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If you have been arrested for a DWI or one of its related charges—DWI felony, Intoxicated Assault or Intoxicated Manslaughter |—you need an experienced, knowledgeable Houston DWI lawyer. You need the best drunk driving lawyer Houston and Harris County has to offer, that is Mark Thiessen of the The Thiessen Law Firm.
Too many attorneys falsely represent themselves as having expertise in the intricacies of DWI law, but our firm actually practices what we preach: in a DWI trial, we dissect DWI’s with scientific precision because, though we practice all criminal law, we are trained in and specifically emphasize DWI defense. We actually have the expertise that you need to get the best DWI representation possible.
Please feel free to contact us and we will answer any questions you have, 24 hours a day, 7 days a week. You won’t find a more aggressive Houston DWI lawyer with a better success rate than Mark Thiessen of the Thiessen Law Firm.
Please read my case results and my client testimonials; they speak for themselves.
**PLEASE ALSO LOOK AT THE FREQUENTLY ASKED QUESTIONS SECTION**
Were you arrested and charged with DWI in Texas?
If so, you have some prompt deadlines approaching in order to save your license. First, if you have not been bailed out, call Burns Bail Bonds at (713) 224-0305. Then, once you are rested, give me a call and we can set up a free consultation. I’ll meet you anytime that I am not in trial or in Court, even on the weekends.
Administrative License Revocation (ALR) hearings.
You have two cases against you if you have been arrested for DWI. You likely know about the criminal case charging you with the crime of DWI, but you also have a civil case against your driver’s license. You have 15 days from the date of your arrest to request a hearing to try and save your license. If you hire me before then, I will request it for you. If you don’t, I will still help you so that you don’t lose that valuable driving privilege.
There is no constitutional right to drive. Driving is a privilege. When you first got your license, you signed it, effectuating a contract between you and the State of Texas. One of the rules in the statutes says that if you are ever pulled over for DWI then you must provide a breath sample. It is called implied consent; however, in Texas, there is a clash between the Texas Transportation Code and the Texas Property Code. As a result, the State generally cannot force you to take a breath or blood test. We will go into more detail on implied consent below. You can and should refuse to take a breath or blood test.
If you refused the breath test, then the State is going to attempt to suspend your license for 180 days on your 1st DWI arrest. If you have another prior DWI where you refused the breath test and it is within 10 years of your first refusal, then the State will attempt a license suspension of 2 years. If that prior arrest was within 10 years and was a breath test failure, they will attempt a license suspension of 1 year. And if you are a minor (under 21), then the suspension time will only be 90 days on the first refusal.
If you took the breath test and failed (over a 0.08), then the State will attempt a license suspension of 90 days on the 1st DWI and 1 year if you have any prior convictions within 10 years. Again, if you are a minor, then the suspension is only 60 days. Under the Fourth Amendment, though, you still have the right to a hearing on whether your license can be suspended. The hearing is called an Administrative License Revocation hearing (ALR). It is a civil hearing with an Administrative Law Judge at the State Office of Administrative Hearings. Once we request the hearing within the 15 day window, then the hearing will be randomly scheduled around 5-8 months later, depending on what county the case is in. You do not have to attend the hearing, and not doing so is better if the officer decides to show up and then sees and remembers you. If he does appear, I get a chance to cross-examine him under oath and get a transcript of his testimony to use in your criminal case. Many times I discredit the officer at the ALR and win the DWI case based on the officer’s testimony. For that reason, many officers refuse to show up. If they fail to appear and they were properly subpoenaed, then you win and keep your license. At the ALR, we are either going to get valuable testimony for your criminal case or you will get to keep your license. Even if you lose your license, most times you are entitled to an Occupational Driver’s License, which I can guide you through as well. There are some complications regarding priors and commercial driver’s licenses, but I will discuss those with you in person if the need arises.
Back to Your DWI Case
First, we need to see what court you landed in. The particular court tells me a lot about how the Judge operates, who the prosecutors are and what chance this case has of getting dismissed. Some courts have very unreasonable prosecutors who refuse dismissal and we must go to trial, where I do my best work.
On a side note, some lawyers will tell their clients that everything will be okay or dismissed at the initial consultation. That is simply malpractice. They do not know enough and are just lying to you and giving you a false sense of security. I will always tell you the truth.
Before I can even tell you what your case looks like, though, we will need some things:
I need to see the Offense Report and read what the Officer wrote about the event in question. I will get the Offense Report at the first court date and sit down with you and show you the contents. There are many ways around a DWI conviction and I need to examine all the possible loopholes. Why were you pulled over? Is that cause consistent with the current case law? Next, who is the Officer? Is he DPS or a DWI Task Force Officer or is he only an inexperienced patrolman who is going to crumble on the stand? What Standard Field Sobriety Tests did you perform? Did you have any prior mental or physical injuries?
I will request the video of the arrest the day you hire me. It is up to the officer to turn in the video tape, if there is one. If there is not a video, I will subpoena his patrol vehicle’s maintenance records and figure out why there was not. Then, once I have the video, I will watch it and ask that you do as well. After we have both watched it, we will then discuss the pros and cons of contesting what is on the video. Are we able to suppress the video? Usually not. But we can suppress portions if they violate the law.
I will also secure the station video and see how you looked when you were booked at the station. Again, we will discuss the pros and cons of using this video and weigh out our options.
Only about 5% of attorneys are capable of trying a breath test case with a chance of winning. I am trial tested and proven. I speak to other lawyers at national seminars on how to beat high breath test scores without the use of an expert. As I am an honest lawyer, you must know that I will need a good video to beat a high breath test. If you had a low breath test, I can usually solely educate the jury on all of the problems with the breathalyzer machine and the acceptable ranges of error in order to explain the reading. The Intoxilyzer 500EN is outdated and in need of replacement. Many states have already abandoned the machine and moved on the better or newer models. I keep extensive breath test records on all the machines used in the counties that I visit frequently.
Even fewer attorneys can try and should be trying blood test cases. The science is based on gas chromatography, mass spectrometry gas chromatography, or enzymatic assay testing, and is highly scientific. I am one of the few Houston DWI lawyers who can explain the science of gas chromatography to you in terms that you can understand and can convince a jury of the unreliability of the machine and the program. Only a skilled and knowledgeable DWI trial lawyer will not only challenge the four corners of the warranty and the chain of custody with the blood, but will also know how the science works and where problems arise in that process.
How Do You Win a DWI Trial?
Few lawyers have learned to win DWI trials on a regular basis. DWI is one of the hardest cases to try because it is an opinion crime. The definition of intoxication is not having the normal use of your mental or physical faculties, or having a blood alcohol concentration of 0.08 or higher.
A skilled DWI trial attorney will systematically weave a thread of doubt throughout the entire case, demonstrating to the jury everything that occurred leading up to, during, and after the arrest. The police and District Attorney only focus on the negative aspects of your police interaction. I will give the jury ALL the information they need to follow the law. The State must prove you guilty Beyond a Reasonable Doubt and it is their job to do so. My job is to reveal the truth to the jury, even if it prevents the District Attorney from completing their mission. When I am representing you, very rarely can or does a jury decide guilt beyond a reasonable doubt based on an officer’s opinion that you lost your normal mental or physical faculties. What separates me from the other Houston DWI trial lawyers is that I care about my clients: I get to know who you are, enabling us to form a bond. Only then can I present the real you to the jury for their consideration.
If the State has a breath or blood test, your case might become more difficult, but a fair jury will still follow the law and find you not guilty. The State must prove that your BAC is accurate and reliable. I’ve rarely met a District Attorney with enough knowledge and understanding of the Intoxilyzer machine and infrared spectroscopy to be able to convince a jury upon the reliability of the results. Blood is more difficult to defend than breath and, again, few DWI defense attorneys understand the science, and even fewer District Attorneys understand blood. It is absolutely crucial that you hire a blood or breath DWI trial attorney such as myself.
Other DWI Issues
Drug Recognition Evaluations (DRE)
A person may be intoxicated by a variety of substances, including: alcohol, prescription medication, illegal drugs, over the counter medication, or any combination thereof. So, if you look intoxicated and blow a 0.000, you are still not going home. Blowing a 0.000 is the first step of the 14-step Drug Recognition Evaluation where the officer tries to allege that you are intoxicated by something other than alcohol. You are going to need a skilled attorney who is familiar and comfortable in all aspects of a DRE.
Felony DWI 3rd
The felony DWI 3rd is no different than preparing and attacking a 1st DWI. But the biggest difference occurs at jury trial. The first thing the jury hears is that you already have 2 DWI’s. It is a tough—but not impossible—stain to overcome. Much more is at risk in felony court, but if your case is good, there is no reason you should prevented from professing your innocence even though you admitted your guilt twice before.
Mandatory Blood Draws
The newest litigation surrounds blood testing, mandatory blood draws, forced blood draws and “no refusal” weekends. I agree that the previous are a violation of your personal rights; however, the Texas Supreme Court has allowed all four of these DWI deterrents.
The Texas Supreme Court allows police officers to draw blood without your consent. On “no refusal” weekends, if an officer has probable cause to believe you are intoxicated and you are hiding evidence, then a judge can author a search warrant for your blood. They will strap you down and forcefully take your blood. Also, there are three instances (after September 1, 2009) where the police do not need a warrant and can take your blood under statute:
1) If, as a result of your accident, someone “has suffered bodily injury and has been transported to a hospital or other medical facility for medical treatment”
2) If you have a child under the age of 15 in the car with you
3) If you have one prior DWI with a child or intoxication assault conviction, if the officer reasonably believes that you do, or if you are being charged with a felony DWI due to two prior DWI convictions.
More and more clients are coming in beaten up by the police. Please let me fight the warrant for you. Do not risk injury; I will fight for your rights!
The penalties for DWI are as follows:
a) 1st offense: a fine not to exceed $2,000 and/or the possibility of serving jail time from 3 days to 180 day, and a driver's license suspension of 90 to 365 days. (Class B Misdemeanor)
b) 2nd offense: fine increases to no more than $4,000 and/or jail from 30 days to 1 year, and a possible driver's license suspension ranging from 180 days to 2 years. (Class A Misdemeanor)
c) 3rd offense: a fine up to $10,000 and/or 2 to 10 years of imprisonment, and suspension of your driver's license ranging from 180 days up to 2 years. (3rd Degree Felony)
d) DWI with an open alcohol container (first offense): In addition to the penalty referenced above you face a minimum 6 days in jail and a fine of no more than $2,000. (Class B Misdemeanor)
e) DWI with an accident where serious bodily injury occurred as a proximate cause of the intoxication (Intoxication Assault): If convicted you may serve a minimum of 2 years up to a maximum of 10 years in jail. Additionally, you may be fined up to $10,000. (3rd Degree Felony)
f) DWI where a death has occurred as a proximate cause of the intoxication (Intoxication Manslaughter): If convicted you may pay a maximum fine of $10,000 and/or be imprisoned from 2 to 20 years (Intoxication Manslaughter or Manslaughter with use of Deadly Weapon are both 2nd Degree Felonies.) Note: the District Attorney can stack charges against you for each death, for example, 2 deaths can mean 4 to 40 years, etc.
g) A prior DWI conviction and a present drag racing charge: drag racing is a Class B Misdemeanor; however, it becomes a Class A Misdemeanor if the person had a prior drag racing conviction, a DWI conviction, or had an open alcohol container while they were driving.
h) DWI with a passenger under the age of 15: state jail felony. Punishment for a non-enhanced state jail felony is confinement in a state jail for any term of not more than 2 years or less than 180 days and a fine not to exceed $10,000.
In the misdemeanor classifications you may be eligible for probation, but there is no guarantee that you will receive a probated jail sentence or fine. If convicted of intoxication assault and granted probation, a minimum of 30 days in jail is mandatory as a condition of probation. In order to receive probation of intoxication manslaughter requires a minimum of 120 days in jail as a condition of your probation. If you are convicted of Intoxication Assault or Intoxication Manslaughter, though, and the court or jury finds that you committed the offense with a deadly weapon, you may be ineligible for probation.
Q: What are the Standard Field Sobriety Test (SFSTs)?
A: The National Highway Traffic Safety Administration (NHTSA) developed Standard Field Sobriety Testing (SFST) as a series of psychophysical tests administered by law enforcement designed to determine if an individual is Driving While Intoxicated (DWI) or Driving Under the Influence (DUI). More specifically, Standard Field Sobriety Testing (SFST) is used to determine if an individual is under the influence of alcohol.
The Standard Field Sobriety Test (SFST) consists of a battery of three tests which are to be administered and evaluated in a standardized manner in order to obtain validated indicators of impairment and to establish probable cause for arrest. The three tests administered are:
- • The Horizontal Gaze Nystagmus (HGN)
- • The Walk-and-Turn
- • The One-Leg Stand
Horizontal Gaze Nystagmus (HGN) Testing
Horizontal gaze nystagmus is an involuntary jerking movement of the eyeball that occurs naturally as an individual's eye gazes to the side. Normally, nystagmus (jerking movement) occurs when the eyes are rotated at high peripheral angles. When an individual is impaired by the effects of alcohol, this jerking is exaggerated and can occur at lesser angles. Additionally, an individual Driving While Intoxicated (DWI) or Driving Under the Influence (DUI) will have greater difficulty tracking a moving object. As the test is administered, law enforcement personnel look for three clues of intoxication in each eye. The clues are:
- 1. Lack of Smooth Pursuit: if the eye cannot follow a moving object smoothly.
- 2. Distinct and Sustained at Maximum Deviation: if jerking is distinctly noticeable when the eye is looking as far to the side as it can (maximum deviation).
- 3. Onset of Nystagmus Prior to 45 Degrees: if the jerking begins when the eye is within 45 degrees of center.
The officer tests each eye. If, between both eyes, four or more of the indicators are observed, then the police determine
Divided Attention Testing
you are intoxicated
HOWEVER; The problems with the HGN are: (1) this does not measure an individual’s mental faculties; (2) this does not measure an individual’s physical faculties; (3) some people have natural nystagmus; (4) the police are looking for millimeter ticks of your eye, and they don’t even know what is natural for you; (5) there are plenty of ways to get a false nystagmus, i.e. if you are facing their over head lights or rapidly moving traffic; (6) each clue has very specific time requirements to properly administer this test: usually 14 passes, 82 seconds in all, and if an officer violates this, then the results are compromised; (7) they don’t ever have a camera close enough to your eye so that a jury can actually see the ticking themselves, so the police ALWAYS say you failed and they got 6 clues; (8) head injuries may affect the results. Bottom line: this test is BS and you should hire an attorney who knows this test like the back of his hand.
The Walk-and-Turn test and the One-Leg Stand test are both "divided attention" which means you must listen to the instructions very carefully. This are highly complicated, they do not let you practice, and very easy to fail.
The Walk-and-Turn test has 15 different instructions: Place your feet (1) on the line (2) in a heel to toe manner (3) with your left foot in front of your right, with (4) your arms at your sides. The officer should then demonstrate the Instruction Phase that you must stand it while he gives you all the other instructions. (5) Do not begin before you are instructed to. When instructed to begin, (6)take nine heel-to-toe steps (7) on the line. Then on your ninth step (8) take a series of small steps to turn around. Then (9) return on the line taking (10) nine heel-to-toe steps. (11) Count each step out loud. (12) Look at your feet while walking. (13) Do not raise your arms from your side. (14) Do not stop once you begin. (15) Do you understand? This test has eight possible clues and ONLY TAKES TWO for the cops to think you are impaired. The clues are:
- 1. Can’t Balance During Instructions: if the individual cannot maintain balance while in the Instruction Phase.
- 2. Starts Too Soon: if the individual begins before instructions are finished.
- 3. Stops While Walking: if the individual stops at any time during the test.
- 4. Misses Heel to Toe: if the individual does not touch heel-to-toe by ½ an inch!
- 5. Raises Arms: if the individual uses arms to balance more than 6 inches from their body
- 6. Improper Turn: if the individual doesn’t use a series of small steps OR fails to turn to the left direction.
- 7. Wrong Number of Steps: if the individual takes an incorrect number of steps.
- 8. Steps Off The Line: if the individual steps on the imaginary or designated straight line.
The officer may tell you the instructions more than once if you ask for them. They will not let you practice and only take two clues to fail the test in their eyes.
HOWEVER; The problems with the WAT are: (1) you don’t get to practice; (2) if you are 50lbs over weight this may affect the results; (3) back, leg and neck injuries can affect the results; (4) it is the individual’s job to disclose any injuries; (5) the officer must determine whether any clues were subject to nervousness, inexperience, or language barriers; (6) you don’t get credit for all the good things you do correct on the test; (7) many times you do this on the side of a busy road. Bottom line: this test is so easy to fail it, you should never even attempt it.
One-Leg Stand Test
The One-Leg Stand Test has 13 different instruction: (1) Stand straight. (2) Place your feet together. (3) Hold your arms at your side. (4) Do not begin until instructed to. (5) Do you understand? When instructed, (6) raise one leg, either leg, (7) approximately six inches from the ground, (8) keeping the raised foot parallel to the ground. (9) Keep both legs straight and (10) look at the elevated foot. Count (11) out loud in the following manner: (12) one thousand one, one thousand two, one thousand three, and so on (13) until told to stop. The officer should use a timer and do require the individual to perfomr this test for 30 seconds. This test has four possible clues and ONLY TAKE TWO for the cops to think you are impaired. The clues are:
- 1. Sways: if the individual sways while balancing.
- 2. Raises Arms: if the individual raises their arms more than six inches from their body.
- 3. Hops: if the individual hops to maintain balance.
- 4. Drops Foot: if the individual puts the foot down.
Again, you are only given the instruction one time, unless you ask for them again. And you are not allowed to practice.
HOWEVER; The problems with this test are: (1) you don’t get to practice; (2) if you are 50lbs over weight this may affect the results; (3) back, leg and neck injuries can affect the results; (4) it is the individual’s job to disclose any injuries; (5) the officer must determine whether any clues were subject to nervousness, inexperience, or language barriers; (6) you don’t get credit for all the good things you do correct on the test; (7) many times you do this on the side of a busy road; (8) the sway clue is a subjective determination and may be different for every officer’s belief of what “sway” is. Bottom line: this test is so easy to fail it, you should never even attempt it.
If you have been charged with assault or assault family violence, contact attorney MARK THIESSEN 1-855-DWI-MARK immediately. He is available 24 hours a day, 7 days a week to ease your concerns and protect your freedom.
TEXAS PENAL CODE § 49.04
TITLE 10. OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALS
CHAPTER 49. INTOXICATION AND ALCOHOLIC BEVERAGE OFFENSES
Sec. 49.01. DEFINITIONS. In this chapter:
(1) "Alcohol concentration" means the number of grams of alcohol per:
(A) 210 liters of breath;
(B) 100 milliliters of blood; or
(C) 67 milliliters of urine.
(2) "Intoxicated" means:
(A) 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
(B) having an alcohol concentration of 0.08 or more.
(3) "Motor vehicle" has the meaning assigned by Section 32.34(a).
(4) "Watercraft" means a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water.
(5) "Amusement ride" has the meaning assigned by Section 2151.002, Occupations Code.
(6) "Mobile amusement ride" has the meaning assigned by Section 2151.002, Occupations Code.
Sec. 49.02. PUBLIC INTOXICATION.
(a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.
(a-1) For the purposes of this section, a premises licensed or permitted under the Alcoholic Beverage Code is a public place
(b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician.
(c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.
(d) An offense under this section is not a lesser included offense under Section 49.04.
(e) An offense under this section committed by a person younger than 21 years of age is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies.
Sec. 49.031. POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE.
(a) In this section:
(1) "Open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.
(2) "Passenger area of a motor vehicle" means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. The term does not include:
(A) a glove compartment or similar storage container that is locked;
(B) the trunk of a vehicle; or
(C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.
(3) "Public highway" means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way if any part is open for public use for the purpose of motor vehicle travel. The term includes the right-of-way of a public highway.
(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.
(c) It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:
(1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or
(2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.
(d) An offense under this section is a Class C misdemeanor.
(e) A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.
Sec. 49.04. DRIVING WHILE INTOXICATED.
(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
Sec. 49.045. DRIVING WHILE INTOXICATED WITH CHILD PASSENGER.
(a) A person commits an offense if:
(1) the person is intoxicated while operating a motor vehicle in a public place; and
(2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.
(b) An offense under this section is a state jail felony.
Sec. 49.05. FLYING WHILE INTOXICATED.
(a) A person commits an offense if the person is intoxicated while operating an aircraft.
(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
Sec. 49.06. BOATING WHILE INTOXICATED.
(a) A person commits an offense if the person is intoxicated while operating a watercraft.
(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
Sec. 49.065. ASSEMBLING OR OPERATING AN AMUSEMENT RIDE WHILE INTOXICATED.
(a) A person commits an offense if the person is intoxicated while operating an amusement ride or while assembling a mobile amusement ride.
(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the amusement ride or assembling the mobile amusement ride had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor with a minimum term of confinement of six days.
Sec. 49.07. INTOXICATION ASSAULT.
(a) A person commits an offense if the person, by accident or mistake:
(1) while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or
(2) as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.
(b) In this section, "serious bodily injury" means injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.
(c) Except as provided by Section 49.09, an offense under this section is a felony of the third degree.
Sec. 49.08. INTOXICATION MANSLAUGHTER.
(a) A person commits an offense if the person:
(1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and
(2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.
(b) Except as provided by Section 49.09, an offense under this section is a felony of the second degree.
Sec. 49.09. ENHANCED OFFENSES AND PENALTIES.
(a) Except as provided by Subsection
(b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.
(b) An offense under Section 49.04, 49.05, 49.06, or 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:
(1) one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or
(2) two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.
(b-1) An offense under Section 49.07 is a felony of the second degree if it is shown on the trial of the offense that the person caused serious bodily injury to a peace officer, a firefighter, or emergency medical services personnel while in the actual discharge of an official duty.
(b-2) An offense under Section 49.08 is a felony of the first degree if it is shown on the trial of the offense that the person caused the death of a person described by Subsection (b-1).
(b-3) For the purposes of Subsection (b-1):
(1) "Emergency medical services personnel" has the meaning assigned by Section 773.003, Health and Safety Code.
(2) "Firefighter" means:
(A) an individual employed by this state or by a political or legal subdivision of this state who is subject to certification by the Texas Commission on Fire Protection; or
(B) a member of an organized volunteer fire-fighting unit that:
(i) renders fire-fighting services without remuneration; and
(ii) conducts a minimum of two drills each month, each at least two hours long.
(c) For the purposes of this section:
(1) "Offense relating to the operating of a motor vehicle while intoxicated" means:
(A) an offense under Section 49.04 or 49.045;
(B) an offense under Section 49.07 or 49.08, if the vehicle operated was a motor vehicle;
(C) an offense under Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994;
(D) an offense under Article 6701l-2, Revised Statutes, as that law existed before January 1, 1984;
(E) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle; or
(F) an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.
(2) "Offense of operating an aircraft while intoxicated" means:
(A) an offense under Section 49.05;
(B) an offense under Section 49.07 or 49.08, if the vehicle operated was an aircraft;
(C) an offense under Section 1, Chapter 46, Acts of the 58th Legislature, Regular Session, 1963 (Article 46f-3, Vernon's Texas Civil Statutes), as that law existed before September 1, 1994;
(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was an aircraft; or
(E) an offense under the laws of another state that prohibit the operation of an aircraft while intoxicated.
(3) "Offense of operating a watercraft while intoxicated" means:
(A) an offense under Section 49.06;
(B) an offense under Section 49.07 or 49.08, if the vehicle operated was a watercraft;
(C) an offense under Section 31.097, Parks and Wildlife Code, as that law existed before September 1, 1994;
(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a watercraft; or
(E) an offense under the laws of another state that prohibit the operation of a watercraft while intoxicated.
(4) "Offense of operating or assembling an amusement ride while intoxicated" means:
(A) an offense under Section 49.065;
(B) an offense under Section 49.07 or 49.08, if the offense involved the operation or assembly of an amusement ride; or
(C) an offense under the law of another state that prohibits the operation of an amusement ride while intoxicated or the assembly of a mobile amusement ride while intoxicated.
(d) For the purposes of this section, a conviction for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08 that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated.
(e) Repealed by Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff. September 1, 2005.
(f) Repealed by Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff. September 1, 2005.
(g) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D.
(h) This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed. The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated by the defendant, that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator, and that requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device. The court shall require the defendant to obtain the device at the defendant's own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date. If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation. The Department of Public Safety shall approve devices for use under this subsection. Section 521.247, Transportation Code, applies to the approval of a device under this subsection and the consequences of that approval. Failure to comply with an order entered under this subsection is punishable by contempt. For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed. To the extent of a conflict between this subsection and Section 13(i), Article 42.12, Code of Criminal Procedure, this subsection controls.
Sec. 49.10. NO DEFENSE.
In a prosecution under Section 49.03, 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, the fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense.
Sec. 49.11. PROOF OF MENTAL STATE UNNECESSARY.
(a) Notwithstanding Section 6.02(b), proof of a culpable mental state is not required for conviction of an offense under this chapter.
(b) Subsection (a) does not apply to an offense under Section 49.031.
Sec. 49.12. APPLICABILITY TO CERTAIN CONDUCT.
Sections 49.07 and 49.08 do not apply to injury to or the death of an unborn child if the conduct charged is conduct committed by the mother of the unborn child.
NOTE: This information is NOT LEGAL ADVICE. It is provided for EDUCATIONAL USE ONLY. If you need legal advice regarding a criminal matter in the State of Texas, please contact MARK THIESSEN at 1-855-DWI-MARK or fill out a brief case evaluation form.
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