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DWIs: A GUIDE FOR THE GENERAL PRACTITIONER

DWIs: A GUIDE FOR THE GENERAL PRACTITIONER . RANDY T. LEAVITT AUSTIN, TEXAS. Three areas to cover. 1. Initial call and client interview 2. ALR Process-briefly 3. Cross examination of the arresting officer. Part I: Initial call and client interview.

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DWIs: A GUIDE FOR THE GENERAL PRACTITIONER

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  1. DWIs: A GUIDE FOR THE GENERAL PRACTITIONER RANDYT. LEAVITT AUSTIN, TEXAS

  2. Three areas to cover 1. Initial call and client interview 2. ALR Process-briefly 3. Cross examination of the arresting officer

  3. Part I: Initial call and client interview • If Defendant is in custody and in the presence of the officer • Remind yourself and your potential client that everything may be recorded

  4. DO’S AND DON’Ts • Do be polite and courteous • Do give officer your name and driver license • Do stay awake • Do nothing else • Do shut up! • Don’t take any road side test • Don’t take a breath or blood test • Don’t be argumentative with the officer • Don’t fall asleep

  5. Client Interviews • Explain the process • Dual tracks in DWI representation-driver’s license issues and the DWI charges are on separate tracks a) ALR process b) County court process

  6. Driver’s license and ALR • Temporary permit good for 40 days • Occupational license usually available • Effect of a request for a hearing on DL suspension • Periods of suspension

  7. Suspensions • Refusal- 180 days first time, two years if prior contact • Failure- 90 days first time, one year if prior contact • See chart in Appendix E and F for occupational license and waiting periods

  8. DWI Charge • Court system-who is the judge, the prosecutor, court settings, potential punishment, how long of process, etc. • Explain the legal definition of intoxication • If a non breath test case- loss of the normal use of mental or physical faculties • Explain that is the central issue a jury will have to decide

  9. Facts • Explain attorney client privilege • Be thorough-find out everything they did that day • What they had to eat, drink where who with what time • Find out medical back ground, knee injuries, back problems, vertigo anything that might affect their balance, weight, age

  10. DWI Related Cost • Cost already incurred-bail, personal bond fee, ignition interlock device • Occupational license $250 filing fees • Reinstatement fee for driver’s license $125. • Counseling evaluation $55 • Counseling course $150 • Supervision fees $60 per month • Insurance, surcharges, fines and court cost

  11. Part II: ALR Process • Request hearing within 15 days of arrest • Discovery request-see 1 Tex. Admin. Code 159.151(1) • Continuances –first one automatic if requested 5 business days prior to hearing • Subpoenas- your responsibility to get officer there • Hearing-opportunity for free deposition-do not waive it

  12. Part III: Cross examination of the arresting officer • Remember DWI is an opinion evidence case -nearly every DWI case filed today has a video tape of the arrest -convince the jury that their opinion is as good as the officers

  13. Focus the Jury a) the defendant’s emotional and/or physical condition b) test are administered under difficult conditions c) the officer is biased in his analysis and/or exaggerated the results d) the test are not as easily performed as the officer would make it seem

  14. Predisposition • Once the officer has observed bad driving coupled with the smell of alcohol, he is predisposed to believing one is intoxicated • By the time the FSTs are given the officer has made up his mind, he is only now in the mode of evidence gathering

  15. Officers bias or prejudice • DWI Task Force • Overtime • Made the arrest and now committed • Distinguish between probable cause and beyond a reasonable doubt

  16. Limit the Officer • Should be done at pretrial or ALR hearing first • Make him commit at what point he believe the defendant was intoxicated • Generally they will state no one test persuaded them but it was the cumulative effect of all the test • Therefore take each test and point out that test standing alone is not sufficient to believe one is intoxicated

  17. Observations that are consistent with sobriety • Make a list of positives/negatives • No bad driving • Easily produced his DL • Located insurance no problem • Got out of car when asked to do so • Didn’t use car for support • No noticeable sway while doing the HGN • Cooperative • No slurred speech, on and on

  18. Conclusion • Officer opinion as to loss of normal use is no better than the juries • Can’t lose question-if he says it is then he comes across as better than jury • If he admits it then jury can now disregard his opinion and form their own from the video • Lastly, officer’s job is to determine probable cause-jury’s duty is to be convinced beyond a reasonable doubt

  19. Thank You and Good Luck!

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