Under Texas law, a charge, and a subsequent conviction for a DWI in Texas would be pursuant Penal Code Section 49.05. To be intoxicated, a person must be shown not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body OR having an alcohol concentration of 0.08 or more. This is the difference whether the charge is a class B misdemeanor or higher. Under this section, A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.
There is an instance in which the offense could be reduced to a class C misdemeanor according to the law. In its pertinent part, the law gives this proviso, “It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in: (1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or (2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.” Yes, a DWI could be reduced to a class C misdemeanor if the conditions above are met.
In most cases, “a peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.” This is highly unusual, yet it’s what the law requires in most instances where the conditions are met. Again, highly unusual but a tool that can be used by knowledgeable attorney helping their clients.
Under certain conditions, a prosecuting attorney must negate the existence of an exception in the accusation charging the commission of an offense and prove beyond reasonable doubt that the defendant or defendant’s conduct does not fall within an exception. This is the basic reason why you should contract a DWI lawyer if you have been accused of committing this offense in Texas. A knowledgeable attorney would fight to see if you fall within one of the exceptions of the law and more importantly, whether the cops had the probable cause to stop you and whether the prosecuting attorney had the ability to charge you or the responsibility to provide exculpatory evidence that can help you. Call attorney E.R. Báez today!
If you’ve been indicted or are under criminal investigation in San Antonio or anywhere else in the state of Texas, contact our lawyer by filling up the form below