Your defense against a DWI arrest begins the moment a police officer pulls you over. Many officers decide whether you’re guilty within the first 15 seconds of interaction, making it crucial to handle this situation carefully.

Knowing what to expect will make it easier to avoid a costly mistake.

What Will Happen After a DWI Arrest?

First, you will be charged and arrested. The cops will handcuff you (they may or may not even tell you exactly why you’re being arrested) and take you to a police station or detention center for booking. They may take you to a hospital first to have a blood test or if you need medical attention.

• Driver’s license suspension: You’ll receive a temporary permit valid for up to 40 days or until the court decides on your license suspension
• Blood alcohol concentration (BAC) testing: Police will ask to test your BAC either through a breath sample or a blood sample; refusal may lead to a search warrant for your blood to be taken by force if necessary. 
• Search: You will be searched, your personal belongings will be itemized and recorded and any prohibited items will be confiscated
• Placement in a holding cell: You will likely remain here until you post bail

During the booking process, you may be asked to choose between a breath or blood test. Both have advantages and disadvantages, which we will explore later.

During this time, it’s crucial to request to call your attorney and refrain from answering any questions until they are present.

READ MORE: Implied consent and BAC testing in Texas

Should You Talk to the Police?

Police technically dont have to read you your Miranda Rights until after you have been arrested. Cops can ask you anything without reading you your rights as part of their initial investigation before they arrest you. During this initial period, before you have been arrested, it is absolutely critical for you to exercise your right to remain silent once you have properly identified yourself.

You aren’t obligated to answer their questions, and there’s nothing you can say that will help you. However, you can easily say something that could hurt you. 

Remember that you’re always being recorded, so even an innocuous comment can be twisted by prosecutors.

Police officers are experts in psychological manipulation. They will say things like:

• We’re just trying to clarify what happened
• If you haven’t done anything wrong, what are you so afraid of?
• You might as well tell the truth: It will help you in court if you’re honest now

These are designed to get you to start talking. The goal is to get you to offer information that could be used to build a case against you. 

Give them your name, address, and date of birth, then tell them you won’t answer further questions without an attorney present. You are not legally obligated to provide any additional information.

Blood vs. Breath Test

You might be asked to decide between a blood or breath test. Both have their pros and cons.

Blood tests are more accurate but can also be contested based on the procedures followed. The delay between your arrest and the blood test may also buy time for your blood alcohol concentration to fall, increasing your odds of passing.

At our firm, opinions differ about whether blood or breath tests are the better option. Breath tests can be easier to challenge. Results from two back-to-back tests can differ by as much as 25%, and you can get a false positive result if you have a fever, are diabetic, use an inhaler, have recently gargled with mouthwash, or even burp. They also won’t detect any other substances you may have consumed (which is something you may need to consider).

While I believe that the state has a hard time proving DWI on anything other than blood, my colleague, Charles Pelowski, feels differently.

“Breath tests won’t detect anything else that might be in your system,” he says.

Bail

In Texas, bail is typically set by a magistrate judge within 48 hours of your arrest. This process is called magistration. 

Unless you are released on a personal bond (also sometimes called personal recognizance), you will need to post bail or arrange for a bail bondsman to post bail for you in order to be released from custody. 

Personal bonds are intended for people who can’t afford the fees for a surety bond and are not a danger to the community. The odds of being released on a personal bond vary wildly by jurisdiction, your financial situation, and the severity of the charges you’re facing. However, some counties – Harris County in particular — use them more frequently than others for low-level DWI offenses. These bonds don’t require any cash, but instead may include such restrictions as routine drug testing or wearing a GPS ankle monitor.

Bail amounts can also vary drastically between Texas counties and jurisdictions. It could be as low as $500 to as much as $10,000. If you can’t afford to hand over the full amount, you – or a friend, relative, or your attorney – need to make arrangements for a bail bondsman to post bail for you. You will pay the bail bonds company a fee of between 10% to 20% of the total bail amount. Note that any bail bonds fee you agree to pay will not be refunded. 

READ MORE: Types of bail bonds

Jail release

After bail has been posted, it should take between two and eight hours to be released from jail. The exact time depends on the workload that day at the court and jail. There’s really nothing more you can do but wait.

Arraignment

After you’ve been released on bail, the next step will be your arraignment. This is where you’re formally charged and enter a plea.

Arraignment typically takes place within 48 to 72 hours after an arrest, but in some jurisdictions it may be scheduled as far out as 2 to 4 weeks. The Texas Code of Criminal Procedure requires that defendants be arraigned without any unnecessary delays.

It is important to consult your attorney before the arraignment. The judge will read the charges against you and you will then have to plead guilty, not guilty or no contest. Your attorney will be able to advise you on how to plead, but generally speaking, you will always want to plead not guilty at this very early stage. You can always change your plea later, but by the time of arraignment your attorney will not have had any chance to thoroughly review the evidence in your case and make any informed decisions about how to or whether to fight your case yet. We advise all of our clients to plead not guilty at arraignment to give us time to determine the most effective defense strategy first.

Request an ALR Hearing

You must request an ALR (Administrative License Revocation) hearing within 15 days of your arrest to prevent automatic suspension of your driver’s license.

If you fail to request an ALR hearing before the deadline, your license will be suspended about 40 days after your arrest. 

You don’t have to attend the ALR hearing. Your attorney will appear on your behalf. We recommend that every client request an ALR hearing (and we can help you with that process). 

During these hearings, our ALR team can often detect violations of your rights and inaccuracies in police reports and testimony. We can use this information to craft your defense.

ALRs can be difficult to win, but our ALR team wins more than 40% of their cases, while the average win rate across the state is about 10%.

READ MORE: Is your license suspended immediately after a DWI?

How to Beat Your DWI Charges

It’s important to challenge a DWI or DUI arrest because a conviction will remain on your criminal record for the rest of your life. That means it will appear in background checks and could affect your future employment prospects, professional licensing options, and even whether you can rent an apartment. 

DWI cases can be resolved in a number of ways before trial even becomes an option. A very small percentage of these cases actually make it to trial.

Some of our most common DWI resolutions include:

• Dismissal
• Pre-trial diversion programs
• Deferred adjudication (or deferred prosecution)
• DWI court programs
• Plea bargaining

READ MORE: Types of DWI dismissals

How Long Will It Take for My Case to Be Resolved?

DWI cases can take years to resolve due to prosecutor backlogs and processing times. In Texas, the statute of limitations (SOL) is two years for misdemeanors and three years for felonies, but the SOL is paused once your case has been officially filed against you.

This means that while your case is pending in court, the SOL clock is not running, so depending on the complexity of your case and the backlog of the court you are in, a case may go on indefinitely. The length of the process also varies based on case specifics and court schedules.

This is why it is so important to hire a lawyer who understands the process and will work diligently and efficiently to resolve your case, without allowing it to drag on in court unnecessarily.

What Happens If My Case Goes to Trial?

Although it’s rare, some DWI cases will go to trial. If that happens, there are two trial types:

• Bench trial: Decided by a judge
• Jury trial: Decided by a panel of peers

During the trial, the prosecution must prove each element of the DWI charge beyond a reasonable doubt. Your attorney will play an important role through every step of the process.

• Jury selection: Your lawyer plays an important role in jury selection, questioning potential jurors to identify potential biases. Felony cases will have 12 jurors, while misdemeanors will have six.
• Opening statements: The State and your attorney will both make opening statements. We use this to add a human element to your case. 
• Testimony: The prosecution presents evidence against you, and must prove each element beyond a reasonable doubt. 
• Closing arguments: After the prosecution wraps up, we will use this to make one final impression on the jurors before they deliberate. 

Jury Deliberation and Verdict

The jury’s verdict must be unanimous. For a DWI or DUI case in Texas, there are really only three possible trial outcomes: 

• Not guilty: With a not guilty verdict, you will be free of future prosecution related to the DWI charge and will be able to have it expunged from your record
• Guilty: If the jury’s verdict is guilty, you typically can choose whether the judge or the jurors make the sentencing decision. We typically advise our clients to choose the judge, because judges’ DWI sentencings are typically easier to predict.
• Mistrial: This means the jurors were unable to reach a unanimous decision. The state may opt to try you again. However, sometimes a mistrial indicates they have a weak case and the charges against you will be dismissed.

Penalties and Consequences of a DWI Conviction

Here are the maximum penalties you’ll face for a first, second, or third offense:

	First offense	Second offense	Third offense
Fines*	Up to $2,000	Up to $4,000	Up to $10,000
Jail time	Up to 180 days upon conviction (with three mandatory days)	One month to a year upon conviction	Two to 10 years
Driver’s license suspension	Up to one year	Up to two years	Up to two years

Additional fines and penalties may apply if a child passenger was present or if the incident resulted in injury or death.

We can also try to negotiate alternatives such as probation, community service requirements, or attendance at alcohol-awareness classes.

Tips for Hearings and Court Proceedings

Your appearance in court is important. For that reason, we always advise clients to:

• Dress professionally
• Arrive early (no exceptions)
• Be respectful
• Remain calm

You want to make the best possible impression on judges and jurors. 

Sources

The Law Dictionary (Black’s Law Dictionary)

What are the Requirements for a Hardship License in Texas?

https://thelawdictionary.org/article/what-are-the-requirements-for-a-hardship-license-in-texas/

Texas Penal Code

Title 10. Offenses Against Public Health, Safety, and Morals

CHAPTER 49. INTOXICATION AND ALCOHOLIC BEVERAGE OFFENSES

https://statutes.capitol.texas.gov/Docs/PE/htm/PE.49.htm#:~:text=Sec.-,49.04.,of%20confinement%20of%2072%20hours.

Texas District and County Attorneys Association (TDCAA)

September-October 2020

Tim Labadie: Assistant County Attorney in Travis County

Deferred Prosecution Agreements and the Public Information Act

https://www.tdcaa.com/journal/deferred-prosecution-agreements-and-the-public-information-act/