Frequently Asked Questions

Frequently Asked Questions

Level of Offenses FAQ’s

What is a Class C Misdemeanor?

Class C Misdemeanors:  Punishable by a fine not to exceed $500:

  • Assault by contact
  • Drug paraphernalia
  • Disorderly conduct
  • Theft under $100 
  • Insufficient funds
  • Traffic offenses
What is a Class B Misdemeanor?

Class B Misdemeanors: Fine not to exceed $2,000 and not more than 180 days confinement in county jail:

  • DWI (72 hours minimum jail; 6 days minimum with open container)
  • Possession of Marijuana (less than 2 oz.)
  • Theft over $100 but less than $750
  • Criminal mischief over $100 but less than $750 (vandalism)
  • Indecent exposure
  • Racing on a public road
  • Prostitution
What is a Class A Misdemeanor?

Class A Misdemeanors:  Fine not to exceed $4,000 and not more than 180 days confinement in county jail:

  • DWI (2ndoffense) (minimum 72-hours jail)
  • DWI over 0.15 BAC
  • Possession of marijuana (between 2 oz. and 4 oz.)
  • Possession of dangerous drugs (usually the possession of legal drugs without a valid prescription)
  • Assault causing bodily injury
  • Theft between $750 and $2,500 (whether by check or otherwise)
  • Criminal mischief over $750 but less than $2,500
What is a State Jail Felony?

State Jail Felonies:  Fine not to exceed $10,000 and confinement in state jail institution for no less than 180 days and no more than 2 years.

  • Possession of controlled substance less than 1 gram (typically methamphetamine, cocaine or heroin)
  • Credit card abuse (using another person’s credit card without authorization)
  • Third theft conviction of any amount
  • Theft between $2,500 and $30,000
  • Forgery
  • DWI with a minor under the age of 15 in the vehicle
What is a Third Degree Felony?

Third Degree Felonies:  Fine not to exceed $10,000 and confinement in Texas Department of Corrections for no less than 2 years and no more than 10 years.

  • Possession of controlled substance between 1 and 4 grams;
  • Aggravated assault
  • Assault causing bodily injury (enhanced from prior finding of family violence)
  • Burglary of a building
  • Theft between $30,000 and $150,000
  • DWI (3rdoffense)
  • Indecency with a child (by exposure)
  • Solicitation of a minor
What is a Second Degree Felony?

Second Degree Felonies: Fine not to exceed $10,000 and confinement in Texas Department of Corrections for no less than 2 years and no more than 20 years:

  • Possession of a controlled substance over 4 grams but less than 200 grams
  • Burglary of a building
  • Aggravated assault with a deadly weapon
  • Theft between $150,000 and $300,000
  • Indecency with a child (by contact)
  • Injury to a child
  • Attempted murder
  • Intoxicated manslaughter
What is a First Degree Felony?

First Degree Felony:  Fine not to exceed $10,000 and confinement in Texas Department of Corrections for no less than 5 years and no more than 99 years.

  • Murder
  • Possession of certain controlled substances
  • Possession of certain controlled substances with intent to distribute
  • Arson with death or bodily injury
  • Aggravated sexual assault of a child
  • Theft over $300,000

It should be understood that though many of these offenses carry mandatory minimum jail sentences, virtually every offense other than Murder has provisions whereby sentence may be probated or suspended for community supervision (probation).

Other points:

There are some offenses referred to as “hybrid” offenses which mean they can straddle boundaries of punishment — but for the most part the levels remain fairly consistent.  Some offenses like Driving While Intoxicated raise the minimum punishment level but are still considered to be in that general category.

Also many offenses are subject to what are known as enhancements.  Enhancements are other surrounding factors that can enhance — or increase the base punishment level for certain offenses.  The enhancement can be for something surrounding the transaction (like possession of drugs in a drug free zone), or as is often the case because of prior criminal history.

Frequently Asked Questions

Level of Defenses FAQ’s

What is Defense of a Third Party?

Under Texas law person can be justified in using deadly force  in certain circumstances.  THESE CIRCUMSTANCES VARY FROM CASE TO CASE.  Our law states that  a person may use force to protect a third party from unlawful use of force by an aggressor. The intervener's right to use force parallels the third party's apparent right of self-defense. That is, the third part may use force, when and to the extent that she reasonably believes the third party would be justified in using force to protect herself.

What is Self Defense?

Self-defense is defined as the right to prevent suffering force or violence through the use of a sufficient level of counteracting force or violence. This definition is simple enough on its face, but it raises many questions when applied to actual situations. For instance, what is a sufficient level of force or violence when defending oneself? What goes beyond that level? What if the intended victim provoked the attack? Do victims have to retreat from the violence if possible? What happens when victims reasonably perceive a threat even if the threat doesn’t actually exist? What about when the victim’s apprehension is subjectively genuine, but objectively unreasonable?

Self-defense is more complicated than it first appears. EACH SITUATION IS DIFFERENT.  The facts and circumstances determine whether or not a person has a right to use self-defense.  In order to handle the myriad situations where self-defense arises, states have developed rules to determine when self-defense is allowed and how much force a victim can use to protect themselves. As mentioned, the exact rules differ between states, but the considerations are largely the same.

Defense of Property:

The right of a person to protect one's property with reasonable force against another person who is threatening to infringe on one's possessory interest in such property.

Where a defendant is on trial for criminal assault or battery, he may argue, in certain instances, that he reasonably believed that his actions were necessary to defend his property. However, the use of force to protect property is much more limited than the right to use force to protect oneself or other people.

It is important to remember that deadly force can never be used simply to defend property against someone else’s interference with that property, even if that interference is unlawful and even if there is no other way to prevent that interference.

Frequently Asked Questions

DWI FAQ’s

What should I do if I get stopped after I have been drinking?

First of all, don't panic. You have not broken the law. If stopped after drinking, it is important for you to listen to the questions asked. You are required to show proof of a valid drivers license and valid insurance when stopped by the police. You should have these ready for the officer or know where to find them easily when you are driving.

Let the officer tell you why he stopped you. You really do not know. If the officer asks you where you have been or are going, you should understand that he or she is trying to engage you in conversation to see if you are O.K. to drive.

If the officer asks if you have been drinking, you should understand that he or she is patrolling for persons who may be DWI. Your answers will now be very important to your continued journey.

If you admit to have been drinking, understand that the officer will ask you how many drinks that you have had to make a quick assessment of his opinion of your sobriety. Whether you admit "a couple" or three, realize that you will most likely be asked to exit your car and perform exercises before you will be allowed to continue. (Whether or not you have been drinking is constitutionally speaking none of the police department's business. As an American, you have the right to drink responsibly and the right to keep your private life to yourself. This is also the case even if the officer says that he received a call from a "concerned citizen" about your driving.)

How many drinks does it take to have a 0.080 alcohol concentration?

The answer is not quite as straight forward as you may think. Alcohol is a poisonous substance. As soon as you put alcohol into your body, your body begins to remove it. Alcohol concentrations only rise when you drink more alcohol or at a faster rate than your body can eliminate it.

The best answer is by example. If an "average" 150 lb. man drinks 4 standard beers in 60 minutes, his alcohol concentration at the end of the 60 minutes would be 0.080. This is the same whether the drink is a 12 oz. beer, 4 oz. of wine or 1 oz. of 80 proof whiskey. This estimation varies from individual to individual and has many other factors that affect it.

What should I do to avoid a DWI?
The best advice is not to combine alcohol and driving. If you are going to drink, drink responsibly or plan a ride if you are not. If you will limit your drinking to one drink per hour, you should be fine.
Should I perform the field sobriety exercises?

In my professional opinion, you should not. If you have not been driving dangerously, it should not be an issue. Texas law does NOT REQUIRE YOU to do exercises for the police under any circumstances.

Two of the tests involve your balance. In one you stand with one foot immediately in front of the other and walk nine steps, turn in a particular way, and return 9 steps. The other balance test requires you to stand with one leg raised six inches off the ground for 30 seconds. You should consider any physical or balance limitations before you attempt these exercises as any mistakes will be attributable to your drinking.

The standard field sobriety tests consist of an eye test, a heel-toe walk and standing on one leg. These are not simple exercises and difficult to do perfectly on the first try even under the best conditions.

How should I tell the police officer that I don't want to do those tests?

After many years of debating this question, I believe that I have found the best way to handle this uncomfortable situation. If the officer asks you to do any tests (recite the alphabet from C to W or count backwards), just tell the officer that you would be glad to cooperate and you will do everything that you are required to do.

This answer will then require the officer to tell you that you are not required to do any of these tests. Unless you ask, the officer will not tell you that all exercises are completely voluntary.

I suggest that if the officer has a dilemma with your answer that you should suggest another method of taking your trip. Inform the officer that you will gladly call a spouse, friend or taxi if he has any concern for your driving safety. After you make this statement, rest assured that you are doing the best thing under the circumstances.

Should I take a breath test?

Definitely never take a breath test at the roadside!!

I am very adamant about THIS advice. All machines used at the roadside are unreliable and inaccurate for truly measuring alcohol concentration. Even the Scientific Director of the Texas Department of Public Safety thinks this is true because none of these devices have been approved or certified for use in Texas. (Do not take one of these tests even if the officer promises you that the results cannot be used against you. That is NOT TRUE!)

The breath test at the station or in the truck trailer are totally different devices and are much better than those used at the scene. My advice for those machines is a little different.

You should only take the "official test" after knowing a little information about those machines.

What "special conditions" go with DWI?

Each state is different. In Texas, "standard" DWI conditions are:

  1. Complete a state approved "DWI Education Program". This is an advanced "Defensive Driving" course that also provides more education about drinking and driving. It is a four-hour, three-day course and can be taken on the weekend.
  2. Attend a Mothers Against Drunk Driving "Victim Impact Panel".
  3. Submit to a written psychological test to evaluate whether or not you may have a tendency toward drugs or alcohol problems. If indicated, participate in counseling, AA, or other program.
Will I have to get a breath test device on my car?

No, not if this is your first DWI in your lifetime. If you have a prior arrest or conviction for DWI or a BAC of .15 or greater however, you will be required to install one of these on your car to remain out of jail on bond.

How much will this cost?

Many of the "costs" of a DWI case come with a conviction for DWI. If you are convicted of DWI, either by "plea bargaining" or losing a trial, you will be required to pay court costs and a fine by the Court. If placed on probation, you will pay a monthly probation fee ($40-$60/month). You may be required to pay for any ordered classes or chemical testing ordered in your probation. If there was an accident, you will be required to pay all damages that you caused in the accident. (Approximately $1,620.00)

In addition to these costs, upon conviction you will be subject to a "surcharge" levied by the Texas Department of Public Safety. This fee ranges from $1,000 to $2,000 per year for three years ($3,000-$6,000). You will also be required to keep and file an "SR-22" policy of insurance with TDPS for two years ($3,000).

These costs do not address any costs involved with missing work for court, travel to and from your court appearances, towing fees, bonds posted for jail release and attorney's fees. They also do not address any increases in insurance rates following a DWI conviction.

To sum it up, just to go in admit that you were driving while in intoxicated and accept a conviction for DWI 1st offense will cost you between $7,620-$10,620!!!

NOTE: This is without an attorney!

Do I need an attorney?

Many Texas courts require an attorney for disposition of a criminal case that potentially involves jail as punishment. Each judge is different.

A good attorney can help you minimize your costs, reduce your punishment and provide you with possible defenses in your case. You must decide "What a DWI conviction" means to you.