The Sheller Law Firm P.L.L.C.

Personal Injury - Life Insurance Sales Fraud - DWI Defense - Class Action - Legal Malpractice

DWI DEFENSE

The following information is offered to help you avoid the need for DWI defense and what to do if you do get stopped for DWI.

Avoid the Need for DWI Defense

About every 20 minutes in Texas, someone is hurt or killed in a crash involving alcohol. We urge you to take responsibility for your actions. Don’t drink and drive. However, you are innocent until proven guilty and we will give 110% effort to your defense.

Please do not drink and drive.  If you plan to drink, you should have a designated driver or hire a cab. Hiring a cab is much cheaper than the cost of a DWI arrest which can exceed $20,000.  These costs include court fees, parole fees and increased insurance costs to you.  In addition, you may be forced to do community service on weekends and in your free time which is usually at least 100 hours.

Your Rights If You Get Stopped for DWI

Under the U.S. Constitution you have the right to not incriminate yourself. This is because the founding fathers had the experience of being accused of crimes, and then having the burden to prove their innocence. So, the burden is on the government now to prove your guilt.

The source of the Self-Incrimination Clause was the maxim “nemo tenetur seipsum accusare,” that “no man is bound to accuse himself.” The maxim is but one aspect of two different systems of law enforcement which competed in England for acceptance; the accusatorial and the inquisitorial. In the accusatorial system, which predated the reign of Henry II but was expanded and extended by him, first the community and then the state by grand and petit juries proceeded against alleged wrongdoers through the examination of others, and in the early years through examination of the defendant as well. The inquisitorial system, which developed in the ecclesiastical courts, compelled the alleged wrongdoer to affirm his culpability through the use of the oath ex officio. Under the oath, an official had the power to make a person before him take an oath to tell the truth to the full extent of his knowledge as to all matters about which he would be questioned; before administration of the oath the person was not advised of the nature of the charges against him, or whether he was accused of crime, and was also not informed of the nature of the questions to be asked.

Here is what John Adams, one of our founding fathers had to say about the issue:

“What can be wanting, after this, but a weak or wicked man for a judge, to render us the most sordid and forlorn of slaves?—we mean the slaves of a slave of the servants of a minister of state. We cannot help asserting, therefore, that this part of the act will make an essential change in the constitution of juries, and it is directly repugnant to the Great Charter itself; for, by that charter, ‘no amerciament shall be assessed, but by the oath of honest and lawful men of the vicinage;’ and, ‘no freeman shall be taken, or imprisoned, or disseized of his freehold, or liberties of free customs, nor passed upon, nor condemned, but by lawful judgment of his peers, or by the law of the land.'”

Do’s and Don’ts if you are stopped for a DWI

  1. The first thing to tell you is No blow. If you have had anything to drink, do not blow into a breathalyzer whatever you do. You will lose your driver’s license and you only have 15 days to act to help protect your license.
  2. Do not agree to a blood test either.
  3. Do not give a statement to the police or say anything to them such as: “I only had a couple of drinks.” That statement will be on their video cams and it will be used against you to convict you of a crime.
  4. Tell them you want an attorney and you do not agree to waive your rights against self-incrimination.
  5. Be polite and non-confrontational with the police to avoid additional charges.
  6. There are sometimes ways, but only sometimes, to beat a breathalyzer test, but you will have to hire an expensive expert and probably a toxicologist and obtain the records on the breathalyzer equipment such as when it was tested for accuracy.
  7. There is a new law for 1st time offenders, that allows your arrest and conviction to be blocked from public view.

How Much Is Too Much?

Impairment begins with the first drink. The reason it is illegal to drink and drive is because alcohol interferes with your ability to pay sustained attention.  Your gender, body weight, the number of drinks you’ve consumed and the amount of food you’ve eaten affect your body’s ability to handle alcohol. Two or three beers in an hour can make some people legally intoxicated. Women, younger people and smaller people generally become impaired with less alcohol.

The Law on DWI

In Texas, a person is legally intoxicated and may be arrested and charged with Driving While Intoxicated (DWI) with a .08 BAC (blood or breath alcohol concentration). However, a person is also intoxicated if impaired due to alcohol or other drugs regardless of BAC. Whether you’re the driver or the passenger, you can be fined up to $500 for having an open alcohol container in a vehicle.

 DWI with a Child Passenger

You can be charged with child endangerment for driving while intoxicated if you’re carrying passengers younger than 15 years old. DWI with a child passenger is punishable by:

  • A fine of up to $10,000
  • Up to two years in a state jail
  • Loss of your driver license for 180 days

 What Happens if You’re Stopped

If you’re stopped, be ready to show your driver license, proof of insurance and vehicle registration. If you refuse to take a blood or breath test, your driver license will be automatically suspended for 180 days.

Punishment for DWI varies depending on the number of convictions:

First Offense

  • A fine of up to $2,000
  • Three days to 180 days in jail
  • Loss of driver license up to a year
  • Annual fee of $1,000 or $2,000 for three years to retain driver license

 Second Offense*

  • A fine of up to $4,000
  • One month to a year in jail
  • Loss of driver license up to two years
  • Annual fee of $1,000, $1,500 or $2,000 for three years to retain driver license

Third Offense*

  • A $10,000 fine
  • Two to 10 years in prison
  • Loss of driver license up to two years
  • Annual fee of $1,000, $1,500, or $2,000 for three years to retain driver license
  • *After two or more DWI convictions in five years, you must install a special ignition switch that prevents your vehicle from being operated if you’ve been drinking.

Administrative Penalties

If you’re lawfully arrested for a first-offense DWI in Texas, the Department of Motor Vehicles (DMV) can impose administrative license revocation penalties. If you refuse (see below) or fail a chemical test, the arresting agency will confiscate your license on the spot. The officer will issue a “Notice of Suspension” which functions as a temporary driving permit, and you have 15 days from the date of arrest to request a hearing to contest the suspension. If you don’t request a hearing, your license will remain suspended for 90 days starting the 41st day after your arrest. If you do request a hearing, the Notice of Suspension will allow you to continue driving until you attend the hearing and receive a final decision.

If you refuse to submit to a chemical test in violation of Texas’s implied consent laws, the DMV will automatically suspend your license for an additional 180 days upon expiration of your temporary license. The 180-day DMV suspension will be set aside only if you are ultimately acquitted of DWI in criminal court.

As a first offender, you may be eligible for an “occupational license” during your suspension. An occupational license is for driving only to and from places like work, school, and places necessary to accomplish essential household duties. To obtain an occupational license you must provide evidence of financial responsibility and prove you have had an ignition interlock device (IID) installed on every vehicle you own or operate (some employer-owned vehicles may be exempt).

 

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If you think you might benefit from legal counsel, now is the time to contact The Sheller Law Firm. And remember, don't sign anything at all until you get our legal advice. The information presented in this website should not be construed to be either formal legal advice nor the formation of an attorney/client relationship. It is the policy of The Sheller Law Firm that all clients of the firm must sign an engagement agreement stating the terms of the firm’s engagement to provide legal services. In the absence of an agreement signed by you and a representative of the firm, and the payment of any required retainer (if applicable), you should not expect that the firm is representing you, nor undertaking any obligation to act or refrain from acting on your behalf.