Beyond the immediate consequences of fines, license suspension, and potential jail time, a DWI conviction can affect your right to own or possess a firearm. This unexpected consequence can be nerve-racking, especially in Texas, where the right to own a firearm is deeply ingrained in the state’s culture and identity. This article will explain how a DWI conviction can affect your right to own or possess a firearm and outline steps you can take to protect this right.

What is DWI?

Driving While Intoxicated (DWI) is defined under the Texas Penal Code, Section 49.04. This section states that it is unlawful to operate a vehicle in a public area while intoxicated.

The term "intoxicated" is defined in the following two ways:

  • Alcohol concentration — Having a blood alcohol concentration (BAC) whose percentage is 0.08% or more.
  • Impairment — Not having the normal use of mental or physical faculties due to the introduction of alcohol or a drug into the body.

These definitions mean that you can face DWI charges even if your BAC is below 0.08% if your ability to drive is impaired by alcohol or drugs. Conversely, you can be charged with DWI if your BAC is 0.08% or more, regardless of whether your driving ability appears impaired.

Police officers use various methods to determine intoxication during DWI investigations. Initially, they rely on observational evidence, observing drivers for signs of impairment such as:

  • Erratic driving behavior, for example, swerving, speeding, or failing to obey traffic signals.
  • Physical indicators, for example, slurred speech or difficulty maintaining balance.

Upon motioning you to pull over, officers may administer standardized Field Sobriety Tests (FSTs) to assess cognitive and physical abilities affected by alcohol or drugs. These tests typically include the Horizontal Gaze Nystagmus (HGN), Walk-and-Turn, and One-Leg Stand tests. Each of these tests is designed to detect impairment by evaluating eye movements, coordination, and balance.

Additionally, officers may use a Preliminary Alcohol Screening (PAS) test, a handheld breathalyzer that provides a preliminary measure of breath alcohol concentration (BrAC) to establish probable cause for arrest. Following an arrest for suspicion of DWI, you may be required to undergo a chemical test, such as a breathalyzer or blood test, to accurately determine your BAC. 

Texas DWI Classification

In Texas, DWI offenses are categorized into felonies and misdemeanors. The severity of the offense and the number of prior convictions influence the severity of the penalties imposed upon conviction.

Below is a brief discussion of how DWI offenses are categorized in Texas:

First DWI Offense

First DWI is classified as a misdemeanor in Texas. Its penalty may include a fine of up to $2,000, a jail term not exceeding 180 days, driver's license suspension for up to 1 year, and mandatory participation in DWI education programs.

Second DWI Offense

Like the first DWI, the second DWI is classified as a misdemeanor, but with increased penalties. Its penalty may include a fine of up to $4,000, jail time ranging from 30 days to 1 year, and driver's license suspension for up to 2 years.

Third/Subsequent DWI Offenses

Any third or subsequent DWI offense is categorized as a felony. Felony DWI convictions carry more severe penalties, including fines up to $10,000, up to ten years in prison, and driver's license suspension for up to two years.

DWI with Child Passenger

If you were driving while under the influence with a passenger under the age of 15 in the vehicle, you will automatically be charged with DWI as a felony. Penalties can include fines of a maximum of $10,000, 180 days to two years in state prison, and driver's license suspension for up to 180 days.

Intoxication Assault and Manslaughter

You would be charged with the criminal offense of intoxication assault if you injured another person while driving under the influence. Its penalty is a prison term ranging from two to ten years and a fine not exceeding $10,000.

On the other hand, if the DWI resulted in the death of another person, you will be charged with the criminal offense of intoxication manslaughter. Its punishment is a prison term ranging from two to 20 years and a fine not exceeding $10,000.

Who is Eligible to Own a Firearm in Texas?

To purchase a handgun from a licensed dealer, you must be at least 21 years old, while for a rifle or shotgun, the minimum age is 18. Federal law may prohibit you from owning or possessing a firearm if:

  • You are a convicted felon.
  • You are a fugitive from justice.
  • You are an addict of a controlled substance.
  • You have been adjudicated as mentally defective or committed to a mental institution.
  • You are an illegal alien.
  • You have been dishonorably discharged from the U.S. Armed Forces.
  • You are subject to restraining orders related to domestic violence.
  • You have been convicted of misdemeanor domestic violence.

Texas law adds further restrictions. If you have been charged with a Class A or Class B misdemeanor, or a higher offense, you may be prohibited from owning or possessing a firearm until your case is resolved. Additionally, your right to own or possess a firearm may be limited if you are under probation for certain misdemeanor offenses.

How Can a DWI Affect Your Right to Own a Firearm?

As earlier explained, first and second DWI offenses are categorized as misdemeanors. Generally, a misdemeanor DWI conviction does not strip you of your right to own a firearm.

However, upon being convicted, you may be placed on probation. During probation, you must adhere to certain conditions the judge will impose. One of these conditions may be a restriction on your right to own or possess a firearm, depending on the circumstances of your case.

A third or subsequent DWI offense is classified as a felony in Texas. Additionally, certain circumstances, such as having a child passenger, causing serious bodily injury (intoxication assault), or death (intoxication manslaughter) while driving under the influence, will elevate the charge to a felony. A felony conviction has more severe implications for your firearm rights.

Under both Texas and federal law, individuals convicted of a felony are prohibited from possessing or owning firearms. This prohibition is lifelong unless you apply for your rights to be restored.

Sometimes, even pending DWI charges can affect your firearm rights. While awaiting trial, you may be subject to temporary restrictions on firearm possession, especially if the court imposes a protective order or other conditions that limit your rights.

What are the Consequences of Possessing a Firearm When Restricted to Do So?

According to 18 U.S.C. § 922(g), possession of a firearm by a prohibited person is a felony. It is punishable by a state prison sentence of up to ten years. If you have three or more prior convictions for DWI with aggravating factors, you may face a mandatory minimum sentence of 15 years under the Armed Career Criminal Act (ACCA).

Texas state law also classifies possession of a firearm by a prohibited individual as a third-degree felony. Its penalties include a state prison sentence ranging from two to ten years and a fine of up to $10,000.

In addition to criminal charges, possessing a firearm when restricted can lead to enhanced sentences for other crimes. For example, if you were found committing another offense while possessing the firearm, you may face enhanced penalties upon conviction.

Moreover, if you were under probation or parole, the court will revoke it. This means that you will be imprisoned for the remaining term of the original sentence, which may be lengthened due to the additional penalties for the new violation.

Being convicted of illegal firearm possession can lead to further loss of rights, including voting rights and other civil liberties. Beyond criminal penalties, you may face collateral consequences such as difficulty finding employment, housing restrictions, and damage to personal and professional reputations.

How Can You Restore Your Right to Own a Firearm?

Typically, you regain the right to possess a firearm five years after your conviction. However, this right is restricted; you may only keep the firearm within your home premises. This prohibits you from transporting or using the firearm in any shooting range or firing area.

To fully restore your firearm rights, you can explore the following options:

Apply for a Governor’s Pardon

A pardon is an official act of forgiveness granted by the governor, which can restore various civil rights lost due to a conviction, including the right to possess a firearm. However, it does not erase the conviction from your record; it provides relief from certain legal disabilities associated with the conviction.

To be eligible for a governor’s pardon in Texas, you typically need to meet the following criteria:

  • You must have completed your sentence.
  • There is demonstrated evidence of rehabilitation and good conduct since your conviction. This can include maintaining steady employment, engaging in community service, and avoiding further legal trouble.

The process of applying for a governor’s pardon involves several steps. First, you must download the application form from the Texas Board of Pardons and Paroles. Next, fill out the application thoroughly and accurately, providing personal information, details of your conviction, and evidence of rehabilitation.

Along with your application, you will need to submit supporting documents such as character references, proof of employment, community service records, and any other evidence of rehabilitation. Once submitted, your application will be reviewed by the Texas Board of Pardons and Paroles.

The Texas Board of Pardons and Paroles will investigate your case, possibly including interviews and background checks. After review, the Board will make a recommendation to the governor regarding your pardon request. The final decision rests with the governor, who has the discretion to grant or deny the pardon.

File a Petition for the Restoration of Your Civil Rights

This legal process involves formally requesting the court to reinstate your civil rights, including the right to possess a firearm. Just like a governor’s pardon, a petition does not expunge the conviction from your record, and it only provides legal relief from the restrictions imposed by the conviction.

You can file the petition once you have completed your sentence and the judge releases you from the community service program. However, the judge will require you to provide concrete evidence showing you have been rehabilitated since your conviction.

Your attorney can help you prepare the petition. Once it is ready, you can file it at the courthouse and pay the prescribed filing fees.

The judge will review your petition and may schedule a hearing where you and your attorney can present your case. Sometimes, the prosecutor or other interested parties may oppose your petition, arguing that your civil rights should not be restored.

The judge will make a decision based on the information provided. If the petition is granted, your civil rights, including the right to own a firearm, will be restored.

Apply for a Writ of Habeas Corpus to Set Aside Your Conviction

A writ of habeas corpus is a formal application requesting that prisoners be brought before the court to determine whether their detention is lawful. Although it is typically used to address unlawful imprisonment, it can also be employed to challenge certain legal consequences of a conviction, such as the loss of firearm rights.

A writ of habeas corpus can be particularly relevant if procedural errors during your trial, issues with the evidence, or changes in the law could affect your conviction's standing. To be eligible to file a writ of habeas corpus, you generally need to meet the following criteria:

  • You have legitimate grounds to challenge the legality of your detention or the consequences of your conviction.
  • You have exhausted all direct appeals related to your conviction. This is because the writ of habeas corpus is often considered a last resort for relief.

Your attorney can help you prepare the petition. The petition must be filed at the appropriate court, usually the court that handled your original conviction.

After you have filed your petition, the judge will review it to determine whether your claim has valid grounds. If the court finds merit in your petition, it may schedule an evidentiary hearing where you and your attorney can present your case. The prosecutor will also have an opportunity to respond.

After considering the evidence and arguments, the judge will make a decision. If the court grants the writ, it can result in various forms of relief, including the restoration of your firearm rights.

How to Avoid a DWI Conviction

Society often holds a strong aversion to the idea of a felon possessing a gun, and courts are increasingly reflecting this sentiment. Consequently, the chances of successfully restoring your firearm rights after a DWI conviction are limited.

The most effective strategy to protect your firearm rights is to avoid a DWI conviction in the first place. Work closely with a skilled attorney to explore all possible defenses and legal avenues to fight your DWI charges.

Central to your defense may be questioning the legality of the initial traffic stop. Law enforcement must have a valid reason, such as observing a traffic violation or erratic driving, to pull you over. Your attorney will scrutinize the circumstances leading to the stop to determine if any violations of your rights or procedural errors could lead to the dismissal of charges.

Field sobriety tests (FSTs) are another area often targeted in DWI defenses. These tests are subjective and can be influenced by factors unrelated to intoxication, such as physical conditions or nervousness. Your attorney will assess the administration and interpretation of these tests to challenge their reliability as evidence of impairment.

Breathalyzer and blood tests measuring BAC are crucial evidence in DWI cases. Your attorney will meticulously examine the procedures followed in administering these tests, ensuring they were conducted correctly and by qualified personnel. Issues such as equipment calibration, mishandling of samples, or medical conditions affecting the results can be grounds for questioning the accuracy of these tests.

Alternative explanations for behaviors observed by law enforcement may also be explored. Factors such as fatigue, medical conditions, or reactions to medications can mimic signs of intoxication and provide reasonable doubt about the prosecution's case.

Throughout the process, your attorney will negotiate with prosecutors on your behalf, exploring opportunities for plea bargains or alternative resolutions that may mitigate the consequences of a DWI conviction. If your case proceeds to trial, your lawyer will mount a robust defense, cross-examine witnesses, and present evidence to challenge the prosecution's case.

Find a Fort Worth DWI Defense Lawyer Near Me

Society generally opposes felons possessing firearms, and courts are cautious about restoring firearm rights to DWI convicts. Therefore, building a robust defence strategy is the best way to protect your firearm rights.

If you are facing DWI charges or have concerns about how a conviction could impact your firearm possession rights, we encourage you to contact the Fort Worth DWI Defense Lawyer. Our team of experienced DWI defense attorneys in Fort Worth is here to provide personalized advice, explore all available legal defenses and options, and strive for the best possible outcome in your case. Contact us today at 817-470-2128 to schedule a free consultation.