There are several ways in which to get charged with felony DWI in Texas. Felony drinking and driving comes from either repetition, injury or death that results from an accident, or from having a child under 15 years old in the vehicle. Each of these charges has different penalties that will be discussed. DWI with a Child Under 15 is a state jail felony. Felony DWI Repetition is a third degree felony. Intoxication Assault is a third degree felony. Intoxication Manslaughter is a second degree felony. Whichever kind of felony DWI you are facing, if you have been charged with a felony arising out of DWI, it carries the possibility of prison time. You need to start planning your defense. This means talking to a DWI defense attorney, outlining the case, and developing a plan of action. This means finding and hiring the right attorney for you and your family. I take the time to understand each and every one of my clients. I sit down with them, and I listen to their story. This takes a great deal of time and effort, but I think it is essential to a powerful and persuasive defense. I encourage you and your family to come to my office, to meet me, and to see if I am the right attorney for you.
Felony DWI is Pursued Very Aggressively by Law Enforcement
It should go without saying that all criminal charges—including misdemeanors and misdemeanor DWI—are serious and should be handled with great effort and care. However, felony charges are in a different league. Felony charges are in different courtrooms. Felony charges are in District Court as opposed to County Criminal Courts or County Courts at Law. The prosecutors are more skilled and more seasoned. Felony DWI cases are pursued especially aggressively by law enforcement, and because of that they require a skilled and thorough criminal defense. A skilled and thorough criminal defense means several things from the criminal defense lawyer. There must be a complete investigation into all facets of the case. All aspects of the case must be considered and evaluated. There must be a plan of action. All contingencies must be accounted for and planned for. The goals of the case must be established early in the process. In any DWI case, the evidence must be indexed and evaluated. Much of the investigation is along the same lines for a felony case, but the stakes are much higher. In addition, if there is an accident, there needs to be a defense investigation into the accident.
Evaluating the Blood Test is Crucial in Felony DWI Case
In Texas, almost all drinking and driving cases have blood tests or breath tests. Blood tests are conducted using gas chromatography. Gas chromatography is a branch of analytical science that has a variety of different uses in different industries, such as the petroleum industry. This method is employed to separate and analyze chemical compounds. In DWI cases, the state will use gas chromatography to separate the compounds in your blood. In these cases, it is used to separate and quantify the amount of ethanol in your blood. In a misdemeanor DWI case, most police departments will give you the option to take a breath test, although this can differ depending on the police department. If you refuse to take a breath test, a warrant will be issued to get a blood test from you.
You Need an Attorney Who Asks the Right Questions About the Blood
If there is an accident involved such as in Intoxication Assault or Intoxication Manslaughter cases, there will always be a blood test. These are the most serious cases and police and the State’s Attorneys want to build the strongest possible case against you. In all DWI cases involving a blood test, there must be a thorough analysis and audit of the entire process of blood testing by the laboratory that tested it. County and District Attorneys across Texas provide defense attorneys with a blood test toxicology report. All this is a piece of paper with a number on it. The piece of paper will state a number such as .08 or .18 blood alcohol concentration, the time it was tested, and who analyzed the test.
Most DWI Defense Attorneys Do Not Understand the Science
There are many criminal defense attorneys who simply accept this number for the laboratory says it is because they do not know how to ask questions about the science. This is a catastrophic mistake in a DWI defense case. These same attorneys would never accept conclusions in other aspects of the case such as a police report that simply says “Driver A was driving while intoxicated.” This would be laughable and the lawyer would have many pointed questions about how a police officer arrived at that result, about what exactly happened, about where it happened, about what the police officer observed, and about all other factors that led the officer to probable cause to arrest and the conclusion that an offense had been committed.
However, this same defense attorney will accept the laboratory’s conclusions about the number. They will accept the laboratory’s conclusion about the number without asking how the test was validated, about how the machine was calibrated, about how the machine was maintained, about how the blood was stored, about how the analyst who tested the blood was qualified to test the blood. There are many, many questions to ask. The defense lawyer must subpoena the data to ask the right questions. It is a matter of knowledge and it is a matter of effort. If the criminal defense lawyer doesn’t poke holes in the blood test, no one will. If no doubt can be raised about the integrity of the blood test, the jury will believe that number and will have a much easier time believing the narrative the state is trying to weave. If the jurors believe the prosecutors and the state’s analyst over the defense lawyer, the verdict will be guilty. When you are dealing with a felony, the risks are too high.
What are the Different Kinds of Felony DWI?
As mentioned above, there are four separate ways to get into District Court defending a DWI. These four different charges are discussed briefly in turn below, and examined in greater detail in other pages. These charges all arise out of Chapter 49 of the Texas Penal Code. This chapter deals with intoxication offenses. All felonies in Texas must go through a different process than misdemeanors do. This is because felonies must be indicted. An indictment in Texas stems from the Grand Jury Process. A felony-level charge is first reported to the District Attorney by one of the police departments in the County. Then they are filed into a District Court. One of the prosecutors assigned to that court will take the case to the grand jury. Although the defendant and other witnesses can testify during grand jury proceedings, the grand jury process is not open. It is closed to the public and to defense attorneys. Most cases that are brought to the grand jury do get indicted. Once a case is indicted, that is when plea negotiations will begin between defense counsel and the state’s attorneys. Here are the four kinds of felony DWI in Texas:
Felony Repetition
A run of the mill driving while intoxicated charge is either a class A or a class B misdemeanor, provided there are no injuries involved, and there is not a child under 15 years of age in the vehicle. Felony Repetition (or DWI Third) is a DWI with two prior convictions for DWI. The state will use evidence of the person’s prior convictions to enhance the charge to a felony. However, the state must prove up the prior convictions. This means showing with sufficient evidence that the person was convicted for a DWI or a similar offense in another state, and that the person was represented by counsel. This can sometimes be difficult in other states if adequate records are not kept. I have defended cases in which the state was unable to prove up the priors, and the DWI charge was reduced to a misdemeanor.
Felony repetition is not limited to two prior convictions. Sometimes there are more than two. I have seen cases in which the person has four or more prior DWIs. The most I have ever heard of in Tarrant County is a guy who got his eighth DWI charge with seven prior convictions, and he had been to prison at least twice in the past. The most I have ever heard of is a guy who had ten DWI charges. Also, there are no time restrictions regarding past convictions. They can be as far back as decades. I have seen and defended felony repetition cases in which a person has priors spanning back to the 1980s or 1990s. When felony repetition cases go to jury trial, the jury gets to hear about the person’s priors when the charge is read. This can sometimes be toxic and very damaging if the defense lawyer does not get out in front of this in jury selection. Felony repetition is a third degree felony and that carries a potential range of punishment of between two and ten years in prison, and up to a $10,000 fine. Probation is available. In Tarrant County, there is a program called Felony Alcohol Intervention Program (FAIP) that can be helpful in some situations.
DWI With Child Passenger Under 15
DWI with a Child Passenger Under 15 is also a felony level DWI offense. Some people do not realize that this charge is out there, but it is definitely out there. This charge is especially hurtful to families because it is usually mothers and fathers who get tied up in this. Many times, this charge devastates people who have never been caught up in the justice system before. I have represented people who get pulled over leaving birthday parties and then get handcuffed in front of their children. To prove this charge, the state must prove that a child under the age of 15 was in the vehicle along with all of the elements of DWI: operating a motor vehicle while intoxicated. This charge is a state jail felony and this carries a potential range of punishment of between 180 days and 2 years in a state jail facility. Probation is available, although like DWI, deferred adjudication is not available.
Intoxication Assault
An Intoxication Assault charge arises when there has been an accident and someone is seriously injured. The language from the statute, section 49.07, states that a person commits intoxication assault if there is “serious bodily injury” because of intoxication. Serious bodily injury is an injury that causes a serious risk of death occurring, or permanent physical disfigurement or suffering the loss of a bodily organ or bodily member. Intoxication assault cases are quite serious and must be defended with skill and exhaustive hard work. There are the usual aspects to challenge, such as the blood tests. As outlined above, this must be looked at and audited thoroughly. However, the element of what is serious bodily injury must be questioned. The difference between injury and serious bodily injury is nebulous and unclear, and the defense lawyer must challenge the prosecutors to prove up serious bodily injury beyond a reasonable doubt. Intoxication Assault is a third degree felony, and carries a range of punishment between two and ten years in prison, and up to a $10,000 fine. Probation is potentially available, although deferred adjudication is not available.
Intoxication Manslaughter
Intoxication Manslaughter is the most serious felony DWI charge. It is the most serious and the most aggressively prosecuted. Likewise, it requires the most aggressive and thorough criminal defense lawyering. The reality of defending these charges is pressure. There are all kinds of pressure on the district attorney to punish defendants severely. This pressure comes from the families of victims, as well as political pressure. Intoxication Manslaughter is a second degree felony, and this carries a range of punishment between two and twenty years in prison, and up to a $10,000 fine. If you are facing this charge, the state will seek to put you in prison. There are certainly aspects to fight from the defense lawyer, and there must be a fight. It is crucial to retain a highly skilled criminal defense lawyer if you are charged with Intoxication Manslaughter, because your life is at stake.
