James Bond novelist Ian Fleming once wrote that “Once is happenstance, twice is coincidence, and three times is enemy action.” That same idea basically applies to felony DWIs in Texas, except in this case, the “enemy” is not an outside force, but a struggle with alcohol. After all, if a person is married and divorced three times in ten years, most will assume that the person has a problem with relationships.
The happenstance/coincidence/enemy action flow also applies to DWI enhancements. Drinking and driving is dangerous enough, many reason, and so adding hazard on top of hazard almost demonstrates a contempt for the safety of others.
Given these preconceived notions, felony and enhanced DWI cases are some of the most difficult ones to defend.
In some other states, for defendants who are convicted of three DWIs in ten years, the state will either lock them up and throw away the key or virtually ensure that they never drive again. But in Texas, although the maximum prison sentence and license suspension periods (Ten years and two years respectively) are high, the possible minimums (two years and 180 days) are also rather low. Moreover, Harris County is one of the few jurisdictions in the state which offers deferred sentencing for a third DWI. The defendant must serve a minimum ten days in jail as a condition of probation.
Prior convictions are normally inadmissible except for impeachment purposes (e.g. the defendant testifies that the DWI was a one-time mistake), but most jurors are smart enough to conclude that if the defendant is being charged with felony DUI, the defendant has prior convictions. So, during jury selection, an attorney must take great care to ensure that the prior convictions do not factor into the jury’s deliberations.
Prosecutors normally bring the most serious charges that the facts possibly justify, so if there is any evidence in support of an enhancement, it’s almost always included in the charges. Some common DWI enhancements include:
- Open Container: This enhancement is technically a separate offense, so it’s important to secure a separate trial on the open container violation if at all possible. If that happens, some prosecutors drop the class C PC 49.031 offense.
- Child Passenger: The law defines a “child” as someone under 15 for purposes of this enhancement. The offense is a state jail felony, meaning a maximum two year prison sentence and possibly no probation.
- Intoxication Assault/Intoxication Manslaughter: Intoxicated motorists who cause serious bodily injury to another person, which is defined as a wound “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,” are guilty of a third-degree felony. If the person dies, the charge is upgraded to a second-degree felony.
As a side note, voluntary intoxication may be a defense to a murder charge, since murder is a specific intent crime.
Count on a Tenacious Attorney
Enhanced and felony DWIs require highly experienced attorneys. For a free consultation with an experienced criminal defense lawyer in Houston, contact the Law Office of Jim Medley.