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.

I have not been arrested, but I have been accused of a crime. What should I do?

Use caution. Unless you are certain that the accusation is only a minor one and will not result in criminal charges, it is best to consult with an attorney. This is especially true if a law enforcement official is asking you to give a statement or cooperate in an investigation. You should consult with an attorney before making any statements. What you say, no matter how well-intentioned, can be misconstrued and may be used against you in a subsequent prosecution. Even if you are promised leniency in exchange for your cooperation, you can never retract what you have already said. Therefore, it is best to consult with an attorney prior to making any statements in order to ensure that your rights are protected.

In addition law enforcement officials are allowed to LIE TO YOU. A police investigator can lie to you to attempt to gain your cooperation or confession. It is incumbent on you to consult with a professional criminal defense attorney before speaking with any government official!

Is it better to accept a plea bargin or go to trial?

Most cases in which criminal charges are filed can be resolved through skillful negotiation and without the necessity of trial. Negotiations can result in a wide variety of outcomes, ranging from a dismissal of charges to a plea bargain agreement involving incarceration. Of course, the choice of whether to accept a plea bargain must be made by the accused and should be made only after investigating the facts of the case and studying the available alternatives as well as the terms of the plea bargain offer. Though most cases are resolved without trial, sometimes trial presents a more attractive option. Therefore, it is important to keep the trial option open and to be represented by an attorney who is both willing and able to represent you at trial.

For example, in 99.9% of DWI trials, the punishment after a trial is the same as the plea bargain offer prior to trial. In other words, there is no real “risk” to proceeding to trial. While a trial will cost more than a plea bargain, the possibility of an acquittal may be worth the money to you.

What rights do I have and how do I assert them?

When your freedom is in jeopardy, remember that you have rights!!!!!!!!
If you are accused of a crime, your freedom is at stake. Whether or not you are ultimately convicted, you will be subjected to loss of freedom from the moment you are arrested.

You have the right…
You have the right to have a lawyer with you when you are being questioned. Do not waive that right by speaking to the police or anyone other than an attorney.
If you cannot afford an attorney, you have the right to have a lawyer appointed to represent you.
You have the right to remain silent. The police will tell you this. It is good advice, even though the police would prefer that you waive this fundamental right. The police may tell you that waiving this right will look better to the court. NEVER make this decision without first seeking the advice of an attorney.
You have the right to be informed that anything you say may be used against you in court.
You have the right to be informed of the specific charges against you.
You have the right to telephone a lawyer, a friend or a family member to notify them of your arrest.
You have the right to have reasonable bail set in your case pending trial.
You have the right to a public trial so that the state cannot convict you in secrecy.
You have the right to a trial by a jury of your peers. The prosecutor also has the right to request a jury trial even if you do not want one. The jury will listen to all the evidence presented at trial and then decide whether or not the state has met its burden of proving the charges brought against you beyond a reasonable doubt. If a jury finds you guilty, you have the right to choose whether your punishment is decided by a judge or by a jury.
You have a constitutional right to a speedy trial.
You have a constitutional right to confront witnesses. This means that your attorney questions them under oath, so that the jury can consider and determine their credibility.
You have the right to have witnesses testify on your behalf.
You have the right to have every element of the alleged criminal offense against you proven beyond a reasonable doubt. This is the burden of proof that the prosecutor — the attorney who represents the state of Texas — has to fulfill to get you convicted.


10.0Katheryn H. Haywood
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