Articles Posted in DWI

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Montgomery County DWI Attorney
In the wake of more states legalizing the use and possession of marijuana people are scrambling to come up with a definition of what categorizes “driving while high.”  No one favors driving under the influence of marijuana or any other mind-altering drug.  The problem becomes what exactly is the definition of driving while high and how do we test for it?

In Texas, if you are pulled over by law enforcement due to some overt cause such as weaving or erratic driving, the officer is going to suspect something is up.  Currently, law enforcement uses field sobriety tests.  The problem is that the equipment law enforcement uses to check for alcohol like a breathalyzer does not work for impairment by other drugs, specifically not for marijuana or THC.  The only real solution at this point is to take the driver to the police station or hospital and draw blood.

Once police have the blood they can send it off to a lab to test if the person has marijuana in their system.  But there are no legal limits in most states including Texas.  Some states have set a standard at the limit of .5 milligrams of THC (the intoxicating substance in marijuana) per milliliter of blood.

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Texas DWI Lawyer
A new Texas bill that gives low level criminal offenders in Texas a second chance needs only to return to the house and then be signed by the governor.  The Texas House of Representatives passed the “Second Chance” bill 140-0.  Now, the bill has moved through the Texas Senate 28-3.  The bill would allow criminal offenders without previous convictions to protect their criminal history from disclosure to the public.

In Texas, we have only two crimes in which you cannot receive a deferred sentence.  Capital murder and driving while intoxicated.  Therefore, you can be charged with an offense like sexual assault and still get a deferred sentence and keep it off your record.  Not so with DWI.  The law used to allow for a DWI to fall off your record after ten years.  Not so anymore.  So, say you pick up a DWI in college, what can you do to get it off your record?  I get this question all the time.  Until now, the answer was “nothing.” The client will say, but that happened twenty years ago, why is it still haunting me?  Simple, up until recently a DWI conviction stayed on your record for life.

The new proposed section is 411.0736 which currently reads: “procedure for conviction; certain driving while intoxicated convictions.  What the bill states is that if you complete your sentence, including any term of confinement imposed and the payment of all fines, costs, and restitution imposed, may petition the court that imposed the sentence for an order of non-disclosure of criminal history records information under this section if the person:

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Criminal Defense Attorney
The federal government knows what is best for you.  Your government tries to control you by legislating penalties for not doing what Big Brother wants you to do.  To limit your behavior, your government has levied steep taxes on items such as cigarettes, other tobacco products, even soft drinks.  Currently, in Austin, your Texas legislators are trying to pass a law banning all text messaging while driving.  And on the national level, the federal government is trying to take away your right to split a bottle of wine at dinner or to have a few beers at the ball game.

For years, the National Transportation Safety Board (NTSB) has pushed to lower the legal limit in drunk driving cases to .05.  The current level in Texas is .08.  If you have seen the movie “Sully,” you know the NTSB as the villains in the film calling for Captain Sullenberger’s head.  Okay, that’s Hollywood, but the truth of the matter is that there just aren’t enough plane and train accidents to justify the budget of the NTSB.  What does your government do when it tries to justify its existence?  Your government uses fear tactics to make itself relevant.  Bad things are happening, we must act.  Wake up citizen, I’m your government, you need me, listen to me.  These tactics are getting tiresome. 

In Utah, state legislators are already pushing for the .05 limit.  How does that affect us in Montgomery, Walker, Madison, and Leon County, Texas?  Because Utah was the first state to lower the legal limit in drunk driving to .08.  The old standard was .10.  Truth be told, the field sobriety tests that law enforcement uses to arrest you in a DWI stop were based on the old .15 standard.  Yep, the standard started at .15 for impairment.  But why drop the limit?  Simple, taxes.  Your government wants more money.  The penalties on a first DWI in Texas start at $1000 a year for three years and climb from there.  But what say you, groups against drunk driving?

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Montgomery County Attorney
It was a rough week for law enforcement officials in Texas.  In San Antonio, three local law enforcement officers were arrested on Thursday night within hours of each other.  Police officers Gena Rodriguez and Harold Thomaston were both arrested for driving while intoxicated.  San Antonio Police Chief William McManus was quoted with saying, “Anytime an officer gets arrested for anything it’s disappointing, but DWI is just so preventable and there is no excuse for it.”

Rodriguez was an eleven-year veteran who was driving with her three children in the vehicle when she crashed into another car.  Police officers on the scene stated that Rodriguez was slurring her speech, was unsteady on her feet, and smelled like alcohol.  Later that night police veteran Harold Thomaston was also pulled over for driving while intoxicated.  Police say that Thomaston swerved into the lane of another police officer and then ran a red light.  Chief McManus stated, “SAPD officers were arrested by SAPD officers, so absolutely not, they are not held to a different standard, they are held to a higher standard.”

Bexar County Deputy Sabrina Moreno was also arrested Thursday night for DWI.  Bexar County Sheriff Javier Salazar said, “I am furious, there is no other way to put it, I am just furious.”

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Montgomery County Criminal Defense Attorney
So, what is the Intoxilyzer 9000?  This is a new breath test device that is being transitioned into use in Texas.  This new unit will eventually replace the decades old Intoxilyzer 5000.  The new device will be used in the prosecution of drunk driving cases.  However, as the machine is new and being transitioned in, it is still plagued with problems including software issues and bugs.  Clearly, this is cause for concern as it may lead to wrongful convictions for DWI.

It works like this.  Say you are arrested for suspicion of drunk driving in Walker, Harris, or Montgomery Counties.  Typically, the arresting officer will ask you if you wish to provide a breath or blood sample.  On a first offense, the penalty for refusal of one of the two tests will result in a 180 day Texas driver’s license suspension versus a ninety-day suspension for those that comply.  Lately, most officers have opted for blood over breath due to the problems with the old Intoxilyzer machines.  By the way, it’s the officer’s choice not yours as to the breath or blood election.  Many people are confused by this distinction.  People say, I offered to give breath in lieu of blood because I am afraid of needles.  Too bad, that’s considered a refusal.

In Georgia, the new Intoxilzer 9000 recorded seventy-four tests in the first two month in one area.  Of the seventy-four tests, fifty-one of the tests generated error messages.  In other words, a brand-new machine was wrong almost seventy percent of the time.  When you are prosecuting someone for DWI or any other crime for that matter, any error is unacceptable.

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Montgomery County DWI Lawyer
Recently, a friend asked me about a newfangled anti-DWI device that he had heard about.  What is it?  What does it do?  The device is called an ignition interlock.  They’ve actually been around for a while now.  Of course, it’s been headline news due to the recent case that went viral.  The case involved a thirty-six-year-old woman that was charged with DWI.  What made the case unusual was her use of the device. She had the device in her car as a condition of probation.  The problem was that she was still driving around drunk.  But instead of her blowing in the device, she was having her eight-year-old daughter blow into the device.  The plan didn’t work out very well as she crashed her vehicle and was charged with another driving while intoxicated offense.  It was not a Texas case.  Here, if you are caught driving while intoxicated with a minor in the vehicle you are charged with a felony.  So, what is this anti-DWI device?

A Breath Alcohol Ignition Interlock Device (BAIID) or Ignition Interlock is a machine that keeps you from starting your vehicle if you have been drinking alcoholic beverages.  The contraption is usually set to a minimum level that blocks the vehicle’s ignition system upon a positive test.  Usually, the device is set to a minimum BAC (blood alcohol content) of .02.  It is essentially technology that integrates breath alcohol detection to the vehicle’s start mechanism.  When you enter your vehicle, you are to blow into the device before the vehicle can be started.  If you blow over the .02, the vehicle will not start.  Typically, there is also an on-board device that logs the event and other data.  Some integrate a camera as well to make sure the correct individual is blowing into the device.  The readings are then forwarded to the court and probation personnel in charge of your probation.

In theory, the device is designed to prevent and deter convicted DWI offenders from once again driving under the influence of alcohol.  Here in Texas, if you are convicted of DWI and have a BAC of over .15 then you may be required to have the device in your vehicle for at least half the term of your probation.  Many judges are now making offenders keep the device in their car throughout the entire term of their probation.  You are also required to have the device in your vehicle upon your second conviction for DWI in Texas.

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“That was in the past; I’ve paid my debt to society.” Criminal defense attorneys hear that quite a bit.  The truth of the matter is that your past counts.  A lot.  When a potential employer looks over your job resume’, do you think he or she considers the fact that you have been fired from your previous three jobs?  Of course they do. 

So what’s the big deal?  Well, anyone that keeps up with what is happening in criminal law in Conroe, Texas, or even the Nation sees myriad headlines such as, “Man Gets Life Sentence for Fifth DWI Conviction.”  The past is a good indicator of the future.  People tend to forget that little inconvenient fact.

So, how does your past affect you?  It could in many profound ways.  First off, if you are arrested for a crime in the counties that I practice in, which include Harris, Montgomery, Walker, Madison, Grimes, and Leon for example, then it can and will affect your bail.  First time criminal offenders usually have a trivial amount of bail.  Repeat offenders have a bail that rises steeply with each consecutive offense.  This is especially true of felonies.  Montgomery County tends to be more secretive with their bail amounts.  Walker, Madison, Grimes, and Leon Counties post their prospective bail amounts online.  For instance, if you are arrested on a first-degree offense in Walker County and it’s your first offense, the bail would typically be set at $20, 000.  A prior first offense gets you a $30,000 bond and more than one prior offense will land you at the $50,000 mark.  In addition, the underlying Texas Penal Code Statutes that you will be charged with are generally getting tougher.

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Montgomery County Attorney
Okay, no it hasn’t gone that far.  But where do we draw the line at how far police can go to collect evidence in a driving while intoxicated arrest?  This issue is being pushed to the limit.  Texas law enforcement agencies argue that alcohol testing is legitimate requirement for being allowed the privilege of driving on our publicly owned Texas roads.  Some have argued that the burden for obtaining a search warrant in DWI cases is too big of a burden for law enforcement.  But even in the rural counties that I work in, including Walker, Madison, and Leon Counties, there is almost always at least one judge on call.

How extreme has the matter of DWI blood draws become?  In Georgia, police have been strapping down citizens to a gurney as they forcibly draw blood from the victim.  One such video shows the victim screaming, “What country is this?”  One victim stated, “We are all American citizens and you guys have me strapped to a table like I’m in f***ing Guantanamo Bay.”

As Texans, it was hard to ignore the case in Southlake last year where the victim was tasered.  Hannah Fossier, a twenty-one-year-old Keller, Texas woman states that she refused repeatedly to have her blood drawn on the night of her DWI arrest.  Thus, officers hit her twice with the Taser.   Once incapacitated, the nurse performed a blood draw.  “I must have told them at least 10 times no,” Fossier told reporters after her arrest. “One officer said if you don’t cooperate, I’m going to Tase you, and he did.”

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Criminal Defense Attorney
It appears yet another lab is in hot water due to poor protocol.  The Austin Police Department crime lab has been in and out of the news for years now.  As you may recall, the DNA analysis section was actually shut down following claims of improper testing.  In 2012, the lab was found to have many contaminated samples and reagents in the lab.  One person was exonerated after a sample from a penis swab had been mixed with a vaginal swab of the victim.  Yes, you read that correctly.  It doesn’t get much worse than that.

Well now, the section that performs the blood analysis on DWI samples is under fire.  A scientist and former employee of the lab claims the lab’s blood alcohol analysis methods were not up to existing standards in the industry.  The former employee who now works at a different lab was hired to retest a sample from the APD crime lab.  She states that her analysis of the sample had a much different level of alcohol and reached a different conclusion about the intoxication of the individual.

A defense attorney and former chairman of the Texas Forensic Science Commission recalled a similar situation involving this crime lab.  The criminal defense attorney had a sample retested on behalf of a felony DWI client.  In Texas, when a person is charged with their third DWI they are elevated to a third degree felony which carries a sentence of two to ten years in the Texas Department of Criminal Justice Institutional Division and up to a $10,000 fine.  That’s the big house folks.  The sample tested by the DWI attorney came back with a reading that was off by 0.025.  In Texas, the legal limit is .08.  That creates a wide disparity in the prosecution of a Texas DWI case.  The difference between a .06 and a .10 is huge in the eyes of the law.  Officials believe that retesting of the sample from the questionable twelve-year period could cost over $14 million.

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Lying DWI scientist
On the Watergate scandal, Nixon was quoted as saying, “It’s not the crime that gets you…it’s the cover up.”  Nixon knew that he may have avoided the whole Watergate scandal if instead of lying and covering his tracks, he had admitted his wrongdoing early on.  Mismanagement is one thing; obstruction of justice is not forgivable.  Now in the wake of the Wikileaks email dumps, we are finding that our government isn’t as bad as we thought it was, it’s much worse.  How does this massive government corruption parallel drug and alcohol arrests in Texas, specifically driving while intoxicated or DWI arrests?  A few weeks ago, I wrote an article about mistakes being made in the Houston and Dallas crime labs.  Recently, new information has surfaced about the cover up by Texas crime lab scientists.

Today, we know that one state forensic scientist that I discussed earlier will no longer perform services as an expert witness or perform lab work in drunken driving cases in Texas.  But wait, what happens to the thousands of samples where this scientist performed an analysis?  This DWI blood analysis evidence should no longer be used.  It’s tainted.

A little background, this scientist performed blood analysis in drug and DWI cases for the DPS crime lab in north Texas.  The DPS scientist then testified in court about his findings.  Just as the DPS scientists do in almost all blood testing trials here in Montgomery, Walker, Leon, Grimes, and Madison counties in trials against my clients.  In the only instance where the DPS scientist was caught, yes I said it, the only time he was caught, a driver that had not been drinking was shown to have a blood alcohol of 0.152.  That’s almost twice the legal limit for DWI in Texas which is 0.08.  The Texas Department of Public Safety said the error was caught within a matter of days and corrected.  DPS claimed this was an isolated incident.  Uh, huh…sure it was.  See my last article here to see that DPS doesn’t follow the proper lab protocol for blood testing.  Therefore, the probability for mistakes skyrockets.  Okay, Mr. Scientist, you perform thousands of tests, and you don’t follow protocol, but we are supposed to believe this is an isolated incident?