Attorney Tom O’Leary handles criminal defense cases, but these days, a lot of his clients are what he calls “accidental criminals.”
“It’s someone that at age 35 just had a little too much to drink at the Christmas party and got charged with a DWI,” he says.
What should you do if you find yourself in the same situation? O’Leary has some great insight and tips on what to do, what not to do, and how to move forward with your life.
Number 1: Don’t Drink and Drive
The best way to ‘get out’ of a DWI? Don’t drink and drive in the first place.
“The best advice from a lawyer? Don’t drive after you’ve had anything to drink,” says O’Leary, a Texas Legal network attorney. “This idea that a lawyer is here to get you out of your bad conduct isn’t the way to go. It’s much safer for you and me if you plan to drive responsibly.”
It’s easy to avoid thousands of dollars in fines, legal fees, community service and court mandated classes – choose a designated driver or call a cab.
Number 2: Know the Drill
So, you’re pulled over. What happens next? The officer will ask for your license. Then he’ll likely ask you to do a field sobriety test on film, a set of three tests which are scientifically proven to show if a person is impaired. That film can be shown to the jury as evidence against you in your trial.
Next, he might ask you to do a roadside breath test. While this test may offer additional information to the prosecutor or the officer, it’s technically not admissible in court because the technology has not been proven scientifically reliable.
After that, you will likely be arrested and taken either to the station or a mobile unit for an official breath or blood alcohol test. Then you’ll probably spend the night in jail and be released on bond.
Number 3: You Have the Right to Refuse, But It May Not Matter
Do you have to do a field sobriety test? Do you have to do a roadside breathalyzer test? Nope. By law, you have the right to hand the officer your license and refuse to do anything else. But refusing to cooperate probably won’t help your situation and may just make it worse, O’Leary says.
“I’ve done this for 28 years now, and I’ve never had somebody call me and say , ‘The police officer just let me go because I refused to do anything,’” says O’Leary.
Say the officer pulls you over for reckless driving and says he smells alcohol. You can refuse to do a field sobriety test, but the officer will likely arrest you either way.
“If the officer believes you’re intoxicated and don’t have the normal use of your faculties, he’s going to arrest you, whether you do the tests and fail or not. He’s going to err on the side of public safety,” says O’Leary.
Number 4: The Stupid Polite Response
The best response in any scenario is to play dumb but be polite.
“When an officer asks you to do a field sobriety test, know you have the right to refuse, but do it politely,” says O’Leary. “You could say, “Officer, I am not sure what I’m supposed to do, I’m sorry. I think that I should speak to someone before I do those field sobriety tests. I’m not trying to be uncooperative.”
Having an attitude, refusing to cooperate and being rude will all likely escalate the situation and won’t help you with the officer or the jury. If the jury sees you being cooperative on film, however, they may have sympathy.
“It is harder for juries to hold decisions against a person when they see somebody doing something that they think they would do themselves,” he says.
Number 5: The Consequences
According to state law, the consequences for first-offense adult DWI can be up to a $2,000 fine, jail time between 3 and 180 days and license suspension for up to 2 years. In reality, O’Leary says, the result will depend on where you get pulled over.
“The consequences really vary from county to county. There are some counties that offer diversion programs where you do not get convicted, but you still go through alcohol counseling, pay a fine and do community service. There are other counties that have much more of a zero-tolerance type attitude,” says O’Leary.
If you’re in a county without a diversion program, you’ll likely be convicted and serve a court-ordered probation.
Number 6: Get a Lawyer
If you think you’re going to end up paying fines for your DWI, you may be tempted to forego hiring a lawyer to avoid paying legal fees too. But that would be a mistake, says O’Leary. DWI laws are very complex and punishments vary from place to place. Without a lawyer, you might not know about a county’s diversion program to avoid a conviction or understand your options when it comes to driver’s license suspension. In addition, a lawyer can help possibly negotiate a deal for you with the prosecution, something you’re unlikely to get if you go it alone.
“Do not make the assumption the prosecutor will give you a great deal – the best deal, the same deal as the last person, or any deal – simply because you show up,” says O’Leary.
Number 7: You’re Going to Be Fine
Although a DWI is a serious issue says O’Leary, he makes sure to emphasize to his clients that they’re going to be okay.
“DWI is a crime that cuts across every social strata we have. DWI arrests happen with laborers and doctors, engineers, students, dentists, lawyers, architects,” says O’Leary.
“You’re going to be just fine. It’s not going to ruin your life. But you are going to have to jump through some hoops and address this. You may have some drivers license issues. But you’re going to be ok,” he says.
As with any legal situation, having an attorney by your side can make a huge difference in the result of your case. Remember that if you’re a Texas Legal member, your DWI case may be covered or discounted by your legal plan, meaning your attorney fees would be paid for. If you find yourself facing a DWI, make sure to get a lawyer’s expertise in handling your case.