OUR BLOG HAS MOVED!!!!

We've recently moved our blog.

We'll keep this one up, and the articles on it, but the new blog can be found at:

Austin Criminal Law Blog

If you prefer the copy/paste method, the new link is:

http://www.lawofficeofrobertkeates.com/blog

Thank you.

Basics of a Texas DWI in Austin, Travis County

A typical DWI arrest consists of being pulled over while driving, usually for swerving or bad driving observed by an officer. Frequently, other suspicious drivers may call 911 or a DWI hot line to report other drivers on the road.

Once an officer has pulled over an individual for DWI, the officer with conduct several observations to further establish reasonable suspicion or probable cause, such as looking for blood shot eyes, slurred speech, unsteady gait or fumbling with documents, and the smell of alcohol. While pure alcohol has no smell, officers will frequently testify that the flavoring in alcohol (the other additives in the drink) has a distinct smell when consumed and on the breath.

After making preliminary observations, the officer will usually conduct field sobriety tests, or FSTs. The FSTs consist of several physical tests that are commonly thought to gauge a person's intoxication level. Some of the field sobriety tests used are the walk and turn test, finger tip to nose test, stand on one leg test, silent count to thirty test, and the Horizontal Gaze Nystagmus test.

Many times, either before or after the FSTs, an officer will ask the driver of a suspected DWI to breathe into a machine commonly called a breathalyzer or breath test device, used to calculate a person's intoxication by measuring the alcohol content at that moment in the breath.

If the result of a breath or blood test reads at or above a .08%, the driver is generally arrested for DWI, although the results need not be at a .08 or above to arrest. DWI Arrests can be made at breath or even blood test levels below a .08%, if the officer believes the person is too intoxicated to drive. Travis County has been known to prosecute DWI cases based on lower than .08% blood alcohol levels.

At a DWI arrest, an officer will hand the driver a notice of driver's license suspension, which is sent to the Texas DPS. A person arrested on a DWI charge has the right to appeal the driver's license suspension at the DPS with a formal administrative hearing. Typically the arresting officer will testify at the DPS hearing, setting forth the suspected probable cause for arrest and suspension of the driver's license. The key is to request the hearing within ten days of DWI arrest -- within 10 days! -- in order to conduct the DPS hearing, otherwise, the right to an administrative DWI DPS hearing is waived and lost.

DWI in Texas: Can you get a DWI from Prescription Drugs in Texas (No Alcohol DWIs - Drugged Driving)

In Texas, DWI laws are changing each year, often to make penalties and punishments more sever for DWI offenders, as well as creating more ways for law enforcement to make arrests.  I often receive calls about DWI arrests where no alcohol was involved -- but instead, the person was arrested for DWI based on a Prescription Medication.

Lunesta is one of the most common I see, although many other narcotics -- all legal with prescription -- have led to arrests and in many cases, convictions for DWI.

Texas Law specifically states, "

"Intoxicated" means: not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body."

Which means, DWI's are not limited to alcohol any longer, and include drugs -- even a legal, prescribed medication.

However, a non-alcohol DWI is far harder to prove than alcohol DWIs.  First, the prosecutors won't have much to go on if they don't test your blood, and I've seen many cases where blood is not tested.  Without blood results (which would show traces and potentially, depending on the test, the metabolites of the drug in your system) then the prosecutors must attempt to prove the case on circumstantial evidence.  They'll show that you were on a medication, or admitted to being on a prescription at the time of driving, and will point to driving errors or errors on the field sobriety tests to show impairment.

There is no legal limit, in terms of a numerical value, for medication DWI.  In other words, while it's prohibited to drive with more than .08% of alcohol in your system, leaving the prosecution to rely heavily on "impairment" in general.  Often they argue that any impairment is enough to prove DWI, but it's important to note that impairment must rise to the degree that it interferes with the ability to drive.  And that, is more difficult to prove to a jury than merely being over .08%, as in an Alcohol DWI.

What is a Texas DPS Departmental Driver's License Suspension? How can I drive legally?

In Texas, there are several ways your Texas Driver's License can be suspended.  Usually your driver's license is suspended from tickets, surcharges, or criminal offenses, but in certain instances, DPS will suspend your license even if you get a warning.

A DPS Departmental License Suspension is an administrative suspension, meaning the suspension is not a criminal punishment.  This "changing of words" is nothing new, and certainly not unique to Texas or DPS; Courts have held throughout the country that it's legal to punish you twice for the same offense, as long as they 'call' one of the punishments "administrative."

For instance, lets assume you are driving on a suspended license.  You get pulled over, given a ticket, and then pay that ticket.  The Judge tells you that your license is now suspended (because of the ticket) for 6 months.  You understand and figure you'll deal with it.

But then, you get a letter in the mail saying DPS, on their own, is ALSO suspending your Texas Driver's License for another year -- ON TOP OF the Court suspension, and based on the same ticket.  You call DPS and say the Judge only suspended your Texas Driver's License for 6 months, but DPS will reply "it's a Departmental Suspension."

DPS will suspend a person's license if they believe they can prove you were driving at a time when your license was suspended.  Since all tickets are routed through DPS, even if you're given a WARNING for your suspended driver's license, and just given a seat belt ticket by the officer during a traffic stop, DPS WILL SUSPEND YOUR LICENSE.

So how do you fight the Departmental Suspension?  You have the right to a hearing, which can be requested WITHIN 10 OR 15 DAYS upon receiving the suspension notice in the mail.  If you miss that date, DPS will say you have waived the hearing and the suspension will stand.  Unfortunately, DPS will not forward mail, so even if you moved and forwarded mail properly through the post office, the suspension letter will not be forwarded.

So if you're having to deal with a Departmental Driver's License suspension in Texas, and have missed the 15 day appeal or ALR hearing, call us right away to talk about other options for your Texas Driver's License.

How to Reduce your Texas DPS Surcharges; Surcharge Waivers and Indigency

Years ago DPS offered an amnesty for people with past due Surcharges.  Currently, there is only one application process by which an individual can reduce any DPS Surcharges: the DPS Indigency Program.

The DPS Indigency Program offers reduced surcharges to people living at (or below) the federal poverty level.  This means that if your income is under a certain level, you can have your Texas Surcharges greatly reduced.

So how much can you save? DPS will reduce your Surcharges to 10% of what you owe.  But, it gets better than that; DPS caps the total you'll owe to $250.  That means, if your application is accepted by DPS to reduce your Surcharges, you will owe $250 TOTAL, OR LESS.  Of course, reinstatement fees and other service fees apply.

To apply, you must submit the DPS Surcharge application for Indigency.  The application must be filled out completely and notarized (stamped by an official of the state -- banks will do this for you).  The application is available online from DPS's website HERE pr you can call DPS directly and have them mail it out to you.  The number for DPS Indigency Program is (866) 223-3583.

What if my Texas Driver's License is suspended still?  If your license is still suspended for reasons OTHER than surcharges, you may be eligible for an Occupational License.  Call us for a Free Consultation at 512-216-3211.  

Also, you can read more about Occupational Licenses at:  http://lawofficerobertkeates.blogspot.com/2012/11/suspended-driver-license-help-in-texas_21.html

New Law Office Website!

Our latest site, DWIlawyers-Austin.com is now up and running.

Suspended Driver's License Help in Texas

This is Texas; no subways, no light rail commuter tracks, and very little public transit when you get outside the major metropolitan areas.  So when DPS sends you a letter saying "Your Driver's License is now Suspended," what do you do? Well, you drive!

Obviously it's illegal to drive on a suspended or revoked license, but if you need to get from San Marcos to Austin everyday for work, you NEED to drive.  You don't have a choice except quit your job and work at the nearest store -- within walking distance.
But is that really an option?

But there are alternatives to driving illegally or walking.  You can get an Occupational License.  An Occupational License is a temporary driver's license that allows you to drive over a suspension.  That's right -- it allows you to legally drive when your license is suspended.

Sometimes called a Restricted License -- and with good reason -- the Occupational License lets you drive under a variety of conditions: to/from work, during your job, daily house hold chores, to the bank, supermarket, doctors, etc...  It also allows you to pick up and drop off your kids at school or daycare.  if you're a student, the Occupational License allows you to drive to and from your classes.

Almost everyone who has a suspended license is eligible; just a few categories are not.  Serious offenses such as Vehicular Manslaughter, multiple DWIs, and unpaid child support will make you ineligible.

You'll need a few things to get the Occupational License:

• a Lawyer to write the Petition/Order and setup the Hearing
• SR22 Insurance, even if you've never had a DWI
• DPS Reinstatement Fees - a money order with the total amout due, ready to mail off
• Money Order for $10 per year for the Occupational License
• Letter from Employer and 3 year driving record from DPS, along with a few other minor items.

You can call the Law Office of Robert Keates at 512-216-3211 for details, a free consultation, and a quote.  Turnaround for the license is about a week, so you can start driving legally in no time!

Open Container on a Weekend Drive in Austin? Think Again!

It's been a long week at work.  You need to unwind, to really feel that the work week is over and weekend has arrived.  You don't have time to stop at your favorite bar or tavern, so what's the next best thing?  grab a cold beer can from the gas station and have a few sips on your commute home.

This used to be a very common scenario in Austin, Travis County, and Texas in general, until a few years ago.  Prosecutors and private interest groups adamantly pushed for Open Container laws, despite the fact that there is nothing illegal about drinking and driving under the legal limit of .08% BAC.

But on your drive home each Friday (and some weekdays) you can still see some people, regardless of the laws, getting an early head start for the weekend.  Some don't even try to hide it.  Others at least pour the beer into a soda cup.  Either way, a person can find themselves in an expensive mess, should an officer pull them over.


Section 49.031 of the Vehicle Code provides that "Possession of Alcoholic Beverage in a Motor Vehicle," or simply an Open Container in a car, is illegal.  It's a Class C Misdemeanor, unless there's an open container during a DWI arrest (which then carries mandatory jail sentences).

Most people in Austin believe an Open Container just means a beer can or bottle that's open.  But lets take a look at the statute.  An "Open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.

So would an empty beer can from last week count? It might, if the officer can see any amount of liquid inside.  What about a re-corked bottle of wine you wanted to save after going out to a friends house last night?  Sure, that counts too, but there's a little more to the law.  Of issue if where the open container is located.

It's illegal to have an open container in the Passenger Area of the vehicle.  So what does the Passenger Area encompass?  "Passenger area of a motor vehicle" means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. Pretty vague  right?  Luckily the statute clarifies a little bit by indicating the term does not include: (A) a glove compartment or similar storage container that is locked;
(B) the trunk of a vehicle; or (C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.

So those are the areas you should keep the alcohol you're transporting, if you don't want to get hit for an Open Container ticket.  Notice how those areas make it more difficult (if not impossible) for you to actually sample the beverage while driving.  Of course, even if you manage to stash the bottle or can when you're pulled over, chances are the officer saw you drinking from the open container while driving; unless you were stopped for another infraction.

With hefty fines and the potential of a conviction on your record -- not to mention giving officers probable cause to search you car and maybe find something worse than an open container -- it may be best to buy a whole 6-pack and wait until you get home.

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Check out more information about alcohol related offenses at: www.drunkinpubliclawyer.com, or www.lawofficeofrobertkeates.com.