San Antonio Felony Drunk Driving Attorney

While a DWI is often charged as a misdemeanor in Texas, there are several circumstances that can lead to felony charges. A felony DWI conviction carries harsher penalties, including a lengthy prison sentence, fines worth tens of thousands of dollars, and a permanent criminal record.

At The Law Offices of George A. Scharmen, our San Antonio felony DUI lawyer can help you defend against felony DUI charges. Our felony DUI attorney will work to reduce the charges against you, if possible, and help you protect your rights throughout the legal process. We understand that a felony conviction can have lasting effects on your life, so we will do everything we can to help you avoid the consequences of a conviction.

One of the most important reviews your lawyer must make of your felony drunk driving case is examining the prior judgments against you. Often the prior DWI judgments are from another state where the law is so different from Texas law that they may not be used in a prosecution here. There are many other legal issues concerning the prior DWI or DUI judgments that must be reviewed prior to the trial to determine whether or not your charges qualify as a true felony in Texas.

Learn more about your rights and the consequences of a felony DWI conviction in Texas by contacting our San Antonio felony DUI attorney today. Contact us online or at (210) 405-9730 for a free consultation.

Understanding Felony DWI Charges in San Antonio, TX

In Texas, a DWI charge can be either a misdemeanor or a felony, depending on the circumstances of the arrest and the accused's criminal history. A DWI can be charged as a felony if the accused has two or more prior convictions for DWI or if the accused was driving a vehicle with a child passenger who is under the age of 15. Each additional child will be an additional felony. The number of charges impacts the sentence.

A true third DWI conviction is a third-degree felony, punishable by a fine of up to $10,000, imprisonment for 2 to 10 years, or both. For each subsequent DWI conviction, the penalties may increase further.

Other Types of Felony DWI in Texas Include:

• Intoxication Assault Charges: If a person causes serious bodily injury to another while driving under the influence of alcohol or drugs, they can be charged with intoxication assault. This offense is a third-degree felony, carrying penalties of a fine of up to $10,000, imprisonment for 2 to 10 years, or both.
• Intoxication Manslaughter Penalties: If a person operates a vehicle while intoxicated and, as a result, causes the death of another person, they can be charged with intoxication manslaughter. Intoxication manslaughter is a second-degree felony in Texas. The penalties for this offense include a fine of up to $10,000, imprisonment for 2 to 20 years, or both.
• San Antonio DWI with Child Passenger: If a person is arrested for DWI and there is a child younger than 15 years of age in the vehicle, they can be charged with DWI with a child passenger. This offense is a state jail felony in Texas, punishable by a fine of up to $10,000, imprisonment for up to 2 years in a state jail, or both.

Long-Term Impact of a Felony DWI in Texas

A felony conviction can have serious consequences for the accused. Beyond the potential jail time, fines, and license suspension, a felony conviction can have lasting effects on your job prospects, housing opportunities, and future education endeavors. Felony convictions can also make it more difficult to obtain a loan or a mortgage, and they can impact an individual's ability to obtain a professional license.

Below is a version of a paper I wrote for lawyers recently when I was a presenter at a DWI seminar. 

Technical Difficulties
  “Do I really have a prior DWI conviction? Is my case 
a misdemeanor and not a felony?!”

In 1985, the Texas Constitution Article 5 was amended so that the prosecutors can give the district courts felony jurisdiction, as a matter of law, when they simply “say” that a person has two prior DWI convictions. You would think that with that kind of power, prosecutors would be very careful with their words because a felony indictment has far-reaching effects upon a person’s life. But no. At that same time, the Texas Legislative branch in its wisdom adopted Texas Code of Criminal Procedure Art. 1.14(b) and placed the burden on defense counsel to challenge jurisdiction and ask for a hearing prior to trial. This article is draconian:

(b) If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other post-conviction proceeding. Nothing in this article prohibits a trial court from requiring that an objection to an indictment or information be made at an earlier time in compliance with Article 28.01 of this code.

So now, your felony DUI lawyer is the external quality control team for all of the district attorneys in the State of Texas, and it gets worse. If your lawyer does not do his job, and he has you plead to a felony DWI third with an invalid judgment for enhancement, your lawyer was guilty of ineffective assistance of counsel as a matter of law. Ex Parte Harrington, 310 S.W.3d 452, 459 (Tex. Crim App. 2012). Because defense counsel waives the jurisdiction challenge to the void prior, it's over. There is no appeal of the DWI. There is no challenge of felony jurisdiction available. The only remedy for the defendant is to petition the court for a writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure for ineffective counsel. That petition is by far the most filed pleading by defendants. These petitions are everywhere. They are very technical, and they are rarely granted. This situation is a bummer for everyone involved, and yes, I have seen more than one case in which a person spent 2 years in prison on a DWI which was really a misdemeanor.

However, when someone comes to me with a felony DWI, the first thing I look at is the prior convictions. I call the county clerks, get copies of the court papers, and review them from the first to the last page. Some of the times I am unable to obtain the information before the indictment. Nevertheless, if I find a problem, I file a motion to dismiss the indictment immediately.

There are many reasons why a judgment may be invalid to enhance the charge in order to give felony jurisdiction to a district court. 

Pardon

If a person was validly convicted, the judge may pardon him after he successfully completes probation or deferred adjudication. When that happens, the judgment cannot be used against him as a prior judgment to give a district court jurisdiction. Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002)

Not a Texas DWI judgment

In some states, like New York for example, a driving while intoxicated (DWI) or driving under the influence (DUI) at .08 or higher may be reduced by plea bargain to a DWAI (driving while alcohol impaired). This law is similar to DUI minor in Texas. New York DWAI cannot be used for enhancement in Texas. Likewise, judgments where minors are convicted for DWAI or adults are convicted for DWAI, the judgments are likely unusable for enhancement in Texas. This may occur in judgments from other states such as Washington, Oregon, Mississippi, New Mexico, and others.

No Lawyer

A person may have been convicted of his first DWI without the assistance of a lawyer. In Texas, several counties changed over from paper files to electronic files. In doing that the clerk retained only the judgments on the misdemeanors. Therefore, the State cannot refer to the court reporter record or the docket sheet or plea papers to confirm the presence of a lawyer or waiver of counsel. If the judgment recites that there was no defense lawyer in the case, and there is no indication that the person knowingly waived a lawyer, the judgment is void for enhancement.

Deferred or pretrial diversion

In 2015, Texas adopted the use of deferred adjudication for DWI punishment. However, the law states that even though the case will be dismissed, it may still be used for enhancement to a greater charge if the person later is arrested for DWI. Pretrial diversion is a type of probation that is not monitored by the judge, and it is not court-ordered supervision. It is monitored by the prosecutor's office, and later they dismiss the case without a judgment or a plea.

Prior to 2015, if a person was arrested for DWI and he was placed on deferred for one year, prosecutors may try to use the judgment for enhancement. Since no conviction occurred, an attempt to use this deferred dismissal is illegal for a number of reasons, including failure to provide a valid conviction or attempting to apply Texas deferred adjudication ex post facto, a violation of the constitution. Be aware that in the late 1990s and early 2000s, many state and county governments allowed judgments and certificates of judgments to prove in their state or county that the person had a previous conviction. It is a practice in many east coast states, including New York and some of the Texas coastal counties. The key to challenging these certifications is to compare their “certificates” to Tx Code Crim. Proc. Art. 42.01, which defines a "judgment" in Texas.

These are some examples in which a felony may actually be a misdemeanor. There may be more circumstances of this problem depending on your situation. Make certain that your lawyer is up to this task. It is his job.

Understanding your rights and obligations can be empowering when facing felony DUI charges. It's crucial to know that having prior offenses might not necessarily mean you are automatically guilty of a felony. It's essential to scrutinize all aspects of previous convictions, especially if they occurred out of state. Moreover, understanding the nuances in how different states interpret and apply these laws is vital for a fair trial. Gathering all potentially exempt documentation promptly can lead to significant developments in how your charges unfold.

Additionally, one needs to be aware of the evolving legal landscape regarding intoxication offenses. Regular legal updates can provide advantageous insights into defending against severe charges. Moreover, being informed about common prosecutorial strategies can aid in anticipating legal maneuvers. This awareness can significantly enhance your defense while ensuring that no oversight leads to unintended felony charges.

Laying out a detailed defense plan with a focus on factual evidence over assumptions is fundamental. Preparing thorough documentation, witness lists, and understanding plea opportunities can distinctly shape outcomes. Legal preparation, supplemented by informed decisions based on updated legislation and rulings, offers reliable pathways through these complex legal challenges.

Considerations for Out-of-State Prior Convictions

Dealing with a felony DUI in Texas involves careful consideration of any previous convictions from other jurisdictions. Many individuals are unaware that not all out-of-state convictions qualify as enhancements under Texas law. This means that a previous charge in another state might not necessarily escalate your current situation to a felony in Texas. It is crucial to evaluate each out-of-state offense to determine its applicability under Texas felony enhancement rules. This evaluation can often reveal inconsistencies that may prevent unjust felony charges.

Another important aspect of handling out-of-state convictions involves understanding the specific laws of those states. For instance, if a DWI conviction from another state was downgraded to a lesser offense, such as a DWAI in New York, it may not count against you in Texas. Careful examination of your previous records and consultation with a knowledgeable attorney can ensure that only valid convictions are considered in your current charges, potentially influencing the severity of the penalties you face.

Implications of Felony DWI on Family & Future

The repercussions of a felony DUI extend beyond legal penalties and can significantly affect family dynamics and future opportunities. A felony conviction can impact your family's financial situation due to court fees, legal expenses, and possible loss of income. Additionally, the emotional strain of facing felony charges can cause stress and anxiety in family relationships, potentially affecting communication and support systems.

Thinking about future opportunities, a felony DWI conviction can limit your career prospects and educational pursuits. Many employers and educational institutions conduct background checks, and having a felony on your record can present a barrier. This can restrict your access to jobs in certain fields and reduce opportunities for advancement. Understanding these broader impacts is vital, and individuals facing felony DUI charges should seek legal advice to explore options for lessening the potential effects on family and future prospects. By addressing these issues proactively, clients can better prepare and potentially mitigate the long-term consequences of their charges.