Plano DWI Lawyer Blog

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The client drove his car into a Texaco station (literally) after sideswiping another car on Central Expressway. Hospital records indicated the presence of multiple controlled substances in the client's system.  Seems like an airtight case? 

Well, at first glance, maybe.  The fact of the matter is that there were multiple physical and emotional conditions that explained the bizarre driving.  Further, the drug test was a urine "screen" which shows presence of a particular drug.  It cannot show when the drug was taken, how much was ingested, the form of ingestion (oral, intravenous), whether the drug in the urine is still even in the blood,  or a host of other factors that may influence the concentration of a particular drug in a person's blood. 

Further, the state did not call a witness who actually performed the drug test.  The bottom line is that there was a rushed decision that this was a DWI case.  The evidence at trial just did not show that.  The jury did the right thing and the client was relieved and pleased.

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I often receive calls from the friends and family members of people who have been arrested in Plano, or other Collin County cities.  They are always completely perplexed and confused about  the process for getting them out of jail and the process going forward.  This is perfectly understandable.  The family and friends are often placed in a stressful situation and involved in a system that is totally foreign to them.  I decided to write this article to explain the process.

When a person is arrested they are usually taken to the jail in the city in which they were arrested.  In order to secure a person's release from jail, a bond must be posted. A bond is not even set until a person appears before a magistrate.  A person may be held without bond for a period of time until they appear before the magistrate.  Essentilly then, the person may be stuck for up to 24 hours while they wait to appear before a magistrate. 

An attorney can help obtain the release of your loved one of friend almost immediately, and without having to wait for a magistrate.  This process involved the attorney filing what is often called a writ bond.  The term writ bond is shorthand for a writ of habeas corpus.  When an attorney files a writ bond, it has the effect of immediately setting bond so that bond may be posted and the person can be released. 

Without a writ bond filing, the person will be held until they can see a magistrate. 

Writ bonds can NOT be filed for among other things

felony cases

capias pro fine arrests.

They are typically available for most misdemeanor arrests.

Generally, if a person who has been arrested for Driving While Intoxicated in Texas refuses to submit to a request for breath or blood made by a police officer, the officer must seek a search warrant from a judge authorizing him or her to draw the blood over the person's objection.
In order for the Judge to consider the search warrant request, the officer must prepare an affidavit describing the facts that the officer believes will establish probable cause that evidenced of a crime (DWI) will be found in the person's blood. This affidavit must be sworn to in the presence of a neutral and detached  judge. Often, police officers seek to satisfy the requirement that they swear to the truth of the matter in the affidavit by calling the judge and swearing to it over the phone.
Texas Code of Criminal Procedure 18.01 appears to require the personal presence of the affiant in front of the judge. The Fifth Court of Appeals in Dallas, Texas avoided directly addressing the question in the case of Swenson v. State.  I have written previously about the Swenson court's decision, here.   

The Twelfth Court of Appeals in Tyler, Texas however has directly addressed the question of whether Section 18.01 of the Texas Code of Criminal Procedure requires an officer to personally appear and swear to the truth of the information in the affidavit in the case of Taylor v. State.

The Taylor court held that the Code does require that the "affiant must be physically present in front of the magisttrate or officer authorized to administer oaths when swearing to the facts in his affidavit."

Thus, at least in the Twelfth, telphonic swearing of the oath does not comply with the Texas Code of Criminal Procedure.  How will this affect Driving While Intoxicated cases in Collin County or Dallas County?  Well, lawyers must continue to file Motions to Suppress the blood test results when the blood was obtained by a search warrant when the facts were sworn to over the phone.  We now have a Court of Appeals case specifically identifying the process as not in compliance with the Code of Criminal Procedure.  The issue, in my view, is eventually headed to the Court of Criminal Appeals.

A blood draw warrant is a search warrant requested by a law enforcement officer and signed by a judge.  It is a search warrant that specifically authorizes the police to have blood drawn from the person of a Driving While Intoxicated suspect.  In almost all cases in which the police seek a search warrant for blood, they do so because a person has refused to submit voluntarily to a request for a blood sample after they have been arrested for Driving While Intoxicated.

When the police seek a search warrant for blood, they must prepare, sign, and swear to an affidavit that seeks to persuade a judicial officer that evidence of the crime of DWI (i.e. alcohol or drugs) will be found in the suspect's blood.  The affidavit is often a pre printed form in which the officer will check the applicable boxes or fill in the blanks.  The officer is then required to present a sworn affidavit to a judge setting forth the facts on which the officer bases his or her request.  The law appears to require that the office appear before the judge and swear to the truth of the matter.    In practice however, the sworn affidavits are sometimes faxed,and the officer is sworn over the phone, not in the judge's presence. This practice may violate the Texas Code of Criminal Procedure, as there is presently no legislative auhortization for faxed search warrant applications as there is in the Federal Rules of Criminal Procedure.  Presumably, if Texas lawmakers wanted faxed search warrants they could pass a law allowing for it.  

The issue of blood draw search warrants being faxed has been raised in Collin.   The Fifth Court of Appeals in Dallas avoided making a decision on the propriety of swearing affiant's over the phone and faxing search warrant affidavits.  In  Swenson v. State  the Court affirmed Mr. Swenson's conviction by finding that, even if having the officer sworn over the phone is unlawful, the search warrant is nevertheless valid under the good faith exception.  In other words, if the officer in good faith relied upon an invalid search warrant, the evidence seized pursuant to the warrant need not be excluded from evidence because the officer relied upon the warrant "in good faith."

The admissibility of blood test results in court may also be challenged in other ways.  For example if the affidavit in support of the search warrant does not establish probable cause. Other potential areas include whether the blood was drawn in a sanitary place, as required by law, or whether the blood was drawn by a qualified person. 

In addition, other factors may bear on whether the seizure of blood is constitutionally reasonable such the location of the draw, the extent to which the person drawing the blood is aware of the particular medical conditions of the suspect, etc. 

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....

The law treats Driving While Intoxicated cases differently from any other type of case, particularly for misdmeanor DWI cases. One of the ways that the law treats Driving While Intoxicated cases differently than other misdememeanor cases, is that the law currently does not authorize deferred adjudication in DWI cases.
In a deferred adjudication situation, a person enters a plea of guilty or no contest, but the judge does not make finding of guilt. Instead, the court defers making a finding of guilt for the period of time specified in the agreement. If the person successfully completes the deferred period, the case is dismissed and no finding of guilt is made.

For most types of offenses, the discharge and dismissal results in the eligibility to seek an Order of Non Disclosure, essentially sealing the record from public view. Presently, this type of an arrangement is not available for DWI cases. That may be about to change however. Recently, Todd Smith, R-Euless  proposed legislation that will change the law,  making  deferred adjudication an option in DWI cases.

The question comes to mind though, is this a good thing or a bad thing for those accused of Driving While Intoxicated in Collin or Dallas County?  Well, like most things, it depends.  One consequence of the no deferred adjudication law in DWI caes is that many cases with marginal evidence of intoxication are tried to juries, sometimes resulting in not guilty verdicts for the accused person.  If deferred adjudication is an option, many people may be tempted to resolve their case with deferred adjudication.  Why?  This is because with deferred adjudication, the accused will likely still have the option to have the case dismissed, and potentially seal the record.  If the accused is convicted by a jury following trial, the person receives a final conviction, with no possibility to seal the record.  For many people then, the temptation to choose the route that, on the surface anyway, seems safer may be strong.

If the legislature is considering amending the statute to authorize deferred adjudication for Driving While Intoxicated cases, the amendment will be meanignless unless they amend the statute that regulates deferred adjudication to authorize Orders of Non Disclosure for successfully completed DWI deferred adjudication, and authorizes immediate eligibility with no waiting period.

An expunction is a court order to law enforcement agencies in possession of your criminal history. The order requires the law enforcement agencies to destroy your record. If your case is expunged you may deny the occurrence of the arrest and in most situations may deny the existence of the order!

1.   Determine if you are eligible
Certain categories of people who have been arrested may be eligible for an expunction. If you have been arrested for an offense and were acquitted (found not guilty) by a jury or judge you may be eligible to have the records expunged. If you were arrested and a case against you was never filed in court or was filed and later dismissed, you may be eligible to expunge the record-  after the statute of limitations period has run. For misdemeanors, the period is two years. For felony offenses, the statute of limitations varies with the offense. If you were placed on deferred adjudications for a Class C offense and successfully completed the deferred probation, you may be expunction eligible after the two year limitations period has expired.

Deferred adjudication probation for offenses Class B or higher will NOT result in expunction eligibility. Finally, certain alcohol offenses committed by minors are expunction eligible at age twenty one under separate law.

2.   Draft and File the Expunction Petition

To successfully obtain an expunction order you must draft a Petition for Expunction. The requirements for expunction eligibility may be found in Chapter 55 of the Texas Code of Criminal Procedure. This is the paperwork that informs the court that you want an expunction. The Petition must list the law enforcement agencies that you believe have information about the criminal history you seek to expunge. You must file the original signed petition with the District Clerk in the Judicial District in which you were arrested. Typically there is a substantial filing fee.  In Collin County right now I believe it is $260 plus the costs of serving each "respondent."  You must also serve a copy of the Petition on the local District Attorney's Office. It may be a good idea to bring a copy of the Petition for each law enforcement agency listed in your Petition so that the clerk may provide copies to each. For alcohol offenses committed by minors, you may be required to file the Expunction Petition directly in the convicting court

3.Obtain a signed expunction order.

Once you have filed the petition and have served the appropriate parties with a copy, you attorney will draw up a proposed order that lists the information required by Ch. 55 of the Code of Criminal Procedure and seek the signature of a judge on the order. This typically happens in one of two ways. One, the matter is set for hearing and you prove that you are eligible according to the terms of Chapter 55, Texas Code of Criminal Procedure. The second, and more common method is to present a proposed agreed order the Assistant District Attorney assigned to handle expunction petitions. If the District Attorney agrees that you are expunction eligible, they will frequently indicate their agreement by signing your proposed order. When the D.A. signs off on your proposed order, take it to the assigned court and tell the court staff about the agreed order. Finally, take the judge signed order back to the clerk with enough copies for all the agencies entitled to service.

There may be a new more restrictive law on the way; one that would criminalize the operation of motor vehicle with an alcohol concentration below the legal limits. The proposed law would criminalize driving with an alcohol concentration below the legal limit even if the person was not intoxicated.

At least that it what may be in store for Collin and Dallas county motorists if Austin Police Chief Art Acevedo has his way. Acevedo is proposing the misnamed "Driving While Ability Impaired" law aimed at motorists whos drive with an alcohol concentration of between .05 and .07.  I completely fail to see how this is any different than lowering the "legal limit" for DWI to .05.   I say that because the Collin County District Attorney's office can and does routinely prosecute people for Driving While Intoxicated when the person has an alcohol concentration well below .08, even when there is no evidence of intoxication by drugs. 

What then is the point of creating a separate offense for alcohol concentrations of .05 to .07,when the DWI law as presently written and applied frequently prosecutes people with alcohol concentrations in that range or lower with Driving While Intoxicated.

When a person is arrested for DWI in Texas, they will soon face a criminal charge. Most people understand this. Many of the people that consult with me about their DWI  do not know that they will soon be dealing with a civil case that is addressed exclusivley to the issue of whether their license to drive will be suspended.  This civil case is known as Administrative License Revocation or ALR .

Many people who are aware of the process and the deadlines, nevertheless don't understand the value in exercsing their right to a hearing.  I am frequently asked if the hearings can be won.  The answer is an emphatic YES!  ALR hearing can be won, and often are won by experienced and dilligent DWI attorneys. 

Some of the reasons why it is always a good idea to request an ALR hearing are as follows.

1.  It is one method to force disclosure of the "discovery."  The discovery is a term that refers to the documentary evidence that the Department of Public Safety's attorneys plan to use to seek suspension fo your license.  By using the ALR discovery process, you can force the State to reveal details about the evidence against you.

2.  You can subpoeana the arresting officer to the ALR hearing.  By issuing a subpoena to the arresting officer you can compel his or her testimony under oath.  This may be the only opportunity that you will have to question the officer under oath about the facts of your case prior to trial.

3.   The ALR hearing is an opportunity to explore defenses and issues in your criminal DWI case.  At the ALR hearing, you will have an opportunity to, among other things, contest the legality of the stop of your car, contest the lawfulness of the process by which your breath or blood was collected.

4.  ALR hearings are often won.  With an experienced DWI attorney, flaws in the ALR case can be exposed and turned to your advantage.  If you win the ALR hearing, the Department of Public Safety will not be authorized to suspend your license.

5.  When you request an ALR hearing, your license to drive will be preserved at least until the hearing. 

What should your attorney look for in handling an ALR case?

Just by way of example,

Did the police stop your car lawfully?

Does the admissible evidence concerning the police observations establish probable cause to arrest?

In a Chapter 524 case, is there admissible proof that you operated the car?

In a blood test case, was blood collected in a sanitary place by a person authorized to draw blood.

Did the police comply with the fifteen minute observation period?

Did the police impart any erroneous advice related to the consequences of refusing or taking a breath test? 

Was the discovery promptly turned over by the Department's Attoreys?

This is a just a partial list of the sort of issues that can be effectively raised in properly handling an ALR case.  If you have been arrested for DWI, please do yourself a favor and consult and experienced DWI attorney within FIFTEEN DAYS of your arrest.  The failure to request an ALR hearing within 15 days will result in a suspension of your license.

According to a press release issued by the Plano Police Department, the Plano Police plan to conduct a so called no refusal weekend over the Memorial Day weekend. The press release is here.

During a no refusal operation, if you are arrested on suspicion of DWI and refuse to submit to a breath or blood test, the police will prepare an affidavit in support of a search warrant application.  The affidavit must recite facts that demonstrate that the police have probable cause to believe that you were DWI and that evidence of alcohol or drugs will be found in your blood.   The police will then present the affidavit to a judge who will review if for probable cause.  In practice, the police rarely appear in person before a judge and swear to the affidavit.  Rather, the typical practice is for them to fax it or recite it over the phone.

Recently, the Fifth Court of Appeals in Dallas sidestepped the question of whether the Texas Code of Criminal Procedure requires that the police swear to the facts contained in the affidavit in the personal presence of the magistrate.

In the case of Swenson v. State of Texas the Court stated that

In a guest column in a local Collin County newspaper, the Frisco Texas police department has announced that it will be seeking blood from Driving While Intoxicated suspects over the upcoming Holidays. There is nothing per se unusual about this, but for the fact that they plan to conduct the blood draw at the Frisco Police station.  The blood would be drawn from the suspect not at a hospita,l where there are facilites and equipment available to deal with an emergency should one arise, but in the confines of the Frisco Police Department.

The Texas Transportation Code section 724.017 requires that the the blood of a DWI suspect be drawn in a "sanitary place."  Is the Frisco Police Department a sanitary place within the meaning of the law?  The broader question, in my mind anway, is why?  Is the need to obtain a blood sample so urgent  that the police can't wait a few minutes to transport the arrested person to a hospital?  Not at all.  In fact, traditionally, blood draws have nearly alwsy been taken at a hospital.  In my view, the convenience of having the blood drawn a the police station is vastly outweighed by the risks associated with sticking a needle into a person about whom the police know next to nothing.  For example, the police will not know anything about the person's medical condition and history, allergies, etc.

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