THE DEFENSE LAWYER: UNDERSTANDING THE ROLE OF DEFENSE COUNSEL

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THE DEFENSE LAWYER

Trichter & LeGrand Legal Council

Probably One Of The Most Misunderstood Jobs In The American Culture Is That Of The Criminal Defense Lawyer.

To Be Blunt, The Job Is Not About Making Lots Of Money, Ego, Getting A Defendant Off, Or About Having A Professional Stature In The Community. 

Rather, It Is About Being A Part Of A Higher Moral Calling. 

A Calling Where A Righteous And Courageous Person Stands Against All The Forces Of Government And Negative Public Opinion For The Sake Of American History And In The Names Of Justice And Fairness.

The American Bar Association’s Criminal Justice Standards For The Defense Function, At Standard 4-1.2 (A), “Functions And Duties Of Defense Counsel,” Provides:

Defense Counsel Is Essential To The Administration Of Criminal Justice . . .

Well, To The ABA, “Duh!” Indeed, Without Defense Counsel There Can Be No Justice. 

That’s Because There Cannot Be Justice If Its Administration Is Left Solely To The Government. 

Like Our Founding Fathers Relied On “Minute Men” For Protection During The Revolutionary War, So Too Do Our Citizens Rely Upon Defense Lawyers For Their Protection From Our Own Government! 

The Defense Lawyer Is Here To Police Our Government!

The Defense Lawyer Job Misunderstood

Most People (Including Judges, Prosecutors, And Even Most Defense Counsels) Misunderstand The True Role The Defense Lawyer Plays In Our Criminal Justice System. 

Mistakenly, Most Believe It’s The Defense Lawyer’s Job To “Get The Defendant Off” Of The Charge. 

While That Might Be A Collateral Consequence Of Good Representation, That Is Not The Primary Role Of The Defense Lawyer. 

Rather, It Is The Defense Lawyer’s Primary Goal To Assure That Every Single Statutory, State And Federal Constitutional Right Is Protected. 

Incidentally, That Duty Is Not Only The Role Of The Defense Lawyer, But Also That Of The Prosecutor And The Judge.

The Prosecutor’s Primary Statutory Duty

The Texas Code Of Criminal Procedure, Article 2.01, Actually Spells Out The Primary Duty For The Prosecutor As “[I]T Shall Be The Primary Duty Of All Prosecuting Attorneys, Including Any Special Prosecutors, Not To Convict, But To See That Justice Is Done”! (Emphasis Added).

The Defense Lawyer’s Ethical Duty

The ABA Standard 4-1.2 (B), “Functions And Duties Of Defense Counsel,” Provides:

Defense Counsel Have The Difficult Task Of Serving Both As Officers Of The Court And As Loyal And Zealous Advocates For Their Clients. 

The Primary Duties That Defense Counsel Owe To Their Clients, To The Administration Of Justice, And As Officers Of The Court, Are To Serve As Their Clients’ Counselor And Advocate With Courage And Devotion; To Ensure That Constitutional And Other Legal Rights Of Their Clients Are Protected; And To Render Effective, High-Quality Legal Representation With Integrity [Emphasis Added].

The Defense Lawyer’s Constitutional Duty

Probably The Best, And Most Accurate, Description Of The Defense Lawyer’s Constitutional Duty Can Be Found In The Concurring Opinion Of Justice White From The Case U.S. V. Wade, 388 U.S. 218, 256–258 (1967). In Wade, He Wrote:

Law Enforcement Officers Have The Obligation To Convict The Guilty And To Make Sure They Do Not Convict The Innocent. 

They Must Be Dedicated To Making The Criminal Trial A Procedure For The Ascertainment Of The True Facts Surrounding The Commission Of The Crime. 

To This Extent, Our So-Called Adversary System Is Not Adversary At All; Nor Should It Be. 

But Defense Counsel Has No Comparable Obligation To Ascertain Or Present The Truth. 

Our System Assigns Him A Different Mission. 

He Must Be And Is Interested In Preventing The Con­viction Of The Innocent, But, Absent A Voluntary Plea Of Guilty, 

We Also Insist That He Defend His Client Whether He Is Innocent Or Guilty. The State Has The Obligation To Present The Evidence. 

Defense Counsel Need Present Nothing, Even If He Knows What The Truth Is. 

He Need Not Furnish Any Witnesses To The Police, Or Reveal Any Confidences Of His Client, Or Furnish Any Other Information To Help The Prosecution’s Case.

If He Can Confuse A Witness, Even A Truthful One, Or Make Him Appear At A Disadvantage, Unsure Or Indecisive, That Will Be His Normal Course. 

Our Interest In Not Convicting The Innocent Permits Counsel To Put The State To Its Proof, To Put The State’s Case In The Worst Possible Light, Regardless Of What He Thinks Or Knows To Be The Truth.

Undoubtedly There Are Some Limits Which Defense Counsel Must Observe, But, More Often Than Not, Defense Counsel Will Cross-Examine A Prosecution Witness, And Impeach Him If He Can, Even If He Thinks The Witness Is Telling The Truth, Just As He Will Attempt To Destroy A Witness Who He Thinks Is Lying. 

In This Respect, As Part Of Our Modified Adversary System And As Part Of The Duty Imposed On The Most Honorable Defense Counsel, We Countenance Or Require Conduct Which, In Many Instances, Has Little, If Any, Relation To The Search For Truth1 [Emphasis Added].

Collateral Consequences Are As Important To Consider As Statutory Punishments

Ideally, All The Aforementioned Players Should Not Be Holding Out For One Side Or The Other To Win, But For The System Of Justice To Win. 

For The Prosecutor This Would Mean Dismissing Cases In The Interest Of Justice, Even Where A Defendant Was Guilty. 

It Also Means A Guilty Party Is Not To Be Over Punished. This Would Include Consideration By The Prosecutor Of Any Collateral Consequences That Would Result From Any Prosecution.

 Here, It Is The Defense Lawyer’s Job To Make Sure The Prosecutor Knows Of Those Collateral Consequences.

Policy Cannot Replace Common Sense Or Reality

From The Prosecutor’s Perspective, Treating Everyone The Same, In Many Instances, Results In Many Being Treated Unfairly. 

For Example, Assessing A Fine Of $10,000 To A Billionaire, Compared To A Blue-Collar Worker, Would Not Be The Same Punishment. 

To The Former It May Mean Nothing, Whereas To The Latter It Could Make The Difference Between A Parent Providing A College Education For Their Child Or Not. 

Another Example Would Be A DWI Suspension Of A Driver’s License For A Non-Commercial Driver Who Was Employed As A Computer Programmer, Compared To A Commercial Airline Pilot Who Would Also Suffer A Suspension Of His Pilot’s License, Even Though The DWI Was Not Related To Flying.

Sadly, This Concept Of Treating Everyone The Same Is Almost Universally Misunderstood By Prosecutors, Who May Believe That Obtaining A Conviction Is More Important Than True Justice. 

Here, It’s The Role Of The Defense Lawyer To Point Out The Injustice Of A “Treating Everyone The Same” Policy And To Remind The Prosecutor Of The Words Of Thomas Jefferson: “[E]Xperience Hath Shewn, That Even Under The Best Forms Of Government Those Entrusted With Power Have, In Time, And By Slow Operations, Perverted It Into Tyranny.”

Understanding The True Role Of The Defense Lawyer

Belonging To Many Lawyer Listserves, I Am Dismayed By The Numerous Lawyers Who Celebrate When A Guilty Person Is Acquitted. 

While It Would Be Proper To Celebrate An Acquittal Due To Insufficient Evidence To Establish Proof Beyond A Reasonable Doubt, Or Because A Motion To Suppress Evidence Was Granted Because The Government Violated The Person’s Rights, It Would Not Generally Be Proper To Celebrate A “Not Guilty” Verdict Of A Truly Guilty Person For That Sake And Sake Alone. 

We All Win, Including The Innocent And The Guilty, When Our System Of Justice Works As Intended. We All Lose, Including The Innocent And The Guilty, When A Judge Makes A Wrong Decision. 

This Is Especially True Where The Judge’s Error Is Based On Their Cowardice To Withstand Adverse Publicity That Might Follow When A Guilty Person Is Set Free. 

Further, We All Lose—Both The Innocent And The Guilty—When A Prosecutor Cheats To Win So Good Publicity Can Be Garnered To Support A Campaign. 

With That Said, It Would Be Proper To Celebrate A Guilty Person’s Wrongful Acquittal Where They Had Already Been Sufficiently Punished And Any Further Punishment Would Be Overkill, Unjust, Or Would Serve No Purpose To Society Or The Concept Of Rehabilitation.

Courage Not To Back Up And Keep Standing Tall

Likewise, We All Lose Where A Defense Lawyer Does Not Give Clients A 100% Effort At Protecting Their Rights At Every Step Of The Process. 

ABA Standard 4-1.2 (B) Spoke To The Defense Lawyer’s Need For “Courage.” In Truth, Any Defense Lawyer Who Shows Up To Represent A Client Without 100% Courage To Do The Right Thing Is Cheating Both The Client And The System. This Is Especially True Where The Client Is Factually Guilty.

Anything Less Than 100% Is Not “Effective Assistance Of Counsel”! That Said, The 100% Should Be Aimed At The Effort Of Protecting Rights And Not Necessarily The Result. 

Here, That 100% Would Also Include Protection From Punishment That Has Already Been Meted Out And Would Serve No Purpose Other Than To Obtain A Conviction Label. 

Further, It Would Include Protection From Any Overly Harsh Punishment.

Patriotism As A Constitutional Defender

In Conclusion, When Defense Lawyers Understand Their True Role, They Are Nothing Less Than A Patriot Defending Their Country. 

Edmund Burke, A Political Philosopher Who Inspired Many Of Our Founding Fathers, Said “[A]Ll Tyranny Needs To Gain A Foothold Is For People Of Good Conscience To Remain Silent.” As For This Thought, Because Of What Is Riding On The Shoulders Of Defense Counsel, The Good Lawyer Must Never Remain Silent When They Are On Duty.

It Is Also Wise To Remember The Sage Words Of Warning Of President James Madison, Often Called The Father Of The Bill Of Rights, When He Said “[I]F Our Nation Is Ever Taken Over, It Will Be Taken Over From Within.” 

To That End, The Defense Lawyer Becomes Part Of “From Within” At Any Time They Remain Silent When The Government Violated, Or Is Violating, The Rights Of A Client. You Cannot Be A Patriot Lawyer If You Are Part Of The “From Within”! You Cannot Be A Patriot Lawyer If Your Effort Is Only 99%. 

Indeed, To Be “Effective” As The Founders Envisioned, Patriot Lawyers Must Always Give It Their All.

As A Defense Lawyer, Consider This Self-Test To Determine Whether Or Not You Are A Patriot Constitutional Defender. 

Take Note There Were 56 Signers To The Declaration Of Independence. 

If Those Patriots Returned Today In Search Of Number 57 To Join Them, Would They Ask You? 

If Yes, Then Thank You For Being A Patriot! If No, Then Perhaps You Should Rethink Why You Want To Be A Criminal Defense Lawyer.

Notes

1. ABA Standard 4-7.7(B) “Defense Counsel’s Belief Or Knowledge That A Witness Is Telling The Truth Does Not Preclude Vigorous Cross-Examination, Even Though Defense Counsel’s Cross-Examination May Cast Doubt On The Testimony.”

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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.

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WHAT IS AN EXPUNCTION & WHY YOU SHOULD GET ONE

Greg Houlton Houston DWI Attorney at Trichter & LeGrand
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WHAT IS AN EXPUNCTION?

An Expunction Is A Legal Mechanism To Remove All Information About An Eligible And Qualified Criminal Episode From Your Record. 

In Order To Qualify For An Expunction, Your Offense Must Meet The Following Criteria:

   A) You Were Wrongly Arrested, But Never Prosecuted

   B) Your Case Was Dismissed

   C) You Went To Trial And The Judge Or Jury Found You Not Guilty 

Why should you get an expunction?

Just because your case was dismissed doesn’t mean that the record of your case is gone. 

If you have a professional career—whether you’re a healthcare professional—the stakes are high if you have a blemish on your record.

If you drive a vehicle professionally or your company or a company you’re thinking about joining perform background checks—an expunction makes sense. 

If you’re a pilot, you could lose your license or denied one if you have a DWI on your record.

Although don’t have criminal charges pending against you, your criminal case can follow you around for the rest of your life.  

It can linger on your record just waiting to affect you when you least expect it:

   · Applying for a new job
   · Helping at your child’s school where a background check is required
   · Professional licensing board application or renewal
   · Applying for housing
   · You get arrested for DWI again and your previous case is used against you to make your punishment more severe

How to know if your case is eligible for an expunction

Here are the circumstances that may help you understand if your case is eligible for expunction:

1. You were arrested but never charged for a crime.

2. You were charged with a criminal crime, but it was ultimately dismissed.

3. You were charged with a certain qualifying misdemeanor juvenile offense that is if a “child” is convicted of only one charge punishable by fine only or a violation of a penal ordinance of a political subdivision or only one charge of Electronic transmission of visual material under 43.261 (see. CCP 45.0216  below)

4. You are a minor convicted of only one charge of a crime detailed in Ch. 106 such as Possession of Alcohol by a minor, Purchase of alcohol be a minor, Driving a motor vehicle with any detectable amount of alcohol. (See Alcoholic Beverage Code Ch. 106. Sec. 106.12).

5. You were convicted for failure to attend a public school.

6. You have an arrest, charge or conviction record because someone stole your identity and they were actually arrested, charged or convicted of a crime under your identity.

7. You were convicted of a crime that was later acquitted by the trial court or the Criminal Court of Appeals.

8. You were convicted of a crime that was later pardoned by the Governor of Texas or the US President.

Your case is eligible for expunction, but it may not qualify

Just because your case may be eligible, doesn’t mean it qualifies for expunction. 

The court will not grant your expunction if you’ve been placed on felony probation, deferred adjudication or convicted of a felony within 5 years after the arrest for the eligible case.

Additionally, eligible cases don’t qualify until the statute of limitations has expired. 

The statute of limitations is the period of time after a crime was committed in which the state or county can legally prosecute.

The statute of limitations is different depending on the crime.

How to get your case expunged
As with any complex legal issue, you should call an experienced Houston DWI attorney to ensure that your case is eligible for an expunction and that it’s handled effectively. 

The only thing worse then not filing an expunction to clear your record is filing an expunction ineffectively.  

You don’t want to think that your record is clear, then later realize that someone like an employer, or law enforcement official can still view your criminal record.  

By then, it’s too late.

How does the expunction process work?

The courts can be complicated and confusing, so filing your petition for an expunction correctly can be daunting. 

At Trichter and LeGrand, we file expunction petitions every day. 

We understand how an effective petition should be structured and what it should say and how it should be written.

We know what documents need to be filed on your behalf and how to frame the proper information so that it places you in the best possible light. 

We check and recheck our documents to avoid errors and make sure they are thorough and truthful.

We know the process and, if you meet all of the requirements, we hope to receive an Order of Expunction. 

If that happens, the signed Order is sent to each of the named agencies requiring them to destroy any and all records detailed in the Petition.

Congratulations, your record is clear.

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Here is what the Texas Code of Criminal Procedure says in regards to expunctions:

Art. 45.0216.  EXPUNCTION OF CERTAIN CONVICTION RECORDS.  (a)  In this article, “child” has the meaning assigned by Section 51.02, Family Code.

(b)  A person may apply to the court in which the person was convicted to have the conviction expunged as provided by this article on or after the person’s 17th birthday if:
(1)  the person was convicted of not more than one offense described by Section 8.07(a)(4) or (5), Penal Code, while the person was a child; or
(2)  the person was convicted only once of an offense under Section 43.261, Penal Code.
(c) The person must make a written request to have the records expunged.  The request must be under oath.
(d)  The request must contain the person’s statement that the person was not convicted of any additional offense or found to have engaged in conduct indicating a need for supervision as described by Subsection (f)(1) or (2), as applicable.
(e) The judge shall inform the person and any parent in open court of the person’s expunction rights and provide them with a copy of this article.
(f)  The court shall order the conviction, together with all complaints, verdicts, sentences, and prosecutorial and law enforcement records, and any other documents relating to the offense, expunged from the person’s record if the court finds that:
(1)  for a person applying for the expunction of a conviction for an offense described by Section 8.07(a)(4) or (5), Penal Code, the person was not convicted of any other offense described by Section 8.07(a)(4) or (5), Penal Code, while the person was a child; and
(2)  for a person applying for the expunction of a conviction for an offense described by Section 43.261, Penal Code, the person was not found to have engaged in conduct indicating a need for supervision described by Section 51.03(b)(6), Family Code, while the person was a child.
(f-1)  After entry of an order under Subsection (f), the person is released from all disabilities resulting from the conviction and the conviction may not be shown or made known for any purpose.
(g)  This article does not apply to any offense otherwise covered by:
(1)  Chapter106, Alcoholic Beverage Code; or
(2) Chapter 161, Health and Safety Code.
(h)  Records of a person under 17 years of age relating to a complaint may be expunged under this article if:
(1)  the complaint was dismissed under Article 45.051or 45.052or other law; or
(2)  the person was acquitted of the offense.
(i)  The justice or municipal court shall require a person who requests expungement under this article to pay a fee in the amount of $30 to defray the cost of notifying state agencies of orders of expungement under this article.
(j) The procedures for expunction provided under this article are separate and distinct from the expunction procedures under Chapter 55.

Added by Acts 2001, 77th Leg., ch. 1297, Sec. 50, eff. Sept. 1, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 886 (S.B. 1426), Sec. 2, eff. September 1, 2005.
Acts 2011, 82nd Leg., R.S., Ch. 1322 (S.B. 407), Sec. 13, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 1322 (S.B. 407), Sec. 14, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 1299 (H.B. 2862), Sec. 3, eff. September 1, 2013.
Acts 2015, 84th Leg., R.S., Ch. 935 (H.B. 2398), Sec. 2, eff. September 1, 2015.
Acts 2015, 84th Leg., R.S., Ch. 1132 (S.B. 108), Sec. 1, eff. September 1, 2015.
Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 5.002, eff. September 1, 2017.
Acts 2017, 85th Leg., R.S., Ch. 685 (H.B. 29), Sec. 13, eff. September 1, 2017.

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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.

© 2020 Trichter & LeGrand. All rights reserved
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WHY PLEADING GUILTY TO DWI MIGHT NOT BE YOUR BEST OPTION

DWI Lawyer-Trichter & LeGrand Law Firm
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WHY PLEADING GUILTY TO DWI MAY NOT BE YOUR BEST OPTION

DWI Lawyer-Trichter & LeGrand Law Firm

In Many Counties, It May Seem That The Government’s Strategy Is To Wear You Down With Numerous And Tedious Court Appearances To Make You Plea Guilty To Your DWI Charges. 

The Government Wears You Down In The Process So Much That You Accept A Guilty Plea “Just To Get It Over With.”

You Have A Right Not To Plead Guilty To DWI

Accepting A Guilty Plea Is More Expeditious. 

It Ends The Process But Could Begin A Different Nightmare As You Fulfill The Obligations Of The Plea Agreement. 

But Then You Have To Live With A DWI Conviction Which Can Do Great Harm To Your Career, Your Financial Well-Being, And Your Social Well-Being.

We Understand Getting Impatient And Wanting To End Things As Soon As Possible Because We Represent Hundreds Of DWI, DUI And BWI Clients Every Year. 

We Also Spend A Lot Of Time Counseling People Whom We Didn’t Represent In Their DWI Case Who Regret Accepting The Plea. 

Many Of Them, Who Were Represented Elsewhere, Simply Didn’t Understand The Consequences Of Their Decision.

Run The Marathon

We Tell Our Clients To Be Patient With The Process. 

Defending DWI Charges Isn’t A Sprint; It’s A Marathon. 

It’s Important To Mount An Aggressive Defense And Allow The Process To Take Its Course.

Many Lawyers Don’t Understand The Consequences Of A DWI Outside The Punishment That’s Written On The Plea Paperwork. 

We’ve Worked With Intoxicated-Related Offenses For Years, So We Know The Collateral Consequences Of A Plea. 

It Would Be Daunting To List Every Possible Consequence Scenario, So Choose An Attorney Who Can Answer Your Questions Based On Your Life And Career.

The Truth About DWI Conviction Consequences

Here Are A Few Of The More Common Concerns And Consequences Of Pleading Guilty To DWI.

New DWI Penalties Took affect Sept 1, 2019

Your Personal And Commercial Driver License Will Be Suspended
In Addition To Your Administrative License Revocation Hearing (ALR) Ruling, You’ll Suffer Additional Suspensions And Consequences As A Result Of Your DWI Conviction:

Charge                                Length Of Suspension
DWI 1st                                      90 Days – 1 Year
DWI 2nd                                    180 Days – 1 Year
DWI 3rd                                     180 Days – 1 Year

On A First-Time DWI, Your License Won’t Be Suspended If You Receive Probation And Complete The DWI Education Course As A Condition Of Your Probation. 

However, As A Probation Condition, The Court May Order You Not To Drive Or Order You To Have An Ignition Interlock Device Installed On Your Vehicle. 

This Will Cancel Your Current Driver’s License. 

But…

If You Pay A Ten-Dollar Fee, DPS Will Issue You A New License That Allows You To Drive Only Vehicles With An Ignition Interlock Device.

If You Have A Commercial Driver License, You Will Likely Lose Your Job If Your Employer Has To Install An Interlock Device On A Company Vehicle (Which Most Of Them Won’t Do). 

If You Are Convicted Of A First-Time DWI, Your Commercial Driver License Will Be Suspended For One Year No Matter What Your Punishment Is. 

In Most Cases, DPS May Issue You An Occupational License, But That Won’t Allow You To Operate A Commercial Or Any Other Vehicle For That Matter If It’s Prohibited By The Terms Of Your Probation.

YOU’LL PAY HIGHER INSURANCE RATES AND DWI SURCHARGES 

Most Plea Agreements Don’t Spell Out The Financial Consequences Of A DWI Guilty Plea. 

Besides A Meteoric Bump In Insurance Rates, You’ll Also Be Required To Carry SR22 Insurance And Have It On File With The State For Two Years.

In Addition, You’ll Be Required To Pay DPS Surcharges On Your Driver’s License In The Following Amount:

First DWI                                                   $1,000
DWI Over .15 Breath Or Blood                $2,000
Subsequent DWI’s                                   $1,500

Again, Understanding The Surcharges Prior To Taking The Plea Helps You Tremendously Because, In Certain Circumstances, Judges Can Waive The DPS Surcharges. 

Some People Have Had The Surcharges Reduced Through The Indigency And Incentive Program. 

But Once The Bill For The Surcharges Issues, You Have Just 105 Days To Make Payment Or Set Up A Payment Plan Through The Surcharge Program. 

Otherwise, Your License Will Be Suspended.

YOU CAN’T TRAVEL TO SOME COUNTRIES

Most Probation Pleas Prohibit Travel Outside The State Of Texas. 

By Law, You Are Required To Request And Receive Permission Before You Can Leave The State—And It Can Be Even More Difficult To Leave The Country. 

Many Times, These Consequences Are Overlooked.

Weigh These Considerations Before You Plea Guilty To DWI Because It’s Much Easier To Get The Court To Allow Travel PRIOR To Pleading Guilty. 

Additionally, Certain Countries Will Not Allow You To Enter If You’ve Been Convicted Of DWI.

For Instance, Canada Will Not Allow Entry Unless You Do One Of Two Things:

  • Receive A Temporary Residence Permit Which Requests Entry For A Specified Purpose And Length Of Time. You Must Apply For One Each Time You Want To Enter.
  • Apply For Criminal Rehabilitation That Removes The Issue Of Entry Permanently After Five Years From The Date Of Conviction And All Fines Are Paid Or Probation Has Expired.

YOU’LL LOSE YOUR JOB AND FEW COMPANIES WILL HIRE YOU

The Most Important And Arguably The Most Severe Consequence Of A DWI Conviction Is Losing Your Job And Career. 

Each Of The Above “Collateral Consequences” Could End Your Career No Matter If You Are Skilled Labor Or An Educated Professional.

For Instance, If You Drive As Part Of Your Job, Pleading Guilty Shouldn’t Be An Option. If You Drive A Truck, Once Your CDL Is Suspended, Your Job Is Over. 

The Consequences May Be Less Obvious If You Drive A Company Car As Part Of A Sales Or Similar Position. 

While You May Keep Your Driver License, Some Companies Will Discharge You Based On Increased Insurance Rates.

YOU COULD LOSE YOUR PROFESSIONAL LICENSE IF YOU PLEAD GUILTY

In Texas, Several Refineries, Chemical, And Processing Plants Require Special Licenses And Security Clearance Credentials As Part Of Your Employment. 

A DWI Conviction Could Impact Your Ability To Hold These Licenses.

If You’re Required Ignition Interlock Device On Your Vehicle As Part Of Your Probation, You And Your Employer May Be Embarrassed If You Take Clients In Your Vehicle. 

In These Situations, The Court Could Allow You To Obtain A Company Letter And Allow You To Drive Your Company Vehicle Without An Interlock. But, You Have To Know That In Order To Properly Request It.

Finally, It’s Important To Know When To Disclose Your DWI To Your Employer. 

Some Employers Will Keep You On After You’ve Been Convicted Of DWI If They Know Sooner Than Later. 

They May Discharge You If You Do Not Notify Them Of The Arrest. 

Examine Your Company’s Handbook Or Human Resource Policies With An Experienced DWI Attorney Who Can Ensure That You Make The Proper Decision At The Beginning Of Your Case.

Your DWI Record Can Be Sealed

Under Texas Law And Certain Provisions, Your DWI Records Can Be Sealed Which Means They Would Be Kept Concealed From Public View. 

But Sealing The Record And Having It Expunged Is Not The Same. 

Any Prosecutor Or Anyone In Law Enforcement, Will Still Have Access To A Sealed Record And Use It Against You To Worsen Your Punishment If You’re Arrested For DWI Again. 

An Expungement Will Erase The Record Completely As Though It Never Happened. 

Neither One Of These Are Options For You If You Plead Guilty.

A Guilty Plea Is Still An Option

We Want To Make It Clear That A Guilty Plea To Your DWI Charge Is An Option, But, In The End, Considering The Impact That It Will Have On Your Life, You Have Other Options. 

Please Weigh Your Decision Carefully And Consult A DWI Attorney Who Can Give Your Proper Counsel.

Because, Once You Plead Guilty, It’s Too Late.

TELL US ABOUT YOUR CASE

Get A Fast Response

Use the form to request your free consultation to discuss your case with one of our attorneys. The use of this form does not establish an attorney-client relationship.

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.

© 2020 Trichter & LeGrand. All rights reserved
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WHAT ARE MY RIGHTS WHEN I’M ARRESTED FOR DWI?

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WHAT ARE MY RIGHTS WHEN I’M ARRESTED FOR DWI?

Felony DWI and arrested for DWI Third offense Texas DWI Penalties

If You Are Arrested For DWI, You Have Rights. 

That Doesn’t Mean You Can Evade Arrest Or, In Some Cases, Refuse A Breath Or Blood Test, But Rather, It Means That You Don’t Have To Willingly Comply With All “Requests” Made By The Officer.

DWI And Your Rights During The Traffic Stop

Most Driving While Intoxicated (DWI) Investigations Begin When A Police Officer Observes Someone Driving Whom He Thinks Committed A Traffic Violation And Initiates A Traffic Stop. 

Once The Officer Has Turned On His Emergency Lights And Sirens, You Do Not Have The Legal Option To Drive Away. 

Doing So Would Make Matters Much Worse Because It’s Considered “Evading Arrest In A Motor Vehicle” Which Is A Felony Offense.

Our Advice Is Simple: DON’T DRIVE AWAY! USE YOUR RIGHT BLINKER, MOVE TO THE RIGHT, AND PARK OUT OF THE FLOW OF TRAFFIC. A PARKING LOT IS THE BEST PLACE TO STOP.

This Mandatory Stop Is Considered To Be Either A Temporary Detention Or Arrest. 

Both Invoke Your Constitutional Rights Under The 4thAmendment Which States:

The Right Of The People To Be Secure In Their Persons, Houses, Papers, Effects, Against Unreasonable Searches And Seizures, Shall Not Be Violated, And No Warrants Shall Issue, But Upon Probable Cause, Supported By Oath Of Affirmation, And Particularly Describing The Place To Be, Searched, And The Persons Or Things To Be Seized.

In Order For The Police Officer To Legally Stop You, He Must Be Able To Articulate The Facts That (Probable Cause) Show You Committed A Traffic Violation. 

In Most DWI Cases, The Officer May Cite A Traffic Law Violation Such As:

  • Speeding
  • Failure To Maintain A Single Lane, Or
  • Failing To Stop At A Designated Stop Sign.

Once You’ve Been Pulled Over, Keep In Mind That The Side Of The Road Is Not The Time Or The Place To Question The Officer Or Begin Your Legal Arguments. 

Always Be Polite And Remember That The Less Said Is Generally The Best Action You Can Take. 

Our Advice Is To Wait For Your DWI Attorney To Examine The Evidence Supporting Or Refuting The Validity Of The Initial Traffic Stop. 

You’ll Have Four Opportunities To Exercise Your Right To Legally Challenge The Stop:

  • Administrative License Revocation (ALR) Hearing,
  • At The Initial Court Appearance Where Probable Cause Must Be Evaluated By The Judge,
  • Later During A Motion To Suppress Hearing, (A Hearing Where The Defense Requests The Judge To Exclude Certain Evidence From Trial)
  • Or, If Necessary, At Trial.

YOUR RIGHTS: You Have The Right NOT To Be Stopped Without Legal Justification. If The Officer Has No Probable Cause, Then He Has Violated Your 4thAmendment Rights During His Initial Contact And The State Will Have Little To Build A Valid DWI Case Upon Since All Evidence Gathered After That Point Is Inadmissible.

DWI And Your Rights During Personal Contact

After The Officer Initiates The Traffic Stop, Whether Invalid Or Not, He Will Make Contact With You. 

He Will Ask For Your Driver License And Registration And May Try To Make “Small Talk”. “Small Talk” Is A Polite Tactic To Gather Evidence Against You. 

Here The Officer Will Solicit As Much Information From You As He Can–Especially If He Is Suspicious Of DWI.

He’ll Ask Things Like:

  • Where Are You Coming From Tonight?
  • Where Are You Headed?
  • Have You Had Anything To Drink Today?
  • Are You Coming From A Bar?
  • What Smells Like Alcohol?
  • Do You Know Where You Are Right Now?

While You’re Talking, The Officer Will Be Observing Your Body Language, How You Answer The Questions, Your Voice And Whether You’re Slurring Your Words. 

He’ll Also Be Looking For The Smell Of Alcohol On Your Breath.

YOUR RIGHTS: As You Talk With The Police Officer During The Personal Contact…

Remember These Three Important Things:

He Is Not Legally Required To Read You Your Miranda Warnings At This Point.

 

Your Conversation Is Almost Certainly Being Recorded By Either His Body Camera Or A Patrol Car Camera With A Microphone Attached To His Uniform.

 

Most Importantly, You Have The Right To Remain Silent. 

 

You May Politely State That You Would Like To Talk To Your Attorney Before Answering Any Questions Or That You Don’t Want To Answer Questions. 

 

This Approach May Not Keep You From Being Arrested, But It Will Keep You From Voluntarily Incriminating Yourself With The Answers You Give.

DWI And Your Rights During The Field Sobriety Tests

After The Officer Talks With You, He May Suspect A Possible DWI And Ask You To Step Out Of Your Vehicle. 

While Cameras Are Recording, He’ll Ask You To Perform A Series Of Exercises Known As Field Sobriety Tests Where He’ll Be Looking For:

  • Any Sway Or Stagger,
  • Any Delayed Responses Or Faulty Movements, And
  • Any Imperfect Field Sobriety Performance Which Will Be Up To His Discretion.

While In His Charge, You Must Comply With The Officer’s Reasonable Commands Like Exiting Your Vehicle, But You Don’t Have To Volunteer To Incriminate Yourself. 

You Also Don’t Have To Perform Any Field Sobriety Tests- Especially An On-Scene Breath Test.

The Most Common “Requested” Field Sobriety Tests Are:

The Horizontal Gaze Nystagmus Or HGN Test Which Involves The Officer “Requesting” That You Stand With Your Feet Together, Hands To Your Side And Your Head Still. 

He Will Then Ask That You Follow With Your Eyes Only An Object In His Hand—Such As A Pen.

The Officer Is Looking For The Involuntary Eye-Jerking Known As Nystagmus (Also Known As “Dancing Eyes”). Enhanced Nystagmus Can Indicate That Someone’s BAC Is Above A .08. Diseases Such As Multiple Sclerosis, Brain Tumors, Diabetic Neuropathy, Or Neurological Issues Brought On By A Head Injury May Also Cause Nystagmus.

Again, You Don’t Have To Do This Test!

The One Leg Stand (OLS) Involves The Officer “Requesting” That You Stand With Your Feet Together, Hands To Your Sides, And Raise One Foot About Six Inches Off The Ground While Counting Out Loud. The Officer Is Observing 4 Types Of Clues:

Using Arms For Balance,

Sways While Balancing,

Hopping, Or

Putting Your Foot Down During The Test.

All Of These Could Be Signs Of Lost Motor Skills Or Coordination, But They Could Also Be The Product Of An Exercise That’s Just Difficult And Designed To Throw Someone Off Balance.

Again, You Don’t Have To Do This Test!

  • The Walk And Turn (W&T) Involves The Officer “Requesting” That You Stand Heel To Toe With Your Arms To Your Side And Walk 9 Heel-To-Toe Steps Forward. Then He’ll Ask You To Turn Around With A Series Of Small Steps, Then Take 9 Heel-To-Toe Steps Back.

The Officer Is Observing 8 Types Of Subjective Clues:

  • Cannot Keep Balance,
  • Starts Too Soon,
  • Stops Walking,
  • Steps Off The Line,
  • Takes The Wrong Number Of Steps,
  • Misses Heel-To-Toe,
  • Uses Arms To Balance, Or
  • Turns Improperly.

All Of These “Missteps” Could Be A Sign Of Intoxication, But They Are More Likely Because The Exercise Is Flawed. 

Most People Find Them Too Difficult Since They’re Designed To Throw The Participant Off Balance. 

In Many Cases, People “Fail” Because The Officer Gave Unclear Directions, Or The Participant Couldn’t Hear Them.

Once Again, You Don’t Have To Do This Test!

YOUR RIGHTS: Your Participation In The Above-Listed Field Sobriety Tests Is “Requested” By The Officer And Is Not A Lawful Command. That Means That You Have The Right To Refuse Any And All Tests That You Think May Show You In An Unfavorable Light And Provide Evidence That May Incriminate You. You Can Request Your Attorney’s Presence Before Any Test Or Subsequent Investigation. 

Your Rights And The DWI Breath And Blood Tests

Usually, The Final Stage In A DWI Investigation Occurs After You’re Arrested. 

This Involves A “Request” That You Give A Breath Or Blood Sample. If Done Correctly, The Officer Will Hand You A Copy Of Statutory Warning Or Form DIC-24 And Read It To You As You Follow Along. 

This Form Requests That You Voluntarily Consent To Provide A Blood Or Breath Sample And Explains The Consequences If You Refuse:

  • Your License May Be Suspended For A Longer Period Of Time Than If You Had Consented, And
  • Your Refusal Could Be Used Against You In A Subsequent Prosecution.

YOUR RIGHTS: You Have The Right To:

  • See And Be Read This Form So That You Understand Your Right To Refuse Any Blood Or Breath Test And The Consequences Of Doing So. If The Officer Requests The Sample Without Showing Or Reading The DIC-24 Form With You, Any Subsequent Test As Part Of The DWI Investigation May Be Suppressed.
  •  
  • If You Refuse To Give A Blood Or Breath Test, The Officer May Seek To Get A Sample Of Your Blood Through A Legally Valid Search Warrant Signed By A Judge. If A Warrant Is Issued, You Cannot Refuse The Test. That Said, An Effective DWI Attorney Should Closely Evaluate Whether Or Not The Officer Followed All Of The Legally Required Steps Before Securing A Valid Blood Draw.
  •  
  • If You Volunteer To Provide Breath Or Blood, You Waive Many Of The Legal Requirements Involved In A Breath Or Blood Draw. Remember, You Have The Right To Not Incriminate Yourself! By Refusing To Give A Sample Of Your Breath Or Blood, You Are Simply Saying You Don’t Want To Help The Government Prosecute You.

Under Our Law, Authorities Are Supposed To Respect And Follow Each Of Your Legal Rights. 

Police Blood And Breath Testing Are Done For The Sole Purpose Of Gathering Evidence Against You. 

Moreover, It Is Often The Case That Their Testing Is Flawed Giving Rise To Erroneous Results.

For Example, Breath Samples Are Not Saved Or Preserved For Re-Testing And Blood Samples Are Subject To Faulty Collection And Testing Procedures That Flow From Contamination And/Or Operator Error. 

Clearly, The Best Course Of Action Is Not To Participate In Tests That Produce Erroneous Results.

Your Rights During The Formal Arrest For DWI

If You Are Formally Arrested For DWI, The Officer Must Read You Your Miranda Rights Which Reads:

You Have The Right To Remain Silent. Anything You Say Can And Will Be Used Against You In A Court Of Law. You Have The Right To Have An Attorney. If You Cannot Afford On, One Will Be Appointed To You By The Court. With These Rights In Mind, Are You Still Willing To Talk With Me About The Charges Against You?

Of Course, The Only Legally Educated Answer To That Question Is, “No, I Wish To Speak To An Attorney.”

If You Have Been Arrested For DWI, DUI Or BWI (Boating While Intoxicated), Call The DWI Attorneys At Trichter & LeGrand 24/7 To Schedule A Free Consultation.

TELL US ABOUT YOUR CASE

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Use the form to request your free consultation to discuss your case with one of our attorneys. The use of this form does not establish an attorney-client relationship.

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.

© 2020 Trichter & LeGrand. All rights reserved
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WHAT EVERY DRIVER SHOULD KNOW

DWI Specialist Gary Trichter
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WHAT EVERY DRIVER SHOULD KNOW

In Texas, There Appears To Be A Lot Of Confusion Between The Citizens, Law Enforcement, And Even Lawyers, About Deemed Consent. 

When It Is Proper For A Law Enforcement Officer To Ask For A Breath Or Blood Specimen?

Many People Have The Misconception — Especially Police Officers And Courts — That A Driver Gives Deemed Consent To Testing When They Obtain Their Driver’s License. 

This “Misconception” Is Based Upon Texas’s Deemed Consent Law Found At Section 724.011 Of The Texas Transportation Code Which Provides:

Sec. 724.011.  CONSENT TO TAKING OF SPECIMEN.  (A)  If A Person Is Arrested For An Offense Arising Out Of Acts Alleged To Have Been Committed While The Person Was Operating A Motor Vehicle In A Public Place, Or A Watercraft, While Intoxicated, Or An Offense Under Section 106.041, Alcoholic Beverage Code, The Person Is Deemed To Have Consented, Subject To This Chapter, To Submit To The Taking Of One Or More Specimens Of The Person’s Breath Or Blood For Analysis To Determine The Alcohol Concentration Or The Presence In The Person’s Body Of A Controlled Substance, Drug, Dangerous Drug, Or Other Substance.

The Conditions Of Deemed Consent

A Close Reading Of This Statute Makes Clear That Deemed Consent Is Conditional On The Police Following The Deemed Consent Law And Not When A Driver Obtains A License. 

Accordingly, Deemed Consent Is Conditioned On Three Things Happening Before A Proper Police Request, Better Known As A “Statutory Warning”, Can Be Made.

Note, That The Required Language Of A “Statutory Warning” Is Found At Section 724.015. 

Properly Provided, It Allows The Officer To Threaten Certain Coercive Penalties For The Driver’s Noncompliance. 

That Section, In Pertinent Part, States:

Sec. 724.015.  INFORMATION PROVIDED BY OFFICER BEFORE REQUESTING SPECIMEN.  Before Requesting A Person To Submit To The Taking Of A Specimen, The Officer Shall Inform The Person Orally And In Writing That:

(1)  If The Person Refuses To Submit To The Taking Of The Specimen, That Refusal May Be Admissible In A Subsequent Prosecution;

(2)  If The Person Refuses To Submit To The Taking Of The Specimen, The Person’s License To Operate A Motor Vehicle Will Be Automatically Suspended, Whether Or Not The Person Is Subsequently Prosecuted As A Result Of The Arrest, For Not Less Than 180 Days;

(3)  If The Person Refuses To Submit To The Taking Of A Specimen, The Officer May Apply For A Warrant Authorizing A Specimen To Be Taken From The Person;

(4)  If The Person Is 21 Years Of Age Or Older And Submits To The Taking Of A Specimen Designated By The Officer And An Analysis Of The Specimen Shows The Person Had An Alcohol Concentration Of A Level Specified By Chapter 49, Penal Code, The Person’s License To Operate A Motor Vehicle Will Be Automatically Suspended For Not Less Than 90 Days, Whether Or Not The Person Is Subsequently Prosecuted As A Result Of The Arrest;

(5)  If The Person Is Younger Than 21 Years Of Age And Has Any Detectable Amount Of Alcohol In The Person’s System, The Person’s License To Operate A Motor Vehicle Will Be Automatically Suspended For Not Less Than 60 Days Even If The Person Submits To The Taking Of The Specimen, But That If The Person Submits To The Taking Of The Specimen And An Analysis Of The Specimen Shows That The Person Had An Alcohol Concentration Less Than The Level Specified By Chapter 49, Penal Code, The Person May Be Subject To Criminal Penalties Less Severe Than Those Provided Under That Chapter;

(6)  If The Officer Determines That The Person Is A Resident Without A License To Operate A Motor Vehicle In This State, The Department Will Deny To The Person The Issuance Of A License, Whether Or Not The Person Is Subsequently Prosecuted As A Result Of The Arrest, Under The Same Conditions And For The Same Periods That Would Have Applied To A Revocation Of The Person’s Driver’s License If The Person Had Held A Driver’s License Issued By This State; And

(7)  The Person Has A Right To A Hearing On The Suspension Or Denial If, Not Later Than The 15th Day After The Date On Which The Person Receives The Notice Of Suspension Or Denial Or On Which The Person Is Considered To Have Received The Notice By Mail As Provided By Law, The Department Receives, At Its Headquarters In Austin, A Written Demand, Including A Facsimile Transmission, Or A Request In Another Form Prescribed By The Department For The Hearing.

The Officer Can Coerce Under Deemed Consent Only After The Person Is Arrested

By Section 724.011, “If The Person Is Arrested”, The First Condition Is Met Only Where The Person Being Requested To Provide A Specimen Has Been Arrested

Hence, As Per The Deemed Consent Statute, It Is Improper For An Officer To Give A “Statutory Warning” To A Driver Unless That Person Has First Been Arrested. 

And So, What Is Clear, Is That Texas Does Allow Legal Limited Coercion In Order To Get A Blood Or Breath Test. 

However, That Coercion Can Only Be Utilized After There Has Been An Arrest.

Further, There Is Nothing That Prevents An Officer From Asking For A Consensual Blood, Breath Or Urine Tests — Either Before Or After An Arrest — Provided There Is No Coercion Threatened Of Any Nature. 

There Is No Deemed Consent For The Taking Of Urine.

The Officer May Take A Specimen Under Deemed Consent Only With Oral And Written Warnings

Turning Now To Conditions 2 And 3, We Must Now Look At The Statutory Provisions Of Section 724.015, Entitled “Information Provided By Officer Before Requesting Specimen”.  

That Section Provides: 

“Before Requesting A Person To Submit To The Taking Of A Specimen, The Officer Shall Inform The Person Orally And In Writing…” (Emphasis Added).

 

As So, This Language, Too, Makes Clear That Deemed Consent Also Requires That Officer To Do 2 More Things Before A Driver Can Suffer Any Coercive Consequences.  

Specifically, He Must Provide An Oral, And He Must Also Provide A Written Warning (As Is Noted In The First Referenced Section Of 724.015, Supra).  

Again, This Is Done With A Form Designated A “Statutory Warning, Better Known As A DIC 24”. This Section Requires The Officer To Both Orally Read It Out Loud And Provide It To A Driver After An Arrest. 

This Is So Because The Legislature Wanted The Citizens To Know That Stated Penalties Might Occur If There Was A Refusal To A Properly Made Test Request.

The Requirement That There Be Two Required Simultaneous Methods Of Providing The Same Warning Is A Realistic Legislative Recognition That A Person, Being Subjected To A DWI Investigation, Is Going To Be Nervous And Perhaps Not Understand His/Her Rights Or The Possible Consequences Of A Refusal.  

Without Question, The Legislature Understood That There Was A Better Chance Of A Person Understanding Both The Request And Consequences Of Refusal Where They Hear And Read The Same Message. 

That Said, Both Means Of Delivering That Message — An Oral And Written Presentation — Must Be Made Before The Request For A Blood Or Breath Test Can Be Made.

Until This Happens, There Is No Deemed Consent.

“May” Vs. “Shall”

In Drafting The Bill That Later Became The Law, Section 724.015, Words Were Important! 

Under Our Code Construction Act, The Legislature’s Use Of Certain Words Leave No Doubt That The Use Of The Term “Shall” Meant It Is The Officer’s Required Duty, I.E. “The Officer Shall Inform”.  

We Know This Because The Act At Section 311.016says: “The Following Constructions Apply Unless The Context In Which The Word Or Phrase Appears Necessarily Requires A Different Construction Or Unless A Different Construction Is Expressly Provided By Statute:

(1) ‘May’ Creates Discretionary Authority Or Grants Permission Or A Power.

(2) ‘Shall’ Imposes A Duty.”

 

Accordingly, The Legislature’s Use Of The Word “Shall” (Duty) Instead Of “May” (Discretionary) Leaves No Doubt That Both The Written And Oral Warnings Must Be Meaningfully Given Before A Breath/Blood Test Can Be Made. 

That Understood, Our Law Does Not Allow For Any Discretion About The Need To Provide The Totality Of The Dual Warnings. 

That Same Lesson Is Applicable To The Word “And” Which Is To Be Distinguished From The Word “Or”.  

Therefore, Absent A Proper “Statutory Warning” Being Provided, There Is No Deemed Consent And No Penalty For A Refusal.

You Can Still Refuse A Test Under Deemed Consent Even If You’re Provided A Statutory Warning

Interestingly, Just Because A Proper Statutory Warning Is Provided, It Does Not Mean That That Driver Cannot Decline Or Refuse Submission To The Test. 

Indeed, The Driver Can! However, If That Is Done, The State Can Then Proceed To Impose Two Limited And Particularized Penalties: Suspending A Driver’s License And Telling A Jury About The Driver’s Failure To Submit To Testing.

The Purpose Of The Latter Penalty Is To Allow The State To Infer A Concept Called “Guilty Mind” To A Jury, I.E. The Driver Thought He Was Guilty Of DWI And Was Trying To Hide Evidence Of His Guilt.  

Here, In Regard To “Guilty Mind”, It Is Of Import That Not All Refusals Will Be Admitted Into Evidence. 

Its Admissibility Depends On Relevance And Potential Harm.

For Example, It Is Arguable That A Driver’s Refusal, Based On His/Her Desire To First Have The Advice Of A Lawyer Before Agreeing Or Refusing, Has No Relevance Unless The Officer First Informs The Driver That There Is Not A Right To An Attorney For That Purpose. 

This Is True Because Texas Courts Have Long Held That No Inference Of Guilt Can Occur By The Invocation Of The Rights, E.G., To Have The Help Of A Lawyer Or To Remain Silent.

In Regard To A Driver’s Right To Refuse, It Is Found At Section 724.013, It Says:

PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES; EXCEPTION. Except As Provided By Section 724.012(B), A Specimen May Not Be Taken If A Person Refuses To Submit To The Taking Of A Specimen Designated By A Peace Officer.

 

Sadly, Almost Every Right A Citizen Has Will Have An Exception To It, And, The “Right To Refuse” (No Pun Intended) Is Not An Exception. 

For Example, Under Very Limited Circumstances, An Officer Can Forcibly Take Blood If There Are “Exigent Circumstances” To Do So (E.G. The Substances That Are Causing Impairment Are Dissipating In The Driver’s Body) And There Is Simply Not The Time To Secure A Search Warrant.

Search Warrants Are Not And Should Not Be Automatic

The Other Example Is That A Search Warrant Is Procured That Authorizes The Forceful Taking Of Blood.  

A Search Warrant Is A Judicial Order Based Upon An Affidavit, I.E. A Sworn Narrative Of Events That The Officer Provides To A Judge For The Purpose Of Establishing Probable Cause That The Driver Committed The Offense Of DWI And That The Alcohol/Drug/Controlled Substance Evidence Of That Crime, Is In That Person’s Blood And Is Dissipating.

Further, A Search Warrant Is Not Supposed To Be Automatically Issued Upon An Officer’s Request. 

Simply Because An Officer Requests A Warrant Does Not Mean That A Judge Should Grant It.  Indeed, If The Judge, Upon Review Of The Officer’s Affidavit, Determines There Are Insufficient Facts To Establish Probable Cause, (I.E. Facts Showing The Driver Probably Committed The Offense Of DWI/Not A Naked Hunch Or Suspicion Or A Simple Conclusion), The Warrant Request Must Be Denied.

Said Another Way, Getting A Search Warrant Is Not Automatic As It Is Conditioned On A Factually Sufficient Affidavit Showing Probable Cause Being Provided To A Neutral And Detached Judge. 

Lastly, If A Warrant Is Issued, The Driver Needs To Know That He/She Can Forcibly Be Made To Provide Blood Samples So Long As The Officer Uses Limited And Reasonable Force.

No Deemed Consent For A Taking Of A Urine Test, But There Is For Breath And Blood If Conditions Are Met

In Conclusion, There Is No Deemed Consent For A Taking Of A Urine Test.  

Moreover, There Is No Deemed Consent For A Breath Or Blood Test Unless The Following 3 Conditions Have Been Met:

  • The Driver Is Under Arrest,
  • An Oral Statutory Warning Was Provided, And
  • A Written Statutory Warning Was Provided, And That Said Warnings Occurred Before A Test Request Was Made.

Further, Simply Because The 3 Conditions Are Met, It Does Not Mean That A Driver Has To Agree To The Taking Of Those Sample Specimens. 

Indeed, Many Argue That It Is Better To Refuse Testing Because Breath Test Machines Are Not Warranted Fit By Their Manufacturers For Breath Testing, And, Because The Breath Provided Is Not Preserved For A Subsequent Checking Of That Machine’s Accuracy And Reliability.

That Same Logic Applies To The Taking Of The Blood Sample. This Is So Because There Is No Guarantee That It Will Be Done In A Sanitary Place, By Individuals That Are Properly Trained To Take The Sample And To Analyze It. 

Lastly, Knowing About The Problems In Breath And Blood Testing, Some Argue That The Best Evidence Of Sobriety Is Where That Driver Refuses Testing Because Then There Is No Risk That Erroneous Test Evidence Or An Infection Can Occur.

Finally, From A Lawyer And Driver’s Economic Perspective, A Driver Is Probably Better Off Declining To Submit To Any Testing Because A No-Test Case Is Easier For The Jury To Understand While Being Easier, Shorter And Costing Less To Defend.

TELL US ABOUT YOUR CASE

Get A Fast Response

Use the form to request your free consultation to discuss your case with one of our attorneys. The use of this form does not establish an attorney-client relationship.

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.

© 2020 Trichter & LeGrand. All rights reserved
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