An ordinary first-offense is typically a Class B misdemeanor. But any number of circumstances can enhance the misdemeanor DWI charge into a felony DWI charge. Those circumstances include things like seriously injuring or even killing another person due to intoxication, injuring police, medical, or firefighter officials, or committing a DWI while transporting a child under age fifteen. Texas charges DWI felonies first as progressively more-serious state jail felonies, third-degree felonies, second-degree felonies, or even first-degree felonies. The procedures for a felony DWI can differ in some respects from the procedures for a misdemeanor DWI. Texas felony DWI cases generally unfold in three major stages, along an approximate timeline.
Police procedures cover the first few hours of a DWI arrest, before court involvement. Do not underestimate how important your responses to police procedures are to the outcome of your DWI matter.
Police felony DWI procedures begin with your investigatory stop. Police must generally have reasonable suspicion to believe that you have engaged in behavior that is against the law, to make a lawful investigatory stop. In a felony DWI case, reasonable suspicion can involve things like weaving out of traffic lanes, disobeying traffic signs and signals, excessive speed, and of course a motor vehicle crash. Suppose the police do not have reasonable suspicion, and they instead stop you without being able to articulate those grounds. In that case, your retained DWI Specialist defense attorney may be able to suppress incriminating evidence and obtain the DWI charge's dismissal. Obey the officer's signal to stop, though. Fleeing or evading DWI arrest is another criminal charge that can complicate a felony DWI case. Follow DWI Specialist defense attorney Doug Murphy's DWI stop guide, including not to disclose information relating to your arrest voluntarily. You have a privilege against self-incrimination.
After the investigatory stop, police felony DWI procedures continue with your arrest. Texas Code of Criminal Procedure Article 15.22 defines an arrest as when the defendant “has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.” In other words, an arrest means you are no longer free to go. To make a lawful arrest, police must have probable cause to believe that you committed a crime. Police also need probable cause to search your vehicle. Probable cause for a felony DWI arrest may come in the form of reckless driving, the odor of alcohol on your person or breath, drugs or alcohol in plain view within your vehicle, your physical behavior or police interaction indicating your intoxication. The exclusionary rule may bar incriminating evidence if police arrest you without probable cause, on a felony DWI charge.
Field sobriety testing may be a part of your felony DWI procedures. These so-called sobriety tests, which can be more of a test of balance and coordination, or even simple nervousness, than of intoxication, can include the horizontal gaze nystagmus test, walk and turn test, or one-leg stand test. Police will generally arrest the detainee who fails a field sobriety test. Refusing to take a field sobriety test is generally the best course, although police may arrest anyway over your refusal, and the prosecution may attempt to use your refusal as evidence of intoxication. Police need probable cause, though, to administer a sobriety test. Your retained DWI Specialist defense attorney may challenge whether police had probable cause and may also challenge inaccurate field sobriety test results. At or after your arrest, police may seek a warrant for your blood alcohol test or breath test. Texas Transportation Code Section 724.012 authorizes blood and breath tests when the officer has reasonable grounds to believe the driver committed a DWI. Texas case law State v. Villareal, 475 S.W.3d 784 (Tex. Crim. App. 2014), though, requires a warrant for DWI breath or blood testing. Your retained defense attorney may have grounds to challenge a warrantless test or challenge the warrant itself.
After your felony DWI arrest, police will transport you to the station for booking. Booking records your personal information and circumstances of your arrest in the police records. Police will obtain your name, address, and telephone number, check your criminal history for any prior convictions or arrests, fingerprint you, take your photograph or “mugshot,” remove your personal property, and search you for any contraband. Police will then place you in a holding cell while you await release on bail. It is critical that you not share more information with police at booking.
Police will generally impound your vehicle when making a DWI felony arrest. In misdemeanor cases, police might let a family member or friend drive your vehicle home. Texas law requires vehicle impoundment in most felony DWIs. Expect to lose control and use of your vehicle after a felony DWI arrest. In the Houston area, wait a couple hours while tow operators record your vehicle's impound, and then check FindMyTowedCar.com or call the tow line at 713-308-8580 to locate your vehicle. But in the case of a felony DWI charge, don't necessarily expect to get your vehicle back as soon as police release you on bail. If your vehicle is evidence, which is often the case in felony DWI cases, police may keep your vehicle for weeks or even months until after your charge resolves.
Preliminary Court Procedures
Preliminary court procedures follow the first few hours, or day or two, of police procedures in a felony DWI case. Courts are generally not in session other than non-holiday weekdays from 8 or 9 a.m. to 4 or 5 p.m. Many felony DWIs occur on Friday and Saturday nights, when courts are not generally open. Thus, while arrest and booking may take a few hours at most, a felony DWI defendant whom police do not release on personal recognizance may spend a day or even two in jail awaiting preliminary court procedures.
After your booking on a felony DWI charge, police will hold you until the court sets bail. Bail involves the defendant's payment of money and giving of other assurances to return to court to answer the charge. In the case of a misdemeanor DWI charge, police may release you on personal recognizance, meaning without bail, or may let you out on a small bail amount like $500. But on a felony DWI charge, police are very likely to hold you until the court sets the bail terms. Each county generally sets its own bail requirements depending on the facts and circumstances of each case. Bail for a felony intoxication assault charge, though, can be up to $35,000. Bail bond companies will post bail for you, typically charging you a fee of ten percent of the full bail amount. Other bail conditions can include not consuming alcohol or drugs, staying out of clubs, remaining in the locale, state, or country, installing an ignition interlock device on your vehicle, drug and alcohol testing, and of course returning to court for each required appearance. You need to get out of jail, though, to live your life and aid in your own criminal defense. Your retained DWI Specialist defense attorney can assist you with bail issues.
Arraignment, Plea, and Representation
Arraignment is the first court procedure a defendant faces in a felony DWI. If, as is usually the case for a felony DWI, police have detained you, they will transport you to court or arrange for a video arraignment. If police have released you, which typically only happens with misdemeanors, then you will receive a notice of your arraignment date on your release or in the mail. The prosecutor has already filed the felony DWI charges, which the judge will read or interpret to you to ensure that you understand the charges. The judge will then ensure that you plead guilty, not guilty, or no contest. You should generally plead not guilty, no matter how you evaluate your felony DWI charge and no matter what police, prosecutors, judge, or acquaintances tell you. You need the independent advice of your own DWI Specialist attorney. The court will also set bail as indicated above. The court will also determine whether you have retained a DWI defense attorney and, if not, whether you can afford to do so. The court will appoint a public defense attorney for indigent defendants facing felony DWI charges. Retain Houston DWI Specialist attorney Doug Murphy for your aggressive and effective defense. Get your best possible outcome to serious felony DWI charges.
Only felony DWI charges warrant a preliminary examination or preliminary hearing. A misdemeanor charge will not lead to a preliminary exam. At a preliminary exam, the prosecutor must present evidence sufficient to support the felony DWI charge. A preliminary exam is not a full-blown trial. No jury is present. The judge must only decide whether the prosecutor has some evidence on each element of the felony DWI charge, not whether the prosecution's evidence confirms the crime beyond a reasonable doubt. You don't always have to face a preliminary exam. Your DWI Specialist defense attorney will advise you whether to waive the preliminary exam. But preliminary exams can expose holes or inconsistencies in the prosecution's case. And with skilled DWI Specialist representation, some preliminary exams result in dismissal or reduction of the felony DWI charges.
Plea bargaining may occur at arraignment, the preliminary hearing, and other formal and informal conferences and meetings between the prosecution and your retained DWI Specialist defense attorney. Plea bargains can either reduce the charge in exchange for a plea of guilty to the reduced charge or reduce the sentence to the mandatory minimum in exchange for a plea of guilty. A prosecutor might, for instance, reduce a basic DWI charge to public intoxication or reckless driving. Plea bargaining may sound attractive to the frightened defendant facing serious DWI felony charges. And some defense attorneys may encourage or even pressure their client to accept a plea bargain out of the attorney's own interest. Depending on the case, though, plea bargaining can result in poor outcomes. A plea bargain generally means a conviction and sentence. Prosecutors are generally reluctant to reduce felony DWI charges to misdemeanor DWIs or non-DWI charges. And convictions and sentences, hard enough on their own, can cause serious collateral consequences. Yet a surprising number of DWI charges get not just reduced but dismissed. Not that dismissals are common or easy. They aren't. But skilled strategic representation from DWI Specialist defense attorney Doug Murphy could result in dismissal. A plea bargain may be your best deal. But dismissal could be a better option.
Court Trial Procedures
Some felony DWI cases resolve at the above preliminary court procedures stage, whether through the court's dismissal of the charge or a plea bargain. But don't feel as though your case must resolve at a preliminary stage. Your best outcome may depend on continuing through the next stage of court procedures toward trial. The above preliminary stage of court procedures typically concludes within the first month or so of the arrest and felony DWI charge. The next stage of court trial procedures can take a few months or even up to a year or more, depending on the case's complexity and other circumstances. Defendants generally have a constitutional right to a speedy trial, usually within about six months of arrest. But many defendants should not rush the proceeding, when further investigation and delay may lead to a better outcome.
Pretrial Motions and Conferences
Felony DWI cases that continue after preliminary court procedures generally get set for a trial date a few weeks or months away. During that delay, your retained DWI Specialist defense attorney should be helping you get the prosecution's exonerating evidence, prepare your defense case, and do other things to get ready for trial. Your defense attorney may also file a motion to suppress evidence based on constitutional violations or other misconduct. The court may also schedule pretrial conferences both to clarify upcoming trial issues and to facilitate plea bargaining. Cooperating with your retained defense attorney during this important time can be critical to your successful outcome.
Once it begins, after a few months of pretrial procedures, a felony DWI jury trial may take as much as a few days or even a week or more in court. When you and your retained DWI Specialist appear for trial, the first step is for your defense attorney to help draw the jury. Most felony DWI defendants will, on their retained defense attorney's advice, have demanded a jury rather than let the judge decide the charges. If either the prosecutor or defendant demands a jury, then a jury will decide the charges. But which jurors decide the case depends on the jury selection process. Both sides and the trial judge may question each potential juror for bias, interest, and other predisposition. Jurors have biases and predispositions. Your defense attorney needs to remove biased jurors and retain jurors who will treat you fairly. Jury draw, more art than science, can be the difference between winning or losing your felony DWI case. Studies suggest that some jurors may make up their minds based on jury draw alone. Jury draw typically takes an hour or two, or perhaps a half day or even a full day in a vigorously contested case.
Once the trial judge seats, swears, and preliminarily instructs the jury, the prosecutor will make an opening statement of the facts the prosecutor intends to present to prove the felony DWI case. Your retained DWI Specialist defense attorney then has the option of giving an opening statement on your behalf, which most defense attorneys routinely do. The opening statement is your defense attorney's second time to impress jurors, after a skillful jury draw. The trial judge generally limits opening statements to an hour or less.
After opening statements, the prosecutor will call prosecution witnesses to present incriminating evidence. The prosecutor will likely call the arresting police officer or officers and may also call eyewitnesses and accident victims as lay witnesses or fact witnesses. The prosecutor may also call lab technicians, forensics experts, and consultants to bolster the prosecution's case. The prosecution's case generally includes not only testimony but also documentary evidence like scene photographs, medical records, and lab test results. Your defense attorney should vigorously challenge witnesses and documentary evidence. At the close of the prosecutor's proofs, your defense attorney may also move for a directed verdict to dismiss a clearly inadequate case.
You and your retained attorney must decide whether to present your own testimony in defense of your felony DWI charge and the testimony of other defense witnesses such as your vehicle passenger, character witnesses, and expert witnesses on police and lab procedures. The better strategy is often for the defendant not to testify but instead for your retained defense attorney to reveal contradictions in the prosecution case, undermining the prosecutor's burden to establish each element beyond a reasonable doubt. But that decision requires careful consideration of the facts and circumstances of each case. The prosecution may present a rebuttal case after the defense case, which the defendant may then rebut. The bulk of trial time is generally in the presentation of evidence, sometimes lasting days.
After all the evidence is in, the prosecution makes a closing argument applying the law to the facts, followed by the defendant's closing argument and a short rebuttal from the prosecution. Closing arguments can carry the day, especially the closing argument of a skilled DWI Specialist exposing weaknesses in the prosecution case. The prosecutor's beyond-a-reasonable-doubt standard for proof generally favors the defense.
After closing arguments, the trial judge must instruct the jury with the applicable law. Jury instruction can sway the jury. Your retained defense attorney's advocacy for one instruction or another may make the difference in the defense of your case. Jury instructions are also an area ripe for legal error, creating solid grounds for a successful appeal of an adverse verdict.
Deliberation and Verdict
After jury instruction, the jury must deliberate toward a verdict. Deliberations can take as little as an hour or less or as much as a day or more. You have little to do but wait for the results, in or near the courthouse, while the jury deliberates. Only in the case of questions from the jury to the judge will your retained defense attorney have an active role in your defense, when your attorney may advocate for helpful answers or responses to the jury's questions. When the jury reaches a verdict, it informs the judge, who generally has the jury foreperson read the verdict. Either side may then poll the jurors to confirm their agreement.
Sentencing of a defendant whom the jurors find guilty is generally the trial court's last significant action. The prosecutor's office will prepare a sentencing report for the defendant's review with counsel. The court may conduct a sentencing hearing on disputed factual issues tending to aggravate or mitigate the charge.
For felony DWI defendants who suffer conviction at trial, Texas Code of Criminal Procedure 44.02 offers an appeal of right. An appeal takes the case from the trial court to a division of the Texas Court of Appeals. The Fourteenth Division hears appeals from Houston trial courts. An appeal is a highly technical procedure, requiring skilled appellate representation. Your appellate attorney must file a timely notice of appeal, order and obtain the trial transcript, review that transcript and other materials for irregularities in the proceeding, perform other legal research, draft a convincing appeal brief, and argue the appeal in open court. Retain DWI Specialist defense attorney Doug Murphy to evaluate and pursue your felony DWI appeal.
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Houston DWI Specialist defense attorney Doug Murphy is the 2023 Houston DWI Defense Lawyer of the Year. Attorney Murphy is also one of only two Texas lawyers board certified in both DWI defense and criminal law defense. Attorney Murphy frequently lectures nationwide to educate other lawyers in DWI defense issues, proving his national reputation and expertise. Call (713) 229-8333 or go online now to retain premier Houston DWI defense attorney Doug Murphy for your felony DWI defense.