Criminal Defense Practice Areas:
Representing individuals charged with DWI and other alcohol related matters is the offense for which we are consulted the most. These cases are vigorously prosecuted and the consequences of a conviction are severe, particularly if you rely upon your ability to drive as part of your employment. Because the consequences are even more severe if you are convicted of this offense more than once, it is extremely important that you hire an experienced and knowledgeable attorney to represent you in this type of case. Avoiding a DWI conviction almost at all costs should be your goal, and if it is, we will make it our goal too.
This is one of our most frequently asked questions. We have created a laminated card that you can keep on your person that you should give to any officer that is investigating you for suspicion of DWI. The card advises the officer that the bearer has been instructed not to answer any questions, or attempt to perform any field sobriety tests or provide any specimen of blood, breath or urine to the officer. Don't hesitate to give us a call at 210-222-2297 if you have been pulled over.
Since your driver's license was probably taken from you by the arresting officer at the time of your arrest, one of the first issues you will have to address if you are arrested for DWI is whether or not to ask for a hearing on the suspension of your driver's license. When you were released from jail you should have gotten a form, usually yellow in color, that is a temporary driving permit, and describes for you your rights with respect to your driver's license. Essentially this is what it all boils down to.
Because you were arrested for DWI, the Department of Public Safety (the Department) is going to file a petition in an Administrative Court seeking to suspend your driver's license. The length of the period of suspension will depend on whether you gave a blood or breath specimen or not and whether this is your first alcohol related incident. You are entitled to a hearing on the Department's petition. That hearing is called an ALR hearing. ALR stands for administrative license revocation. If you want to have a hearing you are required to give notice to the Department within 15 calendar days from the date you receive notice of this right, which is typically the day of your arrest. If the 15th day falls on a weekend or holiday, you are given until 5 PM the following day to give the required notice. If you do not give notice within that time period, you are deemed to have waived your right to a hearing. If you do not ask for a hearing, you are deemed to have waived this right and your drivers license will be suspended on the 40th day following the date of your arrest.
At Daniel & Hudson we recommend to all of our clients that they direct us to request an ALR hearing on their behalf. The likelihood that we are going to be able to keep your drivers license from being suspended is not very good. We are successful in keeping a person's license from being suspended in only about one out of every five cases. That is because in most cases it is very easy for the Department to prove those things required by the Administrative Court before it will authorize the Department to suspend your license. However, there are two very important reasons why you should direct your lawyer to request a hearing.
The first is this: "nothing ventured, nothing gained." If you do not ask for a hearing, your license will be automatically suspended. Even though the likelihood of success is low, if you do not ask for a hearing, there is no way your lawyer can prevent your license from being suspended. The second reason you should ask for a hearing has to do with helping your lawyer be better prepared to defend the charge of DWI pending in the county court. One of your rights when you ask for a hearing is the right to call the arresting officer as a witness at the hearing. This is a very important right because it will allow your lawyer to cross examine the arresting officer without the prosecutors from the County Court present. The lawyers who handle the ALR hearing are not the same lawyers that you and your lawyer will face when addressing the DWI case in County Court. In many cases, the arresting officer will be the only witness against you at your DWI trial. Being able to evaluate him/her and assess his/her strengths and/or weaknesses as a witness will be critical later on when you and your lawyer are trying to make a decision about whether or not to request a jury trial in your case or resolve the case with a plea.
We have found that many people are under the impression that if they are asked to give either a blood or breath specimen following an arrest for driving while intoxicated they cannot refuse to do so. Actually, this is incorrect. You can always refuse to give a specimen. The real question is "What will the law-enforcement officer do in response to your refusal?" The answer to that question typically depends on the location of the arrest.
If the arrest takes place in a large metropolitan area, such as San Antonio, the arresting officer will simply take you before a magistrate and present a probable cause affidavit that asks the magistrate to give the officer a Court Order allowing the officer to transport you to an appropriate medical facility where blood will be withdrawn. If you resist the effort to withdraw a blood specimen, you will be physically restrained to whatever degree is necessary to allow the taking of the specimen. If, on the other hand, you are not in a location where a magistrate is readily available, such as many of the rural counties where we do a lot of DWI defense, you can refuse to provide a breath or blood specimen and in most cases this will prevent the arresting officer from taking one.
So, what do you do if you are asked to give either a blood or breath specimen? Always refuse. If the arresting officer gets a warrant, cooperate with the taking of the specimen. At that point it will always be blood. But do not give a breath specimen because the arresting officer tells you that if you don't, he will take blood. Make him get the warrant and then cooperate. The passage of the additional time will probably be beneficial to you.
If this is the first time you have been arrested for DWI and your license has been suspended, you will probably be eligible to apply for what we call an Essential Need License (ENL). Some attorneys offer to get their clients an Occupational License, but there are other reasons people need to drive besides simply going to and from work. The process for obtaining and ENL is as follows:
As your lawyers, will file a petition in either a County Court or a District Court in either the county where you were arrested or in the county where you live. The selection of which county and which court to file your petition in is a matter of strategic importance and will depend on your particular case. In our petition we will be asking the court to sign an Order that will allow you to drive for any of the reasons allowed by law.
The law provides three reasons for which you may drive using an Essential Need License. The first reason is for occupational purposes. This includes going to and from work and the performance of all work related duties. The second reason is for educational purposes. This includes going to and from school, attending all classes and performing all other educationally related tasks. The third reason a person may drive using an Essential Need License is "in the performance of essential household duties." This includes driving for such purposes as going to the grocery store, going to put fuel in a vehicle, doctor visits, conducting bank business, and all other activities essential to running your household.
Once the judge signs the Order, we will get two certified copies of the Order. One copy goes to the Department of Public Safety in Austin for filing, and the other copy is kept by you as evidence of your driving privileges. It should remain in your vehicle at all times. As a condition of being allowed to drive with this document, you will be required to purchase a special type of liability insurance, called an SR 22, that must remain in effect for the entire time your Essential Need License is in effect. Your current liability insurance policy will not suffice to allow you to operate a motor vehicle using an Essential Need License. You can purchase an SR22 from any insurance agent you want to. There is no legal requirement that you purchase it from the agent with whom you currently have your automobile liability insurance. You can find vendors for this type of insurance on the Internet. Take the time to call around. Get the cheapest product you can find. Chances are you are not looking to establish a long term business relationship with such a vendor. You already have that with your current liability provider. You are seeking to simply meet the requirements of the law.
As with any case, this decision revolves primarily around what the evidence will show with respect to those things that the government must prove in order to convict you of a DWI. If the government can prove that at the time you were driving you had an alcohol concentration in your blood, breath or urine that was in excess of the legal limit, you can be convicted of DWI. Also, if the government can prove that at the time you were driving you had lost the normal use of your mental or physical faculties, you can be convicted of DWI. In a DWI trial the evidence will come from three sources: the testimony of the law enforcement officers on the scene, video tape evidence, and any evidence of the alcohol concentration in either your breath or blood or urine. The most important of these is the video tape evidence.
The testimony of the arresting officer as to why you were arrested for DWI is typically expressed in the form of an opinion. But precisely because it is an opinion, it can be attacked as such. Most Jurors are reluctant to convict a person of DWI merely on the opinion of the arresting officer that you did not appear to have the normal use of your mental or physical faculties, or that you performed poorly on the Field Sobriety Tests that you were asked to perform. The evidence of alcohol concentration in your blood, breath or urine will consist of results of testing done sometime after you were driving. These results are important only to the degree that a witness can use them to express an opinion as to what your alcohol concentration was at the time that you were driving. Remember, we don't care what the score is when you were tested. You are not being charged with "testing while intoxicated" As an opinion, it will be nothing more than an educated guess, and can be successfully attacked as such.
But the video tape evidence is different. It is unbiased and is not subject to attack on the basis of accuracy. In addition, it shows your condition almost at the exact time you were driving. How you appear on the video is critical. Not how you appear when you are performing the field sobriety tests that the officer will ask you to perform. We are not concerned with that. That is because most jurors are not concerned with how you perform on those tests. Most jurors will admit that they would have difficulty performing those tests if they had not had anything to drink at all. What is critical is how you perform when you are given an opportunity to walk in a normal manner and what your speech sounds like. This is important because this is what most jurors look at to decide whether or not you had the normal use of your mental or physical faculties at the time you were driving. If, on the video, you appear to not have the normal use of your mental or physical faculties, you will most likely be convicted of DWI. If, on the other hand, you look like you have the normal use of your mental and physical faculties, we would encourage you to not let an alcohol concentration score that is above the legal limit keep you from asking for a jury trial in your case.
For a free, confidential consultation contact the Law Offices of Daniel & Hudson at 210-222-2297. We are available 24 hours a day, 7 days a week.