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.
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.
One of the exceptions to the Fourth Amendment's warrant requirement is the so-called ''automobile'' exception. If a vehicle is stopped by police, a warrantless search of the vehicle is usually allowable under this exception if the police have probable cause to believe that it contains evidence of a crime. This is based on the principle of exigency, or the need for immediate action arising out of the likely
disappearance of the vehicle and the possibility of destruction of the
evidence.
Generally, a speeding or traffic violation by itself does not justify
the search of a vehicle, but this rule is not without exceptions. If the
officer has a reasonable belief that they might be assaulted by the
driver, or if the driver fails to produce a valid license or
produces a forged one, a search will normally be valid.
In most instances, a valid search of a vehicle can include any containers within the car, such as packages or luggage. While there must be a connection between a crime and the search, there is no rule that the search be limited only to items relating to that crime; i.e., the police can search the driver and the car if they have a reasonable belief, or probable cause to believe, that there is a gun in the driver's possession or in the car.
When there is probable cause to search a vehicle, it is not necessary that the search take place immediately. A valid search can occur long after the initial stop and even after the car has been moved to the police station or impound lot.
When a car is impounded, the police can search it for the purposes of taking an inventory of its contents. It is not necessary that the search be conducted for the purpose of seeking evidence of a crime. While the police can search the entire car and catalog its contents, they are limited in what they can do with the contents; for an inventory search to be valid, it must be made pursuant to standardized police procedures.
If a driver gives a police officer permission to search their car, the warrant requirement is, of course, not necessary. Consent can be either ''express'' or ''implied.''
Implied consent usually becomes a factor when a driver is suspected of driving under the influence of alcohol (''DUI'' or ''DWI''); many states now have statutes that specify that when an officer has a reasonable suspicion that a driver is impaired, the driver's use of the public streets is considered implied consent to search of the driver's person and vehicle.
Express consent
arises when a police officer asks for and receives permission to search the driver's car. When such consent is given, the officer usually is permitted to open a closed container in the car if it might reasonably hold the object of the search.
The Fourth Amendment to the U.S. Constitution defines the right of
the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures. If you have been subjected
to an unreasonable search by law enforcement, contact Parnham &
McWilliams today at (713) 224-3967 or visit www.parnhamandassociates.com for a free consultation. We are dedicated
to protecting your Constitutional Rights.
According to crash report data compiled by the Texas Department of Transportation (TxDOT)Texas leads the nation in DWI fatalities, and although drunk driving accidents account for only about 4% of traffic accidents statewide, TxDOT reports
that DWI accidents were responsible for 1,099 deaths making them the leading cause of death on Texas roadways.
According to the same statistics Harris County led the state in DWI
Accidents, totaling more than 2,809 reported alcohol-related crashes in
2012. Houston alone had a total of 1,662 reported drunk
driving accidents and 94 fatalities in 2012.
In Texas, anyone who causes an auto accident while driving while intoxicated (DWI)
is facing very serious criminal charges. Convictions will mean felony charges and may result in 10 to 20 years in state prison if the accident resulted in serious
injury or death to another passenger or driver.
The two specific charges involved with vehicle accidents (including watercraft, aircraft and amusement rides) that involve impaired drivers are Intoxication Assault and Intoxication Manslaughter.
Intoxication Assault Texas Penal Code 49.07 states that a person commits an offense if the person, by
accident or mistake, while operating a motor vehicle in a public place
while intoxicated, by reason of that intoxication causes serious bodily
injury to another. Serious Bodily Injury refers to any injury that
creates a substantial risk of death, causes serious permanent
disfigurement or causes "protracted loss or impairment of the function of any
bodily member or organ."
Intoxication Assault is a third degree felony and punishable by 2 to 10
years in prison, fines of up to $10,000 and up to 600 hours of community
service. Texas law also requires any repeat intoxicated assault offenders to install an ignition interlock device on their primary vehicle: you are required to blow into this
device before you can start your car, and if it detects alcohol the vehicle will not start. You will not be allowed to drive any vehicle that is not
equipped with this device.
If you are charged with Intoxication Assault, the prosecution must only show beyond a reasonable
doubt that you were intoxicated and caused serious bodily injury to
another person; they do not need to provide any proof that you intended
to hurt another person. Even though the other parties injuries could
have been the result of an accident or mistake, you can still be
charged with this serious offense.
Intoxication Manslaughter is a second degree felony,
punishable by 2 to 20 years in state prison, fines of up to $10,000 and
up to 800 hours of community service. Intoxication Manslaughter differs from regular Manslaughter or Vehicular Manslaughter
charges, which require some evidence of a reckless act or reckless driving: by
the mere act of operating a motor vehicle in a public place while intoxicated the law automatically presumes that you are acting in a reckless manner. However, the State must prove beyond a reasonable doubt that the defendant's
intoxication was the cause of the other person’s death.
Intoxicated Assault and Intoxicated Manslaughter are extremely serious charges. If you have been in an accident and 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.
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.
In the State of Texas, a DWI arrest actually creates two separate cases: both the original criminal charge as processed through the county or district court system, as well as a separate civil proceeding known as Administrative License Revocation. Any driver arrested when they refuse a breath or blood
test -or fail the test- will automatically have their license suspended.
The Administrative License Revocation (“ALR”) program was created by
the Texas Legislature in 1993 and became effective on January 1, 1995 with the intent "...to provide a fair and efficient administrative hearing
process for determining whether the proposed suspension by the
Department of Public Safety (“DPS”) of the driver’s license of a person
who has been accused of driving or boating while intoxicated (or in
the case of minors, driving or boating with any detectable amount of
alcohol in their systems) should be upheld".
Texas maintains an "implied consent" statute, stating that any person who applies for a license to operate a motor vehicle on a public roadway has consented to provide a specimen of breath or blood if arrested for DWI. The implied consent statute also applies to watercraft in Texas.
If you are arrested for DWI and have a Texas driver's license, the police are required to take possession of it and issue you a temporary driving permit that will expire 41 days later. If you request a hearing to challenge the suspension, that will delay any ALR sanctions until a hearing takes place.
ALR suspension are automatic unless you specifically request a hearing to challenge the suspension, in writing, WITHIN FIFTEEN (15) DAYS after receiving notice of suspension from the arresting agency.
Even thought the notice of suspension states that the suspension will automatically begin 41 days, requesting a hearing postpones the suspension from starting until after the hearing actually takes place and an administrative decision is issued by a judge. Further, in the event of an ALR appeal your suspension can be delayed for an additional 90 days.
Burden of proof in an ALR hearing is on the Department of Public Safety: if you or your attorney have made the request for a hearing within the 15 day time limit, the Department of Public Safety must prove the following elements before a suspension can be imposed:
There must have been reasonable suspicion to stop or probable cause to arrest the driver,
The person was driving or in actual physical control of a motor vehicle in a public place while intoxicated,
The person was placed under arrest and was offered the opportunity to give a specimen of breath or blood after being notified both orally and in writing of the consequences of either refusing or failing a breath or blood test, AND
That the person either refused to give a specimen on request of the officer, or failed a breath or blood test by registering an alcohol concentration of .08 or greater per 100ml of blood or 210 liters of breath.
If you don't have any prior alcohol or drug related offenses during the previous 10-year period, the suspension is usually 180 days in cases where the driver refuses to submit to the test, or 90 days if the test results are above the legal limit.
If you DO have a prior alcohol or drug related charge within the past 10 years, a refusal will result in a two year suspension and a one year suspension if you take the test and the results are above the legal limit.
If no suspension is imposed at the hearing, DPS must return your license; if a suspension is ordered, either automatically or after a hearing, you must submit a reinstatement fee of $125.00 to TDPS before the license will be reinstated. Because reinstatement of your license will be held up until the fee has been both
received and entered on the TDPS computer system, it is usually advised to send your fee to TDPS as soon as you find out that a suspension has been ordered.
If you neglect to request an ALR hearing, your license will DEFINITELY be suspended. By requesting a hearing you have a chance to prevent your license from being suspended. If you have been arrested for DWI you need an experienced criminal defense lawyer to protect your license. Contact Parnham & McWilliams today at (713) 224-3967
Depending on the circumstances, we may be able to save your license.
Legal terminology may often be confusing, and this becomes apparent when applied to traffic laws- the ones we most commonly run afoul of. Two terms that are often intermingled are DWI (Driving While Intoxicated) and DUI (Driving Under the Influence). In some states the two terms are both used to describe impaired or drunken driving: in others both terms are used, with DWI referring to driving while intoxicated specifically by
alcohol and DUI being used when the driver is charged with being under
the influence of other drugs. The drugs don't necessarily have to be illegal narcotics for a DUI to be issued - they can simply be over the counter medication or prescription drugs.
In some states DUI is a lesser charge signifies a lower degree of intoxication (as determined by a
person's blood alcohol level at the time of arrest). For example, New York differentiates between DWI and DUI by establishing a blood alcohol level of .08 as the legal limit for DWI. If a person has a blood alcohol level of .07, the charges may be reduced to a DUI which carries a lesser punishment.
The distinction for the federal government is also based on severity; A
DWI is issued when the blood alcohol content (BAC) is over the 0.08
limit, whereas a DUI (a less severe term) applies when a persons BAC is
under 0.08. Because individual states have the power to regulate their own DWI/DUI laws the specifics vary across the country.
In Texas, the distinction is relatively simple: DWI is defined in Sec. 49.04. of the Texas State Penal Code and applies to any person over 21 years of age. In Texas, a person is legally intoxicated and may be arrested and
charged with Driving While Intoxicated (DWI) with a .08 BAC (blood or
breath alcohol concentration). However, a person is also intoxicated if
impaired due to alcohol or other drugs regardless of BAC. Texas DUI specifically refers to minors (persons under the age of 21) who operate a motor
vehicle
in a public
place while having any detectable
amount of alcohol in their system. Generally, an
offense under this section is a Class C Misdemeanor.
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.
One of the most frequently asked questions regarding DWI stops is whether or not a driver should submit to a voluntarybreathalyzer 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.
In Texas the legal limit for intoxication is .08% Blood Alcohol Concentration (BAC) as set out in Title 10, Chapter 49 of the State Penal Code. For commercial drivers the limit is .04%, and no detectable amount is allowed for minors. However, if an officer even suspects your driving is impaired you can still be stopped and arrested for DWI regardless of your BAC. In most cases the suspicion of DWI also gives the police a probable cause to search your vehicle.
It is also illegal to have an open container of alcohol in the
passenger area of your vehicle if you’re driving or parked on a public
highway. A simple open container violation results in a maximum $500 fine and a Class C misdemeanor, but if you’re arrested for DWI and open container, you’ll get a Class B misdemeanor and a minimum of 6 days in jail.
If you are signaled to stop by police, do your best to pull over
immediately. Do not wait to find a parking lot or side street unless
the location is immanently hazardous: the police may interpret it to
mean that you were trying to avoid them and it will immediately raise
suspicion. Come to a complete stop, roll down your window, and stop
your engine. Make sure you have your seatbelt fastened. Give the
police your driver's license, registration and insurance information as
quickly as possible.
Don’t talk unless spoken to. Answer questions
in short, truthful statements. You do not have to speak directly into
the officer's face or look the officer in the eyes. The less you say,
the less opportunity the police will have to interpret the smell of
your breath or speech.
If the police ask you to step out of the car do not lean against your car for support or make any physical
motions that would cause the police to believe that you may be
impaired. Assume that the entire traffic stop is being video taped.
Remain where the camera will follow your actions and don't give the
prosecution any video evidence that can be used against you.
If the police ask you to take a field sobriety test do not argue with them on constitutional grounds: the act of
accepting a driver's license automatically grants implied consent for
the police to administer tests. If you have some underlying medical condition that may prevent you
from performing a field sobriety test or may adversely affect the
outcome of such a test, inform the officer clearly and politely.
The police cannot physically force you to take the test. You may refuse to take the field sobriety test,
but if you choose to do so immediately exercise your right to an
attorney. If you you refuse they will be required to read
your rights and warn you of the consequences. At this point you will
most likely be arrested.
If the police ask you to take a roadside breath test: The handheld breath tester is inaccurate and not admissible in
court, but police officers will use the test to determine if they can
arrest you and proceed with further testing. If you have any suspicion that the test will not come out 100% clean
it is advisable to refuse this test and immediately exercise your right
to an attorney. The officer will likely urge you to take it, but
in most cases they have already made the decision to arrest you at this
point and you will still be required to take more accurate tests at
the police station.
At the police station, you will be asked to submit to a breath test
and a blood test to determine your blood alcohol content. If you fail
either of these tests the prosecutor will use the test results against
you. If you refuse to take the tests, you should invoke your right to an
attorney immediately.
Penalties for DWI in Texas are based on several factors such as age, your license type and circumstances such as passengers in the vehicle or additional violations. A first offense for even basic DWI can result in fines up to $2,000, 3 days to 6 months in jail, license suspension for up to 2 years and mandatory educational programs. Additional offenses are very severe.
Any conviction of DWI can have serious effects on your
employment, insurance costs and 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
Depending on the circumstances, we may be able to save your license.
