Criminal Defense Blog

Family Assault Charges in Houston

Family Assault (or “domestic violence”) [Penal Code Title 5. Chapter 22] is a serious criminal offense in Houston and unfortunately all to common. In this post we will help you understand some of the legal circumstances regarding family assault as well as some options available for people and their loved ones who are involved with domestic violence charges.

What is Family Assault

In most cases a family assault charge begins with either a recipient of abuse or someone close / a neighbor, etc. calling the authorities. “Assault” need not be direct physical aggression – threats are considered assault. In many cases the call to authorities is not intended to arrest the aggressor – a person just wants the authorities to deescalate the situation. However, in almost all cases when authorities are called on domestic violence, someone goes to jail irrespective of anyone’s intentions.

It’s important to know that one need to be married or even dating in order to be charged with family violence. The following relationships can qualify for an assault on family member charge:

  • Married – currently or previously
  • Living together – currently or previously
  • Dating – currently or previously
  • Engaged – currently or previously
  • Related by blood, marriage, or adoption
  • Having a child [or gaurandianship] together

As one can see, it’s possible to be charged with assault on family member without even knowing that was a possibility.

Often it is the case that even after one of the parties is arresting for family assault, the other party will explictly appeal to not press charges. At this time they discover that their decision to press charges or not is irrelevant. There is actually a special section of the District Attorney’s office devoted soley to prosecuting family violence cases and Harris County pursues this type of charge much more harsly than other types of assault cases. These prosecutors are trained to aggressively pursue family violence cases without the complainants cooperation. Even a first time family assault charge (with no priors) is considered a class A misdemeanor that can carry up to a year in jail, large fines, and loss of rights such as to own firearms. If there is a past conviction the charge can be enhanced to a third degree felony carrying up to 10 years in the penetentiary.

Dealing with Family Assault Charges

At The Haggard Law Firm we know that there are many scenarios in which people have arguments — sometimes these are fairly mundane and are blown out of proportion, e.g. a neighbor perceives an argument to be more serious than it actually is. However, there are also cases in which arguments are indicative of deeper and more serious problems and often a domestic violence charge indicates a family in crisis. As caring attorneys that fight as hard as possible for our clients, we do not think jail is the answer – but advocating for a holistic solution that can improve the lives and situations of those going through difficult times. We fight to get help for those in need and staunchly defend against overbearing aggressive prosecution and work towards creative solutions for families. If you or a loved one has been charged with family assault, contact Houston criminal defense attorney Carl Haggard by email or call (832) 328-0600 for a free confidential consultation. Irrespective of whether one wants to press charges in a domestic violence case, one can expect an aggressive prosecution and harsh consequences. Caring and experienced legal counsel can reason with the court and argue for helping instead of further pain and suffering. We have a verified winning track record of defending against family assault charges in Houston and are ready to fight for you. Texas offers resources to those who may be experiencing violence at home. Click on the below links to learn more.

Texas Family Violence Legal Information

Family Violence Help Resources / Temporary Shelters, and more.

Family Assault Attorney Harris County

Blood Draw Test and Warrants for DWI

Of all the types of search warrants, the ones for blood are undeniably the most intrusive.

Refusal of Consent for Blood Test

If you did not clearly consent to your blood draw let us know, as we may be able to get those results suppressed for that very reason. Only if you did not consent to the blood draw does the issue of a then warrant come into play.

If you are under arrest and refuse consent to the blood draw then police either have to obtain a warrant or be able to show exigent circumstances existed to draw your blood without a warrant. Fortunately, the Courts have ruled that the fact that the alcohol in your system is steadily metabolizing away does not count as an “exigent circumstance”.

Fighting the warrant – Even if police do get a warrant the DA’s still have to prove probable cause for it or we may be able to get the results suppressed. Also we look at the warrant itself to make sure it conforms to all the required elements. If the stated reasons for the stop and the probable cause for the warrant are false or exaggerated we can attack the warrant.

Physical force – We have had clients tell us they refused a blood draw and the police used physical force to get them to submit to a blood draw. If this force is excessive to the point of an assault or bordering on an assault we can use this to keep a client’s blood draw from being admissible in court.

Maintaining the integrity of the blood draw warrant – One issue defense attorneys deal with is that cops are sworn to the warrant by other cops rather than by a judge or licensed sworn Assistant DA. The problem with this is that if a cop administrates the oath it is practically impossible for defense counsel to decipher the chicken scratch to figure out his name and agency since many times DWI arrests are multi-jurisdictional.

Exigent Circumstances for Drawing Blood Without a Warrant or Consent

The Fourth Amendment guarantees the right to be free from unreasonable search and seizure. To draw blood without a warrant and without the consent of the arrested person requires an exigency, or emergency, such as a serious accident causing severe injuries to any party, or unless you have prior DWI convictions. What constitutes “exigent circumstances” has never been defined but is determined by the totality of the facts. But you can be sure that these will always be construed by the State in favor of “exigent circumstances existed” wherever blood was drawn without a warrant.

The good news is – the burden is on the State to prove up the exigency in a warrantless, no consent blood draw. Typically the cops will say that “the exigency” was that getting a warrant would have taken too long. But there are so many easy ways to get a warrant that we can easily overcome this bogus exigency – in Harris and surrounding counties there are always several DA’s, judges and magistrates on duty, there are many forms available, and the officer can swear to the Probable Cause Affidavit over the phone then fax it to the magistrate.

When the DAs argue it was not practical for the police to get a warrant, we can also argue from case law to prove how easily it can be done. Governing case law states that if the warrant could have been reasonably gotten between the time of the arrest and the time of the blood draw – and this is practically always the case, given prevailing conditions in Harris and surrounding counties – then no exigent circumstance exists. When we hold their feet to the fire, prosecutors have a hard time arguing that they could not obtain a warrant in a reasonable amount of time.

When the DA’s try to get us to back down from using emerging DWI case law we stand firm and continue to argue our points. We make sure the State understands that we take “innocent until proven guilty” seriously and that they will have to work hard to prove up guilt.

If you or a loved one has been charged with DWI in Houston, Harris County, or surrounding areas contact criminal defense attorney Carl Haggard of The Haggard Law Firm for a free confidential consulation about your case. Even if you took the blood test we can fight for you. Carl has over 30 years of experience defending people in Houston against DWI charges and has a winning track record.

DWI Lawyer Houston

Why Portable Breath Test Taken at the Scene is Not Admissible in Court

Portable Breath Test (PBT) machines are popular with police because they are .. well.. portable. And quick. The problem is that these machines register not only for ethanol (the alcohol found in alcoholic drinks) but also for several other types of alcohol, such as isopropanol. So, for instance, if you are a diabetic who hasn’t eaten within the last several hours and you blow into the PBT machine, you will have isopropanol in your system, caused by the diabetes, but will register as over the limit according to the PBT. If you have eaten sorbitol, an artificial sweetener, or yeast bread, which can break down into ethanol, again, you may register as over the limit according to the PBT but not be actually intoxicated.

Residual Mouth Alcohol – The PBT machine operates on the assumption that the subject has no residual mouth alcohol. When this is not a valid assumption – as it often is NOT – the results can be greatly skewed against the defendant. The fact is that alcohol is retained in the mouth for some time after you drink which can falsely elevate the alcohol reading. (Experts are not agreed on exactly how long but everyone agrees at least 15 minutes.) And besides alcohol there are many other sources of residual mouth alcohol which can also contribute to a falsely elevated reading, such as reflux disorders and breath fresheners. But PBT machines have no way to detect residual alcohol in the mouth and distinguish it from alcohol in the breath – which is what shows the true level of intoxication.

Portable Breath Test and 15 Minute Observation Period

15 Minute Observation Period at Scene vs. Station – This problem of residual mouth alcohol and PBT’s is why police are required to conduct a 15 minute observation period before giving you the “real” breath test at the police station – the one that can be used against you in court – with the clunky Intoxilyzer 5000 EN. At the roadside, this observation period is not required and this means that your breath sample on the PBT may not be only deep lung air – (which it should be) – but will probably also contain residual mouth alcohol and skew your results.

For a breath test to be valid, the officer must observe the defendant for at least 15 minutes prior to the test. This does not include the break in the observation when the officer gets out of his squad car at the station to retrieve the arrested citizen. Therefore we obtain the dispatch records and the mobile data terminal records to determine the exact time the officer arrived at the station and may have started the 15 minute observation period after getting the defendant out of the back of the patrol car. Often busy officers will ask the suspect for a sample immediately after they arrive. If we can prove with incontrovertible evidence the 15 minute waiting period was not observed then under the TX CCP Sec. 38.23 we can suppress the results of the breath test. This means that if you were over the limit – no matter how much – this evidence cannot be used against you.

Problems with PBT’s in Cold Weather – In cold weather, previous samples remain in the PBT machine and get added to subsequent samples. Therefore, at peak times for drunk driving arrests in winter the cumulative effect after several tests can result in falsely high breath tests for those who blow into the machine after several others have blown before them.

Radio Frequency Interference and Portable Breath Tests

Another big problem with the PBT machine is that it has no way to screen out interference caused by radio frequencies. These cannot be heard so the only thing police can do is to avoid sources of RFI – which is practically impossible: hand-held and car-mounted radio transmitters, cell phones, CB radios, light bars, computer terminals inside the patrol vehicle, and police radar. Obviously, there is no way the officer will be able to escape all radio frequency interference with the PBT when using it to decide if you are drunk enough to be brought into the station for further testing. (The Intoxilyzer 5000 EN does have radio frequency detectors per DPS requirements.)

Improper Calibration and Bias – some police agencies don’t perform routine or preventive calibration or verification checks for the PBT’s at all – ever – while they are deployed for use in the field. In some instances where they are calibrated or checked, these tests are poorly designed. And there are many variations in taking the sample based upon each subject’s physiological differences and the stage of ethanol metabolism their body is in – all of which the PBT machine is designed to interpret with a programmed bias toward a higher rather than a lower reading.

PBT Not Admissible in Court – There are NO approved PBT devices and NO approved reference sample devices on the DPS-approved Texas breath test instrument list. This is why PBT results are not admissible in court as proof of a defendant’s particular blood alcohol level.

Given all of the above you can see that the PBT is not scientifically reliable. But it is a false PBT reading which often plays a part in and often leads to a false arrest for DWI, which negatively impacts peoples’ lives in so many ongoing ways, personally, professionally and financially. A better understanding and appreciation of the PTB machine’s limitations must be spread among defense and prosecuting attorneys as well as in the public to prevent wrongful arrests and convictions.

Harris County DWI Attorney

If you or a loved one have been arrested and charged with a DWI in Houston, don’t hesitate to contact Carl Haggard of The Haggard Law Firm for a free confidential consultation about your case. Carl has over 30 years of experience defending the rights of people in Harris County and will fight for you.

Winning DWI Case Results

Portable Breath Test Houston

How Can I Beat My DWI If I Failed The Blood Test?

It is sometimes believed in Houston that failing a blood-alcohol test results in an automatic DWI conviction. That is not the case. There are many factors involved with a blood-alcohol test being accepted as evidence in a Harris County court. In this post, The Haggard Law Firm will discuss some of the legal issues surrounding these tests as well as various ways we fight against the results for our clients. If you or a loved one has been charged with a DWI and possibly even taken a blood-alcohol test, contact us today for a free consultation to explore options for fighting against a conviction.

Suppression of blood results

One defense to a failed blood test is the method of analysis used to analyze the sample. Most DWI blood vials are analyzed at a police forensic lab using the forensically-approved gas chromatography method. But sometimes clients’ blood is drawn at a hospital ER. If the hospital draws blood as a part of your medical care, and not at the request of police, the DA’s will issue a Grand Jury Subpoena for those results, which will show us what method was used, which for hospitals is usually the enzymatic assay method. This is not a reliable method for analyzing blood alcohol content and is likely to yield false results. If this is the method used to analyze your blood, we will file a Motion to Suppress. The only way for the State to prevail on this is if they can prove that enzymatic assay is a valid forensic method – which will be next to impossible for them.

Typically we see hospital blood draws done after serious accidents. Suppose you are unconscious after an accident and taken to a hospital. That hospital will draw blood as a precaution before administering any medications. Then if you later get charged with an alcohol-related case, as often happens, the medical records will show that the hospital used the non-forensic analytical method of enzymatic assay, which will be grounds for a suppression.

No consent, no warrant, non-sanitary location

If law enforcement requests the blood to be drawn the arrested person must give their consent or (unless exigent conditions can be proved) police must obtain a warrant. Further, the draw must be done by a qualified technician in a sanitary location – the police station, when the blood draw is done there, becomes a de facto hospital ER room and contamination in the area where the blood draw is done, or in the various instruments used in the draw, is a breach of protocols. If any of those conditions are not met, we may be able to get the results suppressed pre-trial.

Failure to follow protocols

Further, to protect the integrity of the sample and the chain of custody, the police officer who ordered the blood sample to be taken must observe the blood draw and then must take the vial into his custody immediately after the blood is drawn. Other failures will also be grounds for suppression: Improper technique used to cleanse the site; improper technique used in the blood draw; use of expired solutions and materials, and other mishandling of the evidence.

Analyst must testify at trial

If we fail to get the results suppressed pre-trial and the case reaches trial, the State must produce the actual blood sample analyst for cross-examination. Sometimes prosecutors will try to use testimony from someone else to get around having to use the actual analyst in trial. However, there is too much involved with the procedures surrounding the draw, the analysis, the equipment maintenance, the interpretation of the results, etc. for us to let the State get away with using anyone at trial except the actual technician who prepared the sample for testing. If the actual analyst is not made available for cross-examination we can suppress the blood results as being not admissible.

Failure to take medical history

We have also had clients who have various medical conditions that precluded having blood drawn. If the technician drawing the blood did not first take a brief medical history of the client to determine if there are any contra-indications to a blood draw then we may be able to use this failure as grounds for suppression.

Hire an Experienced DWI Defense Attorney

Even if you have failed a blood-alcohol test, we can fight for you! Carl Haggard has over 30 years of verified winning experience defending people against DWI / DUI charges in Houston and Harris County. He offers a free confidential consultation about your case and then will go to work for you to provide the best defense possible against your charges.

Harris County DWI Attorney

Refusing the Field Sobriety Test

Many of our clients ask us – after the fact – if they could have refused the SFST. The answer is – yes, you have the right to refuse to perform the field sobriety test. But then they ask – does it make me look guilty if I refuse it? The answer is – it depends.

If you appear sober on the video while refusing to do it, if you give reasons that have nothing to do with alcohol, such as leg injuries [that we can back up with medical documentation in court], then your refusal to perform may not hurt your case, esp. if your breath or blood test was not very much over the limit.

Appearing Intoxicated and the Field Sobriety Test

If you already know you will appear intoxicated, or feel it could be interpreted that way just in interacting with the officer on the video, then it’s best to at least try some of the tests, as most prosecutors and juries give a defendant points for trying, for cooperating, and in many instances we can argue failed clues as due to some other cause esp. when we have a relatively low BAC – for ex., there are about 50 different causes of involuntary eye movement other than intoxication.

But in every case, the SFST or refusal to take it, has to be considered and argued in the totality of the facts, such as whether we have a breath and / or blood sample, how you appear in taped interactions with officers at the scene, drinking witnesses who can confirm how much you had to drink, and the reason for the initial stop – where the stop had nothing to do with bad driving, such as a headlight out, we’re in a better position with a refused SFST than where stop was for bad driving.

So every case is different but in general, prosecutors and jurors tend to be more forgiving of defendants who refuse to perform the SFST where there are good, verifiable reasons for the refusal and where the reason for the stop was not bad driving. Nevertheless – the average juror as a practical matter is sort of expecting the defendant to perform the tests and considers refusal to try as one strike against them in making them “look guilty”.

Bottom line – whether you did or did not take the SFST we will use all the available defenses to fight your case.

If you are charged with DWI in Houston, Harris County, or surrounding areas, contact Carl Haggard today for a free confidential consultation about your case. Carl Haggard, and The Haggard Law Firm, are ready to fight for you.

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Why the Field Sobriety Test Isn’t Fair

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DWI Field Sobriety Test