What Are My Rights When I Am In Police Custody On A DWI Charge? Can I Call An Attorney For Advice?

Odd as it may seem, many of your Constitutional Rights do not apply in a DWI case in Texas the same way it would for practically any other criminal offense. When you are detained (or pulled over in your car), you are NOT free to leave. But yet – you are not under arrest. If they ask you to step from your vehicle, you MUST comply. Do not complain, whine, or try to talk your way out of it. Just do what they ask. At this point – you must realize there is a very high probability, if not a certainty, you will be arrested for a charge of DWI. The question then becomes – how much evidence do you want to give them later to use against you? The wise decision is as little as possible. Though they will ask you to perform the roadside sobriety tests, should you refuse (which is the best course of action), you will indeed be placed under arrest for a charge of DWI.

However, do not let them say things to you to coerce you into doing what they ask, even if they are very convincing in saying “we just want to see if you are okay to drive home.” So, once you have refused, you will then be arrested for DWI. Unlike all other criminal offenses in Texas, at this point, if you invoke your right to silence and request legal counsel, they must cease asking you questions and comply with your request for an attorney. However, a DWI case is much different in Texas. Once you’re at the police station and already under arrest, the police officer can make the determination whether or not he’s going to request a breath or a blood test. At this point, you are still not entitled to the advice of an attorney. You’re at the jail and they’re asking for breath or blood, yet we limit those arrested for a charge of DWI to their constitutional right to counsel before having to make this decision. It may be a good idea nonetheless to ask to speak to an attorney, even though you know you will be refused the opportunity to do so. If you’re going to refuse a breath or blood test, it can justify why you are refusing and that will be easier to convey to a jury than flat out refusing with no reason. In any other type of case, you would be allowed an attorney if you asked for one. At this point, instead, you will then be read what is called the “DIC” paperwork – which is a very convoluted way of attempting to convey to you what will happen to your driver’s license should you refuse to give a chemical specimen, or what the consequences will be should you give your voluntary consent and the specimen shows an analysis of a .08 or higher. It will list it very hard to understand, and in very convoluted legalese only what will happen with your driver’s license and how the suspension period will be, and it lists in what is definitely not very clear terms what the different periods are between the two. It will also state how the police officer can request for a search warrant to be issued for the taking of a blood specimen should you refuse. Regardless – STILL REFUSE. Make them get a search warrant. There is a variety of reasons for this, including how often they do not go through what is required to get a warrant because it takes at least a few more hours of their time, your BAC level could also lower in the interim in the period where they apply for and request for the warrant (which could be a huge difference in many cases), or even if they do try and obtain a search warrant, there is always a chance they maybe cannot find a Judge available, or something is defective in the contents of the warrant itself. Therefore, CHOOSE TO REFUSE.

At this point, assuming you have refused to give a chemical specimen if they do not attempt to obtain a search warrant, they will then begin booking you into the jail. Still, say as little as possible and only give obvious details about yourself (your name, address, date of birth, etc.). If they, however, do end up getting a search warrant, do not resist or try to confront them physically or verbally during its execution. If you do so – it could result in an additional charge of resisting arrest, or some form of obstruction of justice, perhaps even the felony offense of Assault of a Peace Officer. Try to observe the details of the blood draw so you can remember the relevant facts, and once it is complete, you will then be booked into jail. At some point you will be arraigned, and only then can you theoretically be given your constitutional right to an attorney after an arrest has been made.

For whatever reason, our legislature and courts have always found numerous ways to limit an individual arrested for a charge of DWI of their rights listed and clearly enumerated in the Constitution. This is true in the just a few of the following ways, if you are arrested for a charge of DWI in Texas, the police officer who reads you the “DIC” paperwork will immediately confiscate your driver‘s license and will not return it, even though at this point you still have not spoken to an attorney for legal advice. This is a form of limiting basic rights under due process for freedom and liberty and is certainly seen as a consequence and is a form of punishment. In other words, they will usually seize your driver’s license, even though you still have not had the opportunity to speak with or take advice from an attorney, see a Judge, have a bond amount set so you can post bail to be released from confinement, and ultimately left also from the jail without a car or transportation to get home. If a person is accused, arrested and taken to jail for a charge of DWI, in all other scenarios one would feel at least some measure of relief that at that point it should be the case, so it would seem, that a person would feel confident that they be allowed to speak to an attorney before having to answer any questions, especially and including perhaps the most important one of all in the DWI context – whether you will make the decision to give a voluntary chemical specimen, or if you will exercise your right to refuse to allow the taking of one unless a proper and valid search warrant is obtained.

In every other criminal case, the arrested person always usually read their Miranda rights, which enumerate what they are allowed to do at this juncture of the proceeding. Regardless of, if Miranda rights are read or not, usually if someone under arrest requests to consult with an attorney and communicates they wish to not answer any questions without legal counsel present, it is an absolute mandate and is strictly required for the police officers to acquiesce to both of these invocations in every other scenario, aside from a DWI case, prior to any questioning, interrogations, or in any other way being asked, even if not verbally or expressly, for the accused to be allowed to give incriminating evidence that could be used against them later in court. This is also evident and true in all crimes except DWI. In a DWI case, the citizen accused is very much presumed guilty, even though the Constitution guarantees that everyone is presumed to be innocent until and only if proven otherwise.

Will I Have To Spend The Night In Jail For A DWI Arrest? When Will Get To See A Judge?

The timeline of a DWI differs based on a variety of factors, including when and where the arrest occurred, what time and how busy the police agency was making the arrest, whether or not you give consent or refuse to give a chemical specimen, and if you refuse it will take longer in the event they attempt to obtain a search warrant authorizing a blood draw. Some cities and jails also take longer to process people when booked in, and also some have vastly different times when you may see a Judge where you would be arraigned, formally notified of the charges against you, and a bail bond amount set.

Some counties, in certain misdemeanor cases, one can get out more quickly if they hire a lawyer to what is called an “Attorney Writ Bond.” This basically allows for the person arrested for a DWI to bypass the need to see a Judge to be arraigned. It is a mechanism where there would be a set bail bond amount set for the DWI charge, assuming it is not a felony and/or there are no other charges pending that would put a hold on the individual from being released, which would allow for a quicker and faster release from jail. Most of the time it will allow for a much quicker release, and will almost always result sometimes in an amount less than what would have been the case had the person formally appeared before a magistrate or a Judge.

Regardless, especially if you are arrested at night, regardless of where the DWI arrest occurred, there is fairly high probability and likelihood that you will likely spend at least one night in jail. In Texas Article 15.17(a) dictates generally how an arrested person shall be taken…without unnecessary delay, but no later than 48 hours after the person is arrested, to appear before some magistrate of the county where the accused was arrested.” Thus, if you are charged with a criminal offense in Texas that is not federal in nature, the law requires that the arrested individual appears in front of a magistrate (or a type of judge or judicial officer with the proper authority) within 48 hours of the arrest, where they will then be arraigned and formally notified of the charges alleged against them, and in most DWI cases absent something very unusual a bail bond amount will be set.

Can I Post Bail To Get Out Of Jail On A DWI Charge And Arrest?

Unless there is some other factor involved like you have another criminal charge pending, at some point, you will be allowed to bond out of jail. If you meet certain requirements or cannot afford to post the bail amount, in some instances you may be released from jail on a “PR” bond (or a personal recognizance bond). Regardless, as stated previously anywhere in Texas one is arrested for a DWI charge it is required they be allowed to formally appear before a magistrate or another judicial authority with the power to set bail no later than 48 hours after the arrest is made. The amount of the bail bond is based on a myriad of factors, including whether it is a first offense, if there is any other criminal history, if there are previous charges of DWI that would enhance it to a higher classification, if the person resides in or near the county where the arrest occurred, the nature and circumstances of the incident (such as if there was an accident and someone was injured or hurt), or if other charges other than a single DWI offense is alleged to have been committed.

Regardless, in most scenarios you should have a bail bond set within 48 hours of the arrest, and in most scenarios, especially in cases where it may be of a first-offense and the individual does not have a prior criminal record, it will something relatively reasonable because counties do not like to house individuals if it’s not absolutely necessary because it costs the county money for every inmate housed each day. Thus, an individual should see a Judge at some point and a bail amount will be determined and officially set, which should occur not later than two days. This is assuming they did not file for an “Attorney Writ Bond” where the requirement of having to be arraigned by a Judge was bypassed and avoided.

At this point, the arrested person accused of DWI can then post the bail bond in a couple of different ways ensuring their release from jail. Unless the person filed for their release from jail through an “Attorney Writ Bond” for a more expedient release bypassing the necessity of having to appear before a magistrate, in most cases a person is going to spend at least one night in jail, and perhaps even a few more if they cannot afford to post the bail bond amount. In most cases, you will see a Judge the next day, usually the next morning or shortly thereafter. In some jails, in fact, they have magistrates that work 24 hours a day/7days a week, so in those facilities, you can be sure you will likely see a Judge a bit quicker for a bail bond to be set. The arrested person can then either post bond through a professional surety bail bond company, in some cases by only utilizing an attorney for the entire jail process, or by posting the full amount in cash at the bail bond desk in the main jail in whatever county the arrest was made.

If you want to lean about the DWI Defense click here.