DO I NEED A LAWYER FOR MY DRIVING WHILE INTOXICATED CASE?
If you still have to ask the question you haven’t been paying attention. A DWI charge is not comparable to a traffic ticket. You can lose your license, livelihood and liberty. A criminal record could haunt you for many years. A criminal record could haunt you for many years.
In some courts, the Judge will let you discuss your case with a prosecutor on your own. They will gladly allow you to waive your rights to a lawyer. Keep in mind, however, that the prosecutors do not represent you, and they won’t necessarily be fair. Justice for them may simply be the harshest penalty you agree to accept.
Irrespective of whether you hire an attorney at our firm, we urge you to find legal help from a lawyer your feel comfortable with to represent you in your Driving While Intoxicated case. Representing yourself will likely cost you much more over the course of a lifetime than the money you save.
Call us to schedule an initial consultation regarding your legal options after a Texas drunk driving arrest.
IF I HAVE PRIORS IN OTHER STATES, CAN THAT AFFECT ME IN TEXAS?
Yes. First, Texas will recognize suspensions from other States and prevent you from applying for a Texas license during that period. Secondly, if you have a conviction for an alcohol related offense in other State, Texas prosecutors can use that conviction to enhance your punishment for any alcohol related offense committed in Texas.
IF MY LICENSE IS SUSPENDED IN TEXAS, WILL IT AFFECT ME IN OTHER STATES?
Probably. Most States belong to the Interstate Compact on Driver’s Licenses. If notified, those member States will recognize suspensions from Texas.
IS THERE ANY DIFFERENCE IN THE DWI LAWS FOR JUVENILES?
Yes. Anyone under the age of 21 will be judged under a different standard than adults. The law states that a minor commits an offense if he operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor’s system. This is commonly referred to as a DUI offense. A first conviction for this offense is punishable by a fine up to $500.
A minor between the ages of 17 and 21 doesn’t have to be prosecuted for DUI if the officer believes the minor is intoxicated as that term is defined by the penal code. If the minor has demonstrated a loss of normal mental or physical ability or has registered over .08 alcohol concentration, he will be facing the same punishment as an adult.
License suspension laws are different for minors as well. If a minor takes a breath test and any detectible amount of alcohol is present, DPS is authorized to suspend his driving privileges for not less than 60 days for a first alcohol related driving offense and not less than 120 days suspension for a minor with one previous alcohol related offense.
ARE THERE ANY ADDITIONAL COSTS OTHER THAN FINES?
Yes. Any conviction for DWI in Texas carries with it a DPS license surcharge that applies for three years after a DWI conviction. Currently the surcharge is $1,000 for a first offense, $1,500 per year for a subsequent DWI conviction and $2,000 each year for someone who registered over .16 or more on a chemical test on their current DWI conviction.
Probation fees and related expenses on a standard one-year probation can total well over $500. Currently, court costs in Harris County for a first DWI is $240. More fees will apply in the event your license is suspended at an Administrative License Revocation (ALR) hearing or if you are required to obtain an occupational license. A first time DWI conviction can conservatively cost you more than $6,000, and that doesn’t even take into account the increase in your auto insurance!
HOW LONG DOES A DWI CONVICTION STAY ON YOUR RECORD?
It used to be forever. However, in 2017 the legislature enacted a change in the non-disclosure statute (Tex. Gov. Code §411.0736), which allows non-disclosure of a prior DWI if certain conditions apply. There is a waiting period, however.
WHEN DO I GET TO TALK TO AN ATTORNEY AFTER BEING ARRESTED?
The Sixth Amendment to the U.S. Constitution provides that an accused has a Right to Counsel at every meaningful step in the court system. In most DWI cases this will be the first day an individual goes to court to answer for his charge. However, if a police officer or other court official is asking questions of the accused while he is under arrest, then the accused has a right to counsel and must be informed of that right. An accused person does not have the right to consult a lawyer before taking a breath test.
WHAT IS THE DIFFERENCE BETWEEN A FIELD TEST AND A 'STANDARDIZED' TEST?
An officer who stops an individual on the side of the road and suspects intoxication can give any number of field tests that he believes will help him make the decision to arrest. The problem with allowing officers to choose their favorite test is two-fold. First, it may not be all that effective in determining whether someone has lost his or her normal physical or mental abilities. Second, the scoring on each test is left up to the officer’s discretion.
The National Highway Traffic Safety Administration (NHTSA) sought to redress these problems by developing “Standardized” field tests. Three tests were chosen as the most reliable, the Horizontal Gaze Nystagmus (HGN), One Leg Stand and Walk and Turn. NHTSA then developed a standard way to give and score each test so that the discretion of each officer was limited.
Officers are taught how to give these tests at in service schools certified by NHTSA. An officer becomes “certified” to give these tests when he completes the 40 hour course and gives a certain number of correct HGN tests out on the street.
One goal of developing these tests was to tame the jungle of differing tests and opinions that had developed out on the street. However, police officers and prosecutors mistakenly imply at trial that these tests are scientific and wholly accurate. Nothing could be further from the truth. Having a person stand on one leg is still just having a person stand on one leg! Calling it “standardized” doesn’t imbue it with extra evidentiary value. It is the job of the DWI defense attorney to impress this point to the Jury.
CAN I REFUSE BEING VIDEO TAPED?
No. An officer, just like a citizen, can videotape the scene on a public street. A video doesn’t implicate any constitutional rights a citizen possesses during the arrest process. The video at the station is also permitted, although we have seen instances where an accused refused to enter the video room when requested to by the officer. In one such case the officer dragged the accused kicking and screaming into the room! The officer got his tape but the whole scene probably had more to say about the officer’s attitude than the defendant’s intoxication.
DO I HAVE TO PERFORM FIELD TESTS WHEN AN OFFICER ASKS ME TO?
No. Despite the urgency by which the officer addresses you, he is only requesting that you take his field tests. Nothing in the law requires you to stand on one leg or look at a penlight. Of course, if you refuse his tests he’s likely to assume you are guilty but we have represented many people who were assumed to be guilty despite their excellent performance on the officer’s field tests!
WILL I LOSE MY LICENSE AUTOMATICALLY IF I REFUSE OR FAIL A BREATH TEST?
Although an officer may take your drivers license after an arrest and tell you your license is supended, nothing in law is automatic. You have a right to contest the officer’s decision to stop your vehicle and arrest you for DWI. You have 15 days after an arrest to request a hearing in front of an Administrative Law Judge to determine these issues. If you don’t request a hearing, you will lose your license within 40 days.
DO I HAVE TO TAKE A BREATH TEST JUST BECAUSE A POLICE OFFICER WANTS ME TO?
No. An officer cannot force you to blow into a machine. Of course, the State will attempt to punish you for your refusal. Because Texas is an implied consent state, the Department of Public Safety (DPS) is authorized to suspend your driver’s license for 180 days if it’s shown that at the time you refused, the officer asking you to take a breath test had reasonable suspicion to stop your car and probable cause to believe you were intoxicated.
ARE THERE ANY SPECIAL BAIL REQUIREMENTS FOR SOMEONE CHARGED WITH DWI?
Yes. Texas Statute requires a Judge to order a breath test devise be placed on a defendant’s car when the defendant has a prior DWI conviction and if the blood or breath test is over .15% concentration. Despite the presumption of innocence, Judges have the latitude to order any “reasonable” bail condition in DWI cases. Lately, some Judges have been ordering a breath test devise on the car of the Defendant if he had an accident and some order it as a matter of course.
More and more Judges are requiring DWI defendants to be administered by the county Pre-trial agency as a condition of bail. This means the defendant must take drug tests and report on a weekly basis. A good Houston criminal lawyer can negotiate these conditions with the Judge, but the harsh reality is bail conditions are not getting any easier.
WHAT ARE THE PENALTIES FOR DWI?
In Texas, if a person is convicted of his first DWI offense, he will pay a fine no greater than $2,000 and be sentenced to a jail term of no less than 3 days and no more than 180 days in the county jail. This can be probated. On a second DWI conviction, the maximum fine increases to $4,000 and the jail sentence must be anywhere from 30 days to one year in the county jail. This can be probated. A third DWI conviction is a third degree felony. The accused will be sentenced from 2 to 10 years in the penitentiary and pay a maximum fine of $10,000. This also can be probated.
DWI convictions with special findings, such as driving with an open container, causing serious bodily injury or death or driving intoxicated with a child in the car will carry with it enhanced punishments. Probation is not guaranteed in any DWI case, but if eligible, a defendant can often negotiate probation by plea bargain. Probation becomes more unlikely for repeat offenders and in cases where the DWI resulted in physical injury to another. Further, a second offender must serve 3 days in jail as a condition of probation and an accused convicted of a felony DWI must serve a minimum 10 days as a condition.
WHAT IS MEANT BY 'NORMAL' MENTAL AND PHYSICAL FACULTIES?
The answer to that question is at the heart of most DWI trials. If a person is dead drunk there is no question that he has lost normalcy. However, what if that person is not stumbling drunk but has visible flaws in his physical abilities? In theory, the field tests are supposed to reveal those flaws. The problem with the field tests is that they test for physical abilities not everyone possesses. Normal mental ability is even more difficult to pinpoint. Any normal person – especially an older person – will vary greatly in mental acuity throughout the day. When placed in stressful situations, such as being accused of committing a crime, a person is likely to be nervous and distracted.
Prosecutors like to tell jurors in a Driving While Intoxicated prosecution that any mental and physical mistake justifies a conviction. However, a good defense attorney will point out that “normal” varies from individual to individual. If the prosecutor is arguing that the person who dropped his foot while standing on one leg is thereby intoxicated, it is her burden to prove that the person is fully able to stand firmly on one leg in all other instances. At the firm we like to say, “only God knows when someone is not normal; all others are taking an educated guess.”
WHAT IS THE SIGNIFICANCE OF .08% ALCOHOL CONCENTRATION?
The legislature decided to make that the cutoff point. Years ago, the cutoff was .10% but legislators were persuaded by experts, concerned citizens and lobbyists to lower the level. In theory, a person with an alcohol concentration of that much will have lost his ability to safely drive a vehicle. But of course, it’s never that simple. Some people need more than that to be a real danger to others and others much less. .08 is more or less a reasonable median. Some experts claim that the limit should be .06% and there’s reason to believe we may see a further lowering of the limit in the years to come. Contact the firm for additional information.
WHAT IS DWI?
DWI, or driving while intoxicated, in Texas means that someone is operating a motor vehicle while “intoxicated” in a public place. “Intoxicated” is legally defined in the state of Texas as either 1) Not having the normal use of ones mental or physical faculties, or 2) having an alcohol concentration of .08% or more.
Alcohol concentration can be measured in three different ways. The most familiar is the breath test, but an officer is authorized to take blood or urine as well. Concentration is defined as: a) the number of grams of alcohol per 100 milliliters of blood, b) the number of grams of alcohol per 210 liters of breath; or c) the number of grams of alcohol per 67 milliliters of urine.