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The DWI Process

"Where the Bottle Hits the Road"

This is a basic explanation of the DWI process with a focus on the experience of the first offender arrested by the Houston Police Department. If you are arrested for DWI, contact an experienced DWI defense attorney to evaluate your case.

The Process:

The Arrest
Breath, Blood or Urine Tests
Probable Cause and Bail
Court Assignment and Appearance
Contesting the License Suspension
DWI Lawyer Fighting the Case

The Arrest for Suspicion of DWI

Most DWIs in Houston, Texas, begin with an individual driving a car being pulled over for a minor traffic offense. Shortly after the first contact with the officer, the driver will be asked if they have "had anything to drink." The driver may then be asked more questions or to perform a series of "field sobriety tests," or to blow into a handheld breathe test machine ("PBT" - the results of which are usually inadmissible). This encounter may be recorded by a video camera in the officer's patrol car.

Occasionally, the first officer will have another officer more experienced in DWI investigations dispatched to the scene. For example, the Houston Police Department has long had a "DWI Task Force" of officers whose primary job is the arrest and conviction of DWI suspects and is funded, in part, based upon metrics including arrests and convictions.

Surprisingly to most suspects, they don't have to answer any of these questions or perform any of these tests. While an individual is obligated to provide correct identifying information to a police officer, one is not required to answer other questions and can assert the right to remain silent. This may annoy or upset the officers and cause them to tell the driver that they "have no choice but to believe you're intoxicated and arrest you for 'suspicion of DWI.'" However, answering questions and performing exercises will often lead to a DWI arrest anyway and to evidence that the state will attempt to use to convict the driver. While the state has the burden of proof in court, many police officers unfairly place the burden on drivers to prove their sobriety every day.

Have you been accused of drunk driving in Texas?

This is the unfortunate choice faced by thousands of Texans every year, refuse and get arrested, or cooperate in good faith, be treated unfairly and then arrested anyway and be prosecuted with evidence obtained from that good faith cooperation.

In either event, an arrest decision is made and once made the person will be handcuffed and placed in a patrol unit for transport. While the law allows their car to be left in a safe place for later retrieval, it is almost always searched and towed.

Somewhere between arrest and transport, many DWI suspects have already notified their friends or family they are on their way to jail by cellular telephones. If they have not, many officers will allow them to prior to leaving the scene or taking the phone away.

The Station and Breath/Blood/Urine Tests

After the person is arrested for "Suspicion of DWI," they are taken to one or more stations where they will be read a long "Statutory Warning" form and offered a breath, blood, or urine test.

"Suspicion of DWI" is a legal fiction invented to abrogate the protections afforded by the U.S. and Texas Constitutions. No defendant has ever been charged with or convicted of "Suspicion of DWI" as the arrest for "Suspicion of DWI" magically transforms into an arrest for "DWI" after the individual is offered and refuses to submit or submits to testing of his or her breath and/or bodily fluids and been interviewed.

The "Statutory Warning" (Texas DPS Form DIC- 24) read to arrestees informs them of the consequences of a test refusal or failure on a person's driver's license. In other words, the State of Texas expects a person who is suspected of having lost so much of their mental faculties that it is illegal for them to drive to listen to a long form of legalese and then make a split second decision whose consequences could affect their driver's license for years to come.

If the person agrees to submit a sample of their breath or bodily fluid for testing, it will be taken. If not, the police may summon or threaten to summon a magistrate to obtain a search warrant for their blood. Search warrants for blood are used increasingly throughout Texas as part of "no refusal weekends" and other programs to deter and convict drivers. The blood draw is then done by a "qualified technician." The results of blood or urine tests may not be available for weeks or even months.

Breath Test Results

If a person takes a breath test and passes, it is not necessarily a get out of jail free card. Officers will often claim that the person appears under the influence of drugs and request a sample of blood or urine or an evaluation to be performed by a "Drug Recognition Expert."

After either a refusal is given or a specimen is obtained. They arrested driver is given copies of the "Statutory Warning" and a "Notice of Suspension and Temporary Driving Permit" (Texas DPS Form DIC - 25). They are then returned to a holding cell or area pending their initial appearance before a magistrate.

Depending on the agency policy, the driver may again be videotaped and offered field sobriety tests while at the station. The Houston Police Department typically records the driver at the station, if no video recording of the accused was obtained at the scene. The reading of the "Statutory Warning' and administration of any chemical tests may also be recorded.

The arresting officer should then complete and file an incident or arrest report, in accordance with his or her agency's practices, and also a "Peace Officer's Sworn Report" (Texas DPS Form DIC - 23) and forward it, along with the DIC-24, and DIC-25, to the Texas Department of Public Safety. If a blood or urine sample has been taken, a "Specimen Routing Report" (Texas DPS Form DIC - 23A) is also completed and sent.

Probable Cause and Bail

After the administration or refusal of chemical tests, an arrestee will have an initial appearance before "a neutral magistrate." This must happen within 48 hours of arrest and typically occurs in person at the jail or via closed circuit television. At that time the arrestee will be informed of their rights, the charges against them, and probable cause for the arrest will be reviewed. If probable cause is not found by the magistrate, the suspect is released and the matter may end there. If probable cause is found, as it usually is, then the amount of bail, upon posting of which the defendant may be released from custody while the case is pending, is set.

Most first or second DWI offenders are granted bail. Zero or high bail amounts are typically set in the cases of serious accidents, repeat offenders, if the suspect is already on bail for another crime, or if the DWI is one of multiple charges filed. Many counties, including Harris, have a "bond schedule" they use in setting the bail amounts. $500 is the standard bail for a first DWI in Harris County, Texas, for a defendant with no criminal history. Unfortunately, few DWI defendants are released on their own recognizance.

The bail amount is usually entered into the computer system as soon as it is set. If the defendant has already contacted friends or family and they are at the bail / bonding window of the jail or engaged a bondsman, it can be posted immediately.

What is bail?

Bail is security. It is posted to give the Defendant an incentive to appear in court to face the charges against him or her. According to CCP Article 17.15, the amount is supposed to be enough to ensure the Defendant's appearance in court and the safety of the community. One may post cash with the Sherriff or Court or use a surety (bail bondsman). While in some counties, attorneys do the bonding, in the Houston area, bail bondsmen are the normal avenue for pre-trial release for the vast majority of Defendants. Most accused and their families simply don't have enough cash on hand or acceptable collateral to post as bail. As a result, they turn to someone who does - a bail bondsman.

A bail bondsman is posting his collateral, property or insurance that the accused will appear in court. In return for that service, they charge a "premium," 10% or more. They may also require collateral and/or co-signers to ensure they are covered in the event the accused fails to appear or "jumps bail."

Once bail is posted, either in cash or by a bondsman, the defendant is "processed out" of the jail and released over a period of several hours. Even under the most efficient of circumstances, the time between the initial traffic stop and release following a DWI arrest is often eight to twelve hours.

When the DWI defendant leaves jail, or makes it to his cell at the county jail if no bail is posted, he or she will likely have three pieces of paper - the "Statutory Warning," "Notice of Suspension and Temporary Driving Permit" and a piece of paper stating when and where to next appear in Court or how they will be notified.

Court Assignment & Appearance

The DWI criminal case will be randomly assigned a case number and court.

Most first and second DWI's are misdemeanors, unless there was a child passenger or an accident causing serious bodily injury or death. Misdemeanors are typically handled in a "County Court at Law" or, in the cases of Texas' largest counties, a "County Criminal Court at Law." Harris County has fifteen County Criminal Courts at Law that hear nothing but misdemeanor criminal cases. Fort Bend County, on the other hand, has four County Courts at Law, and an associate judge which may hear both criminal and civil cases. The presiding judge of a county court is an elected official, though in certain circumstances one is appointed to fill a vacancy until an election can be held. Misdemeanors may be prosecuted by a District or County Attorney's Office, though in the Houston area, the various District Attorney Offices handle all criminal prosecutions.

DWI with a Child Passenger, DWI with two or more prior convictions, Intoxication Assault, and Intoxication Manslaughter, are felonies in Texas. Felony cases are handled in District Courts. In Texas' largest counties, these are Criminal District Courts that hear only criminal cases, whereas in most counties District Courts have concurrent jurisdiction over civil and criminal cases. Felonies are prosecuted by the offices of the local District Attorney.

Your Initial Court Appearance

The accused should appear at the time, place, and in the manner on the instructions given when released from jail. Failing to appear on time to Court can result in the bond being forfeited, revoked, or raised, and a return trip to jail and potentially additional charges for bail jumping or failure to appear.

At the initial appearance, the judge may impose conditions of bond. These often occur in cases involving a repeat offender, high BAC, accident, and/or felonies and may include the installation of an ignition interlock, "blow and go" device, on any motor vehicle operated by the defendant. An experienced attorney may be able to avoid or lessen severe bond conditions on behalf of the defendant.

If a defendant is required to have the ignition interlock installed on their car at any time, the DPS will send a letter to their address on file giving them thirty days to pay a $10 fee by check or money order for the issuance of a "restricted license" or have their license cancelled. This is separate from the ALR suspension discussed below. All that is necessary is to get the machine installed and mail the fee. It cannot be paid online or in-person because it is processed by hand in Austin.

Contesting the License Suspension

The driver's license suspension process (Administrative License Revocation or ALR) is a distinct part of the Texas DWI process separate and apart from the criminal case. It is handled by the Texas Department of Public Safety before the State Office of Administrative Hearings. The most important thing to know about the ALR process is that a hearing must be requested within fourteen days of the date on the "Notice of Suspension and Temporary Driving Permit" or the suspension will begin on the fortieth day after that date. Driving With a Suspended License is a crime in Texas and will result in your arrest and potentially additional penalties, including further suspension.

DWI Lawyer Fighting the Case

Contrary to popular belief, one doesn't set a case for trial on the first appearance. Most courts don't operate that way, Harris certainly doesn't and the surrounding counties don't either. A number of court settings may be held every few weeks (or months in the smaller counties) at which the Defendant may be required to appear. At these settings, evidence that has become available (including video recordings, test results, police reports, and other matters) may be shared and the prosecution and defense attorneys discuss potential resolutions to the case.

Less than ten percent of criminal cases in Texas go to trial, but the most commonly tried Class A or B misdemeanor in Texas is DWI. There were more than 8,000 misdemeanor DWI's filed in Harris County in 2010, and less than three hundred went to trial.

Many Texans accused of crimes are convicted by their impatience rather than the evidence. They plead guilty to an offense they might otherwise fight because they are tired of coming to court - not imagining how tired they will become of probation or a jail cell, to say nothing of a conviction that will be on their record for a lifetime. A quick result in the criminal justice system is often a bad one.

Eventually, prior to a case being set for trial, a pre-trial or motions setting may be held where pending pre-trial and trial issues, including discovery or the suppression of illegally obtained evidence, may be resolved or discussed. Some motions, such as a Motion to Suppress, may be "carried" or heard at the time of trial. Discovery may include making sure that the defense has seen all the evidence. This evidence may include the maintenance records of any testing apparatus, documents relied upon by experts, and standard operating procedures, involved in any tests administered to the Defendant. These may be obtained by subpoena, court order, open records act request, or a combination of the three.

Unfortunately, though these fights are held in Texas courtrooms every day, some government agencies fight over turning evidence they know is important or exculpatory over, pretending they "don't know what the Defendant is asking for" or "what the big deal is." It's amazing to see experts who've testified for the government dozens, hundreds, or thousands of times pretend not to understand or know the answer to a question they've been asked and answered over and over again. It's more amazing when an experienced DWI attorney, who has asked the same officer the same question in other trials, is able to produce his own collection of resources from that experience to demonstrate the officer's lack of credibility - or not have to do it at all because the officer has experience with that attorney.

Even if a case is ultimately set for trial, it may not be reached on the trial date as many cases may be set for trial on the same date. Jail cases and old cases go to trial first. Some cases may not be reached due to missing witnesses, evidence, or other matters. Some cases are dismissed or plead guilty the day of trial as defendants hold out for a better offer or the state waits for a defendant to cave in, give up, or get tired of coming back to Court. A criminal case is a marathon not a sprint. It requires perseverance, if one seeks a successful outcome.

If a trial is held, depending on whether "scientific tests" or a serious accident are involved, the entire trial may take as few as two days and as long as a week or more to complete. Texas criminal trials are bifurcated. That means that if the Defendant is convicted, a punishment phase that may include new witnesses and evidence is held. If the defendant is acquitted, the case is over and they go home and may be eligible for an expunction. If their Texas Driver's License has been suspended for failing or refusing to submit a sample of their breath, blood, or urine, they get it back.


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