Tim Powers, Denton Criminal Defense Attorney
Aggressive DWI Defense
House Bill 1199 became law on June 17, and will become effective for cases arising on or after September 1, 2011.
What this law does is enhance the misdemeanor class of a DWI 1st if it is shown at trial that the suspect had a breath, blood or urine test greater than a .15 at the time of the test. A DWI 1st is a class B misdemeanor that carries a maximum of 180 days in jail and a fine of $2000. Under this new law, if you are charged with a DWI 1st, and blow a .15 or greater, the charge will be enhanced to a class A misdemeanor that carries a maximum of one year in jail and a $4000 fine. Another troubling issue with this law is the language “at the time of test”. The Texas per se Statute (stating someone is legally intoxicated at .08) requires the fact finder (jury) to believe someone was a .08 or greater at the time of driving, not the time of the test. In fact, a jury could believe someone is a .08 or greater at the time of the test and not over a .08 at the time of driving, and they have to find the defendant not guilty. HB 1199 just says time of test.
DPS will likely have to rewrite their DIC 24 Statutory Warning to include language notifying the suspect of the potential “upcharge” for providing a higher sample, otherwise, the government may have more difficulty with the Constitutional Due Process problems this new statute presents. This is more reason for you to refuse these tests! You could be now giving evidence that could potentially expose you to more punishment than the one you are currently charged with committing!!!
Normally, only DWI 2d is a class A misdemeanor. In addition to the enhanced punishment, all cases with a finding of .15 or greater already required ignition interlock device during probation and a higher surcharge than in a refusal case. This bill flew under the radar for the most part but appears to be the only major DWI legislation that survived the 82d Regular Legislative Session with the failure of the DWI Roadblock bill and Deferred Adjudication for DWI also not making the cut.