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Charged with DWI in Harris County? Representation By The Best Houston DWI Lawyer Is Critical

If you have been criminally charged for

allegedly driving under the influence, DWI

Attorney Charles Johnson represents clients

throughout the state of Texas in state and federal

courts from his convenient located office locations

in Houston, Dallas, Austin and San Antonio. The

Charles Johnson Law Firm provides the highest level

of representation in assisting our clients through the

rigors of a DWI case. After you are charged with

DWI in the Houston area, you are confronted with an

unpleasant truth: anyone who drinks and drives is

subject to arrest, whether or not they are actually

affected by alcohol. However, being charged does

not mean being convicted. Contact Houston DWI

Lawyer Charles Johnsondirectly anytime day or

night at (713) 222-7577 to discuss your case.

Hire the Best Houston DWI Lawyer: The Charles Johnson Law Firm

When someone gets arrested for a DWI, they get a lot of advice from almost everyone around them; friends,

family, co-workers, and sometimes even the arresting officer gives you advice about what to do. It probably

seems like everyone has a different answer for what is “the best thing to do.” And then you may have

received some annoying letters from attorneys who do not even know you, some of which can be very

intimidating, frightening, or just plain obnoxious.

The fact is that no two DWI’s are alike, because penalties and options vary depending on the facts of what

happened, your prior record, the county and city you were arrested in, and the status of your driver’s license.

To get superior DWI representation, you need the best of these three things:

KNOWLEDGE.

The Best Houston DWI lawyer will be familiar with the city and county of your offense and should know how

that jurisdiction treats DWI cases like yours. Houston Lawyer Charles Johnson is aware of the current DWI

statutes and case law, which changes all the time. Finally, your DWI lawyer should take the time to know

about your situation so the goals of your case suit your individual needs.

STRATEGY.

DWI cases are not easy to win, and the justice system is not about to do any favors for DWI offenders in

today’s anti-DWI society. An effective strategy is one that preserves every possible opportunity to impact the

various penalties you will be facing. That is the key to superior DWI Defense Strategy: preserving and taking

advantage of opportunities. Whether it is for purposes of arguing the issues of your case, negotiating a

settlement, or controlling the timing of the penalties you will be facing, a solid strategy will help you come out

of this with as little damage as possible.

DEDICATION.

The Best Houston DWI Attorney will devote an adequate amount of time and resources to your defense. You

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do not want an attorney that does not take the time to explain the ins and outs of your case to you every step

of the way. You DO want a DWI lawyer who is passionate about defending DWI cases. Our DWI

clients have taken advantage of our Knowledge, Strategy, and Dedication for honest solutions to their DWI

problems. Don’t let another day go by before you start working on your case. Contact the Best Houston

DWI Lawyer Charles Johnson today at (713) 222-7577 for a free case evaluation.

About DWI in Texas

In Texas, the legal limit for intoxication is .08 BAC. If an officer thinks your driving is impaired, you can still be

stopped and arrested for DWI regardless of your BAC. Penalties get worse with every DWI offense.

Texas is a national leader in many areas?unfortunately, one of these is in the number of accidents and deaths

related to driving while intoxicated (DWI). Each year, thousands of Texans are involved in this tragedy; about

2,000 of them die.

Texas is also a zero-tolerance state for underage drinking; any detectable amount of alcohol in drivers under

21 is a crime. Yet young drivers account for many alcohol-related traffic accidents, and the age group with the

most violations and accidents are those between 21 and 34. Remember, teens and young people are actually

more prone to reaching higher alcohol concentrations more quickly than older drinkers. Size and body weight

also play a role. Big Uncle Fred may be able to toss back those shots of tequila and maintain an allegedly safe

BAC but younger, smaller people may not be able to accomplish this feat.

While a DWI conviction requires a BAC of 0.08% or above, any driver can be cited for “driving while impaired”

by drugs or lower concentrations of alcohol.

Texas DWI Penalties for Drunk Driving

Driving while intoxicated, first offense, is a Class B Misdemeanor that is defined at Texas Penal Code §49.04.

That provision states that, “A person commits an offense if the person is intoxicated while operating a motor

vehicle in a public place”.

This definition sets forth the elements that must be proven to sustain a conviction. Those elements are:

The defendant, on or about a particular date

Was operating a motor vehicle

In a public place (street, highway, beach, parking lot, etc)

In a particular county

While intoxicated The Texas legislature has specifically defined the term “intoxication”, as that term is

used for prosecution of DWI cases {Texas Penal Code§49.01(2)}

In addition, there are two definitions to encompass those who do or do not submit to chemical testing:

1) “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 those substances, or any

other substance into the body; or

2) having an alcohol concentration of 0.08 or more.”

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It is important to note that the law provides for intoxication by the introduction of any intoxicating substance

into the body. This is designed to make our roadways safe from dangerous drivers.

Typically, proof at trial is restricted to alcohol unless some statements or other indications suggest that the

driver has become impaired by some other substance. Equally as important, being on prescription drugs is

not a defense to a DWI prosecution. If the label suggests that ingestion will impair one’s ability to operate a

motor vehicle or machinery, taking such medicine and driving may subject you to DWI arrest and conviction.

At trial, the State therefore may prove intoxication in three (3) different ways:

not having the normal use of physical faculties OR

not having the normal use of mental faculties OR

having an alcohol concentration of 0.08 or more

The jury does not have to be unanimous on the manner and means of intoxication, only that the person was

intoxicated.

Plus, intoxication must occur and be proven to occur while driving. Many other States provide for prosecution

of a “lesser included” offense other than DWI (i.e. reckless driving, impaired driving, driving under the

influence, etc.). Texas however has no lesser included offense of DWI. Some counties offer plea bargain

agreements to other charges than DWI, but they are the exception and not the rule.

Classifications and Range of Punishment for DWI Conviction

DWI, 1st Offense: Class B Misdemeanor in Texas

Fine

A fine not to exceed $2,000.

Jail

Confinement in the County Jail for a term of not less the 72 hours nor more that six (6) months.

Open Container

If there was an open container of alcohol in your car when arrested, the minimum term of confinement is six

(6) days in the county jail.

Community Service

Texas law mandates that a judge order not less than 24 hours nor more than 100 hours.

Absent unusual facts, most persons convicted of a first offense DWI are granted community supervision

(“probation”) of any confinement ordered. The general length of DWI probation is from 1-2 years. There are

also conditions of community supervision ordered that are fairly standard in most courts. Typical conditions

imposed are: Drug/Alcohol Evaluation. A person convicted of DWI will be required to submit to evaluation for

probability of committing DWI in the future and/or to disclose a potential problem with alcohol or drug abuse.

If a problem is detected, additional terms and conditions of probation are ordered to be administered through

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the Community Supervision Department. Attend and complete an approved DWI Education class within 180

days from the date of conviction (Satisfying this requirement will avoid the one (1) year drivers license

suspension, unless if you were a minor (under 21) at the time of the offense.) Attend and complete a Victim

Impact Panel. This is a forum that presents victims of drunk drivers to address persons convicted of DWI and

warn of the dangers and perils of driving while intoxicated. Work faithfully at suitable employment, commit no

other crimes, remain at the same residence and employment unless notification is given to the community

supervision officer, report monthly to the supervision office, pay all fines and costs in a timely manner. Pay a

monthly supervisory fee. Perform a specified hours of community or volunteer service. NOTE: If convicted,

you will be given an Order Granting Probation. This Order will be specific and unique to your case and fully

sets forth the terms and conditions of your probation which apply to you. It is the blueprint for your probation.

Additional Conditions of Probation that may be Ordered:

If your case presents unusual facts (accident, alcohol problem, prior alcohol contacts, bad driving record etc.),

additional conditions may be ordered. Most conditions are designed to address a problem that appears from

the facts or alcohol/drug evaluation that is performed on the subject after conviction. Again, a specific order is

given after each conviction. The following list is only a general discussion of conditions that have been

imposed in some DWI cases in my experience and may not apply to you.

Deep lung air device

This provision requires that you install and maintain a device on any car which you intend to drive during

probation. The device requires a breath sample before it will allow your car to start. Some devices require

periodic breaths while driving. This condition is sometimes recommended after an unfavorable drug/alcohol

evaluation during a first-offense probation, and is almost always ordered as a condition of bond on a

subsequent offense arrest.

Alcohol Treatment

Attendance at AA or other counseling programs offered through the probation department. In extreme cases

outpatient programs may be ordered. This condition is recommended after an unfavorable drug/alcohol

evaluation.

Consume no alcohol

Most courts require that a person not consume any alcohol during probation. This provision is monitored by

periodic and random urinalysis at the probation office. Some courts will not even allow a probationer to enter

a bar, tavern or lounge where alcohol is sold and consumed.

Confinement

Again, in some extreme circumstances, the Court may order that a DWI offender serve confinement in the

county jail as a condition of being granted probation.

Restitution

If there was an accident followed by a DWI arrest, and if your insurance company has not paid damages to

the other party, restitution of any unpaid amounts will be ordered by the Court as a condition of probation.

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Enhanced Penalties (Prior alcohol or drug related criminal history)

Under Texas law, if it is shown that a person has been previously convicted of DWI, the punishment and

penalties after conviction are increased or enhanced. The prior DWI conviction must have occurred within ten

(10) years of the present arrest for DWI. Additionally, if a person has any prior DWI conviction within the

previous ten year period (measured from dates of arrest), the State is then allowed to use any prior DWI

conviction since obtaining a drivers license to enhance the accusation to a DWI, third offense. NOTE: Texas

can use prior convictions that have occurred in other states for enhancement of punishment.

DWI, Second Offense: Class A Misdemeanor Special Condition for Jail Release on Bond:

It is important to note that if arrested and accused of a DWI Second or greater offense, Texas law now

requires the Court to Order as a CONDITION OF RELEASE FROM JAIL ON BOND, that the person install and

maintain a deep lung air device on the car that the person intends to drive and operate while charges are

pending. The device requires a breath sample before it will allow you to start your car. They also require

periodic breaths while driving to monitor and insure sobriety. New technology has made these devices “user

sensitive” so that someone else cannot blow into the device for the driver.

Although this provision seems to run afoul of the presumption of innocence, Texas Courts have consistently

held that such condition is necessary to protect a legitimate governmental interest in making public roadways

safe for the motoring public.

Fine

A fine not to exceed $4,000.00.

Jail

Confinement in the County Jail for a term of not less than 72 hours nor more than one (1) year.

Community Service

Texas law mandates that a judge order not less than 80 hours nor more than 200 hours.

Deep lung air device

Typically deep lung devices are required for all DWI second offenders during probation.

Suspension of license

A person convicted of DWI, Second may have their driving privilege suspended for not less than 180 days or

more than two (2) years.

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DWI, Third Offense (or greater): Third degree FELONY

Fine

A fine not to exceed $10,000.00.

Jail

Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not

less than 2 years nor more than ten (10) years.

Deep lung air device

Deep lung air devices are generally ordered on all persons convicted of three or more DWI’s both as conditions

of bond and as conditions of any occupational or provisional licenses that may be awarded after conviction.

Community Service

Texas law mandates that a judge order not less than 160 hours nor more than 600 hours.

Suspension of license

A person convicted of DWI, Second may have their driving privilege suspended for not less than 180 days or

more than two (2) years.

Other

A third conviction for DWI indicates a significant problem with alcohol to the Court or jury assessing

punishment. Some type of rehabilitative treatment is therefore mandated in punishment if confinement in the

penitentiary is to be avoided. In some cases an in-patient, incarceration program (Substance Abuse Felony

Probation SAFP) is ordered. This program requires confinement in a State Facility for alcohol rehabilitation.

After successful completion of the SAFP program, the person is then released and placed on probation for a

term not to exceed ten (10) years. Another popular condition for habitual DWI offenders is a prescription for a

drug named “Antabuse”. This drug will make a person violently ill if any alcohol is consumed. The alcohol can

be contained in mouthwash or marinated food and will still have the same effect on the user. If a person has

any type of liver problems, this drug can cause liver failure and death.

Texas law does not provide for any increased punishment after DWI, third offense. If a person presents a

DWI, fourth offense or beyond, the typical punishment is confinement in the penitentiary from two (2) to ten

(10) years without probation being granted. In some cases SAFP may be granted upon proper request and

showing that it is appropriate.

Intoxication Assault

Third degree Felony “A person commits an offense if the person, by accident or mistake, while operating a ….

motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to

another” {Texas Penal Code §49.07}. ” ‘Serious Bodily Injury’ means injury that creates a substantial risk of

death or protracted loss or impairment of the function of any bodily member or organ”.

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Fine

A fine not to exceed $10,000.00.

Jail

Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not

less than 2 year nor more than ten (10) years.

Community Service

Texas law mandates that a judge order not less than 160 hours nor more than 600 hours.

Intoxication Manslaughter

Second Degree Felony “A person commits an offense if the person:

1) …operates a motor vehicle in a public place, and…

2) …is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.”

Fine

A fine not to exceed $10,000.00.Jail: Confinement in the Texas Department of Criminal Justice, Institutional

Division (Penitentiary) for a term of not less than 2 year nor more than twenty (20) years.

Community Service

Texas law mandates that a judge order not less than 240 hours nor more than 800 hours.

NOTE

If a person is involved in an accident where there is risk of death or death, a mandatory blood sample will be

taken for analysis and use in the prosecution of either Intoxication Assault or Intoxication Manslaughter.

Administrative License Revocation (ALR) Program

What is an ALR Hearing?

Many Texas drivers who are arrested for driving while intoxicated (DWI) do not realize that a DWI arrest

creates two separate cases, one civil and one criminal.

Specifically, a DWI arrest results in both a criminal charge, and usually initiates a civil proceeding against the

arrested driver’s driving privileges called an Administrative License Revocation, or ALR.

An ALR suspension is initiated against an arrested driver when he either refuses to submit to breath or blood

testing, or alternatively, fails a breath or blood test. The legal authority to impose an ALR suspension against

a driver lies in the Texas implied consent statute.

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This law states that each person who operates a motor vehicle on Texas roadways has given his or her implied

consent to provide a specimen of breath or blood if arrested for DWI and provided with the applicable

consequences of refusing to submit to testing.

Notice of ALR Suspension

Many police officers, after arresting a citizen, will tell the arrested driver that if he does not agree to take a

breath or blood test that his license will be automatically and immediately suspended.

This is incorrect. When making an arrest for DWI, peace officers are required to take possession of any

Texas license issued by this state and held by the person arrested and issue the person a temporary driving

permit that expires on the 41st day after the date of issuance. Further, a request for a hearing to challenge

the proposed suspension will delay any ALR sanctions until a hearing takes place.

Hearing Request Provisions

ALR suspensions are automatic unless you request a hearing to challenge the suspension, in writing, WITHIN

FIFTEEN (15) DAYS after receiving notice of suspension from the arresting agency on a Department of

Public Safety approved form. This document is generally received on the day of arrest.

If a hearing is not requested in a timely manner, the suspension will automatically begin on the forty-first

(41st) day after notice was received. If a hearing is requested, no action will be taken regarding suspension

until after the hearing has taken place, even if the hearing takes place more than forty days after the arrest.

The ALR Hearing

The burden of proof at an ALR hearing is on the Department of Public Safety. Once a driver or his attorney has

made a timely request for an ALR hearing, no suspension may be imposed against the driver until the

Department of Public Safety proves the following elements by a preponderance of the evidence at the hearing:

1. That there was reasonable suspicion to stop or probable cause to arrest the driver;

2. That probable cause existed that the driver was driving or in actual physical control of a motor vehicle

in a public place while intoxicated;

3. That the driver was placed under arrest and was offered an opportunity to give a specimen of breath

or blood after being notified both orally and in writing of the consequences of either refusing or failing

a breath or blood test; and

4. That the driver refused to give a specimen on request of the officer, or, that the driver failed a breath

or blood test by registering an alcohol concentration of .08 or greater.

Suspension Provisions for Adult Drivers

Without any prior alcohol or drug related contacts against the accused driver during the previous 10-year

period, your license will be suspended for 90 days if your chemical test result is over a 0.08% or 180 days if

you refuse a chemical test. If you have a prior alcohol or drug contact within ten years, your license will be

suspended for one year if your chemical test is over 0.08% or 2 years if you refuse a chemical test. In certain

circumstances you may be eligible for an Occupational License.

Possible Defenses for DWI Charges

In deciding which defenses could apply in your driving while intoxicated (DWI) case, Houston Drunk Driving

Lawyer Charles Johnson will look at all the evidence produced by the police and interview witnesses. Some

common defenses seen in DWI cases include:

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Driving Observation Defenses

The prosecutor always relies (sometimes exclusively) on the arresting police officer’s testimony about how a

DWI suspect was driving, including:

Very slow speeds

Uneven speeds (very fast, then very slow, for example)

Weaving from one side of a lane to the other

Crossing the center line of the highway

Running a red light

Hesitation in going through a green light

A good defense attorney will argue that there are many different explanations for these driving behaviors that

don’t have anything to do with being alcohol-impaired.

Behavior Observation Defenses

An officer may also testify as to a DWI suspect’s appearance and behavior when questioned, including:

Slurred speech

Bloodshot eyes

Inappropriate joking or incoherent speech

Stumbling or not being able to walk very far

Pupil enlargement

Defenses to these observations that don’t have anything to do with being intoxicated may include:

Lack of sleep

Allergies

Contact lenses

Stress due to personal circumstances

Medications

Foods recently ingested

Nervousness over being stopped by police

Physical impairments

Field Sobriety Test Defenses

When an officer suspects you may be too intoxicated to drive, he or she will likely ask you to perform what

are called “field sobriety tests.” These tests are designed to assess your physical and mental alertness, and

can include:

Walking a straight line

Walking backwards

Reciting the alphabet, frontwards or backwards

Standing on one leg

Officers also sometimes rely on what’s called a “nystagmus” test, in which the suspect is asked to shift

eye gaze from one side to the other while the officer shines a light in his or her eyes. The theory is

that the gaze of someone who is impaired by alcohol or drugs will be jerky rather than smooth.

The defenses to field sobriety tests are often the same as with officer observations. Medications and lack of

sleep can make it considerably more difficult to perform these tests. Many people also have physical

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impairments caused by injuries – or simply aging -that make it impossible to perform these tasks under ideal

conditions.

The Best Houston Lawyer will cross-examine the arresting officer in detail as to whether the officer asked you

if you had physical impairments or there were particular circumstances that would make it difficult to perform

the tests. He may also point out to the jury that many jury members may have similar difficulties performing

the tests, such as by asking the jury if they could recite the alphabet backwards under the best of

circumstances.

Blood Alcohol Content Defenses

When you consume alcoholic drinks, the alcohol is absorbed into your blood stream. The level of alcohol in

your blood, called the Blood Alcohol Content (“BAC”) can be measured by different tests. In all states, you’re

presumed to be drunk and unable to safely operate a vehicle if your BAC is .08 or greater. This measurement

means that your blood contains eight/ one-hundredths percent of alcohol.

All states have lowered the BAC level defining intoxication to .08, and have “zero tolerance” laws that make it

illegal for people under 21 to operate a vehicle with little or no amount of alcohol in their blood.

Many states also have more severe DWI or DUI penalties for driving with a high BAC, which is often defined as

a level measuring more than .15 to .20.

Your BAC can be determined from a blood draw, which is often automatically taken if you are involved in an

accident and there is a suspicion that you may have been drinking. Your blood will also be drawn if you are

taken to the hospital because the police are concerned that you may have had so much to drink that you are

in danger of alcohol poisoning and should be hospitalized for observation and/or treatment.

Most DWI suspects have their blood tested by blowing into a breath testing device. These devices can be

faulty and not well-maintained or properly calibrated. They can register false results based on your

consumption of food and other non-harmful substances other than alcohol or drugs.

The Best Houston DWI Lawyer will likely subpoena police records on how the breath testing machine operates

and was maintained and calibrated. He may also want to bring in expert testimony that the particular breath

testing machine the officer used is notorious for malfunctioning.

Depending on the jurisdiction, another defense to breath testing machines arises when the physical breath

tests aren’t preserved as evidence, allowing for independent testing later. Your attorney can argue that there’s

no way to know if the machine that was used was accurate, if your breath samples can’t be independently

tested.

Many of the defenses against DWI charges require a lawyer’s expertise and experience. If you have been

arrested for a DWI offense in Texas, do not try to handle the legal situation yourself. Contact the experienced

and respected Texas DWI defense attorneys at the Charles Johnson Law Firm right away to make sure that

your rights are protected.

We can be reached 24 hours a day, 7 days a week.

Call us at 713-222-7577 or toll free at 877-308-0100.

Major Credit Cards Accepted.

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Original article may be found at:

Charged with DWI in Harris County? Representation By The Best Houston DWI Lawyer Is Critical

Houston Lawyer Charles Johnson can be reached 24 hours a day, 7 days a week. Call us at 713-222-7577 or toll free at 877-308-0100. Major Credit Cards Accepted.

Houston Criminal Lawyer Charles Johnson

Solving Problems...Every Day®

http://www.houstoncriminallawyers.com

815 Walker Street #1047 Houston, TX 77002

E-Mail: charlesjohnson@houstoncriminallawyers.com

Phone: (713) 222-7577 Toll-Free: (877) 308-0100

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