If you or a loved one is being investigated or has been arrested for any of the below offenses, you need the help of a qualified attorney immediately. Delay in selecting a qualified attorney hurts you and often helps the Prosecutor. Whomever you hire, please do not delay.
TPC Sec. 49.08:
(a) A person commits an offense if the person:
(1) operates a motor vehicle in a public place and
(2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.
2 – 20 years Prison and fine not to exceed $10,000
Intoxication Manslaughter is a complicated and high-profile offense in Texas. While the Prosecution does not have to prove a mental state (eg: intent to kill), they do have to prove causation (eg: the death was caused by reason of the defendant’s intoxication) – depending on the facts of your case, this very well could mean the difference between a Felony and Misdemeanor. Ask yourself: Can the Prosecutor really prove the death occurred by reason of my intoxication beyond a reasonable doubt?
**For more detail, see INTOXICATION MANSLAUGHTER page
TPC Sec. 49.07:
(a) A person commits an offense if the person, by accident or mistake:
(1) while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication, causes serious bodily injury to another.
2 – 10 years Prison and a fine not to exceed $10,000
Intoxication Assault is also a very complicated and high-profile offense in the State of Texas. Here, the Prosecutor has the same dilemma regarding causation as in Intoxication Manslaughter and she must prove the Victim suffered Serious Bodily Injury, defined as “injury that creates a substantial risk of death – or that causes serious permanent disfigurement – or protracted loss/ impairment of the function of any bodily member/ organ”. Many cases involving injuries do not rise to the level of Serious Bodily Injury. Ask yourself: Can the Prosecution really prove both (1) causation and (2) Serious Bodily Injury beyond a reasonable doubt in my case?
**For more detail, see INTOXICATION ASSAULT page
TPC Sec. 19.04
(a) A person commits an offense if he recklessly causes the death of an individual.
2 – 20 years Prison and a fine not to exceed $10,000
Here, the Prosecution must prove the culpable mental state of recklessness. We typically see this charge in cases where intoxication does not exist, or cannot be proven, but the facts of the offense are such that the Prosecutor believes recklessness can be proven (ex: crash causing death while driving 2x the speed limit). Recklessness is defined as: “a person acts recklessly, or is reckless, with respect to circumstances surrounding his/ her conduct or the result of his/ her conduct when he/ she is aware but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur”. As you can see, it’s a complicated definition. The complication is furthered by a knowledgeable criminal defense attorney (1) compelling the Prosecutor to distinguish between this recklessness and other mental states (eg: negligence, see below) and (2) attempt to explain all of this to a jury.
**Note: these cases are often handled as “investigations” by Police and
Prosecutors for months and sometimes years – if you believe you are under investigation for Manslaughter or Criminally Negligent Homicide you have rights to protect, which may affect the outcome of the investigation, and need an attorney to protect those rights immediately.
TPC Sec. 22.02
(a) A person commits this offense if the person commits assault as defined in Sec. 22.01 and the person:
(1) causes serious bodily injury to another, including the person’s spouse, or
(2) uses or exhibits a deadly weapon during the commission of the assault..
a. see: Sec. 22.01: Assault:
i. A person commits an offense if the person:
1. Intentionally, knowingly or recklessly causes bodily injury to another
2. Intentionally or knowingly threatens another with imminent serious bodily injury
2 – 20 years Prison and a fine not to exceed $10,000
Aggravated Assault is a charge that can be used by the Prosecutor in a variety of respects/ case types. On this page we are applying it to vehicular crimes. An Aggravated Assault Charge will be used in vehicular crimes cases where the Prosecutor believes the facts are similar to a case that otherwise would be an manslaughter, but the Complainant did not die. The Prosecutor will be required to prove the mental state of recklessness (see Manslaughter). Also, the Prosecutor will be required to prove that serious bodily injury occurred to the Complainant, and that it was the recklessness of the Citizen charged that caused the Complainant’s injuries. Aggravated Assault in the Vehicular Crimes context is typically decided by the degree to which the driving facts provide for the culpable mental state – often Prosecutors resort to this charge when a Complainant has been seriously injured and the decision point is Aggravated Assault or no charge (as there is no comparable lessor charge where no death occurs) – this no lesser alternative dilemma frequently results in Aggravated Assault charges that should have never been filed.
TPC Sec. 19.02
(b) A person commits an offense if he:
(3) Commits or attempts to commit a felony, other than manslaughter, and in the course of and furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual…
5 – 99 or Life in Prison and a fine not to exceed $10,000
Prosecutors love this charge. As a general rule, if a Prosecutor can charge you with this in a Vehicular Crimes case she will do it. The primary reason for this is twofold (1) the State gets an increased punishment range beyond INTOXICATION MANSLAUGHTER, from 2-20 to 5-Life, and (2) the Prosecutor no longer has to prove causation (see INTOXICATION MANSLAUGHTER). Fortunately, it does not always occur to the Prosecutor to use this charge. If you are eligible to be charged with this (eg: you have two prior DWI convictions, or had a child in your car at the time of the accident) and have not been charged with this yet, you very much want to take steps to assure that this does not happen. However, if the Prosecution has elected to charge you or your loved one with this offense, she/ he may do so at their peril – namely if the Prosecutor has charged this without paying specific attention to the additional element that must be proven, “an act clearly dangerous to human life”, and all of the relevant caselaw that controls when this element is brought into play – this seemingly convenient charge can cause the Prosecutor tremendous problems that may well result in a case that falls apart in trial. Ask yourself: What exactly is my exposure here (eg: what are the strengths/ weaknesses in the case as charged? And, what is out there that a savvy Prosecutor may charge in the future?)?
TPC Sec. 49.09
(b) A person commits the offense of Felony DWI when he commits the offense of DWI after having at least two reportable convictions for DWI.
2 – 10 years in Prison and a fine not to exceed $10,000
FELONY DWI or “DWI 3RD“ is the most common Vehicular Crime charged at the felony level in Texas. The charge itself is good for the Prosecutor in that the jury will be told before the trial starts that the Citizen accused of the offense has two prior convictions for DWI. With this charge there are several very important things that need to happen to ensure you get the best result possible, among them are:
(1) every effort must be made to undermine the State’s case pre-trial and persuade the Prosecutor to not proceed on this as a felony
(2) if there is to be a trial, the lawyer representing the Citizen accused MUST take full advantage of the jury selection process and ensure that every tactic and strategy available is employed to remove harmful and dangerous jurors from the selection pool – these cases can be won, but it takes a tremendous amount of planning and preparation to get the right jurors on the jury.
FAILURE TO STOP AND RENDER AID
Texas Transportation Code Sec. 550..023
(a) The operator of a vehicle involved in an accident resulting in the injury or death of a person or damage to a vehicle that is driven or attended by a person shall:
…(3) provide any person injured in the accident reasonable assistance, including transporting or making arrangements for transporting the person to a physician or hospital for medical treatment if it is apparent that treatment is necessary, or if the injured person requests the transportation.
The punishment range on this type of case depends on the injury that the Complainant actually suffered. Punishment can range from Probation – 20 years in prison and a fine not to exceed $10,000.
This particular offense was crafted by the Legislature to give Prosecutors a tool equal to the punishment for Intoxication Manslaughter, in cases where it could have been an Intoxication Manslaughter, but the operator of the vehicle that caused the crash did not remain on the scene to be tested for intoxication. The problem here is that this charge is frequently applied to people and situations that were never intoxication manslaughters (either because the operator of the striking vehicle was not intoxicated, or the Citizen accused was not intoxicated but scared). If you have been charged with this offense, it is likely the Prosecutor will seek a punishment similar to that seen in and Intoxication Manslaughter case; which translates to a great need for you to have a lawyer that so thoroughly understands the distinctions between the two offenses and can clearly explain to a Judge or Jury why the punishment here should not be anything close to what the Prosecutor wants, if any guilt is to be found at all. These cases are vulnerable to guilt/ innocence attack in a variety of ways, primarily in that the State will typically have a difficult time proving the identity of the operator of the alleged suspect vehicle, or whether it was apparent medical treatment was necessary under the circumstances.
CRIMINALLY NEGLIGENT HOMICIDE
TPC Sec. 19.05
(a) A person commits an offense if he causes the death of an individual by criminal negligence.
6 months – 2 years in “State Jail” Prison and a fine not to exceed $10,000
CRIMINALLY NEGLIGENT HOMICIDE requires the Prosecution to prove the culpable mental state of Criminal Negligence. We typically see this charge where a Complainant has died, alcohol was not involved, and the facts are so weak that manslaughter cannot be charged (eg: Recklessness); however, the Prosecutor feels that something ‘ought to be’ charged. Frequently, these cases are right on the bubble when they come into the Prosecutor’s office, and it is the family of the Complainant that is pushing the Police or DAs to move off center and to ‘charge something’.. which results in a charge of CRIMINALLY NEGLIGENT HOMICIDE. Criminal Negligence is defined as “A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.” The distinction between Criminal Negligence and Recklessness (eg: MANSLAUGHTER), is the “ought to be aware” v. “is aware of but consciously disregards”. These charges are vulnerable to attack from several angles, though the most common weakness is found when we further break down the definition of Criminal Negligence and see that the more we dig, the more convoluted the definition becomes.
**Note: these cases are often handled as “investigations” by Police and
Prosecutors for months and sometimes years – if you believe you are under investigation for Criminally Negligent Homicide or Manslaughter you have rights to protect, which may affect the outcome of the investigation, and need an attorney to protect those rights immediately.
DRIVING WHILE INTOXICATED WITH A CHILD PASSENGER
TPC Sec. 49.045
(a) A person commits an offense if:
(1) The person is intoxicated while operating a motor vehicle in a public place; and
(2) The vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.
6 months – 2 years “State Jail” Prison
The charge of DRIVING WHILE INTOXICATED WITH A CHILD PASSENGER is the fastest and most frequent way that ordinary people find themselves having a normal life one minute and facing a felony the next. In Texas, a first offender class B Misdemeanor DWI becomes a felony in an instant when a child is present in the car. Here, it is possible to contest the case on the basis of an incorrect assumption that the child was a passenger, but this is very rarely successful. The best defense in this type of case is to contest the other elements of DWI, as you would contest a standard DWI Misdemeanor case. If you are facing this charge, you need – more than a person facing any other charge on this page – to find an attorney extremely well versed in DWI law, and experienced in fighting DWI cases. Prosecutors are reluctant to dismiss or reduce these cases, but with thoughtful and intentional advocacy a Prosecutor can be made to see that this is not a case he or she wants to try, and warrants a reduction to a Misdemeanor or dismissal. Barring a reduction or dismissal, in the event of a trial, this charge is the second most prejudicial charge listed on this page (second only to Felony DWI), and too will require exceptional strategy and preparation to ensure the jury selection results in the 12 most appropriate people to hear and decide this case.
DRIVING WHILE INTOXICATED
TPC Sec. 49.09
(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
1st Offense < .15 BAC: 3 days jail – 6 months jail and a fine not to exceed $2000
1st Offense < .15 BAC + open container: 6 days jail – 6 months jail and a fine not to exceed $2000
1st Offense > .15 BAC: 3 days jail – 6 months jail and a fine not to exceed $2000
2nd Offense: 30 days jail – 6 months jail and a fine not to exceed $4000
**For a complete listing of DWI punishments click here. ← [link DWI PUNISHMENTS page]
DWI is charged many, many times a day all over Texas. Accordingly, there has been much (and I mean MUCH) litigation about what the police can and cannot do during a DWI stop. So much so, that unless the Officer that handled your case is NHTSA certified, extremely experienced and a trainer of trainers (see Don Egdorf http://www.hpou.org/board/don-egdorf/ ), it is extremely unlikely that the Officer that handled your case did everything correctly. In fact, the question is not whether or not he/ she did everything correctly, the true question is how many things did he/ she do wrong and will that be enough to get the Prosecutor to dismiss this case. And, if it not enough for the Prosecutor to dismiss, will it be enough for the Judge to throw it out?