A DWI arrest is the most common way an otherwise law-abiding person ends up in a Harris County criminal courtroom. In this video, Board Certified criminal defense attorney and former Vehicular Crimes prosecutor Brian Foley explains how a Texas DWI case actually works — from the moment the lights come on behind you to the day the case is resolved.
What "intoxicated" means in Texas
Texas Penal Code § 49.04 makes it an offense to operate a motor vehicle in a public place while intoxicated. Intoxication is defined two ways: not having the normal use of your mental or physical faculties because of alcohol or drugs, or having an alcohol concentration of 0.08 or more. The State only has to prove one. That is why a driver can be convicted with a test below 0.08 — and why a driver with a high test can still win when the video shows a person who is clearly in control of their faculties.
The stop, the tests, and the arrest
Most DWI cases begin with a traffic violation — speeding, a lane change without a signal, or a "failure to maintain a single lane." The officer then looks for signs of intoxication and asks the driver to perform the standardized field sobriety tests: the eye test (HGN), the walk-and-turn, and the one-leg stand. Those tests are voluntary, subjective, and designed to be failed. After arrest, the officer requests a breath or blood sample. A refusal often leads to a search warrant for blood, especially during "no refusal" periods.
The deadline most people miss
A DWI arrest opens two cases. The criminal case is prosecuted by the District Attorney. The driver's license case is prosecuted by DPS, and you have only 15 days from the arrest to request an Administrative License Revocation hearing. Miss it and the suspension is automatic. Request it and your attorney gets to question the arresting officer under oath before the criminal trial ever begins.
Penalties
A first DWI is a Class B misdemeanor (up to 180 days in jail and a $2,000 fine), enhanced to a Class A if your alcohol concentration is 0.15 or higher. A second DWI is a Class A. A third is a third-degree felony. A child passenger makes even a first offense a state jail felony, and a crash that seriously injures or kills someone becomes intoxication assault or intoxication manslaughter.
How DWI cases are won
Because Brian Foley and Luis Baez served on the Vehicular Crimes Team as prosecutors, they know exactly how a DWI is supposed to be built and where officers cut corners. Cases are dismissed or reduced by attacking the reason for the stop, the way the sobriety tests were administered, the maintenance and operation of the breath machine, the blood draw and lab analysis, and the credibility of the officer on video. Even when the evidence is strong, first-time offenders may qualify for a pretrial program that ends in dismissal and expunction.
If you or a loved one has been arrested for DWI in Houston or Harris County, the 15-day clock is already running. Call or text (713) 703-1718 for a free, confidential consultation.