Missed It By That Much

I should know better than to get my hopes up.

Yesterday morning, my client’s DWI was set for a pretrial conference. That’s the last setting before a contested pretrial motions hearing in Travis County. But it doesn’t get set for pretrial motions until the complaint and information (official charging instrument in a misdemeanor) have been filed at the county clerk’s office.

This was – hang on, let me go check my calendar – the 27th time my client’s case was set on the docket. Which is a lot – but, no complaint and information, it just keeps getting reset about once every 3 or 4 weeks for another status check.

Today was 732 days after my client’s arrest. Two years and two days after. The statute of limitations for a misdemeanor DWI in Texas – which applies to the filing of the charging instrument only – expired two days ago. But this morning when I looked in the clerk’s file, the C&I was there. It had been filed in between the last two settings, just under the two year deadline.

Sigh.

That’s OK. Now I’ll just have to earn my fee the regular way.

DWI, Statute of Limitations and Driver's License Questions

Question: My wife and I were pulled over in August 2005 on a rural road approximately 5 miles from my house by DPS who at the time was going the other direction on a two lane road. 

We had been out seeing my wife’s favorite band and it was her night out.  He asked me if I know what we were pulled over for and I say no.  License plate light out!  So no big deal until he shines the light at my wife and says, “What’s wrong with her?”

"She's sleeping,” I say.  Well he asks where we have been and I'm truthful, her night out and I'm the designated driver.  He proceeds through the get out of the car deal, does the eye test, then the one leg to 30, then walk the line....then the finger count....no problem here.....

He goes and finally wakes up my wife and talks with her.  Well she's hammered of course.  Then he comes back and arrests me after I refuse the breathalyzer. 

Then he arrests her for public intoxication.  I convince him to let a friend come get her and the vehicle.  He does and takes me to the pokey.  Since then my lawyer has sent three letters to the court letting them know when he will be out of town.  The court has never sent anything to me at my home or office. 

Since it has been two years, can I stroll down to the DPS and get my license or will they snatch me up?  I appreciate any input. 

Reply: What county is this from?  Also, you are saying it has been almost two years from the arrest?  The ALR suspension would usually be over well before then.  (Unless there are priors, perhaps...do you have any prior DWI arrests? or prior alcohol related license suspensions?)

Follow Up: I had one prior when I was 20 and I was 35 when I got this one.  Yes two years since arrest in August.  It is in [Anonymous] County.  I got my license suspended for not taking the breathalizer. 

I haven't done anything since.  No license, [rest of sentence deleted]. But if I can go and get it without being harassed I would love to do so.

Reply: Well, the 15 year old DWI can now (unfortunately) be used to enhance your new DWI charge to a DWI 2nd.  It used to be the law that after 10 years, new DWI charges would be filed as Class B 'first offense' DWIs.  But that's no longer the case.

But ALR (pretrial Driver's License Suspensions arising out of the DWI arrest) only started in 1995, so you shouldn't have any enhanceable alcohol related contacts.  If there were prior DWI related license suspensions within the applicable time period, DPS would have sought a 2 year suspension.

I asked because based on your facts, it sounds like DPS probably sought a 180 day license suspension, which would have started either 40 days after the arrest, if you did not request a hearing to contest the suspension.  And if you, or your DWI lawyer did request the hearing within the first 15 days of the arrest, certainly the hearing would have happened and the 180 day suspension is probably up.  I know that would be the case for an Austin DWI arrest, but I am unfamiliar with practice and docketing in your neck of the woods.

If you got an occupational license during the original ALR refusal 180 day driver's license suspension, and filed it within the 30 day grace period with Texas DPS, then they would have made you pay the $125 reinstatement fee at that time.  That would mean your license was no longer suspended.

If you never filed an occupational, or never went to pay DPS the reinstatement fee, then that is still owed, and will be necessary to get your license back.

Sounds like you've got an attorney helping you on the DWI.  You probably need to contact him for more specific information.

One last note:  Looks like you found my DWI blog by searching for "Statute of limitations" and "DWI Texas".  You certainly need to find out from your current DWI attorney whether or not the State has filed a complaint and information officially charging you with the DWI at your local County Clerk's office.  If the full 2 years runs without them doing that, you should have a legal defense to being prosecuted for the DWI criminal charge.

How Long is the Statute of Limitations for DWI in Texas?

That depends on whether it’s a misdemeanor or a felony. First and Second Offense DWIs in Texas are Class B, and Class A Misdemeanors, respectively. Third Offense DWI (and above) are Felonies.

Chapter 12 of the Texas Code of Criminal Procedure covers all of the limitations periods for prosecution in Texas. 

All misdemeanors in Texas have a 2 year statute of limitations, including DWI. Felony DWIs fall under the “regular” 3 year statute of limitations.