November 1, 2015

Harris County DWI Overview

As the third most populous county in the United States, Harris County has its fair share of DWI arrests. The Harris County criminal justice system is surprisingly fast in its turnaround of those accused of a crime, due to the size of the county and the number of people in it. No doubt if you’re accused of a crime like DWI, you have many questions about the court process and how your case will proceed. Read on for a Harris County DWI overview of the entire process.

What Happens After a DWI Arrest?

If you’re arrested for and charged with DWI–operating a motor vehicle on a public roadway with a blood alcohol concentration (“BAC”) of over .08 or the loss of your mental or physical faculties–in Harris County, you’ll most likely be brought before a magistrate that evening to see if there was probable cause for the arrest in your case. If probable cause is found by the magistrate judge, then a bail amount will be entered, you’ll be read your rights by the judge, and potentially you could be appointed counsel if you are indigent. Afterwards, you’ll be booked into the jail of whatever agency arrested you–for example, the Harris County jail if a Harris County Sheriff’s deputy arrested you. Then, you can either post the amount for bail and be released, or you will unfortunately sit in jail until your first court date.

Once an Assistant District Attorney at the Harris County District Attorney’s Office accepts the charge against you, your case begins to make its way to your first court date. The District Clerk’s Office takes the case file from the DA’s Office in a process called direct filing. The clerk then makes sure everything is in order and the case is assigned randomly to one of the county criminal courts at law if the case is a misdemeanor or one of the district criminal courts if the case is a felony. If you bonded out of jail, your court date will most likely be within a week’s time; if you could not bond out, you will appear in court the next day.

A common concern is which court you’ll need to appear in. If you have bonded out, you’ll be given this information, usually by the bondsman who posted the bond for you. The court is assigned randomly, but usually the court date is within a couple of days. In Harris County, you’ll need to appear on that date at the Criminal Justice Center in downtown Houston, at 1201 Franklin Street. Docket is called in almost all of the courts at 9am, and the lines at the CJC are extremely long, so be safe and get there as early as you can.

What can you expect at your first court setting? The judge (or the court coordinator) will call the docket; when you hear your name, stand and answer. Most judges will ask if you have an attorney, and if you do have one hired by your first court date, you should tell the judge at this time who your attorney is. Otherwise, you will be given a reset date–usually a few weeks to a month–to try and hire an attorney.

Before moving ahead in this process, however, let’s take a look at the arrest itself.

Steps of the DWI Arrest

So, you’ve just been pulled over on the freeway by a police officer, and you’ve been drinking. He approaches your car and asks for your driver’s license and proof of insurance. You hand these to him and he steps back to his car to run your information. The officer comes back to your car, shining a flashlight at your face, and asks if you’ve been drinking. What do you do?

In general, a police officer needs reasonable suspicion that you have committed a crime in order to pull you over onto the side of the road and conduct a traffic stop. It’s the lowest burden in the American justice system and quite easy to overcome. Weaving from lane to lane; failing to signal; running a stop sign; and speeding, just to name a few traffic violations, are all sufficient to get you pulled over for a traffic stop.

In order for a traffic stop to be “escalated” into a DWI stop, the officer must have, again, reasonable suspicion that you are committing the offense of driving while intoxicated. That suspicion may be from the smell of alcohol on your breath; slurred speech; red, bloodshot eyes; poor balance; and any evidence you provide, including if you were drinking, when your last drink was, how much you had to drink, etc.

At this point, the officer will usually ask you to step out of your car and ask if you’ll perform the Standardized Field Sobriety Tests (“SFSTs”). A little-known fact about the SFSTs is that you can refuse to do them. However, be aware that the officer will then arrest you for DWI, regardless of your refusal. If you consent to do the tests, usually the officer will place you in front of his car’s dash camera so the tests can be recorded, and he will administer three tests:

  1. Horizontal Gaze Nystagmus (HGN): The officer will pass a bright light in front of your eyes a number of times and will instruct you to follow it only with your eyes. This is testing for HGN, which is an automatic and uncontrollable reaction your eyes will do when you have consumed alcohol. It looks like the eyes will “click” from the center to the corner of the eye and back again when you hold your gaze at a certain degree. This test has six clues.
  2. One Legged Stand (OLS): Just as it says, the officer will instruct you to stand on one leg for a brief period of time. This test has four clues.
  3. Walk and Turn (WAT): Also self-explanatory, the officer will instruct you to take ten steps forward and then back along a straight line while counting out loud. This test has eight clues.

All of these tests are divided attention tests and are meant to essentially mimic the same sets of skills you would use to drive a car. The tests have been standardized across the nation by the National Highway Traffic Safety Administration, or NHTSA, and are used by the vast majority of police departments in the United States.

If the officer determines you have failed the tests, he can legally arrest you for allegedly driving while intoxicated, as the totality of the circumstances give him probable cause under the law to arrest you. He will then read a form called the DIC-24 to you, usually also on camera, which will ask if you consent to give a blood or breath test. You can refuse to give consent, but this will trigger a prosecutor writing a warrant for your blood, which a judge will sign relatively quickly. You can consent to either a blood test or a breath test, but if you do not consent, only your blood will be drawn.

If you happen to have been arrested on a weekend for DWI, you will be taken to HPD Central Intox, where a qualified phlebotomist will draw your blood after a warrant has been executed by the police officer. Thursday night through Sunday morning are “no refusal” periods in Houston. Otherwise, you could be taken to a hospital to have a nurse draw the blood.

One more point to mention: If you refuse the blood or breath test, your license can be suspended for up to 180 days for your first offense and 2 years for your 2nd DWI within 10 years of the 1st. Additionally, refusing any of the tests can be used against you by the prosecution as admissions of your guilt. Finally, if your BAC is over the legal limit of .08, your license will be suspended for at least 90 days if you consented to a breath or blood test.

You have 15 days to request an Automatic License Revocation hearing, where your attorney can fight DPS’s attempt to suspend your license. If successful, your license will not be suspended. The catch is you only have 15 days to request the hearing. Otherwise, your license will be suspended automatically.

What Are the Penalties for DWI?

DWI in Texas is split into a number of different categories, which you will find below.

  1. Driving While Intoxicated 1st: DWI 1st is a Class B misdemeanor, which means it can be punished by up to 180 days in jail and/or up to a $2000 fine. The minimum sentence is 3 days in jail, if you are sentenced to jail time. If you have open containers in your car, the minimum sentence is 6 days in jail. NOTE: A DWI 1st can become a Class A misdemeanor if the State proves you had a BAC of .15 or above.
  2. Driving While Intoxicated 2nd: DWI 2nd is a Class A misdemeanor, which means it can be punished by up to 1 year in jail and/or up to a $4000 fine. The minimum sentence is 30 days in jail, if sentenced to jail time. Additionally, an ignition interlock is required on your car for a period of time.
  3. Driving While Intoxicated 3rd (and any subsequent): DWI 3rd (and beyond) is a Third Degree felony. It can be punished by anywhere from 2 to 10 years in prison (Texas Department of Criminal Justice) and/or up to a $10,000 fine. Third Degree felonies can be enhanced with any prior felony convictions; if it is enhanced with one felony conviction, the penalty range increases to 2-20 years; if it is enhanced with two felony convictions, the penalty range increases to 25 to 99 years or life in prison. An ignition interlock device is also required for a period of time.

As you can see, the penalties become more and more severe. For all of these offenses, the Court may sentence you to a probation, which will usually be described as “X years probated for Y years” for a felony or “180 days/1 year probated for X months/years” for a misdemeanor on the plea bargain paperwork. The judge may require you to do community service, make donations, pay a fine, spend time in jail (for a DWI 2nd, 3 days in jail is required on a probation; for a DWI 3rd, 10 days in jail is required), report to a probation officer, submit to random drug tests, submit to substance abuse treatment, and many other conditions. A probation is a conviction for the purposes of your criminal history. There is no “deferred adjudication” for DWI in Texas.

If you mess up on your probation, a warrant will be put out for your arrest on what’s called a Motion to Revoke Probation, or MRP. This is a motion, signed by the State, which alleges that you failed to follow one or more of your conditions of probation; for example, you had a dirty urine test which tested positive for cocaine. Once you are arrested on the warrant, you will be brought into court to face the judge and any possible penalty. Your attorney can attempt to convince the judge to keep you on probation, and perhaps add to the conditions. Or, your attorney may request to have a full-blown hearing on the matter, where the State needs to bring evidence of your failure to abide by the terms of your probation (like a mini-trial). To prove your guilt at this hearing, however, the State only needs to prove it by a preponderance of the evidence, which means essentially more likely than not. It is a far cry from the usual reasonable doubt burden in a criminal trial.

You may also hear about something called a “pretrial diversion” or “pretrial intervention.” These options are not described by an actual law in Texas, like probation is; programs like this are operated by the district attorney’s office in your county. For Harris County, there are a number of requirements to receive a pretrial diversion for DWI, which are even more stringent and restrictive than a probation. However, if you successfully complete all the requirements, the case is dismissed.

There are other DWI offenses in Texas, including intoxication manslaughter, intoxication assault, and DWI with child passenger. Additionally, there is boating while intoxicated (BWI) and flying while intoxicated (FWI), which are less common.

How to Get Help with a DWI Charge

After reading all of what goes into a DWI charge, you may very well be overwhelmed. Not to worry, as my firm is here to help! When we have our initial free consultation, I’ll go over all the facts of your case and any potential defenses you may have. If you hire me, I will then begin my extensive investigation into the facts surrounding your case, including requesting records from DPS, the arresting agency, the laboratory that analyzed your blood or the records of the breath test machine you used, as well as any other evidence that the DA’s Office may be in possession of. In preparing to fight your case, I will investigate the scene of the stop and the circumstances surrounding it, as well as interview any witnesses who interacted with you before you were pulled over. That may mean your friends, people at the bar, the bartender, or anyone else who came into contact with you.

I will also employ the best experts to help with your case, if we decide to do so, who can help to point out flaws, weaknesses, and inconsistencies in any State expert witnesses, such as blood analysts and technical supervisors. You will absolutely be included in any discussion about the potential for retaining the assistance of an expert for your case.

I have a good working relationship with many of the prosecutors in Harris County, and if necessary, I will speak to them outside of our scheduled court dates to expedite evidence requests, discuss any defenses, and negotiate plea offers for you. Finally, I can also help you with obtaining an occupational license as an additional service. I have handled hundreds of DWIs as a prosecutor, and I know how those cases are worked up from top to bottom. What that means for you is a unique perspective on how these cases are handled and a plan to achieve the best results for you.

Contact my office today at 832-913-5036 or erik.locascio@eriklocasciolaw.com to schedule your free and confidential consultation. You may also use the Contact Us form on my homepage.