Free Consultation
Local Calls: 210.224.4242
Toll Free: 888.392.1813
Kyle Simpson & Charles Gold - San Antonio DWI Defense Defense Lawyers
THE RIGHT CHOICE FOR YOUR TEXAS DWI LAWYER

San Antonio, Texas DWI Lawyers

Local Calls 210.224.4242 Toll Free: 888.392.1813

DWI Articles

image description

Reading a DWI police report can be very misleading. Focusing on what is written by the police officer will always paint a picture of an intoxicated person. A solid DWI defense can frequently be developed with facts not included in the police report but relevant to a thorough DWI investigation.

The National Highway Traffic Safety Administration (NHTSA) produces a manual that is used to instruct police officers across the country how to properly investigate DWI’s. The manual divides the DWI investigation into three phases. During each phase, the police officer is trained to look for and record “cues” of intoxication exhibited by the DWI suspect. The underlying theme in the investigation is that intoxication renders people unable to perform tasks that require them to divide their attention. The NHTSA manual identifies an exhaustive list of cues for the police officer to look for in each phase of the DWI investigation.

Phase One (Vehicle in Motion)

-Initial Observation (24 Cues)

When the officer is observing a DWI suspect driving a vehicle, he is trained to look for drivers that have:

1) Problems maintaining proper lane position,
2) Speed and Braking Problems,
3) Vigilance Problems, and
4) Judgment Problems

Each of the four areas are assigned specific cues listed in the NHTSA manual. The total amount of cues is 24.

-Stopping Sequence (6 cues)

Once the officer decides to initiate a traffic stop, he is trained to look for 6 additional cues that the NHTSA manual suggests an intoxicated driver will exhibit.

Phase Two (Personal Contact)

-Driver Interview (16 Cues)

Officers use their sense of sight, hearing and smell to detect as many as 16 cues of intoxication while initially talking to the suspect. It is during the driver interview that an officer may administer “pre-exit” sobriety tests including the countdown, alphabet and finger count tests.

-Exit Sequence (7 Cues)

If the officer determines that he is going to proceed to Phase Three of the DWI investigation, the driver will be asked to exit the vehicle. The officer is trained to look for 7 cues of intoxication at this stage.

Phase Three (Pre-Arrest Screening)

-Standardized Field Sobriety Tests (18 Cues)

During Phase Three, the officer will administer three Standardized Field Sobriety Tests. The manual lists the cues associated with each test and how many are required to detect intoxication. There are a total of 18 cues.

How to Illustrate Bias
As we have seen, there are 71 possible cues listed in the NHTSA manual indicating intoxication. A well practiced defense attorney will spend considerable time emphasizing what their client did right. If the police officer did not list a cue in his report, we must assume that the DWI suspect did not exhibit it. In Phases 1 and 2, there are a total of 53 cues. In most DWI cases, arresting officers will only list 2 or three cues in the initial observation period. Many reports do not include cues observed during the stopping or exit sequences. We can expect the 2 or 3 normal cues to be observed in Phase 2 (bloodshot eyes, slurred speech…) but usually all 16 are not present. A good attorney will develop their case with what is not in the police report. Juries will begin to see the picture not revealed by the officer. The defense attorney should assign percentages to their client’s “pass rate”. Juries are sure to appreciate that the defendant had a 94 percent pass rate in Phases 1 and 2. The weight given to the field sobriety tests may be diminished by pointing out the biased nature of the police report.

Finding the right San Antonio DWI Lawyer is similar to finding the right Doctor. At a minimum, you are looking for a professional who is competent in the subject matter that you are confronted with and knows the San Antonio court system. This individual must clearly understand your defined goals and be able to offer their services to you at a price you are willing to pay. The right person for the job will be the professional who can complement their qualifications with a personalized level of service to you.

Where Do I Start?

You must first narrow down the list of attorneys you are going to contact. The goal is to interview three or four attorneys that are well qualified to handle DWI cases. In choosing which attorneys to meet with, focus on criminal lawyers that regularly handle DWI’s in the county where you were arrested. The internet is an excellent place to begin your search. The lawyer’s website should provide enough information to help you choose who you interview. The potential attorney should meet the following basic criteria: have a criminal practice, focus on DWI cases in the San Antonio area and surrounding counties and have the principal office in or near the county of your arrest.

Interviewing the Attorneys

It is important to understand the basics of Texas DWI before you go into the interview whether your attorney is located in San Antonio or not. This will help you to ask intelligent questions and verify that the attorney knows the subject matter. You need to carefully think about the realistic expectations you have for your case and be prepared to communicate them to the lawyer.

The lawyer/client interview is protected by the attorney client privilege. You should candidly explain the facts of you case and have the lawyer analyze them. Ask the lawyer if they have dealt with cases similar to yours and what the outcomes were. Have the lawyer outline a strategy that will help you achieve your goal in the case. It is important to inquire about the lawyer’s experience: do they have experience as a prosecutor, have they tried a case in front of your judge, do they know the reputation of the prosecutor.

Finally, you need to determine what the cost will be and exactly what it covers. You will be best served with a fee that covers the license hearing, pretrial motions and ultimately trial. Other potential costs can be anticipated as well. Determine what miscellaneous fees can be expected and how you will be billed for them. These issues need to be specifically addressed in the contract.

Making Your Decision to Hire

You will develop a deeper understanding of your situation after you have interviewed the several attorneys on your list. You will be spending a considerable amount of time with the attorney that you hire. You need to feel comfortable talking with the attorney about this intimate part of your life. You will likely interview more than one attorney who is qualified to handle your case. At this point, you will be prepared to make an informed decision on the lawyer best equipped to be the point man on your DWI case.

When we are picking a jury for a Texas Driving While Intoxicated (DWI) defense case one of the main points that we talk to the jury pool about is the standard for reasonable doubt. However, before we delve into reasonable doubt we must talk about another concept that goes hand in hand with it is the presumption of innocence. The following information will discuss these two concepts in not only Texas DWI defense cases but all cases.

Everybody who is charged with a crime in the United States is presumed innocent until proven guilty. This sounds easy enough; however, most of us do not have that engrained in our mindset. For instance, when my daughter comes home with a bad grade I immediately believe that she has not studied properly for the test or some reason that would be her fault. This type of thought is contrary as to individuals who are charged with a crime. We hold that if somebody is going to be stigmatized with a criminal offense or even sent to jail or prison, they should get the benefit that they are innocent and the State has the burden of proving them guilty.

It is difficult for the average citizen to see only one side having a burden, especially in a criminal offense. Questions are usually asked as to how come the Defendant does not have to produce any evidence or testify. The answer is that the State always carries the burden in a criminal case and that burden never shifts. What is the burden beyond a reasonable doubt (hereinafter BRD)? The Texas legislature in their wisdom has decided that it is up to the jurors to decide and we as lawyers cannot give you a definition. However, there are some burdens that we can talk about to give you an idea of what BRD is not. What a police officer needs to detain somebody is if that he or she can articulate specific facts that would lead a reasonable person to believe that a specific individual has been or will be involved in criminal behavior. Next is probable cause.

Probable cause is what it takes an officer to arrest somebody. If a police officer sees what they believe is a violation of the law then they can arrest that person. The next burden is preponderance of the evidence. This is what it would take to win a civil suit. For example, if your neighbor’s tree fell on your fence and you sued him for damages. The jury would have to have a fifty percent, plus something, certainty that your neighbor was negligent. The next burden that we use in our court system is clear and convincing evidence. This is what it takes for the State to terminate parental rights. The shorthand definition of clear and convincing evidence is that the fact finder have a firm belief that it is true, thus, BRD falls somewhere after this burden and 100 percent certainty. Beyond a Reasonable Doubt is the highest burden in our country.

With these rights afforded to us it makes the State cross some difficult hurdles. This provides Texas DWI defense attorneys with some incredible tools in defending any case, including DWI. You see, our forefathers specifically added these rights for which they were not afforded. It behooves of us as U.S. citizens not to forget these rights as they were implemented for our individual freedoms. Remembering these rights upon first being stopped can be advantageous to your defense.

It appears that deferred adjudication may become available in San Antonio, Texas for the first time since 1984. A new bill is being sponsored by Rep. Todd Smith (R-Euless) that would allow people charged with a Texas DWI 1st Offense to enter a plea to DWI and be placed on community supervision without receiving a conviction.

Under current Texas DWI laws, including a San Antonio DWI, a person placed on community supervision for a DWI is found guilty and receives a conviction. Prior to 1984, a Texas DWI defendant could avoid a conviction if they did not violate a condition of their probation that resulted in revocation. In an effort to make DWI penalties more rigid, interest groups such as Mothers Against Drunk Driving and prosecutorial agencies successfully lobbied the legislature to abolish deferred adjudication for DWI in Texas.

Critics of the 1984 amendment argue that removing deferred adjudication as an alternative to DWI defendants has caused more problems than it cures. People charged with DWI have little incentive to enter a plea bargain agreement with the State. Because sentences following a guilty verdict after a trial are comparable to sentences following a guilty plea, people are benefited by simply setting their case on a trial docket. The result is trial dockets with a disproportionate number of DWI’s compared to other misdemeanor offenses. Likewise, state and county resources are being spent in a lopsided manner. Bills introduced since 1984 to fix this problem have met opposition from the proponents of the existing law.

Unlike similar previous bills, Representative Smith’s bill has received support from M.A.D.D. and several influential prosecutors across the state. If passed, defendants receiving deferred adjudication will still face intrusive conditions during their community supervision. The judge will have discretion to impose jail time, ignition interlock, community service hours, fines, court costs and educational classes as conditions of the deferred adjudication. The State could still file a motion to have the defendant found guilty of the DWI based on a violation of any condition of the deferred. Remember, all this will apply to a San Antonio DWI also.

San Antonio DWI No Refusal Weekends

Law enforcement officers generally obtain a breath specimen or blood draw in one of two ways in a San Antonio DWI case. The most common way that a blood alcohol concentration is taken is by the consent of the person arrested for DWI. This occurs after the arresting officer fully explains the statutory rights of the arrested person and requests that either a breath or blood specimen be provided. However, in certain circumstances, the laws of Texas require a mandatory blood draw. This situation arises when the arrested person has either injured someone in an accident or has previous DWI convictions. When the facts of the DWI case mandate a blood draw, the arresting officer does not need a search warrant to do so. Recently in Texas, certain counties have implemented “No Refusal Weekends” where the arresting officer is able to obtain a blood draw from a DWI suspect without either consent or statutory mandate.

Blood draws are obtained during “No Refusal Weekends” at the direction of a magistrate judge in the form of a search warrant. If a Texas DWI arrestee refuses to provide a breath or blood sample during these designated weekends, a magistrate judge is on call to review probable cause statements prepared by the arresting officer and issue a search warrants for the person’s blood. If the search warrant is issued, a blood draw will be administered. Police can obtain a blood sample by force when necessary.

Proponents of the “No Refusal Weekends” claim that deterrence is the main goal of the program. They believe that Texas DWI cases will be more difficult to win at trial if a blood specimen is provided. Hampered by the presence of a Blood Alcohol Concentration, DWI defendants will be more likely to enter guilty pleas rather than setting their case on a court’s trial docket. As a result, less state and county resources will be necessary to prosecute DWI cases, including San Antonio DWI’s.

Critics of this process have voiced strong opposition. It has been argued that magistrates “rubber stamp” search warrants after a cursory review of the probable cause statement submitted by the arresting officer. Others argue that the process doesn’t sit well in our system which concentrates on the Constitutional rights of the accused.

“No Refusal Weekends” have gained momentum across the State of Texas in recent years. An increasing number of counties are designating holiday weekends for this process. Some counties have implemented “No Refusal Weekends” year round. For example, Bexar County District Attorney Susan Reed announced on December 28, 2010 that Bexar County will implement the program every weekend in 2011 starting New Year’s Eve. Whether we like it or not, “No Refusal Weekends” seem to be here to stay

When Blood Can be Forcibly Taken in Texas?

The underlying theory that requires Texas motorists to give a sample of their blood or breath for purposes of analyzing blood alcohol content is expressed in section 724.011 of the Texas Transportation Code. By driving on the Texas roadways, we have given our “implied consent” to submit a breath or blood sample upon request by an officer who has arrested us for Driving While Intoxicated (DWI).

We generally have the right to refuse a request to provide breath/blood test. A refusal is followed by penalties in the form of license suspensions. There are, however, situations where blood can be drawn against our will. There are two instances where this occur.

Statutory exceptions mandate an officer to forcibly retrieve a sample of our blood. When a person is arrested for DWI following an accident, blood shall be drawn in the following situations:

  • any individual has died or will die,
  • an individual other than the arrested person has suffered serious bodily injury, or
  • an individual other than the arrested person has suffered bodily injury and has been transported to a hospital or other medical facility for treatment

In non accident cases, blood draws are mandatory in the following circumstances:

  • the person is arrested for Driving While Intoxicated with a Child Passenger,
  • the person has two or more prior convictions, or
  • the person has previously been convicted of DWI Child Passenger, Intoxication Assault or Intoxication Manslaughter.

Finally, absent a statute mandating blood draws, officers can obtain a search warrant from a magistrate or judge to obtain a blood draw.

Can DWI Probation be Reduced in Texas?

Texas law does not allow a court to terminate a DWI probation early. For example, if you are placed on a one year term of Community Supervision Probation and complete all of the conditions (community service hours, classes, court costs, fines…) after eight months, your probation may not be terminated prior to the expiration of the twelve month period. This rule is specific to DWI.

However, a court may reduce the probation conditions imposed on you as a result of your DWI conviction. For example, your attorney may petition the court to modify the condition requiring you to install an Ignition Interlock device on your vehicle if you have had it installed the amount of time required by the statute without any violations. Similarly, the court can modify a condition requiring community service hours by reducing the amount if the judge deems such an action to be appropriate to your case.

Does a DWI Stay on Your Record After it is Dismissed in Texas?

If your attorney is able to have your DWI case dismissed, your record will not show a DWI conviction. However, if you do not obtain a Final Order of Expunction, your record will reflect that you were arrested and charged for DWI.

The Texas Department of Public Safety is the custodian of criminal records in Texas. Law enforcement agencies and County Clerk offices have a duty to report your arrest and the actions taken by the court on your DWI case. Private Background Check companies refer to records kept by the Texas Department of Public Safety when reporting your criminal history.

When your DWI case is dismissed, you need to consult with your attorney about your eligibility for an Expunction and any possible waiting periods.

Do I Have to Take a Prosecutor’s Plea?

You do not have to accept the plea offer made by the prosecutor handling your case for the County or District Attorney’s office. There are two alternatives available for you to resolve your DWI charge:

1. You can waive your constitutional right to a trial by entering a plea of “Guilty” or “No Contest”. By entering either of these “pleas”, you are agreeing to have the judge find you guilty and assess punishment without having a jury trial.

(Or)

2. You can enter a plea of “Not Guilty” and request a trial by judge or jury.

What is a Plea Bargain?

Due to severe DWI penalties in Texas, you should strongly consider setting your DWI case for trial. Should you decide, however, after consultation with your attorney to enter a “plea” to your DWI, there are two ways you can do so. Before you begin the negotiation process, you need to be familiar with the punishment range associated with your DWI. For example, a DWI (first offense) is a Class B Misdemeanor with a punishment range of 30-180 days in a county jail and up to a $2000.00 fine. If convicted of a DWI (first offense), the punishment you receive will fall within this range. Once sentenced, the judge may “probate” the imposition of the sentence and place you on Community Supervision (Probation). If you are granted probation, you will not have to go to jail in most cases.

A “Plea Bargain Agreement” is essentially a contract between you and the prosecutor. In order to dispose of your case, the prosecutor may offer you a punishment somewhere within the appropriate range to encourage you to accept and enter into an agreement. When submitted to the court, this is called a “plea made pursuant to a plea bargain agreement.” Plea Bargain Agreements are made by defendants to eliminate risk. You may want to agree that probation will be granted in a case that you fear the judge would not otherwise grant it. You may want to agree to reduce the maximum amount of time in jail or prison that you will be exposed to. Although your plea bargain agreement is not binding on the court, you have the right to back out of it should the court not follow it.

You may also enter a plea of “guilty” or “no contest” to the court without a plea bargain agreement with the state. This is considered a plea not made pursuant to a plea bargain agreement, or an “open plea”. If the prosecutor is not willing to agree to the conditions you are requesting in your negotiations, you may enter an open plea and present your arguments to the judge. Under this type of plea, the court may choose to assess punishment anywhere in the appropriate punishment range.

How to Choose a Good San Antonio DWI Lawyer

Finding the right San Antonio DWI Lawyer is similar to finding the right Doctor. At a minimum, you are looking for a professional who is competent in the subject matter that you are confronted with and knows the San Antonio court system. This individual must clearly understand your defined goals and be able to offer their services to you at a price you are willing to pay. The right person for the job will be the professional who can complement their qualifications with a personalized level of service to you.

Where Do I Start?

You must first narrow down the list of attorneys you are going to contact. The goal is to interview three or four attorneys that are well qualified to handle DWI cases. In choosing which attorneys to meet with, focus on criminal lawyers that regularly handle DWI’s in the county where you were arrested. The internet is an excellent place to begin your search. The lawyer’s website should provide enough information to help you choose who you interview. The potential attorney should meet the following basic criteria: have a criminal practice, focus on DWI cases in the San Antonio area and surrounding counties and have the principal office in or near the county of your arrest.

Interviewing the Attorneys

It is important to understand the basics of Texas DWI before you go into the interview whether your attorney is located in San Antonio or not. This will help you to ask intelligent questions and verify that the attorney knows the subject matter. You need to carefully think about the realistic expectations you have for your case and be prepared to communicate them to the lawyer.

The lawyer/client interview is protected by the attorney client privilege. You should candidly explain the facts of you case and have the lawyer analyze them. Ask the lawyer if they have dealt with cases similar to yours and what the outcomes were. Have the lawyer outline a strategy that will help you achieve your goal in the case. It is important to inquire about the lawyer’s experience: do they have experience as a prosecutor, have they tried a case in front of your judge, do they know the reputation of the prosecutor.

Finally, you need to determine what the cost will be and exactly what it covers. You will be best served with a fee that covers the license hearing, pretrial motions and ultimately trial. Other potential costs can be anticipated as well. Determine what miscellaneous fees can be expected and how you will be billed for them. These issues need to be specifically addressed in the contract.

Making Your Decision to Hire

You will develop a deeper understanding of your situation after you have interviewed the several attorneys on your list. You will be spending a considerable amount of time with the attorney that you hire. You need to feel comfortable talking with the attorney about this intimate part of your life. You will likely interview more than one attorney who is qualified to handle your case. At this point, you will be prepared to make an informed decision on the lawyer best equipped to be the point man on your DWI case.

Have a question about recent DUI?

  • NOTE: The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

Criminal Defense