Houston DWI Lawyer

How a Houston DWI Attorney Can Help You

When you are stressed over DWI charges, you may wonder whether you should take on the expense of a Houston DWI attorney.

If you are inexperienced with the criminal justice system, it makes sense that you would need a guide. The courts are not easily navigated, from knowing where to show up, which paper to fill out, and who to pay your fees to. By hiring a DWI lawyer, you have someone who knows all the administrative and legal processes, so you do not have to figure it out.

One of the greatest benefits of an attorney is knowing that your defense strategy is the strongest available. If you try to defend yourself, you may not have a strong enough argument. When you are going up against an experienced district attorney, you need a skilled and objective attorney to investigate and analyze which strategies are not only appropriate in your case, but also strong.

The many benefits of working with a Houston DWI defense attorney include:

• Advice during police questioning. You have the right to remain silent and ask for an attorney after your arrest. The police may start to question you about drinking or drug use, or even what you’d been doing that day, but you never have to answer. By getting an attorney into the room with you as soon as possible, you are best able to protect your rights. Your attorney can advise you on how to answer or when not to answer at all. You lower your risk of accidentally saying something the police or prosecutor can use against you later.
• Protection of your constitutional rights. It may feel like you don’t have many rights when you’re arrested for a DWI. The police can seem all-powerful in that situation. However, you are protected by the U.S. Constitution and many other state and federal laws. An attorney can help you understand your rights. Your lawyer can also make sure the police do not overstep their boundaries and violate those protections.
• Help navigating a complicated legal system. The legal process following a DWI arrest can be confusing for someone who has no experience with the law or criminal procedures. Instead of trying to figure out where you need to go and when, a Houston DWI attorney can advise you on your court dates and explain what will happen at each one. Your lawyer can also deal with paperwork, such as filing motions or discovery documents during a trial.
• Fighting to have the charges dropped. Some people who are charged with DWIs are completely innocent, and there is no reason why prosecutors should force them through trials. In this situation, your attorney will work with the prosecutor to have the charges dropped before you invest more time and money into a false accusation.
• Motions to suppress certain evidence. There are times when a prosecutor will seek to use evidence that was gathered in an inappropriate way, such as evidence obtained in an illegal search of someone’s vehicle or an improper roadside sobriety test. An experienced DWI attorney will review the prosecutor’s evidence for the case and motion for the court to throw out any illegally obtained evidence. If the motion is granted, none of that evidence can be used against you at trial.
• Minimizing the consequences of conviction. Some individuals will be unable to avoid a conviction, but that doesn’t mean they deserve the harshest punishment possible under Texas law. A skilled attorney will work with the prosecutor to negotiate a fair plea bargain or if you are found guilty, will seek a minimal penalty from the judge. Instead of jail time and stiff fines, many DWI convictions can result in probation, alcohol education programs, community service, and ignition interlock devices. Most of all, your attorney will work to ensure you avoid significant jail time and that you have the ability to drive as soon as possible.
• Applying for an occupational license. Losing your driver’s license is one of the most common punishments for a DWI. However, a license suspension can be extremely detrimental to your family’s welfare. Your DWI attorney can help you request an occupational license as soon as you’re eligible, which will allow you to go to work or school. This enables you to continue getting an education or supporting your family while serving your punishment.
• Helping to get your license reinstated. If you suffered through a criminal penalty license suspension, you will want your license reinstated as soon as possible. Your lawyer can walk you through the steps to get your license back when you’ve completed your suspension. If your license was automatically suspended after your arrest, your lawyer can help you fight this administrative punishment right away.

Another important way a DWI lawyer will assist you is by working toward the minimum penalties upon conviction. Despite using the strongest defense possible, you may be convicted of a DWI. If you have had a lawyer the whole time, then your case would have been presented in a way to mitigate the potential penalties and consequences. Your lawyer will seek leniency and fight for you to not suffer the maximum punishment possible.

Get Aggressive & Effective Representation from a DWI Lawyer

The cost of an attorney can be intimidating, but the financial and emotional expense of not having a capable DWI lawyer is a lot higher. An experienced attorney like Ned Barnett will guide you through the situation, helping to make it as smooth as possible.

Barnett’s strengths as a DWI attorney include:

• State and federal prosecutorial experience
• More than 20 years as a Houston defense attorney
• Board certified as a criminal lawyer in Texas
• Certified in DWI field sobriety tests
• Certified in the operation of breath test machines
• Certified in gas chromatography
• Selected as a top rated criminal defense lawyer by Super Lawyers in 2015

Call The Law Offices of Ned Barnett at (713) 222-6767 to schedule a free consultation.

Defending Against Houston DWI Charges

When you are charged with a DWI, you need to speak with an experienced attorney about defending yourself. The consequences of a DWI, even as a Class B misdemeanor, are too serious for you to simply accept. The best thing you can do for yourself is to work with a lawyer who will thoroughly review your situation and determine the strongest possible defense to your case.

There are many Texas DWI defense strategies, which may include challenging:

• The constitutionality of the traffic stop
• The constitutionality of a search or seizure
• The validity and accuracy of SFSTs or any non-standardized FSTs administered
• Whether a breath, blood, or urine test was properly administered
• Whether the breath, blood, or urine sample was compromised
• The accuracy of a breath, blood, or urine test

While there are many potential DUI defenses, not all of them will be appropriate in your case. Attorney Ned Barnett will look over your case piece by piece. He will ask you in-depth questions to determine whether a police officer acted appropriately. He will also thoroughly utilize discovery during the criminal court process to gather evidence regarding any chemical tests being used against you. He will look for any hole in the prosecutor’s case to find the best chance of exonerating you in court.

Traffic Stop Defenses

In Texas, an individual commits a DWI if he or she is intoxicated while operating a vehicle in a public place.

Intoxicated means one of two things:

• A person has a blood or breath alcohol concentration of .08 or more
• The individual has ingested alcohol, a controlled substance, or a drug that resulted in the loss of normal use of mental or physical faculties

To make a lawful traffic stop, an officer must have a reasonable suspicion of a law violation. Reasonable suspicion must be based on articulable facts that criminal activity is occurring. This is a lower standard than probable cause. Examples of reasonable suspicion that justify a stop include things like violating a traffic law, speeding, erratic driving, or swerving.

If an officer does not have reasonable suspicion, then any evidence collected during the detention, including the results of a blood or breath test or field sobriety test, may be deemed inadmissible. This means the prosecution would be left with no evidence, and the case would have to be dismissed.

Even if the officer has reasonable suspicion to pull you over, there must be probable cause to continue the detention past the time necessary to effectuate the traffic stop.

In other words, if the officer pulls you over for speeding, he or she can detain you no longer than the time necessary to issue the ticket, unless he or she has probable cause that you are intoxicated.

Officers will typically base their suspicion of intoxication on observable facts such as:

• Slurred speech
• Smelling an alcoholic beverage on someone’s breath
• Seeing an open container in the vehicle
• Bloodshot eyes
• Lack of motor coordination

If the officer observes physical signs of intoxication, he or she will likely administer a field sobriety test. The officer could also administer a breath test to measure your blood alcohol concentration (BAC).

If you provide a BAC sample that is .08 or more or fail a field sobriety test, the officer will have probable cause to arrest you for a DWI.

Keep in mind that even without the field sobriety test or BAC sample, the officer could use any physical signs of intoxication as justification for an arrest. If an arrest is made without probable cause, it would be unlawful and may be grounds to challenge the DWI charge.

You may also have grounds to challenge the violation of your constitutional rights if the officer failed to provide a Miranda warning at the time of arrest or if your right to an attorney was denied.

DWI Test Defenses

Depending on the facts, there may also be grounds to challenge the administration or accuracy of the DWI test results. Since many Houston DWI cases rely on the allegation that you were operating a vehicle while your blood alcohol level exceeded the .08 legal limit, challenging the validity or accuracy of test results can be a very effective defense.

If test results can’t be used to demonstrate impairment, the prosecutor may be left with little or no evidence.

Field Sobriety Tests
In Texas, officers usually use three field sobriety tests:

• One-leg stand
• Walk-and-turn
• Horizontal gaze nystagmus (HGN)

These tests are designed to measure motor skills and/or concentration, with the idea that these things will be impaired if the person is intoxicated. These tests are flawed because the results can vary depending on the person’s weight, underlying medical conditions, fatigue, physical limitations, lack of coordination or balance, or even the environmental conditions at the time the test was administered.

The HGN test is particularly subjective as it relies on the officer’s interpretation of whether a person’s eye jerks involuntarily in a manner that suggests intoxication while tracking an object controlled by the officer.

Breath Tests

Texas law enforcement uses the Intoxilyzer 5000 machine for breath tests and it measures blood alcohol concentration by way of infrared spectroscopy. This technology is not foolproof and has a standard of error of approximately 20%.

Your results may be negatively impacted by any residual alcohol in your mouth from mouthwash or dental work, medical conditions, weight, the temperature of your breath, and whether the machine has been properly calibrated and maintained.

Blood Tests

A blood test can be administered to measure your blood alcohol concentration if you consent. If you refuse to give consent, the officer may obtain a search warrant to compel you to give a blood sample.

There are numerous ways in which human error can compromise the accuracy of blood tests, be it during the collection, handling, testing, or analysis of the sample.

When an officer obtains a warrant for a DWI blood test, the warrant must be based on probable cause. This means the officer must have some evidence that suggests you committed a DWI. The blood test evidence could be contested if there was no such probable cause to support the warrant in the first place.

Barnett Knows DWI Defenses That Work

If you have been arrested and charged with a DWI, it is important that you contact an experienced Houston DWI attorney as soon as possible. Ned Barnett has significant experience handling DWI cases both as a former prosecutor who tried DWIs and as a criminal defense lawyer.

Barnett knows the many ways a DWI can negatively affect your life and career. That’s why he always fights to get the best possible result.

DWI Attorney Ned Barnett has achieved favorable results in countless DWI cases in the Houston area. He is board certified as a defense attorney by the Texas Board of Legal Specialization and has certifications in DWI field sobriety testing, operation of breath test machines, and gas chromatography, the process used in DWI blood tests.

He knows how to mount strong challenges against DWI evidence, the testimony of police and lab technicians, and can present compelling arguments on your behalf.

Barnett has a reputation as a highly-skilled and well-respected defense lawyer. This includes nearly 30 years of legal experience in Houston, trying criminal cases as a state and federal prosecutor and as a defense lawyer.

His experience and training have earned him invitations to speak as a leader in Texas criminal defense law and he was selected to Super Lawyers as a top-rated criminal defense lawyer in 2015. Additionally, he is a founding member of the National College for DUI Defense.

Contact the Law Offices of Ned Barnett today at (713) 222-6767 to learn more about challenging DWI charges and to schedule an free consultation.

How Much Does A DWI Lawyer Cost?

Each DWI attorney decides their own fees, which means there is not a single answer regarding how much a DWI lawyer costs. Many criminal defense lawyers charge an hourly rate and require an upfront retainer. The amount of the retainer and hourly fee depends on several factors, including the attorney’s years of experience, additional qualifications, and track record of success.

The overall cost of hiring a private attorney for your case can vary drastically depending on the situation. If you have a strong defense and it is likely that your lawyer can have the charges dropped quickly, then the number of hours your attorney spends on your case is likely fewer than if you have a tough case you must take to trial. Every DWI case is unique, and there is no way to predict how many hours a lawyer must work on your case without speaking with an attorney directly.

To speak with an affordable DWI lawyer regarding their fees, call The Law Offices of Ned Barnett right away. (713) 222-6767.

DWI Charges We Handle

The Texas Drunk driving laws can be found in Texas Penal Code, Title 10, Chapter 49. Under Texas Penal Code Section 49.01 (2), legally intoxicated means not having the normal use of mental or physical faculties by reason of the introduction into your body of

• Alcohol
• A controlled substance
• A drug
• A dangerous drug
• A combination of two or more of those substances or any other substance

You can also be considered legally intoxicated by having a blood-alcohol concentration of .08 or more. In practical terms, not having normal mental and physical faculties could mean behavior such as slurred speech, swerving while driving, or simply not acting normal.

Texas Penal Code Section 49.04 also states that a person commits driving while intoxicated if he/she is intoxicated while operating a vehicle in a public place.

At The Law Offices of Ned Barnett, we handle all types of DWI offenses. Call us immediately if you have been charged with:

First DWI

A first-time DWI in Houston is incredibly stressful and scary. For most, it is likely their first-ever encounter with the police. You are likely not only concerned about the harsh legal penalties like fines and possible jail time, but also the long-term consequences because even a first DWI can impact your job, driver’s license, and criminal record.

What’s Considered a First DWI?

A first DWI in Texas can mean a few different things. Typically, it means being accused of driving under the influence for the first time ever. But it can also mean your first DWI charge in a long time. Texas has a 10-year lookback period. If you had a DWI arrest that happened 11 or more years ago, then your current charge may be considered a first-time DWI.

A first DWI is typically charged as a Class B misdemeanor. However, you could face higher charges if there are aggravating circumstances. In either situation, you should speak with a Houston DWI attorney right away.

First DWI Penalties

If convicted of a first DWI offense in Texas with less than a .15 blood alcohol concentration level, the possible penalties include:

• A minimum of 3 days in jail and a maximum of 180 days in jail
• A fine of up to $2,000
• Suspension of your driver’s license for 90 days to 1 year
• Annual surcharge fee of $1,000 for 3 years to retain your driver’s license

For adults with a blood alcohol concentration of .15 or more, a first DWI offense is a Class A misdemeanor and the possible penalties include:

• Up to 1 year in jail
• A fine of up to $4,000
• Suspension of your driver’s license for up to 1 year
• Annual surcharge fee of $2,000 for three years if blood-alcohol concentration is .16 or more
• Installation of ignition interlock device required for 1 year following your period of license suspension

Any number of aggravating factors can increase the penalties for first time DWI offenders. If a person is driving while intoxicated with a passenger who is younger than 15, the offense is a state jail felony.

Generally, a first time DWI will result in probation rather than jail, but if a driver has an open container in his/her possession at the time, there is a mandatory 6-day jail sentence.

In addition, first time DWI offenders are required to take an Alcohol Education Course, which must be an approved 12-hour course within 180 days of when probation was granted. First time DWI offenders should also expect to do at least 24 hours of community service, but no more than 100 hours.

Your License after a First DWI

For individuals who fail or refuse to take a blood or breath test, Texas will attempt to automatically suspend your driver’s license. Individuals have 15 days from the date they receive notice of suspension, to request a hearing.

If you fail to request a hearing within the required timeline, your license will be automatically suspended and you will not have a right to contest the suspension.

Given the potentially devastating consequences for a first-time DWI in Houston, it is important to contact an experienced, local attorney immediately following an arrest. The right DWI lawyer can make all the difference in your case.

Multiple DWI

Second, third, and subsequent DWI arrests will lead to higher charges, which in turn result in harsher punishments. Texas’ look back period is 10 years. Any previous DWI convictions that arose from an arrest within 10 years from the date of your newest arrest will count against you. Multiple DWIs may be charged as a felony and can result in years in prison. To learn about the charges and penalties you face for a second or subsequent DWI, call a DWI lawyer immediately.

Underage DUI

The legal drinking age in Texas and across the U.S. is 21 years old. If you are under 21 years old, pulled over while driving, and the officer suspects you have alcohol or drugs in your system, you can expect to be arrested. Texas has a zero-tolerance policy for underage drinking and driving. If prosecutors have evidence that you had any alcohol in your system while underage and driving, you will usually be charged with a Class C misdemeanor. If there is evidence your BAC was .08 or higher, you may be charged as an adult and face a DWI. Considering the serious penalties and consequences you face as an adolescent, you should call a DUI lawyer.

DWI With a Child Passenger

Texas law takes it very seriously if you are arrested for a DWI while there is a minor in the vehicle with you. Texas Code §49.045 states that if you committed a DWI with a minor 15 years old or younger in the vehicle, you will be charged with a felony. In this situation, it is essential that you have a criminal defense attorney by your side.

Drugged Driving

You can be charged and convicted of a DWI if you are intoxicated while driving. You may assume that means you were drunk from alcohol. However, it can also mean you were physically and/or mentally impaired due to drugs. In Texas, it does not matter if you purchased and took the drugs lawfully, such as if they were a prescription or over the counter (OTC) medication. If the drug caused you to be intoxicated, it was illegal to drive.

Intoxicated Manslaughter

If you operated any type of vehicle while intoxicated due to drugs, alcohol, or both, and you caused a car accident that lead to another person’s death, you may be charged with intoxicated manslaughter under Texas Code §49.08. This is a second-degree felony and can be harshly punished. You will need a DWI lawyer in Houston to defend you.

DWI While on Probation

Getting arrested for a DWI while you’re on probation can have devastating consequences in every aspect of your life. To learn more about the potential penalties of this offense, call a Houston DWI lawyer right away.

Commercial Drivers and Texas DWI

If you have your commercial driver’s license (CDL) and are in your commercial vehicle, then your legal BAC limit is .04 percent. A very small amount of alcohol can put you over the legal limit and cause you to be arrested for a DWI while working. This arrest could be devastating to your career, even if you were not convicted. Depending on your employer’s policies, a DWI arrest could lead you to lose your job. If you are convicted of a DWI, you will lose your CDL and your ability to work as a commercial driver. If you are facing a DWI with a CDL, it is essential you contact a DWI attorney as soon as you can.

Out-Of-State Drivers and Texas DWI

Whether you are in Texas for business or a vacation, being pulled over and charged with a DWI can be devastating. You trip likely ends only days after your arrest. You must head home, yet you still have charges pending in another state. The best for an out-of-state driver like you to handle a Texas DWI is to hire a local attorney. If your DWI case is in Houston or the surrounding areas, contact The Law Offices of Ned Barnett for help.

You cannot ignore an out-of-state DWI. The case will proceed, whether or not you show up to court. If you try to ignore the charges, you will end up with a DWI conviction on your record. The consequences will reach you in your home state, and you will wish that you took the time to defend yourself.

Elements of a DWI Case

For prosecutors to prove you are guilty of a DWI, they must prove:

• You were intoxicated due to alcohol, drugs, or both;
• You were operating a motor vehicle; and
• You were in a public place.

If any of these elements is not established beyond a reasonable doubt, then you may not be convicted of a DWI.

Texas DWI Offenses

In Texas, you can be charged with a DWI under Texas Penal Code §49.04, which states: You commit a crime if you are intoxicated while operating a motor vehicle in a public place.

It is important to note that the statute does not specifically mention the blood alcohol concentration (BAC) legal limit yet – or alcohol at all. It merely says you cannot be intoxicated, which is something prosecutors may prove in court either through your BAC at the time of the stop or through other evidence that you did not have normal use of your mental and physical faculties.

More About The Texas Legal Limit

Prosecutors may seek to prove you were intoxicated due to your use of drugs, alcohol, or both. The drugs may be illegal controlled substances, prescriptions, or over-the-counter (OTC) products. Though it may be a harder case for prosecutors, you can be convicted of a DWI without your BAC being .08 percent or higher.

The statute also does not say you must be “driving.” Instead, it says operating a vehicle, which is a broader situation. You can be arrested for a DWI for sitting in the driver’s seat of a vehicle with the keys in your hand.

Potential Penalties for a Texas DWI

When you are charged with a DWI in Texas, you need to be aware of the statutory penalties you face. Texas law outlines penalties for DWIs based on whether it is a first, second, or third offense. It also may into account whether you had a BAC over .08 percent or a BAC above .15 percent, which is considered a higher BAC.

First DWI, BAC Between .08 and .15 Percent (Class B Misdemeanor)

• Jail for three to 180 days
• Fine up to $2,000
• Driver’s license suspension between 90 days and one year
• Ignition interlock device for a period of time
• Annual license surcharge fee of $1,000 for three years

First DWI, Open Container of Alcohol (Class B Misdemeanor)

• Jail for six to 180 days
• Fine up to $2,000
• Driver’s license suspension between 90 days and one year
• Ignition interlock device for a period of time
• Annual license surcharge fee of $1,000 for three years

First DWI, BAC Greater Than .15 Percent (Class A Misdemeanor)

• Jail up to one year
• Fine up to $4,000
• Drivers’ license suspension of one year
• Ignition interlock device for a period of time
• Annual license surcharge fee up to $2,000 for three years

Second DWI (Class A Misdemeanor)

• Jail between 30 days and one year
• Fine up to $4,000
• Driver’s license suspension between 180 days and two years
• Ignition interlock device for a period of time
• Annual license surcharge fee up to $2,000 for three years

Third DWI (Third-Degree Felony)

• Prison between two and 10 years
• Fine up to $10,000
• Driver’s license suspension between 180 days and two years
• Ignition interlock device for a period of time
• Annual license surcharge fee up to $2,000 for three years

Underage DWI (Class C Misdemeanor)

• Community service between 20 and 40 hours
• Fine up to $500
• Driver’s license suspension between 60 and 180 days

DWI with Child Passenger (State Jail Felony)

• State jail between six months and two years
• Fine up to $10,000
• Driver’s license suspension between 90 days and two years

Intoxication Manslaughter (Second-Degree Felony)

• Prison between two and 10 years
• Fine up to $10,000
• Driver’s license suspension between 180 days and two years

Consequences for Your Driver’s License After a DWI

Administrative License Revocation

If you are arrested for a DWI, there is a high chance that you will be notified of an Administrative License Revocation (ALR). An ALR is a civil, administrative punishment, not a criminal penalty. You do not need to be convicted first. You may receive notice from your arresting officer or through a letter in the mail.

You can face an ALR if you are intoxicated while driving, in other words, you failed a chemical test, or if you refuse to submit to a chemical test upon arrest. If you are found to be driving while impaired, whether through drugs or alcohol, you face a minimum ALR of 90 days. If you refused a breath or blood test, your license may be suspended for at least 180 days.

If you receive notice of an ALR, you should call a Houston DWI attorney right away. Texas only gives you 15 days from the date of notice to request an administrative hearing. You need to appeal the suspension right away. If you do not, then the suspension goes into effect 40 days after you received notice.

Appealing an Administrative License Revocation

Criminal License Suspension

Whether or not you lose your driver’s license as an administrative penalty, you also face a license suspension or revocation as a criminal penalty if you are convicted. Depending on the exact offense, you may lose your license for a few months or a couple of years. You must go through a period of a hard suspension before you may be able to apply for a hardship license. You can speak with a Houston DWI lawyer about filing a petition for a hardship license so that you may go to school or work or receive proper medical care.

Whether you lose your license after a DWI through the administrative or criminal process, you must pay a fee to have your license reinstated. If you were convicted of a DWI, you may have to pay an extra license fee each year for a few years.

Your Driver’s License After a DWI

Collateral Consequences of a DWI Conviction

The impact of a drunk driving conviction goes well beyond DWI penalties. After completing your jail time, living without a license, and paying fines, you may feel you have paid your debt to society. The truth is that society will be much harder on you. You may face myriad challenges, including:

• Higher Insurance Rates. Once your insurance company is aware of your conviction, you will be charged higher premiums because the insurer views you as a higher risk. You are more likely to cost them money in the future, so you have to pay more for coverage.
• Limited Mobility & Travel. A DWI often results in the loss of your license for a period of time. If you have multiple offenses, you may lose your license forever. This makes it difficult to get to and from class, work, and family activities. Travel can also be difficult without the ability to drive or easily get to and from an airport.
• Employment Issues. Many positions require that applicants disclose criminal offenses. A DWI can make you look irresponsible or unfit for the job. If the position you are applying for requires making deliveries or driving a company car, you’re even less likely to get the job.
• Education Issues. In addition to disclosing convictions on job applications, you may have to do so on college or graduate school applications. Universities may think twice about admitting someone with a criminal record, particularly if the offense included injury to another person.
• Professional Licenses. A DWI can make it difficult to obtain a professional license like the ones required to be a doctor or a lawyer. While you aren’t barred from seeking those licenses, the governing bodies of these professions may question whether you are fit to represent that profession.
• Voting Rights. If you are convicted of a felony you will lose the right to vote.
• Gun Ownership. Convicted felons are prohibited from owning any firearms unless their civil rights have been specifically restored by the state in which they live. Restoration of civil rights such as voting and the right to own a firearm can be difficult to obtain.

A DWI conviction can impact your education, career, and family life. It can impact your ability to remain in the U.S. or travel abroad. While a DWI does not have to ruin your life or be the end of your plans, it creates a significant hurdle. You will need the help of a DWI attorney to avoid these negative consequences and move forward in life.

With more than three decades of experience as a prosecutor and defense attorney, Barnett understands the nuances of Houston DWI law and how to avoid a one-time mistake DWI from defining your entire life. Call (713) 222-6767 for a free consultation.

Overview of the DWI Process

The DWI process in Texas typically includes:

• You are stopped while driving by a police officer, or you are stopped at a roadblock.
• The initial traffic stop may include the officer asking you questions, SFSTs, or a roadside breath test.
• You are arrested and informed of your Miranda rights.
• An officer confiscates your driver’s license and gives you notice of an ALR.
• After arriving at the police station, an officer reads you the statutory warnings regarding refusing a chemical test.
• An officer requests that you submit to DWI chemical tests at the police station. You either refuse or submit to a breath and/or blood test.
• If you refuse a chemical test, the police may obtain a warrant for a blood sample.
• You are booked into jail.
• You make your initial court appearance before a magistrate within 48 hours of your arrest.
• The magistrate informs you of the charges and your rights and then determines if there was probable cause for your arrest.
• Without probable cause, you will be released. If there was probable cause, the magistrate sets conditions for release, including the bail amount.
• Once you arrange bail, if necessary, you can get out of jail after your DWI arrest. You will be given a document that lists the date and time of your next court hearing.

After you are arrested, charged, and released from jail, you need to contact a Houston DWI lawyer to determine the best way to defend against these charges. However, if you are still in jail, a friend or family member may contact The Law Offices of Ned Barnett on your behalf. We can meet with you in our offices or in the jail to discuss your legal options. Call (713) 222-6767 to schedule a free consultation.

When an Officer May Pull You Over

A police officer in Texas, whether they work for a county, city, or the state, can pull you over if they have reasonable suspicion that you are driving under the influence of alcohol or drugs. This standard is lower than probable cause. For an officer to have reasonable suspicion, the facts of the situation must make it reasonable for the officer to presume you are committing a crime. This is more than a gut feeling or hunch. There must be observable facts for an officer to pull you over, such as:

• Swerving or drifting in and out of the lane
• Driving in the middle of two lanes
• Almost hitting another vehicle or property
• Braking erratically
• Making a rolling stop at a stop sign or red light
• Driving too slowly or being overly cautious
• Taking a turn poorly, cutting it too close to the curb or taking it too wide
• Holding a container with alcohol while you drive

If you believe there was no valid reason for an officer to pull you over, that there could not have been reasonable suspicion, then you should call a DWI lawyer right away. A traffic stop without reasonable suspicion is a violation of your constitutional rights.

What to Do During a DWI Stop

If you are pulled over by the police, always remain calm. Keep your hands on the steering wheel where the officer can see them. If it is night time, turn on the dome light of your vehicle.

The officer is going to ask to see your driver’s license and insurance card. Slowly get these things out of your wallet or purse. If you need to reach to obtain them, tell the officer what you are doing. For instance, if your wallet is in your jacket pocket, tell the officer you are going to reach into your right or left pocket to pull out your wallet.

The officer is going to ask you questions. During this time, remain calm and polite. You must tell the officer your name. However, after you identify yourself, you do not have to answer any other questions. You may state that you will not answer questions without an attorney present.

Whether or not you answer the officer’s questions, if they believe you are intoxicated, they will ask you to get out of the vehicle. You must comply. Do not argue with the police or refuse to exit the vehicle.

Once you are out of the vehicle, remain in place until the officer says otherwise. If you are asked to perform a standardized field sobriety test (SFST), you may politely decline. If you are asked to take a road side breath test, better known as a breathalyzer, you have the right to refuse. Keep in mind, refusing a breathalyzer or SFSTs will not stop an officer from arresting you if they believe you are inebriated. Further, you may have administrative repercussions for refusing a breathalyzer.

If you have been waiting a great deal of time with the officer, you may politely ask if you are free to go. If the officer says no, you may ask if you are under arrest. If the officer says no, do not try to run or drive away. Always remain there until an officer says you may leave. However, you always have the right to ask if you are free to go or if you are under arrest.

If the officer arrests you, they must read you your Miranda rights, which state:

• You have the right to remain silent.
• Anything you say can and will be used against you in court.
• You have the right to an attorney.
• If you cannot afford an attorney, one will be provided for you.

When an Officer May Arrest You for a DWI

To be pulled over for a DWI, an officer only needs reasonable suspicion. For the officer to arrest you, there must be probable cause. This standard requires there to be facts or evidence that would cause a reasonable person to believe that you had committed a crime. The officer must have evidence at the time of the stop that you are not of your full mental and physical faculties. There must be evidence that you are in some way intoxicated, whether it is from drugs or alcohol.

An officer can obtain facts that support intoxication from your appearance, your answers to questions, how you communicate, and items inside your vehicle. If you have been drinking or taking drugs, your eyes may be red. You may have an odor. The answers to your questions may be appropriate, yet you could slur your words. The officer may ask you to get out of the vehicle and observe you using the vehicle to support yourself and keep your balance. The officer can also look into your vehicle to see if there are any open or empty alcohol containers.

If you were arrested for a DWI and you do not believe the facts supported your arrest, call a criminal defense lawyer right away. Attorney Ned Barnett will thoroughly investigate your traffic stop to determine if there was a reasonable basis for arresting you. If it appears that the officer did not have probable cause to arrest you, Attorney Barnett may seek to have the charges against you dismissed.

When an Officer May Search Your Vehicle

The U.S. Constitution protects you from unreasonable searches and seizures. However, there are many situations in which a search and seizure of your vehicle during a traffic stop is considered reasonable.

An officer can search your vehicle when you are stopped for a DWI if there is probable cause that you have committed a crime. A common means of obtaining probable cause is seeing alcohol containers in the vehicle. If there are alcohol bottles or cans in plain view, you should expect your vehicle to be searched.

One of the ways an officer can get around the probable cause requirement is by asking for your permission. A cop may say “Can I look in your trunk?” or “Do you mind if I look in your vehicle?” You have the right to say no and you should refuse. If an officer is asking for permission to search your vehicle it means they do not have probable cause. They have no reason to search your vehicle, they are simply hoping to find evidence against you.

If the officer arrests you for a DWI, then they may search your vehicle to look for evidence related to the arrest, such as alcohol containers or drugs. Also, after being arrested for a DWI, your vehicle may be impounded. During this process, law enforcement agents may search your vehicle to inventory its contents.

Field Sobriety Tests

If you are pulled over and an officer suspects you are intoxicated, you will be asked to step out of the vehicle. You may not want to, but you must. You should follow the officer’s instructions calmly and slowly. Once outside the vehicle, the officer may ask you to perform a physical task, which is likely one of the standardized field sobriety tests (SFSTs).

Learn More About Roadside Field Sobriety Tests

The National High Traffic Safety Administration (NHTSA) standardized three tests for officers to use during a traffic stop:

• The horizontal gaze nystagmus (HGN): HGN is an involuntary motion of your eyeball, which occurs when you look far to one side. Your eye does not stay perfectly still, even when you are not intoxicated. Your eye will make small, jerky movements when you are looking far to a side. When you are intoxicated, these jerky motions are more pronounced and occur at a lesser angle than normal. To look for this, officers hold up and object and have you slowly follow that object back and forth with your eyes, without turning your head.
• The walk-and-turn test: During a walk-and-turn test, the officer will instruct you to walk in a straight line, heel to toe, for nine steps. Then, you must turn on one foot and return in the same way.
• The one-leg stand test: An officer will ask you to stand on one foot with the other foot held about six inches off the ground. You will also be instructed to count aloud beginning at one-thousand until the officer tells you to put your foot down.

You are not legally obligated to perform any of these tests. You may politely decline and neither the officer nor prosecutor can punish you for it. However, refusing to submit to one or more SFSTs does not mean you will not be arrested. You likely will be arrested, but at least you will have limited the evidence against you.

Failing or Refusing a DWI Test

Police officers and district attorneys would like you to believe that SFSTs are highly accurate and reliable. However, there is little evidence to support this. The studies authorities use to rely on SFSTs were conducted decades ago and not carefully reviewed or repeated. Attorney Ned Barnett is highly experienced in defending against evidence obtained through SFSTs.

Breath & Blood Tests

If you refuse to submit to DWI chemical testing upon being arrested for a DWI, then there may be civil and criminal consequences. That is due to Texas’ implied consent law. Texas Transportation Code §724.011 states any person arrested for an offense arising out of intoxicated driving of a motor vehicle or watercraft is deemed to have consented to the taking of one or more specimens of their breath or blood for a BAC and drug analysis.

By driving in Texas, the law assumes you agree to submitting to a breath or blood test. However, you always have the right to refuse. You may refuse a roadside breath test or a breath test at the police station. You may also refuse a warrantless breath test. However, failing or refusing a DWI test has civil and criminal consequences.

Refusing breath and blood tests can lead to your license being revoked right away through an ALR. If you refuse a breath test, you may also face a longer license suspension if convicted. Due to Texas’ implied consent law, you face civil and criminal penalties for refusing a breath test upon arrest for a DWI. However, you cannot be criminally punished for refusing a warrantless blood test. Although, the police may obtain a warrant for a blood sample, in which refusing can have more serious consequences.

DWI Chemical Testing

Texas DWI Checkpoints

DWI checkpoints are roadblocks which the police use to check drivers for intoxication. Whether or not these roadblocks are constitutional is a matter for debate. Right now, 38 states allow sobriety checkpoints. Twelve states do not, including Texas. In Holt v. State in 1994, a Texas court found that DWI checkpoints violated drivers’ constitutional rights. Following that case, sobriety checkpoints would only be allowed in the state if the legislature created a mechanism for them, which it has not.

If you were stopped at a roadblock and then arrested for a DWI, contact a criminal defense lawyer right away to determine if the police were running an unlawful sobriety checkpoint.

Texas DWI Education & Treatment

If you are convicted of a DWI or DUI and lose your driver’s license, you will likely be required to complete a 12-hour DWI education course before your license can be reinstated. A DWI class in Texas is intended to teach you about the effects of alcohol and drugs and how these effects impair your ability to drive. The class may go further and seek to teach you about drinking and drug use patterns and how to improve your chance of avoiding drunk or drugged driving in the future. If you fail to complete this education requirement, you may not be able to have your license reinstated even after your suspension or revocation period is over.

If you are convicted of multiple DWIs, you may be required to submit to an alcohol/drug assessment, and if necessary, go through the treatment process.

Deferred Adjudication in Texas

During deferred adjudication, you go through a period of supervised probation during which you complete certain requirements. You may be required to complete certain education or treatment programs. Once you fulfill all the requirements and the period of probation, then your case is dismissed. There will continue to be a record of the arrest and the charges, however, you will not have a DWI conviction on your record. If you do not fulfill all the requirements or violate a term of the probation, then the DWI case moves forward. If you are convicted of a DWI, you can be punished to the fullest extent of the law.

Unfortunately, Texas law currently does not allow deferred adjudication for any DWI charges. However, if you have other criminal charges that came from a DWI stop, such as drug possession or a traffic charge, you may be able to obtain deferred adjudication in your case. Contact a skilled DWI lawyer for more information about your legal options with criminal penalties. (713) 222-6767.

Harris County, Texas SOBER Court

Harris County has a court program known as SOBER (Saving Ourselves By Education and Recovery) Court. It is used as an alternative to incarceration. If you are convicted of a DWI in Harris County and eligible to utilize SOBER court, then you will go through a judicially monitored treatment and community supervision program. Instead of going to jail or prison, you will be on probation and required to fulfill certain conditions, such as going through alcohol or drug abuse treatment.

SOBER court is a voluntary program, and it lasts between nine and 16 months. When you complete the program depends on your own progress. However, after you finish the program, you will remain under supervised probation for a period of time.

To be eligible for SOBER court, you must:

• Currently, be charged with a second DWI committed in Harris County;
• Live in Harris County;
• Be on supervision for a misdemeanor DWI;
• Be identified as a high risk through the assessment process; and
• Be a citizen, lawful permanent resident, or lawfully documented immigrant.

You cannot utilize SOBER court if you have been convicted of or have pending charges for a violent crime, an offense during which a firearm was used or possessed, or a sex crime. You are also ineligible for SOBER court if you have mental health symptoms that indicate you cannot complete the program successfully.

If you have been charged with a second DWI in Harris County and you and your attorney believe the prosecutors have a strong case, ask your attorney about SOBER court. The purpose of this sentencing alternative is to provide treatment for those suffering from alcohol dependence and to reduce the likelihood of repeat DWI offenders. If you are eligible, this program may be preferable to incarceration.

Sealing a DWI Record

Having a DWI on your record can make your life difficult for years to come, even if it is clear the DWI was a one-time mistake. That is why Texas legislators expanded when you may ask the court for a non-disclosure order regarding a DWI. Prior to 2017, there was no mechanism for sealing a DWI record. However, in June 2017, Gov. Greg Abbott signed into law HB 3016. This expanded the type of non-violent misdemeanors that could be sealed. In other words, you may be able to have your records sealed.

If you were convicted of a single DWI with a BAC below .15 percent, then you may now be able to ask the court for a non-disclosure order. To be eligible, you:

• Must never have been convicted or placed on deferred adjudication for another offense;
• Must have completed any incarceration or community supervision related to the DWI;
• Must have paid all the fines, court costs, and restitution; and
• Wait at least two years from the date you completed your sentence, if it included an ignition interlock device, or waited five years, if your sentence did not include an ignition interlock device.

Is There a Houston DWI Attorney Near Me? Contact Ned Barnett Today

When you have been charged with a DWI or DUI, the best thing you can do for yourself is contact an aggressive DWI defense attorney. While you may be well educated and experienced in a particular matter, you are likely not experienced in defending against DWI charges. Attorney Ned Barnett is. He has more than 20 years of legal experience, including as a federal and state prosecutor prior to becoming a defense lawyer. He is board certified as a criminal lawyer by the Texas Board of Legal Specialization, and he has made it his mission to remain up-to-date on DWI issues. He has certifications in field sobriety testing, the operation of breath test machines, and gas chromatography. DWI convictions are serious – and you need the best criminal defense attorney on your side.

It is best to have a lawyer to protect your rights as soon as possible in the DWI process. Call The Law Offices of Ned Barnett as soon as possible at (713) 222-6767. You can also contact us online to schedule a free consultation.