***Be sure to let me know if you have served in the military! There are some very special benefits for veterans in the court system!***
- If you refused to provide a blood or breath specimen upon the request of the police (even if they later got a blood sample by obtaining a warrant) the police will confiscate your Texas driver’s license and give you a notice of driver’s license suspension. If you provided a breath sample, and the results showed an breath alcohol concentration (BAC) of 0.08, the police will also confiscate your Texas driver’s license and give you a notice of driver’s license suspension. If you have an out of state driver’s license, the police should not confiscate your license, but they will start suspension proceedings anyway to suspend your right to drive within the state of Texas with an out-of-state license.
- If you did not refuse a breath or blood sample, and you voluntarily provided the police with a blood sample (as opposed to them obtaining a warrant), the police should not confiscate your driver’s license until and unless the BAC results come back at or over the 0.08 legal limit. If that is the case, your 15 days to request an ALR hearing will not start until they have notified you.
- If you provided a breath sample and the results were 0.08 BAC or higher, or if you refused to provide a breath or blood specimen, you have 15 days to request a hearing, or else your driver’s license will be suspended. If you can’t get in to see me before the 15th day after your arrest, and you still have time to act within those 15 days, request the “ALR” hearing on the driver’s license suspension by following the directions at the bottom of the “Notice of Suspension” form. A faxed request works just fine. Or go to: https://www.txdps.state.tx.us/DriverLicense/customer_service/alr.aspx
- Assuming that the police confiscated your driver’s license, you can go to any DPS office and get a duplicate copy of it. The confiscation of your DL is mostly symbolic – it has no true legal effect on your right to drive. Unless it has been 40 days or more since the date of the arrest, your DL isn’t suspended yet, and you are still a licensed driver. As such, you are entitled to possess a driver’s license. The “Notice of Suspension” form is not at all clear about this. The police have no direct authority to suspend your license – they can only confiscate it and initiate the suspension process. If anyone is going to suspend your license, it will be the DPS, not the police. Just tell the DPS that you need a duplicate copy of your DL because you can’t find your old one (because you can’t! – The police have it!) (NOTE: Do not LIE or commit PERJURY on any government form used to apply for a new DL! Just ASK them for a new DL, but don’t LIE to get it! None of my clients has had a problem with this so far, but you never know!)
- Consider returning to the arrest location and taking 16 – 20 photos of the area. Take the photos from various directions – one from the north, one from the south, one from the east, one from the west, etc. This can be especially useful if the area is undergoing construction and will change significantly over the next year or so. Take photos of anything which may have had something to do with the arrest or your performance on the sobriety tests: Skid marks, broken glass, tire marks, curbs, construction barriers, the slope of the roadway, gravel on the concrete where you did the tests, flashing lights or other distractions, etc. If there was an accident, try to get photos of the damage to the vehicles. If the airbags deployed, get a photo of them. If your head hit the windshield, get a photo of the windshield AND a photo of your head, if there’s anything to see! By the way, this usually doesn’t help much with your case, but once in a while the right photograph can actually win the case for you, if it proves the arresting officer was dead wrong on a significant detail! We want to be prepared for that 5-10% chance!
- Take a few minutes and write down any questions that you might have when you come in. I’ll try to cover everything from A to Z, but you may have a specific question that I’m not able to anticipate.
- If you hit your head, it may be advisable for you to be checked by a physician – especially if you noticed any dizziness, confusion, or lack of memory at the time of the accident, or shortly thereafter. Make sure you tell your physician if you are experiencing any memory loss regarding the event, because that’s a sure sign of a concussion. The signs of intoxication are very similar to the signs of a concussion: Slurred speech, unsteady balance, confusion, irritability, inability to concentrate, and difficulty following instructions. Even nystagmus (the eye test) is a common symptom of both! The only obvious distinctions between intoxication and a concussion is the odor of an alcohol beverage, and sometimes blood shot eyes.
The odor of alcohol alone doesn’t prove intoxication, but the absence of any odor of alcohol generally means the person isn’t intoxicated – at least not by alcohol. There could be any number of reasons for bloodshot eyes – chlorine from swimming, allergies, lack of sleep, crying, etc. But bloodshot eyes don’t prove intoxication any more than does the odor of an alcoholic beverage.
AVOIDING INTERLOCK VIOLATIONS
Automobile interlock breath testing devices can be required as a condition of your bond, a condition of your probation, or a condition of an occupational driver’s license. Failing an interlock breath test (“blowing dirty”) almost always requires an appearance before the judge, and it often results in revocation of your bond, revocation of your probation, or revocation of your ODL. In some cases, you go to jail, in other cases, you may have to get a SCRAM device installed on your leg – at $360 a month or so - sometimes for many, many months, or until your case is completely over. YOU DO NOT WANT THIS TO HAPPEN!
Breath testing devices of every type are susceptible to false positives or abnormally high results when residual mouth alcohol is present. This is true for portable breath tests (PBTs), interlocks, home monitors, intoxilyzers, etc. For example, if you drank one teaspoon of Jack Daniels whiskey, that wouldn’t raise your blood alcohol by more than a trace, probably not more than 0.001 BAC. But it could increase the results of a breath alcohol test by 0.50 or more for 10 to 12 minutes. A true 0.50 BAC is enough to kill most people, but one teaspoon of Jack Daniels probably wouldn’t get a mouse drunk!
Residual mouth alcohol is completely eliminated within 12 to 15 minutes. So with residual mouth alcohol, like from a mouthwash, it’s quite possible to have virtually no alcohol in your blood at 9:00 am, but 0.25 or more in your breath. If you took another breath test in 15 minutes, your residual mouth alcohol would be fully absorbed, and your measured breath alcohol level would drop back down to zero.
If you had 0.20 alcohol in your blood, a breath test 15 minutes later might drop down to 0.195. 15 minutes after that, it might be 0.190.
Residual mouth alcohol disappears very rapidly. It will be completely gone in less than 15 minutes. Alcohol in your blood disappears very gradually, at a steady rate of about 0.01 every half hour. If you reach a blood alcohol concentration right at the legal limit of 0.08 BAC, which isn’t all that high, it will take about four hours for your body to completely eliminate it.
***If you ever get an interlock “lock out” from mouth alcohol only, like from mouthwash or cough syrup, just wait 15 minutes and blow again. The mouth alcohol will be completely gone, and you have proven that you weren’t drinking - it was only mouth alcohol. And mouth alcohol won’t get you in that much trouble. The judge will just tell you to avoid products with alcohol in them. If you get an alcohol reading and do not blow again 15 minutes later, the judge will conclude that you were drinking, and in violation, and that’s when people get sent to jail.***
HOW YOU WILL GET CAUGHT “BLOWING DIRTY”
Over 90% of my clients who blow dirty do so the MORNING AFTER a night of drinking. They go to bed around midnight with a 0.20 alcohol level, or higher, and then blow a 0.04 at 8 am when they try to start their vehicle. If you blow a 0.04 BAC at 8 am, it’s possible that you simply decided to have a three martini breakfast, but it’s much more likely that you went to bed drunk the night before with a fairly high BAC. Either way, those are pretty dumb things to do when you are being monitored for alcohol intake.
If you are going to play Russian roulette and consume alcohol while you are being monitored, at least don’t be an idiot about it. Spend $30 or so and purchase a portable breath testing device. You can find them online. Blow into your portable device every morning after a night of drinking. Until it reads 0.000 BAC, don’t blow into your breath monitoring device! I recommend the portable breath test device that I use: BACtrack. You can find it online for $29.99.
If you get caught blowing dirty, we charge $350 to go to court with you. That’s extra unnecessary work for us caused by your dumb actions. When you make our lives more difficult, we charge you for it.
INTERLOCKS AS A CONDITION OF YOUR BOND
If you have an interlock as a condition of your bond, you’ll have an interlock until your case is over. So the sooner your case is over, the sooner the interlock can be removed.
It is extremely important that you don’t have any interlock violations while you are on bond. Your interlock history can be shown to the jury and if they are favorably impressed because you have had no violations they will likely reward you with a lighter sentence. If you have violations, they can use that as a reason to sentence you more severely.
If, at the end of your case, you are not on probation and you don’t have an occupational license, they can’t require you to have an interlock any further. Avoiding probation is relatively easy on a first offense misdemeanor DWI, and getting an occupational license is your choice. If you choose not to get an occupational license, we just don’t get one.
So whether we win your trial or lose it, the interlock may come off at the end of your trial.
The judge has the option of giving you probation even if the jury doesn’t, but I haven’t heard of them doing so recently. If they did, they could screw you over and require an interlock as a condition of probation anyway, and you are just stuck.
There is also an outside chance that we can avoid the interlock entirely by way of a plea bargain, if you were willing to plead to the DWI and have it on your record for the rest of your life. I’d recommend that you fight the DWI, and not take a plea, but it is a potential option, if avoiding the interlock for a short while is more important to you than trying to avoid the DWI conviction forever. Essentially, we’d have to accept the DA’s terms on the DWI conviction (probably probation, a fine, some classes, and some charity work) in exchange for them dropping the “BAC over 0.15” allegation, and the judge would have to approve the deal. The DA might not agree to that offer, and the judge might not approve it. But I can try.
FOLLOWING YOUR CASE ONLINE
In most counties, you can follow your case (or for that matter, anyone else’s case) online.
Click onto the above website portal, and that will bring up a page requesting you to enter a “CAPTCHA string.” That’s just a security check to make sure that you are a human and not a computer. Once you have entered the CAPTCHA string (usually just a few letters or numbers shown in a blurry picture), you can search for cases under the person’s name or case number. Type in the name (and date of birth, if you know it), click the “Search by Name” button, and every case that person has ever had filed against them in Dallas county should be listed. You might get a message that no records were found under that name. If so, it may be a new case that hasn’t been put on the computer yet, or you may have misspelled the name, or the person hasn’t ever had charges filed against them in Dallas County.
After you entered a name, there will be a list of cases on your computer screen. Each case takes up one line. Once you have located the case you’d like to see, click on the name at the front of that line. That will pull up the detailed online records for that case.
There should be a line that states “”FILE DATE” at the top of the first page for that case. The date that case was filed should be listed immediately afterwards. For example, FILE DATE 041613 means the case was filed on April 16th, 2013. If the FILE DATE says “0000000,” that case has still not been filed. Until a case has been filed, we can’t access any of the information (like the blood test results, the police reports, witness statements, etc.), and there can’t be a real court date (as opposed to the worthless “check the misdemeanor bulletin board” settings.)
Near the bottom of the first page, or at the top of the second page, there should be a bold lettered line that says “SETS AND PASSES.” These are the case settings listed in chronological order. Common settings are labeled as FIRS for “First setting,” ANNO for announcement settings, PLEA for plea settings, HEAR for pre-trial hearings, and TRI for trial. In Dallas County, the defendant is generally only required to attend pre-trial hearings (“HEAR”) and trial (“TRI”) settings. There may be a few exceptions.
Shortly after a case has been filed, the first real court date should be set and it will be labeled as FIRS (for first setting). Sometimes somebody drops the ball and a newly filed case is not given a first setting. In most cases, we would just sit back and see how long it took for someone to notice it. If it takes long enough, the case may get dismissed on a speedy trial motion.
If you need to have a case resolved ASAP, let us know as soon as it’s filed and we can speed up the process instead of letting it drag out.
Once you know your case number, you can search all of the documents associated with your Dallas county case by going to:
Please note that for misdemeanor cases, you should only use the “M” at the front of your case number, and omit all other letters or dashes. If you are looking up a felony case, use only the “F” at the beginning and omit any other letters or dashes. So if your misdemeanor case number is listed as MB14-12345E, only enter M1412345. If your felony case number is listed as F14-34567Q, only enter F1434567.
In COLLIN COUNTY, you can find your case at:
In DENTON COUNTY, go to:
GO TO TRIAL ON MISDEMEANOR DWI CASES!
Generally, you almost never end up with a worst result by going to trial on a DWI misdemeanor case. That’s why I recommend that nearly ALL misdemeanor DWI cases be set for trial. Setting cases for trial maximizes your chances of avoiding the conviction, while generally subjecting you to no greater punishment if you don’t win.
If you are charged with a felony DWI instead of a misdemeanor, generally it will work in your favor to schedule your case for trial, but it might not be in your best interest to actually go to trial. Generally speaking, if you are charged with a felony DWI, the top priority is getting the case reduced to a misdemeanor. Scheduling the case for jury trial is still one of the best ways to accomplish that, but actually going to trial on a felony can be a big risk. You could end up with a few years in the state prison. There is no equivalent risk on misdemeanors.
No matter how bad your case might look, there’s always a chance that you might win it – unless you plead guilty (or no contest, which is essentially the same). I have never won a guilty plea for my client, and neither has anyone else. If you surrender, you lose! As long as you continue to fight, you might win!
There are four possible outcomes if you fight a misdemeanor DWI, and three of them are positive:
- The case may get dismissed. (3-5% chance)
- You may be found not guilty (Depends upon your facts)
- You may get a lighter sentence (Nearly every time)
- Your sentence may be worse (5% of the time, probably less)
If you plead guilty (or no contest), the DWI will be on your record forever, (unless you get a pardon from the Governor, which is highly unlikely.)
So if you fight it, at least 5% of the time you get it dismissed or a not guilty verdict, and 95% of the time you end up better off than if you simply plead guilty. And the additional cost to fight a misdemeanor isn’t all that significant – usually around $3,000 to $4,000, which can be paid out over 6 to 8 months.
Every year we get 3 or 4 cases dismissed just because the prosecutors cannot proceed to trial on the day the judge says. That could happen to you if you simply fight your case!
Generally, the only misdemeanor DWI plea bargain even worth considering is an offer to dismiss your DWI in exchange for a plea to an obstruction of a roadway. And those offers are generally only offered on cases the DA expects to lose. And certainly the DA doesn’t expect to lose a case which is not scheduled for trial - which is all the more reason to set every DWI misdemeanor case for trial!
It is much more important to go to trial than it is to hire a great lawyer and not go to trial. If you can’t afford the best, hire the best you can afford. The worst lawyer in Dallas will win a DWI case every once in a while. The best lawyer in Dallas will not win a guilty plea. You cannot win a guilty plea no matter how good your case is, or how much you pay your lawyer!
ILLEGAL STOPS AND MOTIONS TO SUPPRESS EVIDENCE
Almost every criminal defense investigation begins with an inquiry into how the police officer obtained the evidence. If that evidence was obtained illegally, the judge is supposed to suppress (throw out) that evidence.
In many cases, the evidence is obtained as the result of a traffic stop. If that traffic stop is ruled illegal, then all of the evidence discovered after that traffic stop is also illegal, and thus inadmissible. Many DWI and drug possession cases begin with a traffic stop, so if that stop is ruled illegal, the case will be dismissed. And that is true no matter how bad the remaining facts are!
If the police testify that they stopped you because of a specific traffic violation, and you or someone else testifies that you did not commit that traffic violation, the jury has to be convinced beyond a reasonable doubt that the traffic violation actually occurred. If they aren’t convinced beyond a reasonable doubt that the offense occurred, the evidence is suppressed and you will be found not guilty.
The police do not have to witness an actual offense to legally stop you, but they have to articulate why they reasonably suspected that you committed an offense. For example, it’s not illegal to drive at 5 mph down a side street, but if you were doing that for several minutes at 2 am, the police might be able to convince a judge or a jury that they reasonably believed that you may have been intoxicated or looking for a home to burglarize. This is a “legal” stop, so long as the police can prove that they had a reasonable suspicion that something illegal may have been going on.
The traffic offense of failing to maintain a single lane (FMSL) is a particularly fertile offense for getting cases dismissed with motions to suppress. Texas law doesn’t require a driver to remain strictly within the lines dividing lanes of travel. Transportation Code Section 545.060 only requires that one drive “as nearly as practical” within a single lane. The courts have repeatedly held that minor deviations from one’s lane of travel are not by themselves valid justification for a traffic stop. For a FMSL stop to be valid, the deviation from the lane must either be dangerous, cause another vehicle to take evasive action, or be accompanied by some other unusual driving.
IS IT POSSIBLE TO GET A DWI CHARGE REDUCED?
It is theoretically possible to get a DWI charge reduced, but it doesn’t happen very often. For the most part, the only time the prosecutors offer to reduce a DWI charge is if: 1) They think the case is going to trial, and 2) They expect to lose the case. And if your case is in Collin County – forget it. They have a hard and fast rule on DWI cases: No dismissals and no reductions to any other charge, no matter what.
Generally, there are four reasons that the DA will expect to lose a DWI case: 1) You look sober on the video AND there is no breath or blood test (or the result is less than 0.10 BAC). 2) There are problems with their arresting officer (the officer is dead or dying, indicted for some criminal charge, dumb as a rock, or otherwise unavailable for some reason). 3) There appears to be no valid legal reason why your vehicle was stopped,* 4) There is a legitimate question as to whether or not they can prove that you were driving.
In the Dallas area, other than Collin County, if a misdemeanor DWI case is reduced, it is generally reduced to the offense of “Obstructing a Roadway” or as we say in the industry, “an obstruction.” Obstructing a Roadway is a class B misdemeanor, just like a first offense DWI. But unlike a DWI, an obstruction is NOT a driving offense (you can obstruct a roadway by throwing an old couch into the road), it doesn’t create any driver’s license suspension or surcharge problems, it doesn’t increase a person’s insurance rates, and it can’t be considered a prior DWI offense for purposes of increasing the punishment of some future DWI charge. And for the most part, an obstruction doesn’t carry any of the negative social stigma that an alcohol-related offense does.
In most misdemeanor DWI cases, the only plea bargain that I think is worthy of any real consideration is an obstruction offer. Any other DWI plea bargain results in a DWI being on your record forever. And I can’t see how that’s a true bargain for most people.
For felony DWI cases, any plea offer that reduces the charge to a misdemeanor DWI is worthy of consideration. A DWI conviction on your record is certainly not good. But a felony on your record – DWI or otherwise - can be downright devastating. It would be a rare felony DWI case where you would want to have a trial and gamble on a potential felony conviction rather than accept a misdemeanor plea if that was offered. Of course, there can be exceptions to any rule.
If you are fortunate enough to be offered an obstruction, be aware that the terms of an obstruction plea bargain are completely negotiable. The DA’s office prefers to treat an obstruction offer exactly like a DWI, and they will probably want to give you the full DWI treatment: 18 months’ probation, $60 a month in probation fees, a fine of $1,000 or so, a DWI Education program, a Victim Impact Panel, a Substance Abuse Evaluation, 40 hours of community service, etc. See my email entitled “A Typical DWI First Offense Probation” for complete details.
My clients and I would prefer that an obstruction deal have as few requirements as possible, preferably either: 1) Time served, or 2) no fine, no classes, and unsupervised probation.
As with any other negotiable situation, the exact details of an obstruction plea will vary greatly depending on who wants what. As a general rule, if the DA approaches us with an obstruction offer, that means they are afraid of losing the case, and we can probably dictate most of the terms. If we approach the DA requesting an obstruction, generally the DA will be able to dictate most of the terms. From a negotiating standpoint, we want to convince the DA that it would be in their best interest to offer us an obstruction, rather than us going to them and asking for an obstruction. And no matter how badly my client might want an obstruction deal, I would always present an obstruction request to the DA as follows:
“My client is out for blood on this case. He (or she) is mad as hell about this arrest, and can’t wait to go to trial and get his not guilty verdict. I doubt that he (or she) would consider any obstruction offer, no matter what your terms, but if you make the deal sweet enough, I’ll see if I can talk them into it. After all, you and I are professionals – we both know that there is no such thing as a guaranteed “not guilty” in a DWI case, but I’m going to have to really work to convince my client of that.”
After that song and dance routine, if we do obtain an obstruction offer, then we play hard to get: We never take the first offer. I go back to the DA and say, “To my surprise, my client didn’t simply reject your obstruction offer outright, like I thought they would. Instead, they said that they’d consider your offer if you’d lessen [the fine, the length of the probation, the community service hours, etc.]. If you can do that, I think maybe I can talk my client into talking the deal!”
That’s how I squeeze every plea offer to get the very best possible deal. It might be easier for me to do so than most attorneys, because almost all of my cases go to trial, and the assistant DA knows that. I don’t go in to the DA’s office very often asking for an obstruction. Generally I’m going into court ready for trial, and the DA knows it.
Let me know if you have any questions about this or any of the other materials that I’ve sent you!
*No valid reason for the stop of your vehicle: If the police use their emergency lights, hand signals, or siren to pull you over, they have to have a legal justification for doing so. They can’t do it simply because they are curious as to whether or not you are safe to drive. Without other incriminating facts, leaving a bar parking lot at 2:00 am is generally not a valid legal reason for the police to stop a vehicle. DWI cases can sometimes be won by your attorney filing a Motion to Suppress, which is a challenge to the legality of the stop of your vehicle. “Failure to maintain a single lane” is one legal justification for a stop that is particularly vulnerable to challenge by the defense.
WHAT HAPPENS ON YOUR COURT DATES?
Dallas County Misdemeanors
Before Covid-19, a DWI case in Dallas County would typically take 30 to 60 days to get filed, but if there is a blood test, they won’t file the case until the blood test results are back, and that can take 2 or 3 months, or so. And I’ve seen it take over a year (on a few rare occasions)! After Covid, all of the schedules and timing has been thrown off. What used to take 3 months may now take 8 or 9!
Until the blood test results come back, they won’t file your case. And until they file it, your case is still considered “under investigation.” Until your case is filed you are not officially an “accused,” and your full Constitutional rights don’t kick in. And they won’t release ANY information until the investigation is complete and the case is filed. So we can’t get copies of police reports or videos until then.
Normally we have all of the reports and videos within 4 to 6 months of your arrest, but sometimes it can take up to a year or more. We do what we can to speed the process up for you, but we won’t do anything that might jeopardize your case just to get a faster result. In some instances, if the government takes too long in getting your case processed, we can have it dismissed with a speedy trial motion.
Our priorities are: 1) to get you the BEST result, and 2) to get that result as FAST as possible. It usually takes 12 to 18 months to grind out the best possible result, although we may be able to speed that up by 6 months or so. Ask if you’d like to discuss that possibility. And Covid has slowed the process considerably. Almost everything is taking at least twice as long as it used to!
Once your case is filed, it should be set for a “first setting” by the court. The rest of the settings are done by your attorney working with the court and the DA’s office.
In Dallas County there are generally five preliminary settings where nothing much happens. The first setting is called the first setting (logically enough). The next two settings are called “announcement” settings, and the two settings after that are called “plea” settings. Each of these settings is about 30 days apart.
For the most part, all five of these settings are exactly the same. About all that we do on these first five settings is go to court and get the next court date, and not much else. It is a mystery to me why the first four settings are called “announcement” or “plea” settings. We don’t “announce” anything on the announcement settings, and we don’t plea anything on the plea settings. In my opinion, these court dates should just be called the 1st, 2nd, 3rd, 4th, and 5th settings, because they all have the same function.
With the judge’s permission, a defendant can get a 6th, a 7th, or maybe even a 10th preliminary setting, if we have a good reason for doing so. One reason would be if the prosecutors can’t find a video or copies of the police report. Another would be if the defendant is in the military and stationed overseas, or in rehab.
The courts give us these first five court dates so that the lawyer can obtain discovery (copies of whatever evidence is available), and can also get paid to handle the case. In DWI cases, the discovery is generally one or more videos and the various police reports.
Until there is a trial date or a pre-trial hearing, nothing much happens on your preliminary court dates. All of the action at this stage of the preparation is done between the court dates. That’s when we get copies of the police reports and videos.
In Dallas County, until a trial has been scheduled, or a pre-trial hearing, the defendant is generally not required to be in court. There are a few exceptions. If an exception applies to you, we’ll let you know. Other counties in this area (Collin, Tarrant, Rockwall, Denton) require the defendant to appear on many, if not most of the preliminary settings, with Denton County being the most picky about it.
After each court date, we’ll send you copies of anything we have obtained, and inform you of the next court date, and whether or not you need to be in court. Except in rare circumstances, all that you have to do is show up in court when we tell you to. If we need you to do anything else, we will let you know.
If you’d like, we can schedule an appointment to discuss your case again once we have the police reports and the videos. The best time to do this is around 90 days after the first setting. By then we should have all of the discovery. Some people don’t want to see their video or discuss their case, which seems kind of odd to me, but that’s their choice. I’m not going to force them to come in. Call us if you want to set up a 90 day “case review” meeting.
WHAT HAPPENS ON YOUR TRIAL SETTINGS
In Dallas County, you’ll generally never know exactly when your case will go to trial until that morning. Most of the jury trial settings are on Mondays, Tuesdays, or Wednesdays at 9:00 am. You will be required to attend court on these settings. There will probably be about three or four jury trials scheduled in your court on the same day as yours. Each jury trial takes one to two days to try, so they can only do at most one jury trial a day. The other trials have to be rescheduled. Generally, the oldest case on the docket will be the one that gets called to trial. And typically, you have to be on the trial docket two or three times before your case is the oldest.
Your case may get called to trial on the first trial setting, or it might be called to trial on the 12th setting. We just won’t know until about 10:30 am that morning. We want to be ready to go to trial on every setting, if possible. Most cases go to trial on the third or fourth trial setting. There are some speedy trial issues if the State continuously resets your case. Occasionally we can get a case dismissed if the government does not give you a speedy trial. If you have a good reason, the judge may make your case a priority and give you a “special setting.” That doesn’t necessarily mean that your case will go to trial on that date, but it will have the top priority on that day.
Since we generally won’t know if we are going to trial until we show up that day, try to be flexible on your trial setting dates. If your schedule permits, take only that morning off, not the entire day. We should know for sure if your case is going to trial by 10:30 am that day. Hopefully, you would have time to call in to work and inform them that your half day off needs to be stretched to a day or a day and a half. Obviously, some people have more flexibility in their lives than others, and sometimes you just have to take the entire day off. If you do take the entire day off, try to have contingency plans so that you can be productive if your trial gets reset.
A Dallas trial starts with jury selection at about 10:30 am. That takes about two hours. Then there is usually a lunch break. At 1:30 or so, the trial starts and the State puts on their evidence and witnesses. I get to cross examine (question) each witness. Usually each witness is on the stand for one hour or less. After the last witness, both sides rest, and then we have final arguments, probably limited to about ten minutes per side. The jury is typically out thirty minutes to an hour. If there is a punishment stage, that usually lasts another hour to ninety minutes.
In counties other than Dallas, you normally know exactly when your trial will occur. In these “other counties,” there is a “trial announcement” setting on the Thursday or Friday before each trial setting. At the trial announcement setting, the judge informs everyone which cases are going to trial, and which cases are being reset. In “other counties,” you’ll generally appear for several trial announcement settings, but only one trial setting. In Dallas County, you appear for no trial announcement settings, but several trial settings.
HOW SHOULD YOU DRESS FOR TRIAL?
Research shows that the style of dress that merits the most respect is a plain white long sleeved collared shirt or blouse, with plain navy pants or skirt (you may notice that many trial lawyers dress this way). Plain light blue shirts are certainly acceptable and almost as good, as are any plain dark pants or skirts. Wearing a suit is certainly not required, but if you choose to, stay with plain navy, black, or gray. If you choose a tie, try to find a conservative one with some red in it.
If you are at all “scruffy,” try to clean up a little for trial. Get a fresh haircut, if needed, and make sure that you are freshly shaven, or at least have well-trimmed facial hair. Clothing should be ironed or pressed if possible.
A young client of mine got popped for a $4,000 fine in early 2011 because she was wearing $800 designer shoes and a $1,200 designer purse. The jury figured she could afford a large fine. Cover your tattoos to the extent possible and wear conservative make up. You want to blend in, not stand out. Your goal is to look like the average person as much as possible. It might be worth going to Target and buying a Timex watch to wear for the trial. Nothing says “I have no money” like a Timex watch!
During the trial, try to show a little emotion, but not too much. Force a smile a couple of times. Shake your head once or twice. Show some surprise or even a little outrage. Obviously don’t act like an idiot or interfere with the trial, but a little emotion is probably good. If you just sit there like a rock during the trial, you may get treated like a rock. Nobody cares what happens to a rock. To be treated like a human, you want to show some humanity.
During the breaks in the trial, if it’s within your personality, initiate conversations with the bailiff, the court reporter, and especially the prosecutors (not the judge, unless the judge addresses you first). Try to get the people in the courtroom to like you, especially the prosecutors. In my experience, it is much more difficult for prosecutors to do their jobs properly if they’ve come to like the person they are prosecuting. They may be prosecutors, but they are also human beings. It’s almost impossible for prosecutors to ask for a harsh punishment at sentencing if they think that you’re a really nice person.
Perhaps the best way to suck up to the prosecutors is to compliment them on their skill as a prosecutor during one of the first breaks. Everybody wants to be told that they are good at what they do. Prosecutors are no exception. Most misdemeanor prosecutors have been lawyers for less than three years, and many are still a little insecure about their legal skills. A well placed compliment can give them a very positive feeling about you, which has to interfere with their concentration on the case. (Yes, this is kind of sneaky – but it works like a charm! It can be very effective.)
As an example, you could say: “You seem to be very good at presenting these cases. How long have you been doing it?” Then follow that up with some dry humor, like: “Well, I don’t know about the jurors, but you’ve impressed me so far. I certainly wouldn’t mind it if you weren’t quite so impressive from this point forward…”
Or you could ask where they went to law school, or why they decided to become prosecutors. The point is to humanize yourself with the prosecutors. If you sit there quietly like a rock, they can prosecute you like they would a rock. Nobody cares about what happens to a rock!
IF WE DECIDE TO HAVE YOU TESTIFY:
Instead, you should say that you recall events differently, or that perhaps the other witnesses weren’t in the proper position to see what happened, or that they may have been influenced by what the other witnesses said at the scene. Find a polite excuse about how the other witnesses must have been mistaken. If anyone calls a witness a liar during your trial, it has to be me! (And don’t count on me doing it either, unless it is ridiculously obvious and absolutely necessary. It’s not polite to call somebody a liar, and the jurors will hold it against us). Quietly suggesting that the other witnesses “must be mistaken” makes the same point and is ten times more effective!
And this final thing has cost me more not guilty verdicts that probably any other thing:
Admit the obvious, don’t fight it!
If the video shows you speeding, or hitting a curb, or weaving from lane to lane, do NOT testify that you weren’t! If you admitted to drinking 5 or 6 beers on the video, don’t testify on the witness stand that you only had two! If you testify contrary to what is on the video, you will lose your credibility, and if that happens, you will almost certainly lose your case! Testify WHY you were speeding, or WHY you hit the curb. That is perfectly acceptable. If the officer says that he stopped you for running a red light, and it’s on the video, admit that you ran the red light! That won’t hurt you. It will actually build your credibility!
KEEP THIS INFORMATION AND REFER BACK TO IT FROM TIME TO TIME, ESPECIALLY THE DAY BEFORE YOUR TRIAL!
- John Gioffredi, (214) 739-4515