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A face-to-face meeting with Walter Reaves will help answer all of your questions, but until then, here are a few of the most frequently asked questions we hear.
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What happens to my CDL after a DWI arrest?
Many people have a commercial driver's license, or CDL. You may need that for your job, which means that if you lose your CDL, you could lose your job. So, the most important question you may have is whether you are going to be keep your CDL.
The rules for CDL holders are different from those that apply to those who hold a regular operator's license. If you are arrested for DWI, your operator's license can be suspended before you ever go to court. Your license can be suspended if you refuse a breath or blood test, or if you agree to the test, and fail.
In most cases, your license will be physically taken from you, and you will be given a paper that serves as a temporary license. Once the suspension period is over, you have to apply to get your license re-instated.
The terminology used for your operator's license is "suspension"; your license is suspended for a certain amount of time, and you have to get it re-instated when the suspension period is up. For a CDL, the terminology is different. You are either qualified or disqualified to operate a commercial vehicle. Section 522.081sets out the rules for disqualification. The statute covers several different situations - such as multiple traffic tickets - but here we are only going to address an arrest for driving while intoxicated.
For starters, if you refuse a breath or blood test, you will be disqualified from operating a commercial vehicle for one year. That means that even if you are able to get an occupational license to drive during the time your license is suspended, you will still be disqualified from a operating a commercial vehicle during that period, and will still be disqualified after you get you operator's license re-instated.
Subparagraph (b)(4) covers those situations where you agree to provide either a breath or blood test. This section also imposes a one year disqualification period, and covers situations where you were arrested while operating a commercial vehicle, and those situations where you were not.
- If you were operating a commercial vehicle, and you had an alcohol concentration of more than .04, you are disqualified for one year;
- If you operating another vehicle, and you had an alcohol concentration of more than .08, you are also disqualified for one year.
It is important to recognize that there are no exceptions or alternatives to disqualification. You cannot get some type of permit, or provisional license. As I said earlier, an occupational license does not authorize you to drive a commercial vehicle; it simply allows you to drive to and from work.
The impact of disqualification can be far more severe than the impact of a DWI conviction. It could mean the loss of employment if you must have a CDL to perform your job. For example, if you are a truck driver, there's not much you can do without your CDL.
If you are in this situation, you need to get help now, and find a lawyer with experience in handling DWI cases and license suspensions. This is not the time to cut corners, or cut costs.
What is PTIP or pretrial diversion?
Pretrial diversion (or pre-trial intervention) is a fairly common way to resolve cases especially minor misdemeanors. It is not available in every county, and the way it is set up and administered can vary depending on which county you are in. In McLennan County, it is formally called the Pre-trial Intervention Program, or PTIP for short.
Here, I want to explain what it is and how it operates so that you can have a basic understanding of what's involved. This explanation covers McLennan County, so if you are in another county this may not be the way the program works there - if they even have one.
Difference between pretrial diversion and probation
The best way to explain PTIP, is by comparing it with probation. In a probation case - whether it be a regular probation or deferred adjudication - you go to court and enter a plea. In a deferred adjudication case the judge finds that there's enough evidence to find you guilty and defers a finding of guilt. In a regular probation case the judge would find you guilty, and then place you on probation for a certain term. For example you might be placed on probation for 15 months.
The terms (or conditions of) of probation, can vary, but there are several that are imposed in every case. The obvious one is that one you don't get in any trouble - which is pretty basic; after all, everyone is supposed to that do that anyway. Generally, you will have to report to a probation officer at least once a month; you will also have probation fees to pay which are usually $60 a month.
Most probation orders have some type of class that you have to attend, and sometimes there will be more than one. There will usually be some amount of community service, and there may be other terms that are that are specific to the particular type of case you have.For example, assault cases, especially family violence cases, may have some type of anger-management class. There may be other types of cases that involve different types of classes or programs; another example is theft cases, which typically have some type of financial planning class.
In a deferred adjudication case, once the term of probation expires the court would enter an order dismissing the case and discharging you from probation, In a regular probation case at the end of the term there would be an order discharging you from probation.
Pretrial intervention works in a similar way, although there are some significant differences. A big difference, at least in McLennan County, is that pretrial diversion is not administered by the court and it's not administered by the probation department. Instead, it's a program that runs out of the district attorney's office. That means that unlike a normal probation case where you would report to a probation officer, in a pretrial diversion case you don't report to anybody. Instead, you take care of whatever is required, such as community service and completion of classes, and then you show proof that you've done it to the pretrial diversion office.
Conditions of pretrial diversion
The terms of pretrial diversion are generally similar to the terms that would be imposed in a probation case. There are classes, community service and there's always some type of fee involved, although in pretrial diversion you're not actually paying a monthly fee so you don't have that cost.
Because of the advantages you are receiving under pretrial diversion, and because there is not anybody watching over your, the terms of pretrial diversion may be more stringent than you might see in a probation case This is especially applicable true in cases involving alcohol such as DW.I In regular probation you would be prohibited from drinking, and you would have random UA’s and random drug tests to make sure you weren't drinking. If your breath test was high or if you're a repeat offender you might have an order that required you to impose an interlock on your car.
If you are granted pre-trial diversion in a DWI case you're probably going to have some type of monitoring that's going to be far more stringent than what would be imposed if you were on regular probation. You are going to start out with some type of monitoring that is done on a daily basis. The most common one is a remote breath device which is something that you have to take with you, or have available, and blow into it a few times a day to verify that you haven't had anything to drink. There may also be a requirement that you submit to hair follicle testing to make sure that you haven't been drinking over the last 90 days. Those conditions are generally imposed at the beginning, and continue for three to six months. After that condition expires, there's generally a requirement for an interlock for an additional few months.
When will your case be dismissed
You probably want to know what happens on your case if you are accepted into PTIP. In misdemeanor cases, once you sign the agreement the case is dismissed which means that you no longer have a case pending in court. If there's no case pending in court then it would just be refused so you wouldn't end up with the case in court. Felony cases are handled differently, since they are more serious. Instead of dismissing the case when the agreement is signed, they will wait to dismiss the case until the diversion period is completed.
You have to admit guilt when you accept pretrial diversion
There are a couple of things you need to be aware before you decide to seek pre-trial diversion. The first is that under the program in McLennan County, you are required to sign an agreement that admits guilt. That means that it is not available if you are contesting your guilt, or don’t want to admit to committing the offense. While at first blush that might not seem fair, the reasoning does make sense. You should not be agreeing to any type of conditions if you didn’t commit an offense. Also, as a practical matter, if you are don’t believe you are guilty you are going to resent the conditions imposed on you, which makes it less likely that you are going to successfully complete the program.
Another thing to be aware of is that you are usually required to admit the offense you were charged with. Sometimes, an officer files a more serious charge than the evidence realistically supports. The attorney screening the case might recognize that, and file a lesser offense. Alternatively, your lawyer may work with the prosecutor to get a reduced charge. If you enter into pre-trial diversion agreement, especially if you do it early before charges are formally filed, you may have to accept the offense you were charged with.
Hopefully this provides you with a basic or general understanding of pretrial diversion and how it works and as always if you have any questions about the specifics or how it operates or the facts of your case please let us know
Can you be arrested for walking while drunk?
Recently I've had a couple of cases where intoxicated individuals in the Waco Texas area have been arrested even though they weren't driving. It might sound like a silly question, but the truth is you CAN be arrested for walking while drunk.
The actual offense is Public Intoxication. Fortunately, it's only a Class C misdemeanor, which means you only get a ticket. Unfortunately, you can also be taken to jail.
The offense of public intoxication involves more than appearing intoxicated in public. You also may appear to be a danger to yourself or others. The typical situation involves someone on the road, or out in a public place. Someone might be at a party, and decide to do the responsible thing and not drive home. They decide to walk but don't do it very well. Maybe they're walking in the street, or maybe they don't have a clue on how to get home. The police are notified and have a choice. Do they let the person go, and possibly get hit, or cause an accident, or do they get them off the street? You can guess the decision they usually make. What happens next varies. Some officers might allow you to find someone to come get you. Others might just take you to jail to sleep it off. The next morning you are free to leave and are told when to show up in court.
Public intoxication is very subjective. Tests are rarely given, so there is no evidence as to how intoxicated you are. Unlike DWI, you are presumed to be intoxicated when you reach a certain level. Instead, it's up the officer to determine if you pose a danger to yourself or others.
If you're thinking you can't win, you might be right. You certainly don't want to get behind the wheel, but you might still get arrested if you try to walk home. The good news is that it won't be as serious. So, the lesson is to find a friend to take you home or call an Uber.
The dope belonged to my friend. How can I get my charge dismissed?
A common scenario involves 2 or more people who are stopped for a traffic violation. The police end up searching the car and finding dope - such as marijuana, cocaine, methamphetamine, or some other controlled substance. The police arrest everyone, and you want to know how to get your case dismissed. The question is usually whether your friend can either go to the police or prosecutor and sign something claiming the contraband was his, and whether that will be enough to get your case dismissed. The answer is probably not.
To understand the answer, you need to understand the law. No matter what the substance is, the law prohibits "possession". Possession has a specific meaning, and it is not limited to ownership. Ownership is generally limited to one person; for example, only one person generally owns a car or some other item of property. Possession is different though, and more than one person can possess something. The legal definition is "care, custody or control." In most drug cases, the issue comes down to who had access to the drugs.
There's also another element, and that is that the possession must be knowing or intentional. In other words, you must know the drugs are there, and in some cases, know they are drugs.
A common situation involves marijuana possession. The officers make a stop and smell marijuana. They then search the car and find a baggie of marijuana in the front seat. They are going to assume that everyone in the car was smoking, and therefore everyone had possession of the weed. One person can claim ownership, but that usually is not going be enough. If they don't smell marijuana (which almost never happens) and the marijuana is is not plainly visible, you have a better chance.
You might wonder what happens if you are in a car, and your friend brings out a bag of marijuana - which you didn't know about - and everyone but you starts smoking. Since the police assume everyone knew about the marijuana and was using it, you are going to have an extremely difficult time convincing a prosecutor that you aren't just as guilty as the others. By the way, the teaching point for that is to choose better friends.
The last example illustrates another factor you must be aware of, which is that prosecutors don't usually believe people who admit the drugs are theirs. You probably think that doesn't make any sense, since they are admitting guilt, and I would probably agree with you. However, they look at it as one person who knows they are guilty trying to help a friend out. They don't have anything to lose, so why not try to do something for someone else. I've seen some pretty dramatic examples of this. In one case, an apartment owner came into court and admitted under oath that the cocaine belonged to them. They had no deal, and the case against them wasn't that strong; they were coming in and subjecting themselves to the possibility of going to prison. Not only did the prosecutor not believe them, but the jury also didn't believe them.
So, what's the lesson here? Apart from choosing good friends, the lesson is to not think you have nothing to worry about if your friend claims responsibility for the dope. Even if they follow through on that after hiring a lawyer, the prosecutor is probably still going to pursue the case against you. Don't count on a dismissal. Instead, hire your own lawyer, who will know the arguments to make to protect your interests.
Can I talk to a lawyer before taking a blood or breath test?
The decision on whether or not to take a breath or blood test is an important one. Because it is so important, most people believe that you have the right to talk to a lawyer before you make the decision. Unfortunately, that is not the case.
The law in Texas has always been that you don't have the right to consult with a lawyer before deciding to take a blood or breath test. Not only do you not have the right to talk to a lawyer, if you ask for one, but the state can also use that at trial. They then use that request to argue you must have been drunk because a sober person would just take the test and assume they would pass.
The main reason for this is that even though you have been placed in a police car, and taken against your will to the police station, jail, or some other location, the request to take a breath test is not considered “interrogation.” Miranda warnings are only required when someone is in custody and being questioned. Simply asking you to take a breath or blood test is not questioning, so warnings are not required.
Another reason is that when you accept a driver’s license, you give implied consent to submit to a breath or blood test on request. While you can refuse to take the test, the refusal has consequences. That’s a subject for another post, but just know that if you refuse to take the test, your license is going to be suspended; and for a longer time than if you had taken the test and failed it.
There’s also a practical reason. Most people don’t have a lawyer on call, so it’s going to take some time to find one. And since alcohol steadily dissipates, the State basically “loses” evidence the longer the delay.
Not all States take the same position. The Supreme Court in Hawaii recently held that an individual has the right to consult with an attorney before they take a blood or breath test. To my knowledge, they are the only State to hold that. And as with most court decisions, it’s not as favorable as it appears. You still must show the failure to allow you to talk with a lawyer affected your decision. The defendant couldn’t do that, so he lost anyway.
The take from this is that you don’t have the right to talk a lawyer, so don’t ask. You’ll just give the State something else they can use against you.
If you want more information on DWI law, request a FREE copy of our DWI Survival Guide. If you've been arrested for driving while intoxicated and need to talk to a lawyer, fill out our contact form, or give us a call at 254-296-0020.
What if the Police don't read me the Miranda warnings?
At least once a week I have someone tell me the police didn't read them their Miranda warnings. Everyone knows what they are: you have the right to remain silent, the right to a lawyer, etc.. On TV, the police do it every time they arrest someone. But like most things on T,V that's not the way it happens in real life.
Miranda warnings came from a Supreme Court case styled Miranda v. Arizona. The case dealt with police questioning after they have arrested someone. Everyone has heard the expression "I take the Fifth". That's referring to the Fifth Amendment to the United States Constitution, which protects people from incriminating themselves. Basically, that means you have the right to keep your mouth shut, and not talk. It comes up in several different ways, but the most common is when the police are trying to question you - like asking you how much you had to drink, or how many times you hit your wife.
The Supreme Court recognized that a police interrogation is not like most encounters. The police have the power, which they can use to try and get you to talk. And once you start talking, you are likely to say something that's going to help them prove their case. To balance that power out, the Supreme Court held that the police had to tell you certain things - one of which is that you don't have to talk to them, and if you do, anything you say can be used against you. They also have to tell you that you have the right to have a lawyer present if you want one.
There are two important limitations on Miranda:
- It only applies if you are in custody (which usually means if you've been arrested)
- It only applies if you are being questioned (i.e. they are asking you questions)
When warnings are required is a topic for a different discussion. The question answered here is what happens if the police don't "read your rights" to you. Most people who ask that question assume that it's important; maybe even important enough to invalidate the arrest. I can't begin to estimate the number of people who start our meeting with the statement that "the police didn't read me my rights". The response they get from me is not what they expect.
The fact is that the failure to give Miranda warnings is almost always a non-issue. It's only an issue if you were questioned after you were placed in custody. Consider a typical theft/shoplifting case. A store manager sees someone walk out with merchandise, and call the police. The person is arrested, and taken to jail without the officer reading the Miranda warnings. In that case, it makes no difference.
The situation would be different if after you get to the jail, a detective comes and talks to you and starts questioning. Before they do so they must give you the Miranda warnings, and if they don't, they can't use what you tell them against you.
The reality is that police rarely fail to give Miranda warnings before they start questioning you, so you probably need to look for another defense.
If you want more information on the Criminal Justice System, download a free copy of our book, The Layman's Guide to the Criminal Justice System. If you've been arrested in Waco, McLennan County, Bell County, Hill County or Falls County, and are looking for help, give us a call at 254-296-0020, or fill out our contact form.
How much does it cost to hire a DWI lawyer in Waco, Texas?
The one question everyone has is how much is it going to cost? A lot of times, that’s the first question asked when people call us. If it’s not the first thing they ask, it’s because they’re embarrassed to ask up front. I know, because that's what I would do in a lot of situations. So I know that even if it’s not the first question, it is still the question you really want to know the answer to; after all, you need to know if you are going to be able to afford it.
So I’m going to tell you the answer – at least the answer we give. It’s $5,000.00. Sometimes the response is a long silence, which is often followed by “thank you” and they hang up. A lot of people expect it to be far less. Maybe it’s because they’ve called around, or more likely it’s because they don’t really understand what is involved, and how lawyers set fees.
Most lawyers are going to be shocked I told you this. For some reason, they think fees are supposed to be some big secret you can only get the answer to if you come in and talk to them. They don't want other lawyers to know what they charge. I don't understand that. When potential clients come in to talk to us, they often tell us they've been to a certain lawyer, and they were going to charge X. Maybe it's so they can adjust the fee if they need to. I can tell you that's not something we do. If you want to hire us, you should be willing to pay what we ask.
Instead of simply telling you what our fee is, I’m going to explain how we come up with that amount.
First, of all, there aren’t any rules or formulas lawyers use. However, most lawyers base fees on certain things, such as:
- Reputation, and
Experience is one of the things that are important, but only to an extent. For example, suppose you have a lawyer who has been licensed for 35 years. For the past 34 years, he’s been working for a firm that handles insurance disputes, and they went out of business. He decides to go out on his own and starts handling criminal cases, including DWI’s. Even though the lawyer has 35 years of experience, he/she may only have 1 year of experience in handling DWI cases. Or you might have a general practice lawyer with 35 years of experience. He/she has handled DWI cases, but may only handle 3 or 4 cases a year, along with the other matters they handle. That’s not the same experience as a lawyer who handles 30-40 DWI cases a year. This includes a lot of criminal defense lawyers; just because they have handled criminal cases doesn't mean they handle a lot of DWI cases.
All lawyers go to – and graduate from – law school. That doesn’t make you ready to handle a case through. Lawyers are required to continue their education, and take a certain number of CLE hours each year. The reason for that requirement is that the law is constantly changing, and you have to keep up with it. Getting the basic number of CLE hours is a minimum though; it’s the equivalent of the student who does just enough to pass. Most people want a lawyer – or any professional – to do more than just “pass”.
When I started practicing law, there were not nearly as many CLE programs as there are now. We are fortunate to now have a lot of educational opportunities. We also have the option to attend “advanced” training. Most of those are multi-day programs, devoted to a specific topic.
DWI is an area that requires a lot of training if you want to stay ahead of the prosecution. DWI is a unique area of the law, that combines both law and science. Understanding, and keeping up with DWI law, is not that hard. Once you know the basics, you can keep up with the case results with minimal effort. A lot of CLE course have DWI updates, so it’s pretty easy to stay up to date, and at least know what the law is.
What’s far more difficult to do is to learn the science involved in DWI cases. Most lawyers don’t have scientific backgrounds, so understanding the science does not come easy. You might wonder why that really makes a difference The majority of DWI cases involve either a blood or breath test. Few lawyers look at anything more than the result. However, these are tests, and like all testing, the validity of the test depends on whether it is performed properly, and the machines are working correctly. You won’t know that unless you understand the tests, and know what to look for.
Over the last several years, there has been an increasing number of advanced courses on blood and breath testing. Most are at least a week long. As you might guess, they are also expensive – ranging from a little over a thousand dollars to several thousand dollars. That doesn’t include hotel and travel. By the time you add all of that up, you have spent several thousand dollars going to a course. While you don’t charge clients for the costs of those courses, you do expect to be worth more than the lawyer who doesn’t have knowledge.
Some lawyers go even farther and take the same training given to police officers for Field Sobriety testing. They also will have the certification police officers have, which can be useful in cross-examination. Again, those classes are not cheap; you can’t just go down to the police academy and ask them to let you sit in. You should expect to pay more for a lawyer that has the training. This is the certificate I received after taking the Field Sobriety Training - which was actually a lot of fun.
Texas has a certification process. While you cannot obtain certification in DWI law, you can obtain certification for criminal law and criminal appellate law. There are several parts to certification, and few lawyers seek it. First, you must be licensed at least five years – which is pretty minimal. You also must devote a substantial portion of your practice to criminal law. That by itself weeds out lawyers who only handle a few criminal cases a year.
The second part is recommendations. You have to provide the names of lawyers you have worked with, and judges you have appeared before. Those people are contacted and asked if they would recommend you for certification.
Finally, you have to take – and pass – a test to demonstrate your knowledge of criminal law. This isn’t an easy test and is like taking the bar exam all over again. They don’t make it easy, and a substantial number of people don’t pass it.
The end result is that you can be assured that a lawyer who is board certified has the experience and knowledge required to be able to say they are a “specialist”. As with anything else, you are going to pay more for a specialist. Think of doctors; a cardiologist charges more than a GP.
This one is a little more difficult to assess. You obviously want a lawyer who is respected by other lawyers and the courts. That way you know they are going to listen to what they have to say. That doesn’t mean they are always going to agree, but they are going to consider it because they understand the lawyer knows what they are talking about. Think of people you know. You probably have someone you respect, and you are going to give a lot more weight to what they have to say than someone you don’t know.
The problem is how to determine what a lawyer’s reputation is. One indicator is the opinion of other lawyers. I mentioned CLE programs earlier. The people who conduct those programs choose lawyers who they believe are experts in their field and have knowledge that other lawyers need to know about. You can be assured that lawyers who regularly appear in CLE programs have a good reputation among other lawyers.
Another indicator is press coverage. While anyone can get in the news – usually in a bad way – reporters quickly learn who the lawyers are that are respected, and seek them out when they need information on a particular topic.
Finally, we now have the benefit of reviews. While you have to be careful when evaluating what other people say, you can usually find a pattern. This is the online equivalent of going out and asking for recommendations. We can talk a lot more about reviews, but one thing I believe that is important is to look at the reviews provided by lawyers - if there are any. Again, lawyers know who the good lawyers are. You might think that lawyers will simply provide a good review for a friend, so they can return the favor. I'm sure that happens, but most lawyers are far too concerned with their reputation to endorse someone they know is not qualified.
The final factor is time. One of the factors that determine the amount of a fee is the amount of time that will be required to handle the case. That’s why it’s going to cost more to defend a murder case than a DWI case.
There are two approaches to setting fees in a criminal case. One is to charge a lower amount, with the hope of getting more cases. The downside to that is that the more cases you have, the less time you have to devote to each case. Practicing law is a business. Just like any other business, there are costs you have to pay to operate – rent, salaries, supplies, etc.. There is a certain amount you must take in each month just to operate, which is generally far more than most people would guess.
While a higher fee doesn’t guarantee that the lawyer is going to spend more time on your case, most lawyers who charge higher fees do so with the goal of handling fewer cases, so they can devote more time to each case.
Aren't all lawyers the same?
I hope that if you’ve gotten to the point in the article you recognize that there is a difference in lawyers. Just in case, I’ll talk about the assumption a lot of people have, which is that all lawyers are basically the same. Frankly, when I first got out of law school I thought the same thing. However, I learned early on that wasn't the case. The first time it hit me was after arguing a case before the Federal Court of Appeals. It was a multi-defendant case with several lawyers - all of whom I thought were pretty good. After arguments, one of the lawyers commented that he would have never raised one of the issues I presented - which was the issue the court seemed to be most interested in. It seemed pretty basic to me, and I was more than a little surprised that the other lawyer didn't also see it. The Court ended up agreeing with me and reversed my client's conviction. That was an eye-opening experience because I realized that if my client had the lawyer who made the comment to me, she would not have won - and might still be in prison.
I've since had that same experience several times. More than once I've had a District Attorney or another lawyer comment that they would have never thought to raise a certain issue, or I was the first person to point that out.
Everyone believes you get what you pay for - why should lawyers be any different?
You hire a lawyer to give you the best chance for success in a case - whatever success may mean in your situation. That's no different from decisions you make in other areas of your life - especially when it comes to your health. My wife passed away several years ago after a long battle with cancer. When she was first diagnosed, I wanted a cure. We liked the doctor we were with, but I wanted to make sure we left no stone uncovered. I asked around, and also did some research, and eventually found a doctor who was considered an expert in treatment; she was about to retire from seeing patients, and concentrate solely on research. I knew she would be current on all of the current treatment options, even those that might not yet be readily known to the average physician. We ended up seeing her, and she continued to monitor my wife's case and provide recommendations from time to time. She didn't have the cure, but I'm convinced her advice and guidance gave my wife several extra years of life.
In a criminal case, your health is not at stake, but something equally as valuable is. Your freedom. When we sought out the doctor I wasn't worried about the cost - which I figured I would have to pay. I was going to come up with it.
If you want to take advantage of our experience and knowledge give us a call
If you've spent any time on this site, you would probably guess that we aren't the cheapest lawyers around; and you would be right. We try to set fees based on the experience and knowledge we bring to the table, which will hopefully translate into a benefit to you. If the future of you and your family is important, give us a call at 254-296-0020, or fill out the contact section on this page.
What is reasonable suspicion?
One of the standards used in criminal cases is “reasonable suspicion”. This standard applies to police encounters short of an actual arrest. The most common encounter is a traffic stop. Since your freedom is being infringed on – even if just for a little while – there must be a reason to do so. The standard the courts will apply is “reasonable suspicion.” So what does that mean?
Here’s an excerpt from an opinion by the Houston Court of Appeals in State v. Bernard, 503 S.W.3d 685 (2016):
A warrantless automobile stop is a Fourth Amendment seizure analogous to a temporary detention, and it must be justified by reasonable suspicion. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); see Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). The reasonableness of a temporary detention is determined from the totality of the circumstances. Leming, 493 S.W.3d at 562; Zuniga–Hernandez v. State, 473 S.W.3d 845, 848 (Tex. App.–Houston [14th Dist.] 2015, no pet.). If an officer has a reasonable basis for suspecting a person has committed a traffic offense, then the officer legally may initiate a traffic stop. Id. Reasonable suspicion is present if the officer has “specific, articulable facts that, combined with rational inferences from those facts, would lead [the officer] reasonably to conclude that the person ... is, has been, or soon will be engaged in criminal activity.” Derichsweiler, 348 S.W.3d at 914; Zuniga–Hernandez, 473 S.W.3d at 848. “An officer's stated purpose for a stop can neither validate an illegal stop nor invalidate a legal stop because the stop's legality rests on the totality of the circumstances, viewed objectively.” Id.
Unless you’re a lawyer, you probably wonder what all that means. Basically, it means the officer has to have a reason he can put into words as to why he thinks you committed an offense. Speeding cases are pretty easy when radar is involved – "I was using my radar, and clocked the car going XX." Most traffic offenses are also pretty simple – "he didn’t use a turn signal when changing lanes," or making a turn, or didn’t stop at a stop sign.
The harder cases (and better cases for defense lawyers) are when the stop involves some subjective determination – such as following too close or failing to signal 100 feet before turning. Generally, those decisions are based on estimates – which must be reasonable.
There also can be issues when the interpretation of a statute is involved. An example is a case I had where the defendant was charged with failing to signal a lane change, even though he was in a turn lane. We won the motion to suppress because the judge found that wasn’t a violation (after having to dig up some really obscure documentation on lane markers).
Something people are sometimes surprised to learn is that the subjective intent of the officer is not an issue. For example, an officer might see you driving down the highway and think you look like a drug dealer so he starts following you. He cannot stop you because of his suspicions, but if you commit a traffic offense while he’s following you, that’s fair game. It also can go the other way. The officer may believe you’ve committed a certain offense, but if his interpretation of the law is wrong, that doesn’t validate the stop.
In case you’re wondering, reasonable suspicion is not enough to justify an arrest. There is a higher burden required to actually place you in custody. I’ll address that in another question.
If you want more information on the criminal justice system, get a free copy of our "Layman's Guide to the Criminal Justice System".
What's the first thing I should do if arrested for Driving while intoxicated?
For most people, an arrest for driving while intoxicated is the first time they have been involved in the criminal justice system. That means you probably don't have a clue as to what to do next. The natural tendency is to ignore it and try to not to think about it. Of course, that's impossible, because your arrest is probably all you're thinking about.
I'm assuming you have already posted bond and got out of jail. You may now be starting to look for a lawyer. That's an important decision, but in the meantime, there are a couple of things you need to take care of.
Request a hearing on your license suspension
You probably received a piece of paper, which serves as your temporary driver's license. If you don't do anything, your license will be suspended 40 days after the date of your arrest. You have the right to have a hearing, and require the Texas Department of Public Safety to prove the facts required to suspend your license. However, you must do this within 15 days of your arrest.
The process for requesting a hearing is pretty simple. You can either call or fax your request. The information is on the temporary license. You will need to provide your driver's license number, date of birth, and date of arrest, along with the reason why your license is being suspended. If you do that, your license is still valid until a hearing is held.
Check your bond conditions
Along with the temporary license, you should have been given papers related to the charge. In some situations, the judge who sets the bond is required to put a condition on your bond that you put an interlock device on your car. That is a device you have to blow into before you can start your car. If that condition was placed on your bond, you will be in violation of your bond if you don't do it. That means your bond could be revoked, and you could be arrested again and go back to jail. So make sure you check, and if in doubt, ask your bondsman.
If you hire a lawyer, they can take care of these things for you. If you haven't done so already, request our free book on Hiring a lawyer for Your DWI case. I guarantee you it won't be a waste of your time.
If you believe we might be the right lawyer for you and want to call and schedule an appointment to talk with us, please give us a call at 254-296-0020.
Do I have to take the Field Sobriety Tests?
If you are stopped, and the officer suspects you are driving while intoxicated, they are almost always going to ask you take Field Sobriety Tests. Those are series of standarized tests, that include:
- Horizontal Gaze Nystagmus (HGN), which looks at your eyes
- Walk and Turn
- One Leg Stand
Few officers ask you take these tests. Instead, they simply direct to do so. The first direction usually includes moving to a location where they can adminster the HGN. If you don't know, you would probably think you are required to take these tests. That assumption is WRONG, but unfortunately few people know they can refuse.
Why would you want to refuse? For starters, the tests have never been "peer reviewed" and verified, which means their scientific validity has never been established. Officers are even told in training that there are "error rates", which means the tests will identify someone as intoxicated who isn't.
Another reason is that while the tests appear to be objective, much of the scoring is subjective. That means whether you pass or fail can depend on how an officer evaluates youro actions. You also are scored only on what you do wrong; you don't get credit for the things you do right.
The final reason is that the tests are basically coordination tests. If you think about it, the tests require you to do abnormal actions to determine d you're normal. How many times do you walk down a line heel to toe, or stand on one leg and count.
So the question is whether you should take them. My answer is almost always no. There are reasons for that, other than you might be intoxicated. One reason is that most times, the officer has already decided you are intoxicated, and is simply looking for intoxication. Not only can that influence how they score the tests, they don't have to let you go even if they give you a passing score. I've had cases where individuals "passed", but were still arrested.
Everyone should know their Rights. That includes the right to say NO to Field Sobriety Tests.
If you've been arrested for DWI and want a FREE written case evaluation, fill out our form at Do I have a Defense?. If you would like to schedule an appointment to talk with us about your case, give us a call at 254-296-0020.
What does BAC mean?
If you’ve done any research on DWI you’ve seen the term BAC, and may be wondering what that means. Blood alcohol concentration is the abbreviation for “blood alcohol content”. The phrase actually used in the penal code is “alcohol concentration”. That phrase is defined as the number of grams of alcohol in:
- 210 liters of breath
- 100 milliliters of blood, or
- 67 milliliters of urine
This is important because “intoxicated” means having an alcohol concentration of .08 or more.
When you put all that together, you can commit the offense of driving while intoxicated when you operate a vehicle with an alcohol concentration of .08 or more.
You might wonder why lawyers refer to BAC when a breath test is taken. If BAC means blood alcohol content, that should apply only to blood tests right? Technically, you would be right. However, there is a reason for it – other than “AC” doesn’t sound as good. The explanation is that breath tests are designed to measure the amount of alcohol in the blood. The alcohol in the blood is transferred in the lungs, and expelled , which is what breath tests are based on. The breath test machine makes the calculations, and prints out the number – which looks the same as a blood test.
If you’re paying attention you probably figured out that they don’t take 100 milliliters of blood, nor does the breathalyzer collect 210 liters of breath. The result reported is based on a calculation to get that result from a much smaller sample. 100 milliliters is a little over 3 ounces; the actual amount in collected in a blood tube is generally 2-3 milliliters, so they have to perform a calculation to determine how much would be in 100 milliter. The same goes from 210 liters of breath - it be roughly the amount of air in a 55 gallon fish tank.
There are a lot of issues with blood tests and breath tests, but we won’t go there now.
Just because the reading from the breathalyzer or the blood test is over .08 doesn’t mean you are guilty. The State has to prove that reading is accurate, which is also another discussion.
If you’ve been arrested for drunk driving and want to talk with an experienced, board certified lawyer, give us a call at 254-296-0020.
Do I have to Answer Questions After a Traffic Stop
The scenario is repeated hundreds of time each day. Someone is pulled over for a traffic offense, the police officer smells alcohol. One of the first questions they are going to ask is have you had anything to drink. You don't want to lie, so you say yes. The next question is how much, and you are going to say "2 or 3" - trust me, 99% of the people give that answer. Since everyone says the same thing, they aren't going to believe you, and assume it's been a lot more. You have probably just ensured an escorted trip to the local jail.
I'll give you a hint. If the police smell alcohol, and you admit you have been drinking, you're probably going to jail. While you might think that's ridiculous, think about it from the officer's perspective. The last thing any police officer wants to do is let someone who go, who goes down the road and is involved in the accident. The first question is "why did you let them go." While it might not be fair, more often than not they are going to err on the side of taking you to jail.
If you're going to get arrested anyway, why should you do anything to help them convict you in court. Most people don't know this, but you have the right to refuse to answer questions. You do have to provide your name and identification, but that's it. Most people think they are going to look guilty if they refuse to answer questions, and you probably are. However, it's better than giving evidence to use against you later.
Here's how it plays out. If you admit you've been drinking, you already made at least half the case for the State. They aren't going to believe you on the number of drinks, and will argue you were trying to minimize the amount. Just as damaging are statements about when your last drink was. Most people want to put it as far back as possible. The State will believe that statement, and use that against you. Since alcohol is eliminated from the body, if you take a blood or breath test, they are going to argue that your alcohol level was actually much higher when you were driving, since it had gone down some by the time the test was done.
I know its unfortable to refuse to answer questions from a police officer. We've all been conditioned to cooperate with the police. This is one situation though where cooperation is not a good thing - at least for you.
If you've been arrested for a DWI, and want to discuss your case and see if we can help, give us a call at 254-781-3588.
Should I go with a court appointed attorney
We get this question a lot, especially in more serious cases. Most times, the answer I give surprises people. You would probably expect a lawyer to try to convince you to hire them, but that's always the best decision. There are several reasons for that.
If you qualify for an appointed attorney, you have already established that money is an issue. Unless you have a rich uncle, that means you are going to be limited in how much you can pay a lawyer - which can be a problem. It's probably not a surprise, but the best lawyers usually charge the highest fees. They can do so because they're generally worth it. If money is an issue, you aren't going to be able to hire one of the best lawyers in town. That means you are going to have to shop on price - which is never a good thing. If you need surgery, would you shop around for the cheapest surgeon? If the answer is no, why you should hire the cheapest lawyer when your future is at stake?
Lawyers who charge low fees need a high volume of cases to make a living, which means they have less time for each case. The reason to hire a lawyer is to get someone who can focus on your situation and your case.
I cannot speak for other counties, but I can tell you that in McLennan County, the quality of court-appointed lawyers is pretty good. Even most of the better lawyers are on the appointment list. So the chances are that you are going to get a good lawyer, who is going to work for you.
Can I be arrested if my friend has pot?
Let's imagine you decide to go out on Friday night with several of your friends. You don't smoke marijuana - or do any type of drugs - but your friends do. They're still your friends, and you just let it go. You're heading to a party, and they decide to fire up a joint. Everyone is having a good time - even you - when all of the sudden you see the red flashing lights behind you. You know how this ends; the officer smells marijuana and ends up finding a baggie in the car. You correctly tell the officer that you weren't doing anything - he hasn't heard that before, right? - but you still get arrested.
So what happens from there? Possession is defined by Texas law as "care, custody or control". Texas law also says that more than one person can "possess" something, which is why everyone in the car got arrested. When the item is not on you, the focus is on knowledge and access. While it's not enough to show you knew there was marijuana in the car, you probably still had access to it - especially if it was out in the open. So how would you defend against that?
There are a number of ways to do that, but none of them are foolproof. Even if your friend(s) claim it was theirs, the police - and the court - may believe they are just covering for you.
The moral of the story is this: Don't think that just because you're not using drugs - whatever it is - or they aren't on you, that you are in the clear. So don't get yourself in that position. If you are able to eventually get the charges dismissed, you still had to spend money on bond, got a free trip to the jail, and had to pay a lawyer. It's a pretty high price to pay for something that you can avoid.
What is an SR-22 and why do I need one?
An SR-22 is a certificate demonstrating a vehicle has the minimum liability insurance required by the State. You will need one if it is Ordered by the Court. It may also be required if your license has been suspended or revoked as the result of an accident, conviction or judgment. The Certificate must be filed with the Texas Department of Public, and maintained in force for whatever period is required.
The purpose of the SR-22 is to ensure that you maintain insurance coverage. The responsibility for monitoring the policy is shifted to the insurance company. They have to make sure the policy is current, and notify DPS if there are any changes. The SR-22 is not an actual insurance policy; it is actually an endorsement to the policy, which means you can't just go buy an SR-22.
It is important to note that a certificate of insurance coverage is NOT the same as an SR-22, and will not take its place. In other words, just because you insurance - no matter how much - that is not going to take the place of an SR-22. Not every company will issue an SR-22 since they consider it to be high risk insurance coverage. Some agents also are not familiar with the requirements for an SR-22, and may not want to handle it; or they may provide you the wrong coverage.
It is important to get coverage from a company that knows what they are doing, and knows the requirements for satisfying DPS. If you already have coverage for you and your family, you need to be especially careful, because taking out another policy may void the coverage you already have since you cannot be insured under two policies.
In our office we routinely refer people to Accurate Concepts Insurance. They are specialists in providing SR-22 coverage, and know exactly what to do. Importantly, they also make the process relatively painless, and issue notices to everyone who needs it - including your attorney.
If you have been arrested for a DWI and want to discuss your case give us a call at 254-296-0020, or fill out our contact form.
If you've been arrested for Driving While Intoxicated and want a FREE written case evaluation, fill out the form at Do I have a Defense?
I made bond - now what?
You got arrested, found a bondsman, and got out of jail. You don't want to go back to jail, so there a few things you need to make sure you keep up with.
Many times the bond paper you receive will have a court date. In McLennan County, whether or not you have a court date depends on the nature of the charge. If you were arrested for a misdemeanor offense, you will probably have a date. If it's a felony, the bond may say "Instanter".
The term "Instanter" technically means at that moment, or instantly. However, it doesn't mean you have to go to court as soon as you get out of jail. Instead, it's used as more of a placeholder. By using this term, it means you will appear in court when directed. In felony cases, the case has to be presented to a grand jury. That may be done fairly quickly, or it may be several months. You won't have a court date until you are actually indicted. Once that is done, a case number and date will be assigned to your case, and the Court will set a date to appear for arraignment.
Misdemeanor cases are treated differently because the case doesn't have to go to the grand jury. Instead, the District Attorney can file an information, which serves the same purpose as an indictment. That is usually done more quickly. As with an indictment, once the information is filed you will be assigned a case number and a court.
Just because there is a date in the bond, that doesn't mean that is the date you will go to court. Sometimes the District Attorney may want to do some additional investigation, so they will wait to file an information. If they are not ready by the date specified in the bond, then you don't have to appear.
How do you receive notice of your court date?
When you were arrested and booked into jail they wrote down your address. You need to make sure that is correct because that is where notices are sent. Normally, the Court will send notice to you if you are not represented by an attorney. The Court doesn't know that unless the attorney notifies them. If you haven't hired an attorney, it is your responsibility to keep up with your court date and make sure you appear.
Since the bond company has promised the Court you will show up for court, they are usually pretty good about keeping up with court dates. They are also usually good about making sure you know about your court dates. However, remember, it is still your responsibility to show up. If you don't the bondsmen is only out money; you, however, lose your freedom by going back to jail.
Keeping your bondsmen happy
You should always remember that you are out of jail because of your bondsmen. If you decide to "go off" of your bond, you can go back to jail. Most bonding companies have a schedule for checking in. Make sure you comply with that. Also, if you owe them money, make sure you pay it. They are under no obligation to stay on bond. If you don't pay or don't check in like you're supposed to, they will go to court and ask to be released from your bond.
What happens if you don't show
Failure to appear for a court is a serious matter. Not only can your bond be revoked, it is also a new offense. If you are on bond for a felony, the charge will be a felony. Likewise, if you are on bond for a misdemeanor, it will be a misdemeanor. That means that instead of one charge, you now have two.
Mistakes do happen. The best advice if you miss a date is to promptly notify your bondsmen, and your attorney if you have one. If there is a legitimate reason for missing, they may be able to avoid having the bond revoked. It's important to do this quickly because the longer you wait, the more likely it is that things are going to turn out badly.
If your bond is revoked, you will have to post a new bond. Sometimes you will have to go back to the court and have another bond set. Other times the court will set a new bond when the old one is revoked. It is always going to be higher, which means you are going to be out more money. You also will lose all the money you put up to post bond in the first place.
Take this seriously
It always amazes me how cavalier some people seem to be about court dates. While most people are diligent about keeping up with them, some don't seem to be concerned at all. This is a serious matter, and you need to take it seriously. I've seen too many take a simple case and turn it into a big problem because they didn't take it seriously. Don't make that mistake!
How do I request a hearing on my license suspension?
If you have been stopped and arrested for driving while intoxicated, your driver's license will be taken from you. You will be given a piece of paper, which serves as a temporary license. That temporary license is valid for 15 days UNLESS YOU REQUEST A HEARING. If you don't do anything your license will be suspended on the 15th day, and you will no longer be able to drive until the suspension is over.
You can request a hearing on the suspension. The hearing will happen before an administrative law judge, who will decide several issues. Those are:
- whether there was a legitimate reason to stop
- whether there was a reason to believe you were intoxicated
- whether you either refused to take a breathe test or took a test and failed it
While those can be fairly easy things to prove, the burden is on DPS to do that. We have been successful in challenging the reason for the stop, and in some cases challenging whether there really was a refusal.
Requesting a hearing is fairly simple. You can either call, write or fax your request. The instructions are provided at the bottom of the temporary license you are provided. No matter which method of notification you choose, the notice must contain:
- your full name
- date of birth
- driver's license number and State
- current mailing address
- home and daytime telephone numbers
- date and county of arrest
- arresting agency
- arresting officer
- whether test was failed or refused
All of this information must be included, or the notice will not be considered. Generally, when there are problems with the notice it usually involves the failure to include the county of arrest and arresting agency, and whether the test was failed or refused. You don't get a chance to correct it, so make sure you include everything.
Whichever method you choose make sure you keep some proof. DPS gets hundreds of faxes, letters, and calls each day, and occasionally they miss one. There have been a few occasions when they did not receive the notice, and we had to prove it was sent.
The notice must be received within 15 days of receiving notice of suspension. That is usually the date of arrest. However, in some cases - especially where blood is drawn - your license may not be taken immediately. Instead, you will be mailed notice of the suspension after the results come back. Your time starts to run from the date you receive the notice, or it is presumed you received the notice.
If you properly and timely request a hearing, your license will not be suspended, and you can continue to drive until the hearing.
If you would like more information on DWI please download a copy of our DWI survival guide. Or if you would like to discuss your case with us, give us a call at 254-296-0020.
How do you know if you've had too much to drink and drive?
Despite all the ad campaigns, it's still not illegal to drink and drive in Texas - even Waco, Texas. While that's good advice, it's not the law. You don't commit a criminal offense unless you drive while you're "intoxicated". That is defined as having an alcohol concentration of more .08 in your blood or breath, or not having the "normal use of your mental physical faculties".
So how do you know if you've had too much to drink and drive? Since alcohol alters your judgment, you aren't the best person to make that decision. I can't tell you how many people I've had tell me they were "fine" and did "great" on the field sobriety tests, and when you look at the tape they were barely able to stay standing.
While nothing is absolute, there are some general estimates you can make based on how alcohol is absorbed and processed in your body. Once ingested it will be absorbed, and then after a period of time your body will start to metabolize the alcohol, and it ends up being eliminated through the urine.
You can make a rough calculation of your blood alcohol content by knowing a few things. Generally, you process and eliminate the equivalent of one drink every hour; so if you only have one drink every hour you are going to be in pretty good shape - unless you're doing that over 10 or 12 hours and then you probably have other issues. There are a number of calculators out there which account for various factors, including weight and sex. Here's one from the National College of Drunk Driving Defense (which I'm a member of by the way), that will give you an estimate. Remember, it's just an estimate - If you are close to the limit I certainly wouldn't risk it; especially since the testing devices used are not entirely accurate; even blood tests have margins of error, so you could actually be under .08, and end up with a result over .08.
You also need to remember that the police officers are going to err on the side of caution. If they suspect you "might" be intoxicated you are going to get arrested and taken to jail. Even if you end up being released, that's not a pleasant experience. What that means is you need to err on the side of caution also. Don't chance an arrest - stay a little longer at the party, or have someone drive you home.
If you want me to know more about driving while intoxicated law please download our FREE resource.
If the police ask for a blood test can I request a breath test
Blood tests are being requested far more often in DWI cases. Whereas they used to be fairly rare, now it's a common occurence to request a blood sample even if a breathalyzer is available. No refusal weekends are also becoming more common - where if you refuse to take a breath test a warrant will be obtained to get a blood sample from you.
Obviously a blood test is far more invasive than a breath test. A number of people are terrified of needles, and would never willingly agree to be poked with one. It's not surprising that sometimes when an officer requests a blood sample a suspect will ask if they can take a breath test instead. It seems only fair that you should have that choice; after all, you're still giving them what they want - which is evidence they can ultimately use against you. Fairness and common sense seldom prevail in criminal cases though, and this situation is no exception.
The court's have consistently held that the choice of which test to administer belongs to the officer. They don't need a reason to choose one over the other. They get to choose, and you either have to consent to take the test they selected, or refuse. You don't get to negotiate - or make a counter-offer. Additionally, if you refuse to take the test requested that's considered a refusal, even if you offered to take the other test. That means that if they request a blood test and you tell them you'll take a breath test, that's considered a refusal.
Why would an officer request one test over another? Usually it's a matter of convenience. If you were in an accident and taken to the hospital, it's more convenient to get a blood sample - they would have to take you to jail to administer the breath test. On the other hand, if they've taken you to jail, it's more convenient to administer the breath test than have someone come in and draw blood - or to have to transport you somewhere where your blood can be drawn.
The bottom line is that you don't have a choice - either take the test requested, or refuse.
What happens if I don't show up for court?
Something we see fairly often is people who don't show up for a court appearance. This occurs most often on the first court appearance. If you don't hire a lawyer fairly quickly - or if your lawyer doesn't properly notify the court - it's up to the bondsmen to notify you after charges are filed and you have a court date. Most of the time they do this, but sometimes they don't. If you've moved, the notice may have been sent to the wrong address.
When you don't appear the court will forfeit your bond, and issue an arrest warrant. That means you will be re-arrested, and you will have to bond again - usually at a much higher amount. Most times the authorities will actively try to arrest you; if they can't locate you the warrant will show up on a records check if you are stopped for any reason.
Most times the failure to appear is the result of a mistake - or sometimes stupidity. If you have an attorney, most courts will notify your attorney - who can go to the judge and try to convince them to withdraw the warrant. Often that is successful, but you better not miss another one.
In addition to forfeiting your bond, the failure to appear for a court appearance can also be a separate charge. The prosecutor can choose to file a new charge for failure to appear. If the original offense is a misdemeanor, the new charge will be a felony. A bond will be set on the new charge, which you can expect to be high. Most times prosecutors don't file a new charge unless the failure to appear is flagrant.
No one wants to go to court and face punishment, but it's not something you can ignore. If you simply ignore the case or intentionally try to avoid going to court, your situation is going to be far worse. Not only will you add a new charge but the result on the original charge will no doubt be worse than it would have been originally.