DWI Defense FAQ’s

What Are Some Top Misconceptions People Have Once They Have Been Arrested For A DWI?

Some of the misconceptions are that they were not drunk; however, the law in Texas does not say you have to be drunk. A lot of times people think when someone is drunk, they have a lampshade on their head and they cannot walk and they cannot talk or something like that. However, being legally intoxicated or being intoxicated in the State of Texas is just the loss of your physical faculties and/or the loss of your mental faculties and/or a 0.08 blood or breath alcohol concentration. So, you can have all three of those or the prosecution can allege all three or any one of them or a combination thereof.

What Are Some Common Mistakes That People Make Once They Have Been Arrested For A DWI That Might Hurt Their Case?

Talking to the police officer in great detail and telling them exactly what they had to drink, how much they had to drink, and also performing or attempting to perform the field sobriety test.

What If Someone Just Wants To Plead Guilty And Get Over With The DWI Case?

That is not a good idea, for several reasons. First of all, when someone is arrested and charged with DWI in the State of Texas, they actually have two cases going on. One case is the criminal case and the other case is the driver’s license case where the DPS or the Department of Public Safety is trying to suspend their license. Both of these cases are independent of each other. Even if one case is dismissed, that does not necessarily mean that the other case is going to be dismissed.

On the driver’s license case, if someone does not fight that by hiring an attorney, then their license is going to automatically be suspended after forty days from their arrest. Attorney James Alston has been very successful in winning those driver’s license cases, so it is always good to fight those cases.

Very often, based on someone’s criminal history, even if they are drunk and they are driving a vehicle or even if they are highly intoxicated, if they do not have a criminal history, then there is often a remedy that can be done to lessen the effects of having a DWI on their record. Houston offers a pretrial diversion program. If someone qualifies for pretrial diversion, that can result in a dismissal of their DWI case. That is why Mr. Alston advises his clients, “Let’s don’t just go into court and plead guilty, hire me, let me get on the case and let me investigate this case and see what is the best I can do for you.”

How Is A DUI Defined In The State Of Texas?

In Texas, they refer to them as DWIs. DWI is defined as the loss of your physical faculties and/or your mental faculties and/or a blood or breath alcohol concentration of 0.08 or higher.

In DWI Cases, Do Most People Have A High Blood Alcohol Concentration Level Or Are They Typically Closer To The Legal Limit Of 0.08%?

It varies from person to person, but a lot of cases are very close to the 0.08% legal limit.

How Often Are Astronomical Numbers Seen That Are Doubles Or Triple BAC Levels?

They are seen quite often. The 0.11s or even the 0.21s are quite often.

What Is The Look-Back Period In DWI Cases In Texas?

If someone had a DWI in the State of Texas, it stays on their record forever. There is no magic number of ten years that a DWI will be taken off your record automatically.

How Often Is An Attorney Able To Have DWI Charges And Fines Reduced Or Dropped?

That is the primary goal of an attorney when hired on a Driving While Intoxicated case to investigate and work the case and try to get a dismissal of the charges and/or possibly get the case reduced. Very often, in Harris County, the prosecutors will not reduce a misdemeanor DWI case down to any other type of offense. They will either end up wanting to set the case for trial or dismiss the case outright. Attorney James Alston has been successful in getting DWI cases dismissed and/or reduced.

Is It Advised To Hire An Experienced Criminal Defense Attorney Instead Of Trying To Represent You Or Going With A Public Defender In A DWI Case?

First of all, you never want to represent yourself. Even if you are a lawyer, you do not want to represent yourself. You want to hire an attorney that has experience doing DWI cases and/or that has possibly been a prosecutor, prosecuting DWI cases, so they know both sides of the playing field.

Very often, public defenders are good lawyers but the court will likely not give you a public defender if you are on bond. They generally only give you a court-appointed or a public defender if you are not on bond. If you are in jail in a DWI case, that likely means you probably do not have the funds to bond out and/or you have a criminal history, and thus you are not going to qualify for some of those advantages of being a first-time offender.

Are People Generally Surprised When They Are Charged With A DWI And At The Long-term Consequences Associated With The DWI?

Yes, people are often surprised. Most people think they are not intoxicated. Often, the misconception is that, “I wasn’t drunk and I was fine to drive.” If you have been drinking, it is a mistake to even get behind the wheel even if you have had just one drink. DWIs are very, very serious. It is one of the few offenses in the State of Texas that you cannot get deferred probation for. Someone could technically get deferred probation for robbery, assault, felony drug possession but you cannot get it for your first DWI.

Straight probation, which would likely not require you to do any jail time, is a conviction on your record. A conviction for DWI stays on your record forever and, therefore, if you are a young person and you get convicted of DWI at the age of twenty-one or twenty-two and if you get another DWI throughout your life, it will be considered your second.

A third DWI is automatically a felony in the State of Texas and it carries from two years to ten years in prison. Therefore, a DWI is very serious.

There have been cases of people who had DWIs and were convicted of those DWIs. They had problems renting an apartment because they had had a criminal history. If your job requires you to drive a motor vehicle or a delivery truck for your job, having a DWI can cause you to lose your job. That is because the insurance company that is insuring that vehicle you are driving for your employment, is going to go way up on the rates for that company to insure you if they even insure you at all. Often, you would lose your job if you are required to drive for work and you have a DWI conviction.

Do The Police Usually Take And Confiscate Your Driver’s License When You Are Arrested And Charged With DWI?

The short answer is YES. In the State of Texas, when a police officer pulls you over and stops your car the police officer will ask for your driver’s license and insurance. From the police officer’s training, he watches you obtain and hand over your driver’s license and insurance. If you fumble for your driver’s license and look nervous, then the police officer normally considers your actions and behaviors as a sign of intoxication. Fumbling in your wallet or your purse for your driver’s license is an indication of impairment and acts to further the police officer’s investigation to determine if you are intoxicated.

The police officer will then ask you to step out of your vehicle and come to a place where the police officer can further his investigation of you. This is usually the stage where the police officer asks you if you have been drinking. Realize that you are likely being recorded on both audio and video. The police officer will then ask you to preform field sobriety tests at his direction and instruction. You have the right to refuse to perform the field sobriety tests but realize you will be arrested if the police officer thinks you are impaired.

If you choose to perform the field sobriety tests and the police officer thinks you show signs of intoxication he will arrest you for driving while intoxicated. The police officer will then keep your driver’s license and forward it to the Texas Department of Public Safety (DPS).

During the arrest process, the police officer will give you a Notice of Temporary Suspension and a Temporary Driving Permit. These forms advise you that your driver’s license will be suspended in 40 days from the date of your arrest. The form also advises that you have 15 days from the date of your arrest to file notice with DPS that you wish to have a hearing to contest the suspension of your driver’s license. This hearing is called an Administrative License Revocation Hearing (ALR Hearing). Since the police officer confiscated your driver’s license, the Temporary Driving Permit acts as your driver’s license and you need to carry it with you always.

If your attorney does not send notice requesting an ALR Hearing to DPS within fifteen days of your arrest, then your license will be suspended in forty days from your arrest. Therefore, the 15-day period from your arrest for DWI is extremely critical.

Should You Hire An Attorney Within 15 Days Of Your Arrest For DWI?

Yes, you should hire Houston DWI Defense attorney within 15 days of being arrested for DWI. Do not wait for your first court date. Hire an experienced attorney to represent you and file the correct notice of hearing with DPS before 15 days have elapsed from your arrest for DWI. If you miss the 15-day notice period, then your license will be automatically suspended.

What Happens From The Point Of Being Pulled Over On Suspicion Of DWI To The Arrest, To The Plea Or Trial Or Sentencing?

Often, someone will be pulled over because they have committed a traffic offense. They ran a red light, they were speeding, they did not have their lights on, or something similar. As a result, the police officer pulls them over in the State of Texas. The police officers do not like you to get out of the car; they want you to stay in the car till they approach. As the police officer approaches, if he determines or suspects that the person has been drinking alcohol, he will often ask them, “Have you been drinking or consuming any alcohol?” Often people will answer, “Yes”. Well, that just heightens the police officer’s suspicions that the person might be intoxicated.

Almost all of the police agencies and police vehicles in Houston have video recorders on them. The police officers usually park behind the person they have pulled over and when they have asked the person they suspect of being intoxicated to step out of the vehicle, all of their actions are being recorded on video. Often, the police officers are wearing a microphone, so anything they say or utter is also being recorded on the audio of that video. Then the officer would ask them some questions about where they have been, where they are going. He is asking these questions to see if they have their mental faculties, if they are making sense or not. Do they know where they are driving? Do they know why the officer pulled them over?

Often, the officer will ask questions about, “When is the last time you ate, where have you been, did you have any alcohol?” He is trying to get the person to offer some evidence against themselves as to whether or not they have been drinking. Once the police officer has established that either he smells alcohol and/or the person has been drinking, he will often ask them to do field sobriety tests. Usually, the first field sobriety test is what is called a Horizontal Gaze Nystagmus test or HGN.

Basically, the officer is testing the movement in the eyes to see if there is a nystagmus, which is a voluntary shaking of the eye. The police officers are trained to believe that if someone is headed straight and they are looking as far as they can to maybe their right or their left and their eye shakes when it comes to the maximum point of their vision, then the officers are trained to believe that that shows an introduction of alcohol into the person’s system. They will score that.

It is basically scored in three different ways so they will score that HGN test. Then they will often ask them to do other field sobriety tests, either the one leg stand where the person stands on one foot of their choosing holds the other leg up approximately six inches, looks at their toe, keeps their hand to their side and counts to approximately thirty seconds. During that test, the officer is looking to see if the person can keep their balance and if they can follow directions.

The next test is often the walk and turn test where the officer asks them to stand on an imaginary line, one foot in front of the other, and take nine heel-to-toe steps. At the end of the ninth step, they are required to do a turn and then take nine steps back. The officer is scoring each one of those field sobriety tests. Based on the officer’s scoring of the test, they will often make an arrest for the suspicion of driving while intoxicated.

At some point in time, after the arrest has been made, the officer will ask the person if they wish to submit to a breath test. People are advised not to submit to the breath test. That is your constitutional right to not submit to the breath test, but in Harris County, if you do not submit to the breath test, then the police agency in Harris County will seek a search warrant from a judge to have your blood drawn from you, even forcibly if need be. They will analyze the blood to see if there is any alcohol.

It is now advised to actually take the breath test because breath tests are much easier to defeat sometimes than the blood test. If you refuse the breath test, then they will forcibly take your blood in the State of Texas. Therefore, the person’s breath or blood test is taken. That is usually done at the station or at the medical facility. Often, there may be some field sobriety tests that are also videotaped at the station if they were not videotaped at the scene. After that, the person is arrested and processed.

Get Answers to Common Questions about DWI in Texas or call the law office of James Alston for a consultation at (713) 228-1400 and get the information and legal answers you’re seeking.