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Attorney Donald Moore

1006 N. Bowen Rd., Suite 124
Arlington, Texas 76012
(817) 459-0007

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The information you obtain at this site is not, nor is it intended to be, legal advice. Visiting this website does not create an attorney-client relationship or create any privileges or make any communications confidential.  You should consult an attorney for individual advice regarding the unique facts and circumstances of your own situation.


Questions and Answers: DWI

 What is DWI?

DWI is a criminal offense that says a person may not drive a motor vehicle in a public place while "intoxicated". The DWI statute does not say driving while drunk or “drunk driving.”

What is the legal definition of intoxication?

The legal definition of intoxication in Texas is:

  • Having an alcohol concentration of 0.08 or more
  • Not having the normal use of physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substances into the body.
  • Not having the normal use of mental faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substances into the body

The State only needs to prove one of the three ways beyond a reasonable doubt in order to obtain a conviction.

What does ‘normal’ mean?

According to the law, the definition of the word normal is the average person. The problem is how do we determine the average person? The law is vague in this subject, which lends itself for good argument to a jury that everyone is different and each has his own normal.

What is 0.08-alcohol concentration?

"Alcohol concentration" is defined by statute as:
a. the number of grams of alcohol per 100 milliliters of blood;
b. the number of grams of alcohol per 210 liters of breath; or
c. the number of grams of alcohol per 67 milliliters of urine.

A 0.02 equals one drink. A drink is 1-¼ ounces of liquor, 1 12oz beer, or 1 glass of wine. It takes one hour for the body to burn off a 0.02 down to a 0.00. Thus, to reach a 0.08 a person must consume four drinks in one hour.

Am I required to answer any questions, take Field Sobriety Tests, or take a breath test?

Under criminal law, you are not required to perform any type of test or answer any questions to the police officer. You have the right to refuse any tests and request an attorney. However, if you refuse to attempt these tests, the officer most likely is going to arrest you. Further, the civil law, which your driver’s license falls under, does not protect you. In fact, when you applied for your driver’s license you unknowingly consented to any future tests, if to which you refused you would lose your driver’s license for a period of six months. The decision is yours and there is a civil risk (your license), but you do have rights, and should not waive them. Always request your lawyer and don’t cooperate with anything if you wish to exercise your rights.

Does a person have a choice to refuse being videotaped?

No. However, although a person has no right to refuse being videotaped, he does have the right to refuse to perform any police field sobriety exercises and to refuse to answer any questions, the answers to which, might be incriminating. Unlike breath or blood test refusals, there are no penalties for refusing to perform field sobriety tests or refusing to answer questions while being videotaped.

Are Field Sobriety Tests very accurate?

If performed in a controlled environment in the exact proscribed standardized manner, the tests can be a likely indicator of intoxication. This is hardly done in the street.

The research conducted by the National Highway Traffic Safety Administration, the designers of the tests, concluded the Horizontal Gaze Nystagmus is 77% accurate, the Walk & Turn is 68% accurate, and the One Leg Stand is 65% accurate only when administered in the prescribed, standardized manner. Any change from the standardized manner will compromise the tests validity and make any result inaccurate. When not conducted properly it becomes an opinion test of the officer.

Therefore, these tests will inaccurately claim 23% - 35% of the people tested as intoxicated. Which when done incorrectly, which is the norm, can drop the accuracy to a frightening level.

What can affect my performance on Field Sobriety Tests?

Even SOBER persons can have difficulty with these tests, as stated by The National Highway Traffic Safety Administration. The reason is as the NHTSA has admitted, are several factors that affect every person, such as:

  • Age
  • Being ill
  • The distraction of traffic
  • The police car’s strobe lights
  • Fatigued
  • Footwear
  • Lack of coordination
  • Gusts of wind
  • Weight
  • Road or sidewalk conditions
  • Allergies
  • Scared
  • Head lights of traffic
  • Weather conditions
  • Being nervousness
  • Back problems
  • Leg or knee problems
  • Inner ear disorders
What is the State's burden of proof to prove me guilty?

The State of Texas must prove your guilt "beyond a reasonable doubt", which is the highest burden of proof in the justice system. It is not defined, by Texas law, but can be easily explained to a jury.

The lowest burden of proof is probable cause. That is how an officer can start an arrest.

The next highest burden of proof is preponderance of the evidence. This is the amount of proof needed in civil courtrooms involving civil suites. A preponderance of the evidence is proof amounting to 51% or who can move the scales of justice.

The next highest burden of proof is clear and convincing evidence. This is amount of proof that will cause a juror or judge to have a "firm belief" in the matter to be proved. This is used in custody cases. Most juries when they hear that the burden of proof is higher than that to take their kids away from them understand the high level of proof.

Beyond a Reasonable Doubt is the highest burden of proof. A jury must have more than that necessary to take your kids away in evidence that you were intoxicated before they could find you guilty. This is very simple, if a juror has a single doubt, based on reason, as to a person being intoxicated, they must follow the law and find them not guilty.

Do I have the right to an attorney before deciding whether to take a breath or blood test?

Texas law does not give you the right to speak with an attorney prior to making the decision of whether or not to take the field sobriety tests, the breath test or blood test. However, the law does not require you to perform any field sobriety tests or to take a breath or blood test so continue to ask for an attorney and refuse to cooperate and the likely chances of being found NOT GUILTY can increase!

How long will a DWI arrest stay on my record?

If you are convicted of the DWI, it will be on your record for life. Furthermore, a DWI conviction can be used for ten years to enhance your punishment of you are arrested for DWI again. If you are found Not Guilty, you can have the arrest and DWI charge "expunged" from your record.







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Attorney Donald Moore
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Criminal Law Questions


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Criminal Law Questions

Important information to know after you have been arrested and what to do next.

This information is a general introduction to the criminal justice system in North Texas. It does not offer legal advice. Its purpose is to provide a basic explanation of court terms and describe how a criminal case progresses through the legal system.

What to do if you have been arrested:

If you can make a bond (money to secure your release), through a bond company, then you will be released from jail, but only if you have no other holds. (A hold is a detainer placed on you by another governmental agency, which requires you be held pending clearance of the hold. Example: Traffic tickets, or you may qualify for pre-trial release. If you are unfamiliar with a bonds man, our office can help you contact one.

If you are free on bond:

In many courts if you have been able to make a bond, then you will be expected to hire an attorney to represent you. This is an important decision to make and could determine how the rest of your case can go. Take the time to find an attorney that is right for you, but above all find someone who is experienced in handling your type of matter. Find out if your lawyer goes to trial or if they just plea out their clients. A plea may be good in your case, but is not always the best option in the long run. That is why it is important to find an attorney with trial experience. Remember you are the one paying them. So ask to see how successful they are at what they do. Only past accomplishment can show you how likely your attorney can succeed.

Different levels of  criminal offenses:

In Texas at the county level, offenses are prosecuted at the lowest level of Class B misdemeanor up to the highest level of First Degree felony. Examples of the level of each type of offense and the possible ranges of punishment are as follows:

Class B Misdemeanor - confinement for a term not to exceed 180 days in the county jail; and/or a fine not to exceed $2,000.00. Example: DWI, Criminal Trespass, Theft by check $50.00-$500.00, evading arrest or detention.

Class A Misdemeanor - confinement for a term not to exceed one year in the county jail; and/or a fine not to exceed $4,000.00. Example: a second DWI, Assault, Burglary of a vehicle, unlawfully carrying a weapon.

State Jail Felony - confinement for a term from 180 days to two years in the state jail; and an optional fine not to exceed $10,000.00. Example: Credit card abuse, unauthorized use of a motor vehicle, reckless injury to a child.

Third Degree Felony - confinement for a term from two to ten years in prison; and an optional fee not to exceed $10,000.00. Example: a third DWI, Indecency with a child, Kidnapping, Possession of a firearm by a felon.

Second Degree Felony - confinement for a term from two to twenty years in prison; and an optional fee not to exceed $10,000.00. Example: Aggravated assault or Kidnapping (if the victim is released unharmed), Arson, Robbery, Sexual assault.

First Degree Felony - confinement for life or a term of five to 99 years in prison; and an optional fee not to exceed $10,000.00. Example: Murder, Aggravated kidnapping, Robbery or Sexual assault.

Capital Felony - punishment in prison for life or death penalty. If the State does not seek the death penalty, upon conviction, an automatic life sentence is imposed. Where the State seeks the death penalty, upon conviction, the jury must answer questions, which may result in either a sentence of life imprisonment or the death sentence. Example: Murder during the commission of another felony such as kidnapping, rape or robbery.

How the Case is Filed and Processed

Misdemeanor Offenses:
  • Misdemeanor cases are filed by the police agency with the District Attorney’s Office.
  • If the District Attorney’s Office decides to prosecute the case, a document is created callled an information. (The information is a written statement filed and presented on behalf of the State of Texas by the district attorney, charging the defendant with the offense.) It provides the defendant with the notice as to the offense for which he stands charged.
  • Once an information has been processed, a file is generated and the case is randomly assigned to one of the 12 misdemeanor courts.
Felony Offenses:
  • Felony level offenses are filed by the police agency with the District Attorney’s Office.
  • The District Attorney’s Office then generates a charging instrument known as an indictment. (An indictment is the written statement of a grand jury accusing a person therein named of some act or omission, which, by law, is declared to be an offense.) The indictment puts the defendant on notice regarding the charges being brought.
  • Once the paperwork has been generated the case is then set to be heard by the grand jury. (The grand jury is a panel of citizens who briefly review information provided by the police who then make a determination whether there is sufficient evidence to believe that an offense has occurred.)
  • Any person charged with a felony offense has the right to have his/her case indicted by the grand jury.
  • Once filed, a felony case is randomly assigned to one of the 15 felony courts. It may take two to three weeks before a case is actually heard by the grand jury.
  • The grand jury will either issue a bill of indictment or a no bill. True bill means that the grand jury found that there was enough evidence to believe that an offense did occur and the case will then be forwarded to the felony court to which it was assigned. A no bill means that the grand jury did not believe that there was enough evidence to proceed with the case as it was filed.

Going to Court?

If you are on bond you will be notified by mail (at the address you gave the jail when you were released) as to which court your case has been assigned, the court date and the time you are to appear. On your court date, you should go directly to that court. Each court posts a docket sheet in front of the courtroom. The docket sheet lists the name of each person who has a court setting on any particular day, the name of their attorney and the type of setting (announcement, plea, trial). You must be in court on the day and time instructed or the court may forfeit your bond and issue a warrant for your arrest. (Bond forfeiture means you lose the money that you have posted as a guaranty to the court that you would appear on the setting date.) Some courts require that you come inside the courtroom, while others will tell you to remain in the hall directly outside the assigned courtroom until the court bailiff calls your name. If you don’t know where to go, it is always best to enter the courtroom and check in with the court bailiff or court coordinator.

How the Case Proceeds

Misdemeanor Cases: This process begins once the police have filed the case and the District Attorney’s Office drafts an information.

Felony Cases: This process begins when the Grand Jury issues a true bill of indictment. Once the case has been indicted, the process begins.

The First Appearance Setting
If on bond the person accused must appear in the court, unless you have hired a lawyer. In that case, you lawyer will appear for you on all misdemeanor cases, but you must appear with your attorney on felony cases.

Announcement Settings
These settings allow both the defense lawyer and the assistant district attorney an opportunity to discuss the case and determine if the case will be dismissed, plea bargained (a plea bargain is a resolution of the case where both the State and the defendant agree to a certain punishment without involving either a judge or a jury) or set for a jury or bench trial. (A bench trial is a trial to a judge without a jury.)

Generally, a case may be set for announcement two to three times. A person on bond or on a felony case is be required to appear in court every time the case is set on the court’s docket, regardless of the type of setting and regardless of whether that person’s attorney must also appear.

Final Announcement Setting
At this setting it is determined whether or not the person accused wishes to reach a plea bargain agreement with the Assistant District Attorney or to have a trial.

In many courts, once a case is set for a trial of any kind, any plea bargain offer is considered rejected and may not be offered again.

Plea Setting
If the defendant chooses not to have a jury or bench trial, then the case is set for a plea. At the plea setting the person enters a plea of either guilty or nolo contendre to the charges. (A plea of nolo contendre means that a person id not pleading guilty but chooses to “not contest” the charges brought against him. It has the same legal effect as pleading guilty to the charge.) A person who pleads to the charge may accept either the plea bargain offered by the State, or he may enter an open plea. (An open plea means that the defendant has rejected the plea bargain and asks the judge to set punishment.)

Trial Setting
Every person charged with a criminal offense has an absolute right to plead not guilty to the charge and have a trial by jury or a trial before a judge (bench trial). In either case, the State of Texas, through an Assistant District Attorney, must prove a person guilty of the offense charged beyond a reasonable doubt. In a misdemeanor trial there are six jurors who hear the evidence presented in the trial. At the felony level there are 12 jurors. There are three possible phases to each jury trial. They are: voir dire (jury selection phase); guilt/innocence phase (the time during the trial when the evidence is presented); and, if the person is determined to be guilty, the punishment phase.

A jury’s decision with regard to guilt or innocence must be unanimous (this means that all six or 12 people must reach the same conclusion as to the guilt or innocence of the person on trial). If the jury does not reach a unanimous verdict the judge may declare a mistrial (also known as a “hung jury”) and the case will be retried.

A defendant who has been found guilty of an offense may choose whether the jury or the judge will set his or her punishment.

In a bench trial the judge determines the guilt or innocence of the defendant and sets the punishment. Plus you waive all error in the case on appeal.

Probation
Depending on a number of factors, a person may be eligible to have a jail sentence probated. Probated means that they are not sent to jail but are released and supervised by the Department of Community Supervision.)

What To Do When Coming To Court

Clothing - Any time you are to appear in court you should dress as though you are going to a job interview. Men should wear pants and a shirt with a collar. A suit, jacket, or tie is always appropriate. Women should wear a dress, skirt or pants that are not too tight, too short, or too low cut. It is never proper to wear shorts, t-shirts, or sandals. Excessive make-up or jewelry should not be worn. In the courtroom itself, it is never proper to wear a hat, read a newspaper, eat, or chew gum.

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