Speaker 1: Hello everyone, I'm Jeff Hampton with the Hampton Law Firm. Welcome to our YouTube channel. Today I want to talk to you about three ways to beat a DWI case. By the way, if you wait around to the end of our video, I'll also give you a free e-book, The Ultimate Guide to Your DWI Defense in Texas. Now before we get started, some people say, that's not a big deal, right? A DWI is normally just a misdemeanor case. So you know, why does it matter? I can handle it myself or I can get a court appointed attorney or who cares, right? Well, let's talk for a few minutes about DWI punishments under Texas law. It's very important to understand we are one of the most tough states in the country when it comes to enforcement of DWI and punishments for DWI. And the legislature, the Texas legislature continues to tighten many of those restrictions. So let's talk for a few minutes. If you are arrested for a DWI first offense in Texas, what can you expect? Well, the actual range of punishment on a DWI, a first time DWI is a class B misdemeanor punishable by up to 180 days in jail and up to a $2,000 fine. You could also potentially face a driver's license suspension of up to a year. And you could also potentially be running into a situation where you might have to take probation, alcohol classes, all of these additional requirements that could be placed upon you if you end up taking a DWI conviction. Not to mention, there's something called DWI surcharges, which now they kind of, they've referred them more as just general fines. The Texas Department of Public Safety can make you pay $1,000 a year up to three years. It's basically a DWI tax just for the privilege of being able to continue to drive your vehicle. So those are some of the possible consequences. Now you can also be charged with what's called DWI over 0.15. So even if it's your first offense, a DWI over 0.15 is now a class A misdemeanor that is punishable by up to a $4,000 fine and up to a year in county jail. And here's the downside to that. It's an arbitrary line. If you take a breath or blood test, if your blood alcohol level is jumping up into that over 0.15 area, they can charge you with this higher level offense. It makes it more difficult for you to be able to ever get that off your record. And then on top of that, you have to have what's called an interlock device in your vehicle as a condition of your bond. And that's mandatory. That's required under Texas law. So there's kind of your DWI first, right? Your basic class B misdemeanor DWI, and then if you're over 0.15 blood alcohol level, it's a class A misdemeanor with all those additional requirements, which I kind of think of as a punishment. All right. Now, what if it's a, what if it, what if it's a DUI, right? Some people say, what's the difference between DWI and DUI? Well in Texas, DUI is only if you're a minor, okay? If you're under 21 years of age and you pick up a DWI or you pick up a driving while intoxicated, it's actually referred to as a driving under the influence. If you're under 21. Now that is technically a class C misdemeanor punishable by up to a $500 fine. However, that the minor involved in the situation could still face a driver's license suspension and could still be required to go through a number of requirements. Again, literally everything from alcohol awareness classes, a community service, much of additional requirements if they are convicted of a DUI, okay? Now if it's a DWI second, what if it's a DWI misdemeanor repetition, a DWI second. Now you're talking about a class A misdemeanor punishable by up to a year in County jail, up to a $4,000 fine, and you could face up to a two year driver's license suspension on top of that. And by the way, you remember those surcharges, that tax I was talking about earlier? If it's a DWI second, you could actually end up talking about up to $2,000, $1,500 to $2,000 per year that you have to pay to the Texas department of public safety in order for you to be able to still maintain or operate your vehicle. Okay? So those are some examples there. Oh, and by the way, you'd have to have a court ordered ignition interlock device for a DWI second. Didn't want to forget that. And then if, listen, I'm not going to get into all this here, but if it's a felony DWI, if it's a third or more, you're talking about a third degree felony punishable by up to 10 years in prison and up to a $10,000 fine. This is a whole nother level. You're talking about something much more serious where you could go to the penitentiary or be facing up to a 10 year probation. You could also be facing a two year driver's license suspension, a bunch of other requirements. You could actually, you could end up facing quite a bit more fines and fees if it's a felony DWI as well. So, and I won't spend the time going into intoxication assault, intoxication manslaughter, or DWI with a child under 15, but I encourage you to go to our webpage, take a look at the website and you'll be able to see a breakdown of all this information on there. Now let's talk for a few minutes. What can a lawyer do to fight my DWI case? What is it, if you hire a good DWI attorney, what is it that you should expect them to be doing if they fight your case? And this is leading us to the defenses that we talked about earlier. One of the things is your attorney needs to get access to all of your DWI reports. So reports are number one. Number two, body cameras. Number three, dash cam cameras, your patrol cameras. Needs to get access to all of those things and take a look at them. Here's the point. The police officers write your reports after you've been arrested. So I'm not surprised that the reports are going to make you look bad. Where you really get down to the facts of what happened is when you start taking a look at the dash cam, the body camera, you get a better feel for what's being exaggerated in those reports and what's accurate and whether someone appears to actually be intoxicated and you want to be able to make sure that the police were doing everything properly when you review all that. And then your attorney needs to share that evidence with you. You need to be able to look at that evidence, provide your input. I tell clients all the time, I wasn't there. I don't know what happened. You do. So I want that input from my client. I want to be able to make sure I understand what they went through, what's right, what's wrong. Give me context behind what we're looking at. Then we go down the list. Was there reasonable suspicion for the stop? Was there probable cause for the arrest for the field sobriety test? Did those police officers administer those field sobriety tests properly? And then also, was there actual probable cause for the arrest? And then based upon that, if a breath or a blood test was administered, was that breath test done properly? Was that breath test machine operated properly by the intox laser operator and was it maintained properly by the technical supervisor? If not, all bets are off on using that by the state. What about the blood draw? Was it a qualified technician that took the blood? Was the nurse, did the nurse follow the protocol? Did they use a betadine or a betadine or did they use a alcohol swab? Did they follow the chain of custody requirements as it relates to the taking of that blood draw? All of these are questions you want to make sure and that your attorney needs to go over with you and you look into to make sure the state of Texas can prove that DWI beyond a reasonable doubt. So some of the common defenses that I'm going to give you real quick, I'm just going to give you a couple of quick ones. Number one, what if there was no breath or blood test? In some jurisdictions, and I can think of a few like Colleyville and there's been some others local areas, if it's your first DWI in Texas, sometimes these jurisdictions will decide that it's not worth getting a breath or blood test. Well, I think that's a big deal because I've actually had officers on the witness stand tell me the reason why they didn't do the blood draw is because they didn't have the budget to do the blood draw and that their policy is not to take a blood draw or force someone to take a blood draw if it's a first offense. Well, I mean, listen, I get it. That may be their policy, but you don't have the burden to prove anything. The state of Texas has the burden to prove that. You shouldn't have to pay for a police department's decision not to spend the money to get evidence, right? They are the making the decision to withhold that evidence from the jury. All right? The other option is what if you refuse a breath or blood test and what if the police can't get a hold of a magistrate or a judge to be able to sign off on a blood warrant search or a blood search warrant, right? What if they're not able to get that done? Well, in that situation, now this DWI becomes solely an opinion crime. It's all based on the officer's opinion. How did you appear? Are you acting normal or are you not acting normal? Because remember, intoxication under Texas law can be proven by that .08 or higher, right? That's one way. Number one. Number two is by proving that you had lost the normal use of your mental faculties because of alcohol. Or number three, had lost the normal use of your physical faculties because of alcohol. That's all an opinion from the officer at that point, all right? So I think it's important that you understand that one of the areas is if there was no breath or blood test for your case, that is a very strong case that you may be able to win. So that's number one. Number two, what if you weren't actually operating a motor vehicle? Look, the state of Texas has to prove that you were operating a motor vehicle beyond a reasonable doubt. Let me give you an example. We had a client one time that we represented that was just in a parking space. Literally, he's in a parking lot. He's in a space and as he's in that space, his car is on, it's turned on for air conditioning and he was actually waiting for Lyft or an Uber to show up to drive him home because he knew he was too intoxicated to drive. Guess what the officer did? The officer made the decision to go ahead and arrest him for DWI because the law says you don't have to be driving the vehicle, you just have to be operating the vehicle. Now that is a fact issue that is determined by the jury. In that situation, we pushed that client's case all the way up to a jury trial setting and we basically told the prosecutor, listen, our client was being as responsible as any person that's out there. You're not supposed to drink and drive. That's not what he did. He stayed in his car. We actually had the receipt showing that Uber was on their way, but yet you find an officer willing to quickly arrest him for a DWI case. That client's case ended up being thrown out because of that defense of the fact he was not actually operating a motor vehicle. Finally, number three, what about you're not intoxicated at the time of driving? What if you gave a blood or breath test four hours later? What if it took three or four hours before the administration of a breath or blood test and your blood alcohol level came in at .09, .10? But what if by your own statements, you had something to drink right before you were pulled over? I'm not going to get into the science of this, but let me just tell you this real quick. We absorb alcohol on a bell curve. When you drink alcohol, if I take three shots of alcohol right now, I'll smell like I'm drunk, but it will take me time for my body to absorb that alcohol, then at some point I will peak and then I will begin to eliminate that alcohol. The state of Texas has to prove where you were in that process in order to show that you're intoxicated. They try to extrapolate back in time. They want to go back in time to show that you were intoxicated, but many times they may not be able to show just because you're a .10 four hours after you were driving, doesn't mean you were that level at the time you were, I'm sorry, at the time you gave the test doesn't mean that's what you were at the time you were driving. They must prove intoxication at the time of driving. So when I gave you the example of me taking those shots, right? I'm at first for a while, I'm not going to be intoxicated because my body has to absorb that and then at some point I'll peak and then I'll be eliminating. So if you're talking about four hours after when they gave you, or depending on what it is, one to four hours later, if they are not able to prove that you were intoxicated at the time of driving, that is a valid defense, particularly if you look, if you do a good job on those field sobriety tests or you look good on the video through your encounter with the police officer. All right. So those are just a few things. Those are a few examples of some things I can sit here and talk forever about these issues and go over it in more detail, but this gives you a little bit of a glance of some ways to attack and defend and potentially win a DWI case in Texas. I want to thank you for waiting around to the end of this video. I promised you I'd give you a free ebook, the ultimate guide to DWI defense in Texas. Click the link down here below. I'll be happy to send it over to you. And by the way, if you need help with your DWI case in the North Texas area, don't hesitate to contact the Hampton Law Firm at 817-877-5200. Thanks again for joining us. Take care. Bye-bye.