DWI Alternatives and Enhancements

| Aug 30, 2018 |

Driving While Intoxicated is, by far, the most commonly-charged alcohol-related offense in North Texas. But sometimes, all the elements are not present. Or, in a few cases, there is not enough evidence of intoxication to establish probable cause.

Sometimes, the opposite is true. The facts might support enhanced DWI charges. Parker County intake prosecutors are notoriously aggressive. If there is any possibility for an enhancement, prosecutors usually upgrade the charges.

Passenger and Other Non-DWI Charges

Penal Code Section 49.02 is public intoxication. It is a Class C misdemeanor (no jail time and maximum $500 fine) to be “in a public place while intoxicated to the degree that the person may endanger the person or another.” If an intoxicated passenger does something as simple as opens the car door, that act could endanger someone. It’s possible that someone could get a hand caught in the doorjam.

Arguably, half the people in downtown Fort Worth after 7 p.m. could be arrested for public intoxication. So, officers do not press these charges very often unless the defendant is almost falling-down intoxicated or is otherwise making a scene.

The open container law is nearby. This offense is also a Class C misdemeanor. If officers see alcohol in the car but there’s no probable cause of a DWI (e.g. it’s impossible to determine who was driving), they often write open container citations.

Knowledge is a key element in OC cases. The defendant must know that there is alcohol in the passenger compartment. Curiously, Texas law defines a trunk as part of the passenger area, but it excludes pickup truck beds. We never have been able to figure that one out.

DWI Upgrades

Most enhancements involve prior convictions. A first or second DWI is a misdemeanor; a third or subsequent DWI is a felony. For most purposes, Texas does not have a “lookback” period. Once you get a DWI, it usually remains on your record forever for enhancement purposes.

The DWI collision enhancements are in TPC 49.07 and 49.08. If an intoxicated person causes “serious bodily injury” to another, that person may be guilty of intoxication assault. If the victim dies, charges may be upgraded to DWI manslaughter. By law, intoxicated defendants cannot form the intent necessary for a murder conviction.

Other enhancements or variations include DWI with a child passenger under 15, boating or flying while intoxicated, and assembling an amusement ride while intoxicated. All these enhancements are felonies. Remember that there is a difference between “alcohol impairment” and “alcohol intoxication” in this context.

Prosecutors have a number of options in alcohol-related criminal cases. For a free consultation with an experienced criminal defense attorney in Fort Worth, contact Herreth Law. We are available 24/7/365.