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Houston DWI Attorney
DWI Laws and Laws Affecting Minors
The following information is from Texas HB3588, which under Chapter 708 establishes the Texas Driver Responsibility Program, under which drivers will accumulate points for each violation of the law and, in turn, are assigned penalties when they reach certain point levels. This program established increased penalties for drivers convicted on DWI, DUI, Driving While License Suspended, No Insurance, and other related offenses.
- CHAPTER 708: DRIVER RESPONSIBILITY PROGRAM
- SUBCHAPTER B. DRIVER'S LICENSE POINTS SURCHARGE
- SUBCHAPTER C: SURCHARGES FOR CERTAIN CONVICTIONS AND LICENSE SUSPENSIONS
- SUBCHAPTER D. COLLECTION OF SURCHARGES
- Legislation Affecting DWI Defense in Texas
- Selected Statutes of the Texas Alcohol Beverage Code that relate the Minors and Alcohol
CHAPTER 708: DRIVER RESPONSIBILITY PROGRAM
SUBCHAPTER B. DRIVER'S LICENSE POINTS SURCHARGE
(1) a conviction that became final before September 1, 2003; or
(2) an offense covered by Subchapter C.
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(a) The driver's license of a person accumulates a point under this subchapter as of the date the department records a conviction of the person under Section 521.042 or other applicable law.
(b) For each conviction arising out of a separate transaction, the department shall assign points to a person's license as follows:
(1) two points for a moving violation of the traffic law of this state or another state that is not described by Subdivision (2); and
(2) three points for a moving violation of the traffic law of this state, another state, or a political subdivision of this or another state that resulted in an accident.
(c) The department by rule shall designate the offenses that constitute a moving violation of the traffic law under this section.
(d) Notwithstanding Subsection (b), the department may not assign points to a person's driver's license if the offense of which the person was convicted is the offense of speeding and the person was at the time of the offense driving less than 10 percent faster than the posted speed limit. This subsection does not apply to an offense committed in a school crossing zone as defined by Section
541.302.
(e) Notwithstanding Subsection (b), the department may not assign points to a person's license if the offense committed by the person was adjudicated under Article 45.051 or 45.0511, Code of Criminal Procedure.
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Each year, the department shall assess a surcharge on the license of a person who has accumulated six or more points under this subchapter during the preceding 36-month period.
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The amount of a surcharge under this chapter is $100 for the first six points and $25 for each additional point.
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The department shall notify the holder of a driver's license of the assignment of a fifth point on that license by first class mail sent to the person's most recent address as shown on the records of the department.
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SUBCHAPTER C: SURCHARGES FOR CERTAIN CONVICTIONS AND LICENSE SUSPENSIONS
This subchapter does not apply to a conviction that became final before September 1, 2003.
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(a) In this section, "offense relating to the operating of a motor vehicle while intoxicated" has the meaning assigned by Section 49.09, Penal Code.
(b) Each year the department shall assess a surcharge on the license of each person who during the preceding 36-month period has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated.
(c) The amount of a surcharge under this section is $1,000 per year, except that the amount of the surcharge is:
(1) $1,500 per year for a second or subsequent conviction within a 36-month period; and
(2) $2,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.16 or more at the time the analysis was performed.
(d) A surcharge under this section for the same conviction may not be assessed in more than three years.
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(a) Each year the department shall assess a surcharge on the license of each person who during the preceding 36-month period has been convicted of an offense under Section 521.457, 601.191, or 601.371.
(b) The amount of a surcharge under this section is $250 per year.
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(a) Each year the department shall assess a surcharge on the license of a person who during the preceding 36-month period has been convicted of an offense under Section 521.021.
(b) The amount of a surcharge under this section is $100 per year.
(c) A surcharge under this section for the same conviction may not be assessed in more than three years.
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SUBCHAPTER D. COLLECTION OF SURCHARGES
The department shall notify the holder of a driver's license of the assessment of a surcharge on that license by first class mail sent to the person's most recent address as shown on the records of the department. The notice must specify the date by which the surcharge must be paid and state the consequences of a failure to pay the surcharge.
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(a) If before the 30th day after the date the department sends a notice under Section 708.151 the person fails to pay the amount of a surcharge on the person's license or fails to enter into an installment payment agreement with the department, the license of the person is automatically suspended.
(b) A license suspended under this section remains suspended until the person pays the amount of the surcharge and any related costs.
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(a) The department by rule shall provide for the payment of a surcharge in installments.
(b) A rule under this section:
- (1) may not permit a person to pay a surcharge:
- (A) of less than $2,300 over a period of more than 12 consecutive months; or
- (B) of $2,300 or more over a period of more than 24 consecutive months; and
- (2) may provide that if the person fails to make a required installment payment, the department may declare the amount of the unpaid surcharge immediately due and payable.
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(a) The department by rule may authorize the payment of a surcharge by use of a credit card. The rules shall require the person to pay all costs incurred by the department in connection with the acceptance of the credit card.
(b) If a surcharge or a related cost is paid by credit card and the amount is subsequently reversed by the issuer of the credit card, the license of the person is automatically suspended.
(c) A license suspended under this section remains suspended until the person pays the amount of the surcharge and any related costs.
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The department may enter into a contract with a private attorney or a public or private vendor for the provision of services for the collection of surcharges receivable under this chapter. The total amount of compensation may not exceed the amount set in Article 103.0031, Code of Criminal Procedure.
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Each surcharge collected by the department under this chapter shall be remitted to the comptroller as required by Section 780.002, Health and Safety Code.
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Legislation Affecting DWI Defense in Texas
A peace officer shall require the taking of a specimen of the person's breath or blood if there is a DWI arrest, accident and reasonable belief that that "any individual has died or will die, or an individual other than the person has suffered serious bodily injury," and the person refuses voluntary draw. (HB292)
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A person commits DWI w/child, a State Jail Felony "if vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age." (SB45)
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"A peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer's presence or view, if the offense is a felony, a violation of [Title 9,] Chapter 42 or 49, Penal Code, or a breach of the peace [, or an offense under
Section 49.02, Penal Code]." (SB840)
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"Individual" means a human being who [has been born and] is alive, including an unborn child at every stage of gestation from fertilization until birth for purposes of prosecution of homicide, assault and intoxication assault and manslaughter.
"Death" includes, for a person who is an unborn child, the failure to be born alive. Homicide and assault statutes do not apply if "the conduct charged is conduct committed by the mother of the unborn child..." Intoxication assault and intoxication manslaughter statutes do not apply "to injury to or the death of an unborn child if the conduct charged is conduct committed by the mother of the unborn child." (49.12) (HB 319).
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"Serious traffic violation" now includes violation of Section 522.042 (driving without certain commercial endorsements). Transp. Code §724522.003(25).
Commercial drivers lose their license for a year for first DWI conviction, having alcohol concentration of 0.04 or more, or that a controlled substance or drug was present in the person's body, while operating a commercial motor vehicle in a public place; or having alcohol concentration of 0.08 or more while operating a motor vehicle, other than a commercial motor vehicle, in a public place; or leaving the scene of an accident, or using any vehicle in commission of a felony. License suspension is three years if the person was transporting hazardous materials.
Transp. Code §724522.081.
A person is disqualified from driving a commercial motor vehicle for life if the person in two separate incidents refuses breath test or has an illegal blood alcohol concentration.
This article takes effect June 1, 2005 and applies only to conduct that is engaged in or to an offense that is committed on or after this date. (HB3588)
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Additional $30 Court Costs for traffic offenses to go to state fund.
A person commits an offense if the person observes the commission of a felony under circumstances in which a reasonable person would believe that an offense had been committed in which serious bodily injury or death may have resulted, but fails to immediately report the commission of the offense to a peace officer or law enforcement agency under circumstances in which a reasonable person would believe that the commission of the offense had not been reported, and the person could immediately report the commission of the offense without placing himself or herself in danger of suffering serious bodily injury or death. Failure to report is a Class A misdemeanor. (HB325)
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Those who received a discharge and dismissal under 42.12 §7245(c)(deferred adjudications) may "in the best interests of justice" obtain an "order of nondisclosure" ($28 fee to clerk for state fund) if the person gets nothing more than fine-only traffic offenses for 5 years after the dismissal of misdemeanors under chapters 20-22, 25, 42 or 46, and 10 years after the dismissal (for felonies). For all other misdemeanors, the person may seek an order immediately after dismissal. Persons cannot seek such orders for sex offenses, murder, offenses for family violence, stalking, injury to child (22.04), child endangerment (22.041), protective order violation (25.07). (Gov't Code §724411.081).
Clerk sends order of nondisclosure to DPS Crime Records Service. DPS sends copies of the order to "all law enforcement agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys, correctional
facilities, central state depositories of criminal records, and other officials or agencies or other entities of this state or of any political subdivision of this state, and to all central federal depositories of criminal records that there is reason to believe have criminal history record information that is the subject of the order."
Information is excepted from the requirements of the Public Information Act (Gov't Code §724552.021) if an order of nondisclosure with respect to the information has been issued.
A person who is the subject of information that is excepted from the requirements of the Public Information Act (Gov't Code §724552.021) may deny the occurrence of the arrest and prosecution to which the information relates "unless the information is being used against the person in a subsequent criminal proceeding."
Private entities that compile and disseminate for compensation criminal history record information may not do so with respect to which an order of nondisclosure has been issued. A district court may issue a warning to a private entity for a first violation, but faces a civil penalty not to exceed $500 for each subsequent violation. The AG or prosecutor may sue to collect. (SB1477)
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Those who have been "placed under a custodial or noncustodial arrest" are entitled to an expunction. Expunctions for acquittals is limited to district
courts and the defendant's attorney must prepare the order of expunction. (HB171) Records can be destroyed between 60 days after the date of the expunction order and the anniversary of the expunction order. Clerks must give notice to prosecutors within 30 days of records destruction. (HB2725) Victims of misused identity entitled to expunctions. (SB566)
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The culpable mental state for sale to an alcoholic beverage to "an habitual drunkard or an intoxicated or insane person" is reduced to criminal negligence. (HB1114)
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Not only must the doctor be intoxicated, but must also place the patient "at a substantial and unjustifiable risk of harm." It is a state jail felony and "emergency" is an affirmative defense.
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It is a class A if the person has a prior drag racing conviction, was intoxicated, or had an open container. It is a state jail if the person has been convicted twice; a felony of the third degree if it is shown on the trial of the offense that as a result of the offense, an individual suffered bodily injury; a felony of the second degree if it is shown on the trial of the offense that as a result of the offense, an individual suffered serious bodily injury or death.
One-year license suspension (but remains eligible to receive an occupational license); must perform at least 10 hours of CSR. If he completes CSR before the end of the person's license suspension, the person may apply to the department for reinstatement of the person's license or the issuance of a new license. (HB1326)
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Selected Statutes of the Texas Alcohol Beverage Code that relate the Minors and Alcohol
In this code, "minor" means a person under 21 years of age.
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(a) A minor commits an offense if the minor purchases an alcoholic beverage. A minor does not commit an offense if the minor purchases an alcoholic beverage under the immediate supervision of a commissioned peace officer engaged in enforcing the provisions of this code.
(b) An offense under this section is punishable as provided by Section 106.071
Attempt to Purchase Alcohol by a Minor (106.025)
- a. A minor commits an offense if, with specific intent to commit an offense under
Section 106.02 of this code, the minor does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
- (b) An offense under this section is punishable as provided by Section 106.071
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(a) A person commits an offense if with criminal negligence he sells an alcoholic beverage to a minor.
(b) A person who sells a minor an alcoholic beverage does not commit an offense if the minor falsely represents himself to be 21 years old or older by displaying an apparently valid Texas driver's license or an identification card issued by the Texas Department of Public Safety, containing a physical description consistent with his appearance for the purpose of inducing the person to sell him an alcoholic beverage.
(c) An offense under this section is a Class A misdemeanor (punishable by up to one year in jail and a $4,000.00 fine)
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(a) A minor commits an offense if he consumes an alcoholic beverage.
(b) It is an affirmative defense to prosecution under this section that the alcoholic beverage was consumed in the visible presence of the minor's adult parent, guardian, or spouse.
(c) An offense under this section is punishable as provided by Section 106.071.
(d) A minor who commits an offense under this section and who has been previously convicted twice or more of offenses under this section is not eligible for deferred adjudication. For the purposes of this subsection:
- An adjudication under Title 3, Family Code, that the minor engaged in conduct described by this section is considered a conviction of an offense under this section; and
- An order of deferred adjudication for an offense alleged under this section is considered a conviction of an offense under this section.
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(a) A minor commits an offense if the minor operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor's system.
(b) Except as provided by Subsection (c), an offense under this section is a Class C misdemeanor.
(c) If it is shown at the trial of the defendant that the defendant is a minor who is not a child and who has been previously convicted at least twice of an offense under this section, the offense is punishable by:
- A fine of not less than $500.00 or more than $2,000;
- Confinement in jail for a term not to exceed 180 days; or
- Both the fine and confinement.
(d) In addition to any fine and any order issued under Section 106.115, the court shall order a minor convicted of an offense under this section to perform community service for:
- Not less than 20 or more than 40 hours, if the minor has not been previously convicted of an offense under this section; or
- Not less than 40 or more than 60 hours, if the minor has been previously convicted of an offense under this section.
(e) Community service ordered under this section must be related to education about or prevention of misuse of alcohol.
(f) A minor who commits an offense under this section and who has been previously convicted twice or more of offenses under this section is not eligible for deferred adjudication.
(g) An offense under this section is not a lesser-included offense under Section 49.04, Penal Code.
(h) For the purpose of determining whether a minor has been previously convicted of an offense under this section:
- An adjudication under Title 3, Family Code, that the minor engaged in conduct described by this section is considered a conviction under this section; and
- An order of deferred adjudication for an offense alleged under this section is considered a conviction of an offense under this section.
(i) A peace officer who is charging a minor with committing an offense under this section is not required to take the minor into custody but may issue a citation to the minor that contains written notice of the time and place the minor must appear before a magistrate, the name and address of the minor charged, and the offense charged.
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(a) Except as provided in Subsection (b) of this section, a minor commits an offense if he possesses an alcoholic beverage.
(b) A minor may possess an alcoholic beverage:
- 1. While in the course and scope of the minor's employment if the minor is an employee of a licensee or permittee and the employment is not prohibited by this code;
- 2. If the minor is in the visible presence of his adult parent, guardian, or spouse, or other adult to whom the minor has been committed by a court; or
- 3. If the minor is under the immediate supervision of a commissioned peace officer engaged in enforcing the provisions of this code.
(c) An offense under this section is punishable as provided by Section 106.071.
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(a) Except as provided in Subsection (b) of this section, a person commits an offense if he purchases an alcoholic beverage for or gives or with criminal negligence makes available an alcoholic beverage to a minor.
(b) A person may purchase an alcoholic beverage for or give an alcoholic beverage to a minor if he is the minor's adult parent, guardian, or spouse, or an adult in whose custody the minor has been committed by a court, and he is visibly present when the minor possesses or consumes the alcoholic beverage.
(c) An offense under this section is a Class B misdemeanor.
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(a) A minor commits an offense if he falsely states that he is 21 years of age or older or presents any document that indicates he is 21 years of age or older to a person engaged in selling or serving alcoholic beverages.
(b) An offense under this section is punishable as provided by Section 106.071.
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a. This section applies to an offense under Section 106.02, 106.025, 106.04, 106.05, or 106.07.
a. Except as provided by Subsection (c), an offense to which this section applies is a Class C misdemeanor.
(c) If it is shown at the trial of the defendant that the defendant is a minor who is not a child and who has been previously convicted at least twice of an offense to which this section applies, the offense is punishable by:
- A fine of not less than $250 or more than $2,000;
- Confinement in jail for a term not to exceed 180 days; or
- Both the fine and confinement.
(d) In addition to any fine and any order issued under Section 106.115:
- The court shall order a minor placed on deferred adjudication for or convicted of an offense to which this section applies to perform community service for:
- A. Not less than eight or more than 12 hours, if the minor has not been previously convicted of an offense to which this section applies; or
- B. Not less than 20 or more than 40 hours, if the minor has been previously convicted once of an offense to which this section applies; and
- The court shall order the Department of Public Safety to suspend the driver's license or permit of a minor convicted of an offense to which this section applies or, if the minor does not have a driver's license or permit, to deny the issuance of a driver's license or permit for:
- A. 30 days, if the minor has not been previously convicted of an offense to which this section applies;
- B. 60 days, if the minor has been previously convicted once of an offense to which this section applies; or
- C. 180 days, if the minor has been previously convicted twice or more of an offense to which this section applies.
(e) Community service ordered under this section must e related to education about or prevention of misuse of alcohol if programs or services providing that education are available in the community in which the court is located. If programs or services providing that education are not available, the court may order community service that it considers appropriate for rehabilitative purposes.
(f) For the purpose of determining whether a minor has been previously convicted of an offense to which this section applies:
- An adjudication under Title 3, Family Code, that the minor engaged in conduct described by this section is considered a conviction under this section; and
- An order of deferred adjudication for an offense alleged under this section is considered a conviction of an offense under this section.
(g) In this section, "child" has the meaning assigned by Section 51.02, Family Code.
(h) A driver's license suspension under this section takes effect on the 11th day after the date the minor is convicted.
(i) A defendant who is not a child and who has been previously convicted at least twice of an offense to which this section applies is not eligible to receive deferred adjudication for a subsequent offense.
Importation by a Minor (106.08)
(a) No minor may import into this state or possess with intent to import into this state any alcoholic beverage.
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(a) No minor may plead guilty to an offense under this chapter except in open court before a judge.
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(a) Except as provided in Subsection (d) of this section, no person under 18 years of age may be convicted of an offense under this chapter unless his parent or legal guardian is present in court.
(b) If the parent or legal guardian of a person under 18 years of age accused of a violation of this chapter resides within the jurisdiction of the court before whom the case is to be heard, the court shall summon the parent or legal guardian to appear in court and shall require him to be present at all proceedings in the case.
(c) If the parent or legal guardian of a person under 18 years of age accused of a violation of this chapter resides outside the jurisdiction of the court before which the case is to be heard, the court shall give written notice of the charge against the person to the parent or the legal guardian.
(d) If the court is unable to locate or to compel the presence of the person's parent or legal guardian after diligent effort, the court may waive the requirement of presence of a parent or legal guardian.
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(a) On the placement of a minor on deferred adjudication for an offense under Section 49.02, Penal Code (public intoxication), or under Section 106.02, 106.025, 106.04, 106.041, 106.05 or 106.07, the court shall require the defendant to attend an alcohol awareness program approved by the Texas Commission on Alcohol and Drug Abuse. On conviction of a minor for an offense under one or more of those sections, the court, in addition to assessing a fine as provided by those sections, shall require a defendant who has not been previously convicted of an offense under one of those sections to attend the alcohol awareness program. If the defendant has been previously convicted once or more of an offense under one or more of those sections, the court may require the defendant to attend the alcohol awareness program. If the defendant is younger than 18 years of age, the court may require the parent or guardian of the defendant to attend the program with the defendant. (Emphasis added).
(b) When requested, an alcohol awareness program may be taught in languages other than English.
(c) The court shall require the defendant to present to the court, within 90 days of the date of final conviction, evidence in the form prescribed by the court that the defendant, as ordered by the court, has satisfactorily completed an alcohol awareness program or performed the required hours of community service. For good cause the court may extend this period by not more than 90 days. If the defendant presents the required evidence within the prescribed period, the court may reduce the assessed fine to an amount equal to no less than one-half of the amount of the initial fine.
(d) If the defendant does not present the required evidence within the prescribed period, the court:
- Shall order the Department of Public Safety to suspend the defendant's driver's license or permit for a period not to exceed six months or, if the defendant does not have a license or permit, to deny the issuance of a license or permit to the defendant for that period; and
- May order the defendant or the parent, managing conservator, or guardian of the defendant to do any act or refrain from doing any act if the court determines that doing the act or refraining from doing the act will increase the likelihood that the defendant will present evidence to the court that the defendant has satisfactorily completed an alcohol awareness program or performed the required hours of community service.
(e) The Department of Public Safety shall send notice of the suspension or prohibition order issued under Subsection (d) by first class mail to the defendant. The notice must include the date of the suspension or prohibition order, the reason for the suspension or prohibition, and the period covered by the suspension or prohibition.
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