Every holiday weekend we end up with a bunch of new DWI cases. People drink more on the holidays, they get together with friends, and somebody has to drive home. If you've had any alcohol and you're pulled over on a holiday weekend with alcohol on your breath, you're more likely to get arrested than any other time of the year.
That's because Texas runs what they call no-refusal weekends, with officers out on special duty only looking for DWIs. They pull people over with the specific mindset of seeing whether that person is intoxicated, and they run you through a battery of field sobriety tests. There are typically three: the walk and turn, the one leg stand, and the horizontal gaze nystagmus. When there's more attention on something, there are more arrests. That doesn't mean you're going to be convicted.
Here's what happens first after a DWI arrest in Kemah and the rest of Galveston County.
What you're charged with
A first-time DWI in Galveston County is a Class B misdemeanor, up to six months in jail, unless your breath or blood alcohol is 0.15 or above, almost twice the legal limit of 0.08. Then it's a Class A, up to a year in jail.
But most of my first-time DWI clients have never been arrested before. In many cases we can avoid any jail time, and even a conviction.
Step one: the letter and the evidence
When I'm defending a DWI case, a few things happen immediately. We send a letter of representation to the court and the same letter to the District Attorney's Office, the prosecutors. That letter tells them we're the attorneys on the case and that we need to start getting discovery.
Discovery is the process where we request the evidence in the case, and the District Attorney has a duty to disclose it to us. That's Article 39.14 of the Texas Code of Criminal Procedure, the Michael Morton Act. It means open file discovery across the state. In a DWI, that's the video, the reports and the breath or blood test results.
Step two: the driver's license decision
Your driver's license is going to have a suspension after a DWI arrest if you test over the limit, a breath or blood result above 0.08, or if you refuse to take the test.
So at the start of the case we also request an ALR hearing, a driver's license hearing to try to save your license from being suspended. One of the most important decisions we make is whether to fight the suspension at the ALR hearing, or to let the suspension take place and get an occupational driver's license through a JP court.
That choice matters later. One path will require an interlock device if you ever need an occupational license down the road because of a conviction. The other way avoids the interlock device even if we were to take a conviction.
How the prosecutor looks at your file
When I was a prosecutor, I was a member of the Vehicular Crimes Team, which focused on DWI cases with severe wrecks. So I know how the other side reads these files.
DWIs are complex cases, with scientific evidence like gas chromatography for blood and the Intoxilyzer for breath. But in most District Attorney's offices, everyday DWIs go to some of the newest misdemeanor prosecutors, who have huge caseloads. To start, they don't watch the video. They read what the officer wrote, assume it's true, and make an offer.
It's up to the defense attorney to watch the video and say, "Something went wrong here. You need to watch this part." Prosecutors prefer it when the defense attorney points them to the specific part of the video. Don't waste their time.
What a prosecutor is really looking for:
- The video. How did the person look? Did they look intoxicated? Did they say something like "I couldn't do this test even if I was sober"? The breath or blood number matters, but the video is what gives a window into the mind of the defendant.
- A victim. Was there a wreck? Did somebody's property get damaged, a mailbox clipped? The prosecutor will want to know if that person has been made whole, if restitution or insurance has been taken care of. They don't need the victim's permission to dismiss a case they can't prove, but they'll usually reach out to them.
- Problems with the test. Is there anything wrong with the gas chromatography? Did the blood turn green? That's a real thing.
If there's no victim, or the victim has been made whole, and the person has no criminal history and is addressing any alcohol issue, they can often avoid jail time. A prosecutor may even offer pretrial diversion or pretrial intervention, even if they think the person is guilty, which lets the case be removed from their record. You have to know how to talk to a prosecutor. The worst thing that can happen is the prosecutor remembering your client's name in a bad way.
The outcomes I see
We're always trying to get a dismissal. Sometimes the cards aren't there. When they aren't, a really common result is three days time served and a fine.
That avoids probation, and it avoids an interlock. If you got your occupational license through a JP court, you won't have an interlock device because of the occupational license. You end up with a conviction, but essentially no punishment other than the fine, and you move on with your life. My business-owner clients often prefer that. They aren't applying for jobs later, and they want the case over quickly.
Every case is different, and the right path depends on the evidence and on what matters most to you.
The short version
A DWI arrest in Kemah starts with a letter of representation and a discovery request under the Michael Morton Act, and with a fast decision about your license: fight it at the ALR hearing, or take an occupational license and avoid the interlock. Prosecutors start from the officer's report, so we watch the video and show them what went wrong. Depending on the facts, that can mean a dismissal, pretrial diversion, or three days time served and a fine.
This post is for educational purposes only and is not legal advice.