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A: The conventional wisdom has always been to refuse any test. This is not always true these days. In “no refusal” jurisdictions (such as Brazos County), if you refuse to give a breath or blood sample when properly requested by a police officer, the officer will almost certainly obtain a search warrant and get your blood anyway. Your refusal can be considered by the officer in the arrest decision and can be used against you at trial. If you have the chance to take a breath test (the officer can offer either or both), that is the better choice. The breath test (usually the Intoxilyzer 9000) is not very good science when compared to the way blood is tested by DPS (head space gas chromatography with flame ionization detection). A highly trained DWI attorney can challenge a breath test more easily than a blood test (although blood tests can be challenged successfully as well).
A: If you refuse an officer’s proper request to provide a blood or breath test, the officer will almost certainly obtain a search warrant and take your blood anyway. The refusal to provide a sample can be considered by the officer in the arrest decision (it can be part of probable cause to arrest) and it can be used against you in court. Also, if you refuse, your license is subject to being suspended for 180 days or more.
A: You don’t have to do the field sobriety tests. Some officers will tell you this and some officers won’t; but you have a right to refuse any field sobriety tests. However, your refusal to do the field sobriety tests can be considered by the officer in the arrest decision and will likely lead to your arrest. Your refusal can also be used against you in court. If an officer is asking you to do field sobriety tests, it almost certainly means he or she believes that you may be under the influence of alcohol or a drug. So, if you refuse, you will be arrested. The field sobriety tests are easy to fail. The threshold for failing these tests is very low; it is difficult to do them sober.
A: In Texas, DWI is Driving While Intoxicated. Anyone can be arrested for DWI if they are operating a motor vehicle in a public place while intoxicated. If you are under the age of 21, you can be arrested for having any alcohol in your system; this is called Driving Under the Influence (DUI). This offense only applies to those under the age of 21. It is important to understand that even minors under the age of 21 can be arrested and charged with DWI if an officer determines that they are legally intoxicated while driving. DWI is usually either a Class B misdemeanor (punishable up to 180 days in jail and up to a $2,000 fine, or both) or a Class A misdemeanor (up to a year in jail and up to a $4,000 fine, or both). Some DWI offenses can be felonies.
A: Possibly, but depending on the facts of the case and the level of the offense, not likely. The range of punishment for the various levels of DWI is as follows:
DWI, Class B misdemeanor (first DWI and breath or blood test lower than .15): 3-180 days in county jail, a fine of up to $2,000, or both jail and confinement;
DWI, Class A misdemeanor (second DWI or first DWI with a breath or blood alcohol level .15 or higher): 3-365 days in county jail, up to a $4,000 fine, or both jail and confinement:
DWI with a child passenger under 15; state jail felony: six (6) months to two (2) years in a state jail facility (essentially, prison) and up to a $10,000 fine;
Intoxication Assault, third-degree felony (a DWI with an accident in which another suffers serious bodily injury): two (2) years to ten (10) years in prison and up to a $10,000 fine;
Intoxication Manslaughter, a second-degree felony (a DWI in which someone is killed): two (2) years to twenty (20) years in prison and up to a $10,000 fine.
If you have been arrested for a first-offense, Class B misdemeanor DWI, it is highly unlikely that you will go to jail. You will almost certainly be offered a deferred adjudication probation, a form of probation in which you are not convicted.
A: Yes. If you are taking prescription drugs and taking these drugs impair your driving, you can be arrested and charged with Driving While Intoxicated. Be careful to read the directions for any prescriptions you may be taking and use them only as directed. Many prescriptions have directions that warn against drinking alcohol while taking the prescribed drug. If you are arrested for DWI because you are impaired by prescription drugs, the warning on the prescription against drinking alcohol while taking the drug will absolutely be used against you at trial. Having said that, therapeutic levels of many prescription drugs will not impair you when you drive. Consult your doctor and follow the directions for your prescriptions and you will be fine.
A: Possibly. There are several ways your license can be suspended if you are arrested for either DWI or DUI in Texas. If you are stopped by an officer and the officer requests a breath or blood sample, and you refuse, your license can be suspended by the Department of Public Safety (DPS) for 180 days (for a first offense; second and subsequent offenses can result in a much longer suspension). If you consent to a blood or breath test and the result is .08 or higher, your license can be suspended by DPS for 90 days. If you are arrested for DUI and refuse to give a blood or breath sample, your license can be suspended for 180 days, but if you consent to a breath or blood test, and the result is less than .08, your license can be suspended for only 60 days. Finally, if you are convicted of DWI and do not serve a probation (a straight conviction with jail time), your license can be suspended again. However, if you have already served a suspension for one of the reasons related to consenting or refusing to give a breath or blood sample, you can be credited toward a straight DWI conviction suspension (but your lawyer needs to know to ask the Court to order the credit at the time of the plea).
A: If your license is suspended, you can obtain an occupational license to allow you to drive with certain limitations to allow you to go to work and to school. I recommend to my clients who are only subject to a 90-day suspension to try to ride out the suspension without driving, if possible. To get an occupational license, you must get an SR-22. An SR-22 is an insurance document that is filed with the Department of Public Safety. It can result in your insurance rates being increased significantly or even in your insurance being canceled. It is a little more difficult to not drive if your license has been suspended for six months or longer. In that case, we recommend obtaining an SR-22 from a specialty SR-22 insurance company instead of your present insurance. This decreases the likelihood that your insurance company will find out about your SR-22 and your DWI arrest.
A: Yes. Good criminal defense attorneys handling DWI cases will always request a hearing on whether your license will be suspended. If you refuse a breath or blood test at the time you are arrested for a DWI or DUI, or you consent to a breath test and blow .08 or higher (or blow anything as a minor, you only have 15 days to request the hearing (known as an ALR, Administrative License Revocation Hearing). If you consent and give blood, the blood must be analyzed for alcohol by the Department of Public Safety Crime Lab before the results are known. That usually takes 2-3 months from the time your blood is drawn by the police until the result is returned to the prosecutor handling your case. If the blood result is .08 or higher, DPS will mail you a notice of suspension and you will then have 20 days from the date of the letter, not the date you receive it, to request the ALR hearing. If you do not request a hearing within 15 days of being arrested if you refuse or consent and blow .08 or higher), your license will automatically be suspended 40 days from the date of your arrest. If you do not request a hearing within 20 days of the date on the suspension letter you receive from DPS after being arrested for DWI and consent to a blood test, your license will be suspended 40 days from the date of the suspension letter.
The ALR hearing is critical to the defense of a DWI and should always be requested. At my law firm (Shane Phelps Law), it is the first thing we do when retained to defend a DWI. The hearing is important because we can subpoena up to two officers to the hearing. If the officer is properly subpoenaed and does not show up for the hearing, your license will usually not be suspended. If the officer or officers show up for the hearing, we call them to the stand, get them sworn in (under oath), and ask all kinds of questions about the reason for the stop, signs of intoxication, the administration of the field sobriety tests, and probable cause for the arrest. We then get a transcript of the officer’s testimony and can use it in preparing a more effective cross-examination. Being able to question the officer or officers at an ALR hearing also gives us a very good sense of how the officer or officers will be perceived by a jury. I strongly and respectfully suggest that while interviewing defense attorneys to defend you in a DWI or DUI case that you ask about whether handling the ALR is part of the fee and whether they subpoena the officer or officers to the hearing. If they do not, do not hire them.
A: Most criminal defense attorneys who know what they are doing in defending DWIs do not think much of the breath test. I share this opinion. The machine that is currently used by most police agencies is the Intoxilyzer 9000. The machine uses infrared spectroscopy to measure the alcohol content in your breath. A good DWI attorney can successfully compromise the breath test results in trial.
A: There are several important things to look for in an attorney when hiring a criminal defense attorney to defend you in a DWI. First, of course, is experience. Ask how many years he or she has practiced law, how many jury trials they have tried, and how many DWI jury trials have they tried. Look for attorneys who are board certified in criminal law by the Texas Board of Legal Specialization (only a small fraction of attorneys practicing criminal law in Texas are board certified). Another important consideration is whether the attorney you are talking to has undergone any specialized training in handling DWI cases. The Texas Criminal Defense Lawyers Association (TCDLA) offers numerous seminars every year on all aspects of DWI law and trial strategy. The National Association of Criminal Defense Lawyers does as well. There is one certification that lets you know that an attorney is a serious DWI practitioner and that is the designation Forensic Lawyer-Scientist by the American Chemical Society (Chemistry and Law Division). This designation requires four full weeks of training at a laboratory in Chicago. The course is taught by the best analytical chemists and experts and the best DWI lawyers in the country. To successfully earn the designation, an attorney must pass a rigorous test at the end of the four-week training. There are fewer than 500 Forensic Lawyer Scientists in the entire country (Shane Phelps Law has two, including Shane Phelps).
Keep in mind that a very good DWI lawyer is expensive. Any lawyer can handle a DWI, and most can probably get you a probation. What you should be looking for is an attorney who will scrupulously examine all the evidence in the case (including all the videos), who knows DWI law and keeps up with the most recent decisions from our courts of appeal, and who has a track record of success in DWI cases.
There are other designations that are important to look for. Look at AVVO.com to find out an attorney’s rating (10 is the highest). Look for a designation known as “AV Preeminent” from Martindale-Hubbel, the oldest and most respected attorney rating service. Look at an attorney’s reviews. Some attorneys are also members of the College of the State Bar, the Texas Bar’s organization for attorneys who go far beyond the required continuing legal education requirements of the State bar (Shane Phelps is a Fellow of the State Bar College meaning that he has been a member for more than 10 consecutive years). Be wary of “fly-by-night” awards. There are a ton of companies that sell awards to attorneys and the screening process to get such an award is whether your credit card isn’t rejected.
Finally, you will want to be comfortable with whomever you hire. Always meet face to face with an attorney you are thinking of hiring. Do not be afraid to ask questions about qualifications, strategy in defending DWIs, awards and certifications, and, of course, fees.
A: Yes. There are three ways to be legally intoxicated in Texas:
You are legally intoxicated if you have lost the normal use of your physical faculties due to the introduction of alcohol, a drug, or a combination of alcohol and drugs, into your system;You are legally intoxicated if you have lost the normal use of your mental faculties due to the introduction of alcohol, a drug, or a combination of alcohol and drugs, into your system;You are legally intoxicated if your blood or breath alcohol level at the time of driving is .08 or more. This is the per se legal limit in Texas. It does not matter if you look great on video and do well on the field sobriety tests, everyone is considered intoxicated at .08.A few notes about legal intoxication in Texas. First, Texas is a “time of driving” state, meaning that the State must prove that you are legally intoxicated (by one of these three ways) at the time you are observed driving, not at the time your blood is drawn, or you submit to a breath test. The testing of blood or breath always takes place after you have been arrested and either taken to jail to provide a breath sample or to the hospital to provide a blood sample, sometimes hours after you have been stopped by an officer. In a trial, the State is required to relate the results obtained after your arrest back to the time you were observed driving. Usually, this involves the State asking a chemist to do a “retrograde extrapolation.” This process takes the number from the breath or blood test and, using a formula for the elimination of alcohol from your system (usually .02 an hour), calculating backwards in time to the time of driving to arrive at a number for your breath or blood alcohol at the time of driving. For example, if your blood alcohol was .10 two hours after you are stopped by an officer or observed driving, a chemist could testify that your blood alcohol level was .12 an hour before the test and .14 two hours before when you were observed driving. To perform this calculation however, the chemist must be able to make certain assumptions based on the evidence at trial, such as the time of your last drink. Retrograde extrapolation is often challenged at trial by knowledgeable DWI criminal defense attorneys. The science behind retrograde extrapolation is questionable and an experienced DWI attorney can often prevent the chemist from performing this calculation, leaving the State to try to prove intoxication beyond a reasonable doubt without retrograde extrapolation.A. Probably. Although in some jurisdictions, an interlock device has become inevitable. An interlock device is a device that iswired into the ignition of your car and requires you to blow into it to start your car. If you have alcohol in your system, the interlock device will detect it and prevent your car from starting. If you are arrested for DWI, depending on the facts of your case, you will likely see a magistrate judge prior to being released from jail. That magistrate can, if he or she deems it appropriate, order you to install an interlock device in any car you drive and require you to keep it in your car until your case is resolved. If you are placed on probation for DWI, it is a certainty these days that a condition of your probation will be to not drive any vehicle without an interlock device installed. If your breath or blood alcohol level is .15 or higher, you will be required to install an interlock device in your car as a condition of your bond. If you have an interlock in your car because of a DWI arrest or probation, never blow into the interlock device with alcohol in your system. When the interlock device detects alcohol, it will send a violation report to the company that monitors the device and, in turn, a violation report will likely be sent to the prosecutor handling your case or the judge overseeing your case and your bond or probation can be revoked. On the other hand, a track record of no violations can help your DWI attorney in resolving your case more favorably.
A: Yes, a DWI will go on your record if you are convicted or receive probation, including a deferred adjudication. However, if you are charged with a class B DWI (first offense, BAC lower than .15), or your case is reduced to a class B misdemeanor DWI, you may be eligible to have the record of your DWI arrest, probation, or conviction publicly sealed. This is called an “order of non-disclosure.” If a judge orders a non-disclosure in your DWI case, the arrest, charge, and sentence (probation or conviction) will be sealed from public view. This means that the public, including private employers, should not be able to see information regarding your DWI if they run a background check. However, state licensing agencies (many occupations, both professional and vocational, require state licensed) will always have access to the record of your DWI and you are required to disclose the arrest, charge, and sentence if you are applying for a license. In addition, prosecuting agencies and law enforcement will have access to your record as well.
You can apply for an order of non-disclosure two years after you successfully complete your probation. If you were convicted and received any jail sentence, you must wait five years before you can apply for an order of non-disclosure.
You will not be eligible for an order of non-disclosure if the circumstances of your DWI included an accident.
Finally, there are very limited ways a DWI can be completely erased from your record, known as an expunction. Some jurisdictions in Texas have pre-trial diversion programs for DWI (usually first offense with a BAC lower than .15). If you are offered a pre-trial diversion and successfully complete the conditions of the program, you can apply for an expunction to have the DWI wiped off your record. If you take your DWI case to trial and are acquitted, you can also have your record expunged.
A: A DWI probation will almost always require the following:
Commit no new offenses;Report to a probation officer regularly, usually monthly;
Pay a fine and court costs (fines usually run between $500 to $1,500);
Perform community service, usually 50-100 hours;
Do not drink alcohol at all, even if you are 21 or older;Do not go into bars or nightclubs;
Complete a DWI Education Court within 180 days;
Attend a Victim Impact Panel conducted by Mothers Against Drunk Driving (MADD);
Complete a Substance Abuse evaluation and complete any recommended treatment;
Pay a supervisory fee to the probation department, usually about $62 per month;
Submit to random testing for drugs and alcohol.
There are a number of other conditions of probation, but these are the most common.
A: Yes, if you hire a good DWI defense attorney. Any attorney can handle a DWI, but DWI’s are the most complicated misdemeanors and retaining a qualified DWI attorney will be well worth the extra cost. A good DWI attorney will likely be board certified in criminal law, have undergone extensive training in DWI trial advocacy, and has tried numerous DWI cases to juries. Depending on your facts and your jurisdiction, retaining a good DWI attorney will likely cost somewhere between $5,000 and $10,000.