When someone is arrested for a DWI, it can be a long and stressful process. You may be unsure of what to expect and will have tons of questions. The first questions after being released from jail are usually: Am I going back to jail? And Can this be dismissed?
Before your lawyer can make a determination of the best oath forward, he or she will need to conduct an investigation of the case. When you are arrested for DWI, the police investigation will include police reports, videos, breath or blood results, and any relevant data associated with those tests. Your DUI attorney may want to investigate the scene to see if the results of the standard field sobriety tests (SFST) are accurate. You need a thorough investigation of your case before your DWI lawyer can create a defense plan for you.
Remember, the State of Texas must prove every element of their case. The elements of DWI are:
1. a person
2. is intoxicated
3. while operating a vehicle
4. in a public place
How can the State Prove Intoxication?
The most contested issue in these kinds of cases is the issue of intoxication. Section 49.01 of the Texas Penal Code defines “alcohol concentration” as the number of grams of alcohol per:
A. 210 liters of breath;
B. 100 milliliters of blood; or
C. 67 milliliters of urine.
The State of Texas may prove “intoxication” by not having the normal use of mental faculties by reason of the induction of alcohol or substance, not having the normal use of physical faculties by way of the introduction of alcohol or substance, or by having an alcohol concentration of 0.08 or more.
An investigation of your criminal case usually begins with looking at the arresting officers police reports. What did they write as part of their investigation? Perhaps more importantly, what didn't they write? Analyzing their report is the first step in defending your case at trial.
Next, an investigation of your case will involve reviewing any videos that were used to document your SFST or the drawing of your blood or taking of your breath. How did you do on the video? Did you put up a fight? Were you aggressive? Were the police aggressive? The better you look on the video, the easier it is to fight for a dismissal or fight your case at trial.
Lastly, the results of your blood or breath may not be accurate. There are ways to fight the results at trial, especially If there is any evidence that the results of the tests may be compromised. The use of certain breath tests cannot be reliable at trial because some of them are outdated. An experience criminal defense attorney might be able to present to the jury that the blood may not be reliable because of the rate of error of the blood results.
What are Your Options?
A straight plea comes with a final conviction and it will follow you forever. You will plead guilty, the judge will find you guilty, and then we will move on to the “punishment” phase of the process. After your guilty plea, the judge or jury will determine the penalty—jail, probation, and/or costs.
Some offenses allow for what is called deferred adjudication. If accepted, you will enter a plea of guilty, but the judge will not find you guilty. The judge will “defer” a finding of guilt and place conditions on you that are similar probation. Common conditions include classes, community service, fines, drug tests, restitution, or any other conditions that the judge feels necessary.
Plea Not Guilty
If you are charged with a crime, you have two options: plea guilty or not guilty. A not guilty plea means that you are going to trial to present your case to a jury of 6 people if it is a misdemeanor, or 12 people if it is a felony. It is the state's burden to prove that you are guilty beyond a reasonable doubt. Anything less should result in not guilty. If you choose to take your case to trial, you should expect misdemeanor offenses to take around a year, and more serious felonies to take at least a year and a half or more before completion.
There are three phases of your criminal case if you enter a not guilty plea: trial preparation, guilt/innocence, and punishment.
During trial preparation we conduct our own investigation, examine evidence, issue subpoenas, obtain affidavits, visit the crime scene, speak to witnesses, and do everything in our power to put us in the best position to win. We have an in-house investigation team that works tirelessly to fight for you and bring to light the best evidence in your case.
During the guilt/innocence phase, we pick a jury and present your case. Again, the state carries the burden to of proving every single element of their case beyond a reasonable doubt. This phase of the trial comprises voir dire, opening statements, directs examination, cross-examination, and closing arguments. Some misdemeanors may last a few days, while other serious offenses may last a week or longer.
The punishment phase is only necessary if you are found guilty. The punishment phase is its own mini trial within a trial. Here, we will present evidence about your punishment attempting to persuade either the judge or the jury to give you the least amount of punishment possible. During this phase, our in-house investigation team will have provided the defense team with the best mitigating evidence for your case.
Apply for Pre-Trial Intervention
Pre-trial intervention is a program that provides qualified, first time offenders the opportunity to have their case dismissed if they comply with the terms of an agreement made with the prosecutor. Some terms of the agreement include:
• DWI education class
• Victim impact panel (VIP)
• Ignition interlock device installed in vehicle
• Check-in meetings with a probation officer
• Community Service
Who is Eligible?
• No criminal history
• Breath or blood results cannot be greater than .15 (may still be eligible with permission)
• Valid license and auto insurance on the date of the offense
• Not involved in a serious accident
Be aware that applying for pre-trial intervention requires that the defendant admit guilt. Although an admission of guilt is not a conviction for purposes of your criminal record, an admission of guilt is a conviction for immigration purposes. If you admit guilt as a result of your pre-trial intervention, it may be used against you in removal proceedings for immigration purposes.
If Denied Pre-Trial Intervention
If you apply for the pre-trial intervention program, you will have to admit guilt of the alleged offense. If you are denied entry to the program, the admission of guilt can be used against you at trial if you choose to go to trial. This will limit your defense at trial and your admission will almost surely be in front of a jury. You need an informed and experienced criminal defense attorney to help you make the decision of whether to apply a pre-trial intervention program.
Call us-- VELA LAW FIRM, PLLC (346) 444-8352
If you have been charged with DWI in Texas, call our office immediately. Our attorneys are experienced in getting DWI cases dismissed, or winning DWI cases at trial. We can help you make the tough decisions and get you the most favorable outcome of any case.