Articles Posted in DWI

“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.

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.”

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.

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?

Conroe DWI Lawyer
Maybe not.  A Texas Department of Public Safety’s crime lab scientist is under fire for conflicting statements he made in a misdemeanor DWI trial this month.  In May of 2013 the DPS crime lab switched two samples and delivered the wrong results to the police.  The error resulted in a woman who had not been drinking being charged with driving with twice the Texas DWI legal limit for alcohol.  When the DPS scientist was questioned about the switch, he lied and stated that he had not switched the vials.  When caught in his lie, the DPS scientist invoked his Fifth Amendment rights against self-incrimination.

Why is this an extremely scary scenario?  If you read the above paragraph again, you notice I said Texas Department of Public Safety crime lab.  Yes, that’s right, the police use their own “so called” scientists with their own “so called” lab protocol.  In other words, cops in lab coats.  These are the guys that do most the forensic work for the police in Texas.  And yes, that includes thousands upon thousands of blood tests in Texas driving while intoxicated cases.  If you listen to the testimony of these scientists in court you would be led to believe that their work is infallible.  Yet, experienced criminal defense DWI lawyers know that these labs simply do not follow the protocol of non-state run independent labs.  The thinking of the DPS labs is one of, “hey, it’s good enough.”  Is it?  Is a little bit of glass in your baby food good enough?  Most of the blood in the Montgomery, Walker, Madison, Grimes, and Leon County areas are sent to the Houston DPS Crime Lab.  A quick Google search will show you that year after year, thousands of DWIs are thrown out when the errors in this particular lab are discovered by criminal defense attorneys.  No other lab in the state has been plagued by more corruption.

Why is it important that this DPS scientist tell the truth about the mistakes that are made in their lab every day?  It’s important for the teacher that lost her job because of a DWI.  It’s important for the nurse that lost her license because of a DWI.  What about the mom that must blow into a device when she picks up her children?  Does the DPS scientist that lies under oath and secures a fraudulent conviction for the State think that it matters to these citizens?

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DWI breathalyzer test
Worried about getting a driving while intoxicated charge in Montgomery County, Texas?  You should be.  It’s that time of year.  We are getting into the holiday seasons.  With the Conroe Catfish Festival and the Texas Renaissance Festival already upon us, law enforcement will be out looking for drunk drivers in Montgomery, Grimes, and Walker Counties in greater numbers.  But how can you safeguard yourself and really know if you are driving impaired?  In Colorado, the Department of Transportation may have come up with a bright idea.

The idea involved giving out 225 breathalyzers for your smart phone to a group of participants that were randomly chosen.  What’s amazing is that seventy-nine percent of the chosen people believed that they had indeed driven while intoxicated in the past.  Not only that but eighty-two percent thought that regular drinkers should have a breathalyzer with them when drinking.  Good idea, right?  Well, yeah until I have to shell out a hundred plus clams for one of these gadgets.  Does the gadget really work?  Will I care when I drink?  Or, will it become another expensive paper weight?

The results were surprising.  The study recorded almost five thousand readings.  While using the breathalyzers only 12 percent reported that they may have driven while intoxicated.  The average blood alcohol level was recorded at .087 percent.  They have the same .08 standard for drunk driving that we have here in Texas.  So either they had a lot of liars in the study or they had a massive drop in DWI behavior from 79 percent to 12 percent.  At the very least it appears smartphone breathalyzers may be linked to better decision making for drinkers.  For experienced criminal defense attorneys this may also lead to an interesting factor to weigh when someone is accused of an artificially high blood alcohol level that may be due to the ever so common police lab error.

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Montgomery County DWI Lawyer

National topics in the news today include two DWI related stories.  First, in our own Montgomery County, Texas, a man received a fifty-year sentence for a driving while intoxicated charge and second, an Ohio man was arrested for driving drunk on a lawn mower.  Lawn mower you say?  I know what you’re thinking and we will get to that later. Why was this particular individual driving a lawn mower?  The reason given was that he chose the lawn mower due to a suspended license.  The interesting part of the second story, aside from the lawn mower aspect, is that this was the man’s sixth DWI or DUI and he received misdemeanor punishment.  Why?  Ohio doesn’t count offenses that are older than twenty years.  In other words, his past DWI history was too remote.  In Texas we had a similar law that allowed DWI offenses to drop off your record after fifteen years.  In 2005, the Texas legislature did away with that provision.  Does that make sense? Some say yes, but try to explain that arbitrary law to a commercial driver that received a DWI as a teen.  The Texas Department of Public Safety can and will take away your commercial driver’s license for life (as in forever) upon a second DWI.  This happens more frequently than you might think.  I had a client that was pulled over after his daughter’s wedding and was slightly over the legal limit.  And yes, I think the .08 limit is garbage when the tests for intoxication were designed for .15, but that is another story.  We fought and won that case, but imagine losing your career and company over something that happened thirty years ago.  The two national news cases are in no way similar other than that both drivers had multiple DWIs.  Every case is unique and deals in different views and varying levels of severity.  Something that may seem trivial to you now, may not be twenty, thirty, or even more years in the future.  This is why I shudder when I have clients tell me they have represented themselves in the past.  It’s always a bad idea.  You know the adage of the lawyer that represents himself has a fool for a client.  The same holds true for everyone.

Speaking of the lawn mower, yes drinking and driving on a lawnmower in Texas is illegal.  Sounds silly doesn’t it?  The truth is we represent DWIs and DUIs on lawn mowers and much more commonly, golf carts every year.  But you don’t have to be criminal defense attorney to know the legend of the best DWI lawn mower story.  We’ve all heard the story of “Possum” George Jones.  Did it really happen?  Yep.  For those of us older folks, we remember George as not only a legend of country music, but also as “No Show Jones.”  Jones struggled throughout his career on substance abuse issues.  It’s been reported that he missed 54 shows in 1979 alone.  Jones, who was born in Saratoga, Texas just outside of Beaumont was still living in that area of East Texas.  Allegedly, his wife at the time began to hide the keys to all the vehicles due to George’s alcohol issues.  Jones tore the house apart but could not find a set of keys.  George looked out the window, and behold under the security light was a riding lawn mower with the keys in the ignition.  Years later in his autobiography George recalled, “I imagine the top speed for that old mower was five miles per hour. It might have taken an hour and a half or more for me to get to the liquor store, but get there I did.”

I bet George Jones hired a lawyer for that incident.  You should, too.  If you get arrested for any alcohol or drug related offense, call us today.  Even if it involves a lawn mower or a golf cart.

Arrested for DWI
Don’t take the tests. In a DWI investigation, the officer’s job is to gather evidence against you.  The police will record everything you do or say. The officer has a microphone on his lapel. So when he walks up to your vehicle everything will be documented. The patrol vehicle has a camera that will record the entire encounter. It’s very important that you think before you speak or act. Be polite. Be courteous. Have your license and insurance ready.

You’re going to jail. It doesn’t matter that you’ve only had a few drinks. It doesn’t matter that you’re not intoxicated. You’re going to jail. When you drink and drive, law enforcement has an extremely low burden for an arrest. Police no longer let people go home. It doesn’t happen, ever. Ask for a lawyer. You’re not entitled to one. Ask anyway. When you invoke your right to counsel, you stop the interview and they take you to jail.

Stop talking. You’re going to jail. Don’t give law enforcement evidence. You’re thinking about taking the tests. Don’t, no one passes the tests. Sit in the car quietly. Don’t converse with the officer. Stay alert. Don’t sleep.

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