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Preparing for a DWI Consultation
If you’ve been charged in Texas with a DWI, for your initial meeting what I would like to have you do is bring in all your paperwork that you got in the arrest. There will be a paper that’s described as a DIC-24. You may have gotten some police report, and some preliminary matters. Bring all that in with you because I can review those and it gives me a starting point.
From you, I’m going to want to know whether the officer told you why he stopped you. If an officer stopped you for weaving within your lane, if he stopped you for speeding, those are good defensive reasons for a stop; they help you. If an officer said he stopped you for driving the wrong way, or he didn’t stop you because there was an accident, those are obviously things that will help the prosecution.
What we need to do is we need to set in motion the DPS hearing. We need to get copies from the District Attorney’s office, police reports, lab reports, breath tests, and I also make an inquiry into the officer’s background as to what his training is. Very often, the officers that are making an arrest don’t have any training on the field sobriety test. If they don’t have any training on the field sobriety test, I usually find that they’re done incorrectly.
There are three field sobriety tests that they’re going to do in every case. One is the nine-step walk-and-turn; there’s the 30 second lift-the-leg-count-out-loud; and there’s the HGN, where they ask you to follow the pen with your eyes. Sometimes clients come in and say, “I passed all the tests.” That’s good; that helps. That helps me know that the case may be defendable, and is probably defendable. However, most people get arrested based on the HGN, when an officer asks you to follow a pen with your eyes. Juries usually don’t buy that. It’s not visible on the video, and if that’s what the officer based the arrest on, then I usually feel the case is defendable.
In Texas, if a case is defendable, most counties have started to offer alternatives to the DWI. If you go in with a defendable case and start fighting, arguing, and filing motions, they’ll offer you an alternative to a DWI. If a case is not defendable – and when I say not defendable, I mean that you are likely to lose at trial –you can still put up the fight and they may offer you an alternative to DWI. If they don’t you’ve got a choice to make; you set it for trial or you work out a plea bargain. What I usually do is sit down with the client and explain the pros and cons. Ultimately, it’s your choice.
Blood Alcohol Content
In Texas, a .08 is kind of a threshold for blood alcohol content. A lot of people over the years have come in and said, “I took the breath test and my breath test result was a .08, I guess I’m guilty.” Well, the fact is, you’re not. What happens with that breath test is that is the result when you took the test. The law is, what is your result when you were driving?
Very often, the breath test occurred an hour after you were driving. In probably most cases, people’s blood-alcohol level is going up during that period from the stop to when they took the test. If your blood level is going up after you’re driving, then when you’re driving it was lower. In fact, most experts will say that your blood-alcohol level can vary by.03, within an hour. If someone blew a .09, well, it’s obvious that they could’ve been under the legal limit when they were driving. A .08 doesn’t mean you’re automatically intoxicated, and doesn’t mean you’ll automatically be found guilty.
There is a second prong to DWI. The second prong is that they can also prove you were intoxicated by loss of normal, mental or physical factors. What ends up happening is there’s a video in most cases of somebody there at the scene, or of the defendant, and if you look good on the video, it’s a real strong argument that at the time you were driving, you were under the legal limit. We have to look at all the facts to see if the argument works, that when you were driving you were under the legal limit.
Steps After a DWI
In a DWI in Texas, the first thing that you need to do is request a hearing with DPS. That DPS hearing request has to be within 15 days. If you do not do that, you will lose your driver’s license. The hearing request is usually done by the lawyer, so what you need to do is have the lawyer hired within 15 days, and the lawyer will make the request for you. At that hearing, the DPS will try to take away your license for 90 days if you took a breath test or blood test voluntarily. If you did not take the blood test or breath test voluntarily, they’re going to try to take it away for 180 days. If you make the request to contest a hearing, then you have a chance of keeping your driver’s license.
If we make the request, have the driver’s license hearing and still lose the driver’s license hearing, we can get you an occupational license. An occupational license will allow you to drive. You won’t really notice a difference in your driving habits or how you have to drive, but that’s the first and probably one of the most important things you need to do with a DWI arrest. After that, your lawyer will make a request for videos, police reports, blood tests, or breath tests. We collect all the evidence, and then we sit down and discuss with the client what they want to do. What are the options? Very often, the options are for trial or for hearings. We do that to get a better result than we could in a plea bargain.
Ultimately, it’s the client’s choice on what route to take. What I normally do is make the request for the DPS hearing, have the hearing, and then from that hearing we’re able to collect evidence to determine what your options are. After we determine the options, then we set the ball rolling, we set the case for trial, we set it for hearing, and very often, you end up with a better result than you could have imagined.
In Texas, the penalties for a DWI conviction depend on a number of factors. Is it a first-time DWI? Is it a second-time DWI, or a third or more? What is the breath or blood test result that got you in trouble? If it’s a blood or breath test result under a .15 and it’s a first-time DWI, the range of punishment is up to six months in jail and up to a $2,000 fine.
However, I’ve never had anybody go to jail on a DWI-first with under a .15, and that’s with 30 years of defending DWIs. On a DWI-second and third, the penalties ratchet up pretty dramatically. On a second, it’s up to one year in jail, and it’s up to a $4,000 fine. On a felony DWI, depending on the number of prior felonies, and if someone’s been to the penitentiary, all those play a role in determining the range of punishment. Generally, on a felony DWI, which is three or more DWIs, the range of punishment is up to 10 years in the penitentiary.
Were you or a loved one arrested for drunk driving and have questions about how to win your DWI claim? Contact a San Antonio DWI attorney at Rush & Gransee today for a consultation on your case and all of your potential defenses. Let our experience work for you.
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