7 Mistakes You’re Making with a Texas DWI Charge (and How to Fix Them)
Updated: Sep 4
Being pulled over on a Houston highway and arrested for Driving While Intoxicated is one of the highest-stakes interactions a person can have with the Texas legal system. In the minutes after the lights come on, adrenaline produces errors that follow people for years.
The consequences of a Texas DWI conviction reach past the fine: a permanent criminal record, loss of driving privileges, insurance costs, and potentially jail. At The Demerson Firm, PLLC, we see the same avoidable mistakes over and over.
Here are the seven most common ones — and what to do instead.
1. Talking Too Much to Law Enforcement
The first mistake usually happens before the handcuffs come out. People believe they can explain their way out of an arrest, so they volunteer how many drinks they had, where they were coming from, or an apology.
The reality: During a DWI investigation the officer is gathering evidence, and everything is on body-worn and dash camera. "Just two beers" becomes probable cause for the arrest and then an admission at trial.
How to fix it: Invoke out loud. A driver must display a license on request under Tex. Transp. Code § 521.025 and provide proof of insurance under § 601.053; the broader duty to give your name, address, and date of birth under Tex. Penal Code § 38.02 attaches on lawful arrest. Beyond that, say: "I am going to remain silent, and I want a lawyer." Say it rather than simply going quiet. In Salinas v. Texas the Supreme Court held that silence which is not expressly invoked can, in some pre-arrest circumstances, be used against a defendant. Invoking clearly is what protects you — and it protects you far better than an explanation will.
2. Ignoring the 15-Day ALR Deadline
Most people focus on the criminal court date. But a Texas DWI arrest starts two separate proceedings: the criminal case, and the Administrative License Revocation (ALR) case. The second one moves much faster.
If you refused testing or tested over the limit, the officer likely took your license and issued a temporary permit with a notice of suspension. Under Tex. Transp. Code § 724.041 you have 15 days from the date you receive that notice to request a hearing — and a timely request stays the suspension until the administrative law judge rules.
The reality: Miss the window and the suspension takes effect on the 40th day after you received notice, under § 724.035(c). Note the trigger is the date of notice, not the date of arrest — a distinction that matters when notice arrives by mail.
How to fix it: Contact a criminal defense attorney immediately. Beyond the license itself, the ALR hearing is an opportunity to examine the arresting officer under oath before the criminal case is tried — producing a transcript that can be used later if the officer's account changes.
3. Misunderstanding What Implied Consent Means
Implied consent in Texas comes from Chapter 724 of the Transportation Code. Under § 724.011, a person arrested for DWI after operating a motor vehicle in a public place is deemed to have consented to a breath or blood specimen — but that consent is expressly "subject to this chapter," and § 724.013 provides that a specimen may not be taken if the person refuses, outside the mandatory-draw situations in § 724.012(a-1) and (b). Refusing is not a crime.
The reality: Refusal carries a license suspension of 180 days under § 724.035 — or two years if your record shows a prior alcohol- or drug-related enforcement contact within the preceding 10 years. The refusal is also admissible against you at trial under § 724.061. And in Harris County a blood search warrant can be obtained quickly. Note the limit that runs the other way: under § 724.012(e) an officer may not require a specimen without a warrant or probable cause to believe exigent circumstances exist.
How to fix it: Whether to provide a specimen is a fact-specific decision, and no article can make it for you. If you have already refused or tested, the work shifts to scrutinizing the chain of custody of a blood sample, the maintenance and calibration records for the breath instrument, and whether the warrant — if there was one — was supported by probable cause. Problems in those areas are where DWI cases are won, though what any one case can achieve depends entirely on its facts.
4. Choosing a Lawyer on Price Alone
A DWI is a technical case — scientific evidence, administrative regulations, and constitutional procedure all at once. Fee matters, and it should not be the only thing you compare.
The reality: Defending one properly means understanding alcohol pharmacology, how field sobriety tests are supposed to be administered under the NHTSA standards, and the Texas breath-testing regulations. Ask any lawyer you are considering how many cases they carry, who will handle yours, and whether they intend to litigate the stop.
How to fix it: Look for someone who will actually file a motion to suppress where the facts support one, rather than treating a plea as the default outcome. The legality of the initial stop is the first thing we examine on any DWI file.
5. Accepting the First Offer
A District Attorney's office handles enormous volume. An early offer is a starting position calibrated to move a docket, not an assessment of your particular case.
The reality: Many people accept probation and a permanent conviction to get the matter behind them, before anyone has looked at whether the case has a foundational problem.
How to fix it: Do not sign anything before your lawyer has obtained discovery — the video, the offense report, and the maintenance and calibration records for the testing equipment. Negotiating positions can change once a file is developed and trial-ready, though what a particular case resolves to depends on its own facts and the evidence.
6. Underestimating the Collateral Consequences
People think a DWI is fines and community service. In Texas the effects reach further.
The reality: A conviction can mean:
A permanent criminal record — a Texas conviction is not eligible for expunction.
Difficulty with professional and occupational licensing — nursing, CDL, and medical among them.
Higher insurance costs, and an SR-22 filing in some circumstances. Worth correcting a widespread misconception here: the old Driver Responsibility Program annual surcharges — which could run to thousands of dollars over three years — were repealed entirely by House Bill 2048, effective September 1, 2019. Any page still listing DRP surcharges as a current consequence has not been updated in years.
Travel complications — Canada in particular treats impaired driving as serious criminality for admissibility purposes.
Immigration consequences for non-citizens, which turn on the specific offense and the person's status and should be assessed individually before any plea.
How to fix it: Treat a DWI as seriously as a felony charge. If a collision was involved, you may also face personal injury litigation running in parallel, with its own timeline and its own exposure.
7. Assuming the Case Is Open and Shut
A number over 0.08, or a stumble on a roadside test, is not the end of the analysis.
The reality: Field sobriety tests are scored by an officer who already suspects impairment. Inner-ear conditions, prior injuries, uneven pavement, wind, footwear, and the strobe of the patrol car's own lights all produce "clues" that have nothing to do with alcohol.
How to fix it: Test the science and the procedure. Did the officer administer the tests the way the NHTSA standards require? What did the roadway and conditions actually look like on the video? And was there a specific, articulable reason for the stop in the first place? If not, everything that followed is subject to a Fourth Amendment challenge.
Frequently Asked Questions
Can a Texas DWI be dismissed?
It happens. A case may be dismissed where the stop or arrest was unlawful, or where the blood or breath evidence proves unreliable. Separately, a case may end in acquittal if the State cannot prove intoxication beyond a reasonable doubt — and note that Texas defines intoxication two ways under Tex. Penal Code § 49.01(2): loss of the normal use of mental or physical faculties, or an alcohol concentration of 0.08 or more. The State can proceed on either. Whether any particular case can be dismissed depends entirely on its facts.
What if I was in a crash while intoxicated?
Enhanced charges become possible, including intoxication assault or intoxication manslaughter depending on the injuries. You may also face a civil claim at the same time. Our guide to Texas negligence law and the 51% rule explains how fault is apportioned on the civil side.
Is a first-time DWI a felony in Texas?
Generally a first DWI is a Class B misdemeanor. Two separate enhancements are often confused. If the alcohol concentration was 0.15 or more at the time of analysis, Tex. Penal Code § 49.04(d) makes it a Class A misdemeanor — not a felony. Driving while intoxicated with a child passenger under 15 is a separate offense under § 49.045 and is a state jail felony. A high alcohol concentration by itself does not make a first offense a felony.
Do I need a lawyer for a first offense?
It is worth at least a consultation. A Texas conviction is permanent and not expungeable, the license case runs on a 15-day clock most people do not know about, and the collateral effects on licensing and employment outlast the sentence.
Talk to a Houston DWI Lawyer
At The Demerson Firm, PLLC, we take DWI cases apart rather than manage them. If the collision side of your situation also matters, our guide to Texas motor vehicle accident claims covers the civil deadlines.
If you have been arrested for DWI in Texas, the ALR clock is already running.
Call (346) 344-2007 or visit demersonlegal.com. The Demerson Firm, PLLC, 8323 SW Freeway, Ste. 415, Houston, TX 77074. We handle DWI matters in Harris, Fort Bend, Montgomery, Brazoria, and Galveston Counties.
This article is provided for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship with The Demerson Firm, PLLC. Texas law changes, and the outcome of any case depends on its specific facts. Nothing here is advice about whether to refuse testing in a particular situation. If you have been arrested, speak with a licensed Texas attorney promptly — the ALR deadline runs from the date of notice.
Comments