One of the main concerns for drivers faced with a Texas DWI is whether or not they will have to spend time in jail. Recently on our DUI forum a user asked, “If I have been arrested for a second Texas DWI am I going to jail?”
Without the specifics of this driver’s case it is impossible to say for sure, but the law allows for drivers facing a second Texas DWI to receive a maximum fine of $4,000 and/or jail from 30 days to one year, and a possible driver’s license suspension ranging from 180 days to 2 years (Class A Misdemeanor).
Does this mean you are going to jail? No, the good news is many times the judge will probate the sentence, which means they may be willing to suspend the jail, the fine (or part of the fine), or the driver’s license suspension. What do you have to do? You have to behave yourself for a pre-established period of time called your probationary period.
Probation what do I have to do?
Now, this may sound like a great deal, but there are very specific requirements you will have to meet during your probation. For instance, you may have to refrain from consuming alcohol, report to a probation officer, not commit any additional crimes, perform community service, attend DWI education classes, pay fines and costs for the court, submit to a breath test upon request, install an ignition interlock device on your car, and refrain from leaving the county. Consider, however, this list is not exhaustive. The court may have other requirements you must fulfill.
Should I plead guilty to my second Texas DWI?
So if you are unlikely to receive jail time for a second Texas DWI you may be wondering if you should just plead guilty and get all of these charges behind you. This is a tough question. If the court has a substantial amount of evidence against you, including an undisputed chemical test, undisputed field sobriety tests, and convincing officer testimony and witness testimony it may be hard to win your Texas DWI case.
But if the evidence is in question it may be worth the fight, especially considering a DWI conviction cannot generally be expunged (Tex. Code Crim. Proc. § 55.01 details when a criminal record can be expunged).
In Texas, if you have been convicted of a DWI and the charges against you did not result in an acquittal or pardon, you will not be allowed to have your criminal record expunged. You will only be able to seek non-disclosure of your criminal record.
When can you expunge your criminal record?
- If you were arrested for a misdemeanor or felony offense and later acquitted.
- If you were arrested for a misdemeanor or felony offense and later pardoned.
- If you were arrested, released and never charged with an offense.
- If you were arrested and charged but later released and you were not convicted and the court did not order community service (exceptions exist for Class C misdemeanors)
- If you were arrested, tried for an offense and convicted but the court of appeals later acquitted you of all charges.
Bottom Line for your second Texas DWI:
If you have been arrested for a second Texas DWI it is unlikely you will face jail time. In many cases, especially if there are no aggravating factors, some of the penalties will be probated by the court.
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