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

www.rosenthalwadas.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


TxDOT Signs Bend Truth for Noble Cause

August 27, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

On a recent drive to Austin and back, I couldn’t help but notice about 10 or 15 Texas Department of Transportation electronic signs which flashed two sequential screens.  The first was “1785 Deaths This Year on Texas Roads” and the second was a reminder not to drink and drive.

Wow, I thought… I didn’t realize drunk driver’s caused about 250 deaths per month in Texas alone!  Then I started thinking this figure sounded a bit too high.  Then my lawyer brain started to kick in and I realized the TxDOT signs were sort of making a play on words… The signs didn’t actually SAY all 1785 were caused by DWI — they had their fingers crossed!

The Obvious

No one wants drunk drivers on our roads.  Losing a loved one on the highway is a terrible tragedy no one should experience regardless of whether it’s inattentive driving, road rage, texting or drunk driving.  Hopefully the TxDOT officials decision to publish the number of traffic related deaths will turn heads and in doing so make our highways a safer place to drive.  You can read some of the PR they got here and here.

The Rub

The signs leave the clear impression the 1785 tragic losses on the highway are ALL due to Driving While Intoxicated.  When you read the quote from TxDOT spokesman Mark Petit, he says “We think that pointing out the number of deaths that have occurred so far this year will make somebody think twice maybe about whether they should pick up that cell phone and text somebody, or whether they should buckle that seatbelt.”

But the signs don’t say, “Buckle Up” and they don’t say, “Don’t Text and Drive.”  Each sign I saw had the same sequence of traffic deaths followed by the warnings against drinking and driving.

Here’s Why It’s A Problem

It’s a problem because it leaves a false impression, over-exaggerates, and stokes the flames against a group of people that it’s already somewhat popular to pick on — DWI suspects.  TxDOT concedes traffic fatalities have declined 21% in roughly the past decade and Mr. Petit’s warning in the above quote is also clearly against distracted driving.

Think of how angry you would be if your husband, wife, son or daughter were on trial for Driving While Intoxicated and during the jury selection process, you hear extremely angry jurors who want to presume a suspect guilty and give them far harsher punishment — because they’re lead to believe DWI related deaths are approximately 300% worse than they actually are (in 2011, TxDOT reports 3,015 total highway deaths and 1,039 “involved” alcohol).

If there is harm in the Texas Department of Transportation also warning drivers to put down hand-held devices and to wear seat belts in conjunction with the traffic death statistics — I have a hard time seeing it.  Everyone wants safer roads.

*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 and communications sent through this forum are not privileged nor confidential.

 


What Happens After A DWI Arrest?

July 13, 2012

By Collin County Criminal Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I am frequently asked “what now” after someone is released from jail on a driving while intoxicated arrest.  Though the specific answer may vary depending on where in Texas you were arrested, here are some answers to common questions:

What is My Legal Status?

If you just got out of jail for a DWI or DUI arrest, then you are technically released on bond.  This means have conditions to live by to assure you appear in court (or in certain cases) do not endanger the public.  You will probably not be formally charged with DWI for several weeks or in some cases (usually where there is blood evidence) for several months.  The District Attorney’s office in your county will review the report and decide whether to file a case against you with a document known as an “information.”  In Collin County virtually every case where an officer makes an arrest ultimately gets filed.

What Happens Now?

A DWI is two cases in one.  There are the driver’s license suspension issues and then there are the criminal aspects.

For the driver’s license suspension portion, you must remember you have 15 days appeal any driver’s license suspension issued because of a breath test refusal or failure (score of 0.08 or greater) within 15 days of the arrest with the Texas Department of Public Safety.  These are highly technical proceedings which lawyers commonly handle.  If a voluntary blood specimen was given, then you have 20 days after you receive notice your blood was above 0.08 blood/alcohol concentration.

For the criminal side of the case, you can expect to appear in court for an announcement when the case is filed with the information.  This appearance is more of a work-session between your lawyer than the prosecutor than an actual appearance before a judge (though in some jurisdictions the judge may wish to proceed with technical matters that require you to visit with them).  It is the announcement where your lawyer will have some access to the police report (again, depending on the jurisdiction) and access to the video evidence in the case.

Ultimately, you and your attorney will decide whether you wish to plead guilty to the charges with a plea bargain — or plead not guilty and have a trial.  It is also possible the State may dismiss the case depending various other factors.

Is My Driver’s License Suspended Immediately?

No.  If you were given a document called a DIC-25, then you have a temporary driving permit valid for 40 days from the date of the arrest.  If you appeal the suspension, the temporary permit is valid until your administrative law review hearing (ALR) which could be several months later.  This is the case even if the officer confiscated your driver’s license.

Can I Get This Off My Record?

Yes.  The steps may be different in each unique case, but not guilty verdicts and expunctions are common for DUI and DWI cases.  You should visit with a lawyer directly about how to accomplish this in your case.

*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 about any situation you should contact a lawyer directly.


Deep Lung Devices are Getting Harder to Avoid in Collin County While on Bond

December 14, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

All driving while intoxicated arrests in Texas require that a person see a magistrate judge.  That judge is required by law to make an initial assessment and to decide whether to order the defendant to have an ignition interlock device (also known as a deep lung device) under Texas Code of Criminal Procedure 17.441.

Here is the relevant text of 17.441:

“(a) Except as provided by Subsection (b), a magistrate shall require on release that a defendant charged with a subsequent offense under Sections 49.04-49.06, Penal Code, or an offense under Section 49.07 or 49.08 of that code:

“(1) have installed on the motor vehicle owned by the defendant or on the vehicle most regularly driven by the defendant, a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator; and

“(2) not operate any motor vehicle unless the vehicle is equipped with that device.

“(b) The magistrate may not require the installation of the device if the magistrate finds that to require the device would not be in the best interest of justice.

Section 17.441 can be read to state that a judge can only order the interlock device on a vehicle if it’s the 2nd DWI arrest (or more) of the defendant.  The judge can find that an interlock ignition device is not appropriate in the best interests of justice even on a 2nd arrest.

In reality, Judge’s interpret the law to state that they can always place an interlock device on a car but are only required to do so on a 2nd offense.  It is unclear whether they are interpreting 17.441 as the basis for their beliefs of some other statute.  Additionally, many Collin County judges have informal policies that if a defendant had a car accident or was charged with the new offense of DWI with a blood alcohol concentration above 0.15, then they will order the deep lung device as well.

Ultimately deep lung devices are becoming more and more common as terms and conditions of bond in Collin County.  Arrest and going before the magistrate is not the only time in a case where a judge may have an opportunity to order the deep lung device as well… the judge can order the defendant get one when the defendant applies for an occupational license due to a driver’s license suspension, during a guilty plea, or if a jury convicts the defendant.

*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 blog does not create an attorney client relationship and communications through this blog are not confidential.


Not Much New DWI Legislation in Texas for 2011

June 4, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

After a political season with a lot of chest-beating and drum-banging about changes to existing Driving While Intoxicated laws in Texas, only several changes will be made to the Texas Penal Code.  You can read an article by the Dallas Morning News on the topic here.

There are only two changes.  The first is that that punishment ranges can be increased for first-time DWI cases with a blood-alcohol concentration of 0.15 or greater from 180 days to 1 year of jail for punishment.  This change may sound like a harsh one, but the vast majority of DWI first-time offenders get probation regardless of the jail sentence — which means the punishment is suspended whether it’s 72 hours or 1 year of jail.  The second change is to increase the punishment level where a victim of intoxicated assault is in a vegetative state from 10 years to 20 years.

The big news is that the legislature did not pass a bill allowing deferred adjudication in Driving While Intoxicated for first time offenders.  The bill had broad support from law enforcement as well as prosecutors because the harsh state of DWI penalties gives prosecutors no room to plea-bargain.  Defense lawyers had a luke-warm reaction to the idea because the proposed legislation was extremely shallow in it’s benefits for those pleading guilty to a first-time drunk driving charge.

*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 specific situation, you should consult an attorney directly.