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Boating While Intoxicated in Texas: a brief comparison



With the dawn of summer and Memorial Day weekend, many people will take to the area lakes and rivers for recreation with family and friends. The increased water traffic will necessarily draw an elevated law enforcement presence. Inevitably, many people will find themselves in the position of being investigated for Boating While Intoxicated.


Is Boating While Intoxicated as serious as Driving While Intoxicated?


Yes, they are equal in seriousness. The Texas Penal Code in section 49.06 says a person commits an offense if they are intoxicated while operating a watercraft. BWI and DWI share the same penalty range and potential collateral consequences. For example, if you have a prior DWI conviction, and get arrested for Boating While Intoxicated, you will be charged with a second offense enhancing the charge and range of punishment from a Class B to a Class A misdemeanor. Or, if you have two prior DWI convictions, and you get arrested for BWI, it will be treated as a third offense, enhancing to a 3rd degree felony,


Can police stop you for any reason on the water?


Yes. Police do not need reasonable suspicion or probable cause to stop you on the water. If you are in a boat, on a jet ski, or other “watercraft” police can make contact at any time to conduct a “safety check”. This is distinguishable from driving a vehicle where courts have found a minimal privacy interest that would require law enforcement to have reasonable suspicion that a crime is or has been committed in order to make contact with you. A side note to this is that the Boating While Intoxicated statute does not require you be in a “public place” like the DWI statute.


Do I perform field sobriety tests on the boat?


No. In Boating While Intoxicated investigations where police conduct field sobriety tests, the suspect will be taken to the shore and given fifteen minutes to regain their “land legs” before any agility exercises will be performed. If police do not follow this regulation, they jeopardize the validity of any results they think might have been observed.


Can I refuse to take a breath or blood test during the BWI investigation?


Yes, and you should. Your driver’s license could still be subject to an administrative suspension like in a DWI case, but we can fight that, too.  We will request the separate and independent administrative action and subpoena all the officers involved to testify, under oath, why you were arrested.

Do ‘No Refusal’ policies apply to BWI cases?


Yes, unfortunately. You should expect ‘No Refusal’ to be the norm on all BWI cases. Memorial Day, July 4, and Labor Day weekends for certain will be ‘No Refusal’ but so will a random Tuesday in June. I still believe you should refuse to consent to a breath or blood test in most cases. If the police wish to seek a search warrant, then that’s within their purview of their duties. Sometimes judges will grant the warrants, sometimes they won’t. It is up to the officer to obtain the necessary probable cause. You do not have to give it to them voluntarily.


If you have any questions about a BWI case, or you need legal representation, please don’t hesitate to contact me. The right lawyer can make all the difference. Even if you think there is no chance to win, call me, let me show you what I can do.

Austin DWI No Refusal Policy on Arrests Indefinite

Austin DWI No Refusal is not news anymore. Last week, City of Austin officials announced they would enforce APD No Refusal policies each weekend through September. This sounds like an aggressive policy shift, but in reality, No Refusal policies have essentially become the way of normal business.  In my experience, if stopped by an APD officer on the DWI Unit, No Refusal is the name of the game, not the exception. I routinely receive calls from prospective clients arrested in the middle of the week who were subject to a No Refusal type search warrant for their blood.

To summarize the policy, if you are pulled over, subsequently arrested for DWI, the arresting officer will request a sample of your blood or breath. You will be read a “Statutory Warning” and then asked to submit.  This all occurs POST ARREST, only after you have been arrested.  You do not have to give a specimen.  No Refusal, a misnomer, means the officer will try to obtain a search warrant that permits him to forcibly draw blood. Warrants are not guaranteed. In the event a warrant is procured, you have the ability to challenge the officer’s “probable cause” in court.  This controversial policy spread almost statewide beginning about 8-10 years ago.  Travis County has magistrates on duty at the jail 24 hours a day, every day, all year round.

This is another reminder that you are always permitted to refuse breath or blood. No Refusal does not mean that your blood will be taken automatically. It is simply a policy that directs arresting officers to seek a search warrant if the arrestee refuses. In most cases, the officer may not take your blood without your consent or without a search warrant.

See my No Refusal blog for more info, and if you have any questions about these policies, or need to speak to an attorney, please contact me immediately.

Charged with theft?

Theft is a common offense in Austin, and it has lifelong potential consequences.  The offense itself involves unlawfully appropriating property of another with intent to deprive the owner.  The statutory language is very broad.  It can be anything from shoplifting to not paying for your uber.  The degree of the offense, or level of misdemeanor/felony status depends on the amount in controversy, and the presence of any prior convictions.  In 2015, the Texas Legislature redefined the classifications.  Anything less than $100 is a class C misdemeanor, a citation.  That means it’s punishable by a fine only, no jail time.  Between $100 and $750 is a class B misdemeanor.  This carries up to 6 months in jail and a $2000 fine.  $750 to $2500 is a class A misdemeanor.  Anything over $2500 is in felony territory.

Obviously, a felony theft charge is a terrible position to be find yourself.  But even a conviction on a class C theft ticket can be life changing.  Theft is what is commonly referred to as a crime of moral turpitude.  Crimes of moral turpitude also include things like prostitution and perjury.  People with these convictions are branded as dishonest, and unreliable.  Legally, it may become extremely difficult to secure a loan, or a lease, or ever testify in court if you have a crime of moral turpitude conviction.

One way we try to make these cases go away is to make restitution.  Prosecutors like to see their victims made whole.  Sometimes the most efficient way to a dismissal is to pay the amount in controversy.  Obviously, you shouldn’t pay back money you didn’t take, but if a misunderstanding can be fixed quickly, this is an option.

If you’re charged with Theft, you must have a lawyer that can explain all these nuances to you.  Call me, and let me get this off your record as quick as possible.

New texas law on record sealing

  • Will Mitchell,
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Effective September 1, 2015, a new Texas law makes it easier for many people to get their criminal record or arrests sealed.  If you have ever been arrested, and completed a deferred adjudication, this law may apply to you. 

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4th of July DWI No Refusal Arrests

Extended ‘No Refusal’ initiatives on every notable holiday have become the norm for Austin and the surrounding area. This year is no different.  The initiative begins tonight and runs through Wednesday on the roads and the lakes. APD bans personal water crafts during portions of these holiday weekends. Elevated law enforcement presence on the lakes means Boating While Intoxicated (BWI) arrests will be as much in focus as DWI arrests this time of year. 

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Recent Case Results

  • Possession of Marijuana
    • Client J.H.

      Travis County
    • Case Result
  • Driving While Intoxicated
    • Client J.N.

      Caldwell County
    • Case Result
  • Assault with Deadly Weapon
    • Client C.L.

      Travis County
    • Case Result
  • Olivia and Will are amazing to work with! They make the process completely the easiest it can be during a time of stress and worry.
  • I reached out to Will after finding his name through a Google search. I was not looking for DWI consultation but for unpaid tickets and a suspended license issue.
  • Will got my DWI charge dismissed in lieu of a reduced charge of obstruction of highway passage.
  • Five star rating. Very professional. I would recommend Will Mitchell to anyone in my situation.
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