Houston, Texas DWI Lawyer: DWI Criminal Defense

In any Driving While Intoxicated (DWI) case, the prosecution must prove two primary facts:
1) the person being charged (the "defendant") drove a vehicle, and
2) at the same time, the defendant was "under the influence"—meaning that the person's ability to drive safely was affected to an appreciable degree by drinking alcohol, taking a drug, or a combination of alcohol and drugs. A DWI defense can be anything that proves one of these two elements wrong and prevents the prosecution from proving its case. A valid defense might also prevent the prosecution from introducing evidence at trial.

A significant part of the evidence against you in a DUI or DWI case will usually consist of the arresting officer's observations and impressions as to whether or not you were drunk. For example, the officer may testify about the way you were driving (uneven speeds, weaving, crossing the center line, running a red light, or hesitation going through a green light), how you looked and acted once your vehicle was stopped (bloodshot eyes, slurred speech, stumbling), or how you performed on field sobriety tests. If you can challenge the officer's observations or present evidence that might refute those observations, you may be able to knock a big hole in the prosecution's case.

In some cases, a defendant may be able to introduce witnesses who can refute the officer's "opinions" by testifying that you didn't drink anything before you got in the car, that you appeared to be sober, or that there were other circumstances involved; i.e., you ran a red light because you were distracted by conversation, not because you were drunk. You may also be able to counter the officer's decision that you had been drinking by offering valid explanations for how you looked or acted when you were pulled over. For example, you may be able to prove that you did not perform well on field sobriety tests because of physical impairments or because the instructions were confusing.You might claim that your eyes were bloodshot because of lack of sleep or allergies, or your speech was slurred because of lack of sleep or medications you take.
 
Most DUI and DWI cases start with a driver getting pulled over, so there usually isn't much argument over whether the defendant was actually driving. But if a police officer didn't actually observe you driving; i.e., the officer approached your idle car while you were behind the wheel in a parking lot, the issue might be debatable.

If the officer did not have legal justification to stop your vehicle and arrest you in the first place, or if the officer failed to follow proper legal procedures during the arrest, any evidence gleaned from the traffic stop or the arrest might be deemed "inadmissible" and kept out of a court case. This could leave the prosecution with no real case (for example, because breathalyzer results and the arresting officer's testimony couldn't be used as evidence), and the charges against you could be dropped.

"Probable Cause" means that the facts support an objective belief that the person to be arrested has committed a crime, or that a place or item to be searched bears evidence of a crime. The obvious question in probable cause is "How likely must it be that the defendant committed a crime, or that the place or item contains criminal evidence?"
If an officer did not have probable cause to stop your vehicle, detain you, or arrest you for drunk driving, then you may be able to keep any evidence obtained during the arrest from being admitted at trial. For example, if you believe you were stopped simply because of your race or ethnicity rather than because you were driving erratically or appeared to be intoxicated, you may be able to challenge the arrest.

In Texas, an adult who drives with a blood alcohol content (BAC) level of .08% or above is guilty of Driving While Intoxicated. For drivers under the age of 21, almost all states set the limit at .01% or .02%.
The police administer chemical tests to measure the BAC in your breath, blood, urine, or saliva, and the results of these tests are usually the main evidence entered in the prosecution's case against you. If you can successfully challenge the accuracy of these tests, the test results may be deemed inadmissible at trial. Vials used in collecting medical blood samples may lack anticoagulant and preservatives, the antiseptic used to cleanse the area may contain alcohol, and any disease process affecting the liver, such as hepatitis, will impair blood test results.
Also, when alcohol is consumed it can take from thirty minutes to one and a half hours to be absorbed by the body. This is influenced by the last time a person consumed food. This is a viable defense when your BAC would have been below the legal limit when you were driving, but by the time the breath or blood test was performed the level had increased beyond the legal limit.

A conviction of DWI or DUI can have serious effects on your employment, insurance costs and many other aspects of your daily life.
If you have been charged with impaired driving you need an experienced criminal defense lawyer. Contact Parnham & Associates today at 713.224.3967. Depending on the circumstances, we may be able to save your license.

Houston DWI Arrests: Why You Need a Lawyer.

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:

An arrest for DUI usually occurs in one of two circumstances; either the officer witnesses the operation of a vehicle in a manner which may indicate that the driver is impaired, or the officer stops the defendant for a regular traffic offense and then suspects that the driver is impaired during the course of the stop.
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.

Rising blood alcohol concentration: 

When alcohol is consumed, it can take from thirty minutes to one and a half hours to be absorbed by the body. This is influenced by the last time a person consumed food. This is a viable defense when your BAC would have been below the legal limit when you were driving, but by the time the breath or blood test was performed the level had increased beyond the legal limit.

A conviction of DWI or DUI can have serious effects on your employment, insurance costs and many other aspects of your daily life.
If you have been charged with impaired driving you need an experienced criminal defense lawyer. Contact Parnham & Associates today at 713.224.3967. Depending on the circumstances, we may be able to save your license.

 

Driving While Intoxicated (DWI) Part 5: No Refusal Weekends

Section 724.011 of the Texas State Transportation Code states that anyone who is arrested for Texas DWI:
"is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance."

This is known as "Implied Consent", and as mentioned earlier it essentially means that by the mere act of accepting a Texas State driver's license you have automatically consented to take a blood alcohol level test if the police deem it necessary.
Based on the implied consent clause, Texas (and many other states) have begun implementing what are known as "No Refusal" weekends. This program is a law enforcement strategy that allows jurisdictions to obtain search warrants for blood samples from any drivers who are suspected to be impaired but refuse roadside breath or blood tests. During these events, usually scheduled around holidays such as Labor Day or New Year's Eve the police, prosecutors and judges streamline the warrant acquisition process in order to obtain blood draw warrants.

During these "No Refusal" events the District Attorney’s Office usually stations staff members at centralized locations in order to immediately consult with the arresting officer. They collect the probable cause information used in the arrest and rubberstamp a warrant which is immediately faxed to a waiting judge. If there is any probable cause that warrant will be signed and returned, the suspect is taken to an on-site blood draw room and a nurse or phlebotomist will draw the suspect’s blood. If the suspect is uncooperative or combatant, officers will restrain the suspect while the blood draw is occurring.

This rubber-stamp process is prone to several types of  legal errors; there may be an omission or a mistake on the warrant, the warrant may not meet requirements for accuracy. There may also be issues with the probable cause as determined by the arresting officer. If you are facing Texas DWI charges, you need to hire a skilled criminal defense attorney to help you navigate the legal system without jeopardizing your rights.
Contact Parnham & McWilliams today at (713) 224-3967 or visit www.parnhamandmcwilliams.com for more information.
Depending on the circumstances, we may be able to save your license.

Driving While Intoxicated (DWI) Part 2: Should I submit to a Breathalyzer or Blood Test? -Texas Criminal Attorney

One of the most frequently asked questions regarding DWI stops is whether or not a driver should submit to a voluntary breathalyzer or blood test when pulled over by the police. 

 Before you can be convicted of driving while intoxicated in the State of Texas, the prosecution must prove beyond any reasonable doubt that you were operating a motor vehicle in a public place while the alcohol level in your blood was over the legal limit, or that you didn’t "possess normal use of your mental and/or physical faculties".
The police are legally limited in their ability to administer certain types of field sobriety tests, and they must rely on your cooperation when performing these tests. Field tests are not always reliable and usually cannot be forced upon a person; in fact all machines used at the roadside are inaccurate for precisely measuring alcohol concentration.
Even if you have not been drinking, several factors can produce a false positive in a field breathalyzer including recent dental work, chemical exposure, and even the Atkins Diet. People who work in the oil field or car body shops and even manicurists are exposed to substances in their work environments which can be mislabeled as "alcohol" by the machine.

The officer may tell you that the results will not be used in court, but this is not true: if you do consent to the roadside test and it reports 0.080 or higher, prosecution of your criminal DWI case has become much easier.

Despite your constitutional protections against self-incrimination, if you refuse a roadside sobriety test the officer will almost certainly arrest you. At this point you will be required to take further, more accurate tests at the police station. Things now become more complicated legally, and it is strongly suggested that you immediately exercise your right to an attorney.

Because Texas has an implied consent clause (Section 724.011 of the Texas State Transportation Code) stating that anyone who is arrested for DWI in Texas "is deemed to have consented... to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance",  you have automatically agreed to take an alcohol or drug test if a police officer deems it necessary by the simple act of getting arrested. However, you still have the right to refuse the breathalyzer and the blood test. This refusal could lead to a suspension of your driving privileges for 180 days if this is your first DWI.
If you refuse to take the breathalyzer or blood test or you accept and fail, you have 15 days to request a hearing to save your license. If you don’t request this hearing within 15 days, you can’t stop your license from being suspended. Nonetheless, it is much harder for the prosecutor to convict you if you have refused all sobriety tests because they don’t have any evidence to use against you.

Police have also adopted "No Refusal" policies in some jurisdictions; if a driver refuses to give a voluntary sample, the police will seek a warrant from a judge authorizing them to take a blood sample to determine the driver's blood alcohol content (BAC).

Generally speaking, the attorneys at Parnham and McWilliams advise clients to refuse a roadside breathalyzer test and immediately exercise your right to an attorney unless you are 100% certain that the test will be clean. 

A conviction of DWI or DUI can have serious effects on your employment, insurance costs and many other aspects of your daily life.
If you have been charged with impaired driving you need an experienced criminal defense lawyer. Contact Parnham & McWilliams today at (713) 224-3967 or visit www.parnhamandmcwilliams.com for more information.
Depending on the circumstances, we may be able to save your license.