Overall, the new law is vague and encourages inconsistency in the justice system... based on the ambiguity of the law, I would encourage all of my clients to never submit to chemical testing if they are pulled over on suspicion of DWI.
Dallas, Texas (PRWEB) October 27, 2011
Texas’ 82nd legislature recently passed a number of new laws, many of which affect drivers throughout the state. One such law, HB 1199, became effective on September 1st, and impacts drivers who are charged with driving while intoxicated (DWI) offenses in Texas. Dallas DWI attorney, Richard C. McConathy, analyzes the new laws and their impact on drivers in Texas.
House Bill 1199 modified the state’s intoxication laws in the Texas Penal Code by adding a provision for individuals with a high blood, urine or breath alcohol concentration (BAC) level. The changes provide for enhanced penalties for anyone charged with a DWI with a BAC level of .15 or higher.
The text of HB 1199 states an individual who is charged with DWI with a high BAC of .15 or over can now be convicted of a Class A misdemeanor.
“The new law is very ambiguous and gives rise to many questions, such as whether the classification as a Class A misdemeanor for high blood alcohol levels applies to all DWI offenses, or does it only apply to first time offenders? What would the penalty be if a repeat DWI offender had a BAC of .15? Third or subsequent DWIs are normally punishable as felonies of the third degree in Texas,” stated Richard C. McConathy, a Dallas intoxication assault lawyer.
Texas’ former DWI law, codified in Tex. Penal Code § 49.04, did not provide for a high blood alcohol level DWI. DWI convictions due to the impairment of normal mental and physical faculties or a BAC of .08 or higher were all previously punishable as the same offense, which was a Class B misdemeanor for a first offense. Subsequent DWI convictions lead to greater penalties and punishments.
As stated in Chapter 12 of the Texas Penal Code, a DWI conviction for a Class B misdemeanor is punishable by up to 180 days in jail and/or a fine up to $2,000. A Class A misdemeanor is punishable by up to one year in jail and/or a fine not more than $4,000.
“Previously, the punishments for a convicted DUI offender depended on whether the alleged offender had prior DUI convictions or if they caused death or injury to another person as a result of the DUI,” said McConathy, a lawyer for first DUI in Dallas County. “The laws now require the judge or jury to determine how serious the offense is based on a chemical test.”
McConathy continued, “The new law also does not specify when the chemical test needs to be taken in order to ascertain the driver’s BAC. The changed law doesn’t take into account if the alleged offender is still absorbing alcohol or eliminating it from their system at the time the test is taken, which can result in very different BAC levels.”
HB 1199 also provides for increased penalties for individuals charged with intoxication assault or DWI with serious bodily injury that results in severe brain injuries. If the DWI offense results in a traumatic brain injury to another person that causes a persistent vegetative state, the driver will be charged with a felony of the second degree.
House Bill 1199 expands Tex. Pen. Code Ann. § 49.09, which defines enhanced penalties for various DWI offenses. The new law includes intoxication assault causing severe brain damage among the offenses punishable with enhanced penalties. The former DWI enhanced penalty law only allowed increased penalties for intoxication assault upon certain people, including peace officers, emergency medical services personnel or firefighters.
As defined in Tex. Pen. Code Ann. § 49.07, intoxication assault is generally punishable as a felony of the third degree. If the intoxication assault falls under a DWI offense for enhanced penalties, it is punishable as a felony of the second degree.
Chapter 12 of the Texas Penal Code states a felony of the third degree is punishable by a prison sentence from two to ten years and/or a fine up to $10,000. A felony of the second degree can result a two to 20 year prison sentence and/or a fine not more than $10,000.
According to McConathy, “Overall, the new law is vague and encourages inconsistency in the justice system. For example, if an alleged DWI offender refused to take a breath test, but in reality had an extremely high BAC, they could be charged with a Class B misdemeanor. If another person followed the laws and submitted to chemical testing, but had a BAC right at a .15, they would be charged with a Class A misdemeanor, which is a more serious offense. Based on the ambiguity of the law, I would encourage all of my clients to never submit to chemical testing if they are pulled over on suspicion of DWI.”
Richard C. McConathy of the Law Offices of Richard C. McConathy is a Dallas DWI attorney who represents individuals accused of driving while intoxicated (DWI), Second DWI, Felony DWI, Intoxication Assault and Criminal Traffic Offenses throughout northeast Texas, including Dallas County and the surrounding areas of Collin County, Tarrant County, Wise County, Johnson County, Denton County, Ellis County and Rockwall County.
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