I meet a lot of people during consults. A lot of people who are going through the trauma of being arrested for a felony DWI case. They are ashamed, scared, sad, angry at themselves, and now facing the possibility of prison time. Whether it’s their 3rd, 4th, or 5th DWI, or a DWI with child, or an intoxication assault, they are all scared and wondering what to do next. I tell these potential clients to seek help immediately for possible substance abuse. I recommend they complete the most intense rehabilitation program that they can, and seek the advice of their PCP as well. Why?
You’ve got time before we go to court, you need to use it
We usually have a lot of time between a felony DWI arrest and going to court. Felony DWI cases almost always go before the grand jury before they are filed. You can waive a grand jury, but it’s rare. In Kaufman County it’s not uncommon for 4-6 months to pass between an arrest for felony DWI and an indictment. The State has to wait on blood results from the lab, and that can take a few months. If there is an accident, then they may need to gather medical records and the accident reconstruction can take time. Which means my client, who is looking at prison time since it’s a felony, can use their time to start treatment and rehab now.
Interlock isn’t enough to show you have quit drinking
If you are on felony DWI probation you almost certainly have an interlock in your vehicle, and most defendants think that’s enough to show they are sober now. Not really. Ignition interlock isn’t hard to get around if you still want to drink, you just don’t try to start the vehicle. Prosecutors know that people can still drink and it not show up on their deep lung device. Passing those tests is the minimum required to stay on bond, but it’s not very compelling evidence you have quit drinking.
It sets you apart from other defendants, in a good way
Most people on bond do nothing while their case is pending to address their substance abuse issues. If you are willing to go to rehab, counseling, AA, or start treatment for whatever underlying condition contributed to your DWI, without being forced to by probation, it shows you are serious about not drinking and driving again. Kaufman County, and many other counties have specialized DWI courts, and those usually involved intense treatment options. A great way to show you are a candidate for DWI court is by completing a treatment program, going to AA, and address the medical/mental health causes of your substance abuse.
You may find an untreated mental health issue
Substance abuse is often a sign of a mental health issue. We drink and use drugs because they make us feel great, and help us function in spite of the depression, anxiety, or past trauma. I’ve had many clients go to treatment and discover that once an underlying mental health issue was being treated, it was easier to stop drinking. Prosecutors in Texas are somewhat more open to the idea that mental illness can be treated on probation, and doesn’t require prison time. It’s been a glacially slow change in the “tuff on crime” world of super conservative prosecutors, but when I started in criminal law many prosecutors laughed at the idea that mental health issues would mitigate a defendant’s conduct. We have specialized mental health courts now, and if you have a treatable condition, you might find yourself in a mental health court rather than say, TDCJ.
It makes probation easier
The worst time to try and stop using a substance you have a history with, is when you start probation. Being on probation is stressful, and stress is one reason people drink and use drugs. If you have made any progress while on bond, then you will be miles ahead of other probationers. This might make your PO like you, and see you as someone who is going to be successful.
ou will have developed the skills you need to not use, and those will make the programs and classes probation require much easier to navigate. Dirty UAs and interlock/SCRAM violations are different for felony DWI cases than say, state jail dope. People can and do go to jail and/or prison if they don’t get clean on felony DWI probation.
It makes it less likely you will get arrested again while on bond
If you are on felony DWI bond and you get arrested for another DWI that’s a great way to go to prison.
Clients worry rehab will be used against them
Clients worry going to rehab is admitting guilt. First, the Texas Rules of Evidence specifically exclude statements made to treatment providers for drug and alcohol abuse. This is Texas Rule of Evidence 509(3)
(b) Limited Privilege in a Criminal Case. There is no physician–patient privilege in a criminal case. But a confidential communication is not admissible in a criminal case if made:
(1) to a person involved in the treatment of or examination for alcohol or drug abuse; and
(2) by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse.
Second, you don’t have to talk about your arrest to get treatment. You can discuss your history of substance abuse and not mention the case or arrest. It’s not uncommon for people in treatment or AA to say “my lawyer said not to discuss the case.”
Clients worry we can’t fight the case, or won’t fight as hard if they go to treatment
Getting the case dismissed is still plan A. Fighting the evidence and looking for ways to get you the best result is what we do. But going to Rehab is Plan B. It’s something we can hold on to in case we need it. In case the evidence leads us to believe a trial isn’t your best option. We won’t know that at the initial consultation, so going to treatment now gives you something you can control in case the evidence is bad in the future.