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Have You Been Arrested For DWI

Don't plead guilty without learning your legal rights! A "drunk driving" conviction could remain on your driving and criminal record for LIFE. Remember: drinking and then driving is NOT a crime (at least for adults) in many states. The crime comes from IMPAIRED driving, or an unlawful breath/blood alcohol level. Approximately 1.5 million DWI charges are filed each year. Criminal charges against many have been dismissed or found not guilty by a judge or jury.

Texas Penal Code § 49.04 defines the offense of DRIVING WHILE INTOXICATED as follows: A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.

Under Texas law, "intoxicated" means:

• Not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
• Having an alcohol concentration of 0.08 or more.

• First offense: a first-offense conviction includes a fine not to exceed $2000.00 and/or the possibility of serving jail time from 72 hours to 180 days, and a driver's license suspension of 90 to 365 days. (Class B Misdemeanor)
• Second offense: the punishment range increases to no more than a $4000.00 fine and/or jail from 30 days to one year, and a possible driver's license suspension ranging from 180 days to 2 years. (Class A Misdemeanor)
• Third offense: here you may receive a fine up to $10,000.00 and/or 2 to 10 years of imprisonment, and suspension of your driver's license ranging from 180 days to 2 years. (3rd Degree Felony)
• DWI with an open alcohol container (first offense): in addition to the penalty referenced above there is a minimum of 6 days in jail and a fine of no more than $2000.00 (Class B Misdemeanor)
• DWI with an accident where serious bodily injury occurred as a proximate cause of the intoxication: this crime is called "intoxication assault," and upon conviction you may serve a minimum of 2 years and up to a maximum of 10 years in jail. Additionally, you may have to pay a fine up to $10,000.00 (3rd Degree Felony)
• DWI where a death has occurred as a proximate cause of the intoxication: this crime is called "intoxication manslaughter." Upon conviction you may have to pay a fine up to $10,000.00 and/or be imprisoned from 2 to 20 years (Intoxication Manslaughter or Manslaughter with use of Deadly Weapon are both 2nd Degree Felonies)

In most cases, you may be eligible for probation, but there is no guarantee that you will receive a probated jail sentence or fine. A second DWI conviction could require that you spend 72 hours in jail even if you do receive probation. If you are convicted of the intoxication assault and receive probation, a minimum of 30 days in jail must be served as a condition of probation. Furthermore, to receive probation upon being convicted of intoxication manslaughter you must serve a minimum of 120 days in jail.

First, if stopped for DWI be polite and courteous, but you DO NOT have to consent to take any field sobriety tests. You DO NOT have to answer any questions about whether or not you have been drinking. Ask to speak with an attorney before answering any questions about alcohol consumption or before providing a breath sample or blood test.

Just because you were arrested does not mean you are guilty. A breath test or field sobriety test does not automatically prove you guilty. According to the federal government, accuracy of field sobriety tests are as follows:

HGN test..................77%
Walk and turn...........68%
One leg stand...........65%

So exactly what can I do for you when I say that there are several defense techniques to win?

As I tell all of my clients, each case is different and some challenges that may apply in one case may not apply in another case. However, in general here are some of the various challenges that may help your case. I will know more about what challenges I may make in your case after talking with you, your witnesses, photographing the scene of any field sobriety tests, reviewing all police reports and videos, and obtaining any tests results from any chemical tests that were taken.

THE DRIVER. In Texas, the government must prove that you were intoxicated while operating a motor vehicle in a public place. Although many times this issue will not be applicable (for example if you were driving and the officer pulls you over), there are cases that the government will not be able to show that you were driving or operating a car.

THE STOP. In Texas, an officer must have either probable cause or reasonable suspicion to stop you. If appropriate, I will challenge the stop. If the court finds that the police did not have probable cause or reasonable suspicion to stop you, the results of any tests may also be inadmissible in court.

FIELD SOBRIETY TESTS. The National Highway Traffic Safety Administration recognizes three standard field sobriety tests. They are the Horizontal Gaze Nystagmus (HGN); Walk and Turn (WAT); and, One Leg Stand (OLS). What does this mean to you? Each time we review a police report and/or a video of a field sobriety test, we grade both how you did and how the officer did in administering the test. If the officer did not administer the test in the proscribed manner, we can challenge the use of the test in court.

CHEMICAL TESTS. The Texas Alcohol Breath Testing Program requires that in each breath or blood test certain guidelines must be followed. As your attorney, I will review your case to ensure that the person giving the test and the person testifying about the results of the test have complied with all rules, regulations and laws. If any of these requirements have not been met, we can file various motions to suppress the results of the chemical tests. In addition, there are other areas that may affect the validity of a breath or blood test. These areas include: residual mouth alcohol; the temperature of the person taking the test; various medical conditions of the person taking the test; various occupations of a test subject and the fact that a test subject burps prior to taking the test may affect the outcome. These are not the only areas but are shown to let you know that just because the machine says a number that does not automatically mean that the number is a true and correct result.

REFUSALS. If you refused a chemical test, the government will attempt to get this refusal into evidence. Again, before the government can talk about the fact that you did not take a certain test, the government must meet certain evidentiary requirements. I will challenge any attempt by the government to get into evidence any information of a refusal if the officer did not comply with the regulations.

Call or email for a free consultation, I will explore all the above possibilities with you. The lesson to be learned from the above examples is that a case -- your case -- may be defended by one or more challenges to the charges you are facing. That's what I do for my clients.