What happens when you go to court for your DWI? For most people, the answer is much less dramatic than they expect.
Your first court date is not your trial. You aren’t going to walk into the courthouse and immediately have witnesses testify about whether you were intoxicated. In fact, in Travis County, your first setting may involve little more than checking in without so much as entering the courtroom.
The first several settings generally give the attorneys time to obtain and review the evidence, discuss the case with the prosecutor, determine whether a negotiated resolution is possible, and identify any legal issues that need to be raised with the court.
And the process can take months.
This chapter is more local than most of the other sections in our DWI guide. Texas DWI law applies statewide, but every county has its own customs and procedures when it comes to moving criminal cases through the court system.
The process described below is how DWI cases generally move through the courts in Travis County.
Your First Setting Is Mostly a Check-In
When you are released from jail after a DWI arrest, your bond paperwork will ordinarily tell you when and where you need to report for your first setting.
Travis County calls this a first appearance.
For most people who have bonded out, the first setting is essentially a check-in with the court system. Depending on the court’s instructions and whether you already have an attorney, you may not even enter a courtroom. Check your paperwork for the room number, which is located in the Blackwell-Thurman Justice Center.
The important thing is not to ignore the setting.
Travis County maintains an online criminal docket that tells defendants when their cases are set and, importantly, whether they are required to appear at the courthouse. The County specifically instructs defendants to check the docket before coming to court because appearance requirements can vary by setting.
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What If I Don’t Have a Lawyer Yet?
Don’t panic because your first setting arrives before you have hired an attorney.
You can request additional time to obtain counsel. Courts understand that hiring a lawyer takes time. If you are still looking for an attorney, the case can generally be reset to give you additional time to hire one.
If you cannot afford an attorney, that is a different issue. You can ask to be screened for a court-appointed attorney. Travis County uses several indigent-defense providers, including the Capital Area Private Defender Service and the Travis County Public Defender’s Office.
The important point is that your first setting is not a deadline by which you must either have an attorney or defend the DWI yourself. If you need additional time to hire counsel, ask for it.
Your First Court Date Is Not Your DWI Trial
This causes more anxiety than it should.
When someone sees a date listed on the paperwork they received after getting out of jail, it is easy to assume:
“That’s when I have to go to court and fight my DWI.”
No. A DWI case ordinarily has multiple settings before it ever reaches trial. Early settings give the prosecutor and defense attorney time to work through the case.
During this period, we may be:
- obtaining discovery from the prosecutor;
- reviewing discovery
- obtaining breath or blood evidence;
- investigating witnesses;
- reviewing the legality of the traffic stop and arrest;
- discussing the case with the prosecutor;
- negotiating a possible resolution; and
- identifying pretrial motions that need to be filed.
Travis County itself describes ordinary docket settings as frequently being administrative rather than substantive. The attorneys may be discussing the case outside the courtroom, waiting on additional information, or attempting to reach a resolution. So if your attorney tells you that your case was “reset,” that does not mean nothing is happening. It usually means the case isn’t ready to be resolved yet.
Discovery Comes First
Before we can give meaningful advice about how to resolve a DWI case, we need to know what evidence the State actually has.
That is why discovery is so important.
In a typical Travis County DWI, discovery may include:
- offense reports;
- body-camera video;
- dash-camera video;
- 911 calls;
- field sobriety test video;
- photographs;
- witness statements;
- breath-test records;
- blood-test results;
- blood-draw records;
- laboratory documentation; and
- other evidence collected during the investigation.
We want to review that evidence before making important decisions about the case.
The police report may say that someone performed poorly on field sobriety tests. The body camera may tell a different story. An officer may describe someone’s speech as slurred. The recording may allow us to hear it ourselves. The State may have a blood result over .08. That still leaves questions about the blood draw, warrant, laboratory analysis, timing, and what the result actually proves. The early court settings give us time to obtain and evaluate that evidence.
Sometimes We’re Waiting on the Blood Test
Blood cases can move more slowly.
When police obtain a blood specimen after a DWI arrest, the final BAC result may not be available when the criminal case first reaches court.
We may therefore have a pending DWI case without knowing what the State’s blood test supposedly shows.
That matters.
A BAC result can affect how the prosecutor evaluates the case. It can affect the precise charge. It can affect plea negotiations. And, obviously, we need to see the laboratory evidence before deciding how it affects the defense.
So sometimes the appropriate thing to do is simply wait for the lab. If the State decides to also test the blood for drugs, they typically send it to a DPS lab, which takes even longer.
Travis County acknowledges that criminal cases requiring laboratory testing can continue to be reset while the parties wait for results and that laboratory delays can last several months. This is one reason a Travis County DWI case may seem quiet for a while after the arrest.
Do I Have to Personally Go to Every Court Setting?
Not necessarily.
This is another area where Travis County practice is important.
Some settings require the defendant to personally appear. Others can be handled by the attorney without the client standing in the courtroom. Individual Travis County courts can also have their own procedures. For example, some courts maintain attorney-only dockets in addition to settings where all parties must appear.
Travis County’s online docket specifically includes an “Appear at Courthouse” field, and the County instructs defendants to check the docket the day before a setting to determine whether they are required to appear. This field is not always accurate.
If we represent you, we will tell you when you need to be there. If you do not have an attorney, don’t assume that you can skip a setting. Follow the court’s instructions and confirm your appearance requirement.
What Happens During the First Few Court Settings?
Usually, there isn’t one dramatic event.
The case develops gradually.
We obtain discovery. We investigate the evidence. The prosecutor evaluates the case. We identify problems with the State’s evidence. We discuss possible resolutions.
Sometimes we need additional discovery. Sometimes we’re waiting for blood results. Sometimes we need records from another agency. Sometimes the prosecutor needs time to review an issue we’ve raised. Sometimes we need to file a motion and have the judge decide a legal question. And sometimes we’re negotiating.
The result is that a DWI case can have several court settings without the defendant ever seeing anything that resembles what people imagine when they hear the word “court.”
Plea Negotiations
Most criminal cases involve plea negotiations at some point.
That does not mean you have decided to plead guilty. It means we need to know what the State is offering while we independently evaluate whether the State can prove the case.
The prosecutor may make an offer early in the case. We may reject it. We may make a counteroffer. New evidence may change the prosecutor’s position. A legal problem with the traffic stop, blood draw, or another part of the investigation may change the value of the case. At the same time, we may be developing mitigation that gives the prosecutor additional reasons to consider a better resolution.
Negotiation and trial preparation aren’t mutually exclusive. A properly prepared case can be moving toward trial while the attorneys are still discussing whether there is an acceptable way to resolve it.
Pretrial Motions
Some DWI cases involve legal questions that need to be decided by the judge.
That can include motions concerning:
- the legality of the traffic stop;
- reasonable suspicion;
- probable cause for the arrest;
- search warrants;
- blood draws;
- statements made to police;
- admissibility of evidence; and
- other constitutional or evidentiary issues.
A pretrial motion can sometimes substantially change a case. If important evidence was obtained illegally and the judge suppresses it, the State may no longer have the same case it had before the hearing. Not every DWI requires extensive motion practice. The motions we file should be driven by the actual facts and evidence in the case.
How Long Will My Travis County DWI Case Take?
There isn’t one answer.
It is common for a DWI case to remain pending for months.
Cases involving blood testing can take longer because the attorneys may be waiting for laboratory results before meaningful negotiations or litigation can occur. More complicated cases can take longer still.
A delay does not necessarily mean there is a problem with your case. Criminal cases move according to court schedules, discovery, laboratory testing, negotiations, motions, and the availability of trial settings.
What If We Can’t Reach a Plea Agreement?
Then the case can be set for trial. A plea agreement requires an agreement. You do not have to accept the prosecutor’s offer simply because the State has made one.
If we believe the State’s offer is unacceptable, we can continue negotiating, litigate appropriate pretrial issues, or prepare the case for trial. Eventually, if there is no negotiated resolution and the case is not otherwise dismissed, the case proceeds toward a trial setting.
That is a very different stage of the case from the first few administrative settings described in this chapter. Trial involves jury selection, witnesses, exhibits, cross-examination, arguments, and ultimately a decision about whether the State has proven the DWI beyond a reasonable doubt.
We cover that process separately in Taking a DWI Case to Trial.