Killeen DWI, DUI and DUIA Defense Lawyers

What are felony DWI crimes in Central Texas?

According to the Texas Penal Code, the following DWI offenses are considered felonies in Texas.

• Intoxication assault. This offense applies to anyone who operates a car or other vehicle, an aircraft, a watercraft, or an amusement ride while they are intoxicated – if they are operating the vehicle/device in a public place and they cause someone a serious injury. A serious bodily injury is a precise legal term that means an injury which “creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.” Unless an enhanced penalty applies, this felony DWI offense is a third-degree felony. An intoxication assault DWI becomes a felony of the second degree if the injured person is a “firefighter or emergency medical services personnel while in the actual discharge of an official duty,” and a felony in the first degree if the person injured is peace officer or a judge who was acting in the “actual discharge of an official duty” at the time.
• Intoxication manslaughter. This felony DWI applies for operators of motor vehicles, watercraft, aircraft and amusement park rides – if the operator is intoxicated and the intoxication causes death. No intent is required. A driver can be charged with intoxication manslaughter if the death is due to an accident or mistake. This DWI offense is a second-degree felony unless an enhanced penalty applies.
• Third-time offense. A third offense is a third-degree felony DWI. Penalties can include fines up to $10,000, loss of license from 180 days to two years, and two to 10 years in prison. Driver’s license fees can be assessed between $1,000 and $2,000 on a yearly basis, and you may be required to install an ignition interlock device. Conviction of a felony can also result in the loss of the right to own a firearm, as well as a wide variety of other collateral consequences.
• Driving while intoxicated with a child passenger. If you have a minor under age 15 in the car and are arrested for DWI, you may be charged with DWI with Child Passenger. This enhanced charge is a state jail felony, with fines up to $10,000 and between 180 days to two years in jail.

What is the DWI “superfine” in Texas?

As of September 1, 2019, Texas started imposing an additional “superfine” for DWI convictions. Anyone convicted of DWI who was not put on probation may have to pay thousands of dollars more. Per Texas Transportation Code § 709.001:

49. In this section, "offense relating to the operating of a motor vehicle while intoxicated" has the meaning assigned by Section 49.09, Penal Code.
50. Except as provided by Subsection (c), in addition to the fine prescribed for the specific offense, a person who has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated shall pay a fine of:
    1. $3,000 for the first conviction within a 36-month period;
    2. $4,500 for a second or subsequent conviction within a 36-month period; and
    3. $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

The court has the power to waive this fine if the defendant is indigent.

What are enhanced DWI offenses?

If you’re charged with enhanced offenses in addition to your Killeen DWI, you can be facing much more serious consequences. What might normally leave you with fines and probation could end up being a felony crime.

The following offenses can be considered felonies:

• Flying while intoxicated if you have two prior DWI convictions.
• Boating while intoxicated, if you have two prior DWI convictions.
• Assembling or operating an amusement park ride while intoxicated if you have two prior DWI convictions.

What are the BAC amounts that can result in a DWI charge?

Drivers whose BAC is at or above the following amounts can be charged with driving while intoxicated in Texas:

• .08 for any driver. This is the legal limit across America.
• .04 for a commercial driver. Commercial drivers are generally anyone with a commercial driver’s license, like truckers.
• .02 for minors. This strict BAC limit applies if a driver is under 21. This generally means any amount of alcohol can be detected.
• .15 for any driver. In this case, a DWI offense will be upgraded.

Generally, in DWI cases where the BAC is above one of these limits, our attorneys fight charges by showing that the breath test is either inadmissible, unreliable, or that there are extenuating circumstances.

Which breath tests are used in Texas?

One breath machine that Texas has approved for law enforcement is the Intoxilyzer 9000. The Intoxilyzer 9000 uses the scientific principle of “infrared spectrometry.” According to the Texas Breath Alcohol Program Operator Manual, breath testing instruments must meet the following requirements:

• Expired breath specimens need to be analyzed
• The device must use a reference system where the results agree with +/- .01g/210 L of the nominal value or such limits as set by the Scientific Director
• The procedure should be appropriately and adequately specific for the determination of alcohol concentration for law enforcement.
• Other tests that the Scientific Director deems required must be met. For example, the Director requires that the officer stay in the subject/driver’s continuous presence for 15 minutes before the test is given and should use reasonable care so that that the person taking the test doesn’t place anything in his/her mouth.

What factors can affect BAC results?

Some of the factors that skilled DWI breath test lawyers review, sometimes with the help of breathalyzer machine experts, include:

• The temperature of the person who took the test
• The depth of your breath when you breathe into the breathalyzer machine
• Any physical conditions, such as heart problems or diabetes, you have
• Your sex
• The variance of the test results that may indicate a problem with the breath tests or the breath test machine
• Whether the officer clearly explained how the breath test machine works

Each test operator must be certified on a yearly basis – by November 1 of each year. In addition, every other year, the officer must complete a renewal course and a renewal exam.

How can you challenge breath test results in Central Texas?

Breath tests can be contested based on a variety of defects. These include:

• Use of breath test machines that haven’t been approved
• Use of breath test machines that haven’t been properly validated
• Use of breath tests administered by an officer who isn’t certified
• Failure to maintain the equipment properly
• Failure to administer the test properly

Other challenges may apply, depending on the basis for stopping you in the first place, when the test was given, and where it was given.

What are the three standard field sobriety tests?

A study from the U.S. Centers for Disease Control (CDC) found that 4.2 million Americans admitted to drinking and driving in the prior month. The NHTSA authorizes only three field sobriety tests for use across the nation, including Texas. These tests were designed and based on controlled laboratory studies, and are as follows.

Horizontal gaze nystagmus test

In this test, the officer will ask the driver to step out of their car and move away from any flashing lights. The officer should check to see if you use contact lenses or have a problem with your vision other than wearing glasses. The police officer will hold a stylus, flashlight, or pen about 12-15 inches from your eyes. He/she will then ask to you to follow the stylus/flashlight/pen with your eyes while keeping your head still. Everyone has some involuntary bouncing eye movement when they follow an object. The HGN test checks to see if the bounce is exaggerated. The officer will also look to see at what point in the movement of the object your eyes bounce.

This test is often the one sobriety test that is subject to the strongest challenge. Officers aren’t trained eye doctors. They often fail to record the movements they saw or fail to be able to distinguish the eye movements from normal eye movements.

Walk and turn test

Here, the officer should explain the test and show you how it’s done. After asking you if you understand, the officer will then ask the driver to stand toe-to-heel. You should then walk in a straight line, turn around, and then walk back towards the officer. As you walk, your heel of your front foot should touch the toe of your rear foot. The officer will watch your feet while you walk to see if you:

• Keep your arms at your side while you walk
• Walk in a straight line
• Count out loud incorrectly as you walk
• Stop or stumble while walking
• Lose your balance
• Take nine steps in each direction
• Start before the officer stays to start
• Don’t turn properly

There may be legitimate reasons why you fail this test other than intoxication. For example, the road may not be level, or the officer didn’t explain how close your heel and toe need to be together.

The one-leg stand test

In this test, the driver will be asked to stand erect with one foot raised off the ground for up to 30 seconds. The officer will ask you to count while your foot is raised. The officer is looking to see:

• How long you can hold your foot off the ground
• If you can count correctly
• If you need to use your arms to keep your balance
• If you move sideways or hop while performing the test

As with the walk and turn test, there may be simple legitimate reasons for failing the test. For example, you may have a bad leg, you may be tired, experience normally poor balance, are overweight or have a health condition that affect your ability to do any physical test.

The police officer is giving these tests to determine if there is probable cause to give more invasive breath or blood tests. The tests can also be used as evidence without the chemical tests.

What if I refuse to take a breath test or submit to a field sobriety test in Central Texas?

Texas has an implied consent law which requires that all drivers submit to a breath test (provided the police officer had grounds to request the breath test). Drivers who refuse a breath test will face an administrative license suspension, which can result in a loss of your driver’s license for up to 180 days. Drivers do have the right to contest the license suspension at an administration license suspension hearing – within 15 days. A subsequent refusal can result in a two-year suspension.

 

Unlike breath or blood tests, if you refuse to submit to the three field sobriety tests, there is no direct penalty, such as a suspension of your license for failing to take the tests. However, the refusal to take the tests can be introduced at your DWI trial. By virtue of obtaining their driver’s license, Texans give their implied consent to breath and blood tests, which can result in losing your driving privileges for 180 days (or more for prior DWI arrests).

If you refuse the breath test:

• You will likely be arrested for DWI, even if you were perfectly sober.
• The officer will need to rely on the breath test or blood test results, which may show low readings, which means you could be released. They could also show that your blood alcohol level is more than .08, which means you’ll be arrested.

Can I get my driver’s license back after a DWI arrest?

After you’re arrested for a DWI, you have 15 days from the date of your arrest to request an administrative license revocation (ALR) hearing. If you don’t make this request, your license will be automatically suspended – so it’s in your best interest to hire an attorney to request this hearing immediately. This hearing can restore your ability to drive until further judgement is made. This is a civil process separate than your criminal charges. Talk to our attorneys for details.

Is your DWI/DUI lawyer near me?

Mary Beth Harrell Criminal Defense and DWI Lawyers is located in Killeen, but we serve Harker Heights, Waco, Copperas Cove, and throughout Central Texas. Rest assured, however, that if you are unable to come to Killeen, we will travel to visit you. We also offer virtual conferences and telephone consultations.

How can a Killeen felony DWI defense lawyer help?

Our skilled Killeen felony DWI attorneys can assert many different legal defenses, depending on your particular circumstances. Some of the possible defenses include:

• Challenging the right of the police officer who stopped you
• Asserting that any statements you made violated your Fifth Amendment rights
• Asserting that any field sobriety tests or breath tests were invalid
• Contesting that the specific terms of the felony DWI statutes were met
• Asserting lack of probable cause for the initial stop and/or arrest
• Arguing that the prosecution did not prove its case beyond a reasonable doubt
• Misconduct on behalf of the police officer that made the stop
• Other legal and factual issues relevant to your legal defense

We have been able to get many DWI cases dismissed or reduced to a lesser charge throughout the state, and have helped veterans facing DUI charges seek assistance through treatment courts. We have saved our clients thousands of dollars in fees, fine and surcharges. We have saved their driver’s licenses from getting suspended, and saved them from a conviction that would follow them for the rest of their lives.

Smart, strategic DWI defense attorneys serving Killeen

If you’re facing drunk driving charges, you need a lawyer who knows the local prosecutors, judges and police. The Mary Beth Harrell Criminal Defense and DWI Lawyers has been practicing law for decades, and work to protect your rights when arrested for a criminal offense. We know what it takes to defend a DWI case and we want to defend you. Let us help. Contact us today at 254-680-4655 or by filling out our contact form. We have offices in Killeen, Copperas Cove, and Waco, and handle in-custody visits for clients who cannot come to us.

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