HOUSTON CRIMINAL DEFENSE & DWI DEFENSE ATTORNEY BLOG

The Napa County DA in California announced that no charges would be filed against Oakland Raiders head coach, Tom Cable. Cable had been alleged to have assaulted Raiders assistant coach, Randy Hansen.

I applaud the Napa DA for not pursuing a case that it felt ultimately could not be proven by proof beyond a reasonable doubt. However, I wonder if Tom Cable was not the head coach of the Oakland Raiders, if he would not have been charged and facing prosecution for assault in this matter? In Harris County, I’ve seen situations where the State had far less evidence to prove its case than what the Napa DA’s Office possessed and yet still pursued prosecution. Makes you wonder if prosecutors at least in some instances are really “seeking that justice be done” or seeking something else. Just a thought!

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I came across an article in the Houston Chronicle regarding a recent drug seizure. The drug seizure was a 400 pounds seizure of marijuana in San Antonio. My first question is if you had 400 lbs of marijuana in your vehicle, why would you voluntarily give the officer consent to search your vehicle? I guess this guy did not read or take my advice in a previous post and “Just Say No”! What I also find interesting is how the officer said that this was just a routine stop for an expired registration. In my opinion, this sounds like a “pretextual traffic stop”. Unfortunately, the courts allow officers to make pretextual stops, as long as they can reasonably articulate some minor traffic violation that was committed. If the officer, truly stopped a person for an expired registration, why would you ask a person for consent to search his/her vehicle for a “routine” traffic stop. It’s all a load of crap. It’s just a way for officers to pull people over for minor traffic violations in hopes of having people, ignorant of their rights, consent to a search in hopes of finding evidence and probable to arrest for drug offenses generally. Generally, if the officer had probable cause to search your vehicle, the officer would not need your consent. Remember, just because the officer asks does not mean you are obligated to to allow the search…that’s your constitutional right!!!

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Just wanted to extend my thanks to Houston criminal defense attorney, Mark Bennett, for adding my blog to his blogroll.  Now, I know for some of you, you might be thinking what’s the big deal.  Well, Mark has one of the best legal blogs in the country.  Not to mention, he is a well respected criminal defense attorney.  So, it’s an honor for Mark to add me to his blogroll.  I’m new at this blogging thing, so Mark, I hope that I am able to write many interesting posts to keep my blog worthwhile.  BTW…I’m open to any suggestions.   Anyways, I look forward to hopefully partake in many interesting discussions in the “blawgosphere”.

jcole CRIMINAL DEFENSE LAW Mark Bennett

DISCLAIMER: The hypothetical below assumes that an individual, such as Mr. Turner, is stopped for DWI here in Texas under current Texas state law.

Although drunk driving is no laughing matter and neither is being pulled over and being charged with DWI, I have to admit that this video of Mr. Turner is very entertaining and funny. A person stopped for DWI here in Texas under current Texas law actually can learn some valuable lessons from watching this video. First of all, Mr. Turner (if stopped for DWI under Texas law) was wise to refuse to perform any more field sobriety tests and refuse to submit to a breath test. He actually makes a valid point, that if the officer can’t perform the test, how can he, lol. Also, I like his defense of that he “might be drunk, but he was not driving”, although I would generally advise against making statements that you are drunk to law enforcement. However, he is correct because if he was in fact not driving the State can not convict him of DWI, because he was not operating a motor vehicle.

In addition, the video points out several things of what not to do. Importantly, don’t look or act like a belligerent individual. Remember that you are being videotaped, and that the prosecutor well use any evidence that the State can introduce to attempt to prove that even if they don’t have any evidence of chemical tests or field sobriety tests, that the State will use the video to illustrate that you do not have your normal physical and/or mental faculties to operate a motor vehicle by introduction of alcohol and/or drugs.

Just thought I would share some general tips, on an otherwise entertaining video of a DWI stop.

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Field Sobriety Tests are basically psycho-physical tests administrated by law enforcement officers when an individual is suspected of DWI. Field sobriety tests can vary from jurisdiction to jurisdiction nationwide. Some of these tests consist of reciting the alphabet backwards, counting backwards, and finger counting. However, the most accepted field sobriety tests are the three Standard Field Sobriety Tests (SFST). According to the National Highway Traffic Safely Administration (NHTSA), the SFST are scientifically validated tests that if administrated correctly are reliable in predicting whether an individual’s blood alcohol content (BAC) is greater than 0.10%. These three tests are the One-Leg Stand, Walk and Turn, and the Horizontal Gaze Nystagmus (HGN) test.

One-Leg Stand: According to the NHTSA, if instructed properly, the one leg stand test has a 65% reliability of predicting that an individual’s BAC is 0.10% or greater. An individual that is administered the one leg stand test must be properly instructed by the officer the following:

1. Stand with your feet together and your arms at your side
2. Keep that position until you are told to begin
3. The officer must ask if you understand the instructions and receive an acknowledgment from you that you do.
4. When told to start, raise either leg approximately 6 inches off the ground with your foot pointed out
5. Keep both legs straight, arms at side
6. Count 1,001, 1, 002, etc until officer instructs you to stop
7. Keep your arms at side and keep watching your raised foot
8. The officer must again ask if you understand the instructions and receive an acknowledgment from you that you do
9. The officer must then start the test
10. The test can last no longer than 30 seconds of actual time.

There are four scoring factors (clues) that officers look for when administering the one-leg stand test:

1. Sways while balancing
2. Arms for balance
3. Hopping
4. Puts foot down

Inability to complete the test occurs when an individual:

1. puts foot down three or more times, during the 30-second period; or
2. cannot perform the test.

Walk and Turn Test: According to the NHTSA, if instructed properly, the walk and turn has a 68% reliability of predicting that an individual’s BAC is 0.10% or greater when there or two or more “clues” indicated, or the test cannot be completed. An officer must properly instruct an individual, and the officer must demonstrate the following:

1. Place your left foot on the line
2. Place your right foot on the line ahead of your left foot, with the heel of your right foot against toe of your left foot
3. Keep your arms to your side
4. Keep this position until you are told to begin
5. The officer must ask if you understand the instructions and receive an acknowledgment from you that you do.
6. When told to start, take 9 heel-to-to steps, turn, and take 9 heel-to-steps back
7. When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot
8. While walking, keep arms at side, watch feet at all times, and count steps out loud
9. Once you start, don’t stop until test is completed
10. The officer must ask if you understand the instructions and receive an acknowledgment from you that you do.
11. Begin the test and count first step from the heel-to-toe as “one”.

There are eight scoring factors (clues) that an officer is observing for the Walk and Turn test:

1. Cannot keep balance while listening to instructions
2. Starting before instructions are finished
3. Stopping while walking
4. Did not touch heel-to-toe
5. Stepped off line
6. Used arms for balance
7. Improper turn
8. Incorrect number of steps

Horizontal Gaze Nystagmus (HGN) test: According to the NHTSA, if properly instructed, the HGN test is the most reliable SFST of predicting that an individual’s BAC is 0.10% or greater. The HGN test is said to be reliable 77%, if four or more “clues” are present. An officer must instruct an individual the following:

1. I am going to check your eyes
2. Keep your head still and follow the stimulus (usually a pen or officer’s finger) with your eyes only
3. Keep following the stimulus with your eyes until the officer tells you to stop.

There are six scoring factors for the HGN test (one for each eye):

1. The Lack of Smooth Pursuit; do the eyes bounce as they follow a smoothly moving stimulus.
2. Distinct Nystagmus at Maximum Deviation; distinct nystagmus will be evident when the eye is held at maximum deviation for a minimum of four seconds
3. Onset of Nystagmus at Prior to 45 Degrees; officer is observing for the point at which the eye is first observed jerking.

Important tips regarding SFSTs:

1. An individual as a Right to Refuse to submit to these tests.
2. Any field sobriety testing must be fair and must be strictly administrated according to the NHTSA standards.
3. A sober person can fail the SFSTs, thus a failing grade on any of the SFSTs is not always an indication of intoxication. In fact, there may be several factors that contributed to failing the SFSTs that the officer failed to account for when administrating the tests, such as underlying medical, mental, and physical disorders.
4. An DWI attorney may be able to challenge the validity and reliability of any field sobriety testing.

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The consequences and penalties of a DWI charge and/or conviction are detrimental and costly for Class C drivers (non-commercial drivers). However, the consequences for a DWI charge and/or conviction are may be even worse for holders of Class A or B commercial driver’s license (CDL). A DWI conviction will certainly led to a one (1) year suspension of an individual’s CDL, thus leading to lose of a the driver’s job. In addition, unlike a non-commercial driver, a CDL holder is not eligible to apply for an occupational license pursuant to Section 522.086 of the Texas Transportation Code. See Section 522.081 of the Texas Transportation Code below pertaining to violations, including DWI arrests/convictions, that would disqualify a CDL holder from driving a commercial motor vehicle and lead to a suspension of a CDL.

Sec. 522.081. DISQUALIFICATION.

(a) This subsection applies to a violation committed while operating any motor vehicle, including a commercial motor vehicle. A person who holds a commercial driver’s license is disqualified from driving a commercial motor vehicle for:

(1) 60 days if convicted of:

(A) two serious traffic violations that occur within a three-year period; or

(B) one violation of a law that regulates the operation of a motor vehicle at a railroad grade crossing; or

(2) 120 days if convicted of:

(A) three serious traffic violations arising from separate incidents occurring within a three-year period; or

(B) two violations of a law that regulates the operation of a motor vehicle at a railroad grade crossing that occur within a three-year period.

(b) This subsection applies to a violation committed while operating any motor vehicle, including a commercial motor vehicle, except as provided by this subsection. A person who holds a commercial driver’s license is disqualified from driving a commercial motor vehicle for one year:

(1) if convicted of three violations of a law that regulates the operation of a motor vehicle at a railroad grade crossing that occur within a three-year period;

(2) on first conviction of:

(A) driving a motor vehicle under the influence of alcohol or a controlled substance, including a violation of Section 49.04 or 49.07, Penal Code;

(B) leaving the scene of an accident involving a motor vehicle driven by the person;

(C) using a motor vehicle in the commission of a felony, other than a felony described by Subsection (d)(2);

(D) causing the death of another person through the negligent or criminal operation of a motor vehicle; or

(E) driving a commercial motor vehicle while the person’s commercial driver’s license is revoked, suspended, or canceled, or while the person is disqualified from driving a commercial motor vehicle, for an action or conduct that occurred while operating a commercial motor vehicle;

(3) for refusing to submit to a test under Chapter 724 to determine the person’s alcohol concentration or the presence in the person’s body of a controlled substance or drug while operating a motor vehicle in a public place; or

(4) if an analysis of the person’s blood, breath, or urine under Chapter 522, 524, or 724 determines that the person:

(B) had an alcohol concentration of 0.08 or more while operating a motor vehicle, other than a commercial motor vehicle, in a public place.

(c) A person who holds a commercial driver’s license is disqualified from operating a commercial motor vehicle for three years if:

(1) the person:

(A) is convicted of an offense listed in Subsection (b)(2) and the vehicle being operated by the person was transporting a hazardous material required to be placarded; or

(B) refuses to submit to a test under Chapter 724 to determine the person’s alcohol concentration or the presence in the person’s body of a controlled substance or drug while operating a motor vehicle in a public place and the vehicle being operated by the person was transporting a hazardous material required to be placarded; or

(2) an analysis of the person’s blood, breath, or urine under Chapter 522, 524, or 724 determines that while transporting a hazardous material required to be placarded the person:

(A) while operating a commercial motor vehicle in a public place had an alcohol concentration of 0.04 or more, or a controlled substance or drug present in the person’s body; or

(B) while operating a motor vehicle, other than a commercial motor vehicle, in a public place had an alcohol concentration of 0.08 or more.

(d) A person is disqualified from driving a commercial motor vehicle for life:

(1) if the person is convicted two or more times of an offense specified by Subsection (b)(2), or a combination of those offenses, arising from two or more separate incidents;

(2) if the person uses a motor vehicle in the commission of a felony involving:

(A) the manufacture, distribution, or dispensing of a controlled substance; or

(B) possession with intent to manufacture, distribute, or dispense a controlled substance; or

(3) for any combination of two or more of the following, arising from two or more separate incidents:

(A) a conviction of the person for an offense described by Subsection (b)(2);

(B) a refusal by the person described by Subsection (b)(3); and

(C) an analysis of the person’s blood, breath, or urine described by Subsection (b)(4).

(e) A person may not be issued a commercial driver’s license and is disqualified from operating a commercial motor vehicle if, in connection with the person’s operation of a commercial motor vehicle, the person commits an offense or engages in conduct that would disqualify the holder of a commercial driver’s license from operating a commercial motor vehicle, or is determined to have had an alcohol concentration of 0.04 or more or to have had a controlled substance or drug present in the person’s body. The period of prohibition under this subsection is equal to the appropriate period of disqualification required by Subsections (a)-(d).

(f) In this section, “felony” means an offense under state or federal law that is punishable by death or imprisonment for a term of more than one year.

(g) A person who holds a commercial driver’s license is disqualified from operating a commercial motor vehicle if the person’s driving is determined to constitute an imminent hazard under 49 C.F.R. Section 383.52. The disqualification is for the disqualification period imposed under that section and shall be noted on the person’s driving record.

(h) A disqualification imposed under Subsection (g) must run concurrently with any imminent hazard disqualification that is then currently in effect.

J. Cole Brooks Commercial Driver License (CDL), Occupational Drivers License (ODL), Texas DWI/DUI Laws Commercial Driver License (CDL), DWI/DUI LAW

Brief Overview of SB 328: Pertaining to DWI and other Alcohol-related Offenses

Senate Bill 328 adds the Nicole “Lilly” Lalime Act to amend provisions of the Alcoholic Beverage Code, Code of Criminal Procedure, and Transportation Code relating to operating a motor vehicle or watercraft while intoxicated or under the influence of alcohol. The bill redesignates the offense of driving under the influence of alcohol by a minor as driving or operating a watercraft under the influence of alcohol by a minor, expands the conditions that constitute that offense, and includes an offense prohibiting the operation of a watercraft within the definition of “alcohol-related or drug-related enforcement contact.” The bill authorizes any magistrate who is a licensed Texas attorney to issue a search warrant to collect a blood specimen from a person who is arrested for a certain intoxication or alcohol offense and refuses to submit to a breath or blood alcohol test and increases from $50 to $100 the fee to reinstate a driver’s license suspended due to the commission of a certain intoxication offense. The bill includes the offense of driving while intoxicated with a child passenger in provisions relating to the requirements for the automatic suspension of a license, the suspension of a license of a person younger than 21 years of age, and the suspension of a license because of intoxication offenses. The bill includes an offense of driving while intoxicated with a child passenger and boating while intoxicated in provisions relating to an administrative suspension of a driver’s license for failure to pass a test for intoxication, modifies the circumstances under which a peace officer must require the taking of the specimen of a person’s blood or breath, and amends certain provisions regarding liability for purposes of the taking of a blood specimen.

This bill went into effect on September 1, 2009.

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Section 49.01(2) of the Texas Penal Code:

“Intoxicated” means:

(B) having an alcohol concentration of 0.08 or more.

Just a few things that are important to point out under this definition. First, the State does not have to prove that you are “drunk” in a DWI case. Under subsection (B), the State need only prove by proof beyond a reasonable doubt that your blood alcohol concentration (BAC) was 0.08 or above. This illustrates why in most cases I would advise individuals to refuse any breath or blood tests requested by law enforcement, because you might not be “drunk”, but a breath/blood test might show you with BAC at or above 0.08.

Even if you have a BAC lower the 0.08, the State could still choose to charge an individual with DWI under subsection (A). So there may be cases in which an individual is below the legal limit, but still might be charged with DWI, if they perform poorly on the Standard Field Sobriety Tests (SFSTs). Again, if you are stopped and suspected of DWI, I would politely refuse to perform the SFSTs.

Furthermore, section 49.01(2)(A) also states that you are “intoxicated” if your normal physical/mental abilities are diminished by the introduction of drugs or a combination of alcohol and drugs, this includes the use of illegal drugs, over the counter drugs, and prescription drugs. A lot of people, including some attorneys, are not aware that a person can be charged with a DWI while operating a motor vehicle under the use of prescription drugs and/or other controlled substance. Subsection (A) does not require that an individual have introduced alcohol into the body to charged with DWI. The State could accuse you of having a diminished physical/mental capacity due to the introduction of medications prescribed by your doctor or taken over-the-counter. Of course in these cases, the State has to prove whether the medication or controlled substance actually diminished your normal physical/mental capacity to state that you are “intoxicated”. The State often uses a Drug Recognition Expert (DRE) to attempt to prove these types of DWI cases.

To briefly summarize, there are several aspects of “intoxication” in a DWI case, that the average person might not realize. “Intoxication” does not equal “drunk”. Generally, it’s advisable to refuse to submit to any field sobriety testing or any breath/blood testing. Don’t give the State any evidence to help them prove their DWI charge against you.

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