1) Do I need to hire an attorney?
Many Texas courts require an attorney for disposition of a criminal case that potentially involves jail as punishment. A good attorney can help you minimize your costs, reduce your punishment and provide you with possible defenses in your case.
2) What is your winning percentage as an attorney?
This question is frequently asked by potential clients during our initial interview. Most people want to know you are a good attorney and frequently they attempt to validate the worth of an attorney by his or her winning percentage. This is a tough question to answer because sometimes you can lose a case and still “win.” This happens frequently when you get better punishment from the judge or the jury than what the prosecution was offering. Many times, prosecutors will only offer jail time and not probation. In these cases if my client receives probation after a guilty verdict, he or she wins.
Also, keep in mind there are no Denny Crains (for you Boston Legal fans) practicing in real life. If an attorney tells you that he or she has never lost a case then one of three things are true:: 1) they are not being truthful, 2) they have tried very few cases, or 3) SEE 1. Even the best attorneys lose cases. The most important thing that I hear from clients is that they know, win or lose, that I was prepared and fought hard for them during trial. That’s an attorney’s job.
3) How should I choose a lawyer?
Choosing a lawyer involves a personal choice. For your best defense you should find someone with special knowledge and experience in DWI defense. I recommend that you personally meet with any lawyers you interview for employment. An in person interview can give you a much better perspective on the type of professional that you are dealing with. In the end, you should hire someone you believe is charging you a fair price and agreeing to do a certain amount of work for you.
4) What should I expect to pay for a good attorney?
That depends on a lot of things. Most importantly it depends on the qualifications desired in your DWI defense attorney. Your fee should also depend on the facts of your case and the work involved by the attorney or firm defending you. Cheap lawyers don't work hard, they work fast and do a lot of cases. Expensive lawyers have time to work harder. It is essential that you understand exactly what services an attorney is offering to perform for the fee being quoted. If you do not ask what will be done, the attorney may not tell you. It is our opinion that you are entitled to know exactly what our firm will do for you and exactly what your charges will be.
5) Am I going back to jail?
If this is your first DWI and first arrest, there is little chance that you will return to jail. Each case is determined by its own facts. It makes a difference if you failed to signal a lane change or ran a family of four off of the sidewalk with your car. In Texas, almost all DWI 1st cases (in which a conviction is obtained) result in a "probated" confinement sentence. This means that you are given specific terms and conditions to live by and if you do, you will not return to jail.
6) Can you get my case dismissed?
Maybe. A dismissal is a difficult task with any crime, DWI included. Cases are generally dismissed only when something happens to the officer. Law enforcement is a tough job. Some police officers get killed, resign, get indicted for crimes, get fired for various reasons and even transferred to remote places on the planet. This will usually get a dismissal. Our office has obtained dismissals, but rarely. Don't let any lawyer tell you that they can get your case dismissed without expecting to wind up in a lot more trouble than when you started.
7) Will they "reduce" a DWI charge to reckless driving?
That depends. Each county prosecution is run by an elected District or County Attorney. The elected official makes the decision of whether or not this option is offered to defendants in court. If it is offered, there are still many different outcomes with an alternative crime prosecution. Any attorney working regular in the county criminal courts should know if this option is available, but many may not know the right way to structure the disposition to have the end result of no criminal convictions and no record of a DWI arrest, charge or prosecution.
8) What if they never "read me my rights".
The "rights" most people are referring to are commonly known as your "Miranda" rights. These rights come from a U.S. Supreme Court Decision that state a suspect must be advised of these rights before being subject to custodial interrogation by police or prosecutors (Miranda v Arizona). If you are not so warned, your statements may not be used against you.
Your "Miranda" rights are your right to remain silent and not answer questions without the advice of an attorney. The fact that anything you say can and will be used against you in Court and at your trial. Your right to a court appointed attorney to advise you if you are too poor to hire one to advise you during questioning. Texas law also adds the right to "terminate the interview at any time".
The "DWI" Exception
That same Supreme Court has held that you are not under "custody" when stopped for a traffic offense and do not have to be told you have these rights. They still apply, the police are however under no duty to tell you and no penalty if they do not tell you. It is therefore legally O.K. for the police to ask you if you have been drinking and how many drinks you have had before telling you that you are suspected of DWI. It is also O.K. for you to know that you have these rights and say no thank you to an officer's questions if you feel you are not free to go, but compelled to stay.
If you were arrested for DWI, you were probably advised of these rights after being handcuffed and transported to jail. You have already answered the questions and the "law" says that its O.K. to sue your own voluntary statements to prosecute you for DWI. This exception does not apply in any other criminal case.
9) I did not take a breath test. Is my license suspended?
Not yet if you have found this site within fifteen (15) days of your arrest. Texas law grants you fifteen (15) days to contest the automatic suspension. If you request a hearing within this time limit your license will not be suspended until a judge orders that it be suspended. Our office will request your hearing at no obligation, just call (214) 226-9606.
If you missed the fifteen (15) day deadline your license will AUTOMATICALLY SUSPENDED ON THE FORTIETH (40TH) DAY AFTER YOUR ARREST.
10) I failed the breath test. Is my license suspended?
Not yet if you have found this site within fifteen (15) days of your arrest. Texas law grants you fifteen (15) days to contest the automatic suspension. If you request a hearing within this time limit your license will not be suspended until a judge orders that it be suspended. If you missed the fifteen (15) day deadline your license will AUTOMATICALLY SUSPENDED ON THE FORTIETH (40TH) DAY AFTER YOUR ARREST.
11) I took a blood test. Is my license suspended?
Blood tests results are more time consuming to obtain. Blood tests are done in a laboratory either at a hospital or at a crime lab. If you took a blood test, you should WATCH YOUR MAIL. Within about 60 days, you should receive a letter from the Texas Department of Public Safety informing you of whether you failed the blood test. If you passed, they will not send you a letter.
If you receive a letter informing you that you failed a blood test, you have fifteen (15) days to contest the suspension. If you request a hearing within this time, your license will not be suspended until a judge orders it suspended.
IMPORTANT: Texas DPS will send this letter to the address listed on your drivers license. If you move, change your address as quickly as possible. If this letter is mailed to your last address, Texas laws states that "received it" and should know that your license is suspended.
12) What am I supposed to do if my license is suspended?
If your license has never been suspended before, you can request and obtain an "Occupational Drivers License". This is a license granted by a judge that can allow you to drive twelve (12) hours every day for your work, your school and your household duties. These hours do not have to be continuous nor do they have to be the same every day. They cannot exceed 12 hours in any 24 hour period and your Order must specify the counties you need to drive in. These licenses can generally be obtained within 48 hours to 6 weeks depending on the rules of the local court.
13) What is an "Occupational License".
When a person's drivers license has been suspended for reasons other than physical or mental disability, a Texas citizen may request and be granted an "Occupational License". This is typically what people do when their license is suspended for refusing or failing a breath test. An Occupational License is a restricted license. It is restricted by purpose, hours and region. An Occupational License may be granted for not less than four (4) hours nor more than twelve (12) hours per day. These hours do NOT have to be continuous and they may be different for every day of the week. In most DWI cases, Occupational Licenses are granted for twelve hours each day for the purpose of work related, school related or household need related driving. These hours only apply to hours physically driving a car. They are also limited by the counties in which these driving activities are anticipated. Occupational licenses for persons with multiple DWI offenses may contain more stringent restrictions. In some cases, the Petitioner is required to install and maintain a deep lung ignition interlock device on any vehicle operated during the period of Occupational License. In some cases hours may be restricted to less than twelve (12) hours. Some driving times may also not be available depending on the particular facts of each individual case.
14) What is an "SR-22"?
The SR-22 is a Texas Department of Public Safety form that establishes the existence of insurance coverage for a driver. This form is used in most types of license suspensions and more so in DWI cases. If a license is suspended for failure or refusal of testing, the SR-22 is required to be filed with a Petition (or request) for Occupational License. Without this form, a Court may not grant an Occupational License. A person convicted of a DWI offense is also required to file with the DPS an SR-22 form for two years following the date of conviction.
All insurance companies furnish SR-22 forms. Most people in DWI cases however choose an alternate insurer for periods of suspension to avoid an increase in their insurance rates. Once the period of suspension has been lifted, the alternate insurance policy is allowed to lapse.
15) What are the "usual" probation conditions?
Most of the conditions are how you have lived your life so far. Don't commit another crime. Avoid bad people. Avoid bad places. Don't use drugs. Keep your job. Pay your fines and court costs. Support your family. Don't move or change jobs without letting the Court know. Those kind of conditions.
Most probations also require that you report in person once a month to a "probation officer". In some cases this condition can be eliminated after completion of a portion of the probated sentence.
16) Will they come to my house or job?
In most cases, no. If they have a concern as to whether you truly have a job or live in a "crack house". They may visit you at these places. The only other reason they would make such a visit is to find out why you quit coming to your monthly probation meeting.
17) What "special conditions" go with DWI?
Each state is different. In Texas, "standard" DWI conditions are:
- Complete a state approved "DWI Education Program". This is an advanced "Defensive Driving" course that also provides more education about drinking and driving. It is a four hour, three day course and can be taken on the weekend.
- Attend a Mothers Against Drunk Driving "Victim Impact Panel".
- Submit to a written psychological test to evaluate whether or not you may have a tendency toward drugs or alcohol problems. If indicated, participate in counseling, AA, other.
18) Will I have to get a breath test device on my car?
Maybe. You will not be required to have one if this is your first DWI in your lifetime and you did not have a BAC of .15 or greater. If you have a prior arrest or conviction for DWI however, you will be required to install one of these on your car to remain out of jail on bond.
19) How much will this cost?
Many of the "costs" of a DWI case come with a conviction for DWI. If you are convicted of DWI, either be "plea bargaining" or losing a trial, you will be required to pay court costs and a fine by the Court. If placed on probation, you will pay a monthly probation fee ($40-$60/month). You may be required to pay for any ordered classes or chemical testing ordered in your probation. If there was an accident, you will be required to pay all damages that you caused in the accident. (Approximately $1,620.00)
In addition to these costs, upon conviction you will be subject to a "surcharge" levied by the Texas Department of Public Safety. This fee ranges from $1,000 to $2,000 per year for three years ($3,000-$6,000). You will also be required to keep and file an "SR-22" policy of insurance with TDPS for two years ($3,000).
These costs do not address any costs involved with missing work for court, travel to and from your court appearances, towing fees, bonds posted for jail release and attorney's fees. They also do not address any increases in insurance rates following a DWI conviction.
To sum it up, just to go in admit that you were driving while in intoxicated and accept a conviction for DWI 1st offense will cost you between $7,620-$10,620!!! (NOTE: This is without an attorney!)
20) What if this is not my "first" DWI arrest?
If this is not your first DWI arrest, your case has more issues. The State can elect to use any prior DWI convictions in charging your crime. If your charge is "enhanced", this means that you are subject to increased punishment in terms of fine and confinement. In Texas, if you have two or more DWI convictions (in any state) in your lifetime, you could be facing possible felony charges. The minimum felony punishment is not less than two (2) years nor more that ten (10) years confinement in prison together with a fine not to exceed $10,000 or both.
Persons with prior DWI arrests or records should be more careful in choosing their lawyers. The laws of enhancement and increased punishment in DWI cases is very specific and without a working knowledge of them, minimum punishment options may not be obtained.
21) How long will a DWI stay on my record?
In Texas, a DWI conviction will remain on your record past your lifetime. It is never removed unless expunged or pardoned.
22) Can I "expunge" my DWI?
In Texas, only if you were falsely charged or found not guilty can you get a criminal case expunged. Many other states have different rules. If you were arrested in a state other than Texas, you should contact an attorney in that state to learn more
23) How many drinks does it take to have a 0.080 alcohol concentration?
The answer is not quite as straight forward as you may think. Alcohol is a poisonous substance. As soon as you put alcohol into your body, your body begins to remove it. Alcohol concentrations only rise when you drink more alcohol or at a faster rate than your body can eliminate it.
The best answer is by example. If an "average" 150 lb. man drinks 4 standard beers in 60 minutes, his alcohol concentration at the end of the 60 minutes would be 0.080. This is the same whether the drink is a 12 oz. beer, 4 oz. of wine or 1 oz. of 80 proof whiskey. This estimation varies from individual to individual and has many other factors that affect it.
24) What should I do to avoid a DWI?
The best advice is not to drink and drive. If you are going to drink, drink responsibly or plan a ride if you are not. If you will limit your drinking to one drink per hour, you should be fine.
25) What should I do if I get stopped after I have been drinking?
First of all, don't panic. You have not broken the law. If stopped after drinking, it is important for you to listen to the questions asked. You are required to show proof of a valid drivers license and valid insurance when stopped by the police. You should have these ready for the officer or know where to find them easily when you are driving.
Let the officer tell you why he stopped you. You really do not know. If the officer asks you where you have been or are going, you should understand that he or she is trying to engage you in conversation to see if you are O.K. to drive.
If the officer asks if you have been drinking, you should understand that he or she is patrolling for persons who may be DWI. Your answers will now be very important to your continued journey. If you admit to have been drinking, understand that the officer will ask you how many drinks that you have had to make a quick assessment of his opinion of your sobriety. Whether you admit "a couple" or 3, realize that you will most likely be asked to exit your car and perform exercises before you will be allowed to continue. (Whether or not you have been drinking is constitutionally speaking none of the police department's business. As an American, you have the right to drink responsibly and the right to keep your private life to yourself. This is also the case even if the officer says that he received a call from a "concerned citizen" about your driving.)
26) Should I perform the field sobriety exercises?
Keep in mind that these tests are designed for you to fail. Therefore, in my professional opinion, you should NOT. If you have not been driving dangerously, it should not be an issue. Texas law does NOT REQUIRE YOU to do exercises for the police under any circumstances.
Two of the tests involve your balance. In one you stand with one foot immediately in front of the other and walk 9 steps, turn in a particular way, and return 9 steps. The other balance test requires you to stand with one leg raised 6 inches off the ground for 30 seconds. You should consider any physical or balance limitations before you attempt these exercises as any mistakes will be attributable to your drinking.
The standard field sobriety tests consist of an eye test, a heel-toe walk and standing on one leg. These are not simple exercises and difficult to do perfectly on the first try even under the best conditions.
27)How should I tell the police officer that I don't want to do those tests?
If the officer asks you to do any tests (recite the alphabet from C to W or count backwards), just tell the officer that you understand he or she is doing there job but that you are not intoxicated and if the law does not require you to do the tests then you would rather not do any tests.
This answer will then require the officer to tell you that you are not required to do any of these tests. Unless you ask, the officer will not tell you that all exercises are completely voluntary.
After that, if the officer places you under arrest, simple states you want an attorney and answer no more questions.
28) Should I take a breath test?
DEFINITELY NEVER TAKE A BREATH TEST AT THE ROADSIDE!!
I am very adamant about THIS advice. All machines used at the roadside are unreliable and inaccurate for truly measuring alcohol concentration. Even the Scientific Director of the Texas Department of Public Safety thinks this is true because NONE OF THESE DEVICES HAVE BEEN APPROVED OR CERTIFIED FOR USE IN TEXAS. (Do not take one of these tests even if the officer promises you that the results cannot be used against you. That is NOT TRUE!)
The breath test at the station or in the truck trailer are totally different devices and are much better than those used at the scene. My advice for those machines is a little different.You should only take the "official test" after knowing a little information about those machines.
29) What you should know before you decide to take a breath test.
- They are used on all suspected DWI suspects in the county.
- They require that you blow into them two times for each test.
- They are used approximately 10,000 times between each cleaning.
- They are located within the Dallas County Jail and a daily maintained by the police at the jail.
- They are NOT used by hospitals.
- They assume you are a 150 pound male.
- They assume you fit their definition of the average human subject.
- They are computers and sometimes make mistakes.
- They were designed by scientists to determine identity of substances, not their amount. (I.e. qualitative v quantitative devices)
- Have been known to report false high results on normal people.
You should also know that these four things can cause abnormally high results:
- Atkins Diet
- Dental Work
- Chemical Exposure
If you work around volatile chemicals or have the day of your stop, many substances can cause false high results. All petrochemical products, some household cleaning products, floor strippers and refinishers, oil based paints may affect the reported number.
People who work in oil fields, car body shops and manicurists should be particularly careful with their decision to take a breath test. The substances in these work environments enter the body through the skin and the lungs. They are very harmful if overexposure occurs and will be mislabeled as "alcohol" by the breath test machine.
My position is that it is YOUR decision whether or not to take a breath test. I believe that you should not, because you do not have to prove your innocence to anyone. A license suspensions is NOT AUTOMATIC if you request your hearing within 15 days of your notice. You have an equal chance of losing your license whether you take a breath test or refuse one.
If you take the test and it reports a number of 0.080 or higher prosecution of your criminal DWI case has become much easier for the government to obtain your conviction.
Note: Be aware that if you don't take a breath test, the State can and will tell the judge or jury. Some people think a person who refuses is guilty. More people believe that a person with an alcohol concentration over 0.08 is guilty.
Note 2: Please be advised that a "refusal" as used for these purposes is defined as the failure to print a breath test result whether you try to give one or not. If you request an attorney to decide is also a "refusal".