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My husband is on state probation and was arrested for DWI . Can he use alcohol abuse as his defense and seek treatment not jail?

Austin, TX |

He was given 8 years jail and 4 years probation for family violence assault, which he has a history of, due to drinking. He was in alcohol class, then put in a relapse class. He later caught his first DWI case. He truly has a drinking problem and is no criminal activity for almost 2 years. Can his court appointed lawyer request he be ordered to undergo treatment as opposed to revoking probation and serving jail time? If he must do jail time, is it likely that the judge will approve a weekend or other jail release program? Thanks in advance!

Attorney Answers 5


  1. Best answer

    Your husband has two cases. A new (misdemeanor I assume) DWI and a probation violation on a felony assault. Typically this would be handled by first handling the DWI. If that case can be beaten, the pv may become a non-issue. However, the burden of proof on a probation violation is much lower than that for guilt or innocence at trial. And the felony court does not have to wait for the new case to be disposed of before having a revocation hearing on the pv. One attorney should be working both cases together to get him the most beneficial outcome overall. It sounds like he does need alcohol treatment and that his goal would be treatment over pen time. Of course his attorney can, and probably will, request in-patient treatment rather than pen time. Your husband may or may not want this result, however. I have had many clients reject the treatment offer because it can mean a year and a half in custody (for example, 3 months waiting for a bed, 12 months in safp, and 3 more months at a halfway house), only to be right back out on probation. It sounds like he's already on straight probation (since his exposure is limited to 8 years), so he doesn't have to worry about a conviction the way he would if he were on deferred. If his attorney works out a plea bargain agreement for 3 years TDC, he COULD be out in the same 18 months with none of the probation hassle to worry about. All that being said, we have several judges in Dallas now that will reject a TDC agreement and force the defendant into treatment. His attorney should be able to advise him of his options based on the facts as well as the DA's and judges involved. Of course, it certainly sounds like treatment is in his best interest, but the ultimate decision of which outcome to push the DA toward will be up to him.

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  2. Are you comfortable with the court appointed lawyer? I would think not, considering you are on the internet looking for free tips from lawyers who don't know you or your husband. I would re-think the court-appointed lawyer and hire a lawyer who will work for you and answer your questions.

    I would focus first on defending the DWI charge. I'm sure simply drinking is a violation of his probation terms, so beating the DWI doesn't mean it all just goes away. But being convicted of a new criminal charge will make it worse on him. Plus, don't let the felony probation situation distract you from the fact that even a misdemeanor DWI conviction has its own long-term or even permanent consequences.

    Your husband certainly needs to put his best foot forward in terms of appearing sincere in asking for help, and owning up to the alcohol problem. A sincere plea for help is his best chance for getting some leniency from the judge. It is no guarantee though. I recommend you retain an attorney who will carefully work your husband and you through this process.

    Good luck.


  3. In this situation the judge has almost complete discretion to do what she thinks is best. Outpatient treatment is extremely unlikely. She might agree not to revoke his probation if he pleads to the new charge and goes into an intensive inpatient program as part of a second probation. A lot depends on his history of being employed, supporting his dependents, and having been otherwise law-abiding.

    This answer is intended to be taken as general information and not as specific legal advice. You should always consult a qualified attorney and make him familiar with all the relevant facts in order to get proper legal advice. Every case is different, and they must be evaluated on a case-by-case basis. David N. Smith 812 W. 11th Street, Suite 201 Austin TX 78701 (512) 457-0100 defenseattorneysmith.com


  4. I agree with the other lawyers suggesting you obtain the services of a lawyer who you trust. Whether it's a court-appointed lawyer (many of whom are excellent attorneys) or a lawyer you hire with your private funds. Furthermore, it's almost impossible for us to answer your question, without speculating. Only a qualified lawyer thoroughly familiar with the facts and law applicable to your husband's case can help him. That would be my focus . . . get a lawyer you trust and let them advise you.


  5. His lawyer, whether court appointed or privately retained, can certainly argue for treatment as an alternative to revocation.
    Probation means you have already been convicted of a crime. A judge decided that you did not need to be imprisoned to protect society, but you are subject to being searched or locked up at any time if someone thinks that decision might have been wrong. You have one foot in the jail cell already!

    When talking to clients considering probation, I often compare it to being like moving back home with a step-parent who doesn’t like you. That step-parent gets to set your hours, tell you who your friends are, tell you where you can and cannot live, and talk to your boss at work. If he/she thinks you are breaking a rule, you can be put into jail until a decision is made. It is a significant change in your liberty.

    He needs to get clear on his probation rules and follow them to succeed at probation.

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