DWI in Texas and what generally to expect

Here we provide the anatomy of a criminal case from arrest through to potential expungement.

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 probable 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

Generally, 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.

Plea

Sometimes referred to as a plea bargain. First time DUI and DWI offenders without any other circumstances surrounding the arrest, will generally be offered the "standard" deal. Can sometimes be found posted on the wall inside the court room where you will be arraigned.

Only if there are issues with probable cause for your arrest, the arrest, or weak evidence based on the breath, blood or urine tests and/or the protection of your constitutional rights will the prosecution agree to plea at all. If any of the above exist, make sure you speak with an 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 never good. Other than the standard plea that is offered to everyone on the first time DUI or DWI offender docket, you may be able to negotiate a lesser charge than a jury might find you guilty of in a trial on the original charges against you. The lesser charge is in exchange for a guilty plea.

Preliminary Hearing

This is not the actual trial but it is where evidence is evaluated to determine whether there was probable cause and sufficient evidence to prosecute the case. Preliminary arguments are made by both the prosecution and the defense. Cross-examination of the witnesses, including the police officer, the breath test operator, the technician that took your blood, or even just a challenge to the evidence may take place. The outcome of this hearing will determine whether the case goes to trial. If the court finds there is insufficient evidence or the case is weak, the case will be dismissed.

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. All jurors then must agree to convict, at least in most states, Texas and California require unanimous decisions.

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 "released from all penalties and disabilities" (exceptions do exist in the Penal Code §1203.4.

DUI laws generally and specific statutes in California:

Implied Consent

The Law of “Implied” Consent requires all Texas and California drivers to submit to a blood-alcohol test when pulled over for suspicion of DUI. According to most defense lawyers, this law violates your Due Process rights under the Constitution of the United States of America. However, implied consent laws exist in every state. The courts have found a way to prevent your due process rights from being honored and thus the following applies:

Blood Alcohol Testing in California

As most drivers are aware, the legal blood-alcohol limit of any California driver must be below .08%. If you test below .05% you will not be charged with DUI. If your blood is between a BAC of .05% and .08% you will be charged and a presumption of DUI will exist. If you are suspected of a DUI you will be given an option to take either a breath test, blood test, or urine test. You must be informed that your failure to submit to or complete the test will result in a fine and mandatory imprisonment if convicted, and either: Suspension of the person's driver's license for 1-2 years, you must be advised that refusal to submit to the test may be used against him or her in a court of law, you must be advised that you are not entitled to consult with an attorney before deciding whether to take a test, before deciding which test to take, or during administration of the chosen test. You must be advised by the officer that, if you chooses a breath test, the equipment does not retain any breath sample and that no breath specimen will be available to be analyzed later. You must also be advised that you will be given an opportunity to provide a blood or urine sample that will be retained at no cost for subsequent analysis.

You may refuse these tests. It may be within your best interest to refuse these tests if you are intoxicated? You will have to make that decision on the spot. You will not be offered the benefit of the advice of a DUI lawyer at the roadside stop. If you are not intoxicated, consider taking the tests and hopefully your next stop will be home.

If your blood alcohol content exceeds the legal limit of .08%, your license will be suspended. There are defenses to the breathalyzer tests that are given; however, it takes an experienced attorney to know what to challenge and how to challenge the administration and the calibration of the test. If you refuse the above-mentioned alcohol analysis your license will be taken by the police officer on the spot. Your license may be suspended for one year for the refusal to submit to the alcohol test.

What to Expect (California)

A breath test sample must be collected only after you have been under continuous observation for at least 15 minutes and in compliance with Title 17. During that time, you must not have eaten, had anything to drink, smoked, or vomited. The observation does not have to be by only one officer. However, the second officer must continue the observation unabated.

A blood sample can only be taken by a qualified physician, nurse, licensed laboratory technologist or bio-analyst, specified regulated unlicensed laboratory personnel, or certified paramedic. The sample taken must be large enough to permit duplicate testing and will be maintained for at least one year. You are allowed to take a sample of this blood to subject it to further analysis and testing by a forensic toxicologist.

When you hire a DUI attorney, we can work to minimize the penalties associated with your DUI

The Standard Statutory Penalties for Driving Under the Influence:
CA Vehicle Code §23152 (misdemeanor):

(1) Without a prior conviction you will serve between 96 hours, at least 48 hours of which are continuous, and six months in the county jail. Imprisonment will be on days other than days of regular employment. If 48 hours of continuous imprisonment would interfere with the defendant's work schedule, imprisonment will be allowed during time off from work.

(2) With one prior conviction: You will serve between 90 days and one year in the county jail. If defendant refused to submit to or willfully failed to complete chemical test at time of arrest, jail time enhanced by 96 hours, no part of which may be stayed.

(3) If you have two prior convictions: Between 120 days and one year in the county jail. If defendant refused to submit to or willfully failed to complete chemical test at time of arrest, jail time enhanced by 10 days, no part of which may be stayed.

(4) Three or more prior convictions: 16 months or two or three years in state prison OR between 180 days and one year in county jail. In either case, if defendant refused to submit to or willfully failed to complete chemical test at time of arrest, jail time enhanced by 18 days, no part of which may be stayed.

Fines vary, expect at minimum- $1,000.

CA Vehicle Code §23153 (felony):
(1) Without a prior conviction: 16 months or 2-3 years in state prison or 90 days to one year in county jail.

(2) With one prior conviction: 16 months 2-3 years in state prison or 120 days to one year in county jail.

(3) If you have two or more prior convictions: 2-4 years in state prison.

(4) If the current offense proximately caused great bodily injury (GBI): Additional and consecutive enhancement term of three years in state prison.

(5) In all cases of GBI or Death to one or more victim: Enhancement of one year in state prison for each additional injured victim, up to a maximum of three years.

Fines:
(1) No prior conviction within 7 years: approximately $1,000.

(2) One prior Conviction within 10 years: approximately $5,000.

(3) Two or more prior convictions within 10 years: $5,000.

(4) In All Cases: Additional penalty assessment of $50 for alcohol abuse education and prevention program. Additional assessment of up to $50 for cost of blood-alcohol testing, in authorizing counties, and, in most counties, based on ability to pay. Additional assessment of up to $100 for county alcohol and drug problem assessment program, in authorizing counties, based on ability to pay.

Standard Drivers License Penalties for DUI in California:

Refusal: If you refuse to submit to BAC testing, at least one year suspension of your license.

Without any priors- License suspension for six months. No reinstatement unless defendant pays applicable fees, gives proof of financial responsibility, and gives satisfactory proof of successful completion of licensed DUI program.

One prior within 10 years- License suspended for two years. Two priors within 10 years- License suspended for three years. Three-plus priors within 10 years- License suspended for four years.

Injury or Death of Another

When a person is driving while under the influence and proximately causes the death of another person, he or she may be convicted of either:

Vehicular manslaughter, is the charge if the act was without gross negligence.

Gross vehicular manslaughter while intoxicated, if the act was with gross negligence; or Murder, if the act was with malice or exhibited wanton neglect or conscious disregard for life.

Lawyer Up!

DUI is a criminal charge and depending on the offense may be a misdemeanor or a felony. Lawyer Up! If you have been arrested the police will undoubtedly tell you that if you speak with them “they will try to help you”, “they will put in a good word with the D.A.” It is up to you to believe them.

By simply saying “I want to speak with my lawyer” you invoke your absolute 6th Amendment right to counsel. The 6th Amendment of the United States Constitution applies to all states vis-à-vis the 14th Amendment Due Process Clause. We are here 24 hours a day and toll free: 1-877-366-7677. Protect yourself and protect your right to be clearly informed of the nature and cause of the charges against you. These protections provide you the fundamental right to prepare an adequate defense.

Remember, We Are All Presumed Innocent!

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