Tag Archives: Pretrial Diversion

DWI Consequenses

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DWI ISSUES TO CONSIDER

We at the Foster Law Firm do not promote people driving while intoxicated. The law in Texas does allow someone to drink and then drive if they are not intoxicated. Intoxicated in Texas means having lost the normal use of your mental or physical faculties due to the consumption of alcohol or if you have a blood alcohol level of .08 or higher. It is up to individuals to make the decision if they have had too much to drink and it has affected their abilities. Even if you think it hasn’t, it is still possible and you could suffer the consequences of being arrested for DWI. These consequences can be very sever depending on the charge. We will discuss some of these consequences and things to consider if you do decide to drive after you have been drinking. The best option to avoid these penalties is to not drink and drive at all.

When someone is stopped for a legal reason and suspected of having consumed alcohol that is when the DWI investigation begins. The reason for the stop can vary from speeding to your license plate light not working and all things in between. You should always check your car to confirm all lights are working including, tail lights, brake lights, head lights, and the light on your license plate. Be sure your inspection is up to date. The reason to believe you might be intoxicated could be the way you were driving along with an odor of alcohol or even just the odor of alcohol when the officer comes to the vehicle. Everything from this point on can be critical to your future and the charges that can be filed.

If you are pulled over after you have been drinking, the first thing to know is, you do not have to answer any questions. Always be polite and cooperative with law enforcement, they are just doing their job. However, this does not mean that you have to answer questions about consuming alcohol, where you are coming from, etc. You may tell the officer you are exercising your right to remain silent. You can refuse to do the balance tests, also known as a field sobriety test. They will most likely ask you to follow a pen. If you have been drinking your best choice is to be polite and refuse any test including, following of the pen or other object, the walking test, and one leg stand. If you do these tests, they will be used against you at a later trial. If you are stoped and they smell alcohol, you are most likely going to jail no matter how well you do on the test. If you refuse, they will proceed to arrest you by placing you in handcuffs and put you in their car. Please just be polite and cooperative and you will have the ability to dispute your case later. If you get angry or belligerent that will also be used against you. Be aware there is most likely a camera in the car recording video and audio of you. The best advise is to no talk, make faces or fall asleep.

Once arrested they may read you the statutory warning and ask you to take a blood or breath test. You again have the right refuse the test. If you refuse, your license may be suspended. I say may because as long as you request a hearing within 15 days of your arrest you can challenge the suspension. IT IS VERY IMPORTANT THAT YOU HIRE AN ATTORNEY IMMEDIATELY to preserve this valuable right. Your license will most likely get suspended but there are times when it does not for various reasons. If you take the test and fail it you will also most likely be suspended. If you have been drinking it is best not to take the test. They then have the ability to get a warrant and take a blood test if they choose. Again, let them do that because sometimes, they make mistakes in the process. If you agree to take the test you have waived many important rights.

There are also other consequences of taking the test. If you take the test consensually or by warrant, and it is .15 or higher your first time DWI is moved from a class B misdemeanor to a class A misdemeanor. This adjusts the range of punishment. Many counties are also now offering pretrial diversions programs for first time offenders however if the test amount is .15 or higher you may be disqualified. This is a very good reason not to take the test and risk disqualifying your self from this very important program. The PT diversion program is a great program that allows your case to eventually be dismissed if you complete the program.

If you have been arrested and taken to the jail it is important to continue to assert your rights not to answer questions other than your name. You have the right to not incriminate yourself and to not do any tests you are asked to take. You also should not discuss your matter with anyone in the jail including other inmates and guards. If you make a phone call to someone, remember that calls are recorded, so again do not say anything that could hurt your case. They do listen to these recordings and they do you use them against you.

Just remember, it is best to not drive if you are intoxicated or maybe drinking at all. If you are pulled over, be polite and cooperative with the officer but remember to not give up your rights and contact an attorney immediately after your arrest.

DWI – How your decisions can affect your ability to get a Pretial Diversion

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Many counties in Texas have started pretrial diversion programs for first time DWI’s.  Fort Bend and Harris County have these such programs. We practice in both of these and other surrounding counties and  have reviewed these programs.  Fort Bend County has a program that is newer and came in with the new District Attorney.

Both programs offer the ability to  have your DWI dismissed and the records expunged if you successfully qualify and complete the program.  There are restrictions that are similar to both programs. There was also a change in the law dealing with the expunction of DWI convictions and other convictions in the past under certain circumstances. We will have an article on that later.

There can not have been an accident, even a single car accident.  In Fort Bend County if there is an accident involved then you can possibly qualify for the DWI court but will not be able to get into the DA PT program.

If there was a breath test or blood test there is a limit on how high it can be to qualify for the DA PT program.  Harris County has a threshold of .15, anything over that does not automatically qualify for the program.  If it is over that amount you may still apply but will be a case by case basis and requirers some other special circumstance.  Fort Bend  County has its limit set at .12 but again you may still apply and it can be reviewed to see if possible to accept.  It would again take some special circumstance especially since there is the DWI court which also offers dismissal for first offense in most cases.

Both programs are also limited by not having any alcohol related priors. Even if your  alcohol related prior was not a conviction it will still probably preclude you from eligibility.

It never hurts to ask for these programs even if not automatically qualified.

The important thing to remember based on these requirements is that you are better off not taking the breath or blood test so you do not risk being over the threshold limit.  The ability to get into one of these programs is huge and you might disqualify yourself if you take the test.  This would mean someone who is actually over the alcohol level you are at might get the benefit of the program just by refusing the test.

You are also better off not taking the test because if you are .15 or higher you 1st time DWI would be a Class A misdemeanor and you would have a mandatory interlock on your vehicle as a condition of bond.  The state administrative fee’s would also be higher if you are convicted.

Always be polite and cooperative, but remember you are not required to do any of the road sided tests, including the eye test (HGN), walk and turn, one leg stand or any other test they may ask you to perform.  However if you refuse all roadside tests this could affect your ability to get into the program in some counties.  This includes normal things like saying your ABC’s or touching your fingers to you thumb in a pattern.  You are also not required to submit to a breath or blood test, your license may be suspended if you refuse just as it may if you blow over .08.  You must seek an attorney immediately if you get arrested. You must have a request filed with in 15 days of the arrest to challenge the suspension.  Even if your court date is not for weeks or even months you have time periods that run immediately.