Driving While Intoxicated is one of the most common crimes in Texas. It is also one of the most complicated cases to analyze for a Defense Attorney. This is because much of what is done during a DWI investigation is based on an Officer’s opinion. What does that mean? What happens next? Let’s start close to the beginning.
Getting out of Jail.
First things first. Many people don’t know what to do when they have been arrested for a DWI. The first thing you want to do is secure your release from Jail. If you are in Travis County Jail, there are a few options for you to choose from.
A. In many situations the first time DWI Defendant will be granted a Personal Recognizance Bond. This is an agreement that the Defendant signs saying that they promise to show up to their court dates, and to also abide by the other terms of their bond conditions. Those bond conditions can be as simple as agreeing to not get any other charges, up to lots of evaluation and intense monitoring for drugs or alcohol.
B. If for some reason a Defendant is not given a Personal Recognizance Bond, the Defendant can always retain the services of a Bail Bondsman. In exchange for a fee, a Bail Bondsman acts like a surety to the Courts. They promise to pay the Defendant’s Bail if they do not show up to court. If you use a Bail Bondsman to secure your release from Jail and you fail to comply with their agreement, or fail to appear for court and the Court attempts to “Forfeit” your bond, the Bail Bondsman can then try to secure your return to jail. This is where the Bounty Hunter comes in, returning Defendants to Jail.
C. You can also post a Cash Bond. This is where you post some amount of money with the court in exchange for your release. The Agreement is that you will return to court with the expectation of receiving all or some of that money back at the conclusion of your case and when your appearance if no longer required by the court.
A good explanation of the Bail System can be seen in this episode of Vice News.
Hiring a DWI Lawyer and your Driver’s License
After you get out of Jail and have read over your Bond paperwork, you are going to want to secure counsel. Many Austin DWI Lawyers offer free consultations. Take advantage of this. You are going to be picking the person that is going to be a huge part of how this pivotal event in your life gets worked out. This is an important relationship, and not every client is best for every attorney. Communication is key. You should pick an Attorney that you trust and believe has your best interests in mind. What should these meetings consist of?
A. A basic review of the events surrounding your DWI Arrest. This includes reviewing your Probable Cause Affidavit, and getting the client’s recitation of the events. A Probable Cause Affidavit is a sworn statement, typically by the Arresting Officer, wherein he/she describes the events that lead up to your arrest. It should describe a basic DWI investigation.
B. A description of the Attorney’s process. This should include, but is not limited to a rough timeline of court settings, Evidence review, and the all important breakdown of options that the Defendant needs to choose from. This should always include a thorough discussion of what it means to have a Jury Trial.
C. What to do about your Driver’s License. DPS holds the reins on every Texas Resident’s Driver’s License. After someone is arrested for a DWI, they should be read a form which outlines a very likely suspension that will be imposed on the Defendant’s Driver’s License. You need to find out your Attorney’s approach to this issue, and how they intend to get you back on the road legally. The Aragon Law Firm strongly encourages anyone charged with a DWI to immediately request a replacement Driver’s License after being released from Jail.
D. The Representation Agreement. This will outline the Attorney’s fee, and what that fee covers. This varies widely from Attorney to Attorney.
Working your DWI Case
This should be the longest and most complicated part of any DWI charge. In this stage, you should be:
A. Maintaining your Bond. This includes abiding by any bond conditions and attending court when necessary.
B. Working on anything you and your Attorney have agreed should be part of your Defense Strategy. This will vary from case to case. These things can include, but not limited to taking classes, performing community service hours, submitting to drug/alcohol monitoring, and many other possibilities. This is done to advance your Attorney’s negotiation position and get you the best possible outcome in your case.
C. Reviewing your case. This means going over your Offense Report, watching your Arrest Video, and participating in developing your defense strategy. A good Defense strategy takes the individual Defendant into account. By this point, your Attorney should understand your goals, and working on the approach that gives you the highest probability of achieving those goals. It is also important that your goals are properly aligned with realistic expectations. A good Attorney is going to tell you the truth, no matter how hard that truth is.
D. Exploring the costs and benefits of your various options. There is always more than 1 option in this stage. Ask questions. Be honest about what your concerns are. A good DWI Attorney should be able to answer most if not all of your questions. If they cannot, inquire as to their experience with DWIs. Ask them how many DWI Trials they have had. Ask them if there is anything you can do to make your negotiation position better.
E. Take a strong position and negotiate accordingly. As long as everything before this stage of your case has been done properly, you should know what exactly your options are, and explored what you are comfortable with and what you are not comfortable with. This is where you draw your line in the sand. This decision is very important. The ultimate question is whether or not you want to take your case to Trial, or accept a Plea Agreement. Ask questions. Make sure you understand what each option entails.
- If you choose to set your case for Trial, ask your Attorney what their preparation strategy is, and how the Defendant can be a part of it.
If you choose to take your case to Trial, know what you are getting into. An experienced DWI Attorney is going to make you a part of your Defense. Each Criminal Defense Attorney has their own approach to Trials. They all have different preparation strategies. Ask your Attorney what they do to prepare. Ask them to explain the Trial process. This strategy should be tailored to your case. It helps to understand what the DWI Law says. The DWI Statute can be found in the Texas Penal Code, Title 10, Chapter 49. It reads:
Sec. 49.04. DRIVING WHILE INTOXICATED.
(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b) Except as provided by Subsections (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person’s immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
(d) If it is shown on the trial of an offense under this section that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.
The outcome of your DWI charge can have a long lasting impact. Know your rights. Ask your Attorney what they are looking for when they are reviewing your case. Know what your options are, and have a clear strategy. Do not go into your Plea Negotiations blind. Pick the right professional to guide you through DWI charge. At the Aragon Law Firm we remind Defendant’s that their DWI event is in the past. There is no way to change the past, but you can control how you react, and therefore shape your own future. People charged with crimes are highly influenced by what and how their Defense Lawyer presents their case and options. This is why it is important to find the right Criminal Defense Attorney.
Things to consider when reviewing your DWI Charge
Did you perform the Sobriety Tests?
Most people perform the Standard Field Sobriety tests. This is because most people are unaware that they have the right to refuse to perform these tests, and just do what most people are taught to do. They do what the person with Authority and a gun tells them to do. Most people falsely believe they know how they performed on these tests. Why? This is because the grading criteria is not clearly stated. It is like taking a written math test, but being graded on your penmanship. The Standard Field Sobriety Tests are described and taught to Law Enforcement from the DWI Detection and Standardized Field Sobriety Testing (SFST) Manual, certified through the National Highway and Traffic Safety Administration (NHTSA). You can see the manual they use by clicking this link.
First Test. Horizontal Gaze Nystagmus (HGN). This is almost always the first test given to people arrested for DWI in Texas. Nystagmus is the rapid involuntary movement of the eye. Many describe this movement as a bouncing of the pupil at the peripheral of the subject’s field of view. There are many things that cause Nystagmus. It is also a common practice by Austin Police and Travis County Sheriff to not have a video of the subject’s eyes while performing this test. This is significant because the presence of HGN in a subject cannot be confirmed by anyone other than the officer that is administering the test. That officer, if being discussed in your case, has already made an arrest, and very likely to have written that you had HGN present when they administered the test. They have no interest in changing their mind about the results of a test that could only serve to hurt their decision, their opinion, to arrest.
Second Test. The Walk and Turn test. This test is the most recognizable test to people. This test begins with the Officer giving instructions, and using the words “Do you understand”. This is important because to the untrained eye, this should be an easy test. Even if you think you performed this test perfectly, you likely did not. Why? There are clues that the Officer is looking for, that they do not tell you that they are looking for.
Third Test. One Leg Stand. This test is usually the 3rd test given, and in many cases the Officer has already made their decision to arrest. If the subject performs well on this test, Officers can testify that they made their decision based on the performance in the previous tests. If the subject performs poorly on this test, the Officer can testify that this confirms their decision to arrest.
Each test is significant for many reasons. This will form the basis for the Prosecutor’s and the Jury’s decision to find you guilty or not. It will shape what will be the most significant piece of evidence in your case, the Video.
Did you give a Breath sample?
The Travis County Jail has a Machine called the Intoxilyzer 5000. It is rumored that they will soon be getting the updated version, the Intoxilyzer 9000. This machine is used by Law Enforcement to produce a readout of your alleged Blood Alcohol Concentration. This machine has many problems.