First Court Setting:
It is very important that you not wait for the first court appearance to seek legal advice and to hire a lawyer.
Other Pretrial Court Appearances:
After the initial court appearance, you may have additional court appearances depending on how your case progresses. These court settings have different names depending on the county and the court. Some common names include “Announcement,” “Pre-trial” and “Plea” Dockets. Regardless of the name, these settings are additional opportunities for your lawyer and the prosecutor to discuss the case, for your lawyer to talk to the judge (if necessary) about the case, and for your lawyer to otherwise continue to develop the facts and law relevant to your case. During these settings, the prosecutor will usually make a plea bargain offer.
Between these court appearances, your attorney should also be working on your case by obtaining other information and documents relevant to your case. Some of this material will include:
- obtaining a copy of the video tape/DVD
- obtaining the police officers’ training records
- obtaining any police dispatch tapes and audio communications by the officers in your case
- obtaining any mobile data terminal (MDT) logs from computer communications by the officers in your case
- obtaining documents and affidavits related to the license revocation proceeding
- obtaining documents and records related to the breath test machine (maintenance, repair, etc.) and the results of the breath test if you took one.
Between the court appearances, you should meet and talk with your lawyer about the progress of the case, you should personally view the video (if there is one) of your arrest or of you at the station, and you should know what plea bargain offer (if any) has been made by the State.
At the conclusion of these pretrial settings, you will have to make a decision concerning whether you want to accept the plea bargain offer made by the State or whether you want to proceed to trial. Even if you initially think you are inclined to want to work out a plea bargain with the prosecutor, the case should still be investigated and prepared. Frequently, better plea bargains are available as a result of information obtained during a complete investigation. If a complete investigation does not occur, you cannot be sure that you will be getting the best available plea bargain offer.
Pretrial Motions and Hearings:
Depending on the facts and circumstances of your case, there may be pretrial motions that need to be filed and there may need to be hearings before the judge on those motions. Sometimes, these motions and hearings occur before the final decision about whether to proceed to trial and sometimes they occur after the decision has been made to proceed to trial. Similarly, depending on the case, the court, the issues, and the judge, the motions may sometimes be heard by the judge well before trial or may not get heard until the time of trial.
The most common contested motion is a Motion to Suppress Evidence. The trial court may suppress some or all of the evidence against you if your constitutional rights have been violated. For example, if the police officer did not have specific, articulable facts amounting to reasonable suspicion to make a traffic stop, then the initial stop would be unlawful and any evidence obtained thereafter is not admissible against you at a trial. Similarly, if the legal procedures for a breath test were not followed in your case, then the breath test results may not be admissible in your case. Sometimes, for strategic reasons, it is better and wiser to leave these issues to be resolved at trial. Whether and how this occurs will depend on the facts and circumstances of your case.
The trial is to a jury of your peers, consisting of six people in a misdemeanor and twelve people in a felony, unless you are in the unusual circumstance of requesting a trial to the court or “bench trial.” Depending on the facts and circumstances of your case, a DWI trial can last from one to five days. Most DWI trials last two to three days. The trial is divided into several parts: the jury selection or voir dire; the opening remarks; the State’s case-in-chief; the defense case-in-chief; and closing arguments.
Unless you testify during the defense case-in-chief, the only time during the guilt-innocence phase of the trial that you will say anything to the judge or jury is just before opening remarks when you are arraigned before the jury (when the formal charges are read in open court) and you announce to the judge and jury that you plead NOT GUILTY.
Even though you may not say anything else to the judge or jury, your role is far from passive. You should listen closely to the testimony and make notes of things you think your lawyer needs to know. Unless your lawyer has instructed you otherwise, you should not distract your lawyer during witness’ testimony. Save the things you need to talk about for breaks and intermissions between witnesses. Although the things you need to tell the lawyer are important and your lawyer needs to know what you think, distracting your lawyer while a witness is testifying may cause your lawyer to miss something that requires an objection or a question on cross-examination.
Punishment and Sentencing:
The range of punishment after conviction for a first offense DWI is from three to 180 days in the county jail and up to a $2,000 fine. If you have never been convicted of a felony in Texas, in any other state, or in the federal system, then you are eligible for probation (now called community supervision in the State of Texas), which may be for as long as three years. If you receive probation, the judge will set the terms and condition of probation.
If you have previously been convicted of DWI and the State successfully proves your prior conviction, then the range of punishment is from six days to one year in the county jail and up to a $4,000 fine. If you are eligible for and receive probation, you must, nonetheless, spend at least three days in jail as a condition of probation.
If you have at least two prior DWI convictions and at least one of them has been within the last 10 years, your current DWI offense may be a felony. If you are convicted of felony DWI, the range of punishment is from two to ten years in the State penitentiary and up to a $10,000 fine. If you are eligible for and receive probation, you must, nonetheless, spend at least ten days in jail as a condition of probation.
Just because you have previously been charged with or convicted of DWI does not automatically mean that the State will be able to convict you of an enhanced DWI offense. There are a variety of ways, depending on your individual facts and circumstances, potentially to prevent the State from using or proving the existence of your prior convictions. These facts and factors are among the things that your lawyer should investigate in advance of the decision to proceed to trial.