Can my criminal record be ‘expunged’ after being charged and acquitted with DWI as well as having my drivers license suspension lifted.

If you are found NOT GUILTY, not only do you have the right to have your record expunged or erased but your driver’s license suspension will also be lifted.

In most cases, I charge $3500.00 to represent you in all aspects of a misdemeanor DWI short of a trial. A refusal trial is typically $7500.00 and a breath or blood trial is typically $10,000. Expert witness fees are additional and are recommended in all breath or blood trials and in some trials that hinge on Field Sobriety Test results.

In many cases, it is less expensive to proceed to trial than to pay all the probation fees, required DWI classes and license maintenance fees (surcharges). And in almost all DWI trials, the punishment after trial is probation or credit for the time you have already served in jail.

Typical punishment for a “plea bargain for probation” in a DWI trial is:

Two years probation
Reporting to probation once per month
$60 per month probation fees
up to a $2,000 fine
An 8 hour, DWI Education program ($50)
A one hour drug and alcohol evaluation ($25)
A three hour MADD Victim Impact Panel ($25)
24 to 80 hours of community service restitution
A $25 payment to Crime Stoppers
Random urine tests for drug screening
And the possibility of being revoked and sent to jail for 120 to 180 days.

Do officers have standards for judging these tests?

Yes. In fact, the standards are nationally recognized and adopted. Likewise, its proper for juries to judge how professional or unprofessional an officer is by how well the officer adhered to the standards in your situation.

Did the officer give proper instructions? Did the officer demonstrate properly the tests? Did the officer ascertain that you understood the instructions? Did the officer correctly “score” the tests? Does the officer have proper training and qualifications?

What are the field sobriety tests?

There are three standardized field tests that most officers use. These include the HGN (eye) test, the walk and turn test, and the one leg stand. You may be asked to perform these tests in the field and again in the police station. You do NOT have to take any field sobriety test and may politely refuse and request the counsel of your attorney.

There are three standardized field sobriety tests (SFSTs):

1. HGN (Horizontal Gaze Nystagmus):
The police have you follow a pen or a light with your eyes, to see if your eyes follow smoothly (a sign of sobriety) or if they jerk repeatedly (supposedly a sign of intoxication). I advise that, before doing this test, you ask “What exactly are you looking for in my eyes?” They should tell you “Jerking movements, or the lack thereof.” Then you should state: “Can’t head injuries cause those same jerking movements, and some medications?” Yes, they can. “Well, then, I’ve had head injuries before, so I’m not going to do that test.”
The Three (Supposed) Indicators of Intoxication on HGN:

Eyeballs jerking as the pen is moved horizontally
Eyeballs jerking prior to 45 degrees when the pen is moved very slowly
Eyeballs jerking when the pen is held out to the extreme left and right

There is plenty of scientific literature establishing that eyeballs jerk like this when alcohol is present. However, in my opinion HGN shouldn’t be used as a sobriety test because the eyes in some people jerk at alcohol concentration levels half of the legal limit, and sometimes even lower than that. There are 6 possible “clues” that the police look for in HGN testing. Their training says that 4 or more clues indicate intoxication. But a study done by the National Highway Traffic Safety Administration (NHTSA) shows that some people show 4 clues at alcohol levels less than 25% of the legal limit! (The legal BAC limit is 0.08, and the NHTSA HGN robustness study shows one person having 4 HGN clues at 0.016 BAC!)

2. The WAT (Walk And Turn):
You may have heard this test being called “walking a straight line.” In the DWI industry, it’s referred to as the walk and turn, or the “WAT”. The police ask you to stand on a line with the heel of your right shoe touching the toe of your left shoe. You are asked to place your arms straight down to your sides (as if they were against the seam of your pants) and maintain that terribly awkward position for about 90 seconds while they give you additional instructions. You are then instructed to take 9 steps out and 9 steps back, counting each step out loud, looking at your feet, keeping your arms to your sides, touching heel to toe on each step, and turning in a very specific unnatural way. There are the eight clues, or indicators of intoxication, that the police look for during the walk and turn:

Starting before being told to do so
Failing to maintain the starting position until told to begin
Using your arms for balance
Stepping off of the line
Stopping during the test
An improper turn
Failing to touch heel to toe.
Taking an incorrect number of steps

3. The OLS (One Legged Stand):
The police ask you to stand on either leg with your other leg straight out in front of you, six inches off of the ground, with your toe pointed and parallel to the ground. Your arms are to be held straight down to your sides (as if against the seam of your pants), as you count to 30 by stating “one- thousand one, one-thousand two, one-thousand three, etc.”

The Four Supposed Indicators of Intoxication:
Raising your Arms for Balance
Putting your Foot Down

OTHER COMMON (BUT NOT STANDARDIZED) SOBRIETY TESTS: Some police will ask the DWI suspect to perform additional sobriety tests. Although the following tests are not “standardized,” they are still commonly used:

Reciting the alphabet. You’d be surprised at how many people have difficulty reciting the alphabet. To make it more difficult, the police often ask the suspect to start and end at a designated place somewhere in the middle, often asking you to start at the letter C or D, and ending with the letter S or T. Unless you have practiced reciting the alphabet lately, I’d advise not doing it as a sobriety tests. Better yet, practice it until you can do it right.

Counting backwards, from one nondescript number to another, typically from 38 to 22. The hardest part of this test seems to be remembering where to stop.

The finger count: The police have the suspect touch his thumb to each of his fingers, counting each of his fingers as he touches it, one thru four, and then backwards from four to one.

The Rhomberg stationary balance test: The police have the suspect close his eyes, tilt his head back, put his arms straight down to his sides, and estimate when 30 seconds is up. I wouldn’t recommend you doing this test under any circumstances. It almost always makes people look bad.

I was charged with DWI even though I was taking medication under doctor’s order. Can they do this?

Yes, but there are a number of proper ways to handle these types of cases. Again, these demand a lawyer’s knowledge, skill and experience.

Be aware that the offense of DWI or Driving Under the Influence can be prosecuted even if you have consumed ZERO alcohol. The law states that the accused was driving while intoxicated by reason “of the introduction of alcohol, drugs, dangerous drugs or a combination thereof.” You can be arrested, tried and convicted even if the medicine you were taking was prescribed by a licensed doctor if the medicine affects your “normal mental or physical faculties.”

Is it possible to defend a blood test case?

Yes. Although blood test cases are particularly demanding of a lawyers skill, these can be defended in a variety of ways. Such cases are unique and demand a complete investigation by a skilled lawyer.

Was the blood taken in a sterile environment? Was the machine testing the blood calibrated and reliable? Was the blood taken by an approved person with credentials and experience? How was the blood transported and stored?

These are all questions which could affect the outcome of your blood case.

What should I do if I am stopped and arrested for a DWI?

There is no uniform answer as to what is best to do, because every situation is different. The best guide is to use good common sense. Obviously, it is helpful to remain polite and courteous with the arresting officer, but this does not necessarily mean you should submit to all of his or her requests. You will be able to deal with such an encounter more easily if you know what to expect, what choices you will have, and understand the potential consequences of your decisions.

If you are detained under suspicion of DWI, you will be questioned on the roadside about your recent alcohol consumption. The officer may request that you perform sobriety tests and submit to a breath test. You have the right to refuse these tests, though that refusal may later be used as evidence of your guilt. If the law enforcement officer has reason to believe that you are guilty of an offense, he or she can arrest you. Typically, you will be handcuffed and transported to a jail.

At the jail, you will probably be asked to submit to a breath test. If you refuse to submit to a breath test, you should expect local police to videotape your performance of a series of sobriety tests and your responses to questions about your driving, alcohol consumption, and physical condition. Normally, a videotape will not be made if you choose to submit to a breath test.

Although you must answer questions pertaining to identification, you may refuse to answer any other questions. You may refuse to perform field sobriety tests, and, unless a life-threatening injury has resulted from a collision, you may refuse to submit to breath or blood testing. (The officer may obtain a warrant to forcibly obtain a sample of your blood but this can take up to 2 hours.)

The reliability of the instruments used to measure breath specimens to determine body alcohol concentration is doubtful. While state-paid experts routinely testify that the Intoxilizer 5000 is accurate and reliable, several independent experts have expressed contrary opinions. Consequently, the results may be inaccurately high or inaccurately low. If you have any doubts about your ability to pass the test, do not submit to it before you consult with an attorney.

If you submit to a breath test and ”pass” it, you stand a much better chance of winning your case. Sometimes, in fact, charges are not filed at all. If you submit to a breath test and fail it, you can later challenge the accuracy of the device at trial. However, you should realize that a trial in which a breath test is challenged, tends to be much more expensive than one which does not involve a breath test because it is often necessary to hire private scientific experts to assist at trial.

You do not have the right to refuse to be videotaped, but you may refuse to perform the sobriety tests or answer any questions asked of you other than those about your name, age and identification. If you believe that you can preserve evidence favorable to your case by complying with the officer?s requests, you should do so. If you have any doubts, you should request to speak with an attorney before answering any questions. If proper procedure is followed, the arresting officer will terminate the interview whenever you request to speak with an attorney. If the officer fails to do so, continue to request permission to speak with an attorney first.

Is it possible to defend a charge of drunk driving, boating or flying?

Absolutely! Remember, the burden of proof is on the State to prove you guilty. Many juries have a natural empathy for defendants accused of DWI. The jurors may think, “There but for the grace of God go I.” Even with a breath or blood test above the legal limit, many DWI trials result in acquittals.

Probation for DWI results in mandatory classes, steep fines, monthly meetings with a probation officer and surcharges against your driver’s license. The penalty DPS imposes is $1,000.00/year for three years to maintain your driver’s license.

If you proceed to trial and we win, none of these punishments will be imposed on you!


10.0Katheryn H. Haywood
Katheryn H. HaywoodReviewsout of reviews