The Gray Law Firm, P.L.L.C.

The Gray Law Firm, P.L.L.C.

If you have been arrested for Driving While Intoxicated, the first thing you should keep in mind is that YOU NEED TO TRY TO SAVE YOUR DRIVER’S LICENSE. The only way to do this is by requesting a hearing within 15 days of the date you were given notice that your license would be suspended. Usually you are notified at the time of your arrest. The Gray Law Firm, P.L.L.C. can represent you in these matters.

At the hearing, the government will need to prove the following:

»  The officer had reasonable suspicion to pull you over or probable cause to arrest you.

»  That the officer had probable cause that you were driving or in control of the vehicle in a public place while intoxicated.

»  That the driver was placed under arrest and was offered an opportunity to give a specimen of his breath or blood after being notified of the consequences of refusing or failing a breath or blood test.

»  The driver refused to give a specimen or the driver failed the breath or blood test.

If the government prevails on a case where the breath or blood test was refused by the accused, and the accused has not had any prior alcohol or drug related legal problems for the 10 years preceding the arrest, the license is suspended for 180 days. If the government prevails in a case where the accused took a breath or blood test, and the accused has not had any prior alcohol or drug related legal problems for the 10 years preceding the arrest, the license is suspended for 90 days. If your license is suspended, you may be eligible for an occupational driver’s license to allow to drive to and from work. The Gray Law Firm, P.L.L.C. can represent you in obtaining an occupational driver’s license.

»  I just had a drink or two over the course of the evening. Am I really guilty of DWI?

Remember, you are presumed innocent until proven guilty, beyond a reasonable doubt. The government must prove basically the following facts with regards to DWI, as well as others: (1) you were operating a motor vehicle; (2) in a public place; (3) while intoxicated due to the introduction of alcohol, controlled substance, or dangerous drug into your body; and (4) you did not have the normal use of your mental and/or physical faculties, or you had a Blood Alcohol Concentration over .08 (legal limit). (Note that “drunk” and intoxicated do not mean the same thing. Someone may be intoxicated under the legal definition, but not visibly drunk to others.) If the government fails to prove any one of these elements, you should be found not guilty. It’s the government’s burden of proof.

The amount of alcohol needed to cause intoxication varies from person to person. It also depends over what period of time you consumed the alcohol, how much you consumed, whether or not you were also taking medication that might affect your mental and/or physical faculties, as well as other factors. In order to help prepare for your defense, you need to keep receipts of how much you drank over the course of the day, recall who may have been with you that could testify for you on your behalf, and note how much you had to eat, as well as other factors. The attorney you hire to represent you should ask you these very basic questions, as well as where were you pulled over, so he or she can investigate if the area was suitable for the officer to conduct field sobriety tests.

Just because you drank alcohol does not mean that you were driving while intoxicated.

»  The officer said I failed the field sobriety tests. Do I have a chance?

Yes! Remember, it is the government’s burden to prove you guilty, not your burden to prove your innocence. The officer will have to prove to the judge or jury that he or she performed the field sobriety tests in accordance with the accepted methodology for administering the test. One of the tests is the Horizontal Gaze Nystagmus Test (HGN) commonly known as the “pen test”. It is required that the officer be certified in administering this test. If he or she is not, then the test result may not be admissible. There will be other factors to consider regarding the tests, such as: (1) were they given on a flat, level surface; (2) were you wearing shoes with heels; (3) do you have a medical condition that may affect the outcome of the test; (4) what was the lighting; and (5) were they administered on the side of a busy roadway. These are just a few of the possible factors that may create reasonable doubt.

»  I submitted to a breath or blood test and the result was over a .08. Why fight it?

There are several reasons to fight even if your test result was over a .08. Remember, the test was performed by a human being (and humans make mistakes), and it was recorded and processed by a machine (machines have to be maintained correctly, and they wear out just like other machines). It will be the government’s burden to prove that everything was on the “up and up” with the breath test machine or that the proper procedures were followed with a blood test. Also, your body metabolizes (processes) alcohol at a certain rate. Just because you were over the legal limit 90 minutes after you were arrested does not necessarily mean that you were over the legal limit at the time you were operating a motor vehicle. Remember, the government must prove, beyond a reasonable doubt, that you were intoxicated when you were operating a motor vehicle.

»  If I am found “not guilty”, or my case is dismissed, will it still be on my record?

In general, under Texas law, there are certain instances where you can have your record “expunged”. That means that all records of your arrest will be destroyed, and your record will not reflect the arrest. This remedy is not available in all circumstances. However, if The Gray Law Firm, P.L.L.C. represents you in a criminal matter and obtains an acquittal or dismissal, it will attempt to expunge your record free of charge, if it is legally possible. The only cost you will pay will be the filing fee and costs. Most lawyers will charge you an additional fee for this service. However, when you hire a lawyer to fight for justice, you expect them to go all the way. It is our belief that you don’t stop with the acquittal or dismissal; you take it all the way. We try to get our client’s record back to where it was before he or she was arrested, if possible.

»  What is the range of punishment?

In Texas, the first time someone is convicted of DWI, the offense is a Class B Misdemeanor. There is a fine not to exceed $2,000.00. Confinement is in the County Jail for a term not less than 72 hours and not more than 180 days. If there was an open container, the minimum term of confinement is 6 days. In most cases, the term of confinement is probated. There will however be several terms and conditions you will be required to follow while on probation, including but not limited to an alcohol assessment, community service, DWI Education class, and a Victim Impact Panel, just to name a few. It is imperative that if you are placed on probation that you understand the full terms of your probation.

For the second offense, it is a Class A Misdemeanor. You will be required to put a deep lung device on your car if you are released on bond. You will be required to give a breath sample prior to starting your car. The range of punishment is a fine not to exceed $4,000.00, and confinement in the County Jail not less than 72 hours or more than 1 year. If the confinement is probated, there will be additional terms of probations than listed above, and you will be required to have a deep lung device on your automobile.

The third (or more) offense is a third degree felony with a fine not to exceed $10,000.00 and confinement in the Texas Department of Criminal Justice, Institutional Division not less than two years nor more than 10 years. This may be probated. The terms of probation will obviously be more stringent than a DWI first or DWI second.

It should also be noted that the term of the driving license suspension will be different, depending on the number of DWIs you have had in the past. Before you make any decisions regarding your case, make sure you are fully educated on the range of punishment and the terms of probation that you may be ordered to follow.