If you have two prior DWI convictions and are charged with a third DWI in Texas, you are facing significantly steeper consequences. In Texas, first and second DWIs are charged as misdemeanors but the third is charged as a felony. If you are facing a third DWI in the Greater Houston area, do not panic. There are many ways to keep another DWI and a felony conviction off of your record but you should contact an experienced DWI lawyer as quickly as possible.
What are the penalties for a third DWI in Texas?
A third DWI is charged as a third-degree felony with a potential punishment of 2-10 years in prison and a $10,000 fine (additionally, if you have a prior conviction for intoxication manslaughter, a second DWI would also be treated as a third-degree felony.). Probation is also a possibility but many prosecutors and judges are reluctant to offer probation in felony DWI cases. Under Texas Code of Criminal Procedure 42A.401(a)(2), if you are granted probation in a DWI third case, you will have to serve 10 days in jail as a condition of probation (unless the case is “reduced” to a misdemeanor). Probation for a felony can be as long as ten years for a DWI third. Texas law does not permit early termination of a DWI probation.
Beginning in September 2019, the Texas legislatures replaced the fines against those convicted of DWIs with so-called “super fines” under Texas Transportation Code 709.001. For repeat offenders, this fine is $4500 if there is a prior DWI. Arguably, this should only be applicable to DWIs occurring after September 1, 2019. Additionally, although this fine is automatic upon condition, your criminal defense lawyer can ask the judge to make a finding of indigency that would cause the fine to be waived.
What bond conditions can I expect for a third DWI in Houston, Texas?
Under Texas Code of Criminal Procedure 17.40(a) a magistrate may impose any “reasonable” conditions of bond related to the safety of a victim of the alleged offense or to the safety of the community. This provision gives judges fairly broad discretion to order bond conditions in a criminal case. Exactly what bond conditions are ordered will vary greatly from court to court and judge to judge.
One bond condition that is required for all repeat offenders under Texas Code of Criminal Procedure 17.441(a) is an ignition interlock while a person is a bond. This means that if the judge permits you to drive, it will be on the condition that you obtain an ignition interlock (typically at your own expense) while you are on bond. The judge has some discretion here and can choose to not require the device if it would not be in the best interest of justice.
Of course, many judges will not allow defendants charged with a felony DWI to drive at all. In the Greater Houston area, several judges have a general policy that prohibits anyone charged with a felony DWI from driving. If your judge has this policy, your criminal defense attorney may be able to convince him to make an exception in your case to allow you to drive to work or school. Under Texas law, it is possible for a judge to issue even more restrictive conditions in a DWI third such as home confinement or a come curfew, with the costs of monitoring assessed to the defendant. Fortunately, restrictions this severe are not common in Houston area in DWI cases.
Other common bond conditions can include random drug and alcohol tests, restrictions on travel, and (unsurprisingly) conditions against committing new law violations. The unfortunate reality is that many judges abuse their right to set bond conditions and set overly strict conditions that are not tied to the offense and don’t reasonably make the community safer. This is why it is a good idea to have a criminal defense lawyer advocating for you when the conditions are set early in the case, usually at your first court appearance.
You should remember that whatever bond conditions the judge sets in your DWI case will remain in effect throughout the case unless the judge agrees to modify them. It is extremely important that you fully understand your conditions and abide by them. If you do not, your bond could be revoked and you could be held in jail, possibly without bond in some circumstances. In any case, involving alcohol or drugs, you should always assume that you could be randomly tested for drugs or alcohol whenever you come to court, even if that is not an explicit condition of your bond.
What driver’s license suspension am I facing?
In DWI cases, your driving privileges can be suspended either as a result of a conviction in a criminal case, or as a part of the Administrative License Revocation (ALR) case. Both types of suspension are potentially longer if you are charged with a DWI third.
Under Texas Transportation Code 521.344(a)(2)(A), if you are convicted for a third DWI because you pled guilty or you were found guilty at trial, you are facing a driver’s license suspension of one to two years, if your second DWI was within five years. If your second DWI is older than five years, your license could be suspended between 180 days and two years.
If you are charged with a third DWI and lose your ALR case, you may also be facing an extended suspension. For a refusal (in other words, where it is alleged that you refused to provide a breath or blood specimen), the normal suspension period increases to two years if your driving record shows one or more alcohol or drug-related “contact” (which includes prior convictions for some drug or alcohol offenses or prior refusals. For a failure (in other words, having a result above a .08), the suspension period increases to one year if there is a contact within the 10-year period preceding the current arrest. It is critical that you remember that you only have 15 days from the date of your arrest to request your ALR hearing in a DWI third.
Can I get it dismissed or reduced? How are they defended?
Absolutely. The goal of a third DWI case is to get the case dismissed or reduced. The goal is always to avoid jail time and to protect your record from a felony and misdemeanor conviction.
The strategy to defend a DWI third is generally the same as any other DWI. Your criminal defense attorney must first obtain all of the evidence in the case. In a DWI, this includes the police report, videos, blood or breath results, and discovery. Compared to misdemeanors, more DWI third cases involve a blood draw so it is critical that your attorney obtain the discovery from the lab relating to the collection, storage, and testing of the blood sample, as well as records relating to the maintenance of the machines that did the blood testing.
DWI cases are best defended by thoroughly attacking each stage of the investigation. This begins with the stop or the reason for the detention. Did the police have a valid reason to stop you? Did they investigate the case in a reasonably quick manner? Did they properly administer the Standardized Field Sobriety Tests? Did they properly advise you of your rights regarding giving a breath or blood sample? Did they put pressure on you to give a sample to make it involuntary? Were technical requirements relating to the giving of a breath sample complied with? Was the blood drawn in a sanitary way and was the sample properly preserved?
Because of the technical nature of these and other issues that must be investigated, it is critical that your criminal defense attorney has experience in DWI investigations and the science behind breath and blood testing. Once all of the evidence in your DWI third case is received (in the Houston area – this can currently take six months or longer), your criminal defense attorney should carefully review the evidence with you and discuss your options. Criminal cases are either dismissed, pled, or go to trial. The goal is always a dismissal.
How much does a third DWI cost?
Unfortunately, the direct and indirect financial consequences of a third DWI can be huge. If you are placed on bond, you may have to pay for an interlock or alcohol monitoring device, supervision fees, and drug testing fees. If you are placed on probation, you will be facing similar fees plus potential fines (which are addressed above), and restitution (if there was an accident). This can total many thousands of dollars, but the exact amount will vary based on your court, the facts of your case, your criminal history, and other factors.
The cost of a lawyer can vary greatly and is usually tied to the level of experience of the attorney. An inexperienced attorney who is unlikely to obtain an excellent result will charge as little as $2000 for a DWI third in the Houston area. High-end attorneys charge as much as $50,000 for felony DWIs (or more for cases involving accidents). In many cases, you pay for what you get with an attorney, and it is usually not advisable to hire a lawyer based on cost alone.
How do I choose the right lawyer for a third DWI in Houston?
DWIs are highly technical cases that involve more science and specialized police procedure than most other criminal cases. Therefore, the first thing you should look for is an attorney who has focused on mastering all aspects of DWI cases. This includes the law behind traffic stops, DWI investigations, standardized field sobriety testing, police procedure in DWI investigations, and the science of breath and blood testing. It is also important that your attorney is familiar with the courts of a particular county. Criminal defense is based more on relationships than many people realize. A truly effective criminal defense attorney will be familiar with not only the judges and prosecutors but also court staff and even many police officers (DWI task for officers for example). It is also critical that your attorney is a good communicator, who makes himself available to you to answer questions, guide you through the process, and help you make informed decisions regarding the outcome of your case.
Attorney Jose Ceja is a former prosecutor who worked for almost a decade at one of the top DWI firms in Texas. He has undergone extensive training in all aspects of DWIs. He is certified to administer Standardized Field Sobriety tests and has completed training on blood testing at the renowned Axion Labs in Chicago. He regularly obtains excellent results for his clients throughout the Greater Houston area. If you are charged with a DWI third, Mr. Ceja is happy to offer you a free consultation to discuss your case and your options. Contact us today.
