Fort Worth DWI Lawyer

Additionally, if you receive community supervision (probation) in Tarrant County for your DWI (1st offense), you could be required to complete the following (at your own expense): numerous DWI classes (Alcohol/Drug evaluation, DWI education program, Victim Impact Panel, etc.), a large amount of community service hours, a license suspension for a period of time ranging from 90 days to 1 year and if you agreed to submit a DWI breath or blood sample and it was determined that your blood alcohol level was greater than .15, the judge MUST order you to obtain an ignition interlock device on your vehicle as a condition of your community service (probation).

Finally, if you were arrested and charged with a DWI (1st offense) in Fort Worth, Arlington, Mansfield or in the surrounding cities of Tarrant County and you were found to have an open container at the time of your arrest, Texas law provides that you could face anywhere from 6 days to 180 days in Tarrant County jail.

What Happens if I am Convicted of a DUI (1st offense as a minor – under 21 years of age)?

If you have been arrested and charged with a DUI (1st offense) in Fort Worth, Arlington, Mansfield or the surrounding cities in Tarrant County, Texas law provides that will be charged with a Class C Misdemeanor that carries a punishment of up to a $500 fine but does not impose a jail sentence upon conviction.

However, if you or your minor child receives community supervision (probation), not only must you or your minor child complete all the standard conditions of a DWI probation, you will also receive a driver’s license suspension that will become effective at the beginning of the community supervision (probation) period. Finally, the court will require you to install and use an ignition interlock device on your vehicle during the term of your community supervision (probation).

What Happens if I am Convicted of a DWI – Misdemeanor Repetition (DWI 2nd)?

If you have been arrested and charged with a DWI (2nd offense) in Fort Worth, Arlington, Mansfield or in the surrounding cities of Tarrant County, Texas law provides that you could face anywhere from 30 days to 1 year in Tarrant County jail, large fines, court costs and the suspension of your Texas driver’s license for a period of time ranging from 180 days to 2 years. Also, if your DWI 2nd was committed within 5 years of your DWI (1st offense), your driver’s license can be suspended for a period of time ranging from 1 year to 2 years.

If you receive community supervision (probation) in Tarrant County for your DWI 2nd, you will be required to complete all of the probation conditions of a DWI (1st offense) as well as the following: a minimum of 3 days to 5 days in jail as a condition of your probation, a court-ordered ignition interlock device will be installed and monitored on your vehicle (at your expense) and you will be required to complete a program for repeat DWI offenders.

What Happens if I am Convicted of a Felony DWI (DWI 3rd or more)?

If you have been arrested and charged with a Felony DWI in Fort Worth, Arlington, Mansfield or in the surrounding cities of Tarrant County, Texas law provides that you could face anywhere from 2 years to 10 years in the Texas Department of Corrections (prison), large fines, court costs and the suspension of your Texas driver’s license for a period of time ranging from 180 days to 2 year. Also, if your Felony DWI was committed within 5 years of your DWI (1st or 2nd offense), your driver’s license can be suspended for a period of time ranging from 1 year to 2 years.

If you receive community supervision (probation) in Tarrant County for your Felony DWI, you will be required to complete all of the probation conditions of a DWI (2nd offense) as well as the following: a minimum of 10 days in jail as a condition of your probation.

What Happens if I am Convicted of Intoxication Assault?

If you have been arrested and charged with Intoxication Assault in Fort Worth, Arlington, Mansfield or in the surrounding cities of Tarrant County, Texas law provides that you could face anywhere from 2 years to 10 years in the Texas Department of Corrections (prison), large fines, court costs and the suspension of your Texas driver’s license for a period of time ranging from 90 days to 1 year (if it is your first DWI/alcohol-related offense). However, if your Intoxication Assault conviction was committed within 5 years of a prior DWI – related offense (DWI, DWI 2nd, etc.), your driver’s license can be suspended for 1 year.

If you receive community supervision (probation) in Tarrant County for your Intoxication Assault, you will be required to complete all of the probation conditions of a DWI (1st offense) as well as the following: a minimum of 30 days in Tarrant County jail as a condition of your probation.

Additionally, if it is your 2nd or more Intoxication Assault conviction and you receive community supervision (probation), a court-ordered ignition interlock device will be installed and monitored on your vehicle (at your expense).

What Happens if I am Convicted of Intoxication Manslaughter in Texas?

If you have been arrested and charged with Intoxication Manslaughter in Fort Worth, Arlington, Mansfield or in the surrounding cities of Tarrant County, Texas law provides that you could face anywhere from 2 years to 20 years in the Texas Department of Corrections (prison), large fines, court costs and the suspension of your Texas driver’s license for a period of time ranging from 180 days to 2 years.

If you receive community supervision (probation) in Tarrant County for your Intoxication Manslaughter, you will be required to complete all of the probation conditions of a DWI (1st offense) as well as the following: a minimum of 120 days in Tarrant County jail as a condition of your probation.

What Can A Fort Worth DWI Lawyer Do To Fight My Case?

If you are facing a DWI case in Texas, you need a Fort Worth DWI lawyer that will examine all options to minimize your risk and ensure you receive the best possible outcome. We have been examining the possible DWI punishments if you are convicted but your Fort Worth DWI lawyer should do some of the following to give you the best chance at success:

• Review your DWI reports and compare them to the body and patrol camera footage
• Share the evidence with you to receive your input. You were at the scene and your story matters!
• Determine if there was reasonable suspicion for the traffic stop or investigation
• Review the administration of any field sobriety tests to ensure they were administered according to the required standards of the National Highway Traffic And Safety Administration.
• Determine if probable cause existed for your arrest considering the totality of the circumstances
• Analyze the breath test or blood draw to determine if it was legally obtained and admissible in court.

Schedule a Free Consultation For Your DWI Probation Case in Texas

Additional Criminal Consequences

The punishment that you face for a DWI depends largely on your level of intoxication, the circumstances of the incident (e.g. you have a child in your car or you injure someone), and your prior offenses. Read our post on how multiple DWI penalties in Texas stack up. Here’s a quick rundown of what might happen to you if you are convicted of DWI:

1st DWI (Class B Misdemeanor)

• Jail: 3 – 180 Days
• Fine: Up To $2,000
• Court Costs: Up To $1,500 (Approximate)
• Texas Driver Responsibility Program (Surcharge For License Reinstatement): $1,000 – $2,000
• License Suspension: Up To 1 Year

2nd DWI (Class A Misdemeanor)

• Jail: 30 Days – 1 Year
• Fine: Up To $4,000
• Court Costs: Up To $1,500 (Approximate)
• Texas Driver Responsibility Program (Surcharge For License Reinstatement): $1,500 – $2,000
• License Suspension: Up To 2 Years

3rd DWI (Third Degree Felony)

• Jail: 2 – 10 Years
• Fine: Up To $10,000
• Court Costs: Up To $1,500 (Approximate)
• Texas Driver Responsibility Program (Surcharge For License Reinstatement): $2,000+
• License Suspension: Up To 2 Years

4th DWI (Second Degree Felony)

• Jail: 2 – 20 Years
• Fine: Up To $10,000
• Court Costs: Up To $1,500 (Approximate)
• Texas Driver Responsibility Program (Surcharge For License Reinstatement): $2,000+
• License Suspension: Up To 2 Years

Judges and Prosecutors in Texas have a lot of discretion when it comes to your jail sentence, fine and other punishment. Specifically, depending on your circumstances, you might be granted a more lenient sentence. So, instead of being ordered to serve a lot of time behind bars, you might alternatively be ordered to undergo probation (generally between six months and two years), community service, and completion of a DWI awareness program. Probation generally costs between $50 and $100 per month, and an alcohol education course runs between $100 and $200. To the extent that alcohol-related treatment and rehabilitation is required, then this could cost you thousands of dollars.

You might also have to install an ignition interlock device (IID) on your car. This is used to determine your BAC before you drive your car. Notably, an IID is required as a condition of you being released on bail if you are a repeat DWI offender or you are charged with a felony DWI. An IID costs between $75 and $100 per month excluding the costs of repairs.

Moreover, when you are arrested, the police might have your car towed and impounded. A tow charge runs between $250 and $500 while an impoundment fee runs about $25 per day.

Underage Drivers

If you are under the age of 21, then having any detectible amount of alcohol in your system could result in you being arrested for driving under the influence of alcohol (DUI).

Fines, Community Service

DUI is a Class C misdemeanor that is punishable by a maximum $500 fine in addition to 40 hours of community service and an alcohol awareness program. However, if you have two DUI convictions on your record, then you face a maximum $2,000 fine, 180-day jail sentence and 60 hours of community service. Also, repeat DUI offenders are not eligible for deferred adjudication or deferred disposition.

License Suspension

If your BAC is between .01 and .079, then you will lose your license for 60 to 180 days. If your BAC is between .08 and 0.149, then you are looking at a one-year license suspension. A second offense carries an 18-month suspension, and three or more offenses carry a two-year license suspension.

Aggravated DWI-Related Circumstances

High Blood Alcohol Content

If your BAC is .15 or more, then this constitutes a Class A misdemeanor that is punishable by a maximum $4,000 fine and one-year jail sentence. You will also have to get an ignition interlock system installed on any vehicle that you drive.

Open Container

If you have an open container (e.g. bottle, can) in your car when you are pulled over, then even if your BAC is not over the legal limit, this constitutes a Class C misdemeanor that is punishable by a maximum $500 fine. However, if you are driving while intoxicated and have an open container in your car, then this constitutes a Class B misdemeanor that carries a six-day minimum jail sentence. Drivers face consequences for an open container even if a passenger holds it.

Also, if you have an open container in your car, then this could lead the police to develop probable cause (proper justification) to suspect that you are driving while intoxicated. In other words, an open container alone might be enough for the police to conduct a warrantless search and subject you to both a field sobriety test and a chemical sobriety test.

Moreover, you only need to break the seal on the alcohol container for it to be an open container under Texas law. This means that all of the alcohol could remain in the container but it is still considered an open container. However, you are allowed to have an open container in a motorhome, camper, limousine, Uber, Lyft or taxi as long as you are not operating the vehicle at the time.

Driving While Intoxicated With A Minor In The Car

If you are driving while intoxicated and transporting a passenger who is under the age of 15, then this constitutes a state jail felony that is punishable by a maximum $10,000 fine and two-year jail sentence. Moreover, driving with a minor in the car while you are intoxicated could lead to charges of child endangerment which carries comparable criminal consequences and which may affect your custody rights. Keep in mind that the minor does not have to be injured for you to face criminal charges. However, if the child is injured in your DWI-related accident, then the consequences might be more severe.

Intoxication Assault

If you are driving while intoxicated and you cause an accident in which you seriously injure someone, then this constitutes a third degree felony that is punishable by a maximum $10,000 fine and 10-year jail sentence. Texas law considers a serious bodily injury to be one that causes a high risk of death or which causes someone to be disfigured or to lose functioning of a bodily member or organ.

Depending on the situation, you could face more severe consequences for intoxication assault. Specifically, it is a second degree felony if you seriously injure an EMT or firefighter, and a first degree felony if you seriously injure a judge or police officer while they are carrying out their duties. You also face a second degree felony if you cause anyone else to suffer a traumatic brain injury resulting in their persistent vegetative state.

Intoxication Manslaughter

If you are driving while intoxicated and you cause an accident in which you kill someone, then this constitutes intoxication manslaughter – a second degree felony that is punishable by a maximum $10,000 fine and 20-year jail sentence. However, if you cause the death of a firefighter, EMT, police officer or judge, then this constitutes a first degree felony.

Prior Convictions

If you are facing a third DWI offense and you have been previously incarcerated with Texas Department of Criminal Justice (TDCJ), then this constitutes a second-degree felony that is punishable by a maximum $10,000 fine and 20-year jail sentence. Critically, if this is your fourth offense and you have two prior TDCJ incarcerations on your record, then this constitutes an enhanced felony in which you could potentially be locked up for life.

The Police Ask You To Take A Field Sobriety Test

If the police believe that you are driving while under the influence of alcohol or drugs, then they will typically ask you to take a field sobriety test. Specifically, the field sobriety test consists of three separate tests that are used to determine your impairment.

Horizontal Gaze Nystagmus (HGN) Test

Police typically hold an object such as a flashlight or pen in front of you, and they ask you to follow that object with your eyes as they move it horizontally (back and forth). If there is an involuntary jerking of your eyeball when your eyes gaze to the side, then you will likely fail this test.

Walk-And-Turn Test

Police have you take nine steps along a straight line by touching heel-to-toe. You then turn on one foot, and walk back to the starting point in a straight line by touching heel-to-toe. In this test, the police look for indicators of impairment which could include your lack of balance or inability to follow instructions.

One-Leg-Stand Test

Police have you stand with one foot about six inches off of the ground and have you count until you are told to put your foot down. In this test, the officer examines your balance, so if you are swaying or hopping, you will likely fail the test.

Field Sobriety Test Considerations

Field sobriety tests are notoriously faulty. For example, with an HGN test, there may not be any evidence of your failure of the test besides the officer’s testimony. With a walk-and-turn test, you might fail because you freaked out for being pulled over, not because of intoxication. And with a one-leg-stand test, you might fail because you have bad balance – not because you are drunk. Moreover, if you are administered any of these three tests, you might fail because of your underlying physical or medical health conditions or your use of prescription medications. For this reason, a field sobriety test alone is not necessarily conclusive of your impairment.

Further, field sobriety tests are arguably set up so that you will fail. Chances are, if an officer asks you to take a field sobriety test, then they already want to arrest you and are just trying to get more evidence to justify doing so.

Most importantly, you are not legally required to take a field sobriety test, and taking it could do you more harm than good. But if you refuse to take it when you are asked to do so by the police, then the officer could use your refusal as probable cause to arrest you, and a judge or jury might determine that your refusal to submit to the field sobriety test was due to intoxication. Fortunately, even if you take it and fail, then you could still fight a DWI charge in part based on the lack of reliability of these tests.

The Police Ask You To Take A Chemical Test To Determine Your BAC

After you take a field sobriety test, or after you refuse to take it, the police will probably arrest you for DWI. The next thing that the officer will likely do is ask you to take a breathalyzer or other chemical sobriety test. Specifically, under Texas implied consent law, if you are lawfully arrested, then you must submit to a chemical test so that the police can determine whether you are intoxicated. A lawful arrest means that the police officer has reasonable suspicion to stop you and probable cause to believe that you are driving while under the influence of drugs or alcohol.

Despite having their own potential problems, chemical tests can objectively tell whether you have alcohol or controlled substances in your system. Chemical testing is currently the only scientific way of determining whether your alcohol concentration exceeds state limits. So, if you take a breathalyzer test which shows that your BAC exceeds the legal limit, then you will in all likelihood be charged with DWI. Keep in mind that to be convicted of DWI, the district attorney (prosecutor) who charges you with the offense must prove that you actually operated a vehicle while impaired. The district attorney relies heavily on the results of your chemical test for this purpose.

You Could Possibly Refuse A Chemical Test, But There Are Consequences

Before asking you to take the chemical test, the police officer must warn you that your refusal to take it carries legal consequences. The warning – which is more formally known as a DIC-24 Statutory Warning – could consist of the following statement:

“If you refuse or fail to take this chemical test, then your driving privileges will be immediately suspended, and you will have to pay a fee to have those privileges reinstated.”

If you agree to take the test, then you will typically be asked to confirm your decision through signing a document. You might think that you should refuse the test if you don’t feel drunk. Remember, the chemical test – not your perception of intoxication – is a more objective indicator as to whether you are intoxicated. It is generally not a good idea to refuse the test especially if you are confident that you are not intoxicated.

If you refuse to submit a sample of your blood, breath or urine to the police in connection with a chemical test that is used to determine your level of intoxication, then your license will be suspended for at least 180 days. A subsequent refusal carries a two-year suspension. It is important to remember that you do not even need to be charged with DWI for your license to be suspended based on a refusal. Moreover, your refusal does not prevent you from being charged with DWI.

Additionally, you might not be able to refuse chemical testing. Specifically, the police can physically draw your blood without your consent and without a warrant in limited circumstances including when you are involved in an accident which results in someone’s death. Also, you may have heard about “no refusal” weekends.

Many drivers think that if they are pulled over on a no refusal weekend, then they have to consent to testing. This is untrue. No refusal weekends simply give the police more resources to obtain a search warrant on the spot. If the police get a warrant soon after you have been pulled over, then you have to comply with their orders.

How The Typical DWI Case Proceeds

If you are arrested for a DWI in Texas, then you have to deal with two cases in one. The first concerns your driving privileges (the civil part of your case), and the second concerns the criminal case. We will first examine how the civile part of your case goes:

After Your DWI Arrest

If you have been arrested for DWI or DUI in Fort Worth, Arlington, Mansfield or in the surrounding cities of Tarrant County, you were likely transported to the police department and given statutory forms that required you to immediately decide whether to give a breath or blood test.

Did You Know that Texas Law Implies Your Consent to a DWI Breath or Blood Test?

Under Texas Transportation Code §724.011, if you are arrested for a DWI or BWI (Boating While Intoxicated) you are deemed to have consented “to submit to the taking of one or more specimens of (your) breath or blood for analysis to determine the alcohol concentration or the presence in (your) body of a controlled substance, drug, dangerous drug or other substance.”

Although Texas law presumes that you have consented to a breath or blood test at the time of your DWI arrest, you have the option to refuse to submit to a breath or blood test. However, Texas law punishes you for refusing to submit to a breath or blood test by extending the length of your driver’s license suspension (See DWI Driver’s License Suspension).

The Statutory Warning: DIC-24

After your DWI or DUI arrest, the police officer is required to provide you a written copy of a statutory warning, known as the DIC-24. The DIC-24 statutory warning is a form that informs a person arrested for DWI that they have been arrested for a DWI or DUI and that a breath or blood specimen is being formally requested by law enforcement to determine your alcohol concentration.

Normally, the police officer quickly reads through the DIC-24 while you stand nervously in the corner of the Intoxilyzer room. The police officer will ask you to follow along and quickly inform you of the following:

“If you refuse to give the specimen, that refusal may be admissible in a subsequent prosecution. Your license, permit, or privilege to operate a motor vehicle will be suspended or denied for not less than 180 days, whether or not you are prosecuted for this offense. If you are 21 years of age or older and submit to the taking of a specimen and an analysis of the specimen shows that you have an alcohol concentration of 0.08 or more, your license, permit or privilege to operate a motor vehicle will be suspended for not less than 90 days, whether or not you are subsequently prosecuted for this offense. If you are younger than 21 years of age and have any detectable amount of alcohol in your system, your license, permit or privilege to operate a motor vehicle will be suspended for not less than sixty (60) days. However, if you submit to the taking of a specimen and an analysis of the specimen shows that you have an alcohol concentration of less than 0.08, you may be subject to criminal penalties less severe than those provided for under Chapter 49, Penal Code.”

After being read the preceding information, the police officer will then ask you to give a specimen of your breath or blood. It is the police officer’s choice as to whether to ask you for a breath or blood test.

What if I asked for the help of an attorney or didn’t understand the DIC-24?

You were likely very nervous, upset and possibly emotional as the officer quickly read through the details of the DIC-24 statutory warning. A reasonably educated non-intoxicated Tarrant County citizen could easily be confused by the details of the DIC-24 (considering all of the different suspension periods listed and the legal language used in creating the form). If you were confused or wanted questions answered regarding the content of the DIC-24, it is likely that the police officer only responded by repeatedly asking you whether you would submit or refuse the breath or blood test. If you continued to ask questions and wanted clarification regarding the meaning of the DIC-24, it is likely that the police officer treated your inquiries as a refusal and marked you as a REFUSAL on the DIC-24 form.

Additionally, many Tarrant County citizens that become confused by language in the DIC-24 will ask to speak to an attorney before submitting or refusing to submit to a DWI breath or blood test. Unfortunately, if you ask to speak to a criminal attorney, most Tarrant County police officers have been trained to inform you that you do not have a right to speak to an attorney (which is true but very few citizens know or would assume to be true) and will mark you as a REFUSAL on the DIC-24 form.

Here’s how the criminal case works.

You Are Booked

You are taken to the police station where the police document your personal information. They take your fingerprints and mugshot, and review your record for prior arrests. After this is done, then you are placed in a jail cell. You remain in that cell until you are either taken to court or you post bail.

You Post Bail

Generally, bail is where you provide assurances to the court that you will respond to the criminal accusations against you. Bail consists of bail bonds or personal bonds – both of which require a financial outlay on your end. The bond amount is based on a number of factors including the severity of your circumstances and your criminal record. If you follow the court’s orders, then you will eventually receive the bond amount back less the administrative fee. You will typically be released on low bail after you are booked as long as no one has been hurt or killed.

In nearly all cases, you have a right to have your bond amount set by a magistrate judge within 48 hours of the time that you are arrested; however, it is possible for you to post bail quicker by filing a writ bond or a writ of habeus corpus. Doing this allows you to avoid having to come before a magistrate judge before your bond amount is determined.

A common condition of being released on bail is your agreement to have an ignition interlock device (IID) installed on your vehicle. This type of device, which determines your BAC when you attempt to drive, is required under Texas law for any vehicles that you drive if you have been previously convicted of DWI, are charged with a felony DWI, are involved in a DWI-based accident, or have a BAC that is .15 or higher.

The District Attorney Brings Criminal Charges

The district attorney reviews the report of the police who arrested you for DWI, and determines whether a case should be brought against you. District attorneys bring charges the vast majority of the time in Texas DWI cases.

If you are charged with a misdemeanor, then the charge is called an information; however, if you are charged with a felony, then the charge is called an indictment. Notably, a grand jury determines whether you ought to be indicted.

Although each county is different, it generally takes between 30 and 60 days before the district attorney’s office brings misdemeanor charges. However, it may take months if the district attorney presents your case to a grand jury for a potential indictment.

You Appear In Court

Normally, your first court appearance (also known as a first setting) will take place between 30 and 60 days after your arrest. By this point, the district attorney and the court are notified if you will be represented by an attorney. If you are represented, then the court might already have a letter of representation on file from your attorney. Once your Fort Worth DWI lawyer is designated, they will typically receive all correspondence on your behalf regarding your case.

Another key function is information gathering. Particularly, you and your Fort Worth DWI lawyer go over the charges that the district attorney brings against you. Your attorney can request evidence such as witness statements, videos, police reports, and other documents from the district attorney. If anything is relevant to your case and can be discovered, it typically happens at this point.

Notably, in your first court appearance, you are not going before a judge and making a plea of guilty or not guilty. Rather, the court holds this hearing to make sure that you intend to comply with the requirements of your case.

Generally, at least two more hearings are held in the initial phase of your case. In those appearances, the court determines whether you intend on entering a plea or requesting a trial. Your Fort Worth DWI lawyer might be able to attend these hearings on your behalf. Either way, there may be approximately 30 days in between these hearings. This provides your attorney time to evaluate your case and prepare a plea.

You Might Be Offered A Plea Bargain

District attorneys are in no hurry to offer you a good deal when you have just been charged with DWI. Rather, they want to see that you are punished so that justice is served – according to them. However, some DWI cases are harder to prove than others. The district attorney might not have enough evidence or confidence that you will be found guilty of DWI beyond a reasonable doubt. So, when the case against you is not all that strong, then you might get offered a way out of facing the worst possible punishment.

Plea Bargain or Plea Agreement Defined

A plea bargain (also known as a plea agreement or plea deal) is an arrangement in which you agree to plead guilty to DWI in return for getting a less severe punishment. More criminal charges than not get resolved this way in The Lone Star State. Generally, a plea bargain involves you pleading guilty or no-contest (nolo contendere) to a less severe offense such as a lower level misdemeanor or a misdemeanor instead of a felony. It could also mean getting probation instead of a jail sentence, or at least getting a more lenient jail sentence.

Prosecution Tactics To Force A Plea

District attorneys might charge you with the most serious offense(s) available in order to intimidate you into accepting a plea bargain. For example, if the district attorney could charge you with either a felony or a misdemeanor given the same evidence, then the district attorney might be inclined to charge you with a felony to scare you into making a deal.

Open Pleas

Rather than negotiate with the district attorney, you could aim for an open plea with the judge. This is where, without a district attorney intervening, you plead no contest or guilty to the charges that are brought against you. A significant advantage of an open plea is that the judge decides your sentence and might be more considerate than a district attorney. The judge might analyze your case in a more favorable light, taking certain things into account that a district attorney might overlook.

Pros, Cons Of Taking The Plea Bargain

First of all, with a plea bargain, you typically avoid the worst case scenario of receiving a maximum jail sentence. Unfortunately, even with the best defense, some jury decisions can be hard to predict. The risk of an adverse decision might be more than you are willing or able to endure given your circumstances.

Secondly, by entering into a plea agreement, you avoid your case dragging out for months while your fate hangs in the balance. Trials are often a long, arduous process which can become costly and mentally draining. Finally, a felony is obviously worse than a misdemeanor on your record, so if given the chance to avoid a felony, it could make sense to make a deal.

However, if you take the plea bargain, then you might give up your rights to a jury trial, to confront and cross-examine witnesses, to present a defense, and to appeal your case. Also, it is typically more difficult to appeal a case in which you have voluntarily admitted your guilt instead of having been found guilty by a jury. Moreover, if you plead no contest, then you will be convicted, and this plea could be used against you in a future civil case. Finally, you might face more serious penalties for a future offense by having already pleaded guilty or no contest.

Of course, if you didn’t commit the DWI offense, then accepting a plea bargain can be humiliating since you agree to be found guilty of something. Any criminal conviction might cause you problems when trying to land a job, obtain a lease or loan, or get a professional license.

At any point throughout your DWI case, you can enter a plea of guilty in exchange for a reduced sentence such as probation versus a lengthy jail sentence. However, it is important to ask your attorney to thoroughly review your case to determine if there are valid reasons to continue contesting your charges.

Accepting a plea bargain means that you will not go to trial. Rather, your case will proceed to the plea setting. At this appearance, you enter a formal plea and execute a plea agreement with your district attorney. This could entail your payment of court costs and fines, and your scheduling of probation or a jail sentence.

You Might Qualify For A Pre-Trial Diversion Program

A Texas court is not required to impose a full or even partial jail sentence against you for DWI, and you are not always required to stand trial if you are charged with the offense. Specifically, the court could place you in a pre-trial diversion program (also known as a pre-trial intervention program) if you qualify. Pre-trial diversion programs, which are not plea bargains, are focused on rehabilitation and education instead of punishment. They are meant to empower you to make the right decisions in the future.

Critically, one of the conditions of getting into a pre-trial diversion program is admitting that you are guilty of the DWI. Specifically, you will be asked by the district attorney to sign an affidavit in which you admit that you committed the offense. Also, you’ll have to meet a number of requirements (e.g. drug and alcohol testing, treatment, community service, house arrest, electronic monitoring) or you will be kicked out of the program. As long as you fully comply with all of the requirements, then your affidavit will not be used against you.

Pre-trial diversion programs differ throughout Texas. In Tarrant County, there are a few programs that might apply to you.

Tarrant County DWI Court Program

This program serves repeat misdemeanor DWI offenders. The goal is to help you undergo treatment and avoid committing another offense. Notably, jail time and up to $4,000 in fines are suspended because you will be placed on probation which could include house arrest and electronic monitoring. This program also requires your completion of treatment including AA.

Felony Alcohol Intervention Program (FAIP)

This program serves repeat felony DWI offenders. The program calls for you to receive extensive alcohol-related treatment. If you qualify for this program, then you might be able to receive probation or another alternative to a long prison sentence.

Mental Health Diversion Program (MHDP)

This judicially supervised pre-trial diversion program is meant for those who have mental illnesses. The program’s mission is to provide you with the resources and support to be emotionally stable. Like the other programs, this could allow you to avoid a longer jail sentence.

Veterans Court Diversion Program

This rehabilitation program is for Justice Involved Veterans (JIV) who are facing criminal charges including DWIs. The program provides you with treatment that is judicially supervised. Once you are screened and approved for the program, you start a treatment regimen that addresses your needs.

You Might Take The Case To Trial

Pre-Trial Appearances

If you enter a not guilty plea and stick to it, then your case will proceed to trial, so one of the next steps is pre-trial appearances. These are adversarial proceedings where your Fort Worth DWI lawyer aims to have certain evidence excluded at trial. Specifically, your attorney files a motion to suppress evidence prior to your pre-trial appearance, and the court determines at the proceeding whether the evidence that your attorney seeks to suppress has been obtained by the police in violation of your rights.

Another pre-trial appearance item is for your Fort Worth DWI lawyer to get a court ruling on preliminary issues to cut down the time and costs of litigation. Also, the court determines whether your trial will officially take place on the scheduled date.

If it is not possible for the court to hold your trial on the scheduled date, then it will be reset (postponed) for a future date. You are more likely required to attend trial on your scheduled date if you are still locked up (e.g. you haven’t posted bond).

Initiating The Trial

If your case goes to trial, then that means that you have either refused to accept a plea bargain from the district attorney or you have entered a plea of not guilty. The purpose of the trial is for a jury or judge to determine whether you are guilty of DWI based on the evidence. The district attorney is required to prove that you are guilty beyond a reasonable doubt. You are not required to prove your innocence.

A case that is heard by the judge alone is called a trial before the court (TBC). In this situation, there is no jury who will hear your case. Rather, the judge holds a trial and then decides whether you are guilty. You have the right to a jury trial – and you make the call in this respect.

If your case is decided by a jury, then one of the next steps will be voir dire (jury selection). The court allows your attorney to question possible jurors to determine whether they will be fair and impartial when evaluating your case.

For example, your attorney is unlikely to choose someone as a jury member whose spouse was killed by a drunk driver since that prospective juror will likely have a serious bias against those who are charged with DWI and may not be able to fairly assess your case on the merits. Ultimately, six jurors will be selected for your misdemeanor case, or twelve jurors, if a felony.

After being sworn in, your attorney and the district attorney both make opening statements to the jury to give them an idea as to what evidence (or lack thereof) will be involved.

The District Attorney’s Case-In-Chief

The district attorney presents evidence that they have against you. This typically involves the district attorney bringing your arresting officer to the stand to testify against you. Also, the district attorney may call other witnesses such as those who may have seen you drinking or who were present at the scene which resulted in your DWI charge. In addition, the district attorney generally calls experts to the stand to testify about the significance of the testing methods that were used on you. Other witnesses could include anyone who controlled and maintained the chemical test machine that was used to determine your BAC. Your attorney can question all of these witnesses.

The Defense’s Case-In-Chief

After the district attorney finishes up with their case-in-chief, then your Fort Worth DWI lawyer can begin to present any useful evidence to the jury which casts doubt on the district attorney’s theory of your guilt. Like the district attorney, your attorney can also call witnesses to the stand including those who might have been present at the scene or who may have seen you around the time of your arrest. Moreover, your attorney might utilize expert witnesses who are well versed on the chemical tests that were used to determine your BAC or who are well versed about the unreliability of the field sobriety test that was administered to you. However, some defense attorneys might choose not to present evidence if they believe that it is best for your case.

Also, you have the right to testify in your defense; however, this is generally not a good idea because of how you might incriminate yourself or be viewed unfavorably by the judge or jury. Fortunately, if you opt not to testify, then the court has to instruct the jury not to hold this against you.

The Verdict

Once the district attorney and your Fort Worth DWI lawyer make closing arguments (their last pitches to the jury), then it is time for the judge to read your charges to the jury. The jury is told which law is applicable in your case and which facts the jury is allowed to consider in determining whether you are guilty or not guilty of the offense. Most importantly, the court instructs the jury to come up with a verdict (decision) based on evidence and the law – not their gut feelings.

If all of the jury members agree that you are not guilty, then you should be acquitted.

If you are acquitted, then you will be notified of your right to expunge the DWI charge from your record. In Texas, your attorney has 30 days from the day that the verdict is announced to file an expunction petition and proposed order. If your Fort Worth DWI lawyer files these documents by the deadline, then the judge should sign the order and provide it to any agencies so that the DWI charge can be removed from your record. Also, if the jury determines that you are not guilty, then you can expect not to be further prosecuted.

Alternatively, if some of the jury members believe that you are guilty but others believe that you are innocent, then the court might declare a mistrial resulting in your case being dismissed; however, you might have to face another trial down the road. And if the jury determines that you are guilty, then you will be convicted of the offense and ultimately sentenced.

Your Punishment Is Determined If Convicted

When you are found guilty of DWI, you are not punished on the spot. Instead, your case moves to a punishment phase in which a judge or jury determines what punishment you should receive. It is possible for the judge or jury to review evidence that was unreviewable at your trial – but that could include your prior criminal history.

Notably, as a defendant, you have a choice as to whether the judge or jury determines your fate. Specifically, you could elect to have the judge set the punishment. Most DWI defendants opt for a judge to make the call because the judge’s decision is more predictable. However, this could result in a more severe punishment than a jury hands out.

Is it Legal to Forcibly Draw the Blood of a DWI Suspect in Texas?

Under Texas law, there are circumstances in which a person can be compelled, or forced, to give a sample of their blood.

Texas Transportation Code §724.012. TAKING OF SPECIMEN states:

“(a) One or more specimens of a person’s breath or blood may be taken if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person:

(1) while intoxicated was operating a motor vehicle in a public place, or a watercraft; or

(2) was in violation of Section 106.041, Alcoholic Beverage Code.

(b) A peace officer shall require the taking of a specimen of the person’s breath or blood under any of the following circumstances if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft and the person refuses the officer’s request to submit to the taking of a specimen voluntarily:

(1) the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense and, at the time of the arrest, the officer reasonably believes that as a direct result of the accident:

(A) any individual has died or will die;

(B) an individual other than the person has suffered serious bodily injury; or

(C) an individual other than the person has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment;

(2) the offense for which the officer arrests the person is an offense under Section 49.045, Penal Code; or

(3) at the time of the arrest, the officer possesses or receives reliable information from a credible source that the person:

(A) has been previously convicted of or placed on community supervision for an offense under Section 49.045, 49.07, or 49.08, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections; or

(B) on two or more occasions, has been previously convicted of or placed on community supervision for an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code, or an offense under the laws of another state containing elements substantially similar to the elements of an offense under those sections.

(c) The peace officer shall designate the type of specimen to be taken.”

What If They Served Me With a Warrant For My DWI Blood Test?

If you have been arrested for DWI or DUI in Fort Worth, Arlington, Mansfield or in the surrounding cities of Tarrant County and you were served with a warrant forcing you to give a blood sample it is important to remember that although this may be lawful, the police must follow strict requirements for your blood result to be admissible in court.

Is it Legal for a Search Warrant to be Issued to Draw Blood Without My Consent?

Yes, it is legal for a search warrant to be issued allowing police to forcibly draw blood without your consent. However, the law enforcement officers have to cross their t’s and dot their i’s because they must follow very detailed protocol for the blood draw to remain legal and admissible in court as evidence.

Because a search warrant authorizing law enforcement to compel a sample of your blood is treated as an evidentiary search warrant under the Texas Code of Criminal Procedure Article 18.02(10), police officers must take care to meet the following requirements:

1. a DWI blood search warrant must be signed by a magistrate (not a justice of the peace judge or municipal court judge); and
2. the affidavit accompanying the warrant must sufficiently establish probable cause that you committed the crime of DWI; and that
3. the specific evidence sought to be seized would constitute evidence necessary for the DWI.

How Do the Results of a BAC Blood Test Affect My DWI Case in Texas?

Although Texas courts have held that a DWI blood test result is relevant to the issue of intoxication, it is important to remember that a DWI blood test result does not prove that you were intoxicated at the time of driving. Under Texas law, the prosecution must prove beyond a reasonable doubt that you were intoxicated at the time you were operating your motor vehicle.

A specific blood test result obtained hours after a DWI arrest provides no specific conclusions as to whether or not you were intoxicated at the time you were initially stopped for suspicion of DWI. As a result, prosecutors will attempt to rely upon Retrograde Extrapolation as a means of going back-in-time to determine your blood alcohol level at the time you were driving.

Retrograde Extrapolation to Determine BAC Hours Later

In order for the prosecution to perform the computations necessary to perform Retrograde Extrapolation, they will need certain information that only you could have provided during your interview with the police officers. Texas case law has established the minimum amount of information that would be needed in order to determine your blood alcohol level at the time of driving: weight, time of your last drink, and the period of time you had been drinking.

However, there are other factors that can affect the accuracy of the retrograde extrapolation analysis (ex. How much you had to eat and when you ate it, etc).

If you have been arrested for DWI in Fort Worth, Arlington, Mansfield or in the surrounding cities of Tarrant County, you may have been asked by a police officer to submit to a blood test. Generally, once you have been arrested for DWI by a Tarrant County police officer, the next step for you is to decide whether you should agree to give a sample of your breath or blood to be analyzed.

Your BAC Was Only Above The Legal Limit After You Were Arrested

Another problem with blood tests is that they might have reflected your BAC following the point that you were arrested. If your BAC was under the legal limit when you were arrested but it rose above the legal limit by the time that your BAC was determined, then you could argue that there was a change in your BAC that shouldn’t be held against you. Critically, alcohol is not always fully absorbed in the body at the time of arrest.

You Were Intoxicated Against Your Will

It is also possible that you were drugged or otherwise coerced into drinking something which you did not realize contained a high level of alcohol – or at least an amount which placed you above the legal limit. To the extent that you did not voluntarily become intoxicated, then this could serve as a basis for your acquittal.

Keep in mind that if you knew what you were drinking, and you got drunk, then it is typically no defense to claim that you did not know that you were driving drunk. More specifically, your involuntary intoxication could serve as a defense – not your voluntary toxication (e.g. blacking out).

You Were Told To Take An Unreliable Field Sobriety Test

Field sobriety tests are not always admissible at trial because of how unreliable those tests are. Sometimes the tests are not even used to evidence probable cause. If the district attorney wants to introduce the test in your case, then they must show that the test you took was viable. To do this, there must be clear evidence that the officer administered you the test according to approved standards. The police officer in your case might have caused you to take an unfair roadside test or failed to give you correct instructions. For those reasons, a field sobriety test could be challenged.

Keep in mind that the police do not have the right to search for evidence without your consent unless they have a warrant. Field sobriety tests are a form of searching for evidence. Unfortunately, you may get arrested if you refuse the field sobriety test, but this should not deter you from refusing to take one if you are pulled over. Critically, if an officer asked you to take a field sobriety test, then they probably decided to arrest you and they were just trying to get more evidence of your intoxication. The district attorney might aim to use your field sobriety test results to prove that you were guilty of DWI. But if this test is excluded at trial, the district attorney might have a harder time arguing that you were intoxicated.

You Were Mistreated By The Police

Sometimes police just don’t handle the traffic stop right and things spiral out of control from there. With DWI offenses, the police might not follow the rules, placing you in a really bad spot. You might be threatened, coerced, or intimidated by law enforcement into acting on their demands. Maybe the police don’t like the color of your skin. Before you know it, you could be arrested for DWI for all the wrong reasons. In some cases, police mistreatment can evidence a violation of your rights. So, if the police violated your rights in connection with your DWI charge, then your case should be dismissed.

You Had An Emergency And It Was Necessary For You To Drive

You could defend against a DWI based on there being an emergency that you needed to respond to. For example, your family member might have needed medical attention because they had a heart attack or stroke, and your aim was to get them to the hospital as soon as possible. Alternatively, you might have been responding to a situation in which someone who was elsewhere was in danger and they needed you to pick them up.

You Were Under Duress

You could defend against a DWI charge based on being forced by someone to drive while you were intoxicated. So, if the only reason that you drove while intoxicated was that you believed that you would otherwise be seriously injured or killed by someone, then you could argue that you were under duress.

Destroying The Credibility Of Witnesses

At your trial, the district attorney will rely upon the testimony of your arresting officer and the testimony of other witnesses in order to sell their case against you to the judge or jury. However, your defense attorney might be able to cast a lot of doubt on the credibility of those witnesses.

For example, the police officer might say that your slurred speech served the basis for them to have probable cause to arrest you. But what if you had a speech impediment or other disability which caused you to slur your words. The officer might say that they had probable cause to arrest you based on your visibly red eyes. But what if you had allergies which caused your eyes to get red? The district attorney might put an expert witness on the stand to testify about the validity of the devices which were used to test your BAC, but what if that expert witness is relying upon bad information in drawing a conclusion or opinion about its validity?

The district attorney might depend heavily on bad facts and bad witnesses in arguing that you were driving while intoxicated. Your attorney’s job is to discredit these witnesses to the maximum extent possible. Moreover, your attorney could place witnesses on the stand to testify as to your sobriety at the time of the incident, or could use witnesses who argue that the chemical testing devices did not work properly or that the police mishandled your blood, breath or urine samples.

Disputing Your Driver’s License Suspension

If you provide the police officer with a blood test following your arrest, then you will generally keep your driver’s license until the results of your test are obtained by Texas Department of Public Safety (TxDPS). If TxDPS determines that your BAC was above the legal limit, then you will be issued a notice of suspension / temporary driving permit. You only have 20 days from being mailed this notice to request a hearing to challenge your suspension.

However, if you refuse chemical testing, or a breathalyzer shows that your BAC was above the legal limit, then the police officer might confiscate your license and then issue you a notice of suspension / temporary driving permit. In this case, you only have 15 days from being issued this notice to request a hearing to challenge your suspension. If you do not request a hearing in time, then your license will be suspended on the 40^th day following notice. If you request a suspension, then you will be allowed to drive at least until your hearing.

Will a DWI Affect My Job?

This may leave you questioning whether a DWI will affect your own employment. The answer, unfortunately, is that it depends. If you work in the transportation industry or have a job that exposes you to the public eye, you are more likely to suffer employment consequences.

Particularly important to the context of DWIs is that Texas is an “at-will” employment state. This means that in the absence of an express agreement, such as an employment contract, the employer can terminate the employee for any reason at all, or even for no reason.

In other words, your employer is completely within their rights to fire you for a DWI arrest or conviction, and does not need to provide justification to do so.

DWIs and Background Checks in Texas

The other thing to understand is that a DWI will show up on a criminal background check. Under the Fair Credit Reporting Act, DWI arrests remain on your criminal background for up to seven years. That’s bad. DWI convictions are worse, though – they remain on your criminal record forever.

Generally, federal law prohibits employers from refusing to hire an applicant strictly due to a DWI conviction. However, there are exceptions to this for workers in the nursing, healthcare, childcare, and transportation industries.

Further, even though it is illegal to toss your application expressly for a DWI conviction, it’s all too easy for prospective employers to find “other reasons” not to hire you if you have a DWI on your record.

Your Driving Privileges Are At Stake

When you are arrested for DWI, your license will be suspended unless you challenge this suspension at a hearing and fight the DWI charge. Critically, this requires that you prove that the officer lacked probable cause in arresting you for DWI. This could be incredibly challenging. A skilled DWI attorney can poke holes in the police’s testimony and raise serious questions about whether they had proper justification. Not only that, but even if a conviction appears likely, a skilled DWI attorney will fight to get your license suspension to be as short as possible while helping you obtain limited driving privileges.

A Novice Attorney Might Make Serious Mistakes Pre-Trial

In your criminal case, you’ll likely have to attend a number of hearings. These hearings involve your attorney’s requests for evidence on your case, and involve the resolution of certain contested matters before trial. If your attorney is not familiar with DWI laws or taking cases to trial, then they might not request useful evidence that meaningfully goes towards your defense (e.g. witness statements, police reports, videos). They might have trouble analyzing and presenting evidence for your defense.

You Might Take A Bad Deal

When you are charged with DWI, you’ll likely be presented with a plea bargain by the district attorney which, if accepted, involves you pleading guilty in exchange for a less severe punishment. However, there might be important evidence that points to you not committing the offense. There could be perfectly valid reasons to contest the DWI charge, but your attorney might not know about this if they are not well versed on DWI laws. If you give up too early, then you could end up with harsher consequences than you may receive if you negotiate more vigorously with the district attorney or take your case to trial. A solid DWI lawyer will thoroughly review your case to determine whether a plea bargain is appropriate.

You Might Get Destroyed In Trial

If your case goes to trial, then it is imperative for your attorney to put on the best defense possible so that a judge or jury finds you not guilty. However, this might be a tall order for some attorneys who aren’t used to the courtroom or who don’t know about less common defenses that may be applicable in your case. An unprepared lawyer could ruin your DWI case.

You Might Not Be Able To Afford A Conviction

DWIs can be expensive, and many people cannot afford the financial blow associated with a conviction. You could avoid a financial calamity by having a knowledgeable and experienced DWI attorney fighting your charges whether that be through persuading the district attorney to offer you the best possible deal, or through efficiently and effectively presenting your case at trial in hopes of staving off a conviction. An incompetent attorney can cost you a lot of money in more ways than one.

First, let us get a few basics out of the way and then I will share a story of a former client I represented and how their story may guide you in your pursuit to win your DWI case. Let me first introduce you to Texas DWI laws:

• DWI (Class B Misdemeanor)
• DWI over.15 (Class A Misdemeanor)
• DWI misdemeanor repetition (DWI 2^nd – Class A Misdemeanor)
• DWI with child under 15 years of age (State Jail Felony)
• DWI 3^rd or more (3^rd degree felony)
• Intoxication Assault (3^rd degree felony)
• Intoxication Manslaughter (2^nd degree felony)

Have you been arrested for a Driving While Intoxicated (DWI) in Fort Worth or the surrounding cities of Tarrant County, Texas? Upon being released from jail, it is natural to feel overwhelmed and unsure about what to do next.

We hope you find the material we created in this manual as a helpful guide to making good decisions about your DWI defense.

After going through what you have experienced being arrested, treated like a criminal and being traumatized by your stay at the Tarrant County jail, it is completely normal to feel the way you may feel right now: Fearful and Frustrated.

Afraid you will have to go back to jail. Afraid you may lose your job. Afraid you will have this DWI arrest on your record for the rest of your life.

You may be searching the internet right now trying to get answers and you feel frustrated that you cannot seem to get a complete guide of what will happen and what to expect next.

We have prepared this guide for you to help calm those fears and give you confidence that with the right attorney and the right plan of defense, you can feel confident your worst fears do not have to come to pass.

First, let us get a few basics out of the way and then I will share a story of a former client I represented and how their story may guide you in your pursuit to win your DWI case. Let me first introduce you to Texas DWI laws:

What Will Happen To My Driver’s License? Does My DWI Arrest Affect My License?

The short answer is YES. Brandon and I went through his DWI arrest paperwork and I directed his attention to the “Temporary Driving Permit” paperwork he received.

I told him to look at the fine print at the bottom of the paperwork and he will see where it tells him he has 15 days from the date of his arrest to request an administrative license revocation hearing.

If Brandon failed to make that request within 15 days, his license will be automatically suspended 40 days after the date of his arrest.

Many people arrested for DWI are unaware of this and it is rare that the police officers or the jail staff point this information out.

Brandon was frustrated because no one pointed out that his license would be suspended during his DWI arrest. That led to a discussion of the Texas Implied Consent Law.

Under Texas law, every citizen impliedly consents to give a sample of his or her breath, blood or urine to a police officer if there is probable cause to believe that citizen is driving while intoxicated. Most people, including Brandon, had never heard of this law.

Technically, when the police asked Brandon to give a sample of his breath, blood or urine, if he had consented to this request, his license would still be suspended if his blood alcohol level was .08 or higher.

Brandon informed me that he had refused a DWI breath and blood test.

I explained to him that in order for his license to be suspended, the Texas Department of Public Safety attorney will have to prove that there was reasonable suspicion for the police officer to pull him over and probable cause to arrest him.

Finally, the officer must have read the “Statutory Warning” paperwork to Brandon explaining his rights to accept or refuse a breath or blood test.

If there are any problems proving these elements, Brandon could still avoid his Texas driver’s license from being suspended. Brandon was worried about the worst-case scenario, so he wanted to know,

What Happens If My License Is Suspended Because of My DWI Arrest? Can I Still Drive? How can a Fort Worth DWI attorney help?

Yes! I explained to Brandon that if his license were suspended, we could help him obtain an Occupational Driver’s License (ODL). He would have to obtain SR-22 insurance, a form of high-risk insurance required for a DWI occupational license, and he may be required to install an Ignition Interlock Device as a condition of his occupational license. Quick Tip: If you are required to obtain SR-22 insurance, it is usually best to call a different insurance carrier. If you call your current insurance company, they are likely to increase your rates or cancel your coverage. I explained to Brandon that we would be happy to help him with this process if it becomes necessary, but we hoped to prevail at his hearing so that he keeps his license.

Brandon was ready to get down to the facts of his case. He wanted to know very specifically how his DWI case could be defended. He explained to me that he was pulled over because the officer claimed that his front headlight was not operating, a traffic violation – if true. That brought us to the first point of his defense:

Was their reasonable suspicion for the traffic stop or was it a consensual encounter? A Fort Worth DWI attorney can help you determine legal aspects of your stop by police.

Was this traffic stop that happened with Brandon a legal stop? Did the police have reasonable suspicion to stop him?

I explained to Brandon we needed to review the police reports and compare it to the patrol car videos and body camera videos to see if there was proof beyond a reasonable doubt that Brandon’s front headlight was not operating.

For instance, police officers will sometimes guess that someone is speeding without using a radar or pacing the vehicle. Officer’s must have more than a hunch or guess that they have a basis to stop someone.

There must be reasonable suspicion that a traffic stop has taken place to justify the detention.

If we reviewed the video in Brandon’s case and determined that the headlight appeared to be working properly, it allows us to fight the case on two fronts:

(1) we can file a motion to suppress the evidence based upon an illegal stop and/or

(2) we can also argue that the stop was illegal directly to the jury at a DWI jury trial to receive a not    guilty verdict based solely upon the officer illegally stopping Brandon.

I could tell Brandon was understanding all that l I was sharing with him, but he now had a question about one area he felt the police officers were not fair to him on and that was the Standardized Field Sobriety Tests.

The Officers Made Me Perform Field Sobriety Tests – Do They Matter? Can You Attack Them?

They can matter but yes, we can also attack them.

DWI Field Sobriety Tests are designed to help officers develop probable cause to arrest someone for DWI. These tests become very important if there is not a blood or breath test.

Officers know that without a breath or blood test, they must prove that someone does not have the normal use of their mental or physical faculties by reason of the introduction of alcohol or drugs into their body?

How do they do this? By their opinion of your performance on Field Sobriety Tests.

The tests are promulgated by the National Highway Traffic and Safety Administration (NHTSA) and must be administrated precisely and in accordance with the rules and protocols for administration.

In other words, if the police officers fail to administer the tests properly in accordance with the rules, the test results are unreliable and can be thrown out at court. The first of these tests is:

Horizontal Gaze Nystagmus (HGN) – sometimes people refer to this test as the “pen test.”

The officer uses a pen or stylus and are required to hold it 12 – 15 inches away from the subject’s face and slowly move the stylus back and forth to test for the involuntary jerking of the eyes.

Everyone naturally has nystagmus but if alcohol or a depressant drug is introduced into the body, it can make the nystagmus more visible for testing.

The HGN test is only effective if properly administered.

As a result, it is very important that the police officer administer this test correctly. If the officer fails to strictly follow the rules (for instance, move the pen to quickly or fail to ask the screening questions), the HGN test could be thrown out and not allowed to be used in your DWI trial.

Additionally, you may have a type of nystagmus that is naturally occurring, or caused by a medical issue, that would invalidate the police officer’s opinion that you are intoxicated based upon the HGN test.

Walk and Turn Test – this is a physical test that is designed to determine if you have lost the normal use of your physical faculties because of alcohol or drugs.

The officer is required to give you specific instructions to place one foot in front of the other and stand at attention while he gives you instructions.

What people do not realize is that if they do not stand with one foot in front of the other the entire time, the police officer will mark a strike against them on their Field Sobriety Test Scoring Sheet, thereby using it for intoxication.

Next, the officer will give you instructions that involve you taking 9 steps down a line with “heel touching toe” and then executing a 3-point turn and walking 9 steps back down the line to your original location.

The officer will ask you if you understood the instructions and then he will tell you to begin.

What if you said, “yes” that you understood and then began the test before he said to begin?

He will count an additional strike against you for intoxication and you have now failed the test. Literally, before you have even started walking down the line, you could have failed the test.

Under the scoring system for the Walk and turn test, you only must score 2 “clues” to fail the test.

As you can see from this example, by itself, this walk and turn test does little to show whether someone is intoxicated.

In fact, there can be many reasons people would “fail” this test.

Do you have test anxiety?

Is it possible someone on the side of the road with a police officer barking orders at them would not perform on a physical test as “normally” as they would in a controlled environment without police threatening their freedom if they fail? Of course!

Did the officer fail to show you the test correctly? It happens all the time. Many times, officers will perform a portion of the test as an example of what he wants but then his actions will not match up with his instructions.

Failure to provide clear instructions is the fault of the police officer, not the citizen.

Was it windy outside? Cold? Rainy? Was the test given on a flat surface? These are just a few of the factors that can invalidate the use of a walk and turn test on a DWI arrest.

One Leg Stand Test – this physical test is designed to do exactly what it says: test your ability to hold out one foot for 30 seconds while counting out loud.

The officer is required to explain the instructions of standing with your feet together and hold out one foot while looking down at it (with your hands to your side) and counting out loud to 30 or until told to stop.

Although this test has fewer moving parts than the walk and turn test, it is still critical that the police officer give clear and thorough instructions for this test to be effective.

Additionally, if you start the test too early or fail to count out loud or pause for a question, the officer will mark you as being intoxicated.

Brandon interrupted after I had gone on for a while and asked me, “Can’t people fail these tests for other reasons other than being intoxicated?” Absolutely!

Brandon was right to notice that 2 out of the 3 tests were physical tests that someone could fail for a variety of reasons: recent injury or physical limitation, lack of coordination, scared to death because you are on the side of the road with cars speeding by and a police officer barking orders at you.

How many people have test anxiety? What about testing conditions? What if it is cold outside? What if it is windy? What if the ground is not level where the tests are being performed? There can be a variety of conditions that could affect the officer’s opinion of your performance on a test.

Brandon also seemed frustrated because he felt like the testing sheets the police use are not always fair. I explained to Brandon that his feelings were valid.

Simply because an officer marks you down for a sign of intoxication, it does not mean you were intoxicated. In fact, many times, a review of the police video or body camera can show that Brandon may look perfectly sober but misunderstood the instructions.

Unfortunately, you can fail most of these tests and be completely sober.

I reminded Brandon we needed to look over his videos and pick apart everything the officer did to show Brandon was not intoxicated. I then asked Brandon, “Did you say anything to the officers that night about if you had been drinking or about anything else?”

What Did You Say To The Police? Why Are They Asking?

To Incriminate You!

Although it was too late to do anything about it at that minute, I reminded Brandon that the reason the officers ask him questions during the DWI arrest was to try to obtain information from him to incriminate him and try to make him look guilty in any way possible.

Brandon sounded disappointed while he was talking because he knew he had spoken to the officers when they asked him questions. I told Brandon not to be too hard on himself because he had no idea what his rights were at the time he was under such pressure by the police.

If he had known his rights, he could have politely informed the police officer that he would be happy to assist with any questions the officer had as soon as he had an opportunity to speak to his criminal lawyer.

Officers may tell you that you do not have a right to a criminal attorney at this time but the reality of it is you are not a lawyer or a police officer and you do not know what the right thing is to do so you would only feel comfortable doing anything if you first spoke to a criminal defense lawyer so that you could be informed of your legal rights. One of the questions the officer’s asked Brandon that night was

“What Time Was Your Last Drink?”

Brandon said he expected the police officer to ask him how many drinks he had but he was surprised by this question and did not understand why it mattered.

I explained the police officer’s primary goal was to have him incriminate himself.

However, the police are trained to ask this specific question for a particular reason: they want to take the answer to this question, along with other information, and attempt to “extrapolate” back in time to estimate what your blood alcohol level would have been at the time you were driving.

This confused Brandon and he asked for me to please clarify.

In order to prove Driving While Intoxicated (DWI), you must prove that someone was operating a motor vehicle in a public place while intoxicated.

In other words, the government must prove you were intoxicated at the time of driving, not at the time you gave a breath or blood test. How do they do this? By attempting to gather information from you at the time of the arrest and combine that with the blood alcohol level and equip a toxicologist to take the witness stand and attempt to “extrapolate” back in time with an estimate of intoxication.

Otherwise, it is less accurate to say for sure what your blood alcohol level would have been at the time of driving.

Remember, the state of Texas must prove beyond a reasonable doubt that you were intoxicated AT THE TIME OF DRIVING, not at the time you took a breath or blood test.

Brandon then asked, “how do we attack their attempt at retrograde extrapolation?”

It may all depend upon how long it took for them to draw your blood. If it took 3, 4 or even 5 hours for them to draw your blood, the blood alcohol level becomes less reliable and less of an indicator of your condition at the time of driving.

It may seem strange, but the government’s ability to go back in time and try to get this fuzzy math into evidence depends entirely upon your answer to the question, “What time was your last drink?”

“How Much Did You Have To Drink?”

Brandon informed me that the police asked him this question and he was afraid at what he said because did not remember. Does it matter? Why ask this question?

Well, the main reason the police ask this question is because they want you to admit you were drinking and then they look to see if you give an amount of drinks that will be inconsistent with your blood alcohol level so that the prosecutor can claim you were lying to the police at the scene.

After a short break for Brandon to gather something out of his car, he wanted to talk about what happened when he made it to the police station or jail.

He said he does not remember all the specifics about what happened, but he wanted me to run through the basics of what the police should have done and to make sure his rights were not violated.

Did The Police Take a Sample of Your Breath or Blood?

If NO, it is important to know that the police are compelled by the law to do so by obtaining a warrant from a judge to approve the blood draw. Failure to obtain a breath or blood result turns your arrest into nothing more than an opinion. Nothing more than the subjective opinion of the police officer.

Can be opinions be wrong? Absolutely! In fact, one of the primary elements that must be proven beyond a reasonable doubt at trial is whether or not you had lost the normal use of your mental or physical faculties by reason of the introduction of alcohol into your system.

What is normal for you? What is normal for anyone? I would have to know you well to be able to know what is physically or mentally normal for you. It becomes nothing more than an opinion.

If YES–

Did you consent? If you consented, you more than likely gave a breath test.

There are two ways a blood draw can take place – by consent or by refusing a breath test and the officers seek a search warrant from a judge.

If the police officers obtained a search warrant to draw blood, there are several things that can be done to attack the warrant.

First, you can examine the warrant to see if the officers were sloppy in the preparation of the warrant. Looking at the four corners of the search warrant affidavit, you must have articulated facts sufficient to establish probable cause, not just conclusory statements that prove nothing.

Sometimes officers are not thorough in the search warrant affidavit and fail to be specific and articulate these facts. When this happens, it is possible you could get your blood draw thrown out of court.

Brandon then interrupted me and asked me if there were any other way we could attack the blood draw itself. Absolutely!

I explained that we needed to investigate who drew the blood specimen. Texas law requires that the person who drew the blood be a qualified technician.

If the person who drew the blood does not meet the specific requirements of a qualified technician, the blood draw can be ruled invalid and not useable in court.

Additionally, it is important to examine the lab that tested the blood. Did the lab follow the proper testing protocols in testing the blood?

Were the blood vials properly preserved? Was the integrity of the samples compromised in any way? Was the lab that tested the blood certified?

If there are doubts regarding the reliability of the blood testing, I explained to Brandon that he may be able to retest the blood at another more reputable lab to establish a defense against the Government’s blood samples. Brandon had one final question for me…

How Long Will This Entire DWI Defense Take with a Fort Worth DWI attorney? A Few Months? Longer?

This was an important question because many people have the idea that you show up to your first court date for a DWI in Tarrant County and you will decide to plea or take it to trial in a single court setting. Unfortunately, it does not work that way.

I explained to Brandon that I was a former prosecutor that worked at the Tarrant County District Attorney’s Office for over 5 ½ years and I had a pretty good idea how the prosecutor would be dealing with a DWI case. Normally, prosecutors have a large caseload to manage and have spent very little time on any one case for the first few months after an arrest.

Brandon needed to understand that in order to get the best result on his DWI case, he would likely have to push the prosecutor closer to a trial setting before all the options available to him will be made available.

This requires an aggressive attorney that will push the case as far as it needs to go in order to get the desired result.

I assured Brandon we would be here for him to aggressively push the case as far as it needs to go – even to trial if that is what it takes.

How did this true story end? Brandon took our advice and pushed his case all the way to a trial docket. We thoroughly reviewed his DWI videos and discovered that the basis for the DWI traffic stop was illegal. From the video, it appeared that light was coming from the front lights of his car.

As a result, we argued to the judge and then to the jury that the officer stopped Brandon illegally, requiring Brandon to be found NOT GUILTY.

Brandon was relieved to know that he had been exonerated and was excited to start the process of getting his DWI arrest expunged from his criminal record.

Brandon’s story is not unlike anyone else who has been arrested in Texas for a DWI.

Unfortunately, many people are not provided the information they need in order to make good decisions after their arrest.

We hope this information has clarified how the criminal justice system works, as it relates to DWI cases.

If you have additional questions about your specific circumstances, we want to help you immediately with the answers to those questions.