Recently I wrote of the Collin County DWI/Drug Court Program; here I will provide some information on the Dallas County DWI Court Program.

Standard Probation Terms and Conditions of DWI 2nd offense

I have a long-standing view that all DWI 1st offense should be set for trial, because there really are no distinct differences in punishment whether by pre-trial plea bargain or assessed after trial. DWI 2nd offenses begin to enter an area where plea bargaining and other potential client needs enter into consideration — namely the possibility of potential substance abuse issues. With DWI 2nd offense clients, my focus is on avoiding a DWI 3rd offense, which are felony offenses and potentially punishable by prison confinement. However, any plea agreement or discussion must also focus on the strength and facts of the State’s case against the DWI defendant and the likelihood of a not guilty outcome after trial.

If the concern with a DWI 2nd offense is punishment only, then this is the typical DWI punishment and probation offer from the Dallas DA’s office for: 1 year in jail probated for 2 years; $1,500 fine; 5 days confinement in county jail as a pre-condition to DWI probation (also known as a term and condition of probation); CATS assessment (in-depth alcohol/substance abuse assessment); a deep lung device; and community service. This punishment has severe financial consequences. However, these plea bargain conditions are still not at maximum punishment as the law allows for a fine up $4,000 and up to 30 days confinement in the county jail as a term and condition of probation. Additionally, other than the CATS assessment and possible recommended conditions depending on the assessment indicators, standard DWI 2nd offense punishment does not focus much on possible substance abuse issues or changes in behavior.

Enter DWI Court

First, DWI Court takes a significant time commitment and willingness to change behavior. Additionally, DWI court requires the DWI defendant to acknowledge, recognize, and accept there exists a substance abuse problem. If the client does not, then entering the DWI court process is not in their best interest. I do not have a preference for any disposition; my only focus is to provide a DWI 2nd offense client with the best possible advice and counsel for their particular circumstance, which may include trial, plea bargain standard probation, or assist with entering the DWI court program. My one overriding goal is doing everything I can to help the client avoid a DWI 3rd offense.

Here are the qualifying factors for DWI Court:

1. pending DWI or DWI 2nd in Dallas County
2. DWI with BAC greater than 0.15
3. DWI involving accident
4. Defendant resides in Dallas County or a surrounding county

Non-qualifying factors for DWI Court:

1. any prior violent or sexual offense
2. Defendant resides outside of Dallas County or surrounding county

Advantages of DWI Court:

1. one year probation
2. waive court fines
3. reduced probation fee
4. waive community service
5. waive ODL fee (if eligible)
6. suspended jail time

Examples of time commitment:

1. during first 2 months of supervision, meet with probation officer 3 times per month and attend 2 court appearances in the evening; as the participant satisfactorily progresses, supervision meetings are reduced to 2 time per month and then eventually typical 1 time per month and court appearances are reduced to 2 times per month and then eventually 1 time per month
2. initial intensive outpatient program consisting of 4 group therapy sessions per week and attending 3 AA/NA meetings per week
3. with satisfactory progress, the DWI Court participant will enter supportive outpatient program consisting of 3 group therapy sessions per week and 3 AA/NA meeting per week
4. Aftercare program: 1 group therapy session per week and 3 AA/NA meetings per week.

For Additional Information:

How to Get Into the DWI Court
DWI Court Application for Consideration by the Prosecutor 
Dallas County DWI Court Participant Contract
Transportation Plan

If I may be of assistance, I encourage you call my office at (972) 234-8208 or email me atjwtidelljr@tidwell-law.net to discuss your case.

On August 4, 2011, Judge Dan Wilson, Collin CCL #5, addressed the Collin County Criminal Defense Lawyers Association (3CDLA) regarding stats and updates on the Collin County DWI and Drug Court, which he has supervised for 2 years. Here is a rundown of his address.

Stats

- 85 total participants
- 42 current participants
- 29 successful graduates
- 8 revocations
- 4 transferred to mental health
- 4 transferred to felony supervision

Type of Client to Put in Program

- has had 2 more DWI or Drug offenses in last 2 years
- is serious about getting clean and sober; willing to recognize and acknowledge has a substance abuse problem
- understands and willing to commit to serious time consuming program; program is hard and requires serious commitment
- willing to commit to either succeed or will go to jail; once in program there is no getting out and going standard probation

General Terms of DWI/Drug Court Program

- must plead guilty and to maximum probation conditions for criminal offense; typically will be Class A Misdemeanor: 1 year confinement in county jail and $4,000 fine, both probated for 2 years
- community service requirements waived
- after satisfactory completion of 1 year in program, will be discharged and if any remaining time on probation period will be switched to non-reporting probation and required to check in with probation officer every 2 months
- required installation of “deep lung device” (DLD) or “ignition interlock device;” however, through an agreement with a company, the monthly monitoring fee will be substantially less and if making satisfactory progress after 6 months in the program will be allowed to remove
- suspension of TX DL for minimum period, granted an Occupational Drivers License (ODL)  with the filing fee waived
- will have submit to a Substance Abuse Evaluation
- regular attendance at AA/NA

For more information:

DWI/Drug Court Program Participants’ Handbook
Collin County DWI/Drug Court (website)

Benefits

- minimum legal benefits, but some reduction in fees
- 80% chance of remaining sober (consistent with national average, but slightly better local averages)
- significant reduced incidents of repeat criminal conduct (any criminal offense, not just alcohol or drug related criminal offenses)

Observations

- as individuals become sober and rely less (or stop using altogether) alcohol or drugs, other personal or emotional problems may arise as reflected in the individuals transferred to mental health
- if sobriety is is goal of participant, then the court program requires a substantial commitment of time and significant changes in personal conduct and attitudes
- if desire is to get “this case” out of way, the standard probation will take substantial financial commitment, but individual can avoid the dramatic time commitments
- for any repeat DWI offense, the fear of any criminal defense attorney is recognizing potential substance abuse issues that might result in client eventually facing a felony DWI criminal offense

If I may be of assistance, I encourage you call my office at (972) 234-8208 or email me at jwtidelljr@tidwell-law.net to discuss your case.

The other day I was in court and ran into an acquaintance. This individual is not a lawyer and certainly would not be the type of person I would expect in a criminal court. After the usual “hellos” I asked why they were there. And here begins the point of this post.

“Oh, my daughter has a hot check issue. It is no big deal. We paid restitution; now we are just waiting to talk to the Judge.”

From here I switched from casual talker to criminal defense lawyer – I asked if they had a lawyer, what was the terms of them paying restitution, why they were waiting to see the Judge, whether they had an agreement with the prosecutor for resolving the matter. And the biggest one of all: Why don’t you think this is a big deal?

“Oh, it is just a hot check, you know an accounting mix up .. no big deal.”

Not trying to alarm them, but definitely trying to make a point — it is a big deal … it is not a “hot check” it is THEFT.

Texas Penal Code addresses “hot checks” in two different parts. And depending on the part the prosecutor files it under determines its seriousness.

Penal Code 32.41 addresses the common perception of “hot check” cases in a section titled “Issuance of a Bad Check” (or IBC for short). Generally, this section defines IBC as issuing or passing a check for the payment of money knowing there is insufficient funds for payment in full (paraphrased). If filed under this section, an IBC is a Class C misdemeanor, punishable by a fine only (an exception being for paying for child support under IBC is a Class B misdemeanor, which could be punished by fine and/or confinement).

This I think most individuals think of as a “hot check” case, and generally there exists a perception that if the person pays the restitution and a nominal fine then the case “goes away.” Typically, these cases will be filed in municipal or justice of the peace courts, and with some exceptions depending on specific facts, this is probably a safe assumption.

In this particular instance though, my acquaintance and her daughter were not in a municipal or justice court, but instead were in the County Courts. This signaled to me it was a far more serious matter. Texas Penal Code chapter 31 addresses Theft offenses. Specifically, Penal Code 31.02 consolidated all “theft” type offenses into one general Theft criminal offense, including obtaining property by issuing or passing a check when there were insufficient funds for payment in full of the check or when a bank account was closed. Under this type of offense it is a Class C misdemeanor if the check was less than $20 (again punishable by a fine only). However, if the check is greater than $20, then the punishment can range from Class B misdemeanor up to a first degree felony, depending on value of the check and/or the type of property and/or other special circumstances.

In this particular instance, the check in question was for between $20 and $500 making it a Class B misdemeanor punishable by a fine not to exceed $2,000 and/or confinement in the county jail not to exceed 180 days. Also, and I think over the long term more significant, the individual was at risk of being convicted of Theft a crime of moral turpitude that could follow that individual for the rest of their life. There are some criminal convictions and even criminal accusations that individuals can overcome in their job search. However, I am not aware of too many employers that willingly or enthusiastically offer jobs to convicted thieves. Which is another problem with this allegation, this person would have been convicted of Theft and grouped in with all other types of theft — the criminal history does not include the facts or distinguish between subtle differences in criminal offenses.

On behalf of my acquaintance, I approached the prosecutor and discussed the matter. The prosecutor agreed to a $50 fine, deferred adjudication for 30 days, and reduced the offense to the Class C IBC. This individual was not only not convicted of theft, and also is never at risk of the Class B conviction in this particular instance, and most importantly is eligible to petition to have all documents related to this allegation expunged in the future (assuming continued eligibility).

I now come to the final point — this person might have been able to accomplish all of this on their own, had they known the law, the existence of these provisions, and the procedure for accomplishing all of this. But realistically, they would not have accomplished this outcome, as they failed to appreciate the seriousness of the allegation and obviously did not know the law. It took me all of 20 minutes to protect this individuals future, I hesitate to wonder how much damage they would have done on their own. I asked why they did not get a lawyer or at least consult with one. She again stated “I thought it was no big deal.” I asked whether the daughter got arrested, and she did.

My final two points for deciding whether you ever need a lawyer: first, if you ever think you might need a lawyer, you probably do (we are kind of like doctors, dentists, or barbers in that way); and second, if you get arrested, it was enough of a big deal to the police, it should be an equally big deal to you — and you should consider retaining a lawyer.

If I may be of assistance, I encourage you call my office at (972) 234-8208 or email me at jwtidelljr@tidwell-law.net to set up an appointment and discuss your case.

Disclaimer The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.  I invite you to contact me and welcome your calls, letters and electronic mail. Contacting me does not create an attorney-client relationship. Please do not send any confidential information to me until such time as an attorney-client relationship has been established.

Although fees are a major concern in hiring an attorney, fees should not be the only concern. There are 2 issues you should be aware of if you go the court appointed/public defender route. First, court appointed does not mean free. If you plead to the case in exchange for a plea bargain from the prosecutor or go to trial and are convicted, many jurisdictions will still assess the court approved fee against you as part of your court costs — so you still end up paying for the attorney. Second, you do not get to pick your attorney if court appointed or the public defender. If you are able to hire the attorney, then you have the advantage of interviewing and making the decision who represents you. Fees are a consideration hiring an attorney, however, some attorneys will make accommodations if you express a sincere desire for them to represent you.

I would strongly caution anyone against waiving their right to counsel and speaking directly with the prosecutor. As the criminally accused, anything you say can be used against you. Additionally, the Collin Co prosecutors are very good at the “hard sale” in convincing you their plea offer is the same or better than if you had an attorney. However, if they do offer legal advice (which as the prosecutor, they do not represent you and should not give legal advice) it may not be “completely” accurate and may only cover the plea itself and fail to inform you of collateral consequences. Additionally, the prosecutor will not tell you if there are potential legal deficiencies with their case (such as an illegal search) or possible witness problems. As always, if you think you should speak with an attorney, you probably should.

If I may be of assistance, I encourage you call my office at (972) 234-8208 or email me at jwtidelljr@tidwell-law.net to set up an appointment and discuss your case.

Disclaimer The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.  I invite you to contact me and welcome your calls, letters and electronic mail. Contacting me does not create an attorney-client relationship. Please do not send any confidential information to me until such time as an attorney-client relationship has been established.

First and foremost, DWI is not eligible for deferred adjudication — has not been eligible for almost 30 years. Although there are a few counties that will consider pleading a DWI to something non-alcohol related offense (usually Reckless Driving or Obstruction of Highway), and in those instances one should strongly consider accepting a plea agreement, most counties have a policy of plea or trial. In those instances, an experienced DWI attorney who is prepared to go to trial may be your best option.

Second, and perhaps most importantly, if you think you might need a lawyer, you usually do (as I wrote a few days ago, there are some professions where you go with a professional and should not go on your own – if you had or your child had a sore tooth, you would go to the dentist and not try to take it out yourself). And never rely on your friends for obviously wrong legal advice; I would suggest you start considering meeting with an attorney to learn your options and proper method of handling your case.

DWI is perhaps the most serious of misdemeanor offenses, with significant consequences beyond just the charge and possible conviction. Depending on the outcome of a DWI, you could face reduced or restricted driving privileges, surcharges to maintain your license, increased insurance costs, and the possibility of enhanced penalties if you are ever charged with the offense again.

Additionally, depending on the circumstances of the initial arrest and whether you submitted to a breath or blood test and the result of those tests, you may have a suspended license. For more on post-DWI arrest DL issues, Arrested for DWI & They Kept My License — What Next?

If I may be of assistance, I encourage you call my office at (972) 234-8208 or email me at jwtidelljr@tidwell-law.net to set up an appointment and discuss your case.

Disclaimer The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.  I invite you to contact me and welcome your calls, letters and electronic mail. Contacting me does not create an attorney-client relationship. Please do not send any confidential information to me until such time as an attorney-client relationship has been established.

A Judge can order an Occupational Driver’s License to allow you to meet your “essential needs” during a period of suspension. Such “essential needs” include: to and from your employment; to and from school; to and from any court, counseling, or probation meetings; or for any other “essential” errands. The standard period of driving is no more than 4 hours in a 24 hour period and at set periods of the day; however, upon a showing of necessity, a Judge may permit you to drive up to 12 hours in a 24 hour period and/or may also require you to document your driving time in a log book.

The process is to file a civil petition in the County Clerk’s office. The county charges a filing fee of approximately $275.

The following is required to complete the petition:

1. a driving history from DPS (or you may have to appear in person to testify regarding your driving history);

2. an SR-22 from an insurance company;

3. if you drive a company vehicle in the course of your employment, a letter from your company;

4. a list of the counties (limited to Texas, an ODL is not valid outside of Texas for driving) in which you normally drive;

5. the time periods during the day when you drive;

6. if a student, a class schedule; and

7. payment of a reinstatement fee payable to DPS.

You may obtain an SR-22 from most insurance companies; in fact all insurance companies are required to carry a certain number of SR-22 policies. Generally, my clients have informed me they have had better success using independent agents; however, if you have a long-standing and good relationship with your current insurance company, then you may want to go through them first. The fee varies for an SR-22. The law requires an SR-22 because it cannot be cancelled for the period it is issued and if it is cancelled the insurance company must immediately notify DPS.

As a condition of issuing an ODL, the Judge may require a log book, an ignition interlock device, and an alcohol awareness class like ADAPT.

Upon issuing the Order granting an ODL, you must mail a certified copy of the Petition and Order (will received additional copies from the Clerk’s Office) to DPS along with an administrative fee of $10 and a reinstatement fee of $125. You must do this within 30 days, as the Order you will carry will only be effective for 30 days. If everything is in proper order, DPS will issue an occupational driver’s license (or a “brown card”). Until you receive the ODL, you must keep a certified copy of the Petition and Order with you while driving. I recommend most clients request a state issued ID card if their DL is suspended, or carry a passport if they have one. If requested by a police officer, you must produce all of these items including a log book if one was required.

If I may be of assistance, I encourage you call my office at (972) 234-8208 or email me at jwtidelljr@tidwell-law.net to set up an appointment and discuss your case.

Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. I invite you to contact me and welcome your calls, letters and electronic mail. Contacting me does not create an attorney-client relationship. Please do not send any confidential information to me until such time as an attorney-client relationship has been established.