Joe LaBella & Associates

58 Things YOU Need to Know about Your DWI Case that NO ONE is Telling YOU

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DWI involves two separate prosecutions
1. CIVIL: This prosecution concerns your right to drive because you either failed a breath/blood test or you refused to take one. It is conducted under different rules, different courts and different prosecutors than the criminal offense of DWI. Prosecution for this by the Texas Department of Public Safety can result in the suspension of your license.

2. CRIMINAL: This is a prosecution for the criminal act of driving while intoxicated. Conviction for this offense carries both fine and jail punishment.

5 Things the DA Doesn't Want You to Know
1. He hasn't interviewed any witnesses in your case.

2. He hasn't looked at the video the arresting officer made when he stopped and arrested you.

3. He may have evidence that suggests you are not guilty.

4. He doesn't know if your breath or blood test can be admitted at your trial.

5. He's bluffing.

5 facts that must be proved before you can be convicted.
1. You are the person that was stopped and is accused.

2. You were driving a car.

3. In a public place.

4. In the county where you were arrested.

5. While you were intoxicated, you either had so much alcohol that you were not normal physically or mentally OR you had enough alcohol to have a concentration of at least 0.080 when you were driving.

The Absolute First thing you have to do is Save Your License!!
To save your license you must request a hearing in fifteen days so that your license won't be suspended without any further notice to you until its too late.
10 Things Your Attorney Needs to Know
1. Why were you stopped. (What did the police say and what do you think?)

2. What tests did you perform? (How do you think you did?)

3. Where were these "tests" conducted?

4. What did you have to drink?

5. When did you start / stop drinking?

6. Did you have anything to eat?

7. Did the police tell you the tests were voluntary?

8. Did the police tell you that you had a right to an independent blood test?

9. When did the police inform you of your right to remain silent.

10. Did the officer appear confident in his decision to arrest you?

5 Crucial items to your defense
1. A thorough investigation of all sides of your case.

2. A review of any and all videotapes.

3. Knowledge of any equipment used for testing.

4. Extensive knowledge and experience in trials with similar facts.

5. A lawyer who knows how to handle DWI cases from start to finish in order to save your license and your freedom.

Why should you have a jury trial
A jury is composed of regular people. They listen to the evidence and deliberate fully to reach a unanimous verdict. Jurors take their jobs much more seriously than they are generally given credit for. If your case is going to be won, you are more likely to win through a jury trial than any other form of disposition.

What options are available to conclude my case?
Dismissal. This is a very unlikely result in any case except under unusual circumstances. Beware of any attorney who assures you that they can have your case dismissed.
Reduction. This option is also very difficult to obtain and only happens in unusual cases. In some situations the facts may make the prosecutor realize that he/she cannot win.

In order to keep his conviction statistics up, an offer for you to plead to a "non-DWI" case is still a win for the prosecution and still means a criminal record for you. This type of disposition, however, is far better than being convicted of DWI because of all the additional punishment and the stigma a DWI conviction carries.
Plea Bargain. If you agree not to demand your right to a jury trial at all, then you and the prosecution will agree to your punishment. In DWI cases this results in a final conviction on your criminal record, but it also insures the leniency of your punishment. An experienced DWI attorney can obtain many concessions in plea bargaining if he/she has a reputation for winning cases at trial.
Trial. Trial is the only way to be acquitted and have all records of your arrest and accusation removed or erased from all criminal records that were created. This happens when you plead not guilty and force the State to prove you guilty beyond a reasonable doubt. Only an attorney with experience in DWI trials and a thorough investigation of the facts of your case can provide you with a meaningful estimation of your success at trial.

You see, a trial presents many unexpected changes as it proceeds. A true trial attorney can adapt quickly to changing facts and adjust the trial strategy to win your case. It is important to ask any attorney whom you interview about their success rate in jury trials. Anyone accused of a crime has an absolute right to a jury trial.

This most fundamental of all American rights must be waived in writing for a conviction to be valid. It is important that any attorney you consider be familiar with all of these dispositions. A reduction in your charge to non-DWI accusations is not offered in all counties, but is worth investigating.
How the arresting officer's testimony can be discredited:
1. Failure to follow police procedure.

2. Failure to follow administrative procedure with field testing.

3. Failure to follow the required procedure in blood/breath testing.

4. Testifying differently than reflected in police report.

5. Misleading a jury about the conditions at the scene.

5 Requirements for Breath or Blood Tests
1. Reasonable suspicion to stop your vehicle.

2. Probable cause based on specific, articulable facts that you were driving while intoxicated.

3. Provide you both orally and in writing with the consequences of failing or refusing the test.

4. Obtain your voluntary consent to conduct the test.

5. Follow the proper procedure in administering the test.

When are "Miranda Rights" required?
1. Contrary to popular opinion, in DWI cases, police are not required to inform you that you are being investigated for a crime and you have a right to consult an attorney before answering any questions or performing any sobriety exercises. If you are however aware of your rights as an American, you should politely refuse to comply until you are provided an opportunity to consult with an attorney.

What you must know before you decide to go to trial
The officer's complete version of the incident.
What your video(s) look like.
The maintenance history of any machines used in breath or blood testing.
The opinion of an experienced trial attorney based on similar cases that have been tried to conclusion in the past.
5 Things to Consider Before You Plea Bargain
1. The particular facts of your case fairly evaluated from all sides.

2. What a conviction for DWI will mean to you, your family, your career, your right to drive for any reason, and your future.

3. What is your individual tolerance to risk and do you prefer a guaranteed result.

4. Your ability to adequately finance a meaningful trial of your case. If you take your case to trial, be prepared to pay a trial fee comparable to the time involved in the preparation and presentation of your case and the trial experience of the attorney. The best trial attorneys do not work cheap, but win more cases than they lose.

What is going to happen to my license?
1st time DWI in Texas*

a. Your license will be AUTOMATICALLY SUSPENDED if you do not request a hearing within 15 days of your arrest. Period. No exceptions, no excuses.

b. If you took a breath/blood tests and your results were 0.080 or higher, your license could be suspended for 90 days

c. If you did not take a breath/blood test your license could be suspended for 180 days

d. If your license is suspended (unless you have a commercial license), you are eligible to receive an "Occupational Drivers License" to meet essential needs for work, school and household duties. This license is valid for 12 hours per 24 hour period and can be tailored to your particular driving needs.

e. Any DWI conviction after September 1, 2003 requires a ìsurchargeî of $1,000.00 to be paid annually for three years to receive your drivers license when you are eligible to get it back.

2nd time DWI in Texas*

a. If you return with additional DWI arrests or convictions, your driving privileges can be seriously affected. So if you were previously convicted for DWI, it is important to know exactly when you were previously convicted and whether your license was suspended because of the conviction or a breath/blood test failure or refusal.

b. As I mentioned above, your license will be AUTOMATICALLY SUSPENDED if you do not request a hearing within 15 days of your arrest.

c. If you took a breath/blood tests and your results were 0.080 or higher, your license could be suspended for 90 days

d. If you did not take a breath/blood test your license could be suspended for 2 years.

e. You may still be eligible for an Occupational License. However, you may have a waiting period (91 days to 1 year) before your Occupational License will be valid.

f. Any DWI conviction after September 1, 2003 requires a ìsurchargeî of $1,500.00 to be paid annually for three years to receive your drivers license when you are eligible to get it back.

*On ANY DWI conviction where your blood-alcohol content was 0.16 or greater you must pay a $2,000.00 surcharge per year for three years.

What Preliminary Motions Should be filed and the danger to you if they aren't.
Motion for Discovery of Evidence.
Motion to suppress evidence on the grounds that you were unconstitutionally stopped.
Motion to suppress evidence on the grounds that it was unconstitutionally confiscated.
Motion to suppress your oral statement because you were not "Mirandized."
All the motions I just covered are not required in all cases, but most. If your attorney fails to investigate and raise these issues in your defense, your case may not be dismissed when it should have been. You also may not learn about important evidence that may prove your innocence.

7 Defense Tactics in Pre-trial Motions
1. Contest the constitutionality of the stop.

2. Contest the constitutionality of the administration of roadside tests.

3. Contest the constitutionality of the probable cause to arrest.

4. Contest the constitutionality of the Miranda violation.

5. Contest the manner in which roadside tests were given.

6. Contest the admission of breath or blood tests.

7. Contest the constitutionality of any search or seizure.