Plano DWI Lawyer Blog

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.

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....

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.