DA's office charges Council Member Marc Whyte with DWI more than 6 months after arrest

The Bexar County District Attorney’s Office on Wednesday charged Council Member Marc Whyte with driving while intoxicated — more than six months after a San Antonio police officer pulled him over on a North Side.

Whyte, 44, was arrested on suspicion of drunken driving the night of Dec. 29. Now he’s been formally charged by the DA, setting the stage for an eventual trial.

San Antonio police officer D. McCroy allegedly witnessed the Northeast Side councilman speeding and changing lanes without signaling on a Northeast Loop 410 frontage road, and pulled him over shortly after 11 p.m.

The officer said in an affidavit that Whyte smelled strongly of alcohol, his eyes were “glassy” and “red,” and he swayed back and forth after getting out of his car.

Whyte told the officer he had one drink at El Mirasol restaurant on Northwest Military Highway, a second at Myron’s Prime Steakhouse next door and a third at the nearby Thirsty Horse Saloon.

The San Antonio Police Department on Jan. 11 released body camera video of the arrest. In the 20-minute recording, the council member appeared coherent and polite, and was adamant that he was sober. 

Yet the Texas Department of Public Safety reported in late February that Whyte’s blood alcohol concentration was 0.089 grams of alcohol per 100 milliliters of blood a few hours after his arrest. DWI is defined in the Texas Penal Code as driving with a BAC of 0.08 or higher.

It’s a Class B misdemeanor, punishable by up to 180 days in jail.

Whyte was slated to appear in Bexar County Court No. 11 on Wednesday morning, but the hearing was reset because the DA’s office hadn’t formally charged him.

However, Assistant District Attorney Luis Echeverria filed the charge later that day, just after 1 p.m. A new court date hasn’t been set. 

The lag time between Whyte’s arrest and prosecutors' filing was unusually long for a DWI case, said Joe Hoelscher, a San Antonio lawyer with expertise in drunken driving cases. He said the DA’s office usually files charging documents in a DWI case within four months. 

If the DA’s office had taken much longer in Whyte's case, Hoelscher said, his attorney could have sought a dismissal because case law states that DWI cases must go to trial within eight months for the defendant to have gotten what's considered a speedy trial, as required by the Sixth Amendment.

However, local DWI attorney Louis D. Martinez said a lengthy period between a person's arrest and charges being filed against them isn’t unheard of.  He said he's seen charges filed, in a rare cases, a year after a suspect's arrest. Prosecutors have two years from the date of an incident to file charges.

Staffing shortages in the DA's office are usually the reason for such a lag, Martinez said. But prosecutors also could take more time to file a charge if they're conducting a more indepth investigation than usual. The office could send the blood to be re-tested or tested by an independent lab, Martinez said.

Whyte and his attorney, David Christian, declined to comment. 

DA spokesman Pete Gallego said the office does not comment on pending cases. 

In May, Echeverria said that he needed more time and was gathering “a couple of key pieces of evidence.” 

Echeverria said he also is seeking information from DPS forensic scientist Karen Ream, who tested Whyte’s blood.

Whyte’s predecessor in Council District 10, Clayton Perry, was handed probation last year after he drunkenly crashed into a car on the North Side and fled the scene on Nov. 6, 2022. The three-term councilman accepted a plea deal just over six months after the crash. 

In March, DPS suspended Whyte's license for 180 days — a routine step in DWI cases. He has been driving to work and to council-related events and meeting with an occupational license.