Micah Belden, Esq. HomeWhat happens after my DWI arrest?
To try to save your license, you must request a hearing within 15 days of when you were served with a Notice of Suspension (usually your arrest date). Again, I will send this request for you for free if you stop by my office whether you hire me or not. The government must prove at the ALR hearing that you operated a motor vehicle while you were intoxicated. They must prove that the officer had a legitimate reason to stop or make contact with you on the date in question, and that they had “probable cause” to arrest you for DWI. Importantly, you may force the arresting officer and the breath test supervisor (where applicable) to appear at your hearing and may cross examine them on your case and their views on DWI. You can request and receive a copy of the police report and other written evidence against you, which will assist you in deciding how to proceed in your case.
Occupational License:If the state has the paperwork and persons present on the date of your ALR hearing, they will most likely get your license suspended for the appropriate amount of time. However, you may apply for an occupation license in the county or district court of 1) your residence, or 2) the county where you were arrested. Forum shopping is allowed. A judge may grant your occupational license ex parte (without a hearing), but will most likely want you to appear in person. It is in the judge's discretion whether or not to grant you an occupational license.
To get an occupational license, you will need to show a work/health related "need." Also, you will need several things including a special kind of insurance called SR-22, which may be more expensive than your current insurance. If you are not in good relations with your carrier, or you have USAA, you will probably want to call another carrier for the SR-22 insurance. I have had good experience with Geico, so that might be a company to start with while you shop around.
The occupational license will restrict your driving to specific routes and destinations and to no more than 12 hours a day, 6 days a week on the road. The order granting the license will be your license for the first 30 days, then you must have a license from DPS. You will have to pay filing fees to the district or county court, and to DPS. Further, the judge may require you to keep a travel log to present any time you are stopped by a police officer. You must also have your SR-22 insurance proof and license with you (either the order or the DPS-issued license) at all times during the occupational period. The occupational license from DPS will normally be good for the entire period of suspension.
First Setting/Appearance/Arraignment:First Setting/Appearance/Arraignment: This is the first time you will appear in Court, and many Courts allow you to waive arraignment - the formal reading of the charges against you to ensure you understand what you are charged with. Waiving arraignment could mean that you don't lose half of your day sitting in court waiting on a formality. You should discuss with your attorney whether this is appropriate in this case. Some people (especially persons without attorneys) choose to accept the prosecutor's offer of two years probation and a fine at this hearing. You should be very cautious about accepting the first deal offered to you in your case, as you can (especially with an attorney) probably get a lot better offer eventually. Also, Texas allows juries to assess punishment so you should talk to your attorney about the likelihood of a jury giving you the maximum probation and a large fine.
Plea Conference/Pretrail:The next hearing that will be scheduled will be a plea conference or pretrial setting where your attorney will negotiate with the prosecutor and should get the best plea bargain offer available - hopefully one that is not a plea of guilty to a DWI (obstruction of a highway or public intoxication are possible in some circumstances). You, and only you (but with my advice) will decide whether the plea offer is something you want to take or if you want to go forward with trial. It is important that with a first time DWI case that you bargain for no deep lung device, minimal community service time, no jail time, and waive "life skills" courses. Your attorney should show you a copy of the standard conditions of probation in your county so you can see what you are willing to agree to, if anything.
Your attorney should always file motions to suppress where appropriate. A motion to suppress will allow the judge to exclude from your case any evidence that was obtained in violation of the laws of the United States or the State of Texas. This is how your case gets dismissed or reduced because of an illegal stop or other unlawful conduct by the officer.
Dismissal:The DA may dismiss charges in rare circumstances, i.e. if the arresting officer dies, resigns, is indicted, is fired, or transfers, or if the original stop by the police is suppressed as unconstitutional. This is rare, but possible and does happen.
Trial:You hire your lawyer to go to trial. Make sure from the very beginning you ensure that your lawyer is willing to try your case, and that your understand how much you are paying him or her to take your case all the way to trial. There are very few legitimate DWI plea "bargains" in Texas - especially in more conservative counties. A DWI conviction is very expensive and painful, and they are winnable cases.
In a misdemeanor trial, you and your attorney will help select a jury of six to hear your case. In a felony trial, you and your attorney will pick a jury of twelve. You may also ask the judge to hear your case and decide your guilt or innocence.
Sentencing:In the unfortunate event that you do not prevail at trial, you may choose for the judge or jury to assess your punishment. Prior to trial you need to talk with your attorney about which would be better in your situation, and what conditions of probation the judge in your case likes to impose. Judges are allowed to stack on conditions of probation (even after jury punishment) that the judge deems "reasonable." This could include jail time in certain cases and with certain judges. Believe it or not, it is sometimes wise to ask the jury (or even the judge) for jail-time punishment rather than DWI probation. However, you need to go through your options very carefully with your attorney prior to trial. Making these crucial decisions makes it even more important that you hire a seasoned DWI attorney.
Appeal:If you were convicted because evidence was wrongly admitted or a motion was improperly denied, you may get a new trial by winning a motion for new trial or by winning an appeal. This is a difficult process in this day and age, which is why it is very important to win every advantage during the trial process for the best chance to win in front of the jury. A win on appeal only starts the process over.
