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This Is Why You Should Refuse The Breathalyzer

Trichter & LeGrand DWI Lawyers
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Stopped For DWI?

This Is Why You Should Refuse The Breathalyzer

Specifically when it comes to the breath test, if you know you are going to be below the legal limit then blow. 

If you get to the point where he is asking you for a breath test then ninety-nine times out of a hundred you are going to be arrested. 

So whether you say yes or no, it is not going to change the outcome right then and there. 

So if you know that you are going to be arrested, and you typically are at that point, but you have a strong belief that you are going to come in below the legal limit based on the amount of alcohol you have had, then you really should probably go ahead and take the breath test. 

Because if you pass it you are probably going to get let go. 

It is not always that way but there is a much better chance. 

Now I think most people who find themselves in this situation are not going to have that level of confidence. 

They are not going to know if they are below the legal limit or not. 

Most of us do not know what our limit is or the actual legal limit. 

We don’t know how many beers, glasses of wine, or mixed drinks it’s gonna take us to get to .08 and there is a lot of different factors that play into that. 

Things like how quickly you drank them, what your body weight is, what you had for dinner and the last time you ate. 

So if you are in that gray area, which most people will find themselves, my advice to you is not to provide the breath test because you are giving them a piece of evidence that they can use against you. 

Just about every time they are going to be able to use that piece of evidence in court because you are consenting to it. 

When you refuse the breath test you put the officer in a position where he is going to have to go seek a warrant from a judge to draw your blood. 

They almost always will, but if they do that, that puts a few more hurdles in their way they have to get over. 

So for the typical person I am going to recommend that you do not comply and give a breath test because we want to have as many hurdles in the way later on down the line when we are defending your case because it is going to give us more opportunities to try and get favorable results for you. 

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Chances Of Getting A DWI Dismissed?

What Are The Chances Of Getting A DWI Dismissed? - DWI Lawyer Gary Trichter Trichter & LeGrand
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CHANCES OF GETTING A DWI DISMISSED

What Are The Chances Of Getting A DWI Dismissed? - DWI Lawyer Gary Trichter Trichter & LeGrand

What are the chances of getting a DWI dismissed?

That is a question I get an awful lot. 

The answer is, it depends. 

The reason I say that is, it really depends on the circumstances under which you get pulled over and what was happening before. 

My first piece of advice to anyone who gets pulled over is to be respectful, polite, and answer the questions that the officers are asking you. 

Officers are always going to appreciate someone that is polite, respectful, that feels that they feel is being compliant because, as we all know, being a police officer can be a dangerous job and if you are resistant or you are non compliant in anyway it certainly pushes you into in an area where this interaction is not going to go so well for you. 

So that is my first piece of advice. 

When you get pulled over, just be polite, be respectful and cooperate as much as you can. 

I think people’s natural inclination is to be cooperative and just do what the police officer is asking you to do. 

I think we are all brought up in that way, if a police officer stops you and asks you some questions you better do what it is that he is asking you to do or else you are going to get in trouble.

To a certain extent that is true, but there is a point when you start to put yourself in a position where you are making it more likely you are going to get arrested or if you end up getting arrested. 

Regardless, you are making it more difficult on your defense attorney later down the road to get to a favorable result in your case. 

Specifically when it comes to the breath test, if you know you are going to be below the legal limit then blow. 

If you get to the point where he is asking you for a breath test then ninety-nine times out of a hundred you are going to be arrested. 

So whether you say yes or no, it is not going to change the outcome right then and there. 

So if you know that you are going to be arrested, and you typically are at that point, but you have a strong belief that you are going to come in below the legal limit based on the amount of alcohol you have had, then you really should probably go ahead and take the breath test. 

Because if you pass it you are probably going to get let go. 

It is not always that way but there is a much better chance. 

Now I think most people who find themselves in this situation are not going to have that level of confidence. 

They are not going to know if they are below the legal limit or not. 

Most of us do not know what our limit is or the actual legal limit. 

We don’t know how many beers, glasses of wine, or mixed drinks it’s gonna take us to get to .08 and there is a lot of different factors that play into that. 

Things like how quickly you drank them, what your body weight is, what you had for dinner and the last time you ate. 

So if you are in that gray area, which most people will find themselves, my advice to you is not to provide the breath test because you are giving them a piece of evidence that they can use against you. 

Just about every time they are going to be able to use that piece of evidence in court because you are consenting to it. 

When you refuse the breath test you put the officer in a position where he is going to have to go seek a warrant from a judge to draw your blood. 

They almost always will, but if they do that, that puts a few more hurdles in their way they have to get over. 

So for the typical person I am going to recommend that you do not comply and give a breath test because we want to have as many hurdles in the way later on down the line when we are defending your case because it is going to give us more opportunities to try and get favorable results for you. 

[Interviewer]

If you refused the breath test and they get a warrant where do they draw the blood? 

Is it roadside or at the police station? 

[Aaron White]

It depends on the jurisdiction. 

A large jurisdiction like Harris County will have a station set up by the local law enforcement. 

They will have one at the jail or they will have one at a processing station with nurses that are on duty. 

They can bring the suspects into the station, get the warrant drafted via fax or email and have it sent back and forth between the judge and the police officers in the DA’s office. 

They’ll be able to draw your blood right there on site so it’s something that can happen as quick as thirty minutes to an hour after your rest. 

In a small jurisdiction they may have to take you to a hospital and they may have to be doing some driving back and forth to get the warrant signed. 

So the delay in getting a blood draw can also be of benefit because it could take three or four hours to get the blood draw and that is time that your body has to process the alcohol and it more often can result in a lower blood alcohol concentration. 

It gets a little complicated at that point as far as being able to extrapolate and all those sorts of things but you’re always better off having a lower BAC then a higher BAC. 

[Interviewer]

Okay, so let us say you took the breath test and was arrested. 

What are the chances of getting a first DWI dismissed? 

[Aaron White]

I know I sound like a broken record here but it just depends. 

We have a lot of success in finding mistakes along the way within the investigation, the probable cause for the stop, the way they administered the field sobriety tests, the questions they asked, when was the decision was made to arrest, did they follow the proper protocol and things like that. 

Police officers are just like you and me: they are going to make mistakes in their job and they are typically going to make a mistake or two in every single arrest and detention. 

Did they make some crucial mistakes? 

The question for each case becomes how many of those mistakes did they make it and did they go to the crucial elements of the investigation, detention and arrest. 

For instance, one of the most common mistakes that we find is that they jumped the gun and pulled you over for something that did not actually happen, like you were weaving within your lane. 

If we can determine later by watching their videos from their squad car that you technically did not break the law and weave within your lane or fail to maintain a single lane, then the rest of the evidence in the case is likely to be thrown out. 

So, if we can find an error there or a mistake that is to our advantage, then that is one possible Avenue to get your case dismissed and there are many others throughout the process. 

Like I was saying earlier, if you force them to go get a warrant and they make a mistake in drafting the warrant or executing the warrant, then perhaps the blood results become inadmissible and all the sudden the state has a weaker case. 

It is going to take many of those things together to convince the district attorney’s office that they do not have a good case anymore and they need to dismiss it. 

It is obviously difficult to do but we find that we are successful in getting a lot more cases dismissed because we are experienced with all these sorts of issues that can come into play in a DWI arrest and prosecution. 

Many of us have former experience being prosecutors on the other side. 

[Interviewer]

You were previously a Harris County prosecutor, right? 

[Aaron White]

Yes, Sir. 

[Interviewer]

So you have been on both sides of cases like this. 

Another question that gets brought up is about the evidence and building the evidence. 

The police video all these arrests, right? 

How do they video the arrest?

[Aaron White]

Most big agencies like Harris, County, the Houston sheriff’s office and the Houston police department are going to have a variety of different cameras that are going to be provided to the defense attorneys in a DWI arrest. 

They are going to come from the squad car with a dash camera that’s going to show the suspect’s vehicle before the arrest and before the traffic stop. 

Then sometimes it will show an angle of the interaction with the police officer. 

They are going to be equipped with a what we call body worn cameras. 

Those are cameras that are attached to their uniform on their chest, and it is going to record interactions with suspects and witnesses in every investigation that can lead to a criminal charge. 

So sometimes we get up to five, six or seven different angles of the arrest from multiple police officers who were on the scene.

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What Happens If You Are Convicted Of DWI

what happens if you are convicted of DWI
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what happens if you are convicted of DWI

what happens if you are convicted of DWI

What happens if you are convicted of DWI? There are a lot of consequences to a DWI conviction, some of which are obvious and they come in the form of range of punishment and what are called criminal consequences.

There are other consequences that are deemed collateral consequences and we can go into those in a second and those are things that can happen to your drivers license, your job or any license you need to perform your job. 

There are consequences prior to being convicted that I assume you have talked about at a different time that are administrative consequences which are based on whether you took a breath or blood test and if you refused those tests. 

For all purposes let’s just assume the Administrative License Revocation (ALR) has already been dealt with and we’re only dealing with the consequences of a conviction. 

Does that work for you? 

[Interviewer]

Definitely. 

[Leslie LeGrand]

Ok, so like everything It depends upon what happened previously in your life. 

Meaning, do you have any criminal history? 

And what happened in this specific case. 

Let us start with the DWI first and we will talk about the criminal consequences. 

So a DWI and the range of punishment depends upon what your blood or breath alcohol level comes back to and the big threshold number is .15. 

If you did not take a breath or blood test and they didn’t get a warrant to force you to give blood or breath its going to default to a Class B Misdemeanor which would be below .15. 

So lets start there, anything that is a first DWI that is below a .15 breath or blood test is a Class B misdemeanor. 

Now the range of punishment on that is anywhere up to a hundred and eighty days in jail and/or a $2,000 fine.

That can be probated and if it is probated there is not any mandatory jail time on a first DWI. 

Your typical terms of probation can include community service and you will absolutely have to take something called a DWI educational course. 

That course will allow you to keep your drivers license. 

The only way you can keep driving after DWI conviction, assuming you won the ALR, is if you take the specific class. 

Now, if its above a .15 it becomes a Class A Misdemeanor. 

That means up to a year in jail or a $4,000 fine.

Again, there’s not mandatory jail time if it’s probated but you have the same class requirements and additionally you’ll have to have something on your vehicle ignition interlock for 6 months to keep driving. 

Those are the criminal consequences of a first-time DWI

Like everything in life, if you have any additional cases or criminal history, those penalties can be enhanced. 

So let assume for a second you have a prior DWI

Now it also matters when the prior DWI was. 

If you had a prior DWI within five years, then you have a class A misdemeanor regardless of what your breath or blood test comes back. 

That means anywhere up to a year in jail and a $4,000 fine.

Additionally, if it is within five years you have a mandatory jail time of five days even if that is probated. 

In other words, even if the judge gives you probation you still have to do five days in jail. 

Thats day for day because they can’t give you credit for the time that you were in jail when you were arrested. 

Additionally, even if you take the DWI educational course you will have a driver’s license suspension up to two years. 

Let us drop down for a second and let us say that your prior DWI is anywhere older than five years. 

It can be thirty years ago or it could be six years ago. 

It is still a Class A misdemeanor but your mandatory jail time goes down to three days in jail.

Now lets talk a bit about worse case scenario. 

Let’s say you have two prior DWIs and this is your third DWI. 

It does not matter when these prior DWIs were for the purposes of determining whether it could be a felony. 

Now a good lawyer will tell you if it is over a certain period of time those judgments may not be able to be used. 

If you have a lawyer who specializes or focuses on DWI they will be able to look at these judgments and tell you if these priors can be used against you. 

It is one of the first things we do here. 

But let’s assume for all purposes that they are good judgments and you have two prior convictions for DWI. 

It does not matter how old they are, what you are dealing with now is a third degree felony and the criminal consequences for that are anywhere from two to ten years in the penitentiary or $10,000 fine. 

If the judge chooses to probate that there is a mandatory ten days in jail as a condition of that probation. 

And again, you are going to have a license suspension regardless of whether you take the DWI educational course. 

So those are the criminal consequences in terms of jail time. 

The next issue is something called collateral consequences and those are things like your drivers license, your permit to carry a hand gun or if you happen to be a commercial driver.      

[Interviewer]

Right, so it’s pretty clear that the penalties and fines for a DWI in Texas are serious even if it is a first offense. 

You mentioned CDL so what happens if someone has a commercial driver’s license and they get a DWI? 

[Leslie LeGrand]

Very few people get caught driving a commercial vehicle when they get a DWI

So I want to be clear that I am not talking about that. 

I am talking about if you have a commercial drivers license and you are driving a personal vehicle. 

There are two potential ways you could lose your commercial drivers license even if you were driving your personal vehicle. 

The first one is something we touch on briefly and it’s something that happens before you’re convicted and that is the Administrative License Revocation Hearing. 

When you are arrested for DWI you’re offered either a breath or blood test and if you take it and you fail or if you refuse it you could be in trouble. 

The suspension of a commercial drivers license is a year and it happens within forty days if you don’t request something called a Administrative License Revocation and you have to do it within 15 days of your arrest.  

So let’s assume you lose the Administrative License Revocation or you have a lawyer doesn’t request one. 

What you hear and what they tell you is, let’s say you failed the breath test, that you lose your license for 90 days. 

Well, that is true. 

But that is only your class E license. 

If you don’t request an ALR hearing or you don’t win the ALR hearing you would lose your commercial driver’s license for a year. 

It does not matter if you were driving a commercial vehicle. 

You could even be driving a boat and have an ALR suspension and lose your commercial driver’s license for a year. 

Now lets talk about a suspension. 

If you are convicted of a DWI its the same, you are going to lose our commercial drivers license for a year. 

Now, if you have two or more DWIs it could disqualify you from life. 

These are very serious consequences regardless of the vehicle they were driving at the time. 

[Interviewer]

Okay. 

We have a little bit of time left so I’m going to throw this last question in there. 

What about a CHL? 

What about getting a DWI with a concealed handgun license?

[Leslie LeGrand]

Again, there are two different things that can happen. 

Let us start with the arrest. 

What you may find is that you may be shocked that you have gone through all the steps necessary to get a concealed handgun license, you legally carrying your handgun and you get arrested for a DWI. 

Suddenly you are charged with unlawfully carrying a weapon. 

The reason is that the law says that the individual engaged in criminal activity may be charged regardless of whether they have a concealed handgun license. 

So even if you have this license, you can find yourself with an additional charge of unlawful carrying a weapon. 

Now, if the DWI goes away, so does the unlawfully carry a weapon charge.

Upon arrest, not conviction, you immediately lose your concealed handgun license. 

They do not give you due process on this. 

They do not wait for the outcome. 

You are immediately suspended and disqualified from a concealed handgun license. 

If you win the case, whether its dismissed or whether you found guilty by a jury, you can reapply and you can do it immediately. 

If you are convicted of DWI it is a little different. 

If you’re convicted you’re disqualified from applying for a concealed handgun license for 5 years. 

You can still carry based on one of the other permissible means that you carry under the laws of the State of Texas but you can’t get a CHL. 

Now let us go to the worst case scenario here. 

If you’re convicted two times in a 10-year period you can be disqualified beyond five years. 

So again, these are some collateral consequences that people do not take about the impact on your life and in Texas we love to carry guns and this could disqualify you. 

Its something you may not think about which is why you need to engage an attorney that focuses primarily on DWI because its a very complicated area of the law.

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Steps To Take After A DWI Arrest

DWI License Suspension - Trichter & LeGrand Law Firm
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Steps To Take After A DWI Arrest

Steps to Take After A DWI Arrest - DWI Lawyers Trichter & LeGrand Law Firm

I am going to walk you through the steps to take after a DWI arrest. 

The first thing is, if you have been arrested and you are reading this that means that you spent the night in the fine accommodations of the Harris County jail or at another county jail. 

Unfortunately, you are going to want to get out of there and you are not going to want to think about your case or DWI law at all. 

Don’t do that because there are things we need to do right away to protect not only your Liberties but keep you out of jail, check your record and keep you driving legally.   

The first thing you need to understand is when you are arrested for DWI there is not just one case.  

Yes, you have the DWI case against you where the state alleges you drove while intoxicated but the DPS (Department of Public Safety) also files a charge against you where they try to suspend your license. 

There are certain steps that we need to take right away in order to ensure your license is not suspended. 

That process is called an ALR or Administrative License Revocation

So the first step is to gather all your paperwork that you received when you got out of jail. 

Then call an attorney and find someone to walk with you through this process to protect those rights that we talked about. 

Then you need to let your attorney talk to you about the ALR process, but we’re going to have to request a hearing within 15 days from the date you are arrested. 

That is right, 15 days. 

Even if your first Court setting is two weeks from now or a month from now, you do not have much time. 

We have to act within 15 days to get this ALR.

The next thing you need to do is figure out is if there are any bond conditions the court has imposed on you. 

When you are arrested for a DWI the court can require you to have one of those blow machines in your car called an Ignition Interlock Device. 

We need to figure out if you need one or if there is a way to keep you from needing one and a good attorney can do that for you. 

This is one of the reasons why you need an attorney so quickly. 

Other bond conditions can be random drug testing, reporting to court and other things like that. 

Then once you have your attorney and have your license secure you are going to have to go to court and start gathering evidence in your case and prepare a defense. 

If you do not do anything I assure you the State will take full advantage of that and the consequences for DWI, even your first one, can be up to a year in jail. 

Like I said before, the first step and the most important one is to find yourself a good attorney.

[Interviewer]

So the next logical question is “how do I actually find a good DWI attorney?”

[Greg Houlton]

Well Jim, if they are listening or reading this they hopefully already found one here at Trichter & LeGrand but generally speaking you’re going to want to check online like everyone does and make sure you read reviews. 

If you talk to family and friends that had individuals that have been previously represented by an attorney that is a good place to start. 

Then above all else you want to meet and talk to that attorney. 

You want to be comfortable with the attorney because you are placing your faith in them protecting you, your freedom, your license, and Liberties. 

You actually want to go and interview those attorneys.

[Interviewer]

Okay, so after I am arrested and get out of jail I find some DWI attorneys online and call them. 

What questions should I ask them?

[Greg Houlton]

First, you want to ensure that you are comfortable with them. 

By just to talking to them about your situation you’re going to get a sense on whether or not that attorney handles DWIs, knows what they’re talking about, and knows how to handle themselves so they can convey information. 

That person is going to be the same person who is going to be conveying information and talking to the judge or prosecutors for you. 

So if you do not feel comfortable with them, the judge and prosecutors are not going to feel comfortable. 

Then the questions you need to ask are what we previously discussed. 

Does that attorney know what an ALR is? 

Do they handle license hearings? 

Do they know the consequences of an ALR & DPS hearing? 

If that attorney does not know what you are talking about then politely hang up immediately. 

You want to ask them about the breath test machine, blood testing and see what type of familiarity they have with these procedures and processes.

You want to see how long they have been handling DWIs and whether they understand what field sobriety tests are. 

You want to see if they know what the NHTSA manual is, that’s the officers playbook for how they do investigations in DWI cases. 

All of these things are important questions that you need your attorney to be comfortable with. 

And then the last piece that you want to ask the attorney is what are the possible outcomes of a DWI case. 

DWI cases can have several outcomes. 

Hopefully you hire a good attorney who does a good investigation and can get your case dismissed. 

Other alternatives are a plea agreement and you want the best plea bargain possible. 

And if the case goes to trial you want to know that you have the best trial lawyer possible. 

There is also other programs to ask about including the PTI program which is a program with the Harris County District Attorney’s office that allows your case to be dismissed after some period of time on probation. 

Other Counties have the same thing.

[Interviewer]

Wow, that is a lot of good information. 

I know we are taking up a lot of your time here but I have one more question that is very common. 

What about hiring a public defender? 

If I decide to try to save a few bucks and go with a public defender what can I expect? Could I beat a DWI with a public defender? What can I expect? 

[Greg Houlton]

I totally understand Jim, I get that question a lot myself. 

It seems like that people come out and say – I’ll just take whatever they give me – anyone that can stand up there. 

You have to be proactive in this situation. 

The decisions you make in the first weeks of getting a DWI arrest can affect you for the rest of your life. 

Not only can they affect you in the short-term if you are driving illegally because your license is suspended, but it can be on your record for the rest of your life. 

Am I saying that all public defenders cannot do that? No, but you are gambling when you hire a public defender. 

If you do not find yourself a good attorney, who knows DWI law, then you are setting yourself up for future regrets. 

Because DWIs unlike other misdemeanor offenses or Felony DWIs have certain consequences that other cases don’t. 

Other cases do not come with this automatic license suspension if you do not do certain steps. 

They do not come with long-term effects on driving or potentially not getting a commercial driver’s license if that option comes available in the future. 

And then the DWI could be on your record forever

So you need to ask your public defender all the same questions we previously discussed and if they cannot answer them you do not want them. 

And just because it is free does not mean it is right. 

It’s no different from when you’re out there shopping for anything else, you get what you paid for. 

In this case it could be your freedom and you could be in jail. 

So hopefully you listened and got some good tips and advice on why it is important for you to find yourself a good DWI attorney. 

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COVID-19 & YOUR DWI ARREST

COVID-19 & Your DWI Arrest - Trichter & LeGrand Law Firm
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COVID-19 & YOUR DWI ARREST

COVID-19 & Your DWI Arrest - Trichter & LeGrand Law Firm

Arrested For A DWI & No Court Date? Remember, A 15 Day Save Your Drivers License Clock Is Still Clicking! Reading Below, Can Both Extend Your 40 Day Temporary License And May Prevent A Suspension! 

 If you were arrested for a DWI during the COVID-19 Pandemic and you have not received a court date yet, it is important for you to know there is still only a 15-day window to save your license. 

Specifically, you only have 15 days from the date of your arrest to request an Administrative License Revocation (ALR) hearing or you will automatically lose your license after 40 days have passed. 

Here, you need to remember that the “temporary license” the officer gave you is temporary, and only lets you drive for 40 days. 

To try to prevent the automatic suspension, you must timely and correctly request an Administrative License Revocation (ALR) hearing within a 15-day deadline.

Asking for an ALR hearing on the 16th day is too late and you are SOL! 

Incorrectly asking for the hearing can also cause you to be SOL because the Texas Department of Public Safety (DPS) may take your mistake as a waiver of the request.

The safest way to request an ALR hearing is to let a skilled and experienced DWI Attorney do it for you! 

Do not forfeit your driver’s license by missing the 15-day deadline. Let us help you save your license by scheduling your ALR hearing now.

DWI Attorneys Available 24/7! Get a free consultation.

Call Trichter & LeGrand Law Firm or fill out the form below. 

 

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Your Free Consultation Is Just One Form Away!

Form Submissions have a fast response time. Our attorneys are always on-call 24/7. The use of this form does not establish an attorney-client relationship.

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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.