San Antonio Felony DWI 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 DWI lawyer can help you defend against felony DWI charges. We 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 case is of 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 charge is 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 DWI lawyer 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 driving a vehicle with a child passenger who is under the age of 15.  Each other child will be an additional felony.  The number of charges impact 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 conviction. 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 DWI lawyer is the external quality control team for all of the DAs 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 3rd 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 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. I get copies of the court papers, and I 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 coasted 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 that 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.

Why Choose The Law Offices of George A. Scharmen for Your DWI Defense?

When facing felony DWI charges, having the right legal representation is crucial. At The Law Offices of George A. Scharmen, we understand the complexities of DWI laws in Texas and are committed to providing personalized and aggressive defense strategies tailored to your unique situation.

Here’s why our clients trust us:

• Experienced Legal Team: Our attorneys have years of experience navigating DWI cases, ensuring that you receive knowledgeable and effective representation.
• Comprehensive Case Evaluation: We conduct thorough investigations to uncover all relevant facts, identifying weaknesses in the prosecution's case that could work in your favor.
• Proven Track Record: Our history of successful outcomes speaks for itself. We strive to achieve the best possible results for our clients, whether through negotiation or trial.
• Client-Centered Approach: We prioritize open communication and transparency, keeping you informed throughout the legal process and addressing your concerns promptly.
• Flexible Payment Plans: We understand that legal fees can be daunting, which is why we offer flexible payment options to make our services accessible to everyone.

Don’t leave your future to chance. Contact us today for a free consultation and let us help you navigate the complexities of your felony DWI case with confidence and expertise.

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