Getting arrested for a DWI can be overwhelming and frightening. You may be ashamed and scared to ask for help. But once you turned to a professional for help and hired a lawyer, you thought they'd aggressively defend you. But then your lawyer didn't seem to know what to do, didn't thoroughly and properly investigate your case, didn't fight the charges, and now you have a DWI conviction on your record. You thought the arrest was the worst that could happen, and now you have a criminal record in Texas. What on earth do you do now?
First, it's important to remember that you aren't alone. While no one condones driving while intoxicated, it's pretty easy to have a long day, have a few drinks at dinner, and then have your fatigue and admission that you had a few drinks mistaken for intoxication. According to the U.S. Centers for Disease Control and Prevention (CDC), Texans are more likely than the rest of Americans to face a DWI arrest. While 1.9% of people in the nation report having driven after drinking too much, 2.1% of Texans report the same. Whether that means we drink and drive more often or we're just more honest about it remains to be seen. Either way, you should remember that everyone makes mistakes, and you aren't alone in that.
Your lawyer, however, has a professional responsibility to provide you with the best DWI defense possible. When that doesn't happen, you're right to be concerned. But what do you do next?
If Your Case is Still Pending, Find a New Lawyer - URGENTLY
If your case is still pending trial, you may still want to look for a new attorney. If you're uncomfortable with your current representation, it's better to try to find a new lawyer before a court or jury convicts you. An appeal is always a much greater legal challenge than an actual trial because your legal opportunities for success diminish greatly.
Signs Your Lawyer Can't Handle This DWI
Chances are, you found your lawyer through a reference from someone you know. Unfortunately, that's no guarantee that your attorney knows how to handle a DWI. While an attorney general practitioner may think they can handle it with little direct experience, DWI defense is a specialized area of the law with its own particular legal and evidentiary issues. But there are usually signs that your attorney is in over their head, and you should carefully watch for them:
- No Communication: A lack of communication from your attorney is a big red flag. If they don't answer emails or phone calls, they're probably ignoring your case altogether. Even if your attorney can't necessarily return a call every day, someone in their office should answer in a reasonable amount of time.
- Can't Answer Questions: If your lawyer can't answer questions about your case, make suggestions for the best course of action, or articulate your best defenses, they may be in over their head. They either haven't delved into the facts of your case to do a proper analysis, or they don't have enough experience with DWI cases.
- No Enthusiasm for Your Case: You deserve an attorney who will enthusiastically and aggressively defend you and negotiate on your behalf. If your attorney doesn't seem excited and engaged regarding your case, you need a new attorney.
- Pushes You to Settle or Plead Guilty: If your attorney is pushing you to plead guilty or settle, that's a warning sign. In some cases, pleading guilty for a lesser sentence may be the best course of action, but your attorney should be able to tell you why this is their recommendation and what your alternatives are. If your attorney can't do that, it may be time to look elsewhere.
Of course, if your lawyer fails to meet their basic professional responsibilities to you as a client, it's time to find a new one.
Lawyer's Professional Responsibilities
So, what exactly does your lawyer owe you professionally speaking? When representing clients, all Texas attorneys have certain professional responsibilities they must meet. Some of these include:
- Provide a client with an informed understanding of the client's legal rights and obligations and their practical implications,
- Zealously assert their client's position under the rules of the adversary system,
- Negotiate to seek a result advantageous to their client but consistent with honest dealing, and
- Zealously pursue a client's best interests within the bounds of the law.
Even if your attorney meets the bare minimum in terms of professional responsibilities, you deserve more than that. This DWI charge will affect your life, and you deserve a lawyer who will zealously and expertly represent you.
How to Find a New Lawyer
- Experience. The most important qualification in your attorney will probably be their level and type of experience. DWI cases are not easy. They require a level of specialized technical and legal knowledge that general practitioners typically don't have. Ask your attorney how long they've been handling DWI cases, how many DWI hearings or appeals they've handled, and how many cases they've negotiated to a successful conclusion. An experienced attorney has likely handled thousands of DWI cases, both complex and simple.
- Education. While a college degree and J.D. from an accredited school are necessary for most licensed attorneys, you also want to be sure that the attorney you select is still learning. Attorneys who strive to learn more about the law as it changes and learn more about technical DWI matters are the attorneys who work hardest for their clients.
- Certifications. In Texas, the Texas Board of Legal Specialization certifies attorneys within legal specialty areas if they meet three broad areas of qualification. They must have substantial and relevant experience within their specialty. They must pass a rigorous examination. Finally, they must complete continuing legal education in their specialty areas annually. When you see that a Texas attorney is Board Certified in DWI Defense and Criminal Defense, you know that they have the broad experience, ongoing education, and litigation skills to handle the most complex cases.
- Legal Leadership. Is your prospective attorney a leader in the community and the legal profession? Many of the most talented lawyers in the Houston area naturally rise to legal leadership positions, whether as part of the bar, through nonprofit organizations, or as a teacher of other lawyers. Look at what your attorney does outside of the courtroom as well as inside.
- Communication and Advocacy. Does the attorney communicate clearly and often? Do they explain your case and your legal options articulately and in a way you can understand? Do you understand your role in the case, what steps come next, and what you need to do? You want an attorney who can effortlessly explain your cases, the next steps, and your role as you go forward. You also want an attorney who will be your advocate while negotiating or in the courtroom.
You've Already Been Convicted of DWI
If you've already been convicted of DWI because your attorney messed up, you still have options. You may have a basis to appeal your DWI conviction. Under the Texas Code of Criminal Procedure § 44.02, you have the right to appeal the court's judgment. You will only have this appeal right if the court found you guilty. If you plead guilty, you generally cannot appeal unless your lawyer file and contested a pretrial motion and the court granted and certified you the right to appeal. If you entered a plea of nolo contendere or no contest, you must preserve your appeal in writing before your matter concludes or ask permission from the court to appeal.
Notice of Appeal and Motion for a New Trial
You can file an appeal and a motion for a new trial in the court that originally convicted you, but you must have some basis for appeal. If, for example, the judge improperly applied the law somehow or allowed a piece of evidence or witness that they shouldn't have. Examples of issues that may lead to an appeal include:
- Prosecutorial misconduct
- Police misconduct
- Juror misconduct
- An illegal vehicle stop
- Incorrect administration of a field sobriety test
- An unwarranted BAC test
- Mishandling evidence
- Procedural mistakes
- If the judge failed to sustain a valid objection your attorney made during the trial
- If the judge admitted evidence obtained in violation of your constitutional rights
- If the judge admitted testimony that they should have suppressed
- If the judge failed to recuse themselves when they should have
- If the judge misapplied federal or state law
You will have 30 days to file a notice of appeal with the clerk of court in the court where your original trial occurred. If you file a motion for a new trial, you then have 90 days to file your appeal. However, it is best to have your attorney file a notice of appeal and a motion for a new trial immediately after the initial verdict. Once you file with the clerk of court, they will forward your appeal to the proper court. In Houston, it will typically be the Fourteenth Court of Appeals.
Appeal to the Texas Court of Criminal Appeals
Once your attorney files your appeal, you will also request a copy of the transcript from your trial. Because the appeal can only cover information provided in your trial, a copy of the transcript is essential for your appeal. Your attorney will then prepare a brief in support of your appeal covering the grounds for appeal, such as juror misconduct, misapplication of the law, prosecutorial misconduct, failure to suppress tainted evidence, and violations of your constitutional rights.
After the parties submit briefs, the Court of Appeals will hear oral arguments. This appeal is not a trial but a chance for your attorney to explain the legal issues to the appellate court and answer their questions. It's important to remember that an appellate court will not address issues of fact, only legal issues. It will review the record, including the trial transcript, the evidence produced, and the parties' legal briefs. It will not rehash the truth of any matter addressed during the trial, only the issues your attorney preserved for appeal and questions of law, including the court's application of the law and court procedures. Once the court reviews the record, it will determine if the legal issues mean the court convicted you in error and issue a written opinion. If the court grants your appeal and vacates your conviction, the state will have a chance to convict you again in a new trial.
Appeal to the Court of Criminal Appeals
If you lose your appeal, you still have the opportunity to appeal to Texas's highest court, the Court of Criminal Appeals. You will typically only take this option where there is clear evidence of a wrongful conviction, or you are appealing a felony conviction. After the Court of Criminal Appeals, you may be able to request a federal writ of habeas corpus. However, this writ is usually only applicable if the appeals court misapplied federal law or the state violated your constitutional rights.
Appeals to the Court of Appeals and the Court of Criminal Appeals are complicated and involve nuanced legal issues. However, an expert in DWI defense and criminal law should be well versed in complicated legal issues surrounding DWIs and have a great deal of experience handling complicated cases and appeals throughout Texas courts. Moreover, even if your appeal isn't ultimately successful, your attorney has another opportunity to negotiate with the prosecutor on your behalf during the appeals process.
Hire an Expert in Texas DWI Defense
Attorney Doug Murphy is one of only two attorneys in Texas Board Certified in DWI Defense and Criminal Law. His breadth of experience in DWI defense means that he's handled many complex DWI cases and appeals. U.S. News & World Report's list of the “Best Lawyers in America by Woodward White” listed Doug Murphy as one of their “best lawyers” every year from 2013-2021.
Doug also works hard as an advocate for criminal defense law in the Houston community, serving as the immediate past President of the Harris County Criminal Lawyers Association. Find out why the Houston Press named Doug Murphy “drinking driver's best friend.” Call the Doug Murphy Law Firm at 713-229-8333 today to set up a consultation.