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Austin DWI Attorney

DWI Charges in Austin, TX

Being charged with a DWI in Austin is a serious – and costly – event.  It is important to speak to an Austin DWI attorney quickly to preserve your rights and force the state to prove – beyond a reasonable doubt – that you committed all of the elements of a DWI charge.  In Texas, that means that you 1) Operated a motor vehicle 2) While intoxicated, 3) In a public place. 

What does it mean to be intoxicated?

The obvious answer is the alcohol content in your blood is .08 or more – this is “per se” intoxication.  But a blood test showing a BAC level is not the end of the discussion.  The state can still charge you with a DWI if your BAC is lower than that.  AND you can sometimes get dismissal even when it is higher!

It is a common misconception that a BAC of below .08 means the case will be dismissed.  Even though a reading above .08 is “per se” intoxication, the State may still prosecute if they believe that the driver has lost “the normal use of mental or physical faculties” due to an intoxicating substance – with or without a showing that BAC is above .08.

The obvious case where this happens is with substances other than alcohol, which is the subject you can read about here.  Even without other substances, though, the State can still proceed.  Obviously, without a BAC test, the State’s case is much weaker.  Many of these will be resolved in a dismissal, but it is always a case-by-case basis, and nothing is a guarantee.

Should I refuse a Breath Test?

Like many answers in the legal world, the answer here is, “it depends.”  Typically, if you have had any alcohol at all, the answer is that you should refuse a breath test.  The reasons for this are many.  First, any level of alcohol at all – even below .08 can be used as evidence for probable cause to arrest – and later as evidence in court.  Second, once people start drinking, they are more likely to make a mistake such as underestimating the number of drinks they have had.  For some, it can take as few as 2 strong drinks to get above .08.

Maybe you have heard that in Austin, breath test refusers will simply be forced to have a blood BAC test.  This is usually true since a Magistrate Judge is on call 24 hours a day in the Travis County jail.  However, keep in mind that your BAC level is continually changing, and is usually lower the longer you wait.  If it dips below .08 before the test, the State’s case will be weaker and your result can be much better.  Lastly, the State must show that you were intoxicated at the time of driving –NOT at the time, the test was taken.  The farther away those two events are, the more difficulty the State will have in proving their case.   

Should I refuse Field Sobriety Tests (FSTs)?

Field Sobriety tests (or FSTs)typically consist of 3 tests.  1) A test for nystagmus (involuntary jerkiness of pupils) 2) The “walk and turn”, 3) the “one-leg stand”.

I have heard of cases where people have “passed” their Field Sobriety Tests and not been arrested, but it’s hard to stress how rare this is.  It is more likely that someone who is stone-cold sober will be arrested on the basis of the FST.  Why?  Because they do not truly pass/fail.  Officers already suspect the driver of a DWI and they are seeking evidence to confirm this bias.  The tests are carried out in a high-stress situation that will increase mistakes.  Officers present these tests as though you have no right to refuse, but that is false.  In general, I would advise anyone to refuse these tests. 

Keep in mind that refusal will often lead to an arrest.  What many don’t understand is that the arrest was likely to happen whether or not you refused because often the arresting officer has already decided to arrest.  By complying and going through the tests, you are only giving the prosecutor ammunition at trial.

Driver’s License Issues

If you refuse or fail (.08 or higher) a BAC test, you will face an automatic License Revocation (ALR).  This will be automatic if you do not request a hearing within 15 days. 

Unfortunately, it is not necessary to prove that you were intoxicated for your license to be revoked, but DPS will need to show that they had probable cause for a DWI arrest and that they followed procedures.  Therefore, the majority of ALR suspensions are not avoided with a hearing.  

Even so, for several reasons, it is important to request a hearing.  First, it buys you some time to deal with other aspects of your DWI without needing to also deal with Driver’s License issues.  Second, the ALR hearing itself can be a valuable evidence-gathering exercise because it affords the opportunity to question the arresting officer.  We can also see how he reacts on the stand and whether he would make a good witness at trial.  Lastly, on rare occasions, the police did not follow the simple procedures required, and we can get the revocation thrown out.  If you do not request your hearing within 15 days, you lose that opportunity.  If your license is suspended, we can also assist in applying for an occupational license, which will allow you to drive to attend to essential needs while your license is suspended.

What Are The Penalties For A DWI?

First-time DWIs are typically Class B misdemeanors, but they can be Class A or even felony level if certain aggravating factors exist.

By statute, Class B misdemeanors are punished with a maximum of 180 days in jail, a $2,000 fine, or both.  In practice, most DWIs are handled with probation.  Usually, the punishments include fines, classes, community service hours, and sometimes an Ignition Interlock or similar device.  The term of the probation is negotiable and can vary greatly depending on the specifics of the case, but will usually top out at 18-24 months.

There are also ways to deal with a DWI that do not lead to a conviction at all.  If the State’s case is weak, or if they did not follow proper procedure in procuring the breath or blood sample and it is thrown out, the case may be dismissed.  Even if they have a strong case, there are options such as Pretrial Diversion which can lead to a dismissal.

A DWI with aggravating factors such as a previous DWI conviction or a BAC over .15 can have more serious penalties.  These cases are dealt with [here].   You can also check out my Travis County DWI Guide for a more thorough discussion of DWIs.

Contact An Experienced Austin DWI Attorney

A DWI with aggravating factors such as a previous DWI conviction or a BAC over .15 can have more serious penalties.  These cases are dealt with [here].   You can also check out my Travis County DWI Guide for a more thorough discussion of DWIs. If you or a loved one are facing DWI charges, contact a proven Austin DWI defense attorney.

Download The Travis County DWI Guide

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What Are The Penalties For A DWI?

First-time DWIs are typically Class B misdemeanors, but they can be Class A or even felony level if certain aggravating factors exist.

By statute, Class B misdemeanors are punished with a maximum of 180 days in jail, a $2,000 fine, or both.  In practice, most DWIs are handled with probation.  Usually, the punishments include fines, classes, community service hours, and sometimes an Ignition Interlock or similar device.  The term of the probation is negotiable and can vary greatly depending on the specifics of the case, but will usually top out at 18-24 months.

There are also ways to deal with a DWI that do not lead to a conviction at all.  If the State’s case is weak, or if they did not follow proper procedure in procuring the breath or blood sample and it is thrown out, the case may be dismissed.  Even if they have a strong case, there are options such as Pretrial Diversion which can lead to a dismissal.

A DWI with aggravating factors such as a previous DWI conviction or a BAC over .15 can have more serious penalties.  These cases are dealt with [here].   You can also check out my Travis County DWI Guide for a more thorough discussion of DWIs.

Contact An Experienced Austin DWI Attorney

A DWI with aggravating factors such as a previous DWI conviction or a BAC over .15 can have more serious penalties.  These cases are dealt with [here].   You can also check out my Travis County DWI Guide for a more thorough discussion of DWIs. If you or a loved one are facing DWI charges, contact a proven Austin DWI defense attorney.

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