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.

 

Houston Lawyer: Prosecutorial Vindictiveness

Prosecutorial vindictiveness refers to filing a lawsuit for purposes of harassing the defendant when there is no genuine basis for the suit. If the defendant in the lawsuit wins and has evidence that the suit was filed out of harassing or vengeful motives and without any legal or factual foundation, it may be the basis of a claim for damages against the person who filed the original action. If vindictive prosecution is clearly proved against the party who brought the original suit, punitive damages may be awarded along with special and general damages.

A prosecutor may violate a defendant’s due process rights if they are using their decision to prosecute for purposes of retaliation; for example, charging the defendant with a more serious offense after the defendant appeals the conviction of a lesser offense,  or charging the defendant with an offense although the defendant has not violated the law.

North Carolina v. Pearce, 395 U.S. 711 (1969), is a United States Supreme Court case that forbids judicial “vindictiveness” from playing a role in the increased sentence a defendant receives after a new trial. In sum, due process requires that a defendant be “free of apprehension” of judicial vindictiveness. Time served for a new conviction of the same offense must be “fully credited,” and a trial judge seeking to impose a greater sentence on retrial must affirmatively state the reasons for imposing such a sentence.

The United States Supreme Court considered two respondents’ writs for habeas corpus in their decision. The first respondent, Pearce, was convicted of assault with intent to rape and sentenced to twelve to fifteen years. His first conviction was reversed in a state court proceeding because his involuntary confession was improperly admitted in his first trial. On retrial, he was convicted and sentenced to an eight-year prison term. Both the state and Pearce agreed that this sentence, combined with his previous time served, amounted to a harsher sentence than he had originally received. His conviction was affirmed on appeal to the Supreme Court of North Carolina. Pearce then brought a habeas proceeding in federal court, and the federal district court as well as the Court of Appeals for the Fourth Circuit both declared that Pearce’s new sentence was “unconstitutional and void.”When the state failed to re-sentence him after sixty days, the federal court ordered Pearce to be released. At this point, the Supreme Court granted certiorari.

The second respondent, Rice, plead guilty to four counts of second-degree burglary, and he was sentenced to ten years in prison. The judgment was set aside in a state court proceeding two and a half years later, after Rice successfully argued his constitutional right to counsel was violated at trial. He was retried in Alabama state court, convicted, and sentenced to twenty five years in prison, with no credit given for the time he had already served. In his habeas corpus petition, the federal district court and Court of Appeals for the Fifth Circuit declared that the increased sentence was a violation of due process and “unconstitutional.” The Supreme Court granted certiorari.

About twenty years after Pearce was decided, the Court  overruled Pearce by implication in Alabama v. Smith, 490 U.S. 794 (1989). As a result, current jurisprudence interprets Pearce’s holding to provide a defendant with a “rebuttable presumption of vindictiveness.” This doctrine of a rebuttable presumption of vindictiveness, absent an affirmative indication of objective facts justifying an increased sentence, is referred to as the Pearce Principle.

If the presumption of vindictiveness arises, it may be rebutted by showing that a legitimate and objective reason supported the change in the indictment or the basis for the indictment itself. However, if no presumption of vindictiveness arises, the defendant may show that the prosecutor was actually vindictive in her prosecution. The defendant may present direct evidence showing that the prosecutor was vindictive.

Additionally, if the prosecutor bases their decision of whether to prosecute on the basis of race, gender, or ethnicity than the prosecutor may be guilty of selective prosecution. A claim of selective prosecution must be raised in a timely manner before the trial has commenced, otherwise the claim may be regarded as untimely and waived.
In order for the defendant to prevail on a selective prosecution claim they must overcome a strong presumption that prosecutors have properly performed their duties. A selective prosecution claim is typically analyzed in accordance with the equal protection standards; the defendant must produce evidence that shows that the prosecutor engaged in selective prosecution which had a discriminatory effect upon the defendant, and that the prosecution was pursued with discriminatory intent.

When it comes to criminal law cases, an experienced and effective criminal defense attorney can mean the difference between a prison sentence and reduced or dismissed charges. Even in less serious cases, a good criminal defense attorney can make a serious impact on the outcome of the case by ensuring that the rights of the accused are protected throughout the legal process. If you have been accused of a crime, please contact us today for a free consultation with an aggressive and resourceful criminal defense attorney. We will work tirelessly to ensure the best possible outcome for your case. 

Hiring a Criminal Defense Attorney

If you are facing criminal charges, you are encountering the risk of consequences that may change your life. Any kind of arrest on criminal charges can become a very serious matter if not handled quickly and correctly. To build the best defense against any charges, an accused should make finding a criminal defense attorney a top priority.

Many individuals facing criminal charges delay finding a qualified attorney until there is no other option. People who are arrested and accused are naturally upset and want to explain their side of the incident in question to law enforcement; this can end up inadvertently hurting a case rather than helping it. There are undoubtedly many important things happening at once when charges are made, but the first thing that should be done is to find legal counsel. Early attorney representation allows clients to first explain everything in confidence to their own attorney, who can then take over any communication with the prosecutor and the court: most criminal defense attorneys would stress that the outcome of the case may very well depend on early attorney representation.

In many cases attorneys can negotiate a dismissal before charges are actually filed. Any negotiating prior to authorization of charges, plea bargaining, or other discussion about dropping or lessening charges is more likely to happen in the early stages of a case rather than after charges have been finalized. An experienced criminal defense attorney will know if they can negotiate with the prosecutor and will know how to proceed from that point.
It is essential for clients to completely trust the lawyer that is chosen, follow whatever instructions have been given, and do nothing more. Some parts of the legal process happen quickly while other parts don’t seem to be happening quickly enough, which may be a serious stress factor for individuals facing serious legal repercussions. Confidential questions and concerns can and should be made only to the defendant’s attorney so they can handle the case and achieve the best possible outcome.

Whether or not the charges against you have any merit, the justice system does not allow for any mistakes on behalf of the defense. Paper work is extensive, pleadings and court trials are extremely complex and any simple mistake by the individual can lead to dire consequences.
Unless the accused has legal counsel for their defense they are left completely on their own to navigate through this complicated process brought on by a criminal charge. 

When it comes to criminal law cases, an experienced and effective criminal defense attorney can mean the difference between a prison sentence and reduced or dismissed charges. The lawyers of Parnham & Associates are dedicated to defending the rights of the accused and our criminal defense attorneys are committed to the presumption of innocence. Even in less serious cases, a good criminal defense attorney can make a serious impact on the outcome of the case by ensuring that the rights of the accused are protected throughout the legal process. For these and other reasons, it is vital that those accused of a crime select the most competent, experienced and effective attorney available.