Being charged with any crime is a very scary experience. Everyone automatically believes that they are going to be sitting in jail for months, possibly even years. It is human nature; the unknown frightens us. This is especially true for DWI offenses. This type of offense, more so than any other, affects all types from folks in suits, to students, teachers, doctors, and even attorneys. For a majority, this will be their only offense ever. This leads many to be nervous about the possible outcomes.
As such, this entry will explain the DWI process from start to finish. The most important aspect to remember is that this is actually two processes combined into one long ordeal. The first is the administrative license revocation (“ALR”), and the second is the actual criminal process. These are explained below.
What is DWI:
Essentially, DWI means operating a motor vehicle while intoxicated from alcohol, drugs, or both. To be intoxicated a driver has either lost control of their mental or physical faculties, or they have a blood alcohol content greater than 0.08. When an officer pulls a driver over on suspicion of DWI, it is unlikely they will be able to determine the blood alcohol content. This is where the administration of Field Sobriety Tests comes into play.
The FSTs are standardized, and are designed to determine whether the driver has lost control of the normal use of their mental or physical faculties. These tests consist of the horizontal gaze nystagmus test – i.e. the eye test, the walk and turn – i.e. walking the line, and the one leg stand. If the driver fails these tests, they get arrested on suspicion of driving while intoxicated. Just a pleasant warning, if you are ever asked to perform FSTs, you are getting arrested. No matter how well you perform the tests.
The aforementioned FSTs control whether a driver will be arrested. As I have already stated, if the officer begins the process of FSTs then you are going to get arrested. Afterwards the officer sets out to verify the DWI through either a breathalyzer or blood test. A breathalyzer test is conducted, most often, in a room at the station. It is video recorded so that everything can be sent to the prosecutor to be used against the driver. The officer will likely have the driver perform the FSTs at the station a second time, and then will administer the breathalyzer. If the driver does not consent to a breathalyzer, the officer will get a warrant for a blood test, the driver will be taken to a local hospital, and blood will be drawn. If the driver refuses to voluntarily provide a breath or blood sample then caselaw requires a warrant to first be obtained. For blood tests, there is no subsequent FSTs like there is for the breathalyzer. Simply a blood draw, and then booking.
At this point an attorney needs to be contacted. Several things are put into motion that require an attorney’s expertise. First, the clock begins to request a hearing for the ALR. That’s right, after arrest for DWI the Texas Department of Public Safety (“DPS”) will begin the process of having the license revoked or suspended. To have a hearing on this matter it is necessary to request one within fifteen (15) days of arrest. If it is not requested in that time period it is waived, and the driver’s license will be suspended without hearing.
(ALR) Administrative License Revocation:
Essentially, DPS cannot just suspend or revoke your license without due process. The ALR proceeding is that due process. It is separate from the criminal process, and can only end with your license being suspended or revoked – there is no jail component. The great thing about the ALR is that it generally happens before the criminal process, and allows for the cross-examination of the arresting officer on the record. This provides invaluable information that we can use during the criminal process. We get to see how the officer will testify, if there are any holes in their version of events, and finally receive a record of the testimony that we can later use for impeachment purposes. Thus, even if the license is suspended, it is not a lost cause and is extremely worthwhile.
The next step after the ALR is to obtain an occupational license. This is only necessary if the license has been suspended via the ALR. An occupational license provides the ability to drive while the actual license is suspended. These are not guaranteed, though many are obtained. It is a process which, again, will require an attorney’s help.
Finally, we reach the part of the process with real consequences. If you are charged with DWI in Texas there is no possibility of receiving a deferred adjudication; only probation or jail time is available. This means that a conviction for DWI is guaranteed. This can be freeing in a way. On the one hand, yes, you will always have a conviction on your record. On the other, however, there is nothing lost by taking the case to trial. Worse case scenario is that the jury comes back guilty at which point in time we can always ask the judge for probation. It is further liberating to know that DWI is really the only offense in which we can stack a jury full of people that have committed the offense, but have just never been caught. This provides a sympathy measure that is not found in other offenses.
Plea bargains, on the other hand, offer several positives over a trial. First and foremost, there is no fear as to the outcome of the case – it’s known because we help define the criteria. Placing the outcome of your case in the hands of six jurors can be nerve wracking. A plea solves this issue by providing probation or simply sitting the jail sentence out. In Tarrant County, a sentence can be straight through, weekends, work release, or labor detail. Many people like this option because it can be over and done with quickly.
Probation for DWI will require certain conditions over a specified length of time – commonly 12-24 months depending upon the circumstances. DWI probation routinely gets talked about in a matter of days over months. For instance, a prosecutor will offer 120/18. What this means is that a sentence for 120 days will be probated for 18 months. Basically, instead of having to sit in jail for 120 days, the individual is released and must report to probation once a month for eighteen months. DWI probation also has standard conditions which include monthly reporting, community service hours, victim impact panel, alcohol awareness courses, and a fine. Certain situations may require more, but it is not often that less will be allowed.
The decision to plead or go to trial should be discussed throughout the pendency of the case. A DWI, in Tarrant County at least, will have 3-4 court settings over the course of several months before a decision is necessary. During this time we will be provided with the evidence the State will attempt to use against the defendant. This includes the police report, the video of the stop and FSTs, the breathalyzer footage – if it is a breath test case, the blood alcohol content levels, and any other evidence in the State’s possession or control. Examining all of this provides insight as to whether we want to try the case or take a plea.
If you have been arrested for a DWI in Tarrant County, contact the DWI defense attorneys at Westfall Sellers today by calling 817-928-4222