Errors Made by Persons Arrested for Drunk Driving (DWI)

What Happens When You Get to Court

It is legal in all 50 United States to drive a car after drinking alcoholic beverages if you are over the age of 21 years.  Despite this fact, drunk driving is one of the most politically controversial crimes, subject to constant lobbying by powerful groups such as Mothers Against driving while intoxicated (MADD).  As a result, drunk driving is one of the most aggressively enforced crimes on the Texas books.  What is drunk driving, driving under the influence (DUI) or driving while intoxicated (DWI)?  Contrary to the term driving while intoxicated, one does not actually have to be drunk to be arrested and convicted of drunk driving.  Texas law states that a driver only has to have lost the normal use of his mental or physical faculties by the introduction of alcohol, drugs, or a combination of both to be guilty of driving while intoxicated.  This terminology creates a very ambiguous standard of measure that is subject to the subjective opinions of various jurors, judges and police officers.  In Texas, as it is in most other states in this country, a driver is presumed to be intoxicated by alcohol if he has a .08 percent blood alcohol content (BAC).  While DWI is not the most serious crimes prosecuted in Texas, it is one of the most aggressively prosecuted offenses and carries mandatory minimum punishments for convictions or pleas.  It is important you understand all the various penalties and ramifications imposed against you in disposing of your DWI case.

Despite the grim picture painted above, with proper representation, your likelihood of avoiding conviction for a DWI charge is quite good.  Juries currently acquit DWI defendants in slightly over 50 percent of cases presented to juries.  The most important step you can take to avoid a conviction in your DWI case is to consult with a qualified criminal defense lawyer immediately.  As with any criminal case, early intervention helps to preserve evidence that may be favorable on your behalf and can lessen some of the prosecutor’s efforts to secure evidence to convict you .

ERRORS MADE BY PERSONS ARRESTED FOR DRUNK DRIVING

1. Not hiring an attorney

Driving While Intoxicated is controlled by Texas Penal Code chapter 49.  It is one of the most complex and dynamic statutes in the Texas Penal Code.  Without an experienced criminal defense lawyer it will be virtually impossible for you to understand all of your rights, potential penalties and possible defenses relative to your case.  Sometimes a person arrested for DWI will go to the arraignment (first setting) after their arrest without an attorney.  At that time it’s not uncommon to feel embarrassed and want to dispose of the matter as quickly and quietly as possible.  This may make the prosecutor’s plea bargain offer sound quite attractive.  It is critical, however, that you take the time to understand every aspect of your case and possible defenses and to speak with a qualified, experienced criminal defense lawyer before rushing into a disposition.  You should never plead guilty or admit to a crime without consulting with an attorney.

2.  You should speak to no one but your lawyer about your DWI case.

As we’ve all heard over and over again, anything you say can and will be used against you in a court of law.  Discussions with police officers, prosecutors, assistant district attorneys, court personnel and friends all can potentially be used against you in your case.  Any of those persons can be subpoenaed by the District Attorney’s Office to provide testimony in court as to your statements.  Statements made to your lawyer are privileged and cannot be used against you in court.  It is most important that you speak only to your attorney about your case and avoid loose conversation, particularly in the halls of the courthouse about any aspect of your situation.

3.  Operating a vehicle after your license has been suspended.

Almost every DWI arrest involves some sort of Texas driver’s license suspension action.  When persons are arrested for drunk driving, they are requested to perform a breath test at the police station.  If a person arrested for DWI refuses to perform that breath test, their license is suspended for 180 days.  See WHAT HAPPENS WHEN YOU GET TO COURT.  If a person submits to the breath test and it registers a blood alcohol content (BAC) of .08 percent or higher, their license is suspended for at least 90 days following the test.  In the case of both suspensions, you will be issued a 40-day temporary license.  Some sentences in DWI cases involve additional license suspensions ranging from a minimum of 6 months up to two years for arrests with suspects who have been convicted one or more times for drunk driving.  In Texas, operating a vehicle after your license has been suspended, pursuant to a DWI suspension can result in a new arrestable offense with a potential jail term of up to 180 days.  Do not operate a vehicle while your license is suspended.

4.  Hiring the least expensive lawyer you can find.

As with every other purchase you make in life, the cost of legal representation for your DWI case can vary greatly.  It is not in your best interest to hire the cheapest attorney you can find.  Similarly, choosing the highest priced attorney does not necessarily guarantee that you will get better representation.  Hiring a lawyer to represent you in your DWI case is a personal decision.  You should look for a lawyer who is experienced in handling driving while intoxicated matters and understands how the prosecutor will try to secure a conviction against you and how to win your case.  It is important that you speak with a criminal law specialist and be confident that he understands the evidence against you and how to present facts and circumstances that demonstrates that you are not guilty of the DWI charge. 

One of the most important qualifications for a criminal defense attorney is previous employment as a prosecutor in the district attorney’s office.  Prosecutors try cases on a daily and weekly basis and become skilled at presenting facts and evidence to juries.  Hiring a former prosecutor almost guarantees a high level of ability to try your case.  You should a hire a lawyer that you feel confident will zealously advocate for your best interest.  Make sure that the lawyer you choose is a qualified and experience criminal defense attorney.

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WHAT HAPPENS WHEN YOU GET TO COURT

1.  License Suspension

As mentioned above, if you refuse the breath test after your DWI arrest, your license can be suspended for 180 days.  If you submit to and fail the breath test, registering a reading of .08 percent (BAC), your license will be suspended for 90 days.  If either of these suspension occur, your license will be confiscated by the arresting police department and you will be provided with a temporary 40 – day license.  You have the right to contest the license suspension by requesting a hearing before an administrative law judge.  The issues at such a hearing would be whether the police officer had a legally sufficient reason to stop you and arrest you for DWI (“probable cause”) and whether you failed or refused the breath test.  It is important for you or your attorney to request this hearing no later than 15 days following your arrest or your right to contest the suspension will be lost.  On the expiration of the 40^th day, your right to operate a motor vehicle will be suspended until the conclusion of the applicable suspension.

2.  The Initial Appearance

DWI arrest cases in Bexar County are set approximately 30 days from the day of arrest.  The purpose of the initial appearance is for the parties to confer and review the State’s evidence, including the police reports and other documents, blood or breath tests results, and videotapes if available.  The prosecutor will typically make a “blind” plea offer to the defense, that is, one made without a thorough review of all the evidence.  In order to obtain the best plea offer or dismissal, it is almost always necessary to set the case for pretrial motions or jury trial.

3.  Pre-Trial Conference

The pre-trial conference is typically the next court date after your arraignment.  By the time of the pre-trial conference, the parties have had an opportunity to review relevant police reports and to identify if there is additional outstanding material available pertinent to the case.  If the case is not disposed of at pre-trial conference, then a motion hearing date or a trial date is scheduled.  In a DWI case, just as any other criminal case, there are sometimes pre-trial motions that can be filed and argued that may be dispositive of the charges against you.  Motions to suppress evidence are regularly used to attempt to exclude damaging evidence against you that may have been secured by some improper action of the arresting police department.  Motions to dismiss may be filed in certain instances to achieve a dismissal of the charges against you based on some technical violation.

4.  Trial

A defendant with a DWI charge pending in the county court has a right to a trial before a judge or a jury of six persons.  Most people charged with DWI choose to have a jury trial because it is much harder for the prosecutor to convince six citizens that the defendant is guilty beyond a reasonable doubt than to convince a judge.  At your trial, the prosecution has the burden of proving the elements of DWI to the jury without any assistance from you or your attorney, although the defense has the right to put on evidence as well.  Whether you would testify at your trial is a personal decision made after an in-depth consideration of all the pros and cons with your lawyer.

5.  Sentencing

In the event that your case proceeds to trial and there is a verdict against you, sentencing is conducted immediately following the trial.  After the jury reports their verdict and have been excused, the judge or jury then proceeds to the sentencing phase if there is a guilty finding.  Most DWI defendants elect to have the judge decide the punishment because the judge is usually more likely to give probation rather than jail time.  The State proceeds first and requests a specific disposition and offers reasons in support of that recommendation.  Your attorney is then allowed to make a recommendation of your behalf and to provide pertinent personal and factual argument in support of that recommendation.  The judge will typically enter the disposition immediately .