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Changes to Texas DWI Laws May Be Ahead
Posted by: Nicole DeBorde
August 23, 2010

Over the past 20 years, Texas has taken many steps to crack down on drunk driving. But according to some, several of these measures have caused more harm than good. Among those dishing out criticism are police officers and criminal prosecutors. According to one congressman, "Some of the changes we made in years past have had untended consequences that we're just now finding out about." In response to sharp criticism, Texas lawmakers are considering a revision of Texas's drunk driving laws, with a focus more on treatment of alcohol abuse, and less on fines, surcharges, and license revocation.

One proposed change is the repeal of a surcharge that can cost drunk drivers $3000 for their first conviction, and $4500 for their second conviction. These civil penalties are in addition to the fines and costs that normally accompany criminal charges. These additional surcharges were intended to help pay for trauma care in Texas. However, many people cannot afford to pay. Those who cannot pay cannot reinstate their driver's license. This leads many people to drive without licenses and insurance, causing them to break additional laws.

This problem is amplified by the State's automatic license revocation program. Some believe that this program has little practical effect and that its alteration, or even elimination, would not have much of an impact on the system. As such, this provision is being reviewed as well.

Texas lawmakers are considering adding new programs in addition to revisiting the old ones. Several Texas senators agreed that one option should be mandatory treatment programs for first-time DWI offenders. The programs are intended to help the offenders stop drinking and thus attack the problem at its roots.

Another program that is being considered is the increased use of roadblocks at "sobriety checkpoints." Texas politicians have been hesitant to allow such checkpoints, although they are currently in place in 39 other states. Also under consideration is expanded use of the Texas "no-refusal program." That program allows police to get an expedited search warrant and then draw blood from suspected drunk drivers.

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The not so Perfect Breath Test: To Blow or Not to Blow
Posted by: Nicole DeBorde
June 24, 2010

People arrested for DWI are quick to question their breath test readings. As it turns out, they may be on to something . . .

Texas law sets the limit for driving while intoxicated at .08% Blood Alcohol Content (BAC). Breath tests (sometimes called "breathalyzer" tests or more correctly "intoxilyzer" tests since that's the latest machine in use) are the most common method used by police to determine whether a driver has breached this limit. In many cases, breathalyzer results are the strongest evidence the State has against an individual charged with DWI. Thus, Prosecutors would like juries to believe that the results of breath tests are always accurate. This is not a difficult task because the scientific nature of these tests can lead juries to believe that they are not susceptible to human error. As a result, juries might place a disproportionate emphasis on whatever number the machine spits out. Considering the power of breath evidence, one would hope that the results are reliable. Unfortunately, those numbers are not always correct.

In fact, many things can throw off a breath test reading. The internet is rife with articles and websites describing the inaccuracies of breath testing. Some relate to problems with the basic science involved. Others relate to how the machines are stored and how the tests are administered by police. One common thread runs through many of these issues: the necessity of human intervention at key stages in the process.

One of the key stages where human imperfection can have extreme consequences is in the calibration of the breath testing machines themselves. Just ask the citizens of Washington D.C. Last week authorities there discovered that about 400 people were convicted of DWI based on inaccurate breathalyzer results. About half of those convicted spent time in jail. On average, those confined spent five long days in the slammer.

The source of the problem was human error in the form of an inaccurate baseline, which tainted every single breathalyzer used by D.C. police. The badly calibrated equipment resulted in BAC readings that were at least 20% higher than they actually were. For example, a real BAC of .07%, which is below the legal limit in Texas, would have resulted in a reading of 0.84% and likely an arrest and conviction.

As with any major life decision, there are many factors to consider before deciding to submit to breath testing. Before you commit to blow or not, take into consideration the potential inaccuracies of the system. Attorneys who practice criminal law know that the results of these tests are far from perfect. A seasoned defense attorney can attack the State's case by pointing out the human and other imperfections associated with breath tests. If you have been accused of DWI, and you believe that the breath test readings were inaccurate, please don't hesitate to give us a call.

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Cases Involving Blood Tests
Posted by: Nicole DeBorde
September 17, 2009

Recent changes in DWI laws have led to the drawing of blood where law enforcement suspects that a driver may have been drinking.  In the past, the drawing of blood was reserved for cases where accidents involved serious injury or death, such as in cases of suspected intoxication assault or intoxication manslaughter.  Now, however, blood is being collected even from citizens who have not been involved in an accident.  Some of these cases involve search warrants which are issued for the collection of the blood, and some cases have no warrant at all.  Another change we are seeing is the way that blood is collected.  In times past, blood was collected either at a medical facility or at a law enforcement facility by someone who was supposed to be trained in the collection of blood.  Now, there is a push toward collecting blood from citizens on the side of the road when the person is suspected of driving while intoxicated or driving under the influence (DWI or DUI).

Aside from the obvious safety concerns with this new push toward roadside blood collection, there are many potential legal problems with these cases. Anyone charged with DWI as a result of a blood test would be wise to considert taking the fight of their case all the way to trial.  An experienced attorney should be able to scrutinize the process from start to finish.  For example, if there was a warrant, is it a good one?  Was the blood collected, stored, transported and tested properly?  One looming concern rests with the collection kits themselves.  Many of these kits will sit in hot patrol car trunks.  Certainly, the integrity of the contents of the storage viles could become compromised in circumstances where the kits are not maintained.  Without good collection procedures and proper handling, a lab cannot possibly have a scientifically reliable result to report to a jury.  A good lawyer should be able to analyze this type of evidence to determine whether or not the evidence should ever get in front of a jury.

DWI convictions can have life altering consequences.  Shouldn't you or your loved one have knowledgeable aggressive representation to make sure that sloppy, unreliable evidence does not result in a conviction?  Feel free to call us to discuss your case if you have a case involving an accusation of driving while intoxicated where the prosecution seeks to use a blood test as proof.

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Memorial Day DWI Taskforce
Posted by: Nicole DeBorde
May 27, 2009

Memorial Day weekend is typically a very busy weekend for the DWI Taskforce. Police are out in numbers looking for possible DWI suspects. Many counties, including Harris and Montgomery Counties are conducting "no refusal" weekends. What this means is that citizens suspected of driving (or even boating!) while intoxicated or under the influence can be forced to provide a specimen of their blood for analysis. In order to force the taking of blood, law enforcement will have a judge on call signing warrants for each person who refuses a breath test. Once police have a warrant, they will force the drawing of blood.

Just because police have a warrant does not mean that the case is a "slam dunk" for the State in a DWI case. First, the warrant has to be valid. Many times, errors are made in obtaining and preparing warrants of this nature. Also, the taking and analysis of the blood must be done in a particular way. Many times, mistakes are made at some point in this process. DWI's can be devastating to a person's permanent record. If you are accused of driving while intoxicated, you should contact an attorney immediately. You have the right to refuse to take tests, you have the right to refuse to take field sobriety tests (including that pen test - the HGN!) and you have the right to ask for an attorney.

Remember, it's always best to let someone else drive if you had too much to drink! It is not against the law to "drink and drive" as many would have us believe. It IS against the law to drive while intoxicated. There is a difference. If you or someone you know is accused of driving while intoxicated, or of driving under the influence of any alcohol or drug, call a lawyer right away. A good lawyer may be able to save your license and your criminal record!

Be safe!

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