The Court of Criminal Appeals overruled Mr. Hood’s appeal of his conviction, which focused on the clearly compromised impartiality of the sitting judge. The basis for overturning the appeal was that Mr. Hood did not raise the issue of the affair in a timely fashion. The defense argued that they could not have raised the issue because at the time the appeal began they had no actual proof of the affair. Today, the editorial staff of the Dallas Morning News opined about the decision in an editorial entitled, “Justice Disgraced.”

The high court’s ruling is clearly a disgrace for no other reason that it cast a larger shadow on the Texas Criminal Justice System already suffering the strains of wrongful convictions and rampant prosecutorial misconduct ( i.e., Dallas fake drug scandal, DNA exoneration(s), etc.). For more information on the problems with the Texas Justice System see the Innocent Project.

What struck me most about the recent Hood case was the reaction from the Collin County District Attorney’s office where the prosecutor in charge of the appeal called the ruling a, “significant procedural victory.” That statement is appalling on its face as criminal justice should be about “justice” and not “procedural” wrangling such as in civil law. However, this attitude of “procedure” over “justice” is fast becoming a major problems spreading trough the Collin County District Attorney’s Office. My partner, Hunter Biederman, recently wrote about a similar issue we experience with prosecutors from Collin County. To read Hunter’s article click this link.

Prosecutors have an affirmative duty to not seek conviction but to do justice. This mandate is found in the Texas Code of Criminal Procedure Article 2.01 which reads, in part, “It shall be the primary duty of all prosecuting attorneys…not to convict, but to see that justice is done.” Don’t misunderstand the tone of this article. As a former prosecutor from Collin County I know that the majority of the prosecutors there are talented, ethical and conscious attorneys. However, as with any office, there are a few instances where individual prosecutors have lost there sense of purpose and have employed tactics that run counter to doing “justice.” Although, I will not name names (YET!) below please find a few situations that I have experienced with my clients where prosecutors have employed tactics that were counter to the interest of justice.

A client of mine was set for trial and faced two separate charges. On the day of trial, the prosecutor in charge realized that there was a problem with on of the charges because the charging instrument was deficient. When the judge denied his request for a continuance, the prosecutor dismissed the one charge against my client and we proceeded to trial on the other charge. Later that same day, the prosecutor then re-filed the charge that he had dismissed earlier in the morning.

So, instead of my client being found NOT GUILTY at trial due to the defect in the charging instrument, the prosecutor manipulated the procedural system to cover up HIS mistake and prejudice my client. When questioned by the judge regarding the law and as to why the case was dismissed and re-filed the same day, the prosecutor, on record, told the judge that he was unaware that his actions were counter to the law. In effect, he admitted that his own legal incompetency cased him to manipulate the legal system.

No justice was accomplished by the prosecutor’s actions. Instead, he cost more work for the court, forced my client to face two separate trials, and cost the taxpayers of Collin County.

Situation 2:

In a recent trial a prosecutor told the jury during closing statements that he was bound by Article 2.01 of the Texas Code of Criminal Procedure to “not seek a conviction but to do justice.” He further explained that it meant he as a prosecutor he could not mislead (lie) to them about the facts of any case. He then told the jury that my actions, as a defense attorney, had no such mandate. So, in essence defense attorneys are free to lie all the want to the jury. The only thing to prevent them from doing so was their own “moral compass.”

Now, since this was said during closing statements, I could not respond to the prosecutors charge that defense attorneys are free to lie to and mislead juries. (Prosecutors get the last word in jury arguments). However, had I been able to respond I would have pointed out two things to the jury and the prosecutor. First, ALL attorneys are deemed “officers of the court” in which they practice and are bound by ethics to conduct themselves in a professional manner and not mislead the court or juries. And second, the prosecutor should have flipped one page over in the Code of Criminal Procedure to Article 2.03 which states, “It is the duty…of the attorney representing the accused [defense attorney]…to so conduct themselves as to insure a fair trial for both the state and the defendant…”

Now, this prosecutor should have been aware of the above. But, since he knew I could not respond he took liberty to actively mislead the jury thus potentially denying my client a fair trial on the merits of the case. This type of behavior happens often during closing statements. In addition to what this prosecutor said, one typically will here things like, “the defendant had equal subpoena power” or “ you should convict the defendant because a kid that was killed two weeks ago by a drunk driver” These statements are counter to the constitution which explicitly states a citizen accused has no duty to produce evidence and professional ethics.

Situation 3:

This is the one that Hunter wrote about here in his blog. To recap, we were hired by a client to argue a motion for new trial because his attorney, who has been found ineffective twice before, committed acts prior and during his trial that were objectionable and may warrant a new trial. The court granted our request for a hearing on the motion. On the date of the hearing, the head misdemeanor prosecutor confronted us and said we needed to discuss a “procedural” matter with the judge. This well intentioned prosecutor informed us that basically we did not know the law regarding how to obtain a hearing on a motion for new trial. Further, he did not wish to “embarrass” us in front of our client so he requested that we discuss the issue ion chambers and off the record. We were then presented with case law that had NOTHING to do with the issues in our case.

We politely declined his offer to not embarrass us and instead requested to have this issue heard in court and on the record. Prosecutors know that if the issue was argued off the record and decided in chambers then we would not have a record to appeal should the judge rule in the state’s favor. The argument made by the prosecutor was that “procedure” demanded that the court could not hear our motion for new trial. It did NOT matter to him that a citizen may have received poor representation and that the prior trial was potentially flawed. The prosecutor DID NOT want the judge to even hear from the citizen concerning his complaints.

We have subsequently presented cases directly on point that states WE, not the prosecution are right on the procedural issue. In fact, instead of acting the way the State did (waiting until the hearing date after the time to amend was filing, and sandbagging with cases at the last minute), we sent copies of the cases on point weeks in advance. However, they still continue to fight to prevent this potentially wronged citizen from having his say in court as to whether JUSTICE demands he receive a new trial.

I guess this prosecutor is just looking for another “significant procedural victory” instead of justice. After all, they have done just that before!

I have had well over 70 trials in front of Judge Wheless in my career. In my humble opinion, Judge Wheless embodies the characteristics that we should all hope for in a judge. Judge Wheless has delivered justice when it was required, made difficult rulings without hesitation, always upheld the standards of law enforcement, and most importantly never lost his compassion for the individual accused.

In addition to his work as a county court judge, Judge Wheless has helped countless citizens overcome the burdens of addiction to get their lives back on track through his DWI / Drug Court Program. I personally have had numerous clients enter his program. The transformation that some have made with the help of Judge Wheless and his court staff through the Drug Court Program is amazing and should be recognized. I personally have witnessed lives that have been changed thanks to the hard work of all involved in the program.

Lastly, not only is Judge Wheless moving to the District Court but he is taking with him his fabulous court staff. Judge Wheless’ court staff includes; Court Coordinator, Melissa Andrews; Court Reporter, Angela Coker; and Bailiff, Bobby Chacon.

Melissa, Angela and Bobby are good friends and have always went out of their way to help attorneys, especially those who sometimes do things like forget a court date, accidentally sets hearings on a Saturday, or who tell juries to go to the “delivery” room and bring back a verdict. Sound familiar, guys? You three will be missed!

Good luck to Judge Wheless and his staff and congratulation to the citizens of Collin County. I have NO doubt that the new 366th District Court will be a court to be proud of.

ALR hearings are important because it gives you an opportunity to challenge the suspension of your driver's license. There are various ways to defend your driving privileges at an ALR hearing including, but not limited to, finding flaws in the State's paperwork, subpoenaing witnesses and cross-examining the arresting officers and/or technical supervisors about your case. A flaw in the State's paperwork, an absence of a subpoenaed witness or a proper cross-examination of a witness may defeat the State's ALR case against you and prevent the suspension of your driving rights.

In addition, an ALR hearing may provide the defense a chance to TKO the State's criminal case. For an explanation on how the State's criminal case may be defeated in an ALR hearing, see the post below from our Dallas DWI Blog.

Why ALR Hearings are Important: Because they can TKO the State's Case
by Troy Burleson

As we have reported here before, the first thing a person must do after his or her DWI arrest is to request an ALR hearing. This MUST be done within 15 days of your arrest. For more explanation on the ALR process see our former post.

Clients often ask why an ALR hearing is important for good reason. Most attorneys put little effort into the ALR process because they see them as lost causes. State-wide, people lose about 85% of ALR hearings. At our office, we WIN close to 60% of our ALR hearings. The reason we have such a high success rate (60% compared to the state average of 15%) is because of our aggressive tactics in these hearings.

TKO'ing the State's Criminal Case at an ALR Hearing.

Last week, one of our client's was found NOT GUILTY of a DWI. The client in this case gave a breath sample of .170 which is over twice the legal limit of 0.08 AND admitted to the officer that he was intoxicated.

How did we get a not guilty verdict? Because we destroyed the State's case during the ALR hearing. Here are some things you need to know about the ALR hearing:

1) They are mini-trials. We get to cross examine the officer about the facts of your arrest;

2) The testimony is given under oath. This means that whatever the officer testifies to in the ALR hearing is under oath and on the record. Therefore, we can pin the officer's testimony down in the ALR hearing. If he/she changes their story at the criminal trial, we can use the ALR transcript to impeach the officer;

3) The officer has not been "coached" by the prosecutors yet at the ALR hearing. The criminal prosecutors do not handle ALR hearings for the State. An attorney for the DPS does. Typically, the state's prosecutor will meet with officers prior to the criminal trial to go over the facts of the case and "remind" the officers of certain facts. In other words, coach the officer on what to say on the stand. This is not the case in the ALR hearing. As such, the defense has a tremendous advantage in these hearing because we get to cross-examine the officer before he/she has been coached by the state.

How Did the ALR Hearing Allow Our Client to Be Found Not Guilty?

My partner, Hunter Biederman, handled the ALR hearing is this particular case. Hunter reviewed the police report prior to the hearing and found that the officer made a huge mistake. In the report, the officer’s only listed reason for stopping our client was that he failed to stop behind a designated line at a stop sign. Hunter then reviewed the video and saw that the officer was correct, our client did not stop and the designated stop line. However, there was a crosswalk and our client DID STOP behind the crosswalk.

Hunter then did a little legal research and discovered that our client committed no violation of the law. Under Texas law, as long as you stop behind a crosswalk there is no violation. Therefore, the officer made a mistake of law. As such, this was an illegal stop and, under the law, any evidence gathered against our client (including the breath test) would be inadmissible in trial.

Hunter cross examined the officer at the ALR hearing about the stop and got her to admit that our client stopped behind the crosswalk and that there were no other traffic violations that would warrant stopping the client. We then got the ALR transcript and set the case for a jury trial.

What Happened at Trial?

On the day of trial we filed a Motion to Suppress all evidence against our client due to an illegal stop. In the motion, we presented the court with the ALR transcript and law regarding stop signs and crosswalks (Section 544.010(c) of the Texas Transportation Code). We then had a hearing on the motion.

The State tried to "Coach" the Officer but it was TOO LATE

Once the State read our motion, they meet with the officer and tried to figure out a way around the officer's prior testimony. The State tried to have the officer offer an alternative reason as to why she stopped our client. After the State's presentation, the trial judge read the ALR transcript and dismissed the State's argument.

As a result, the judge granted our motion and suppressed all evidence gathered during our client's illegal stop, including the breath test result. Thus, the State had no evidence against our client and he was found NOT GUILTY.

What Would Have Happened Without the ALR HEARING?

If my partner, Hunter Biederman, would not have fought as hard in the ALR hearing, the results would have been much different. The State, most likely, would have coached the officer prior to trial and the officer would have offered an alternative excuse for why she stopped our client. However, since we had pinned her testimony down at the ALR hearing, this was not an option for the State. Our client was found NOT GUILTY because of how we handled the ALR hearing. So, don't let anyone tell you that ALR hearings are not important. Our client would beg to differ. After being TKO’d on a breath test case, the State would disagree as well.

From Collin County DWI Attorneys

Charged with DWI in Texas: Here is a quick review of the Texas DWI Laws

Classification of DWI under Texas Law: Texas Penal Code §49.04.
Under Texas Law, an offense for Driving While Intoxicated (DWI) can be classified many ways depending on the facts surrounding the arrest for drunk driving and the prior criminal history of the accused. The Classifications of DWI under Texas Law are as follows:
• DWI, First Offense: Class B Misdemeanor
• DWI, Second Offense: Class A Misdemeanor
• DWI, Third Offense (or more): Third Degree Felony
• Intoxicated Assault: Third Degree Felony

First Offense DWI: Class B Misdemeanor: Texas Penal Code §49.04
A first offense or Driving While Intoxicated is a class B misdemeanor and defined by Texas Penal Code § 49.04. Under Texas Law, the State must prove the following elements beyond a reasonable doubt to convict a person of driving while intoxicated:
1. The defendant;
2. On or about a certain date;
3. Operated a motor vehicle;
4. In a public place;
5. In a particular county in the State of Texas;
6. While Intoxicated.

Definition of “Intoxication” under Texas Law
The most commonly disputed element in a DWI trial is the “while intoxicated” element. The State of Texas has defined “Intoxication” as [Texas Penal Code §49.01(2)]:
1. “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
2. “having an alcohol concentration of 0.08 or more.”

Therefore, the State may prove a person is “intoxicated” for the purposes of a DWI conviction in three (3) different ways:
1. not having the normal use of physical faculties OR
2. not having the normal use of mental faculties OR
3. having an alcohol concentration of 0.08 or more.

It is important to note that a jury does not have to reach a unanimous decision on the manner or means of intoxication. Therefore, the jury does not have to agree how a person is intoxicated, only that they all agree the defendant is intoxicated by one of the three ways above. BUT, it is important to remember that the State must prove a person is intoxicated at the time of driving. This can sometimes be a problem for the State when a long period of time elapses between when a person was arrested and when sobriety tests were preformed.

1st Offense DWI: Class B Misdemeanor: Range of Punishment and Consequences.

The punishment for a first offense DWI is:
• A fine not to exceed $2,000.
• Confinement in the County Jail for a term not less than 72 hours and not more than 180 days.
NOTE: Most people convicted of a first DWI offense are granted community supervision (“probation”) instead of serving time in the County Jail. Generally, probation can last anywhere from 12 to 24 months. If you are granted community supervision in your case, the following conditions could apply:
• Not less than 24 hours of community service nor more than 100 hours.
• Drug and/or Alcohol evaluation and any conditions associated with that evaluation.
• Complete a DWI Education course within 180 days for the date of conviction.
• Attend and complete a M.A.D.D. Victim Impact Panel.
• Maintain suitable employment, commit no other crimes, and remain at the same residence and employment unless notification is given to the community supervision officer.
• Report monthly to the supervision office and pay a monthly supervisory fee (usually between $40-$60).
• Pay all fines and costs in a timely manner.
If your case involves certain “bad facts” then additionally conditions may be imposed as well. “Bad Fact” cases are those which involve either a high level of intoxication, dangerous driving facts, or prior criminal history. In these types of cases, a judge in his or her discretion may impose the following conditions:
• Deep lung air device: This condition requires you to install and maintain a device on your vehicle. The device requires a breath sample before it will allow your car to start. In addition, these devices may require you to give periodic breath samples while your car is running.
• Restitution: If you are involved in an accident, the court may require you to pay restitution for damages not covered by insurance.
• Confinement: Even if you are given community supervision, the court may require you to be confined in the County Jail as a condition of your probation. In some cases, judges will require a defendant to go to jail for 3 to 5 days as a condition prior to being placed on probation.
• Alcohol Treatment: The court may order a person to attend AA or other counseling programs during probation. This condition is usually ordered if you have an unfavorable drug or alcohol evaluation.
• No Alcohol: Some courts require a person not to consume any alcohol during the period of community supervision. Courts monitor this condition by requiring a person to submit to random urinalysis.

2nd Offense DWI: Class A Misdemeanor.
Under Texas Law, if it is shown that a person has been previously convicted of DWI, the punishment and penalties after the conviction are increased or enhanced. NOTE: Texas can use prior convictions that occurred in a different state to enhance a Texas DWI.

The punishment for a second offense DWI is:
• A fine not to exceed $4,000.
• Confinement in the County Jail for a term not less that 30 days or more than one (1) year.
• 80 to 200 hours of community service.
• A Deep Lung Device is typically required for all DWI second offenders.
• A possible driver’s license suspension of 180 days to two (2) years.
• T & C Jail Time: Texas law requires that a person serve some time in jail for a second offense DWI even is he or she is granted community supervision. This is known as “T&C” time or “Terms and Conditions” or probation time. T&C time can be up to 30 days. However, most courts impose five (5) days of T&C time if your prior DWI is less than five (5) years old and three (3) days T&C time if your prior DWI is grater that five (5) years old.
• NOTE: Condition of Bond: Most courts will require a person who has been charged with a second DWI offense to install a deep lung device on his or her vehicle as a condition of bond. This means that in order to get a bond and be release from jail, a person must install a deep lung device on his or her car and it must remain there while the case is pending or until the judge orders that it can be removed.

Third Offense (or greater) DWI: Third Degree Felony.
The Punishment for a third offense (or greater) DWI is:
• A fine not to exceed $10,000.
• Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less that two (2) years nor more that ten (10) years.
• A Deep Lung Device is generally order as a condition of bond and as a condition of any occupational or provisional license that may be awarded after a conviction for Felony DWI.
• A possible driver’s license suspension of 180 days to two (2) years.
• SAFP: Substance Abuse Felony Probation. The court may order mandatory rehabilitative treatment for people convicted of felony DWI. This treatment may be imposed as an alternative to serving time in the penitentiary. SAFP is an in-patient; incarceration program ran by the state of Texas. This program requires confinement in a state facility for alcohol rehabilitation. After completing the SAFP program, the person is then released and placed on probation for a term not to exceed ten (10) years.

WHAT HAPPENS AFTER A CRIME IS COMMITTED?

After a crime is committed, the preliminary investi- gation by a law enforcement agency generally begins when responding officers arrive at the scene of the incident. Emergency matters are handled and the crime scene secured. In most cases an officer will meet with the victim in person to obtain important information concerning the crime. Witnesses are questioned. Any suspect at the scene is detained, questioned, and then released or arrested, depending on the circumstances. Additional responsibilities during the preliminary investigation may include: photo-graphing, videotaping, measuring and sketching the scene; searching for evidence; identifying, collecting, examining, and processing physical evidence; and recording all observations and statements in notes.

Despite a thorough preliminary investigation, many cases require a follow-up investigation to close the case, arrest an offender, and/or recover weapons or stolen pro-perty. The follow-up investigation can be conducted by the officers who responded to the original call or, most often, by detectives. Investigative leads that may need to be followed-up include: checking the victim’s background; determining who would benefit from the crime and who had knowledge to plan the crime; tracing weapons and stolen property; and searching modus operandi (manner of operation), mug shot, and fingerprint files. Petty thefts and like misdemeanors will obviously not receive the same in-depth investigation as a major crime like murder or sexual assault.

After the law enforcement agency has completed its investigation, the case may be filed with the prosecuting attorney for review and, if appropriate, criminal prosecution. The prosecuting attorney considers such matters as the legality of the arrest, whether certain evidence essential to the case was legally obtained, and/or whether additional investigation is required. Depending on the facts and law involved, the prosecuting attorney may: accept the case for prosecution as filed; increase/reduce the charge filed; file additional/different charges; return the case for further investigation; or reject the case for prosecution.

WHAT ARE THE RIGHTS OF THE PERSON ARRESTED?

The person making an arrest is required without unnecessary delay to take the person arrested before a magistrate. The magistrate is required to inform in clear language the person arrested of: (1) the accusation against the person arrested and of any affidavit filed therewith; (2) the right to retain counsel; (3) the right to remain silent; (4) the right to have an attorney present during any interview with peace officers or attorneys representing the state; (5) the right to terminate the interview at any time; (6) the right to request the appointment of counsel if the person arrested is indigent and cannot afford counsel; (7) the right to have an examining trial; and (8) the person arrested is not required to make a statement and any statement made may be used against the person arrested. The magistrate is also required to allow the accused reasonable time and opportunity to consult counsel and to be admitted to bail if allowed by law.

A peace officer who is charging a person with committing an offense that is a class C misdemeanor (other than public intoxication), may, instead of taking the person before a magistrate, issue a citation (ticket) to the person that contains written notice of the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged.

Additional rights of an accused in a criminal prosecution include: the presumption of innocence until proven guilty be-yond a reasonable doubt; the right against self-incrimination; the right to not be prosecuted for a felony unless indicted by a grand jury; the right to a copy of the accusation and a speedy trial by an impartial jury; the right to confront (cross-examine) the witnesses and to have compulsory process (subpoena) for obtaining witnesses, and the right of appeal.

The defendant in a criminal prosecution for any offense may waive any rights secured him/her by law. It should be noted, however, that in a capital felony prosecution in which the prosecutor notifies the court and the defendant that the state will seek the death penalty, the defendant does not have the right to waive trial by jury.

If you or someone you love has been arrested for DWI in Texas then you probably have many questions you need answered. DWI is a complicated law with many provisions that sometime confuse even the best of lawyers. This article’s purpose is to give you some basis information about the DWI process in Texas.

The first thing you need to understand is that DWI is a crime. A DWI charge caries penalties that may include license suspension and the possibility of being placed in jail for up to 180 days. Because one of the main causes of injury and death on Texas highways is DWI, the state legislature wrote the DWI laws to carry stiff punishment.

It is important to remember that it is not a crime to drink alcohol and drive. Responsible social drinking is not against the laws of the state of Texas. Drinking and driving only becomes a crime when a person consumes too much alcohol and loses his or her normal ability to safely operate a vehicle. Therefore, anytime you intend to consume alcohol ad the drive, you have a responsibility to do so responsibly so that no one is endangered by your conduct.

The stop is the beginning of a DWI. Usually, a stop occurs because an officer observes a traffic violation. This violation establishes the “reasonable suspicion” that is required under the law before a police office has the authority to stop and detain a person. The majority of DWI stops in Texas are for minor violations such as: failure to use signal when changing lanes or turning, speeding, failure to maintain your lane of traffic, etc.

Once an officer conducts a stop, the driver is requested to produce both a valid Texas driver’s license and proof of insurance. However, before you produce this information, the officer should first identify himself and inform you of the reason for stopping you (i.e. the reasonable suspicion).

Under both the laws of the United States and the state of Texas, you have a right to remain silent IF:
1. your freedom is being detained by law enforcement ; and
2. the officer is investigating a possible crime.

Although you have these rights as a citizen, the law DOES NOT require the officer inform you of these rights at this point of an investigation. Therefore, the best approach when an officer begins questioning you is to politely ask the officer if you are being investigated for a crime. If he or she says “yes” the politely say you are going to exercise your right to remain silent and request an attorney. Why? Because more it is more likely that not that once an officer begins to question you about a crime he or she will end up charging you with something. Therefore, if you are going to be eventually charged anyway, why help them in their investigation. Be silent, respectful and then contact an attorney ASAP.

Officers habitually ask if you have been drinking. Your answer will be noted and used against you if you are arrested for DWI. Clients commonly ask, “What should I say?” when asked if they have been drinking by an officer. It is my opinion that you should say, as mentioned above, “Officer, am I being investigated for a crime?” This will allow the officer the opportunity to explain why your sobriety may be in question. The officer’s response will determine what will happen next during your stop.

If the officer detects an odor of alcohol, sees alcohol in your car, or you admit you have been drinking, you can expect to be investigated further, and most likely charged, for DWI. If your sobriety is questioned, you will be asked to exit you car and “prove that you are sober.”

Field Sobriety Testing

The National Highway Traffic Safety Administration (NHTSA) has developed “Standard Field Sobriety Tests” (SFST) for officers to use in their DWI evaluations. The SFST consist of a battery of three exercises or tests: 1) Horizontal Gaze Nystagmus, 2) Walk and Turn, and 3) One Leg Stand. These tests are composed of a set of specific instructions, specific observations (or “clues”) for the officer to look for, and a standard grading system to determine whether or not the officer should arrest you for DWI.

The SFST are to be administered in a standardized manner. If an officer deviates in the observation, explanation, or administration of the SFST then the tests could be compromised. Additionally, even though the SFST are standardized they are subjective and depend greatly on the integrity of the officer to strictly adhere to the standardized protocol of these tests.

If the officer observes enough “clues” on the SFST, you will be placed under arrest for DWI. You will be handcuffed and placed in a police car and transported to the appropriate jail. At the jail, you can expect to be read your Miranda rights.

Videotaping of the Investigation and Arrest

The law now requires police agencies to have video equipment in their squad cars. However, there is no law that mandates that a DWI investigation or arrest must be videotaped. But, the majority of DWI investigations and arrests are videotaped. These tapes must be turned over to the defense attorney during the discovery process.

In addition to videotaping, officers are equipped with a “body mike” to capture the entire traffic stop. Once you are arrested, a microphone is activated in the squad car. This microphone will capture all conversations within the squad car until you arrive at the jail facility.

What Happens at the Jail

Once at the jail, you will be “reported” or entered into the jail inventory system so there will be a record of your presence. This record is public information and may be accesses by the public at large. Then, your property will be removes and you will be searched to insure there are no illegal substances or weapons on your person. Also, you may or may not be re-read your Miranda rights.

Once the initial “book in” process is complete, you will be taken into the “Intoxilyzer Room.” This room is designed specifically for the investigation and interrogation of persons arrested for DWI. The Intoxilyzer Room usually has lines painted on the floor and walls to provide a reference point for any sway or rocking that the suspect may exhibit. Officers may, but are not required to, offer the person arrested another opportunity to complete the SFST.

Intoxilyzer Room Procedure

The first thing that should happen in the Intoxilyzer Room is that the officer should inform you that you are being videotaped and recorded. Although you have been handcuffed, transported to jail, booked in, and are entitled to your constitutional rights, the officer is still not required to inform you of your rights. Courts have held that a videotape is only a picture of the evens as they happened and are not “investigatory” of a crime. If your case goes to trial, both the squad video and the Intoxilyzer Room video will be used by the prosecution against you to attempt to convince a jury that you is guilty of DWI.

Once in the room, you should be provided orally and in writing with the penalties under Texas law for either not giving a breath/blood test or taking one that indicates an alcohol concentration at or above 0.08. If you take a breath or blood test and have a concentration below the legal limit of 0.08, YOU STILL MAY BE CHARGED WITH DWI. Passing a blood or breath test DOES NOT mean that you will be released from jail and have your charges dismissed.

Texas law holds that a person arrested for DWI does not have a right to consult an attorney to decide whether or not to take a breath or blood test. Texas is an “implied consent” state. This means that all licensed Texas motorists have implied that they would consent to a breath or blood test if there is a reasonable suspicion to stop them, probable cause to believe that they were driving while intoxicated, and they are properly advised of the consequences of their action. This does NOT mean that you MUST give a blood or breath sample. It means that if you refuse to give such sample you MAY lose your driving privileges for a period of time.

It is important to understand that anything other than a “valid breath test” will be considered as a refusal under Texas law. If you attempt to take the test and are unable to complete the test for any reason, it is deemed a “refusal” under Texas law. Additionally, asking to speak with an attorney before making this important decision is also considered a “refusal” for license suspension purposes.

While in the Intoxilyzer Room, you may be asked to perform several other exercises to evaluate your sobriety even though the officer has already determined you are intoxicated. These tests may be the SFST or other tests such as reciting your alphabet between certain letters and counting forward or backward between two numbers. Again, you have a right not to participate in these exercises and the officer has no legal duty to inform you of this important right to refuse.

If you decide to take a breath test it will be done in the Intoxilyzer Room. Before you give a test, the operator is required to be in your presence for at least 15 minutes to make sure that you do not place anything in your mouth that could invalidate the breath test.

Breath Testing

If you consent to a breath test, the first step is the operator will enter your information into the machine. Then you will be asked to blow into the end of the breath tube. The machine requires a 4 second continuous breath for a proper sample. While you are blowing, you should hear a tone emitting from the machine. This tone indicates you are blowing with sufficient pressure to give a valid sample. The breath test requires two samples of your breath for a valid test.

After your first breath sample, the machine will perform an analysis on a “reference sample” to test whether or not the machine is operating within a given margin or error. The allowable margin of error for the “reference sample” is 0.010 (12.5%). The two breath sample that you provide must be within +/- 0.020 (25%) for a valid test.

Once the test is complete, the results will be printed and included in your police file. The officer may or may not tell you the results of your breath test. However, the results can be retrieved by your attorney during the discovery process.

Confinement and Release from Jail

Once the investigation is complete, you will be booked into the jail facility. At that time you will be ordered to change into a jail outfit and assigned a cell either alone or with others. You will remain there until you are taken before a magistrate or judge to determine the amount of bond required before you may be release form jail. Generally, your bond will be set the morning after your arrest. Some jails have magistrates at the facility 24 hours a day. If this is the case, your bond will be set earlier. Smaller suburban jails may elect to transport you to a county jail facility to appear before a judge or magistrate.

If you don’t want to wait to be taken before a judge, you or a friend must contact an attorney to post a “Writ of Habeas Corpus” to set your bond without a judge. This option is not available in all counties and for all defendants especially those defendants with prior criminal records.

Your bond will be set at a certain amount. Someone must then post this amount before you are released. If you or a friend has enough cash then you can post the bond yourself in the form of a cash bond. If you do not have enough cash, then a bondsman may be used to post the bond. The bondsman will charge a fee to “loan” you the money for your release.

A bond is a promise that you will appear at all court dates in exchange for you being released from custody. Failure to appear at any court date could result in your bond being forfeited and a warrant issued for your arrest.

It may take several hours for you to be release from jail. The length of time before you are release depends on many different circumstances. It is important to keep your composure and remain patient during the process.

After You are Released

The first thing that must be done after your release in to request and Administrative Hearing to prevent your driver’s license from being AUTOMATICALLY SUSPENDED. You have 15 DAYS from the date of your release to request this hearing. If you do not request this hearing your LICENSE WILL BE AUTOMATICALLY SUSPENDED effective on the 40th day after your arrest.

Prior to your release you should have been given instructions on how to request an Administrative Hearing. However, the rules on requesting these hearings are complex and somewhat tricky. Our office PROVIDED FREE ASSISTANCE to HELP PRESERVE your DRIVING RIGHTS. If you need help with requesting an Administrative Hearing PLEASE CONTACT OUR OFFICE at (866) 439-2182.

After dealing with the Administrative Hearing, your next step should be to seek an attorney to advise you of what to do in your case. DWI has very complex laws and legal issues. The attorney you choose should be very familiar with the DWI laws. Additionally, each county has its own way of doing things as do the different courts within the county. Therefore, choosing an attorney who is familiar with the procedures of the courts and the counties where you are charged will benefit you greatly in resolving your case. It is extremely important to consult an attorney as quickly as possible after your arrest. Our Office DOES NOT CHARGE for initial consultations. For a FREE EVALUATION or your case please call (866) 439-2182 for a NO COST, NO OBLIGATION consultation and evaluation of you case.

The Legal System

A person charged with DWI in Texas will face two “prosecutions.” The first is a civil proceeding known as an Administrative License Revocation (ALR) Hearing. This proceeding is conducted by the State Office of Administrative Hearings by a magistrate and prosecuted by the attorneys with the Texas Department of Public Safety (DPS). At this hearing it will be determined whether of not your license is suspended, and if so, for how long.

The second prosecution is the criminal one for the crime of DWI. Under Texas law, a first offense DWI is a Class B misdemeanor and is prosecuted in the county in which you are arrested. The criminal prosecution is completely separate and distinct from the civil prosecution. The outcome of one DOES NOT affect the outcome or result of the other. A first offense DWI carries a penalty of 72 hours to 180 days in jail and a fine not to exceed $2,000.00.

Depending on the county of your arrest, the prosecution may begin immediately or it may be delayed. Different counties and courts operate at different speeds. Typically, cases may be disposed of in 3 to 9 months. However, some cases take mush longer depending on several factors. It is not uncommon for a case that is set for trial to take over one year before the trial actually begins. You will receive a notice of your first appearance by mail at the address furnished to the arresting office on the night of your arrest.

Administrative License Revocation Hearing (ALR)

REMEMBER: You must request this hearing within 15 days of your arrest or your driving privileges will be automatically suspended. Once this hearing is requested, you will be given a date for your hearing. Since this is a civil hearing, your presence is not required at this hearing but you may attend if you wish. This hearing involves the civil law surrounding the documents submitted for the suspension of your license. In addition to the documents, live testimony from the arresting officer, Intoxilyzer officer, and the technical supervisor of the Intoxilyzer may be involved. The ALR hearing involves a very specific area of law, therefore, it is not advised that you attempt to handle this hearing without an attorney if you want to save your license from being suspended.

At the hearing, a DPS attorney will attempt to introduce evidence to support to proposition that the officer had 1) a reasonable suspicion to stop you, 2) probable cause to believe you were driving while intoxicated, and 3) if you did not take a blood or breath test the DPS must show that you were offered one of these tests and that your “refused.” If you did take a blood or breath test and scored at or above the legal limit of 0.08, the DPS must introduce additional documents to establish that the Intoxilyzer was working properly and capable of giving a valid result.

If the DPS can prove its’ case by a “preponderance of evidence” (this means “more likely than not’), your license will be suspended. If the DPS cannot prove any element of its’ case then your license will not be suspended and, if the officer kept your driver’s license the day of your arrest, it will be returned to you within a few weeks. Also, if you do not want to wait for your license to be returned, then you are free to apply for and receive a new license from DPS.

Occupational Drivers License

If your license is suspended as a result of the ALR Hearing and you do not have a prior history of license suspensions, you may be entitles to receive a temporary driver’s permit known as an “Occupational Drivers License.” Under Texas law, a judge in his or her discretion may grant an ODL that will allow you to drive to work, school and for other essential household duties. An ODL will allow you restricted driving privileges for up to 12 hours a day and only in counties in which you demonstrate there is a need for you to drive.

Before you may be granted an ODL, Texas law also requires you to obtain what is known as a SR-22 Insurance Policy. This policy is a type of “high risk” police that you are required to maintain for the duration of your license suspension period. This policy, and the ORDER GRANTING OCCUPATIONAL LICENSE must be with you at all times when you are driving. If you are stopped and do not have a copy of your SR-22 policy or if you are driving in violation of the provisions contained in your ODL, then you may be subjected for further criminal penalties.

Once your suspension period is over, you will no longer be required o maintain the SR-22 policy. Additionally, your license will be returned to you or you may apply for a new license at your local DPS office.

PLAN ON TRAVELING OUT OF STATE: Texas judges cannot authorize driving in other states. If you plan on boarding an airplane, traveling out of the country or renting a car you should obtain a Texas identification car at the DPS.

The Criminal Prosecution of DWI

In Texas, a first offense DWI is a Class B Misdemeanor that carries a range of punishment of not less than 72 hours or more than 180 days confinement in the county jail, a fine not to exceed $2,000.00 or any combination of fine and jail time. The good news is that most DWI offenders never go back to jail after the night of there arrest. Typically, people convicted of DWI are placed on probation for a period of 12-24 months. As long as the person complied with the terms and conditions of his or her probation, no more jail time occurs.

Do not expect to resolve your DWI case at your first court appearance. Several court appearances usually occur before your case is disposed. The first setting (First Appearance) is for you to inform the court whether or not you have hired an attorney or if you want to apply for a court appointed attorney.

The next few settings are known as Announcement settings. An Announcement basically means that you show up and update the court on whether you are read to plea or set your case for trial. If you are not ready to do either, then you simply inform the court that you are still investigating your case and are not ready to plea or set it for trial. During these Announcement settings, the prosecutors and defense attorneys meet to discuss the case.
The prosecution is required to share certain information with the defense counsel. But, the defense is under no duty to provide any information to the prosecution. During these settings, your attorney should request and obtain all police reports and videos that will be used against your in the prosecutions case in chief.

At these settings, your attorney should carefully review all documents in the court’s file to determine if there are any defects on the documents. Some defects can even result in the complete dismissal of all the charges against you.

Plea Bargain: A Plea of Guilty

If you not to fight your case and plead guilty and enter a plea bargain agreement, your attorney should ensure that you thoroughly understand all the terms and conditions of your agreement. As previously mentioned, most DWI convictions result in probation being offered. If you are offered probation then the typical terms and conditions of probation usually include: 1) testing for possible alcohol or drug problems, 2) completion of a 12 hour DWI Education program, 3) mandatory attendance at a 3 hour session of a Victim Impact Panel conducted by Mothers Against Drunk Driving, and 4) Community Service of between 24 to 100 hours.

If you decide to plea bargain your case, you will be asked to waive (give up): 1) the right to a jury trial, right to confront your accusers and the tight to remain silent and 2) the right to Appeal your conviction. After your sign formal documents which show you are knowingly and intelligently waiving your rights, you will formally appear before a judge to enter your plea. This judge must be sure that you are voluntarily and intelligently waiving your rights before your plea will be accepted. Once the agreement is accepted, you will be given specific provisions for your probation and meet with a probation officer to discuss exactly what is expected of you during your probationary period.

Once the judge finds you guilty, a record of your conviction will be made and forwarded to the DPS. A record of your conviction will be maintained by DPS and will also be forwarded to the Federal Bureau of Investigations so that you can be monitored locally and nationally. A DWI conviction will remain on your record permanently. A conviction for DWI cannot be expunged of Non-Disclosed unless you are pardoned by the Governor or President.

Trial

Only a small percentage (12%) of DWI cases is disposed of by a trial. ONLY THE PERSON ACCUSSED can decide whether or not the case goes to trial. If you plan on taking your case to trial you should be sure that the attorney you hire has ACTUAL TRIAL EXPERIENCE in DWI cases. Not all attorneys, even criminal attorneys, have extensive trial experience. Trial skills are hard to learn and nothing beats experience when your future and freedom is at stake.

A good attorney should give you a personal evaluation of your case’s strengths and weaknesses. The attorney should explain the legal reasons (if any) and the factual reason why a judge or jury may find you not guilty. MOST IMPORTANTLY, an attorney should never give you a guarantee concerning the outcome of your case. Trials can be won or lost for a multitude or reasons, most of which may not be foreseeable. An attorney’s job is to gather all relevant evidence, properly evaluate your case, then to give you his or her professional opinion concerning the possible outcome. Once your attorney gives you this information, the ONLY YOU can decide to proceed with trial or not.

It is important to note that in most DWI cases the punishment is not increased if you elect to go to trial. In fact, judges and/or juries typically give less punishment if you are found guilty that what the prosecution offers for a plea bargain. The reason for this is because with a trial both the judge and the jury will be fully aware of the facts and circumstances surrounding your accusation. In a plea bargain agreement, the facts are not disclosed except under limited circumstances.

How Much will an Attorney Cost

Not all clients want to take there cases to trial. However, other clients have no other option that trial because of the punishment offered or because there is a possibility they may lose their jobs or livelihood, etc. Because we specialize in defending DWI cases, the vast majority of our clients DWI cases. All DWI cases are similar in many ways, however, individual facts and circumstances may make the defense of our client more or less complicated. Because of this, our representation is designed with the client in mind. Our fees are therefore structured so that you need to pay only for the services that you desire and require. Our office does not charge by the hour. Instead, we charge a flat rate based on the type and amount of work required by the individual client. These fees are discussed fully and openly at the initial consultation with each client.

Initial Office Consultation

Our office DOES NOT charge for our initial client interview. This meeting lasts about one hour. It is uninterrupted time one on one with an attorney who knows the DWI laws. In this meeting we will take a detailed factual statement from you to learn your version of your stop, arrest and detention. You story is a critical piece of your “DWI puzzle” and is the basis with which we begin to formulate your defense. We also explain all the DWI laws that apply to your case, the options available for disposition and the services that we can provide. This meeting is completely confidential and you are under no obligation to hire our office after it is over. However, even if you don’t hire us, you will leave with a better understanding of the law and what to expect, prepare for, and not to worry about in regard to your case.

Fee for the Criminal Defense of DWI

This is the majority of the work performed on your case. As explained in the interview, there are three major parts of your DWI “puzzle”: 1) Your side of the story 2) the police version and 3) the videotapes. If you took a breath test, there is a forth piece: the maintenance history of the machine used in your case. Once these “pieces” are gathered, we then put them together to see what type of “picture” you case represents. At this time, we begin looking for the legal or factual issues that we can attack to prevent you from being convicted or to formulate reasonable doubt about your guilt.

Additionally, during this time in your representation we carefully review the official charging documents and the court’s file of your case. We look for mistakes that are sometimes made that may result in the complete dismissal of your case. If there is a mistake that would warrant a dismissal of the charges against you, we will find it.

We also begin interacting with the District Attorney assigned to your case to obtain all discoverable information in your case. We gather all facts that support your version of the traffic stop, field sobriety testing, testing conditions, interrogation and videotaping. Also, we begin to develop a strategy to combat facts that are unfavorable to your defense.

While we are interacting with the District Attorney’s office we begin to discuss a recommendation for a plea bargain disposition of your case. This is done as an “insurance policy” on your case. Whatever we negotiate will be the worst possible outcome of your case and will only get better as your case proceeds through the system.

We will then retrieve all videos of your arrest. In some cases there are videos at the scene of your stop and videos at the jail. We will get copies of any and all videos taken of you during your arrest.

After all of your information has been gathered, we will meet again for an in-office review of all the evidence and discuss the options for disposition of your case. We will review all reports, videotapes and negotiations with the District Attorney. In this meeting we can tell you what to expect if you enter a plea bargain agreement and your chances of winning if you select a trial.

If you elect to “plead” you case, this fee included our appearance with you in Court before the judge. At that hearing we will continue to negotiate your punishment in anyway we can. We will appear before the judge and again try and obtain any further concessions that may be possible. Our office will remain available throughout your probation to assist you in successfully completing all conditions ordered.

Trial Fee
Not all clients require this fee or want a trial. Our office handles approximately 20 to 30 trials each year. Preparing for and representing a full trial on the merits takes considerable time and effort that is not requires with any other representation.

There are many trials set on the same date. On the court date, the court will select which case is to be tried. The others will be reset for another “trial date.” Because of this practice, as your attorney, we must be prepared for each trial date and block off time for your case to be tried. A typical trial will last 1-2 days. This time may vary depending on your facts and the court where your case is tried. While we are in court, we have no other clients. We will be with you from beginning to end. This helps many clients as trials are an anxious time if you have never been through one before.

Trial skills are learned through experience and training. The attorneys at our office have hundred of actual trials of experience under their belt. This experience is a valuable asset for you in your defense and simply cannot be taken for granted.

Conclusion
Being arrested or accused of DWI is a frightening experience for anyone. Most DWI offenders have never been through this process. Our office specialized in defending DWI cases. In limiting our practice to this area of law, we are able to stay current and familiar with all of the nuances enacted each year by the legislature. To schedule an appointment of for more information please contact our office at (866) 439-2182.

Unlike Texas, most other states call their major drunk driving offense a DUI not a DWI. So, it is easy to confuse the two crimes. The most important difference is that a DUI in Texas is available only for someone who is under 21 years of age. In addition, police do not have to prove you are intoxicated to charge you with DUI. The officer only has to detect the presence of alcohol. This is usually done by the officer smelling alcohol on a person's breath.

For a more in-depth article about the difference between DUI and DWI, see the article below by Hunter Biederman

What is the Difference between DWI and DUI in Texas?

In Texas, DWI, or Driving While Intoxicated (1st), is a crime that can carry with it up to 180 days in jail, and up to a $2,000 fine. DWI carries with it a harsher punishment and penalties than DUI. In order for the state to convict someone of DWI, they must prove that the driver of a motor vehicle either had above a .08 BAC, or lost the normal use of their mental or physical faculties due to the introduction of alcohol, a drug, or a combination of the two. You can receive a DWI at any age (above or below 21). With each conviction, the punishment & ramifications of a conviction go up.

In Texas, DUI, or Driving Under the Influence is a crime that can only be committed by a minor under 21. The controlling statute is the Alcohol Beverage Code § 106.041. In order for the state to prove that you are Driving Under the Influence of Alcohol, the state must prove you were a motor vehicle in a public place while having any detectable amount of alcohol in the minor's system. BUT, if the police believe that you are above a .08 BAC, or you have lost the normal use of your mental or physical faculties, you may end up getting arrested for DWI, the more serious of the two crimes.

I have created the chart below to help explain the differences. No matter which crime you are charged with, DWI or DUI, the ramifications can be extraordinary. This is especially true for what can happen outside of the punishment ranges. Drivers License suspensions, future loans or employers, may see your record, and future criminal proceedings may be enhanced.

DWI (1st)

AGE: Under 21 or Over 21
Not Having Normal Use of Mental or Physical Faculties (while driving)
Offense Level: Class "B" Misdemeanor
Punishment Range: 72 hours - 180 days Jail, Up to $2000 fine
Proceedings Held: County Court

DUI

Under 21
Any detectable amount of alcohol
Offense Level: Class "C" Misdemeanor
Proceedings Held: JP or Municipal Court
Punishment Range: Up to $500 fine

10 DWI Mistakes to AVOID!
by Collin County DWI Lawyers Biederman & Burleson, P.L.L.C.

1. Not taking the matter seriously. This is a charge that will follow you for the rest of your life if you are convicted. The additional insurance charges alone could cost you thousands of dollars.

2. Not hiring an attorney. The law is complex and you need competent representation. You must raise the right defenses at the right time or you will lose them. Facts will disappear, memories fade and witnesses vanish. A winnable case can quickly become a loser.

3. Hiring an attorney based on the amount of the fee alone. The State of Texas has almost unlimited resources when it comes to your case. You need to hire an attorney and pay a fee which will allow him to put time and effort into your case to counter the prosecution. Attorneys must earn enough in the time they spend on your case in order to keep their doors open and make a living wage. If you go too low, your attorney will not be able to put in the time necessary to protect you. Look for a reasonable, predictable fee, not the lowest.

4. Not complying with driver's license laws. You could lose your right to drive.

5. Driving after your license has been taken away.

6. Not taking full advantage of your constitutional rights.

7. Taking the prosecutor's first offer. The first offer is not a bargain; it's just to get rid of your case with the least amount of work. Very few cases are dismissed or reduced to a non-alcohol charge at this stage. You do not give the judge an opportunity to rule on constitutional challenges. You give up your right to raise these issues and make the State prove it's case.

8. Fail to appear in Court. The Court will issue a bench warrant for your arrest and revoke any bond. The next time you are stopped for a traffic infraction, you will be spending some time in jail and posting a bond for your future appearances.

9. Talk to anyone but an attorney about your case. Anything you say to them can be used against you.

10. Think that talking to numerous attorneys will help you handle it on your own. You need to have an attorney go to court with you.

Are Juveniles Treated Differently?

There are significant differences in the procedures used to process juvenile and adult offenders. Despite the procedural differences and the considerable discretion asso-ciated with juvenile proceedings, juveniles have many of the rights and protections provided defendants in adult criminal proceedings.

Each county's juvenile board (county judge, district judges, and judges of any statutory courts designated as a juvenile court) is required to designate one or more district, criminal district, domestic relations, juvenile, county courts or county courts at law as the juvenile court. The juvenile court has exclusive original jurisdiction over proceedings under the Juvenile Justice Code involving children between the ages of 10 and under 17, and children who are between 17 and under 18, but who committed offenses before becoming 17. Venue is in the county in which the child resides or the county in which the alleged delinquent conduct or conduct indicating a need for supervision occurred.

A law enforcement officer who takes a child into custody may dispose of the case without referral to juvenile court, if: (1) guidelines for such disposition have been issued by the officer’s law enforcement agency; (2) the guidelines have been approved by the juvenile board of the county in which the disposition is made; (3) the disposition is authorized by the guidelines; and (4) the officer makes a written report of this disposition to the law enforcement agency, identifying the child and specifying the grounds for believing that the taking into custody was authorized.

If the case or child is referred to juvenile court, a person authorized by the court (usually someone from the juvenile probation department) is required to conduct a preliminary investigation to determine whether the person referred to juvenile court is a child under the Juvenile Justice Code and there is probable cause to believe the person engaged in delinquent conduct or conduct indicating a need for supervision. If it is determined that the person is not a child or there is no probable cause, the person shall immediately be released.

Each county is required to provide a suitable place of detention for children, separated by sight and sound from any adults detained in the same building. When a child is taken into custody, if the child is not released a detention hearing without a jury shall be held within two working days after the child is taken into custody; the next working day if the child is detained on a Friday or Saturday. The juvenile court must release the child from detention unless it finds that:

1. the child is likely to abscond or be removed from the jurisdiction of the court;
2. suitable supervision, care, or protection for the child is not being provided by a parent, guardian, custodian, or other person;
3. the child has no parent, guardian, custodian, or other person able to return him/her to the court when required;
4. the child may be dangerous to himself/herself or he/she may threaten the safety of the public if released; or
5. the child has previously been found to be a delinquent child or has previously been convicted of a penal offense punishable by a term in jail or prison and is likely to commit an offense if released.

The court must make a finding whether there is probable cause to believe that a child taken into custody without an arrest warrant or a directive to apprehend has engaged in delinquent conduct or conduct indicating a need for supervision. The finding must be made within 48 hours of the time the child was taken into custody.

If a preliminary investigation results in a determination that further proceedings in the case are authorized, the designated officer of the court may, subject to the direction of the juvenile court, advise the parties for a reasonable period of time not to exceed six months concerning deferred prosecution and rehabilitation of the child if: (1) deferred prosecution would be in the interest of the public and the child; (2) the child and his parent, guardian, or custodian consent with knowledge that consent is not obligatory; and (3) the child and his parent, guardian, or custodian are informed that they may terminate the deferred prosecution at any point and petition the court for a court hearing in the case.

A juvenile court may, on petition filed by the prosecuting attorney, waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:

1. the child is alleged to have committed a felony;
2. the child was:
1. 14 years of age or older at the time he/she is alleged to have committed the offense, if the offense is a capital felony, an aggravated controlled substance felony, or a felony of the first degree, and no adjudication hearing has been conducted concerning that offense; or
2. 15 years of age or older at the time he/she is alleged to have committed the offense, if the offense is a felony of the second or third degree or a state jail felony, and no adjudication hearing has been conducted concerning that offense; and
3. after a full investigation and a hearing, the juvenile court determines that there is probable cause to believe that the child committed the offense alleged and that because of the seriousness of the offense alleged or the background of the child the welfare of the community requires criminal proceedings.

If the juvenile court waives jurisdiction and transfers the child for criminal proceedings, he/she shall be dealt with as an adult and in accordance with the Code of Criminal Procedure. However, no person may be punished by death for an offense committed while younger than 17 years.

If the juvenile court does not transfer the child for adult criminal proceedings, the juvenile court may, on peti-tion of the prosecuting attorney, conduct an adjudication hearing. Trial shall be by jury unless waived by the child and his/her attorney. If the judge or jury does not find beyond a reasonable doubt that the child engaged in delinquent con-duct or conduct indicating a need for supervision, the court shall dismiss the case. If the finding is that the child did engage in delinquent conduct or conduct indicating a need for supervision, the court shall conduct a disposition hearing.

At the disposition hearing, if the judge or jury does not find that the child is in need of rehabilitation or the protection of the public or the child requires that disposition be made, the court shall dismiss the child and enter a final judgment without any disposition. If the judge or jury finds that the child is in need of rehabilitation or the protection of the public or the child requires that disposition be made:

1. the judge or jury may place the child on community supervision for any period, except that the probation may not extend to or after the child's 18th birthday;
2. if the judge or jury finds at the adjudication hearing that the child engaged in delinquent conduct and if the petition was not approved by the grand jury under section 53.045, Family Code, the court may commit the child to the Texas Youth Commission (TYC) without a determinate sentence;
3. if the judge or jury found at the conclusion of the adjudication hearing that the child engaged in delinquent conduct that included a violent offense listed under section 53.045(a), Family Code, and if the petition was approved by the grand jury under section 53.045, Family Code, the judge or jury may sentence the child to commitment in the Texas Youth Commission with a possible transfer to adult prison for a term of confinement of not more than:
1. 40 years for a capital felony, first degree felony or an aggravated controlled substance felony;
2. 20 years for a second degree felony; or
3. 10 years for a third degree felony;
4. the judge may assign the child appropriate sanctions under section 59.003, Family Code; or
5. if applicable, the judge or jury may make a disposition for habitual felony conduct under section 54.04(m) of the Family Code.

A court may issue an order against a child to protect a victim of the child’s conduct who, because of the victim’s participation in the juvenile justice process, risks further harm by the child. In the order, the court may prohibit the child from doing specified acts or require the child to do specified acts necessary or appropriate to prevent or reduce the likelihood of further harm to the victim by the child.

An appeal from an order of a juvenile court is to a court of appeals, and the case may be carried to the Texas Supreme Court (unlike adult criminal appeals which may be carried to the Court of Criminal Appeals).

If your driver's license is suspended as a result of a DWI arrest, you may be able to obtain a limited, temporary license to operate a vehicle. This temporary license is known as an occupational driver's license. We have written about the occupational driver's license procedure on our website. The full article can be found below:

Occupational Driver's License Procedure

What is an occupational license?

An occupational license is a special restricted license issued to persons whose license has been suspended or revoked for certain offenses. An occupational license authorizes the operation of a non-commercial motor for up to 12 hours a day for work related purposes, educational purposes and to perform basis household duties.

How do You Obtain an Occupational License?

There are several requirements that must be satisfied prior to a judge granting an occupational driver’s license. First, a Petition of an Occupational Driver’s License must be drafted and filed, with the required filing fee, with a court that has jurisdiction over the matter. This court is usually made in either a county or district court located in the petitioner’s county of residence or in the court that retains original jurisdiction. This court is where the offense occurred. Second, the petitioner must obtain SR-22 insurance which is a special insurance policy, require by the State of Texas, as a prerequisite to obtaining an occupational license. Third, some courts require a copy of the petitioner’s driving record. Finally, the Petition for Occupational License must be presented to a judge for his or her approval. Also, some judge’s require an in-person hearing before granting an occupational license. See, Texas Transportation Code Section 521.242, 37 Texas Administrative Code 15.7.

Is the court order the occupational license?
No, the court order is only the first step to the occupational license. After the court grants the request, the court order and all other required items must be submitted to the Texas Department of Public Safety (DPS). After these items are received by the DPS the occupational license is issued.

However, the court order will function as an occupational license for no more than 30 days from the judge signing the order. This allows a person an opportunity to drive for up to 30 days from the dates of the judge’s signature to allow the request to be processed by the DPS.

I have a commercial driver’s license; will an occupational license allow me to drive a commercial vehicle?

No. If your license is suspended, cancelled, or revoked under any Texas law you MAY NOT be granted an occupational driver’s license to operate a commercial motor vehicle. See, Texas Transportation Code 522.086, Texas Transportation Code 522.089.