Without a doubt, keeping a second DWI off of your record is even more important than a first. The stakes are much higher because of the increased penalties and the fact that a second DWI on your record can be significantly more detrimental to your record than a first DWI. Prosecutors will also treat your case more seriously than a first DWI. Fortunately, there are strategies to keep a second DWI off your record. This article discusses the increased penalties for a Second DWI, as well as strategies to beat the case.
Interlock and Second DWIs
Under Texas Code of Criminal Procedure 17.441 anyone charged with a DWI Second must have an interlock device as a condition of bond. This means that any vehicle you drive must have an interlock device. A judge may only not require an interlock device if he or she finds that requiring the device would not be in the best interest of justice.
Similarly, under Texas Code of Criminal Procedure 42A.408, the court is required to assess an interlock as a condition of probation to anyone punished as a subsequent offender, although the interlock is not required if the prior DWI conviction is older than 10 years. If a defendant is required to operate a work vehicle an interlock will not be required if the employer has been notified of the restriction.
If you have a prior DWI conviction a Second DWI is a Class “A” misdemeanor which carries a potential 30-day minimum jail sentence (if you were to be assessed jail instead of probation). If you receive probation, there is a mandatory three-day (72 hour) term of jail that is required (jails in Houston and most Texas county will not give you special credit). The fine is up to $4000.
There are a few things to keep in mind. First, the first DWI must have been a conviction at the time that you are arrested for the second. That means that if you have two pending DWIs (in other words, if you have not been convicted of the first), then they will both be treated as DWI 1sts for sentencing purposes. However, there is no longer a “remoteness bar” meaning that it doesn’t matter what age your prior DWI conviction is.
Additionally, it is sometimes possible for your DWI lawyer to convince the prosecutor to treat a second DWI as a DWI first for sentencing purposes. This is done by “removing the enhancement,” in other words, the allegation that makes a DWI first a second. Even though this additional conviction would be a second for many purposes, it can allow you to avoid the days in jail as a condition of probation.
Conditions of Probation
If you are placed on probation for a DWI Second, you will also be subject to some special conditions. First, under Texas Code of Criminal Procedure 42A.408 the judge must issue an order for an interlock that prohibits you driving any car without an interlock. The device must stay in your vehicle for at least half of your probation.
Second, under Texas Code of Criminal Procedure 42A.404 you must complete an approved DWI education program for repeat offenders within the period required by the judge.” If this program is not completed, DPS can revoke your license.
Driver’s License Suspension
If you are arrested for a Second DWI, the potential for a longer driver’s license is also increased. As with a DWI first, you will face a potential driver’s license suspension from the Administrative License Revocation (ALR) case, and also from a suspension upon a conviction in the criminal case.
If your driver’s license has been previously suspended as the result of a DWI conviction or an ALR suspension, you will be subject to increased suspension periods in the ALR case. For an ALR that is alleged to be a refusal, the suspension period increases from 6 months to 2 years if you have an alcohol or drug related suspension in the last 10 years. If your ALR is alleged to be for a failure (if you gave a sample that tested over the legal limit after you were arrested for a Second DWI), then you will be facing a 1-year suspension if you had an alcohol or drug related suspension in the last 10 years. In the criminal case, a second conviction regardless of the date of the first will trigger a driver’s license suspension from 180 days to two years.
Fortunately, if you face a driver’s license suspension for any reason related to a Second DWI, you will be eligible to obtain an Occupation Driver’s License. This license will allow you to drive to work and perform other necessary household functions (like going to the grocery store or getting kids from school). As you can see, the laws relating to driver’s license suspensions after a Second DWI can be quite confusing so it is good to clarify the above with an experienced DWI attorney.
Any DWI can be expensive and subsequent DWIs are even more costly. In the Houston area, you may be less likely to get a free bond on a second DWI. Also, as noted above, an interlock will typically be required for every Second DWI by law in Texas. Also, the potential fine for a DWI increases to up to $4000 for a DWI Second on Conviction.
How are DWI Seconds Defended
In general, the strategy for defending a DWI Second is the same as the strategy for defending a first DWI. A criminal defense attorney must obtain all of the discovery, including the videos, breath or blood results, offense reports, and breath or blood discovery.
Every stage of the investigation must be aggressively challenged. This begins with the traffic stop or detention. The basis for the stop must be valid in a DWI case. For example, in the Houston area, it is common that police officers stop a suspect for failing to maintain a single lane. Although this can sometimes be a valid basis for a stop, your attorney should obtain the video. Swerving is sometimes exaggerated or even fabricated by law enforcement officers. Whatever the basis alleged for the stop, your criminal defense attorney should aggressively challenge it.
Next, your criminal defense lawyer should challenge the way the investigation was conducted. This includes the way that balance tests (known as “Field Sobriety Test”) were administered. The length of the detention itself should be challenged. The police may not prolong a DWI investigation any longer than necessary.
From there, the sufficiency of the facts the police rely on for the arrest must be challenged as well as the way a person was advised of his or her rights before agreeing to give a breath or blood sample.
One of the most important reasons to keep a DWI Second off of your record is because a third DWI becomes a felony. The best way to avoid a felony DWI is to never get a Second DWI. Attorney Jose Ceja is a former prosecutor who has handled hundreds of DWIs and obtained countless dismissals and not guilty verdicts in DWI Second cases throughout the Greater Houston area. Ceja Law Firm prides itself on thoroughly and aggressively defending DWI Second charges. Call today for a free consultation.