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EXCELLENCE. INTELLIGENCE. COURAGE.


FACING CRIMINAL CHARGES?
You need a trusted attorney in Austin committed to defending you against all criminal charges. The Law Office of Betty Blackwell specializes in DUI, DWI, family abuse, and all other matters of criminal defense. Contact us today and an Austin criminal attorney will get started on your defense immediately.


NEED AN AUSTIN DWI ATTORNEY?
If you’re looking for an Austin DUI or DWI lawyer with experience navigating the Texas legal system, The Law Office of Betty Blackwell has your answer. Our hard-working Texas criminal defense attorneys stop at nothing until your desired outcome is achieved. We’ll do everything in our power to avoid excessive fines and prevent suspension of your license.


CHARGED WITH DOMESTIC VIOLENCE?
First and foremost, get to know your rights. If you’re facing family violence or abuse charges, you need a criminal lawyer with years of legal expertise and courtroom experience in the field. Call us today and speak with a highly-qualified Austin domestic violence attorney about your charges.


HAS YOUR DRIVER'S LICENSE BEEN SUSPENDED?
If you've received a Notice of Suspension of your TX driver's license due to a recent DWI charge, you should obtain legal counsel immediately to avoid further repercussions. If you continue driving once your license has been suspended, you’re running the risk of prolonged suspension and/or jail time. An experienced Austin Texas DWI lawyer may help you avoid suspension altogether or help you obtain an occupational driver’s license (ODL) so that you’re able to continue driving to work and performing essential household duties.
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ARRESTED IN TRAVIS COUNTY? NEED AUSTIN JAIL RELEASE?
Is a loved-one or family member being held in jail? Get them released now by calling The Law Office of Betty Blackwell. For drunk driving related offenses, a Travis County DWI lawyer can expedite jail release and provide important legal advice for fighting DWI charges.


START YOUR DEFENSE TODAY
Contact the Austin, Texas Law Office of Betty Blackwell to get an experienced and qualified criminal defense attorney, Board Certified in Criminal Law, to defend you against your DWI, domestic violence, or any other criminal charges.


DWI DEFENSE
In the State of Texas, it is illegal to operate a motor vehicle in a public place while intoxicated. "Intoxicated" means not having the normal use of your mental or physical faculties due to the introduction of alcohol, illegal drugs, prescription drugs, or any other substance into the body OR having a blood alcohol concentration of 0.08 or higher. "Driving" under Texas laws means operating a motor vehicle. This means that a police officer can arrest and charge you with DWI even if the car is not moving.
Texas has very serious consequences for driving while intoxicated (DWI) charges, even if it's your first offense. You face an automatic driver's license suspension 40 days after your arrest if you fail to request an administrative license revocation (ALR) hearing within 15 days of the arrest. As an experienced Austin, Texas DWI lawyer, Betty is dedicated to making certain that each and every person who's charged with a DWI knows exactly what types of consequences they face, and she will defend their rights before a jury if need be.
As of September 1st, 2005, Texas DWI laws became even more severe. To see how this may affect you and your DWI/DUI charges, contact the Law Office of Betty Blackwell today. Don't be left to defend yourself against your serious DWI charge alone or with a defense lawyer who doesn't know Texas DWI law. Don't jeopardize your driver's license by waiting too long to request a hearing.
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Eligibility Criteria
Eligible clients must meet both legal and clinical criteria in order to move their case forward. Once the case is deemed eligible, it is placed on docket and the judge will either accept or deny the case.
Legal Criteria:
Pending Travis County Felony Charge
Persons charged must be seventeen years of age or older
Persons who are charged with Possession of A Controlled Substance, Penalty Group 1 or 2, where the gram amount is four (4) grams or less or Possession of Marijuana, where the amount is more than four (4) ounces but less than five (5) pounds
Persons with no evidence of significant and substantial drug dealing
Persons who are without holds from other jurisdictions (persons may petition the court if pending hold is later resolved) and is otherwise eligible for personal bond release
Persons without other pending felony offenses other than Possession of a Controlled Substance or Possession of Marijuana charges arising out of the same incident as the case being reviewed for drug court
Persons who do not have prior convictions for crimes of violence or demonstrates a trend of violence
Persons must live within Travis County
Once it has been determined, the case is legally eligible; the person must submit to a clinical screening.
Clinical Criteria:
Persons who are not suicidal or homicidal or medically unstable
Persons must express that their drug use is problematic and that they have a desire for help
Persons who display chemical dependency problems that interferes with a combination of work, school, family, health or social concerns
A person who self-reports that their drug use is elevated to highly elevated in regards to frequency, quantity, and route of administration
If a case does not meet the above criteria, the originating District Criminal Court receives notification of case denial.
Program Structure:
The program requires a commitment of a minimum of twelve months. Participants are required to complete each phase of the program. To become a candidate for graduation, participants must demonstrate successful completion of all three phases and pay program fee of $1,000.00.
Phase I Requirements:
Minimum five (5) weeks
Weekly court appearances
Weekly individual office visits with assigned primary counselor or off-site case manager
Weekly educational group sessions (three per week) or treatment referral
Random Drug Testing
Three support groups per week
Two (2) consecutive weeks of negative drug tests in order to move to Phase II
Phase II Requirements:
Minimum fourteen (14) weeks
Bi- weekly court appearances
Bi- weekly individual office visits with assigned primary counselor or off-site case manager
Weekly educational group sessions (two per week) until treatment
Random Drug Testing
Three support groups per week
Ten (10) consecutive weeks of negative drug tests in order to move to Phase III
Phase III Requirements:
Minimum 33 weeks
Monthly court appearance
Monthly office visits with assigned primary counselor or off-site case manager
Weekly educational group sessions (once per week) or an approved aftercare program
Random Drug Testing
Three support groups per week
Six (6) consecutive months of negative drug tests


A DUI or DWI charge can affect your ability to drive, land you in jail, and lead to excessive fines. It may also affect your family life, your ability to work, and your livelihood. When your life is threatened by the consequences of a DUI or DWI charge, you need immediate legal assistance. At the McMinn Law Firm, our attorneys will aggressively assert your rights in court. We are experienced in first offense as well as multiple offense DUI cases.


Even before your arrest, law enforcement officials will be collecting evidence to be used against you. Our attorneys will protect your rights and challenge evidence presented against you. We will review police records, including breathalyzer results or field-sobriety test results, and determine whether they were properly administered. An officer must have probable cause to pull you over. Our attorneys will challenge any actions taken by the police officers if they acted outside the bounds of the law.


A DWI or DUI is a serious offense that will affect your record, impede your ability to drive, and may ultimately result in jail time. Contact us today for an immediate case evaluation. When your life is at risk, do not take a chance. You need immediate and aggressive legal assistance to ensure that your rights are protected.


Our DUI and DWI attorneys will work to find legal solutions for the many issues that arise related to a DUI. Contact us if you need assistance with any of the following:


DWI defense
ALR hearings
License suspension and revocation
Challenging test results: breathalyzers, blood tests, field sobriety tests
Refusals
Occupational licenses


I definitely recommend to folks they should hire local counsel, someone who practices regularly in the jurisdiction where they were charged.  I put out a question about Hunt County defense lawyers on the local Austin Criminal Defense Lawyers listserv, and will probably have some answers back soon. Call me this afternoon at (512) 964 9900, and I'll find some folks to recommend to you.


If it has been more than 15 days since you were arrested (and it sounds like it might be), you have unfortunately missed the opportunity to contest your driver's license suspension, but if it's within that time limit, all the more reason to contact an experienced DWI lawyer ASAP.  As for the occupational license, most good lawyers in my opinion will get the documents they need from you, and prepare that for you as part of the DWI representation. Unfortunately, very few jurisdictions have pre-prepared forms for a pro-se defendant to “just fill out” and get an ODL (none, actually, at least that I know of).


Whether or not you can have the records eventually sealed or expunged will depend on how the case is resolved.  The short answer is here is that if you are convicted of the DWI and/or POM you will probably not be eligible. Obviously a .13 breath test case is an uphill battle as far as beating the DWI charge goes, although, I don't know the specifics. First time marijuana offenders often receive deferred adjudication, and that can later be sealed by way of motion for non-disclosure. There is no deferred adjudication for DWI in Texas, so that will have to be dismissed or reduced or changed to a different charge for you to ever be able to erase or seal it.


I think it's usually reasonable to assume that first time offenses of DWI and Possession of Marijuana receive probation not jail, but again, I should probably add all the usual lawyer caveats here: I'm not making any guarantees, I don't have a crystal ball, etc., etc.
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As for how much this all costs, I'm sorry but the answer really has to be "it depends".  Representation at the ALR hearing (driver's license suspension) and obtaining an occupational can drive the price up.  I have no idea how fast a case runs in Hunt County, or how many court appearances a lawyer up there would have to make on these cases.  Even for "just" a first time DWI and Marijuana case though, I wouldn't advise scraping the bottom of the barrel, and just hiring the cheapest lawyer you can find.


DWI and possession of marijuana questions (and some answers)
I live in Austin, but was pulled over for speeding in Hunt County, Texas. I had had a couple of drinks and submitted a breath sample and came up with a .131. I was arrested for DWI first offense and was also charged with Possession of Marijuana less that 2 oz for a small amount of marijuana I had in the car.


I've never been in trouble with the law before, save for a couple of expired inspection stickers here and there, so I'm filled with a bunch of anxiety as far as what steps I need to take now.


I was given a temporary license that expires on the 27th of this month (December). I've read the form and understand that after 90 days and $125 my license will be reinstated. In the meantime, I'll have to bike it. A co-worker told me that there is a way to get an occupational license. I have tried calling the number on the form but receive no answer to get further information. What steps must I take to get an occupational license?


Second question: I asked a civil lawyer acquaintance for a referral. He told me it would be best to find a lawyer in Hunt County as all charges like DWI and Poss. of Marijuana are handled locally. Do you agree? If so.. can you please make a recommendation for a lawyer?  Is it wise to be represented by somebody in a different county?


Third question: I read about having your charges sealed so that only the state can read your record, but potential employers (nosy neighbors, etc.) will not have access. Do I request this or is this something that is offered by the court?
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Fourth question: What are the usual punishments for DWI 1 and Poss. Of Marijuana < 2 oz? In your opinion, what do I need to prepare for as far as fines, classes, probation?


Fifth question: Pardon the vulgarity, but will I be paying out the a** for legal representation? I'm so broke already-- what would you consider a fair cost for representation?


Cost of a DWI conviction in Texas
How much does it cost to be convicted of DWI in Texas? As usual, the answer here varies but let me take a crack at it anyway…
First we’ll assume this is a first time arrest, no collision, basic DWI that a defendant pleads guilty to in Austin.
The fine for a Class B misdemeanor DWI in Texas is “up to” $2000, but this is negotiable, let’s estimate it at an average of $500.
The DPS surcharge for a DWI conviction however is not negotiable, that’s a minimum of $1000 per year for 3 years, that’s $3000. If you provided a breath or blood sample over .16, twice the legal limit, the DPS surcharge is $2000/yr for 3 years = $6000. We’ll estimate this at the $3000 level.
Increase in insurance for a DWI conviction is going to vary greatly, based on your prior driving record, age, number of claims made against you in the past, etc. A very conservative estimate here though is going to be $3000, but probably higher. (And, again, conservative estimate means a low estimate.)
The ALR suspension of your 24/7 driver’s license is for either 90 days if you provided a specimen over .08, or 180 days if you refused to take a breath test. Occupational driver’s license costs in Travis County run approximately $250 for the filing fee, SR-22 insurance coverage for the period of the suspension will be $100-$150, and the reinstatement fee to DPS, which must be paid within 30 days of the ODL being filed, $125. So that’s approximately $475.
Probation costs $62 per month, and at an average of 18 to 24 months for “just” a first time DWI offense, which is common in Austin, you’re looking at $1116 to $1488. We’ll ballpark it at $1200.
Alcohol counseling is mandatory for DWI probations in Texas (or you lose your license again – never mind being sent back to court for a probation violation to face a more serious possibility of jail), and here in Austin, you’ll pay $55 to be evaluated for alcohol problems. The minimum number of classes assigned by the Travis County Counseling and Education Services (TCCES) is two: $10 for the MADD Victim Impact Panel, and $70 for the 12 hour DWI Education program. Minimum of $135.
So far, the cost of the DWI conviction is over $8000, and we didn’t talk about money spent on bail, towing charges to get your car out of impound, attorney’s fees, or court costs.


Texas DWI Deferred?
   Hello, Mr. Spencer, I am a very concerned Texan about a DWI charge with a deferred adjudication given back in Nov. 1998 when I was 19 years old. That has been more than eight years ago. When I got a copy of my criminal history I learned that the arrest was made but when it came to final pleading it said "unknown/unreported", but does not say "not guilty", nor "nolo contendere"? 
   What's up with this? I came across your website by accident and I read "there has been no deferred adjudication in Texas for DWI since 1984". Well Mr. Spencer, with all due respect, and I can assure you I am not lying to you, I do have a deferred adjudication on a DWI after 1984.
   Things keeps getting better, at the same time I was concurrently charged with evading arrest (Nov.98) with deferred adjudication, one year of probation. One day when I had to report to my probation officer for my evading arrest charge, I told him about the DWI charge and asked if I was going to serve it concurrently with evading arrest. He said what DWI? He did not know I even had it! 
   He said he was going to look for the report but couldn't find it in his office, and off he went to the city where I was originally arrested and couldn't find it either, and finally sent me to the county clerk office to see if the DWI report was there, neither. I went back to his office and told him what was happening and he said I was lucky that the papers got lost?! Up to date I am 100% sure I did not receive probation for this charge nor A.A. classes nor reported to my probation officer up-to-date. It's been over 8 years.
   What can be done from here should I expunge the record if possible or should I go with motion for non-disclosure? What is your best advice?
[email from “Name Withheld”]
There are several questions in this email; let me try to address them.
First, Deferred Adjudication for DWI, after 1984. While the law was changed to reflect that Deferred was not available to DWI offenders after September 1st, 1984, in fact, many counties kept giving it anyway. I suspect this was because they were unaware of the change in the law.
I know, from gathering prior records on DWI second and felony DWI clients in Austin, whose priors were in other Texas counties, that this happened, because I’ve seen it.  That actually presents some potentially favorable legal issues for the defense regarding enhancement of future DWIs, but I will address that question some other time.
My experience is that 1998 was a little late for any county in Texas to figure that out, but then again, you never know. Basically, if you plead no contest or guilty to the DWI, and the judge said something like “in the interest of justice I’m going to defer a finding of guilt and place you on community supervison…”, then you received deferred, even though technically you weren’t supposed to be able to.
Second, there’s really no such thing as “your criminal history”. Or perhaps I should say it this way: even this long after 9/11, there is no central database for all criminal history records. There’s only a variety of different agencies that have records of your arrest, and not all of them show what the disposition was. Even Texas DPS, which is the closest thing to a central depository for criminal histories, often shows “disposition unknown” as the resolution to cases that were resolved years ago.
You would need to go to the County Clerk’s office in the County in which you were arrested, not where you were supervised for the evading, and do a search for yourself by name and date of birth. In fact, in your case, I advise you to do it immediately, because you want to ensure that you got credit for the probation that you did for both cases.  If that doesn't do it, I'd contact a criminal defense lawyer in that county, and go from there.  If they were in the same county, contact a local attorney.
What you don’t want is some county in Texas thinking you were supposed to be reporting to their probation officer, but never did. If their computer tells them that, they may have issued a warrant for violating probation conditions (even though you were reporting in another county).
As far as expunction vs. motion for non-disclosure, an expunction is better, but you need to find out the disposition of the case, before you’ll be able to know if you are eligible for either.


Ticket for Open Container
Hello Mr. Spencer,
I had a question about an "open container" charge. My wife and I came to visit Dallas, Tx from Oklahoma. We wanted something fun to do so we went to a club. 
When we arrived, we saw two cops on bicycles. They flashed the light on us and did the regular cop thing. All they saw was a small Styrofoam cup. They asked for it and I gave it to them. 
One cop asked what it was. I did not answer because they did not let me answer. So she assumed it was liquor. 
She said it smelled like coke mixed with rum. This cup was only like 1/4 full (3/4 empty). Still unable to say anything they told me to poor it out. So I did. 
Then they wrote me a ticket for "open container-plastic cup w/mixed drink." No one said it was liquor in the cup but the accusing cop. 
All I was able to say was "Yes, the cup was mine", and, "Yes, I do still live in Oklahoma." That's it. Then they left. 
I want to know is this even a valid charge under these circumstances? Does this affect my insurance? Can I beat this?
Dave (Last Name Withheld)
[This was originally a comment left on the Open Container entry. I decided to answer it fully in this new post.]
Dave:
You’re actually asking several good questions. Let me break them down.
What evidence does an officer need to write me a ticket for an Open Container violation?
Well, whatever the officer thinks is justification for the ticket. The legal term here is “reasonable suspicion”, which is an awfully low standard. Not to be silly, but for example here in Austin, they don’t have to convene a jury, or summon a judge out on Sixth Street to merely issue you a ticket.
Most folks who have gotten traffic tickets have heard the officer say that their signature on the copy of the ticket is not an admission of guilt, just a promise to show up in court and take care of it. Basically, a ticket is just a piece of paper, stating the officer’s belief that a crime has been committed.
What evidence does the prosecutor need to convict me, if I take this case to jury trial?
This, of course, is the much higher and more familiar standard of “beyond a reasonable doubt”. In the example you describe, a full litigation of the facts would include filing a Motion to Suppress the Evidence before a trial was even called. 
While there might eventually be enough “evidence” for a Municipal Court judge to allow the case to reach the trial stage, the best lawyers will use this hearing to fully cross examine the officer about her memory, her version of events, and even litigate the issue of preservation of evidence.
Would an Open Container conviction affect my insurance?
I doubt it. But I don’t know. If this was an Open Container in vehicle charge, where the allegation was that you had it in your car, then perhaps – but I don’t really know. Probably depends on your insurance company. 
If this was merely an Open Container ticket for possessing alcohol in a prohibited place, not having anything to do with a car, then I think it’s even less likely. I can’t tell from the information in your email. Still, you don’t want the conviction either way.
Can I beat this charge?
Never any guarantees, but your basic options here are to work out some sort of deferred disposition with a prosecutor, or take it to trial. Most Class C prosecutors aren’t interested in hearing your defense, believing your version over the officer’s, and giving you an outright dismissal. (See this post.)
Deferred Dispositions in Texas are expungeable if successfully completed, and that may be your ultimate goal here.
One more problem for your situation is that living out of State will make it more difficult to “fight” the case, in terms of litigation. That usually takes several trips to Court, and that can become impractical for what is essentially, a traffic ticket level offense, punishable by a maximum of $500.
There may be information on the back of your ticket about how to enter into a deferred by mail (I’m not familiar with Dallas Class C ticket procedures). If not, you may want to contact a criminal defense lawyer there who can help you out.


DWI with Child Passenger - Questions and Answers
My boyfriend was recently charged with DWI with a Child Passenger in Midland, TX. When he was pulled over, he performed several field sobriety tests and submitted to a breath test.
The arresting officer didn't state whether he passed or failed and stated he "refused to blow" in his final report. And, an additional breath test was not administered at the jail.
He's in the process of retaining a lawyer referred to him by (someone he knows). The lawyer isn't a DWI lawyer and I've researched him to find most of his cases are trial cases. Is this the lawyer to have?
Actually, I would look for a lawyer that does have trial experience. Prosecutors know which lawyers will and won’t try cases, and, all other things being equal, probably offer better plea bargains to lawyers who they know can try a case well. Also, I think personal referrals are always a good source for finding a lawyer.
Criminal defense is very different from civil law practice however. You will want to know how much criminal defense, and DWI work any lawyer you hire has under his belt.
Does the state have a case?
This is the basic question everyone wants to know, of course, when they first come to see me as well. Unfortunately, there’s no pat answer to the question. If he did reasonably well on the FSTs, and didn’t provide a breath or blood specimen over the limit, then there’s always room for a valid defense.
Does he, my boyfriend, need to prove he complied with the breath test?
Based on your scenario, he probably took a portable breath test at the scene. For ALR driver’s license suspension purposes, refusing a request to take an Intoxilyzer test at the police station counts as a refusal, whether or not he took a PBT on scene. (And, of course, he doesn’t have to prove he took a breath test – they have to prove he was properly offered a test after the arrest, and that then he refused.)
Should he plead not guilty or try for deferred adjudication?
Unfortunately, there’s no deferred adjudication for DWI in Texas. There are, of course, other negotiable non-DWI options however, even for State Jail Felony DWI arrests.  [CORRECTION]
The lawyer has also told him he may be able to keep this off his record. Is this truthful?
If the case is dismissed, or he is acquitted at a bench or jury trial, he can seek to expunge the arrest from his record.
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DWI and "Technicalities"
I was arrested for the first time ever last weekend for DWI. The police officer stated I didn't come to a complete stop at a stop sign and that's why he pulled me over. I thought I did OK on the field sobriety tests but was arrested. Scared and nervous, but I did about as well as I could have on the tests.
At the police station I blew a 0.09. Just a fraction over the limit. I personally knew I was OK to drive the two miles home, but the law is the law.
I cooperated with the officer and did what he asked.
I have two questions: First, the officer did not put on my seat belt after I was placed in the cruiser; second, I was never read my rights. Could these two issues help me in my case?
By the way, I have never been in trouble in my life - ever, and I have clean driving record. I am also 44 yrs old. Any thoughts?
I have several thoughts; let me address some of the un-asked questions first.
I recently posted about the “Rising BAC” defense, and it’s possible it could apply in your case. As you acknowledge, barely over the limit is still over the limit…but the State must prove either (a) loss of the normal use of your mental and/or physical faculties, i.e. impairment or (b) having a breath or blood alcohol concentration of .08 or higher at the time of driving.
Depending on how long it was from the time of the stop until the time of the breath test, it may be arguable that you were under .08 at the time of driving (or, as the law phrases it: “while operating a motor vehicle in a public place”).
Polite and cooperative is always a good fact as well. Most police officers will acknowledge that “some people you have arrested for DWI become quite belligerent and rude”. I like to phrase it as “some people” on cross examination, because frankly, that’s probably the best you can get out of the officer, and anyway, a jury will know that not all who are “drunk” will be impolite.
As I said in the previous post, doing reasonable well on the field sobriety tests is a prerequisite to getting a dismissal, reduction of charges, or not guilty on an “over .08 breath test DWI” case. Sounds like you may have done well on them – obviously, will have to wait to see the video of the tests to know for sure.
The video will also show whether the officer asked questions about when your first and last drink were consumed, when your last meal was, and other questions potentially necessary for the State to prove “over .08 at time of driving”.
As for your actual questions, I don’t think either of those will provide you with a defense. Not seat-belting you in properly sounds like a bad idea; perhaps it’s an indication that he might be a rookie, maybe it shows that he’s sloppy, and that sloppiness might carry over into his grading of your performance on the FSTs. But that’s (1) a bit of stretch, and (2) definitely not the kind of technicality that would make a judge grant a Motion to Suppress the Evidence, or throw your case out.
I’ll post later about DWI officers not reading Miranda warnings to those arrested for DWI (it deserves a post of its own). But suffice it to say here that most officers don’t read DWI defendant’s their rights, nor do they need to.
Statements made by a defendant in response to questioning from an officer after they have been placed under arrest for any offense, without the Miranda warnings are potentially suppressible. But, in most DWI cases, all the evidence gathered against you is taken in the “investigation phase” (most of what you told the officer was before he even administered the tests to you – never mind cuffed you and stuck you in the back of his car).
Thus, the Miranda warnings do not usually apply in DWI cases.
As for never being in trouble before? The prosecutors don’t so much give you credit for lack of a prior record, as they give you grief (and enhanced penalties, fines, jail time, etc.) for it being the second time around.
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Quotas for Austin DWI Arrests?
“Does the Austin DWI Task Force have arrest quotas?”
I get asked this semi-frequently by folks recently arrested for DWI. I can tell you that the officers will testify, under oath, that there is not.
And, depending on the definition of the word “quota”, that may or may not be true.
It’s almost definitely true that individual officers are not told “You need to make X number of DWI arrests tonight,” or “You must average Y number of arrests per week/month,” etc.
But I do remember** former Austin police chief Stan Knee being quoted in an Austin American Statesman article, March 4th, 2006 as saying:
“This community needs to take seriously driving while impaired…We will make 6,000 DWI arrests in 2006.”
Bear in mind that the article itself had just acknowledged that fewer than 6000 DWI arrests were made in Austin for 2005. I think you can make a pretty good argument that the chief of police was coming pretty close to not just predicting, but mandating an increase in arrests.
What’s the difference between telling one individual officer “You must make an average of 5 DWI arrests per shift,” vs. predicting not only an increase, but a threshold level of expected arrests for the department as a whole? Just a little math and some semantics, I suppose.


WI, Statute of Limitations and Driver's License Questions
Question: My wife and I were pulled over in August 2005 on a rural road approximately 5 miles from my house by DPS who at the time was going the other direction on a two lane road. 
We had been out seeing my wife’s favorite band and it was her night out.  He asked me if I know what we were pulled over for and I say no.  License plate light out!  So no big deal until he shines the light at my wife and says, “What’s wrong with her?”
"She's sleeping,” I say.  Well he asks where we have been and I'm truthful, her night out and I'm the designated driver.  He proceeds through the get out of the car deal, does the eye test, then the one leg to 30, then walk the line....then the finger count....no problem here.....
He goes and finally wakes up my wife and talks with her.  Well she's hammered of course.  Then he comes back and arrests me after I refuse the breathalyzer. 
Then he arrests her for public intoxication.  I convince him to let a friend come get her and the vehicle.  He does and takes me to the pokey.  Since then my lawyer has sent three letters to the court letting them know when he will be out of town.  The court has never sent anything to me at my home or office. 
Since it has been two years, can I stroll down to the DPS and get my license or will they snatch me up?  I appreciate any input. 
Reply: What county is this from?  Also, you are saying it has been almost two years from the arrest?  The ALR suspension would usually be over well before then.  (Unless there are priors, perhaps...do you have any prior DWI arrests? or prior alcohol related license suspensions?)
Follow Up: I had one prior when I was 20 and I was 35 when I got this one.  Yes two years since arrest in August.  It is in [Anonymous] County.  I got my license suspended for not taking the breathalizer. 
I haven't done anything since.  No license, [rest of sentence deleted]. But if I can go and get it without being harassed I would love to do so.
Reply: Well, the 15 year old DWI can now (unfortunately) be used to enhance your new DWI charge to a DWI 2nd.  It used to be the law that after 10 years, new DWI charges would be filed as Class B 'first offense' DWIs.  But that's no longer the case.
But ALR (pretrial Driver's License Suspensions arising out of the DWI arrest) only started in 1995, so you shouldn't have any enhanceable alcohol related contacts.  If there were prior DWI related license suspensions within the applicable time period, DPS would have sought a 2 year suspension.
I asked because based on your facts, it sounds like DPS probably sought a 180 day license suspension, which would have started either 40 days after the arrest, if you did not request a hearing to contest the suspension.  And if you, or your DWI lawyer did request the hearing within the first 15 days of the arrest, certainly the hearing would have happened and the 180 day suspension is probably up.  I know that would be the case for an Austin DWI arrest, but I am unfamiliar with practice and docketing in your neck of the woods.
If you got an occupational license during the original ALR refusal 180 day driver's license suspension, and filed it within the 30 day grace period with Texas DPS, then they would have made you pay the $125 reinstatement fee at that time.  That would mean your license was no longer suspended.
If you never filed an occupational, or never went to pay DPS the reinstatement fee, then that is still owed, and will be necessary to get your license back.
Sounds like you've got an attorney helping you on the DWI.  You probably need to contact him for more specific information.
One last note:  Looks like you found my DWI blog by searching for "Statute of limitations" and "DWI Texas".  You certainly need to find out from your current DWI attorney whether or not the State has filed a complaint and information officially charging you with the DWI at your local County Clerk's office.  If the full 2 years runs without them doing that, you should have a legal defense to being prosecuted for the DWI criminal charge.


Exception to the 'No Deferred Adjudication for DWI' Rule
Decatur Texas defense attorney Barry Green left a comment on a post sometime back, and I meant to publish it, as soon as I got around to correcting my error. Done – although, it took a reminder from his blog for me to finally get around to doing it.
In his comment he politely points out that my knee-jerk reaction to a reader’s question (“Should he plead not guilty or try for deferred adjudication?”) was “a bit unclear” because she was talking about a Felony DWI with Child Passenger charge, not a plain old ordinary first time DWI. Turns out Barry was being kind in his comment.
Love your blog but I think something was a bit unclear here. Unless I'm wrong, CCP 42.12 Sec.5 still has the loophole to allow for deferred adjudication for the offense of DWI w/ Child. (Certainly, that option will be legislatively abolished one of these days.) But, for now, I can still get that offer on occasion up here in North Texas.
Since the question dealt specifically with State Jail Felony charge of DWI with Child Passenger, my answer was flat wrong. The specific question in the post was:
Should he plead not guilty or try for deferred adjudication?
My original answer:
Unfortunately, there’s no deferred adjudication for DWI in Texas. There are, of course, other negotiable non-DWI options however, even for State Jail Felony DWI arrests.
You can indeed get deferred adjudication for that charge, although I’m sure it was a legislative mistake. The section prohibiting deferreds for DWI charges is in the Code of Criminal Procedure, while the ‘new’ section for State Jail DWI is in the Penal Code. When they added the new offense, they forgot to go back and prohibit deferreds in the appropriate section, so it is indeed possible.
Part of my error is that when I hear that question (“Plead Not Guilty or Go For Deferred?”) in other non-DWI contexts, and I usually explain that there are other options besides (a) going to full blown jury trial and (b) ‘settling’ for deferred adjudication.
One day, I’ll write a post about why it’s good there’s no deferred adjudication for DWI. (Short version: deferred’s not always that good of an option, so it encourages trying cases.)
In the meantime, thanks for the complements Barry, you sent quite a few readers this way; over 100 in fact, and everyone else out there, please feel free to tell me when I get something wrong.


Austin DWI Lawyers
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DWI CHARGES CAN BE FOUGHT AND WON!!


In fact, simply giving up and taking a plea bargain to a DWI conviction results in costly and painful consequences later on:


A first offense is a Class B Misdemeanor, punishable by up to 6 months in jail, up to a $2000 fine, or both. Keep in mind that final convictions NEVER go away.
An arrest for DWI triggers a driver's license suspension from the DPS, called an Administrative License Revocation (ALR). A first offense with a breath test of .08 or over results in a 90-day suspension, whereas a breath test refusal warrants a suspension of 180 days.
If you are convicted, your insurance will find out, and you will be paying through the nose as a high-risk driver, or worse yet, dropped.
In addition to the ALR suspension, if you are convicted, the DPS will issue you a surcharge for the privilege of keeping your license. It lasts for 3 years, and begins at $1000/year for a first offense if you submitted a breath sample. If you refused, or are a repeat offender, you can expect to pay $1500/year. Even worse, if you gave a breath or blood sample that was .16 or over (twice the legal limit), you will be charged $2000/year.
HOW TO FIGHT YOUR DWI:


The most important aspect of any criminal case, DWI charges included, is to realize that just because you were arrested does not mean that you are guilty of a criminal charge.  This is the time to take a look at Austin DWI Lawyers to minimize the damage, and protect your reputation and license.  There is one set of rules for a DWI arrest at the roadside, and another set of rules in court to determine guilt or innocence of the DWI charge.  It can make all the difference:


-An officer needs only PROBABLE CAUSE to arrest you for a DWI;


-A jury must be convinced BEYOND A REASONABLE DOUBT that you
are guilty in order to convict you. Even further, they must agree UNANIMOUSLY.


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Austin DWI Lawyers


It's easy to see that there is a huge difference between the two standards, which leaves a lot of room for discussion at trial.  Every person who is arrested brings a unique set of characteristics to the table, many of which may make them appear less coordinated or able to communicate than others.  The Austin DWI lawyers at Tillman Braniff review all the circumstances around your DWI arrest, and ensure that you are treated as an individual, not just another suspect.


From the moment the police cruiser's lights come on, the camera is on YOU. If your appearance is reasonable, the video of the stop can be the best evidence on your behalf. Many cases rest solely on how the suspect looks on videotape, answering questions and performing field sobriety tests. The best policy is to identify yourself, and then politely refuse to answer questions or submit to any tests or searches until you can speak to your lawyer. You may be taken to jail, but there will be little on video that can be used to convict you.


If you have already been arrested for DWI, please call our office to speak with Austin DWI Lawyers, Brian Tillman or Rhett Braniff.  There are many ways to fight DWI charges, and we will be happy to schedule a free consultation to review your case.  A DWI conviction can mean loss of a job or future jobs, higher car insurance, DPS license surcharges, and most importantly, a conviction that never goes away.


1. How Are Criminal Offenses Classified in Texas?


Felonies


Capital- Punishable by death or life in prison.
Example: Capital Murder
First Degree- 5 to 99 years or life in prison; possible fine up to $10,000.
Example: Murder; Aggravated Sexual Assault
Second Degree- 2 to 20 years in prison; possible fine up to $10,000.
Example: Manslaughter; Indecency With a Child
Third Degree- 2 to 10 years in prison; possible fine up to $10,000.
Example: Intoxication Assault; Kidnapping
State Jail (Fourth Degree)- not more than 2 years or less than 180 days in state jail; possible fine up to $10,000.
Example: Criminally Negligent Homicide; Burglary of a Building
Misdemeanors


Class A- Punishable by up to 1 year in county jail and/or a fine up to $4,000
Example: Assault; Burglary of a Vehicle
Class B- Up to 180 days in county jail and/ or a fine up to $2,000
Example: DWI; Indecent Exposure
Class C- Fine only not to exceed $500
Example: Theft of Property less than $50; Disorderly Conduct
2. Under What Circumstances is An Arrest Made?


Usually a peace officer must obtain an arrest warrant before arresting someone. However, he may conduct an arrest if there is probable cause to believe a person committed a crime or if an offense is conducted in the presence of the officer.
A magistrate may issue an arrest warrant using an affidavit made under oath establishing probable cause that the accused has committed a crime. This warrant allows a peace officer to detain the accused.
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3. What Are the Rights of the Person Arrested?


Once an arrest is made, the accused is taken before a magistrate and informed of:


The accusation and any affidavit filed in relation to it.
The right to retain counsel.
The right to remain silent.
The right to have an attorney present during any interviews with state personnel.
The right to terminate an interview at anytime.
The right to request the appointment of counsel if the person cannot afford it.
The right to have an examining trial
That the person arrested is not required to make a statement and if one is made, it may be used against him.
The magistrate is required to allow reasonable time for the arrested to consult with his attorney and be bailed out of jail if allowed by law.
A ticket may be issued for a Class C misdemeanor in lieu of a hearing before the magistrate.
Additional rights of an accused person include:


Presumption of innocence until proven guilty beyond a reasonable doubt.
Right against self-incrimination.
Right to not be prosecuted for a felony until indicted by a grand jury.
Right to a copy of the accusation and to a speedy trial by an impartial jury
Right to confront witnesses
4. How is a Criminal Prosecution Initiated?


A criminal case is prosecuted in the name of the State of Texas against the defendant by a prosecutor acting under state authority.
Class C misdemeanors prosecutions begin with the filing of a complaint, a written affidavit made by a credible person charging the defendant with an offense. These are under the jurisdiction of the municipal or justice of the peace courts.
Class A and B misdemeanors are in the County Courts at Law. An information, or written statement presented by the State, charges the defendant with committing a crime. A complaint must be filed with the information.
Felonies are prosecuted in district courts and an indictment is required (unless waived by the defendant). The indictment is the written statement of a grand jury presented to the court accusing the defendant of the crime.
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5. What are the Procedures Before Trial?


Prior to trial, the court may set a case for a pre-trial hearing to determine legal issues such as:


Arraignment of defendant, if necessary
Appointment of counsel for defendant, if necessary
Motions for change of venue
Motions for continuance
Defense motions to discover state�??s evidence
Defense motions to suppress evidence
6. How Are Criminal Cases Resolved?


Plea Bargaining


Plea bargaining is the disposition of criminal charges through an agreement between the prosecutor and the defendant. In exchange for a guilty or no contest plea and waiver of the right to trial by jury, the prosecutor recommends a punishment that the judge presiding can accept or reject. Most criminal cases are resolved by plea bargaining.


Non-negotiated Guilty Plea (Open Plea)


A defendant may enter a guilty or no contest plea without an agreement from the prosecutor with respect to punishment. The judge then has the responsibility to determine the punishment applicable unless the defendant requests a jury to assess the punishment. The defendant retains his right to appeal.


Trial


Any person accused of a crime is guaranteed the right to trial by jury by the Texas Constitution. This right may be waived in favor of a trial to the court (judge) except in capital felony cases where the state notifies the court and defendant that it will seek the death penalty.


Dismissal


Prosecutors may, with the judge�??s consent, dismiss a criminal case for any of the following reasons:
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Insufficient evidence.
Crucial evidence is suppressed because of an illegal arrest or search.
The case is re-filed to correct mistakes in the information or indictment.
At the request of the victim.
The defendant pleads guilty to other offenses.
The defendant has never been arrested.
Necessary witnesses cannot be located.


DWI/DUI arrests often start out as a minor traffic violation in the evening or early morning hours—you forgot to put on your seat belt, or you failed to signal before you changed lanes. These small violations give the officer who stopped you the opportunity to stop you and talk to you. If the officer smells alcohol on your breath, you will probably be asked to step out of the car and perform what are called “Field Sobriety Tests.” You will probably be on camera when you do these tests. Each test involves many small components, but if you do only two of these things in each test wrong, the officer will say you failed that test. Theses tests must be administered correctly to be valid.
Wade Russell is certified to administer Field Sobriety Tests, just as are the officers who perform these tests. He will review the recording of you doing the tests, and will able to tell you whether the tests were demonstrated properly to you before you started. He will also be able to tell you how well you did on the tests, aside from what the officer said in his report about how well you did. Most of the time, what the officer writes in his or her report does not match what is on the recording—you may have done much better than what is written in the report. If you come very close to performing the tests correctly, and if there are other signs that you don’t appear to be impaired, you have a good chance of having your case reduced, or in some case, dismissed.
DWI cases have many issues for your attorney to look at—did you really do something wrong while driving for the officer to legally stop you? Did you really have alcohol on your breath? Did you really fail the tests? Were the tests administered properly?


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Ten Things You Need To Know About DWI 
_____________________________________________  

1. If you have been arrested for DWI/DUI, there are two legal proceedings that have been put in motion: 
a) the court case against you for the offense of DWI/DUI, and b) the administrative action to suspend your license for either taking and failing, or refusing the breath test or blood test.
2. You will be able to view a video of your arrest with Mr. Russell in his office and decide how to proceed with your court case.
3. You have only 15 days from the date of arrest to notify the Texas Department of Public Safety that you want to contest the suspension of your driver’s license.
4. If you do not contest the suspension of your license, it will be automatically suspended 40 days after the date of your arrest. If you do notify DPS that you want to contest the suspension of your license, the suspension will be put on hold until your hearing in front of an administrative law judge.
5. Your lawyer will notify DPS if you want a hearing on the suspension of your license. Your lawyer should also subpoena the officer who arrested you to appear at the hearing. If the officer fails to appear at your hearing without good reason, you should win the hearing and get to keep your license. If the officer appears and testifies, you have only a slight chance of winning the hearing. For a first DWI, if you lose the hearing, your license will be suspended that day for 90 days if you took the breath/blood test and failed it, or 180 days if you refused to take the test. Second and subsequent arrests for DWI have longer suspension periods.
6. If your license is suspended for a first DWI/DUI arrest, in most cases your lawyer can help you obtain an Occupational License right away. For second and subsequent arrests, there will be a waiting period until you may obtain an Occupational License.
7. DWI 1st is a Class B misdemeanor in Texas, and carries a potential sentence of up to 180 days in jail and a fine of up to $2000. In most cases of DWI 1st, probation is offered for a period of 1 year to 18 months, with a fine of approximately $500, and counseling required as a condition of probation. Community service hours of 60 hours or more are usually required as a condition of probation.
8. Not that it will help you now, but you did not have to perform any of the tests by the side of the road that the officer had you do. You are only required to watch the officer perform the tests, and politely refuse to do each test that the officer demonstrates. You also do not have to answer any of the questions that the officer asks you about where you have been, or whether you have been drinking alcohol recently.
9. Wade Russell is certified by the National Highway Traffic Safety Administration in Standardized Field Sobriety Testing procedures—the same training police officers receive to be qualified to do the tests by the side of the road. He is able to analyze the tests given to you and tell you if they were done correctly. If they were done incorrectly, they have little or no value as evidence against you.
10. Even if you are not perfect on the Field Sobriety Tests, in many cases you may otherwise appear less than intoxicated and be able to have your case reduced or refiled as another offense that is not a DWI. There is a very good reason to get your case reduced or refiled: a DWI conviction results in a requirement that you pay DPS a surcharge of $1000 or more per year, for 3 years, to keep your license after you are convicted, in addition to the requirements of probation mentioned above.
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Being accused ofor investigated for a criminal offense is one of the scariest things that can happen to a person. Getting the right Criminal Attorney to help you is critical. However, choosing the right person to help you through this difficult time can be overwhelming. We can help you find a reliable lawyer you can trust to defend you. I do that by spending time learning about you and your case. I find out what the State has against you, then I conduct my own thorough investigation. I research the law applicable to your case. I ask that you be active in the defense of your case, available to meet and discuss your case at every stage. I make it a priority to return calls timely, so that you are always up-to-date.


We Focus On:
Legal Services
Defend clients


Locating a Reliable Austin Criminal Attorney
We’ve all heard the saying “Anyone who represents themselves has a fool for a client”. When it comes to legal issues, not many of us would want to act as our own lawyer but when we need to find a reliable Austin Criminal Attorney it can be difficult to know what we really need or even where to begin. 


People need the services of a dependable Austin Criminal Attorney every day for trials ranging from state to federal. It’s important that any time you seek out the services of any Austin Criminal Attorney you choose someone that is trained, dedicated and prompt. 
If you find that you should need the services of an Austin Criminal Attorney where do you start? Many Criminal Attorneys limit their practice to just one field. An Criminal Attorney may specialize in state law while others may focus on federal law. Criminal Attorneys may limit their practice to one of the two or both. Make sure you search for an Austin Criminal Attorney that can handle the legal matter you have in mind. 


Starting Your Search for an Austin Criminal Attorney 
Call your city or state's Bar Association. You can find their number in your local phone directory. Just about every state’s Bar Association will have an Austin Criminal Attorney referral service. The Bar Association can offer you the names of a few Criminal Attorneys that match your requirements. Understand that a recommendation by the Bar Association is not a guarantee of finding the right Austin Criminal Attorney for your particular case. If there is someone you think you might want to follow up with, you’ll need to do your own research first. 
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There are a number of resources on the internet that can help in your search for a reliable Austin Criminal Attorney. Listings of reliable Criminal Attorneys in your city can be found in online legal directories. It’s possible to narrow your search by area and the Criminal Attorney’s specialty. Using the internet to track down a good Austin Criminal Attorney can prove to be very convenient since sometimes all it takes is an email to help you decide if you want to consider working with them. 


If you can’t afford an Austin Criminal Attorney or if you’re a senior citizen, you may be eligible for free or low cost legal assistance. Free or reduced rate consultations and legal services are available from area legal aid providers. Keep in mind that legal aid services may be limited to mediation, so if you need anything beyond that you might need to look elsewhere. But they may prove to be a valuable source for some free advice and may be able to recommend a good Austin Criminal Attorney for your needs. To find out if you qualify for help, you can call your local office for the aging or department of social services. 


Your Appointment with the Austin Criminal Attorney
After compiling your list, you should call each Austin Criminal Attorney that looks promising. It’s possible you may have made some contacts through entering your information at an online directory site. These initial contacts can help you to feel more comfortable if you do decide to make an appointment to discuss your case in person. 
Many Austin Criminal Attorneys will give you a free initial consultation to talk over the facts of your case with you. This consultation is a great way to find out if you and a specific Austin Criminal Attorney are a good fit. It’s important that you are comfortable with any Criminal Attorney you hope to work with. You can use this time to ask about an Criminal Attorney’s past experience in cases like yours. 


Ask about payment rates and any available terms. Problems can be avoided when you and an Austin Criminal Attorney are clear about the cost right from the beginning. By asking the Austin Criminal Attorney to put the fees in writing, you can make sure you keep a good relationship in tact. It can save you a lot of problems later if you ask for everything in writing before you agree to anything. 
Finding the Best Austin Criminal Attorney You can Trust
Be sure to ask for references from any Austin Criminal Attorney you might want to hire. You might be afraid of offending an Criminal Attorney by questioning his qualifications but a dependable Austin Criminal Attorney with a good record will appreciate your asking and will usually be happy to show you his references. Should any Austin Criminal Attorney seem insulted or in any way upset that you asked for references, you might want to have second thoughts about hiring him. 
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It’s actually easy to find an Austin Criminal Attorney. Locating a good Austin Criminal Attorney may take a little time and effort. Hiring a trustworthy Austin Criminal Attorney that understands your legal situation completely may be difficult to find. There are times when people must trust their very lives to an Criminal Attorney. While the majority of cases will never be this serious, when you need an Austin Criminal Attorney you want to know it is someone you can trust to give your case the attention it deserves.