Archive for April, 2015

Fourth Amendment & Administrative DUI License Suspensions


Texas criminal defense attorneyIn the state of Texas, a driver who refuses to take a blood or breath test after a DUI arrest can have his license suspended for between 90 days and two years. The Texas Department of Public Safety also warns motorists that they can face a 90-day to two-year license suspension if they submit to a test of their blood-alcohol concentration and their BAC is .08 or higher.

A DUI defense lawyer knows that a suspension of your license can cause significant hardship. You have the right to challenge the license suspension. However, you have only a limited period of time in which to request a hearing to try to save your ability to drive. You should talk to a lawyer right away so you don’t miss the deadline and so you can prepare an argument for why you shouldn’t lose driving rights.

Administrative Suspensions Based on Illegally-Obtained Evidence?

While implied consent laws require that you submit to a breathalyzer test when police have reason to believe you are impaired, these laws require that a law enforcement officer have probable cause. Police must have a legitimate reason for pulling you over as well as a reason for asking you to take the BAC test. Otherwise your Fourth Amendment rights may be violated.

Recently, one case in North Carolina addressed what the rules are for an administrative license suspension when evidence is obtained in an illegal search. The North Carolina case arose out of a traffic stop in 2013.

A phone call had been made to police alerting them to the fact that a blue Ford Explorer was weaving and driving erratically. A law enforcement officer subsequently pulled over a woman who was driving a blue Ford Explorer. The officer did not actually see the driver weaving or doing anything wrong. During the time when the officer observed the motorist, she was driving fine and there was no justification for stopping her.

While stopped, the officer asked her to submit to a field sobriety test on the basis of allegations that she smelled like alcohol. She did not pass and was asked to take a BAC test after a DUI arrest, which she declined to do. This triggered a license suspension under the implied consent laws.

Her DUI case was subsequently dismissed because the illegally obtained evidence could not be used since the traffic stop was not legitimate. Although the criminal case against her was dismissed, her license suspension still remained in effect. She went to court, which ruled that the DMV couldn’t consider evidence that was obtained in violation of her rights. However, the DMV argued that the exclusionary rule preventing the use of the evidence in criminal court didn’t apply to the administrative suspension. The North Carolina appellate court agreed with the DMV.

The result essentially means drivers in North Carolina can have their license suspended based on an illegal traffic stop. This is a troubling example of how Fourth Amendment rights are being curtailed and defendants are suffering as a result.

Call Joseph LaBella & Associates today at 800-395-5951 or visit to speak with a Houston DUI defense lawyer. Serving Harris County, Montgomery County, and communities along Interstate 45 through The Woodlands and Conroe. 

Necessity as a Defense in Houston DUI Cases


Texas criminal defense attorneyAfter you are charged with driving under the influence in Houston, Harris County, Montgomery County, and surrounding areas, there are a number of different potential defenses that you could raise in order to try to avoid being convicted of these serious charges. A DUI defense lawyer can review the circumstances of your arrest and help you to determine what types of arguments may be most effective in order to help you avoid conviction.

Some lawmakers are considering added a new possible defense to DUI charges. This defense would allow people to justify the decision to drive while impaired if they needed to do so in order to protect their safety. This could provide important protections to people who drove while impaired because they had no other choice but to get behind the wheel after having consumed alcohol.

Proposal Could Allow a New DUI Defense

According to MPR News, bipartisan legislation is pending in Minnesota that would provide protection for people who drive impaired because their physical safety is at risk.

The legislation arose out of the case of a woman who was forced to drive while impaired because she was at risk of domestic violence. The woman had a fight with her husband in a cabin that the couple was sharing and she was afraid that she would be injured. As a result, she had no choice but to get in the car and drive a mile to safety despite the fact that she had consumed too much alcohol at dinner and she was over the legal limit.

Although her safety was at risk, she still had her driver’s license revoked under implied consent laws. The case went all the way to the Supreme Court, and a divided court upheld the revocation because there is no provision under state law that permitted her to use the risk to her safety as a defense in the civil proceeding against her. The Chief Justice indicated that it would be up to the Legislature to provide protection from DUI laws for domestic abuse victims. The new proposed bill is an effort to provide this protection.

The legislation adds a defense of necessity, and gives people accused of impaired driving the right to argue that the fear of serious injury could override the state’s right to revoke a driver’s license for driving drunk.

If the law passes, this could provide protection not only for people who drive because they are at risk of domestic violence but also in other situations as well, such as if a bar fight occurs and you need to leave the scene to avoid being injured.

The new law, if passed, will be specific to the state. However, the defense of necessity has been accepted in varying degrees throughout the United States among defendants accused of drunk driving. In Texas, Sec 9.22 addresses the defense of necessity. Necessity is a defense if you reasonably believe your actions are necessary to avoid imminent harm; the urgency of avoiding the harm outweighs the harm that the law seeks to prevent; and a legislative intent to exclude a necessity defense does not plainly appear.

An experienced DUI defense lawyer can help those who have been accused of driving under the influence to determine if they can raise a necessity defense in their particular case.

Call Joseph LaBella & Associates today at 800-395-5951 or visit to speak with a Houston DUI defense lawyer. Serving Harris County, Montgomery County, and communities along Interstate 45 through The Woodlands and Conroe.