HOUSTON CRIMINAL DEFENSE & DWI DEFENSE ATTORNEY BLOG

Click on the link below to watch the KPRC Local 2 news story on Houston Police Officers being trained to draw blood of those accused of DWI.
Houston Police Officers: DWI Blood Draws

Yet, further illustration of the government and law enforcement officials violating privacy and constitutional rights (althought the U.S. Supreme Court and Texas Court of Criminal Appeals have basically ruled in favor of these blantant violation of our constitution). Let me say, that I am in no way supporting or condoning driving a motor vehicle while being intoxicated (notice how I didn’t say “drinking and driving”, since it’s not illegal to drink and drive, but to be “intoxicated” while driving), but I also don’t support the government being able to violate my rights and invade my privacy. I don’t trust the government when they stick their hands in my life or wallet, so why in the hell would I trust them when they are sticking a needle in my arm to draw blood as evidence to be used against me to prove the government’s case!!! Allow the government to keep taking away your rights and soon you want have any!

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DISCLAIMER: The hypothetical below assumes that an individual, such as Mr. Turner, is stopped for DWI here in Texas under current Texas state law.

Although drunk driving is no laughing matter and neither is being pulled over and being charged with DWI, I have to admit that this video of Mr. Turner is very entertaining and funny. A person stopped for DWI here in Texas under current Texas law actually can learn some valuable lessons from watching this video. First of all, Mr. Turner (if stopped for DWI under Texas law) was wise to refuse to perform any more field sobriety tests and refuse to submit to a breath test. He actually makes a valid point, that if the officer can’t perform the test, how can he, lol. Also, I like his defense of that he “might be drunk, but he was not driving”, although I would generally advise against making statements that you are drunk to law enforcement. However, he is correct because if he was in fact not driving the State can not convict him of DWI, because he was not operating a motor vehicle.

In addition, the video points out several things of what not to do. Importantly, don’t look or act like a belligerent individual. Remember that you are being videotaped, and that the prosecutor well use any evidence that the State can introduce to attempt to prove that even if they don’t have any evidence of chemical tests or field sobriety tests, that the State will use the video to illustrate that you do not have your normal physical and/or mental faculties to operate a motor vehicle by introduction of alcohol and/or drugs.

Just thought I would share some general tips, on an otherwise entertaining video of a DWI stop.

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Field Sobriety Tests are basically psycho-physical tests administrated by law enforcement officers when an individual is suspected of DWI. Field sobriety tests can vary from jurisdiction to jurisdiction nationwide. Some of these tests consist of reciting the alphabet backwards, counting backwards, and finger counting. However, the most accepted field sobriety tests are the three Standard Field Sobriety Tests (SFST). According to the National Highway Traffic Safely Administration (NHTSA), the SFST are scientifically validated tests that if administrated correctly are reliable in predicting whether an individual’s blood alcohol content (BAC) is greater than 0.10%. These three tests are the One-Leg Stand, Walk and Turn, and the Horizontal Gaze Nystagmus (HGN) test.

One-Leg Stand: According to the NHTSA, if instructed properly, the one leg stand test has a 65% reliability of predicting that an individual’s BAC is 0.10% or greater. An individual that is administered the one leg stand test must be properly instructed by the officer the following:

1. Stand with your feet together and your arms at your side
2. Keep that position until you are told to begin
3. The officer must ask if you understand the instructions and receive an acknowledgment from you that you do.
4. When told to start, raise either leg approximately 6 inches off the ground with your foot pointed out
5. Keep both legs straight, arms at side
6. Count 1,001, 1, 002, etc until officer instructs you to stop
7. Keep your arms at side and keep watching your raised foot
8. The officer must again ask if you understand the instructions and receive an acknowledgment from you that you do
9. The officer must then start the test
10. The test can last no longer than 30 seconds of actual time.

There are four scoring factors (clues) that officers look for when administering the one-leg stand test:

1. Sways while balancing
2. Arms for balance
3. Hopping
4. Puts foot down

Inability to complete the test occurs when an individual:

1. puts foot down three or more times, during the 30-second period; or
2. cannot perform the test.

Walk and Turn Test: According to the NHTSA, if instructed properly, the walk and turn has a 68% reliability of predicting that an individual’s BAC is 0.10% or greater when there or two or more “clues” indicated, or the test cannot be completed. An officer must properly instruct an individual, and the officer must demonstrate the following:

1. Place your left foot on the line
2. Place your right foot on the line ahead of your left foot, with the heel of your right foot against toe of your left foot
3. Keep your arms to your side
4. Keep this position until you are told to begin
5. The officer must ask if you understand the instructions and receive an acknowledgment from you that you do.
6. When told to start, take 9 heel-to-to steps, turn, and take 9 heel-to-steps back
7. When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot
8. While walking, keep arms at side, watch feet at all times, and count steps out loud
9. Once you start, don’t stop until test is completed
10. The officer must ask if you understand the instructions and receive an acknowledgment from you that you do.
11. Begin the test and count first step from the heel-to-toe as “one”.

There are eight scoring factors (clues) that an officer is observing for the Walk and Turn test:

1. Cannot keep balance while listening to instructions
2. Starting before instructions are finished
3. Stopping while walking
4. Did not touch heel-to-toe
5. Stepped off line
6. Used arms for balance
7. Improper turn
8. Incorrect number of steps

Horizontal Gaze Nystagmus (HGN) test: According to the NHTSA, if properly instructed, the HGN test is the most reliable SFST of predicting that an individual’s BAC is 0.10% or greater. The HGN test is said to be reliable 77%, if four or more “clues” are present. An officer must instruct an individual the following:

1. I am going to check your eyes
2. Keep your head still and follow the stimulus (usually a pen or officer’s finger) with your eyes only
3. Keep following the stimulus with your eyes until the officer tells you to stop.

There are six scoring factors for the HGN test (one for each eye):

1. The Lack of Smooth Pursuit; do the eyes bounce as they follow a smoothly moving stimulus.
2. Distinct Nystagmus at Maximum Deviation; distinct nystagmus will be evident when the eye is held at maximum deviation for a minimum of four seconds
3. Onset of Nystagmus at Prior to 45 Degrees; officer is observing for the point at which the eye is first observed jerking.

Important tips regarding SFSTs:

1. An individual as a Right to Refuse to submit to these tests.
2. Any field sobriety testing must be fair and must be strictly administrated according to the NHTSA standards.
3. A sober person can fail the SFSTs, thus a failing grade on any of the SFSTs is not always an indication of intoxication. In fact, there may be several factors that contributed to failing the SFSTs that the officer failed to account for when administrating the tests, such as underlying medical, mental, and physical disorders.
4. An DWI attorney may be able to challenge the validity and reliability of any field sobriety testing.

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The consequences and penalties of a DWI charge and/or conviction are detrimental and costly for Class C drivers (non-commercial drivers). However, the consequences for a DWI charge and/or conviction are may be even worse for holders of Class A or B commercial driver’s license (CDL). A DWI conviction will certainly led to a one (1) year suspension of an individual’s CDL, thus leading to lose of a the driver’s job. In addition, unlike a non-commercial driver, a CDL holder is not eligible to apply for an occupational license pursuant to Section 522.086 of the Texas Transportation Code. See Section 522.081 of the Texas Transportation Code below pertaining to violations, including DWI arrests/convictions, that would disqualify a CDL holder from driving a commercial motor vehicle and lead to a suspension of a CDL.

Sec. 522.081. DISQUALIFICATION.

(a) This subsection applies to a violation committed while operating any motor vehicle, including a commercial motor vehicle. A person who holds a commercial driver’s license is disqualified from driving a commercial motor vehicle for:

(1) 60 days if convicted of:

(A) two serious traffic violations that occur within a three-year period; or

(B) one violation of a law that regulates the operation of a motor vehicle at a railroad grade crossing; or

(2) 120 days if convicted of:

(A) three serious traffic violations arising from separate incidents occurring within a three-year period; or

(B) two violations of a law that regulates the operation of a motor vehicle at a railroad grade crossing that occur within a three-year period.

(b) This subsection applies to a violation committed while operating any motor vehicle, including a commercial motor vehicle, except as provided by this subsection. A person who holds a commercial driver’s license is disqualified from driving a commercial motor vehicle for one year:

(1) if convicted of three violations of a law that regulates the operation of a motor vehicle at a railroad grade crossing that occur within a three-year period;

(2) on first conviction of:

(A) driving a motor vehicle under the influence of alcohol or a controlled substance, including a violation of Section 49.04 or 49.07, Penal Code;

(B) leaving the scene of an accident involving a motor vehicle driven by the person;

(C) using a motor vehicle in the commission of a felony, other than a felony described by Subsection (d)(2);

(D) causing the death of another person through the negligent or criminal operation of a motor vehicle; or

(E) driving a commercial motor vehicle while the person’s commercial driver’s license is revoked, suspended, or canceled, or while the person is disqualified from driving a commercial motor vehicle, for an action or conduct that occurred while operating a commercial motor vehicle;

(3) for refusing to submit to a test under Chapter 724 to determine the person’s alcohol concentration or the presence in the person’s body of a controlled substance or drug while operating a motor vehicle in a public place; or

(4) if an analysis of the person’s blood, breath, or urine under Chapter 522, 524, or 724 determines that the person:

(B) had an alcohol concentration of 0.08 or more while operating a motor vehicle, other than a commercial motor vehicle, in a public place.

(c) A person who holds a commercial driver’s license is disqualified from operating a commercial motor vehicle for three years if:

(1) the person:

(A) is convicted of an offense listed in Subsection (b)(2) and the vehicle being operated by the person was transporting a hazardous material required to be placarded; or

(B) refuses to submit to a test under Chapter 724 to determine the person’s alcohol concentration or the presence in the person’s body of a controlled substance or drug while operating a motor vehicle in a public place and the vehicle being operated by the person was transporting a hazardous material required to be placarded; or

(2) an analysis of the person’s blood, breath, or urine under Chapter 522, 524, or 724 determines that while transporting a hazardous material required to be placarded the person:

(A) while operating a commercial motor vehicle in a public place had an alcohol concentration of 0.04 or more, or a controlled substance or drug present in the person’s body; or

(B) while operating a motor vehicle, other than a commercial motor vehicle, in a public place had an alcohol concentration of 0.08 or more.

(d) A person is disqualified from driving a commercial motor vehicle for life:

(1) if the person is convicted two or more times of an offense specified by Subsection (b)(2), or a combination of those offenses, arising from two or more separate incidents;

(2) if the person uses a motor vehicle in the commission of a felony involving:

(A) the manufacture, distribution, or dispensing of a controlled substance; or

(B) possession with intent to manufacture, distribute, or dispense a controlled substance; or

(3) for any combination of two or more of the following, arising from two or more separate incidents:

(A) a conviction of the person for an offense described by Subsection (b)(2);

(B) a refusal by the person described by Subsection (b)(3); and

(C) an analysis of the person’s blood, breath, or urine described by Subsection (b)(4).

(e) A person may not be issued a commercial driver’s license and is disqualified from operating a commercial motor vehicle if, in connection with the person’s operation of a commercial motor vehicle, the person commits an offense or engages in conduct that would disqualify the holder of a commercial driver’s license from operating a commercial motor vehicle, or is determined to have had an alcohol concentration of 0.04 or more or to have had a controlled substance or drug present in the person’s body. The period of prohibition under this subsection is equal to the appropriate period of disqualification required by Subsections (a)-(d).

(f) In this section, “felony” means an offense under state or federal law that is punishable by death or imprisonment for a term of more than one year.

(g) A person who holds a commercial driver’s license is disqualified from operating a commercial motor vehicle if the person’s driving is determined to constitute an imminent hazard under 49 C.F.R. Section 383.52. The disqualification is for the disqualification period imposed under that section and shall be noted on the person’s driving record.

(h) A disqualification imposed under Subsection (g) must run concurrently with any imminent hazard disqualification that is then currently in effect.

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Brief Overview of SB 328: Pertaining to DWI and other Alcohol-related Offenses

Senate Bill 328 adds the Nicole “Lilly” Lalime Act to amend provisions of the Alcoholic Beverage Code, Code of Criminal Procedure, and Transportation Code relating to operating a motor vehicle or watercraft while intoxicated or under the influence of alcohol. The bill redesignates the offense of driving under the influence of alcohol by a minor as driving or operating a watercraft under the influence of alcohol by a minor, expands the conditions that constitute that offense, and includes an offense prohibiting the operation of a watercraft within the definition of “alcohol-related or drug-related enforcement contact.” The bill authorizes any magistrate who is a licensed Texas attorney to issue a search warrant to collect a blood specimen from a person who is arrested for a certain intoxication or alcohol offense and refuses to submit to a breath or blood alcohol test and increases from $50 to $100 the fee to reinstate a driver’s license suspended due to the commission of a certain intoxication offense. The bill includes the offense of driving while intoxicated with a child passenger in provisions relating to the requirements for the automatic suspension of a license, the suspension of a license of a person younger than 21 years of age, and the suspension of a license because of intoxication offenses. The bill includes an offense of driving while intoxicated with a child passenger and boating while intoxicated in provisions relating to an administrative suspension of a driver’s license for failure to pass a test for intoxication, modifies the circumstances under which a peace officer must require the taking of the specimen of a person’s blood or breath, and amends certain provisions regarding liability for purposes of the taking of a blood specimen.

This bill went into effect on September 1, 2009.

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Section 49.01(2) of the Texas Penal Code:

“Intoxicated” means:

(B) having an alcohol concentration of 0.08 or more.

Just a few things that are important to point out under this definition. First, the State does not have to prove that you are “drunk” in a DWI case. Under subsection (B), the State need only prove by proof beyond a reasonable doubt that your blood alcohol concentration (BAC) was 0.08 or above. This illustrates why in most cases I would advise individuals to refuse any breath or blood tests requested by law enforcement, because you might not be “drunk”, but a breath/blood test might show you with BAC at or above 0.08.

Even if you have a BAC lower the 0.08, the State could still choose to charge an individual with DWI under subsection (A). So there may be cases in which an individual is below the legal limit, but still might be charged with DWI, if they perform poorly on the Standard Field Sobriety Tests (SFSTs). Again, if you are stopped and suspected of DWI, I would politely refuse to perform the SFSTs.

Furthermore, section 49.01(2)(A) also states that you are “intoxicated” if your normal physical/mental abilities are diminished by the introduction of drugs or a combination of alcohol and drugs, this includes the use of illegal drugs, over the counter drugs, and prescription drugs. A lot of people, including some attorneys, are not aware that a person can be charged with a DWI while operating a motor vehicle under the use of prescription drugs and/or other controlled substance. Subsection (A) does not require that an individual have introduced alcohol into the body to charged with DWI. The State could accuse you of having a diminished physical/mental capacity due to the introduction of medications prescribed by your doctor or taken over-the-counter. Of course in these cases, the State has to prove whether the medication or controlled substance actually diminished your normal physical/mental capacity to state that you are “intoxicated”. The State often uses a Drug Recognition Expert (DRE) to attempt to prove these types of DWI cases.

To briefly summarize, there are several aspects of “intoxication” in a DWI case, that the average person might not realize. “Intoxication” does not equal “drunk”. Generally, it’s advisable to refuse to submit to any field sobriety testing or any breath/blood testing. Don’t give the State any evidence to help them prove their DWI charge against you.

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We are now a few weeks into the implementation of the Harris County DA’s DWI DIVERT program. Just a few of my thoughts regarding the program so far.

1) No one really knows the procedure for the program. I have spoken with several different Assistant DA’s regarding the DIVERT program, and have gotten several different answers. What that suggests to me is that this program was launched with very little communication between the top level people at the DA’s Office and the Assistant DA’s. Of course all the confusion is frustrating to defense attorneys, because we have to go back and try to explain the details of a program which no one is really sure about to our clients. The procedure from what I have gathered seems to be that defendants charged with DWI 1st offense are screened and determined whether they are eligible for the program. Those defendants eligible and interested in the DIVERT program are then given an evaluation to determine the extent of their drug/alcohol issues and whether they are “accepted” into the DIVERT program. Of course, the cost just to take the evaluation is around $200. After the evaluation, the next step for those accepted is that a diversion contract with specific terms is drafted. At this point, the defendant with the advice of his/her attorney can decide to enter into this contract or decline the offer. If a defendant declines the offer, then a defendant is basically can either accept the DA’s offer of 30 days in Harris County jail, going to the judge with no plea recommendation from the State, or setting the case for trial. I would suggest taking the case to trial given the other alternatives offered for those declining the DIVERT program.

2) Even if your client is eligible, you should really evaluate whether the DIVERT program is a better option than proceeding to trial. Clients should understand that terms and the costs of the DIVERT program are not going to easy or cheap. Like I mentioned earlier, it costs around $200 just to take the initial evaluation. Those defendants that enter the DIVERT program will incur costs for such things as alcohol/drug counseling, ignition locks, drug testing, monthly administrative costs, as well as other costs. Not to mention to the value of the person’s time in having to comply all these requirements. I personally would only use the DIVERT programs for those defendants where the facts and the law are really not in the favor, and that the DIVERT program would be a better option than the other alternatives. However, if you have a client with a good sets of facts on his/her side, I would urge that client to go to trial on that case given the terms and costs of the DIVERT program. Also, going to trial is certainly much better than any of the other options outside of the DIVERT program.

3) There are some potential legal/ethical issues regarding the DIVERT program. Unlike other pretrial diversion programs, those defendants entering into the DIVERT program must sign a judicial confession regarding the facts of the arrest. Generally, if a defendant is unable to fulfill the terms of pretrial diversion contract, that defendant basically starts off at scratch with underlying criminal offense. Under the DIVERT program, if a defendant is unable to fulfill the terms of the contract, the State now has a signed confession from the defendant that they can use against the defendant. Basically, the DIVERT program is requiring that individuals waive certain constitutional rights that they would not have to waive in other types of pretrial diversions.

In addition, the DA’s office initial offer for those either not eligible for the DIVERT program or those not interested in the program is minimum 30 days jail in Harris County. I thought the purpose of the program was to help with overcrowding of the jails for 1st time offenders and to help decrease the number of these types of cases going to trial and crowding the dockets. I believe that the DA’s new plea recommendations for DWI cases will actually increase the number of DWI 1st offense cases going to trial. I guess they believe that they can coerce people into entering the DIVERT program by scaring people with the thought of 30 day jail sentence. The DA’s office even went to the judges to try to get them on board with their new plea recommendations. Of course, many defense lawyers believe that these tactics are questionable to say the least.

Lastly, there is an issue as to whether a client that completes the DWI DIVERT program is then eligible to have his/her record expunged. I mean the ultimate goal of a person entering the program would be to have it expunged from their record. However, one of the terms of the DIVERT contract is that the defendant promises to wait two (2) years before they file a petition to have the records expunged, and after that two (2) years the DA’s office will not object to expungement. In addition, the DA’s office can not guarantee a defendant or defense counsel that even if they wait for two (2) years whether or not it will be expunged. The reason is because the DA’s office is not sure whether DPS, one of the agencies responsible for maintaining criminal records, will view the DIVERT program as a diversionary program or treat it more like Deferred Adjudication. If it’s treated more like a deferred, then a defendant would not be eligible to have the DWI expunged. Furthermore, that would raise the issue as to whether the DA’s office would have the legal authority for such a program if it is viewed as a type of deferred adjudication, since the Texas legislature has made it clear that deferred adjudication is not allowed from DWI offenses.

I think that the DIVERT program is a good idea, but there were some issues that should have been addressed in greater detail before the commencement of the program. The program may still be a better alternative for some defendants, but a defense attorney should really evaluate and investigate a clients case to determine whether DIVERT is actually a better option than going to trial in certain cases, and not be coerced into the program.

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Currently, a DWI conviction will result in an individual having to pay DPS an annual surcharge for three (3) years from the date of the conviction. The surcharges for a DWI conviction include:

1st Conviction: License Suspension from 90 days to 365 days;
2nd Conviction: License Suspension from 180 days to 2 years.

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In Texas, if your license is suspended for any reason you have a right to request an ALR hearing. An ALR hearing is basically an informal mini-trial to determine if your license was or is about to become suspended for a legitimate reason. In a DWI case, an ALR hearing is a useful tool to determine how good the State’s case is against you. You get to subpoena the officers and experts to the ALR hearing, and take their testimony. This is very helpful in determining what route you should take in your DWI defense, and what evidence that the State has against you. This is evidence that you likely will not uncover prior to the time of your criminal DWI trial.It can help to keep you from being surprised,and can help in defending your DWI case. If you intend to fight your DWI, you should consider asking for an ALR hearing. You have 15 days from the date of service with the notice of suspension letter to request an ALR hearing.

An ALR hearing may also be requested for drivers that have received notice of a license suspension due to habitual traffic ticket convictions, failure to maintain financial responsibility and causing an accident, and other criminal and traffic law violations.

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Generally, the penalties for DUI as a minor, in addition to suspension of your driving license, include:

3rd Offense: Class B misdemeanor. For a third offense the minor will still be required to complete between 40 and 60 hours of community service, however deferred adjudication is no longer an option. As with the first two offenses the minor will be required to attend an alcohol awareness program within 90 days of your conviction, and if the minor is under age 18 a parent or guardian will be required to attend both the minor’s court appearances and the alcohol awareness program. If, on the other hand, the minor is 18 years of age or older at the time of his third offense, the penalty is much higher. Specifically, the minor will receive a fine ranging from $500.00 to $2,000.00; confinement in jail for up to 180 days; or both a fine and some jail time in addition to a license suspension.

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