Immediately upon having been arrested and charged with a DWI offense, as an accused, you are facing possible hefty fines, time in county jail, and suspension of your driver’s license or driving privileges. Typically, a first DWI offense is classified as a Class B misdemeanor offense which carries a maximum punishment range of 180 days in county jail and a minimum 3-day sentence. In addition to possible confinement, such offense carries a fine of up to $2,000.00. For penalties and fines affecting second-time offenders or those that were found with either an open container or with a child passenger, please visit our Texas DWI page.
Once arrested and processed in the Harris County jail, the accused (“defendant”) is then afforded the opportunity to post bail or, as within Houston recent times, allowed release on their own recognizance if they sign a written promise to appear in court as required.
DWI Defendants will then have their case assigned to one of the sixteen Harris County Criminal Courts at Law and ordered to appear in court for their initial appearance. This initial hearing is commonly known as the “arraignment” hearing where defendants are formally admonished (informed) of the offense that they have been charged with, the punishment range, and their legal rights by the presiding Harris County Criminal County Court Judge.
A DWI is a serious offense that requires serious representation of your legal rights afforded to you by both the United States and Texas Constitutions. The Santos Law Firm, PLLC immediately demands production of any and all evidence the Harris County District Attorney’s office intends to use against the defendant in order to employ DWI defenses with an aim to obtain a flat out case dismissal or to maximize the best possible legal result for clients.
Typically, the majority of DWI arrests are made without warrants and are based on first-hand personal observation of the suspect’s conduct by the arresting officer. Such type of arrests raise the constitutional issue of whether probable cause existed for the arrest. The probable cause defense is employed in all criminal cases our firm handles as evidence may be suppressed if no probable cause is found. Why? Well, if probable cause to arrest did not exist when police officers initially stopped the suspect, an illegal arrest was made and therefore all evidence obtained after the arrest (breath and/or blood specimens) would be inadmissible.
Houston DWIs are frequently prosecuted by utilizing a breath-test alcohol machine that will allegedly determine an estimate of the defendant’s blood alcohol concentration. The defendant’s breath specimen is obtained by the breath-test machine operator who should have received special training in operating such breath-test machine or device.
These operators can be questioned as to whether they successfully completed a training program on the specific device, when such training program was undertaken, how long the training program lasted, how well he understood the theory and operation of the device, how many breath tests the operator had conducted up to the time he performed the breath test on the defendant, and so forth. A thorough examination of whether the statutorily required protocol was precisely performed should be undertaken to determine whether the results will be accurate.
Unless a voluntarily blood specimen was consented to by the defendant, an examination of whether a proper search warrant was obtained, prior to officers, or their agents, obtained a blood specimen from the defendant should be undertaken. Just as with breath specimens, a thorough examination of the statutorily required protocol to obtain blood specimen should also be undertaken to determine whether the results are accurate.
In Texas, the process to obtain a search warrant generally involves the following steps:
- A law enforcement officer must have probable cause to believe that a crime has been committed and that evidence of the crime will be found at a specific location.
- The officer must prepare a written affidavit outlining the facts and circumstances that support the need for a search warrant. This affidavit must be sworn to under oath before a judicial officer, such as a judge or magistrate.
- The officer must present the affidavit to a judicial officer, along with a request for a search warrant.
- The judicial officer reviews the affidavit and decides whether there is probable cause to believe that a crime has been committed and that evidence of the crime will be found at the specified location. If the judicial officer finds that probable cause exists, they will issue a search warrant.
- The search warrant must be specific as to the place to be searched and the items to be seized. It must also be executed within a reasonable time after it is issued.
- The law enforcement officer must execute the search warrant by physically searching the specified location and seizing any items listed in the warrant. In a DWI case, the item(s) typically seized is a specimen of your blood.
It is important to note that search warrants are governed by both federal and state laws, and the specific requirements for obtaining a search warrant may vary slightly from state to state. This description is intended to provide a general overview of the process for obtaining a search warrant in Texas and certainly not intended to be legal advice.
Typically, blood specimens are obtained at a time that is later than when the suspect was first observed driving. Therefore, if the facts of the case allow, the defense of retrograde extrapolation should be employed to determine the blood alcohol concentration level of the suspect at the time of driving rather than at the time of the blood draw.
Retrograde Extrapolation is the process of computing a person’s blood alcohol level at the time of driving based on the alcohol level found in the person’s blood, drawn some time later. Keep in mind that retrograde extrapolation testimony can be reliable if certain factors are known. In assessing the reliability of retrograde extrapolation evidence, courts MUST consider:
- the length of time between the offense and test(s) administered;
- the number of tests given and the length of time between each test; and
- whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing the extrapolation.
The aforementioned defenses are just some, but not all, of the defenses our firm employs. Keep in mind that all possible violations of your constitutional rights should be investigated thoroughly. Such violations typically include (1) whether police had probable cause to stop or approach you, (2) whether a legal arrest was made, (3) whether constitutional and statutory warnings were properly given to you, (4) whether probable cause to request a breath-alcohol or other scientific test existed, (5) whether a legal search and seizure occurred (6) whether your right to counsel was violated, and (7) whether a confession was legally obtained.