Texas being an “At the Time of Driving State” Can Make DWI Cases a Bit More Complex
Yesterday I got an interesting DWI case dismissed. When I first met with my client he had no clue why he was being charged with DWI. He asked me what the legal limit in Texas was and I told him .08. Well my client blew a .07 into the Intoxilyzer 5000, which is the breath test machine that was used in his case, hence his confusion.
So why would someone who blew UNDER the legal limit be charged with DWI?
Texas: An”At the Time of Driving State”
The problem is that Texas is an “at the time of driving state”. This means that what is really important is what was the blood alcohol level of an individual at the actual time he was driving. Sometimes it takes 30 minutes, but sometimes it takes hours for an individual to take a blood or a breath test after being arrested. So how can they prove what the BAC was at the time of driving? That’s the tough question, and bottom line is, they can’t. The State’s experts will always say, “all I can say is that the BAC was either higher, the same, or lower” at the time of driving.
Now sometimes, they will try to formulate a guess to what the BAC was, and it truly is a GUESS. They use what is called retrograde extrapolation. In basic terms, retrograde extrapolation is a mathematical process based on “science” that is used to try to figure out what the BAC was of a person at a certain time.
The problem that arises is that it is RARE that we know everything we need to know about a person to figure this out. They need things such as: time of first drink, time of last drink, when was the last time they ate, how much did they eat, what did they eat, etc. And those are just the basic items that need to be known. They also need to know everything about that person’s body, health, how they process food, alcohol, etc. It’s virtually impossible to have all of this data.
So as a lawyer I see DWI cases like this from time to time, and they are always a fight. Because there is absolutely zero percent chance that I would ever advice a client to take any sort of deal on a case where their blood or breath came back below the legal limit. In this particular DWI case there were no extrapolation facts. My client spoke Spanish, the officer spoke English, and the officer didn’t bother getting a Spanish speaking officer to interview him. On top of that he looked great doing the sobriety tests, so they could not prove that he lost the normal use of his mental or physical faculties (which are the other 2 ways besides <.08 to prove intoxication). It took much longer than expected, but my client walked out of the courtroom a happy man.
Clients Will Look at all Their Options Out of Fear of Going to Trial
Sometimes defendants feel they are innocent but plead guilty because they are scared to go to trial. Or sometimes they have a great case that they could potentially win, yet they decide to take a deal. This happens A TON, and as a defense attorney it stinks because we like to be in the courtroom, but we work for the client.
I had a case that I was working on for about half a year that was getting a bit old. The charge could potentially land my client in prison for 2-10 years. He was caught with an illegal item in his vehicle but claims that someone must have left it in there. This is a tough situation, because what happens on most of these cases is the defendant will bring an affidavit from someone saying, “that illegal item was mine, it wasn’t defendants”. The problem is, since so many people do this, the prosecutors never believe anyone. My client did in fact have one of these affidavits.
What are the Possible Outcomes?
So what do you do in this situation? I advised my client of his rights and what I thought his chances were if we went to trial. I told him the best offers that he was receiving from the district attorneys. He asked me my opinion and I told him I thought he had a good chance of winning, and that I thought a trial was a great option. He also asked me what would happen if he lost. As I am with all of my clients, I was truthful. I warned him that if he lost he could potentially be looking at a good amount of prison time because of his priors.
The Client’s Choice
My client slept on it and decided that he didn’t want to risk trial, and that he would accept the probation that they were offering him. I completely understand his choice, and we will never know whether that was the correct choice or not. But he is guaranteed to get probation and not end up in prison, and to him, that was better than even a small chance that he could go to prison. It’s easy for a lawyer to say, “let’s go to trial you have a great case.” But at the end of the day you have to put yourself in your client’s shoes and realize how scary it must be to make that decision, and take that risk.
So when clients decide to go to trial, a lawyer should do everything in their power to give them a great defense. But when a client decides to take a deal, a lawyer needs to respect that as well.
- 3rd Degree Felony – Pled to 2 years Deferred Adjudication
- Possession of Cocaine -Reset to research an interesting issue
- DWI – Reset to wait on blood results
- DWI – DISMISSED
Petition of Non-Disclosure Case for an Out of State Client
It was a full day in the criminal courthouse today. A petition of non-disclosure case started my day off doing at one of the county courts. My client was from out of state, so I had been working on this case for a while. Sometimes when you are out of state, and depending on the situation, the judges will work with defense attorneys and waive the appearance of the defendant. In this case, I told the judge we were simply trying to seal the record and the judge was willing to waive his appearance as long as the district attorney handling the case didn’t have any objections to the petition we were filing.
What is a Petition of Non-Disclosure?
A petition of non-disclosure is a special type of sealing of a criminal record that helps people who successfully complete a deferred adjudication. Not all cases qualify, if anyone has a specific question on a particular case you can call me or see the list of cases that are disqualified on my website. If a petition of non-disclosure is granted, the record is hidden from the general public, but it will always be visible to the government, governmental agencies, some places that are funded by the government, and law enforcement. So while it is definitely not full proof, it does seal the record for most jobs, apartments, schools, etc.
Criminal Information on the Internet
In today’s world of the internet, there are some websites that compile criminal databases and post information online. In my experience, some of these websites are cooperative if you contact them after the judge signs an order of non-disclosure (or expunction). It is always best to contact these websites, because if you don’t, then the information of the arrest is there for everyone to see.
In this particular case the district attorney’s did not have any objections since it was fairly straight forward and by law my client was eligible. The judge reviewed all of the information and signed the order prohibiting the release of his criminal record. So that is great for my client, as he is about to start looking for new jobs. This is just a small step in letting him move on from the mistake he made many years ago.
I also went on to court with a few other cases, but they were pretty much just reset for discovery purposes.
- Petition of Non-Disclosure – Granted
- DWI – Reset to try to get into the pre-trial intervention program
- Terroristic Threat – Reset to get the evidence
- DWI – Reset to wait on results from a toxicology lab
Why Leaving an Open Plea to a Judge can be Risky
Today in court while waiting to help another attorney translate for a Spanish speaking defendant, I witnessed a very interesting open plea hearing. It was a situation that happens sometimes in cases where the defendant knows he is guilty, wants to plead guilty, but the defense and the prosecution cannot agree on the punishment. In this situation the defendant has the ability to plead guilty and go before the judge without an agreed recommendation. This is basically an open plea where you are putting your life and the punishment in the hands of the judge.
The Perils of Open Plea and the Judges Decision
This type of plea can be very dangerous, especially when the judge does not tell you ahead of time what he/she is going to do, and when they ask for a hearing/testimony to decide. For example, if the charge is a 3rd degree felony that is eligible for probation, the judge could give probation, or he could give anywhere from 2 – 10 years in prison. This could be a scary situation for someone who is being offered the minimum of 2 years by the prosecutor, because if the judge decides that probation is not appropriate, the best that can happen is exactly what was offered, but it could be much worse.
Details of the Case
The case I was watching involved an elderly man who claimed a young man put a gun to his head outside of the young man’s home. Months later the old man returned because he wanted to teach the young man how it felt to be a victim. The facts were disputed, but what was undisputed was that a struggle ensued, and the young man shot the older man 4 times, causing him to lose the use of an eye.
The defense was asking for probation for a multitude of reasons, the prosecutors were asking for prison time. The defendant was very lucky and the judge gave him 5 years deferred adjudication, which is a special type of probation that if he completes it successfully will not be a conviction on his record.
In this situation it turned out good, but I have seen many similar situations where is does not turn out the way the defense wanted. Again, it’s very dangerous, and it’s important to talk to others to find out the judge’s tendencies before deciding to proceed in this manner.
In less serious cases, the judges will sometimes tell you ahead of time what they will do if you “plea open”, and that is not as scary. But it is definitely something that is case by case, and defense lawyers and defendants alike must proceed with caution.
A Look into SWEWP, Harris County’s New Program and a DWI Case that Touches on Plea Bargains
SWEWP is the new program in Harris County program, short for Sheriffs Weekend Work Program. In this program you are sentenced to jail time and a TDL suspension, but instead of actually going to jail you are allowed to do a weekend community service work program instead. In this program you get 3 for 1 credit. For example, if you get sentenced to 30 days in jail, you will need to work 10 days.
For this SWEWP program, the judge must first approve, you fill out a contract which has all of your work details. You are instructed that you have to work every Saturday and Sunday (from 7am – 3pm) until your sentence is complete. You go in front of the judge, plead guilty, the judge sentences you, and then you go to the SWEWP window at 49 San Jacinto for further instructions. This is a great option for individuals who do not want to do probation or go to jail. It is not automatic however; every judge is different as to what types of cases they will accept SWEWP plea bargains on.
DWI Case and Plea Bargains
Today I went to court with an individual who was being charged with Driving While Intoxicated (DWI). We have been working on this DWI case for many months, gathering all of the documents, evidence, etc. Many times it is in a person’s best interest to fight the case and go to trial. Many times, if you go to trial and lose you will get probation on a 1st time DWI. If you plead guilty to the DWI, the typical plea bargain is probation as well. So why would you plea guilty and guarantee yourself a conviction when you can at least have a chance at trial?
Why do People Take Plea Bargains
Most people decide to take plea bargains for a multitude of reasons –
- They don’t want to go to trial because they feel like they are going to lose
- They don’t want to risk getting a worse punishment
- They don’t want to pay for trial
- Their lawyer convinces them not to go to trial, etc, etc
In my client’s DWI case he was afraid of going to trial because he was not a citizen, and he was scared of possible consequences if he went to jail, and he also wanted to accept responsibility. In Harris County, a typical plea bargain is either 1 year probation (with no driver’s license suspension), or 30 days in jail (which is 2 for 1 credit, so 15 days, with a 1 year TDL suspension). That’s typical, but not always the case, a couple of judges allow fines only, its court specific.
- DWI – Client Entered SWEWP Program
- PCS – Reset
Update 3/1/2018: See my new article regarding Houston’s SWEWP on ericbenavides.com