A DWI charge may be elevated from the typical misdemeanor to a felony offense in Texas if any of certain aggravating factors occur.
Most of the time, the offense of Driving While Intoxicated (DWI, also known as Driving Under the Influence [DUI] or Drunk Driving) is a misdemeanor, but a third or subsequent DWI after two previous DWI convictions, DWI with a Child Passenger, and DWI resulting in Serious Bodily Injury or Death are all charged as felonies.
Any DWI charge is serious, but the consequences of a felony DWI conviction in Collin County, Texas, can adversely affect an offender far into the future. In addition to prison and heavy fines, a felony DWI conviction may result in the loss of the right to vote or own a gun. A felony DWI conviction may also close the door to some educational and professional opportunities.
In addition, anyone convicted of felony DUI must attend alcohol education classes, submit to an alcohol evaluation and agree to treatment, if indicated. Felony DUI offenders are also usually required to install an ignition interlock device (IID) and obtain expensive SR-22 insurance.
Felony DWI Defense Lawyer in Plano, Allen, Frisco, and McKinney, TX
If you are facing a Felony DWI charge in Collin County, Texas, you should consider contacting a criminal defense attorney experienced in Felony DWI cases as soon as possible.
Important deadlines occur soon after a felony DWI arrest. You only have 15 days to request an administrative driver’s license suspension hearing to retain your driving privileges if you either failed or refused to submit to a chemical test for alcohol.
Law Offices of Richard C. McConathy represents Felony DUI clients in Collin County, including the cities of Plano, Garland, Carrollton, McKinney, Allen, Frisco, and Richardson, as well as Grayson and Rockwall counties. Call us today at (469) 304-3422 to schedule an appointment for a time to consult with one of our skilled DWI attorneys.
Types of Felony DWI in Texas
According to the Texas Penal Code Ann., Title 10, Chapter 49.04, a person commits an offense of Driving While Intoxicated “if the person is intoxicated while operating a motor vehicle in a public place.”
While a “typical” DWI is a misdemeanor, a DWI often will be elevated to a felony charge if there are aggravating factors, such as:
- DWI with a Child Passenger (when a person operates a motor vehicle while intoxicated, and has a passenger who is less than 15 years old), a state jail felony (Texas Penal Code § 49.045));
- Intoxication Assault (when serious bodily injury results by accident or mistake while operating a motor vehicle, aircraft, or watercraft or as a result of operating or assembling a mobile amusement ride while intoxicated), a third-degree felony (Texas P.C. § 49.07)). If a person causes serious bodily injury to a peace officer, firefighter, or emergency medical services personnel while on official duty, a second-degree felony (Texas P.C. § 49.09(b-1));
- Intoxication Manslaughter (when death results by accident or mistake while operating a motor vehicle, aircraft, or watercraft or as a result of operating or assembling a mobile amusement ride while intoxicated), a second-degree felony (Texas P.C. § 49.08)). If a person causes death to a peace officer, firefighter, or emergency medical services personnel while on official duty, a first-degree felony (Texas P.C. § 49.09(b-2)); or
- A person has previously been convicted:
- One time of an offense under § 49.08 (Intoxication Manslaughter) or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under § 49.08 (Texas P.C. § 49.09(b)(1)); or
- Two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated (Texas P.C. § 49.09(b)(2)).
Note: In determining a person’s level of intoxication, the Plano Police, Collin County Sheriff’s deputies, or the Texas Highway Patrol officers may conduct field sobriety tests or chemical tests, including breath tests, blood tests, and urine tests. A person may refuse to take a DUI test, however, a test refusal will result in an automatic administrative driver’s license suspension, which may be appealed.
(Results of blood, breath, or urine tests that are properly conducted may be admissible as evidence if a DWI case goes to trial, but field sobriety tests are usually not admissible.)
Definitions of Terms Related to Felony DWI in Texas
Several terms related to Felony DWI are defined in the Texas statutes, including intoxicated, alcohol concentration, motor vehicle, watercraft, and amusement ride.
Under Texas P.C. § 49.01(2), “Intoxicated” means:
- “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
- Having an alcohol concentration of 0.08 or more.”
Under Texas P.C. § 49.01(1), “alcohol concentration” (also known as blood-alcohol concentration, or BAC) means the number of grams of alcohol per:
- 210 liters of breath
- 100 milliliters of blood, or
- 67 milliliters of urine.”
“Motor vehicle” is defined as “a device in, on, or by which a person is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks” (Texas P.C. §§ 32.34(a) and 49.01(3)).
“Watercraft” means “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 (Texas P.C. § 49.01(4)).
“Amusement ride” means “a mechanical device that carries passengers along, around, or over a fixed or restricted course or within a defined area for the purpose of giving the passengers amusement, pleasure, or excitement,” although certain rides are excluded (See Texas Occupational Code, Title 13, Subtitle D, § 2151.002).
Criminal Penalties for a Felony DWI Conviction in Texas
Felony DWI convictions regularly result in prison or jail time, along with expensive fines. Depending on the specific charge and a person’s prior criminal history, these penalties may include:
- State Jail Felony: A sentence of between 180 days to two years in jail, and/or a fine of up to $10,000.
- Third-degree felony: Punishable by between two to 10 years in prison, and/or a fine of up to $10,000.
- Second-degree felony: Punishable by between two to 20 years in prison, and/or a fine of up to $10,000.
- First-degree felony: A mandatory prison sentence of at least five years, with a maximum of 99 years or life, and/or a fine of up to $10,000.
A person convicted of felony DWI will also face a driver’s license suspension, or restrictions if and when an essential needs license or occupational license is granted. Additional penalties for felony DWI include completion of a felony DWI school, drug and alcohol education and/or counseling, probation, and the installation of an ignition interlock device (IID). An IID prevents a driver from operating a vehicle until he or she submits to a breath test for alcohol.
Collin County DWI/Drug Court Program
The backlog of DWI cases and the stiff penalties for Felony DWI inspired the creation of the 366th Judicial District Felony DWI/Drug Court Program, in which Collin County participates.
A program participant must admit that he or she has a drug or alcohol problem to be admitted to the intensive one-year program, and then completely abstain from drug and alcohol use. The program involves frequent court appearances, strong judicial supervision, random drug testing, frequent, unscheduled home visits by members of the drug court team or police officers, and group and individual drug and alcohol treatment, among other conditions.
Benefits of the program include:
- Assistance with payment for alcohol or drug treatment
- Possible waiver of fines
- Possible granting of an occupational driver’s license (with the only minimal expense) to allow driving to and from work, the performance of essential household duties, and to attend required counseling sessions
- Court-ordered community service may be waived in order for an offender to attend any required counseling and support meetings
- Reduced rates on an ignition interlock device (IID)
Civil Consequences of Felony DWI in Texas
The potential prison sentence and the steep fines and loss of rights that often result from a felony DWI conviction are always accompanied by other civil (administrative) penalties imposed by the state.
These consequences may include a driver’s license suspension, DWI classes, and expensive annual DWI surcharges in order to maintain a driver’s license after a DWI suspension is lifted. Insurance companies also charge higher rates for drivers with a felony DWI conviction.
Felony DWI Driver’s License Suspension
An automatic driver’s license suspension will occur after a Felony DWI arrest. The suspension may be appealed, but only within 15 days of the arrest, so it is very important that you consult with an attorney right away after a DWI arrest, who can help schedule and represent you at an administrative license revocation (ALR) hearing in your effort to retain your driving privileges.
Some of the driver’s license suspension periods for felony DWI offense convictions include:
- First DWI with a Child Passenger — 90 days to one year
- Repeat Felony DWI Offenses (more than five years since a prior offense) — 180 days to two years
- Repeat Felony DWI Offenses (within five years of a prior offense) — One to two years
- First Intoxication Assault — 90 days to one year
- Second or Subsequent Intoxication Assault (within five years of a prior offense) — 90 days to one year, plus the possibility of an additional one year
- First Intoxication Manslaughter — 180 days to two years
- Second or Subsequent Intoxication Manslaughter (within 10 years of a preceding offense) — One to two years
Texas DWI Surcharges
Texas assesses a mandatory annual DWI surcharge for anyone who is granted a driver’s license after a Felony DWI conviction. The surcharge is paid to the Texas Department of Public Safety (DPS). For anyone convicted of felony DWI, these surcharges are $2,000 per year for three years (a total of $6,000), the highest rate allowed under the law.
Resources for Felony DWI in Collin County, Texas
Texas Constitution and Statutes, Penal Code Ann., Title 10, Chapter 49 — Read the Texas statutes related to the state’s intoxication laws and penalties that can result from a conviction, including felony driving while intoxicated offenses in Texas and the potential penalties for a felony DWI conviction.
The 366th Judicial District Felony DWI/Drug Court Program — Collin County’s one-year program for Felony DWI offenders provides a way to avoid prison or jail and reduce some fines and other fees while adopting a sober lifestyle.
Find A Collin County Attorney to Fight Felony DWI Charges | Law Offices of Richard C. McConathy
If you are facing a Felony DWI charge in Plano, Texas, or anywhere in Collin County, Texas, you should seek the counsel of a skilled DWI attorney as soon as possible.
The experienced DWI attorneys at the Law Offices of Richard C. McConathy will be able to analyze your case and help you build a strong defense. We will be able to recommend ways to lessen the adverse consequences of a felony DWI arrest and work to help you avoid the severe penalties that are often administered for a felony DWI conviction.
Law Offices of Richard C. McConathy serves clients throughout Collin County, Texas, including Plano, Garland, McKinney, Frisco, Carrollton, Allen, and Richardson, as well as Grayson and Rockwall counties.
We are aggressive advocates for our clients. We may be able to find holes in the prosecution’s case, flaws with the DUI tests that were conducted, or with the arrest itself, which may result in a reduction or dismissal of charges. Alternately, we may be able to help you secure a spot in Collin County’s Felony DWI/Drug Court Program, which could help you rebuild your life.
With any DWI charge — especially a Felony DWI charge — time is of the essence, so contact the Law Offices of Richard C. McConathy today at (469) 304-3422 to schedule an appointment to discuss your case.
DWI is a criminal offense that says a person may not drive a motor vehicle in a public place while “intoxicated.” The DWI statute does not say driving while drunk or “drunk driving.”
The legal definition of intoxication in Texas is:
- Having an alcohol concentration of 0.08 or more
- Not having the normal use of 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 substances into the body.
- Not having the normal use of mental 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 substances into the body
The State only needs to prove one of the three ways beyond a reasonable doubt in order to obtain a conviction.
According to the law, the definition of the word normal is the average person. The problem is how do we determine the average person? The law is vague in this subject, which lends itself for good argument to a jury that everyone is different and each has his own normal.
“Alcohol concentration” is defined by statute as:
a. the number of grams of alcohol per 100 milliliters of blood;
b. the number of grams of alcohol per 210 liters of breath; or
c. the number of grams of alcohol per 67 milliliters of urine.
A 0.02 equals one drink. A drink is 1-¼ ounces of liquor, 1 12oz beer, or 1 glass of wine. It takes one hour for the body to burn off a 0.02 down to a 0.00. Thus, to reach a 0.08 a person must consume four drinks in one hour.
Under criminal law, you are not required to perform any type of test or answer any questions to the police officer. You have the right to refuse any tests and request an attorney. However, if you refuse to attempt these tests, the officer most likely is going to arrest you.
Further, the civil law, which your driver’s license falls under, does not protect you. In fact, when you applied for your driver’s license you unknowingly consented to any future tests, if to which you refused you would lose your driver’s license for a period of six months. The decision is yours and there is a civil risk (your license), but you do have rights, and should not waive them. Always request your lawyer and don’t cooperate with anything if you wish to exercise your rights.
No. However, although a person has no right to refuse being videotaped, he does have the right to refuse to perform any police field sobriety exercises and to refuse to answer any questions, the answers to which, might be incriminating. Unlike breath or blood test refusals, there are no penalties for refusing to perform field sobriety tests or refusing to answer questions while being videotaped.
If performed in a controlled environment in the exact proscribed standardized manner, the tests can be a likely indicator of intoxication. This is hardly done in the street.
The research conducted by the National Highway Traffic Safety Administration, the designers of the tests, concluded the Horizontal Gaze Nystagmus is 77% accurate, the Walk & Turn is 68% accurate, and the One Leg Stand is 65% accurate only when administered in the prescribed, standardized manner. Any change from the standardized manner will compromise the tests validity and make any result inaccurate. When not conducted properly it becomes an opinion test of the officer.
Therefore, these tests will inaccurately claim 23% – 35% of the people tested as intoxicated. Which when done incorrectly, which is the norm, can drop the accuracy to a frightening level
Even SOBER persons can have difficulty with these tests, as stated by The National Highway Traffic Safety Administration. The reason is as the NHTSA has admitted, are several factors that affect every person, such as:
- Being ill
- The distraction of traffic
- The police car’s strobe lights
- Lack of coordination
- Gusts of wind
- Road or sidewalk conditions
- Head lights of traffic
- Weather conditions
- Being nervousness
- Back problems
- Leg or knee problems
- Inner ear disorders
The State of Texas must prove your guilt “beyond a reasonable doubt”, which is the highest burden of proof in the justice system. It is not defined, by Texas law, but can be easily explained to a jury.
The lowest burden of proof is probable cause. That is how an officer can start an arrest.
The next highest burden of proof is preponderance of the evidence. This is the amount of proof needed in civil courtrooms involving civil suites. A preponderance of the evidence is proof amounting to 51% or who can move the scales of justice.
The next highest burden of proof is clear and convincing evidence. This is amount of proof that will cause a juror or judge to have a “firm belief” in the matter to be proved. This is used in custody cases. Most juries when they hear that the burden of proof is higher than that to take their kids away from them understand the high level of proof.
Beyond a Reasonable Doubt is the highest burden of proof. A jury must have more than that necessary to take your kids away in evidence that you were intoxicated before they could find you guilty. This is very simple, if a juror has a single doubt, based on reason, as to a person being intoxicated, they must follow the law and find them not guilty.
Texas law does not give you the right to speak with an attorney prior to making the decision of whether or not to take the field sobriety tests, the breath test or blood test. However, the law does not require you to perform any field sobriety tests or to take a blood or breath test so continue to ask for an attorney and refuse to cooperate and the likely chances of being found NOT GUILTY can increase!
If you are convicted of the DWI, it will be on your record for life. Furthermore, a DWI conviction can be used for ten years to enhance your punishment of you are arrested for DWI again. If you are found Not Guilty, you can have the arrest and DWI charge “expunged” from your record.