Felony DWI prosecutions are somewhat rare in states that have 10-year lookback periods. But there is no such restriction in Texas, so as long as the prior conviction was after 1984, it can be used against defendants.
3rd DWI in Texas
In Houston, a third DWI is a third-degree felony. That means a maximum of ten years in prison and a $10,000 fine. Even if the judge grants probation, which isn’t likely, or the prosecutor agrees to probation, which is even less likely, the conditions are onerous:
- Maximum ten-year term
- Ignition interlock device and possibly an order of no driving at all
- Drivers’ license surcharge of up to $2,000 a year for three years
- Mandatory DWI education class
- Up to 200 hours of community service
- Maximum two-year drivers’ license suspension
Everyone convicted of a third DWI must serve at least ten days in jail, even if they get probation. Furthermore, in many cases, there’s no good time credit or credit for time served.
Some Defenses to Third DWI in Texas
The no-lookback provision is both a blessing and a curse. While prior convictions almost never drop off your record for DWI charging and sentencing purposes, remote convictions from more than ten years ago don’t look as bad to a jury. Moreover, everyone likes a good comeback story. For example, many people have two convictions within a few years of each other, get some help, and then have a setback fifteen or twenty years later. Some jurors will at least be somewhat willing to give these individuals another chance.
Very often, there are issues with the stop in third DWI cases. Many times, bored officers run a license plate number and discover that the driver has two prior convictions. The officers then hound the driver for several blocks, or even several miles, until he or she inevitably commits a minor traffic violation. Many jurors take a very dim view of such selective enforcement.
Finally, all of the defenses available in a first DWI are available in any other DWI case. Some of these defenses include:
- Lack of Reasonable Suspicion: If an officer pulls over a defendant because of a third-party tip and not an offense committed in plain view, the stop is inherently suspect and susceptible to challenge.
- Breathalyzer Issues: In borderline BAC cases, the Breathalyzer results are not always accurate.
- Circumstantial Evidence: In refusal cases, the defendant often performed poorly enough on field sobriety tests to justify arrest, but not poorly enough to warrant a conviction. The latter requires proof beyond a reasonable doubt.
Prosecutors in many Texas jurisdictions never dismiss or lower DWI charges, no matter how weak the evidence is, so an aggressive defense often makes a very big difference.