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DWI: Texas is an at the Time of Driving State

Texas being an “At the Time of Driving State” Can Make DWI Cases a Bit More Complex

Yesterday I got an interesting DWI case dismissed.  When I first met with my client he had no clue why he was being charged with DWI.  He asked me what the legal limit in Texas was and I told him .08.  Well my client blew a .07 into the Intoxilyzer 5000, which is the breath test machine that was used in his case, hence his confusion.

So why would someone who blew UNDER the legal limit be charged with DWI?

Texas: An”At the Time of Driving State”

The problem is that Texas is an “at the time of driving state”.  This means that what is really important is what was the blood alcohol level of an individual at the actual time he was driving.  Sometimes it takes 30 minutes, but sometimes it takes hours for an individual to take a blood or a breath test after being arrested.  So how can they prove what the BAC was at the time of driving?  That’s the tough question, and bottom line is, they can’t.  The State’s experts will always say, “all I can say is that the BAC was either higher, the same, or lower” at the time of driving.

Now sometimes, they will try to formulate a guess to what the BAC was, and it truly is a GUESS.  They use what is called retrograde extrapolation.  In basic terms, retrograde extrapolation is a mathematical process based on “science” that is used to try to figure out what the BAC was of a person at a certain time.

The problem that arises is that it is RARE that we know everything we need to know about a person to figure this out.  They need things such as: time of first drink, time of last drink, when was the last time they ate, how much did they eat, what did they eat, etc.  And those are just the basic items that need to be known.  They also need to know everything about that person’s body, health, how they process food, alcohol, etc.  It’s virtually impossible to have all of this data.

So as a lawyer I see DWI cases like this from time to time, and they are always a fight.  Because there is absolutely zero percent chance that I would ever advice a client to take any sort of deal on a case where their blood or breath came back below the legal limit.  In this particular DWI case there were no extrapolation facts.  My client spoke Spanish, the officer spoke English, and the officer didn’t bother getting a Spanish speaking officer to interview him.  On top of that he looked great doing the sobriety tests, so they could not prove that he lost the normal use of his mental or physical faculties (which are the other 2 ways besides <.08 to prove intoxication). It took much longer than expected, but my client walked out of the courtroom a happy man.

Criminal Statute of Limitations in Texas

Statute of limitations is basically the time period that the state of Texas has to bring charges against someone.  These time periods are different based on the type of case, the severity of the case, whether it was a violent crime, etc.  If the time passes and the state has not brought charges, then they can never prosecute that case. 

Exceptions to the Statute of Limitations

There are some exceptions to the statute of limitations, like if the accused is absent from the state, the period could be tolled.  But every case is different.  You will also notice that certain types of crimes can have a different statute of limitations based on the facts of the case and what section of the penal code the person was charged under.  If you have a specific question, ask an attorney.

Statute of Limitations by Case

The list below shows certain types of cases in Texas and the statute of limitation associated with that type of case.  You can find all of this information in the Code of Criminal Procedure chapter 12.

Felonies in the State of Texas

NO TIME LIMIT ON BRINGING CHARGES

  • Murder
  • Manslaughter
  • Sexual Assault and Aggravated Sexual Assault
  • Fleeing the scene of an accident where someone dies
  • Certain offenses against young children
  • Human Trafficking

10 YEAR STATUTE OF LIMITATIONS

  • Theft by Fiduciary
  • Forgery
  • Theft by Public Servants (of government property)
  • Sexual Assaults not covered above
  • Arson
  • Trafficking not covered above
  • Compelling Prostitution

7 YEAR STATUTE OF LIMITATIONS

  • Misapplication of fiduciary property or property of a financial institution
  • Securing execution of document by deception;
  • A felony violation under Chapter 162, Tax Code
  • False statement to obtain property or credit under Sec. 32.32 of the Penal Code
  • Money Laundering
  • Credit Card Abuse
  • Fraudulent use or possession of identifying information
  • Medicaid fraud
  • Bigamy

5 YEAR STATUTE OF LIMITATIONS

  • Theft
  • Robbery
  • Kidnapping or Burglary (except as shown below)
  • Injury to Elderly or Disabled that is not a 1st degree felony
  • Endangering or Abandoning a Child
  • Insurance Fraud

20 YEARS FROM 18TH BIRTHDAY OF THE VICTIM

  • Sexual Performance by Child
  • Aggravated Kidnapping if defendant charged under 20.04(a)(4)
  • Burglary under 30.02 of the Penal Code

10 YEARS FROM 18TH BIRTHDAY OF THE VICTIM

  • Trafficking of persons under Section 20A.02(a)(5) or (6) of the Penal Code
  • Injury to a child under Section 22.04 of the Penal Code
  • Compelling prostitution under Section 43.05(a)(2) of the Penal Code
  • Bigamy under Section 25.01 of the Penal Code

3 YEAR STATUTE OF LIMITATIONS

  • All other felonies

Misdemeanors in the State of Texas

  • The statute of limitation is two years from the date the crime was committed.

Basic Levels of Punishment in Texas

  Maximum Fine Incarceration
Class C Misdemeanor $500.00 N/A
Class B Misdemeanor $2,000.00 up to 180 days
Class A Misdemeanor $4,000.00 up to 1 year
State Jail Felony $10,000.00 180 days 2 years
3rd Degree Felony $10,000.00 2 years 10 years
2nd Degree Felony $10,000.00 2 years 20 years
1st Degree Felony $10,000.00 5 years 99 years
Capital Felony N/A Life Death