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Driving While Intoxicated (DWI)


An arrest for driving while intoxicated (DWI) in Texas can be embarrassing, frightening, and confusing for any alleged offender. When a person is facing DWI charges in the greater Houston area, it is important to obtain an experienced criminal defense DWI attorney quickly so you can preserve all avenues of attacking the prosecutor’s case. Although many people assume that an arrest always leads to a conviction, experienced DWI lawyers know that many of these offenses are dismissed or reduced to less serious charges.

Warning: After a DWI arrest in Texas, you only have fifteen (15) days to request a hearing with the Department of Motor Vehicles (DMV) to challenge the administrative suspension of your driver's license. No downside exists to preserving this important avenue of attacking the accusation.

Houston DWI Lawyer

Call Houston DWI attorney Matt Horak to discuss the particular facts of your case. Although this website has been created to provide you with general information on specific aspects of fighting the DWI charge, there is no substitute for discussing the particular facts of your case with an attorney so you can obtain advice on how to best protect your driver's license, criminal record, and reputation.

Some of the types of alleged drunk driving cases that Horak Law handles include:

Avoiding a DWI conviction can save you thousands of dollars in court imposed expenses such as fines, court costs, and cost of supervision. Even more importantly, avoiding a DWI conviction can also spare you several indirect expenses associated with a DWI conviction including increased car insurance rates and damage to your educational or career opportunities. The best thing you can do is hire an experience DWI Attorney.

Horak Law can help you with both your criminal case and your administrative license revocation hearing with the DMV to ensure that your case receives the proper consideration in both settings. If you have been arrested for DWI in the greater Houston area, including Harris County, Montgomery County, Fort Bend County, Brazoria County, Galveston County, Liberty County, or Waller County, contact our office to schedule your immediate, and confidential consultation with experienced DWI attorney Matt Horak. Call to discuss the specific facts of your alleged drunk driving case.


Information about DWI Charges in Texas


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DWI Statistics in Texas

Texas has a drunk driving problem. Statistics from the Center for Disease Control show that Texas had at least 10,000 more DWI related fatalities then every other state other than California which only had a 3,000 less deaths than Texas between the years of 2003 and 2012. 

Fatalities are of course the worst possible outcome from someone driving while intoxicated but those numbers only represent a small percentage of total crashes due to drunk driving. The last statistical report by the Texas Department of Transportation (DPS) reveals that there were 23,760 DUI related crashes in 2017 alone. Of those crashes 910 resulted in a fatality. About half of the total crashes resulted in an injury. 

The Houston area, unsurprisingly, accounted for the most DWI related crashes of any city in the state, making up about 13% of all total drunk driving accidents. Harris County, had 2,896 DWI crashes in 2017.

Texas lawmakers and lawmen are very much aware of these sobering statistics. Every legislative session new laws are introduced to curb the drunk driving problem in the state. Law enforcement officers are also hyper vigilant and looking to crack down hard on DWI offenders.

For the year of 2016 the Texas DPS reported that there were 85,843 DWI charges. Of those charges, only 2,087 resulted in a release with no charges and only 1,600 cases were dismissed. Harris County made up 9,922 of those charges, the most of any county in the state. Almost assuredly, the majority of those who are convicted are those that represented themselves without the help of a DWI attorney.


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DWI Definitions under Texas Law

Under Texas Penal Code § 49.04, a person commits the offense of DWI if he or she is intoxicated while operating a motor vehicle in a public place. Intoxicated is defined as either having an alcohol concentration of 0.08 or not having the normal use of mental or physical faculties by reason of the introduction of:

  • alcohol;
  • a controlled substance;
  • a drug;
  • a dangerous drug;
  • a combination of two or more of the substances listed above; or
  • any other substance into the body.

Whether or not you are intoxicated is typically determined by Texas law enforcement officers through chemical testing of your breath or blood alcohol concentration (BAC). The legal BAC limits are as follows:

  • 0.08 for licensed non-commercial drivers over the age of 21;
  • 0.04 for motorists with commercial driver’s licenses (CDLs); and
  • 0.02 for drivers under the age of 21.

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Harris County DWI Breath Tests

A "breathalyzer" is a machine that is used for measuring the blood alcohol content of the body from a breath sample. Since it is a breath sample that is used and not a blood sample, the breathalyzer machine cannot measure directly the amount of blood alcohol content in the blood. Instead, the machine makes various assumptions that can impact the reliability of the result produced by the machine. Factors that can lead to an inaccurate result can include:

  • The temperature of the surrounding air or your body temperature;
  • The breathing patterns of the individual taking the test;
  • The hematocrit levels of the individual taking the test;
  • Improper calibration of the Breathalyzer machine; or
  • The presence of “interfering compounds” such as acetone or methyl tertiary-butyl ether (MTBE).

The breath test machine used in the greater Houston area in Harris County and throughout the rest of Texas is called the "Intoxylizer 5000." The machine is manufactured by a company called CMI, Inc. in Owensboro, Kentucky.

The Texas Intoxilyzer 5000 relies on outdated technology that often mistakenly assumes that other substances in the breath are alcohol which leads to inaccurately high readings. For these and many other reasons, it is important to have an experienced DWI defense attorney like Matt Horak review all aspects of your DWI case if you submitted to the breath testing on the Intoxilyzer 5000.


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Effects of Houston DWI Breath or Blood Test Refusal

To blow or not to blow? The state of Texas has an implied consent law. This means that if you receive a driver’s license in the Lone Star State, you have automatically consented to a chemical test of your blood, breath, or urine to determine your BAC or the presence of any drugs.

A person still has the right to refuse to consent to any chemical test, but refusal to submit to one of these requested tests during a DWI arrest will lead to further administrative consequences.

Benefits of Refusing the DWI Chemical Testing in Texas

You should know that you cannot be forced to submit to a breath or blood test in most cases. Certain benefits exist when the driver decides not to submit to the breath or blood test, including:

  • The prosecutor will be left without any scientific documentation of your BAC at the time of your arrest to use against you at trial;
  • You will not be forced to defend yourself against an inaccurate Intoxilyzer 5000;
  • It may be more difficult for the prosecution to prove DWI, especially if you have also refused to take the field sobriety test.

For any of these reasons, refusing to take the breath or blood test may make it more likely that you will be able to avoid a DWI conviction.

Disadvantages of Refusing the DWI Chemical Testing in Texas

Of course, certain disadvantages also exist after refusing to take a chemical test. First, the administrative consequences imposed by the DMV may be harsher after a refusal than after the driver blows over the legal limit. The administrative consequences that could result may include the following:

  • A first refusal offense can result in a 180-day license suspension;
  • If an alleged offender has had his or her driver’s license previously suspended for failing or refusing a blood or breath test, or for a DWI, intoxication assault, or intoxication manslaughter conviction in the prior 10 years, his or her driver’s license will be suspended for two years.

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DWI Criminal Case vs. Administrative Case in Harris County

When a person is arrested for DWI, there are two cases that are triggered: a criminal case and a civil case. The criminal case is prosecuted through the criminal court system according to the Texas statutes pertaining to DWI. The criminal case can result in varying penalties depending on the severity of the charges, ranging from classes to fines to jail time.

The other case that is triggered is a civil case reviewed solely by the DMV. The DMV reviews the case for an Administrative License Revocation, also known as an ALR. An ALR can result from refusal to submit to chemical test or a result of 0.08 or greater when a chemical test is taken.

Once the DMV serves a driver with notice of an ALR, the driver has 15 days to request a hearing. If the driver fails to request a hearing, the suspension automatically goes into effect on the 40th day after the notice from the DMV has been served. This is why it is imperative that you contact a DWI attorney immediately after your arrest, as the window for response to the DMV notice is narrow.


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The Criminal Penalties for DWI under Texas Law

Under Texas law, the penalties for a DWI conviction depend on whether you have been previously convicted of this crime. Understanding the potential punishments after a DWI arrest requires understanding both the direct and indirect consequences. The below will give you a basic idea of what you are facing but a DWI attorney will be able to evaluate your case and give you more context. 

First DWI under Texas Law

In the state of Texas, a first-time DWI is a Class B misdemeanor. Punishments can include, but are not limited to the following:

  • $2,000 maximum fine;
  • Up to six months in jail;
  • Driver’s license suspended for up to one year;
  • Annual fee of at least $1,000 up to $2,000 every year for three years to keep driver’s license;
  • Completion of 12-hour DWI Education Program within 180 days of when probation was granted or risk having their license revoked; and
  • At least 24 hours up to 100 hours of community service.

Second DWI under Texas Law

In the state of Texas, a second DWI is a Class A misdemeanor. Punishments upon conviction can include, but are not limited to the following:

  • $4,000 maximum fine;
  • Up to one year in jail;
  • Driver’s license suspended for up to two years;
  • Annual fee of at least $1,000 up to $2,000 every year for three years to keep driver’s license; and
  • At least 80 hours up to 200 hours of community service.

Third or Subsequent DWI

A third DWI in the state of Texas is a third-degree felony. A third DWI conviction or guilty plea can result in the following punishments:

  • $10,000 maximum fine
  • Up to 10 years in prison
  • Driver’s license suspended for up to two years
  • Annual fee of at least $1,000 up to $2,000 every year for three years to keep driver’s license;
  • At least 80 hours up to 200 hours of community service. 

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Felony DWI

A DWI offense is considered a felony once a person is convicted of three or more DWI offenses. Under Texas law, a third conviction for DWI is classified as a third-degree felony. The Texas Penal Code Section 12.34 lays out the punishments for third-degree felonies. The mandatory minimum punishments include:

  • A fine not to exceed $10,000;
  • The court can impose jail time in the Texas State Prison system for not less than two (2) year or more than ten (10) years;
  • The court can impose up to two (2) years of probation or community supervision;
  • The court must order an ignition interlock device (IID) which requires a deep lung air sample to be provided before the vehicle will start for all individuals convicted of a third or subsequent DWI crime as a condition of bond and before the individual can obtain any provisional or occupational driver's license that might be awarded after the DWI conviction;
  • As part of the community control (probation), the court must impose at least 160 hours of community service but may require up to 600 hours of community service;
  • Driver's license suspension of not less than 6 months or more than 2 years (which does not begin until any period of confinement is served).

If you have prior DWI convictions in Texas or another state, it's vitally important to seek the services of a criminal defense attorney experienced in handling Texas DWI cases. A conviction for a felony DWI charge will have far greater consequences than a misdemeanor conviction.

What are the punishments for a DWI with Minor in Vehicle conviction?

It is a felony in the state of Texas to operate a vehicle while intoxicated with a minor under the age of 15 in the vehicle. If an individual pleads or is found guilty of a DWI with a minor in the vehicle, punishment may include the following:

  • A fine of up to $10,000; and
  • A prison term of at least 180 days and up to 2 years.

What are the punishments for a DWI with Serious Bodily Injury offense?

If a person gets charged with a DWI with Serious Bodily Injury, it falls under intoxication assault according to the Texas Penal Code. Intoxication Assault is a third-degree felony in the state of Texas. Below are the possible penalties for a conviction of intoxication assault or DWI with Serious Bodily Injury.

  • Incarceration - After a conviction for intoxication assault, the Court is required to impose a prison term of not less than two (2) years in the Texas State Prison (Texas Department of Criminal Justice Penitentiary), although the court is permitted to impose a prison sentence of up to 10 years behind bars;
  • Probation - If you are convicted of intoxication assault, the court must impose a minimum of 30 days in the county jail which must be served as a condition of probation. If the court or jury finds that you used a deadly weapon to commit the offense then you may be completely ineligible to receive any kind of a probationary sentence;
  • Community Service Hours - Texas law provides that the court must impose at least 160 hours of community service to any probationary term, but the court is permitted to impose up to 600 hours of community service; and
  • Fine - A fine of up to $10,000.

What are the penalties if I get convicted of intoxication manslaughter?

Texas law provides for certain penalties and punishments that the court must impose after a conviction for intoxication manslaughter including the following:

  • Incarceration - After a conviction for intoxication assault, the Court is required to impose a prison term of not less than two (2) years in the Texas Department of Criminal Justice Penitentiary (also known as the Texas State Prison System), although the court can impose imprisonment of up to 20 years behind bars;
  • Community Service Hours - Texas law provides that the court must impose at least 240 hours of community service to any probationary term, but the court is permitted to impose up to 800 hours of community service; and
  • Fine - A fine of up to $10,000.

Felony DWI charges carry heavy penalties in the state of Texas. Generally, people drink and drive with the intent of making it home safely without harming or killing anyone. However, sometimes you do get into a car accident while intoxicated and someone gets hurt or killed. In order to mitigate the damage done to your criminal history that felony DWI charges cause, contact an experienced lawyer to help you achieve a good result in your felony DWI case.


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Commercial Vehicle DWI under Texas Law

A commercial vehicle driver with a BAC of 0.04 or higher is considered intoxicated under Texas state law. Any driver operating a commercial vehicle in Texas with a BAC of 0.04 or higher can be subject to all of the punishments handed out for other drivers who had a BAC of 0.08 or higher. In addition to those penalties, CDL drivers may be subject to the following penalties:

  • For a first DWI, loss of the CDL for at least one year; and
  • For a second DWI, loss of the CDL for life.

Any CDL driver convicted of a DWI in Texas, whether while operating a commercial vehicle or a private, non-commercial vehicle, can face suspension of the CDL license. If you are convicted of a DWI in another state, that state will report the conviction to the state of Texas.

Matt Horak represents CDL drivers charged with DWI and other serious traffic crimes in Houston, TX including reckless driving.


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DWI with Minor in Vehicle

It is a felony in the state of Texas to operate a vehicle while intoxicated with a passenger who is a minor under the age of 15. If an individual pleads or is found guilty of a DWI with a child passenger, this is a state jail felony punishable by the following:

  • A fine of up to $10,000; and
  • A prison term of at least 180 days and up to 2 years.

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Texas DWI Resources

Texas DWI Laws - Summary of DWI laws from the Texas Alcoholic Beverage Commission (TABC). The TABC is the state agency that oversees the alcoholic beverage industry in the state. The job of the commission includes regulating advertising, manufacturing, taxation, sales, transporting, and importation of alcoholic beverages.

National Highway Traffic Safety Administration (NHTSA) Standardized Field Sobriety Testing — NHTSA is a federal agency within the United States Department of Transportation, and this appendix provides an overview of the three standardized field sobriety tests recognized by most courts. These include Horizontal Gaze Nystagmus, Walk-and-Turn, and One-Leg Stand tests. Any other tests (such as various alphabet-related tests) may generally be found to be flawed or inadmissible in a court of law.

Texas Department of Transportation Statistics - The Texas Department of Transportation releases crash statistics every year. Follow this link to find official statistics from the state for all crash types including DWI accidents. The statistics are organized by county, age, and injury among other categories. 

Faces of Drunk Driving — This website is part of a public education program from the Texas Department of Transportation. The site features the stories of drivers, accident victims, and family members. There are also videos and tips on what you can do to prevent a tragedy.


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DWI Attorney in Houston | Texas DWI Defense

Defending a DWI charge in the state of Texas requires an experienced lawyer who understands how to effectively fight all aspects of the case. In order to ensure that you have the best assistance negotiating the maze of administrative and criminal hearings, contact Houston criminal defense attorney Matt Horak to discuss your case. You can call us locally at (713) 225-8000 or toll-free at (800) 225-8009 or you can submit our online contact form.

If you've been arrested for DWI anywhere in the greater Houston area, including: Harris County, Montgomery County, Fort Bend County, Brazoria County, Galveston County, Liberty County, or Waller County, don't wait to begin your defense. Contact Horak Law today and schedule your consultation.


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Our Office in The Woodlands
1790 Hughes Landing Blvd #400 The Woodlands, TX 77380 (281) 907-4990
Our Office in Houston
5300 Memorial Dr #750 A Houston, TX 77007 (713) 225-8000
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Matt Horak Matt Horak is Board Certified in Criminal Law by the Texas Board of Legal Specialization since 2014

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