After an arrest for Driving While Intoxicated, or DWI, many clients express feelings of helplessness. When you have no idea what you are up against, fear of the unknown is a normal reaction. Rather than jumping to conclusions, get the information you need from a DWI lawyer in Fort Worth; call now! Come to my office and talk to me as soon as possible. The initial meeting will not cost you anything but your time.
There is more to the story than whether you had been drinking and driving (drinking and then driving is legal as long as you are not intoxicated). The Government has the burden to prove that you were intoxicated at the time you were driving. The Government also has to prove that they had a legal reason to pull you over. They must prove that you failed the tests that they administered; however, first they must prove that the tests were administered according to the established guidelines. Together, we will attack the validity of the traffic-stop, the validity of the road-side testing, the credibility of the road-side test results, the validity of the breath/blood test, and the credibility of the breath/blood test results. I will take your DWI to trial in Fort Worth (Tarrant County).
When you need a DWI Defense Attorney in Fort Worth, call The Law Office of Paul Previte.
Take a minute to fully consider just a few of the possible consequences of a first time DWI arrest: a permanent criminal record, license suspension, greatly increased insurance rates, immobilization of your vehicle unless the vehicle is equipped with an interlock device (this will prevent your vehicle from operating without you first providing a breath sample), loss of your CDL privileges, at least 24 hours of community service, victim impact panels, drug and alcohol classes and testing, jail, alcohol evaluations and counseling, and mandatory attendance at Alcoholics Anonymous.
Many clients initially tell me that they want to get the case concluded as soon as possible so that they can get it behind them. The truth is that unless you prevail at trial or unless we can get the case reduced to a different offense, or you are pardoned (highly unlikely), a final DWI conviction will stay on your record forever! I cannot guarantee that you will not be convicted of DWI after a trial, but I can guarantee you that you WILL be convicted of DWI if you simply plead guilty without a fight. If you do not fight, the District Attorney has no incentive to offer you a better option; you have no chance to win.
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WARNING! You only have 15 days from the date of your arrest to request an administrative hearing to contest your license suspension. If you refused the breath/blood/urine test you face a possible suspension of your license for at least one hundred eighty days. If you submitted to a test which yields a result of .08% or above, you face a possible suspension of your license for at least 90 days. Contact our office immediately for assistance.
DWI Laws in Texas
Texas is a highly-conservative state when it comes to its laws regarding driving while intoxicated (DWI) and the consequences of violating these laws. The statutes are pretty straight-forward about the core elements of the offense under 49.04 are:
- operating a motor vehicle
- in a public place
- while intoxicated
“Operating a motor vehicle” has been interpreted broadly by Texas criminal trial and appellate courts. There have been many decisions by the Texas Court of Criminal Appeals that allow for this element to be proved without any evidence that the individual was actually driving the vehicle. Our Fort Worth DWI attorneys will challenge the state’s definition of “operation” and persuade a jury that the evidence is not sufficient to prove that “operation” occurred.
It’s also common for police officers to make mistakes when determining they have reasonable suspicion to stop a vehicle. If a police officer determines he has reasonable suspicion that a traffic violation has occurred, he can stop the vehicle. Once the officer smells the faintest odor of alcohol or sees an open container, he or she will likely commence an investigation for DWI.
A “public place” is any place to which the public or a significant portion of the public has a access. See Penal Code 1.07(40) This can include parking lots, in addition to roadways.
In most circumstances, the element at issue in a driving while intoxicated case is “intoxication.” The state can prove intoxication by:
- Loss of the normal use of mental faculties
- Loss of the normal use of physical faculties
- Blood alcohol concentration >.08 or
- Breath alcohol concentration >.08
The Fort Worth DWI attorney Paul Previte has experience with DWI detection techniques and procedures and can challenge officer testimony using their very training manuals.
Standardized Field Sobriety Tests | Tarrant County DWI Lawyers
When determining the loss of normal use of mental or physical faculties, field sobriety tests (FST’s) are tools used by law enforcement to seek clues of intoxication. See the NHTSA Website for more details.
These tests include the horizontal gaze nystagmus test, the walk and turn test, and the one leg stand test.
These tests are 100% voluntary. You cannot be compelled to do them if you choose to refrain. As with most of the DWI investigation process, law enforcement agencies have developed ways to assist them with evidence-gathering in DWI cases. However, they require voluntary participation by the accused. Without them, the ability to prove DWI cases beyond a reasonable doubt can be much more difficult. The 5th amendment provides us with the right to remain silent. Always keep in mind, anything you say or do in these situations could be used against you in court. The NHTSA Manual provides that the FSTs can be compromised if one element of any test is not conducted properly. Our Fort Worth DWI attorneys know how to challenge the field sobriety tests in court.
Horizontal Gaze Nystagmus Test (HGN)
The horizontal gaze nystagmus (HGN) test is the first of the three tests normally administered by the police officer. Some research has shown HGN can be caused by the introduction of alcohol or some drugs into the body. The HGN test is designed to reveal to the officer whether the involuntary jerking of the eyeballs which occurs as a result of HGN is present in someone suspected of DWI.
When performing the field sobriety test for HGN, there are three manipulations performed on both eyeballs. They specifically test for:
- Lack of smooth pursuit;
- Sustained nystagmus at maximum deviation; and
- Onset of nystagmus prior to 45 degrees.
Because they perform these 3 manipulations on each eyeball, there is a maximum possibility of six clues on the HGN test. Most Fort Worth DWI attorneys understand that HGN evidence is confusing to a jury and typically not helpful to the state in proving the case.
Walk and Turn Test
The walk and turn is the second test in the FST battery. It and the third test, the one leg stand test, are designed to test an individual’s divided attention. Divided attention can best be described as someone’s ability to use their mind and body in concert to achieve a desired result. Driving requires divided attention. So, testing for divided attention ability is the idea behind these tests. However, these tests are very peculiar when compared to the task of operating a vehicle. For this reason, these tests have and continue to come under heavy scrutiny.
When administering the walk and turn (WAT), the officer will instruct the individual to stand in a heel-to-toe position with his arms down at his side. If you can visualize it or know from having done this test, this position is very awkward and hard to maintain. While trying to hold in this position, the police officer then gives the instructions to the test and you are expected to listen and follow along. The basic instructions order the individual to take nine heel-to-toe steps down (what is usually) and imaginary line, then take a series of smaller steps to make the turn before taking nine heel-to-toe steps back to where the individual started. There are eight clues the police officer is trained to look for. They are:
- Cannot keep his balance;
- Starts too soon;
- Stops walking;
- Misses heel-to-toe;
- Steps off of the imaginary line;
- Uses his arms to balance;
- Takes the wrong number of steps; and
- Turns improperly.
These “clues” of intoxication are things that a perfectly sober person would likely experience as well when attempting this test and our Fort Worth DWI attorneys will point that out to a jury.
One-Leg Stand Test
The final test is the one leg stand (OLS.) During this test, the individual is asked to stand on one leg while extending the other leg keeping the foot approximately six inches off the ground. The individual is also instructed to point his toe outward. Again, like the WAT, this is a very strange position to maintain. Most people think of Daniel practicing the crane kick in Karate Kid. While trying to hold this position, the police officer then gives instructions to count out loud from 1 to usually 20. The four clues the police officer is trained to look for are:
- Swaying while balancing;
- The use of arms to balance;
- Hops while attempting the test; or
- Puts his foot down during the test.
Again, these “clues” are often experienced equally by a sober person and our Fort Worth DWI attorneys highlight that point to a jury.
After these tests are completed, a police officer can make an opinion as to whether there is probable cause to believe the driver is “intoxicated.” If they decide yes, they can proceed with an arrest. The officer could also decide to let the person go. As you might guess, it is rare that someone is released at this point.
Blood Test or Breath Test to Determine Blood-Alcohol Content for DWI Intoxication
After the driver is arrested, the police will then proceed by asking for a breath or blood specimen. In order to do this, the individual must be read their statutory warning known as the DIC-24 – see a copy of the DIC-24 form here.
After the officer reads this lengthy, wordy document to the person suspected of driving while intoxicated, they are asked a simple question: Yes or No? Often this eight-paragraph warning can be intimidating and confusing leaving the person with questions about their rights. Police are prohibited from giving legal advice to the individual. So, little leeway is given to the person and an immediate response required.
Simply put, there is no way to force an individual to give a breath test. If someone chooses to decline the request for a breath specimen, there are consequences. One of those consequences is a response by DPS to attempt to suspend your license. The other is that the police officer may try and obtain a warrant for a blood draw. In order to obtain a warrant, a police officer must show probable cause a DWI has been committed by the person suspected. If he can establish probable cause in an affidavit and find a magistrate to issue the warrant, he can proceed to take the individual to a phlebotomist for a mandatory blood draw. There are also some circumstances where he can seek a mandatory blood draw without a warrant (any felony grade DWI charge.) Once the mandatory blood draw is pursued, they will use any amount of force necessary to obtain the required amount of blood from the individual’s body for testing. The drawn blood is submitted to a lab for analyses of alcohol concentration, presence of substances or a combination of both.
Labs are not perfect. The chain of custody on the blood sample is always at issue. The state must prove the blood tested is the same blood taken from the individual. They must also prove the blood was tested in accordance with accepted scientific standards and that the person performing the analyses is qualified to perform those tasks correctly.
Breath machines, also known as the “Intoxilyzer,” can also be flawed. These machines are maintained by “Intoxilyzer Supervisors” who normally work for the state of Texas. As expected, their opinions and knowledge are usually state-sided. However, there are processes in place by which they must abide. For example, if their routine maintenance of the machines comes into question, the breath sample results yielded by those machines can be thrown out. Many people will tell you that other Fort Worth DWI attorneys have told them over the years not to blow during a DWI stop because the machine is not reliable. We agree with that. Any time that technology is involved, there is a concern about error in the results of the test.
Regardless, if a breath specimen is provided by an individual and that sample is over the legal limit of .08, the state enjoys the advantage of additional evidence they may not have had. There are occasions where a breath sample result yields an amount of less than .08. It is still within the discretion of the police officer to go forward with the DWI charge based on their investigation and the evidence they’ve observed. Admissions to drinking or drug use, open containers or drug paraphernalia in plain view or even the odor of alcohol or marijuana to name a few.
Once an officer makes an arrest for DWI, the officer will then book the person in at the local jail. At the jail, normal practice is for the officer to mirandize the accused (i.e. Read them the Miranda Warning:
1) you have the right to remain silent,
2) anything you say can and will be used against you in court,
3) you have the right to have an attorney advise you before answering any questions,
4) if you cannot afford an attorney, one will be appointed to you
5) you have the right to terminate this interview at any time). The officer will then ask them a series of questions, such as:
- Were you operating a motor vehicle?
- Have you been drinking?
- How much have you had to drink?
- What was the time of your last drink?
- Have you taken any prescription medications?
- Have you ever been this drunk before?
These questions require the accused to waive their rights in order to answer them. You never have any obligation to waive your rights and speak with law enforcement during this part of the process. Like the breath test, answering these questions usually supplies the state with additional evidence they wouldn’t otherwise have. Our Fort Worth DWI attorneys can defend your case, however, even if you have made statements or performed field sobriety tests.
DWI Videos are the Best Evidence in a Tarrant County DWI Case
There is no doubt that we live in a media-saturated world. Technology has exploded onto the law enforcement scene. Video evidence has become more advanced and available for law enforcement officers. Normally, any DWI case will have an in-car dash-cam video of the stop, the contact and any subsequent investigation on the road. Most patrol cars have video cameras installed in the back of patrol cars that will record the accused’s transport from the scene of the arrest to the police station or jail. Finally, there will be video evidence of the breathalyzer test procedure and any post-arrest interviews.
These videos are the best evidence in any DWI case; even better than blood-alcohol concentration results. If a person sounds sober and looks sober on video, there is a better likelihood that a jury will not find the person guilty of DWI. Our Fort Worth DWI Attorneys regularly win DWI trials when the defendant looks good on the video. Always remember, in any traffic stop, you are being recorded. Give our Fort Worth DWI attorneys the best chance at an acquittal by not providing evidence against yourself on video.
Driver’s License Revocation and Occupational Licenses
After being charged with DWI, you may be subject to an automatic driver’s license revocation. You have the right to challenge the revocation, but you must act fast. Our Fort Worth DWI attorneys will assist you in requesting an administrative license revocation (ALR) hearing. We will take the steps necessary to protect your driving privileges. If your license is suspended, we may be able to assist you in obtaining an occupational license that will allow you to drive to and from work, and for other essential needs.
In cases where someone refuses to give a breath test or where a specimen (either breath or blood) is given and indicates an alcohol concentration of .08 or higher, DPS will seek an ALR suspension ranging from 60 days and more.
There is generally a firm 15 day period to request a hearing on the ALR suspension. It is important to speak with an attorney as soon after arrest as possible. At Law office of Paul Previte, we include the ALR hearing in our representation at no additional cost. Depending on the facts and circumstances, there are important aspects of the ALR process to which experienced attorneys pay close attention.
In the event DPS is successful in getting the ALR judge to grant the suspension, an occupational license will become necessary for anyone who needs to maintain the ability to operate a motor vehicle. If it can be shown there is an essential need to operate a motor vehicle for work or school or to perform household duties, a petition for occupational license can be granted for someone whose license has been suspended by DPS for one of these reasons.
Our Fort Worth DWI attorneys give these matters our utmost attention because we know how important driving is to our clients’ ability to take care of their families and themselves. Filing for an occupational license and any required hearings are also part of the representation you get with our firm.
Interlock Device as a Condition of Pretrial Bond or Probation
Depending on the specific type of DWI (see below), some courts will require the installation of an interlock device on any vehicle operated by the accused as a condition of their bond. If this is required, it is important to make sure your device is installed by a company that is authorized by the courts.
Classification of DWI Offenses in Texas
In Texas, there are different ways the state charges DWI offenses. They are:
- DWI – 1st offense : A first-time DWI offense is a Class B Misdemeanor, which has a punishment range of 3-180 days in jail and up to a $2,000 fine.
- DWI – 1st offense with an Open Container : DWI with an open container is also a Class B Misdemeanor, but is carries 6-180 day in jail and up to a $2,000 fine.
- DWI – 1st offense with a BAC .15 or higher : DWI with a blood alcohol concentration of 0.15 or higher is a Class A Misdemeanor, which is punishable by 3-365 days in jail and up to a $4,000 fine.
- DWI – 2nd offense : A second DWI offense (DWI – Repeat Offender) is a Class A Misdemeanor, and is punishable by 30-365 days in jail and up to a $4,000 fine.
- DWI with a child passenger : DWI with Child is a State Jail Felony offense, which is punishable by 180 days – 24 months in a state jail facility and up to a $10,000 fine.
- DWI 3rd offense or more : A third DWI offense (Habitual DWI) is a 3rd Degree Felony, which has a punishment range of 2 – 10 years Texas Department of Criminal Justice – Institutional Division (penitentiary) and up to a $10,000 fine.
Additionally, if it is alleged someone is in an accident or if someone is injured or killed as a result of someone who is DWI, there are other serious charges that can be filed by the state. Some of them are:
- Failure to Leave Information (class C or Class B or Class A misdemeanor)
- Failure to Stop and Render Aid (2nd or 3rd degree felony)
- Intoxicated Assault (3rd degree felony)
- Intoxicated Manslaughter (2nd degree felony)
- Aggravated Assault with a Deadly Weapon (2nd degree felony)
Where Can I Take the DWI Education Program Course in Tarrant County?
As part of any DWI probation in Tarrant County, the judge will order that a person complete the DWI Education Program. Our Fort Worth DWI Attorneys are often asked to recommend that best facilities to complete DWI Ed. We have compiled a list of recommended facilities that offer the DWI Education program and included them on our DWI Education Program webpage.
What is the Tarrant County Felony Alcohol Intervention Program (FAIP)?
FAIP is a program in Tarrant County designed for felony repeat DWI offenders that have a history with alcohol abuse. FAIP is not an easy program, but it could help a person avoid a lengthy prison sentence as an alternative. For more information about the Tarrant County FAIP Program, see our FAIP webpage.
What is the Tarrant County DWI Court Program?
DWI Court is a new program that began in March 2016. It is administered by Judge Deborah Nekhom in County Criminal Court 4. It is an intense program, similar to FAIP, for high-risk / high-need midemeanor DWI offenders. Learn more about the DWI Court program.
Free Initial Consultation at Fort Worth Law Office of Paul Previte
If you find yourself in the unfortunate situation of being charged with some type of DWI offense, please feel free to call us immediately. Our Fort Worth DWI Attorneys are available 24 hours a day, 7 days a week. We would be glad to visit with you over the phone or schedule a free consultation at one of our locations throughout the Dallas-Fort Worth area.
There are lots of lawyers that claim to be Fort Worth DWI Attorneys. We are local, with offices in downtown Fort Worth. We offer representation packages that include pretrial, trial, ALR suspensions/hearings and occupational license filings/hearings. Because of the involved nature of DWI cases, it’s important to seek representation from an attorney who can and will be there every step of the way.
Fort Worth attorney Paul Previte takes pride in offering personal representation that focuses on always being available for our clients and making sure you can communicate with our Fort Worth DWI Attorneys anytime you need to do so. Call 817-335-4357 to learn how we can help you fight drunk driving charges. Drinking and driving is not illegal so long as the driver is not intoxicated under the law. Contact our Law Office today and let us start defending your future!