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Ive just been arrested for a 3rd DWI in 7 years. The other 2 were in another state, I blew .11 first time, and refused the 2nd.

San Antonio, TX |

It is possible to exclude the 2nd out of state conviction by proof that the conviction was based solely upon a failed field sobriety test/officer statement, with no BAC test?

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Attorney answers 3


Anything is possible but more information will be needed. You should discuss this with an experienced TX DUI attorney. If you want to try and find one in your area here on AVVO you can select "Find a Lawyer" at the top of the page. Good luck.

This is not intended as legal advice. No attorney / client relationship exists because of this response.


Nope, under Texas Law so long as ALL of the elements of the offense as defined under the foreign state law are substantially the same or similar to elements of the Texas Law, the foreign state conviction will count for purposes of enhancing punishment under Texas Law.

Under Texas Law a person commits the offense of DWI if a person is intoxicated while operating a motor vehicle in a public place. With "intoxication" being defined as:
A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B)  having a blood-alcohol concentration of 0.08 grams or more of alcohol per 100 milliliters of blood or 210 liters of breath.

I would recommend that you contact an experienced DWI defense attorney in your area as soon as possible.

Good luck,
Martin Zimmerman

Martin Zimmerman, P.C. 189 E. San Antonio St. P.O. Box 310704 New Braunfels, Texas 78131-0704 Tel: (830) 606-7886 Fax: (830) 627-2890 The information contained in and transmitted with this e-mail is: 1) Subject to the Attorney-Client Privilege; 2) Attorney Work Product; or 3) Confidential It is intended only for the individual or entity designated above. Any distribution, copying, use of, or reliance upon the information contained in and transmitted with this facsimile by or to anyone other than the recipient designated above by the sender is unauthorized and strictly prohibited. If you have received this e-mail in error, please notify Martin Zimmerman, P.C. by telephone


Excluding prior offenses from another state is always a tricky thing, and only an experienced DUI attorney will give you a fighting chance to try to accomplish this. Also, while you are focusing on this particular issue, an good DUI defense attorney will likely be able to find other issues to argue about that have more merit. Take the time to call some experienced DUI attorneys, which you can find on this website, and get one retained.

John Joseph Eastland

John Joseph Eastland


I agree with Derek. A good lawyer specializing in DWI defense can research whether the two out of state priors are valid (proper form) convictions or not. Also, don't give up. There's probably a video of the field tests which could be favorable to you. The state has to prove intoxication 'at the time of driving' and there could be a good disconnect defense argument. Furthermore, the Intoxilyzer is not without it's faults and a good lawyer will know how to cross it. Good Luck!

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