Houston Criminal Lawyer and DWI Blog – Scheiner Law Group, P.C.

Defending an Intoxication Assault case requires a skillful DWI attorney and an experienced accident reconstructionist working hard to fight for your freedom.  Intoxication Assault is found in section 49.07 of the Texas Penal Code and is a third degree felony. (2-10 years in prison).  In order for the Government to convict  a person of intoxicated assault, it must prove:

1.) the Defendant was intoxicated;

2.) the Defendant caused seriously bodily injury to someone

3.) because of the intoxication

The first prong is nothing more than simple DWI defense.  In alcohol related accidents that cause serious bodily injury, the police are allowed to get a blood  specimen without a warrant or consent of the suspect.  It is important to have a lawyer who is familiar with the proper technique and standards for obtaining a blood specimen.  It may also be necessary to obtain the services of a toxicologist to properly interpret the blood test.  If the government cannot prove intoxication, then the case stops right there.  No criminal act.

The second and third prong are so interwoven, but I think it is helpful to discuss them separately.  The cause of a car wreck is something that civil lawyers have been arguing over in the civil courthouse since the invention of the automobile.  There are many issues to debate.  Oftentimes there are no witnesses to the accident other than the two drivers.  When both drivers are pointing the finger at each other, you may need an accident reconstructionist to determine whose testimony is supported by the physical evidence.  If the government cannot prove beyond a reasonable doubt the Defendant caused the accident, then the INTOXICATION ASSAULT case stops.  There may still be a misdemeanor Driving While Intoxicated charge that could stand on its own.

The third prong is the Defendant’s fault in the accident is “by reason of that intoxication.”  Sober motorists have car wrecks all of the time for numerous reasons such as being distracted, being in a hurry, not seeing someone in his blind spot, being unfamilliar with a roadway and the list can go on and on.  If a person is intoxicated, the knee-jerk reaction for law enforcement is to attribute the fault to the intoxication.  Admittedly, this is the hardest prong to defend, but it is possible for an intoxicated person to cause and accident and the cause of it not be related to intoxication.

The softball example is if a defendant is drunk as a skunk, driving down the freeway, and his car mechanically fails, such as power steering goes out, brakes fail to function etc. and he has an accident and another person suffers serious bodily injury.  Then what?  In that case, there is nothing more than a misdemeanor driving while intoxicated case. 

– Matthew A. Skillern

admin Uncategorized

If you are arrested for Driving while Intoxicated in Harris County, Texas and are interested in the District Attorney’s Office DIVERT Program, the following will happen:

1. The District Attorney’s Office will evaluate your case.  This means that if the District Attorney’s Office finds that you are legally entitled to be in this country and that you have no prior convictions, you may be eligible for the DIVERT Program. 

2. If the District Attorney’s Office states that you may be eligible for the DIVERT Program, then a meeting with a Harris County Probation Officer will be scheduled. 

3. You will have to arrive at least an hour before the meeting time, because you will be asked to take a drug and alcohol evaluation and pay a $202 fee.  The interview with the Probation Officer lasts only about 15 minutes, but it is in your best interest to have an attorney present in the meeting.  After meeting with the probation officer, you will be asked to submit to a urine test.  If you fail the test, you will more than likely be disqualified from the DIVERT Program.

4. You will probably find out whether you have been accepted into the DIVERT Program before the next court date.

5. If you are accepted into the Program, then you will have to enter into a Contract with the Harris County District Attorney’s Office where you agree to, among other things, have Ignition Interlock installed in your car, attend a DIVERT Program orientation session, perform a specific amount of community service hours, report to your probation officer on a monthly basis, and not commit any crimes, excluding fine-only traffic violations.  The DIVERT Program can last between 1 year – 2 years, but you will be told about the exact duration of the Program before signing the contract.

6. After you, your attorney, and the prosecutor in your court signs the contract, then you will go before the Judge and give your plea of guilty.  If you fail to meet the conditions of the contract, the Judge may decide to take the plea of guilty you have already given and order you to go to jail and pay a fine.  He has the discretion, however, to place you on probation if he decides to do so.

7. If you successfully complete the DIVERT Program, then your case will be dismissed.

8. You may be eligible for an expunction 2 years after the dismissal of your case as long as you do not commit any crimes, excluding fine-only traffic violations.

admin Uncategorized

If you have questions about the Harris County DWI Divert Program, we certainly have answers.

The Divert Program is designed for first-time offenders.  Individuals who are charged with Driving while Intoxicated and have no prior convictions may be eligible for this program. 

The Divert Program is a form of probation, lasting from a period of 1 year to 2 years.  If the participants in the Divert Program succesfully complete the program, then the Harris County District Attorney’s Office agrees to dismiss the case.  Then 2 years after the case is dismissed, a request can be made to expunge, or in other words, destroy, any records associated with that particular DWI case.  However, if a person in the DIVERT Program commits any offense, other than a fine-only traffic violation, during the 2 years after completing the program, then he may not be eligible to have the records expunged.

If you are in the Divert Program and successfully complete the program and it is dismissed, your criminal record will still indicate that you have a dismissed DWI case.  The DWI charge will not be erased from your record simply because it has been dismissed.  The DWI case must be expunged before your record can be clear from that particular charge.

The DIVERT Program is not right for everyone, because it is a long process, but there is a bright light at the end of the tunnel for those who wish to pursue it.

admin Uncategorized