Many people arrested for a first offense DWI mistakenly believe when scientific testing has occurred that it will be difficult or impossible to get an acquittal. The reality is those who conduct the tests are not infallible and mistakes happen regularly. If you can successfully get a jury to have any reasonable doubt about the quality of toxicology testing or blood alcohol concentration (BAC) testing, you may be able to avoid a guilty verdict.

Challenging Scientific Evidence in a First Offense DWI Case

Recently, evidence of problems with the work performed by one Texas official illustrated how unreliable scientific testing can sometimes be in DWI cases. ABC 13 reported dozens of DWI cases are at risk because of the poor work performed by the DWI breath test technical supervisor at one Texas police department.

The DWI breath test supervisor was responsible for overseeing all tests conducted on breath test machines, including the Intoxilyzer 5000. When breath test results were introduced in drunk driving cases, her technical expertise was highlighted by the prosecuting attorney and she often appeared in court to provide testimony. Unfortunately, many DUI defense attorneys began to notice serious problems with her work, though it was difficult to pinpoint exactly what the issues were or prove what errors she was making.

An internal investigation has now demonstrated her expertise was virtually non-existent and the “science” behind her supervision of breath tests was nothing more than junk science. The internal investigation into her work resulted in her termination because of a wide variety of performance issues.

ABC 13 obtained documents from the Internal Affairs investigation, in which one of her supervisors noted her work was so poorly done it was a “ticking time bomb.” Because many different departments contracted with her PD for its breath alcohol work, the internal affairs documents indicated the substandard quality of her work “could jeopardize nine police agencies in four different counties” and could “jeopardize the integrity of the entire program.” The department became aware of her performance issues at least as far back as 2014, and she was suspended at least once in 2015, but remained in her supervisory role until recently.

The fact she was able to continue working for two years despite known issues with her job performance illustrates there are lapses in the system designed to ensure the accuracy of breath tests. If a breath test or other chemical test is to be used against a drunk driving defendant, it needs to be 100 percent accurate and the process should be supervised by someone with actual credentials and experience. Whenever test results fall short of providing sufficient proof beyond a reasonable doubt of a defendant’s guilt in a DWI case, the defendant who has been accused of drunk driving based on a high BAC test should be acquitted of the charges.

Recently, a man in Texas was sentenced to life in prison after his ninth DWI charge. This was the man’s fifth trip to jail after being convicted of driving while impaired. In the most recent instance, he was involved in a collision and hit another car almost head-on. He ran to a nearby convenience store and asked a clerk to try to hide him, but was unsuccessful in evading police and faced charges. The judge indicated he did not believe the man could be rehabilitated, according to 6 ABC.

While this case is an unusual one and a life sentence for drunk driving is not common, cases like this illustrate the rapidly increasing penalties that can result from repeat drunk driving convictions. The fact that penalties become progressively more severe is one of many reasons why you need to take a first offense DWI seriously.

Unfortunately, many people who are charged with drunk driving do not know how to respond to their charges or how to protect their future, especially if this drunk driving charge is their first time dealing with the criminal justice system.

Mistakes to Avoid After a First Offense DWI

After a first offense DWI, there are common mistakes many defendants make because of their lack of familiarity with the Texas criminal justice system and because they are unaware of their options. Some of the mistakes you want to avoid include the following:

• Waiting to act. There are deadlines you need to meet to protect your license. You also want to try to gather evidence as soon as you can to ensure you have the best chance of a strong defense.
• Pleading guilty without exploring options. In some cases, pleading guilty is the best choice because there is strong evidence against you and limited options for defense. In many other situations, however, you may be able to avoid a conviction.  Even if you do decide you should plead guilty, you should make sure you try to get the best plea deal possible from a prosecutor.
• Assuming you will be found guilty for failing a BAC test. If your blood alcohol concentration was tested and was above the .08 legal limit, you might assume this evidence is enough to convict you. The reality is, there are ways to raise reasonable doubt about whether the evidence is accurate. There could also be ways to try to get the evidence suppressed so it cannot be used to secure a guilty verdict. Never assume you cannot be acquitted, even if the scientific evidence is not on your side.
• Not hiring a lawyer. You should have a lawyer looking out for your interests.

The best way to try for the most positive outcome possible after an arrest for impaired driving is to talk to an experienced attorney before responding to charges.

KXAN reported recently on a Texas man who was arrested for his fifth DWI.  The driver had caused a collision in I-35 which involved three automobiles. The driver’s blood alcohol concentration was allegedly found to be .262 on toxicology reports, which is significantly over the .08 legal limit that applies within the state of Texas.

Repeat DWI offenses are very common, but the state is making an effort to stop people from getting repeat convictions. As KXAN reported, this effort is focused on helping drivers to get back behind the wheel while making sure they are not able to drive drunk once they have the opportunity to resume driving.

If you are arrested and facing charges of a first offense DWI in Texas, you need to understand the state’s new approach to drunk driving offenders so you can make informed choice about how you wish to proceed.

New Texas Law Applies After a First Offense DWI In Texas

If you have been arrested for a first offense DWI in Texas, the penalties that you face include a possible fine up to $2,000, between three days incarceration and 180 days in jail, the loss of a license to drive for as long as one year, and an annual fee of between $1,000 and $2,000 to retain a driver’s license over the next three years. It is also common for car insurance rates to rise significantly. The DWI conviction could also remain on your criminal record, affecting opportunities for jobs and for furthering your education.

As KXAN reports, however, first time offenders who are found guilty of drunk driving may not have to face a long license suspension that affects their ability to drive to work obligations and to fulfill family obligations. This is because a new law, which went into effect in September, allows some first time offenders to continue driving as long as they install an ignition interlock device into their vehicle.

For a first offense, it is possible for an ignition interlock device to be used instead of a license suspension for between 90 days and one year. This option actually makes it difficult or impossible for someone to drive drunk because a driver has to blow into a breathalyzer test on the ignition interlock device which is installed in the car. If the BAC is above .08, the driver cannot drive the car.

Some research has shown an ignition interlock device can reduce repeat offenses, although other data suggests this effect lasts only as long as the device remains on the car. The good thing, however, is that if you are eligible, you can agree to have this device installed so you won’t face a lengthy license suspension.

This does not necessarily mean you should plead guilty to a first DWI offense or that there aren’t approaches to avoid conviction and avoid penalties entirely. It is important to explore all available options when charged with impaired driving so you can make the best choice for the short term as well as for your long-term future.

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

A DWI arrest in Texas could result in an administrative suspension of your drivers license, as well as criminal penalties if you are convicted of violating laws against driving while under the influence of either drugs or alcohol. The way you respond when you are arrested and charged is going to make a big impact on whether you are able to drive, as well as on whether you are convicted of driving while impaired.  You need to develop an effective legal strategy for dealing with charges, with the goal of avoiding penalties whenever possible or minimizing the consequences which could be associated with a guilty verdict after a DWI arrest.

What Should You Do After a DWI Arrest in Texas?

The first thing to do after a DWI arrest in Texas is to get legal help. Having an attorney can make the rest of the process much simpler since you will have a knowledgeable legal advocate looking out for you, advising you of deadlines, and assisting you in preparing your defense.

Another important thing to do right away is to deal with the administrative license suspension In Texas, you will have your license suspended automatically for 90 days if your blood alcohol concentration is .08 or higher. If you refuse to take a BAC test when there is legal justification for law enforcement to administer such testing, you will face an automatic 180 day license suspension. The administrative suspension is entirely separate from any criminal proceedings which will move forward against you. To fight it, you need to request a hearing.  Your attorney can help you to request a hearing and to make arguments against a license suspension.

In addition to dealing with the administrative suspension, you also have pending criminal charges. To respond to these charges, you must first decide how to plead. Even if you plan to plead guilty, you should try to do so in a strategic way. A prosecutor may be willing to give you a favorable plea deal — which could involve lesser charges or reduced penalties — if you negotiate with the prosecutor before admitting guilt.

If your plan is to plead not guilty, you should begin immediately looking for ways to undermine the prosecutor’s case against you. An acquittal can be secured if you introduce reasonable doubt, which means all you must do to avoid a guilty verdict is make it impossible for a prosecutor to meet the burden of proving guilty beyond a reasonable doubt. If you can make a jury question the way evidence was handled or tests were performed, this should be sufficient to be acquitted.

In some cases, you may also wish to prepare a motion to suppress, which is a request submitted to the court to prevent evidence from being used against you if the evidence was collected in violation of important Fourth Amendment protections. Your attorney can help you determine if it may be possible to stop the prosecutor from using certain evidence, and can assist in arguing to the court regarding why the evidence in question should not be admitted. Without evidence, an acquittal becomes more likely or the prosecutor may even have to drop the charges.

Teen drunk driving has declined dramatically since 1991.  According to USA Today, there has been a 54 percent reduction in the number of teenagers who get behind the wheel after consuming alcoholic beverages. Despite the dramatic decline in teen impaired driving, the law continues to impose more stringent limitations on young people when it comes to alcohol consumption and driving. Further, an arrest for DWI can result in harsh penalties for young people.

Teens and parents need to be aware of the tremendous consequences an impaired driving conviction can have as prom season and graduation season approaches. Both prom and graduation are times of year when rates of impaired driving among young people are historically higher.

Law enforcement officers are aware of the high rates of teen impaired driving during these events and there may be increased patrolling on both prom and graduation nights. Teens who are pulled over by police may unfortunately be unaware of their rights.   Parents and teens need to ensure they get help with DWI defense if an arrest occurs because a conviction for impaired driving can have profound consequences for a young person’s future.

Teens Face Added Risks of DWI Arrest During Prom and Graduation Season

When police increase patrolling efforts on special event nights, teens have a greater chance of being pulled over by police. Law enforcement officers are supposed to have probable cause before stopping a driver, but many teens are not aware that law enforcement shouldn’t force them to stop their cars unless they’ve broken a traffic law or have engaged in behavior that gives reason to suspect impairment.

Once a teen has been pulled over, few young people are going to be comfortable declining a field sobriety test or a breath test. Many young people are not aware of the fact these tests can be inaccurate and they do not realize they have the right to refuse to take them. Teens can be intimidated when pulled over by police and may not feel as comfortable as adults would in politely questioning the reason for the traffic stop or the justification for being asked to take tests of impairment.

Unfortunately, if a teen agrees to take these tests, this can provide further evidence to be used against them in a DWI case.  Teens can actually face consequences for impaired driving with a blood alcohol concentration that is far below the .08 legal limit for adults as a result of zero tolerance laws.  This means a young person could have just a small amount of alcohol and still be in trouble with the law.

When a teen does face consequences for impaired driving, the affects can also be more profound than the consequences for adults. Huffington Post warns that being arrested for impaired driving is one of the top five reasons why a young person might have a college admission rescinded. To prevent undesirable consequences, teens and their parents need to ensure they get prompt help to avoid an impaired driving conviction after a teen is pulled over on prom night or graduation.

A DWI charge is serious, but not as serious as being accused of causing an accident while driving under the influence. If you are accused of causing a collision while driving drunk, you can expect to face much more serious criminal charges with much harsher penalties.  Raising a vigorous DWI defense is absolutely essential when accused of an accident. In such cases, you can argue there is insufficient evidence of intoxication and/or insufficient evidence to prove your actions were actually the cause of the collision and any resulting injuries or deaths.

Unfortunately, it can sometimes be a challenge to successfully prove your actions were not the cause of an accident.  In one recent instance, for example, a driver who was allegedly drunk ended up being convicted of 10 different charges in connection with a DWI accident which left a police officer dead.  The problem is, the driver in this case was not actually the motorist who struck the police officer. As Pix11 reports, the prosecution of this driver marked the first time an allegedly impaired motorist was charged with manslaughter offenses in an incident where he wasn’t operating his vehicle at the time the death happened.

DWI Charges for An Accidental Death When Not Driving

The driver in this particular case reportedly had a blood alcohol concentration of .13 to 14 and got into his car upon leaving a night club.  He reportedly hit a BMW and disabled the steering on the BMW, then continued on the expressway before stopping short prior to an exit and causing an off-duty police officer to hit the brakes and suffer bone fractures. The allegedly impaired driver subsequently came to a stop with his vehicle on the HOV lane of the expressway.

A police officer responded to the scene and was securing the collision scene when an SUV approached. The SUV driver reportedly slow down his own vehicle, but not enough and did not see the police officer who was securing the crash scene. The driver of the SUV struck the police officer and killed the officer. The driver who actually hit and killed the officer, however, didn’t end up getting charged with any crime. In fact, he was given immunity in exchange for agreeing to testify against the person who was reportedly drunk but whose vehicle was at rest in the HOV lane at the time the officer was killed.

The allegedly drunk driver faced multiple charges and was convicted of 10 different offenses, including manslaughter for the death of the officer. The case shows how far prosecutors are willing to go to try to secure convictions against people who are impaired, and shows juries are often eager to convict at a time when there has been extensive public advocacy on drunk driving prevention.  It is a landmark case because it could lead to attempts to hold allegedly impaired defendants accountable even for crashes which they are not the direct immediate cause of.

Many defendants who are arrested for impaired driving undergo testing of their blood, breath, or urine in order to determine the level of drugs or alcohol in their system. Prosecutors use toxicology tests and lab reports to show a defendant was too impaired to drive. Defendants who know there are lab results indicating impairment may feel as if this evidence is sufficient for a prosecutor to meet the burden of proof, demonstrate guilt beyond a reasonable doubt, and secure a conviction.

The reality, however, is scientific testing is imperfect and it is often possible to mount a successful Texas DWI defense, even if there are lab results showing levels of drugs or alcohol above legal limits. Lab tests are not always accurate, and even the Department of Justice has expressed concerns about many of the crime labs throughout the country which perform various types of testing used in criminal cases.

Lab Results Can be Called Into Question as a DWI Defense

Labs throughout the country are asked to process all different kinds of information, as scientific evidence is important not just in DWI cases but also when serious crimes are committed. Many people believe these crime labs are subject to the strictest standards for accuracy and quality control because defendants’ futures hang in the balance.

According to a recent PBS report, however, these crime labs are subject to very little oversight, mistakes are common, and many cases have had to be re-tried or verdicts have been thrown out as a result of problems with lab testing.

The Department of Justice has put forth a plan to try to fix myriad problems at crime labs. DOJ says labs that work with the Department of Justice will need to be accredited by 2020. This “solution” however, does little to actually fix problems with labs throughout the United States. First, the plan provides an out because it only requires an accredited labs be used when practicable- so an argument can be made to use a non-accredited lab if there isn’t an accredited one available right away to conduct testing. Second, most crimes- like DWI- are not prosecuted by the Department of Justice but instead are prosecuted on the state level, so this requirement won’t even apply.

The DOJ’s plan is also woefully inadequate because accreditation is not necessarily a difficult process. Most accreditors actually let labs determine which cases to provide for review during the accreditation process. Of course, labs are going to submit only cases for review where they are sure they have followed quality control protocols. Even with this lax standard, 17 percent of public crime labs aren’t accredited and accreditation rates at private labs are likely even lower. One of the major accrediting agencies has accredited 356 publicly funded labs but just 26 privately funded labs.

Because there are such serious issues with labs throughout the country, DWI defendants shouldn’t necessarily assume any lab testing done in their impaired driving case is going to be accurate enough that it cannot be challenged with a good DWI defense.

Police, prosecutors, and lawmakers have routinely passed strict laws against drunk driving and have sometimes engaged in tactics to enforce DWI laws which abridge defendants’ rights.

In 2013, a case came before the Supreme Court called Missouri v. McNeely. The case addressed a claim by police that they could conduct a blood test to determine blood alcohol concentration (BAC) even if the driver did not consent to the test and even if no warrant had been obtained. The police said this was justified because of exigent circumstances – the body was metabolizing the alcohol and the evidence of impaired driving was being destroyed.

Fortunately, the Supreme Court ruled the body’s metabolic processing of alcohol was not an exigent circumstances and said a warrant (or consent) was required or a blood test was an unconstitutional search.

Unfortunately, however, the rights protected in McNeely to be free of warrantless blood searches are now being abridged throughout the United States. The Supreme Court has now been forced to become involved again in litigating the rights of DWI defendants and the court’s decision could have a profound impact on the rights of alleged impaired drivers nationwide.

Supreme Court to Address DWI Defendants Rights

Two major cases have come before the U.S. Supreme Court:  Bernard v. Minnesota and Birchfield v. North Dakota. Both cases center on the increasing trend of states to criminalize a refusal to undergo a blood test when suspected of impaired driving.

There are currently 13 states which have made it illegal for defendants to refuse to take a blood test. In these states, drivers are essentially told to consent to a warrantless search or face criminal charges and go to jail… despite the fact McNeely said police either had to get consent or get a warrant before making DWI defendants take blood tests.

More states are expected to pass similar criminal laws, so the decision the Supreme Court will make on the constitutionality of these criminal laws is going to impact every driver nationwide who is suspected of impaired driving.

The court in Hawaii recently addressed the issue of whether it was constitutional to criminalize a refusal to submit to a warrantless blood search, which is essentially the same question the U.S. Supreme Court will be considering. The case involved a driver who had refused consent to a blood test initially. However, when he was told he could be imprisoned for 30 days, he signed the consent form.

The Hawaii Supreme Court held the consent was not given freely, but rather was coerced and the defendant’s constitutional rights were violated. His conviction was reversed.  The decision of the Hawaii Supreme Court, however, do not offer any relief to defendants outside of Hawaii, since the decision applies only in the state.

Hopefully, the Supreme Court will also determine McNeely is undermined by criminal laws imposing penalties for refusal to take a blood test. Defendants are essentially left with the choice of criminal penalties or submitting to a warrantless search. If the Supreme Court decides this is OK, more defendants nationwide can expect to be put into a position of forced consent, as states continue the trend of criminalizing blood test refusal.

In 2013, there was a decline in the number of impaired driving arrests in Houston over Thanksgiving weekend. Your Houston News reported one local prosecutor believed the decline in arrests was due to no refusal weekends. No refusal weekends routinely go into effect in Houston on holidays like Memorial Day or Thanksgiving day.

During these times, you are unable to refuse a test of your blood alcohol concentration if you are pulled over and there is probable cause to suspect impairment. If you do not agree to take field sobriety or handheld breath tests, you could be transported to a hospital nearby to undergo a blood test.

Drivers need to be aware of the impact of no refusal weekends on their rights, and need to be cognizant of the fact police will be out in full force over Thanksgiving weekend in an effort to identify suspected impaired drivers. If you are arrested and charged with DWI, you need to explore your options for DWI defense so you can fight to keep your license and aim to avoid consequences like jail time and higher insurance costs.

Houston Drivers Face Added Enforcement Efforts Over Thanksgiving

In 2014, the Texas Court of Appeals ruled it was unlawful for police to force suspected drunk drivers to undergo BAC tests without first securing a warrant. The actions of officers to force testing was considered a violation of Constitutional rights because it was an unlawful warrantless search. Houston Public Media indicated this ruling could put an end to no refusal weekends, including one scheduled for the upcoming Thanksgiving holiday weekend.

The reality, however, is the decision did not actually stop police from using these harsh tactics to try to arrest allegedly impaired drivers. Instead, as Star Telegram reported, a local district attorney in one location in Texas simply said they would find a way to make sure warrants could be issued immediately. This meant those suspected of impaired driving would still be subject to the no refusal requirement to give blood to see if they were impaired. The solution came in the form of having judges on call on holiday weekends to sign warrants, which could be sent via fax or email.

With this quick fix in place, law enforcement was able to continue scheduling no refusal weekends during times considered high risk. Those who drive on holidays, including over Thanksgiving weekend, are thus still at risk of being unable to refuse testing and being forced to take a blood test after being pulled over.

If your BAC is tested after you are pulled over for Thanksgiving, you need to make sure police followed proper protocol both for the initial traffic stop and for subsequent actions leading to a warrant being secured and your alcohol levels being tested. In their zeal to make arrests over Thanksgiving, which is considered a high-risk day for drunk driving, the rights of motorists may be infringed. If this happens to you, evidence obtained illegally cannot be used to convict you of DWI.

Football and alcohol-use seem to go hand-in-hand, both for players and fans. According to USA Today, on average, NFL players are arrested for impaired driving between 13 and 14 times annually. NFL players have faced 177 arrests since January 2007 for driving under the influence of alcohol and drugs, and three NFL players have caused fatal accidents while allegedly impaired.

Football fans also commonly face arrest during football season, especially as police tend to be on the lookout for impaired drivers on game days.

One University of Texas study found football games are among the days with the heaviest alcohol consumption over the course of the year. Of Texans who drink, 51 percent said they consumed three or more alcoholic beverages while watching football games and the Texas Department of Transportation indicated 45 percent of those motorists drove home. Police are often present around stadiums when the Houston Texans or Dallas Cowboys are playing to catch drunk drivers.

If you are pulled over after attending a football party or game, you may find yourself forced to submit to a test of your blood alcohol concentration. If you are found to be over-the-limit, you could be arrested and charged with impaired driving. You need to understand what your legal rights are and what to do after an arrest for DWI during football season.

What to Do If You Are Arrested For a DWI During Football Season

If you are arrested for a DWI during football season, the steps to take after the arrest are the same as they would be any time of the year – you need to contact an experienced attorney. Your lawyer will help you to decide if you should plead guilty to try to reduce penalties or if you can raise defenses.

Many people arrested after watching a football event end up with a blood alcohol concentration that is above .08 percent. If you consume three or more drinks while watching football and then you drive home, there is a very real possibility you could have a blood alcohol concentration above the permissible level. However, even having a high BAC does not necessarily mean you are going to be convicted. Just recently, ABC reported on forensic errors in a crime lab in Chicago that were jeopardizing DWI prosecutions.

Attorneys defending a client accused of causing a drunk driving accident were able to recover internal audits showing the crime lab expressed concern about evidence handling and scientific methods. Subsequent investigations showed numerous problems at the testing lab including mixing up test results, improperly destroying samples, and improperly calibrated equipment. When there are problems with tests, it is possible the evidence won’t be able to be used effectively by prosecutors to secure a conviction.

Forensic evidence including the results of blood and urine tests for alcohol can often be challenged, and a DWI defense lawyer can help determine how you can best defend yourself if you are arrested for impaired driving during football season.