Legal Question in Criminal Law in Texas

My 25 yr old son was arrested for DWI over 30 days ago, and he had been in the Potter County jail since then. He was NOT driving and the keys were not in the ignition, however, he was asleep in the car. He refused the breath and field sobriety tests and was taken to jail. He also was charged with possession of marijuana under and ounce, and he plead guilty to that charge and got time served, so that is not longer a factor. The DWI charge has not been filed yet, because it's still under investigation. He made trustee immediately and has been told he's the best one they've ever had. One guard told him that he couldn't believe they put that DWI charge on him because they had no evidence that he was driving. Other inmates have told him that they have to file the charge within 45 days of incarceration, or it can be dropped. Neither he nor I can afford an attorney, and they have not provided him with one to speak with yet. What recourse, if any, does he have? Can he demand to speak to an attorney provided by the court? Is it true that they cannot hold him without charging him after 45 days? Is there a free or low income attorney available in my city of Amarillo, TX? Thank you for providing any and all information possible.

Maggie


Asked on 7/17/10, 10:02 am

1 Answer from Attorneys
Keith Engelke Law Office of S. Keith Engelke

I do not understand why your son is in jail if he has not been charged with DWI and had completed his sentence for possession of marijuana. I do not know offhand whether he must be released if not charged after 45 days.

If your son is charged with DWI and is indigent, the court should appoint him an attorney to represent him. Unless he waives his right to a lawyer and chooses to represent himself, which is never a good idea, the court cannot try him or sentence him.

It is possible that he has been charged and the court has provided him with an attorney, but the attorney has not chosen to visit him. You may be able to find out if he has been charged by contacting the jail. They can tell you if a bond has been set. Ask the jail to tell you the case number for the DWI and which court the case was assigned to. Call the court clerk and ask if an attorney has been appointed and who that attorney is.

The good news is that he should receive additional credit for the time he serves in jail as a trustee. In Bexar County, trustys get 2 extra days credit for every day they are in jail as a trusty. So if your son is in jail as a trusty for 30 days, and receives a 90 day sentence he could take care of the charge with his jail time if Potter County gives the same credit to trustys.

However, a DWI conviction has some consequences that your son should discuss with his attorney. He will need to decide whether he wants his attorney to fight the case or whether to do plea bargain.

It is good that he did not take breath tests or field sobriety tests and that the keys were not in the ignition. However the DA can still try to convince the jury that he had been driving. This probably explains the delay in charging him.

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Answered on 7/17/10, 10:48 pm


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