Daniel Peugh is a former Chief Prosecutor for the Denton County Criminal District Attorney’s Office. He has an insider’s knowledge of local Judges, Prosecutors, and Probation Officers. At The Peugh Law Firm we try cases and we get jury verdicts. Our ability to make our case before judges and juries benefits all of our clients at every level of representation. Most of our clients do not go to trial. Still, the plea bargain offers our clients receive are based in large part on what the prosecutors know we can do if the case goes to trial.
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You have been arrested for DWI. Most people’s reaction is, “but I wasn’t drunk.” Well, good. That will help in defending your case. It does not mean that the State does not have a case. Why, because you are not accused of being drunk. Legally, you are accused of being intoxicated.
The Legal Definition of Intoxication:
Legally, intoxication means not having the normal use of your mental or physical faculties by reason of the introduction of alcohol or some other substance into your body. It also means having a blood alcohol concentration of 0.08 or more.
Depending on the specifics of your case and the presence or absence of any prior DWI charges on your record, the following is a list of charges you could be facing:
Confinement 72 hours to 360 days
Maximum Fine: $2,000
Offense:DWI BAC >=0.15
Confinement: 0 hours to 365 days
Maximum Fine: $4,000
Confinement: 30 to 365 days
Maximum Fine: $4,000
Offense: 3rd or More
Confinement: 2 to 10
Maximum Fine: $10,000
Offense:DWI with Child Passenger
Confinement: 180 days to 2 years
Maximum Fine: $10,000
Offense: Intoxication Assault
Confinement: 2 to 10 years
Maximum Fine: $10,000
Offense: Intoxication Manslaughter
Confinement: 2 to 20 years
Maximum Fine: $10,000
Intoxication Assault means that the State believes that you were; 1) driving while intoxicated, 2) intoxicated driving caused you to get into an accident, 3) a person was injured in the accident.
Intoxication Manslaughter means that the State believes that you were; 1) driving while intoxicated, 2) intoxicated driving caused you to get into an accident, 3) a person was killed in the accident.
The offenses at the top of the chart, beginning with DWI First Offense, are more likely to receive probation. As you move down on the chart, the offenses become more serious and desirable outcomes become more difficult but, NOT impossible.
Getting out of Jail
If you, or a loved one, have been arrested for one of the offenses on the table above the only way to be released is by posting some sort of bond. A bond is an amount of money that an accused promises to pay in the event the accused does not show up for court. It is a promise to appear with a financial incentive.
The amount of bond in a case depends on many factors. The less serious the offense, the lower the bond generally. A “typical” bond in a first offense DWI is rarely more than $2,000. You can post your bond in cash with the sheriff. You will get your money back, minus a fee, when the case is finished. Most people hire a bonding company to post a bond for them. It is less money out-of-pocket to hire a bondsman but, the fee you pay the bonding company is theirs to keep.
Ignition Interlock Devices
DWI cases often carry special conditions for release on bond. An ignition interlock device can be required as a condition of bond in DWI cases. An ignition interlock device is a deep-lung breath analysis mechanism that will test for ethyl alcohol in the breath of a vehicle operator. The interlock is installed into any vehicle that the person on bond drives. If alcohol is detected, the ignition interlock device will make the vehicle inoperable.
Interlock devices are not required by law in DWI first offense cases. A judge has the discretion to require an Interlock device as a condition of bond in a first DWI case but, judges generally do not do that. Ignition interlock devices are mandatory as a condition of release if the person was arrested for a second offense (or greater) DWI. Interlock devices are also mandatory for all Intoxication Assault and Intoxication Manslaughter cases. If a specimen of breath or blood was submitted and testing revealed a blood alcohol concentration (BAC) of 0.15 or greater, judges can and often will order ignition interlock devices as a condition of release from jail.
Follow this link to see a sample of an “Additional Terms and Conditions of Bond” Order that is used in some DWI cases in Denton County.
Your Driving Privilege
Sometime during your arrest you were offered the opportunity to provide a specimen of your breath or blood to be tested for the presence of alcohol. One of three things happened:
- You refused and your driver’s license is subject to suspension. (180 days if a first offense) You have 15 days from the date of your refusal to appeal the driver’s license suspension.
- You complied and the result revealed a blood alcohol concentration above 0.08. Your driver’s license is subject to suspension. (90 days if a first offense) You have 15 days from the date of your failure to appeal the driver’s license suspension.
- You refused and your driver’s license is subject to suspension. (180 days if a first offense) However, unwilling to accept your refusal, the arresting officer obtained a warrant allowing your blood to be forcibly extracted from your body. You have 15 days from the date of your refusal to appeal the driver’s license suspension.
These suspensions are referred to as Administrative License Revocations (ALR) and they can be appealed at ALR Hearings.
Do not let the 15 day period expire without requesting an appeal!!!! If you have not already done so; get up from your computer, go find the “Notice of Suspension” that the officer gave you, and call the Department of Public Safety at the number listed in the “fine print” at the bottom of the page. (This page is usually colored pink or yellow.) Any attorney you hire can handle the appeal for you. However, there is little or nothing an attorney can do about your suspension if you let the deadline pass.
NOTE: If you willingly submitted to a blood test your license is not subject to suspension for refusing to provide a specimen but, it can still be suspended if the lab report reveals a blood alcohol concentration of 0.08 or greater. The lab testing makes this process take longer than the process outlined above. The DPS will notify you by mail if you blood sample tests over the limit. That notice will also state their intention to suspend your driver’s license for the test failure. You will have 15 days from the date of that notice to appeal your suspension. Follow the instructions above and do not lose your right to an appeal.
An ALR hearing is a civil action, separate from the criminal case, where the Department of Public Safety attempts to suspend your driver’s license for refusing to submit a requested specimen or for providing a specimen that reveals a blood alcohol concentration of 0.08 or greater. Because they are civil hearings, the burden of proof required of the State is lower than the “beyond a reasonable doubt” that is required in criminal cases. However, it is still an opportunity to protect your driving privilege. In addition, through the process of discovery, you and your attorney will get an early look at the evidence that was collected against you for your upcoming DWI case.
You should always request an ALR hearing. There is no reason not to take advantage of the opportunities to keep your license and to see the evidence in your DWI case. There are many ways to succeed at these hearings and success means you do not have to deal with the hassle of a license suspension.
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Criminal & DWI Defense in Denton, Texas
Occupational Driver’s License
If, in spite of our best efforts, we cannot prevent the Department of Public Safety from suspending your driver’s license at the ALR Hearing we can petition the appropriate court for an Occupational Driver’s License (ODL) in most cases. An Occupational Driver’s License is a court-ordered driver’s license. It allows the holder to continue driving during the suspension period for their regular driver’s license but only for essential needs. For this reason Occupational Driver’s Licenses are also referred to as essential need driver’s licenses.
We will draft a winning Petition for ODL for you. You will need to review it and sign the Petition before a Notary. Expect to provide a current copy of your proof of insurance to be included with your petition. We will file the Petition and set the matter for a hearing before the appropriate judge. At the hearing our questions will guide you through the process of proving both your eligibility for an ODL and your need for the ODL.
ODL’s are not available in all situations. Be sure to inform your attorney about everything that is on your driving record and exactly the reason your license is currently suspended. You can expect a judge granting an ODL to require; attendance at least one AA meeting, acquiring SR-22 insurance, maintaining a bound log book detailing every trip you make while driving under an ODL, and even installing an ignition interlock device into the car you will drive.
License Suspension FAQ:
The DWI Charge
If you haven’t done so already (and you should have) hire a lawyer now. It is NEVER too early to hire a lawyer when you have been arrested for a criminal offense. The earlier you employ an attorney the more that attorney (especially if it is me) can do for you.
What can an attorney do? First, we will work with you to preserve and develop your defensive issues. Together, we can collect evidence that can be used to prove your side of the case. Evidence that can establish that you were not intoxicated, not driving, or should not have been pulled over in the first place (to name just three areas) is very valuable. We know where to look for valuable evidence and how to use it.
The Court Documents:
In every case we will review the legal documents filed with the court. These documents include Complaints, Informations, Indictments, and Probable Cause Affidavits. These documents define the technical elements of the case. Furthermore, these documents set forth what the State must prove in order to have you found guilty. If you have ever heard the term “legal technicality” it is in these formal documents that many “technicalities” arise. They must be reviewed by competent counsel. Not only will we go over these important documents with a fine-toothed-comb but, we will include you in the process. We will make sure you know and understand what the court documents in your case say and what it all means to you. If there is any problem with any of these documents we’ll know, you’ll know, and when the time is right, the Prosecutors and the Court will know.
What happens to a citizen accused of DWI largely depends on what the specific facts in a case are. The provable facts are determined by the admissible evidence in the case. It is our view that every piece of evidence is important. However, not all evidence is created equal. In DWI cases, the video tape is the king of the evidence. Video is king simply because juries that see intoxicated drivers on video convict. Juries who see sober citizens on video acquit.
Your DWI defense attorney MUST know at least two things:
- What to look for on a DWI tape. Here, I am not talking about vomiting on the officer’s shoes. I am talking about the visible but technical evidence that appears on DWI video tapes. For example, prosecutors and police officers love to make a fuss about, so called, Standardized Field Sobriety Tests. To be Standardized and, in my opinion, to be of any use at all sobriety tests must be conducted correctly. The police officer will say that you failed the field sobriety tests. Will your attorney know by watching the video whether or not the officer is correct?
- What will a jury think of what they will see on the video? Prosecutors and police officers will point to everything that can think of on a video tape (credible or not) and say that it is evidence of intoxication. Fortunately, the State and its agents do not have the final say on that. Jurors decide what is and is not persuasive evidence of intoxication. What things, if they look bad on the video, will push jurors to convict? What things, even if done poorly, carry little weight with jurors? Will your attorney know the difference?
Another big evidentiary area is specimen testing. There are blood tests, breath tests, and (believe it or not) urine tests that are sanctioned by law to measure a person’s blood alcohol concentration. What happens if you pass the test? The case is dismissed right? Wrong. The prosecutors will proceed to prosecute you for having lost the normal use of your mental or physical faculties or both. Legally, they are allowed to do this and factually, they will. Get an attorney early. It is much easier to talk a prosecutor out of filing a case than it is to talk a prosecutor into dismissing a case that he or she has already decided to file.
What if I tested over the limit? I’m guilty, right? A test over the legal limit can be good evidence but, it does not have to be the last word. I do not want to give away the farm here (you haven’t even hired me yet) but, jurors can be suspicious of alcohol testing. Jurors are especially suspicious when the test result does not agree with the other evidence in the case. Further, at the risk of going too far, the State is not the only side in the case that can perform testing. Does your attorney know what resources are available to help you in your specific situation?
I have already touched on some possible defenses to DWI in prior sections. But, if you jumped here looking for hope, you have come to the right place. Every DWI case can be defended. Every DWI has the potential to be a not guilty or a dismissal. Sometimes you are busted and I write more about that below. However, your attorney should never approach your case assuming it is going to be a plea. Therefore, you should never hire an attorney that runs a “plea mill.” Your attorney should assume that you were stopped illegally, that the investigation was faulty, and that your arrest was without probable cause. These are Constitutional defenses that should only be pried away from your attorney’s fist when overwhelming evidence has refuted his assumptions. Is your attorney looking for Constitutional violations? Would he or she know what to do if such violations are found in your case?
If your Constitutional Rights are intact, what other defenses might be available to you? How do you look on the video? How will the jurors think you look on the video? The police say you failed the field sobriety tests but, did you? Were the field sobriety tests administered correctly? Will you have an attorney that can spot incorrectly administered sobriety tests on the video? Will your attorney know what to do about it?
What about the breath test? Will your attorney give up if he or she sees a test slip that is over the legal limit? Even blood alcohol concentration tests can be challenged at trial. Does your attorney know what it takes to beat a test above 0.08? Does your attorney have what it takes to even try? There are all kinds of evidence in a criminal case. The police never gather it all. Is your attorney going to work with you to gather evidence that supports your side of the case?
What if I did it?
OK, I admit it. Real people do not like trials. Only the mutants that we call lawyers like trials. Even if you feel very strongly that you did what you are accused of, hire a good lawyer. Criminal Defense, as much as I like to brag, is not all “not guilty” verdicts and dismissals. A big part of what I do for a living, my favorite part, is helping good people that just messed up. At one time in my career I was a bulldog of a prosecutor. I know very well that prosecutors, particularly the young ones that are assigned to DWI’s, can think that they are saving the world by throwing good people to the wolves. You must have good representation. You do not need to be “made an example of.” The fact that I do try cases and that I do get verdicts will be respected in the plea bargain negotiations. My thorough investigations always turn up defensive issues that, at least, encourage prosecutors to offer a better plea bargain.
For information regarding the requirements and benefits of the ‘Denton Drug Court’ please follow this link.”