Prevailing Myths About Defending Driving While Intoxicated Cases in Texas
By Carl D. Ceder
At some point or another, either by a friend, family member, client almost every DWI attorney will be asked the question what do I do if I’m ever pulled over by the police after having consumed some amount of alcohol? I commonly am asked this question at parties by a wide variety of people, regardless of their wealth, job occupation, gender, status, race, etc.
The reality is almost everyone wants to know what to do (including many attorneys who have asked for advice on this subject) if faced with the situation of being under investigation for Driving While Intoxicated (DWI) after being pulled over by a police officer. Due to the subjection nature of the legal elements required by a police officer when forming an opinion on making a DWI arrest, it is a criminal offense anyone could find themselves being accused of. Thus, being investigated, charged, arrested, and accused of DWI comprises the biggest possible threat to otherwise common, law-abiding citizens who may have never been in trouble before in their entire life. These people are then required to handle the matter and faced with the daunting task of having to navigate through the criminal justice system.
In the past, DWI charges were not of major significance compared to how they are viewed today. I have worked with attorneys who were former police officers who have said they rarely, if ever, arrested an individual for a DWI when on routine patrol. One former police officer to me that in the 1980s his method of testing an individual’s sobriety was to throw a persons car keys as far away from them as possible, usually in some brush or grass making it a bit more difficult to find. If the person could locate them quickly, they simply believe that they were likely sober enough to drive home safely. Alternatively, if instead, it took a long period of time for them to locate keys, the belief was that likely their intoxication level diminished to a level where they thought it would now be safe for them to drive. Looking back with how we now treat those accused of DWI, this seems incredible.
Over 70,000 people were arrested in the State of Texas for DWI in 2018. In addition, over time the penalties, possible punishments, and bond conditions with just being charged with DWI (and not necessarily even convicted) seemingly always increase in severity. Legislative sessions usually increase the different penalties and punishments ranges associated with being arrested for and/or convicted of DWI.
Due to the sheer volume of cases, charges of DWI in Texas (and the trials associated with them) comprise large portions of criminal dockets in the court system. This is especially true in County Courts which have jurisdiction for all misdemeanor offenses (including those for DWI). In Texas, there is no deferred adjudication available for intoxication-offenses, including for those accused of DWI. For almost every other criminal offense deferred adjudication is available for the citizen accused, but it is not an available remedy for those charged with a DWI offense. For this reason, most trials that occur in County Courts in Texas are those where the accused is contesting a charge of DWI.
I used to practice in Central Texas, and I noticed a dramatic shift in the way DWI offenses are handled there, specifically in comparison to how they are handled in all areas of the Dallas-Fort Worth Metroplex. In Central Texas, many counties offer pre-trial diversion programs for first-time offenders, and more readily offer reductions in the charge to a charge that is not as severe as one for a conviction for DWI – especially for cases with less evidentiary merit. This occurs in the regions of Central Texas, and in far more cases and scenarios than they do anywhere in the Dallas-Fort Worth Metroplex.
Many individuals, and many attorneys even, harbor many myths and misconceptions regarding what to do when pulled over and arrested for possibly driving while intoxicated. Obviously then, most people do not know what to do, or where to begin, after being released from jail following a Texas DWI arrest and the proper steps which should be taken. I am sometimes in disbelief by the sheer lack of knowledge some attorneys have, some of which many agree to represent people in DWI charges. It is my belief that a large amount of misinformation exists on how people should go about handling being charged with DWI in Texas. I believe this huge disproportion among what people actually know about Texas DWI law, in some respect, is due to the varying amounts of possible dispositions between many Counties and areas in and around the State of Texas.
Myth # 1: EVERYONE ACCUSED OF AND ARRESTED FOR DRIVING WHILE INTOXICATED (“DWI”) MUST BE GUILTY
This is perhaps the most disconcerting myth of allone erroneously believed by many attorneys and the general public alike. I often shocked to hear the opinions of close friends and family members regarding their thought process and their automatic default judgment syndrome that everyone who is arrested for DWI MUST BE guilty. They often express that there is no way an arrest would be made in error if the accused was “Not Guilty” of the crime alleged. NOTHING CAN BE FURTHER FROM THE TRUTH – INCLUDING AND ESPECIALLY FOR CHARGES OF DWI.
If one has never been through the entire criminal case process, it is easy to see why people may harbor this erroneous thought process. Most individuals, including a shocking number of attorneys, often mistakenly believe that it would be impossible for an arrest to have been made if the accused wasnt guilty of the crime. The reality is in Texas being arrested for DWI is entirely subjective in nature, and is, in fact, an “opinion” crime. The determination on whether to make an arrest is based upon on the particular interpretation of certain inferences made by the investigating police officer. This police officer is a just a regular person like everyone else, and everyone is always prone to possibly making mistakes because human error is always a factor, especially when situations are stressful. Often, these mistakes or errors are made entirely in good faith and not with bad intentions.
Driving While Intoxicated charges in Texas is defined under Chapter 49.04 of the Texas Penal Code, which states that a person commits the offense if the person is intoxicated while operating a motor vehicle in a public place. The punishment ranges increase in severity if it is a repeat offense, if it is alleged that children younger than 15 years of age were in the vehicle at the time of the incident, or if an individual was injured and/or someone was killed in an accident that was a direct result and proximate cause of the intoxication.
The most commonly contested element of the offense of DWI is whether an individual was legally under the law intoxicated at the time they were operating a motor vehicle. Intoxication in Texas is defined in Chapter 49.01(2) of the Texas Penal Code as a person: A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more.
The law of intoxication, as stated above, is entirely subjective in nature, and can only be proven in one of three ways, as noted above. The first two ways, under Texas law, is whether an individual lost the normal use of mental and/or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body. When only analyzing this portion of the law of intoxication in Texas, it is not difficult to understand why charges of DWI is one of the only opinion crimes in the entire Texas Penal Code (the other being public intoxication, the common factor in both obviously is the legal element of intoxication. Texas DWI laws are entirely subjective in nature based on the ambiguous legal concept of what exactly constitutes the determination of the loss of normal use. This “opinion” evidence gathered by police officers usually consists of results administered of Standardized Field Sobriety Tests” (SFSTs). These tests are standardized and must be strictly adhered to and administered exactly as specified by the National Highway Traffic Safety Administration (hereinafter referred to as “NHTSA”).
These SFSTs are strictly governed by guidelines set forth by NHTSA as to how they should be conducted nationwide. The problem, however, in applying them and trying to determine what the results indicate is how everyone is different and unique in some way. You cannot put every individual in the same square box, so it is impossible for the same set of rules that are applied to everyone to consider specific traits for any certain every person. These SFST roadside agility tests are supposed to help an investigating police officer interpret whether, in their opinion, someone has consumed some substance to the degree where they have impaired their ability (and have lost the use of the “normal” mental and/or physical faculties) to operate a motor vehicle.
Many scholarly studies have shown that the SFSTs do not accurately predict impairment in an overwhelming number of people. People who have certain medical conditions, especially those with physical infirmities, those who are overweight by a certain amount according to the BMI index, and also people who just may not be very coordinated, etc. very easily would not be suitable and proper candidates to administer the SFST’s to, yet many police officers ignored these variables and still strictly rely on results regardless of the many different factors which may be involved. It is obvious that every individual is different, and it is impossible to put everyone in the same box as others, and it cannot be emphasized enough how the SFSTs do not account for the different variances between individuals.
Regardless, for the SFSTs to give an even remotely decent depiction of whether someone is legally intoxicated, the test must be administered in the absolute proper fashion according to the instructions outlined in the NHTSA manual. It is imperative that the investigating officer does not deviate, stray, or vary from the exact set of NHTSA instructions when demonstrating and administering the SFSTs. Often, some departure from the NHTSA guidelines occurs in an overwhelming number of DWI investigations, including when the instructions are given and/or possibly when the physical tests are demonstrated. Many police officers simply do not have the requisite and proper experience and understanding of how to administer the SFSTs according to the standards NHTSA strictly mandates.
Frequently, from my own personal experience, deviation or improperly instructions occur out of sheer laziness of the officer because they sometimes tend to cut corners, perhaps trying to expedite the process so the arrest process goes by quickly. If any of the SFSTs administered is NOT done strictly in accordance as specified in the NHTSA guidelines, there is little scientific basis to assume that any of the conclusions or results have any validity whatsoever.
If the SFSTs are not conducted according to the given with the proper instructions, all independent observations obtained and used as evidence from an investigating officer will generally be inherently unreliable. Any results obtained also would be subject to a wide variety of interpretations by experts in the field, many of whom would disagree with certain conclusions made. For instance, bloodshot eyes can be the result of many conditions and/or situations independent of intoxication, including simply being tired, having allergies, contact lens problems, being in a smoky environment, or it just possibly being a genetic condition. Often nervousness observed by the investigating police officer is directly attributed to intoxication, to the exclusion of any other possible cause for why a person may act a bit tense. The reality is that everyone gets nervous (myself included) when pulled even for a routine traffic stop. Nervousness obviously intensifies greatly when an individual feels they are under suspicion for a charge of DWI and realize they may be arrested and taken to jail.
Being nervous can also affect an individual’s physical performance, and how we act under pressure. I usually tell juries it is for this reason why football coaches love to freeze kickers in games by calling timeouts because it is commonly known that nerves and being apprehensive based on the nervousness the situation entails, generally places someone in a tense situation, which can seriously impair ones physical performance.
It is imperative that a DWI Defense Attorney analyze all the evidence in any specific case, in order to be able to effectively posit to the fact-finder all possible alternate deductions for the testimony given by the investigating police officer who will almost always attribute any of these factors exclusively to intoxication. All possible defenses should be considered and taken into account to counter this assertion. Possibly issues and factors could include specific medical history information, such as if a person has had serious injuries in the past such as knee replacements, etc. In addition, environmental conditions are also factors that may interfere with the testing environment. Including whether it was windy and/or if the weather was extreme, such as very cold weather. Such factors are specifically listed in the NHTSA manual as possible interference with test results and even advised in those circumstances to employ other methods, such as some of the “non-standardized” field sobriety tests.
Attorneys should articulate what any of these specific factors may be involved and specific to any given individual, offering all possible innocent explanations for intoxication symptoms observed and noted by the police officer during his investigation. Doing so effectively is asking a jury to gauge and assess a person due to their own specific particularities. Usually, it is wise to advocate for the jury to consider all factors involved, many of which are perhaps outside the purview of the NHTSA guidelines, and/or outside the scope of the lens used by the investigating police officer. Again, every individual cannot and should not be placed in the same box as everyone else.
It should also be noted that police officers make their determination based on the low standard of Probable Cause while a jury has to believe a person Guilty Beyond a Reasonable Doubt before a conviction can result. It cannot be stressed upon enough how wide of a gulf which exists between the two legal measurements. Often these different standards are not considered by an investigating police officer at the time of the arrest, because the level of suspicion authorized to use is so much lower. The burden of proof is much higher in a criminal jury trial, and the State must prove Guilt “Beyond a Reasonable Doubt” – which is the highest standard of proof within our entire justice system. Often an arrest and the evidence observed might be somewhere in the middle of the two standards thereby making an arrest legally authorized, but insufficient for a jury to convict if they have any reasonable doubt as to Guilt.
Many people do not realize that the individual accused is not offered to give a breath or blood specimen until AFTER a Texas DWI arrest has occurred, and not during or before. Thus, the arrest decision is solely based on the subjective interpretation of a police officer, and without having any knowledge whatsoever as to what the specific BAC level may have been.
Myth # 2: AN INDIVIDUAL CANNOT BE ARRESTED IF THEY HAVE BELOW A .08 BLOOD-ALCOHOL CONCENTRATION (BAC) LEVEL
This could possibly be the most prevailing myth that persists today among most people, and nothing could be further from the truth. Many find it hard to comprehend that an individual could be arrested while having below a .08 BAC level. As noted previously, the offense of DWI under Texas law is defined as if ” person operates a motor vehicle while intoxicated in a public place. Moreover, “intoxication” in Texas is defined in three different ways, the first two of which are categorized under the ambiguous standard of whether an individual does “not having the normal use of their mental and/or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.” The third way the state can prove intoxication is if an individual has an “alcohol concentration of 0.08 or more.” However, this third prong cannot be known by an investigating police officer prior to the determination to make an arrest.
The most commonly contested element fora Texas DWI offense is whether the individual was legally intoxicated at the time they were operating a motor vehicle. As detailed above, a police officer is not able to request a chemical specimen (of either breath or blood) until AFTER an arrest has been made. Therefore, the arrest itself is based exclusively upon the subjective interpretation of the investigating police officer. Usually, this decision is based only on how an individual performs the SFST roadside tests. These SFSTS are designed for failure – and therefore, provide very little information on accurately assessing legal impairment across a very broad spectrum of individuals.
When the arrest decision is made the chemical measurement is a complete unknown. If a chemical blood test is obtained after an arrest is made, results sometimes will not be made available often for many months because it takes times for a Texas DPS lab to test it. After the arrest is made, at some point subsequently, they are required to read the statutorily mandated DIC-24 warning which is basically a formal way for an officer to inform a person of the consequences of what will happen to the legal ability for a person to drive if they either: 1) refuse to give a chemical specimen when it is requested, 2) or if consent is given voluntarily, what the consequence will be should the alleged alcohol concentration (BAC) of a 0.08 or more. After the arrest decision, the officer can request a specimen of either breath or blood. Under Section 724.011, an officer can only make this request to provide a specimen only if under arrest, and it is legally improper if it is done otherwise.
Our office always advises and encourages individuals to exercise their right to refuse, regardless of the circumstances. The officer can then legally attempt to seek to obtain from a judge a search warrant to obtain a blood specimen. If this situation does occur, it is imperative that an individual complies with this rule under the law and not resist the taking of the specimen in any way. However, regardless of whether a search warrant is obtained, it is always this occurs, this is preferable and advisable to pursue via this route rather than merely giving your voluntary consent. The rationale behind this is based and derived on a multitude of factors, including how by the time the search warrant is obtained, an individual’s BAC likely will be lower (sometimes significantly so) because of how there are two phases that occur after alcohol is consumed, an absorption and then an elimination phase. If the process to obtain a blood specimen occurs at a much later time, the natural elimination of alcohol from a person’s system over a period of time would decrease, perhaps to a large degree.
As well, there is always a chance that something is legally defective in the search warrant itself and whether it was legally obtained, and the requirements properly adhere to. It is always possible that a police officer investigating the offense may not have the time or resources to adequately gather all the requisite legal requirements needed to properly secure a valid search warrant. Therefore, refusing to voluntarily give your consent and invoking your right to refuse instead of merely acquiescing to the officer’s request to give a chemical specimen with voluntary consent. You must always realize; police officers do not respond and investigate a scene to try and seek the truth – they are there to try and gather as much evidence as possible to justify an arrest. They are not on your team or on your side, regardless of how nice and amicable they may seem to be. They are in the business of making arrests and trying to ensure their cases are upheld in court later. Thus, they are trying to do everything possible to build the best possible case against you – and would prefer to do it with the least amount of work possible! The best way to achieve this is to just agree to everything they request of you, both during the investigation and after the arrest for DWI is made.
I personally have conducted jury trials in numerous charges of DWI where the chemical result was well below a .08 BAC level (both in breath and blood test cases). The State can choose to prosecute regardless of what the actual BAC measurement is because they can proceed under any one of the three ways of what the standard is for legal intoxication.
First, the State has 3 different avenues they can try and pursue attempting to prove a Texas DWI charge, as noted in Chapter 49.01(2) of the Texas Penal Code, which dictates “the loss of the normal use of an individuals mental AND/OR physical faculties, due introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body, or by having an alcohol concentration of 0.08 or more.”
It is important to note when reading the above, the State does not have to prove ALL three of the avenues, just merely one of them. Thus, for example, even if an individual has a true BAC measurement level of a .03, but nevertheless has lost the normal use of either their mental and/or physical faculties, this would be legally sufficient for a person to be found guilty and convicted of the offense of DWI in Texas.
Usually in these scenarios, especially if another substance is detected in the blood sample, or if the person gives a statement indicating that another substance (such as with prescription medication) was introduced into their system at some point, they will argue the synergistic effect of the combination of substances in the body led to the loss of the normal use of either the mental or physical faculties. More increasingly in these types of cases, the State is sending the results to labs for further testing of possible detection of drugs (prescription or other illegal substances). In other words, they do not have to prove that a person had a BAC amount greater than a 0.08, which effectively is one of the three ways to legally prove intoxication in Texas.
Second, regardless of whether it is alleged or not that another substance may have been in an individuals system, but rather instead the only intoxicating substances alleged is alcohol and the “BAC” level is under a .08, the State will often attempt what is termed a retrograde extrapolation attempting to determine NOT what the result was at the time the test was given, but instead what it likely was at the time of the operation of the motor vehicle. This is done in an attempt to convert the BAC level determined to be under the 0.08 threshold when the test was administered, to an amount that is OVER a .08 at the time of the operation of the vehicle. This “retrograde extrapolation” is done, generally speaking, whereby the expert witness for the State does a calculation whereby they essentially work backward to trace back what the BAC amount would have been at some time interval previous, specifically trying to provide testimony as evidence that the BAC would have been above a .08 during the time of the operation of the motor vehicle.
For example, if a person has their blood drawn approximately two hours after the alleged operation of the vehicle, and the BAC result is alleged to have been a 0.06, the State will usually have their expert do a retrograde extrapolation of what the “BAC” would have been two hours prior to the time of the blood draw. In this scenario, the State would have their expert do a calculation, after factoring in certain variables, including how much alcohol was consumed and over what time period, an individuals specific physical characteristics such as height and weight, how much food they consumed, and other potential information that would help interpret what the “BAC” level would have been over certain time intervals. The expert will then testify as to what their opinion is for how much alcohol was eliminated during the time of when the test was obtained compared to when the operation of the vehicle was, and then extrapolate it back to a level at or above a BAC level of 0.08.
However, such calculations are fraught with inaccuracies and faulty assumptions. I like what the Court of Criminal Appeals stated in Mata: Extrapolation back from the BAC at the time of testing to the BAC at the time of driving is an endeavor fraught with the danger of inappropriately bamboozling the jury into thinking that such an extrapolation can be anything close to accurate. Mata v. State, 122 S.W.3d 813, 932 (Tex. Crim. App. 2003).
In order to do a proper retrograde extrapolation, a number of variables need to be known and taken into account, including what the precise absorption and elimination rate would be for any given individual, the type and amount of alcohol consumed, gender, height, weight, amount of food in the stomach when the alcohol was ingested, the overall timeframe for the period the alcohol was consumed, in addition to many other possible factors. Even then, it is a very imprecise way to calculate a BAC because of all the variable involved and needed to even come close to being able to calculate even a remotely approximate result.
Dr. Kurt Dubowski, an expert in blood and breath alcohol research, outlined in his most cited scholarly writing, Among the major reasons for the infeasibility of retrograde extrapolation, three stand out: (1) lack of knowledge, usually, about the timing of the alcohol concentration peak and absorption-post absorption status; (2) ignorance about the mathematical characteristics (e.g., linear, pseudolinear, exponential) and the mean rate of change of the individuals blood or breath alcohol elimination curve; and (3) unpredictable irregularities of the curve, especially short-term fluctuations from the best-fit trend line of the blood or breath alcohol curve. Dr. Dubowski noted how [n]o forensically valid forward or backward extrapolation of blood or breath alcohol concentrations is ordinarily possible in a given subject and occasion solely on the basis of time and individual analysis results [and, furthermore,] extrapolation of a later alcohol test result to the time of the alleged offense is always of uncertain validity and, therefore, forensically unacceptable. Dr. Kurt Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, Journal on Studies of Alcohol (July 1985).
In order to be able to do a proper retrograde extrapolation, it is imperative the State must be able to prove what a certain individuals absorption and elimination rate in relation to the alcohol consumed. If they cannot – then the retrograde measurement is fraught with uncertainty and with unreliable results. This is due to how everyone absorbs and eliminates alcohol in different ways. A.W. Jones a recognized expert in the field, once termed the practice of retrograde extrapolation is “dubious at best. Dr. A.W. Jones, Status of Alcohol Absorption Among Drinking Drivers, 14 Journal of Analytical Toxicology (1990).
Thus, people are often arrested, charged, and often must proceed to trial in cases with BAC results that are below the 0.08 threshold. It is important to utilize an attorney that is very familiar with the process of how it is calculated and has the necessary prior experience and knowledge of how to mount the best possible defense to counter any argument the State may attempt to utilize with retrograde extrapolation. It is vital in cases where retrograde extrapolation is an issue for the defense attorney to possess the requisite training, knowledge of all relevant research and literature on the subject, and who also has conducting many other past jury trials with prior success at effectively cross-examining o expert for the State, effectively making clear how unreliable, inconsistent, and without proper scientific authority of any attempt of a retrograde extrapolation calculation.
Myth # 3: A CHARGE OF DWI IN TEXAS CANNOT BE WON, AND IS NOT WORTH CONTESTING
This is perhaps the most pervasive and utterly false myths about charges of DWI not only in Texas but in other jurisdictions as well. Not only does much of the general public believe this, likewise, so do many attorneys. When analyzing and reviewing the pros and cons of any DWI case, it is important to assess all possible legal and factual defenses which may be utilized as arguments contesting the arrest or charge of DWI.
A legal defense would be a possible area to explore in contesting various certain various issues which may exist, such as if whether any evidence that may was improperly obtained. Scenarios for this may exist where a police officer is mistaken in their belief for the observed traffic violation, where they may lack the requisite probable cause for the arrest, the legal element of operation of the vehicle included in the definition of DWI not actually being observed, when the initial investigation took place, and/or if certain evidence gathered may have been illegally acquired (such as possible issues with a search warrant being legally defective, and thus all results gained pursuant to it would be ruled inadmissible in court. The field of DWI defense is a unique, niche practice area of the law and it is important to be familiar with how all evidence will be considered and possibly rendered admissible in later in a contested setting, such as in trial.
A factual defense, on the other hand, would be simply contesting the subjective interpretation made by the investigating officer when the arrest decision was made. This may exist where the defendant asserts how the legal standard of impairment for the loss of the normal use of either mental and/or physical faculties was not sufficiently proven beyond a reasonable doubt. It is always important in these scenarios to point out with distinction to the jury that an officer makes his arrest decision simply based on probable cause, which is a very low standard compared to the determination at a trial of proof beyond a reasonable doubt. Thus, the vast difference between the two does allow for a very large amount of leeway by the arresting police officer when the arrest decision is made. However, it must be noted, especially in trial settings, how the standard used for an arrest is based upon the very low standard of probable cause, which varies significantly and allows for a much lower standard than what is needed as proof at trial. Probably cause is only needed to make arrest and is the level of proof needed for the person to have to answer to the charged offense, but it is far less than the evidence needed to support belief beyond a reasonable doubt, which is what is sufficiently required in order to convict a person for any criminal offense at trial. Proof beyond a reasonable doubt is the highest standard used in the entire criminal justice system. Thus, it is perfectly permissible a jury to shake the hand of the police officer and say they did a good job, but still render a “Not Guilty” verdict, or an acquittal, because it may not have been sufficient enough for the much higher burden of proof of our criminal justice system, which is proof beyond a reasonable doubt. It is always possible that the evidence supports a finding somewhere in between the two standards, thereby rending an individual Not Guilty of the charge of DWI believing the evidence does not rise to the level to convict, but it may have been enough for a finding of probable cause.
The formula to achieve the best chance for possible success is to investigate all information and factors involved exhaustively; conduct all pre-trial discovery and motion practice thoroughly; analyze and evaluate any possible evidentiary concerns, explore any viable options with defense expert witnesses, possible intoxication witnesses who may testify to the amount of alcohol consumed by the citizen accused, and/or any other possible defense that may be properly utilized pertaining to the specific facts of the case.
An experienced DWI defense attorney will usually start preparing for trial from the very first meeting. He may investigate and subpoena every pertinent piece of relevant evidence available. The lawyer will often fight extensively through motions and other procedural maneuvers. The citizen accused should not automatically be advised to plead guilty because an attorney not properly trained in DWI defense in Texas is of the belief these cases are difficult or impossible to win. This can be especially true and is prevalent with many attorneys, even some who practice criminal defense. Many criminal defense lawyers who have not taken the time to study and learn everything possible about chemical tests, and how they are obtained and tested are often scared, frightened and intimidated by how breath/blood is tested in Texas DWI cases. They do not have the education and experience that have shown that very often these tests can be fraught with uncertainty, and as such, do not have the confidence to attempt to proffer an adequate defense because of their lack of knowledge or experience.
After reviewing all evidence and possible defenses, it is important to evaluate the facts and let the client make the final decision as to how to dispose of their case. At the end of the day, the citizen accused of a charge of DWI in Texas is the one who ultimately needs to weigh the pros and cons of all various options, including whether to proceed with a trial. Some clients with more at risk if a conviction ultimately is the result may be forced to attempt to seek an outcome that may be more difficult to obtain, but nonetheless are willing to take the chance of searching for the needle in the haystack to attempt to avoid a conviction. Others, by contrast, may prefer to stray away from trial by all avenues possible, usually for reasons of avoiding the rigorous stress always inherent when someone contests any criminal charge in a trial setting, especially one where it is trial by jury.
Any attorney who agrees to represent an individual should not have the mindset that a charge of DWI is not worth contesting. In my opinion, it simply is outrageous to think that a person would actually employ the legal services of an attorney who even remotely believes this myth to be even close to being the truth. One certainly does not want the attorney representing them beginning the representation by initially believing the person is guilty and contesting the charge not worth pursuing. This is perhaps the most troubling MYTH because so many attorneys and individuals alike actually believe and have this mindset. This thought process will almost assuredly eliminate objectivity, and so any attorney who is of this belief honestly has no business representing those charged and accused of DWI. An attorney should always believe in their client and the merits of pursuing the best positive outcome, and completely devote themselves to the defense of the case with the utmost vigor.
Many attorneys will push a guilty plea without having done any investigation of the case. Possibly the client told the attorney he could not afford to fight the case. This is not together that uncommon, but it begs the question, did the attorney explain to the client the hidden and long-term cost of a conviction? Did the attorney also explain the defense to the charge so the client could make an informed, intelligent decision? Many times, the client will realize the long-term cost of accepting a quick guilty plea is greater than the cost of contesting the charge.
Myth # 4: A CHARGE OF DWI IN TEXAS IS JUST LIKE ANY OTHER CRIMINAL CASE
Any DWI case has the potential to be incredibly complex and intricate. Nothing could be more inaccurate than assuming that any DWI case is just like any other type of criminal case. In many large areas, courts handle these cases differently from other criminal offenses. Charges of DWI usually entail different bond conditions that are required by law than other criminal charges, and enhanced penalties for those of DWI which are stiffer than analogous criminal offenses of the same degree and penalty classification.
Recently an older Judge remarked to me how when he first started practicing criminal law, there was a dearth of information available about what governed case law related to charges of DWI. Today, the amount of information available is incredibly voluminous. Many recent United States Supreme Court decisions focus on varying aspects of a DWI case, most notably in McNeely v. Missouri (which held in principle that warrantless blood draws, per se, without exigent circumstances violated a persons constitutional 4th amendment right to be free of unreasonable searches and seizures) (cit). The impact has been even more prevalent at the Texas state court level, with many appellate cases focusing specifically on factual scenarios pertaining to charges of DWI.
In addition, it is vital for a Texas DWI Defense Attorney to understand the underlying nature the proper way for how to administer and evaluate if the NHTSA SFSTs were demonstrated and conducted in the correct manner also analyzing the performance of the Defendant and how if it was graded appropriately. It is also imperative and crucial to understand and have the requisite training and experience to fully be capable on how to properly handle and approach a Texas DWI case where either breath and/or blood is obtained and will possibly be used as evidence. It is extremely important to be familiar and have a full breadth of knowledge for the specific techniques and different methods for how any chemical result is obtained in a Texas DWI case.
A Judge once personally remarked to me how “a DWI case is now one of the most difficult criminal cases to try, even more difficult in many ways, than with most murder cases. In many areas, the courts handle DWI cases differently from other offenses. For example, in a murder case, the defense lawyer will order an independent analysis of ballistics tests, blood splatter patterns, fingerprints, and other physical evidence, where the state will usually test the evidence and have experts that will testify as to meaning associated with each, the same intricacies and knowledge apply to the proper defense of a DWI case. All this evidence in a murder trial would always be subject to possible independent analysis by the defense. This is not necessarily true with a Texas charge of DWI. In charges of DWI, Texas does not require an officer taking a breath test to capture some of the sample, so it can be analyzed independently at a later date, even though the machines can seal samples at a minimal cost (usually around two dollars). The United States Supreme Court has even stated that it is perfectly acceptable that such critical evidence is destroyed.
Cases involving DWI, more so now than ever, involve a chemical result of either breath or blood. If a chemical test was obtained, the state will call as an expert witness, who is employed by the government, in most cases by the Texas Department of Public Safety (DPS) that will testify as to just how precise the measurements are, and it is not subject to any flaws, disagreements, or variables. In the same fashion, all evidence obtained is subject to the same independent analysis by the defense. It is vital that any Texas DWI Defense Attorney be abundantly familiar with possessing the requisite, skill, knowledge, training, and experience associated with how both breath and blood is collected, stored, and tested in Texas when a chemical specimen has been obtained following an arrest of DWI.
Myth # 5: DRIVING WHILE INTOXICATED IS ONLY A MINOR, SIMPLE OFFENSE – AND IS NOT A SERIOUS CRIMINAL CHARGE IN THE STATE OF TEXAS
A charge of DWI in Texas is a criminal offense that no doubt is the most common for most otherwise law-abiding, common and ordinary citizens often can find themselves arrested for. It is for this reason that many people therefore frequently operate under the mistaken assumption that a Texas DWI arrest is not as serious as other criminal offenses. I often tell clients how at one point we a President and a Vice-President of our country had who both had prior arrests for a charge of DWI (President George W. Bush and Vice-President Dick Cheney). Nevertheless, the penalties associated with an arrest for DWI in Texas have only increased in severity over the last 20 years or so.
Regardless, it is very true that a charge of DWI is unlike almost every other type of criminal offense in Texas. Once such way it is treated more severely is how deferred adjudication is not available for any charge of DWI in Texas, unlike almost every other criminal offense in the Texas Penal Code. In Texas, there is now an enhanced penalty range of a Class A Misdemeanor offense for a 1st-offense of DWI, if it is alleged that an individual had an analysis of a specimen of breath, blood, or urine which indicates an alcohol concentration of .15 or more at the time the analysis was performed. Previously any DWI-1st charge would have been a Class B misdemeanor, regardless of the resulting alleged BAC measurement. Penalties also increase drastically if one has prior convictions of DWI, increasing the punishment range to a felony offense if a person has two or more prior convictions for DWI.
Likewise, often individuals who are arrested even for the first time for any criminal charge can sometimes find themselves charged with a felony DWI offense if certain additional elements are alleged with regards to the incident. If a person commits all the elements of a basic element for the offense for a charge of DWI-1st offense, but where it is alleged when the offense occurred there was a child passenger younger than 15 years of age with them in the vehicle, it will result in a state jail felony criminal offense which has an enhanced range of punishment. If a person allegedly committed the elements of DWI, and by reason of that intoxication serious bodily injury to another, or death resulted it could increase the punishment range to a 2nd or 3rd-degree felony offense, which could carry a possible range of punishment from 2-20 years in the Texas Department of Criminal Justice Institutional Division (penitentiary), with a maximum potential fine of $10,000.
Most of those convicted also suffer serious and very significant financial and social consequences. In many states, a conviction for DWI can never be removed from a driving record, so many of those who ultimately are convicted must face the consequences, some of which are collateral in nature, for the rest of their lives. *One caveat in Texas to this is the new piece of legislation that recently came into effect, House Bill 3060, which now does allow for certain individuals to file an “Order of Non-Disclosure” to seal their criminal arrest from public view. To read more about this law, please click HERE.
Individuals who have a Commercial Driving License (CDL) also face increased penalties a result of a DWI arrest and are at risk of possibly losing their ability to earn a living and in some scenarios, a conviction may result in the permanent loss of the CDL for the rest of their life.
The client accused of DWI deserves to be represented zealously, and all possible defenses should be explored. It is vital to pursue any viable avenues to contest the allegation because an unjustified conviction can have repercussions that can for a long period of your life, and possibly permanently. Not all the penalties for these convictions are legal in nature but instead are considered collateral consequences. The stigma of a conviction can have severe psychological and emotional tolls on certain individuals who have never had an encounter with the law or the police before. Some blame themselves; because they know that they had something to drink before the police stopped them. However, it is important to note that it is not illegal for adults to drive after drinking alcoholic beverages in Texas. The crime of DWI occurs ONLY when the person operates a motor vehicle with a 0.08 BAC amount or above , or when the person has demonstrated behavior when operating a motor vehicle that would lead to the belief the person has to believe the person has lost the “normal” use of their mental and/or physical faculties due to the introduction of some substance into their system (which can be alcohol, a drug, another intoxicating substance, or a combination of them).
In today’s climate for DWI arrests, most arrests involve some chemical specimen that has been obtained (either breath or blood). A skilled DWI Defense attorney can be successful in exposing the problems with either form of these tests. Both chemical tests if obtained have many possible inherent flaws that can lead to a false-positive result. With a breath test in Texas, the machines lack of sophistication, have a high degree of variability between all individuals, exhibit an utter and complete lack of precision with the results obtained, and have a spectrum of possible results that could possibly be an actual higher or lower BAC, with the amount somewhere within that range of possibilities. The variability given all the factors that can affect a breath result from individual to individual is of such a degree that most experts in the field would no doubt agree that most scientists in any area would not trust the results of a breath test machine as a basis for research or investigation. Both the accuracy and reliability of these machines are subject to challenge. The breath machine used in Texas is a cheap machine, with my flaws and potential ways for errors, and is simply used because is inexpensive and easy and is purchased pursuant to a government contract. There are several ways to attack a breath test, including the overall reliability, accuracy, precision with the results, and possibly by improper administration, lack of proper training by the police officer who conducts the tests, and possible machine or operator error during operation. All these factors, amongst many others, can affect the result obtained and can raise doubt as to any evidentiary weight to give to it. Simply put, it is far from being an actual scientific instrument, subject to testing by experts in the field to determine any possible flaws defects in the machine itself or the way it is maintained, but the state will always usually treat it as such.
It takes extensive training and study by an attorney to challenge any chemical test, in those involving both breath and/or blood. It is integral that your DWI Defense Attorney have spent valuable time in training to know what to look for, what to review and analyze, and any other possible factors that could potentially lead to a false-positive result with a chemical test.
Other collateral consequences which can exist are significant increases in the costs of auto insurance premiums, possible surcharges assessed by Texas DPS, etc. Many attorneys are unaware of how a possible license suspension related to a charge of DWI can negatively affect, and in some cases altogether cancel, an existing policy of an SR-22 piece of insurance is needed when obtaining an occupational” license (or an “essential needs” driver license.)
A DWI conviction may also hinder current and future employment opportunities for a significant segment of those in the job market. Very real and possible collateral consequences that could potentially exist following an arrest for DWI could cost the loss of employment for many government workers, and those in the military may be summarily discharged from service following a DWI arrest and/or subsequent to a conviction. Those working in a professional capacity with a license, such as doctors, attorneys, nurses, judges, etc. may possibly face disciplinary proceedings by their respective professional regulatory authorities.
Attorneys who are not heavily trained, with the requisite experience handling the defense of Texas charges of DWI place those they engage in representation with often at an extreme disadvantage. If a charge of DWI is only “minor” and is just a “simple” offense, like any other criminal charge in Texas, then hypothetically speaking, isn’t it important to consider what the answers would be to the following questions? Is it only “simple” and “not serious” if one charged with a DWI is faced with:
- Possibly the loss of their job, employment, and/or career?
- The inability to drive or operate a vehicle?
- The inability to travel to certain other countries?
- The inability to rent an apartment?
- Possibly being banned for life from having a Commercial Drivers License (CDL)?
- Possibly spend time confined in jail and/or possibly in prison?
- Possible damage to their credit rating?
- Increased auto insurance premium rates by possibly thousands of dollars per year?
- Fines and penalties of large amounts, including steep DPS surcharges of a certain amount per year?
These are just some of the factors that merely scratch the surface of the possible hidden and collateral consequences that can be associated with a conviction of a Texas DWI charge. There is nothing “simple” and “not serious” about these types of penalties and possibly various forms of punishment an individual could potentially be facing after being arrested or convicted for an offense of DWI. Sometimes I am shocked when I hear how many untrained attorneys merely believe that any charge of DWI is just a simple criminal offense and is not a serious charge. Those lawyers who are of this mindset, usually simple and advise their clients to quickly enter a plea bargain without examining any of the relevant facts involved, and without considering all the consequences which can result. A trained, experienced, and competent Texas DWI Defense Attorney can help you understand the all the factors involved, the possible pros and cons related to your case, and any possible dangers you may incur if handled certain ways, potentially offering advice that could negate many of the negative aspects related to the case which could result hopefully to help shield and protect you in the best possible way from all possible harmful results, whether they are direct or collateral consequences.
Myth # 6: ANY ATTORNEY, REGARDLESS OF THEIR BACKGROUND AND/OR EXPERIENCE, CAN DEFEND AGAINST A TEXAS DWI CHARGE
As discussed previously, the law in Texas relating to DWI Defense is incredibly complex and intricate and is very much a niche area of practice. New laws and decisions are mandated with incredible frequency in Texas that constantly change the landscape for how to properly mount a successful defense. The situation is similar to the following scenario: If a friend or relative asked me for legal advice on a matter involving construction litigation, my response would be to consult an attorney who has the background, experience, and training in that particular field of law.
Individuals who have been charged with a DWI in Texas often seek out legal representation from various law offices, maybe upon a suggestion of a friend because they handled a probate matter, or something similar, nonetheless, some attorneys will agree to represent that person even if they have never handled any criminal matters before, much less those pertaining to a Texas DWI charge. The attorney very well may not have adequate knowledge, background, and experience to thoroughly analyze all the different aspects of a DWI case, including all of the various aspects and scenarios involved. Thus, they very well may be unable to adequately investigate the facts of the specific case because they are unfamiliar with how to proceed with proper representation, and/or may they may not be trained sufficiently to be able to readily access and assimilate all relevant discovery documents, videos, and other evidence that is available and needs to be reviewed, studied, and analyzed to mount the best defense possible.
Proper training, education, and experience obviously comprise a significant portion of the success of any attorney, regardless of the area of law they practice. It is of the utmost importance, therefore, for an attorney to be completely up to date on all relevant continuing legal education (CLE) training, in order to be able to be intimately familiar with all possible changes or recent different subtleties pertaining to Texas DWI Laws. of Texas DWI law. It cannot be emphasized enough that having an experienced, knowledgeable, and trained DWI Defense Attorney helping to guide and advise you should very much help to improve the overall possibility of trying to achieve the best possible outcome, given the specific facts of a case. A DWI Defense Attorney should be able to identify, isolate, and properly develop various defenses that may exist in any case, preparing fully for all possible court appearances with DPS for all civil matters pertaining to your license, and also be very familiar with practical prior experience working in the court that will ultimately hold criminal jurisdiction, all while keeping you as properly informed along the way, while seeking your input and any information needed from you throughout the process.
If you are facing a DWI in a specific area, your attorney should be familiar with the jurisdiction and procedure of the courts where your case likely will be, as prior experience working in certain areas is essential to having a sound and firm understanding of how to properly handle a case. The decision of which attorney you should decide to help assist you to defend against a charge of DWI is incredibly serious and should only be made only after meticulous thought and consideration. The formula for success is to investigate exhaustively, conduct pre-trial discovery and motion practice aggressively, use evidentiary maneuvers and procedural devices skillfully, and present a well-conceived, thoroughly choreographed trial with the possible use of expert witnesses, character witnesses, and other proven tactics for successful defense of DWI cases in Texas.
Ultimately, the decision of who will represent you is one that may affect your freedom, driving privileges, and financial future and thus it is important to base your decision in combination with your own thoughts and preferences, while giving due consideration to the prior experience, track record for success, and overall knowledge of the attorney. You have the absolute right to inquire about the training your potential DWI Defense attorney has received, to ensure that they have spent a substantial amount of time training specifically in the field of DWI.