Plano DWI Lawyer Blog

Over the last few weeks, I have received a number of calls and emails inquiring about the surcharge Amnesty and Indigency programs. I am pleased to be able to write the the program is now active.  The following is the important information to determine your eligibility.

Amnesty willl be offered from January 17 to April 17, 2011.

Applications will only be accepted through April 7, 2011.

Amnesty will not apply to any surcharges assessed after January 15, 2011.

 Anyone who has an unpaid surcharge that was assessed between September 30, 2004 and December 31, 2008 is eligible.

At least one of the surcharge(s) meeting the above criteria must be in default prior to the Amnesty period.

TO APPLY:

Application will be available online here or by telephone at 1 (877) 207-3170

No applications will be accepted by mail, email or fax; this includes contacts made to

Municipal Services Bureau or the Department of Public Safety

Will all automobiles soon be manufactured with the ability to assess the alcohol concentration of the car's operator?   It's not beyond the realm of the possible as a Massachusetts based company is presently developing technology that purports to be able to measure whether a car's operator is above or below a specified alcohol concentration.  According to media reports  the technology may be commercially viable within a decade.

 The developing technology has attracted the attention (and implied endorsement) of U.S. Transportation Secretary Ray Lahood.  Mr. LaHood referred to the technology as "another arrow in our automotive safety quiver."  Could automobile manufacturers be required to have such technology placed in all cars?  Would this drive up automobile costs? 

A new law proposed this week by Texas State Rep. Bill Callegari, would change the current law to require that persons convicted of Driving While Intoxicated in Texas have a so called Ignition Interlock Device installed on the car that they own, operate or "most regularly drive."

For those who don't know, an Ignition Interlock device is a machine installed in a car that disallows the car from starting if the machine detects the presence of alcohol.  The machine requires the person to breathe into a tube and the machine detects the presence or absence of breath alcohol.

Under the current state of the law, people convicted of a first Driving While Intoxicated case in Texas are not required to have an Interlock device installed unless their alcohol concentration is .15 or higher.  The Court always has discretion to impose the device as a condition of supervision but it is not mandatory and, as a practical matter, is not often done.

The new proposed law, known as H.B. 506 will deprive individual Judges of the discretion to impose or not impose the condition as appropriate.  Instead, it will make Ignition Interlock devices mandatory for even first time offenders. 

A very recent case decided by the Texas Court of Criminal Appeals, the State's highest court of appeals to hear criminal cases, has established the lawfulness of roadside checkpoints under certain circumstances.

This case will affect not only Driving While Intoxicated cases, but all criminal cases and the citizenry in general.  I'll explain.  The Fourth Amendment to the U.S. Constitution ordinarily prohibits the police from stopping your car on a roadway unless the police have some specific, articulable information that gives them reasonable suspicion that you are violating the law. 

Over the years, appeals courts have carved out several exceptions to this ordinary rule, including one known as the special needs doctrine.  Essentially, the special needs doctrine provides that the Government may, for example, stop your car without any information whatsoever that you have engaged in criminal wrongdoing so long as the program set up to stop your car is designed to serve special needs, beyond the normal need for law enforcement.

If on the other hand, the program or checkpoint is set up to detect evidence of ordinary criminal wrongdoing, this would be a violation of the Fourth Amendment as it is not a special need. 

In other words, the Consitution forbids roadside checkpoints that are nothing more than generalized crime detection.  The Constitution does not recognize a general interest in crime control as justification for a suspicionless stop of your car.

Which brings us to the recent case decided by the Texas Court of Criminal appeals.  In January of 2011 the Court decided the case of Lujan v. State of Texas  In Lujan, the Court was faced with a case where the evidence presented at the trial court was contradictory with regard to the true nature of the program.  Was the checkpoint established for the purpose of conducting a license and registration check, and therefore Constitutional, according to the Texas Court of Criminal Appeals?  Or was this a case where the checkpoint was nothing more than an unconstitutional attempt at generalized crime control?

For one brief paragraph, the Court seemed as though it would embark on an extended discussion of the distinction between suspicionless checkpoint regimes justified as a special needs exception, and those suspicionless search and seizure regimes that are forbidden by the Fourth Amendment.

 The Court informed the reader that: 

the legality of the checkpoint in this case turns on whether its primary purpose was to check drivers' licences and insurance, or whether the primary purpose was general crime control.  

But the Court very quickly diposes of the issue presented, essentially holding that the trial Court impliedly found that the primary purpose of the checkpoint was to check for license and registration, and therefore lawful.

What I find troubling about the decision is that the Court is willing to premise a decision that is a significant Fouth Amendment pronouncement on a lower Court's implied findings.  Additionally, the Court is upholding a regime of suspicionless searches under a special needs doctrine and does not even once use the term or acknowledge the existence of the doctrine.

As a practical matter, all Texans should be concerned about this decision.  If our elected representatives in Austin wanted to establish a law creating a checkpoint regime  they could do so.  The Court of Criminal Appeals gave us the blueprint for a lawful checkpoint law over fifteen years ago.  What happened in Lujan is very different.  In Lujan, the Court essentially  endorsed the creation of checkpoint sytems by any law enforcement agency that chooses to undertake them. 

If you have been arrested for Driving While Intoxicated in Collin or Dallas County, Texas you are probably unsure as to what will happen from here.  Over the years of DWI defense practice in Collin County I tend to see the same type of  questions arising regularly. 

For that reason I decided to blog some of the questions and some very general guidance on those questions.

I was arrested for DWI. What happens next?

At this point it is understandable if you are overwhelmed and bewildered by the situation. First and foremost, please remember that you have only FIFTEEN DAYS
from the date of arrest to request a hearing on the potential suspension of your driver's license. If you do not request a hearing your license will be automatically suspended.

In a typical case, the police agency that arrested you will send a packet to the District Attorney's Office. The District Attorney's office files the formal charge against you. Once the District Attorney's Office files the case, it will be randomly assigned to one of the courts and you will receive notice to appear. Generally, there is a four to six week time lapse between the time of your arrest and your fist court appearance.

How long will it take to resolve the charge against me?

The length of time it takes to resolve a DWI charge will vary. It depends upon the facts of the case, as well as your goals for the case. If your attorney files pre trial motions that are heard and then sets the case for trial, it can take up to a year. On the other hand, it may take only weeks from the time the case is filed to resolve it if that is your goal.

I failed or refused to submit to a breath or blood test. Is my driver's license automatically suspended?

No. If you request hearing through the Administrative License Revocation (ALR) process within fifteen days of your arrest, your license will remain valid until such time as a hearing takes place. Recently it has taken approximately four months or more to schedule a hearing. Your license will be valid at least until the hearing. I will personally handle all aspects of the ALR process on your behalf.
At the hearing the State must prove certain facts. If they fail to do so, your license will not be suspended. To learn more, please visit the ALR- Save Your License to Drive section of this website.

What happens if my license is suspended?

If your license is suspended you will likely be able to petition the court for an Occupational Driver's License (ODL). An ODL is a restricted driver's license that will allow you to drive up to twelve hours a day, six days a week. For more information please see the Occupational License section of this webiste.

I refused to submit to the Standardized Field Sobriety Tests, am I in trouble?

No. You have a lawful right to refuse to submit to any field sobriety test, including the One Leg Stand, the Walk and Turn, the Horizontal Gaze Nystagmus test, and the Preliminary Breath Test.
You may also refuse to submit to the Breath Test, however your refusal may trigger certain consequences for your driver's license. Please view my Suspension and Waiting Periods chart for more information.

What sort of punishment am I looking at if I am convicted.

 Even a first offense DWI carries a potential punishment range of up to one hundred eighty days in the County Jail and up to a $2,000 fine, or up to two years of community supervison (probation).

   There are many factors that go into the calculus of an appropriate punishment, if convicted.  Only when all of the evidence is available can you make intelligent decision about how to proceed. Even if you feel that you were intoxicated, and experienced DWI attorney should be looking at issues such as:

How do you look on video?

Was the breath or blood evidence obtained lawfully?

Was the breath or blood evidence obtained in such a way that its analytical reliability or validity may be compromised?

Was the stop of your car by police lawful?

Did the police officer administer the Standardized Field Sobriety Tests correctly?

Does the police report contain internal contradictions, or is it contradicted by the video?

Will the State be able to locate and secure the attendance of the witnesses at trial?

Etc....