Frequently Asked Questions

You are arrested when law enforcement officers take you into custody or otherwise deprive you of your freedom of movement in any significant way in order to hold you to answer for a criminal offense. You may, in fact, be under arrest even though no one has actually used the word “arrest.”

• You have the right to remain silent.
• If you choose to speak, anything you say can be used against you in court.
• If you decide to answer any questions, you may stop at any time and the law requires all questioning to cease.
• You have a right to consult with your attorney before answering any questions. You have the right to have your attorney present if you decide to answer any questions, and if you cannot afford an attorney, one will be provided for you or appointed for you by the court without cost to you before any further questions may be asked.

You have a right to know what crime or crimes with which you have been charged. You have the right to communicate by telephone with your attorney, family member, or bail bondsman as soon after you are brought to the police station as practical. The police have a right to complete their booking procedures before you are allowed to use the telephone.

If there is a reasonable suspicion that you may be involved in criminal activity, a police officer may require you to identify yourself and explain your presence at a particular time.

If the officer has reasonable grounds to believe that you are armed and/or that you may be dangerous, he or she may conduct a limited pat down of your outer garments for the purpose of detecting weapons.

The officer may ask you questions pursuant to an investigation. You have a constitutional right to not answer them, but if you refuse to identify yourself, the officer may have grounds to make an arrest. At the conclusion of this temporary detention, the officer must either arrest you or let you go.

A police officer may arrest you at any time if there is a warrant for your arrest or if they have knowledge that a warrant for your arrest has been issued.

A police officer must show the warrant to you as soon as possible and inform you of the offense charged.

A police officer may make an arrest without a warrant only under certain limited circumstances in Texas. An officer may arrest anyone who commits an offense in the officer’s presence or within the officer’s view. An officer may arrest a person if informed by a credible person that a felony has been committed and that the offender is about to escape and there is no time to get a warrant. Examples of felonies include the more serious crimes such as murder, rape, robbery, burglary, and trafficking narcotics.

The officer may employ all reasonable and necessary force to overcome resistance in making a lawful arrest. Resisting arrest or obstructing or interfering with an officer in the performance of the officer’s duty may be a criminal offense. You could be convicted of either of these crimes, even if you were found not guilty of the crime for which you were arrested.

If you are arrested in your home, officers may conduct a limited search of the immediate area where you are arrested without a search warrant. They may also check the rest of the house for any accomplices. They may seize any contraband, stolen property, and/or evidence of a crime discovered in plain view in any portion of the house where the officers have a right to be.

When you are arrested while driving your automobile, the officers may make a limited search of your car at that time for the purpose of discovering weapons which might be used against them. They may not make a general search of your automobile unless there is independent probable cause that the vehicle is carrying evidence of crime or contraband. If a search is requested by an officer, you are not required to give consent.

You may object to a search or police procedures, but always do so respectfully and do not physically resist the officer’s actions.

1. The officer will take you to a police station, jail, or other detention facility.
2. Upon arrival at the jail or shortly thereafter, you will be afforded the opportunity to contact an attorney.
3. You will be advised generally as to the charges against you.
4. You may be required to:
   • Participate in a lineup,
   • Prepare a sample of your handwriting,
   • Speak phrases associated with the crime with which you are charged,
   • Wear certain clothes, and/or give a sample of your hair, blood, etc.
5. YOU SHOULD REQUEST TO HAVE YOUR ATTORNEY PRESENT DURING ANY OF THE PROCEDURES BELOW:
   • You may also be required to be fingerprinted and photographed.
   • You must be taken before a magistrate (a court official that may exercise some functions of a judge) within a short time of your arrest. The magistrate will inform you of the charge filed against you and your rights.

If you are booked into a jail, the police may take money and property from you for safekeeping. They will carefully inventory your money and property and give you a copy of the inventory.

At the time of your release or at the conclusion of your case, your property that was not seized as evidence in the case will be returned to you. You will be given an opportunity to sign the property list. Make certain the list includes all the items taken from you.

If you’re not acquainted with a lawyer and have no lawyer whom you would call, contact The Law Offices of Tad Nelson & Associates today to set up your initial interview with our expert legal team.

If you’re arrested for drunk driving, we have at least 3 options for dealing with the charge within the confines of Texas law. We can attempt to get the case dismissed, work out a deal with the Harris County Dist. Atty’s Office, or we can fight the charge, head-on, in a full-blown trial.

Absolutely. The Law Offices of Tad Nelson & Associates wields a distinctive set of credentials, training, and is an asset to anyone facing criminal charges related to DWI in Houston. Although every case is different, we also have a solid record of winning in court for our clients.

In short, yes. In reality, there are a number of different factors involved in each and every case we’ve seen in our experience as Houston DWI attorneys. Probation is usually a possibility for most persons that are convicted of DWI in Houston. However, there are no guarantees.

A determination on jail sentencing is the sole priority of the court within the guidelines of Texas criminal law. Depending on the frequency of DWI offenses incurred by the defendant, and the severity of additional factors, a jail sentence could be as short as a few days, to life.

As a matter of fact we can. The Law Offices of Tad Nelson & Associates is among the premier law firms in Texas for DWI defense. Both lawyers on our Houston DWI defense team are Certified ACS/CHAL Lawyer-Scientists, with Tad Nelson holding a Board Certification.

In Texas, if you’re arrested for DWI or DUI, the process of Administrative License Revocation is initiated for the purpose of automatically suspending your Texas Drivers’ License. Houston DWI lawyer Tad A. Nelson may be able to intervene, and prevent TDL suspension.

Driving While Intoxicated (DWI) is a criminal offense that says a person may not drive a motor vehicle in a public place while “intoxicated.”

The Texas Legislature (Texas Penal Code (§724) 49.01) has defined a DWI as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body” or “having an alcohol concentration of 0.08 or more”.

A prosecuting attorney needs to prove only one of these statements to the jury in order to get a guilty verdict.

A person may be intoxicated in one of two ways. A person is intoxicated when, through the use of alcohol, drugs, a controlled substance or any combination thereof, loses the normal use of either his mental or physical faculties or has an alcohol concentration of .08 or more in his body.

The DWI statute refers only to the faculties of the person being arrested. “Normal” refers to a range of measurement of the faculties of the person arrested. This refers to the mental and physical faculties as judged by the arresting officer, not by the person being arrested. So as you can see, this is very much a subjective evaluation.

There is not one specific point at which an arresting officer can say, with certainty, that you are not “normal”, but rather a range. On a scale of 1 to 100, most people would fall between 25 and 75, but this is agitated by many factors, such as weather, road conditions, or general nervousness.

“Alcohol concentration” is defined by the statute as:

• The number of grams of alcohol per 100 milliliters of blood
• The number of grams of alcohol per 210 liters of breath; or
• The number of grams of alcohol per 67 milliliters of urine.

It is important to understand that because the amounts of alcohol of the above concentrations are not equal, a person may not be guilty according to one concentration but guilty according to another. Also, it is possible to be considered intoxicated according to alcohol concentration levels, but have no loss of either normal mental or physical faculties.

The Texas Penal Code stipulates that it is illegal to operate a motor vehicle with a Blood Alcohol Concentration of 0.08 or above in one’s body at the time of driving, not at the time of testing. This is of great concern for the accused because their BAC at the time of testing could be completely different than at the time of driving.

For example, suppose you have a couple of drinks in a short amount of time. Due to influences such as weight, stomach contents, etc., your body can only absorb so much alcohol at a time.

You are pulled over, and have a BAC of 0.04, then at the time of testing, you have a BAC of 0.1. According to the law, you were well within the limits, but this is just more ammunition for the arresting officer to take you to jail.

If you submit to chemical testing at the time of arrest and the test results come back with a BAC of less than 0.08, than you still get to keep your license for the time being.

If you submit to testing, the only way that you can have your license revoked is if you are convicted of the DWI in a court of law. Only then can you lose your license, and only for the stipulated duration of time dictated by your conviction. Read more about DWI Penalties.

If all of the tests are performed in a controlled environment, and are administered by a highly trained officer in the exact standardized manner, these tests can be a good indicator of intoxication. However, in reality these tests are never performed in this manner.

In a 1998 study, the National Highway Traffic Safety Administration retooled the field sobriety tests for the new 0.08 BAC levels, and they found the following results:

• Horizontal Gaze Nystagmus can correctly identify a subject who has a BAC of 0.08 or higher in 88% of the time
• Walk and Turn is correct 79% of the time
• One Leg Stand is correct 83% of the time

That means that, even under laboratory conditions, these tests are inaccurate 21%-12% of the time. Under realistic roadside conditions, these percentages drop dramatically.

In the lab conditions there are no passing cars, wind, flashing lights, or other distractions. In the real world, of course, these factors exist. Nonetheless, Texas courts allow non-standardized testing to be admitted as evidence against you.

The state of Texas allows law enforcement agencies to test an individual’s BAC by means of either a breath, blood or urine test. While these tests might sound accurate to the uninformed person, in reality they leave much to be desired.

The problems with the breath test include improper calibration of the machine, improper use, improper instructions to the user, and the fact the police are not required to save your breath samples for future testing by an independent laboratory (as they have the capability to do).

This is especially important if you are an innocent person who fails the breath test, then your results cannot be verified and you will immediately go to jail. Most, if not all law enforcement officers in the state of Texas will neglect to inform you of your right to have your breath test checked by an independent lab.

If you submit to the breath test, insist that your breath sample be saved for independent verification. If the officer refuses, request to speak with your Houston DWI lawyer or criminal attorney immediately.

Alcohol concentration testing in Texas is done using a machine called an Intoxilyzer 5000. This machine uses an infrared light to detect the amount of light absorbed by your breath.

The machine then compares this result to the amount of light absorbed by the ambient air, and that is your test result. If you blow a B.A.C. of greater than 0.08% or refuse the test altogether, you will face an immediate Administrative License Revocation (ALR).

By operating a motor vehicle on the roadways of Texas, you have given implied consent to submit to a breath/blood/chemical test. If you refuse these tests, than you are automatically subject to various surcharges and suspensions.

For the most part, these penalties are equal or greater than the penalties associated with a conviction for DWI.