Prosecutors always bring the most aggressive charges that the facts can possibly support, mostly to obtain leverage during pretrial settlement negotiations. So, it is very common for DWI charges to include one or more enhancements. Here are some of the ones we see most frequently.
This infraction is technically a separate offense and not a DWI enhancement. Texas Penal Code 49.031 is a Class C misdemeanor (a traffic ticket). Under subsection (b), it is illegal to:
- Knowingly possess
- An open container
- In a passenger area
- While the vehicle “is being operated or is stopped or parked.”
Possession is not the same as proximity. The passenger could have an open container, but the driver arguably does not possess that container in a legal sense. Curiously, this statute clearly states that the vehicle must be in motion for the defendant to “operate” it. Therefore, it would appear that the vehicle must be moving for the defendant to be convicted of DWI, because 49.04 makes it illegal to “operate” a motor vehicle while intoxicated.
DWI Child Passenger
49.045 is a little more straightforward. If the defendant is convicted of DWI and there was a child under 15 anywhere in the vehicle, the offense is a state jail felony instead of a misdemeanor. The best way to beat the enhancement is to attack the elements of a DWI.
49.07 makes a misdemeanor DWI a third degree felony if the defendant also caused an 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;” if the victim dies, the offense is a second degree felony.
Many typical car crash injuries, such as whiplash and broken bones, probably do not meet the “serious injury” threshold. Moreover, in most DWI collision cases, a non-police witness must place the defendant behind the wheel at the time of the crash. Sometimes, such a witness either is not available or cannot provide conclusive testimony.
A prior DWI may be the most common enhancement. The penalties expand with each prior conviction up to three:
- First DWI is a Class B misdemeanor (Class A if the defendant’s BAC was above .15),
- Second DWI is a Class A misdemeanor,
- Third DWI is a third degree felony (second degree felony if the defendant has any prior felonies).
Texas has a ten-year lookback period in these cases, and it’s a little uncertain whether the arrest date or the conviction date is the starting point for the ten-year count.
Connect With an Assertive Attorney
DWI enhancements make a bad situation worse. For a free consultation with an experienced criminal defense lawyer in Houston, contact the Law Office of Jim Medley.