Articles Posted in Driving While Intoxicated

martini.jpgThe age old question about whether to consent to a DWI breath or blood test is still the question many people who socially drink and fear a DWI investigation want answered, particularly now that they read in the news that cops will forcefully draw their blood if they refuse. The answer in most situations is still “NO”, for several reasons.

First, the breath machine (intoxilyzer machine) has serious reliability issues. Texas still uses the outdated intoxilyzer 5000 machine, although there are numerous better quality machines on the market, in order to save money on machines and parts. The machine assumes that every person has the same breath to blood ratio (X amount of breath equals Y amount of blood, which actually varies greatly). Additionally, simple things like breath temperature, temperature of the machine, proper calibration, etc. can lead to an unreliable result. Also, mouth alcohol could greatly increase the number. Thus, I can see very few circumstances, unless you have not been drinking at all, to consent to a breath test. There are too many scenarios in which you can be under the legal limit, but blow over the legal limit. (Plus, if you are over the legal limit, all you are doing is giving them a “scientific” piece of evidence that will be very damaging to you in court).

The harder question is whether to consent to a blood test now that blood warrants have become so common. A few years ago, blood warrants were unheard of because they were extremely rare in the DWI world. Back then, the officer asked for consent, and you either gave it or you didn’t. Your refusal could and still can be used against you, and that is how they investigated and prosecuted driving while intoxicated cases, using video evidence and field sobriety tests along with the refusal.

beeronice.jpgNot to be outdone by the wisdom of the Oklahoma Legislature, our braniacs in Austin last year enacted “aggravated” driving while intoxicated provisions similar to the Sooner state, whereby a first time offender now faces a year in jail if the person 1) commits the offense of driving while intoxicated, and 2) “If it is shown on the trial of an offense under this section that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.” The offense is enhanced from a Class B to a Class A misdemeanor.

This is problematic in several respects. First of all, a year punishment range (one day short of the Federal definition of a felony) for a first time, no property damage or injury driving while intoxicated is simply ridiculous. Driving while intoxicated is one of the only offenses above a traffic ticket level that has no mental state. I.e. a person does not have to intentionally, knowingly, recklessly or with criminal negligence drive while intoxicated. If you are driving and you are intoxicated (either with a blood alcohol level above .08 or by not being normal due to alcohol or a drug or a combination thereof), you are committing a crime and face the 180 days in jail and $2,000 fine, both of which can be probated for two years. Many good people are arrested for driving while intoxicated for having one drink too many, or because the arresting officer was less competent in his detection skills than he should be.

Now, if you are arrested for driving while intoxicated and cooperate with law enforcement, and the state’s highly unreliable intoxilyzer machine, or a blood test performed by someone who was working at Dairy Queen a few weeks ago, shows a .15 alcohol concentration at the time of the test, not the time of driving, you are punished twice as harshly. Notice, this new law does not require you to be .15 or above at the time of driving, only that your test reveal a .15 or above at the time of testing.

pills.jpgAmerica is a pill culture. Every day a large percentage of our population drives the highways of Texas under the care of prescription medication that can possibly effect their mental or physical abilities. Key word: possibly. Each individual is in the best position to use their judgment as to when they should or should not drive, but you should exercise caution when driving on prescription medication, because it can lead to a DWI arrest. If an officer believes that you have lost the normal use of your physical or mental faculties because of a certain drug, you can be arrested. This includes your own medication. Drugs such as “narcotics” and “painkillers” and “antidepressants/psychotropics” are ones that will get the closest look. And, most officers are not trained extensively on testing for the side effects of these drugs like they are trained to test for alcohol impairment.

Add in alcohol, which could possibly (again, possibly) increase the side effects of certain drugs, and things become much more difficult. Officers have a difficult time in judging how one medication interacts with another, or interacts with alcohol. The prejudice factor is very high, so err on the side of caution when choosing to drive with alcohol, and be much more careful when mixing it with prescription medications. There is a strong likelihood that a DWI stop will result in your arrest, and you will need a lawyer and a toxicologist to help the jury understand why you could have been okay to drive at that point.

If you or someone you know is facing criminal prosecution, please feel free to call me at 903-744-4252.

248031_pills.jpgI recently had the pleasure (and challenge) of representing a particular client that was charged with DWI 3rd or more in Fannin County. The case was unique because the client consented to a blood draw, and in client’s blood was half the legal limit of alcohol (.04), a narcotic analgesic (painkiller) and a central nervous system depressant (muscle relaxer). The State’s theory was “synergistic effect of the drugs,” i.e. that the combination of the drugs caused intoxication. The police officer testified to arresting client for failure to complete the field sobriety test to officer’s satisfaction, plus admission of alcohol and painkillers. However, the officer could not recognize the field sobriety manual for lack of being provided one at training. Also, the officer was also not trained on drug recognition, an additional training course for DWI detection due to drugs or a combination of drugs and alcohol.

Additionally, the lab tech who drew the blood admitted that a nurse could have been called pretty easily to test client’s vital signs and to test for intoxication by drugs plus alcohol. The chemist who tested the blood testified and admitted to the hour-long average time to peak ratio, i.e. that it takes about an hour from the last drink to reach your highest concentration. Another chemist testified to “potential side effects” of the narcotic analgesic and nervous system depressants, but admitted on cross that someone that had taken these types as long as client would have a pretty high tolerance level. Another chemist proved up the actual narcotic analgesic tablets found on client.

A pharmacist was called who also testified to the “potential” side effects of these drugs, but admitted that after a few years the narcotic analgesic in question could actually cause euphoric-like energy, and admitted to tolerance issues as well. All admitted that the levels in client’s blood were therapudic. Most admitted to the overt signs of intoxication by the drugs in question that we may have seen through a drug recognition exam (or simple medical exam), had client actually been tested (or his vital signs taken) at the hospital where the blood was drawn.

Cash.jpgI read a good article in the Dallas Morning News earlier this year about the DWI surcharge, and whether the Texas legislature would have the brains to end this failed program. Unintended consequences should always be thoroughly considered before levying a huge “surcharge” on driver’s licenses. I guess it’s kind of hard to think of unintended consequences when you only have six months to pass a bill, but five years of failed policy should at least get the item on the agenda this session.

Contrary to popular belief, the huge “surcharge” or DWI-tax-that-we-can’t-call-a-tax-because-then-it’s-unconstitutional, was passed as a way to raise revenue during a legislative session in which Texas once again found itself overbudget. Unfortunately, DWI defendants, who like most criminal defendants are indigent, failed to be the gold mine that our elected officials envisioned.

Of course, heaven forbid we consider making first-time driving while intoxicated an offense in which deferred adjudication probation is an option, to at least it bring it on par with sexual assault, drug delivery, robbery, and other apparently more “deferred worthy” offenses in Texas. Maybe then citizens who plead guilty to DWI would have more of a chance of keeping or getting a good job, whereby they could pay their outrageous surcharge.

Axe.jpgThe great “hidden fee” of DWI convictions, which neither the prosecutor nor the judge will tell you when one of them tries to talk you into pleading guilty without a lawyer, is the $1,000 to $2,000 a year “surcharge” tax you will pay for three years to keep your right to drive. As if the arrest, posting bail, shopping for an attorney, fighting the ALR hearing process, getting an occupation license if you are unsuccessful, and going through the Court process wasn’t enough, our legislature added this tax as one last giant hammer to wack those convicted of DWI (the guilty, the innocent, the underrepresented, and those talked into not having a lawyer) over the head with on the way out the door.

The DWI surcharge law, Transportation Code § 708.102, went into effect on September 1, 2003. It states, in relevant part, that

(b) Each year the department shall assess a surcharge on the license of each person who during the preceding 36-month period has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated.

blood_test.jpgIn Texas, should you refuse any breath or blood test requested by an officer if investigated for DWI? Yes. Of course. Every time. They are not asking for your breath or blood so they can “see if you are innocent.” They believe you are guilty and want more evidence to show to a judge or jury to prove you are guilty. The screwups in the machine and the blood draw work in their favor, not yours. Plus, if they take your blood, they will not even have the results for three, four, maybe more months down the road. You aren’t going home, and they will almost certainly not let you go home no matter the result of the test.

You have the fundamental right not be compelled to incriminate yourself. In Texas, you have both the right to remain silent and the right to refuse to consent to all breath and blood testing. There is no separate crime, as in many states, for refusing a breath or blood alcohol test upon an officer’s request. The officer will tell you that he will get a warrant. “Go get one, buddy.” First, he has to find a judge who is awake. Then he must prove probable cause by sworn affidavit. Then he must conduct the search in a reasonable manner. Make them jump through all these hoops. Never be intimidated by the threat of “getting a warrant.” If the officer gets a warrant, or a blood draw statute applies (repeat offender, child in car), he can force a blood draw. But make him get a warrant when that’s all he can do. What do you have to lose?