Austin DWI Lawyers
- Shefman, Lenore:
If you have been arrested or charged with DUI or DWI you may be able to negotiate court dates, penalties, drivers license suspension time, work related driving privileges, or dismiss the charges entirely depending on the facts and evidence in your case. You only have fifteen days to schedule Administrative License Suspension Hearing following a DWI
Arrest (probable cause) (Miranda)
You have been arrested. Either the officer told you that you were under arrest or placed you in hand cuffs and put you in the police cruiser and took you to the station.
Was the arrest lawful?
If the police officer witnessed you driving in a manner that warranted pulling you over or for some other legal infraction, smelled alcohol on your breath, administered field sobriety tests (or if you refused these tests) a breathalyzer test and were over the legal limit of .08%, you will be or were placed under lawful arrest.
-The officer must have witnessed your violation of the law. -The officer must have had probably cause to stop and detain you.
The significance of an arrest being lawful is the officers observing and protecting your constitutional rights.
Was the Miranda warning read?
The U.S. Constitution provides in the Fifth Amendment the following:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation." The Fifth Amendment was interpreted in a U.S. Supreme Court case, Miranda v. Arizona (1966) 384 U.S. 436.
The Miranda court held, once in police custody, you must be told, in order to protect your rights, the following:
1. You have the RIGHT TO REMAIN SILENT 2. ANYTHING you say CAN AND WILL BE USED AGAINST YOU in a court of law 3. You have the RIGHT TO AN ATTORNEY 4. If you cannot AFFORD an ATTORNEY, ONE WILL BE APPOINTED FOR YOU.
The police begin by questioning you and this usually takes place prior to arrest. Any answers you have provided to the police will be considered voluntarily given. Until you have been placed under arrest Miranda rights are not invoked. If once you have been placed under arrest without the reading of your Miranda rights, your statements are considered involuntary and may be thrown out of the case.
Booking
Those who arrested for driving while intoxicated (DWI) or driving under the influence (DUI) are booked. You may not have been booked at the time of your arrest. You know you have been booked when they have fingerprinted you, taken your photo, searched you, confiscated your property and put you in a holding cell. * The police may require you to get booked prior to your first court date (the arraignment).
Bail
This is an assurance to the court that you will appear for your hearings. If you fail to appear, you will forfeit your bail. This amount of your bail is set by a bail schedule and is based on your violation. The more serious the crime the greater the bail. Also, a past criminal conviction will likely increase the bail amount.
Bail Bonds
These are basically loans provided by bail bondsman. Posting bond usually requires ten percent of the bail amount. However, many bail bondsman will charge a lesser amount if you are represented by an attorney.
If you do not appear at one of the scheduled court hearings, your bail will be revoked and the bondsman will be responsible for paying the full amount of the bail.
Arraignment
Hopefully by this stage you have an attorney to represent you. Remember a DWI stays on your record forever. Generally what will happen at an arraignment: your name will be called, the charges against you will be read, and if you do not have an attorney the court will either appoint you an attorney or provide you with a public defender (if your county has them). This right is assured by the Sixth Amendment of the U.S. Constitution. You will be asked to plead either guilty, not guilty, or no contest. If you do not plea your case, accept what the prosecutor is offering, your case will be set for a preliminary hearing. Now you are on your way to trial. Trial is scarey and some lawyers are as scared as you are. Make sure your DWI lawyer is not afraid to try your case. If you have a shot at winning at trial, take it. The penalties for a second DWI offense are worse than the first and the costs skyrocket.
Plea
Sometimes referred to as a plea bargain. First time DUI and DWI offenders without any other circumstances surrounding the arrest, and without the benefit of DWI counsel will get hit with a $1000 a year fine for three years, have to attend counseling for drugs and/or alcohol, pay for probation costs, occupational license fees, drug testing, SR-22 insurance, etc. etc. If you think a DWI lawyer is expensive, think again, the costs of a first time DWI will most often far exceed the cost of counsel.
With a good attorney and when there are issues with probable cause for your arrest, the arrest, weak evidence based on the breath, blood tests and/or the protection of your constitutional rights will you likely get a dismissal, a decent plea agreement or acquittal. If any of the above exist, make sure you speak with an experienced DWI attorney and receive advice as to how to proceed, you may want to try the case. Having a DUI or DWI on your record is permanent. Also, with an experienced DWI lawyer you may be able to negotiate a lesser charge than a jury might find you guilty of in a trial for DWI. The lesser charge will be in exchange for a guilty plea on the lesser charge.
Administrative License Review Hearing
This is not the actual trial but it is where evidence is evaluated to determine whether there was probable cause for the stop. In this hearing you are arguing to keep your license. You will be able to question the police officer as to probably cause for the stop, the breath test technical supervisor, the technician that took your blood. The outcome of this hearing will determine whether you maintain your license or have to apply for an occupational license.
Pre-Trial Motions
Pre-trial motions help focus the parameters of the case at trial. If evidence can be excluded based on illegal search and seizure, faulty tests such as non-calibrated breathalyzer tests, or in violation of your 5th Amendment or 6th Amendment rights, this is where it is argued to be excluded.
Trial
In order for the prosecution to obtain a conviction it must be proved beyond a reasonable doubt to the jury. There is never a presumption that you are guilty that you have to overcome and the jury should be told this by your DWI attorney. The only presumption in a DWI trial is the presumption of your innocence.
Expungement
Expungement may or may not be an option for you. It depends on the requirements of your jurisdiction. Many jurisdictions do not allow for expungement. In Texas you can expunge your record if your case was dismissed or if you were acquitted by a jury. There are certain other situations in which you can expunge your record, contact a DWI or DUI defense lawyer to discuss the specifics of your case.
In California, depending on the conviction type, misdemeanor, or felony, and if all of the conditions of sentencing and post-sentencing probation requirements have been met, or the probation was discharged, or within the Court (Judge's) discretion. If the person seeking expungement is not incarcerated for another crime and/or on probation for any other offense and/or charged with any other crimes, then s/he may be permitted by the Court to withdraw the earlier plea of guilty or no contest (nolo contendere) and enter a plea of not guilty. If the person seeking the expungement went to trial and was convicted by a jury, the Court will set aside the guilty verdict. Following an expungement, the State still requires complete disclosure of the prior conviction upon direct question in application, or questionnaire for public office, for licensure by the state or local agency, or for contracting with the California State Lottery. Following expungement the defendant is
- John Yeager:
The number of defendants processed in the criminal justice system has grown substantially during the past 10 years. At the same time, the types of crimes prosecuted have dramatically shifted.
Today, the complexities of the legal system require defense attorneys who deeply understand the system and do more than legal research and argue before court.
- Sablatura Williams:
Fight your DWI to the last breath.Ê A guilty verdict at jury trial is the same as a no contest plea bargain.Ê Always, always, always fight - the consequences are too high.
- Jamie Spencer:
Austin
Police Department's DWI Enforcement Unit (Task Force) was created in
1998. Since then, DWI arrests in Austin, Texas have more than doubled.
- Mike Parr:
Defendants often go to trial without having anyone testify for them.
This strategy allows the defendant's lawyer to focus on cross-examining
the prosecution witnesses in order to poke holes in the prosecutor's
case -- thereby creating reasonable doubt. Defense attorneys rely on a
variety of arguments to discredit the prosecutor's witnesses. Some
common arguments include:
-
Prosecution witnesses are biased against the defendant and therefore are lying or grossly exaggerating.
-
Prosecution
witnesses are mistaken in their observations because the lighting was
bad, they were under the influence of drugs or alcohol or they were too
far away.
-
Evidence
from police laboratories is unreliable because the machines were not
properly maintained or the technicians were not properly trained.
-
Prosecution
witnesses are lying to get a good deal on the criminal charges they
themselves are facing (witnesses are often criminals who have been
offered a deal if they testify against the defendant).
- Tom O'Leary:
Everyone arrested for DWI will be taken to jail at the time of arrest.
However, in most cases, a person accused of Driving While Intoxicated,
will not be sentenced to jail even if convicted of the crime. Each case
is different and many factors are involved concerning jail time;
however, for a typical first time DWI in Austin, Texas, and most
Counties in Texas, going to jail is not the normal sentence if
convicted.
- Bennie Ray:
The law in Texas provides that persons stopped for DWI initially do not
have the right to an attorney. In fact, you don't have a right to speak
to a lawyer until after the initial investigation on the street is
complete and you have been taken to jail. Most citizens do not
understand that after their arrest, they are not entitled to speak to a
lawyer when confronted with the decision of taking or refusing a blood,
breath or urine test. Keep in mind, however, that it may still be a
good idea to request a lawyer when you are first stopped by the police.
This is because some police officers will let you call a lawyer prior
to having the right to do so.
- Ross, Melton, Denosky & Balcezak:
criminal practice is limited exclusively to DWI defense... ...provides discreet, professional representation for our clients who are accused of driving under the influence.
- Scott Smith
The reliability of the instruments used to measure breath specimens to
determine body alcohol concentration is doubtful. While state-paid
experts routinely testify that the Intoxilizer 5000 is accurate and
reliable, several independent experts have expressed contrary opinions.
Consequently, the results may be inaccurately high or inaccurately low.
- Paxton Law Firm:
It is important that you retain a lawyer with experience in the defense
of Driving While Intoxicated to protect all of your rights! It is
possible to obtain a dismissal of your case, have your case pled to a
lesser charge than DWI or even win your case at trial. Being arrested
for Driving While Intoxicated can be a very frightening and frustrating
experience. Often, the person arrested for Driving While Intoxicated
has no prior contacts with the criminal justice system (i.e. they have
never been arrested before). Driving While Intoxicated is a crime that
can affect any member of society, regardless of socio-economic, racial
or religious background. DWI is also one of the only crimes in the
State of Texas where a police officer can arrest you based solely on
his opinion.
- Ross Melton Denosky and Balcezak:
When faced with a DWI, you face serious repercussions. Depending on the
severity and the number of offenses, you could lose your license, spend
time in jail, face thousands of dollars in fines, and, if convicted,
the offense goes on your permanent record.
- Omar Saman:
Administrative License Revocation:
To preserve your right to drive in Texas, you must request a hearing
within 15 days of when you were served with a Notice of Suspension
(usually the date of arrest) otherwise your license will be suspended
for a period of time specified by DPS. However, if you timely request a
hearing to contest your license suspension, you will be able to
continue driving until the day of the hearing. If you lose at the
hearing, you cannot drive after the hearing.
It is beneficial to request the officer's presence at the hearing so we
may learn his testimony before the District Attorney coaches him.
Crucial defenses can be developed at the hearing. If your license is
suspended at the hearing, you may be able to secure an occupational
license to drive.
1st Appearance:
If you have been arrested and released for a misdemeanor DWI, you will
be given a date to return to court (usually within 30 days after your
arrest). During this 30-day period, the case is sent to the District
Attorney's office for further investigation. The District Attorney then
prepares the information and files this with the County Clerk, and your
case is set on the court's docket. At this appearance you attorney will
be able to review the police report and any evidence the State may have
against you.
Pre-trial Conference:
Your attorney will discuss your case with the District Attorney to
negotiate the best possible resolution of your case. This conference
will happen about 6 weeks after your 1st Appearance date.
Suppression Hearing:
The Court may suppress some or all of the evidence against you if your
constitutional rights have been violated. Your attorney will file
motions to suppress. This hearing occurs anywhere from 6 weeks to 3
months after the pre-trial conference.
Trial:
You may either request a bench trial wherein the court hears the case
or a jury trial wherein a jury of your peers hears the case. If the
case is a misdemeanor, the trial will be to a jury of six. If the case
is a felony, the trial will be to a jury of twelve.
Sentencing:
The Court imposes a sentence after a conviction at trial or after a
plea bargain is accepted and a plea is entered. Sentences may include
jail time, numerous fees, fines, community service and/or alcohol
classes. - Joseph Stokes:
Being accused of a crime and having a government attorney prosecuting
you is often a difficult and troubling situation. Therefore, it is
important to make sure that you have a competent attorney looking out
for you if you are in this situation.
- Gary Taylor:
The U.S. Supreme Court has generally interpreted the Fourth Amendment
prohibition against "unreasonable searches and seizures" to impose a
warrant requirement upon police officers who wish to perform a valid
search or arrest. However, the Court has carved out some exceptions to
the warrant requirement, which make certain "seizures" constitutionally
permissible in the absence of a warrant.
- Jason Trumpler:
The following are some general guidelines to assist you if you are ever pulled over in
Texas after drinking before driving. This being said, the easiest way to avoid having
problems in the first place is to be responsible. If you drink, do not drink to excess. If you
drink, DO NOT DRIVE.
In my experience, the vast majority of police reports, whether DWI related or something
else, generally start out with someone who has consumed too much alcohol or some other
illicit substance. (It goes without saying that you should avoid all activities and
substances that are illegal by their very nature.)
I know cabs can be difficult to find and expensive on busy nights. That being said, the
price you pay in both time and money for a cab is far better than the attorney's fees, court
fines and fees, and a potential jail sentence.
If you do make the decision to drive after consuming alcohol, you can use the following 8
tips to reduce your chances of being convicted of DUI/DWI in Texas.
1. When questioned for DWI or drunk driving before arrest, you are not in custody for
purposes of Miranda warnings. If you politely refuse to answer any of the police officer's
questions concerning the DWI investigation, either before or after arrest, then there will
not be any statements that can be used against you in court. Even seemingly innocuous
questions can be used by the prosecution to assist them in convicting you of DWI.
2. Field Sobriety Tests (FSTs) are completely voluntary. If you have been drinking,
whether you perform the FSTs or not you will probably be arrested. It is probably better
not to give the police evidence that will be used against you in court. You can politely
refuse to do FSTs.
3. In Texas, if you refuse a chemical test on a first offense, you will lose your license for
180 days (rather than 90 days on a non-refusal). Plus, you are still eligible for an
occupational license. As such, if you are in Texas, I would advise you not to complete a
post arrest chemical test. While search warrants to force blood are becoming more
common, they are still not the norm.
4. Contact a friend or relative from jail as soon as possible so they can hear you speak
and note your state of sobriety.
5. Always be polite and respectful to the police officers. How you are perceived by a jury
is extremely critical.
6. Most jurisdictions video the arrest, breath testing and/or booking process. Always be
on your best behavior.
7. Make a detailed list of all the events before being stopped up to and including being
released from custody.
8. Retain an experienced DUI / DWI drunk driving defense attorney to represent you.
Only an experienced DUI/DWI defense attorney is able to spot your favorable issues and
present them to a prosecutor, judge or jury.
Remember, the best way to avoid a DUI or drunk driving conviction is to not drink and
drive. Purchasing a portable breath test machine can also be of benefit. Unfortunately, the
way our laws are going even if you've had a small amount of alcohol and you are not
impaired, as long as you smell like alcohol your chances of being arrested are very high.
However, being arrested for DWI does not automatically result in a conviction or loss of
your driver's license. The above tips are designed to provide accurate and authoritative
information. They are not designed to render legal opinions.
- Vasquez Law Firm:
If you have been charged with a crime, do not talk to the police ... Do
not be bullied by the State. Hire a criminal defense attorney with the
knowledge and skill to face them head on.
-
Jeremiah Williams:
Why FSTs are Vodoo
HGN
Nystagmus
can be caused by problems in an individual's inner ear labyrinth. In
fact, irrigating the ears with warm water or cold water...is a source
of error. Physiological problems such as certain kinds of diseases may
also result in gaze nystagmus. Influenza, streptococcus infections,
vertigo, measles, syphilis, arteriosclerosis, muscular dystrophy,
multiple sclerosis, Korsakoff's Syndrome, brain hemorrhage, epilepsy,
and other psychogenic disorders all have been shown to cause nystagmus.
Furthermore, conditions such as hypertension, motion sickness,
sunstroke, eyestrain, eye muscle fatigue, glaucoma, and changes in
atmospheric pressure may result in gaze nystagmus. The consumption of
common substances such as caffeine, nicotine, or aspirin also lead to
nystagmus almost identical to that caused by alcohol consumption.
(Quoting Pangman, Horizontal Gaze Nystagmus: Voodoo Science, 2 DWI J. 1, 3-4 [1987]; State v. Witte, 251 Kan. 313, 326, 836 P.2d 1110, 1119 (1992).
Also, as stated above, the officer must perform the HGN test by the book..
- If the officer is off a few seconds here or there;
- If lights are flashing in your eyes;
- If you've ever had a head injury;
- If you've ever had eye problems;
- If you're wearing contacts;
- If you're epileptic;
- If if if...
the test should be thrown out!
There are numerous, complicated factors into the HGN test - many opportunities for mistakes!
Walk & Turn and One Leg Stand:
Try these next two tests in your living room, completely sober.
Officers
will testify that everyone should be able to adequately perform the
walk and turn and one leg stand. However, the National Highway
Traffic Safety Administration, through their extensive research, has
acknowledges that:
- sober people have difficulty with balance;
- these tests lose their sensitivity if repeated;
- leg problems can affect these tests;
- back problems can affect these tests;
- middle ear problems can affect these tests;
- weight can affect the tests;
- age can affect the tests;
- footwear can affect theses tests; and
- weather conditions can affect the tests.
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Can I refuse FSTs?
Generally, the only evidence of intoxication a jury will see is the video of you doing field sobriety tests.
You have an absolute right to:
-
Refuse any test asked of you - including Field Sobriety Tests
-
Refuse any breath or blood test
-
Refuse to answer any questions - at any time!
- Travis
Willaimson: DUI is shorthand for "Driving Under the Influence." A
person is guilty of DUI if he or she drives or is in actual physical
control of a motor vehicle and is under the influence of alcoholic
beverages or any chemical or controlled substance to the extent that
his or her mental faculties are impaired or when his or her blood
alcohol level (BAC) is above the legal limit for the state.
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