Passing The Breath Test Doesn’t Mean You Don’t Get Charged with DWI

March 5, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Texas Penal Code Section 49.01(2) defines intoxication as

“(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

(B)  having an alcohol concentration of 0.08 or more.”

As you can see the legislature used the word “or” between subsection (A) and (B).  This means that you can be charged with DWI where the officer believes you “do not have the normal use…” regardless of whether a breath test was taken — and regardless of whether a breath test result was below 0.08.

Technical Supervisors, who are the state’s “breath test experts” at trial have training on alcohol, it’s effects on the body, and it’s effects on driving.  They testify, in general, that no one has the “normal use” above 0.08 for the purposes of operating a motor vehicle and some lack the “normal use” below 0.08.

The end analysis is simple — if the officer says you’ve lost the “normal use,” then you are getting arrested for DWI regardless if you blow a 0.11 or a 0.06.

Many police officers will also suspect marijuana, narcotics, or medications may be responsible for someone’s condition even if there is little or no evidence of it.

As a former Collin County Prosecutor and as a Criminal Defense Lawyer in Dallas and Collin Counties, I have yet to see or hear of anyone that got taken back to the police station for DWI, was asked to take a breath test, and wasn’t charged with DWI regardless of the result.  Maybe it has happened.  I’ve just never heard about it.

This is part of the lose-lose equation which is the breath test.  And then the police actually wonder why people refuse the breath test all the time.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For legal advice, you should consult with an attorney.

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Posted by Jeremy Rosenthal, Esq.

What is the Result or Punishment for a 1st DWI in Texas?

February 22, 2010

By Collin County Criminal Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

In Dallas and Collin County where I practice, DWI’s are statistically very winnable.  Today’s blog, though, deals with what happens if you plead guilty or are found guilty at trial.

A first DWI in Texas is a Class ‘B’ misdemeanor.  A first DWI conviction in Texas is not a felony.  Even as a misdemeanor a conviction stays on your criminal record forever.

The punishment range for a Texas DWI is between 72 hours an 180 days of jail and/or up to a $2,000 fine.

Don’t panic!  That time is usually probated — meaning you’re on probation for DWI and only if you violate your probation do you look at going back to jail.  I can safely say in my experience as a prosecutor and a DWI defense lawyer the vast majority of persons arrested for DWI spend no time in jail after their original arrest.  Of course, no lawyer can guarantee you any result.

With the punishment range as it is, your lawyer must admonish you that it is legally possible for you to be assessed 180 days and a $2,000 fine.  This is not to minimize the consequences, but most experienced DWI lawyers in Dallas and Collin Counties will tell you that result is highly unlikely.

You should also be aware that if you’re convicted of DWI and your breath test result was a 0.15 or above, you’re legally required to have a deep lung device installed on your car for at least half of the probation period.

Beginning in September, 2011, a DWI with a blood alcohol concentration above a 0.15 is now a class A misdemeanor punishable by up to a year of jail — again — typically probated.

Also there is a surcharge for renewing your driver’s license of $1,000 upon conviction for 3 years following the conviction.  The surcharge goes up to $2,000 per year if your breath and/or blood is a 0.16 or higher.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice please consult an attorney.

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Your Driver’s License Isn’t Actually Automatically Suspended If You Refuse A Breath Test

February 20, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Texas DWI’s have two sides.  There is a criminal side and the administrative side (i.e., the driver’s license suspension.)  Today I’m only discussing the administrative driver’s license suspension side.

Texas has an “implied consent” law.  This means when you got your driver’s license, you implied to the Department of Public Safety (“DPS”) that if an officer ever offered you a breath-test, you would comply.  If you fail to comply – or you do comply and blow over 0.08 – then your driver’s license can be suspended.

What the DPS media blitz omits is that this isn’t automatic.  You have 15 days from the date of arrest to submit an appeal.  The instructions are on the sheet of paper they should have given you when they confiscated your driver’s license.

You are appealing the officer’s decision to ask you to take the breath test and/or the breath test score.  These things can be very legally technical and it is frankly difficult for people to win without lawyers.  These proceedings are generally called ALR’s by lawyers which is short for Administrative Law Review.

ALR’s are done in Collin and Dallas Counties like a deposition in a conference room and most lawyers advise their clients not to attend.  If the ALR Judge determines DPS lost your ALR, then your driver’s license is not suspended.  This happens all the time.

The ALR proceedings run concurrently or parallel to your criminal DWI case.  Sometimes the ALR proceedings take longer and sometimes they’re shorter.  If you win your DWI on the criminal side, the driver’s license suspension can also be negated.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

What Happens After an Arrest and Release From Jail on a DWI

February 18, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

You’ve been released from jail after the worst night of your life after a DWI arrest.  Now what?

You’re immediately responsible for two things when you get released.

First is that if your driver’s licenses was taken by the officer because you either refused the breath test or the machine reading was above a 0.08 – you have 15 days from the date of the arrest to file for an Administrative Law Review Appeal (“ALR”).  If you don’t file your appeal, your temporary driver’s license (the yellow sheet of paper they’ve given you at the jail) will be valid for only 40 days from the date of arrest.  If you do appeal – the suspension is put off until your hearing, which is usually farther out than 40 days.  If you win the ALR, your license doesn’t get suspended.  If you lose the ALR, you may be eligible for an occupational license.

Second is that, in all likelihood, you’ll get a notice to come to Court.  Collin County will mail your court date usually somewhere between one and two months after your arrest — but it can be sooner so watch your mailbox!  Dallas gives you a case number and has you check in every few weeks until the case is filed – at which point you can begin evaluating the nuts and bolts of your case.

Collin County will sometimes give you an immediate court date a week or so after your release from jail on a DWI for the purposes of complying with Texas code provisions that require a judge to assess whether you need an interlock device (deep lung device) on your car.  You should get this notice upon leaving jail if you get it at all.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about this situation or any legal matter you should consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

The Top 5 Mistakes You Can Make When Hiring a Criminal Defense Lawyer Countdown — No. 4

February 14, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

This week I’m counting down the top 5 mistakes people make when choosing and hiring a criminal defense lawyer.

#4  Hiring Someone Who Only Tells You What You Want To Hear

Sometimes in life we have to choose from a bad option or a worse option.  A lawyer that needlessly sugar-coats your criminal case whether it be a DWI, a theft case, a drug possession case or a felony isn’t doing you any favors.

There’s an age-old legal saying, “he who represents himself has a fool for a client.”  One of the main reasons for this saying is having legal problems is very stressful.  A lawyer should be detached enough from your situation that they can objectively review all the sides of your case.

Every lawyer should fight relentlessly for the optimum result for their client.  I’m not suggesting otherwise.  But your lawyer must also be like a mirror and give you the most accurate reflection of your case so that decisions can be made based on reality — not fantasy.

Lawyers are just like doctors in that we have to have good bedside manners.  This means that a good lawyer is realistic about bad news and can put it in perspective.  Just because there’s a problem doesn’t mean a great goal in the case still can’t be achieved.

Be wary of a lawyer that is afraid or hesitant to disagree with you or tell you news you don’t want to hear when you’re interviewing them.

A lawyer’s ability to give unbiased, detached and unprejudiced advice is a necessity.  It is just as critical as their ability to fight for you.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For legal advice, you should consult an attorney.

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