The Consequences of Impaired Driving:
The Prosecution’s Perspective

By Warren Diepraam

Any attorney, no matter what their area of practice, will be asked at some time to answer questions about the offense of driving while intoxicated (DWI). It may be at a party, it may be by a family member, or it may be a civil client. This article is intended as a basic guide to some general principles of impaired driving law. Impaired drivers are a significant danger to the safety and well being of all Texans. After many years of decreases in fatalities and cases filed, there recently has been an upsurge of filings. Due to the potentially deadly consequences of impaired driving, the statutes addressing this conduct are generally more severe than those addressing other criminal conduct. This article addresses some of the techniques available to prosecutors handling these cases.
Texas law does not prohibit drinking and then driving. It prohibits impaired driving due to the introduction of any substance into the human body. It does not take special training to recognize an impaired person. We have all seen it at some point in time. This also holds true for police officers conducting vehicle stops on traffic violators. The only way for a driver to prevent even the suspicion of impaired driving is not to drink and drive. Advising a client not to cooperate with the police investigation or to refuse to provide a breath sample leaves only evidence that will result in arrest and criminal charges.1 The tests are designed more so to free those who have simply had a drink or two at dinner than they are to build evidence of guilt. [“A Colorado Validation Study of the SFST Battery,” Southern California Research Institute, Marcelline Burns 1995.] Based upon numerous conversations with DWI officers, many more people are released for passing the tests than are arrested for failing. Although there is a right not to do the tests, the courts have held that sobriety tests are mostly acts of coordination that do not affect a person’s constitutional rights.2 For this reason, a refusal to submit to the officer’s requests will be admissible as evidence of guilt.3 Additionally, a police officer when faced with a refusal will have little choice but to contact the district attorneys office to file charges.
Even if charges are not filed, or are later dismissed, refusal to provide a breath sample results in some significant consequences over and above the stay in the local or county jail following arrest. The Texas Transportation Code generally provides for automatic suspension of a person’s driver’s license if that person’s chemical test is 0.08 or above or the person refuses to provide a chemical sample to a peace officer. This arises from the “Implied Consent” statute4 whereby all drivers arrested for a DWI type offense have technically told the State of Texas that they will supply a breath or blood sample when lawfully requested by a police officer. The suspension is for at least 90 days, depending on the number of prior alcohol-related or drug-related enforcement contacts during the 10 years preceding the date of the DWI arrest.5 Although the suspension is generally automatic, there is a method to contest the matter in an administrative hearing before the Department of Public Safety; the period in which to provide notice of such a hearing, however, is short, and it is unlikely to result in saving the subject’s license.6 Additionally, the ultimate resolution of the license issue has practically no effect on the criminal case because the administrative nature of the hearing means that jeopardy and collateral issues are not applicable.7 The only benefit to the subject is discovery of a portion of the prosecution’s case.
There are many serious criminal consequences that can arise from an impaired driving charge. A person who drives impaired can be prosecuted for the offense of Driving While Intoxicated.8 This offense is a Class B Misdemeanor that has a jail time punishment range from three days to six months or up to two years probation. From there, the ramifications get more severe. If a child is present in the vehicle, the driver can be charged with a felony9 with a punishment up to two years in jail. If a victim suffers serious bodily injury as a result of the impaired driver’s actions, the driver may face an Intoxication Assault felony10 with a punishment range of two to ten years in prison and a possible fine of up to $10,000.00. Finally, if an impaired person causes the death of another, the driver may face an Intoxication Manslaughter felony11 with a punishment range of two to 20 years in prison and a possible fine of up to $10,000.00. These statutes apply to all types of vehicles, including motor vehicles, boats, planes, or amusement park ride operations or assembly. The average conviction rate, including guilty and no contest pleas, in Harris County for a person arrested and filed on for one of these offenses is about 95 percent. Therefore, the chances of successfully escaping criminal liability are not good.
Generally speaking, the punishment consequences of a Chapter 49 intoxication related offense conviction are more severe than for other similar crimes. In almost all cases, a person convicted of a Chapter 49 offense may not receive a deferred sentence,12 but shall be convicted of the offense either through a probated sentence or jail time. A successfully completed deferred sentence is not considered a conviction, while a probated sentence is considered a conviction. In and of itself, this is a significant detriment to those charged with this sort of a crime because the conviction must be disclosed to potential employers and is not subject to any statutory non-disclosure schemes. There are other significant punishment ramifications. For instance, a person receiving a probated sentence under Chapter 49 will most likely face alcohol and drug abuse therapy,13 payment of costs,14 license suspension,15 DPS programs,16 and a vehicle ignition interlock device.17 These conditions are over and above the standard conditions normally placed on a criminal probation.
The convicted DWI offender is also subject to future or collateral consequences. Subsequent violations are enhanced with a person’s prior DWI history. For example, a second offense is classified as a higher-grade offense18 with a minimum term of confinement of 30 days and a maximum of one year. A third offense is classified as a third degree felony.19 Previously, the enhancement statute provided that a DWI conviction older than ten years was ineligible for enhancement. However, the legislature repealed the “Ten-Year Rule” effective for arrests on or after September 1, 2005.20 Therefore, there is no longer a staleness issue regarding prior DWI convictions. In addition to the increased sentences, a person faces significantly increased driver’s license costs21 as administered through the Texas Department of Public Safety with a minimum charge of $1,000 per year. The oft cited adage, “DWI – You Can’t Afford It,” appears to be a correct recitation of current law.
Considering that impaired drivers kill approximately 1,500 people in Texas annually, it is not surprising that there are additional methods available to combat impaired drivers. Habitually impaired drivers who take the life of another person have recently been prosecuted for Felony Murder,22 which carries the potential for a life sentence. This statute provides that a person who commits any felony other than manslaughter, commits acts clearly dangerous to human life, and as a result takes the life of another person can be prosecuted for the more serious felony. Habitually impaired drivers qualify. The first case of this sort was prosecuted in Harris County and is currently on appeal. An additional method used against impaired drivers that harm others, or in any felony where the facts merit, is to allege the subject’s motor vehicle is a deadly weapon if the manner of use of the vehicle was capable of causing death or serious bodily injury. A subject’s lack of intent is irrelevant. The consequences are that a judge or prosecutor may not award probation and that if prison time is assessed, the person has to serve at least half of the time before being eligible for parole.23 Considering the costs to society, it should not be surprising that creative methods to protect the public from impaired drivers are being used.
Impaired driving causes carnage on our roads and costs us billions in medical expenses and other costs, according to the national highway Traffic Safety Administration. The legislature has recently begun to recognize this danger to our safety by enacting tougher statutes to combat this problem. These laws have, until recently, had the effect of reducing fatalities. Nonetheless, this area of the criminal law is the most likely crime to affect a person either as a victim or a defendant. It would be best to inform clients that an ounce of prevention is worth a pound of cure.

Endnotes
1. Approximately 10,000 impaired driving cases on average are filed in Harris County each year resulting in almost 95 percent of those people being convicted. Additionally, recent trial statistics show that those who completely refuse to cooperate with police are convicted at higher rates than those who cooperate. 2. Parks v. State, 666 S.W. 2d 597 (Tex. App.-Houston [1st Dist.] 1984 and Forte v. State, 759 S.W. 2d 128 (Tex. Crim. App. 1988) 3. Texas Transportation Code (T.T.C.) 724.015 4. T.T.C. 724.011. 5. T.T.C. 524.022 6. T.T.C. 524.031 7. Tharp v. State, 935 S.W. 2d 157 (Tex. Crim. App. 1996) 8. Texas Penal Code (T.P.C) Section 49.04 9. T.P.C Section 49.045 10. T.P.C Section 49.07 11. T.P.C Section 49.08 12. Texas Code of Criminal Procedure (CCP) 42.12 Section 5 (d) with the lone exception being D.W.I. with a Child. As of September 1, 2005, D.W.I. with a Child became an enhanceable offense under Chapter 49. 13. CCP 42.12 Section (a)(2) 14. CCP 42.12 Section (d) 15. CCP 42.12 Section (g)(k)(l) 16. CCP 42.12 Section (h)(j) 17. CCP 42.12 Section (i) 18. T.P.C. 49.09 (a) 19. T.P.C. 49.09 (b) 20. See House Bill 51, 2005 Legislative Session 21. T.T.C. 708.102 22. T.P.C. Section 19.02 (b)(3) 23. C.C.P. 42.12 Sec. 3(g)(a)(2)

Warren Diepraam has been with the Harris County District Attorney’s Office since 1990 and has been an Assistant District Attorney since 1993. He is assigned to the Police Integrity Division investigating claims of excessive use of force and false arrests, and he is a member of the District Attorney’s vehicular homicide investigation team. A graduate of South Texas College of Law, Diepraam is a member of the Texas Impaired Driving Board and has been a speaker for many community and legal education programs.

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