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If you have been arrested or charged for a DWI in Collin County, contact the team at Rosenthal Kalabus & Therrian today to hire qualified representation for your case.
Everyone knows a DWI or drunk driving charge is bad news. If the shock and degradation of the arrest weren’t enough – the arrest is typically just the beginning. DWI charges are highly technical, including possible driver’s license suspensions, criminal charges, and even steep surcharges to keep your driver’s license after being convicted.
DWI’s have many moving parts and are not the type of case you want to face without experienced DWI legal counsel. At Rosenthal Kalabus & Therrian, we are very familiar with Collin County DWI cases and how to defend them. We are also familiar with the concerns and fears people have when they have been arrested for DWI. Simply put, we understand. We work hard to defend your case and protect your freedoms. Call us today at (972) 369-0577 for a free consultation to learn more about our legal services and how we can help.
Texas law convicts an individual of DWI if they operate a motor vehicle while intoxicated. A person is intoxicated when one of the following circumstances exist:
Usually, if you get arrested for a crime, you don’t receive any penalty until there’s a conviction. However, when it comes to DWI, if an officer lawfully arrests you, there could be immediate administrative consequences. A DWI is actually two cases in one. The first is a civil action brought by The Department of Public Safety (DPS) that could impact your driver’s license through a suspension. Even if you don’t get convicted, you could still face a payment of fees. The second is the criminal action brought by the State of Texas that could impact your freedom through jail time or reporting probation.
Driving under the influence (DUI) in Texas is where a person under the age of 21 operates a motor vehicle and has consumed any amount of alcohol, which is detectable. However, just because a person is a minor doesn’t mean they can’t be charged with DWI instead of DUI.
Other states may refer to a DUI as what we in Texas call DWI, but don’t let this distinction confuse you.
A DUI is a Class C Misdemeanor that is punishable by fine only. There is also the possibility for the minor arrested for DUI to have the arrest expunged from their record.
It’s natural to feel scared when an officer slaps the cuffs on your wrists and drives you to the station. However, you should remain calm and invoke your rights when necessary. The things you do and say from this point on could affect your case.
During the arrest – Know and assert your right to remain silent. You do not have to speak to the officer about the alleged offense. You may believe explaining what happened will help you, but you could say something incriminating, resulting in a conviction.
It’s also vital that you treat everyone with respect during the arrest process. Don’t try to run away or scream at the arresting officer. Your actions could end up on video, swaying the jury’s opinion of your character and whether they should enter a guilty or not guilty verdict.
At the station – Law enforcement might start questioning you about the crime to gain information and possible evidence to use against you. Invoke your right to speak to an attorney. Once you do, they must stop asking you questions. If they don’t, they violate your rights, and anything you say after you say you want an attorney will be inadmissible in court.
Call an experienced lawyer from Rosenthal Kalabus & Therrian to represent you. Public defenders have the necessary experience and qualifications; however, they are often overworked and don’t have the time to review their clients’ cases thoroughly. Our legal team has the resources to comb through every piece of evidence and take great care in building a solid defense to get the charges dropped or reduced.
After posting bail – If you can afford to pay your bail and get released until your trial, do not discuss your legal case with anyone except your lawyer. Even if you were drinking and driving, don’t tell anyone. The person you confide in could end up being a witness for the prosecution and be forced to testify about how much you drank before your arrest.
You should also refrain from posting online about any details of the charges you’re facing. Social media accounts can serve as useful evidence in DWI cases. If you post incriminating information, the investigating officer and prosecutor could present that as evidence.
On a typical first offense DWI in Collin County, a person’s driver’s license could be suspended from 90 to 180 days, depending on the facts the case. If the license is suspended, that person may be eligible for an occupational driver’s license to drive for up to 12 hours a day during the suspension period.
It permits you to drive to and from work, school, and other places necessary to complete household duties. To apply for an occupational license, there must be proof of the charged individual’s financial responsibilities and that they installed an IID (ignition interlock device) on the vehicle.
If it’s the first time someone gets arrested or stopped for DWI and fails to submit to or refuse a chemical test at the scene, the officer could immediately confiscate that person’s license. If the license gets taken away on the spot, a temporary permit will get issued that allows driving up to 15 days from the arrest date. It’s necessary to request a hearing within 15 days to contest any additional suspension of the license. If there’s no request for a hearing, the suspension will continue for 90 days, starting on the 41st day after the arrest.
If a person’s blood alcohol concentration is below .15%, the penalty for first-time offenders is a fine from $0 to $2,000 and from 72 hours to 180 days in jail (which may be probated).
A first DWI conviction is generally considered a class B misdemeanor. However, if a person’s blood alcohol concentration is above .15%, they could get charged with a class A misdemeanor. The penalty is enhanced to a fine from $2,000 to $4,000 plus administrative fees. Additionally, first offenders could face 72 hours to 1 year in incarceration (again, which may be probated).
If a driver with a prior DWI gets arrested a second time, Texas considers it a class A misdemeanor. It comes with a fine of up to $4,000 and anywhere from 30 days to one year in jail. There’s also the risk of license suspension of 180 days to two years. To retain the driver’s license, you will need to pay an annual surcharge fee of $1,500 to $2,000 every year for three years.
Upon sentencing, the accused must install an interlock device in their vehicle to detect the presence of any alcohol. If the device does detect alcohol, the car becomes temporarily disabled, and the court will issue an order for the offender to refrain from alcohol use entirely.
The third DWI offense is a third-degree felony. The individual could pay up to $10,000 in fines and spend between two and ten years in prison. More than three charges with a prior prison sentence could result in a second-degree felony, a maximum of $10,000 fines, and two to twenty years in prison. In situations where there are at least three DWI charges with two prior prison sentences, the punishment is an enhanced felony with 25 years to life in prison.
Despite the number of previous DWI charges, there’s often a probation period. The judge will use his or her discretion to determine the requirements of the probation. Those charged with DWI could face one or more of the following:
For DWI crashes that result in bodily injury or death, the following charges apply:
The punishment for DWI ranges depending on each specific case. It may be possible to arrange a plea agreement for a minimized sentence. It’s essential to review every option with a lawyer from [firm name] to determine the best course of action for you.
MINOR IN POSSESSION OF ALCOHOL
It is illegal for a minor to possess alcohol under Texas Alcohol and Beverage Code Section 106.05. This charge is also known as “MIP” or Minor in Possession.
A Minor in Possession is a Class C Misdemeanor punishable by up to a $500 fine.
Exceptions to the law are where minor is working in the course and scope of employment by a licensee or permittee; in the visible presence of an adult parent, guardian, or spouse, or another adult who a court has committed; or under the immediate supervision of a peace officer enforcing these laws.
If your child has been charged with a Minor in Possession, contact Rosenthal Kalabus & Therrian today to make sure that this mistake doesn’t stay on their record.
It is common for police and other law enforcement to conduct sting operations to see if convenience stores, restaurants, and other establishments sell alcohol to minors.
A person commits the offense of sale of alcohol to minors if, with criminal negligence, they sell an alcoholic beverage to a minor.
It is a defense to prosecution where a minor falsely holds themselves as being over the age of 21 with a fake driver’s license with a picture “consistent with the minor’s appearance,” purports to be over 21, and issued by a governmental agency.
The sale of alcohol to a minor is just a Class A Misdemeanor, but could carry serious immigration consequences if the accused is not a United States citizen.
Boating While Intoxicated (BWI) is mainly different in the respect that instead of a motor vehicle, the person is operating a boat. Otherwise, the laws are virtually the same.
Slight differences in DWI and BWI law is enforcement officers don’t need probable cause to stop a boat for safety inspections. Another difference is it is illegal for a person to have an open container of alcohol in a motor vehicle, but it’s perfectly legal for passengers in a boat to consume alcohol.
Intoxication Assault is a driving while intoxicated charge with the added element of “serious bodily injury.” That person could be another driver, a pedestrian, or even a passenger in the driver’s car.
Prosecuting intoxication assault is a difficult task. It is essentially trying a car-accident case on top of a DWI. Not only must the state prove intoxication pursuant to Texas Penal Code Chapter 49 (the defendant did not have the normal use of mental or physical faculties or had a blood/alcohol concentration of 0.08% or higher), but the prosecutor must also show the serious bodily injury (usually from a car accident) was due to the intoxicated driver.
Common areas of contention in intoxication assault cases are the cause of the accident, the level of intoxication, or the nature of the injury. Not all injuries qualify as “serious bodily injury.”
Intoxication assault is a third-degree felony carrying a punishment range between 2 and 10 years in the Texas Department of Corrections.
Few situations are as heartbreaking as Intoxication Manslaughter. A crash where someone dies alters the lives of everyone involved permanently. In addition to the lifelong guilt associated with such an event – whether or not alcohol was even involved – intoxication manslaughter charges obviously carry a harsh sentence upon conviction. You could face a second-degree felony that comes with a prison sentence between 2 and 20 years.
Intoxication manslaughter occurs where a person is intoxicated and causes death to another because of intoxication by mistake or accident.
Like Intoxication Assault, the prosecution must prove three layers of what is known as “causation.” They must prove:
Often prosecutors get a blood or breath specimen which they think proves their case, but this is only the beginning of the analysis.
Defending intoxication manslaughter cases takes experienced representation from lawyers who only understand the forensic sciences and the human elements of defending these cases.
Under Texas Law, you must provide a specimen of breath or blood upon a police officer’s request, and that specimen must show an alcohol concentration of less than 0.08%. If you provide a specimen and the result is above 0.08%, your license can be suspended for up to 90 days for a first-time DWI arrest. If you refuse to provide a specimen, your license may be suspended for up to 180 days.
What police won’t tell you is (1) you can fight their original decision to ask for a specimen because police cannot merely ask at their leisure; and (2) you are almost always going to be entitled to an “occupational driver’s license” which should allow you to travel and carry on with your daily business.
After a DWI arrest, you only have 15 days to request a formal review hearing to protect your driving privileges from the automatic suspension that will occur if your attorney does not demand a hearing to contest the suspension. In every case, the criminal defense attorney should request an Administrative License Revocation (ALR) hearing to contest the revocation because no downside exists to invoking this right.
The Administrative License Revocation (ALR) occurs after a DWI arrest when the individual arrested refuses to submit to a chemical test or takes the breath test but blows over the legal limit of 0.08% BAC. To start the process, the arresting officer then takes the driver’s Texas driver’s license and issues a temporary driving permit.
After the arrest, the driver has only 15 days to request a hearing. If the driver fails to request a hearing to contest the ALR, the suspension takes effect on the 40th day following the arrest.
Before the driver can renew his or her driver’s license or be issued a driver’s license after the ALR process, the driver must pay a $125 reinstatement fee.
Even men or women arrested for Boating While Intoxicated (BWI) can be subjected to the ALR process if they refuse to take a chemical test or blow over the legal limit of 0.08%.
Administrative License Revocation (ALR) hearing is a separate case that arises out of a DWI prosecution. Most people arrested for DWIs are surprised to learn that they have not one but two cases after their arrest: one, a criminal case against you (DWI), and the second (ALR) is a hearing against your license.
The ALR hearing allows you to contest the seizure or suspension of your license based upon failing the breath or blood test or refusing to take them when asked. Remember that you have only 15 days to request your hearing with the state after you have been arrested; otherwise, your license will go into automatic suspension.
By requesting an ALR hearing, you force the Department of Public Safety (DPS) to prove its case against you. The DPS must prove that the police officer who stopped and arrested you did so with either reasonable suspicion or probable cause. If they cannot prove either, you win by default, and your license will not be suspended.
To suspend your license, DPS must prove the following depending upon the facts of your case:
Refusal: If you refused to submit to breath/blood testing, DPS must prove:
Failure: If you failed your breath and/or blood test, DPS must prove both points:
If the police officer involved shows up at your ALR, it allows your DWI lawyer to question the officers and lock them into their testimony. If your case ends up going to trial, then your attorney can use a transcript of the officer’s testimony against them.
Without any prior alcohol or drug-related convictions against the accused driver during the previous 10-year period, your license will be suspended for 90 days if your chemical test result is over 0.08% or 180 days if you refused a chemical test. If you have a prior alcohol or drug conviction within ten years, your license will be suspended for one year if your chemical test is over 0.08% or two years if you refuse a chemical test.
The outcome of your ALR does not affect your DWI criminal case. Your criminal DWI case will proceed, regardless of the outcome of your ALR hearing. While many criminal cases in Texas offer the opportunity for preferred adjudication, DWI is not one of them.
If you were arrested or charged with DWI, chances are, there’s at least some evidence against you. However, we could argue against the validity of the evidence, especially if law enforcement obtained it illegally. Sometimes, there isn’t enough substantial evidence to prove guilt beyond a reasonable doubt. Our job is to disprove the prosecution’s theories and provide compelling arguments as to why the evidence they present doesn’t support their case.
The defense strategy we choose will depend on the circumstances of the offense you were accused of committing and other factors. Sometimes it’s best to enter a plea agreement for a more lenient sentence. Other times, the more practical option is moving forward to trial because it’s clear that the prosecutor doesn’t have sufficient evidence to convict you of DWI. We will review the facts of the case with you and determine how we should proceed to reach your legal goals.
The most common elements of defense against DWI charges in Texas are:
The Fourth Amendment protects you from unreasonable searches and seizures. That means the officer must have a legitimate reason for pulling you over. For example, they see your vehicle swerving between lanes. Merely thinking you’re intoxicated isn’t enough. If they violated your rights, we could file a Motion to Suppress to keep the evidence they found from being presented at your trial.
Sobriety checkpoints are in place to check each person passing through to find intoxicated drivers. The officer will ask for your ID and look for any signs that you may have alcohol in your system. If they see any signs, they could ask that you take a breathalyzer or blood test. Law enforcement must meet all legal requirements of a checkpoint. If, for instance, they physically forced you to submit to a breath test without your consent, that evidence could be inadmissible in court.
Field Sobriety Tests
It’s easy to misinterpret someone’s performance during a field sobriety test as being intoxicated when, in reality, they could just have poor balance or vision problems. The three most common tests used are:
The officer administering the tests must use their best judgment in interpreting the results and determining whether you pass or fail. If you failed the test, we could argue that the officer’s observations of intoxication are inaccurate because of your older age or mobility issue.
Typically, law enforcement will draw blood samples while they’re processing you at the police station. They must follow a specific process, or we could challenge the validity of the results. They’re supposed to get your consent or use a warrant requiring a blood draw. Questions about the accuracy of the test results or how law enforcement obtained the sample in the first place could mean the prosecution can’t enter it as evidence.
A breathalyzer measures the amount of alcohol someone has in their blood. If your blood alcohol concentration (BAC) is at .08% or higher, the officer can arrest and charge you with DWI. Unfortunately, this type of test can be highly unreliable, often leading to incorrect results. Additionally, certain health conditions could falsely indicate the presence of alcohol on someone’s breath, such as diabetes.
Please remember that you have only FIFTEEN DAYS from the date of arrest to request a hearing on the potential suspension of your driver’s license. If you do not request a hearing your license will be automatically suspended 40-days from the date of the arrest.
In a typical case, the arresting police agency will send your arrest report to the District Attorney’s Office (“DA”). The DA will then file the formal charge against you in one our six County Courts at Law and you will receive a notice to appear. Generally, there is a four to six week time lapse between the time of your arrest and your first court appearance. The period between the arrest and the filing may be much longer in blood draw cases where lab results are pending.
The length of time it takes to resolve a DWI charge will vary. Each case is as unique as a snowflake based on the underlying facts as well as your goals and the prosecutor’s stance on your particular case. Cases can be resolved as quickly as three months or as long as a year.
No. If you request hearing through the Administrative License Revocation (ALR) process within fifteen days of your arrest, your license will remain valid until such time as a hearing takes place. We will personally handle all aspects of the ALR process on your behalf. At the hearing the State must prove certain facts. If they fail to do so, your license will not be suspended.
The ALR hearing will likely be the only opportunity you have to question the police officer that arrested you under oath prior to trial. If a hearing is set our attorneys will compel the State’s lawyers to turn over all the evidence they intend to use against you at the hearing. This will include all police reports and frequently breath or blood test results. Also, unless strategy suggests otherwise, our attorneys will require the presence of the arresting officer at your hearing. The ALR hearing is a tremendous opportunity to test the strength of the State’s case against you and to look for weaknesses in their case. At the ALR hearing we will be looking for ways to challenge all aspects of the state’s case in an effort to maintain your right to drive. By way of example only:
If you prevail at the ALR hearing the civil case is dismissed and you WILL RETAIN YOUR RIGHT TO DRIVE.
If your license is suspended you will likely be able to petition the court for an Occupational Driver’s License (ODL). An ODL is a restricted driver’s license that will allow you to drive up to twelve hours a day.
Defending DWI cases properly requires intricate knowledge of the applicable law; the science involved in breath, and the procedure used by the police to obtain and evaluate evidence in a DWI case. Most attorneys, even those who practice criminal law, do not focus on DWI defense. An experienced DWI attorney may see defenses that may be overlooked by some other attorney.
In selecting a DWI attorney, just a few questions to consider are:
No. You have a lawful right to refuse to submit to any field sobriety test, including the One Leg Stand, the Walk and Turn, the Horizontal Gaze Nystagmus test, and the Preliminary Breath Test.
You may also refuse to submit to the Breath Test, however your refusal may trigger certain consequences for your driver’s license.
The short answer is yes. Even a first offense DWI carries a potential punishment range of up to one hundred eighty days in the County Jail and up to a $2,000 fine. Even if you are sure that you are factually “guilty” you should still seriously consider an experienced DWI lawyer who knows the law, the science, and the ins and outs of the court system.
First and foremost, we will always force the State’s Attorney’s to turn over ALL of the evidence to me. The evidence should include, at a minimum, all of the police generated documents, the DVD or video of both the roadside and Intoxilyzer room, and witness statements, the Intoxilyzer breath testing slip, and a lab report in blood test cases.
Only when all of the evidence is available can you make intelligent decision about how to proceed. Even if you feel that you were intoxicated, and experienced DWI attorney should be looking at issues such as:
So, even if you think you are guilty, do yourself a favor and hire an experienced DWI attorney who can analyze your case for weaknesses that may benefit you.
Not under the current state of the law. However legislation was introduced recently introduced which would authorize people charged with a first driving while intoxicated case in Texas to receive deferred adjudication. The legislation failed, however it may be raised again at a future date in the Legislature. In a deferred adjudication situation, no judicial finding of guilt is made and and the end of the deferral period the case is dismissed.
Ordinarily, SR-22 insurance will be required after a DWI conviction or when a person needs an occupational driver’s license due to a driver’s license suspension. Frequently the suspension is the result of a DWI conviction or an ALR suspension.
You may obtain SR-22 insurance by contacting your own insurance company or by contacting another agency. Our office regularly recommends two separate agencies that have provided excellent service to our clients.