In another attempt to influence the Courts, the New Mexico chapter of MADD (Mothers Against Drunk Driving), has decided to pay $30,000 - $40,000 per year (per person)  in order to "monitor" DWI and DUI in the local courtroom, and the activities of judges and prosecutors.  Oh yeah.. they are hiring 5 full time people to perform this service.

Problem 1:
Political/lobbyist organizations using taxpayer money

I wouldn't be quite as much against this proposition if the funds for the "monitors" was raised independently.  In my opinion, any organization can do whatever they want with their money, and pursue the goals of their organization.  But here, they received $400,000 grant from the state Traffic Safety Bureau.  Taxpayer money going to a political organization.. I see major problems with that.

Problem 2:
The court's "biased" approach to law enforcement

"Metro Court spokeswoman Janet Blair issued a statement on July 25 saying the court has had an excellent relationship with MADD in the past. 'We look forward to their continuing observations in our courtrooms. We will welcome any constructive recommendations that come from their study that will help reduce drunk driving in our community,' Blair wrote.

The court should be an unbiased entity in an adversarial system.  Why would the court spokeswoman be looking forward to recommendations of a lobbying group?  I can't imagine the court spokeswoman taking meetings with the local criminal bar association.

-------------------
The article comes from the posting on the free republic.  See below:

New Mexico MADD chapter moves offices Downtown to better monitor DWI cases
Albuquerque Tribune ^ | 7/26/07 | Christopher Sanchez

Posted on 07/28/2007 6:00:54 PM PDT by elkfersupper

The New Mexico chapter of Mothers Against Drunk Driving has plenty to celebrate.

The organization on July 25 held a grand opening for its new headquarters Downtown and received a $400,000 grant from the state Traffic Safety Bureau to monitor DWI cases in six counties, including Bernalillo, said Terry Huertaz, executive director of MADD New Mexico.

The organization will hire five full-time court monitors to track DWI cases at random and to gather data for an annual report, Huertaz said.

"We're hoping our presence in the court will be a positive thing. We're not there to find something corrupt, but if that does happen, we will expose it to the public," she said. "We don't want to be an organization throwing rocks at the system - we want to be part of the solution."

The report doesn't have to be negative, she said.

"We might see something really awesome going on in a particular county that a district attorney, a police officer or a judge has figured out," Huertaz said, "and we should share that information with everyone."

The court monitors will track 200 to 400 cases annually in each county - Bernalillo, Santa Fe, San Juan, Rio Arriba, McKinley and Doña Ana. They were chosen because they have the highest numbers of alcohol-related arrests, crashes, deaths and injuries, Huertaz said.

The organization received the grant a week before moving into its new headquarters at 1100 Fourth St. N.W., she said.

MADD moved Downtown because it is closer to the courts, the District Attorney's Office and the Albuquerque Police Department, she said.

"We strategically moved here so we can be near all our partners," Huertaz said.

The court monitors will be paid between $30,000 and $40,000 per year, she said.

Metro Court spokeswoman Janet Blair issued a statement on July 25 saying the court has had an excellent relationship with MADD in the past.

"We look forward to their continuing observations in our courtrooms. We will welcome any constructive recommendations that come from their study that will help reduce drunk driving in our community," Blair wrote.

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Drunk Driving - Over the Limit. Under Arrest.  Cops are cracking down. 



This is one of just many new slogans that are being used.  (I blogged previously about the Drink, Drive, Go to Jail campaign).

Although I definitely prefer this campaign to the Drink, Drive, Go to Jail campaign, but I note one big problem with this campaign.  As far as I know (and definitely in Texas), you are always arrested BEFORE there is any test to see if you are over the limit.

Let me explain....

A normal scenario for a DWI arrest goes like this:  You are pulled over for speeding, or some other minor traffic infraction.  The officer smells alcohol on your breath, and asks you to get out.  He says something along the line of, "I just need to do some tests to make sure you are O.K. to drive."  At this point, he will perform some Standardized Field Sobriety Tests.  If the officer thinks you failed, Boom -- You are under arrest.

So where does this over the limit, under arrest come in?  You are already in handcuffs.  You are then transported to jail, booked in, and taken to the "intoxilyzer room."  It is only at this point when you are even given the chance to give a sample of your breath or blood.... So how does Over the Limit, Under Arrest even come in to play?? I'd say,  It doesn't.  

Even if you blow under the legal limit, you are still already arrested, and at least in the three counties in which I practice (Collin County, Dallas County, and Denton County), you will still be charged with DWI under the other two definitions of intoxication.

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Drink, Drive, Go To Jail... Right?  WRONG.




One of the most popular quotes/slogans/etc. is the "Drink,Drive, Go To Jail" slogan.  The unfortunate thing is, it's flat out incorrect.

It is not against the law to have a drink and drive a car, as long as you are not impaired.  Depending on the state, each state will have a different law as to the amount of impairment before it is illegal to drive.  However, no state has a zero tolerance police regarding drinking and driving (except for minors).  In Texas, one can only be convicted of driving while intoxicated if they have lost the normal use of their mental or physical faculties by reason of the introduction of alcohol into the body, or by having an alcohol concentration of above .08 in their body.

This slogan is one of the most talked about fallacies in the blogsphere...

Recently, Austin DWI attorney Ken Gibson blogged about this issue in his post Drink, Drive, Go To Jail . . . That is not the law!  In it, Ken talked about how the Gregg County Sheriff's office has been preaching the slogan:

Gregg County Sheriff’s Department says; “We’d just like to remind people to drive responsibly. Don’t drink and drive. Enforcement will be out there and it’s not worth that chance and certainly not taking a chance of hurting yourself or others.”

Ken has not been alone in his postings.  Apparently, the police in New York have bought into the slogan as well.  Austin DWI attorney Jamie Spencer recently wrote about police in New York arresting people who have been drinking, but not going further to check and see if they are impaired.  He has posed that the police said:

"Once the driver rolls down the window, (the officer) said, it's easy to tell if he or she has been drinking.

"The first thing that hits you is the odor of alcohol -it's so obvious," he said. "I've had a few drivers who know they've been drinking and try to play it down, but the odor on their breath gives them away."

All in all, it would seem that many are buying into this slogan. . . a slogan with no basis in the law.

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§ 49.09. ENHANCED OFFENSES AND PENALTIES.

(a) Except as provided by Subsection (b), an offense under Section 49.04, 49.05,
49.06, or 49.065 is a Class A misdemeanor, with a minimum term of
confinement of 30 days, if it is shown on the trial of the offense
that the person has previously been convicted one time of an offense
relating to the operating of a motor vehicle while intoxicated[0], an
offense of operating an aircraft while intoxicated[0], an offense of
operating a watercraft while intoxicated[0], or an offense of
operating or assembling an amusement ride while intoxicated[0].
(b) An offense under Section 49.04, 49.05, 49.06, or 49.065
is a felony of the third degree if it is shown on the trial of the
offense that the person has previously been convicted:
(1) one time of an offense under Section 49.08 or an
offense under the laws of another state if the offense contains
elements that are substantially similar to the elements of an
offense under Section 49.08; or
(2) two times of any other offense relating to the
operating of a motor vehicle while intoxicated[0], operating an
aircraft while intoxicated[0], operating a watercraft while
intoxicated[0], or operating or assembling an amusement ride while
intoxicated[0].
(c) For the purposes of this section:
(1) "Offense relating to the operating of a motor
vehicle while intoxicated[0]" means:
(A) an offense under Section 49.04 or 49.045;
(B) an offense under Section 49.07 or 49.08, if
the vehicle operated was a motor vehicle;
(C) an offense under Article 6701l-1, Revised
Statutes, as that law existed before September 1, 1994;
(D) an offense under Article 6701l-2, Revised
Statutes, as that law existed before January 1, 1984;
(E) an offense under Section 19.05(a)(2), as that
law existed before September 1, 1994, if the vehicle operated was a
motor vehicle; or
(F) an offense under the laws of another state
that prohibit the operation of a motor vehicle while intoxicated[0].
(2) "Offense of operating an aircraft while
intoxicated[0]" means:
(A) an offense under Section 49.05;
(B) an offense under Section 49.07 or 49.08, if
the vehicle operated was an aircraft;
(C) an offense under Section 1, Chapter 46, Acts
of the 58th Legislature, Regular Session, 1963 (Article 46f-3,
Vernon's Texas Civil Statutes), as that law existed before
September 1, 1994;
(D) an offense under Section 19.05(a)(2), as that
law existed before September 1, 1994, if the vehicle operated was an
aircraft; or
(E) an offense under the laws of another state
that prohibit the operation of an aircraft while intoxicated[0].
(3) "Offense of operating a watercraft while
intoxicated[0]" means:
(A) an offense under Section 49.06;
(B) an offense under Section 49.07 or 49.08, if
the vehicle operated was a watercraft;
(C) an offense under Section 31.097, Parks and
Wildlife Code, as that law existed before September 1, 1994;
(D) an offense under Section 19.05(a)(2), as that
law existed before September 1, 1994, if the vehicle operated was a
watercraft; or
(E) an offense under the laws of another state
that prohibit the operation of a watercraft while intoxicated[0].
(4) "Offense of operating or assembling an amusement
ride while intoxicated[0]" means:
(A) an offense under Section 49.065;
(B) an offense under Section 49.07 or 49.08, if
the offense involved the operation or assembly of an amusement
ride; or
(C) an offense under the law of another state
that prohibits the operation of an amusement ride while intoxicated[0]
or the assembly of a mobile amusement ride while intoxicated[0].
(d) For the purposes of this section, a conviction for an
offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07,
or 49.08 that occurs on or after September 1, 1994, is a final
conviction, whether the sentence for the conviction is imposed or
probated.
(e) Repealed by Acts 2005, 79th Leg., ch. 996, § 3.
(f) Repealed by Acts 2005, 79th Leg., ch. 996, § 3.
(g) A conviction may be used for purposes of enhancement
under this section or enhancement under Subchapter D, Chapter 12,
but not under both this section and Subchapter D.
(h) This subsection applies only to a person convicted of a
second or subsequent offense relating to the operating of a motor
vehicle while intoxicated[0] committed within five years of the date
on which the most recent preceding offense was committed. The court
shall enter an order that requires the defendant to have a device
installed, on each motor vehicle owned or operated by the
defendant, that uses a deep-lung breath analysis mechanism to make
impractical the operation of the motor vehicle if ethyl alcohol is
detected in the breath of the operator, and that requires that
before the first anniversary of the ending date of the period of
license suspension under Section 521.344, Transportation Code, the
defendant not operate any motor vehicle that is not equipped with
that device. The court shall require the defendant to obtain the
device at the defendant's own cost on or before that ending date,
require the defendant to provide evidence to the court on or before
that ending date that the device has been installed on each
appropriate vehicle, and order the device to remain installed on
each vehicle until the first anniversary of that ending date. If
the court determines the offender is unable to pay for the device,
the court may impose a reasonable payment schedule not to extend
beyond the first anniversary of the date of installation. The
Department of Public Safety shall approve devices for use under
this subsection. Section 521.247, Transportation Code, applies to
the approval of a device under this subsection and the consequences
of that approval. Failure to comply with an order entered under
this subsection is punishable by contempt. For the purpose of
enforcing this subsection, the court that enters an order under
this subsection retains jurisdiction over the defendant until the
date on which the device is no longer required to remain installed.
To the extent of a conflict between this subsection and Section
13(i), Article 42.12, Code of Criminal Procedure, this subsection
controls.

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§ 49.045. DRIVING WHILE INTOXICATED[0] WITH CHILD
PASSENGER.

(a) A person commits an offense if:

(1) the person is intoxicated[0] while operating a motor
vehicle in a public place; and

(2) the vehicle being operated by the person is
occupied by a passenger who is younger than 15 years of age.

(b) An offense under this section is a state jail felony.

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§ 49.04. DRIVING WHILE INTOXICATED. (a) A person commits
an offense if the person is intoxicated while operating a motor
vehicle in a public place.

(b) Except as provided by Subsection (c) and Section 49.09,
an offense under this section is a Class B misdemeanor, with a
minimum term of confinement of 72 hours.

(c) If it is shown on the trial of an offense under this
section that at the time of the offense the person operating the
motor vehicle had an open container of alcohol in the person's
immediate possession, the offense is a Class B misdemeanor, with a
minimum term of confinement of six days.

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Penal Code - Chapter 49

(2) "Intoxicated" means:

(A) not having the normal use of mental or
physical faculties by reason of the introduction of alcohol, a
controlled substance, a drug, a dangerous drug, a combination of
two or more of those substances, or any other substance into the
body; or

(B) having an alcohol concentration of 0.08 or
more.

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I am often asked the question,

"What is SR-22 Insurance?"

SR-22 insurance policy is a note held on file by the DPS. It is an extra charge you pay for your insurance carrier to communicate directly with DPS. DPS will hold your proof of insurance in their system, and whenever there is a lapse of insurance your carrier will contact DPS, possibly resulting in another suspended license.

When is SR-22 required?

SR-22 Insurance is usually required after a DWI conviction for a set amount of time, and it usually runs approximately $25-$50 per month on top of your normal rate. SR-22 insurance is also often needed if you obtain an occupational drivers’ license as a result of a suspension (Either ALR or conviction suspension).  Depending on the court and the judge, you may have to obtain SR-22 insurance even before you request an occupational drivers license.  SR-22 does not mean full coverage or necessarily expensive as some people believe, you may still purchase your state's minimum liability automobile insurance coverage, just with a SR-22 policy added.

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In yet another instance of the "guilty until proven innocent mentality," an Indianapolis radio station has decided to do their part and read off a list of people arrested for drunken driving (DUI in Indiana). 

I wonder if anyone at the station even though, just for a second about what they were doing?  How about TAINTING a potential jury pool of people who would be instructed to presume the person on trial innocent until proven guilty?

Although I wouldnt be for it, I would think that reading a list of those CONVICTED of DWI / DUI that week would be more appropriate.  At least it wouldnt taint future jurors, or compound the problem of further humiliating innocent people that were arrested.  Below is the article.

Radio station to read names of DUI arrestees


WNOU-FM (93.1) is taking a unique stand against drunken driving in Indianapolis -- by reading the names of the previous week's offenders every Monday during its morning radio show.

"You don't want to hear your name on this list, do you?" co-host Marco Anselmo asked listeners during the premier segment Monday.
To the tune of Inner Circle's "Bad Boys" song, hosts of "The Morning Mess" highlighted a handful of drivers charged with DUI last week and quoted details from incident reports.
The segment promises to feature "prominent guest commentators."
On Monday, Sgt. Ray Poole of the Indiana State Police offered anecdotes about DUI arrests he has made.
Upcoming speakers include members of Mothers Against Drunk Driving, and Gov. Mitch Daniels.

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In a recent case in New Mexico, a citizen was arrested, tired, and acquitted of DWI.  Despite his being found not guilty by a jury of his peers, and after a clerk "checked the wrong box" saying guilty, his picture and name was published in the newspaper. Oh yes, a retraction was printed, but I'm quite sure it was too little too late for him.  The interesting thing is, I found this article online, on an NBC news site, which not only published his name, but also published his PICTURE as well!   Apparently they don't care about his privacy either.... Here is the story, but in order to not perpetuate the wrong that was done to this man, I have removed his name and his picture. Man mistakenly published on DWI offender list

A man who was never found guilty for DWI had his picture published in the local paper saying he was guilty of drunk driving. XXXXXXXXXXXXXXX, was arrested last August and blew at or above the legal limit, according to court records. XXXXXXXXXXX fought the case and was found "not guilty," in February. A Metropolitan Court clerk made a mistake and marked guilty next to the DWI charge days after XXXXX was acquitted. XXXXXXXXX works for the Federal Government on Kirtland Air Force Base and has been trying to get higher security clearance. XXXXXXXXXXXXXX said, "I'm gonna have to do a lot of explaining I shouldn't have never had to do." For two months XXXXX was officially a convict, until the mistake was found and fixed. During the time XXXXXXXXXXXXX was mistakenly labeled "guilty" his name was put into the mix of guilty faces to be published by Albuquerque police. Metropolitan Court spokeswoman Janet Blair said, "We really regret Mr. XXXXXXXXXXXX had to go through this...and we don't understand why such outdated information was used when correct information has been available for three months." The Albuquerque Police Department plans to issue a retraction in the next few months.

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"I was just arrested for DWI 2nd... what will this do to my license?"

The answer to this question in Texas is complex, and depends on many factors that are not known based on the question. I would need to know if you refused to submit to a breath test, and how recently you had "ALR Contact" and how recently your prior DWI Conviction was.

ALR Suspension

If you refused a breath test, and had prior ALR contact within 10 years, your license will be suspended for 2 years.

If you failed a breath test, and had prior ALR contact within 10 years, your license will be suspended for 1 year.

DWI 2nd Conviction

If you are convicted for DWI 2nd, and you last conviction was within 5 years, your license may be suspended for up to two years.

Occupational Drivers License - Waiting periods

One of the major pitfalls to a DWI 2nd conviction or ALR suspension is the Occupational Drivers License mandated waiting period. What this means, is that your must wait until your attorney can even file for an Occupational Drivers License (Hardship License) on your behalf.

If you have an Administrative Suspension (For refusal or failure), and a prior DWI within 5 years, the waiting period is 180 days. If you receive a DWI 2nd conviction, and your prior conviction is within 5 years of this case, THERE IS A 1 YEAR WAITING PERIOD!

..All the more reason to fight your DWI case.
Continue Reading...

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In a recent arrest in Ohio, a police officer was arrested after driving erratically.  What I find most interesting is that he refused to submit to any chemical testing....  Hmmmmm.... It is interesting when many officers "encourage" or bully people into taking these tests, but when push comes to shove, they refuse.  Is it  really possible that only DWI attorneys know there is a fallacy with these tests?  Or is it at all possible that the police as well realize that there is a problem here? Akron Detective Turns In His Badge After DUI Stop

Written by OJ Fagbire

Detective Kris Hanzel, of the Akron police force, was pulled over last week when he was seen driving erratically. He was off duty at the time. Officers report that Hanzel refused to take an alcohol test or any drug tests.   Hanzel, who has been a member of the department for 14-years, turned in his badge and resigned his post the day after his arrest.

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Arrest of the Citizen Accused

Your arrest was the first formal step in the criminal DWI process. Your arrest supposedly happened after the officer felt that he had enough probable cause to arrest you.

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Bail

If you are reading this, you have probably already posted a bond (bail) to get out of jail. You may have either posted a Cash Bond (where you put up the entire amount), or a bail bond through a bondsman. In the case of a cash bond, at the disposition of your case, you are entitled to that money back (minus a small percentage to the court clerk). With a bail bond, any amount you paid to the bondsman will be retained by that bondsman. It is their "fee" for putting up the rest of the money for you.

If you bonded out of a city jail (i.e. Frisco, Plano, McKinney, Richardson, Denton), you will probably have to go to the County Jail to get processed in. You usually need to do this within 10 days of your release. If you were taken directly to the County Jail (McKinney for Collin County, Lew Sterrit for Dallas County, or Denton for Denton County), you would not need to go back to check yourself in.

Your bail bond is your promise to reappear for all court hearings. The point of the bond is to set a price that will ensure you show back up, and don't flee to Mexico. With most DWI cases, this is never a problem, and as long as you show up as scheduled, everything is fine.

The judge or magistrate may also require certain conditions of bond if they choose. One of the most common conditions is that you install an ignition interlock device on your car. This is actually a REQUIREMENT of your bond if you are charged with DWI 2nd.

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Filing of the DWI Criminal Case

Once the police believe that their investigation is complete, they will send their arrest report, and evidence in the case to the District Attorney of the county in which they made the arrest. This usually consists of their arrest report, video of the roadside and intoxilyzer room, and breath or blood test.

At this point, an attorney from the district attorney's office will review the report. In general, it is just a VERY cursory review of the report. Over 99% of the time, the DA will accept the case for prosecution. (This is the process for a misdemeanor. In a felony case, a grand jury must review the case before presenting an indictment.)

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Announcements, Plea Settings, and Pre-Trial Dates

Depending on the court, there will be 3, 4, or more announcements, plea settings, or pre-trial dates. In general, these are all the same thing, despite the different names.

No matter what they are called, these announcements are simply court settings, where I will have the opportunity to visit with the prosecutor and learn more about your case. I will speak with the District Attorney handling your case, get a look at a police report. I will also be able to drop off a video to get a copy of the video of your arrest and/or breath test.

Almost always, it will be me handling these court settings. Occasionally, though, I will have a conflict where I cannot attend, I may have another attorney cover the setting. Depending on the county and and the judge, you may or may not have to attend these settings. In general, you do nothing at these hearings except to show up and prove you haven't fled the country.

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Video Review Session

This is not an "official" part of the DWI court process, but an extremely important step nonetheless. With all of my DWI cases, I will hold a video review session. During your video review session, we will look at the police report from you case, and review any video evidence from your case. I will show you the good, the bad, and the ugly. After we go through the video step by step, I will give you my opinion on what I think your chances are if we were to go to trial. It will then be up to you to decide if you want to plea not guilty and have a trial, or to plea guilty and accept the state's plea bargain offer.

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Pre-Trial Hearings

If we set your case for trial, we will usually have to attend a pre-trial hearing. This is a chance for me to file any pre-trial motions on your behalf, and help the judge to determine how long your trial is going to take. The judge holds these hearings to speed up the trials, and to determine the order and scheduling of the cases.

Just because your case is set for trial, does not guarantee that your trial will held on that day. Most judges set many cases for trial on the same day, expecting some of them to fall through. Different cases have different priorities of which cases go first. For example, if someone is in jail waiting for their trial, their trial has priority over someone who is not in jail. Additionally, Domestic Violence cases have priority over others. After that, older cases get to go before newer cases. But in the end, it is up to the judge in the court to decide which case goes first and on what day.

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Trial

If you have decided to plea "not guilty," you will have a trial for the finder of fact to determine whether or not you are guilty beyond a reasonable doubt. The finder of fact with either be a jury or a judge. In general, almost all of my trials are held before a jury.

The jury trial will start with vior dire. This is jury selection. It is the attorney's opportunity to talk with the potential juries about their thoughts and beliefs. In a misdemeanor DWI cases, the judge brings in about 25 people. From them, 6 jurors will be selected to sit on your case.

After opening statements, the state will put on their case. They may call as many witnesses as they wish, but in general will only have a few. Any officers on the scene, anyone working the breath test machine, any possible witnesses to your driving, and possibly the "Technical Supervisor" of the breath test machine.

After the state's case, we may or may not call any witnesses. You will have the opportunity to testify if you wish, but do not need to do so. If you do not testify, the jury will be instructed not to hold that fact against you in your case.

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Punishment Phase

If you are found guilty by a judge or a jury, the case will proceed on to a punishment phase. During this phase, the state may bring up any prior bad acts or history. Before the trial begins, we must decide if it will be the judge or the jury to assess punishment. Each case is different, and this is something we will discuss before your trial begins. Most people have the judge assess punishment in their case, as they see many of these cases, and understand the severity (or non-severity) of the cases.

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Expunction / Clearing Your Record

If you are found not guilty by a judge or a jury, the case will be over. However, there is still a record of your trial, arrest, and charge. You will eligible for an expunction of your record, however this does not happen automatically. If you are found not guilty, I will explain this process to you to keep your record clean!

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How long does the DWI Criminal process take?

The answer to this question depends on many different factors. These factors include the nature of your case, what county you are in, how fast the police agency acted, and to what court you are assigned. If your case goes to trial, it can be over a year before your case is disposed. If you end up pleading guilty in your case, it can be over anywhere from 4-6 months.

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1. Contest the constitutionality of the stop.
2. Contest the constitutionality of the administration of roadside tests.
3. Contest the constitutionality of the probable cause to arrest.
4. Contest the constitutionality of the Miranda rights.
5. Contest the use of any blood or breath test.
6. Contest the constitutionality of any search and seizure.

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1. Motion to suppress evidence on the ground that you were unconstitutionally stopped.
2. Motion to suppress evidence on the grounds that there was an unconstitutional search and seizure.
3. Motion to suppress statements on failure to give Miranda rights.
4. Motion for Discovery of evidence.
5. Request for the video of your stop
6. Request for the video of the "intoxilyzer room"
7. Motion for 404(b), and 37.07 evidence (prior history of you)
8. Application for Probation
   
9. Motions in Limine (This prevents the District Attorney from bringing up certain inadmissible information)

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1. Request an occupational license if your license is suspended.
2. Sometimes, you may take the DWI Education course within 180 days and this will keep your license from being suspended.

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1. If your blood alcohol was over the legal limit
2. If you refused to submit to a blood or breath test
3. If you are convicted of DWI
4. If the judge suspends your license as a condition of your bond.
5. If you are convicted, and you fail to pay DPS's "Reinstatement Fee" (between $3,000 and $6,000).

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1. An estimation of the strengths and weaknesses of the State's case against you.
2. The effect of a conviction.
3. The price your attorney charges if you take your case to trial (I give you this information when we first meet)

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1. The officer must have had a reasonable suspicion that you were violating the law.
2. The officer must have either had probable cause to arrest you or obtain your consent for roadside tests.
3. The officer must inform you of your rights concerning a breath or blood test.
4. The officer must perform a 15 minute "observation period" before giving you a breath test
5. The proper chain of custody of your blood must be maintained.

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1. Inconsistent statements.
2. Failure to recollect.
3. Inability to conduct the Standardized Field Sobriety Tests in the prescribed manner.
4. Failure to properly state what his reasonable suspicion for stopping you was.
5. His/Her failure to follow proper State, County, or Federal procedures.

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1. Six people have to agree on your guilt beyond a reasonable doubt (in a misdemeanor DWI, twelve in a felony DWI)
2. In most cases, it is the only way to keep your record clean
3. Punishment if you are found guilty will probably be almost identical to punishment if you plea guilty
4. DPS decided to assess a surcharge of 3,000-6,000, and a jury trial may be the only way to avoid it.
5. The "plea bargain" offered to you was not much of a bargain after all.
6. You ARE NOT guilty! Imagine that! The policeman and the District Attorney never even contemplated this possibility.

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1. A good investigation of the facts.
2. Vigorous cross-examination.
3. A sound understanding of constitutional principles.
4. An attorney who is knowledgeable in the area of Texas DWI law.
5. An understanding of the practices and procedures of DWI in the county in which you are charged.

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1. Your itinerary prior to arrest.
2. Your consumption of alcohol or drugs
3. Your observations of the officer.
4. The officer's stated reasons for stopping you.
5. Whether the officer asked or ordered you to take roadside tests.
6. Your performance on roadside tests.
7. Statements you made to the officer.
8. What the results were of any breath or blood tests.
9. Whether there were witnesses to your arrest.
10. Whether you were observed for 15 minutes prior to a breath test

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1. The arresting officer should have provided you with paperwork about the suspension of your driver's license(notice of suspension).
2. You have 15 days from the date the notice was served to request a hearing to contest the suspension or your license will be automatically suspended.

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        1. You
        2. On or about a certain date
        3. Operated a motor vehicle in a public place
        4. In the state of Texas, in (Collin, Denton, Dallas) County
        5. While Intoxicated
        6. (By not having the normal use of your mental or physical faculties, or above a .08 blood alcohol concentration)
        7. DUE to the introduction of alcohol (or drugs) into the body

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1. They do not have all the witnesses available to prove their case.
2. The Officer moved or no longer wants to testify
3. The Witness who "called in" the DWI cannot be found
4. The "Technical Supervisor" of the breath test is unavailable to testify.
5. The "Breath Test Operator" is unavailable to testify.
6. They has exculpatory evidence which would prove your innocence.
7. They have evidentiary problems in proving your blood alcohol level.
8. They have evidentiary problems in proving that you lost the normal use of either your mental or physical faculties.
9. You will receive almost identical punishment if you are found guilty after trial.
10. If you plea guilty, you will be assessed a $3,000 - $6,000 surcharge by DPS.

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What is the Difference between DWI and DUI in Texas?

In Texas, DWI, or Driving While Intoxicated (1st), is a crime that can carry with it up to 180 days in jail, and up to a $2,000 fine. DWI carries with it a harsher punishment and penalties than DUI. In order for the state to convict someone of DWI, they must prove that the driver of a motor vehicle either had above a .08 BAC, or lost the normal use of their mental or physical faculties due to the introduction of alcohol, a drug, or a combination of the two. You can receive a DWI at any age (above or below 21). With each conviction, the punishment & ramifications of a conviction go up.

In Texas, DUI, or Driving Under the Influence is a crime that can only be committed by a minor under 21. The controlling statute is the Alcohol Beverage Code § 106.041. In order for the state to prove that you are Driving Under the Influence of Alcohol, the state must prove you were a motor vehicle in a public place while having any detectable amount of alcohol in the minor's system. BUT, if the police believe that you are above a .08 BAC, or you have lost the normal use of your mental or physical faculties, you may end up getting arrested for DWI, the more serious of the two crimes.

I have created the chart below to help explain the differences. No matter which crime you are charged with, DWI or DUI, the ramifications can be extraordinary. This is especially true for what can happen outside of the punishment ranges. Drivers License suspensions, future loans or employers, may see your record, and future criminal proceedings may be enhanced.

DWI (1st)	DUI
AGE:	Under 21 or Over 21	Under 21
Offense Level:	Class "B" Misdemeanor	Class "C" Misdemeanor
Punishment Range:	72 hours - 180 days Jail, Up to $2000 fine	Up to $500 fine
Proceedings Held:	County Court	JP or Municipal Court
Usual Conditions:	DWI Class, Victim Impact Panel, Drivers' Risk Inventory, 24-80 Hours Community Service, No Consumption of Alcohol	Alcohol Awareness Program, 20-40 Hrs. Community Service, No Consumption of Alcohol
Proof Required:	.08 or higher BAC Not Having Normal Use of Mental or Physical Faculties	Any detectable amount of alcohol (while driving)

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The ALR Process
Administrative License Revocation Program

I am often asked about the process that occurs after your license is confiscated subsequent to a DWI arrest.

As mentioned on several other pages of this site, there are actually two different processes working against you at the same time. The Criminal Case and the ALR / License Suspension process.

As a general rule, when you hire me, you need to do nothing regarding this process. I take care of filing all motions, requests, and appearing at the hearing. You do not need to do or attend anything. Despite my taking care of everything, it is nice to know what is going on. I always keep my clients updated as to where they are in the process.

Request a Hearing

This is the first step in the process. You must request a hearing within 15 days in order to preserve your right to fight the suspension. In general, this is the first step I take on behalf of my clients. Even if you tried to call in yourself, or sent something in that you cut and paste from another website, I always resend this on my own. That way, I can be sure that it is on the proper forms, and I ALWAYS keep the fax confirmation to prove that we filed on time. I always request a hearing in person, and never by phone.

Request for Discovery

As part of the administrative rules, we are entitled to receive certain documents from the prosecuting attorney (from DPS). I always request these from the department. These documents may include:

• Peace Officer's Sworn Report / Probable Cause Affidavit
• DWI Statutory Warning
• Notice of Suspension
• Breath / Blood Test Results
• Breath Test Technical Supervisor's Affidavit
• Toxicology Report
• Specimen Routing Report
• Criminal Complaint
• Spanish Translation Affidavit
• Driving Record

Subpoenaing of Witnesses

It is the responsibility of the requestor of the hearing (you, through me) to subpoena any witnesses that we need. This includes the arresting officer. I request a subpoena from SOAH (the State office of Administrative Hearings), and have the subpoena served on the arresting officer by a process server of mine.

If you submitted to a breath test, we will also request that the Breath Test Operator, and the Technical Supervisor to be present. If properly subpoenaed / requested, and they do not show, the department may either move to continue the case, dismiss the case, or proceed (and usually lose).

Requests for Continuances

Occasionally, I will have a court date, or another ALR hearing on the date of your hearing. If this happens, I will either request a continuance on your case, or have another attorney handle the hearing for me. I usually handle the hearings myself, but occasionally find myself in a situation where I am unable to cover the hearing.

When I do have another attorney to handle your hearing, I always work with them in advance to make sure they understand the issues that we need to focus on. In fact, The attorney that I usually use, used to be a DPS attorney, and is really good at what they do!

Live Hearing

I handle the actual hearing in front of the Administrative Law Judge. Any witnesses requested to be there, must be there. In a breath test case, the department must prove that:

• Reasonable suspicion to stop or probable cause to arrest the person existed; and
• the person had an alcohol concentration of 0.08 or greater while operating a motor vehicle in a public place

In a case where you refused a breath test, the department must prove that:

• Reasonable suspicion to stop or probable cause to arrest the person existed; and
• probable cause existed to believe that the person was operating a motor vehicle in a public place while intoxicated or operating a watercraft powered with an engine having a manufacturer's rating of 50 horsepower or more while intoxicated; and
• the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and
• the person refused to submit to the taking of a specimen on request of the officer.

Filing for an ODL

If I am not sucessful in keeping your licence from being suspeneded, I will file an occupational drivers license for your on your behalf. This is sometimes referred to as a "hardship license." That license will allow you to drive to and from work, school, or anywhere else important that you need to know.

In general, if you are reasonable about the amount of time you are requesting to drive, the judge in your case will be reasonable too. Depending on if your license was suspended in the past, or you have a prior DWI, there may be a waiting period to file for your occupational drivers license.

Other general information

In the past, DPS allowed us time to let our clients know that their license was about to be suspended. Now, your license is suspended when the Administrative Law Judge signs the judgment. Therefore, I always let you know when the hearing is coming up, so you know that the possibility exists that your license is going to be suspended on or around that date.

How long does the ALR process take?

It has been taking longer and longer lately to even get a hearing date on your license suspension hearing. Lately, I have been getting a hearing date no earlier than 90 days from the date of arrest. In some cases it is meeting or exceeding six months to have the hearing.

These long dates can be good and bad. They are good in that your license is not suspended for the entire time, and you can continue to drive as normal. However, if the trial court is moving faster, it would be better to have your ALR hearing before your court case is heard. This would give us an opportunity to cross-examine the police officer and help determine the strengths and weaknesses of your case.

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