RANDY T. LEAVITT AUSTIN, TEXAS

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

 If Defendant is in custody and in the presence of the officer  Remind yourself and your potential client that everything may be recorded

 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

 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

 Temporary permit good for 40 days  Occupational license usually available  Effect of a request for a hearing on DL suspension  Periods of suspension

 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

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

 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

 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

 Request hearing within 15 days of arrest  Discovery request-see 1 Tex. Admin. Code (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

 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

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

 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

 DWI Task Force  Overtime  Made the arrest and now committed  Distinguish between probable cause and beyond a reasonable doubt

 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

 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

 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