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HOW TO TAKE CARE OF A DWI IN TEXAS

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There are many circumstances that may have led to you being arrested for driving while intoxicated (DWI) in Texas. Though you cannot change the past, you can prepare for the future by knowing how to defend yourself against the charges.

Texas law states that you can be arrested for a DWI if you’re operating a vehicle on roadways, and fall under one of two definitions of “intoxicated”:

1. You don’t have normal usage of your mental and physical capabilities due to the consumption of alcohol or drugs; OR,

2. Your blood alcohol content (BAC) is .08 percent or higher. The BAC is lower for certain classes of drivers, including minors and commercial drivers.

No matter which factor contributed to your arrest, you do have certain rights to contest the charges and defend your interests. However, you should become familiar with these types of cases and gain a general understanding of how they proceed. In this eBook, you’ll learn:

• The basics of a DWI case and distinction between the two types of cases pending against you;

• The potential consequences of a DWI criminal conviction and an administrative hearing regarding your driving privileges;

• Mistakes commonly made by those charged with DWI in Texas; and,• How to go about hiring the right attorney with the experience and background

necessary to protect your rights.

TABLE OF CONTENTSCHAPTER 1: UNDERSTANDING A DWI

CHAPTER 2: POTENTIAL CONSEQUENCES OF A DWI CASE

CHAPTER 3: MISTAKES TO AVOID WITH A DWI CASE

CHAPTER 4: HIRING AN ATTORNEY TO HANDLE YOUR DWI CASE

CONCLUSION

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In Texas, there are two types of proceedings that come into play with your DWI case. Each is considered a different matter and is handled by separate government bodies.

1. CRIMINAL CASE: Being arrested for a DWI results in criminal charges, including different degrees of misdemeanor and felony. The nature of the criminal charges depends upon whether you’ve been convicted of other DWI-related offenses in the past. The matter proceeds before a criminal court and penalties are assessed (as specified in Chapter 2).

2. ADMINISTRATIVE LICENSE REVOCATION (ALR): While you may expect to face criminal charges, you may not realize that there is a second case against you when you’re arrested for DWI in Texas. The matter is a civil proceeding, as opposed to criminal, so there is no jail time or fine involved. Instead, the ALR is a penalty against your driving privileges. ALR proceedings are initiated either by your failure to pass a breathalyzer or blood test, or refusal to submit to testing.

• If you take the test and don’t pass, this is used as evidence that you were intoxicated and your license may be revoked.

• Your refusal to take a breathalyzer or blood test can also result in license revocation under the “implied consent” laws in Texas. Essentially, by being issued a driver’s license, you agree that you will submit to a breath or blood test if a police officer requests it: Your consent to the test is implied if you’re operating a motor vehicle on the state’s roads.

In either scenario, failure or refusal, your license will be suspended for a length of time. However, it’s critical to understand the deadlines imposed by the ALR proceedings.

• Your driver’s license is not suspended on the day you’re charged with DWI, but becomes effective 40 days after the arrest. You can legally drive during this time period on a temporary driving permit.

• You may request a hearing, in writing, to contest the DWI matter and present any relevant defenses. You have 15 days after the DWI offense to challenge the findings and the suspension of your license.

CHAPTER 1: UNDERSTANDING A DWI TWO TYPES OF DWI PROCEEDINGS

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At the ALR hearing, the Texas Department of Public Safety must prove that:

• There was reasonable suspicion to stop you or probable cause to arrest you on DWI charges;

• You were offered the opportunity to submit to a blood or breathalyzer test; and,

• You either refused the test or failed by having a BAC in excess of .08 percent.

You can present arguments and proof that contradicts the DPS evidence and, if successful, your license will not be revoked. This is why it’s important to consult with an experienced attorney that knows your defense and can protect your rights.

TAKE ACTION AFTER YOUR DWI

In the days following your DWI, you should act quickly to prepare your defense to the case against you. There are two reasons timing is critical:

1. You want to preserve evidence. Memories fade over time, both yours and those of any witnesses. Plus, any physical evidence may deteriorate as the days and weeks pass.

2. There are deadlines you need to address to protect your rights. As mentioned, the ALR case against you will result in an automatic suspension unless you file paperwork to request an official hearing within 15 days after the offense.

With these two points in mind, there are a few things you can do to prepare for the hearing. These tips put you in a better position to protect your interests, whether you’re defending yourself or have a lawyer to handle the case.

• Jot Down Notes: You should document everything you recall about the events leading up to your DWI arrest. Write down such details as:

• Your activities during the previous 24 hours• How much sleep you had the night before• What you ate that day• Any medications you were taking• The people you were with• The number of drinks you had, and when and where you

consumed them

• Gather Relevant Evidence: Depending on your case, you may want to obtain other physical evidence. For example, if the probable cause to stop you involved your failure to stop at a sign, take a picture of the intersection to show that your view of the sign was obstructed.

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• Talk to Witnesses: Your friends, acquaintances and the people who served you drinks may have information that’s essential to defending your case. They may be willing to testify regarding certain circumstances that may disprove the case against you. Again, it’s wise to write down notes related to what they saw and experienced at the time.

• Review Your Documents: The police report is especially critical because it contains the evidence you will need to contest at the criminal trial or ALR hearing. Typically, it will show the results of any field sobriety test and printout of your blood or breathalyzer test. If you’ve refused the test, this will also be indicated. In addition, there will be a statement of the officer(s) that issued your DWI charges. This will discuss grounds for probable cause and details about how you were acting when you were pulled over.

YOUR RIGHT TO AN ATTORNEY

When you’re pulled over for a DWI, the police officer(s) is required to inform you of your rights before he/she can officially charge you. You’ve probably heard “Miranda” rights recited on a TV show or in a movie; this means you have a right to an attorney and you have the right to remain silent at the scene of the incident. However, Texas courts have held that a person charged with DWI does not have the right to discuss their case with a lawyer before the breathalyzer or blood test.

Still, you do have the right to have an attorney represent you in the criminal case and the ALR hearing. As you’ve seen by reviewing the details of these proceedings above, and as you’ll read in Chapter 2 regarding the potential penalties you’ll face, these are complicated matters. Consider retaining a lawyer, or at least consulting with one in the days after your arrest.

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There are legal and nonlegal consequences that result from a DWI offense in Texas. These are impacted by a few different factors depending on the circumstances.

ADMINISTRATIVE PENALTIES

The ALR proceeding can result in a license suspension, the length of which is affected by the convictions you’ve had in the past.

• 1st Offense: 90-180 days

• 2nd and 3rd Offense: 180 days to two years

• Intoxicated Assault/Manslaughter: If your DWI arrest involved an accident and injuries, you may be charged with Intoxication Assault or Intoxication Manslaughter. Both carry a potential license suspension of 180 days to two years.

• Minors: If you’ve been arrested for a DWI with any BAC amount, you face license suspension, as well as enrollment in educational courses. You might also be required to install an ignition interlock device, which prevents your car from starting if it detects alcohol on your breath. Subsequent offenses involve much stiffer penalties as well.

CHAPTER 2: POTENTIAL CONSEQUENCES OF A DWI CASE

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CRIMINAL MATTERS

Your criminal case for DWI may also involve fines, probation and other penalties.

• 1st Offense: Class B Misdemeanor. The maximum fine is $2,000 and jail time range is 72 hours to six months.

• 2nd Offense: Class A Misdemeanor. Fines are up to $4,000 and jail time ranges from one month to a year.

• 3rd Offense or Intoxication Assault: Third Degree Felony. You face up to $10,000 in fines and 2-10 years in state prison.

• Intoxication Manslaughter: Second Degree Felony. The penalties remain the same as a third offense, but the charge is a more severe degree of felony.

OTHER NON-CRIMINAL CONSEQUENCES

In addition to the criminal penalties you face and the potential suspension of your license, your DWI conviction may have other negative impacts upon your life:

• Credit agencies may be notified of the DWI, which impacts your score.• You may lose your commercial driver’s license or pilot’s license,

if applicable.• You might pay more for health insurance.• If you drive a vehicle in accordance with your job, you cannot legally do

so with a suspended license. You might lose your job as a result.• There’s a possibility you won’t be allowed to vote in elections.• You could experience problems renting a home.• Your vehicle could be towed and impounded.• Any application for citizenship or residence in the U.S. may be delayed

or denied.

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POTENTIAL SETTLEMENT ARRANGEMENTS AND PLEAS

Under certain circumstances, you can avoid the severe consequences of an ALR license suspension and/or criminal conviction.

• The ALR Case: You might qualify for an Occupational License, a special credential that allows you to drive for certain limited purposes while your license is suspended. If you must drive for school, work or to take care of your household, you might be eligible. The process requires you to file a request and obtain an order from the court handling your criminal case. You must then submit the documents to DPS, along with reinstatement fees and filing fees, before obtaining the Occupational License.

• Criminal Case: It’s possible to request DWI Probation in lieu of jail time in your criminal case, which requires you to comply with a court order. You’ll be required to perform certain tasks or be prevented from engaging in certain activities, such as:

• Report to an assigned probation officer;• Pay court costs and fees for probation;• Offer community service;• Attend approved DWI education courses;• Complete a drug or alcohol program; or,• Refrain from drugs and alcohol, which will require random testing to

ensure compliance.

• License Reinstatement: Once the time period has passed for your suspension, your driver’s license isn’t automatically returned to you. You must comply with the license reinstatement requirements by:

• Paying all fines and court costs associated with your case;• Showing that you’ve completed any sentence issued by the

criminal court;• Completing all alcohol or drug programs required by the court or ALR

proceeding; and,• Paying license reinstatement fees.• There also may be additional requirements depending on the details of

your case.

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The ALR proceedings and criminal court case related to your DWI charge are complicated, which might lead you to make certain mistakes that will have a grave impact on your case. Whether you decide to hire a DWI attorney or not, here are some of the more common errors you should avoid to protect your interests.

FAILING TO ACT ACCORDING TO TIMELINES

The clock starts to run on the day you’re charged with a DWI, whether because you failed or refused the tests to determine your BAC. This means that you have 15 days to file a request for an ALR hearing to contest the DWI and avoid license suspension. If you don’t, your license will be automatically suspended after 40 days and you’ll have no opportunity to challenge the charges or present defenses.

Another important timeline event occurs when your license suspension is finished and you can apply for reinstatement. This part of the process is not automatic, so you’ll have to take action to remove the suspension status. You must file the proper paperwork and submit required payments in order to get your license back.

PLEADING GUILTY TO MAKE THINGS EASIER

You might be tempted to plead guilty in your criminal DWI case or to allow the 15 day hearing time period to lapse, just to avoid the hassles of contesting the charges. However, keep in mind that the case has a significant impact upon your future. Not only would you be subject to stiffer penalties and suspension for another offense, but you may also suffer some non-legal consequences. It’s worth it to at least make the prosecution or DPS prove their cases against you.

The fact is that these cases can be fraught with errors, whether by the police officer(s), equipment used to test your blood or breath, probable cause issues or other matters. If you don’t contest the evidence, these mistakes will be set aside and you’ll be forced to deal with the penalties – regardless of the weaknesses in the charges against you.

CHAPTER 3: MISTAKES TO AVOID WITH A DWI CASE

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OPERATING A VEHICLE ON A SUSPENDED LICENSE

Once your license has been suspended, you might think that driving “just this once” won’t make your situation worse. The opposite is true if you’re caught. Driving on a suspended license can result in immediate jail time, an increase in your suspension time, additional fees and other penalties. Plus, if your DWI case is still pending when you’re charged with driving while suspended, your penalties can be more severe than they would otherwise be.

DECIDING NOT TO HIRE A LAWYER

Obviously, you have a choice of representing yourself in your DWI case. This is a mistake for a number of reasons:

• A DWI attorney has the legal background and expertise in the laws regarding your ALR and criminal cases. They know the federal and state legal requirements that the agencies must meet to prove the case against you, so they can issue the right challenges.

• Lawyers also know the legal defenses and remedies available to you, which can result in having the charges thrown out and lifting license suspension. Without a legal background, you’re at a disadvantage in defending yourself in the ALR hearing or criminal court.

• DWI attorneys have experience in handling DWI cases. These legal professionals know what paperwork and court documents must be completed, and the relevant deadlines for filing.

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You can see how essential it is to retain professional counsel to protect your interests and fight for your rights in your Texas DWI case. However, you might feel overwhelmed by the task of finding the right attorney for the job. If you’ve never had a reason to consult a lawyer, it can be difficult to know where to start. Here are some tips on researching, vetting and making the right decision.

TIME IS OF THE ESSENCE

As pointed out, there are a number of reasons you need to take action to defend yourself against DWI charges. There are deadlines to meet, witnesses to consult and evidence to preserve for both the criminal case and the ALR proceeding. Once you’ve decided to hire a DWI attorney, you should start looking for a legal professional as soon after the incident as possible so this person has enough time to prepare. It’s obviously quite difficult for him or her to file the proper paperwork within the 15-day ALR hearing deadline if you wait until the final days. Begin your search right away, with the understanding that it may take you a few days to find the best lawyer for your situation.

LOOK FOR A LAWYER WITH EXPERIENCE IN DWI CASES

Clearly, you want a lawyer who has an extensive background and considerable experience in handling DWI cases. Many general practitioners will claim that they do DWI defense, but their practices can be quite diverse to cover probate, divorce, bankruptcy and other matters.You want a lawyer whose docket is at least half DWI cases, not one that takes on such matters a few times per year. Ask what percentage of the person’s clients are DWI defendants to determine whether the attorney is truly focused on this area of law.

CHAPTER 4: HIRING AN ATTORNEY TO HANDLE YOUR DWI CASE

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RESOURCES FOR FINDING THE RIGHT LAWYER

You’ve probably seen ads on TV or in phone books promoting DWI defense services. The important point to note here is that attorneys purchase these spots, so the claims made within are purely for marketing. They’re not a replacement for education and experience, so you should consider the ads carefully. Some other sources to try include:

• Your State or Local Bar Association: These organizations often keep a directory of lawyers according to name, specialty and other criteria. You can narrow down your list by those attorneys that specialize in DWI defense, and then set up appointments.

• Friends and Family: If someone you know and trust has been involved in a DWI case, ask if you can contact their attorney.

• Online Research: You can also search for DWI lawyers online, but make sure you vet them thoroughly. Check an attorney’s or law firm’s website to see the areas of law they cover and read their publications.

MAKE SURE YOU UNDERSTAND BILLING

DWI lawyers in Texas have a few different arrangements for billing in order to represent you. Find out the details before you agree to retain an attorney to handle your case. Options may include:

• Flat Fee: This arrangement requires you to pay a lump sum or installment payments involving a set bill amount. The amount will not change and you won’t be required to provide additional funds while your case is proceeding.

• Hourly Rate: Some attorneys will charge you based on the amount of time they spend on your case. You’re typically billed once a month for the hours or fractions of an hour that the attorney invests in research, attending court and other activities.

One item to note is that a contingency fee is unlikely in DWI cases. This arrangement is where you don’t pay unless you win your case. The contingency arrangement is typically only used in personal injury cases.

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Hopefully, this information on how to take care of a DWI in Texas has helped you understand these types of cases and know your rights. You’re now aware of the consequences of a DWI conviction and can avoid certain mistakes that many defendants make when they’ve been charged with driving while intoxicated.

However, the important takeaway is to recognize the importance of having an experienced, knowledgeable DWI lawyer represent you. Without a legal background, you don’t know how to protect your rights and cannot take advantage of the defenses and remedies available to you. For more information, schedule a consultation with Jarrett Johnston, criminal law attorney at Stockard, Johnston & Brown, P.C. in Amarillo, Texas.

CONCLUSION