What Happens After a DWI Arrest in Austin: The First Hours, the First 15 Days and the First Court Date

A DWI arrest sets three things in motion at once: a license case with a short deadline, a criminal case that moves more slowly and a window in which evidence is easiest to preserve. They run on separate clocks, and the license clock is the one people miss, because the 15 days run from the day you receive the notice of suspension, not from the day of the arrest. A DWI lawyer in Austin can sort out which paper starts which clock and what has to happen before each one runs out.

This guide follows a case in order: the first hours in custody, the papers you were handed, your license, the breath or blood request, the charge and its range, the early court dates, the ways these cases end and what happens to your record. Where a subject has its own page, we link to it.

The First Hours: Magistrate, Bond and Conditions

After an arrest, Texas law requires that you be taken before a magistrate without unnecessary delay and no later than 48 hours after the arrest (Code of Criminal Procedure Article 15.17). The magistrate must tell you what you are accused of, that you may hire a lawyer and may remain silent, that you do not have to make a statement and that anything you say can be used against you. If you cannot afford a lawyer, the magistrate must explain how to ask for one to be appointed. Bail is then decided if the law allows it. A record of that exchange is made and kept for a limited time, so mention it to your lawyer early.

Bail must be high enough to give reasonable assurance that you will appear, and it may not be used as an instrument of oppression. The magistrate weighs the nature of the offense, your ability to make bail, the safety of the community and your criminal history (Article 17.15), and may attach any reasonable condition related to community safety (Article 17.40). One condition is mandatory in some DWI cases. On release, a magistrate must require an ignition interlock device for a defendant charged with a subsequent DWI, DWI with a child passenger, intoxication assault or intoxication manslaughter, unless requiring one would not be in the best interest of justice (Article 17.441). The device is installed at the defendant’s expense, before the 30th day after release.

The Papers You Were Given and the Clocks They Start

• The notice of suspension. An officer serves it when you refuse a specimen or when a breath or blood analysis shows 0.08 or more. If a blood result is not back before you are released, DPS mails the notice later, and a mailed notice is treated as received on the fifth day after mailing (Transportation Code Sections 524.013 and 724.033). This one paper starts both your 15-day hearing clock and your 40-day suspension clock.
• Bond paperwork. It names the court, the next date and the conditions of release. Dates here are separate from the license dates.
• The property receipt and any specimen form. They show what was taken from you, what you were asked to sign and whether a breath or blood specimen was requested.

Photograph the notice, front and back, the day you get it. Its dates control your deadlines.

Your License: The 15-Day Deadline and What Follows

Two parts of the Transportation Code can suspend your license after a DWI arrest, and neither waits for a conviction. A refusal to give a specimen leads to a suspension under Chapter 724: 180 days, or two years if your driving record shows an alcohol-related or drug-related enforcement contact in the previous 10 years (Section 724.035). A breath or blood result of 0.08 or more leads to a suspension under Chapter 524: 90 days, or one year with that kind of contact (Section 524.022). Drivers under 21 fall under separate periods. Either kind takes effect on the 40th day after you receive the notice, and a suspension under Chapter 524 cannot be probated (Section 524.021).

You can ask for a hearing, but the window is narrow. The written request must reach DPS at its headquarters in Austin by the 15th day after you receive the notice, or the day you are presumed to have received it, which for a mailed notice is the fifth day after mailing (Sections 524.031 and 724.041). A timely request stays the suspension until the administrative law judge decides. The hearing is held before a judge from the State Office of Administrative Hearings, no earlier than the 11th day after you are notified of it, and in the county of arrest when its population is 300,000 or more, which includes Travis County.

The issues differ by type of case. In a test-result case, DPS must prove by a preponderance of the evidence that your alcohol concentration was 0.08 or more while you operated a vehicle in a public place and that the officer had reasonable suspicion to stop you or probable cause to arrest you, and if it does not, the license is reinstated (Section 524.035). In a refusal case, the issues are whether the stop or arrest was supported, whether there was probable cause that you were driving while intoxicated, whether you were arrested and asked for a specimen and whether you refused (Section 724.042).

The license case is civil and separate from the criminal case, and neither result decides the other (Sections 524.012 and 724.048). The one link in the statute runs a single way. If the criminal charge from the same arrest ends in an acquittal, a refusal suspension may not be imposed, and one already imposed must be rescinded (Section 724.048(c)). The statute names an acquittal, not a dismissal.

Driving While Suspended: The Occupational License

A suspended license does not always mean no driving. A person whose license is suspended by an order under Chapter 524 or 724, or after a conviction, can apply for an occupational driver’s license (Section 521.242). The main steps:

• Where to file. A verified petition goes to the clerk of a justice, county or district court whose jurisdiction includes the county where you live or where the incident occurred. If the suspension followed a conviction, it goes to the court that convicted you (Section 521.2421).
• What it must show. Your essential need, with the hours and places of travel, the reason for the suspension, proof of financial responsibility under Chapter 601 and a certified abstract of your complete driving record.
• Cost. The court’s civil filing fee, or a statement that you cannot afford it (Section 521.2422).
• The hearing. After a DWI conviction the judge must hold a hearing, and the State receives notice and may present evidence. The judge may deny the petition if you cannot show financial responsibility or have been convicted more than once of a DWI-type offense in the previous 10 years, and the ruling cannot be appealed (Sections 521.243 and 521.244).
• The order. It sets the days, hours, reasons and routes, bars driving a commercial vehicle and generally limits driving to four hours in any 24-hour period, up to 12 on a showing of necessity (Section 521.248). After a DWI conviction the judge must also restrict you to a vehicle with an ignition interlock unless the court waives it (Section 521.246), and an interlock restriction lifts the time and route limits.

Our page on license reinstatement and occupational licenses covers what comes after a suspension ends.

The Breath or Blood Request, and Why It Matters Later

If you are arrested for DWI, you are deemed to have consented to a breath or blood specimen, and the officer decides which kind to ask for (Transportation Code Sections 724.011 and 724.012). Before asking, the officer must tell you, orally and in writing, that a refusal may be used against you in court, that your license will be suspended for at least 180 days, that the officer may apply for a warrant and that a result over the limit brings a suspension of at least 90 days, along with your right to a hearing (Section 724.015). A refusal can be introduced at trial (Section 724.061).

Refusing does not end the question. An officer can ask a magistrate for a warrant. After a refusal, the officer is directed to require a specimen when a collision killed or seriously injured someone, when another person was hurt in a collision and taken to a hospital, when the arrest is for DWI with a child passenger and when the officer has reliable information about certain earlier DWI-related convictions. Even then, the officer needs a warrant or probable cause to believe that exigent circumstances exist (Section 724.012(a-1), (b) and (e)).

The exercises at the roadside are a separate matter. The implied-consent statute speaks of breath and blood. It says nothing about the eye test, the walk-and-turn or the one-leg stand. What you do and say at the roadside is usually recorded, so the choice carries consequences either way, and the video is the first thing we ask for.

The Charge and What It Can Cost

The range depends on the facts the State alleges, not on what the arresting officer wrote first. These are the statutory ranges:

• First DWI. A Class B misdemeanor with a minimum confinement of 72 hours, up to 180 days in jail and a fine of up to $2,000 (Penal Code Sections 49.04(b) and 12.22). See first-offense DWI in Austin.
• A result of 0.15 or more. The offense becomes a Class A misdemeanor, with up to a year in jail and a fine of up to $4,000 (Sections 49.04(d) and 12.21).
• An open container. A minimum confinement of six days (Section 49.04(c)). See DWI with an open container.
• A second DWI. A Class A misdemeanor with a minimum confinement of 30 days (Section 49.09(a)), and a court-ordered interlock after a second or later conviction for an offense committed within five years of the earlier one (Section 49.09(h)). See second-offense DWI in Austin.
• A third DWI. A third-degree felony, punishable by two to 10 years in prison and a fine of up to $10,000 (Sections 49.09(b) and 12.34). See third-offense DWI in Austin and felony DWI in Austin.
• A passenger younger than 15. A state jail felony, punishable by 180 days to two years and a fine of up to $10,000 (Sections 49.045 and 12.35). See DWI with a child in Austin.
• A crash with a serious injury or a death. See intoxication assault in Austin and intoxication manslaughter in Austin.
• A driver under 21. Separate rules apply, covered in underage DUI in Austin.
• Drugs or medication. No alcohol result is needed. See drug-related DUI in Austin.

A prior conviction counts whether the sentence was served or probated, and a deferred adjudication for DWI counts as a conviction for enhancement (Section 49.09(d) and (g)). A conviction also brings its own license suspension, 90 days to one year for a first offense (Transportation Code Section 521.344). A statutory range is not a forecast. Where a case lands depends on the evidence and on the court.

Early Court Dates and Staying Compliant

The first date on your bond paperwork is usually an early setting, not a trial. A missed setting can lead to a warrant and trouble with the bond, so tell your lawyer ahead of time if you cannot attend. In the meantime, follow every bond condition exactly, including alcohol testing or an interlock if one was ordered, and keep the license deadline on the same calendar as the court date.

How These Cases End

• Dismissal. It usually follows a defect in the State’s proof that we find and press, in the stop, the arrest, the tests or the video.
• A lesser charge. A prosecutor may offer one when the evidence is thin. We confirm what the State will do rather than assume.
• Deferred adjudication. A judge may place you on supervision without entering a finding of guilt, and finishing it ends in a dismissal. Article 42A.102 closes that option to commercial license and permit holders, to a result of 0.15 or more and to offenses enhanced under Section 49.09, and a completed deferred adjudication is still a prior if you are charged again.
• Probation after a plea or conviction. You are convicted but serve the sentence under supervision, and a violation can bring you back before the judge. See probation violations for DWI.
• Trial. Either a judge or a jury can hear the case, and before you decide we explain what a trial would require of you and of us.

After the Case: Your Record, Work and Driving Privileges

What can be cleared depends on how the case ended. An arrest that ended in an acquittal, or in a dismissal for one of the reasons in Code of Criminal Procedure Article 55A.053, may be expunged. An arrest that never produced a charge can be expunged after one year for a misdemeanor or three years for a felony, or sooner if the prosecutor certifies that the records are not needed (Article 55A.052). A conviction generally cannot be expunged, but some first DWIs can be sealed by an order of nondisclosure: after a completed deferred adjudication (Government Code Section 411.0726), after a probated first conviction (Section 411.0731) or after a conviction those sections do not cover (Section 411.0736). Each has its own waiting period, a clean-history requirement and a bar when the offense involved a collision with another person. Our page on DWI expunction and record sealing sets out the rules.

A commercial driver faces additional federal and state rules. A nurse, pharmacist, teacher or other licensed professional may have a duty to report an arrest to a board, as our page on arrests of professional license holders explains. A non-citizen should speak with an immigration lawyer before saying anything about the arrest or accepting a plea, and employers and insurers set their own policies.

What This Means for Your Travis County Case

1. Photograph the notice of suspension and count 15 days from the day you received it. A mailed notice is treated as received on the fifth day after mailing.
2. Put your next court date, your bond conditions and your hearing deadline on one calendar.
3. Write down the stop while it is fresh: where you had been, what you ate and drank, what the officer asked and which exercises you were asked to do. Share it only with your lawyer.
4. Hold on to every page from the jail, such as the bond terms, the property receipt and any specimen form.
5. Do not drive while a suspension is in effect, and ask about an occupational license before the 40th day.
6. Say nothing about the arrest to police, prosecutors or insurers, and stay off social media.
7. Hold off on any plea or class until your lawyer has seen the video, the officer’s report and the test records.

More About DWI Charges in Austin

Four guides pick up where this page stops.

• first 15 days after arrest: how the deadlines and the early decisions fit together.
• ALR hearing process in Travis County: how the administrative hearing works from notice to decision.
• refusing a breath test in Austin: what a refusal costs and what an officer can do next.
• misdemeanor versus felony DWI: which facts move a charge up a grade.

Why Austin Clients Choose Barton & Associates for DWI Defense

Barton & Associates has tried Texas cases since 2001. Our Austin criminal defense team includes Gary J. Barton, who is Board Certified in Criminal Law by the Texas Board of Legal Specialization, is a former capital murder prosecutor and has tried more than 100 jury trials, and Jim Erickson, a senior trial attorney in the Austin office who has handled criminal defense since 1985 and has more than 250 jury verdicts in more than sixty Texas counties. The first days of a case are when the video, the magistrate record and the lab file can still be requested and when the license deadline can still be met. We handle the license case and the criminal case together, so a choice in one does not undercut the other.

Nobody can honestly forecast the result of a DWI case on the first day. We give you a straight account of what the State must prove, where the evidence looks weak and what we advise, and that includes a plea when it is the sensible choice. The first consultation is free and confidential. Our Austin office is at 316 W. 12th Street, Suite 400, Austin, Texas 78701, and we meet with clients there by appointment. You can get directions to our office before your visit. For the first meeting, bring what you can of the following, and call even if you cannot find everything.

• The DPS notice of suspension and the day it reached you
• Your bond paperwork, conditions and next court date
• Paperwork on any breath test, blood draw or refusal
• Your own notes on the stop, including what you ate and drank and when
• Photos, video and the names of witnesses to the stop
• Paperwork from any earlier DWI or DUI, in Texas or elsewhere
• Whether you hold a commercial driver’s license or a professional license
• A calendar of your key dates and deadlines

Frequently Asked Questions About a DWI Arrest in Austin

How long do I have to request an ALR hearing after a DWI arrest?

The written request must reach DPS at its headquarters in Austin by the 15th day after you receive the notice of suspension. If DPS mails the notice, for example after a blood result comes back, you are treated as having received it on the fifth day after mailing, which puts the outside date 20 days from the mailing. A request that arrives later does not carry the right to a hearing under the statute, so read the dates on the notice the day you get it.

When does a license suspension actually start?

A suspension under Chapter 524 or 724 takes effect on the 40th day after you receive the notice. A timely request for a hearing stays the suspension until the administrative law judge makes a final decision. Check the notice for its dates, and call us if anything on it is unclear.

What happens to my license if I refused the breath or blood test?

DPS suspends the license for 180 days, or two years if your driving record shows an alcohol-related or drug-related enforcement contact in the previous 10 years. A timely hearing request puts the suspension on hold, and the hearing is limited to whether the stop or arrest was supported, whether there was probable cause that you were driving while intoxicated, whether you were arrested and asked for a specimen and whether you refused. The refusal can also be shown to a jury at trial.

Do I have to do the eye test, walk-and-turn or one-leg stand at the roadside?

The implied-consent statute covers breath and blood specimens. It says nothing about roadside exercises. Declining them does not prevent an arrest, because an officer can rely on the driving and other observations, and what you do and say at the roadside is usually recorded. If you did them, we compare the video with the officer’s report.

Can police take my blood without my consent?

Not on their own say-so. Even when the law directs an officer to require a specimen, as after a collision that killed or seriously injured someone, the officer must obtain a warrant or have probable cause to believe that exigent circumstances exist. We read the warrant affidavit, learn who drew the blood and review how the specimen was handled.

Is jail possible for a first DWI in Austin?

Jail is within the range. A first DWI is a Class B misdemeanor with a minimum confinement of 72 hours, up to 180 days in jail and a fine of up to $2,000. An open container raises the minimum to six days, and an alcohol concentration of 0.15 or more makes the offense a Class A misdemeanor with up to a year. Community supervision is an option in many cases, and how much jail a court wants as a condition depends on the case.

What changes if I already have a DWI conviction?

A second DWI is a Class A misdemeanor with a minimum confinement of 30 days, and a third is a third-degree felony with two to 10 years in prison. A magistrate must require an ignition interlock on release for a subsequent DWI unless it would not serve the best interest of justice. Convictions from other states can count, and so can a deferred adjudication.

Does deferred adjudication keep a DWI off my record?

It avoids a conviction if you finish supervision and the case is dismissed, but the arrest and the case stay on your record unless an order clears them, and it still counts as a conviction if you are charged with DWI again. It is not available to a commercial license or permit holder, for an alcohol concentration of 0.15 or more or where the offense is enhanced under Section 49.09. After a completed deferred adjudication, a first misdemeanor DWI can sometimes be sealed under Government Code Section 411.0726, after a two-year wait.

Can I get an occupational license while my license is suspended?

Possibly. You file a verified petition that shows your essential need, proof of financial responsibility and a certified driving record. The judge may deny it if you cannot show insurance or have been convicted more than once of a DWI-type offense in the previous 10 years, and the order sets the days, hours and routes you may drive. A ruling on the petition cannot be appealed, so it has to be right the first time.

Does the ALR hearing affect my criminal case?

The license case is civil and separate, and a finding in one does not decide the other. The hearing is recorded, so what is said there is on the record. The one statutory link is an acquittal on the criminal charge, which prevents or rescinds a refusal suspension.

Can a DWI arrest be cleared from my record?

It depends on how the case ends. An acquittal, or a dismissal for a reason listed in Article 55A.053, can support an expunction. A conviction generally cannot be expunged, though some first DWIs can be sealed after a waiting period. Sealing hides the record from the public but does not delete it.

My DWI arrest never led to a court date. Is the case over?

Not necessarily. An arrest is not a filed charge, and for a misdemeanor DWI the State generally has two years to file. If no charge is ever filed, you can seek an expunction after one year for a misdemeanor or three years for a felony, or sooner if the prosecutor certifies that the records are not needed. Your license deadline runs whether or not a charge is filed.

What should I bring to the first meeting about a DWI arrest?

Bring the notice of suspension and the date you received it, your bond paperwork and court date, and anything about a breath, blood or refusal. Add your notes on the stop, any video or photos, records of an earlier DWI and the type of license you hold. Call even if some of it is missing.

Talk With an Austin DWI Attorney After Your Arrest

Your deadlines are already running, and the license dates are the ones that cannot be moved. Talk with an Austin criminal defense attorney at Barton & Associates about what the State has and what we advise before you make a statement, sign a paper or accept a plea.

Call our Austin office at 512-THE-FIRM (843-3476) or complete the online Free Consultation form to schedule a confidential meeting about your arrest. Consultations at the office are by appointment only. The office is at 316 W. 12th Street, Suite 400, Austin, Texas 78701.

Main Category: Criminal Defense Austin
Practice Area Category: DWI & Intoxication
Barton & Associates, Attorneys at Law
316 W 12th St Suite 400, Austin, TX 78701
Office: 512-THE-FIRM (843-3476)