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When you get arrested for DWI it is extremely important to call an experience Houston, TX DWI Attorney right away. You only have 15 days after being arrested to potentially save your drivers license! In some counties it can take more than a month to get a court date. So if you don’t hire an attorney because you just want to wait and see what will happen in court, YOU WILL LOSE YOUR LICENSE! On a 1st DWI in the state of Texas, DPS issues a suspension of 180 days if you refused to provide a breath or blood test, and 90 days if you voluntarily take a breath or blood test. In order to save your license a DWI lawyer can request an Administrative License Revocation Hearing (ALR hearing). So essentially you end up with two cases, your DWI in a criminal court, and your ALR case in an administrative court. You can potentially lose your license through both courts. Your arresting officer should give you a temporary driving permit on the day of your arrest. This license is only good for 40 days, or until the date of your ALR hearing. So if you do not request your ALR hearing within 15 days, you will lose your license AUTOMATICALLY after 40 days, EVEN IF YOU ARE INNOCENT!

ALR Hearing

In order to try to save your license the Houston Criminal Defense Attorneys at Benavides & Serrano will request a live ALR hearing through the Texas Department of Public Safety within 15 days of your arrest.  It can take anywhere from 6-8 weeks to get a hearing date.  Your drivers license will be valid up until the day of the hearing.  Prior to the hearing all officers in your case will be subpoenaed, and they will be required to be present on the day of the hearing.  If they do not show up, you win automatically and DPS does not suspend your license!  In this type of case, doing the paperwork correctly is half the battle.

If the officer does show up, then a full hearing takes places with your criminal defense attorney getting the opportunity to cross examine the officer.  During this hearing DPS must prove the following:

  • That you were operating a motor vehicle in a public place
  • That the officer had reasonable suspicion to stop you
  • That the officer had probable cause to arrest you for DWI
  • That the officer correctly gave you the opportunity to provide a breath sample
  • That if you did take a breath sample, that the result was greater than an alcohol concentration of .08

It is much more difficult to win ALR hearings when the officer shows up, but it also has its advantages.  It gives your DWI lawyer an opportunity to question the officers involved and lock them in to their testimony.  If your case ends up going to trial then your Houston DWI Lawyer can use a transcript of the officer’s testimony against him during your criminal trial.

DWI in County or District Court

In court for your DWI case the experienced DWI lawyers at Benavides & Serrano, PLLC will do everything in their power to get you the best possible results.  The first thing that your attorney will do is secure a copy of the police report to see exactly why the officer initially made contact with you and to note his personal observations that he listed.

In virtually all DWI cases, the officers will request that you perform standard field sobriety tests.  Almost every time, these sobriety tests are recorded and placed either on a DVD or VHS tape.  The second thing your attorney should do is get a copy of this video and watch it with you.  This video is very important for your case.  If your case goes to trial, the jury will be able to view this video.  If you look sober in your video you stand a much better shot of getting your case thrown out.  If you look intoxicated then it will be up to you DWI attorney to get portions of the video suppressed (thrown out) so that the jury is not able to view it during trial.  Police officers are trained in standard field sobriety tests, and they must correctly administer each exam they give you.  It is very important that you have an experienced DWI attorney who can recognize when an officer does a test incorrectly.  The video might also show video of the exact moment you were pulled over.  Sometimes it is possible to contest the actual reason the officers stopped you in the first place.  If the court rules it was an invalid stop, the state cannot use anything that happened after the stop, meaning your case gets dismissed!  Evaluating and potentially getting portions of the video thrown out could be the difference in winning or losing a case.

After the preliminary investigation is done, the attorneys at Benavides & Serrano will talk with the assistant district attorney assigned to your case and fight for you to get the best possible outcome.

DWI  Punishments

1st DWI – Class B Misdemeanor

  • Up to 6 months in the county jail, and a fine of up to $2,000

2nd DWI – Class A Misdemeanor

  • Up to 1 year in the county jail, and a fine of up to $4,000

3rd DWI – Third Degree Felony

  • From 2 to 10 years in the Texas Department of Criminal Justice (TDCJ), and a fine not to exceed $10,000

Intoxicated Assault – Third Degree Felony

  • From 2 to 10 years in the Texas Department of Criminal Justice (TDCJ), and a fine not to exceed $10,000

Intoxicated Manslaughter – Second Degree Felony

  • From 2 to 20 years in the Texas Department of Criminal Justice (TDCJ), and a fine not to exceed $10,000


Should I take a breath test?

  • No, never voluntarily take a breath test.  You are essentially just giving the state more evidence to convict you.  The only time its acceptable to voluntarily take a breath test is if you have had NOTHING to drink.  It has been proven that the Intoxilyzer machine that is used can be inaccurate

Should I do the field sobriety tests?

  • No, you should not do any of the sobriety tests, even if you are sober.  The standard tests are the Horizontal Gaze Nystagmus test (pen test), the Walk and Turn test (walk the line), and the One Leg Stand (balance on one leg).  Sometimes people just have bad balance.  It might be because of a prior injury, or some sort of other physical disability, but if you mess any part of the tests up you can bet the officers and assistant district attorneys will use it against you.

So if I shouldn’t take any tests, what should I do?

  • Speak clearly, stand up straight, and be very polite.  If an officer thinks he smells alcohol, you are probably going to jail to further the DWI investigation whether you have been drinking or not.  Just remember that you are most likely being recorded at all times, so you want to come across as sober and polite as possible. No one (including prosecutors and a jury!) likes a rude person with a big mouth.

If my Texas Drivers License gets suspended, will I not be able to drive at all?

  • If your license gets suspended through the Department of Public Safety or through a criminal court you might qualify for an Occupational Drivers License (Restricted License).  If you are able to go through the criminal court the license is usually approved to allow you to drive up to 12 hours a day.  Sometimes certain restrictions are placed on your license.  Some examples are that you might be required to fill out a driving log at all times, or you might be ordered to place an Ignition Interlock device in your vehicle.  Whether or not you qualify, and what you qualify for is different case by case.  If you are in a situation where you need to request an Occupational License, call us today at 713-222-2828 for a free case consultation.

How long will my case take to finish?

  • DWI’s can take anywhere from 3 months to a year to finish just depending on which county your case is in and whether or not you end up taking a plea bargain or going to trial

Will I go to jail for DWI?

  • If you are charged with a 1st or 2nd DWI, probation is a very strong possibility.  The people who typically go to jail on a 1st or 2nd DWI are people who want to go to jail.  If nothing can be done to “win” a case, then sometimes people would rather sit a few days in jail rather than do 1 or 2 years of probation.  The decision on whether to go to jail or take probation is complicated.  Jail time, as opposed to probation can have an impact on your drivers license, even if you win your ALR hearing with DPS.  What you can be certain of, is that you will be well advised and you will understand the benefits and disadvantages of each option.  The lawyers at Benavides & Serrano will do everything possible to make the final resolution the best possible outcome for YOU.
  • For a felony DWI it is a bit more complicated, the result of the case will have to do with a combination of your attorney, the assistant district attorney assigned to your case, your criminal record, and the individual facts of your case.  For a felony DWI it is very important that you consult with an experienced DWI attorney as soon as possible.

What is a DPS Surcharge?

  • In Texas, for DWIs occurring on or after September 1, 2003, individuals convicted of DWI must pay an annual surcharge for three years following a DWI conviction to the Department of Public Safety.  For a 1st DWI you have to pay $1,000 a year for 3 years.  For a 2nd DWI or more you have to pay $1,500 a year for 3 years.  However, if you take a breath test and the result is greater than double the legal limit (.16) then the annual surcharge increased to $2,000 a year for 3 years. (Yet another reason not to take a breath test!

What happens if I am convicted of DWI and I am under 21?

  • The biggest difference is a 1st DWI conviction for someone under 21 results in a one year drivers license suspension, even if you take probation.  Normally, if someone takes probation in criminal court on their first DWI the criminal court will not issue a license suspension.  This is not true for someone under 21.  But if you find yourself in this situation just call the lawyers at Benavides & Serrano at 713-222-2828 to get a free consultation on obtaining an occupational drivers license.
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