Paul Key:
Texas DWI Information
The information contained on this page is to give examples of what may happen after a DWI arrest in Texas.
The information on this page should not be construed as legal advice
and may or may not apply to your or anyone else's case. The
things that can potentially happen in any given case are as varied as
the number of cases. Only after consulting with a lawyer about
individual facts and circumstances can you have any reliable idea about
how any specific case will progress or likely turn out.
What Happens After a DWI Arrest in Texas?
First, if you have been arrested for DWI in Texas, and you are still within 15 days of your date of arrest, be sure to request an administrative hearing to contest the suspension of your license.
You may request the hearing yourself, or we would be happy to do it for
you. In addition to, perhaps, saving your license from
suspension, the administrative hearing provides the best opportunity to
obtain all the reports and information that will be used in your
criminal trial.
Generally speaking, following an arrest for DWI in Texas,
you will be taken first to the police station or county jail. Once at
the station or jail, you will be asked to submit to a breath test. Keep
in mind, you are already under arrest and you are not going home if you
take the breath test and pass. You will still be charged with driving
while intoxicated by not having the normal use of your physical or
mental faculties. Whether you take a breath test or not, you are then
booked into the jail or transported from the station to the jail.
At the Collin County Jail, once you are booked and in the holding cell,
you will be allowed to make telephone calls. If no magistrate is
available to set your bail, then there is a standing order for the
Sheriff to set bail at $750.00 for all misdemeanors, including DWI 1st
and 2nd offenses. If you have not bonded out, the morning
following your arrest you will be seen by a magistrate who will set
bail. The bond amounts in DWI generally range for $1,000.00 to
$2,500.00. If you are arrested and taken to a local police
station, say in Plano, Frisco or Allen, then you will not be able to
bond out until your are transferred to the Collin County Jail and see
the magistrate, unless you hire an attorney to file an application for
writ of habeas corpus for you. After you are released from jail,
it will generally take at least a month to two months in Collin County before you will receive notice from the court to appear on your charges.
A Note About Your Driver's License and
Administrative License Revocation (ALR):
Again, to preserve your right to drive in Texas,
you must request a hearing within 15 days of the date you were served
with a Notice of Suspension. In most cases, this is the day of your
arrest. If you timely requested a hearing to contest your license
suspension, you will be able to continue to drive unless an
Administrative Law Judge rules against you and authorizes the
Department of Public Safety (DPS) to suspend your driver's license. If
you lose at the hearing, your driver's license will be suspended and
you cannot drive unless you obtain an occupational driver's license. In
some cases, the suspension may be stayed (temporarily prevented) by the
filing of an appeal. It is our opinion you should always request a
hearing. Information can be learned, through the Administrative License
Revocation process, which can be vital to your defense of your DWI. If
your license is suspended at the hearing, you may be able to secure an
occupational license to drive. More on this subject is covered under
Driver's License Revocation.
Court Settings:
In Collin County, our courts do not have an arraignment setting as most other counties do. The initial court appearance in Collin County
is mainly for the accused to make contact with the court, inform the
court who the attorney is, and allow the attorney to talk to the
prosecutor about the case. Generally, Collin County courts allow
the case to be "passed' for a couple of appearances before your are
required to set the case for a plea of guilty or a trial. It is very
important that you not wait for the first court appearance to seek
legal advise and to hire a lawyer. Valuable rights and evidence
that will affect the ability to defend the DWI case may be lost by
waiting months or even weeks.
Other Pretrial Court Appearances:
After
the initial court appearance, you will probably have additional court
appearances as mentioned above. These court settings have
different names depending on the county and the court. Some
common names include "Non Issue," "Announcement," "Plea," and
"Disposition." Regardless of the name, these settings are
additional opportunities for your lawyer and the prosecutor to discuss
the case, for your lawyer to talk to the judge (if necessary) about the
case, and for your lawyer to otherwise continue to develop the facts
and law relevant to your case. During these settings, the
prosecutor will usually make a plea bargain offer.
Between
these court appearances, your attorney should also be working on your
case by obtaining other information and documents relevant to your
case. Some of this material will include obtaining a copy of the
video tape, obtaining the police officers' training records, obtaining
any police dispatch tapes and audio communications by the officers in
your case, obtaining any mobile data terminal (MDT) logs from computer
communications by the officers in your case, obtaining documents and
affidavits related to the license revocation proceeding, obtaining
documents and records related to the breath test machine (maintenance,
repair, etc.) and the results of the breath test if you took one.
Between the court appearances, you should meet and talk with your
lawyer about the progress of the case, you should personally view the
video tape (if there is one) of your arrest or of you at the station,
and you should know what plea bargain offer (if any) has been made by
the State.
At
the conclusion of these pretrial settings, you will have to make a
decision concerning whether you want to accept the plea bargain offer
made by the State or whether you want to proceed to trial. Even
if you initially think you are inclined to want to work out a plea
bargain with the prosecutor, the case should still be investigated and
prepared. Frequently, better plea bargains are available as a
result of information obtained during a complete investigation. If a
complete investigation does not occur, you cannot be sure that you will
be getting the best available plea bargain offer.
Pretrial Motions and Hearings:
Depending
on the facts and circumstances of your case, there may be pretrial
motions that need to be filed and there may need to be hearings before
the judge on those motions. Sometimes, these motions and hearings
occur before the final decision about whether to proceed to trial and
sometimes they occur after the decision has been made to proceed to
trial. Similarly, depending on the case, the court, the issues,
and the judge, the motions may sometimes get heard by the judge well
before trial or may not get heard until the time of trial. The
most common contested motion is a Motion to Suppress Evidence. The
trial court may suppress some or all of the evidence against you if
your constitutional rights have been violated. For example, if the
police officer did not have specific, articulable facts amounting to
reasonable suspicion to make a traffic stop, then the initial stop
would be unlawful and any evidence obtained thereafter is not
admissible against you at a trial. Similarly, if the legal
procedures for a breath test were not followed in your case, then the
breath test results may not be admissible in your case.
Sometimes, for strategic reasons, it is better and wiser to leave these
issues to be resolved at trial. Whether and how this occurs will
depend on the facts and circumstances of your case.
Trial:
Sometimes misdemeanor cases set for trial in Collin County
do not go to trial on the first trial setting. However, this does not
mean you can appear in court half prepared, because you never know for
sure. The point is, you should be aware that you may make more than one
trip to the courthouse for your trial before the case is actually
tried. The trial is to a jury of your peers, consisting of six people
in a misdemeanor and twelve people in a felony, unless you are in the
unusual circumstance of requesting a trial to the court or "bench
trial." Depending on the facts and circumstances of your case, a DWI
trial can last from one to five days. Most DWI trials last two to
three days. The trial is divided into several parts: the jury selection
or voir dire; the opening remarks; the State's case-in-chief; the
defense case-in-chief; and closing arguments.
Unless
you testify during the defense case-in-chief, the only time during the
guilt-innocence phase of the trial that you will say anything to the
judge or jury is just before opening remarks when you are arraigned
before the jury (when the formal charges are read in open court) and
you announce to the judge and jury that you plead NOT GUILTY. Even
though you may not say anything else to the judge or jury, your role is
far from passive. You should listen closely to the testimony and
make notes of things you think your lawyer needs to know. Unless
you lawyer has instructed you otherwise, you should not distract your
lawyer during witnesses testimony. Save the things you need to
talk about for breaks and intermissions between witnesses.
Although the things you need to tell the lawyer are important and your
lawyer needs to know what you think, distracting your lawyer while a
witness is testifying may cause your lawyer to miss something that
requires an objection or a question on cross-examination.
Punishment and Sentencing:
In
the unfortunate event the jury returns a verdict of guilty, the trial
will, in a sense, start over. This is called the punishment phase of
the trial. Each side gets a chance to make opening remarks, put on
their case-in-chief and make closing arguments. However, the issues
during this phase of the trial are limited to matters relevant to the
punishment of the accused. Punishment may be conducted by the judge or
by the jury. In the event you want the jury to assess punishment, you
must file an Election as to Punishment before trial.
The
range of punishment after conviction for a first offense DWI is from 72
hours to 180 days in the county jail and up to a $2,000 fine. If you
have never been convicted of a felony in Texas,
in any other state, or in the federal system, then you are eligible for
probation (now called community supervision in the State of Texas),
which may be for as long as three years. If you receive
probation, the judge will set the terms and condition of probation.
If
you have previously been convicted of DWI and the State successfully
proves your prior conviction, then the range of punishment is from 30
days to one year in the county jail and up to a $4,000 fine. If
you are eligible for and receive probation, you must, nonetheless,
spend at least three days in jail as a condition of probation.
If
you have at least two prior DWI convictions and at least one of them
has been within the last 10 years, your current DWI offense may be a
felony. If you are convicted of felony DWI, the range of
punishment is from two to ten years in the State penitentiary and up to
a $10,000 fine. If you are eligible for and receive probation, you
must, nonetheless, spend at least ten days in jail as a condition of
probation.
Just
because you have previously been charged with or convicted of DWI does
not automatically mean that the State will be able to convict you of an
enhanced DWI offense. There are a variety of ways, depending on
your individual facts and circumstances, potentially to prevent the
State from using or proving the existence of your prior
convictions. These facts and factors are among the things that
your lawyer should investigate in advance of the decision to proceed to
trial.