This overview will give you some sense of what happens in a DWI case, from beginning to end. This is simply a road map. I know that people who have been arrested are looking for answers. Here are A LOT of answers. But, if there is something I don’t answer here, please call and ask me.
It is my job as a defense attorney to help my clients establish their best defense, and minimize the damage to their lives. My hope is that this article gives you an idea about how the case will go, and get a feel for how I pursue these cases as a DWI defense lawyer.
(Not discussed here but also very relevant are my articles about the Costs of DWI, which can be high. How do you try and minimize them. Also, read my page on discussing a game plan to Win Your Case.)
1) Getting Pulled Over
So you are driving and you see the bright flashing lights. Ouch. It’s a sinking feeling, to be sure. But why did you get pulled over? More importantly, how can a police officer stop you? What are the rules? In this section, I attempt to explain the rules to you.
In the United States, we have rights that protect us. One right we have is protection against illegal searches and seizures. You may have heard this but not know what it means. Police need probable cause. Simply, the officer must have a reason to pull you over. If a police officer didn’t like your bumper sticker, well that isn’t going to work. If your attorney can show the cop did not have a reason to pull you over, your DWI gets dismissed! For more on vehicle searches, click here and here. Here are the Greatest Hits from police reports:
- Failure to Signal a Turn
- Headlight or Taillight Out
- Rolling Through a Stop Sign
- Drifting Between Lanes
All of these give the police probable cause to stop you. Why is “speeding” in bold? Because even though that allows police to stop you, that is not a sign of intoxication. A skilled DWI lawyer will use this as a powerful weapon during trial.
Once you are stopped, the officer will always be looking for DWI. Always. What is your appearance? How are you behaving? Do you smell like alcohol? Police officers are trained to begin a DWI investigation if there are any signs of alcohol.
2) The DWI Investigation/ Field Sobriety Tests
Police officers are trained to conduct DWI investigation in three phases. The first phase is called Vehicle in Motion, and that was the subject of the previous section. The second phase is Personal Contact and the final phase is Pre-Arrest Screening.
Personal Contact begins when police speak to you while you are still in your car. This is an incredibly important phase will go far in determining whether you will be looking for a DWI attorney or not.
From the moment the police approach your car, they are trained to build a case against you. The officer will consider what you say, how you look, how you smell, everything you do. The same things police say about drivers show up again and again in arrest reports. Here are the Greatest Hits:
- Smell of Alcohol
- Bloodshot eyes
- Slurred Speech
Smell of Alcohol?
Of course, smell of alcohol means very little. It is impossible to tell by smell alone how much someone has had to drink, or even whether you’ve had one drink or ten drinks. Unless you bring this up, the officer won’t mention it. A skilled DWI attorney must elicit this information from the officer during trial.
What about bloodshot eyes? There can be many reasonable medical reasons for bloodshot eyes. My eyes get red when I’m suffering from lack of sleep or have allergies. You are not obliged to tell the officer how much you’ve been drinking or provide a reason for being out so late. Give the officer your license and registration and be courteous, but admit nothing.
We find that slurred speech is often exaggerated. And luckily, this is one good thing about video evidence. Videos don’t lie and you can do a lot of damage if an officer wrote that you slurred your speech and the video suggests otherwise.
If police observe any of these clues or other indicators that you’ve been drinking, the officer is going to ask you to get out of the vehicle and start performing circus acts. This is the third and final phase of a DWI investigation, called Pre-Arrest Screening.
Oh, the Standardized Field Sobriety Tests. They are used by all police departments across the country. Basically, they are difficult tests, and are designed for you to fail. They are difficult for anyone to do when they are sober in perfect conditions, let alone perform them outside in the elements when they are scared to death of getting arrested. There are three field sobriety tests which you will be asked to perform are:
- The Walk and Turn
- The One Leg Stand
- The Horizontal Gaze Nystagmus Test
Be advised that the officer’s dashboard camera will more than likely be making video and audio recordings of your performance. Police do not tell you this. You do not have to do these tests if you do not want to. If you refuse to do them, you will almost certainly be arrested. Even if you perform the tests, you will most likely get arrested too.
The field sobriety tests are not scientific tests of intoxication. Balancing on one leg and walking in a straight line are difficult for many of us when we are completely sober in the daylight, so it goes without saying that it may be difficult on the side of a roadway under the blinding police lights and extreme tension of an arrest for DWI hanging over you.
3) Blood and Breath Tests
Police are looking for more and better evidence to secure convictions. That is why almost all DWI cases have a blood or breath test these days. In Fort Worth, there is almost no question there will be one or the other, and sometimes both. Like if you take a breath test and it shows a very low amount of alcohol, police will then suspect drugs, and they will then get a blood test.
It is very important to get a DWI attorney that knows how to challenge the science behind these tests. Most lawyers simply do not attack the result and accept it as is. This can be catastrophic for their clients. It takes skill and expertise to cross exam the lab analyst who must testify against you. DWI lawyers who know the science, and know where the weaknesses are can do a lot of damage to the state’s case.
When you get arrested, police officers are required to explain to you that they are requesting a breath or blood sample. This sheet, called the DIC-24, explains the consequences for your driver’s license if you refuse.
If you lose your license, you must request a hearing to get it back within 15 days of arrest. This is a totally separate and apart from the DWI. If you do not request thiss hearing, your license suspension will go into effect 40 days after your arrest. If you lose your license hearing
- If you consent, 90 day license suspension if above 0.08
- If you refuse, 180 day license suspension
Sometimes, police will ask for a breath test before you are arrested. They will use a portable breath test, or PBT. The PBT is a handheld little machine. The results of this are not admissible in court because the machine is unreliable. It is just an indicator to police.
The real breath test machine is at the police station. If you refuse a breath test, they are getting a warrant and taking your blood. But if you do consent to a breath test, the officer will drive you to the jail. There is a little room with the breath test machine in the corner. The arresting officer will make you wait for 15 minutes, take a deep breath, and exhale into a little tube. If an officer is asking you to blow into this machine, you have definitely been placed under arrest. That means, even if you blow a 0.00%, they won’t let you go. At that point, they will start investigating you for a drug-related DWI.
There are many ways to challenge the validity of breath tests. I have more about this on other pages. Without getting too scientific or technical, the person’s weight and gender greatly affects the way a person absorbs and eliminates alcohol. Yet the breathalyzer employs a formula that treats all persons the same.
You don’t have to consent to a breath test, and the officer cannot make you take one. But if you do not consent, they will get a warrant, take you to a hospital, and take your blood.
If you took a blood test, you without a doubt need an attorney who knows the science. Like breath tests, there are many technical and scientific aspects to blood draws. Most criminal defense lawyers are unequipped for this fight. They are either not interested in the science, or they are oblivious to it. This is a huge disadvantage.
Prosecutors and police love to have blood tests. Unless you have a skilled attorney to challenge it effectively, blood tests are overwhelming evidence against you!
Texas law provides that blood must be taken by a doctor, nurse, or other authorized hospital personnel. The police officer will take you to a hospital and your blood will be drawn there. You can refuse a breath test. But police will get a warrant and draw your blood. They will do this against your will. Police must get a warrant if you refuse. If they don’t, that is an illegal search and seizure. The blood test result will not be admissible at trial.
4) You Get Arrested and Taken to Jail
If you are arrested for DWI in Tarrant County, book-in time can vary but is generally 8 to 12 hours. The length of time it takes to get arraigned and bond out can depends. Which city and the time of day you are arrested?
At night? In Fort Worth?
It will take longer to bond if you get arrested at night and especially on a weekend night. In Fort Worth, initially, you will be booked in downtown. But, all offenses greater than class C are transported to the Mansfield facility. Class C offenses are the lowest level of offenses traffic warrants and things like public intoxication and drug paraphernalia. DWI is a class B offense, and you will be transported to Mansfield. This can delay your release.
Arlington or Hurst or Euless?
Other larger municipalities in Tarrant County like Arlington, Hurst, and Euless have their own jails. Those cities won’t immediately transport you to the Tarrant County facility, but they will after 24 hours. Smaller municipalities in Tarrant County such as Lakeside do not have their own jail and will take you directly to the Tarrant County jail.
5) Getting a Lawyer and Going to Court
No matter where you got arrested in Tarrant County, you will be going to court in Fort Worth, Texas. Soon after you bond out, you will be notified of your initial court date. (Note that if you are arrested in Grand Prairie, you may be defending your case in either Tarrant or Dallas County. depending on where your arrest took place. If you are arrested in Azle, you could be in Tarrant or Parker County.)
If you don’t have a lawyer yet, your first court setting will be on an Initial Appearance docket. The court gives you an opportunity to hire a lawyer. This may be where you are right now. If you hire a lawyer, you don’t have to go to the Initial Appearance setting.
How Will You Know about Court?
Notice will be sent to you. Notice will be sent to your bondsman. You have to show up at court.
The Tarrant County courthouse has many floors and many courtrooms. If it is your first or second DWI, you will be in one of ten Tarrant County Criminal Courts. If it’s your third DWI, it will be in a Tarrant County District Court.
The judge may put conditions on your bond. The judge will order that an interlock system be put on your vehicle if you’ve had a prior DWI, or if your breath or blood test is high, usually this means your BAC is .15 or higher.
Your lawyer needs certain things to defend your case. Your defense attorney will get discovery generally before the first setting. This means your file. It includes things like:
- The police Report
- Video or Audio Recordings
- Breath Test Results
- Blood Test Results
- Any Statements You Made to Police
- Other witness statements
You Are Not “Going to Trial” When You go to Court
Many of my clients have never been in trouble before. They sometimes think when they go to court there will be a trial. At this point, trial is a long way off.
Court Settings are 4 to 6 weeks Apart, Generally
You will be going to court several times before your case is resolved. Before your next setting, which will likely be in 6 to 8 weeks, your attorney will consider defenses in your case and think about how to get a great result for you.
I always go over all the evidence with my clients. I have them come into the office to watch the video and look at the police report. At that point, we discuss their case and I evaluate the strong and weak points of the defense. There are strong and weak points in every case.
6) An Overview of a DWI Trial
Going to trial is always the client’s decision. It is the attorney’s job to advise the client about strategy
The DWI process ends in three ways: your case is dismissed, results in a plea bargain, or we go to trial. Dismissal is very rare in Tarrant County. Any lawyer that tells you otherwise is not being honest with you, or hasn’t practiced very long. These cases require an aggressive fight. To get results, your lawyer must push these cases all the way.
DWI Trials are Short
They are over in one or maybe two days. Generally, your lawyer and the prosecutor will pick the jury. If you have never seen this before, it is a process called voir dire. Both sides talk to a room full of about thirty potential jurors for about a half hour each about various aspects of the law and DWI. The point is to eliminate those with potential bias. Eventually, six jurors are chosen.
Beyond a Reasonable Doubt
During your trial, the prosecution has to prove each element of DWI beyond a reasonable doubt. The defense lawyer’s job is imply to raise reasonable doubt. Cross examination of the arresting officer and cross examination of the scientific expert are huge parts of your lawyer’s job during trial.
Generally, defendants select to have a jury trial, but again this depends on the facts of the case and which court your case is in. If you are found guilty, you have the option of having the judge or jury assess your punishment.
I hope this guide answers some of your questions! If there is something I didn’t answer well enough or you have a question about any of this, please give me a call! I’ll be happy to talk to you.