This document provides guidance for attorneys representing clients charged with driving while intoxicated (DWI). It covers the initial client interview, the administrative license revocation (ALR) process, and cross-examining the arresting officer. For the initial interview, the document advises informing clients of their rights and gathering facts. It also outlines potential costs and penalties. For the ALR process, it discusses requesting a hearing, discovery, and subpoenas. For cross-examining the officer, it recommends focusing on any bias or predisposition, limiting the officer's opinion, and highlighting facts consistent with sobriety. The overall aim is to convince the jury that the officer's determination of intoxication is no better than their own

1. DWIs: A GUIDE FOR THE GENERAL PRACTITIONER RANDYT. LEAVITT AUSTIN, TEXAS

2. Three areas to cover 1. Initial call and client interview 2. ALR Process-briefly 3. Cross examination of the arresting officer

3. Part I: Initial call and client interview If Defendant is in custody and in the presence of the officer Remind yourself and your potential client that everything may be recorded

4. DO’S AND DON’Ts Do be polite and courteous Do give officer your name and driver license Do stay awake Do nothing else Do shut up! Don’t take any road side test Don’t take a breath or blood test Don’t be argumentative with the officer Don’t fall asleep

5. Client Interviews Explain the process Dual tracks in DWI representation-driver’s license issues and the DWI charges are on separate tracks a) ALR process b) County court process

6. Driver’s license and ALR Temporary permit good for 40 days Occupational license usually available Effect of a request for a hearing on DL suspension Periods of suspension

7. Suspensions Refusal- 180 days first time, two years if prior contact Failure- 90 days first time, one year if prior contact See chart in Appendix E and F for occupational license and waiting periods

8. DWI Charge Court system-who is the judge, the prosecutor, court settings, potential punishment, how long of process, etc. Explain the legal definition of intoxication If a non breath test case- loss of the normal use of mental or physical faculties Explain that is the central issue a jury will have to decide

9. Facts Explain attorney client privilege Be thorough-find out everything they did that day What they had to eat, drink where who with what time Find out medical back ground, knee injuries, back problems, vertigo anything that might affect their balance, weight, age

10. DWI Related Cost Cost already incurred-bail, personal bond fee, ignition interlock device Occupational license $250 filing fees Reinstatement fee for driver’s license $125. Counseling evaluation $55 Counseling course $150 Supervision fees $60 per month Insurance, surcharges, fines and court cost

11. Part II: ALR Process Request hearing within 15 days of arrest Discovery request-see 1 Tex. Admin. Code 159.151(1) Continuances –first one automatic if requested 5 business days prior to hearing Subpoenas- your responsibility to get officer there Hearing-opportunity for free deposition-do not waive it

12. Part III: Cross examination of the arresting officer Remember DWI is an opinion evidence case -nearly every DWI case filed today has a video tape of the arrest -convince the jury that their opinion is as good as the officers

13. Focus the Jury a) the defendant’s emotional and/or physical condition b) test are administered under difficult conditions c) the officer is biased in his analysis and/or exaggerated the results d) the test are not as easily performed as the officer would make it seem

14. Predisposition Once the officer has observed bad driving coupled with the smell of alcohol, he is predisposed to believing one is intoxicated By the time the FSTs are given the officer has made up his mind, he is only now in the mode of evidence gathering

15. Officers bias or prejudice DWI Task Force Overtime Made the arrest and now committed Distinguish between probable cause and beyond a reasonable doubt

16. Limit the Officer Should be done at pretrial or ALR hearing first Make him commit at what point he believe the defendant was intoxicated Generally they will state no one test persuaded them but it was the cumulative effect of all the test Therefore take each test and point out that test standing alone is not sufficient to believe one is intoxicated

17. Observations that are consistent with sobriety Make a list of positives/negatives No bad driving Easily produced his DL Located insurance no problem Got out of car when asked to do so Didn’t use car for support No noticeable sway while doing the HGN Cooperative No slurred speech, on and on

18. Conclusion Officer opinion as to loss of normal use is no better than the juries Can’t lose question-if he says it is then he comes across as better than jury If he admits it then jury can now disregard his opinion and form their own from the video Lastly, officer’s job is to determine probable cause-jury’s duty is to be convinced beyond a reasonable doubt

19. Thank You and Good Luck!