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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.

The first question is, 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 for DWI, driving while intoxicated.

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

Was the Miranda warning read? The answer to this question will not result in a dismissal of a DWI charge, it will only go to the weight of the evidence in a DWI trial.

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; however, based on subsequent case laws this famous case law and these rights have deteriorated.

Booking for the criminal offense allegations or DWI misdemeanor and/or felony charges against you.

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 for criminal offense allegations including DWI misdemeanors

This is an assurance to the court following your arrest for DWI or other criminal law alleged violations that you will appear for your hearings and trial. If you fail to appear (or fail to answer when the Judge calls your name), you may 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 combined with other factors such as ties to the community will affect the amount of the bond. Also, a past criminal conviction will likely increase the bail amount. The amount of bail varies, and many factors are taken into account when determining what amount is appropriate for the defendant. If the accused has the money to provide the sheriff with the full amoount (cash bond) then there is no need for a bail bondsman (surety). However, there are instances when your DWI criminal lawyer can negotiate with the Court release based on a promise by the accused to appear (personal recognizance).

Bail Bonds

These are basically loans provided by bail bondsman following an arrest for a DWI or other criminal allegation. Posting bond usually requires ten percent of the bail amount. However, many bail bondsman may charge a lesser amount if you are represented by a criminal defense 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. Therefore, if you fail to appear either your cash bond will not be returned, you will forfeit your bail paid to the bondsman, or upon appearance or detention you will not be released. In each circumstance a failure to appear before the court will cause a warrant to issue for your arrest.

Arraignment

Hopefully by this stage you have a DWI/criminal 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 by admitting guilt or no contest, 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. Remember a DWI conviction will stay on your record for life.

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 during a stop for suspicion of DWI non-calibrated breathalyzer tests will result in a dismissal of the DWI charges against you, and at this phase of the proceedings 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.

Austin Location: 4015 Marathon Blvd., Austin, Texas 78756 (Across from Central Market on N. Lamar) Telephone: 512.386.8117