Gray Law Firm:
If you have been arrested
for Driving While Intoxicated, the first thing you should
keep in mind is that YOU NEED TO TRY TO SAVE YOUR DRIVER’S
LICENSE. The only way to do this is by requesting a hearing
within 15 days of the date you were given notice that
your license would be suspended. Usually you are notified
at the time of your arrest.
At the hearing, the government will need
to prove the following:
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The
officer had reasonable suspicion to pull you over
or probable cause to arrest you.
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That the officer
had probable cause that you were driving or in control
of the vehicle in a public place while intoxicated.
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That the driver
was placed under arrest and was offered an opportunity
to give a specimen of his breath or blood after
being notified of the consequences of refusing or
failing a breath or blood test.
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The driver refused
to give a specimen or the driver failed the breath
or blood test.
If the government prevails on a case where
the breath or blood test was refused by the accused, and
the accused has not had any prior alcohol or drug related
legal problems for the 10 years preceding the arrest,
the license is suspended for 180 days. If the government
prevails in a case where the accused took a breath or
blood test, and the accused has not had any prior alcohol
or drug related legal problems for the 10 years preceding
the arrest, the license is suspended for 90 days. If your
license is suspended, you may be eligible for an occupational
driver’s license to allow to drive to and from work.
The Gray Law Firm, P.L.L.C. can represent you in obtaining
an occupational driver’s license.
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I just had a drink or two over the course of the evening. Am I really guilty of DWI?
Remember, you are presumed innocent until
proven guilty, beyond a reasonable doubt. The government
must prove basically the following facts with regards
to DWI, as well as others: (1) you were operating a motor
vehicle; (2) in a public place; (3) while intoxicated
due to the introduction of alcohol, controlled substance,
or dangerous drug into your body; and (4) you did not
have the normal use of your mental and/or physical faculties,
or you had a Blood Alcohol Concentration over .08 (legal
limit). (Note that “drunk” and intoxicated
do not mean the same thing. Someone may be intoxicated
under the legal definition, but not visibly drunk to others.)
If the government fails to prove any one of these elements,
you should be found not guilty. It’s the government’s
burden of proof.
The amount of alcohol needed to cause
intoxication varies from person to person. It also depends
over what period of time you consumed the alcohol, how
much you consumed, whether or not you were also taking
medication that might affect your mental and/or physical
faculties, as well as other factors. In order to help
prepare for your defense, you need to keep receipts of
how much you drank over the course of the day, recall
who may have been with you that could testify for you
on your behalf, and note how much you had to eat, as well
as other factors. The attorney you hire to represent you
should ask you these very basic questions, as well as
where were you pulled over, so he or she can investigate
if the area was suitable for the officer to conduct field
sobriety tests.
Just because you drank alcohol does not
mean that you were driving while intoxicated.
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The
officer said I failed the field sobriety tests.
Do I have a chance?
Yes! Remember, it is the government’s
burden to prove you guilty, not your burden to prove your
innocence. The officer will have to prove to the judge
or jury that he or she performed the field sobriety tests
in accordance with the accepted methodology for administering
the test. One of the tests is the Horizontal Gaze Nystagmus
Test (HGN) commonly known as the “pen test”.
It is required that the officer be certified in administering
this test. If he or she is not, then the test result may
not be admissible. There will be other factors to consider
regarding the tests, such as: (1) were they given on a
flat, level surface; (2) were you wearing shoes with heels;
(3) do you have a medical condition that may affect the
outcome of the test; (4) what was the lighting; and (5)
were they administered on the side of a busy roadway.
These are just a few of the possible factors that may
create reasonable doubt.
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I submitted to a breath or blood test and the result
was over a .08. Why fight it?
There are several reasons to fight even
if your test result was over a .08. Remember, the test
was performed by a human being (and humans make mistakes),
and it was recorded and processed by a machine (machines
have to be maintained correctly, and they wear out just
like other machines). It will be the governmentÕs burden
to prove that everything was on the Òup and upÓ with the
breath test machine or that the proper procedures were
followed with a blood test. Also, your body metabolizes
(processes) alcohol at a certain rate. Just because you
were over the legal limit 90 minutes after you were arrested
does not necessarily mean that you were over the legal
limit at the time you were operating a motor vehicle.
Remember, the government must prove, beyond a reasonable
doubt, that you were intoxicated when you were operating
a motor vehicle.
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If
I am found “not guilty”, or my case
is dismissed, will it still be on my record?
In general, under Texas law, there are
certain instances where you can have your record “expunged”.
That means that all records of your arrest will be destroyed,
and your record will not reflect the arrest. This remedy
is not available in all circumstances. However, if The
Gray Law Firm, P.L.L.C. represents you in a criminal matter
and obtains an acquittal or dismissal, it will attempt
to expunge your record free of charge, if it is legally
possible. The only cost you will pay will be the filing
fee and costs. Most lawyers will charge you an additional
fee for this service. However, when you hire a lawyer
to fight for justice, you expect them to go all the way.
It is our belief that you don’t stop with the acquittal
or dismissal; you take it all the way. We try to get our
client’s record back to where it was before he or
she was arrested, if possible.
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What is the range of punishment?
In Texas, the first time someone is convicted
of DWI, the offense is a Class B Misdemeanor. There is
a fine not to exceed $2,000.00. Confinement is in the
County Jail for a term not less than 72 hours and not
more than 180 days. If there was an open container, the
minimum term of confinement is 6 days. In most cases,
the term of confinement is probated. There will however
be several terms and conditions you will be required to
follow while on probation, including but not limited to
an alcohol assessment, community service, DWI Education
class, and a Victim Impact Panel, just to name a few.
It is imperative that if you are placed on probation that
you understand the full terms of your probation.
For the second offense, it is a Class
A Misdemeanor. You will be required to put a deep lung
device on your car if you are released on bond. You will
be required to give a breath sample prior to starting
your car. The range of punishment is a fine not to exceed
$4,000.00, and confinement in the County Jail not less
than 72 hours or more than 1 year. If the confinement
is probated, there will be additional terms of probations
than listed above, and you will be required to have a
deep lung device on your automobile.
The third (or more) offense is a third
degree felony with a fine not to exceed $10,000.00 and
confinement in the Texas Department of Criminal Justice,
Institutional Division not less than two years nor more
than 10 years. This may be probated. The terms of probation
will obviously be more stringent than a DWI first or DWI
second.
It should also be noted that the term
of the driving license suspension will be different, depending
on the number of DWIs you have had in the past. Before
you make any decisions regarding your case, make sure
you are fully educated on the range of punishment and
the terms of probation that you may be ordered to follow.
Sindhu Stoval:
Texas DWI Law
Unfortunately we
probably all know someone that has been arrested for DWI. On any given
Saturday night. the number of DWI arrests in Dallas alone is
astronomical. This number continues to increase as law enforcement
“targets” areas which contain a lot of bars and clubs such as
Greenville Avenue and Uptown.
Although a DWI is a
Misdemeanor offense, Prosecutors often handle them as if they were a
serious felony offense by refusing to negotiate a reasonable plea
bargain. In addition the Texas Legislature has opted to “punish” those
who are convicted of DWI by requiring payment of a “surcharge” each
year to DPS to maintain your license. (This surcharge starts at
$1000.00 per year for 3 years and can be increased under certain
circumstances)
If you live in Texas and are convicted
of DWI, in addition to facing the criminal and financial consequences,
you also face the possibility of losing your drivers license for a
period of time.
With so much to lose you need an
experienced and aggressive lawyer who Is a specialist when it comes to
successful DWI representation.
DWI FAQ
AM I REQUIRED TO TAKE FIELD SOBRIETY TESTS?
ABSOLUTELY NOT! Thanks to our forefathers we have the fundamental right
not to be forced to give evidence against ourselves. However, the
officer is not required to tell you this and often times will not give
you the option to refuse. Keep in mind that refusing to perform the
tests will most likely get you arrested but at least there won’t be
anything to use against you.
DO I HAVE TO GIVE A BREATH/BLOOD SAMPLE?
AGAIN- ABSOLUTELY NOT! However refusing to give a sample can result in the following penalties:
A 180-day suspension of your drivers license if this is your first DWI arrest,
The refusal can be used as evidence of guilt against you in trial
WHAT HAPPENS IF I TAKE THE BREATH TEST AND FAIL?
If you take the test and fail, you could face:
A 90 day suspension of your drivers license if your driving record shows no prior alcohol related arrests
The test result can be used against you as evidence of guilt in your trial
HOW LONG DOES A DWI CONVICTION STAY ON MY RECORD?
FOREVER! Which makes it extremely important to make sure you have an
experienced DWI trial lawyer working for you. If you are found Not
Guilty, you can have the arrest and DWI charge "expunged" from your
record, which means there is literally no evidence it ever happened.
Many employers will not hire someone with a DWI conviction so be choosy
about who represents you.
WILL A DWI CONVICTION AFFECT MY INSURANCE?
A DWI conviction can cause your rates to skyrocket! On the other hand,
your insurance company may drop you from coverage, forcing you to find
new insurance.
WHAT IS THE LEGAL DEFINITION OF INTOXICATION?
The legal definition of intoxication in Texas is:
• Not having the normal use of mental faculties by reason of the
introduction of alcohol, a controlled substance, a drug, a dangerous
drug, a combination of two or more of those substances, or any other
substances into the body; OR
• Not having the normal use of physical faculties by reason of the
introduction of alcohol, a controlled substance, a drug, a dangerous
drug, a combination of two or more of those substances, or any other
substances into the body; OR
• having an alcohol concentration of 0.08 or more.
It is important to understand that the Prosecutor only needs to prove
one of the three ways in order to obtain a conviction. Even though most
people talk about "drunk driving" (i.e. friends don't let friends drive
drunk), a person does not necessarily have to be drunk to be
intoxicated.
ALR-FAQ
WHAT IS AN ALR HEARING AND WHY DO I NEED ONE?
An ALR hearing (Administrative License Review) gives you the chance to
prevent your driver’s license from being suspended. This hearing must
be requested within 15 days of you arrest or it is waived and your
license is automatically suspended. In addition to saving your license,
the ALR hearing is a valuable tool for obtaining discovery about your
DWI case and can help in getting your case reduced or dismissed.
IF MY LICENSE IS SUSPENDED CAN I STILL DRIVE?
NO! UNLESS YOU HAVE AN OCCUPATIONAL DRIVERS LICENSE (ODL). This license
permits you to drive during a 12-hour period of time each day, and is
subject to restrictions. Without the ODL, if you are caught driving you
will be charged with “Driving While License Suspended" (DWLS) which is
also a Class "B" Misdemeanor with a range of punishment from 3-180 days
in jail and/or $100-$500 fine for each violation.
ADDITIONAL BENEFITS OF THE ALR HEARING
If you have your DWI trial before the ALR and you are found Not Guilty,
your license will not be suspended. If you lose the ALR and your
license is suspended, and you are found Not Guilty in your DWI trial,
you can have your driving privilege immediately reinstated and the
suspension removed from your driving record, no matter how long the
suspension period.
WHAT ARE THE PENALTIES FOR DWI?
A
DWI, can either be a misdemeanor or a felony depending on the number of
prior convictions a person has and when those convictions occurred.
Generally:
1st
offense: (Class B Misdemeanor) conviction includes a fine not to
exceed $2,000.00 and/or the possibility of serving jail time from 3
days to 180 days, and possible driver’s license suspension of 90 to 365
days.
DWI with an open alcohol container (1st
offense): In addition to the penalty referenced above you face a
minimum 6 days in jail
2nd offense: (Class A Misdemeanor) the maximum fine increases to
$4,000.00 and/or jail from 30 days to one year, and a possible driver’s
license suspension ranging from 180 days to 2 years.
3rd
offense: (3rd Degree Felony) A conviction carries a punishment
range of 2-10 years imprisonment and an optional fine up to $10,000.00
and possible suspension of your driver’s license ranging from 180 days
up to 2 years
Felony DWI offenses involving accidents:
Intoxication Assault: (3rd Degree Felony) A conviction carries a
punishment range of 2-10 years imprisonment and an optional fine up to
$10,000.
Intoxication Manslaughter: (2nd Degree Felony) A conviction carries a
punishment range of 2-20 years imprisonment and an optional fine up to
$10,000.
Probation
may be an option in some or all of these cases depending on your
eligibility and the facts of the case. However, probation can be very
demanding as well as expensive.
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