Thanks for your patience.
A third offense DWI is considered a third degree felony. A conviction brings a MAXIMUM of:
- Two to 10 years behind bars
- Annual fine of $2,000 for three years to keep driving privileges
- Alcohol evaluation/treatment
The judge – or a jury in a criminal trial – could still have given your son probation on a second or third drunk driving offense, but he will have to serve at least a few days in jail, under the Texas Code of Criminal Procedure. The sentence is 10 days minimum for DWI third offense.
Other conditions of probation, or community supervision, are similar to simple DWI, but more stringent. They are:
1. Rehab evaluation – He will be required to get an evaluation from a state-approved drug and alcohol counselor to determine whether you have an addiction and what treatment may be necessary to deal with it. He may then be required to go through rehab.
2. DWI repeat offender program – He will be required to attend an approved 32-hour course covering alcohol abuse, driving impairment and AA groups. If he doesn't take the course, his license will be revoked, and he won’t be able to get it back until he completes the program.
3. Ignition interlock device – He will be required to put a device on his vehicle that will test his breath each time he tries to start the vehicle. The device won’t allow the vehicle to start if it detects alcohol. He will not be allowed to drive any vehicle without this device for one year following the reinstatement of his driver’s license.
Exact sentences are generally up to the judge, with recommendations from the prosecutor. The judge has much discretion when it comes to sentencing.
The judge will have ordered a pre-sentence investigation which detailed your son's criminal and social history, the facts of the crime and the state’s recommended community supervision plan. The judge would have based his sentence on your son's criminal history, whether he was convicted of any other felonies and/or misdemeanors, whether there was an accident involved, what type of alcohol services that your son has received in the past, his work history, his family history/support, how close the DWI's were in time, and any other fact that the judge found relevant.
The judge COULD have given your son 10 years in prison, or a lesser amount of time incarceration coupled with up to 10 years of probation with the restrictions set forth above, along with any other restriction/term of probation as allowed by law.
So, the answer is "yes," your son could have been given as little as 10 days of incarceration along with alcohol rehabilitation, AA meetings, community service, etc. However, the judge, within his discretion as allowed by law, gave your son a harsher sentence.
You may wish to speak to your son's attorney (with your son's permission) about asking the judge to reconsider your son's sentence. However, there is a short window to do so. Therefore, your son's attorney would have to file a Petition to do so very quickly. The judge may grant the Petition to reconsider the sentence or deny it. But, unfortunately for your son, the judge was within his right to use his legal discretion to sentence your son.
Again, you may wish to speak to your son's attorney. However, you must do so ASAP to see if any Petition may be filed for Reconsideration of Sentence.
I hope you find this information useful.
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