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Legal-Guru
Legal-Guru, Criminal Justice Lawyer
Category: Criminal Law
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Experience:  Experienced Criminal Trial Attorney since 1998.
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If a person is charged with a DWI 3rd and the indictment states

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If a person is charged with a DWI 3rd and the indictment states that there are two priors with one being in Dallas county and one being in Collin county when actually both were in Collin county and were run concurrent as a dwi first is this grounds for acquittal
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Legal-Guru replied 1 year ago.
Welcome to JustAnswer. What stage is the criminal case? (i.e., set for trial, indictment just issued, etc)
Customer: replied 1 year ago.

Indictment was issued in June

Expert:  Legal-Guru replied 1 year ago.
Ok, thank you for the additional information.

It is not grounds for an outright acquittal because even without the prior DWI's, DWI is still a crime. However, if the case goes to trial and it is still incorrectly charged, it could result in a conviction for the lesser included offense of DWI 2nd which is a misdemeanor as opposed to a DWI 3rd which is a felony. The penalties for a DWI 2nd are obviously less than those for the felony DWI 3rd.

If the state realizes their mistake prior to trial, they will likely take the case back to the grand jury to correct the charge with a superseding indictment.
Customer: replied 1 year ago.

Thank you. Does it matter that the prior class A dwi was run concurrent with the class B misdemeanor with regards XXXXX XXXXX a reduction to DWI 2

Expert:  Legal-Guru replied 1 year ago.
Unfortunately, no. Even though the sentences were run concurrently, they are considered separate convictions for DWI enhancement purposes under Texas Penal Code 49.09(b)(2). (link below)

http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.49.htm
Customer: replied 1 year ago.

Last question and yes you have given excellent service. I do have counsel and the problems with the indictment were brought up along with the fact that they didn't obtain a warrant for the blood which he says he can get removed for that reason the breathalyzer wasn't calibrated and is inadmissible, however my video is not the best. I went in today and my counsel stated that the state caught their error on the indictment and wanted to correct it. Can the state just go in and correct the indictment at will? I know I'm reaching here but want to ensure I've exhausted all angles before agreeing the felony conviction

Expert:  Legal-Guru replied 1 year ago.
I certainly understand wanting a second opinion before pleading to a felony. I do not like being the bearer of bad news, but yes, the state can amend the indictment anytime prior to trial. It is done all the time.

In fact, there are mistakes in over half of the indictments I see. A product of both sloppiness and the sheer number of cases that are prosecuted.
Legal-Guru, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1359
Experience: Experienced Criminal Trial Attorney since 1998.
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