You always think you are not as intoxicated as you are, and after your second DWI, you were never going to let it happen again, but it did. You are facing your third DUI offense and are wondering what happens now.
In Texas, a third offense DUI/DWI is a felony and can lead to time in prison and other consequences that will follow you for the rest of your life. The first step you need to take is to hire an Austin DWI attorney. An attorney with experience in this area of law can mean the difference between you going to prison or retaining your freedom.
Third DWI Has No Look-Back
Driving while intoxicated (DWI) is illegal in every state, but each state establishes its own laws and penalties for the offense. In Texas, the lowest offense is a Class B misdemeanor, the highest a second-degree felony.
Intoxication is not only alcohol, it can be due to prescription medication or any other substance you have in your system. It does not require the legal intoxication level of .08% BAC (blood alcohol concentration) for a conviction. If you are unable to mentally or physically operate normally due to your consumption of a substance, you may receive a DWI charge.
As the term “innocent until proven guilty” states, when the state prosecutes you for DWI they have the burden of proving your guilt. There are seven (7) elements to the crime of DWI: (1) a person (2) on or about a certain date (3) operated (4) a motor vehicle (5) in the county in which the crime is being prosecuted (6) in a public location (7) while intoxicated.
If the state is unable to meet the burden of proof on every element of the crime, then you will be found not guilty. If you have two prior convictions for driving under the influence (DUI) or driving while intoxicated (DWI) these will be used against you, and you will face third offense DUI penalties.
There is no “look back period” in Texas. It doesn’t matter whether those convictions were two (2) weeks ago or forty (40) years ago, they will be used against you.
If you are arrested within ten (10) years of a prior drug or alcohol law enforcement contact, even if there was no conviction, the Department of Motor Vehicles (DMV) may impose an enhanced driver’s license suspension and fees.
Refusing or Failing a Breathalyzer
When law enforcement asks you to take a breathalyzer test and you refuse, it is treated as a test failure. Texas has an “implied consent” law. The law requires drivers who are facing arrest for DWI to submit to the BAC test.
Once you take the officer’s test, you have the legal right to have a blood test taken within two (2) hours of your arrest by a medical professional of your choosing at your expense.
If you refuse to take the BAC test, the officer must explain to you the consequences of your actions. This includes fines, losing your driver’s license, and jail time if found guilty. You do not have the right to speak with an attorney prior to taking the BAC test and a refusal will be used against you in court.
Law enforcement will confiscate your driver’s license and you will have fifteen (15) days from the date of your arrest to file a written objection to the suspension. If the DMV does not receive notice that you are contesting the suspension, your license will be suspended. The penalty for a BAC refusal begins at one hundred eighty (180) day suspension up to two (2) years.
When DMV looks at licensing penalties for a DWI, not only prior DWI convictions but also refusals to take a BAC test and BAC failures count as prior enforcement contact.
Third DUI Court Penalties
In Texas, a third DWI is a third-degree felony. A conviction will result in you serving a minimum of two (2) years but no more than ten (10) years in prison. If you receive a minimum of two (2) years, the court may probate the majority of that sentence.
Probating the sentence means that as long as you comply with a supervised release program you will be able to avoid serving the majority of that sentence behind bars. It is the Judge’s decision on whether you need to serve your entire sentence in lock-up or may receive probation. Even with a plea that provides probate of the sentence, there is a non-waiver of a minimum of ten (10) days in jail.
To receive probation the prosecution must offer it to you as part of a plea bargain, and the judge must approve of this provision. Part of your probation will include completing up to six hundred (600) hours performing community service. You will also be required to attend substance abuse counseling or classes and to participate in a DWI intervention program.
A third offense also includes fines of up to $10,000.00. The judge will decide how high your fine will be. That fine does not include additional financial obligations for court costs, counseling fees, interlock device costs, and DMV mandatory surcharges for three (3) years to maintain a driver’s license.
Suspension of Driving Privileges
Just as the court penalties increase with a third DUI conviction, so does the period your driver’s license will be suspended. With a third DWI, you will have a mandatory two (2) year suspension. When it is time to get your license back, the court will likely require you to have an ignition interlock device (IID).
An IID is a device that requires you to blow into it (take a breathalyzer) prior to being able to turn on your ignition. The vehicle will not start if it detects any alcohol on your breath. You will also be required to blow into it periodically when you are driving.
There are other responsibilities that come with an IID, such as when having your motor vehicle serviced in a way that interferes with the operation of the IID. You may need to take additional steps if you fail a test, including going immediately to a police station for a breathalyzer for verification you are alcohol-free.
Fail readings may result in the immediate removal of your license, requiring additional legal assistance from a DWI attorney to prove your innocence. Problems may arise if someone else drives or attempts to drive your vehicle and they fail the test.
Additional Consequences of a Third DUI Conviction
When facing a third DUI charge, it is easy to concentrate on the obvious court and driving penalties, but the results of a conviction stretch into other aspects of your life. This may include:
- Loss of employment
- Difficulty finding work
- Difficulty obtaining housing
- Loss of your professional license
- Loss of your right to own firearms
- Being barred from receiving government benefits
- Negative impact on your personal and professional reputation
Repeat drunk driving offenses not only impact you personally but also cause problems with your personal relationships, including your marriage.
Improve Your Chances
The best way to improve your chances in court when facing a third DUI charge is to contact the law offices of Hamilton and Grant. Located in Austin Texas, we have a team of attorneys with experience in criminal and drunk driving offenses.
If you or a loved one are facing criminal charges for a DWI, call (512) 279-6600 as soon after you receive the charge as possible. We will work hard to obtain the best outcome possible.