Not all drunk driving cases are treated the same under Texas law. For instance, if you are charged with a first-offense DWI, that is by default a Class B misdemeanor. However, if the evidence proves beyond a reasonable doubt that your blood-alcohol concentration was 0.15 percent or more, you can be charged, tried, and convicted of a Class A misdemeanor.
Note that these are separate offenses.
The Class B misdemeanor applies to a person who drives with a BAC of 0.08 percent or more, while the Class A misdemeanor applies to someone whose BAC is at least 0.15 percent.
Prosecutor, Judge Usurped Role of Jury
Appeals Court Orders New Sentencing!
A recent decision from the Texas 14th District Court of Appeals, Pho Van Do v. State, illustrates the critical importance of this distinction. In this case, prosecutors charged the defendant with a DWI that allegedly occurred in January 2017. The criminal information–the formal charging document–alleged the defendant had a BAC of “at least 0.15” percent at the time of his arrest. However, this specific allegation was not read to the defendant at his arraignment or presented to the jury prior to its deliberations.
The jury proceeded to convict the defendant of DWI. The defendant chose to let the judge assess his punishment. At the sentencing, the prosecution argued the defendant’s penalty should be “enhanced” due to his BAC.
The defendant objected, noting this information was never presented to the jury. The trial judge agreed with the prosecution, however, that the defendant’s exact intoxication level was a “punishment element” and not an “element of the actual offense.” On that basis, the judge sentenced the defendant to one year in jail, suspended to a similar period of community supervision (probation).
The 14th District said both the prosecution and the trial judge applied the law incorrectly. The question of the defendant’s BAC level at the time of his arrest was an issue of fact, which had to be decided by the jury during the guilt-innocence phase of the trial. Contrary to the trial judge’s reasoning, the defendant’s BAC was “not a basis for enhancement” but was in fact “an element of a separate offense.” In this case, the defendant was convicted of a Class B misdemeanor yet sentenced for a Class A misdemeanor.
Remarkably, the prosecution conceded in the appeals court that it made a mistake in treating the matter as a sentencing enhancement. Yet the state insisted the defendant’s sentence was still valid as the error was “harmless beyond a reasonable doubt.” The 14th District disagreed. The defendant had disputed the validity of the BAC test at trial. It was therefore possible the jury, had it properly considered the issue, might have found the defendant was legally intoxicated at the Class B misdemeanor level (0.08 percent) but not the Class A misdemeanor level (0.15 percent).
Given all this, the trial judge’s one-year sentence was illegal. The defendant was only properly convicted of a Class B misdemeanor, which carries a maximum jail term of 180 days. The 14th District therefore returned the defendant’s case to the trial court for a new sentencing hearing.
Having Trouble with a Complex DWI Case in Texas?
Speak with a Houston Drunk Driving Defense Attorney Today
A drunk driving conviction can have an enormous impact on your life. That is why it is critical for prosecutors and judges to handle such cases according to the law and not take shortcuts that undermine a defendant’s constitutional rights.
If you or a loved one were charged with drunk driving and need legal representation, contact DWI lawyer Tad A. Nelson in Houston, Galveston or League City today. For immediate assistance, contact our office today at 713-489-7373.