If you’ve been arrested for driving while intoxicated (DWI), the first thing that comes to mind is usually, “What’s going to happen to me?” Unfortunately, the answer is that it depends. In Texas, misdemeanor DWIs have wide-ranging punishments that are determined by assessing aggravating and mitigating factors. Understanding how these play a role in negotiations can help gauge the outcome of your case.

Range of Punishment

When it comes down to punishment for a DWI in Texas, there is no one size fits all. The nature of the crime, blood alcohol score, prior criminal history, and other factors can influence the outcome of your DWI. Consequently, the legislature adopted punishment ranges for various offense levels.

A DWI (at the misdemeanor level) can be classified as either a Class B Misdemeanor or Class A misdemeanor. The range of punishment for each is:

            Class B Misdemeanor = 3-180 days in jail and/or up to a $2,000 fine

            Class A Misdemeanor = 0-365 days in jail and/or up to a $4,000 fine

These numbers represent the range of punishment. Just because you can be sentenced to 180 day in jail, does not mean that you will be. Similarly, just because you can be sentenced to 3 days in jail, does not mean you will be.

But jail time isn’t the only option. You might be offered probation, deferred adjudication, or a pre-trial diversion. All of which keep you out of jail.

So, how do we determine the appropriate punishment for a DWI? Prosecutors and judges generally look to aggravating and mitigating factors.

A Tale of Two DWIs

Take a look at the following scenarios:

Johnny stayed at home one night and decided to drink a few beers with dinner since he had no intention on driving. A few hours later, he received a phone call from his sister. Johnny picked up and instead of his sister’s voice, a man told Johnny that his sister had just been in a terrible car accident and was headed to the hospital. Johnny immediately got in his car and headed straight for his sister. However, before reaching the hospital he was pulled over by police and arrested for DWI. His BAC came back at .10.

Billy went out with friends on a Friday night to celebrate the end of the work week. After some beers and several rounds of shots, he decided to drive home. On the way, Billy disregarded a stop sign and hit another vehicle. When police arrived on scene, he was arrested for DWI. His BAC came back at .25.

Two very different scenarios, but they both have one thing in common: Johnny and Billy were intoxicated when they were driving their vehicles. Does this mean that they each deserve the exact same punishment? No.

Mitigating Factors

Based solely on the above facts, Billy’s conduct appears to be much worse than Johnny’s. Whereas Billy could have called for an Uber or rideshare, Johnny’s emergency situation did not afford him that same choice. Moreover, Billy’s BAC was over three times the legal limit while Johnny’s BAC was just barely over the .08 threshold. Johnny’s case contains what we would call “mitigating factors.”

A mitigating factor is any fact or circumstance that lessens the severity or culpability of the offense. These factors can present themselves within the facts of the case, but can also include information about you. For example, you might be a straight-A student who volunteers in the community and has never been in trouble. Or, maybe you are someone who suffered from abuse and have used alcohol as a coping mechanism. Though these do not excuse your criminal behavior, they serve to lessen the blow of punishment. While Billy may be looking at a few months in jail, Johnny could be offered probation.

Aggravating Factors

If you haven’t guessed it by now, an aggravating factor is any fact or circumstance that increases the severity or culpability of a criminal act. Like mitigating factors, aggravating factors can be present within the facts of the case, but can also include your past history.

Recall Billy’s case. Billy’s high BAC level, coupled with his accident are significant aggravating factors within the case. Perhaps Billy also has a lengthy criminal history and is unemployed. These are two additional aggravating factors that a prosecutor would use to justify a sentence that is on the higher end of the punishment range for a DWI.

Negotiating with the Prosecutor

Ninety-five percent of all criminal cases are resolved by a plea agreement with the prosecutor. This is why it is crucial that your defense attorney present mitigating facts to the prosecutor when negotiating a case. The prosecutor only sees you from the lens of the police report, he or she doesn’t know the nuances of your life. Providing a prosecutor with mitigating evidence can work to reduce your overall punishment.

It is important that you have an attorney that will be your advocate and fight for your freedom. If you’ve been arrested for a DWI, contact me today.

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