Chart for DWI Related Driver’s License Suspensions in Texas

July 5, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Here’s a quick run-down of driver’s license suspension times which relate to Driving While Intoxicated charges (as of July, 2013).

Driver’s license suspensions related to drunk driving charges occur one of two ways: (1) by either a breath/ blood test refusal/ failure: or (2) because of a conviction for DWI.

These determinations are slippery and the code doesn’t do a very clear job of sorting them out.  It’s best to consult an attorney before trying to figure it out on your own.  Also suspension’s listed below due to refusal/ or denial are appealable through Administrative License Revocation hearings (otherwise known as ALRs).  Though the State and police want you to really think these are automatic upon arrest — they really aren’t.

DUI (Minors with any detectible about of alcohol):

1st arrest — 60 day suspension

1 prior — 120 days

2 prior — 180 day suspension

1st DWI arrest (regardless of age):

Refusal:  180 day suspension

Failure (breath or blood over 0.08):  90 day suspension

Conviction: 90 days to 1 year (suspension is abated by classes taken during probation)

2nd “alcohol related contact” within 10 years

Refusal:  2 year suspension.

Failure:  1 year suspension.

Conviction of DWI 2nd: 180 days – 2 years (suspension may be partially abated by classes taken during probation)

Conviction of DWI 2nd within 5 years: 1 to 2 years (suspension may be partially abated by classes taken during probation).

*Jeremy Rosenthal is an attorney licensed to practice in Texas and is Board Certified in Criminal Law.  This is not intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.


The Top 5 Things You Should Do When Stopped for DWI

December 29, 2012

By Collin County Criminal Defense Attorney Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Texas DWI arrests are like snowflakes in each and every case I’ve seen is unique.  Different police officers think differently from one another and there is no one-right way to “get out” of a DWI arrest.  Being cooperative and giving detailed explanations may work with some officers yet others will actually turn your helpful nature against you.  Having seen hundreds of cases,  I can tell you what normally helps and what usually makes things worse.

Here are the top 5 things you should do when being stopped or investigated for DWI.

5.  Be Friendly and Courteous to the Officer (Remember, You’re On Camera!)

A DWI trial is a rare case where the juror actually identifies with the defendant as much or more than the officer.  Jurors, therefore, subconsciously wonder how they would act towards the police in your situation.  The vast majority of jurors see themselves as being polite, friendly and cooperate regardless of how difficult the officer is being or what he asks the person to do.  If you are a jerk or are mean to the officer, not only are you almost certain to be arrested, but the jury will dislike you as well.

4.  Know Your Rights and Exercise them Wisely

You have the right to remain silent and you also have a right to refuse any of the field sobriety tests offered in the field. If you remain silent immediately after being pulled over, though, you’re daring the police officer to arrest you (and I promise he or she will find a reason).  If you refuse the field sobriety tests, your refusal of the tests is not considered “testimonial” in nature and therefore the jury will know you refused the tests.  Again, you run the risk of turning yourself into the bad guy before the jury.

If you’ve been arrested and mirandized then you should absolutely exercise your right to remain silent.  They think you’re guilty and they’ll spin anything you say into confessions of guilt.  Also remember you’re probably being taped the entire time. Don’t initiate conversations with the police in the station or in the police car.

3.  If You Do The Standardized Field Sobriety Tests

There are three field sobriety tests in a standard battery created by the National Highway Traffic Safety Administration (“NHTSA”).  The three tests are the horizontal gaze nystagmus (“HGN”), the walk and turn, and the one-leg stand.  Rather than geek-out on the details of the tests and studies which validate tests which are conducted and graded correctly by the police, I’ll tell you a handful of truths about the tests.

First is if you get arrested — you can be positive the officer will say you failed the tests no matter how well you think you may have done.  This is because officers — even well meaning ones — are biased graders.  If they think you’re drunk when they first pull you over, you can be sure they’ll nit-pick your performance and find just enough fault to justify your arrest.  It’s not dishonesty, it’s being human.

Second — and most importantly — jurors see the field sobriety tests as potentially unfair.  Again, they tend to see themselves in your shoes on the side of the road.  They know it’s an intimidating environment and they also wonder if they could do the tests themselves.  The HGN is a neurological eye test performed and explained by a person who directs traffic when needed… jurors have a hard time understanding or believing HGN.  As for the other two tests, jurors understand knee, back or weight issues make the tests hard… let alone doing the test with whizzing cars, flashing lights, or gusty winds acting as nuisances.

If you take the tests — you should be sure to tell the officer any medical or physical issues you might have which could affect the test.  This could be knee issues, head injuries, back problems, broken bones etc. etc. etc…  You can be assured the officer will let your medical problems go in one ear and out the other — but the jury will get to hear the problem and they will listen.

2.  Be Skeptical of Representations the Police Officer Makes

My experience is police tend to make up their minds very quickly in DWI arrests then focus on substantiating their conclusion.  Police, though, will never admit this and are trained to manipulate you into cooperating by taking additional test and answering additional questions.

Listen to police with skepticism.  Though they could be sincere in wanting to cut you loose or let you call a friend — it’s just as likely they’ve got their fingers crossed behind their back.

“I just want to see if you’re okay to drive,” sounds to the listener like “I’m thinking of letting you go if you do okay on the test” but it isn’t.  Also statements like “honesty goes a long way with me” or “I can’t help you if you don’t tell me whats going on” sound like the officers decision could go either way… but it’s possible the officer has already called the tow-truck.

1.  Don’t Take the Breath Test

Texas Transportation Code Section 724.013 gives a person a right to refuse the breath test.  The police may try to pursue a warrant for your blood, but this isn’t a certainty and they may not do the application properly.

The Intoxylizer 5000 is the current machine used by the State of Texas.  Though I won’t geek out on it in today’s blog, I can tell you the concern of most experts I’ve worked with is it is simply too general.  A person who blows a 0.12 might actually be as low as a 0.05 at the time of driving or as high as a 0.17.

Additionally, jurors tend to understand refusing the breath test even though they might submit themselves.  They’ve head enough horror stories and they honestly don’t know how much alcohol consumption it takes to get them to a 0.08 either.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any specific situation you should contact an attorney directly.


TxDOT Signs Bend Truth for Noble Cause

August 27, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

On a recent drive to Austin and back, I couldn’t help but notice about 10 or 15 Texas Department of Transportation electronic signs which flashed two sequential screens.  The first was “1785 Deaths This Year on Texas Roads” and the second was a reminder not to drink and drive.

Wow, I thought… I didn’t realize drunk driver’s caused about 250 deaths per month in Texas alone!  Then I started thinking this figure sounded a bit too high.  Then my lawyer brain started to kick in and I realized the TxDOT signs were sort of making a play on words… The signs didn’t actually SAY all 1785 were caused by DWI — they had their fingers crossed!

The Obvious

No one wants drunk drivers on our roads.  Losing a loved one on the highway is a terrible tragedy no one should experience regardless of whether it’s inattentive driving, road rage, texting or drunk driving.  Hopefully the TxDOT officials decision to publish the number of traffic related deaths will turn heads and in doing so make our highways a safer place to drive.  You can read some of the PR they got here and here.

The Rub

The signs leave the clear impression the 1785 tragic losses on the highway are ALL due to Driving While Intoxicated.  When you read the quote from TxDOT spokesman Mark Petit, he says “We think that pointing out the number of deaths that have occurred so far this year will make somebody think twice maybe about whether they should pick up that cell phone and text somebody, or whether they should buckle that seatbelt.”

But the signs don’t say, “Buckle Up” and they don’t say, “Don’t Text and Drive.”  Each sign I saw had the same sequence of traffic deaths followed by the warnings against drinking and driving.

Here’s Why It’s A Problem

It’s a problem because it leaves a false impression, over-exaggerates, and stokes the flames against a group of people that it’s already somewhat popular to pick on — DWI suspects.  TxDOT concedes traffic fatalities have declined 21% in roughly the past decade and Mr. Petit’s warning in the above quote is also clearly against distracted driving.

Think of how angry you would be if your husband, wife, son or daughter were on trial for Driving While Intoxicated and during the jury selection process, you hear extremely angry jurors who want to presume a suspect guilty and give them far harsher punishment — because they’re lead to believe DWI related deaths are approximately 300% worse than they actually are (in 2011, TxDOT reports 3,015 total highway deaths and 1,039 “involved” alcohol).

If there is harm in the Texas Department of Transportation also warning drivers to put down hand-held devices and to wear seat belts in conjunction with the traffic death statistics — I have a hard time seeing it.  Everyone wants safer roads.

*Jeremy Rosenthal is an attorney licensed to Practice in the State of Texas.  Nothing in this article is intended to be legal advice. For legal advice about any situation you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship and communications sent through this forum are not privileged nor confidential.

 


Dallas Morning News Articles on Police Alcoholism

January 18, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

The Dallas Morning News ran articles about police and alcohol abuse this past weekend (January 14, 15, and 16, 2012).  The articles included this article about a passenger of a car driven by a drunk, off-duty officer, this article about the culture of drinking and alcohol abuse within the police force, and this article about the toughening up of licensing requirements for officers who have committed alcohol related offenses.

These articles are very in-depth about this overlooked topic.  To be outraged and grandstand about what may, on it’s face, appear as mild hypocrisy (how many times do we see the friendly life-lecture on COPS?) misses the point with bad police behavior.  What needs to be focused on is that police are people too.  They’re vulnerable to peer pressure, they have psychologically demanding jobs, and they — like all of us — are products of the environment of which they live day in and day out.

Understanding police psychology including the understanding of police culture is essential in defending people accused by the police of wrongdoing whether it be DWI or any other offense.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications sent through this blog are not confidential.


Tarrant County’s Disappointing Decision to Publish DWI Arrestees Names

January 1, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Tarrant County decided to publish the list of DWI arrestees over New Year’s weekend.  You can read about their decision here.

According to Richard Alpert, Tarrant County prosecutorial guru for intoxication offenses, the measure is a creative way to make the streets safer.  Alpert reasons, “If the financial cost of being charged with a DWI-related crime and the risk of injury or death is not enough, perhaps the effect of having it known by friends and neighbors will be.”

Mr. Alpert further said he’s motivated to create new efforts to reduce drunk driving because of cases he’s worked on where people have been killed: “The worst photographs that I’ve ever had to look at as a prosecutor are vehicular crashes.”

Point well taken.  Mr. Alpert is highly regarded around the State and he is nothing if not sincere about his beliefs.

Here’s why Mr. Alpert’s decision is disappointing and reveals a common thinking error amongst law enforcement and prosecutorial agencies.  Not everyone is guilty.  In fact, based on past statistics it is inconceivable that all of the arrested people this weekend will be convicted.

Tarrant County’s actions of publishing the names probably means an acquitted person’s name will be on the internet FOREVER as a drunk driver regardless of what a jury says — and even regardless of if and when a District Judge Orders the Tarrant County District Attorney’s Office to take certain names off the list.  Putting something on the internet is writing it in permanent ink.

I wouldn’t expect the public to be too lose sleep over a few unlucky schmos who get tossed on this list because they ran into an angry cop having a bad night… or for some poor mope with a lisp that couldn’t talk an officer out of arresting him for having slurred speech… and I can’t imagine the masterminds of the list would be too bothered either.  After all… even if they beat the rap, they were probably guilty of SOMEthing, right?

Prosecutors have a duty to seek justice.  That duty is worthless where prosecutors assume everyone is guilty… and how do we know they’re making this assumption?  They are intentionally convicting them in the public and they’re not even bothering to read the police reports first.

Scary.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications through this blog are not confidential.


Tarrant County’s Disappointing Decision to Publish DWI Arrestees over New Years Weekend

January 1, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Tarrant County decided to publish the list of DWI arrestees.  You can read about their decision here.

According to Richard Alpert, Tarrant County prosecutorial guru for intoxication offenses, the measure is a creative way to make the streets safer.  Alpert reasons, “If the financial cost of being charged with a DWI-related crime and the risk of injury or death is not enough, perhaps the effect of having it known by friends and neighbors will be.”

In an interview with the Dallas Observer, Mr. Alpert further said he’s motivated to create new efforts to reduce drunk driving because of cases he’s worked on where people have been killed: “The worst photographs that I’ve ever had to look at as a prosecutor are vehicular crashes.”

Point well taken.  Mr. Alpert is highly regarded around the State and he is nothing if not sincere about his beliefs.

Here’s why Mr. Alpert’s decision is disappointing and reveals a common thinking error amongst law enforcement and prosecutorial agencies.  Not everyone’s guilty.  In fact, based on past statistics it is inconceivable that all of the arrested people this weekend will be convicted.

Tarrant County’s actions of publishing the names probably means an acquitted person’s name will be on the internet FOREVER as a drunk driver regardless of what a jury says — and even regardless of if and when a District Judge Orders the Tarrant County District Attorney’s Office to take certain names off the list.  Putting something on the internet is writing it in permanent ink.

I wouldn’t expect the public to be too lose sleep over a few unlucky schmos who get tossed on this list because they ran into an angry cop having a bad night… or for some poor mope with a lisp that couldn’t talk an officer out of arresting him for having slurred speech… and I can’t imagine the masterminds of the list would be too bothered either.  After all… even if they beat the rap, they were probably guilty of SOMEthing, right?

Prosecutors have a duty to seek justice.  That duty is worthless where prosecutors assume everyone is guilty… and how do we know they’re making this assumption?  They are intentionally convicting them in the public and they’re not even bothering to read the police reports first.

Scary.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications through this blog are not confidential.

 


Deep Lung Devices are Getting Harder to Avoid in Collin County While on Bond

December 14, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

All driving while intoxicated arrests in Texas require that a person see a magistrate judge.  That judge is required by law to make an initial assessment and to decide whether to order the defendant to have an ignition interlock device (also known as a deep lung device) under Texas Code of Criminal Procedure 17.441.

Here is the relevant text of 17.441:

“(a) Except as provided by Subsection (b), a magistrate shall require on release that a defendant charged with a subsequent offense under Sections 49.04-49.06, Penal Code, or an offense under Section 49.07 or 49.08 of that code:

“(1) have installed on the motor vehicle owned by the defendant or on the vehicle most regularly driven by the defendant, a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator; and

“(2) not operate any motor vehicle unless the vehicle is equipped with that device.

“(b) The magistrate may not require the installation of the device if the magistrate finds that to require the device would not be in the best interest of justice.

Section 17.441 can be read to state that a judge can only order the interlock device on a vehicle if it’s the 2nd DWI arrest (or more) of the defendant.  The judge can find that an interlock ignition device is not appropriate in the best interests of justice even on a 2nd arrest.

In reality, Judge’s interpret the law to state that they can always place an interlock device on a car but are only required to do so on a 2nd offense.  It is unclear whether they are interpreting 17.441 as the basis for their beliefs of some other statute.  Additionally, many Collin County judges have informal policies that if a defendant had a car accident or was charged with the new offense of DWI with a blood alcohol concentration above 0.15, then they will order the deep lung device as well.

Ultimately deep lung devices are becoming more and more common as terms and conditions of bond in Collin County.  Arrest and going before the magistrate is not the only time in a case where a judge may have an opportunity to order the deep lung device as well… the judge can order the defendant get one when the defendant applies for an occupational license due to a driver’s license suspension, during a guilty plea, or if a jury convicts the defendant.

*Jeremy F. Rosenthal is an attorney licensed in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney client relationship and communications through this blog are not confidential.