Most DWI cases in Travis County do not end with a jury trial. Instead, the defense and prosecutor may negotiate an outcome based on the evidence, the driver’s criminal history, the alcohol concentration alleged, whether there was an accident, and other circumstances of the case.
The possibilities range from a complete dismissal through a diversion program to probation, a reduction to another offense, or, in some cases, a short jail sentence. Understanding these options is important because the consequences of each can be very different.
DWI Pretrial Diversion and Dismissal
For some defendants, the best possible negotiated outcome is DWI pretrial diversion.
Travis County currently operates a DWI Pretrial Diversion program through the County Attorney’s Office and County Court at Law No. 3. Eligibility depends on factors including the facts of the offense, criminal history, and a Driver’s Risk Inventory evaluation.
Certain cases including a second DWI, multiple pending DWIs, a BAC over .20, and cases involving certain serious collisions, are excluded. Other DWI cases are considered individually.
The major advantage of diversion is the result: successful completion results in dismissal of the DWI charge. A dismissal may also create an opportunity to seek an expunction of the arrest record.
Diversion is not simply an agreement to stay out of trouble. The current program generally lasts 12 months and requires completion of CES recommendations, a MADD Victim Impact Panel, 6 months alcohol monitoring, court appearances, and other conditions that may apply to the individual case. Although the standard length is 12 months, early termination at 6 months is possible if all requirements are completed. Additionally, you will get credit for IID monitoring before you enter the program if you have no alcohol violations.
For an eligible client, completing those requirements may be well worth it because the ultimate result is a dismissal rather than a DWI conviction.
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Reduction to Obstructing a Highway or Passageway
Another possible negotiated resolution is reducing the DWI to a different misdemeanor offense, commonly Obstructing a Highway or Other Passageway.
This is sometimes referred to informally as an “obstruction” reduction.
A reduction is not the same thing as a dismissal. The defendant ordinarily pleads to the reduced charge and receives a conviction or other negotiated disposition on that offense. The important benefit is that the final conviction is not for DWI. Obstructing a Roadway is still a class B misdemeanor, some of the penalties are lightened. For example, it does not count as a DWI conviction for the purpose of enhancing a second DWI. In Travis county, Obstructing typically requires probation or deferred adjudication as part of the sentence.
Whether the State is willing to offer a reduction depends heavily on the individual case. Problems with the traffic stop, field sobriety testing, breath or blood evidence, proof of driving, or other weaknesses in the prosecution’s evidence can affect negotiations. There is no automatic right to have a DWI reduced simply because it is a first offense.
Community Supervision (AKA Probation or Deferred Adjudication)
A DWI can also be resolved by a plea to the DWI itself.
One common resolution is community supervision, usually called probation. Instead of serving the underlying jail sentence, the defendant serves a period of supervision and must comply with conditions imposed by the court.
Texas law also permits deferred adjudication for certain DWI offenses. Deferred adjudication differs from ordinary probation because the court defers a finding of guilt while the defendant completes community supervision.
That distinction can have important consequences, but deferred adjudication should not be confused with diversion. Pretrial diversion can result in the DWI charge being dismissed without a DWI plea resulting in community supervision; deferred adjudication is a court disposition after a plea and carries different consequences.
Which option is available will depend on the particular DWI charge and the negotiated agreement.
Jail as a Negotiated Resolution
A DWI can also be resolved through an agreed jail sentence.
For many ordinary first-offense DWI cases in Travis County, however, a defendant who is eligible for probation will generally have alternatives to serving a substantial jail sentence. Sometimes a defendant chooses a short jail sentence instead of probation because the defendant would rather complete the punishment immediately than spend months complying with supervision requirements.
That can make sense in particular circumstances, but it is highly client-specific.
Repeat DWIs are different. Texas law imposes mandatory minimum confinement provisions for certain repeat offenses, so jail is not always simply an elective alternative to probation. However, it is common to reduce these to a first DWI to avoid the mandatory jail time.
DWI Classes and the MADD Victim Impact Panel
Virtually all negotiated DWI resolutions include educational requirements. One of the most common is the DWI Education Program offered through Travis County Counseling & Education Services (CES). The current program consists of 12 hours of instruction, generally completed through three four-hour classes.
Depending on the disposition and the person’s history, CES may recommend or require additional programming. Travis County also offers a substantially longer DWI Intervention Program for repeat offenders.
Another common requirement is the MADD Victim Impact Panel. It is expressly required under Travis County’s current DWI diversion program and may also appear as a condition in other DWI dispositions. This is only a few hours and can be done online.
These requirements are worth completing promptly when appropriate. Showing that a client has already completed recommended classes can sometimes be useful during negotiations rather than waiting until the end of the case.
Alcohol Monitoring and Ignition Interlock
Alcohol monitoring is another common feature of Travis County DWI cases.
The most familiar form is an ignition interlock device (IID). An IID requires the driver to provide a breath sample before the vehicle will start and may require additional samples while the vehicle is being operated.
But an IID is not the only form of alcohol monitoring. Travis County also uses devices such as portable alcohol monitors and continuous alcohol monitoring systems. County materials describe IID, SCRAM, and portable alcohol monitoring as available monitoring methods.
Alcohol monitoring is not required in every DWI resolution. Whether it is required depends on the charge, the defendant’s history, the applicable law, bond conditions, and the negotiated disposition.
It is, however, common. For example, Travis County’s current DWI pretrial diversion program expressly requires participants to submit to alcohol monitoring.
IMPORTANT: Ethically questionable vendors will send mailers that look like official court documents requiring an IID. Always review with your attorney before installing an IID. If the court requires alcohol monitoring, it will be a part of your bond conditions that you receive from the court. Do not rely on the advice from mailers, as these can be scams.
The Outcome Depends on the Case
There isn’t a standard plea agreement that applies to every Travis County DWI.
A first DWI with a relatively low alcohol concentration, no collision, no criminal history, and significant evidentiary problems may present very different options from a high-BAC case, a collision case, or a second or subsequent DWI.
That is one reason the defense should evaluate the evidence before deciding whether an offer is good. The question isn’t simply whether the prosecutor is offering probation. The more important question is what the State can prove and whether the available resolution appropriately reflects the strengths and weaknesses of that particular case.