Nobody on here can give you good advice without knowing a lot more about your arrest. Based on the general information you gave, it sounds like your case is actually quite complicated. You need an experienced lawyer to investigate the breath test and its supporting documentation. You will almost certainly need to hire an expert witness on a .075 test. The 7 mph versus 10 mph distinction is irrelevant. Also, lawyers and police are almost certainly looking at different things on the field tests than you think. It's critical that you hire a lawyer who is experienced in DWI breath test trials.
*** The fact that you solicited advice over a public forum waives any attorney-client privilege thus far. In addition, communications over this forum do not create any attorney-client relationship. To have a privileged conversation and/or establish an attorney-client relationship, contact me using the following information: Peyton Z. Peebles III Capitaine, Shellist, Peebles & McAlister, LLP, 713-715-4500 (office) 713-715-4500 (cell) Peebles@TexasLegalTeam.net www.TexasLegalTeam.net
What you relate is very encouraging but far from a sure bet. There is a question about the initial detention that really needs close attention by an expert who understands speed measurement. The rest isn't great, because it will likely result in a conviction, but it deserves a very, very close analysis by an experienced DWI attorney before you decide how to proceed. A discussion worth considering is set forth in the following link.
Believe it or not, your question does not give enough information for a lawyer to evaluate your case. You really do need to get with a good DWI lawyer for advice on how to proceed. I mean you need to do that in person, not on avvo. Avvo is for general information only.
Answers on Avvo are for general information purposes only and should not be relied upon as legal advice. No attorney / client relationship is created by providing this answer. For specific advice about your situation, you should consult a competent attorney of your choosing.
I agree with the other lawyers and would add that the States ability to extrapolate the .075 back to the time of driving is a major issue in your case. Remember - the per-se intoxication level of .08 must be proven beyond a reasonable doubt at the time of driving - not the time of the test. How do you think you looked on the video ? This is perhaps the most important piece of evidence in the State's arsenal. This is by no means a "pushover case" , and given the negative consequences which flow from a DWI conviction, it is one which you should take seriously. Hope this helps.
James R. "Jim" Butler,Houston,Texas,DWI Lawyer. Free Consultation .Call (713)236-8744. Pardon my typing and or grammar,I am sending from my i-phone.I only represent people accused of DWI in Texas. My answer is based upon the limited amount of information supplied in your question. The answers I give on this site are intended for general educational purposes only. If you already have an attorney, I always suggest that you consult with that attorney first.
This is a great rendition of your case. There are many facts for an experience lawyer to work with. This is not a "slam dunk" case without knowing more facts, viewing the videotape, reading the report, etc... I would recommend that you seek professional, legal assistance ASAP.
You need to hire an experienced criminal defense attorney if you want to "fight" your case. If this is your 1st DWI then you will be charged with a Class B misdemeanor. A good attorney will read the police report, watch the video and speak with you. Please hire an attorney as soon as possible.
Notice: The information contained herein is intended as general legal information and does not create an attorney-client relationship and is not governed by confidentiality rules. This general legal information is not a substitute for seeking the direct advice of legal counsel.
I don't believe you NEED to hire an expert, only a tough DWI lawyer that is an expert himself on the Intoxilyzer 5000. If the case goes to trial an expert may be helpful but is not an absolute requirement. There are plenty of reasons other than alcohol that cause people to fail standard field sobriety tests. A clear record is always helpful, and it is very important to do your best to keep it clear. I would definitely suggest meeting with an experienced and aggressive local DWI attorney.
First thing, since you're in Houston. If the arrest happened in Harris County, Texas, then you have probably been into court already or are headed into court in the next few days. If you have a clear record, the prosecutor may have offered you a Pre-trial Diversion. The Harris County DA's office just restarted the program. This is a special type of probation, which if you are accepted for, and you successfully complete may allow you to clear the DWI from your record. This could be beneficial for a number of reasons, including but not limited to your car insurance payments. This pre-trial diversion will most likely not be offered again after trial. Now for the case itself, just because you blew under a .08 does not mean that they will just dismiss the case. The law is .08 or loss of normal use of your mental or physical faculties. You video, the officers observations of you, and your results on the standardized tests (one leg stand, HGN, walk and turn) are important to determine this part of the case. As for the test itself, there is certain information that they will need to utilize to attempt to determine whether you were over .08 at the time you were driving (extrapolation). Depending on what you said to the arresting officer regarding what you had to eat, drink, and your physical attributes, the prosecutor may or may not be able to establish that at the time you took the test your blood alcohol level was actually on the decline and that when you were driving, you were over a .08. This could possibly determine the need for a testifying expert. You may not need an expert at all. Depending on the evidence that the police have, you may not even want to argue that the intoxilyzer had a problem with it. Remember, it returned a .075 result for you, which is under the .08 limit.
In short you have options, take your case step by step with a lawyer, and try not to pay an inordinate amount upfront when you don't even know if you will go to trial.
I wish you the best with your case!
The information provided above, by Mr. Defreitas, is for informational purposes only and does not constitute legal advice or the establishment of an attorney-client relationship. Mr. Defreitas does not offer, nor imply that he intends to offer, legal advice or counseling to any individual or organization by providing this information. The information provided above, by Mr. Defreitas, is provided on an "as-is" basis without warranties of any kind either express or implied. Mr. Defreitas makes no warranties or representations of any kind concerning any information contained in this website. You should not rely or act upon any information contained herein for any purpose without seeking legal advice from a duly licensed attorney competent to practice law in your jurisdiction.
Sign up to receive a 3-part series of useful information and legal advice about DUIs.