to-read charts and legal citations to help you understand your rights.

Administrative vs. Criminal License Suspension

There are two ways your license can be suspended after a DWI arrest in Texas:

  • Administrative License Revocation (ALR)
  • Criminal Court Suspension

ALR Suspension Periods (Texas Transportation Code §§ 524 & 724)

Offense Type Suspension Period Statute
1st DWI – Refusal 180 days  Texas Transportation Code § 724.035(a)(1)
1st DWI – Test Failure 90 days Texas Transportation Code § 524.022(a)(1)
2nd+ DWI – Refusal 2 years Texas Transportation Code § 724.035(b)
2nd+ DWI – Test Failure 1 year Texas Transportation Code § 524.022(a)(2)

Criminal Conviction Suspensions (Texas Code of Crim. Proc. 42A.407 & Texas Transportation Code § 521.344)

Conviction Type Suspension Range
1st DWI 90 days – 1 year
2nd DWI 180 days – 2 years
DWI with Child Passenger

2 DWI’s w/in 5 years

 180 days – 2 years

1 – 2 years

Felony DWI in Texas: Penalties & Suspension Periods

Felony DWI Offense Classification Suspension
3rd or Subsequent DWI Third-Degree Felony 180 days – 2 years
DWI w/ Child Passenger State Jail Felony 90 days – 1 year
Intoxication Assault Third-Degree Felony 180 days – 2 years
Intoxication Manslaughter Second-Degree Felony 180 days – 2 years

Occupational Driver’s License (ODL): Who Can Apply?

An ODL is a restricted license that allows you to drive to work, school, medical appointments, and for essential household duties. An occupational license cannot be granted for the operation of a commercial vehicle.  Texas Transportation Code § 521.2424

What You’ll Need to Get an ODL

Requirement Statute / Rule
Essential Need Affidavit Texas Transportation Code § 521.2421(d)(1)
SR-22 Insurance 37 Tex. Admin. Code § 25.6
Certified Driving Record (Type AR) Texas Transportation Code § 521.2421(d)(4)
Interlock Device (if applicable) Texas Transportation Code § 521.246
Court Order with Restrictions Texas Transportation Code § 521.248
Submission to DPS

Applicable fees including reinstatement fees and ID fees

 Texas Transportation Code § 521.248(f)

 

Steps to Get an Occupational License After DWI

  1. File a Petition – in county or district court
  2. Gather Required Documents – SR-22, driving record, affidavit, IID proof(if applicable)
  3. Attend Hearing – judge may impose conditions
  4. Submit to DPS – with required documents and fee

Conclusion: Protect Your License and Your Future

A DWI arrest doesn’t have to end your ability to work, care for your family, or rebuild your life. Understanding Texas’s license suspension laws—and how to pursue an Occupational Driver’s License—can make all the difference.

At Howard Lotspeich Alexander & Williams, PLLC (HLAW), we help clients navigate both the criminal and administrative processes to minimize disruption and protect their future.

If you’ve been arrested for DWI—whether misdemeanor or felony—reach out today for experienced guidance and effective legal representation.

May 12
1
Man standing at a crossroads symbolizing decision-making in Texas criminal plea bargaining process.

The Process of Plea Bargaining in Texas Criminal Law: Benefits, Drawbacks, and Practical Application

By | Criminal Defense

Plea bargaining is a pivotal part of Texas’s criminal justice system. In fact, the vast majority of criminal cases in Texas are resolved through plea deals rather than jury trials. This process allows for negotiated resolutions

Man standing at a crossroads symbolizing decision-making in Texas criminal plea bargaining process.

Choosing a legal path: Understanding how plea bargaining works in the Texas criminal justice system.

between the defense and prosecution, potentially sparing both parties the cost, uncertainty, and emotional toll of trial. But while plea bargaining offers efficiency, it also raises concerns about fairness and justice.

Let’s take a closer look at how plea-bargaining works in Texas, its advantages and disadvantages, and what it means in real-world criminal cases.

How Plea-Bargaining Works in Texas

  1. Initiation of Negotiations

Plea negotiations usually begin after the defendant has been formally charged and the discovery process has begun. Either side—prosecution or defense—can initiate the discussion.

  • In misdemeanor cases, plea offers often come early, sometimes during the first court appearance.
  • In felony cases, especially serious ones, offers typically follow initial case assessments and evidence review.
  1. Offer and Counteroffer

The prosecutor presents a proposed deal, which might involve:

  • Reducing charges (e.g., felony to misdemeanor),
  • Recommending probation instead of jail,
  • Offering deferred adjudication or pretrial diversion.

The defense attorney evaluates the offer and may negotiate modifications or propose alternatives based on the strength of the evidence, the defendant’s background, and mitigating factors.

  1. Judicial Review and Approval

Once both sides reach an agreement, the judge must review the plea. Texas judges ensure:

  • The plea is made voluntarily,
  • The defendant understands their rights and the consequences,
  • The agreement is not contrary to law or public interest.
  1. Entry of Plea and Sentencing

The defendant appears in court, formally enters a guilty or no-contest plea, and is sentenced according to the deal. In some cases, sentencing may be delayed for further hearings or pre-sentence investigations.

Potential Benefits of Plea Bargaining

Efficiency – Court dockets in Texas are crowded. Plea deals expedite resolution, reduce backlogs, and allow courts to focus resources on more complex or contested trials.

Certainty and Predictability – Trials carry risk. Even strong defenses can falter before a jury. A plea deal provides a known outcome, which can be critical for defendants concerned about family, employment, or immigration status.

Reduced Sentences – Defendants often receive a more lenient sentence through a plea than they would if convicted at trial. This might include:

  • Reduced jail or prison time,
  • Avoidance of certain charges that carry collateral consequences (like license suspension),
  • Possibility of record sealing later through deferred adjudication.

Protection for Victims – Plea deals can spare victims from testifying in open court, which may be especially important to the prosecution in sensitive cases such as assault, domestic violence, or sexual offenses.

Drawbacks and Controversies

Risk of Coercion – Defendants may feel pressure to accept a plea—even if innocent—because the risk of trial (e.g., decades in prison) is too great. This is especially true when bail is denied, or pretrial detention continues.

Unequal Justice – Outcomes can hinge on legal representation. Those with experienced defense attorneys may secure better deals than unrepresented or underrepresented defendants.

Lack of Transparency – Plea deals occur behind closed doors. Unlike trials, they are not public proceedings, leading to concerns about accountability and consistency.

Limited Appeal Options – Once a plea is entered and accepted, the right to appeal is typically waived. This means defendants lose the ability to challenge errors in evidence gathering, charging decisions, or constitutional violations.

Plea Bargaining in Practice: Common Texas Scenarios

Here are a few examples of how plea bargaining might play out in everyday criminal cases:

DWI Cases – A first-time DWI defendant might be offered a plea to “obstruction of a highway,” a Class B misdemeanor with less stigma and fewer long-term consequences.

Drug Possession – Non-violent offenders may be offered pretrial diversion or deferred adjudication in exchange for counseling, community service, and clean drug tests.

Family Violence – In some cases, a charge may be reduced from a family violence assault to simple assault without the “affirmative finding,” avoiding future firearm bans or enhanced penalties.

Felony Theft or Assault – A felony may be reduced to a state jail or misdemeanor offense, especially if restitution is made or the victim supports leniency.

Tips for Navigating a Plea Bargain in Texas

If you’re considering a plea deal, keep these practical tips in mind:

  • Hire a Skilled Defense Attorney: Your attorney can assess the evidence, negotiate effectively, and protect your rights.
  • Understand the Consequences: Will the plea result in a conviction? Will it affect your job, license, or immigration status?
  • Weigh the Strength of the Case: If the prosecution’s case is weak, trial may be worth the risk. Don’t accept a deal out of fear alone.
  • Take Your Time: Don’t rush. Judges rarely require immediate answers—most give time to consult with your lawyer and family.

Final Thoughts

Plea bargaining isn’t about guilt or innocence alone—it’s a legal strategy shaped by risk, opportunity, and the facts of each case. While plea deals offer a path to resolution and can be in the best interest of many defendants, they should never be entered into lightly.

If you or someone you love is facing criminal charges in Texas, don’t navigate this alone. An experienced defense attorney can help you make informed decisions, protect your rights, and find the best path forward.

Nov 12
0
Best Fort Worth DWI Attorney

Do’s and Don’ts When You’re Pulled Over for a DWI

By | DWI

Finding those blue and red lights in your rearview mirror is never ideal. If it’s a DWI stop, it can feel like your heart is racing twice as fast. But while the nerves are understandable, the key here is knowing what to do—and maybe more importantly, what not to do. Let’s dive into a few tips that might make a difference if you find yourself in this situation.

Stay Calm and Collected if Stopped for DWI

Do: Breathe. Take a moment, gather your thoughts, and remember that keeping calm can really help. When the officer approaches, be respectful and polite. A calm demeanor doesn’t mean you’re admitting guilt; it simply shows maturity and may influence how the officer views you. Even if your pulse is racing, a little “fake it till you make it” can go a long way.

Don’t: React emotionally or aggressively. Panicking or being rude won’t help. It could even escalate the situation. The officer is there to do their job, and unfortunately, this may involve some tough questioning. But stay focused—cool and collected is the goal.

Comply with Basic Requests, But Know Your Rights

Do: Hand over your license, insurance, and registration when asked. This is standard procedure, and providing these essentials without fuss can keep things running smoothly.

Don’t: Overshare. Remember, officers will often ask questions about where you’ve been or how much you’ve had to drink. It may seem like casual conversation, but it’s often their way of gathering information. Instead of diving into a full recap of your evening, keep it simple and to the point. You don’t have to answer beyond basic questions, so politely decline to offer additional details if you feel uncomfortable.

Field Sobriety Tests – The Art of the Polite Refusal

Do: Know your right to say “no.” Field sobriety tests, like the “walk and turn” or the “one-leg stand,” are voluntary in Texas (unless you’re on probation). Politely refusing can be a smart move, as these tests are designed in a way that even sober people can struggle with them—stress, nerves, and uneven ground can all affect the results.

Don’t: Feel pressured to go along just because the officer doesn’t explicitly ask if you’re willing to participate. Officers might assume you’ll comply and jump straight into the tests. So, if you’d rather not do them, a simple, “I prefer not to take these tests” can be your best option. Remember, you’re not obligated to help build the state’s case against you.

Breath and Blood Tests – Understanding the Consequences

Do: Know what’s at stake. Breath and blood tests fall into a slightly different category. In Texas, refusing a breath or blood test can have immediate consequences, like a license suspension, but it’s still within your rights unless an officer presents a warrant.

Don’t: Refuse if a valid warrant is presented. If an officer has obtained a warrant for a blood test, you’re legally required to comply. Failing to do so could lead to additional legal trouble, which might make a bad situation worse. Think carefully, and when in doubt, ask for clarity.

Remain Silent Beyond Basic Information

Do: Use your right to remain silent wisely. Beyond providing identification, you’re not obligated to answer detailed questions. Many people feel the need to explain themselves in these situations, but even seemingly innocent statements could later be used as evidence.

Don’t: Spill the details of your evening. This isn’t the time for full transparency about how much you had to drink or why you may look tired. Politely telling the officer, “I’m not comfortable answering that” is within your rights and can help prevent anything being taken out of context later.

Plan Ahead – Use Alternative Transportation

Do: Make a game plan in advance. Look, no one wants to be in a situation where they’re stopped for DWI. Using rideshare options like Uber or Lyft can save a lot of trouble and maybe even a lot of money. If there’s even a slight chance that you’re over the limit, it’s best to leave the car keys behind.

Don’t: Wait until it’s too late. Last-minute decision-making is stressful, and being proactive is way easier than facing DWI charges. Think of it as a minor investment in your peace of mind—and definitely cheaper than the potential costs of a DWI.

Wrap-Up: Staying Smart and Safe on the Road

Getting pulled over is never a pleasant experience, especially when a DWI is involved. The best steps are often the simplest: stay calm, comply with basic requests, know your rights, and remember the power of a polite refusal. Ultimately, avoiding this situation by planning ahead—calling that Uber—is the smartest move you can make. But if it ever does happen, hopefully, these do’s and don’ts will guide you through with confidence.

Here’s to making smart choices and staying safe on the road.

Jan 16
26
Refuse Field Sobriety Test Texas

May I Legally Refuse Field Sobriety Tests if Stopped for DWI?

By | DWI

We get this question all the time. People want to know if they can refuse the field sobriety tests when the police ask them to participate

Yes! You may legally refuse field sobriety tests in Texas (unless you are already on probation and it is a condition of your probation that you cannot refuse). This article explains why you should consider refusing the SFSTs.

Standardized Field Sobriety Tests Can Be the Best Evidence for the State in a DWI Trial

Field Sobriety Test Fort WorthWhen a driver is stopped in Texas and the officer suspects that the driver may be intoxicated, the officer will typically run through a standard DWI roadside investigation. This investigation begins by simply observing the driver (bloodshot eyes, odor of alcohol, slurred speech) and asking some questions:

  • “Where are you coming from this evening?”
  • “Have you had anything to drink tonight?”
  • “How many is a couple?”

If the officer sees enough to warrant a further investigation, they will ask the driver to step out of the car.

“Let’s Make Sure that You’re Okay to Drive Tonight.”

Once the driver steps out of the car, the officer’s body worn camera and dash camera are recording so that the footage can capture the interaction (to be used later at trial if needed). The officer will then explain that they are going to do some tests just to “make sure that you’re okay to drive.” Note: The officer WILL NOT NORMALLY ask permission to conduct the
standardized field sobriety tasks.  He will jump right in and hope that you just go along with it.

There are 3 standard tests that are explained in more detail on our DWI page.

The Standardized Field Sobriety Tests are Not Designed for You to Pass

The 3 standard tests are (1) the HGN test (Horizontal Gaze Nystagmus), which is the “eye test,” (2) the Walk and Turn test (also known as the Walk the Line test), and (3) the One Leg Stand test. I don’t have enough time to go into the many problems with the tests, but to list a few:

  • The Eye Test (HGN) – this test requires the officer to be precise with his stimulus device in the field and they often make mistakes in distance and degree. Further, even with updated body worn camera technology, the video rarely shows what the officer claims to observe in the eyes. So we are usually left with officer testimony alone (and juries generally do not trust the “eye test”);
  • The Walk and Turn test – this test is difficult (even for completely sober people – try it yourself sometime) because it requires the person to take challenging heel to toe steps on an imaginary line in all conditions and officers never take into account the person’s stress level, the weather/wind conditions, footwear, fatigue from a long day, etc.; and
  • The One Leg Stand – this test is also difficult. It requires you to balance on one foot for 30 FULL seconds. TAKE NOTE – if the person puts their foot down at 27 seconds it is a strike against them and the officer will use this as evidence that they are indeed intoxicated.

Throughout the years, the tests have been debunked and challenged by experts as unreliable, but the courts are still allowing them as proof of intoxication (they are claimed to be used as evidence of the loss of mental or physical faculties).  In short, these tests exist for the officer to build a case against you in court and we feel ultimately set you up to fail. So what benefit is there for a driver who is suspected of DWI to take the tests if they don’t have to?

You DO NOT Have to Submit to Standardized Field Sobriety Tests in Texas

Even though the officer might act as if you must take the tests, you don’t. If he asks you to exit the vehicle then you must get out of the car. But as soon as he tries to start the HGN (eye test) on you, you can (and probably should) politely refuse to take the test. Take note of what I said…Politely Refuse. Do not be a jerk about it and go into a diatribe about how you read this blog and you know these tests are no good and that you refuse to do them. Remember this is all being captured on audio and video; audio and video that will be exhibit #1 at a trial if it goes that far. Simply inform the officer that you do not wish to participate in the standardized field sobriety tests.

Can I Still be Arrested if I Refuse to Perform the Field Sobriety Tests?

Yes you can (and probably will) be arrested if you refuse to perform the SFSTs. If the officer already felt like he had enough evidence to administer the tests, then he will probably go ahead and arrest you for DWI if you refuse to take them. But hey, you were probably going to get arrested anyway. Now, however, there will be less evidence against you.  You have an absolute right not to give evidence against yourself.  This constitutional right applies equally in the DWI context.

Should I Take the Tests if I Haven’t Had that Much to Drink?

You are an adult, and only you know your own level of coordination, so it is really up to you. But our advice (from over 16 years of handling DWI cases) is NO. You should not perform the standardized field sobriety tests. Your DWI case becomes tougher to defend if you look intoxicated on the video. Even if you haven’t had that much to drink, there are many reasons why you might appear intoxicated on the video. For instance, perhaps:

  • You are extremely nervous and have a high stress level from being pulled out of your car in the middle of the night by a police officer;
  • Your footwear is not ideal for walking and turning (high heels, flip flops, etc);
  • The wind is blowing hard;
  • It is cold outside and you are shivering;
  • You have an old injury that causes you to limp or not walk “normally”; or
  • You have bad balance (even on a good day).

Lastly, these tests are extremely technical. The instructions are long and tedious and can be very confusing for someone who has never attempted these tests before. Officers also like to compound this issue by providing you the instructions very aggressively and rapidly. The officer often sounds like the disclaimer at the end of a pharmaceutical commercial when they are reading you the instructions for the tests. Your failure to comply perfectly with these instructions can be used against you in court.

Next Time, Please Take an Uber

We hope you will listen to our advice regarding DWI field sobriety tests. Better yet, we hope that you’ll just pay the $40 for an Uber or taxi from the bar or restaurant and avoid this altogether. But if you didn’t take our advice and you didn’t call and Uber, call us and we’ll be happy to be your advocates.

*This article did not discuss whether you may legally refuse a Breath Test or a Blood Test. We’ve written on that many times and the answer is YES. You may refuse breath and blood tests UNLESS the officer has a warrant for your blood. If they have a warrant, you may not refuse.

May 03
9
Operation Motor Vehicle Texas DWI

Operating a Motor Vehicle in the DWI Context

By | DWI

What does it mean to “Operate” a vehicle under Texas’ DWI laws?

Operation Motor Vehicle Texas DWIThe simple answer is that it means whatever the jury (not the judge) says it means.

Under Section 49.04(a) of the Texas Penal Code, a person commits the offense of DWI when the person “is intoxicated while operating a motor vehicle in a public place.” Emphasis added.  The Penal Code, however, does not define the term “operating.” When words are left undefined by statute, the Texas Government Code Section 311.011 tells us that those words are to be “construed according to the rules of grammar and common usage,” unless the word or phrase has some “technical or particular meaning,” in which case, the word or phrase “shall be construed accordingly.” What about the word “operating?” Is it common or technical?

In the trial of Kirsch v. State out in the Longview area, the defendant was charged with DWI after the police found him drunk while standing over his motorcycle trying to kick-start it on a public road.  As you might guess, there was a dispute over whether he was “operating” his vehicle while intoxicated.  Over defense objection, the trial court included the prosecutor’s requested definition of “operate” in the jury instructions:

to exert personal effort to cause the vehicle to function.

To the prosecutor’s credit, the definition was taken from an appellate case (although not one dealing with jury instructions).  Now, under this definition it is pretty clear that by trying to kick-start the motorcycle, the defendant was indeed operating a motor vehicle.  But if the term “operate” had been left undefined for the jury, then the defense could have certainly argued under the rules of grammar and common usage that the defendant was not “operating” his vehicle, because it was not running (or whatever other arguments an able defense counsel might make).  Armed with a black and white definition of “operate,” the jury convicted the defendant of DWI.

The 6th District Court of Appeals (Texarkana) affirmed the conviction.

The Texas Court of Criminal Appeals reversed. For a unanimous court, Judge Alcala wrote:

Our cases have consistently held that “operate” is a common term that has not acquired a technical meaning and may be interpreted according to its common usage… Although an appellate court may articulate a definition of a statutorily undefined, common term in assessing the sufficiency of the evidence on appellate review, a trial court’s inclusion of that definition in a jury charge may constitute an improper comment on the weight of the evidence.

The opinion goes on to note that by instructing the jurors on the definition of the term “operate,” the trial court “impermissibly guided their understanding of the term.” “The jury should have been free,” the CCA held, “to assign that term ‘any meaning which is acceptable in common parlance.’” The CCA reversed the case and remanded it back to the COA for a harm analysis.

There you have it. The meaning of the term “operating” in the Texas DWI statute means…whatever the jury thinks it means.

Fort Worth DWI Defense Attorneys | Keller DWI | Grapevine DWI

Contact the top-rated Tarrant County DWI attorneys of Barnett Howard & Williams PLLC for a FREE consultation of your DWI case. We will help you determine whether the State could prove that you were operating a motor vehicle under Texas DWI law.  Call (817) 993-9249 or send us a contact email from our website. Our team of DWI attorneys will get to work defending your rights and protecting your future.

Mar 19
11
Final Four DWI Texas

DWI Madness | “The Final Four” Reasons Texans are Stopped for DWI

By | DWI

Final Four DWI TexasMarch Madness is here again. With the Final Four approaching, we built a bracket of our own. In this article, DWI attorney Jason Howard discusses the top four reasons people are stopped or detained for a DWI investigation in Texas. We’ve compiled and power-seeded our list based on the numerous Tarrant County DWI cases we handle every year. Before we get to the “Final Four,” here are some honorable mentions that didn’t quite make the tournament list:

  • Sleeping in a running vehicle
  • Driving the wrong way on a one-way street
  • Rolling through a stop sign
  • Expired registration as seen by police scanner
  • No license plate light

Of course, there are many more reasons that folks are stopped and investigated for DWI, but below are the top four reasons that we see the most.

The Top Four Reasons Drivers Are Stopped for a DWI Investigation in Texas

#4 – Auto Accident

By auto accident, we mean everything from a head-on collision to a run-in with a mailbox. More serious accidents will usually generate the presence of officers on scene within a matter of minutes. Officers are usually looking to rule out the possibility of someone being intoxicated as soon as they arrive on scene. Minor accidents where there are no injuries might elicit a call to 911 (when there would otherwise just be a swap of insurance) if the other party involved suspects a DWI. Easy to see that if you’ve consumed alcohol and are involved in an accident, there is a high probability of a DWI investigation.

#3 – Swerving or Weaving

Please note – there is a difference between the two. Swerving is the more blatant failure to maintain a single lane by driving the vehicle all across the road. Weaving, on the other hand, is usually more subtle and sometimes observed within the lane. Regardless, if it’s late at night and a police officer is behind you and observes either of these driving behaviors, the red and blues are probably going to come on and the driver asked to step out of the vehicle for field sobriety testing.

#2 – Lane Change Problems

The #3 and #4 seeds were probably the top guesses, right? Surprisingly, we see more of numbers 1 and 2 than any other. And they probably weren’t the ones you guessed. I’ve grouped lane change issues because they can vary from the failure to signal a lane change or turn to the failure to make a proper turn at intersection (aka the “wide right” or “wide left” turn.) If you monitor your daily driving (when you’ve consumed no alcohol,) you’ll probably see that you commit many of these types of traffic infractions constantly. You’ll certainly see other people commit them. So, how does that translate to a police officer’s suspicion of drinking and driving? If it’s late at night on a Friday or Saturday, most patrol officers are quick to pull people over for any traffic violation just to check them out and make sure they’re not DWI.

That brings us to our number one reason people are stopped prior to a DWI arrest…

#1 – Speeding

We’re not talking 100mph in a 30mph zone, although we have seen some crazy speeds. No, we’re talking general, everyday speeding; 5 or 10 miles an hour over the speed limit. Nighttime patrol officers love to use their speed detection devices to initiate stops to find DWIs. That’s right! Patrol officers aren’t just looking for obvious impaired driving clues. It’s clear from our experience in handling DWI cases in Tarrant County that most officers are suspicious of anyone out late at night (especially on the weekends.) They know they only need a legal reason to stop someone at any given time. And once they establish their legal reason (even if it’s just speeding,) they then get to proceed with the “where are you coming from, where are you going, have you had anything to drink?” line of questioning. Once they get an admission of “yeah, I had a couple” or smell even the faintest odor of alcohol from the vehicle, they then get the driver out of the vehicle and begin the field sobriety tests. And once they start with the field sobriety tests, the possibility of being arrested goes up astronomically – even if you’re not intoxicated!

If we were to play out the DWI Final Four tournament, Speeding would be your Texas State Champion.

What Should You Do If You Are Suspected of Driving While Intoxicated?

We’ve written on this topic several times, including:
– DWI Information Page
– May I Legally Refuse a Field Sobriety Test?

If you have been arrested for DWI in Tarrant County after being stopped for one of these four reasons (or any other reason), contact our Tarrant County DWI attorneys for a free case evaluation.

Aug 05
5
DWI Deferred Adjudication Texas

Deferred Adjudication for DWI Offenses in Texas | New Law Effective Sept 1, 2019

By | DWI

Finally, Common Sense Prevails Regarding First-time DWI Offenses

DWI Deferred Adjudication TexasFor years, I’ve had the difficult task of trying to explain to clients facing a first-time DWI charge why their case is treated more harshly under the law than other misdemeanor criminal offenses like assault, prostitution, theft, drug possession, etc. In Texas, you can be charged with one of the latter crimes and have the option of deferred adjudication probation. Deferred adjudication probation has not been an option for DWI offenses in Texas. Until now.

Effective September 1st, 2019, a first-time DWI offense may qualify for deferred adjudication probation in Texas. The Texas legislature passed legislation that was signed into law by Governor Abbott that will amend Texas Code of Criminal Procedure Art. 42A.102(b) and make deferred adjudication probation available for some first-time DWI offenses.

What is Deferred Adjudication Probation?

Deferred adjudication probation typically requires the same terms and conditions as regular probation. So, why is it a better option? In Texas, if you receive regular or “straight” probation, the judge is required to enter a finding of guilt in your case which results in a criminal conviction.

Deferred adjudication probation is different because the judge “defers” that finding of guilt and, if you successfully complete the probation, the case results in a dismissal of the charge. Thus, you avoid the penalties and consequences that result from having a criminal conviction on your record.

The New Provisions are Effective September 1st, 2019 and Are Not Retroactive.

Deferred adjudication probation on first-time DWI offenses will apply ONLY to offenses committed on or after September 1st, 2019. That means all offenses committed prior to that date will be governed by previous law that does not allow deferred adjudication probation for DWI offenses.

Are All DWI Offenses Eligible for Deferred Adjudication Under the New Law?

The new law also limits which types of first-time DWI offenses will qualify. Deferred adjudication will NOT be available for first-time DWI offenses if:

  • If it is adjudicated that your blood or breath alcohol concentration was .15 or higher at the time the analysis was performed (see Texas Penal Code 49.04(d).)
    Or
  • You held a commercial license or commercial learner’s permit at the time of the DWI arrest

Also, if you are charged with a subsequent DWI after receiving a previous conviction or convictions for DWI, you are disqualified.

The Interlock Trade-Off

For years, defense attorneys and prosecutors (yes – even prosecutors!) have lobbied for making deferred adjudication probation an option for first-time DWI offenders. However, MADD staunchly opposed the idea. So, what’s changed MADD’s position? MADD agreed to the new law because it makes first-time DWI offenders (who previously were NOT required to have an ignition interlock device as a condition of probation) now have it as a requirement. The new law requires the judge to order the ignition interlock device as a condition of probation if you receive deferred adjudication probation for a DWI offense (see the amendment to Texas Code Crim. Procedure Art. 42A.408(e-1).)

There is, however, an exception to this requirement under TCCP Art. 42A.408(e-2) of the new law. If you submit to a substance abuse evaluation and the judge determines (based on that evaluation) that the ignition interlock requirement is “not necessary for the safety of the community,” then the judge may waive the requirement. This is certainly something you would want to discuss with your attorney.

What Will My Record Look Like if I Receive Deferred Adjudication Probation for a DWI Offense?

Although successful completion of deferred adjudication probation results in a dismissal of the underlying criminal charge, there is still a criminal record that must be addressed following the dismissal. The new law limits your remedy options to a nondisclosure (sealing of the record) and even that is not guaranteed.
You will not qualify for a nondisclosure if:

  • You have previously been convicted of or placed on deferred adjudication probation for another offense (other than a traffic offense that is punishable by fine only.)
    Or
  • There is sufficient evidence to show that offense resulted in a motor vehicle accident involving another person (including a passenger in the motor vehicle operated by you.)

It’s also worth noting there is a two-year waiting period after discharge from probation to petition the court for a nondisclosure.

Can a Future DWI Arrest Be Enhanced Even if I Wasn’t Convicted on the First One Under the New Law?

If, after your successful completion of deferred adjudication probation and dismissal by the court, you are arrested again for DWI, the new law allows the state to use the prior for enhancement purposes. If your case is dismissed, how can the state use it as a prior conviction? This can make for a candid debate, but, at the end of the day, this was another MADD trade-off conceded by the legislature that you should be aware of when considering long-term consequences of the new law.

DEFERRED SOUNDS GOOD – WHERE DO I SIGN? NOT SO FAST!!!

If, after September 1st, 2019, you or a loved one are faced with a first-time DWI charge and qualify for deferred adjudication probation, it might appear to be an easy option. However, we can’t stress enough how important it is that you retain a qualified DWI attorney who can analyze your case to determine If the state has enough evidence to prove their case or if there are legal or evidentiary issues present that may prove problematic for the state. The experienced DWI Attorneys at Barnett, Howard & Williams, PLLC are here to help determine what your best options truly are. So, please feel free to give us a call.

May 08
3
Deadly Weapon DWI Couthren v State

Is a Vehicle Always a “Deadly Weapon” in a DWI Collision Case?

By | DWI

Direct Evidence at Trial Must Reflect “Manner of Use” to Support Deadly Weapon Finding | Couthren v. State

Deadly Weapon DWI Couthren v StateOne of the common factors in any DWI case is that there must be a motor vehicle involved. Every time. When someone who is under the influence of drugs and/or alcohol chooses to drive a motor vehicle, should the car itself be considered by Texas courts to be a “deadly weapon?” When do ordinary, daily objects, such as cars, become “deadly weapons” for the purpose of charging enhancements and raising the stakes in a criminal case?

Slip Opinion: Couthren v. State (Tex. Crim. App. 2019)

Driver Hits Pedestrian after Drinking

Donald Couthren was driving on a frontage road in Bryan, Texas early one morning in 2012. He had been drinking Four Loko earlier in the evening and was impaired. Frank Elbrich was walking along the same road and stepped out in front of Couthren’s vehicle. Elbrich’s head hit the windshield and he landed on the ground. Couthren stopped his vehicle, scooped up Elbrich, and put Elbrich into his car, with the idea of taking him to the hospital. In a strange turn of events, Couthren, instead, drove to a house to exchange cars, and ended up in altercation with the people in the house. The police were called as a result. When police arrived, they noticed that Elbrich was bleeding and non-responsive. They saw that the windshield was broken, as well. The police noted that Couthren smelled of alcohol and swayed from side to side when he walked. Couthren admitted to hitting Elbrich when “[he] stepped in front of his vehicle.” Couthren did not consent to a blood draw and refused to comply with field sobriety tests. Police arrested Couthren for driving while intoxicated (DWI).

Felony DWI Trial with Deadly Weapon Enhancement

Couthren was indicted and tried for felony DWI. The State alleged a “deadly weapon” finding, claiming that the Couthren’s vehicle was a deadly weapon. A deadly weapon finding enhances the charge, increasing the term of imprisonment. Accordingly, the jury convicted Couthren and agreed with the deadly weapon finding and assessed a punishment of six years imprisonment. On appeal, Couthren argued that there was not enough evidence to support the deadly weapon finding. The lower appeals court upheld the trial court’s finding, utilizing a “two-step” approach to determine whether the evidence was sufficient. The two-step approach consisted of (1) an evaluation of the manner in which Couthren used his car during the felony and (2) an analysis of whether vehicles are capable of causing death or serious bodily injury. Couthren v. State, No. 13-16-00543-CR, 2018 WL 2057244, at 5 (Tex. App.—Corpus Christi, May 3, 2018) (mem. op., not designated for publication).

Appeal to the Texas Court of Criminal Appeals | Is a Vehicle Always a “Deadly Weapon?”

Couthren appealed the lower appeals court’s ruling, to the Court of Criminal Appeals to determine whether the first step (“manner of use”) was a proper evaluation. Specifically, Couthren argued that the lower appeals court relied on the fact that there was a collision and that he had been drinking, to uphold the deadly weapon finding. Further Couthren argued, there must be evidence of a dangerous or reckless operation to support a finding that a car was used as a deadly weapon.

The CCA examined several laws, that when applied together, could create a deadly weapon finding in a DWI collision scenario. Texas Penal Code Section 49.04(a) which prohibits a person from operating a motor vehicle in public while intoxicated. TEX. PENAL CODE §49.04(a). Further, other statutes in Texas provide for a third-degree felony enhancement if it can be proven that a defendant had to prior DWI convictions. TEX PENAL CODE §49.09(b)(2). The Texas Code of Criminal Procedure, Section 42.12 states that, “When it is proven that a defendant used or exhibited a deadly weapon, a trial court shall consider a deadly weapon finding in the judgment.” Moore v. State, 520 S.W.3d 906, 908 (Texas Crim. App. 2017).

The CCA looked to precedent cases to guide their analysis. The CCA determined that there must be evidence that the manner of driving was capable of causing death or serious bodily injury apart from the fact of a collision and a defendant’s intoxication. Brister v. State, 449 S.W.3d 490, at 495 (Tex. Crim. App 2014). Further, the CCA noted that it has “expressly rejected the argument that all felony DWI cases warrant an automatic deadly weapon finding.” Id.

Deadly Weapon Finding Reversed for Lack of “Manner of Use” Evidence to Support it

Here, the CCA noted that there was very little evidence showing the manner in which Couthren used his car during the DWI offense. For example, “we do not know if he applied his brakes…or…if there were other cars on the road.” The CCA stated that the arguments put forth by the State regarding “manner of use” on appeal were conclusions inferred from underlying facts. The CCA stated, “reasonable inferences must be supported by the evidence presented at trial.” Tate v. State, 500 S.W.3d 410 (Tex. Crim. App. 2016). In this case, “the only direct evidence of Couthren’s manner of driving before and at the time of impact was Couthren’s testimony at trial that he was driving 30 miles per hour and that he swerved to avoid hitting Elbrich.” Accordingly, the CCA determined that the facts as presented at trial did not amount to a deadly weapon finding, “in this case we lack specific testimony in the record about manner of use.” The CCA reversed the deadly weapon finding.

While the case before the CCA was decided in Couthren’s favor, it is important to note that it was not without controversy. Four justices joined in a strong dissent. Distinguishing the case at bar from the case law relied upon for the decision, Cates v. State and Brister v. State, the dissenting justices pointed out that because “the offense [in Cates] was failure to stop and render aid and the collision occurred before the offense occurred,” the collision itself could not “be the basis for a finding that a deadly weapon was used during the later offense.” The dissenting opinion states, “the collision did occur during Couthren’s DWI offense and the collision caused serious bodily injury to Mr. Elbrich.”

Jul 09
8
Boating While Intoxicated Boating Offenses Texas

7 Common Boating Offenses in Texas | #3 Can Lead to Serious Prison Time

By | DWI

Boating While Intoxicated Boating Offenses TexasFor a lot people in Texas, the summer is filled with swimming, boating, wakeboarding, and drinking. These activities can be fun and harmless, but sometimes they can take a turn for the worse. Here’s a list of some of the most common criminal offenses that can be committed on a boat in Texas lakes and possible punishments that go along with them. Please keep these in mind to ensure that you have a fun and safe time on the water this summer.

1. Boating While Intoxicated in Texas (BWI)

There is nothing wrong with drinking on a boat, but the boat driver must be careful not to have too many. Under Texas Penal Code 49.06, a person is Boating While Intoxicated if the person is intoxicated while operating a watercraft. To be considered intoxicated, one must not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body or have an alcohol concentration of 0.08 or more. This is the same definition of intoxication that exists under the DWI statutes in Texas.

A “watercraft,” as defined in the Boating While Intoxicated law, is a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water.

Boating while intoxicated is a Class B misdemeanor, with a minimum term of confinement of 72 hours. It is punishable by:

  • up to 180 days in jail
  • a fine of up to $2,000, or
  • both confinement and fine

2. Underage Operation of a Boat

In Texas, according to the Parks and Wildlife Code, no person may operate a motorboat powered by a motor with a manufacturer’s rating of more than 15 horsepower on the public waters of this state unless the person is at least 13 years of age or is supervised by another person who:

  • is at least 18 years of age;
  • can lawfully operate the motorboat; and
  • is on board the motorboat when under way.

Children that are 13-17 years of age can lawfully operate a recreational vessel (like a jet ski) if they complete a boater education course.
Underage operation of a Boat is a Class C Parks and Wildlife Code misdemeanor and can be punished by a fine of $25 to $500.

3. Failure to Report a Boating Accident in Texas (Felony Offense)

The Texas Parks and Wildlife Code regulates the boating guidelines in Texas. According to Section 31.104, when involved in a boating accident, the operator is required to:

  • Render to other persons affected such assistance, as may be practicable and necessary in order to save them from or minimize any danger.
  • Give his name, address, and identification of his vessel in writing to any person injured and to the owner of any property damaged in the collision, accident, or other casualty.

Also, according to Section 31.105 the accident must be reported to the department on or before the expiration of 30 days after the incident. The report should include a full description of the collision, accident, or casualty in accordance with regulations established by the department.

It is the responsibility of each boat operator who is involved in an accident to contact TPWD or your nearest law enforcement agency if the accident:

  • Results in death; (within 48 hours) or
  • Injuries to a person requiring medical treatment beyond first aid; or
  • Causes damage to vessel(s) or property in excess of $2,000.00

Failure to report is a Parks and Wildlife Code Felony and can be punished by confinement in the Texas Department of Criminal Justice for at least 2 but less than 10 years. In addition to imprisonment, a Parks and Wildlife Code felony may be punished by a fine of $2,000 to $10,000.

4. Speeding While Boating

I’ll bet you’ve never noticed any speed limit signs on the lake. Neither have I. However, a person can still violate Texas law if they go too fast in their boat. The Texas Parks and Wildlife Code states that no person may operate any boat at a rate of speed greater than is reasonable and prudent, having due regard for the conditions and hazards, actual and potential, then existing, including weather and density of traffic, or greater than will permit him, in the exercise of reasonable care, to bring the boat to a stop within the assured clear distance ahead. So it appears that the speed limit is whatever a reasonably prudent person would say that it is. If you’re a daredevil, then ask your cautious friend if you’re going too fast.

Speeding is an offense under this section is a Class C misdemeanor and can be punished by a fine not to exceed $500.

5. Failure to Have Life Jackets on Board

Texas Parks and Wildlife Code Section 175.15 requires that there is at least one personal flotation device on board a recreational vessel for each person. Further, each child must be wearing their life jacket while on board.

Failure to have proper life jackets is a Class C misdemeanor and can be punished by a fine not to exceed $500.

6. Fishing Without a License in Texas

A valid fishing license with a freshwater or saltwater endorsement is required to take fish, mussels, clams, crayfish or other aquatic life in the public waters of Texas. However, you do not need a fishing license/package if you:

  • are under 17 years of age.
  • were born before January 1, 1931.
  • are a mentally disabled person who is engaging in recreational fishing as part of a medically approved therapy, and who is fishing under the immediate supervision of personnel approved or employed by a hospital, residence or school for mentally disabled persons.
  • are a mentally disabled person who is recreational fishing under the direct supervision of a licensed angler who is a family member or has permission from the family to take the mentally disabled person fishing

Fishing without a license is an offense under this section is a Class C misdemeanor and can be punished by a fine not to exceed $500.

7. Public Intoxication

Public Intoxication applies on the water, just as it does on land in Texas. Under the Texas Penal Code, a person commits the crime of public intoxication if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

Public intoxication is a Class C misdemeanor and can be punished by a fine not to exceed $500.

Texas Criminal Defense Attorneys and Summer Water Enthusiasts

We enjoy the Texas lakes as much as anyone and we hope that you will too. Like we always say, we hope you never need us, either for a criminal offense or for an accident, but we are here if you do. For a free consultation about your legal matter, contact Barnett Howard & Williams PLLC at (817) 993-9249.

Nov 16
3
Seal DWI Conviction Texas

Denton County’s First DWI Non-Disclosure Granted

By | DWI

Seal DWI Conviction TexasWhen Governor Abbott signed the new DWI sealing law allowing for first-time DWI convictions to be non-disclosed, we began to pull records for our past DWI clients to see if any of them were eligible to have their conviction sealed. We filed the first DWI non-disclosure petition in Denton County as soon as the law took effect in September 2017. Our client was exactly the type of person for whom this new law was written:

  • He was convicted of Class B DWI
  • He successfully completed all terms of his probation
  • More than 5 years have elapsed since he completed probation
  • He had no other arrests on his record either before or after this DWI conviction

Sealing a DWI with a BAC Exceeding 0.15

One of the wrinkles in our client’s non-disclosure petition involved his blood alcohol content. The new DWI sealing law does not allow DWI convictions to be non-disclosed if the person was convicted of having a BAC over 0.15 (Texas Penal Code Section 49.04(d)). Our client’s case involved a BAC over 0.15, but he was not convicted under Section 49.04(d), but rather under 49.04 without any finding of a particular BAC. Our client’s DWI case happened before the legislature added paragraph (d) to the DWI law in 2011. So, as we saw it, our client still qualified for the new sealing law.

The DWI Non-Disclosure Hearing

Having alleged all of the qualifying conditions in our petition, there wasn’t much to the hearing when the time came. The Denton County District Attorney did not oppose our petition and we were able to take the proposed order to the judge without the need for an evidentiary hearing. We were prepared with the offense report, clerk’s records, and criminal history for our client, but none was needed. The judge gladly signed the order for non-disclosure and our client became the very first person in Denton County to have his DWI conviction non-disclosed.

Our client, who has only had this one encounter with the criminal justice system, was thrilled that this uncharacteristic mistake can finally be put behind him. We look forward to helping more people seal their DWI convictions in both Tarrant and Denton Counties. To see if you might be eligible to have your DWI case sealed, contact our team today at (817) 993-9249.

*If you are a Texas attorney and need assistance drafting a petition or order for a DWI non-disclosure, please reach out and we will be glad to help.