By Benson Varghese

Driving While Intoxicated Defense

Being charged with Driving While Intoxicated in Fort Worth, or anywhere in Texas, does not require an allegation that the driver intended to get behind the wheel while intoxicated. As a result, DWI charges are common. Our Fort Worth DWI lawyers have defended individuals from every walk of life who were arrested for a DWI – doctors, lawyers, pilots, nurses, firefighters, barbers, plumbers, even elected officials. If you or a loved one has been arrested for a DWI in or around Fort Worth, then this article is for you. We will cover the following topics:

What is a DWI in Texas? How do you beat a DWI? What are the possible outcomes of a DWI charge? Can I avoid jail time on a first-time DWI? How much does a DWI cost in Texas in 2020? What will happen to my driver’s license after my DWI arrest?

Why should you listen to us?

Before we get started, let’s talk about why we are an authority on DWIs, and in particular, DWIs in Tarrant County. First and foremost, we have tried more DWI cases to juries than almost anyone you’ll meet. The firm’s partners have tried over 300 DWI, Intoxication Assault, and Intoxication Manslaughter cases to juries in Tarrant County. To understand how adept we are at challenging evidence, it’s important to realize that 98 percent of DWI cases in Fort Worth are resolved through pleas. If there’s a weakness in a case, we will find it and leverage it for the best possible outcome. There’s no substitute for real-world trial experience when it comes to defending a case. The prosecutors know as soon as we walk in, we’re coming in with vastly more experience than they have.

Whether your case is one we take to trial, contest in a motion to suppress, or negotiate a favorable outcome, we will be informative and transparent every step of the way. You’ll find that from our first conversation to the last, we are uniquely understanding, up-front, and talented. So let’s get to it.

What is a DWI in Texas?

A first-time DWI in Texas is, at the very least, a Class B misdemeanor, punishable by up to 180-days in jail. If you look up the definition of Driving While Intoxicated in Chapter 49 of the Penal Code, you’ll probably be surprised to see the definition makes no mention of the word “driving.” Instead, to prove a person was driving while intoxicated in Texas, a prosecutor must show the following:

On or about a particular date The person accused “Operated” A motor vehicle While intoxicated.

Being “intoxicated” means:

The person lacked their “normal” mental faculties due to an intoxicant; The person lacked their “normal” physical faculties due to an intoxicant; OR The person had a blood alcohol concentration of a .08 or more.

I put the word “normal” in quotes because that is not a defined term and is one reason why a case without a breath or blood specimen might be ripe for attack.

Notice that the first two definitions of being intoxicated are completely subjective, and you can be charged with being intoxicated on any substance – prescription drugs, illicit drugs, a combination of drug and alcohol, or just on alcohol alone. We’ve defended every one of these types of DWIs in Fort Worth.

How can you to get a DWI dismissed in Texas?

Our Fort Worth DWI lawyers have gotten more than our fair share of DWIs dismissed, acquitted, and reduced. The reason for this is two-fold: First, we have a tremendous amount of trial experience in DWIs. Second, we are adept at finding weaknesses in cases that other attorneys often overlook.

Outright dismissals are rare. From 2014 to 2019, there was an average of just over 5,000 misdemeanor DWI cases filed in Tarrant County each year. Of those, only about 100 cases were dismissed each year. Here are some of the top ways we’ve gotten DWI cases dismissed in Fort Worth:

How to Beat a DWI in Texas:

1. Lack of Reasonable Suspicion to Detain

An officer has to have reasonable suspicion to stop you. Reasonable suspicion means the officer has “specific and articulable facts” that an offense has occurred. Officers sometimes get this wrong. Recently, we had a case where a driver was pulled over after not stopping before exiting a driveway at a shopping center. In this case, the sidewalk only extended on one side of the driveway, not both, which means the driver did not have to stop before leaving the parking lot. The officer got it wrong and we got the case kicked out. We have also had numerous instances in which a video negates the officer’s claimed basis for the stop.

2. Lack of Probable Cause to Arrest

An officer has to have probable cause to arrest you. This is a common area for us to attack. Most attorneys focus only on their client’s performance on the field sobriety tests. We have, however, had a number of cases where we got the results of the field sobriety tests kicked out because the officer administered the test wrong. It’s critical to do these tests right if a judge or jury is going to rely on them. On top of that, a person’s “normal” may be different based on a number of factors including the time of day, amount of rest, and past or present medical conditions – none of which the officer is really taking into account in the field. If we can show the officer failed to properly develop probable cause to arrest you, we can get the evidence against you thrown out through a Motion to Suppress.

3. The Lack of a Breath or Blood Specimen

It is rare in Fort Worth, but every once in a while, we will see a case where the officer failed to get a warrant when a person refused to give a breath or blood sample. These cases are perfect to be attacked because the only evidence the prosecutors have is subjective.

4. Lack of Probable Cause in the Search Warrant for Blood

The affidavit for a search warrant for blood must also establish probable cause in order for the magistrate to allow for a blood draw pursuant to the warrant. If the warrant lacks probable cause, it can be attacked through a motion to suppress.

5. False Information in the Search Warrant

If the officer includes false information in the search warrant affidavit, the affidavit can be contested through a Franks Hearing. This is an evidentiary hearing to determine whether the officer intentionally or knowingly – or with reckless disregard for the truth – made false statements in his or her affidavit.

6. Improper Breath Test, Blood Draw, or Lab Techniques

We stay abreast of issues with labs, lab techs, problems with testing equipment locally, as well as testing procedures. We look for issues with the testing that could get breath or blood results kicked out – which we have done successfully on multiple occasions.

7. Intoxication at the Time – Not Later

If the police are able to determine you were operating a motor vehicle, the police will then investigate whether you were intoxicated at the time of operation. The passage of time is the most important factor in this situation. The more time there is between tests for intoxication and the operation of a vehicle, the harder it is to determine intoxication at the time of operation. As soon as you consume alcohol, your body will start to metabolize it. Depending on what time your last drink was, what else is in your stomach, how much you had to drink, what you had to drink, how much unabsorbed alcohol was in your system, and how much time passed between your last drink and the time of driving, your Blood/Breath Alcohol Concentration (BAC) may:

Be higher at the time of driving than when you are test

Be lower at the time of driving than when you are tested

The same at the time of driving and when you are tested.

An experienced DWI Lawyer will have access to experts in the field to determine if and how this “retrograde extrapolation” could be applied. It’s possible that you could have provided a sample over the limit even though you weren’t intoxicated when you were driving – an important distinction to make when trying to get your case dismissed.

8. Lack of Proof

Ultimately, a DWI case in Texas may be defeated by showing the State cannot prove the accusation beyond a reasonable doubt. This is typically done through a jury trial but can also be achieved by attacking the admissibility of evidence in pre-trial hearings.

What is the punishment for a first time DWI in Texas?

Driving While Intoxicated 3-180 days in jail, up to $2,000 fine Driving While Intoxicated BAC >/= .15 0-365 days in jail, up to $4,000 fine DWI – Child Passenger 0-2 years in State Jail, up to $10,000 fine Intoxication Assault 2-10 years in Prison, up to $10,000 fine Intoxication Manslaughter 2-20 years in Prison, up to $10,000 fine

What are the possible outcomes for a first-time misdemeanor DWI in Texas?

You may be sentenced to up to 180 days (Class B misdemeanor) or 1 year (Class A Misdemeanor which is the .15 or greater offense).

You may be granted up to two years of deferred adjudication on a Class B misdemeanor.

You may be granted up to two years of probation on a Class A or Class B misdemeanor.

If your case has significant legal issues, your charge might be reduced to Obstruction of a Highway

If your case has a legal issue that results in the judge throwing out evidence, your case may be dismissed.

How likely is jail time for a first DWI?

While every case is unique, I can say with confidence that in every first-time DWI case where my client was seeking to avoid jail time and followed my advice, we were ultimately able to reach that result. Sometimes the path to get there was direct and in other cases the path to get there was difficult and involved risks such as a trial.

How much does your first DWI cost?

A first-time DWI — after attorney costs, license fees, fines, court costs, probation fees, class fees, increased insurance rates, etc. — can easily set you back $15,000 to $20,000.

How much does it cost for a DWI Lawyer?

As of 2020, a reputable DWI Lawyer in north Texas is likely going to cost you between $3,500 and $7,500 on average. Add on another $1,500 to $2,500 in attorney fees for the license issues that come up with a DWI arrest. (Compare this to the rates in 2015, when the Star-Telegram estimated these costs at $2500 and $1,000 respectively.)

Why is there such a big range in the cost of DWI attorneys? The greater demand there is for a particular attorney, the higher their prices are going to be. What creates a high demand for a DWI lawyer? More than anything else, it’s trial experience – particularly if that trial experience is in the county where you are charged with a DWI. Another major factor affecting rates is how much time the lawyer is going to dedicate to your case. Some lawyers offer “zero down” payment plans because they are volume plea mills. They take every case that comes in the door, are quick to file a motion to withdraw without refunds at the first non-payment, and are known for cramming as many pleas through the system as possible.

What’s going to happen to my license after a DWI arrest in Texas?

Before we get into how your license can be suspended, understand this is the most time-sensitive aspect of your DWI arrest. Your license can be saved, or we can get you an occupational license so you can legally continue to drive – as long as you don’t wait too long to reach out and consult with us as soon after the arrest as possible.

Your license may be suspended under the following conditions:

Breath test refusal 180-day suspension, begins 40 days after notice of the suspension unless there is an ALR hearing. You have 15 days to request the hearing. Blood test refusal 180-day suspension, begins 40 days after notice of the suspension unless there is an ALR hearing. You have 15 days to request the hearing. Breath test over .08 90-day suspension, begins 40 days after notice of the suspension unless there is an ALR hearing. You have 15 days to request the hearing. Blood test over .08 90-day suspension that begins 40 days after the notice of suspension is presumed to have been received by you. You have 20 days to request an ALR hearing. DWI Conviction 90-day to a one-year suspension imposed by the criminal court, generally goes into effect 30 day after the sentence.

How do you find the best DWI Lawyer in Fort Worth?

Being the “best” at something is somewhat subjective. Objectively, we can tell you we have more 5-Star Google reviews than anyone in town, and likely, in the state of Texas. Although we’ve received other accolades and been called the “best” or “top” lawyers by several publications (Best Law Firm by the Fort Worth Star-Telegram and Top Attorneys by Fort Worth Magazine, 360 West Magazine and D Magazine) our reviews and our results mean the world to us and speak volumes about how we’ve exceeded the expectations of our clients.

When you’re looking for the best lawyer for your case, you have a lot to consider:

Question Varghese Summersett How many DWI cases have you handled? Hundreds as defense attorneys, and thousands before that as prosecutors. How many DWIs have you taken to jury trial? We’ve tried over 300 DWIs, Intoxication Assault, and Intoxication Manslaughter cases to juries. Have you prosecuted cases? All the Partners at Varghese Summersett are former Tarrant County prosecutors. How often are you at the courthouse? With the exception of the pandemic shutting courts down, we are at the courthouse every morning. We are in front of the judges and prosecutors in Tarrant County every single day. Who will handle your case? At our firm, you will build a relationship with one of our attorneys – generally the first one you spoke to over the phone. We build that relationship so that you have one person you can always turn to, but all the firm’s attorneys are here to help you.

Want a tip on screening attorneys? Ask these two questions:

When was the last time you (not someone that works with you) were in the court where my case is pending? When is the last time you were in a jury trial?

Ultimately, deciding who is the “best” attorney for your case is a very personal decision. When you consult with a DWI attorney, the attorney should be able to talk to you intelligently about the offense you’re charged with, possible defenses, and make you comfortable with their ability to handle your case. Give us a call at (817) 203-2220 to talk to one of our Fort Worth DWI lawyers and decide for yourself.