Driving While Intoxicated – Austin Texas

The Legal Limit. The legal limit for intoxication in Texas is .08 blood alcohol concentration (BAC). However, drivers can be stopped and cited for impaired driving due to alcohol or other drugs regardless of BAC. Texas also has a zero tolerance law:  anyone under 21 may not drive with any detectable amount of alcohol on his/her breath.

How Much is Too Much? Impairment begins with the first drink.  Gender, body weight, the number of drinks consumed and the amount of food in one’s stomach affect the body’s ability to handle alcohol. Women, younger people and smaller people often have lower tolerances.

If You're Stopped. If a law enforcement officer asks you to complete field sobriety tests or to provide a blood sample or breath specimen to measure how much alcohol is in your system, you should REFUSE.

Although you are subject to an automatic 180-day driver’s license suspension for refusing, you will likely be able to obtain an occupational driver’s license and continue driving to meet your daily needs and vastly improve your ability to defend yourself against the intoxication charge.

First DWI Conviction:

In most circumstances a person convicted of DWI for the first time will not be required to spend additional time in jail but will receive community supervision (probation).  The maximum term of probation is two years.  As a condition of probation the person will be ordered to pay a fine, report to a probation officer, perform community service, abstain from the use of alcohol and attend an alcohol education course.  In addition, a person's driver's license may be suspended for up to 1 year.  However, if you receive community supervision and take the court ordered alcohol education course you will be able to keep your license much of the time.

Note: If an open container of alcohol is present, the minimum period of confinement is increased from 3 to 6 days

Punishment could include:
• up to a $2,000 fine
• 72 hours to 180 days in jail
• driver’s license suspension: 90 days to 1 year

Second DWI Conviction:

A person convicted of a second DWI faces a minimum term of confinement of 30 days in the county jail up to a 1 year maximum, plus a fine not to exceed $4,000,00.  A person convicted of a second offense is eligible for community supervision (probation, but will be required to serve a minimum of three days in jail as a condition of community supervision.  Driver's license suspension is 180 days to 2 years.

Punishment could include:
• up to a $4,000 fine
• 30 days to 1 year in jail
• driver’s license suspension: 180 days to 2 years

Third & Subsequent DWI Conviction(s):

A third DWI conviction becomes a felony if, during the previous ten years, the person has been convicted of at least one DWI.  A third DWI carries a term of confinement of 2 to 10 years in prison.  If community service is granted a minimum of 10 days in jail will be required.  The person's driver's license will be suspended for up to 2 years.

Punishment could include:
• up to a $10,000 fine
• 2 to 10 years in penitentiary
• driver’s license suspension: 180 days to 2 years

Underage Drinking 

Click for Common Police Mistakes in a DWI investigation.

Click for Texas DPS Surcharge Information.

Click for Standardized Field Sobriety Testing Information.

Click for Occupational Driver's License Information.

What Happens After a DWI Arrest in Texas?

Generally speaking, following an arrest for DWI in Texas, you will be taken first to the police station or county jail.  Either on your way to the station or jail or after you arrive, you will be asked to submit to a breath test, blood test, or possibly a urine test.  Keep in mind, you are already under arrest and you are not going home if you take the breath test and pass. You will still be charged with driving while intoxicated by not having the normal use of your physical or mental faculties. Whether you provide a specimen or not, you are then booked into the jail or transported from the station to the jail. It is in your best interest to REFUSE to provide a sample.

Once you are booked and in the holding cell, you will be allowed to make collect telephone calls and to obtain telephone numbers from your mobile telephone. Within twelve to sixteen hours, you will be seen by Pretrial Services for an interview. They will rank you according to flight risk and your bond will be set according to a schedule used by the judges. The bond amounts in DWI generally range for $1,000.00 to $2,500.00.  If you qualify, you may be allowed to make an unsecured bond subject to the conditions of release set by the judges and monitored by Pretrial Services. This process, however, is lengthy.

Contacting an attorney or bail bond service almost always obtains a person’s release from custody sooner than waiting on the person to be processed by Pre-trial Services and to ultimately see a judge.  However, in some counties, the person must appear before a judge before bonding out.  Currently, Williamson County requires this.  Either way, your first court setting will generally be within ten days after your arrest.

A Note About Your Driver's License and

Administrative License Revocation (ALR):

To preserve your right to drive in Texas, you must request a hearing within 15 days of the date you were served with a Notice of Suspension. In most cases, this is the day of your arrest. If you timely requested a hearing to contest your license suspension, you will be able to continue to drive unless an Administrative Law Judge rules against you and authorizes the Department of Public Safety (DPS) to suspend your driver's license. If you lose at the hearing, your driver's license will be suspended and you cannot drive unless you obtain an occupational driver's license. In some cases, the suspension may be stayed (temporarily prevented) by the filing of an appeal. It is our opinion you should always request a hearing. Information can be learned, through the Administrative License Revocation process, which can be vital to your defense of your DWI. If your license is suspended at the hearing, you may be able to secure an occupational license to drive. More on this subject is covered under Driver's License Revocation.

First Court Setting:

At the first setting, the judge may advise you of the charges and of certain rights that you have because you have been charged with the commission of a crime.  At the initial court appearance, you lawyer may get an opportunity to look at the State's file and at the police offense report to determine what the police claim that you did. In some counties, the District or County Attorney will not allow their file to be examined and more formal discovery will be necessary. It is very important that you not wait for the first court appearance to seek legal advise and to hire a lawyer.  Valuable rights and evidence that will affect the ability to defend the DWI case may be lost by waiting months or even weeks. Competent lawyers will seldom advise a client to plead guilty and accept a plea bargain at this initial appearance, since there is usually a great deal of work to be done in investigating the case and preparing possible defenses.  Thus, you should expect that you will leave your first court appearance with a new date to return to court.  Also, having an attorney may minimize the number of times you are required to personally appear in court, as your attorney may be able to take care of these appearances for you.

Other Pretrial Court Appearances:

After the initial court appearance, you may have additional court appearances depending on how your case progresses. These court settings have different names depending on the county and the court. Some common names include "Announcement," “Pre-trial” and "Plea" Dockets. Regardless of the name, these settings are additional opportunities for your lawyer and the prosecutor to discuss the case, for your lawyer to talk to the judge (if necessary) about the case, and for your lawyer to otherwise continue to develop the facts and law relevant to your case. During these settings, the prosecutor will usually make a plea bargain offer.

Between these court appearances, your attorney should also be working on your case by obtaining other information and documents relevant to your case. Some of this material will include obtaining a copy of the video tape/DVD, obtaining the police officers' training records, obtaining any police dispatch tapes and audio communications by the officers in your case, obtaining any mobile data terminal (MDT) logs from computer communications by the officers in your case, obtaining documents and affidavits related to the license revocation proceeding, obtaining documents and records related to the breath test machine (maintenance, repair, etc.) and the results of the breath test if you took one. Between the court appearances, you should meet and talk with your lawyer about the progress of the case, you should personally view the video (if there is one) of your arrest or of you at the station, and you should know what plea bargain offer (if any) has been made by the State.

At the conclusion of these pretrial settings, you will have to make a decision concerning whether you want to accept the plea bargain offer made by the State or whether you want to proceed to trial. Even if you initially think you are inclined to want to work out a plea bargain with the prosecutor, the case should still be investigated and prepared. Frequently, better plea bargains are available as a result of information obtained during a complete investigation. If a complete investigation does not occur, you cannot be sure that you will be getting the best available plea bargain offer.

Pretrial Motions and Hearings:

Depending on the facts and circumstances of your case, there may be pretrial motions that need to be filed and there may need to be hearings before the judge on those motions. Sometimes, these motions and hearings occur before the final decision about whether to proceed to trial and sometimes they occur after the decision has been made to proceed to trial. Similarly, depending on the case, the court, the issues, and the judge, the motions may sometimes get heard by the judge well before trial or may not get heard until the time of trial. The most common contested motion is a Motion to Suppress Evidence. The trial court may suppress some or all of the evidence against you if your constitutional rights have been violated. For example, if the police officer did not have specific, articulable facts amounting to reasonable suspicion to make a traffic stop, then the initial stop would be unlawful and any evidence obtained thereafter is not admissible against you at a trial. Similarly, if the legal procedures for a breath test were not followed in your case, then the breath test results may not be admissible in your case. Sometimes, for strategic reasons, it is better and wiser to leave these issues to be resolved at trial. Whether and how this occurs will depend on the facts and circumstances of your case.


Sometimes misdemeanor cases set for trial in Austin (Travis County) do not go to trial on the first trial setting. However, this does not mean you can appear in court half-prepared, because you never know for sure. The point is, you should be aware that you may make more than one trip to the courthouse for your trial before the case is actually tried. The trial is to a jury of your peers, consisting of six people in a misdemeanor and twelve people in a felony, unless you are in the unusual circumstance of requesting a trial to the court or "bench trial." Depending on the facts and circumstances of your case, a DWI trial can last from one to five days. Most DWI trials last two to three days. The trial is divided into several parts: the jury selection or voir dire; the opening remarks; the State's case-in-chief; the defense case-in-chief; and closing arguments.

Unless you testify during the defense case-in-chief, the only time during the guilt-innocence phase of the trial that you will say anything to the judge or jury is just before opening remarks when you are arraigned before the jury (when the formal charges are read in open court) and you announce to the judge and jury that you plead NOT GUILTY. Even though you may not say anything else to the judge or jury, your role is far from passive. You should listen closely to the testimony and make notes of things you think your lawyer needs to know. Unless your lawyer has instructed you otherwise, you should not distract your lawyer during witness’ testimony. Save the things you need to talk about for breaks and intermissions between witnesses. Although the things you need to tell the lawyer are important and your lawyer needs to know what you think, distracting your lawyer while a witness is testifying may cause your lawyer to miss something that requires an objection or a question on cross-examination.

Punishment and Sentencing:

In the unfortunate event the jury returns a verdict of guilty, the trial will, in a sense, start over. This is called the punishment phase of the trial. Each side gets a chance to make opening remarks, put on their case-in-chief and make closing arguments. However, the issues during this phase of the trial are limited to matters relevant to the punishment of the accused. Punishment may be conducted by the judge or by the jury. In the event you want the jury to assess punishment, you must file an Election as to Punishment before trial.

The range of punishment after conviction for a first offense DWI is from three to 180 days in the county jail and up to a $2,000 fine. If you have never been convicted of a felony in Texas, in any other state, or in the federal system, then you are eligible for probation (now called community supervision in the State of Texas), which may be for as long as three years. If you receive probation, the judge will set the terms and condition of probation.

If you have previously been convicted of DWI and the State successfully proves your prior conviction, then the range of punishment is from six days to one year in the county jail and up to a $4,000 fine. If you are eligible for and receive probation, you must, nonetheless, spend at least three days in jail as a condition of probation.

If you have at least two prior DWI convictions and at least one of them has been within the last 10 years, your current DWI offense may be a felony. If you are convicted of felony DWI, the range of punishment is from two to ten years in the State penitentiary and up to a $10,000 fine. If you are eligible for and receive probation, you must, nonetheless, spend at least ten days in jail as a condition of probation.

Just because you have previously been charged with or convicted of DWI does not automatically mean that the State will be able to convict you of an enhanced DWI offense. There are a variety of ways, depending on your individual facts and circumstances, potentially to prevent the State from using or proving the existence of your prior convictions. These facts and factors are among the things that your lawyer should investigate in advance of the decision to proceed to trial.