The National Highway Traffic Safety Administration has estimated that alcohol-related collisions represented 40% of total traffic deaths in the US. Most states have enacted severe laws in order to deal with the problem of impaired driving, and while the intent of these laws -removing dangerous drivers from public roads- is indeed noble, they may also allow and even encourage law enforcement officers to engage in practices that are constitutionally questionable. For example, police may conduct "sweeping stops" in which they pull over every vehicle passing through a certain point, regardless of a lack of probable cause. Or they can instigate programs such as the "no refusal weekend" in which judges may rubber-stamp warrants for blood tests on suspected offenders.
Nearly two million drunk-driving cases are filed by law enforcement officers around the country ever year. DWI/DUI cases represent the single largest category of criminal infractions of all reported cases, with about 200,000 more cases processed each year than all theft and larceny offenses combined.
Various departments of law enforcement often instruct their officers to watch for cars leaving popular nightspots, and they will almost always find the "probable cause" they need in order to stop a driver and start the DWI/DUI process rolling. Furthermore, law enforcement agencies have what are commonly called DWI/DUI Task Forces. These officers have extensive training and experience related to finding people who may be intoxicated, as well as training on how to testify against defendants charged with DUI/DWI. Prosecutors are also very experienced in trying DWI/DUI cases because so many citizens are charged with this crime.
In Texas and many other states the legal limit for intoxication is .08% Blood Alcohol Concentration (BAC). However, if an officer suspects your driving is impaired you can still be stopped and arrested for DWI regardless of your BAC. In most cases suspicion of DWI also gives the police a probable cause to search your vehicle.
If you are charged with Driving While Intoxicated or Driving Under the Influence in Texas, it is important to know that you have only 15 days from the date of arrest to request a hearing on your driver’s license. If you fail to request a hearing, your license may be suspended and you face the probability of paying huge fines for several years. It is important that you hire legal representation for this hearing to challenge the license suspension.In any Texas DWI Conviction the Texas Department Of Public Safety is authorized to place a surcharge on your driver’s license. This charge will range from $1,000.00 to $2,000.00 a year for three years. Depending on whether you provided a breath sample, and the results, you could be facing a $6,000.00 fee to keep your license. In addition to the criminal consequences of a DWI/DUI conviction you face other civil penalties including license suspension, making it difficult for you to travel to work and efficiently meet your daily obligations even before your day in court.
In Texas, "intoxicated" is defined as having (1) lost the normal use of your mental faculties, (2) lost the normal use of your physical faculties, or (3) having a blood alcohol concentration of 0.08 or greater. A jury must believe the State has proven one of these elements beyond a reasonable doubt; however, driving with a blood alcohol concentration over the limit of 0.08 is illegal regardless of the circumstances. BAC is determined by conducting a scientific analysis of the driver’s blood, breath, or urine.
If you have been charged with driving under the influence of drugs or alcohol, or driving while intoxicated, an experienced attorney has several areas to explore in preparing a defense.
Improper Stop and/or Detention:
If the officer suspects you are impaired, they will request that you take a series of field sobriety tests which you can, and should, refuse. Failure of a field sobriety test immediately provides probable cause to arrest you for DWI.
However, given the subjective nature of this proof standard, any physical signs of impairment may be sufficient probable cause for the officer to make an arrest. After an arrest occurs, it is best to refuse all further testing or interrogation to keep from incriminating yourself to the officer who already thinks he or she already has probable cause.
Both reasonable suspicion and probable cause are terms defined by constitutional law.
Reasonable suspicion is the standard that must exist before a law enforcement officer can pull you over for DWI or a traffic violation. A lesser standard of proof than probable cause, reasonable suspicion must be based on more than a hunch: there must be specific facts from which a rational inference is made. Basically, unless another reasonable person or officer could believe that a person is, has been, or is about to engage in criminal activity based on the circumstances present, the standard of reasonable suspicion does not exist.
Probable cause is a higher standard of proof: the presence of a reasonable amount of suspicion that is supported by circumstances strong enough to justify a prudent and cautious person's belief that certain facts are probably true.
An officer can stop you for DWI based on reasonable suspicion alone, but probable cause must exist for a DWI arrest to occur in Texas. If you believe that the police officer that stopped you for DWI did so without either, you may be the subject of an unlawful stop and you may have a valid defense which an experienced DWI attorney can use to fight your charges.
Without either reasonable suspicion or probable cause present in a DWI, you have been subjected to an unlawful stop and any related evidence may be dismissed. It is important remember that the judge determines whether reasonable suspicion and probable cause exist when a motion to suppress is submitted, not the law enforcement officer that made the stop. The judge is not allowed to view the police report and must make the determination based on testimony and any physical evidence, such as video.
Additionally, if the law enforcement officer violated your rights or failed to follow arrest procedures; i.e., they failed to read you your Miranda rights, denied your right to an attorney, or failed to advise you of the consequences for a DWI chemical test refusal, you may also have grounds for an improper stop.
Use of the "Field Sobriety Test" and Breathalyzer:The first "evidence" gathered by police officers after a stop for suspected DWI typically consists of field or roadside sobriety tests. These agility tests are supposed to indicate that the person suspected of drunk driving was actually impaired or in some way “a less safe driver.”
Recent scholarly studies have shown that field sobriety tests are not given uniformly, that there is no scientific basis for assuming they are valid, and that most officers either use the wrong tests or improperly instruct the suspect on how to perform the tests. A defense attorney can obtain a pretrial ruling that the tests and their alleged indication of impairment must be excluded from evidence due to lack of scientific foundation and faulty instructions.
Any other “observation” evidence from a police officer will generally be inconclusive and subject to interpretation. For example, bloodshot eyes can be caused by conditions other than drunkenness, including contact lenses, allergies, or lack of sleep. A defense attorney can analyze the evidence that will likely be presented and take the time to investigate the medical background of clients and the environmental contaminants they have been exposed to. Most alleged evidence of intoxication can be neutralized or eliminated from the state’s presentation with findings from this investigation.
In the overwhelming majority of drunk-driving cases in which police obtain a chemical test, an infrared breath analysis machine is used rather than a blood test. These machines are so unsophisticated that virtually no scientist would ever trust the results as a basis for scholarly research or scientific investigation.
If the officer was not certified to administer a Breathalyzer test or failed to follow the necessary procedures prior to the breath test, or if the device was not properly maintained, the test results will be inadmissible in court.
Contaminated Blood Tests:BAC tests, like any other type of forensic evidence, are not immune to challenge on a variety of grounds.
Vials used in collecting medical blood samples may lack anticoagulant and preservatives.The antiseptic used to cleanse the area may contain alcohol in amounts sufficient to produce measurable amounts of alcohol on a gas chromatograph. Also, while many jurisdictions have regulations and procedures governing blood testing, and despite the fact that most specifically prohibit using any alcohol solution as a skin cleanser, some of the swabs that are used in blood collection kits contain a substance known as benzalkonium chloride as an active ingredient. This compound contains approximately 2 percent (2%) or more ethanol concentration.
Swabbing the skin with ethanol before taking a blood sample for measuring blood ethanol concentration may increase the apparent blood ethanol level by up to 0.018 percent (g/dL), even if the skin is allowed to dry before the sample is taken.
The blood taken from a driving while intoxicated (DWI) suspect involved in an accident or car crash may also be contaminated if there was an intravenous fluid being administered at the time the blood was drawn.
Some police departments and state forensic laboratories analyze whole blood. Many hospitals and clinical laboratories routinely analyze only serum. Evidence of a client’s blood alcohol level indicating a result of 0.10 percent (g/dL) BAC may, in fact, reflect a true BAC of 0.08 to 0.09 g/dL if serum was used.
The human body eliminates the amount of alcohol by oxidation of the “poison” (alcohol) in the liver. Like any other foreign compound, alcohol is broken down by enzymes in the liver and gradually reduced until 100 percent is eliminated. Therefore, any disease process affecting the liver, such as hepatitis, will impair results. Also, any condition that causes “extracellular” water retention (heart disease or many forms of high blood pressure or diabetes, for example) will alter results.