First-time DWI arrest with a .15 BAC Test in San Antonio.

A DWI is the last thing on most people’s minds when they go out with friends. But a DWI arrest can turn a fun evening into a real headache. Fortunately for most people, a DWI case is usually a low-level crime.

Primarily, most DWI cases do not involve injury or death. In fact, police stop most suspected DWI drivers for breaking traffic laws. For example, police stop drivers for:

  1. Failing to use a turn signal;
  2. Speeding;
  3. Weaving in a lane;
  4. Making wide turns; or
  5. Rolling through a stop sign.

Following that, the traffic stop escalates into a DWI arrest. That’s because the officer smells alcohol on the driver’s breath. And the driver does not perform well on the roadside tests. Finally, the officer arrests the driver and asks the driver to provide a breath or blood test.

In many cases, this first-time DWI arrest will be a Class B misdemeanor in Texas. But if the driver provides a breath or blood test with a BAC of .15 or more, then the DWI will become a Class A misdemeanor. This can lead to higher penalties. To see why, we first need to look at the Texas DWI Penal Code.

Texas DWI law.

Sec. 49.04Texas DWI Law
(a)A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b)Except as provided by Subsection (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c)If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
(d)If it is shown on the trial of an offense under this section that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.

Texas Penal Code Section 49.04 is the DWI law. It states when a driver is DWI. It also explains what happens if a driver is caught with an open container.

Critically, Texas Penal Code Section 49.04(d) describes the penalty for a person arrested for DWI with a blood-alcohol concentration of .15 or more.

What are the penalties for a first-time DWI in Texas?

If no one is hurt or killed, then the DWI will be a Class B misdemeanor. This means the following:

  1. The driver may get up to 180 days in county jail;
  2. He or she may also get a fine of up to $2,000.00;
  3. Jail time and a fine; or
  4. Probation and a fine.

In some cases, a Texas DWI driver may also have to pay an extra fine of $3,000, $4,500, or $6,000.

What are the penalties for a first-time DWI with a BAC of 0.15 or higher in Texas?

However, if the driver provides a BAC test of .15 or higher, then he may face the following penalties:

  1. Up to one year in county jail;
  2. Up to a $4,000.00 fine;
  3. Jail time and a fine; or
  4. Probation and fine.

In both cases, the DWI will be a misdemeanor. But the BAC test of .15 or more increases the possible jail time and fine.

In sum, first-time DWI cases with a BAC of .15 or more carry higher penalties than a simple DWI. But the crime is still a misdemeanor as long as no one is hurt or killed during the crime. And the driver is eligible for probation in both cases. The table below summarizes these key points.

DWI w/BAC below .15 vs DWI w/BAC of .15 or higher in Texas.

Key Differences.First-Time DWI.First-Time DWI with BAC Level of .15 or higher.
Offense level.Class B misdemeanor.Class A misdemeanor.
DWI BAC Range.BAC level of .08 but less than .15.BAC level of .15 or more.
Max possible jail time.Up to 6 months in county jail.Up to one year in county jail.
Max possible fine.Up to a $2,000.00 fine.Up to a $4,000.00 fine.
Time of BAC test.Prosecutor must show BAC of .08 or more at the time of driving.Prosecutor must show BAC of .15 or higher at the time the test was taken for enhanced penalty.
Can you get probation?Yes.Yes.

What are my options if I am arrested for a DWI-1st with a BAC of .15 or more?

The options will depend on two things. The facts of your case and your goals. Notably, we are only talking about a first-time DWI where no one is hurt or killed and where the driver has no criminal history. If this is your case, then you have two good options. You can fight your case. Or you can work something out.

Option 1: Fight your DWI case.

Police arrest motorists for DWI in San Antonio all the time. But that does not mean the person is guilty of DWI. To convict a driver of a regular DWI, the State must show the following facts:

  1. The driver did not have the normal use of his mental or physical faculties because he was drinking, using drugs, or both; or
  2. His BAC level was .08 or higher at the time of driving.

But under Texas Penal Code Sec. 49.04(d), the State must also show the driver gave a BAC test “of .15 or more at the time the analysis was performed[.]”. This requires the driver to push back on the breath test and the testing machine. Stated differently, the driver should show the jury why they should not believe the BAC test.

A driver can do this when he has a good DWI video. A good DWI video will show that the driver looks and sounds normal. It will also show the driver performing well on the roadside tests. In short, if these facts are present, then driver may want to fight the DWI charge.

Option 2: Work out a plea deal.

In many cases, drivers arrested for DWI with a BAC of .15 or more do not want to fight their case. This is common because the higher the BAC level, the more likely the driver will show signs that he is intoxicated. Stated differently, the driver will not pass the eye test.

But this is a personal choice. If this is your situation, then your attorney can speak to the prosecutor to work out a plea deal. This can result in a shorter probation term, smaller fines, and a lighter sentence. The key point is that a driver in this position has real options.

San Antonio DWI Criminal Defense Attorney.

A first-time DWI or DUI arrest creates real headaches for drivers. It can cause a person to lose his or her job or driver’s license. It can create family or personal problems. Worse yet, it can cause the person to spend thousands of dollars fighting the case. For this reason, you should consult with an experienced San Antonio DWI Attorney if you are in this position. The attorney will help you walk through the issues in your case. And he or she will be help you get the best outcome in your case based on your goals.

Law Office of Genaro R. Cortez, P.L.L.C.

730 West Hildebrand Avenue
Suite 2,
San Antonio, Texas 78212
Phone: 210-733-7575
Fax: 210-733-7578
Email: genaro.cortez@cortezlawyer.org