In Texas, we are very fortunate to have some tools that a DWI Lawyer can use to pry open the State's weaknesses in a DWI case. The ALR hearing or license suspension hearing is one of the best tools.

An ALR hearing is an Administrative License Review. It is held by an Administrative Judge but only if you request a hearing within 15 days of being arrested. Don't wait - hire your lawyer and get them the DIC-24 and DIC-25 if those documents were given to you when arrested. If not, you will need the arresting officer's name, your birth date, driver's license number (and state) and the officer's allegation - whether this was a refusal, failure, etc.

I always request an ALR hearing. I want the arresting officer to appear and testify. There is no prosecutor around to stop me from questioning and I can usually get them to admit they don't remember an important fact or detail that makes them look dishonest 6 months later for suddenly "remembering" that my client was 80 years old and not 20. It's also the best place to take the officer complete statement as to why my client was stopped. I can usually use some of his testimony to get parts of the evidence suppressed or even get the whole case dismissed when they are really unprepared.

I am always surprised by clients and lawyers that do not use this great resource for information because they think it's pointless and they cannot be won. The purpose is not to "win". That's great if it happens but the real goal is to get the officer to commit to his testimony and then at the DWI trial when he changes his story, be able to use that against him and show him out to be at least mistaken and at the most that he's an outright liar.

Juries love to see the officer caught and the only way to do it is taking his testimony in the ALR and then using that against him later.

So hurry up and request that ALR hearing because it is absolutely necessary to win a close DWI case.

This is a paper that I wrote for the website Avvo. (www.avvo.vom) It is scheduled to be published after June 27, 2008 but thought that the information should be presented sooner in the hopes that no one will be falsely accused of DWI and be forced to give evidence against themselves.

What to do when Stopped for Driving While Intoxicated in Texas.

Most people are stopped for Driving While Intoxicated in the evening or early morning hours. If you are driving during that time and you get pulled over by the police, there is a good chance that you will be asked to perform tests and for a breath sample. What do you do when confronted with this dilemma? Do you have to do the tests or blow into the mouthpiece?

In Texas, you do not. You should not perform any tests the officer asks you to do.

Why not?

The tests are called "Standardized Field Sobriety Tests" by the law enforcement community. They are anything but scientific. In fact, depending on which tests you are given, the percentage error rate can vary from 33% to almost 50%. This means that 1 in 3 people arrested will be innocent of DWI up to ½ of all people arrested will be not guilty.

What do you do?

When stopped by a police officer, he can only detain you or keep you for as long as takes him to complete the purpose of his stop. You do not have to answer any questions and in fact, answering his questions may cause you to inadvertently cause him to suspect you are intoxicated. Once the officer has probable cause to believe you have been driving under the influence of alcohol, he has enough to arrest. So why have you do the tests. Because he is more than likely videotaping you and trying to get you to mess up or fall or stumble or slur your words during the questioning so that he can force you to give evidence against yourself.

The officer may shove a portable breath testing device in your mouth. This is not an officially sanctioned device and is inadmissible as evidence of intoxication in the State of Texas. You do not have to blow into this device and your license cannot be suspended for your refusal to blow because this is not an officially sanctioned device.

Unfortunately, most DWI attorneys come into contact with clients after the stop was completed leading to the person's arrest. Here's what you should know when you are stopped for any traffic stop, but especially in the high percentage hours between sunset and sunrise.

First, have your driver's license, insurance and registration readily available. Take them out of your wallet, dashboard, and glove compartment and have them in your hand ready to give to the officer. Frequently, officers note a person "fumbling" for their license or other documents as proof of their mental faculties being affected. Since a police officer is only trained to assume this is due to alcohol, one inadvertent slip of your driver's license could mean that you will be arrested for DWI.

Next, you have the right to remain silent - use it! I cannot tell you how many clients think they are going to talk themselves out of a DWI and end up making it so much worse by talking. Remain silent. Give the officer your identification and insurance information and DO NOT answer any questions or engage in small talk.

DO NOT engage in any further conversations with this officer or any other officer or law enforcement authority for the remainder of the time you are stopped or the rest of the evening for that matter. And DO NOT answer any questions.

DO NOT take any roadside tests or exercises.

DO NOT blow in any type of breath testing device - on the road OR back at the station. It is not illegal for you to refuse a breath test.

Ask permission to leave.

If you are arrested, it does not mean that the case can be proven in a court of law. Not providing evidence to use against you later is the smartest thing you can do for yourself even if it means temporarily being made uncomfortable and suffering through being arrested.

You will not be able to talk yourself out of it. The officer is not looking for you to "prove" your innocence. They are looking to gather evidence against you. That is the sole purpose behind videotaping your performance on the tests and a breath test request.

Finally, assume at all times that you are being recorded on a videotape and everything you say will absolutely be used against you later. Even when the officer is out of his car, he has a microphone and a videotaping device trained on him, recording everything.
Be polite, don't speak, and leave as soon as you are released.

If by chance you are arrested, remain silent and contact your attorney at your first opportunity, even if that means calling from the jail - but remember, even jail calls are recorded and can be used against you later!

I get asked by well meaning, naive accused citizens why they should consider hiring an attorney. Some marketing advisers tell attorneys to use big words, impress the potential client and make them think you are really knowledgeable in the area so they will hire you. I always thought it was more important to do good work and do the best for your client rather than impress them. Several of these accused citizens get sucked into the "saving money" game. This is a shell game where a naive client thinks that the attorney that he hired for $300 is really going to help him. In the end a plea deal is worked out and the client, while not dissatisfied, is not really sure that he did the best thing by taking that quick plea. Usually, they call me for the appeal, but unfortunately in Texas, as part of any plea agreement the defendant is asked to waive his right to appeal. And that means exactly what it says. You have waived your appeal.

So why does a person think they are really getting something for nothing? The top notch DWI attorneys spend years perfecting their work. They are accomplished trial attorneys that know the law, science and police procedures so extensively that most can very quickly assess the actual case and possibility of fighting the charge and can effectively exploit every weakness in the prosecution's case. So why should you pay for a highly skilled, trial lawyer that is considerably more expensive than the person who will guarantee your rights are protected for $300? Because you really won't learn the full cost of that plea until after the ink is dry and it's too late to do anything about it.

You will be found guilty 100% of the time with a plea. Unless you have a lawyer that is used to fighting the government and is willing to invest the time and effort into truly examining your case and assessing the strengths and weaknesses of the government's case, you will never know if you have a valid defense. A trial lawyer is the only one that can really help.

A plea should be a last resort and is only used in my practice if I feel I cannot get a better deal by going to trial. Even when you lose, if you can get a better deal from the judge or jury by going to trial, then take the case to trial. There have been several times that I have been in trial and seen the government's lawyer make a mistake that enabled us to win the case. But, had we pled out, we never would have had the chance.

A trial lawyer is not cheap. It takes years of training and experience to learn and master everything necessary to defend a DWI case. They are without a doubt the most scientifically and evidentiary complicated cases. I have tried capital murders and murders that were less difficult to try than a blood case DWI.

So ask questions when hiring or interviewing your potential lawyer. How many cases have they taken to trial, how many have they won, how many did they beat the offer and are they prepared to represent you through to a complicated trial? Not all lawyers are the same and you'll soon find that out when asking tough questions.

I love it when clients ask those questions to me because it affords me the opportunity to talk to someone that understands the value of quality, top notch legal representation.