Plano Texas DWI Court Process: Arrested in Collin, Dallas or Denton County for DWI? Here is what you should know about DWI. by Plano DWI attorney Troy Burleson
If you or someone you love has been arrested for DWI in Texas then you probably have many questions you need answered. DWI is a complicated law with many provisions that sometime confuse even the best of lawyers. This article’s purpose is to give you some basis information about the DWI process in Texas.
The first thing you need to understand is that DWI is a crime. A DWI charge caries penalties that may include license suspension and the possibility of being placed in jail for up to 180 days. Because one of the main causes of injury and death on Texas highways is DWI, the state legislature wrote the DWI laws to carry stiff punishment.
It is important to remember that it is not a crime to drink alcohol and drive. Responsible social drinking is not against the laws of the state of Texas. Drinking and driving only becomes a crime when a person consumes too much alcohol and loses his or her normal ability to safely operate a vehicle. Therefore, anytime you intend to consume alcohol ad the drive, you have a responsibility to do so responsibly so that no one is endangered by your conduct.A DWI Stop
The stop is the beginning of a DWI. Usually, a stop occurs because an officer observes a traffic violation. This violation establishes the “reasonable suspicion” that is required under the law before a police office has the authority to stop and detain a person. The majority of DWI stops in Texas are for minor violations such as: failure to use signal when changing lanes or turning, speeding, failure to maintain your lane of traffic, etc.
Once an officer conducts a stop, the driver is requested to produce both a valid Texas drivers license and proof of insurance. However, before you produce this information, the officer should first identify himself and inform you of the reason for stopping you (i.e. the reasonable suspicion).
Under both the laws of the United States and the state of Texas, you have a right to remain silent IF:
1. your freedom is being detained by law enforcement ; and 2. the officer is investigating a possible crime.
Although you have these rights as a citizen, the law DOES NOT require the officer inform you of these rights at this point of an investigation. Therefore, the best approach when an officer begins questioning you is to politely ask the officer if you are being investigated for a crime. If he or she says “yes” the politely say you are going to exercise your right to remain silent and request an attorney. Why? Because more it is more likely that not that once an officer begins to question you about a crime he or she will end up charging you with something. Therefore, if you are going to be eventually charged anyway, why help them in their investigation. Be silent, respectful and then contact an attorney ASAP.
Officers habitually ask if you have been drinking. Your answer will be noted and used against you if you are arrested for DWI. Clients commonly ask, “What should I say?” when asked if they have been drinking by an officer. It is my opinion that you should say, as mentioned above, “Officer, am I being investigated for a crime?” This will allow the officer the opportunity to explain why your sobriety may be in question. The officer’s response will determine what will happen next during your stop.
If the officer detects an odor of alcohol, sees alcohol in your car, or you admit you have been drinking, you can expect to be investigated further, and most likely charged, for DWI. If your sobriety is questioned, you will be asked to exit you car and “prove that you are sober.”Field Sobriety Testing
The National Highway Traffic Safety Administration (NHTSA) has developed “Standard Field Sobriety Tests” (SFST) for officers to use in their DWI evaluations. The SFST consist of a battery of three exercises or tests: 1) Horizontal Gaze Nystagmus, 2) Walk and Turn, and 3) One Leg Stand. These tests are composed of a set of specific instructions, specific observations (or “clues”) for the officer to look for, and a standard grading system to determine whether or not the officer should arrest you for DWI.
The SFST are to be administered in a standardized manner. If an officer deviates in the observation, explanation, or administration of the SFST then the tests could be compromised. Additionally, even though the SFST are standardized they are subjective and depend greatly on the integrity of the officer to strictly adhere to the standardized protocol of these tests.
If the officer observes enough “clues” on the SFST, you will be placed under arrest for DWI. You will be handcuffed and placed in a police car and transported to the appropriate jail. At the jail, you can expect to be read your Miranda rights.Videotaping of the Investigation and Arrest
The law now requires police agencies to have video equipment in their squad cars. However, there is no law that mandates that a DWI investigation or arrest must be videotaped. But, the majority of DWI investigations and arrests are videotaped. These tapes must be turned over to the defense attorney during the discovery process.
In addition to videotaping, officers are equipped with a “body mike” to capture the entire traffic stop. Once you are arrested, a microphone is activated in the squad car. This microphone will capture all conversations within the squad car until you arrive at the jail facility.What Happens at the Jail
Once at the jail, you will be “reported” or entered into the jail inventory system so there will be a record of your presence. This record is public information and may be accesses by the public at large. Then, your property will be removes and you will be searched to insure there are no illegal substances or weapons on your person. Also, you may or may not be re-read your Miranda rights.
Once the initial “book in” process is complete, you will be taken into the “Intoxilyzer Room.” This room is designed specifically for the investigation and interrogation of persons arrested for DWI. The Intoxilyzer Room usually has lines painted on the floor and walls to provide a reference point for any sway or rocking that the suspect may exhibit. Officers may, but are not required to, offer the person arrested another opportunity to complete the SFST.Intoxilyzer Room Procedure
The first thing that should happen in the Intoxilyzer Room is that the officer should inform you that you are being videotaped and recorded. Although you have been handcuffed, transported to jail, booked in, and are entitled to your constitutional rights, the officer is still not required to inform you of your rights. Courts have held that a videotape is only a picture of the evens as they happened and are not “investigatory” of a crime. If your case goes to trial, both the squad video and the Intoxilyzer Room video will be used by the prosecution against you to attempt to convince a jury that you are guilty of DWI.
Once in the room, you should be provided orally and in writing with the penalties under Texas law for either not giving a breath/blood test or taking one that indicates an alcohol concentration at or above 0.08. If you take a breath or blood test and have a concentration below the legal limit of 0.08, YOU STILL MAY BE CHARGED WITH DWI. Passing a blood or breath test DOES NOT mean that you will be released from jail and have your charges dismissed.
Texas law holds that a person arrested for DWI does not have a right to consult an attorney to decide whether or not to take a breath or blood test. Texas is an “implied consent” state. This means that all licensed Texas motorists have implied that they would consent to a breath or blood test if there is a reasonable suspicion to stop them, probable cause to believe that they were driving while intoxicated, and they are properly advised of the consequences of their action. This does NOT mean that you MUST give a blood or breath sample. It means that if you refuse to give such sample you MAY lose your driving privileges for a period of time.
It is important to understand that anything other than a “valid breath test” will be considered as a refusal under Texas law. If you attempt to take the test and are unable to complete the test for any reason, it is deemed a “refusal” under Texas law. Additionally, asking to speak with an attorney before making this important decision is also considered a “refusal” for license suspension purposes.
While in the Intoxilyzer Room, you may be asked to perform several other exercises to evaluate your sobriety even though the officer has already determined you are intoxicated. These tests may be the SFST or other tests such as reciting your alphabet between certain letters and counting forward or backward between two numbers. Again, you have a right not to participate in these exercises and the officer has no legal duty to inform you of this important right to refuse.
If you decide to take a breath test it will be done in the Intoxilyzer Room. Before you give a test, the operator is required to be in your presence for at least 15 minutes to make sure that you do not place anything in your mouth that could invalidate the breath test.Breath Testing
If you consent to a breath test, the first step is the operator will enter your information into the machine. Then you will be asked to blow into the end of the breath tube. The machine requires a 4 second continuous breath for a proper sample. While you are blowing, you should hear a tone emitting from the machine. This tone indicates you are blowing with sufficient pressure to give a valid sample. The breath test requires two samples of your breath for a valid test.
After your first breath sample, the machine will perform an analysis on a “reference sample” to test whether or not the machine is operating within a given margin or error. The allowable margin of error for the “reference sample” is 0.010 (12.5%). The two breath sample that you provide must be within +/- 0.020 (25%) for a valid test.
Once the test is complete, the results will be printed and included in your police file. The officer may or may not tell you the results of your breath test. However, the results can be retrieved by your attorney during the discovery process.Confinement and Release from Jail
Once the investigation is complete, you will be booked into the jail facility. At that time you will be ordered to change into a jail outfit and assigned a cell either alone or with others. You will remain there until you are taken before a magistrate or judge to determine the amount of bond required before you may be release form jail. Generally, your bond will be set the morning after your arrest. Some jails have magistrates at the facility 24 hours a day. If this is the case, your bond will be set earlier. Smaller suburban jails may elect to transport you to a county jail facility to appear before a judge or magistrate.
If you don’t want to wait to be taken before a judge, you or a friend must contact an attorney to post a “Writ of Habeas Corpus” to set your bond without a judge. This option is not available in all counties and for all defendants especially those defendants with prior criminal records.
Your bond will be set at a certain amount. Someone must then post this amount before you are released. If you or a friend has enough cash then you can post the bond yourself in the form of a cash bond. If you do not have enough cash, then a bondsman may be used to post the bond. The bondsman will charge a fee to “loan” you the money for your release.
A bond is a promise that you will appear at all court dates in exchange for you being released from custody. Failure to appear at any court date could result in your bond being forfeited and a warrant issued for your arrest.
It may take several hours for you to be release from jail. The length of time before you are release depends on many different circumstances. It is important to keep your composure and remain patient during the process.After You are Released
The first thing that must be done after your release in to request and Administrative Hearing to prevent your driver’s license from being AUTOMATICALLY SUSPENDED. You have 15 DAYS from the date of your release to request this hearing. If you do not request this hearing your LICENSE WILL BE AUTOMATICALLY SUSPENDED effective on the 40th day after your arrest.
Prior to your release you should have been given instructions on how to request an Administrative Hearing. However, the rules on requesting these hearings are complex and somewhat tricky. Our office PROVIDED FREE ASSISTANCE to HELP PRESERVE your DRIVING RIGHTS. If you need help with requesting an Administrative Hearing PLEASE CONTACT OUR OFFICE at (469) 619-3800.
After dealing with the Administrative Hearing, your next step should be to seek an attorney to advise you of what to do in your case. DWI has very complex laws and legal issues. The attorney you choose should be very familiar with the DWI laws. Additionally, each county has its own way of doing things as do the different courts within the county. Therefore, choosing an attorney who is familiar with the procedures of the courts and the counties where you are charged will benefit you greatly in resolving your case. It is extremely important to consult an attorney as quickly as possible after your arrest. Our Office DOES NOT CHARGE for initial consultations. For a FREE EVALUATION or your case please call (469) 619-3800 for a NO COST, NO OBLIGATION consultation and evaluation of you case.The Legal System
A person charged with DWI in Texas will face two “prosecutions.” The first is a civil proceeding known as an Administrative License Revocation (ALR) Hearing. This proceeding is conducted by the State Office of Administrative Hearings by a magistrate and prosecuted by the attorneys with the Texas Department of Public Safety (DPS). At this hearing it will be determined whether of not your license is suspended, and if so, for how long.
The second prosecution is the criminal one for the crime of DWI. Under Texas law, a first offense DWI is a Class B misdemeanor and is prosecuted in the county in which you are arrested. The criminal prosecution is completely separate and distinct from the civil prosecution. The outcome of one DOES NOT affect the outcome or result of the other. A first offense DWI carries a penalty of 72 hours to 180 days in jail and a fine not to exceed $2,000.00.
Depending on the county of your arrest, the prosecution may begin immediately or it may be delayed. Different counties and courts operate at different speeds. Typically, cases may be disposed of in 3 to 9 months. However, some cases take mush longer depending on several factors. It is not uncommon for a case that is set for trial to take over one year before the trial actually begins. You will receive a notice of your first appearance by mail at the address furnished to the arresting office on the night of your arrest.Administrative License Revocation Hearing (ALR)
REMEMBER: You must request this hearing within 15 days of your arrest or your driving privileges will be automatically suspended. Once this hearing is requested, you will be given a date for your hearing. Since this is a civil hearing, your presence is not required at this hearing but you may attend if you wish. This hearing involves the civil law surrounding the documents submitted for the suspension of your license. In addition to the documents, live testimony from the arresting officer, Intoxilyzer officer, and the technical supervisor of the Intoxilyzer may be involved. The ALR hearing involves a very specific area of law, therefore, it is not advised that you attempt to handle this hearing without an attorney if you want to save your license from being suspended.
At the hearing, a DPS attorney will attempt to introduce evidence to support to proposition that the officer had 1) a reasonable suspicion to stop you, 2) probable cause to believe you were driving while intoxicated, and 3) if you did not take a blood or breath test the DPS must show that you were offered one of these tests and that your “refused.” If you did take a blood or breath test and scored at or above the legal limit of 0.08, the DPS must introduce additional documents to establish that the Intoxilyzer was working properly and capable of giving a valid result.
If the DPS can prove its’ case by a “preponderance of evidence” (this means “more likely than not’), your license will be suspended. If the DPS cannot prove any element of its’ case then your license will not be suspended and, if the officer kept your driver’s license the day of your arrest, it will be returned to you within a few weeks. Also, if you do not want to wait for your license to be returned, then you are free to apply for and receive a new license from DPS.
If your license is suspended as a result of the ALR Hearing and you do not have a prior history of license suspensions, you may be entitles to receive a temporary driver’s permit known as an “Occupational Drivers License.” Under Texas law, a judge in his or her discretion may grant an ODL that will allow you to drive to work, school and for other essential household duties. An ODL will allow you restricted driving privileges for up to 12 hours a day and only in counties in which you demonstrate there is a need for you to drive.
Before you may be granted an ODL, Texas law also requires you to obtain what is known as a SR-22 Insurance Policy. This policy is a type of “high risk” police that you are required to maintain for the duration of your license suspension period. This policy, and the ORDER GRANTING OCCUPATIONAL LICENSE must be with you at all times when you are driving. If you are stopped and do not have a copy of your SR-22 policy or if you are driving in violation of the provisions contained in your ODL, then you may be subjected for further criminal penalties.
Once your suspension period is over, you will no longer be required o maintain the SR-22 policy. Additionally, your license will be returned to you or you may apply for a new license at your local DPS office.
PLAN ON TRAVELING OUT OF STATE: Texas judges cannot authorize driving in other states. If you plan on boarding an airplane, traveling out of the country or renting a car you should obtain a Texas identification car at the DPS.The Criminal Prosecution of DWI
In Texas, a first offense DWI is a Class B Misdemeanor that carries a range of punishment of not less than 72 hours or more than 180 days confinement in the county jail, a fine not to exceed $2,000.00 or any combination of fine and jail time. The good news is that most DWI offenders never go back to jail after the night of there arrest. Typically, people convicted of DWI are placed on probation for a period of 12-24 months. As long as the person complied with the terms and conditions of his or her probation, no more jail time occurs.
Do not expect to resolve your DWI case at your first court appearance. Several court appearances usually occur before your case is disposed. The first setting (First Appearance) is for you to inform the court whether or not you have hired an attorney or if you want to apply for a court appointed attorney.
The next few settings are known as Announcement settings. An Announcement basically means that you show up and update the court on whether you are read to plea or set your case for trial. If you are not ready to do either, then you simply inform the court that you are still investigating your case and are not ready to plea or set it for trial. During these Announcement settings, the prosecutors and defense attorneys meet to discuss the case.
The prosecution is required to share certain information with the defense counsel. But, the defense is under no duty to provide any information to the prosecution. During these settings, your attorney should request and obtain all police reports and videos that will be used against your in the prosecutions case in chief.
At these settings, your attorney should carefully review all documents in the court’s file to determine if there are any defects on the documents. Some defects can even result in the complete dismissal of all the charges against you.Plea Bargain: A Plea of Guilty
If you not to fight your case and plead guilty and enter a plea bargain agreement, your attorney should ensure that you thoroughly understand all the terms and conditions of your agreement. As previously mentioned, most DWI convictions result in probation being offered. If you are offered probation then the typical terms and conditions of probation usually include: 1) testing for possible alcohol or drug problems, 2) completion of a 12 hour DWI Education program, 3) mandatory attendance at a 3 hour session of a Victim Impact Panel conducted by Mothers Against Drunk Driving, and 4) Community Service of between 24 to 100 hours.
If you decide to plea bargain your case, you will be asked to waive (give up): 1) the right to a jury trial, right to confront your accusers and the tight to remain silent and 2) the right to Appeal your conviction. After your sign formal documents which show you are knowingly and intelligently waiving your rights, you will formally appear before a judge to enter your plea. This judge must be sure that you are voluntarily and intelligently waiving your rights before your plea will be accepted. Once the agreement is accepted, you will be given specific provisions for your probation and meet with a probation officer to discuss exactly what is expected of you during your probationary period.
Once the judge finds you guilty, a record of your conviction will be made and forwarded to the DPS. A record of your conviction will be maintained by DPS and will also be forwarded to the Federal Bureau of Investigations so that you can be monitored locally and nationally. A DWI conviction will remain on your record permanently. A conviction for DWI cannot be expunged of Non-Disclosed unless you are pardoned by the Governor or President.Trial
Only a small percentage (12%) of DWI cases is disposed of by a trial. ONLY THE PERSON ACCUSSED can decide whether or not the case goes to trial. If you plan on taking your case to trial you should be sure that the attorney you hire has ACTUAL TRIAL EXPERIENCE in DWI cases. Not all attorneys, even criminal attorneys, have extensive trial experience. Trial skills are hard to learn and nothing beats experience when your future and freedom is at stake.
A good attorney should give you a personal evaluation of your case’s strengths and weaknesses. The attorney should explain the legal reasons (if any) and the factual reason why a judge or jury may find you not guilty. MOST IMPORTANTLY, an attorney should never give you a guarantee concerning the outcome of your case. Trials can be won or lost for a multitude or reasons, most of which may not be foreseeable. An attorney’s job is to gather all relevant evidence, properly evaluate your case, then to give you his or her professional opinion concerning the possible outcome. Once your attorney gives you this information, the ONLY YOU can decide to proceed with trial or not.
It is important to note that in most DWI cases the punishment is not increased if you elect to go to trial. In fact, judges and/or juries typically give less punishment if you are found guilty that what the prosecution offers for a plea bargain. The reason for this is because with a trial both the judge and the jury will be fully aware of the facts and circumstances surrounding your accusation. In a plea bargain agreement, the facts are not disclosed except under limited circumstances.How Much will an Attorney Cost
Not all clients want to take there cases to trial. However, other clients have no other option that trial because of the punishment offered or because there is a possibility they may lose their jobs or livelihood, etc. Because we specialize in defending DWI cases, the vast majority of our clients DWI cases. All DWI cases are similar in many ways, however, individual facts and circumstances may make the defense of our client more or less complicated. Because of this, our representation is designed with the client in mind. Our fees are therefore structured so that you need to pay only for the services that you desire and require. Our office does not charge by the hour. Instead, we charge a flat rate based on the type and amount of work required by the individual client. These fees are discussed fully and openly at the initial consultation with each client.Initial Office Consultation
Our office DOES NOT charge for our initial client interview. This meeting lasts about one hour. It is uninterrupted time one on one with an attorney who knows the DWI laws. In this meeting we will take a detailed factual statement from you to learn your version of your stop, arrest and detention. You story is a critical piece of your “DWI puzzle” and is the basis with which we begin to formulate your defense. We also explain all the DWI laws that apply to your case, the options available for disposition and the services that we can provide. This meeting is completely confidential and you are under no obligation to hire our office after it is over. However, even if you don’t hire us, you will leave with a better understanding of the law and what to expect, prepare for, and not to worry about in regard to your case.Fee for the Criminal Defense of DWI
This is the majority pf work performed on your case. As explained in the interview, there are three major parts of your DWI “puzzle”: 1) Your side of the story 2) the police version and 3) the videotapes. If you took a breath test, there is a forth piece: the maintenance history of the machine used in your case. Once these “pieces” are gathered, we then put them together to see what type of “picture” you case represents. At this time, we begin looking for the legal or factual issues that we can attack to prevent you from being convicted or to formulate reasonable doubt about your guilt.
Additionally, during this time in your representation we carefully review the official charging documents and the court’s file of your case. We look for mistakes that are sometimes made that may result in the complete dismissal of your case. If there is a mistake that would warrant a dismissal of the charges against you, we will find it.
We also begin interacting with the District Attorney assigned to your case to obtain all discoverable information in your case. We gather all facts that support your version of the traffic stop, field sobriety testing, testing conditions, interrogation and videotaping. Also, we begin to develop a strategy to combat facts that are unfavorable to your defense.
While we are interacting with the District Attorney’s office we begin to discuss a recommendation for a plea bargain disposition of your case. This is done as an “insurance policy” on your case. Whatever we negotiate will be the worst possible outcome of your case and will only get better as your case proceeds through the system.
We will then retrieve all videos of your arrest. In some cases there are videos at the scene of your stop and videos at the jail. We will get copies of any and all videos taken of you during your arrest.
After all of your information has been gathered, we will meet again for an in-office review of all the evidence and discuss the options for disposition of your case. We will review all reports, videotapes and negotiations with the District Attorney. In this meeting we can tell you what to expect if you enter a plea bargain agreement and your chances of winning if you select a trial.
If you elect to “plead” you case, this fee included our appearance with you in Court before the judge. At that hearing we will continue to negotiate your punishment in anyway we can. We will appear before the judge and again try and obtain any further concessions that may be possible. Our office will remain available throughout your probation to assist you in successfully completing all conditions ordered.Trial Fee
Not all clients require this fee or want a trial. Our office handles approximately 20 to 30 trials each year. Preparing for and representing a full trial on the merits takes considerable time and effort that is not requires with any other representation.
There are many trials set on the same date. On the court date, the court will select which case is to be tried. the others will be reset for another “trial date.” Because of this practice, as your attorney, we must be prepared for each trial date and block off time for your case to be tried. A typical trial will last 1-2 days. This time may vary depending on your facts and the court where your case is tried. While we are in court, we have no other clients. We will be with you from beginning to end. This helps many clients as trials are an anxious time if you have never been through one before.
Trial skills are learned through experience and training. The attorneys at our office have hundred of actual trials of experience under their belt. This experience is a valuable asset for you in your defense and simply cannot be taken for granted.Conclusion
Being arrested or accused of DWI is a frightening experience for anyone. Most DWI offenders have never been through this process. Our office specialized in defending DWI cases. In limiting our practice to this area of law, we are able to stay current and familiar with all of the nuances enacted each year by the legislature. To schedule an appointment of for more information please contact our office at (469) 619-3800.