I have a case coming up that originated as a DWI. The State offered the defendant an Obstruction of a Highway/ Passageway instead. The State then refiled the charge as an Obstruction of a Highway and dismissed the original DWI. Meanwhile, the defendant bond forfeited. Now, four years later, the defendant has set the Obstruction of a Highway case for trial because he says his attorney never explained to him that he had to plea to that charge.

My question is: Can we refile the DWI now, or has the SOL run? My argument would be that the SOL was tolled by an Obstruction being on file out of the same transaction. Does anyone know of any case law that would back this up? I'm having trouble finding it.

Thanks in advance!

This case might help

Hernandez v. State, 127 S.W.3d 768 (Tex. Crim. App. 2004) ("The question before the Court today is whether Code of Criminal Procedure Article 12.05(b) permits an earlier indictment *769 for a violation of one law to toll the statute of limitations in the prosecution of a later indictment of the same defendant for violating a different law. We conclude that the first indictment tolls the statute of limitations if both indictments allege the same conduct, same act, or same transaction, even if the offenses charged do not fall within the same statute.").