Common Texas Alcohol Crimes
Driving While Intoxicated (DWI)
The Law
TEXAS PENAL CODE 49.04 - Driving While Intoxicated
(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 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.
Explanation of the Law
A person commits DWI if the person is intoxicated while operating a motor vehicle in a public place. DWI is a Class B misdemeanor, with a minimum term of confinement of 72 hours. If an open container of alcohol was in the driver's immediate possession, the minimum term of confinement is six days. A second DWI is a Class A misdemeanor, with a minimum term of confinement of 30 days. A third DWI is a third degree felony. A second DWI within 5 years will cause installation of a breath test devise on the vehicle to prevent operation if ethyl alcohol is detected in the operator's breath.
Intoxicated means 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.
If the driver had a passenger who is younger than 15 years of age, the DWI is a state jail felony, instead of a Class B misdemeanor.
The fact that the driver is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense.
A person commits Boating While Intoxicated if the person is intoxicated while operating a watercraft. BWI is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
A person commits Intoxication Assault if the person, by accident or mistake while operating an aircraft, watercraft, or motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another person. Intoxication Assault is a third degree felony. Often, the injured person will be the driver's own passenger. If the passenger or another person dies, the offense is Intoxication Manslaughter, a second degree felony.
Each year, the Department of Public Safety (DPS) assesses a surcharge on the driver's license of drivers who during the past 3 years were convicted of DWI. The surcharge is $1,000 per year for 3 years. A second DWI conviction costs a surcharge of $1,500 per year for 3 years. If the driver had an alcohol concentration of 0.16 or more, the surcharge is $2,000 per year for 3 years.
Driver licenses can be suspended for one year for DWI. Driving with a suspended license is a Class B misdemeanor with increased license suspension time. In addition, the DPS assesses a $250 surcharge on the license per year for 3 years.
If a driver of any age refuses a breath or blood test, the DPS shall suspend the driver's license for 180 days. The suspension term increases to two years if the driver has one or more alcohol-related or drug-related enforcement contacts during the past 10 years.
If a driver who is 21 years of age or more fails to pass the test for intoxication, the DPS shall suspend the driver's license for 90 days. The suspension term increases to one year if the driver has one or more alcohol-related or drug-related enforcement contacts during the past 10 years.
For a driver under the age of 21 years, the suspension term for failure to pass the test for intoxication is 60 days for the first offense, 120 days for the second, and 180 days for the third.
An ignition interlock device will have to be installed on the car of a person convicted of driving with a blood alcohol level of .15 or more, if the defendant is to receive probation.
Minor in Possession of Alcohol (MIP)
The Law
TEXAS ALCOHOLIC BEVERAGE CODE 106.05 - Possession of Alcohol by a Minor
(a) Except as provided in Subsection (b) of this section, a minor commits an offense if he possesses an alcoholic beverage.
(b) A minor may possess an alcoholic beverage:
(1) while in the course and scope of the minor's employment if the minor is an employee of a licensee or permittee and the employment is not prohibited by this code;
(2) if the minor is in the visible presence of his adult parent, guardian, or spouse, or other adult to whom the minor has been committed by a court; or
(3) if the minor is under the immediate supervision of a commissioned peace officer engaged in enforcing the provisions of this code.
(c) An offense under this section is punishable as provided by Section 106.071.
Explanation of MIP Law
Texas Alcoholic Beverage Code, Sec. 106.05 provides that a minor (a person under the age of 21 years) commits this offense if he possesses an alcoholic beverage. A minor may possess alcohol if he is in the visible presence of his adult (over the age of 21 years) parent, guardian, spouse, or other adult to whom he has been committed by a court. A minor may possess alcohol while in the course and scope of his employment if he is an employee of a license or permittee and the employment is not prohibited by this code.
Punishment Ranges
MIP is a Class "C" misdemeanor punished by a fine not to exceed $500.00. However, if a minor has 2 or more prior convictions, the punishment is a fine of not less than $250.00 or more than $2,000.00 and/or confinement in jail for a term not to exceed 6 months!
The court shall order a convicted minor to perform community service for not less than 8 or more than 12 hours. However, if he has a prior conviction, the community service is not less than 20 hours or more than 40 hours.
The court shall order the Department of Public Safety to suspend the minor’s driver’s license or permit or, if he does not have one, to deny the issuance of one for: 30 days if he has no prior convictions; 60 days if he has one prior conviction; or 6 months if he has 2 prior convictions. For the purpose of determining whether a minor has a prior conviction, an order of deferred adjudication for a prior offense is considered a conviction!
The court shall require a convicted minor who has not been previously convicted to attend an alcohol awareness course approved by the Texas Commission on Alcohol and Drug Abuse. If he has been previously convicted, the court may require him to attend the course.
Defending MIP Charges
A charge of Minor in Possession (MIP) means that you, being a person under the age of 21 years, have been given a citation by a police officer or Texas Alcohol Beverage Control Officer for being illegally in possession, ownership, or control of an alcoholic beverage. The principal element of this crime, which must be proven beyond a reasonable doubt, is that you were in possession, ownership, or control of an alcoholic beverage.
Anytime minors attend a party, a nightclub, or enter a vehicle where alcohol is present they are at risk for receiving a MIP. A minor can be in the proximity of alcohol which belongs to another person, but cannot touch, hold in his/her hand, transport, attempt to purchase, consume, or have any contact with it. However, just because you were around alcohol and received a MIP ticket does not mean you are guilty. A skilled lawyer will know how to contend the issue of possession, which is not always easy for a prosecutor to prove.
Possession of an alcoholic beverage may also include situations in which there is "constructive possession." An example of constructive possession is when a minor is in an automobile where alcohol is readily accessible to any minor passenger in that vehicle. This situation extends to alcohol which is on the car seat, floor, or stored in the trunk of an automobile in which the driver is a minor and is in possession of the keys which unlock the trunk. Constructive possession may also exist when you are at a table with several people who are drinking from a pitcher of beer with cups scattered about, you pick up empty beer cans and cups, you hold a friend’s beer so that they can put on their jacket, or you use a beer can a spittoon. Furthermore, a minor will be considered to be in possession of alcohol simply if he/she is carrying a grocery bag for a friend in which alcohol has been packed.
Hiring a lawyer to fight your MIP charge can help you keep your record clean.
Public Intoxication (PI)
The Law
TEXAS PENAL CODE 49.02 - Public Intoxication
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.
"Intoxicated" is defined as: not having the normal use of mental or physical faculties by reason of the introduction of alcohol, 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.
An offense under this section is a Class C Misdemeanor. An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500.00. However, for a minor, the punishment terms are in the same manner as if he committed the offense of Possession of Alcohol by a Minor.
Explanation of PI Law
The charge of PI requires that the person be intoxicated to the degree that he/she is a danger to him/herself or another person. The law enforcement theory is that being publicly intoxicated makes a person vulnerable to robbery, assault, and a number of other difficulties. For instance, there could be the possibility of tripping on a curb while walking home and being hit by a car. Or an intoxicated person may plan to drive home or ride in a vehicle driven by another intoxicated driver. As for endangering another person, starting a fight or throwing a bottle in the general direction of another person at a bar would constitute endangerment.
A person may commit the offense of PI by being under the influence of alcohol or drugs. This may include prescription drugs, over-the-counter medications or even aerosol sprays.
In most cases, an individual charged with PI will be arrested and spend at least 6 hours in jail. However, a police officer could merely issue a citation and release the individual to the care of an adult who agrees to assume responsibility for the individual.
An individual arrested for PI will be required to post bail to get released from jail. "Bail" is the security given by the accused that he/she will appear in court to hear the charges brought by the court.
Defending PI Charges
There are four ways to win a PI case. 1) Convince the prosecutor/judge/jury that you were not intoxicated; 2) Convince the prosecutor/judge/jury that you were not in a public place; 3) Convince the prosecutor/judge/jury that you were not a danger to yourself or others; 4) Raise an affirmative defense that the intoxication was due to prescribed prescription drugs and alcohol was not involved.
It is a defense to prosecution for PI that the alcohol or drugs were administered for therapeutic purposes and as part of the person's professional medical treatment by a licensed physician. However, keep in mind that mixing alcohol and prescription medications is contrary to most medical advice.
Most successfully defended PI cases are on the theory that the person was not a danger. Simply being intoxicated in public is not enough to be convicted of public intoxication, you must also be a danger to yourself or to another person. This is where a lawyer can help. An effective lawyer will examine all the facts in your case and work to convince the prosecutor that you were not intoxicated to the point of danger. Again, if no "danger" then no public intoxication.
We Can Help
At the Law Office of Justin Copeland we are dedicated to defending the rights of those in need, and we are committed to the presumption of innocence. We believe in our clients and will aggressively defend your rights, no matter the situation. We recognize that every case is different, and we will build a custom defense strategy based solely on the merits of your case. You can rest assured that we will aggressively fight for your rights.
While we deal with the legal issues in your case, we fully understand the pressures and anxieties that you have to deal with on a day to day basis. We will work to help you through this very difficult time. We are committed to providing you with a helping hand as well as an aggressive legal representation.
Contact an Austin Criminal Defense Lawyer at the Law Office of Justin Copeland Today
At the Law Office of Justin Copeland we believe a client's defense is only as good as the relationship with his or her attorney. This relationship is best developed through open communication. For this reason, the Law Office of Justin Copeland is available by phone 24 hours a day, seven days a week, and Mr. Copeland personally returns all of his phone calls. We urge you to contact us today to setup a free initial consultation.
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Austin, TX 78701
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Georgetown, TX 78626
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