In Texas, the Length of Time Your Driver’s License Is Suspended Increases If You Have Subsequent Offenses
San Antonio Suspended License Attorney
Interviewer: Regarding your driver’s license, normally your license is only be suspended for 90 days even with a conviction?
Gary: You can also be suspended for 180 days depending on whether you voluntarily gave a breath or blood sample or that you refused it. If it’s your second DWI it’s up to a year suspension. So the period of suspension increases depending on the number of DWIs you’ve had.
There Is Little Burden of Proof Needed at the Administrative Law Review Hearing in Order for Your License to Be Suspended
There’s two ways to go about handling the suspension. There’s an ALR hearing, an administrative law review hearing. At that hearing, all they have to do is establish that one, there was probable cause for the stop, and two that you were offered a chance to take a breath or blood test and you either accepted and failed, or refused, and that’s all they have to prove for a license suspension.
They can even do it by submitting copies of the police report. They don’t even need the officer to come in for the hearing. The only way you can win these types of hearings is basically subpoena the officer and if the officer doesn’t show up they shouldn’t suspend the license. But that’s occurs only rarely.
Attorney Churak Has Had Success in Obtaining Occupational Licenses for Clients Who Do Not Prevail at the Administrative Hearings
I usually tell my clients the better option is to have me procure an occupational driver’s license, which will allow you to drive to and from work, 12 hours a day. In Texas, the occupational license is fairly easy to get.
Potential Penalties for a First Offense DWI in Texas
San Antonio First Offense DWI Lawyer
Interviewer: For a first time offender with no aggravating circumstances or enhancing circumstances, what’s the range of penalties that they may face if they’re convicted?
A DWI Conviction in Texas Is an Expensive Offense
Gary: First time offenders are looking at, if their blood alcohol is below 1.5, we can negotiate a plea bargain agreement if they want to resolve the case fairly quickly. It’s called obstruction of highway by alcohol and for that offense the probation is usually set for a little longer period of time. They can put you on a year probation or two-year probation on occasion, and you will have to install an ignition interlock device. The benefit of negotiating that plea bargain is you do not have pay the surcharges that the state of Texas hits you with.
A Texas DWI Conviction Carries a Penalty of a $1,000 Surcharge for Three Years to Maintain Your Driving Privileges
A DWI conviction in Texas carriers a surcharge for three years of $1,000 a year, so $3,000 for three years if you’re convicted of DWI in Texas. To keep your license you must pay one thousand dollars a year; if you don’t pay your surcharge your license will be suspended.
To Avoid the Surcharge, Many Individuals Accept a Plea Bargain for the Offense of Obstruction of Highway by Alcohol
With that in mind, many people will readily agree to the obstruction of highway plea bargain agreement because they avoid that surcharge bill. That’s especially true if they don’t want to fight the case because there is little in their favor, such as really no issues with the stop, or issues with the breath test. Without any factors in the case to dispute, it is going to be one of these cases that we don’t have a whole lot to work with and then we might look at that plea bargain agreement.
Can You Refuse to Perform the Field Sobriety Tests?
San Antonio DWI Arrest Lawyer
Interviewer: In Texas, can you refuse to take a field sobriety test and what will happen if do?
If You Refuse the Sobriety Tests, You Will Be Arrested
Gary: You can and say I’m not going to do anything and they’ll slap the handcuffs on you and take you downtown, which they’ll do anyway by the way. I have hardly ever seen a person walk away from a DWI stop.
Interviewer: Is that another misconception that people think they can talk their way out of a DUI arrest?
Gary: Yes, and it never works.
After an Arrest, the Officers Will Take the Driver to the Police Station and Ask to Administer a Breath Test
Interviewer: After the field sobriety test you’ll be arrested and they’ll take you back to the station and they will ask you to undergo a blood test?
Gary: What they’ll do is they’ll offer you a breath test and you can refuse to undergo the breath test. You simply say I’m not going to take my breath test. San Antonio has what’s called a no refusal policy, a 24/7 no refusal policy seven days a week, 365 days a year.
If You Refuse the Breath Test, You Will Be Physically Compelled to Undergo a Blood Test
What this policy means is if you refuse the breath test, they’ve got a magistrate right there and they’ll swear a warrant and obtain a search warrant to take your blood. They’ll ask you if you want to cooperate at this point and time, and if you don’t cooperate and say you still refuse, what they’ll do is hold you down and draw your blood.
Interviewer: Yeah it is. What’s preferred, is it the breath test or the blood test in San Antonio?
There Are Defenses to the Blood Test Depending on the Time the Test Was Administered
Gary: It’s hard to say definitively. The deal with a blood test is usually the blood test is to be performed two to three hours after the arrest. So, you have a question what is exactly was blood alcohol content at the time the person was driving if the test was done two to three hours after the fact?
If a breath test was administered that’s lower than legal limit, then they’re going to try to trap you and come back in and say at the time he was driving he was intoxicated, but that is difficult to prove. So, sometimes a blood test can benefit you because you have an expert and you argue whether your blood alcohol is going up or down at the time, and they scientifically can prove that. It becomes a situation where the defense attorney has valid arguments to present.
Blood Test Results Can Be Disputed If Proper Protocol Was Not Following When Drawing the Sample
Plus, in my experience I’ve seen mistakes in blood drawn tests as far as problems with the testing or the officer drawing the blood did not follow the correct protocol. Those errors can result in a faulty sample.
I had a trial in Blanco a couple of years ago. It was a felony DWI because there was a child in the vehicle. I requested a blood sample from DPS for independent testing and was told that no blood sample was available. I didn’t think very much more about it.
When we were in trial and I have the blood expert from DPS testifying, I asked him about the blood sample and I asked, “Isn’t it a fact that you advised me that there was no blood for independent sampling?” “Yes, we only received 4 ml of blood.”
His statement contradicted the police officer’s statement who said he filled two vials of 10 ml of blood. So right there, I now have question of where did the blood go? Was it tampered with? What happened? So, you know, sometimes you stumble into great defenses like that.
Because of the Growing Number of Blood Tests, the San Antonio Medical Examiner’s Office Has Begun Outsourcing the Tests to a Firm in Dallas
Interviewer: What would you say is the ratio of preferred testing?
Gary: Right now 50/50 for either method. In Bear County, about 50% of them are blood draws right now. It’s gotten so big that they’re actually outsourcing the blood tests. Previously, the medical examiner’s office was doing the testing but now they’re outsourcing it to a firm in Dallas. I believe this outsourcing will present some interesting arguments in trial.
The Arraignment or First Court Date
San Antonio Arraignment Attorney
After you hopefully, retrieve your car from the impound lot, the next step is the first court date. That is usually the arraignment and that’s when the attorney gets to look at the police report and look at the police video. Also, you check to see if the blood test is back from the medical examiner office and file your pretrial motions and file your discovery motions. If a blood test was administered, the attorney will file a request for the blood test evidence from the ME office.
The Pretrial Process Can Be Lengthy; in Some Cases, Your Trial Will Not Be Set for Several Years
This is the time when the attorney will do an evaluation of the case. Then it will be set for pretrial, possibly a couple of times and finally on the trial dockets. So, realistically, if a person wants to fight a DWI though the trial, depending on what court the case is in, the process could take a couple years and five, six or seven court appearances before you get your day in court.
Plea Bargains Can Be Negotiated in a Matter of Hours
Interviewer: What about if you are able to come to a plea agreement, how long will it take on average?
Gary: In most cases, in a couple of hours you can arrive at a favorable plea bargain. You do your plea agreement up in front of the court and once that’s done, that’s the short part of it, is you can do a plea in a half hour, get all the paperwork done and then you got to go over to the probation department and meet with the probation officer. A plea can be completely resolved in a day.
What Percentage of DWI Charges End up Going to Trial?
Interviewer: What percentage of the cases you deal with end up going to trial versus reaching an agreement?
Gary: With DWIs and a past history, approximately 60% of them plea, maybe 20% go to trial, and I have about a 20% dismissal rate.
An Arrest and Your Miranda Rights
San Antonio Miranda Rights Lawyer
Interviewer: Then in terms of Miranda Rights, I mean do you have clients that say, “They violated my Miranda Rights?”
You Are Protected under the Miranda Rights If You are in Custody and Being Questioned by the Police
Gary: All the time, and that’s where the misconception comes into play. All Miranda says is that before you give a statement to the police, you have a right to be advised of the following rights. If they don’t advise you and if you don’t give a statement, the police have nothing to use against you in a court of law, so Miranda means nothing.
So, that’s the first question I always hear, “Well he didn’t read me my Miranda Rights,” and I said, “Well, did he question you?” “No. Once I was arrested and placed in custody he didn’t ask me any questions.” Well, then Miranda really doesn’t come into play.
Miranda applies when the police put you in a custodial situation, sit you in the back of the car and start asking you questions about your actions without reading you the Miranda Rights. If that occurs, then anything you say they can’t use, but Miranda really isn’t an issue in most DWI cases.
You Are Only Obligated to Tell an Officer Your Name
Interviewer: Are you obligated to tell the police where you’re coming from and how much you had to drink?
Gary: You’re obligated to tell the police your name. You have to identify yourself and give them your driver’s license. If you do not do that then they can charge you with failure to identify. But that’s all you’re obligated to do.
Refusal to Submit to the Sobriety Tests Results in an Immediate Arrest; If You Are Being Asked to Perform the Tests, You Are Likely to Be Arrested Anyway
I have had clients who, the minute the officer says, “Would you like to step out of the car please and say I’d like you to take some field sobriety tests,” and the client says no. The officer puts the handcuffs on him and takes him downtown. Sometimes they will tell you that if you don’t take the tests that your license will be suspended. It almost sounds like a threat, but it really doesn’t mean anything because Texas is an implied consent state, so they’re not giving you any misinformation.
There were a number of cases a number of years ago where they were alleging the officers were supplying misinformation to get drivers to undergo a breath test. It really doesn’t matter anymore because they’re going to get your breath or your blood, one way or the other.
Interviewer: Since you’re probably going to jail anyway, you might do better if you don’t say much to the police?
All of Your Remarks to the Police Officer Will Be Entered into the Police Report
Gary: Exactly. Basically that’s my philosophy. I mean talking to the officer isn’t going to get you anywhere. It is better if you remain relatively quiet but you can talk to them and say yes officer, no officer, I really don’t want to do that officer, and that’s about the best advice I can give somebody. The less said the better because everything you’re saying is going in his police report.
Aggravated or Enhanced DWI Charges
San Antonio DWI Charge Attorney
Interviewer: What are the factors that would turn a normal DWI into an aggravated or enhanced charge?
High Blood Alcohol Levels Can Double the Penalties in a DWI Charge
Gary: The first factor that raises the charge level is if your blood alcohol content is above 1.5. That increases the penalty from a Class B, which carries six months in jail, and a $2,000 fine to up to a year in jail and a $4,000 fine. So, it raises the bar quite a bit.
Subsequent DWI Offenses Also Double the Penalties
A second DWI becomes a Class A Misdemeanor 2, which means up to a year in jail and a $4,000 fine. There’s also mandatory interlock installation on your vehicle. An Ignition Interlock is a device that you put on your vehicle that in order to start your vehicle you have to blow into it. If you have any alcohol in your system it will give you a failure warning and it will not allow you to start your vehicle, and if you’re on probation or pretrial release and you fail an interlock blow, you could have a warrant issued for your arrest and be marched off to jail.
Having a Child in the Car during a DWI Arrest Is a Felony Level DWI Charge
Then we move up into the felonies. In Texas if you are driving while intoxicated with a minor in the vehicle, under the age of 15, it is a felony. As an example, if first time DWI mother who never had problems in her life, goes out with the girls, has a couple glasses of wine at lunch then picks up her kids from school and gets pulled over. If she is convicted, she’s now a convicted felon.
Multiple Convictions: A Third DWI Charge Is a Felony
Individuals with more than two previous DWI convictions will also be charged with felony DWI. The third charge is a felony.
There Are Different Levels of DWI Charges for Accidents Causing Injury
We have intoxication assault which is a DWI involving serious bodily injury to somebody. In other words, having an accident or hitting a pedestrian. That is a third degree felony. Then we have intoxication manslaughter, which becomes a second degree felony and carries up to 20 years in prison. That charge is applied if a driver kills somebody with an automobile while they are drunk.
Interviewer: What about if you get into an accident, let’s say you hit a tree, or you just run yourself off the road?
Gary: If no one’s hurt, it’s a DWI accident. The judge may slap you some more community service, or not let you plea to obstruction of highway, but it doesn’t affect you. As long as no one’s hurt or no individual is hurt besides yourself they’re not going to charge you with anything more than a DWI.
Of course, if you damage public property then they could charge you with an offense for damaging a utility or something like that, but usually don’t, especially if your insurance pays the bill.
Will Your DWI Arrest become Public Knowledge?
When someone’s arrested for DWI, is it typically very public? Are friends and family and work going to find out about the charge?San Antonio DWI Arrest Attorney
Interviewer: When someone’s arrested for DWI, is it typically very public? Are friends and family and work going to find out about the charge?
Gary: Truthfully, it is most probably going to be public knowledge, especially if the arrest occurred with a work-related vehicle. If you’re a professional driver, you’re going to lose your license and you’re going to lose your job. The public’s attitude toward drunk driving is evolving. Years ago, it was much more publically acceptable to have a few drinks and get behind the wheel of your car. Today, the public perception is much less forgiving.