John T. Floyd Law Firm
Board Certified Houston Criminal Lawyer
“Serious Criminal Defense Throughout Texas”
Board Certified Criminal Law Specialist
Experienced Criminal Trial Lawyer
Federal And State Criminal Defense
Phone # (713) 224-0101
Toll Free 1-866-374-1327
E-mail jfloyd@JohnTFloyd.com
Top Lawyers: Criminal Defense - 2008, 2009, 2010 HTexas
Houston DWI Attorney
Vigorous Representation for Individuals Facing Serious Allegations of Intoxicated offenses, including: DWI, Felony DWI, Intoxicated Assault and Intoxicated Homicide.
Board Certified Criminal Defense Lawyer John T. Floyd is dedicated to defending individuals accused of committing serious crimes involving intoxication before Criminal Courts in Houston, the State of Texas and the United States.
January 26, 2012
CONDITIONS OF BAIL IN DWI CASES CAN BE HARSH
Politics and Profit Motive Lead to Unreasonable Conditions of Bond in First Time DWI Cases
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The Texas Legislature in 1999 gave courts the general authority to impose “reasonable conditions” of pre-trial release. This authority was codified in Chapter 17 of the Texas Code of Criminal Procedure. Art. 17.40(a) and has been used by some courts to impose draconian “conditions” of bond in DWI cases on the dubious claim they are related “to the safety of the community.” Unfortunately, some courts, with pressure from tough on crime advocacy groups who often endorse judges during election cycles, have added such burdensome conditions of bond as to amount to punishment prior to a finding of guilt, disregarding the fundamental principle of “innocent until proven guilty.”
The Texas Court of Criminal Appeals, in Ex parte Anderer, held that a court’s condition of bail will be upheld if it meets three criteria: 1) it must be reasonable; 3) it must be made to secure the presence of the defendant at trial; and 3) it must be related to the safety of an alleged victim or the community. At least one Court of Appeals, the Twelfth District in Burson v. State, held that the condition relating to safety of either victim or community does not necessarily need to relate to the other two criteria.
This authority to order conditions of release has been used to impose severe conditions in DWI cases, some of which, but not all, are listed below:
No driving while on bond;
Home curfew and electronic monitoring under Art. 17:43;
Home confinement, electronic monitoring and drug testing under Art. 17.44;
Installation of an ignition interlock (deep lung) device in any vehicle driven by the defendant under Art. 17.441;
No consumption of alcohol while on bond;
Attend AA meetings while on bond;
An In-Home alcohol monitor that requires a specimen of breath 3 times a day;
Pre-trial services meetings;
Being accused of DWI can literally happen to anyone who drinks alcohol and then drives. It is one of the few crimes for which normally law abiding members of the community can be arrested, regardless of absolutely no intent to do anything wrong. For those individuals, being charged with DWI (or a related crime, such as boating while intoxicated, intoxicated manslaughter, or intoxicated assault) is one of the most difficult and embarrassing events they will ever face.
Special interest groups, like Mothers Against Drunk Driving, have been very successful in their lobbying efforts and, through endorsements of judicial candidates and judges, have dramatically increased the seriousness of a DWI, even for first time offenders. It is not unusual now for judges to require ignition interlock devices on vehicles of those arrested for their first DWI while on bond. Even worse, without a vigorous defense, most first time DWI offenders will lose their drivers license for some period of time.
Without an experienced DWI lawyer, you will have your liberties and rights infringed upon for months on end, all before you even go to trial. While a person in the United States is supposed to be presumed innocent unless proven guilty, the current pretrial DWI process will leave you wondering if this is any longer true.
The first infringement on your liberties happens when you are pulled over on suspicion of DWI. If the officer pulling you over thinks you might be driving while intoxicated, he already has boilerplate prepared for his offense report: he will say that you “exhibited a strong odor of alcoholic beverage, had red, glassy, bloodshot eyes, and slurred speech.” He’ll also be ready to write down that you were unsteady on your feet and that you perhaps used the door of your car to steady yourself. This means that when you are asked whether you have had anything to drink, there is no answer that will change the officer’s mind. If you say no, you will be accused of lying. If you say “Yes, but only a couple,” the officer will hear “Yes, but only a couple dozen.” Your understandable first instinct in such a stressful situation is to answer the question, and this is why you must fight against your instincts and politely say that you are declining to cooperate.
Do Not Answer Any Law Enforcement Investigative Questions
Of course, this is going to escalate the situation. But let’s be honest. If an officer thinks you are driving while intoxicated, there really is only one place you are going when he’s done talking with you: jail. This means that you’re going to have to put up with the stress and embarrassment of being pulled over on suspicions of DWI, and keep your wits about you. The less you do, the less evidence can be used against you. But keeping your cool and refusing to do the police DWI tests will most likely result in your being arrested and being subjected to even further infringements of your liberties.
The next infringement happens when the officer asks if you would mind participating in the field sobriety tests, which are really just glorified exercise routines intended to reinforce law enforcement’s conclusions that you are intoxicated. Your natural instincts are, again, to be helpful, and to show him that you’re fine. After all, you can close your eyes and touch your nose with your fingers like they do in the movies; how hard can this really be? The answer is: really hard, even when you’re stone cold sober. Field sobriety tests don’t involve just silly exhibitions of nose-touching. Instead, the standard field sobriety test (or SFST) involves three components: the horizontal gaze nystagmus (or HGN), the walk and turn, and the one leg stand. The HGN involves an officer shining a very bright pen light into your eyes, and having you follow the light with your eyes. Just how smoothly do you think your eyes will move when you’re pulled over on the side of a busy freeway with your heart pounding and adrenaline shooting through your veins, with the cruiser’s lights flashing erratically, with passing car’s headlights shining in your face, and with an officer shining a bright light directly into your eyes? Not very smoothly at all. But having less than smooth movement, or less than expertly trained officer, will result in a failed test. Given the many factors that can effect the questionable accuracy of this test, it is abundantly clear why you should refuse to perform it.
The walk and turn test is the second of the standard tests that is administered. It seems easy enough on paper. All you have to do is take nine steps, heel-to-toe, along a straight line. When you’ve gone nine steps, simply turn around, and return in the same manner in the opposite direction. Easy enough, right? So easy, in fact, that the officer, because he’s such a nice guy, will demonstrate how to do it. And he makes it look so easy! “If he can do it, so can I,” you think. And that’s the wrong way to think. First, if you lose your balance, using your arms to steady yourself will be seen as a failure, never mind that it’s a rare tight-rope walker who doesn’t have his arms outstretched, and never mind if there’s a sudden gust of wind or a nearby passing car. Second, the officer doesn’t have fear causing him to tremble. The officer isn’t tired after a long day of work or play. The officer isn’t a naturally clumsy person. The officer isn’t being graded on his performance. And often, the officer isn’t even demonstrating the test in the same way you would be asked to take it; we can’t tell you how many videos we’ve seen (at least those where the officer was honest enough to video the stop) where the officer takes only three steps, where the officer doesn’t walk on the same line you walk on, and where the officer pauses before turning around. This instruction stage takes about 45 seconds and you are expected to stand there in an abnormal and twisted position and not move at all; any movement will be construed as an indication that you are intoxicated. With the cards stacked against you, why would you want to take this test? You wouldn’t, you don’t have to, and you shouldn’t.
After the officer has conducted the walk and turn test, he will administer the one leg stand. Again, this test looks deceptively simple. All you have to do is stand with one foot approximately six inches off the ground and count aloud until told to put the foot down. And again, this seems easy enough, right? Wrong. You know how you feel when you’re pulled over for speeding? The way your heart is racing, wondering why you’re being pulled over, and when you find out it’s because you’re going 62 in a 55, you worry about how your insurance will go up, whether you’ll be able to take defensive driving, and how you’ll have to watch your speed for a year? Imagine how your heart and adrenaline will be racing when you find out that the officer thinks you’re a drunk, how, if you mess this up, you will be spending the night in jail. Imagine all that fear and nervousness and shame and doubt, and imagine how you can possibly stand still on one foot for some arbitrary period of time without putting your arms out for stability, or without trembling or putting your foot down on the ground. And again, the officer will kindly demonstrate how to stand, but he probably won’t do it the way you’ll have to do it, under the conditions you’re under. He will usually only keep his foot in the air for a few seconds instead of fifteen or twenty or thirty. And he’s not doing it in front of an audience that holds his liberty in his hands. Again, while it’s perfectly rational to want to try to perform these tests (that’s what humans do: try to prove their inherent decency), it’s a fool’s errand, and you shouldn’t do it.
We can’t stress this enough: the standard field sobriety tests are stacked against you, and you should refuse to take them. It doesn’t make you a bad person, and it certainly doesn’t harm your case to just say no. And, no doubt, refusing to take the police tests will escalate the situation, but, again, there really is nothing you can do to convince a police officer otherwise, if he has already made up his mind. So quell your humanitarian tendencies to assist others and refuse to take the field sobriety tests.
Refusing to take the SFST does likely mean that you will be asked to provide a breath sample in lieu of the SFST. Guess what, though? You’re probably going to be asked to do that anyway. Even if you have unnaturally smooth movement in your eyes, even if you are able to walk with the grace of Fred Astaire, and even if you have the balance of a flamingo, the officer cannot possibly be wrong. You are driving while intoxicated, and he intends to prove it, and there isn’t any way you will be able to prove you’re not. The breath test is not always reliable, doesn’t preserve samples for retesting by your lawyer, and isn’t necessarily maintained properly. And even if you blow below a .08, you will still be considered to have been driving while intoxicated because the officer thinks you have lost the normal use of your mental or physical faculties—an alternative way of proving intoxication. Those, among others are the reasons you should refuse to blow.
Do not Blow
Now, there are definitely repercussions to refusing to blow. First, your license will be subject to revocation. This is because, according to Texas law, every driver has consented, by virtue of operating a vehicle in a public place, to providing a sample of breath, blood, or urine. Do you remember consenting to that? Of course you don’t. Nonetheless, you have; it is implied consent. By refusing to give a breath sample, you might forfeit your license for a period of time. (Of course, if you blow greater than .08, you will lose your license anyway, so six of one, half dozen of the other…) Secondly, if you refuse to give a breath sample, a search warrant may be sought to take a sample of your blood. On a no-refusal weekend, which we will discuss in more detail elsewhere, if you refuse to provide a sample of your breath, a search warrant for your blood WILL be sought.
So at the end of a long arduous process, a process which will find that the officer has suspicion that you have been driving while intoxicated, you will be handcuffed and stuffed in the back of a cruiser, more than likely without access to anything in your car, and you will undergo a whole new set of infringements on your liberties, along with the beginning of a very expensive period of your life. First, your car will be left on the side of the road. Perhaps, if you’ve been lucky, you’ll be allowed to call someone to get your car and take it home. Usually, however, you won’t be allowed to use your cell phone to make a call and your car will be towed. If your friends and family become worried and try to call, you won’t be allowed to answer your phone, and the officer won’t do it for you. You will be taken to a substation where you will undergo the SFST again, and be asked to provide a sample again. Your license will be taken away from you. And after another couple of hours, you will be taken downtown (if you’re in Harris County) while you wait to be bonded out. Even once you get the bond in place, and you have been cleared for release, it will still take a number of hours, typically four to six, before you are allowed outside. During the pendency of your case, you will typically be required to check in with your bondsman at least once a month, and before and after each of your court settings.
Your first court date will typically be a couple of days after your arrest, but we have seen some occur more than a month after the arrest. Regardless, you will need to be in court early; if you are late, you risk having your bond revoked. If your case is in Harris County, the lines to get into the courthouse and into the elevators are exceptionally long, and it can sometimes take an hour from when you arrive at the courthouse to when you actually get into the courtroom. That is why we advise our clients to leave nothing to chance and always arrive at court as early as possible. At your first setting, you will need to fill out some paperwork acknowledging a few things. First, you most likely will have conditions on your pretrial release, AKA bond. You may not be able to leave your county or those counties immediately adjacent without notifying your pretrial officer at least 48 hours before leaving. If you want to leave Texas, you may need to get permission from the court at least two weeks prior to leaving. In some instances, you will need to have an ignition interlock device installed. This means that every time you want to drive somewhere, you will need to prove that you can pass a breath test. You may also be ordered not to drink alcohol during the pretrial period. You may also need to visit your pretrial officer after every court setting. Failing to satisfy and adhere to any of your conditions of release can result in having your bond revoked. And of course, all these conditions require money. The pretrial officer receives $42 from you every month; the interlock device costs more than $70 to install and then you pay $70 a month for every month you have it installed. And, in addition to being forced to spend time dealing with the bonding company, with court, and with the pretrial officer, you will also need to go in monthly or weekly to have the interlock device “calibrated,” which of course requires another fee. Again, failing to do anything properly can have serious repercussions.
License Suspension
When you leave jail after being bonded out, you might notice some fine print on the Statutory Warning given to you when you were arrested. It states that “You may request a hearing on the suspension or denial. This request must be received by the Texas Department of Public Safety at its headquarters in Austin, Texas, no later than 15 days after you receive or are presumed to have received notice of suspension or denial Of course, this notice is not in bold print. The request can be made by written demand, fax, or other form prescribed by the Department.” This hearing is commonly known as an ALR (Administrative License Revocation) hearing. If you miss the 15 day deadline, your license will automatically become suspended after 40 days, and you will not be able to get your license reinstated without seeking an Occupational Driver’s License. If we represent you, and you haven’t missed the deadline, we will always recommend that you go through the ALR process. Yes, there is yet another fee that is incurred in serving the arresting officer, but the ALR hearing is a very useful tool for us in defending your interests. First, if the officer fails to show up at the hearing (which does happen quite often) your license will not get suspended. Second, if the officer does show up, we get the opportunity to cross-examine him and lock him into his testimony. Either way, then, the ALR hearing is essential to a vigorous defense.
While the ALR process is happening, we will still be tightly focused on the other aspects of your case, such as watching the videos of your arrest and any field sobriety tests you’ve taken, and requesting the maintenance logs of the breathalyzer. If blood was drawn, we will subpoena the custodial records to make sure that there is no contamination. We will request the records for the mobile data terminal in his cruiser. We will seek any and all witness statements. We will, in short, exhaust every avenue available to us to put the state to its burden. It’s the least that can be expected from your attorney when you are facing the very stiff penalties associated with DWI in Texas.
These penalties are:
Class B Misdemeanor |
Class A Misdemeanor |
State Jail Felony |
3rd Degree Felony |
2nd Degree Felony |
A fine up to $2,000; jail from 3 to 180 days; DL suspension of 90 days to 1 year |
A fine up to $4,000; jail from 30 days to 1 year; DL suspension of 180 days to 2 years |
A fine up to $10,000; state jail from 180 days to 2 years; DL suspension |
A fine up to $10,000; prison from 2 to 10 years of imprisonment; DL suspension of 180 days to 2 years. |
A fine up to $10,000; prison from 2 to 20 years; DL suspension of 180 days to 2 years; DA can stack charges for each death. |
First Offense |
Second Offense |
DWI with child present in vehicle |
Third Offense |
Any DWI with death occurring (intoxication manslaughter or manslaughter with use of a deadly weapon) |
First Offense with open container (jail goes up to a minimum of 6 days) |
Drag racing with a prior DWI conviction |
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Any DWI with serious bodily injury occurring (intoxication assault) |
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Divert
If you live in Harris County, you may have heard of a program called DIVERT. DIVERT theoretically offers a first-time offender the opportunity to avoid having a conviction on his record. This program, however, is rife with controversy, is full of pitfalls, and deserves a larger discussion, which we will but putting on this website shortly in the future. In the meantime, if you are considered DIVERT eligible, we are more than happy to discuss the ramifications of the DIVERT program with you.
We recommend that any person charged with DWI in Harris County or any county in Texas immediately secure the services of an experienced criminal defense attorney. After all, you wouldn’t want a corporate transactional attorney handling your complicated criminal case. But beyond having an experienced criminal defense attorney, you need attorneys with substantial experience with DWIs. The attorneys at the John T. Floyd Law Firm have handled serious DWI cases in courts throughout the State of Texas, and are standing ready to fight vigorously for your rights. Call us at 713.224.0101 and schedule your free initial consultation immediately. The clock is ticking on very important deadlines (such as requesting the ALR hearing) and the longer you delay, the harder your case becomes for you.
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