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What Does Your BAC Result Mean for Your DWI Charge?The numbers from your blood alcohol concentration test hold a lot of weight in determining whether you will be charged with driving while intoxicated. The big number in almost every state is 0.08 percent BAC, which is the legal limit that determines whether you are intoxicated (Utah is the exception because it recently lowered its limit to 0.05 percent). However, there is more to BAC levels in Texas law than a simple 0.08 cut-off point. You can still be charged with DWI when your BAC is below the legal limit, and the level of the charge can increase depending on how much your BAC exceeds the limit.

Less than 0.08

The 0.08 percent BAC limit is based on the percentage of alcohol in a person’s bloodstream that it usually takes to impair their driving capabilities. Your alcohol tolerance may be different than that, depending on factors such as your:

  • Weight
  • Gender
  • Body chemistry

If your BAC is above the legal limit but you show no signs of impairment, you are still considered to be legally intoxicated. If your BAC is below the legal limit but you do show signs of impairment, a police officer can still arrest you on suspicion of DWI if they believe that your impairment reached the level of intoxication. Your advantage in this scenario is that the prosecution is basing its case solely on subjective evidence from the officer’s observations, which is easier to dispute than scientific blood test results.

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Deferred Adjudication Now Available to DWI DefendantsA new law went into effect in Texas on Sept. 1 that allows people who committed driving while intoxicated for the first time to receive deferred adjudication. People who plead guilty to DWI and complete their probation can prevent a conviction from appearing on their public criminal record. However, a subsequent DWI charge would still be treated as a second DWI offense in court. The deferred adjudication law is seen as an alternative to full prosecution for people who made a one-time poor decision, such as underage drinkers or people driving home after a holiday family dinner.

Who Qualifies?

As previously mentioned, deferred adjudication is available to DWI defendants if they have never been previously convicted for DWI. Also, this option is unavailable if the DWI incident occurred before the law was enacted on Sept. 1. The judge will decide whether deferred adjudication is appropriate given the circumstances of the case. You may be denied deferred adjudication if:

  • Your blood alcohol concentration level was 0.16 or greater.
  • Someone was injured or killed during the DWI incident.
  • You have a commercial driver’s license.

A person accused of more serious DWI charges may not be deserving in the court’s eyes of a reduced punishment. The court wants to be confident that you pose little risk of repeating your mistake by driving while intoxicated again.

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When Can You Expunge a DWI Arrest from Your Record?An arrest and conviction for driving while intoxicated will stay on your criminal record long after any court ruling or punishment. You may not realize the effect that a DWI record can have until it shows up during a background check when you are applying for a job. This may be particularly frustrating if you were never convicted of DWI. A DWI arrest and charge remain on your record unless you take steps to expunge them. However, your case must meet specific conditions in order to be eligible for expunction in Texas.

What Is Expunction?

Criminal charges and convictions are normally visible to anyone who conducts a criminal background check on you. With DWI convictions in Texas, you can petition to have your conviction sealed from everyone except for law enforcement and employers in sensitive fields, such as education. Texas allows record sealing for some first-time DWI offenders whose conviction did not include aggravating charges. Expunction removes the charge and conviction from your record so that it does not appear in any searches of official public records (Your arrest may still appear in an internet search if a story about your arrest was published and is archived on a private media company’s website).

Qualifying for Expunction

You cannot expunge a DWI conviction from your criminal record in Texas. Even if you were convicted of a lesser charge, you cannot remove the DWI arrest from your record. If you were a juvenile convicted of driving under the influence of alcohol, your juvenile record may be eligible for expunction if you completed your punishment and do not have any other alcohol-related charges on your record. Otherwise, you can expunge your DWI arrest and charge from your record only if you were not convicted, such as:

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Posted on in DWI / DUI

Immigrants At Risk If Convicted for DWIA U.S. representative from central Texas recently claimed that half of the people arrested for driving while intoxicated on Interstate 35 are illegal immigrants. At a forum on the Mexican border crisis, the congressman said that local law enforcement had told him this, as well as that most illegal immigrants had no identification but police officers had to let them go with just a ticket because the jails are full. Fact-checkers debunked this claim on multiple levels:

  • None of the law enforcement agencies they talked to had official statistics on the number of DWI arrests that involved illegal immigrants; and
  • Jails have contingency plans in the event that they have reached capacity.

What is true is that immigrants, here legally or otherwise, can face serious consequences if they are convicted of DWI.

Will I Be Deported?

If you are an immigrant to the U.S. who has been charged with DWI, your biggest fear may be whether a conviction would result in deportation. The answer depends on your legal status in the U.S.:

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When Police, Hospitals Disagree on Search ConsentTexas has an implied consent law that states that a licensed driver has consented to chemical testing if a police officer has probable cause to believe that they have been driving while intoxicated. The law applies even when the suspect is unconscious and unable to give consent. When a DWI suspect is injured in an incident, the officer will often collect a blood sample from the suspect at the hospital, where there is a trained staff available to draw the sample. However, some hospitals have a policy against drawing blood from a patient who is unable to consent. This can lead to disputes between police officers trying to obtain evidence and hospital staff concerned about the patient’s privacy.

Recent Example

A nurse at a Dallas area hospital recently refused to allow police to draw blood from a DWI suspect until they presented a warrant. The male suspect had been involved in a car accident that killed two women. The man had been convicted for DWI five times previously, gotten off of probation five days earlier, and just had the ignition interlock device removed from his vehicle. A breath test showed no traces of alcohol, but the officer believed that he was intoxicated because they claim that he:

  • Had been driving the wrong way at the time of the accident;
  • Said he had been taking Xanax;
  • Had bloodshot eyes; and
  • Spoke rapidly.

Police arrested the man, who allegedly agreed to a blood test. After the suspect was taken to a hospital, a nurse told the officer that they could not do a legal blood draw on the suspect, claiming that the suspect could not consent to the test because he was intoxicated. The officer obtained a warrant to draw the blood sample from the suspect, who has been charged with two counts of intoxication manslaughter.

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Office

Bexar County

In the historic King William District

1011 S. Alamo,
San Antonio, Texas 78210
210-226-0965
888-726-5625 Toll Free
210-226-7540

Office

Guadalupe County

109 Court Street,
Seguin, Texas 78155
830-372-1522
888-726-5625 Toll Free