DUI's and DWI's

DWI in Texas

Arrest (probable cause) (Miranda)

You have been arrested. Either the officer told you that you were under arrest or placed you in hand cuffs and put you in the police cruiser and took you to the station.

Was the arrest lawful?

If the police officer witnessed you driving in a manner that warranted pulling you over or for some other legal infraction, smelled alcohol on your breath, administered field sobriety tests (or if you refused these tests) a breathalyzer test and were over the legal limit of .08%, you will be or were placed under lawful arrest.

-The officer must have witnessed your violation of the law. -The officer must have had probably cause to stop and detain you.

The significance of an arrest being lawful is the officers observing and protecting your constitutional rights.

Was the Miranda warning read?

The U.S. Constitution provides in the Fifth Amendment the following:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation." The Fifth Amendment was interpreted in a U.S. Supreme Court case, Miranda v. Arizona (1966) 384 U.S. 436.

The Miranda court held, once in police custody, you must be told, in order to protect your rights, the following:

1. You have the RIGHT TO REMAIN SILENT 2. ANYTHING you say CAN AND WILL BE USED AGAINST YOU in a court of law 3. You have the RIGHT TO AN ATTORNEY 4. If you cannot AFFORD an ATTORNEY, ONE WILL BE APPOINTED FOR YOU.

The police begin by questioning you and this usually takes place prior to arrest. Any answers you have provided to the police will be considered voluntarily given. Until you have been placed under arrest Miranda rights are not invoked. If once you have been placed under arrest without the reading of your Miranda rights, your statements are considered involuntary and may be thrown out of the case.

Booking

Those who arrested for driving while intoxicated (DWI) or driving under the influence (DUI) are booked. You may not have been booked at the time of your arrest. You know you have been booked when they have fingerprinted you, taken your photo, searched you, confiscated your property and put you in a holding cell. * The police may require you to get booked prior to your first court date (the arraignment).

Bail

This is an assurance to the court that you will appear for your hearings. If you fail to appear, you will forfeit your bail. This amount of your bail is set by a bail schedule and is based on your violation. The more serious the crime the greater the bail. Also, a past criminal conviction will likely increase the bail amount.

Bail Bonds

These are basically loans provided by bail bondsman. Posting bond usually requires ten percent of the bail amount. However, many bail bondsman will charge a lesser amount if you are represented by an attorney.

If you do not appear at one of the scheduled court hearings, your bail will be revoked and the bondsman will be responsible for paying the full amount of the bail.

Arraignment

Hopefully by this stage you have an attorney to represent you. Remember a DWI stays on your record forever. Generally what will happen at an arraignment: your name will be called, the charges against you will be read, and if you do not have an attorney the court will either appoint you an attorney or provide you with a public defender (if your county has them). This right is assured by the Sixth Amendment of the U.S. Constitution. You will be asked to plead either guilty, not guilty, or no contest. If you do not plea your case, accept what the prosecutor is offering, your case will be set for a preliminary hearing. Now you are on your way to trial. Trial is scarey and some lawyers are as scared as you are. Make sure your DWI lawyer is not afraid to try your case. If you have a shot at winning at trial, take it. The penalties for a second DWI offense are worse than the first and the costs skyrocket.

Plea

Sometimes referred to as a plea bargain. First time DUI and DWI offenders without any other circumstances surrounding the arrest, and without the benefit of DWI counsel will get hit with a $1000 a year fine for three years, have to attend counseling for drugs and/or alcohol, pay for probation costs, occupational license fees, drug testing, SR-22 insurance, etc. etc. If you think a DWI lawyer is expensive, think again, the costs of a first time DWI will most often far exceed the cost of counsel.

With a good attorney and when there are issues with probable cause for your arrest, the arrest, weak evidence based on the breath, blood tests and/or the protection of your constitutional rights will you likely get a dismissal, a decent plea agreement or acquittal. If any of the above exist, make sure you speak with an experienced DWI attorney and receive advice as to how to proceed, you may want to try the case. Having a DUI or DWI on your record is permanent. Also, with an experienced DWI lawyer you may be able to negotiate a lesser charge than a jury might find you guilty of in a trial for DWI. The lesser charge will be in exchange for a guilty plea on the lesser charge.

Administrative License Review Hearing

This is not the actual trial but it is where evidence is evaluated to determine whether there was probable cause for the stop. In this hearing you are arguing to keep your license. You will be able to question the police officer as to probably cause for the stop, the breath test technical supervisor, the technician that took your blood. The outcome of this hearing will determine whether you maintain your license or have to apply for an occupational license.

Pre-Trial Motions

Pre-trial motions help focus the parameters of the case at trial. If evidence can be excluded based on illegal search and seizure, faulty tests such as non-calibrated breathalyzer tests, or in violation of your 5th Amendment or 6th Amendment rights, this is where it is argued to be excluded.

Trial

In order for the prosecution to obtain a conviction it must be proved beyond a reasonable doubt to the jury. There is never a presumption that you are guilty that you have to overcome and the jury should be told this by your DWI attorney. The only presumption in a DWI trial is the presumption of your innocence.

Expungement

Expungement may or may not be an option for you. It depends on the requirements of your jurisdiction. Many jurisdictions do not allow for expungement. In Texas you can expunge your record if your case was dismissed or if you were acquitted by a jury. There are certain other situations in which you can expunge your record, contact a DWI or DUI defense lawyer to discuss the specifics of your case.

In California, depending on the conviction type, misdemeanor, or felony, and if all of the conditions of sentencing and post-sentencing probation requirements have been met, or the probation was discharged, or within the Court (Judge's) discretion. If the person seeking expungement is not incarcerated for another crime and/or on probation for any other offense and/or charged with any other crimes, then s/he may be permitted by the Court to withdraw the earlier plea of guilty or no contest (nolo contendere) and enter a plea of not guilty. If the person seeking the expungement went to trial and was convicted by a jury, the Court will set aside the guilty verdict. Following an expungement, the State still requires complete disclosure of the prior conviction upon direct question in application, or questionnaire for public office, for licensure by the state or local agency, or for contracting with the California State Lottery. Following expungement the defendant is "released from all penalties and disabilities" (exceptions do exist in the Penal Code §1203.4.

To properly challenge the prosecutors evidence requires knowledge of blood alcohol analysis and content, field sobriety tests (FST's), and the officers who administer them and the prosecutors who utilize them in their case against you. An experienced DWI attorney will know about the Intoxilyzer 5000 and 8000 and may even have one in their office to use to show a jury. Knowledge and use of the Alcotest machines used to test your blood alcohol levels is also important to being able to show your innocence at trial.

A seasoned DUI or DWI trial attorney will know the art of cross-examination. Cross-examining the officer that administered the (FST's) is crucial to your DUI or DWI defense. Knowing how to discredit the testimony of the officer who administered your (FST's) could also determine the outcome of your DUI or DWI defense. Cross-examination of the breath-test operator or the technician or medical personnel who took your blood sample could also determine the outcome of your defense. Make sure the person you hire can be trusted with these issues that will impact your life.

Only an experienced DWI lawyer will know how to lead your case to victory.

DUI and DWI penalties can be harsh. Without the proper DWI lawyer you could lose your license for up to a year or more depending on the number of violations you have had and the circumstances surrounding your arrest. Insurance rates upon conviction, or on a plea of guilt or no contest, will skyrocket, jail time may be imposed, and severe additional financial penalties costing you over $10,000 will apply. Of course, there is also the concern that the DWI will stay on your record for all times.

Make sure you have an experienced DWI lawyer fighting for you. Where jail time may be imposed and the facts against you are iron clad, all hope is not lost, we can still work to negotiate with the district attorney to reduce penalties, fees, or jail time, even replace jail time with home detention or community service. There may also be alternative punishments that are suitable to the district attorney and the courts but, without a DWI attorney advocating for you the average person may be unaware of their options thus, the chances of negotiating a better deal may be lost.

Lawyer Up!

DUI is a criminal charge and depending on the offense may be a misdemeanor or a felony. Lawyer Up! You do not have to speak with the officer who is arresting you. It may seem like they are only making conversation, or trying to be nice- the truth is, they are gathering evidence against you for a conviction on a DWI. This is their job. If you have been arrested and you are refusing to speak to the officers that stopped you, they will undoubtedly tell you that if you speak with them “they will try to help you”, “they will put in a good word with the D.A.” It is up to you to believe them. If you are not convicted the officer will look bad for stopping and arresting people without probable cause. The officer that stops you for DUI or DWI has an interest, beyond maintaining law and order, in seeing to it that you are convicted for a DWI.

By simply saying “I want to speak with my lawyer” you invoke your absolute 6th Amendment right to counsel. The DWI arresting officer may try to get you to speak even after you have invoked your right to counsel. Do not give up your right to maintain silence. You must invoke your right and consistenly enforce your own will to not assist in your own conviction.

The 6th Amendment of the United States Constitution applies to all states vis-à-vis the 14th Amendment Due Process Clause. We are here 24 hours a day and toll free: 1-877-366-7677. Protect yourself and protect your right to be clearly informed of the nature and cause of the charges against you. These protections provide you the fundamental right to prepare an adequate defense. Do not waive this right.

Practicing in Austin, San Marcos, New Braunfels, Leander, Cedar Park, Round Rock, Buda, Kyle, and other surrounding cities.

Practicing in the following counties: Travis, Williamson, Hays, and Comal counties.