Intoxication is defined the same in either a Driving While Intoxicated (DWI) or Public Intoxication (PI) case in Texas. I had a very interesting situation that came up recently. I had a client who had been arrested for DWI. He was leaving the bar late at night with some friends and while driving home late at night one of his friends got sick. The friend had a little too much to drink and needed to throw up. My client who was driving, pulled over on the highway to let his friend handle his business. Within a couple of minutes an officer pulled in behind them to see if they needed any help. When they smelled alcohol and saw some guy puking they decided to conduct a DWI investigation on my client.
They went through the normal standard field sobriety tests (Horizontal Gaze Nystagmus, One Leg Stand, Walk and Turn) and determined that my client was intoxicated. He was arrested for DWI and taken to the station. At the station they asked him to submit to a breath test to which my client agreed. He took the test and blew a .04, well below the legal limit in Texas.
Now if you have any common sense, this just doesn’t seem right. At the end of the day the definition of intoxication is the same for both DWI and PI. What happened next was interesting. Officers usually get people to take breath tests by saying, “If you blow under the legal limit you are free to go”. Well in this case I think the officers were either embarrassed or upset, so they decided to charge him with Public Intoxication.
Per the Texas Penal Code, Intoxicated means:
(A) 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
(B) having an alcohol concentration of 0.08 or more.
So you are intoxicated in Texas if you lose your physical faculties, lose your mental faculties, or if your alcohol concentration is .08 or more. My client was not intoxicated by law in Texas, but somehow the officers thought it was ok to charge him with a “small” misdemeanor because it wasn’t that “serious”.
Lucky the prosecutor understood the law and dismissed this case after the first hearing. It’s sad that my client had to waste time and money, but justice prevailed.
Harris County has a relatively new Pre-Trial Intervention Program (PTIP) for individuals charged with a first DWI. A similar program, the DIVERT program, no longer exists, and the PTIP is now taking its place. It is similar to DIVERT, but it is much harder to get into the program. (Not all judges allow entry)
Pre-Trial Intervention Program Eligibility
To be eligible you must:
- Be charged with DWI in Harris County Texas
- This must be your first arrest of your adult life
If you have ever been arrested for any crime at all, even if the case was dismissed, you are more than likely not going to be accepted into the program. That does not seem fair at all, but at this point, that is how things are working. Juvenile convictions/arrests are ok, as long as you disclose those on your application for the program.
Factors to being rejected from PTI Program
Other things that could cause you to be rejected from the program (on a case by case, judge by judge, basis) are:
- A breath or blood test of over .15
- Getting into a traffic accident as part of the DWI
- Not having a valid license at the time of the DWI
- Not having insurance at the time of the DWI
If you are eligible for the DWI PTIP, you will have to pay $202 to be interviewed and do a SALCE (Substance Abuse Life Circumstance Evaluation) test, which is a test that predicts your alcohol and drug risk level as a part of the program.
You will also have to pay a “DA Fee” of $130 and possibly submit to a drug test. Finally, you must include a letter discussing the night of your DWI, and accepting responsibility. After all of that, if you are accepted into the program, a contract is drawn up by the District Attorney’s office for you to fill out with your attorney.
Contract with the District Attorney
Typical contract terms include:
- 1 year program
- Community service
- Monthly fees
- Monthly meetings
- Random drug tests
- Ignition interlock device
- DWI education class
Other items such as AA classes/counseling/drug treatment can be added as recommended based on the SALCE exam, and the circumstances surrounding the case. After the contract is filled out, you go before the judge, and the judge enters you into the program. You meet with the probation officer of the court, attend an orientation that same week, and start your monthly meetings the following month.
The case is reset for 1 year, and if you successfully complete all of the terms and conditions of the program, the case is dismissed on your next court date. However, if you do not comply with the terms and conditions, the program can be terminated at any time, and your case continues as if there was never an agreement.
For more information about the Harris County DWI Pre-Trial Intervention Program, please contact us today for a free consultation.
In Texas, DWI laws consider anyone who is under the age of 21 to be a minor. In Texas , driving on the roads implies that you are giving police officers implied consent to check your breath or your blood for the presence of alcohol or other drugs. This means that just by driving, you are already agreeing that it is ok for an officer to ask you to take a breath or blood test. If you refuse to do so your driver’s license could be suspended for 180 days on the 1st offense and 2 years on the second. If you do not have a driver’s license, then your driving privileges will be suspended the same number of days or years once you become eligible. Now this doesn’t mean you have to take a test, it is perfectly legal, and sometimes smarter to refuse any test that an officer might want you to take.
Texas has a zero tolerance law for minors and alcohol. That means that if you are not yet 21, that you cannot have ANY alcohol in your system at all. Even if you are under the legal limit of .08. For a 1st offense you could face:
- Suspended TDL for up to 2 years
- A fine of up to $500
- A class involving alcohol education
- An ignition interlock in your vehicle if you do keep your license in some way
- A possible additional suspension through a criminal judge
- And any fines, court costs, probation fees, legal fees that might result from your arrest
If you do get a suspension it is possible to get an occupational license in Texas by going through the criminal court. Whether or not an occupational license is granted will depend on who the judge is, and the facts surrounding your case. If you are in this situation and have a question to whether or not you are eligible, please give me a call at 713-222-2828 and I will be glad to look at your case.
If you are in the unfortunate situation of being a minor (or being the parent of a minor) who is charged with an alcohol related offense, it is very important to hire a criminal defense attorney as soon as possible. Many times there are fast approaching deadlines (like a 15 day deadline to request an Administrative License Revocation Hearing – ALR) that must be dealt with. If certain deadlines are missed, it becomes much more difficult and sometimes impossible to prevent the drivers license from being suspended for some amount of time.
Again, if you have any questions about your particular situation, please call my office at 713-222-2828 and I will do my best to advice you on your next steps.
I recently wrote about the fact that many individuals are not aware that jail phone calls are recorded. As a Houston DWI Lawyer I see individuals saying things they shouldn’t and getting themselves into trouble. Unfortunately I also see people sitting in the back of police cars running their mouth for minutes and minutes at a time. This is not smart, and there are a few reasons why.
First, you should never make any statements about your case to anyone other than your attorney…period! You are never going to talk your way out of getting arrested, but you can easily talk your way into a conviction! The dumbest things you can do when arrested is talk to an officer, or make some sort of statement that is recorded and can be used against you.
Second, there are usually cameras in DWI units! Everything you say is going to be recorded. The prosecutors (along with you and your attorney) are going to get a copy of the video and all of your wonderful words are going to be there for everyone to hear. If you say dumb things, or make yourself look like a fool, the assistant district attorney working on your case is going to take notice. You can turn a perfect dismissal into a potential trial just by saying the wrong things.
Finally, if you do end up having to go to trial, the jury is potentially going to see the video and listen to your words as well. It is human nature to either instinctively like someone or not. If you make yourself look and sound like a bad person, that’s what a jury is going to perceive you as. And the last thing that you want is a jury thinking poorly of you. On the other hand, if the jury doesn’t have any rambling video of you, they are more than likely never going to hear from you. It is much better to have them know nothing about you, then to have them form an opinion based on a few seconds of anger/disappointment/fear.
Bottom line is don’t talk and be aware of your surroundings! If you are reading this it might be too late, but maybe you can tell your friends and they can tell their friends and so on. Any Houston DWI Attorney will tell you the same thing. Make them prove you’re guilty based on the evidence at hand, not on what you say. If you are arrested, contact a DWI Lawyer in Houstonwho can help you today.
Recently a person here in Harris County was looking for a DWI Attorney in Houston. This individual was a hardworking man who was genuinely concerned about money. He had been placed on probation for DWI and one of the conditions required him to place an ignition interlock device in his vehicle. Even though this cost him about $75 a month, he had to do it because it was ordered by the judge.
This individual signed a paper regarding this interlock device that had a few rules that he had to follow. Basically he could only operate a vehicle that was equipped with this device, he had to take the device in for monthly maintenance, and he was not allowed to tamper with the device or circumvent the system.
Well this person happened to be a mechanic, and he knew all the ins and outs of vehicles and machinery in general. He was having many problems with the interlock device that they had placed in his car. Sometimes it wouldn’t work, it would beep and make funny noises, and one time in particular it left him stranded. He was at a store and when he got to his vehicle the machine would not work. Since the machine wouldn’t work, the car wouldn’t turn on. So what he decided to do was use his knowledge to take the machine apart and drive to the company so they could fix it.
He drove to the company, told them what happened, and they installed a new one. What they didn’t tell him was that they were going to report him to the court for tampering with the device. The next thing he knew, he was back in court dealing with a motion to revoke his probation based on him tampering with the interlock.
This obviously doesn’t seem fair, and it’s not, but he could have handled it another way. He was concerned that if he told the company they would have to tow the car and that would cost him money, but he should have at least called. By not calling anyone it hurt his case, and called into question what really happened.
Now this person ended up hiring another DWI Lawyer in Houston, so I don’t know what happened, but I am hoping that they reinstated his probation. But it is a good reminder to follow the rules. As dumb as they may be at times, it is your life and your liberty on the line. If anything like this happens to you, or if you have any questions before you make a decision similar to his, just consult with your Houston DWI Attorney. There is a very good chance that your attorney has seen someone with a problem very similar to yours and can help.