Many people think a first offense DWI charge is a relatively minor infraction. A simple misdemeanor with a fine, license suspension and minimal jail time. Even with the attention given to alcohol awareness from groups like MADD, many drivers feel like there is minimal risk to driving home from dinner with drinks. However, there are some little known facts you may want to consider before having one more glass of wine with dinner.
Unlike other states, in Texas you do NOT have to be over the legal limit to be convicted of DWI. According to Texas law, any person operating a motor vehicle on state roads while intoxicated from alcohol or drugs can be guilty of DWI, whether or not the legal limit is met. Intoxicated in Texas code means a person is no longer is able to use normal mental or physical faculties, such as clear speech and balance. That being said, the legal limit in Texas is .08 and any person caught with a BAC of .08 is automatically considered DWI. This is also known as a “per se” DWI. Additionally, any person caught driving a motor vehicle with a BAC of .15 will face even more punitive consequences than someone charged with simple DWI or per se DWI. This level of alcohol in the blood will be a special concern to the court if your case is found to have other aggravating circumstances.
One such aggravating circumstance is the presence of a passenger under 15 years of age. Did you know it is a State Jail Felony if you are convicted of a DWI with a passenger under 15 years of age in Texas? Even if you’ve never been convicted of DWI or any other offense before, the fact that you are accused of DWI with a child passenger means the charge is a felony. The MINIMUM sentence for a DWI with child passenger is 180 days in a State Jail Facility. You can be facing up to 2 years in State Jail on your first offense and a $10,000 fine. You may be eligible for probation. However, because it is a DWI offense, you are not eligible for a Deferred Adjudication. This means, if you plead guilty and get probation if you’re ever asked the question, “Have you ever been convicted of a felony?” you will have to answer “YES.” This type of conviction has other long range effects, such as a loss of the right to vote or own a firearm. It could also have a significant impact on your rights as a parent if you are divorced or have a pending suit affecting the parent-child relationship.
There are other considerations as well. In September 2009 revisions to Chapter 724 of the Texas Transportation Code REQUIRES a police officer to draw your blood without your consent and without a warrant, if you are arrested for DWI with a passenger under 15. Furthermore, while the burden of proof in DWI Child Passenger cases is the same as a regular DWI, jurors often hold the prosecution to a lower standard because children are involved. In both regular DWI and DWI Child Passenger, intoxication is defined in exactly the same way. However, many jurors are willing to find someone in intoxicated based on less evidence in a DWI Child Passenger Case.
We make choices all the time that can have long term effects on our lives and those around us. I hope the information provided herein allows you to make a more informed choice when driving with your children. It is important to realize the risks you face before you make decisions that may be far more serious than you believe them to be.