Driver’s License In A DWI Case
Once you are placed in the back of a police car and placed under arrest for a DWI, they will ask you to submit to a breath or blood test either at the station or on the spot. The officer gets to choose either one or both. If you refuse to submit to either one, then your license will be confiscated. You will receive a Notice of Suspension. Your license could be suspended for at least six months, and it can be longer in some situations. If you submit to a breath test that shows 0.08 or greater, then they will give you a notice of suspension for failing the test. If you submit to a blood test, whether by consent or by warrant and the blood test comes back as 0.08 or greater, then again you will receive a notice of suspension. Your license will be suspended for ninety days for failing the test. No matter what you do there is a high chance of a license suspension and you should account for that.
It can be longer than that in some circumstances, and this is not automatic. In any of those events, if you receive a notice of suspension, and if they confiscate your driver’s license or not, then you have a right to a hearing. It is called an administrative license revocation hearing. We have won many of those hearings so the client’s license is not suspended, and they do not have to pay their $125 reinstatement fee. They do not have to go through the burden of having their license suspended and not being able to drive or get to work for that period of time. But it is also important to use that administrative hearing as a chance to cross-examine the arresting officer.
In criminal cases in Texas, you generally cannot depose witnesses. This means having a meeting with a witness and taking their statement. That is what they do in civil cases. But you cannot do that in criminal cases. We normally do not get the chance to meet with the arresting officer, and take the officer’s statement, and find out specifics about the officer’s actions except in the situation of an administrative hearing. We can subpoena the officer to that administrative hearing, and get a chance to cross-examine that officer, and ask all legal and factual issues that could work to the client’s benefit.
Quite often, officers act illegally or violate the constitution or proper procedures when they pull and detain somebody over, even if they administer the test improperly. In this hearing we will then have a written transcript of that officer’s sworn testimony. This hearing usually happens within a few months of the arrest when the officer’s memory is better, and when the officer has not been coached by a prosecutor. It is important because a lot of these officers do not know the mistakes they make. They candidly admit everything that they did right or wrong, and we can pin them down on these mistakes. That is very important, because if they did make these mistakes when the case comes up for trial, the trial judge can rule that the police acted illegally and basically throw the case out or rule the evidence, such as the breath and blood test cannot be used against a person.
When that trial happens, the prosecutor will meet with the officer and the smart prosecutor sees those issues that might help the client, then the prosecutor may start coaching the police officer. He might have him say something like, “Officer, are you sure before you got Julie out of the car, you didn’t have some additional facts to support a suspicion of intoxication”, and the officer may realize that he or she needs to add something or embellish; or the officer may start remembering things that typically happened in a DWI case, but did not happen in this client’s case. Say, that the person had slurred speech because that happens a lot. The officer may make twenty or more DWI or DUI arrests before the time that the client’s case comes to trial, and their memory may be blending all these cases together. As a result, officers also tend to re-hash similar testimonies and quite often play right into our hands when it comes to factual replay of the events that transpired during an arrest. There is a very good chance he forgets critical details and aids us in truth and fact-finding discovery; this is part of our process and something we critically add into every examination in order to really test the officer’s testimony.
That is human nature, but maybe the officer then says, “Yes, Julie had slurred speech”, but that is not the truth. But when we pin that officer down at that administrative hearing that a Julie did not have slurred speech, well that is good, because now we will have that transcript. We can use that to impeach the officer’s testimony and show that the officer testified differently at that previous hearing. There are many procedural errors, half-truths and outright lies that can be disputed by our attorneys, and we do often find these and make them count in your favor; sometimes the process is quick and sometimes a trial is necessary (which is actually a great tool for DUI/DWI cases). That can go a long way to helping us win the case we are fighting.