Q: How does Texas law define driving while intoxicated?
A: A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. "Intoxicated" is defined as either:
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
having an alcohol concentration of 0.08 or more (as of 2006).
Q: If I have less than 0.08 alcohol concentration, does that mean I can't be convicted for DWI?
A: You can still be convicted despite the fact that you have less than 0.08 alcohol concentration. As the second definition of "intoxication" indicates above, under Texas law, not having the normal use of one's mental or physical faculties due to alcohol or any other substance is a violation of the Texas DWI law.
Q: If I have 0.08 or greater alcohol concentration, but I am still in control of my mental and physical faculties, can I still be convicted for DWI?
A: If your alcohol concentration is greater than 0.08, then the fact that you are still in control of your mental and physical faculties will NOT prevent a DWI conviction.
Q: What is "alcohol concentration"?
A: "Alcohol concentration" means the number of grams of alcohol per: (1) 210 liters of breath; (2) 100 milliliters of blood; or (3) 67 milliliters of urine.
Q: Is drinking just one beer while driving a car against the law?
A: Under Texas law, it is a class C misdemeanor to consume an alcoholic beverage while operating a motor vehicle in a public place.
Q: What can I do if my driver's license was suspended under Texas Transportation Code Section 524.011?
A: Within 15 days from the time on which an individual received notice of suspension under Texas Transportation Code Section 524.011, or is presumed to have received notice of suspension under Texas Transportation Code Section 524.013, the Department of Public Safety must receive a written request from the driver for a hearing regarding the suspension of his license. Normally, the notice regarding suspension of a driver's license for DUI/DWI arrest will be given around the same time the arrest is made, so the 15 day period will often begin to run around the time of arrest.
Q: How long will my driver's license be suspended for a DUI/DWI arrest under Texas Transportation Code Section 524.011?
A: It depends on your prior alcohol or drug-related "contacts" with law enforcement. For instance, the license suspension is 90 days if a person's driving record shows no alcohol-related or drug-related enforcement contact during the 10 years preceding the date of arrest for DUI/DWI.
Q: Can my driver's license be suspended for refusing to give a blood or breath alcohol specimen?
A: Under Texas Transportation Code Section 724.032, a person's license can be suspended for refusing to submit to the taking of a blood or breath alcohol specimen. If the person has no prior alcohol-related or drug-related law enforcement "contacts" within the past 10 years, then the license suspension lasts for 180 days. A written request for a hearing on the suspension should be sent to the Department of Public Safety within 15 days of receiving notice of the suspension. (Notice usually is received at the same time the license is suspended.)
Q:What is a "complaint"?
A: A complaint is an affidavit made before a magistrate or district or county attorney that charges
the commission of an offense. The complaint states the name of the accused, or his description. It must show
that the accused has committed some offense against the laws of the State, either directly or that the affiant has
good reason to believe that the accused has committed the offense. The complaint must also state the time and place
of the commission of the offense, and it must be signed by the affiant.
Q: What is the purpose of a complaint?
A: A complaint can have several functions. In misdemeanor cases, no information shall be presented until a complaint
has been made.
Q: What is an "information"?
A: An "information" is a written statement filed and presented in behalf of the State by the district or county attorney,
charging the defendant with an offense which may by law be so prosecuted. At the criminal trial, the information is
read to the jury by the prosecuting attorney. The information is read aloud at the criminal trial in order to inform
the accused of the charges against him and to inform the jury of the precise terms of the particular charge against the
accused.
Q: What is an "indictment"?
A: An "indictment" is the written statement of a grand jury accusing a person therein named of
some act or omission which, by law, is declared to be an offense. At a felony criminal trial, the indictment is
read to the jury by the prosecuting attorney instead of an information. No person shall be held to answer for a
felony unless on indictment of a grand jury. (See Article I, Sec. 10, Texas State Constitution,
and Amendment V, U.S. Constitution.).
Q: What is the difference between an "indictment" and an "information"?
A: An indictment is the primary pleading instrument on the part of the State in a felony criminal action. In misdemeanor
cases, an information is used instead of an indictment as the primary pleading instrument on behalf of the State. Before
a felony prosecution may proceed, 3/4 of the members of a grand jury must vote in favor of indicting the criminal defendant.
On the other hand, in misdemeanor cases, no indictment by a grand jury is necessary.
Q: What is an "examining trial"?
A: In an examining trial, a judge inquires into the probable cause of the State to justify detention of the accused.
A person accused of a felony is entitled to an examining trial before he is indicted by a grand jury.
Q: What is a "grand jury"?
A: A grand jury is selected from a broad cross-section of the population of a particular county to
serve as a pre-trial screening agency interposed between the government and the individual accused of a felony. The
grand jury hears testimony from various witnesses regarding the alleged crime and then votes on whether to indict the
accused. Before a felony prosecution may proceed to trial, 3/4 of the members of a grand jury must vote in favor of
indicting the criminal defendant.
Q: What is an "arraignment"?
A: An arraignment is a proceeding before a judge that takes place to determine the
criminal defendant's identity and hear his plea. In all felony cases and in all misdemeanor cases punishable
by imprisonment, there must be an arraignment. The arraignment occurs after indictment in felony cases.
Q: What is the limitations period for a misdemeanor?
A: An indictment or information for any misdemeanor may be presented within two years from the
date of the commission of the offense, and not afterward. An information is considered "presented" when it has been
filed by the proper officer in the proper court. This means that presentment of an information may be accomplished by
the prosecuting attorney delivering the information to the clerk's office. An attempt to present an information or
indictment outside of this time period in misdemeanor cases is a defense to prosecution that must be asserted at or before
the guilt/innocence stage of trial. Before trial, a defendant may assert the statute of limitations defense by filing a
motion to dismiss under ART. 27.08(2) of the Texas Code of Criminal Procedure.
Q: What is a "writ of habeas corpus"?
A: The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty.
It is an order issued by a court or judge of competent jurisdiction, directed to any one having a person in his custody,
or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he
is held in custody or under restraint.
Q: What are some of the uses of a writ of habeas corpus?
A: The writ of habeas corpus may be used to challenge the amount of bail, for double jeopardy claims,
or when any person is being held illegally.
Q: What is a "verdict"?
A: A "verdict" is a written declaration by a jury of its decision of the issue submitted to it in a case.
Q: What are the three major types of community supervision?
A: Under the first type of community supervision (“regular community supervision”), after the defendant is convicted, he is given a term of imprisonment that is immediately suspended, and then he is placed on community supervision instead. Under the second type of community supervision, the criminal proceeding is suspended and the defendant is placed on community supervision without a finding of guilt. This second type of community supervision is known as “deferred adjudication”. Under the third type of community supervision (“continuing jurisdiction community supervision”), the defendant is convicted and sentenced, and he begins to serve a term of imprisonment. The rest of the sentence is then suspended and the defendant is placed on community supervision.
Q: What are some of the terms associated with DWI Community Supervision?
A: A: Texas Code of Criminal Procedure Article 42.12 Sec. 13 (2006) sets forth the terms of DWI Community Supervision. Some of these special terms include: If the defendant was previously convicted of driving, flying, or boating while intoxicated, he must serve not less than three days of confinement in county jail. If the defendant was convicted twice previously of driving, flying, or boating while intoxicated, he must serve not less than 10 days of confinement in county jail. The defendant usually will have to complete an educational program on alcohol abuse prior to the 181st day after the day community supervision is granted. A defendant convicted of an offense under Penal Code Sections 49.04 through 49.08 may be required as a condition of community supervision to have a device installed on the motor vehicle owned by the defendant, or on the vehicle most regularly driven by the defendant, that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator. Furthermore, if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol level of 0.15 or more, the court must require the installation of an ignition interlock device on the defendant’s vehicle. However, if a defendant is required to operate a motor vehicle in the course and scope of the defendant's employment and the vehicle is owned by the employer, the defendant may operate that vehicle without installation of an approved ignition interlock device if the employer has been notified of the driving restriction and proof of the notification is with the vehicle.
Q: Where can I find out more about community supervision?
A: Check Texas Code of Criminal Procedure Article 42.12
Frequently Asked Questions: Punishments
Q: What is a Class C Misdemeanor?
A: Texas Penal Code § 12.23 (2006)
says:
An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $ 500.
Q: What is a Class B Misdemeanor?
A: Texas Penal Code § 12.22 (2006)
says:
An individual adjudged guilty of a Class B misdemeanor shall be punished by: (1) a fine not to exceed $ 2,000;
(2) confinement in jail for a term not to exceed 180 days; or (3) both such fine and confinement.
Q: What is a Class A Misdemeanor?
A: Texas Penal Code § 12.21 (2006)
says:
An individual adjudged guilty of a Class A misdemeanor shall be punished by: (1) a fine not to exceed $ 4,000; (2) confinement in jail for a term not
to exceed one year; or (3) both such fine and confinement.
Q: What is a State Jail Felony?
A: Tex. Penal Code § 12.35 (2006), "State Jail Felony Punishment", says:
(a) Except as provided by Subsection (c), an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days.
(b) In addition to confinement, an individual adjudged guilty of a state jail felony may be punished by a fine not to exceed $ 10,000.
(c) An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that:
(1) a deadly weapon as defined by Section 1.07 was used or exhibited
during the commission of the offense or during immediate flight
following the commission of the offense, and that the individual used
or exhibited the deadly weapon or was a party to the offense and knew
that a deadly weapon would be used or exhibited; or
(2) the individual has previously been finally convicted of any felony:
(A) listed in Section 3g(a)(1), Article 42.12, Code of Criminal
Procedure; or
(B) for which the judgment contains an affirmative finding under
Section 3g(a)(2), Article 42.12, Code of Criminal Procedure.
Q: What is a Third Degree Felony?
A: Tex. Penal Code § 12.34 (2006), "Third Degree Felony Punishment", says:
(a) An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the institutional division for any term of not more than 10 years or less than 2 years.
(b) In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000.
Q: What is a Second Degree Felony?
A: Texas Penal Code § 12.33 (2006), "Second Degree Felony Punishment", says:
(a) An individual adjudged guilty of a felony of the second degree shall be punished by imprisonment in the institutional division for any term of not more than 20 years or less than 2 years.
(b) In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed $ 10,000.
Q: What is a First Degree Felony?
A: Texas Penal Code § 12.32 (2006), "First Degree Felony Punishment", says:
(a) An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the institutional division for life or for any term of not more than 99 years or less than 5 years.
(b) In addition to imprisonment, an individual adjudged guilty of a felony of the first degree may be punished by a fine not to exceed $ 10,000.
Q: Q: What if I have already been convicted of a crime?
A: The punishment could be enhanced as a result of prior convictions. Click
here to see the enhanced misdemeanor punishment ranges.
Q: Where can I find out more about Texas Criminal Law on the Internet?
A: The legislature meets periodically, and the laws often change. Always check with an official source or an attorney (in person)
regarding the law to ensure that you receive up to date legal information. The State of Texas maintains a
web site of Texas Statutes that
can be a useful source.
