Charged With DWI In Houston? Representation By The Top Harris County DWI Lawyer Is Critical


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Charged With DWI In Houston? Representation By The Top Harris County DWI Lawyer Is Critical

  1. 1. Charged with DWI in Harris County? Representation By The Best Houston DWI Lawyer Is Critical If you have been criminally charged for allegedly driving under the influence, DWI Attorney Charles Johnson represents clients throughout the state of Texas in state and federal courts from his convenient located office locations in Houston, Dallas, Austin and San Antonio. The Charles Johnson Law Firm provides the highest level of representation in assisting our clients through the rigors of a DWI case. After you are charged with DWI in the Houston area, you are confronted with an unpleasant truth: anyone who drinks and drives is subject to arrest, whether or not they are actually affected by alcohol. However, being charged does not mean being convicted. Contact Houston DWI Lawyer Charles Johnsondirectly anytime day or night at (713) 222-7577 to discuss your case.Hire the Best Houston DWI Lawyer: The Charles Johnson Law FirmWhen someone gets arrested for a DWI, they get a lot of advice from almost everyone around them; friends,family, co-workers, and sometimes even the arresting officer gives you advice about what to do. It probablyseems like everyone has a different answer for what is “the best thing to do.” And then you may havereceived some annoying letters from attorneys who do not even know you, some of which can be veryintimidating, frightening, or just plain obnoxious.The fact is that no two DWI’s are alike, because penalties and options vary depending on the facts of whathappened, your prior record, the county and city you were arrested in, and the status of your driver’s license.To get superior DWI representation, you need the best of these three things:KNOWLEDGE.The Best Houston DWI lawyer will be familiar with the city and county of your offense and should know howthat jurisdiction treats DWI cases like yours. Houston Lawyer Charles Johnson is aware of the current DWIstatutes and case law, which changes all the time. Finally, your DWI lawyer should take the time to knowabout your situation so the goals of your case suit your individual needs.STRATEGY.DWI cases are not easy to win, and the justice system is not about to do any favors for DWI offenders intoday’s anti-DWI society. An effective strategy is one that preserves every possible opportunity to impact thevarious penalties you will be facing. That is the key to superior DWI Defense Strategy: preserving and takingadvantage of opportunities. Whether it is for purposes of arguing the issues of your case, negotiating asettlement, or controlling the timing of the penalties you will be facing, a solid strategy will help you come outof this with as little damage as possible.DEDICATION.The Best Houston DWI Attorney will devote an adequate amount of time and resources to your defense. You 1
  2. 2. do not want an attorney that does not take the time to explain the ins and outs of your case to you every stepof the way. You DO want a DWI lawyer who is passionate about defending DWI cases. Our DWIclients have taken advantage of our Knowledge, Strategy, and Dedication for honest solutions to their DWIproblems. Don’t let another day go by before you start working on your case. Contact the Best HoustonDWI Lawyer Charles Johnson today at (713) 222-7577 for a free case evaluation.About DWI in TexasIn Texas, the legal limit for intoxication is .08 BAC. If an officer thinks your driving is impaired, you can still bestopped and arrested for DWI regardless of your BAC. Penalties get worse with every DWI offense.Texas is a national leader in many areas?unfortunately, one of these is in the number of accidents and deathsrelated to driving while intoxicated (DWI). Each year, thousands of Texans are involved in this tragedy; about2,000 of them die.Texas is also a zero-tolerance state for underage drinking; any detectable amount of alcohol in drivers under21 is a crime. Yet young drivers account for many alcohol-related traffic accidents, and the age group with themost violations and accidents are those between 21 and 34. Remember, teens and young people are actuallymore prone to reaching higher alcohol concentrations more quickly than older drinkers. Size and body weightalso play a role. Big Uncle Fred may be able to toss back those shots of tequila and maintain an allegedly safeBAC but younger, smaller people may not be able to accomplish this feat.While a DWI conviction requires a BAC of 0.08% or above, any driver can be cited for “driving while impaired”by drugs or lower concentrations of alcohol.Texas DWI Penalties for Drunk DrivingDriving while intoxicated, first offense, is a Class B Misdemeanor that is defined at Texas Penal Code §49.04.That provision states that, “A person commits an offense if the person is intoxicated while operating a motorvehicle in a public place”.This definition sets forth the elements that must be proven to sustain a conviction. Those elements are:  The defendant, on or about a particular date  Was operating a motor vehicle  In a public place (street, highway, beach, parking lot, etc)  In a particular county  While intoxicated The Texas legislature has specifically defined the term “intoxication”, as that term is used for prosecution of DWI cases {Texas Penal Code§49.01(2)}In addition, there are two definitions to encompass those who do or do not submit to chemical testing:1) “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, acontrolled substance, a drug, a dangerous drug, a combination of two or more of those substances, or anyother substance into the body; or2) having an alcohol concentration of 0.08 or more.” 2
  3. 3. It is important to note that the law provides for intoxication by the introduction of any intoxicating substanceinto the body. This is designed to make our roadways safe from dangerous drivers.Typically, proof at trial is restricted to alcohol unless some statements or other indications suggest that thedriver has become impaired by some other substance. Equally as important, being on prescription drugs isnot a defense to a DWI prosecution. If the label suggests that ingestion will impair one’s ability to operate amotor vehicle or machinery, taking such medicine and driving may subject you to DWI arrest and conviction.At trial, the State therefore may prove intoxication in three (3) different ways:  not having the normal use of physical faculties OR  not having the normal use of mental faculties OR  having an alcohol concentration of 0.08 or moreThe jury does not have to be unanimous on the manner and means of intoxication, only that the person wasintoxicated.Plus, intoxication must occur and be proven to occur while driving. Many other States provide for prosecutionof a “lesser included” offense other than DWI (i.e. reckless driving, impaired driving, driving under theinfluence, etc.). Texas however has no lesser included offense of DWI. Some counties offer plea bargainagreements to other charges than DWI, but they are the exception and not the rule.Classifications and Range of Punishment for DWI ConvictionDWI, 1st Offense: Class B Misdemeanor in TexasFineA fine not to exceed $2,000.JailConfinement in the County Jail for a term of not less the 72 hours nor more that six (6) months.Open ContainerIf there was an open container of alcohol in your car when arrested, the minimum term of confinement is six(6) days in the county jail.Community ServiceTexas law mandates that a judge order not less than 24 hours nor more than 100 hours.Absent unusual facts, most persons convicted of a first offense DWI are granted community supervision(“probation”) of any confinement ordered. The general length of DWI probation is from 1-2 years. There arealso conditions of community supervision ordered that are fairly standard in most courts. Typical conditionsimposed are: Drug/Alcohol Evaluation. A person convicted of DWI will be required to submit to evaluation forprobability of committing DWI in the future and/or to disclose a potential problem with alcohol or drug abuse.If a problem is detected, additional terms and conditions of probation are ordered to be administered through 3
  4. 4. the Community Supervision Department. Attend and complete an approved DWI Education class within 180days from the date of conviction (Satisfying this requirement will avoid the one (1) year drivers licensesuspension, unless if you were a minor (under 21) at the time of the offense.) Attend and complete a VictimImpact Panel. This is a forum that presents victims of drunk drivers to address persons convicted of DWI andwarn of the dangers and perils of driving while intoxicated. Work faithfully at suitable employment, commit noother crimes, remain at the same residence and employment unless notification is given to the communitysupervision officer, report monthly to the supervision office, pay all fines and costs in a timely manner. Pay amonthly supervisory fee. Perform a specified hours of community or volunteer service. NOTE: If convicted,you will be given an Order Granting Probation. This Order will be specific and unique to your case and fullysets forth the terms and conditions of your probation which apply to you. It is the blueprint for your probation.Additional Conditions of Probation that may be Ordered:If your case presents unusual facts (accident, alcohol problem, prior alcohol contacts, bad driving record etc.),additional conditions may be ordered. Most conditions are designed to address a problem that appears fromthe facts or alcohol/drug evaluation that is performed on the subject after conviction. Again, a specific order isgiven after each conviction. The following list is only a general discussion of conditions that have beenimposed in some DWI cases in my experience and may not apply to you.Deep lung air deviceThis provision requires that you install and maintain a device on any car which you intend to drive duringprobation. The device requires a breath sample before it will allow your car to start. Some devices requireperiodic breaths while driving. This condition is sometimes recommended after an unfavorable drug/alcoholevaluation during a first-offense probation, and is almost always ordered as a condition of bond on asubsequent offense arrest.Alcohol TreatmentAttendance at AA or other counseling programs offered through the probation department. In extreme casesoutpatient programs may be ordered. This condition is recommended after an unfavorable drug/alcoholevaluation.Consume no alcoholMost courts require that a person not consume any alcohol during probation. This provision is monitored byperiodic and random urinalysis at the probation office. Some courts will not even allow a probationer to entera bar, tavern or lounge where alcohol is sold and consumed.ConfinementAgain, in some extreme circumstances, the Court may order that a DWI offender serve confinement in thecounty jail as a condition of being granted probation.RestitutionIf there was an accident followed by a DWI arrest, and if your insurance company has not paid damages tothe other party, restitution of any unpaid amounts will be ordered by the Court as a condition of probation. 4
  5. 5. Enhanced Penalties (Prior alcohol or drug related criminal history)Under Texas law, if it is shown that a person has been previously convicted of DWI, the punishment andpenalties after conviction are increased or enhanced. The prior DWI conviction must have occurred within ten(10) years of the present arrest for DWI. Additionally, if a person has any prior DWI conviction within theprevious ten year period (measured from dates of arrest), the State is then allowed to use any prior DWIconviction since obtaining a drivers license to enhance the accusation to a DWI, third offense. NOTE: Texascan use prior convictions that have occurred in other states for enhancement of punishment.DWI, Second Offense: Class A Misdemeanor Special Condition for Jail Releaseon Bond:It is important to note that if arrested and accused of a DWI Second or greater offense, Texas law nowrequires the Court to Order as a CONDITION OF RELEASE FROM JAIL ON BOND, that the person install andmaintain a deep lung air device on the car that the person intends to drive and operate while charges arepending. The device requires a breath sample before it will allow you to start your car. They also requireperiodic breaths while driving to monitor and insure sobriety. New technology has made these devices “usersensitive” so that someone else cannot blow into the device for the driver.Although this provision seems to run afoul of the presumption of innocence, Texas Courts have consistentlyheld that such condition is necessary to protect a legitimate governmental interest in making public roadwayssafe for the motoring public.FineA fine not to exceed $4,000.00.JailConfinement in the County Jail for a term of not less than 72 hours nor more than one (1) year.Community ServiceTexas law mandates that a judge order not less than 80 hours nor more than 200 hours.Deep lung air deviceTypically deep lung devices are required for all DWI second offenders during probation.Suspension of licenseA person convicted of DWI, Second may have their driving privilege suspended for not less than 180 days ormore than two (2) years. 5
  6. 6. DWI, Third Offense (or greater): Third degree FELONYFineA fine not to exceed $10,000.00.JailConfinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of notless than 2 years nor more than ten (10) years.Deep lung air deviceDeep lung air devices are generally ordered on all persons convicted of three or more DWI’s both as conditionsof bond and as conditions of any occupational or provisional licenses that may be awarded after conviction.Community ServiceTexas law mandates that a judge order not less than 160 hours nor more than 600 hours.Suspension of licenseA person convicted of DWI, Second may have their driving privilege suspended for not less than 180 days ormore than two (2) years.OtherA third conviction for DWI indicates a significant problem with alcohol to the Court or jury assessingpunishment. Some type of rehabilitative treatment is therefore mandated in punishment if confinement in thepenitentiary is to be avoided. In some cases an in-patient, incarceration program (Substance Abuse FelonyProbation SAFP) is ordered. This program requires confinement in a State Facility for alcohol rehabilitation.After successful completion of the SAFP program, the person is then released and placed on probation for aterm not to exceed ten (10) years. Another popular condition for habitual DWI offenders is a prescription for adrug named “Antabuse”. This drug will make a person violently ill if any alcohol is consumed. The alcohol canbe contained in mouthwash or marinated food and will still have the same effect on the user. If a person hasany type of liver problems, this drug can cause liver failure and death.Texas law does not provide for any increased punishment after DWI, third offense. If a person presents aDWI, fourth offense or beyond, the typical punishment is confinement in the penitentiary from two (2) to ten(10) years without probation being granted. In some cases SAFP may be granted upon proper request andshowing that it is appropriate.Intoxication AssaultThird degree Felony “A person commits an offense if the person, by accident or mistake, while operating a ….motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury toanother” {Texas Penal Code §49.07}. ” ‘Serious Bodily Injury’ means injury that creates a substantial risk ofdeath or protracted loss or impairment of the function of any bodily member or organ”. 6
  7. 7. FineA fine not to exceed $10,000.00.JailConfinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of notless than 2 year nor more than ten (10) years.Community ServiceTexas law mandates that a judge order not less than 160 hours nor more than 600 hours.Intoxication ManslaughterSecond Degree Felony “A person commits an offense if the person:1) …operates a motor vehicle in a public place, and…2) …is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.”FineA fine not to exceed $10,000.00.Jail: Confinement in the Texas Department of Criminal Justice, InstitutionalDivision (Penitentiary) for a term of not less than 2 year nor more than twenty (20) years.Community ServiceTexas law mandates that a judge order not less than 240 hours nor more than 800 hours.NOTEIf a person is involved in an accident where there is risk of death or death, a mandatory blood sample will betaken for analysis and use in the prosecution of either Intoxication Assault or Intoxication Manslaughter.Administrative License Revocation (ALR) ProgramWhat is an ALR Hearing?Many Texas drivers who are arrested for driving while intoxicated (DWI) do not realize that a DWI arrestcreates two separate cases, one civil and one criminal.Specifically, a DWI arrest results in both a criminal charge, and usually initiates a civil proceeding against thearrested driver’s driving privileges called an Administrative License Revocation, or ALR.An ALR suspension is initiated against an arrested driver when he either refuses to submit to breath or bloodtesting, or alternatively, fails a breath or blood test. The legal authority to impose an ALR suspension againsta driver lies in the Texas implied consent statute. 7
  8. 8. This law states that each person who operates a motor vehicle on Texas roadways has given his or her impliedconsent to provide a specimen of breath or blood if arrested for DWI and provided with the applicableconsequences of refusing to submit to testing.Notice of ALR SuspensionMany police officers, after arresting a citizen, will tell the arrested driver that if he does not agree to take abreath or blood test that his license will be automatically and immediately suspended.This is incorrect. When making an arrest for DWI, peace officers are required to take possession of anyTexas license issued by this state and held by the person arrested and issue the person a temporary drivingpermit that expires on the 41st day after the date of issuance. Further, a request for a hearing to challengethe proposed suspension will delay any ALR sanctions until a hearing takes place.Hearing Request ProvisionsALR suspensions are automatic unless you request a hearing to challenge the suspension, in writing, WITHINFIFTEEN (15) DAYS after receiving notice of suspension from the arresting agency on a Department ofPublic Safety approved form. This document is generally received on the day of arrest.If a hearing is not requested in a timely manner, the suspension will automatically begin on the forty-first(41st) day after notice was received. If a hearing is requested, no action will be taken regarding suspensionuntil after the hearing has taken place, even if the hearing takes place more than forty days after the arrest.The ALR HearingThe burden of proof at an ALR hearing is on the Department of Public Safety. Once a driver or his attorney hasmade a timely request for an ALR hearing, no suspension may be imposed against the driver until theDepartment of Public Safety proves the following elements by a preponderance of the evidence at the hearing: 1. That there was reasonable suspicion to stop or probable cause to arrest the driver; 2. That probable cause existed that the driver was driving or in actual physical control of a motor vehicle in a public place while intoxicated; 3. That the driver was placed under arrest and was offered an opportunity to give a specimen of breath or blood after being notified both orally and in writing of the consequences of either refusing or failing a breath or blood test; and 4. That the driver refused to give a specimen on request of the officer, or, that the driver failed a breath or blood test by registering an alcohol concentration of .08 or greater.Suspension Provisions for Adult DriversWithout any prior alcohol or drug related contacts against the accused driver during the previous 10-yearperiod, your license will be suspended for 90 days if your chemical test result is over a 0.08% or 180 days ifyou refuse a chemical test. If you have a prior alcohol or drug contact within ten years, your license will besuspended for one year if your chemical test is over 0.08% or 2 years if you refuse a chemical test. In certaincircumstances you may be eligible for an Occupational License.Possible Defenses for DWI ChargesIn deciding which defenses could apply in your driving while intoxicated (DWI) case, Houston Drunk DrivingLawyer Charles Johnson will look at all the evidence produced by the police and interview witnesses. Somecommon defenses seen in DWI cases include: 8
  9. 9. Driving Observation DefensesThe prosecutor always relies (sometimes exclusively) on the arresting police officer’s testimony about how aDWI suspect was driving, including:  Very slow speeds  Uneven speeds (very fast, then very slow, for example)  Weaving from one side of a lane to the other  Crossing the center line of the highway  Running a red light  Hesitation in going through a green lightA good defense attorney will argue that there are many different explanations for these driving behaviors thatdon’t have anything to do with being alcohol-impaired.Behavior Observation DefensesAn officer may also testify as to a DWI suspect’s appearance and behavior when questioned, including:  Slurred speech  Bloodshot eyes  Inappropriate joking or incoherent speech  Stumbling or not being able to walk very far  Pupil enlargementDefenses to these observations that don’t have anything to do with being intoxicated may include:  Lack of sleep  Allergies  Contact lenses  Stress due to personal circumstances  Medications  Foods recently ingested  Nervousness over being stopped by police  Physical impairments  Field Sobriety Test DefensesWhen an officer suspects you may be too intoxicated to drive, he or she will likely ask you to perform whatare called “field sobriety tests.” These tests are designed to assess your physical and mental alertness, andcan include:  Walking a straight line  Walking backwards  Reciting the alphabet, frontwards or backwards  Standing on one leg  Officers also sometimes rely on what’s called a “nystagmus” test, in which the suspect is asked to shift eye gaze from one side to the other while the officer shines a light in his or her eyes. The theory is that the gaze of someone who is impaired by alcohol or drugs will be jerky rather than smooth.The defenses to field sobriety tests are often the same as with officer observations. Medications and lack ofsleep can make it considerably more difficult to perform these tests. Many people also have physical 9
  10. 10. impairments caused by injuries – or simply aging -that make it impossible to perform these tasks under idealconditions.The Best Houston Lawyer will cross-examine the arresting officer in detail as to whether the officer asked youif you had physical impairments or there were particular circumstances that would make it difficult to performthe tests. He may also point out to the jury that many jury members may have similar difficulties performingthe tests, such as by asking the jury if they could recite the alphabet backwards under the best ofcircumstances.Blood Alcohol Content DefensesWhen you consume alcoholic drinks, the alcohol is absorbed into your blood stream. The level of alcohol inyour blood, called the Blood Alcohol Content (“BAC”) can be measured by different tests. In all states, you’represumed to be drunk and unable to safely operate a vehicle if your BAC is .08 or greater. This measurementmeans that your blood contains eight/ one-hundredths percent of alcohol.All states have lowered the BAC level defining intoxication to .08, and have “zero tolerance” laws that make itillegal for people under 21 to operate a vehicle with little or no amount of alcohol in their blood.Many states also have more severe DWI or DUI penalties for driving with a high BAC, which is often defined asa level measuring more than .15 to .20.Your BAC can be determined from a blood draw, which is often automatically taken if you are involved in anaccident and there is a suspicion that you may have been drinking. Your blood will also be drawn if you aretaken to the hospital because the police are concerned that you may have had so much to drink that you arein danger of alcohol poisoning and should be hospitalized for observation and/or treatment.Most DWI suspects have their blood tested by blowing into a breath testing device. These devices can befaulty and not well-maintained or properly calibrated. They can register false results based on yourconsumption of food and other non-harmful substances other than alcohol or drugs.The Best Houston DWI Lawyer will likely subpoena police records on how the breath testing machine operatesand was maintained and calibrated. He may also want to bring in expert testimony that the particular breathtesting machine the officer used is notorious for malfunctioning.Depending on the jurisdiction, another defense to breath testing machines arises when the physical breathtests aren’t preserved as evidence, allowing for independent testing later. Your attorney can argue that there’sno way to know if the machine that was used was accurate, if your breath samples can’t be independentlytested.Many of the defenses against DWI charges require a lawyer’s expertise and experience. If you have beenarrested for a DWI offense in Texas, do not try to handle the legal situation yourself. Contact the experiencedand respected Texas DWI defense attorneys at the Charles Johnson Law Firm right away to make sure thatyour rights are protected.We can be reached 24 hours a day, 7 days a week.Call us at 713-222-7577 or toll free at 877-308-0100.Major Credit Cards Accepted. 10
  11. 11. Posts Related to Charged with DWI in Harris County? Representation By TheBest Houston DWI Lawyer Is Critical  What is an ALR Hearing? Many Texas drivers who are arrested for driving while intoxicated (DWI) do not realize that a DWI charge creates not one but two separate cases, ...  Houston Criminal Defense Lawyer » Arrested For DWI? Learn How you can Beat It. When the authorities suspect an individual has been driving under the influence, they will ask him/her to perform a series of standard tests, also named ...  Charged with Intoxication Manslaughter? Choose Your Houston Criminal Lawyer Wisely Any DWI arrest carries the potential for significant penalties and requires the attention of a highly experienced lawyer. But when that DWI arrest involves serious ...  Alternative Sentencing Depending on the seriousness of the crime(s), sentencing may involve 1 or a combination of punishments. Besides prison or jail time, alternative sentencing may incorporate ...  Most Respected Houston Lawyer » Violated Your Probation? What You Need To Understand. As an alternative to sentencing a defendant to a prison term, a judge could possibly choose to sentence a defendant to probation. Probation releases a ...Original article may be found at:Charged with DWI in Harris County? Representation By The Best Houston DWI Lawyer Is CriticalHouston Lawyer Charles Johnson can be reached 24 hours a day, 7 days a week.Call us at 713-222-7577 or toll free at 877-308-0100.Major Credit Cards Accepted.Houston Criminal Lawyer Charles JohnsonSolving Problems...Every Day®http://www.houstoncriminallawyers.com815 Walker Street #1047Houston, TX 77002E-Mail: charlesjohnson@houstoncriminallawyers.comPhone: (713) 222-7577Toll-Free: (877) 308-0100Map to Office 11