|
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.
Back
to the top
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 40th 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
.
Back
to the top |
