One Continuous Year of Supervision Without a Violation Penal Code a§ 3456C

Courts frequently sentence people convicted of DWI offenses in Texas to DWI Probation, but staying on probation (and out of jail) can be challenging after a conviction. Much of the law about probation in Texas applies to DWI Probation, but there are some aspects of DWI Probation law that make it different from probation for other offenses.

UPDATE: HB 3582, 86th Texas Legislature, allows people charged with certain DWI offenses to receive deferred adjudication community supervision.

What is the law about DWI Probation in Texas?

Chapter 42A of the Texas Code of Criminal Procedure describes community supervision (commonly referred to as "Probation") and contains the law related to many powers that the judge has over people who have plead guilty to an offense in Texas. Until 2017, the law was found in Article 42.12 of the Texas Code of Criminal Procedure, but the law was restyled and Article 42.12 was pulled out of Chapter 42 and given its own chapter, Chapter 42A.

Chapter 42A allows DWI sentences to be "probated" by placing people who are convicted under community supervision. This law allows many people who are convicted of DWI do not spend time in jail. However, there are minimum jail terms required to be served under certain circumstances.² Subchapter I of Chapter 42A describes some DWI-specific Community Supervision rules.

Can I get deferred adjudication on a DWI charge in Texas?

Until recently, you could not get Deferred Adjudication Probation for DWI offenses in Texas. However, HB 3582, 86th Texas Legislature, changes everything.

The new law, which takes effect September 1, 2019, allows judges to place people charged with DWI first on deferred adjudication probation, so long as they did not have the BAC greater than 0.15% enhancement or held a commercial driver's license at the time of the offense.¹

Judges will be required to order interlock as a condition of deferred, unless, "based on a controlled substance and alcohol evaluation of the defendant, the judge determines and enters in the record that restricting the defendant to the use of an ignition interlock is not necessary for the safety of the community."^1a

Being placed on deferred will count toward repeat DWI enhancement.^1b

There will also me changes to the Nondisclosure procedure, but the overall scheme created by in the 85th Legislature will remain substantively unchanged.

What is the minimum time in jail for a DWI conviction if I am given Probation?

Jail sentences for DWI 1st convictions can be entirely probated, meaning that you don't have to serve any jail time if the judge allows you to serve your sentence on "community supervision." However, if the state proves that you have been convicted once before of a DWI-related offense more than 5 years before the current arrest, you will have to serve a minimum of 72 continuous hours in jail even if you are given probation.² The 72 hours requirement is 72 continuous hours, that is 3 full days. For instance, you cannot report at 8pm and be out by 12:01 a.m. midnight after serving only 16 hours.

If you have been convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years, you will have to serve a minimum of five days in jail as a condition of probation.² For a 3rd DWI in Texas (or more) and DWIs enhanced with prior intoxication manslaughter charges, not less than 10 days, and not less than 30 days for Intoxication Assault.² Intoxication Manslaughter requires a minimum jail term of 120 days as a condition of probation.²

What are the usual probation conditions for DWI in Texas?

Here are some of the typical DWI conditions of probation:

• DWI Education Class – two 4-hour classes
• M.A.D.D. Victim Impact Panel – 3-hour session
• Community Service (24-100 hours)
• Fines and Court Costs ($1,000)
• Alcohol/Drug Evaluation – 30 minutes to one hour
• No alcohol
• Ignition Interlock Device (learn more about interlock devices)
• Crime Stoppers fee

The drug or alcohol dependence evaluation is required by law for all people sentenced to DWI probation.³ Texas DWI education programs are also required, unless the judge waives the requirement for good cause shown (in a DWI 1st or repeat offender circumstance) or a jury sentences you to community supervision only plus recommends no driver's license suspension (for DWI 1st only).⁴ In addition, you will have other probation conditions that all misdemeanor offenses share. Courts typically require you to:

• submit to random drug tests (referred to as UA's)
• commit no other offense
• avoid injurious/vicious behavior and people of "immoral" character (what this means is anyone's guess)
• report monthly to a court probation officer
• permit home and work inspections by probation officer
• stay employed
• receive permission before leaving the county or state
• pay all fines and court costs
• support your dependents
• notify the court if your place of employment or home address changes

Can I get released early from my DWI Probation? Can I terminate early or go on nonreporting?

Chapter 42A Section 701 (formerly Section 20, Article 42.12) of Texas Code of Criminal Procedure discusses the authority of a judge to grant early release to a probationer. However, this law says that the judge's authority to release someone from probation does not apply to drunk driving convictions.⁵ So, no, you cannot be released early from probation on a DWI conviction.

However, in some counties you can go onto "non-reporting" status if you have successfully completed all of your probation terms, and you may also be able to have the interlock device removed. The law requires the interlock as a condition of probation for at least "50 percent" of the period of community supervision.^5a This opportunity is available on a case-by-case basis, and also varies by judge and county.

What is the amount of time that I will be required to be on Probation in Texas?

The length of time that you will have to be on probation varies depending on a number of factors, but you can expect it to be anywhere from a year to two years (or longer if you are facing a felony DWI probation stemming from a DWI 3rd or more conviction or an Intoxication Assault or Intoxication Manslaughter conviction). The typical range of time for probation varies from county to county in Texas, and many factors will determine what is likely in your particular case.

What is the law about DWI Probation Violations? What do I do if my probation officer is revoking my DWI probation?

If you have been accused of a Texas DWI probation violation, you are entitled to a hearing by a judge. The state must prove that you violated the terms of your probation by a preponderance of the evidence. If you have violated your DWI Probation, or if you are worried that you may have violated your DWI probation, or if you are accused of violating your DWI probation, please call a lawyer immediately. You have more options available to help you if you act quickly.

If your DWI Probation is revoked and you are sentenced to confinement, then the mandatory jail stay imposed as a condition of probation under 42A.401 is not credited towards the completion of the setence that the judge imposes for the probation violation.⁶

The most common kind of probation violations in DWI cases are violations stemming from a "dirty blow" on an interlock device. Learn more about how to prevent interlock violations below. Learn more about probation violations in general

How do I avoid interlock violations?

Ignition Interlock Devices (also known as Deep Lung Devices) are commonly ordered by judges to be installed in the cars of people accused of DWI while on bond or on community supervision for DWI offenses. Interlock devices may also be a condition of an occupational license.

The interlock device will require you to blow into it before your car is able to start. If the device detects the presence of alcohol on your breath, the device will prevent the car from being started. If this occurs while you are on bond or community supervision for DWI and the device detects alcohol, this is known as "blowing dirty," and such a failed test almost always requires an appearance before the judge. At the court appearance the judge may revoke your bond or probation, likely putting you back in jail, or revoke your ODL.

However, breath testing devices are susceptible to false positives, especially when residual mouth alcohol is present. For instance, if you were to drink a teaspoon of liquor, your blood alcohol would not rise more than a trace, but it could increase the results of a breath alcohol test by 0.50% BAC for 15 minutes! A 0.50% BAC would be enough to kill someone, but obviously one teaspoon of liquor would have no noticeable effect. Residual mouth alcohol disappears entirely in 15 minutes. Alcohol in your blood disappears very gradually, at a steady rate of about 0.02 an hour.

As a result, it's usually mandatory to blow 15 minutes after any dirty blow. If you took another breath test in 15 minutes, your residual mouth alcohol would be fully absorbed, and your measured alcohol level would drop back down to zero. If the device continues to detect the presence of alcohol, you will likely be in big trouble with the court.

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Legal References:

¹Texas Code of Criminal Procedure 42A.102(b)(1)(B), as amended by HB 3582, 86th Texas Legislature, effective September 1, 2019 –

(b) In all other cases, the judge may grant deferred adjudication community supervision unless:

(1) the defendant is charged with an offense:

(A) under [Section 49.045, 49.05, 49.065, 49.07, or 49.08] Sections 49.04-49.08 ^{, Penal Code; or}

[(B) under Section 49.04 or 49.06, Penal Code, and, at the time of the offense:

(i) the defendant held a commercial driver's license or a commercial learner's permit; or

(ii) the defendant's alcohol concentration, as defined by Section 49.01, Penal Code, was 0.15 or more;

(C) for which punishment may be increased under Section 49.09, Penal Code;

^1aTexas Code of Criminal Procedure 42A.408(e-1),(e-2), as amended by HB 3582, 86th Texas Legislature, effective September 1, 2019

^1aTexas Penal Code Section 49.09(g), as amended by HB 3582, 86th Texas Legislature, effective September 1, 2019

²Texas Code of Criminal Procedure 42A. 401 (formerly 42.12 Section 13(a)(1)) –

(a) A judge granting community supervision to a defendant convicted of an offense under Chapter 49, Penal Code, shall require as a condition of community supervision that the defendant submit to:

(1) not less than 72 hours of continuous confinement in county jail if the defendant was punished under Section 49.09(a), Penal Code;

(2) not less than five days of confinement in county jail if the defendant was punished under Section 49.09(a), Penal Code, and was subject to Section 49.09(h), Penal Code;

(3) not less than 10 days of confinement in county jail if the defendant was punished under Section 49.09(b), Penal Code;

(4) not less than 30 days of confinement in county jail if the defendant was convicted of an offense under Section 49.07, Penal Code [Intoxication Assault]; or

(5) a term of confinement of not less than 120 days if the defendant was convicted of an offense under Section 49.08, Penal Code [Intoxication Manslaughter].

³Texas Code of Criminal Procedure 42A.402

³Texas Code of Criminal Procedure 42A.403 & 42A.404

⁵Texas Code of Criminal Procedure 42A.701(g)(1) (formerly 42.12 Section 20(b)) – "This article does not apply to a defendant convicted of: (1) an offense under Sections 49.04-49.08, Penal Code"

^5aTexas Code of Criminal Procedure 42A.408(f) (formerly 42.12 Section 13(i))

⁶Texas Code of Criminal Procedure 42A.401(b)

Recent Case Results

• 2019 Not Guilty in Collin County DWI >0.15
• 2019 Not Guilty in Dallas County Indecency with a Child
• Oral Argument at the United States Federal 5th Circuit Court of Appeals on Prosecutorial Misconduct Claim arising out of Northern District of Texas
• 2018 Not Guilty in Martin County Aggravated Assault with a Deadly Weapon on a Peace Officer
• Not Guilty in 2018 Dallas County DWI Trial
• Client cleared in Dallas Police Shooting wrongful accusation
• Federal sentencing results in 10 Year Downward Deviation from Sentencing Guidelines in 2018
• Not Guilty Jury Verdict for client originally accused of Intoxication Manslaughter
• Case Dismissed after picking jury in Aggravated Sexual Assault of Child case in 2017
• United States Attorney dismisses case against client charged in El Paso Federal Court with Possession of Child Pornography
• ALL CHARGES DISMISSED against our client in the Twin Peaks Waco Biker case
• Client "No-billed" by grand jury investigating shooting death case
• Coverage of Case Involving Waco teacher sending messages to student
• Judge returns a Directed Verdict of Acquittal in case involving trainer of professional athletes
• Rare Not Guilty verdict in Rockwall County DWI
• 2016 Dismissal of Fort Worth Federal Possession of Obscene Visual Representation of the Sexual Abuse of Children
• Hill County Money Laundering case Dismissed and civil asset forfeiture assets returned
• Coverage of teen Lewisville client charged with hit-and-run death
• Two Montague County Indecency with a Child cases Dismissed

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Source: https://saputo.law/criminal-law/texas-probation-law/dwi-probation-law/

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