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Samuel II
Samuel II, Attorney at Law
Category: Criminal Law
Satisfied Customers: 27011
Experience:  Handle criminal matters in both state and federal courts.
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My question is, what does it mean if I was sent a

Customer Question

My question is, what does it mean if I was sent a letter a few months ago for why I was taken to jail. It stated in the letter/citation "Suspicion of DUI" & that I refused to give a breathalyzer and/or blood sample. On Sunday morning of June 8th 2014 around 6:30 a.m. I totaled my truck. I was leaving my dads house heading home to get ready to go fishing. Long story short, I had 24" rims on my truck and and the front driver side had been leaking slow. I completely forgot about it when I was left and didn't check it. Well about 3 miles from my dads right at day break a decent size dog ran out I swerved to miss it. With the tire being low the rim caught the road and pulled me onto the shoulder and hit a newly paved road with an 8" elevation difference. Flipping my truck and landing in the open field. It was only me and no other damage was done. I had a cooler in the bed of my truck from the night before with beer in it and washer boards and they scattered everywhere. I can admit I hate beer and have never drank it. We had relatives from out of town at my dads and we had a few drinks the night before. With me not drinking beer I drank about 4 glasses of mixed drinks Crown and Coke. Everyone was laid down and asleep by midnight. So I don't know maybe my breathe still had the alcohol smell. The officer made me do several field test which I passed with ease. Even my dad who came to the scene said I did them better than her. Well she took me to jail anyways. We got to the station and she made me do more field test there and blow in the breathalyzer. I did not see the numbers but I did it 3 times. Was bonded out immediately. 2 weeks ago I got another notice for court saying Case #***** Date, and that it is a DWI now? Can you give me any advice on why it changed from a Suspicion of DUI to DWI and what I should do? Thank you so much, Eric
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Samuel II replied 2 years ago.
HelloThis is Samuel and I will discuss this and provide you information in this regard. I suggest that the charge could be changed based on the cooler of beer you say was present. And once the District Attorney/Prosecutor reviewed the police report they changed it to the DWI based on that. The Texas DWI law reads as follows: Sec. 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.(b) Except as provided by Subsections (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.(d) If it is shown on the trial of an offense under this section that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.
Expert:  Samuel II replied 2 years ago.
And so it will be up to the State to prove beyond a reasonable doubt that the beer in the cooler was an open container and also the other provisions necessary. However, I suggest that a skilled local attorney may be able to help minimize the penalties. And I suggest that you will want to at least consult with a local attorney on this matter since the penalty includes a mandatory minimum of at least 6 days if the state makes its case beyond a reasonable doubt.
Expert:  Samuel II replied 2 years ago.
Also please note that under the Statute "Open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.