DWI in the Armed Forces

If you're in the military and you're stationed in Texas, you've probably grown to love what the state has to offer. But whether you're stationed at Fort Sam Houston, Lackland Air Force Base, Randolph Air Force Base, Camp Bullis, or Joint Base San Antonio, you should know that Texas treats driving while intoxicated seriously. If you're facing a DWI in Texas, you're probably concerned about how this will affect your military career. In addition to the possible penalties from a Texas court, you could face punishment through the military legal system under the Uniform Code of Military Justice (UCMJ). Even if you don't, a DWI conviction can affect future military training, your security clearance, promotions, and possibly even future orders.

It's important to remember that an arrest for a DWI doesn't mean that a civilian court will convict you. But even if the state of Texas dismisses your charges, you could still face additional consequences through the military. The stakes are high. As a result, it's essential for any military service member facing a DWI to discuss your case with a DWI defense lawyer as soon as possible.

DWI in Texas Courts

The possible consequences from a DWI in a Texas court are pretty straightforward. A first DWI offense without any aggravating factors can result in a $2,000 fine, 72 hours to 180 days in jail, and a license suspension. You'll also face an additional mandatory $3,000 fine from the state of Texas imposed on all first DWIs. While a first DWI is typically a Class B misdemeanor, aggravating circumstances or multiple DWI convictions can raise that to a Class A misdemeanor or even a felony.

You can face felony charges for a DWI if:

• You have two or more previous DWI convictions,
• You had a child under 15 in the car with you,
• If this is your second DWI charge, and your BAC is .15% or higher,
• Someone was seriously injured in an accident resulting from your DWI, or
• Someone was killed in an accident stemming from your DWI charges.

Felonies and state jail felonies can result in mandatory jail time, up to 1,000 community service hours, a mandatory alcohol education class, attendance at DWI school, license suspension, and up to a $10,000 fine.

DWI and the Uniform Code of Military Justice

We all learn about the concept of "double jeopardy" in civics class as kids. In all the courtroom dramas on TV, they tell us that the state can't try someone twice for the same crime. If a judge or a jury finds you not guilty, then the state can't keep trying until they get the verdict they want. Double jeopardy does not apply if the military decides to seek punishment for your DWI under the Uniform Code of Military Justice (UCMJ).

The UCMJ is a federal law enacted by Congress, defining the military justice system and listing crimes under military law. The UCMJ contains the Rules for Courts-Martial, similar to the Federal Rules of Criminal Procedure, and the Military Rules of Evidence, similar to the Federal Rules of Evidence. The UCMJ applies to all military service members, including:

• Air Force
• Army
• Coast Guard
• Marine Corps
• Navy
• NOAA Commissioned Officer Corps
• Public Health Service Commissioned Corps

The Coast Guard typically administers punishments under Title 14 of the United States Code, but its members are subject to the UCMJ when acting as armed forces. The NOAA Commissioned Officer Corps and the Public Health Service Commissioned Corps are only subject to the UCMJ when attached to a military unit by orders or if militarized by executive order during a national emergency or war.

Jurisdiction of the Military and Civilian Courts

Whether you'll face DWI charges from Texas or the military can depend on where you face arrest. While the military has jurisdiction over every service member and any crime they commit wherever it takes place, Texas courts' jurisdiction will depend on where the crime occurred. If the police arrest you for DWI off base, you will face trial in a Texas court. However, even if you don't face charges under the UCMJ, your commanding officer can concurrently take administrative action. Moreover, the military may also charge you with related crimes under the UCMJ.

If the military police arrest you on a military base for a DWI, you will likely face a court-martial and adverse administrative actions under the UCMJ. See UCMJ § 911: Art. 111. Even if you don't face state charges, with a DWI conviction on a base in Texas, the state can still suspend your driver's license and require that you install an interlock device on your car and impose fines and other non-judicial punishments. However, your commanding officer will have a great deal of discretion in determining how and whether the military proceeds against you.

Military Courts-Martial

If your commanding officer decides to proceed with a court-martial, this is a formal legal proceeding similar to a civilian criminal trial. There are three types of courts-martial that you may face, depending on the severity of the charges.

Summary Court-Martial

A summary court-martial consists of one commissioned officer who serves as the finder of fact. The officer serves as both judge and jury in the matter. The military typically employs summary courts-martial for less serious criminal offenses involving enlisted service members. You do have some rights in this court-martial, including the right to remain silent, call witnesses, cross-examine witnesses, introduce evidence, and have an attorney present. While you don't have the right to a free military attorney in this proceeding, you can hire a civilian attorney to assist you.

A summary court-martial can impose:

• Reduction in rank,
• Forfeiture of pay,
• Confinement up to one month, and
• Hard labor.

Special Court-Martial

A special court-martial is essentially a misdemeanor court. It consists of a military judge and a panel of at least three service members. If you are an enlisted service member, you can request that the panel consist of at least one-third enlisted members. You may also request that only a military judge hear your case. A special court-martial can hear all cases under the UCMJ for officers, enlisted personnel, midshipmen at the United States Naval Academy, and cadets at West Point and the United States Air Force Academy. You have the right to be represented by a free military attorney or a civilian attorney.

A special court-martial can impose any punishment except:

• Death,
• Dishonorable discharge,
• Confinement for more than one year,
• Hard labor without confinement for more than three months,
• Forfeiture of pay exceeding two-thirds of pay per month,
• Any forfeiture of pay for more than a year.

For a guilty verdict at a special court-martial, the members can reduce enlisted personnel to the lowest enlisted pay grade and impose punishments that include:

• Bad conduct discharge,
• Confinement up to a year,
• Hard labor without confinement for up to three months, and
• Forfeiture of up to two-thirds of pay for up to one year.

A special court-martial can't reduce an officer in rank or pay.

General Court-Martial

The military typically reserves general courts-martial to try felony-level crimes. Everyone subject to the UCMJ can be subject to a general court-martial. It consists of a panel of at least five members and a military judge, although you may ask to be tried by a military judge alone. You have the right to be represented by a free military attorney or to hire a civilian attorney. A general court-martial can impose any sentence allowed by the UCMJ, including death when the UCMJ specifically authorizes it.

Military Non-Judicial Punishment

The military usually reserves non-judicial punishment (NJP) for less serious criminal offenses or breaches of military regulations or decorum. NJP is known by different terms in different branches of the military, including "Article 15," "office hours," and "Captain's Mast." Article 15 of the UCMJ authorizes a commanding officer to use NJP to discipline service members for minor offenses like petty theft, reporting late for duty, sleeping on watch, destroying government property, and more. As part of the NJP process, your commanding officer will inform you of your rights and responsibilities under the UCMJ. The notice will include:

• Notifying you that a NJP is under consideration,
• Describing the alleged offenses,
• Summarizing the evidence on which the command based its NJP allegations, and
• Notifying you of your rights.

Unless you are attached to a vessel underway, you can refuse a NJP. Refusing the NJP doesn't, however, mean that your commanding officer will dismiss the charges. They can still refer you for a court-martial. You also have the right:

• To appear personally before the officer imposing the punishment,
• To be accompanied by a spokesperson,
• Against self-incrimination,
• To examine the evidence against you,
• To present evidence or matters on your behalf, and
• To have the proceedings open to the public.

Your spokesperson can be a civilian attorney, and you can waive a personal appearance if the officer agrees. You can also submit matters for consideration to the officer in writing.

Punishment can include:

• Confinement or arrest in quarters,
• Confinement on diminished rations,
• Correctional custody,
• Forfeiting pay,
• Extra duties,
• Detaining your pay,
• Reducing your grade, and
• Restricting you to specified limits.

You have the right to appeal the imposition of NJP on the grounds that the punishment is disproportionate to the action or that the punishment is unjust. You must submit your appeal to the next person up the chain of command from the officer who imposed your punishment.

Long-Term Career Repercussions of a DWI

Aside from the immediate concerns about fines, incarceration, or punishment under the UCMJ, a DWI conviction can also affect your long-term military career. You could lose your security clearance, be unable to obtain further promotions, and lose future education and retraining opportunities.

Loss of Security Clearance

One of the unfortunate consequences of any criminal conviction can be losing your security clearance. After a DWI conviction, you can be a security risk. The US government relies on a competent, sober, and healthy military to defend and protect the country, and you may face an investigation to determine whether you are a risk. Without a clearance, you could lose access to or the ability to work with confidential and sensitive information.

The government uses the Adjudicative Guidelines For Determining Eligibility for Access to Classified Information to determine whether someone is eligible for a clearance. After thoroughly reviewing your background, criminal history, and interviewing your associates, the government grants a security clearance if it determines that you don't pose a risk that could end in the exposure of confidential or classified information.

Under these guidelines, the government will examine 13 areas. Five of them directly apply to a DWI, including your personal conduct; alcohol consumption; drug involvement; emotional, mental, or personality disorders; and criminal conduct.

Personal Conduct

Personal conduct can disqualify you from holding a security clearance if you exercise:

• Questionable judgment,
• Untrustworthiness,
• Unreliability,
• Lack of candor,
• Dishonesty, or
• Unwillingness to follow rules and regulations.

Although personal conduct isn't specific to a DWI, it can demonstrate some or all of the above problems. A DWI can indicate that you can't effectively assess circumstances and exercise sound and reasonable judgment.

Alcohol Consumption

Excessive alcohol consumption can increase your risk of unauthorized disclosure of classified information. If the government determines that your alcohol consumption results from "questionable judgment, unreliability, failure to control impulses," you could lose your clearance.

Drug Involvement

If your DWI involves drugs, whether prescription or illegal, it can indicate your "willingness or ability to protect classified information." Drug use can also impair social or occupational functioning, increasing the risk that you will disclose classified information. A DWI involving either alcohol or drugs can also show an unwillingness to follow rules and regulations.

Emotional, Mental, and Personality Disorders

While emotional and mental health isn't directly related to a DWI, this guideline can indicate you are a security risk because of "a defect in judgment, reliability, or stability." A DWI can also be an indication of another underlying mental or emotional problem. For example, if clinical depression is an underlying cause of alcohol or drug use, you could be unfit for a security clearance.

Criminal Conduct

This guideline looks at a "history or pattern of criminal activity." A DWI is criminal conduct and could render you ineligible to hold a security clearance. According to the guidelines, criminal conduct creates doubt about your "judgment, reliability, and trustworthiness." It can also indicate an unwillingness to follow rules and regulations.

In determining whether your DWI conviction disqualifies you from holding a clearance, the government will assess you as a whole person, including:

• The nature, extent, and seriousness of your conduct,
• The circumstances surrounding your conduct, including knowledgeable participation,
• The frequency and recency of your conduct,
• Your age and maturity at the time of the DWI,
• How voluntarily you participated,
• Whether you changed your behavior or showed rehabilitation,
• The motivation for your conduct,
• The potential for pressure, coercion, exploitation, or duress, and
• The likelihood of a recurrence of the behavior.

You probably won't lose your clearance unless your conduct reflects a recurring pattern of questionable judgment, irresponsibility, or emotionally unstable behavior. 32 ECFR § 147.2(d) The government will examine each case under its own merits. However, the determination of whether to grant or revoke a security clearance is highly subjective.

Losing a security clearance can also affect you once you leave the military. One of the advantages many veterans have in the civilian workforce is an active security clearance. These clearances can cost civilian companies, particularly defense contractors, tens of thousands of dollars to obtain for new employees. When a veteran applies for a job with a clearance already in place, they already have a leg up. If you have a DWI conviction and have lost your clearance, you lose that advantage and the ability to enter many career fields that hire experienced veterans.

Additional Military Career Repercussions

After a DWI conviction, whether through a civilian or military court, you could also face:

• Denial of further training opportunities or the opportunity to retrain for a new specialty,
• Loss of plum assignments,
• Cancellation of orders to a new duty station,
• Inability to obtain promotions in rank, and
• A disciplinary matter on your permanent record.

For many service members, an inability to obtain a promotion is the end of their career. Even if the military doesn't discharge you right away, they can force you out if they don't promote you.

Military Attorneys

For some courts-martial, including general and special courts-martial, you may use a free military attorney. These attorneys are part of the Judge Advocate General's Corps, which is the legal arm of each military branch. JAG attorneys are undoubtedly hard workers who are dedicated to defending their clients. However, many JAG attorneys are generalists, handling many matters that come their way, including drafting wills and powers of attorney, offering family law advice, and handling a wide range of criminal and civil matters. Your command may assign you an attorney without much experience or one without any litigation experience at all. It is rare to find a JAG attorney who is experienced in DWI defense and criminal law.

If you face charges in a Texas court in addition to a military proceeding, a JAG attorney cannot typically represent you in a civilian court. While they may be able to offer advice in an emergency, they likely can't offer you advice on DWI defense or knowledge of local courts and procedures. For that, you need a Texas Board Certified DWI attorney.

Why You Need a Houston DWI Defense Lawyer

If you're a military service member facing a DWI, you need an attorney with experience in DWI defense to handle your case. You need an attorney who is well-versed in local court procedures and is familiar with the UCMJ, non-judicial punishments, courts-martial, and the administrative and career consequences that a military member can face after a DWI conviction.

Board Certified DWI attorneys can provide the representation needed in these situations. The board certification process ensures that attorneys have extensive DWI litigation experience and advanced education and training in DWI legal and technical defenses and the science behind DWI testing. Attorney Doug Murphy is one of only two attorneys in Texas who are Board Certified in both DUI Defense from the National College of DUI Defense (NCDD), accredited by the American Bar Association and the Texas Board of Legal Specialization, and Criminal Law from the Texas Board of Legal Specialization.

Doug represents people charged with DWI stationed at bases across Texas, including:

• Brooks City Air Force Base
• Dyess Air Force Base
• Goodfellow Air Force Base
• Lackland Air Force Base
• Laughlin Air Force Base
• Randolph Air Force Base
• Sheppard Air Force Base
• Fort Bliss Army Base
• Fort Hood Army Base
• Fort Sam Houston Army Base
• Red River Army Depot
• Camp Bowie National Guard Training Center
• Camp Bullis Training Site
• Camp Mabry, home of the Texas National Guard
• Camp Stanley Storage Activity
• Martindale Army Airfield Base
• Camp Swift
• Biggs Army Airfield
• Corpus Christi Army Depot
• NAS Corpus Christi
• JRB Fort Worth
• NS Ingleside
• NAS Kingsville
• Medical Education and Training Camp Fort Sam Houston

Best Lawyers in America has also named Doug the "Lawyer of the Year" for DWI defense in Houston. Thompson Reuters has also named Doug a Texas Super Lawyer in Texas Monthly. The Harris County Criminal Lawyers Association also awarded him the Sharon Levine Unsung Hero Award for his work with others in exposing flaws in the Houston Police Department's Breath Alcohol Testing vans. Their work led to the HPD decommissioning the fleet of vans.

The Houston Press called Doug "a drinking driver's best friend" for a reason. He works hard to ensure his clients receive justice when the stakes are high. Doug can help you too. Call us at 713-229-8333 today or contact us online to set up a consultation.