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Lester Van Slyke, Jr. has over 30 years experience in handling Family Law, Criminal Law, and Personal Injury Law matters in Fort Bend County and surrounding counties. Licensed to practice by the State Bar of Texas, United States Supreme Court, and the United States District Court, Southern District of Texas.
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Sugar Land | Richmond, Rosenberg Criminal Lawyer: DWI
If you find yourself charged with DWI, you need a Sugar Land criminal lawyer or a Richmond, Fort Bend County based criminal attorney to point out crucial factors pertaining to DWIs in Texas. Your driver's license, for instance, could be revoked within 15 days of a Driving While Intoxicated charge. What's more, your first offense could cost up to $2,000 and land you in jail.
In Texas the charge of DWI (Driving While Intoxicated) has become two distinct issues that are both criminal and civil in nature. Your driver’s license will be revoked within 15 days of the charge, and your window to challenge this charge is very small. In addition, the criminal proceedings are another issue.
- First Offense DWI - A fine of no more than $2,000 and/or confinement to the county jail for a term not to exceed 180 days
- Second Offense DWI - A fine of no more than $4,000 and/or confinement to the county jail for a term not to exceed one year
- Third Offense DWI - A felony offense, it can result in a fine not to exceed $10,000 and confinement in state prison.
A conviction of any of the above also means you could lose your driver's license for at least one year.
Field Sobriety Testing for DWI
The Standard Field Sobriety Test (SFST) include: Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and One Leg Stand (OLS). The validity of the SFST results, however, is questionable in almost every case. Officers have to administer the tests exactly as trained. Any deviation can lead to invalid results. Moreover, even if administered perfectly, the tests themselves are not perfect and they are not appropriate for many individuals who have had certain past injuries, medical conditions, advanced age, etc.
HGN Horizontal Gaze Nystagmus
“Nystagmus” means an involuntary jerking of the eyes. HGN refers to an involuntary jerking o the eyes as they gaze toward the side. In addition to being involuntary the person experiencing the nystagmus is unaware that the jerking is happening. The theory behind the test is that nystagmus becomes readily noticeable when a person is impaired. However there are other factors that may cause noticeable nystagmus.
In administering the test the officer has the subject follow the motion of a pen, etc. with his or her eyes. As the eyes move from side to side each eye is examined for three specific clues:
1. Lack of Smooth Pursuit – Does the eye move slowly or does it jerk noticeable? If there is smooth pursuit, your eye should appear as if it were a marble rolling over glass. If there is a lack of smooth pursuit, your eye should appear as if it were a marble rolling over sandpaper.
2. Distinct Nystagmus at Maximum Deviation – When the eye moves as far to the side as possible and is kept at that position for at least four (4) seconds, does it jerk distinctly?
3. Onset of Nystagmus Prior to 45% as the eye moves to the side – Does it start to jerk prior to a 45% angle?
Officers frequently fail to properly administer the HGN. It is important for your attorney to review the videotape (if available), to ascertain whether the test was properly administered or whether suppression of the results is possible.
WAT – Walk and Turn
The WAT is a divided attention test consisting of two (2) stages: Instruction stage and walking Stage. In the instruction stage, the subject must stand with their feet in heel to toe position, keep their arms at their sides, and listen to instructions. The subject must maintain the heel to toe position and may not begin walking until all instructions are given. In the Walking Stage the subject take nine (9) heel to toe steps, turns in a prescribed manner, and take nine (9) heel to toe steps back, while counting out loud and watching their feet. Officers observe the subject’s performance for eight (8) clues:
1. can’t balance during instructions;
2. starts too soon;
3. stops while walking;
4. allows more than ½ inch between heel and toe;
5. steps off line;
6. uses arms for balance;
7. loses balance on turn or turns incorrectly; and
8. takes the wrong number of steps.
A subject who exhibits two (2) or more clues will fail a test. Scoring is entirely subjective and within the officer’s discretion.
OLS – One Legged Stand
The OLS is also divided into the instruction and performance stages. In the Instruction Stage, the subject must stand with feet together, keep arms at side and listen to instructions. In the Balance and Counting Stage, the subject must raise a leg approximately six (6) inches off of the ground, toes pointed out, keeping legs straight. While looking at the elevated foot, count out loud in the following manner: “one thousand and one”, “one thousand and two”, etc., until told to stop. The officer will instruct the subject to stop after thirty (30) seconds. The subject is observed for the following clues:
1. sways while balancing;
2. uses arms to balance;
3. hops; and
4. puts foot down
A subject who exhibits two (2) or more clues, as determined by the officer, will fail the test.
If you have recently been arrested for a DWI in Texas, contact an attorney immediately. You have only fifteen (15) days from the date of your arrest to contest the possible lengthy suspension of your driver’s license. Fighting such a suspension may not only protect your ability to drive, but may also lead to the discovery of very valuable evidence that could assist you in winning your DWI Trial.
Therefore, if you need assistance or advice in Sugar Land or anywhere in Fort Bend County, it's time to consult a criminal attorney who knows your legal rights and can thoroughly explain the law. Be sure to put your case in the hands of an authority who knows criminal law, backward and forward. There's no need to take chances with your freedom at stake.
What are your rights after you have been arrested?
You have a right to know the crime or crimes which you have been charged
You have a right to communicate by telephone with your attorney or family friend or bondsman as soon after you are brought to the police station as practical. The police have a right to complete their booking procedures before you are allowed to use the telephone.
Texas Administrative License Revocation Hearing
If you are arrested for DWI you are given a "Notice of Suspension/Temporary Driving Permit".
From the day of your arrest you have fifteen (15) days to request a hearing on suspension of your driver's license from ninety (90) days for failing a breath test to eighty (80) days for refusing to take a breath test. If this isn't your first DWI the suspension times increase. DO NOT LET THE FIFTEEN (15) DAYS RUN WITHOUT GETTING AN ALR HEARING.
The ALR Hearing is an opportunity to make the arresting officer appear and answer questions from your attorney as to why he stopped you, etc., which we can use later in fighting your DWL case.
Other consequences of a DWI Conviction
Consequences other than those set out tin the Texas Penal Code also attach to a DWI conviction
Other than the driver's license surcharge of at least $1,000 per year for three (3) years has already been discussed. Additionally, if your insurance company finds out you have a DWI conviction they may cancel your insurance and you will have to get "high-risk" insurance which is very expensive. Also car rental agencies will not rent you a car.
Failure of a Breath Test
The Breathalyzer 500 machine has some limitations. It assumes everyone has the same body temperature and metabolism. Also, the police are required to give you two (2) tests. If the scores are within 0.02 of each other, then it is considered intoxicated. The experience criminal defense lawyer can make a jury understand this and be more prone to discount the field sobriety tests.