Frequently Asked Questions
Criminal Law FAQ
Most importantly, you need a lawyer with experience in the area of law where your problem exists. For example, when facing criminal or juvenile charges, you need a lawyer experienced in criminal and juvenile law. Not all lawyers are experienced in these areas. These are specialized areas of law that follow different rules and procedures. You need a criminal defense attorney who understands your case and is able to effectively protect your rights.
At Musick & Musick, LLP, our Houston criminal lawyers are experienced in both criminal and juvenile law. Our lawyers are former Harris County Prosecutors and experienced Criminal Defense Attorneys. They have handled thousands of cases and successfully tried hundreds of cases to jury verdicts.
Legal fees are also an important factor in choosing your lawyer, but do you really want the cheapest criminal defense attorney when your freedom and liberty are on the line? The old adage you get what you pay for is certainly true when it comes to legal fees. Quality representation is what you should seek to find, but that representation should come at a fair price.
At Musick & Musick, LLP, we strive to provide each client with the highest quality of representation at a reasonable cost.
It is very important that you consult with a criminal defense lawyer as quickly as possible. You have key constitutional rights that need to be protected. Depending on the type of case, legal motions and requests may need to be filed immediately.
If you have not yet posted bond, you need an attorney to review your case and determine whether or not your bond can be lowered, thereby saving you hundreds of dollars in bonding fees. This is a critical time to consult a criminal defense attorney, otherwise you could end up being arrested on the warrant and end up spending more time in jail waiting to bond out (or spending more money by getting arrested while driving and then having your car towed and stored, incurring additional expenses). **If you need more information regarding bonds, please view our Bond and Jail Information page.
If you have posted bond, or if you have a loved-one in jail who is unable to bond out, your attorney needs to begin working on preserving critical evidence that may aid in your defense.
Your first court setting is usually called the “arraignment.” Historically, this is when the court will tell you what you are charged with and the range of punishment for that offense. Some judges, especially in Harris County, forego the formality of an arraignment. In those courts, your attorney will simply give you that information.
This is also an opportunity for your lawyer to gather information about your case by reviewing the District Attorney’s file. In Harris County, the District Attorney has an open file policy, allowing defense attorneys to view the police report and other evidence associated with your case. Also, at this time, the District Attorney may make a plea offer in an attempt to “plea-bargain” the case and avoid a trial.
Often times, this setting will result in a reset of your case to a future date. This is usually necessary so that your attorney can gather additional information, talk to witnesses, and test the state’s case and evidence. Your attorney will be able to advise you on whether or not you should reset your case. At Musick & Musick, LLP, we strive to complete your case with as few number of court appearances as necessary, without sacrificing your rights.
That depends upon the offense. Sometimes your criminal defense attorney will be able to “plea-bargain” for a lesser charge or a lesser sentence. The range of punishment ultimately depends upon the conviction offense. The following list gives the range of punishment by class of offense:
- Class C misdemeanor (tickets): fine only, amounts vary by offense
- Class B misdemeanor: up to 180 days in jail and/or up to $2,000 fine
- Class A misdemeanor: up to one year in jail and/or up to $4,000 fine
- State Jail felony: minimum 6 months in state jail, maximum 2 years in state jail, without credit for “good time”, and up to $5,000 fine
- 3rd degree felony: minimum 2 years in prison, maximum 10 years in prison and up to $10,000 fine
- 2nd degree felony: minimum 2 years in prison, maximum 20 years in prison and up to $10,000 fine
- 1st degree felony: minimum 5 years in prison, maximum 99 years or life in prison and up to $10,000 fine
**Note: This list serves as only a baseline for punishment — certain enhancements (prior criminal history or aggravating circumstances) can increase the punishment range by increasing the minimum time, the maximum time, or both. And, some clients will qualify for probated sentences or deferred adjudication in lieu of jail/prison sentences.
Because the punishment range depends upon the conviction, this is where an experienced lawyer can help. As experienced Houston criminal lawyers, Musick & Musick, LLP will work towards the best possible outcome, which might include a dismissal or a plea to a lesser charge which means a lesser sentence.
Probation refers to “community supervision.” In a probation case, the defendant is found guilty (i.e. convicted) and sentenced to a period of time in jail or prison; however, the jail time or prison time is “probated” or suspended, meaning put on hold. Probation time can range from 6 months on a misdemeanor to 10 years on a felony. During the probation period, the defendant meets with a probation officer and is monitored closely to ensure compliance. Some of the rules of probation include: commit no offenses, perform community service hours, pay a fine, pay court costs, not use drugs or alcohol, provide random urine tests, attend counseling or therapy, work faithfully or attend school full-time. Other rules often apply but are based on the particular offense. And, for any probation, the judge may order some jail time as a condition of the probation. At the end of the probation term, if the defendant is successful on probation, the judge will release the defendant from probation; however, if the defendant violates probation, he is subject to being sentenced to jail or prison for the period of time originally assessed. Probation gives a defendant the opportunity to stay out of jail or prison and be a productive member of society.
Deferred Adjudication refers to a form of community supervision wherein there is no finding of guilt and no conviction, so long as the period of supervision is successfully completed. For practical purposes, it is the same as being on probation, with the same conditions listed above. HOWEVER, the difference is the judge “defers” the finding of guilt — the judge applies a wait and see philosophy. If the supervision is successfully completed, there is no finding of guilt and no conviction. But, if the defendant violates the supervision, the judge can find the defendant guilty and sentence him accordingly — a conviction. Because a successful deferred adjudication is not a conviction, in most cases it cannot be used against the defendant in the future to enhance punishment. The current law even allows most deferred adjudications to be “sealed” as a non-public record after a certain period of time. This is an important advantage because once the record is sealed (or made non-public) the defendant can deny the arrest, charge, and period of supervision — it need not be disclosed.
Consult your criminal defense attorney to find out if deferred adjudication or probation are applicable to your case and if you should consider them as an alternative to a final conviction. While it sounds good, it is not always the best alternative!
Contact a criminal defense attorney as quickly as possible. Your attorney may be able to assist in getting a bond set for you or getting the court to reduce the amount of bond in your case. This can save you hundreds of dollars in bonding fees. Also, your attorney will be involved from the very beginning to safeguard and protect your rights. In some cases, your attorney will be able to prevent your incarceration by working with a bonding company to post a “no-arrest” bond. See our Bond and Jail Information page for more information.
Again, contact a criminal defense lawyer as quickly as possible. Your attorney will be able to assist you in getting a bond in almost all cases. Your attorney will appear with you in court and request a bond as you surrender to the court. You should also have a bonding company accompany us to court to post your bond as you are surrendered to the court. See our Bond and Jail Information page for more information.
Most likely, no. These “rights” are referred to as Miranda rights, coming from a Supreme Court case Miranda v. Arizona. The Supreme Court stated that police must inform suspects of their rights prior to interrogating or questioning a suspect in custody (that familiar phrase: “you have the right to remain silent; anything you say can and probably will be used against you at your trial; you have the right to have a lawyer present prior to and during any questioning; if you cannot afford a lawyer, one will be appointed for you; and you have the right to terminate the interview at any time”).
When the police fail to read your rights, the effect is simply that your answers to questions made by the police while you were in custody are suppressible. This is where it is important to hire an experienced criminal defense attorney who can deal with the suppression issues. At Musick & Musick, LLP our Houston criminal lawyers have dealt with both adult statements and juvenile statements and have been successful in suppressing both, sometimes resulting in a dismissal. Whether or not your case will be dismissed depends upon the other evidence available to the prosecution.
Family Law FAQ
While some states recognize a legal status known as “legal separation,” Texas does not. Under the Texas Family Code spouses are married until the Court grants a divorce.
You can file for divorce in a county in which either you or your spouse has lived for at least 90 days, as long as that same person has lived in Texas for at least six months.
The Texas Family Code requires that the Court divide the community property of the spouses “in a manner that the Court deems just and right.” This means the Court is not required to divide the property 50-50 and can consider a variety of factors in deciding what is “just and right.” These factors can include fault in the divorce, disparity in earning power, disparity in amount of separate property, etc.
Generally, a spouse’s separate property is property that was either:
- owned by the spouse before marriage
- acquired by gift or inheritance, or
- certain kinds of recoveries for personal injuries
Community property is all property other than separate property. All property owned by either spouse during the time of marriage is presumed to be community property. The party that is asserting the claim of separate property has the burden of proof on that issue.
In most cases, child support is calculated using a formula in the Texas Family Code. The payor’s monthly “net resources” (a term defined by statute) is multiplied by a percentage which is determined by the number of children at issue (e.g., the percentage for one child would be 20%). The payor is entitled to a reduction if he or she is also responsible for the support of another child.
Most divorces involving children name one parent as the primary Joint Managing Conservator and grant the other parent (also a Joint Managing Conservator) a “Standard Possession Order” for visitation. The visitation is spelled out in great detail in the statute (Texas Family Code Section 153.312) and should also be spelled out in detail in the Final Decree of Divorce. A very short hand version of a typical visitation order (assuming both spouses reside within 100 miles) is as follows: the 1st, 3rd, and 5th Friday of every month from Friday (beginning at either school dismissal or 6:00 p.m.) until the following Sunday at 6:00 p.m., every Thursday beginning at either school dismissal or 6:00 p.m. and ending either at 8:00 p.m. that night or when school resumes the following morning), as well as 30 days in the Summer, and additional visitation periods for Spring Break, Thanksgiving, and Christmas, depending on whether it an odd or even numbered year. While the Standard Possession Order is the most common visitation schedule, it may be inappropriate depending on the particular case. You should consult with your attorney to determine whether or not a Standard Possession Order should be applied in your case.
When the parents cannot agree on a custody arrangement, the court will make the decision for them after considering the totality of the circumstances, with the overriding consideration being the child’s best interests. To make that determination, the court considers:
- The child’s age;
- The child’s gender;
- The child’s physical and mental health;
- The parents’ physical and mental health;
- The parents’ lifestyles;
- Any history of abuse;
- The emotional bonds between the parent and the child;
- The parent’s ability to give the child guidance;
- The parent’s ability to provide the basic necessities, such as food, shelter, clothing, and medical care;
- The child’s routines, including home, school, community, and religious;
- The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent; and
- If the child is above a certain age, the child’s preference.
In many cases, a consideration of these factors results in awarding custody to the parent who has been the child’s primary caretaker. Although this is often the child’s mother, any preference for the mother strictly on a gender basis is outmoded.
Temporary orders are orders issued by a court, after either a hearing or an agreement by the parties, which are designed to last until the divorce is final. Practitioners sometimes refer to them as “band aid” orders. Temporary orders commonly address issues such as child support, custody and visitation of the children, exclusive use of the marital residence, exclusive use of vehicles, alimony, and interim attorneys fees.
If my spouse and I have agreed to all the relevant terms, what is the general procedure for obtaining and finalizing the divorce?
It is common for spouses to believe that they have an agreement, but they actually have not addressed all the necessary terms, such as child custody or support, or property division. Assuming all required terms are agreed to in advance of filing, the divorce can be a relatively simple legal procedure. The attorney for the Petitioner (the filing spouse) files the divorce petition and either has the petition served on the other spouse or the other spouse executes a Waiver of Service. The Petitioner’s attorney then drafts an Agreed Final Decree of Divorce and any other necessary documents which are reviewed and signed by the other spouse. The other spouse is free to hire or consult with an attorney of his or her own. After the necessary papers are signed by the parties and attorneys, the Petitioner and his attorney then go to court for a hearing to have the Court enter the Decree and other documents.
Texas is a no-fault divorce state which means that it is not necessary to show that either party was at fault in order to obtain a divorce. It is only necessary to show that there is marital discord and there is no reasonable expectation of reconciliation. However, many fault issues (adultery, cruelty, etc.) are frequently relevant factors in divorce cases because they can have an impact on how the community property is divided, or how custody is decided.
Mediation is a voluntary process which allows both you and your spouse to maintain control over your destiny and the terms of your divorce settlement. Both parties and attorneys attend either a four-hour or eight-hour mediation session, depending on the complexity of your case.
The role of the mediator is to facilitate an agreement between the parties to prevent the necessity for a trial.
Although some mediators are social workers, most commonly the mediator is a lawyer who acts as a neutral person to help you settle your case.
The mediator is chosen and agreed upon by the attorneys. Every Family Law attorney has a “short list” of competent mediators who specialize in family law with whom we are familiar, whose style we are comfortable with, and who we have found to be effective, particularly considering the individual aspects of your specific case.
Juvenile Law FAQ
Most importantly, you need a lawyer with experience in the area of law where your problem exists. For example, when facing criminal or juvenile charges, you need a lawyer experienced in criminal and juvenile law. Not all lawyers are experienced in these areas. These are specialized areas of law that follow different rules and procedures. You need a juvenile defense lawyer who understands your case and is able to effectively protect your rights.
At Musick & Musick, LLP, our Houston defense lawyers are experienced in both criminal and juvenile law. Our partners are former Harris County Prosecutors and experienced Criminal Defense Lawyers. They have handled thousands of cases and successfully tried hundreds of cases to jury verdicts. Each of our partners have experience with Juvenile cases as both prosecutors and defense attorneys.
Legal fees are also an important factor in choosing your juvenile defense lawyer, but do you really want the cheapest attorney when your freedom and liberty are on the line? The old adage you get what you pay for is certainly true when it comes to legal fees. Quality representation is what you should seek to find, but that representation should come at a fair price.
At Musick & Musick, LLP, we strive to provide each client with the highest quality of representation at a reasonable cost.
Cases involving children between the ages of 10 and 17 are handled in the Juvenile District Courts in Harris County (juvenile district or county courts in other counties). These cases are “civil” cases rather than criminal cases; however, certain rules and aspects of criminal law are applied to the juvenile. Juveniles are not “found guilty” but instead are “adjudicated to have engaged in delinquent conduct”. Also, juvenile offenders are not subject to being released on “bond” but are detained or released depending upon the circumstances. Finally, punishment for a juvenile is based upon levels and guidelines, not necessarily upon the offense.
Because the juvenile proceedings involve both a civil aspect and a criminal aspect, you should hire a lawyer that practices and focuses on juvenile law. The defense attorneys at Musick & Musick, LLP devote a significant portion of their practice to defending juveniles and are well trained in both juvenile and criminal law.
Children in the juvenile justice system must be represented by a lawyer during most proceedings. Because juvenile proceedings are a combination of civil and criminal rules and procedure, you should hire a lawyer who practices in juvenile court and understands the juvenile system.
In some cases, the judge will appoint a juvenile defense lawyer for the child and require the parents to reimburse the county for the court-appointed lawyer.
Your first court setting is usually called the “arraignment.” This is an opportunity for your lawyer to gather information about your case by reviewing the District Attorney’s file. In Harris County, the District Attorney has an open file policy, allowing defense attorneys to view the police report and other evidence associated with your case. Also, at this time, the District Attorney may make a plea offer in an attempt to “plea-bargain” the case and avoid a trial.
Also at this setting, your attorney will be able to review the court probation report related to your case. The probation department has likely already contacted your family and your school to obtain information about your behavior and performance at home and at school. It is important that the information contained in this report is accurate as it will be relied upon by the court for disposition or punishment purposes.
Sometimes, this setting will result in a reset of your case to a future date. This may be necessary so that your juvenile defense lawyer can gather additional information, talk to witnesses, and test the state’s case and evidence. Your attorney will be able to advise you on whether or not you should reset your case. At Musick & Musick, LLP we strive to complete your case with as few number of court appearances as necessary, without sacrificing your rights.
First of all, juveniles are not found “guilty”; they are said to have “engaged in delinquent conduct” if the court or a jury finds beyond a reasonable doubt that an offense was committed. This is a minor distinction but benefits the child in the future. For example, most job applications ask whether or not a person has been “convicted” of a crime; a juvenile is not convicted therefore may answer in the negative.
If a child is found to have engaged in delinquent conduct, the disposition or ramifications can range from a probation where custody is left with the parents or guardians to probation where the juvenile is taken out of the home and placed into a juvenile facility to commitment or incarceration in the Texas Youth Commission. In some instances, the juvenile may face transfer or certification to the adult court to stand trial as an adult.
Based upon the offense charged and the prior conduct of the juvenile, your attorney can provide more guidance for your particular case.
Depending on the circumstances, many juvenile cases can be sealed.
In a misdemeanor adjudication with a finding of delinquent conduct, there is a two year waiting period before the records may be sealed. The statutes states the judge shall seal the records if (1) two years have elapsed since final discharge for a non-felony offense and (2) there have been no convictions or adjudications on any charge since final discharge and no such action is pending.
If the adjudication is for a felony offense, the sealing is discretionary for the court (may or may not be granted) and the child must wait until he or she is at least 21 years of age and there can be no convictions or adjudications on any charge since final discharge and no such action pending. However, in a “determinate sentencing” case, these records may never be sealed.
Another possibility of sealing records without waiting either 2 years or until age 21 exists where there is no adjudication, i.e. no finding of delinquent conduct. This result is common when charges are dismissed or when a case is passed for deferred prosecution (a special form of probation which does not include a finding of delinquent conduct).
Consult your juvenile defense lawyer to find out if your particular records may be sealed.
No, juvenile offenders are not subject to being released on “bond” but are either detained or released depending upon the circumstances.
Often juveniles are taken into custody by the police. In some cases, the police will release the child to a parent or guardian. When this happens, the parents are simply told their child is being charged but they can take the child home. During the next few days or weeks, the police are sending their information to the District Attorney. Once the District Attorney receives the information, a petition is filed with the juvenile courts. After the petition is filed, the child and his parents are “served” with paperwork to appear in court on a particular day. Papers are served or delivered to you by a Deputy Constable who usually will come to your home.
Also the juvenile probation department begins their process. The probation department is responsible for gathering information about your child and your family and preparing a report for the court. In most cases, a probation officer will contact you or your child to discuss his situation. Often, the probation department will contact you even before the petition is filed with the court.
It is important that you and your child talk with his or her juvenile defense lawyer prior to speaking with the probation department. Although you will want to be cooperative with the probation department, you must be careful to protect your child’s rights. Remember, all information provided to the probation department may end up in the report that is ultimately given to the prosecutor and the court for consideration.
The court considers five factors in determining whether to hold the child in the detention center pending court or to release the child to a parent or guardian: (1) whether the child is likely to abscond or be removed from the jurisdiction of the court, (2) whether a parent or guardian can provide suitable supervision, care, and protection for the child, (3) whether the child has a parent or guardian who is able to return him to court when required, (4) whether the child may be a danger to himself or others if released, and (5) whether the child has previously been found to have engaged in delinquent conduct and is likely to commit a new offense if released.
It is important for the parents (or guardian) to be present with a juvenile defense lawyer at the detention hearing to explore whether or not the judge will release the child.
DUI/DWI Defense FAQ
When a person has lost the normal use of his mental faculties or has lost the normal use of his physical faculties because 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, a person is considered to be intoxicated under Texas law. Additionally, if the person has a blood alcohol concentration of .08 or more, the law presumes that person to be intoxicated. The state prosecutor may prove a person is intoxicated by using either one of the above definitions. In fact the State can allege both definitions and allow the jury to convict under either theory – loss of faculties or BAC (blood alcohol concentration) of .08 or more.
The prosecutor will use a skilled witness, usually a law enforcement officer, to point out to the court or jury that a defendant is intoxicated. This witness will basically be asserting his or her opinion regarding intoxication. In their training, police officers are taught to recognize certain signs of intoxication to assist them in forming their opinion. Are these opinions sometimes wrong? You bet they are! Very often, outside forces have tremendous effects on personal opinions. Police officers are no different than you or I except when it comes to having more training and experience in recognizing the signs of intoxication. When a person, even a police officer, sets out to substantiate a hunch, their opinions are often justified and influenced in a manner consistent with proving the hunch rather than disproving or neutrally evaluating the hunch. This is how their own opinions can lead them to see otherwise innocent behavior as intoxicated behavior.
Even though police officers have some specialized training, they are usually at a disadvantage when it comes to determining what a particular person’s normal mental and physical faculties actually are. The point being, if you don’t know a person’s actual mental or physical faculties, how can you determine whether that person no longer has their normal use of these faculties? Instead, intoxication is determined by opinion – the arresting officer’s opinion as to whether a person is intoxicated or not. Because they know a DWI or DUI case will come down to their opinion and little more, police officers are trained to be very convincing in their testimony, and prosecutors are skilled in bringing out opinion evidence of intoxication. In fact, police officers receive classroom instruction on how to write their reports, how to testify, and what key words and demeanor to use to ingratiate themselves to the jury. Prosecutors too attend specialized education classes focusing on “convicting drunk drivers.”
When a police officer believes a person has been drinking an alcoholic beverage or is otherwise under the influence of some drug, they will attempt to obtain a breath sample or some other sample in order to check the alcohol concentration of that sample. Are errors made in determining the level of the alcohol concentration? Absolutely! Law enforcement agencies use machines to determine the level of blood alcohol concentration (BAC), and often these machines can be inaccurate. Have you ever got on a scale to check your weight and realized the scale was wrong? No matter how many times you step back on the same scale for additional measurement of your weight, a scale which is incorrectly calibrated will provide the same inaccurate reading. Calibration and many other factors affect the accuracy of the machines used by law enforcement. Will these machines ever be right? Possibly. Your DWI defense lawyer needs to know what to look for in determining if the law enforcement machine made a mistake.
But consider this point: Why would you take the “breath test” in the first place? Knowing the machine can be inaccurate and knowing whether or not you are charged and convicted of DWI can be based on a possible inaccuracy, why give the breath sample? See the information below regarding driver’s license suspension for failing to provide the breath sample.
Field Sobriety Tests
The other tool used in most DWI/DUI cases is field sobriety testing (FST). This is a series of physical exercises used by law enforcement to substantiate their belief that you are intoxicated. These tests include the walk and turn (walking a straight line while walking heel-to-toe), the one leg stand (standing on one leg while holding the other leg out in front of you), and the HGN (horizontal gaze nystagmus or “pen test” where you follow a pen or other object with your eyes). If you perform these tests, the officer will be marking each time you sway, each time you step too wide, each time you wobble or lose your balance. These tests are supposed to assist the officer, and the jury, in determining whether or not you have lost the normal use of your mental or physical faculties, but do you normally walk a straight line by walking heel-to-toe? Do you normally stand on one leg with the other leg extended out in front of you? Of course not! There are many valid and innocent reasons why a person might fail or do poorly on these tests, and those reasons have nothing to do with intoxication.
If the State can meet their burden of showing a person was intoxicated, they also have to prove that person was operating a motor vehicle while he or she was intoxicated. You notice the use of the term “operating a motor vehicle” and not “driving”. The Texas statute on DWI/DUI criminalizes the operation of a motor vehicle. Operation can include sitting on the side of the road or in a parking lot with the engine running and the foot on the brake.
Not only must the State prove intoxication, but also the State must prove a person was operating the motor vehicle while intoxicated. Because alcohol affects different people in different ways and because it takes time for ingested alcohol to begin to affect a person’s mental or physical faculties, it is important for the State to prove the timing of the intoxication. While this may seem rather simple, it is actually difficult to do without additional information call extrapolation.
Because alcohol and other substances take a period of time to make an individual intoxicated, there are extrapolation factors which may show at the time of driving, the person was not intoxicated, but may have become intoxicated after the arrest as the alcohol took its affect. For example, a person may have a 0.08 blood alcohol concentration (BAC) at the time of testing, but it has been over an hour since he was driving. If the person was absorbing the alcohol from the stomach into the blood stream after the arrest and while waiting for the test, then extrapolation might indicate the person was below the legal limit while driving. These types of extrapolation factors may cause the State to dismiss a case without the necessity for a trial. Our Houston DWI defense attorneys are trained in the extrapolation factors and have used their experience to benefit their clients.
Absent an extrapolation issue, in most cases, the police officer will testify he observed the person driving, believed the person might be intoxicated, and detained the defendant. The “driving” testimony will often include that the officer was following the person, the person was weaving or had run a stop light, or the person made a wrong turn. Because most cases involve actual driving, the driving facts will most often include some minor traffic violation: speeding, unsafe lane change, no seat belt, or failure to follow a traffic control device.
Once the officer observes a traffic violation, the officer may pull over the driver and temporarily detain the driver. During this detention, the law enforcement officer will usually articulate they observed “signs of intoxication” or “smelled alcohol”. The smell of alcohol or seeing signs of intoxication gives the officer the right to continue the detention of the driver to determine whether or not the driver might be intoxicated. In any detention, the actual detention must be legal for the officer to continue his testimony regarding the signs of intoxication he observed, thus forming his opinion the individual was intoxicated. If the detention was illegal, there will be very important suppression issues that need to be litigated. If an illegal detention is successfully litigated, the officer is foreclosed from testifying about anything he observed or thought from the illegal detention forward. This means if the stop of the vehicle was illegal, then the officer cannot testify about signs of intoxication that he observed, tests that were performed, and breath samples that were obtained. In short, this means the State has no evidence to present to a jury and must therefore dismiss the charges. Again, this is why you must have the right DWI defense for your case.
Also, it is important to realize that many driving while intoxicated (DWI/DUI) charges are filed after an investigation of an accident where the police did not actually witness a person driving. Sometimes the accident investigation even occurs hours after the actual accident. In many cases the State simply can not produce a witness who can testify that the arrested person was actually operating a motor vehicle. In these cases, the State cannot prevail in their criminal charges.
It is important to understand there are two possible means of losing the privilege to drive that both relate to DWI/DUI cases. First, being convicted of driving while intoxicated or under the influence (DWI/DUI) can cause your license to be suspended. Secondly, not taking the breath/blood test or failing the breath/blood test can cause your license to be suspended. We’ll focus on the second issue here.
When someone is suspected of driving while intoxicated or under the influence, the law provides that person will take a breath or blood test (most common being a breath test). If the person passes the breath test, there is no license suspension. However, the person refuses to take the breath test or takes the breath test and fails, the license can be suspended. In either of these cases, the Department of Public Safety will start a civil proceeding to suspend the persons driving privileges. This suspension is automatic UNLESS the person contests the suspension and asks for a hearing. The hearing must be requested within 15 days of the breath test request, otherwise, the suspension automatically takes effect 45 days after the breath test. This hearing is something your Houston DWI defense lawyer should request immediately. So, even if your court date is sometime later, you will want to consult an attorney immediately after your arrest.
Because the suspension is only effective upon “notice to the driver”, law enforcement officers will usually provide you “notice” of their intent to suspend your license by giving you a DIC-25 form during your arrest. With this form, you are allowed to drive for 45 days from the date of your arrest. Again, if you fail to ask for an administrative hearing within 15 days, your driving privileges will automatically be suspended at the end of this 45 day period. Because your driving privileges are so important, you need an experienced DWI defense attorney to request a hearing and represent you during this administrative hearing. If a hearing is timely requested, you can continue to drive using the DIC 25 form until the hearing is held.
The suspension periods are different depending upon many factors including whether a person refused to take the test or failed the test. Assuming a first offender that is over 21, if the person refused to provide a sample of their breath or some other sample to determine the alcohol concentration, the State may suspend that person’s driving privileges for 180 days. If the person provided a breath sample which showed an alcohol concentration of .08 or more, the State may suspend that person’s license for 90 days. Other factors which may change the suspension period are whether or not the person is over 21, whether or not they have prior alcohol related contacts with the law, and whether or not someone was seriously injured or killed as a result of the driving while intoxicated offense.
First, your DWI defense lawyer should handle this hearing for you. And, in most instances, you will not and should not be present. You should not be present so that the Department cannot call you as a witness to provide evidence against yourself.
At the administrative hearing the State will want to introduce the peace officer’s sworn report. There are many things that can make this document inadmissible or, even if admissible, not sufficient to prove all the necessary elements needed to suspend one’s driving privileges. Your attorney needs to be experienced in recognizing whether the statement comes into evidence and whether it is sufficient to prove up the State’s allegations. A very necessary element is proof that the individual was driving or in actual control of a motor vehicle or a watercraft powered by an engine of 50 horsepower of above. Yes, a boating while intoxicated charge could cause a driver’s license suspension too!
While not all clients will ultimately prevail during this hearing, many do. And, even those who do prevail will benefit greatly from having their attorney cross-examine the arresting officer regarding your case. This testimony will be invaluable as your attorney prepares to defend the criminal case.
If your lawyer prevails in your administrative hearing regarding the civil suspension of your license, your driving privileges will not be suspended unless you are convicted of the criminal charge or you fall into one of the many other categories that would cause your license to be suspended. Our Houston DWI defense attorneys are well versed in the many provisions of the traffic code that can result in a license suspension. We will protect all of your rights and we will advise you of the many pitfalls you face because of the driving while intoxicated charge.