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A Guide to the Process and Procedures of
the Accusation of Driving While Intoxicated
(DWI)
© Christopher N. Hoover, P.C. 2004

DWI is a crime. It carries penalties that include license suspension and the possibility of being placed in jail for up to 180 days. This is because thousands of people travel on Texas highways and deserve to have safe roadways. The tragic toll of intoxication-related accidents is declining, but it is still one of the primary causes of injury and death on our highways.

Responsible drinking and driving is NOT AGAINST THE LAW. Our country attempted to prohibit consumption and possession of alcohol which led to one of the most violent chapters in American history.

Americans are allowed the freedom of many choices, and drinking alcohol responsibly is one of them. Anytime that you intend to consume alcohol and later drive, you have a responsibility to do so conscientiously so that no one is endangered by your conduct.

The Legal System

You must understand that there are two prosecutions involved in DWI. The first is a civil proceeding conducted by the State Office of Administrative Hearings by an appointed magistrate and prosecuted by the attorneys with the Texas Department of Public Safety (DPS).

The issue in this proceeding is whether or not your license is to be suspended and if so, for how long. Persons with a prior DWI history face longer periods of suspension.

The second prosecution is for the crime of DWI. This is a Class B misdemeanor and is held in a county court in the county in which you were arrested. This is a criminal prosecution and bears no similarity with the civil prosecution of your case. A first offense DWI carries a maximum penalty of 180 days (6 months) in jail and a fine not to exceed $2,000.00.

Depending on where you were arrested, this prosecution may begin immediately or be delayed. You will receive a notice of your first appearance by mail at the address furnished to the arresting officer on the night of your arrest.

Remember that your failure to appear for any hearing in county court may result in the forfeiture of your bond money and a warrant being issued for your arrest to secure your presence in court.

Administrative Hearing

Again, you must request this hearing within 15 days of your release from jail or there will be no way to prevent the suspension of your driver's license. Once the hearing has been requested, a date will be selected for your hearing.

Although you may appear, this is a civil hearing, and your presence is not generally required. This proceeding involves the civil law surrounding the documents submitted for suspension of your license. Live testimony may not even be involved. Because this is a very specific area of law, you should not attempt to handle this without an attorney if you want to save your license.

At this hearing, DPS will attempt to introduce certain documents submitted by your arresting officer. They will include a report that indicates the reasonable suspicion that the officer had to stop your vehicle, and the facts supporting his determination of probable cause that you were driving while intoxicated.

If you did not take a breath/blood test, these papers must also prove that you "refused" to take the test. If you took a test and scored at or above 0.08, additional documents are required to establish that the machine was working properly and to introduce the results of your test.

If it is determined that the DPS's evidence does not establish these facts by a "preponderance of the evidence," your license will not be suspended. It should be returned to you in the next few weeks or you are free to apply for and receive a new license from DPS.

Occupational Drivers License

In the event your license is suspended, and you do not have a prior history of license suspensions, you are entitled to receive an "Occupational Drivers License" to allow you to drive during your suspension period. This license is restricted to 12 hours per day and counties in which you demonstrate a need to drive. It is designed to be restricted for your essential need to drive for work, school or household duties.

If it is granted, you will be required to secure a "high risk" policy of insurance for its duration and carry a certified copy of the Order Granting Occupational License with you when you drive. This will allow any officer who may stop you to determine whether or not you are within your stated restrictions when you drive.

This license expires at the end of your suspension period as does your suspension. At that time, DPS will return your license to you or you may apply for another license at your local DPS office. Plus, you are also no longer required to carry the "high risk" insurance.

If you travel out of state, you need to know that Texas judges cannot authorize driving in other states. Additionally, your license has been taken from you. It will be necessary for you to obtain a Texas identification card at the DPS office for assistance in boarding an airplane or apply for a rental car.

Criminal Prosecution

Again, a first DWI offense is a Class B Misdemeanor with a range of punishment of not less than 72 hours or more than 180 days confinement in the county jail, a fine not to exceed $2000.00, or both. Most DWI offenders never go to jail. Most offenders are placed on probation for a period of 12-24 months. So long as you abide by the terms and conditions of probation, no more jail time occurs. I'll discuss probation later.

There are several court appearances in a DWI case. You WILL NOT GO TO TRIAL on your first court appearance. These first settings are to determine whether or not you have hired an attorney or if you meet certain criteria that affords you the opportunity to receive a court-appointed attorney for your case. Some county courts will also allow you to represent yourself.

If you have hired a lawyer, these court settings will provide an opportunity for investigation into the facts of your case. At each setting, the official court file, the prosecutor and his file and your attorney are all present.

The prosecutors and defense attorneys meet and discuss the case. The prosecution is required to share certain information with the defense counsel. The defense is under no duty to provide any information to the prosecution.

Your attorney should carefully review all documents in the court's file as they may show that the evidence is deficient or insufficient to formally charge you with a crime. Some deficiencies can even result in the complete dismissal of all charges against you.

Your attorney should also review all documents which the prosecution allows. Detailed notes should be taken and shared with you about the facts in your case. Copies of any and all videotapes are also requested at these hearings. Texas law mandates that you be provided with a true copy of any and all recorded statements of you either audio or video.

This information, together with the information supplied by you to your attorney, will be the basis on which you decide how to best dispose of your case. At these settings your attorney should also investigate the possible punishment recommendations of the prosecutor in the event you decide to plead guilty.

Once all of this information has been gathered, it should be provided to you. You should also have an opportunity to meet with your attorney, discuss all the facts of your case, and the options available to you for disposition.

Disposition Options

There are only three methods to resolve any criminal case from traffic tickets to murder. They are: 1) Dismissal 2) Plea Bargain Agreement or 3) Trial. A good attorney should do everything possible to have your case dismissed, but this does not happen very often. If it is not dismissed, you have the right under Texas and U.S. law to decide whether or not to plead guilty or have a trial. This is NOT an attorney decision. Your attorney should give you sufficient information for you to make an intelligent choice.

Statistically speaking, most cases are resolved by plea bargain agreement (85%). About 3% are dismissed, and the remaining 12% go to trial.

If you elect to plead guilty and enter a plea bargain agreement, you should thoroughly understand all terms and conditions of your agreement. In most DWI cases, probation is offered. Standard special conditions of DWI probation include: 1) testing for possible alcohol or drug problems, 2) completion of a 12 hour alcohol education class, 3) attendance at one 3 hour session of a Mothers Against Drunk Driving Victim Impact Panel, and 4) Community Service or Volunteer work. Texas law provides that a person found guilty of a Class B Misdemeanor to perform not less than 24 or more than 100 hours of Community Service.

If you plea bargain your case, you will be asked to formally waive or give up your right to a jury trial, the right to confront your accusers and right to remain silent. You must also prove that you are eligible for probation under Texas law.

After documents affecting this waiver are executed, you will appear before a judge to enter your plea. The judge must be sure that you are waiving these rights voluntarily and intelligently before your plea will be accepted. Once the agreement is accepted, you will be given specific provisions for your probation and meet with a probation officer to discuss exactly what is expected of you during this time.

If you are found guilty, a record of your conviction will be made and forwarded to the DPS. DPS will maintain a record of your conviction and supply this information to the Federal Bureau of Investigations so that your criminal activities can be monitored locally and nationally.

This is a permanent record that cannot be erased unless pardoned by the Governor of Texas or President of the United States. This conviction can be resurrected and used against you should you ever be charged or suspected of criminal activity in the future.

Trial

As stated earlier, only 12% of criminal cases are ultimately disposed of by a trial. Good criminal defense lawyers are "constitutional watchdogs." As such "not guilty" has two meanings:

1) you are innocent of the accusation or 2) there is insufficient proof to establish your guilt beyond a reasonable doubt. Again, it is YOUR DECISION whether or not your case goes to trial. If you select a trial or are even considering one, you should be sure that the attorney you hire has trial experience in DWI cases. Trial skills can be learned, but experience is the best teacher.

You should evaluate all of the good and bad facts of your case. Your attorney should provide you with insight as to how your facts will appear in trial and what he best believes a jury will do with those facts.

It is important to note that in DWI cases, the punishment is not increased if you elect a trial. In fact, in most cases, the punishment is reduced.

This is because with a trial either the judge or jury will be fully aware of the facts and circumstances surrounding your accusation. In a plea bargain agreement, the facts are not disclosed unless to request specific considerations for punishment.

Understanding Your Attorney's Fees

Representation in DWI cases is both "standard" and "unique." All DWI cases are similar in many ways. Individual facts and circumstances determine the best representation for each client. Because we only handle DWI cases, our representation is designed with the client in mind.

Not all clients want to take their cases to trial. Others have no other option than trial. I have tried to structure our fees so that you only need to pay for the services you desire and require.

Office Consultation Fee

We do not charge for our initial client interview. (A fee is customarily charged for those seeking a "second opinion" or other special need our office offers.) This meeting lasts 60 - 75 minutes. It is uninterrupted time one-on-one with an attorney who knows DWI law.

In this meeting, we will take a detailed factual statement from you to learn your version of your stop, arrest and detention. This is a critical piece of your "DWI puzzle." We also explain all DWI law that may apply to your case, the options available for disposition, and the services we can provide. You are under no obligation to hire our office, but you will learn important information to assist you through your case.

Administrative License Revocation (ALR) Fee

This fee is to defend suspension of your driving privileges for either refusing a breath or blood test, or taking a test and scoring over the legal limit of 0.08. This hearing is held at the State Office of Administrative Hearings (SOAH). It is a civil action to suspend your license.

This fee includes the following:

1. Accepting representation as your "attorney of record" with the Texas Department of Public Safety (TDPS). This is to assure that all information about your hearing comes through our office. There are many deadlines involved in license suspensions, and missing one cannot be repaired.

2. Requesting all discoverable information
We request all documents intended to be used to suspend your license. This will include all paperwork created by the arresting officer in your case. It will describe why you were stopped, why the officer believed you were intoxicated, and whether or not you submitted to chemical testing.

These are all critical elements of this case. If any one element cannot be proven by a preponderance of the evidence, your license will not be suspended.

We provide you with a copy of all information retrieved in your case. This is important, because we need you to review it to see if it "jogs your memory" for additional facts or contradicts your recollection of the events of your arrest. You will have copies of the actual reports filed with the TDPS by the arresting officer.

3. Subpoena arresting officer
We subpoena all officers with personal information about your arrest and accusation for DWI. This serves two purposes. If they appear at your hearing, we are given an opportunity to question them under oath as to exactly what their testimony will be at your trial.

Many times police are not well prepared for these civil actions and provide testimony at the ALR hearing which will greatly assist your DWI case. Remember, if you lose your ALR, but win your DWI, your license suspension will be permanently erased from your driving record.

The second reason for the subpoena is based upon the ALR rules. If an officer is served with a subpoena to appear at your ALR hearing and fails to appear, your ALR will be dismissed because his reports will not be admissible. Many DWI officers work late night shifts and do not like to bother coming to these hearings.

4. Appear and Defend Your License
One of our attorneys will appear at your hearing and conduct a defense of your case. If the officer appears, your attorney will ask him questions for the record. If the officer fails to appear, there are still many civil objections that can be made to avoid your suspension.

5. Prompt Notification of the Results of Your Hearing
We normally receive the Administrative decision within one week of the hearing date. Immediately upon receipt, our office will contact you by phone and by letter to tell you the results. We know that this is a stressful time for you and want you to have this information as soon as possible.

6. Occupational Drivers License (ODL)
As we told you in your initial interview, if we can't prevent your license suspension, we'll get you an Occupational License for no additional attorney fees! You will be obligated, however, to provide the county filing fee and TDPS's reinstatement fee.

If your license is suspended, we will contact you and thoroughly explain the limits of this special license. We will try to accommodate your driving needs during this suspension period. Remember that the law will restrict your driving to any 12 hours during a 24 hour period.

We also appear in Court to assure that your license is granted as requested. Some courts require a formal hearing and others do not. We will do whatever is necessary to keep you driving during your suspension period.

We then forward all necessary paperwork to TDPS to insure that your ODL is granted in a timely manner. We will provide you with a certified copy of the Order granting your license, which is effective immediately

You may be required to attend and complete an alcohol awareness course for this license. We have many resources to assist you in completing this requirement.

Once completed, we file your certificate of completion with the Court to again insure that your driving privileges are not further interrupted.

Criminal Defense of DWI through
Dismissal or Plea Bargain Agreement

Trial Fee

Not all clients want a trial or to pay this fee. Our office handles approximately 40 trials each year. Preparing for and presenting a full trial on the merits takes considerable time and effort that is not required with any other representation.

There are many trials set on the same date. On the court date, the court will select which case is to be tried. The others will be reset for another "trial date." Because of this practice, as your attorney, we must be prepared for each trial date and block off time for the case to be tried.

A typical trial will last 1-2 days. This time may vary depending on your facts and the court where your case is tried. While we are in court, we have no other clients. We will be with you from beginning to end. This helps many clients as trials are an anxious time if you have never been through one before.

Trial skills are learned through experience and training. All attorneys with my office are "trial lawyers." They have been specifically selected for their above-average performance in the courtroom.

Conclusion

Being arrested and accused of DWI is a frightening experience for anyone. Most DWI offenders have never been through this process. Our office only handles DWI cases. In limiting our practice to this area, we are able to stay current and familiar with all of the nuances enacted each year by the legislature. You might also like to know that Mr. Hoover speaks nationally on the topic of DWI to help other citizens and lawyers learn more about DWI cases.

To see how we may be able to help you save your license and your freedom, call my office today at 972-422-1800 for your free initial consultation.

Texas Drunk Driving Defense
CHRISTOPHER N. HOOVER
Attorney at Law
520 East Central Parkway, Ste. 112
Plano, Texas 75074
Telephone: (888) 252-4394

e-mail:dwidallas@dwitexas.com

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