The following are common DWI questions I am often asked. If you have further questions, please call Attorney Dax Garvin at 512.482.0900.
1) What must be proven to find me guilty of DWI?
a. Your identity,
b. You were operating a motor vehicle,
c. In a public place,
d. In the Texas county where you were arrested, while
f. Your Blood Alcohol Level was .08 or higher, or
g. You had lost the normal use of mental or physical faculties, because of
h. The introduction of alcohol, a drug, or a combination thereof into your body.
2) How do I avoid being arrested for DWI?
Answer: You really have no control over this! The officer will probably tell you that you will be arrested if you do not perform the roadside SFSTs or give a breath sample and that your license will be suspended. What they don't tell you is that if they are asking you to perform these tasks, they already strongly believe you to be intoxicated and are only attempting to obtain evidence to use against you in court and you are likely going to be arrested and your license suspended anyway.
3) How do I keep my license from being automatically suspended?
Answer: In order to keep your license from being automatically suspended, you or your attorney will request an Administrative License Revocation (ALR) hearing to contest the Department of Public Safety's contention that there was probable cause for your arrest. If this request for a hearing is not made within 15 days of the arrest, then your license will be automatically suspended 40 days after the date of the arrest or when the ALR notice was served, whichever is later.
4) Does the ALR hearing effect my criminal court case for DWI?
Answer: In short, no. DPS will try to suspend your license independent of anything that is happening with your criminal case in court. Additionally, upon a final conviction of DWI, the criminal court judge may suspend your license for anywhere from 6 months to two years depending on your age and the circumstances of your case, prior convictions, etc. However, the ALR hearing is an excellent opportunity to obtain information that will strengthen your DWI defense.
5) Will I have to go to jail if this is my first DWI?
Answer: If you have a clean criminal history and there were no serious injuries in your first misdemeanor DWI, you should not have to worry about doing any additional jail time beyond the night of the arrest, however, you will discuss this with your attorney to decide the best solution for your arrest.
6) How does a DWI effect my criminal record, will I have a conviction if I receive probation?
Answer: For DWI's in Texas, even if you receive probation, you will have a final
conviction on your record. The law states that on your second DWI, you must spend at least 30 days in jail if you are convicted and sentenced to jail time. If you are given probation on a 2nd DWI in Texas, you must serve a minimum of 5 days as a condition of probation.
7) How much can I expect in fines if I receive probation?
Answer: A DWI 1st carries a maximum fine of $2,000 which can be paid monthly as a part of probation. Additionally, as of Sept. 1st 2003, DPS will assess an additional penalty of a minimum of at least $1,000 per year for three years upon a final conviction for DWI as a surcharge. Failure to pay this surcharge will result in a suspension of your driving privilege.
8 ) Is a breath sample always correct?
Answer: Absolutely not. A breath sample from an Intoxilyzer machine can be
inaccurate. There are ways to attack the validity of the breath test results.
9) What if the arresting officer did not read me my rights until after I completed sobriety tests at the station?
Answer: This is a common question. Sobriety tests are generally considered non-testimonial in nature and Miranda does not apply to non-testimonial evidence. However, if you were in custody and not free to leave and asked questions, these statements may be excluded in a pre-trial hearing. Reviewing the audio and video recording with your attorney is critical to see what may be suppressed or excluded.
10) What should I expect from a criminal defense lawyer?
a. Your lawyer should conduct a thorough investigation of the facts of your case.
b. He should be able to prepare and conduct a rigorous cross examination of the
State's witnesses. In most cases, this is the most important part of the trial.
c. He should have a comprehensive understanding of constitutional rights, how
they may be violated and how to protect those rights.
d. He should be available to you within a reasonable time to answer your questions.
11) What are some areas my attorney will review with me in a DWI case?
a. Whether the stop was constitutionally validl,
b. Whether the administration of roadside tests were conducted properly,
c. Whether probable cause existed for the arrest,
d. How Miranda will play a role in the case with statements and other evidence, and
e. Whether any breath or blood samples were obtained properly.
12) What are my rights if arrested for DWI (or another offense)?
Answer: The police officer is required to take you in front of a magistrate without unnecessary delay, but no later then 48 hours. The magistrate is required to inform you of the following under Miranda:
1. The charge(s) filed against you,
2. That you have the right to hire an attorney,
3. You have the right to remain silent,
4. You have the right to have an attorney present during questioning by law
enforcement or a prosecuting attorney,
5. You have the right to terminate the questioning at any time,
6. You have the right to request a court appointed attorney, if you are indigent and cannot afford to hire an attorney,
7.How to request a court appointed lawyer,
8. You are not required to make a statement and any statement may be used against you in court,
9. You are entitled to reasonable bail if allowed by law.
13) What if I am not read these Miranda rights?
Answer: Any confession you make during a custodial interrogation cannot be used against you unless you are first advised of your Miranda rights. However, if you volunteer a statement or say something not in response to direct questioning while you are in custody, those statements, phrases, etc will probably be admissible. So, REMAIN SILENT from the time you encounter a police officer until you are released and on your way! This is a critical area for you and your attorney to review.