DWI Process

Any arrest for driving while intoxicated (DWI) in Texas carries an extreme amount of stress and frequent confusion. Many people have little to no idea what their rights are and what to expect when criminal charges are filed.

The Law Offices of Richard C. McConathy understands the multiple concerns that you might have and can hopefully present an overview of the DWI process that will give you greater peace of mind. Use this page to find answers to some of the most commonly asked questions.

DWI Process Defense Lawyer in Weatherford, TX

If you were arrested for a DWI in Weatherford, TX, make sure that you are quick to get yourself legal representation. A good criminal defense lawyer could make a world of difference in the handling of your criminal case.

The Law Offices of Richard C. McConathy has defended countless individuals all over the Parker County area against many different kinds of DWI charges. We offer a wealth of experience in DWI cases and can fully review your case when you call (817) 458-3226 or contact our firm online to receive a free consultation.

DWI Process in Weatherford, TX

With most DWI arrests, there will be a similar pattern to the proceedings. Most arrests usually involve the following:

• Sobriety Checkpoints / Roadblocks — Some police officers just happen to catch alleged DWI offenders at the right time, but some law enforcement agencies may conduct checkpoints or roadblocks that allow them to search multiple cars for drunk drivers.
• DWI Testing — Testing could come in the form of breath tests, blood tests, or field sobriety tests. Refusal to submit to testing can lead to immediate driver’s license penalties for an alleged offender.
• Driver’s License Procedures — When a person is arrested for a DWI, a driver’s license suspension will usually follow. Convictions can lead to longer suspensions. First DWI offenses are punishable by 90 days to one year, second or subsequent DWI offenses are punishable by 180 days to two years, second or subsequent DWI offenses within five years of the preceding offense are punishable by one to two years, second or subsequent DWI assault within five years is punishable by 90 days to one plus an additional one year, a first DWI manslaughter is punishable by 180 days to two years, second or subsequent DWI manslaughter within 10 years is punishable by one to two years, and an under 21 DWI is punishable by one year.
• Initial Appearance and Arraignment — At an initial appearance and arraignment, which will occur after you have been arrested, the judge will determine if there is probable cause to further detain the alleged offender. If there is probable cause, the judge will also identify the defendant’s lawyer, inform the defendant of their right to waive indictment, and set bail. The defendant will then be formally arraigned and may enter a guilty plea or reschedule for the next appearance.
• Appearances — If a person is then released on bail or bond from jail before their hearing date, they will receive notice in the mail from the court where they are to appear and the date and time of any other appearances. A person must appear in court on the date and time they were instructed or else bond will be forfeited and a warrant will be issued for their arrest. Bond forfeiture means a person loses the money they posted as a guarantee they would appear on their hearing date.
• Pre-trial Negotiations — At any other settings prior to motion hearings or trial settings, the attorney and the state prosecutor, often the assistant district attorney, will have an opportunity to discuss the case for the purpose of pretrial negotiations. They will determine if there are immediate reasons for the case to be dismissed, for a speedy trial or to enter a plea deal. A plea deal is a resolution of the case where both the state prosecutor and defendant agree to a certain punishment without involving a judge or a jury. The case may be reset, postponed, rescheduled or a continuance may be requested on numerous occasions.
• Plea Setting — A defendant’s case will have a plea setting if they choose not to have a jury trial or a bench trial. A bench trial is a trial without a jury. In these plea settings, they will enter a plea of guilty or a plea of nolo contendere, or no contest, to the charges against them. They may then accept the plea bargain offered by the state or may enter an open plea. An open plea is where the defendant rejects the plea bargain and requests the judge or jury to set punishment.
• DWI Trial — Misdemeanor DWI cases are filed by the arresting law enforcement officer with the District Attorney’s (DA’s) Office. If the DA decides to prosecute the case, a document called information is created. The information is a written statement filed and presented on behalf of Texas by the DA that charges the defendant with an offense. The information provides the defendant with notice that he has been formally charged with an offense. Once the information has been processed, a file is generated and the case is randomly assigned to one of the 11 misdemeanor courts in Dallas. Felony DWI cases are also filed by the arresting law enforcement agency with the DA’s Office. If the grand jury decides there is enough evidence to charge the defendant with the crime, the DA’s office will create a charging instrument called an indictment. An indictment is a written statement from the grand jury formally accusing the person named of some offense. The grand jury is a panel of citizens who are selected to review criminal complaints provided by the police who then make a determination whether there is sufficient evidence to believe that an offense has occurred and to issue an indictment.
• Deferred Adjudication — Deferred adjudication is basically a period of probation where the alleged offender is required to complete various programs and conditions during a certain period of time. Once the alleged offender has completed all requirements, their criminal charges will be dismissed.
• Community Supervision / Probation — Many alleged offenders end up receiving sentences involving community supervision or probation. It is important to complete all court requirements for cases to be successfully closed.
• SR-22 / Vehicle Insurance — Many DWI offenders will have to purchase SR-22 automobile insurance policies, which are high-risk policies and may be more expensive than traditional policies.

DWI Frequently Asked Questions (FAQs)

What is DWI?

Texas Penal Code § 49.04 states that a person commits a DWI offense if the person is intoxicated while operating a motor vehicle in a public place.

What is the legal definition of intoxication?

Texas Penal Code § 49.01(2) defines intoxicated as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or having an alcohol concentration of 0.08 or more.

What does ‘normal’ mean?

According to the law, the definition of the word normal is the average person. The problem is how do we determine the average person? The law is vague in this subject, which lends itself for a good argument to a jury that everyone is different and each has his own normal.

What is 0.08-alcohol concentration?

“Alcohol concentration” is defined by Texas Penal Code § 49.01(1) as the number of grams of alcohol per 210 liters of breath; 100 milliliters of blood; or 67 milliliters of urine. A 0.02 equals one drink. A drink is 1-¼ ounces of liquor, 1 12 oz. beer, or 1 glass of wine. It takes one hour for the body to burn off a 0.02 down to a 0.00. Thus, to reach a 0.08 a person must consume four drinks in one hour.

Am I required to answer any questions, take Field Sobriety Tests, or take a breath test?

Under criminal law, you are not required to perform any type of test or answer any questions to the police officer. You have the right to refuse any tests and request an attorney. However, if you refuse to attempt these tests, the officer most likely is going to arrest you.

Further, the civil law, which your driver’s license falls under, does not protect you. In fact, when you applied for your driver’s license you unknowingly consented to any future tests, if to which you refused you would lose your driver’s license for a period of six months. The decision is yours and there is a civil risk (your license), but you do have rights, and should not waive them. Always request your lawyer and don’t cooperate with anything if you wish to exercise your rights.

Does a person have a choice to refuse to be videotaped?

No. However, although a person has no right to refuse to be videotaped, he does have the right to refuse to perform any police field sobriety exercises and to refuse to answer any questions, the answers to which, might be incriminating. Unlike breath or blood test refusals, there are no penalties for refusing to perform field sobriety tests or refusing to answer questions while being videotaped.

Are Field Sobriety Tests very accurate?

If performed in a controlled environment in the exact proscribed standardized manner, the tests can be a likely indicator of intoxication. This is hardly done in the street.

The research conducted by the National Highway Traffic Safety Administration, the designers of the tests, concluded the Horizontal Gaze Nystagmus is 77% accurate, the Walk & Turn is 68% accurate, and the One Leg Stand is 65% accurate only when administered in the prescribed, standardized manner. Any change from the standardized manner will compromise the validity of the tests and make any result inaccurate. When not conducted properly it becomes an opinion test of the officer.

Therefore, these tests will inaccurately claim 23% – 35% of the people tested as intoxicated. Which when done incorrectly, which is the norm, can drop the accuracy to a frightening level.

What can affect my performance on field sobriety tests?

Even sober people can have difficulty with these tests, as stated by The National Highway Traffic Safety Administration. The reason is as the NHTSA has admitted, are several factors that affect every person, such as:

• Age
• Being ill
• The distraction of traffic
• The police car’s strobe lights
• Fatigued
• Footwear
• Lack of coordination
• Gusts of wind
• Weight
• Road or sidewalk conditions
• Allergies
• Scared
• Headlights of traffic
• Weather conditions
• Being nervousness
• Back problems
• Leg or knee problems
• Inner ear disorders

What is the State’s burden of proof to prove me guilty?

The State of Texas must prove your guilt “beyond a reasonable doubt”, which is the highest burden of proof in the justice system. It is not defined, by Texas law, but can be easily explained to a jury.

The lowest burden of proof is probable cause. That is how an officer can start an arrest.

The next highest burden of proof is a preponderance of the evidence. This is the amount of proof needed in civil courtrooms involving civil suits. A preponderance of the evidence is proof amounting to 51% or who can move the scales of justice.

The next highest burden of proof is clear and convincing evidence. This is the amount of proof that will cause a juror or judge to have a “firm belief” in the matter to be proved. This is used in custody cases. Most juries when they hear that the burden of proof is higher than that to take their kids away from them understand the high level of proof.

Beyond a Reasonable Doubt is the highest burden of proof. A jury must have more than that necessary to take your kids away in evidence that you were intoxicated before they could find you guilty. This is very simple, if a juror has a single doubt, based on reason, as to a person being intoxicated, they must follow the law and find them not guilty.

Do I have the right to an attorney before deciding whether to take a breath or blood test?

Texas law does not give you the right to speak with an attorney prior to making the decision of whether or not to take the field sobriety tests, the breath test or blood test. However, the law does not require you to perform any field sobriety tests or to take a blood or breath test so continue to ask for an attorney and refuse to cooperate and the likely chances of being found NOT GUILTY can increase!

How long will a DWI arrest stay on my record?

If you are convicted of the DWI, it will be on your record for life. Furthermore, a DWI conviction can be used for ten years to enhance your punishment of you are arrested for DWI again. If you are found Not Guilty, you can have the arrest and DWI charge “expunged” from your record.

Weatherford DWI Process Resources

Driving Under the Influence – Texas Department of Transportation (TxDOT) — Visit this website to learn more about DWI penalties. You can also find information on safety campaigns. There is also information about TxDOT, divisions, and the Traffic Safety Division.

Chapter 49 | Texas Penal Code | Intoxication and Alcoholic Beverage Offenses — View the state laws applying to all alcoholic beverage crimes in Texas. Additional crimes listed here include public intoxication, possession of alcoholic beverage in motor vehicle, and DWI with child passenger. You can also read about flying while intoxicated and boating while intoxicated as well as intoxication assault and intoxication manslaughter.

Find a DWI Lawyer in Weatherford, TX | Law Offices of Richard C. McConathy

Were you arrested for an alleged DWI offense in the Weatherford area? It will be imperative for you to quickly retain legal counsel.

The Law Offices of Richard C. McConathy regularly fights DWI charges all over North Texas and can work to possibly get your criminal charges reduced or dismissed. You can have us take a closer look at your case and discuss everything with you when calling (817) 458-3226 or contact us online to take advantage of a free consultation.