Articles Posted in Driving While Intoxicated

BloodDraw2-225x300However, Texas allows the admissibility of medical laboratory blood that is drawn and tested at hospitals using indirect enzyme tests to be admissible in a driving while intoxicated case. This is despite the fact that the testing is a much less reliable enzyme test through a chemical reaction that is not testing only ethanol quantitatively or forensically.  Normally, only blood plasma is tested, not whole blood, even though the driving while intoxicated statute says whole blood.  Thus, a conversion formula is used even though each person’s plasma ratio is different.

Hospital blood testing is for medical purposes and is generated to give medical providers a quick snapshot of the patient’s blood for medical treatment purposes.  The machines are typically calibrated every six months or so, unlike a gas chromatograph which is calibrated every day.  They may run quality control checks, but this is not calibration.  Hospital blood testing normally cannot tell the difference between ethanol and isopropanol that is used to clean a blood draw site, and cannot tell the difference between ethanol and acetone and other chemicals, including chemicals in IV bags.

Hospitals also normally only run one test a day, rather than two tests on the same sample that the Department of Public Safety runs on a gas chromatography machine.  These tests have up to a 25% error rate, which means that close cases should not normally be filed and should certainly be litigated if so.  Also, these machines are not required to run a forensic test curve of five points like a gas chromatograph machine, which is the minimum for a forensically reliable sample.  Additionally, we often do not get computer generated printouts of how the machine came to the calculation it did, another check on forensic quality.  Finally, a hospital blood test does not have internal standards, which a Department of Public Safety test uses to test that the machine is actually reading ethanol alone.  Without these internal standards, we do not know what the actual ethanol level in the plasma sample actually is.

siemens-rapid-lab-1265-1200-series-blood-gas-analyzer-sw-3-3-1-300x225I saw a Nick Saban quote online that addresses that there are few choices in life when we want to succeed.  There are not many ways to do things the right way, usually only one way works.  Coach Saban said “[w]e have a younger generation that isn’t told no or told exactly how to do it.  As a consequence, many young people have this illusion they can do what they want. The fact of the matter is that if you want to be good, you really don’t have a lot of choices.  It takes what it takes. You have to do what you have to do to be successful.”

Nowhere is this more important that in chemical testing blood, breath, DNA and other samples in order to convict or acquit them of criminal accusations that could lead to prison, jail or probation.   Over the last few years, Texas has taken forensic science much more seriously after a white guy named Michael Morton was proved to have been unlawfully convicted of his wife’s death and served 25 years in prison for a crime he did not commit.   For this, we have the Michael Morton discovery act which ensures an open-file, proactive discovery policy in criminal cases.

We also have a Texas forensic science commission to push our crime laboratories to be the best they can possibly be.  This is done by using correct procedures and documenting correct procedures time after time.   As for DWI, blood is tested by the Department of Public Safety in its crime laboratory using a gas chromatograph that I will discuss later, but has narrower issues and error rates than hospital blood testing.  It is normally operator error that will make a forensic blood test drawn at a Department of Public Safety lab unreliable.  There, chemists are supervised by other chemists in a forensic setting with high standards and procedures to follow.  More on that later.

lawbooks-1These policies have changed the dynamics of DWI defense in Grayson and Collin County.   When I started practicing, around half of DWI trials did not involve a chemical test, but now almost all of them do.   Back then we would mainly argue over the performance and validity of the field sobriety testing, which we still do, and the way a person looks on video.  But, the addition of chemical test evidence means that you now more than ever need a highly trained DWI lawyer like myself who has been thoroughly trained on all aspects of DWI defense.   There are more technical issues in a driving while intoxicated prosecution than most other cases, including most homicides.

You need to ask any attorney you interview with how well they have kept themselves updated and trained in DWI science.  I have learned that you really cannot do too much training on these cases.  The science is very broad and it is important to know every aspect one can to be competent to defend DWIs.   I have taken the same field sobriety training and update as the officers in the field, and have taken many DWI science courses to be able to successfully defend those accused of driving while intoxicated in Texas.   I want to be the best criminal defense lawyer I can be, and in Texas this means being the best DWI lawyer I can be too.  I look forward to discussing your case with you if you are involved in this unfortunate situation.

test-tubes-1412883-200x300While on this point, people often ask whether they should take a chemical test when arrested for driving while intoxicated.   Our general response as defense attorneys is NO, because there are a lot of things that can go wrong with chemical testing.   Both breath testing and blood testing are inexact sciences, and there are lots of human and mechanical errors that can happen to give you a much different result than your actual blood alcohol content.  The test is also completely in the hands of the State, and officers and the laboratory employees can tamper with or mishandle the evidence.  Also, if your blood alcohol content is above the legal DWI limit of .08, you are only producing evidence against yourself.

However, if you are sure your blood alcohol content is zero or close to it, it might be to your advantage to take such a test assuming everything goes right.  Also, there is a shorter ALR license suspension for a chemical test failure, as you are implied by law to consent to chemical testing upon request by law enforcement.    Additionally, Grayson and Collin County have a “no refusal” policy for driving while intoxicated, and a warrant will almost always be applied for by the officer and obtained from a judge.   They will likely take you to the hospital and draw your blood with a warrant upon refusal.   So, the general answer is still that one should refuse a breath or blood test upon request as far as a DWI case is concerned, but they will normally get your blood through search warrant.   However, there are challenges to the search warrant that can be had if it is not proper.

PoliceMustang-1-300x169However, this is not the case with a Grayson or Collin County, Texas DWI.   Grayson County has a policy of no alternative charges for DWI, and I have never seen themgive a public intoxication or an obstruction of highway/passageway on a local driving while intoxicated charge.   Theywould rather let a jury decide your fate than do this, which is why it is very important to hire a real DWI trial lawyer immediately if you have been arrested.    The only way your case is going to “go away” without a finding of guilt on a DWI is for it to be dismissed, which is rare and is normally in the circumstances of a bad stop or arrest (brought up by a good suppression motion), or because your chemical blood alcohol test came out very well for you.   Or, if you have prior military service and are admitted and complete Veterans court, you can obtain a pretrial diversion.  Pretrial diversion is similar to probation but contractual, and only upon completion of the contract terms will your case be dismissed.

So, if you have been arrested for driving while intoxicated in Grayson or Collin County, Texas, you need to hire a lawyer and get ready to fight.   It is still very important to hire a lawyer with 15-days of arrest so that they can get your administrative license revocation request to DPS.  This has to be done within 15 days of arrest, or within 20 days of receiving a notice of suspension in the mail. This request will keep your license valid until a contested ALR hearing in front of an administrative judge.   This hearing is limited to whether there was a valid reason to stop and arrest you for DWI, and if you failed a chemical test if you consented to it.   It is a hearing that should only be attended by your attorney, because it is civil in nature and you can be called as a witness.  You can invoke your 5th Amendment privilege against testifying at this hearing, but it can be held against you as to the answers to the questions posed.   These hearings have become harder to win since 2009, as the legislature has continuously eliminated many statutory rights of Respondents at these hearings.  But, they are still winnable if handled correctly, and are an important reason to hire a seasoned DWI lawyer immediately.

Cuffed-300x226 I haven’t written a DWI blog in a bit, so I think it is time to do an update.  Grayson County, Texas are particularly strict jurisdictions when it comes to driving while intoxicated, but there are still ways to have a better case and a better result in your case.  Grayson and Collin County District Attorneys run on a platform of strict DWI enforcement, and the counties are very Republican.  So, they pays particular importance to DWI cases.   But since I began practicing in 2005, I have seen some small shifts (and improvements) in the ways that driving while intoxicated is enforced in these and neighboring counties.

If you are arrested for a Texas DWI in many small counties, you can ask for a “reduced” or alternative charge and sometimes get one.   There is technically no lesser included offense to first time driving while intoxicated, and the lesser included offenses to DWI2nd or DWI3rd are just that you have a fewer number of prior convictions.  Class C (traffic ticket level) public intoxication is not a lesser included offense of driving while intoxicated, because public intoxication requires you be so intoxicated as to be a danger to yourself or others.   Obstructing a highway/passageway is another misdemeanor that we try to alternatively get as DWI defenders, because it is not a DWI conviction.   Thus, it does not normally carry the heavy $1000-2000 a year surcharge for three years on your driver’s license, nor require all the conditions of probations as driving while intoxicated.  In many small counties, you can successfully shoot for one of these two charges if your DWI is a close case and in other circumstances.

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.

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