DWI Success – The One, Two Punch. ALR and Plea Bargaining

Attorney Marsh
Comments Off on DWI Success – The One, Two Punch. ALR and Plea Bargaining

I think it’s important to learn from losses and celebrate success. Especially when that success immediately impacts another person’s life.

Recently I finished a DWI case which made both my client and I very happy. This is the short version of his story.

My client – we’ll call him John – had been out with friends one night drinking beer. In Texas you’re allowed to have a drink and drive, but you’re not allowed to be over the limit. On the way home, John was stopped by an officer and arrested for DWI. He was very nervous about keeping his job and driver’s license.

As I’ve talked about in other posts, a DWI case has two parts. One part is the ALR Hearing, which involves your driver’s license suspension. The other part is the criminal consequences of a DWI.

I started on the case and requested an ALR Hearing within 15 days.

When it comes to an ALR hearing, timing is everything. An ALR hearing must be requested within 15 days of the date of your arrest. If the hearing is not requested, you lose the opportunity forever and your license will be automatically suspended 40 days after the Notice of Suspension was sent.

I also requested the police reports and videos from the arresting officers. I prepared for the ALR Hearing by going through the police reports in great detail and made sure to take notes while watching the dash cam video provided by the police.

The officer wrote in his report that the reason for the stop was that John didn’t dim his high beams when coming up on traffic, but while watching the video, I realized that the basis for the stop was bad. The stop didn’t have legal justification. Not only that, but at the time of the stop, the officer was behind John the entire time!

Under Texas Transportation Code Section 547.333 it says that high beams must be dimmed if you’re within 500 feet or less with oncoming traffic.

The Officer didn’t include the distance in his report.

This makes a big difference.

At the ALR Hearing for John’s license, in front of an Administrative Law Judge, I argued that the Officer’s report didn’t include enough information to show that the stop was justified. The Judge sided with John and I, and John avoided a license suspension. (Success #1!)

The second part of this story was the plea bargaining with the prosecutor. Using the ALR Hearing results in plea bargaining can sometimes help with a better deal.

Let’s talk about the dash cam video and how John did on the DWI tests.

The main DWI tests are the pen-light (HGN), walk and turn, and  one leg stand.

1. The HGN Test -This stands for Horizontal Gaze Nystagmus. Say that three times fast. Most people would recognize it as the test with the pen light. The purpose of this test is for the officer to see how your eyes move from side to side. You’re supposed to start dead center then move your eyes to follow the lit up tip of the pen without turning your head. Supposedly, when alcohol is in your system, it causes your eyes to “bounce” while they’re following the pen tip. Do not move your head. Repeat: DO NOT MOVE YOUR HEAD. The interesting part about this test is that, the person tested doesn’t know their eyes may be “bouncing” and they can’t feel the bounce. However, there are many other reasons a person’s eyes would bounce other than alcohol in their system.

2. The Walk and Turn Test – The police officer will give you instructions and demonstrate how to do this test. This test and the One Leg Stand Test are divided attention tests. Divided attention tests are given because they idea is that if you’re intoxicated, it will show more easily because you can’t concentrate on more than one thing (driving is a divided attention task. Why? There’s lots going on at the same time.)

Basically, you’re going to be asked to take usually 9 heel-to-toe steps in a straight line while counting out loud. Next, you’ll take a series of smaller steps at the end to turn around. After that, you’ll continue back the same way you came, taking 9 heel-to-toe steps. The officer will do this to see your balance, coordination, and whether or not you can move without staggering. It’s important to keep your hands at your sides and not put them shoulder height like an airplane for balance. Some people aren’t coordinated enough to touch their heels and toes together. Some people have no balance. Some people have big legs. It can be especially difficult if you have leg/knee/ankle problems.

3. The One Leg Stand – The police officer will give you instructions and demonstrate how to do this test too. You’re going to stand feet together, hands at your sides and lift your leg off the ground about 6 inches, hold it straight out with your toes pointed, and hold it there and count in “one-thousandths” to whatever number the officer tells you to. The officer is going to look to see you’re not swaying, using your arms, or skipping numbers, or slurring your words while counting. This test, in my opinion, is much harder than the others because some people may not have the leg strength to hold themselves on one leg. In addition, leg/knee/ankle problems can affect this test.

When the Officer stops someone, they will also usually have a long conversation to figure out whether the person is coherent and aware of what’s happening. John’s video wasn’t perfect, but it wasn’t terrible either. John seemed to have good balance, respectfully answered all the Officer’s questions and, as a result, showed that he was aware of his surroundings. Despite this, the Officer still arrested John for DWI.

I had an argument with the Prosecutor, pointed out the holes and flaws in their case against John, and the Prosecutor reduced the DWI charge and offered my client a probation. (Success #2!)

What did this mean for John?

John needed his license to get to and from work. Not only would a license suspension have made life very inconvenient, it would have cost more money and he would have needed an Occupational License just to get to work. A DWI conviction also carries expensive surcharges. These can be $1,000/year for 3 years paid to DPS. In addition, a DWI on your record can hurt your current or future employment. Your job prospects not only affect you, but also your family and your ability to support them.

Attention to details can make or break your case. In this case, John and I were very happy with the outcome!