Is My Driver’s License Valid Immediately After a DWI Arrest in Texas?

October 2, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Yes.  Here is a link to the State’s DIC-25 warning which you should have been given prior to having taken or refused the breath test.

Even though your physical drivers license was probably taken by the officer if you refused the test or blew over 0.08, this warning states in bold letters your license isn’t actually suspended for 40 days.  The document itself actually serves as your temporary driving permit for the 40 days.

Additionally, your license isn’t even automatically suspended after the 40 days if you appeal the suspension. In that case, your license wouldn’t be suspended until after the administrative judge rules on your appeal (and even then — only your appeal is denied).

If you voluntarily submit to a blood specimen, that specimen obviously needs to be analyzed.  It’s typically shipped to a Department of Public Safety Lab where there is a wait to have it analyzed.  In those cases where the blood comes back over 0.08, DPS should send you a notice giving you 20 days to appeal the suspension.  But even then, the suspension is not immediate upon the arrest.

It’s a common mis-impression that you’re not even allowed to drive the very next day after an arrest which law enforcement is happy not to clear-up.  This is part of the pressure tactic to attempt to persuade people to submit to breath or blood tests.

*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 any matter you should consult an attorney directly.  Contacting the author through this forum does not create an attorney-client relationship.  Communications through this forum are not confidential nor privileged.

It’s a common mis-impression

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What I Like About Defending DWI Cases Collin County

July 9, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Defending driving while intoxicated case presents a unique challenge to lawyers.  This is because long before entering the courtroom, you can detect a stiff headwind of resistance working against you which lasts the entire case.

You get the sense the legislature, lobbyists and victim advocacy groups, and even many jurors don’t stop to consider whether the police are right when they make an arrest.  Even the news media runs article after article about how if the courts and police were just meaner and tougher on these cases — they would somehow go away.  There is an unmistakable and heavy bias which reaches far beyond whether drunk driving is a problem — and assumes everyone suspected of DWI is guilty.

No one wants drunk drivers on the road.  Everyone’s heart breaks for victims of drunk drivers.  The vast majority of people respect and trust police which is one of the things that makes Collin County a great place to be.  But legislators, activist groups, and police are human.  By their very nature, groups with this degree of moral authority tend to make up the rules as they go along — and therein lies the potential for them to badly hurt innocent people in the name of the public good.

I enjoy the challenge of showing jurors that not everyone caught in the wide-cast-net of DWI is a drunk driver.  I enjoy showing the jury how the framers of the constitution knew the timeless attitudes of accusers, authority figures, and even society’s tendency to rush to judgment.  Most of all, I enjoy the challenge of winning cases where there is a steep up-hill climb with skeptical jurors, difficult police officers, and strict rules limiting our ability to defend the case.

Though I’m probably biased in favor of Collin County jurors, I enjoy trying cases in front of people that live in places like Allen, Plano, Frisco, McKinney and Richardson for the reason they are intelligent and open minded.  Without people even willing to listen — having a fair trial anywhere would be impossible.

*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 any situation you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship nor are any communications confidential or privileged.

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“No Refusal Weekend” for DWIs in Dallas and Plano

May 30, 2010

Cities around North Central Texas are publicizing their “no refusal” policies this weekend for DWI enforcement in an effort to ramp up law enforcement and discourage impaired driving. Some have issued press releases to the media such as this one. They’re beginning to have these weekends routinely on Memorial Day, the Fourth of July and Labor day.

Although the press release doesn’t spell it out, what they are trying to communicate is that if you refuse to submit to the breath test, they’ll simply go to a magistrate that is on standby to get a warrant signed. That warrant will enable them to draw your blood, hence the “no refusal.”

In Texas, the police must be extremely careful not to coerce a person to voluntarily give a breath specimen. When a person is formally offered a breath test, they are done so through documents called dic-23, 24, and 25. Those documents lay out all the dangers and disadvantages of submitting to a breath test.

An officer cannot coerce or intimidate a person into submitting to a breath test in Texas. If an officer alters, amends, adds, or subtracts warnings (generally be editorializing his opinion in some way) about the warnings or what the resulting action may be — then they flirt with having the breath test thrown out under a line of cases called the Erdman doctrine. The vast majority of officers will read the dic warnings in a scripted fashion because they don’t want the results of the test thrown out.

The press release definitely walks a tight rope. They’re trying to curb drunk driving this weekend (which everyone agrees is a good thing). But, by over-publicizing the “no refusal weekend,” it is quite possible that people arrested for DWI submit to the breath test because they fear the police punish a refusal by jamming a needle into their arms. It is interesting, then, that the press release omits any references to warrants, and merely insinuates that medical personnel will just happen to be around.

Maybe they’re afraid some lawyer might try and put the press release into evidence during a trial down line to show the police are just trying to intimidate everyone into submitting to a breath test?

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*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 specific legal advice, you should directly consult an attorney.

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DWI Surcharges Clog Texas Courts

April 27, 2010

The Dallas Morning News reports a former State District Judge from Waco, David Hodges, told the Texas Driver Responsibility Program in Austin that the surcharges assessed after DWI convictions were clogging the Courts.  You can read the article here.

Mr Hodges is echoing the opinion of many criminal defense practitioners who believe the punishments for DWI related offenses have become so harsh that it makes more sense to fight DWI charges than to simply give in and plead guilty.  Although the article also focuses on where the money for the DWI surcharges are spent by the state, it is important to note the surcharges that accompany a DWI conviction.  They are:

(1) $1,000 per year for 3 years following a DWI conviction;

(2) $1,500 per year for 3 years following a 2nd DWI conviction; and

(3) $2,000 per year for 3 years following a DWI conviction where the blood/ alcohol concentration was 0.16 or greater.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*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 specific legal advice about your own matters you should consult an attorney. 

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Police and Confirmation Bias

April 27, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Confirmation bias is a psychological phenomenon whereby people have a tendency to selectively prefer information which confirms their pre-existing beliefs and hypotheses.

Why is this important in criminal law?  Because every case involves investigation in one way or another.  Police officers can and do fall into the confirmation bias trap.

Textbook signs of confirmation bias include ignoring evidence that contradicts the initial impression of the officer and interpreting neutral facts or exculpatory facts as evidence of guilt among others.

Psychologists have conducted studies on confirmation bias.  In one study, test subjects were given fake police files which weakly incriminated a particular suspect.  Later evidence showed that perhaps a second suspect was the culprit and that the original information was false.  Not surprisingly, the subjects fell into several confirmation bias traps.  They rejected evidence inconsistent with the innocence of the original suspect, they viewed neutral or ambiguous evidence as evidence of the original suspect’s guilt, and finally the suspects ignored evidence pointing to the guilt of the second suspect in favor of evidence against the first suspect.

I see confirmation bias all the time from law enforcement during investigations.  You can tell when it’s going on in certain opinion-oriented cases such as DWI when you read an offense report which omits or wholly ignores evidence that contradicts the officer’s findings.  Often times police will take neutral facts (like where they describe a person as ‘nervous’ at a traffic stop) and attempt to spin that into evidence of guilt.  Obviously that is non-sense as many people are nervous when confronted by authority figures like a police officer in uniform — not just criminals.

Dealing with confirmation bias takes a skilled trial lawyer.  Jurors must be educated during jury selection about confirmation bias and be show the practical example of confirmation bias in action when the officer holds firm to his opinion despite all the contrary evidence.

*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 specific legal advice for your own matter you should contact an attorney.

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