A driver in Texas who is found guilty of operating a vehicle while impaired by alcohol can face a suspension of a personal driver’s license. Not being able to drive is a major problem for most people, as work and family commitments may be difficult to fulfill without a valid driver’s license. For those with a commercial driver’s license (CDL) however, the loss of a license can mean the end of a career.

A commercial driver’s license holder can have his CDL suspended both for a drunk driving conviction while operating his own personal vehicle and for a drunk driving conviction while operating his commercial vehicle.   Because conviction can lead to a lengthy CDL suspension or a lifetime revocation, it is very important for a Houston commercial driver to raise a strong DWI defense if he is accused of breaking Texas laws on impaired driving.

Why You Need a Good DWI Defense When You Have a CDL

Most truckers in Texas who drive passenger vehicles or big trucks are subject to regulations established on the national level called Federal Motor Carrier Safety Regulations (FMCSRs). The regulations are passed and enforced by Federal Motor Carrier Safety Administration (FMCSA).

FMCSR 383.51 is the relevant federal regulation addressing the situations under which a commercial license can be suspended.  A CDL suspension may occur after:

• A refusal to take a blood alcohol concentration (BAC) test when there is probable cause the driver is impaired by drugs or by alcohol.
• A conviction for driving drunk while in a personal car.
• A conviction for driving under the influence of a controlled substance, or any combination of drugs and alcohol, while in a personal car.
• A conviction for driving drunk or under the influence of drugs or controlled substances while operating a commercial motor vehicle.

A commercial motor vehicle is typically defined as a truck with a gross weight rating of 26,001 or more pounds or a tow trailer of 10,000 or more pounds. Vehicles that are able to transport 16 or more people, including the driver, may also be considered commercial vehicles.

When a driver is in a commercial vehicle and refuses to take a BAC test or is considered to be impaired by alcohol or other substances, the driver could face:

• A one year CDL suspension for a first conviction.
• A three year CDL suspension for a first conviction while operating a vehicle that contains HAZMAT/ hazardous material.
• A lifetime revocation of a CDL for a second conviction.

Under Texas law, as throughout the United States, there is a lower limit set for drivers who are operating a commercial motor vehicle. A CDL holder in a truck or passenger vehicle is considered to be in violation of impaired driving laws as soon as his BAC is .04 percent. The lower limit is set at half of the standard limit in a passenger car.

Because a DWI can mean the suspension or lifetime loss of your CDL, you need to develop a very effective DWI defense if you don’t want to lose your professional license and career.

Texas Vehicle Code Section 724 provides rules on implied consent. Under this law, an individual driving or operating a boat within the state gives consent to chemical testing to determine if the individual is breaking the law by driving while driving. If a defendant refuses to submit to a test when there is probable cause of impairment, this can result in a license suspension. The refusal to submit to the testing may also be used against defendant in subsequent criminal proceedings, including in a trial for impaired driving.

When you are facing drunk driving charges and the prosecutor is going to use your BAC test refusal against you, it is important to talk with a DWI defense lawyer about what your options are for defending yourself. You do not want the jury to be convinced of your impairment by your refusal to take the test, and your attorney should help develop an effective legal strategy to try to ensure this does not happen.

Defenses to Drunk Driving Charges After Refusing to Take a BAC Test

In every drunk driving case, it is important to develop a strategic plan for how you will defend yourself from accusations you operated your vehicle while impaired. In cases where you have refused to take a breathalyzer test, an explanation for the refusal generally must be incorporated in some way into the defense because the prosecutor may submit your refusal to provide proof you knew you were too impaired to be behind the wheel.

A strategic defense must be crafted that is specific to the facts of your case and that provides you with compelling arguments to make to a jury. A Bar Association article addressed some of the issues paramount to creation of an effective DUI defense when you have declined to take a chemical test in spite of implied consent law.

One of the best outcomes after a chemical test refusal is to successfully motion to suppress evidence of the refusal. You have the right to be informed of the Texas implied consent laws and to be alerted to the fact declining the testing will result in a license suspension and can be used against you. If you were not warned of the consequences of refusing to take the chemical test, it is possible the evidence obtained may be considered inadmissible in court. The prosecutor will not be able to present to the jury the fact you refused to take the test.

If evidence cannot be suppressed, then there are different approaches to take to try to ensure the prosecutor cannot successfully prove you’re guilty by showing you did not take submit to the testing.

When police pull you over, they may ask you questions like whether you have consumed any alcohol. A law enforcement officer may also ask you how much you’ve had to drink.

Many people pulled over by police incorrectly believe evidence obtained cannot be used against them if they weren’t given a Miranda warning before they answered questions. This is not necessarily true. While evidence collected in violation of your rights can’t be used against you in a drunk driving case, police aren’t required to read your rights every time you have an interaction.

It is important to determine when your rights actually were violated so you can make a compelling legal argument to keep illegally obtained evidence from being used. You should consult with an experienced DWI defense lawyer after you’ve been charged for help with the process.

When Must Police Mirandize You in DWI Cases?

You’ve probably seen police reading people their rights on TV. This is called Mirandizing, and involves delivering the Miranda warning i.e. telling you you have the right to remain silent and to call a lawyer. Police have to go through this recitation of your rights before a custodial interrogation or prosecutors won’t be able to use any statements you make during the interrogation.

When you are subject to a traffic stop, you could make an argument you are in custody. Custody is typically defined as subject to the common restrains of arrest and/or being in a situation where you do not feel free to leave the presence of officers. You can’t just drive away when police stop your car.

You could also make an argument you’re being interrogated if police ask you questions about whether you’ve had anything to drink. The answers to these questions could result in your arrest and prosecution, and anything you say can be used against you.

Despite this, the Supreme Court ruled in Berkemer v. McCarty there’s no Miranda warning required before police talk to you at a roadside stop because: “In short, the atmosphere surrounding an ordinary traffic stop is substantially less “police dominated” than that surrounding the kinds of interrogation at issue in Miranda.” If you are formally arrested for DWI, however, police must at this point give you a Miranda warning because you are being taken into custody. If police arrest you without reading your rights, you can petition to have evidence suppressed if it was collected during a subsequent interrogation. Evidence suppressed can’t be used to secure a conviction.

Prosecutors have the legal burden of proving drunk driving occurred beyond a reasonable doubt. There are times when evidence can be suppressed, like if you were pulled over without probable cause. An attorney can provide assistance determining if the Fourth Amendment was violated in your case. A failure of police to read your Miranda rights as soon as you’re stopped is not likely to be one of these situations where a constitutional argument will work to prevent evidence from being presented.

In 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 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. 

After 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 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. 

Drunk drivers throughout Harris County, Montgomery County and surrounding areas face many serious criminal penalties when they are convicted of driving under the influence. A criminal record can limit future job opportunities. The temporary suspension of a license can make it difficult to fulfill personal, professional and family obligations. The record of the DWI  can raise insurance costs for years to come, and the fines and costs from the trial and penalties can be financially devastating.

These consequences are very harsh for someone who may have just had a momentary lapse in judgment or made a simple mistake and who was convicted for impaired driving as a result. Yet, even with DWIs carrying such stringent penalties, a DWI defense lawyer knows that lawmakers regularly take steps to come down even harder on drunk drivers. In part, this is because of intense pressure from public advocacy groups like Mothers Against Drunk Driving.

Whatever the motivation, lawmakers in one state are considering imposing draconian restrictions unlike any that currently exist.

Could States Prevent Drunk Drivers From Buying Alcohol?

According to Fox News, a senator in Oklahoma has introduced a bill that would give judges the authority to impose and enforce alcohol restrictions on people as a consequence of impaired driving charges. Senate Bill 30 requests that procedures be developed to require drunk driving offenders to refrain from buying or even consuming alcohol for a period of time that is up to the discretion of the judge.

There are currently no laws anywhere the country imposing a blanket prohibition on any group’s right to consume alcohol after reaching the legal drinking age of 21. There are significant questions about whether this proposed law would even be constitutional. There are also practical enforcement questions. For example, would restaurants be allowed to serve food that had alcohol in it to someone who had been convicted of drunk driving, or would a DUI offender still be able to take communion or participate in religious ceremonies that involve alcohol?

The bill does not spell out answers to these questions. The proposed law sets forth the general guidelines for how the prohibition would work. DWI offenders would be required to order and use a replacement identification that had the words “Alcohol Restricted”  printed on its front. As a result, when people have to show ID to buy alcohol, the clerk would be alerted that the buyer was not allowed to make the purchase.  The law also specifies that if someone was caught buying alcohol for anyone that he or she knew was alcohol restricted, that person could face felony charges. Penalties could include up to a year of jail time and up to $1,000 in fines.

If Oklahoma does pass this law, it will apply only in-state and won’t directly affect Texans. However, other states could adopt similar laws if Oklahoma leads the way. This would significantly curtail the rights of people who have faced drunk driving charges.

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

In Harris County, Montgomery County, Houston and the entire state of Texas, drivers give implied consent when they get behind the wheel. Essentially, this means they have given their permission for law enforcement to test their blood-alcohol concentration. Police cannot just test your BAC whenever they want to, though. They will need to have probable cause or a reasonable suspicion that you have consumed too much alcohol to be safely behind the wheel.

There have been many legal disputes and court cases attempting to clarify the extent of the power of law enforcement when it comes to stopping potentially drunk drivers and testing the level of alcohol in their bodies. The disputes typically center around whether the accused’s Fourth Amendment rights against unreasonable search and seizure were violated. The defendant will petition to the court, arguing that evidence was collected illegally. If the court agrees, then the judge will order the evidence suppressed. The evidence, as well as any other information that police obtained as a direct result of the illegal search, will not be admissible by the prosecutor. Since the illegal evidence cannot be used against you, the prosecutor may have to drop the charges if there’s no other proof of your intoxication.

One recent dispute has navigated its way through the legal system and the Denver Post reports that the case may be heard by the U.S. Supreme Court. This means that the decisions of the Supreme Court will apply to every defendant in a criminal case for drunk driving throughout the United States.

How Far Can Police Go Without a Warrant? 

The case, People v. Schaufele, which the Supreme Court may announce a decision to hear as early as January, originates from an accident that began at around 7:15 in the morning at a busy intersection. An allegedly disoriented driver was found at the scene after hitting an oncoming car. The driver was transported to the hospital.

No one reported smelling alcohol on the man, and law enforcement attributed the driver’s initial confusion to post traumatic stress from the accident. However, the fourth law enforcement officer to come into contact with him smelled alcohol on him. An officer at the hospital also indicated that he detected the scent of alcohol. That officer tried to inform the driver that a blood test would be taken to determine intoxication. The driver, however, was unconscious or asleep and did not give consent.

There was no warrant obtained before the test was administered. The results revealed that the driver had a blood-alcohol concentration around three times over the .08 legal limit. As a result, the driver was charged with four counts, including drunk driving.

He pled not guilty and sought to have the evidence suppressed because the blood test allegedly violated his rights. The Supreme Court in Colorado, where the arrest occurred, agreed that the blood draw should not be used. The case has been appealed to the U.S. Supreme Court, which would make the decision about whether this type of evidence is admissible. Future drunk driving defendants will be affected by this ruling, as it could impact evidence collection procedures and the kinds of evidence that can be used in court.

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. 

When you are charged with driving while impaired (DWI) in Texas, you generally face misdemeanor charges. A misdemeanor is a crime for which the penalty is a year of jail time or less. In most cases, a first time drunk driving offender will be able to avoid jail entirely or will spend only a short time in jail.

Unfortunately in some cases, an incident of drunk driving can lead to a felony charge. A felony is a crime for which you face more than a year of prison time, as well as other potential consequences such as the loss of voting rights. 

A felony is much more serious than a conviction for a misdemeanor. It will follow you the rest of your life. While it is always important to get legal help from a DWI defense lawyer in a situation where you have been charged with impaired driving, it is especially essential in cases where you are facing felony charges. Your attorney can help you to determine the extent of the potential penalties, as well as assist you in understanding what you need to do to try to plea bargain down the charges or avoid conviction.

When Does a DWI in Texas Become a Felony? 

A DWI criminal charge is upgraded from misdemeanor to felony when there are aggravated circumstances. There are many different situations where you may be charged with felony drunk driving under Title 10 Chapter 49 of the Texas Penal Code. For example, you may be charged with felony drunk driving if:

• You have a minor in your vehicle who is under the age of 15.
• Your drunk driving results in an accident in which someone suffers serious bodily injury. This is called intoxication assault, and it can result in third-degree felony charges. Serious bodily injury is defined as a situation where there was a substantial risk that the victim would die or experience permanent disfigurement. A minor accident that results in a few mild injuries typically will not result in you being charged with a third-degree felony for intoxication assault.
• Your drunk driving causes a fatal accident. If someone dies in a motor vehicle accident you cause while impaired by alcohol or drugs, you face second-degree felony charges for intoxication manslaughter.
• You cause harm to a police or law enforcement officer, emergency medical personnel or a firefighter. If you harm any of these safety professionals while you are drunk and they are working in the line of duty, you could be charged with a second-degree felony, whereas if you caused a similar type of harm to someone else who was not a peace officer or within these special categories, you would face only third-degree felony charges. In the event you cause a death to one of these public servants, then you could be charged with a first-degree felony.
• You have prior drunk driving convictions. If you have two prior convictions for misdemeanor drunk driving, your third conviction would be a felony conviction.

If aggravating factors exist in your drunk driving case, be sure to call an attorney as soon as possible.

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

In the state of Texas, drivers who have two or more drunk driving convictions over a period of five years are required to install an ignition interlock device in their vehicles. Drivers who are arrested for a first offense must also have an ignition interlock device installed on cars that they own. Motorists must pay for the cost of the ignition interlock device. The device typically must remain on a vehicle for at least one year following the period when a license is suspended.

An ignition interlock device can be costly to install and operate, and it can be burdensome and embarrassing as all drivers who use the vehicle must blow into the device in order for the car to start. Unfortunately, the only way to avoid having an ignition interlock device installed is to avoid a conviction for an offense that would trigger the IID requirement. A DUI defense lawyer can assist you in defending yourself or exploring plea bargain or diversion options to avoid a conviction that could trigger the required use of an ignition interlock device.

Do Ignition Interlock Devices Work to Prevent Impaired Driving?

Mothers Against Drunk Driving (MADD) revealed that there were around 305,000 ignition interlock devices installed in the United States as of 2013. The use of ignition interlock devices has increased at a rate of 30,000 units every single year over the past eight years.

An ignition interlock device works by making it impossible to start a vehicle until you blow into a device installed on the dashboard that tests your blood-alcohol concentration. If your BAC exceeds .02, the vehicle will not start. There are also rolling retests that are required to ensure that the driver who initially blew into the test is the one operating the vehicle and is staying sober during operation. A rolling retest gives the driver a limited period of time to have his BAC tested again after he is driving. A failure to take the test, or a BAC above the limit, results in an alarm going off and the driver must stop operating the vehicle.

Because ignition interlock devices essentially make it impossible to drive drunk, there is a decrease in re-arrests among people who have been required to have these devices put into their vehicles. However, research has shown that the devices only have an impact for as long as they are actually installed in the car. After an ignition interlock device is removed from a person’s vehicle, the rate of re-arrest for a subsequent drunk driving offense returns to normal.

This suggests that these devices do little to actually solve problems that may cause people to drive while impaired. They are expensive, and have no long-term benefits so regulators may be better off finding alternative ways to stop drunk driving. Offenders may also benefit from being able to negotiate plea bargains or enter into diversion programs that provide drug and alcohol counseling rather than being convicted and simply having to pay huge sums of money to have an ignition interlock device put into their car.

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. 

If you are charged with driving impaired and your blood-alcohol concentration is over-the-limit in Texas, it may seem difficult to mount a defense. After all, the science says that you are too impaired to be safely on the roads.

As a DUI defense lawyer knows, however, blood and breath tests are not  accurate and plenty of mistakes can be made. You need to have a full understanding of your rights and explore ways to introduce doubt about the accuracy of tests if you have been charged with impaired driving. Recently, mistakes made in one PA county show just how easy it is for errors to lead to the conviction of innocent people for impaired driving.

DUIs Can Be Calculated Incorrectly
According to the Sun Gazette, a Pennsylvania county has made serious mistakes when determining whether motorists were impaired.

A local hospital was responsible for testing drivers to see if they were over the legal limit of .08. Unfortunately, the hospital incorrectly tested motorist blood serum, nor the motorists’ whole blood. The result was that blood-alcohol content of motorists was overestimated by as much as 15 percent.

Testing blood serum can be an acceptable way to determine if someone is drunk. However, a calculation must be done in order to convert the percentage of alcohol found in the blood serum to determine the percentage of alcohol that would be found if a whole blood sample. This calculation was not performed.

Because of the error, people may have been found over-the-limit when really they had not consumed enough alcohol to be considered intoxicated. Furthermore, because a higher blood-alcohol concentration can lead to more serious penalties, drivers may have been left to cope with longer jail terms, larger fines and a longer license suspension as a result of inaccurate test results.

Yahoo News indicates that the District Attorney in the county where the mistake was made has described the incident as an “unfortunate oversight.” Unfortunately, it was much more than just an “unfortunate oversight” to the people whose lives were disrupted by jail terms or the loss of a driver’s license due to inaccurate testing.

The District Attorneys office says that it has reviewed more than 570 cases and eliminated them as being affected by the discrepancy. Another 180 cases could be affected and will be reviewed shortly. When the review is complete, estimates indicate that around two percent of cases may either need to be retried or dismissed.

The hospital and police disclaim responsibility for the error, indicating that it is the job of the prosecution to make sure the blood-alcohol concentration levels are correct. Since it is so clear that prosecutors failed to do their jobs in this instance, the mistakes serve as an important reminder to defendants and defense lawyers to always check the evidence for inaccuracies.

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.