The Haggard Law Firm | Criminal Defense Attorney's in Harris County
Houston, Houston, Texas DWI Information – DWI FAQ | ALR Drivers License Hearings
Houston, Houston, Texas Best DWI Trial Lawyers
Quick & Easy DWI Information:
- DWI FAQ ~ Easy Answers for the Layman
- Challenging the Results of the DWI Blood Draw
- ALR Hearings – A Short Course
- Problems with the Texas Field Sobriety Test
- Try the Drink Wheel
- Helpful DWI Links
DWI FAQ
Can I let someone else use my car if I have the breath interlock device installed?
Yes, but they must first blow into it for it to start. And – you’re responsible for their readings. Any failed blows will be counted against you.
Are false positives possible?
Yes, several substances and drugs can create false positives. Mouthwash and protein bars are two of the most common causes of false positives. Do not blow immediately after eating a protein bar or using mouthwash.
How sensitive is the Houston Probation Department’s alcohol urine test?
Pretty sensitive. The Houston Probation Department uses a qualitative EDT urine test which is capable of detecting any alcohol consumption within up to 80 hours. As it is qualitative, and not quantitative, trace amounts of alcohol will be detected.
Is the science of the Breath Test valid?
The underlying science of intoxilyzer tests has been determined by the Texas Legislature to be VALID … but this will be DISPUTED by the successful DWI trial lawyers at the Haggard Law Firm..
I failed the Breath Test. What does the State have to prove at Trial if you as my attorney challenge the results?
All the Prosecution has to do when the results of a Breath Test are challenged is to determine if the test was properly administered in accordance with DPS protocols. The State must: {1} prove the operator is certified by DPS, {2} prove the operator knows the protocols in administering the test, {3} have the operator testify that they were followed on the occasion in question, and {4} prove the machine was working properly at the time of the breath test.
Does the officer who gives me the Breath Test have to understand how it works?
It is not necessary for the Breath Test operator to understand with the underlying science and technology regarding the Intoxilyzer Breath Test.
The Harris, Fort Bend and Galveston County DWI trial lawyers at The Haggard Law Firm know what it takes to beat a Breath Test case.
Am I allowed to request an independent test of my blood alcohol concentration?
Yes! A person arrested for DWI is entitled to a reasonable opportunity to contact a physician, technician, pharmacist or nurse to take an additional specimen of blood after submitting to a breath test. You have two hours to summon your own health professional to the scene to draw blood.
Can I be arrested and charged with DUI/DWI for taking my lawfully prescribed medication and driving?
Thanks to the recent and growing implementation of DRE’s [see above section], yes. If you take your legally-prescribed medication, as prescribed, that is, according to dosage, you can still be charged with DUI, if such medication at such a dosage impairs your driving ability.
The rub is when the DRE’s – so-called experts in drug effects – wrongfully arrest an innocent citizen claiming – again, falsely, due to the DRE’s lack of substantial expertise – that the citizen was impaired by their prescription medication. The taking of legally prescribed medication, even if according to dosage, does not ipso facto impair the ability to drive sufficient to be considered “DUI”. But thanks to our new breed of “experts” out there, mistakenly and with bias seeing impairment through drug ingestion where there is none, more and more innocent citizens are being charged with DUI/DWI after consuming no alcohol whatsoever. Even the DRE student manual concedes that “drug influence evaluation isn’t an exact science”.
This type of case can often be won with a qualified attorney. These cases also carry special considerations for the DPS ALR TDL Hearings usually attendant upon such an arrest; call our office for more information.
CHALLENGING THE RESULTS OF THE BLOOD DRAW
Without a doubt, the DWI blood draw is the hottest topic in DWI defense. Blood draws pursuant to a search warrant occur shortly after a person arrested for DWI declines to submit to a breath test. A search warrant with affidavit must be obtained but this is easily done as magistrates are on call 24/7. DWI suspects have their blood drawn routinely; sometimes at a local hospital; sometimes at a police substation.
At The Haggard Law Firm, our DWI defense attorneys will combat the blood draw evidence with a Motion to Suppress, reying on our knowledge of the US Constitution, the Texas Constitution, of evidentiary search warrant requirements pursuant to the TX Code of Criminal Procedure, the Transportation Code and two key cases, Illinois v. Gates and Franks v. Delaware.
Let us take a brief look at the protections in place and provided by law for our clients:
Protections Provided by the US and Texas Constitutions:
The Fourth Amendment to the US Constitution and Art. 1, Section 9 of the Texas Constitution both provide protection against warrantless searches or warrants without probable cause, without an affidavit and without proper and particular description.
Protections Provided by the Texas Code of Criminal Procedure:
In the Texas Code of Criminal Procedure [TCCP], Art. 1.06 is identical to Art. 1, Sec. 9 of the Texas Constitution. Then we have Art. 18.01 (b) which provides that no search warrant shall issue without a sworn affidavit setting forth “substantial facts establishing probable cause”. A blood draw warrant is an evidentiary search warrant – that is, a warrant seeking to obtain evidence. It is governed by Art. 18.02 (10) of the TCCP which provides that a search warrant may be issued to seize … evidence of an offense; in this case, the evidence being seized is your blood.
There is a further article, Art. 18.01 (c) which is specific as to search warrants issued under 18.20 (10) CCP. This article provides that the affidavit must show sufficient facts to establish probable cause that a particular person [you] committed a specific offense [DWI] and that the specific items [your blood] to be seized are evidence of this This article also governs who may issue a blood draw warrant.
There is a further article that prohibits the use of evidence obtained in violation of the laws of Texas or the USA. If your DWI case goes to Trial, we will instruct the jury to disregard your blood draw evidence if they believed it was obtained illegally. However, an exception is when a police officer obtains blood acting in objective good faith reliance on a warrant issued by a neutral magistrate based on probable cause.
A further article of the CCP governs the contents of the search warrant. It must be in the name of the State of Texas; it must identify what is to be seized and from whom; it must command any peace officer of the proper county to search the person named; it must be dated and signed by the magistrate.
Provisions in the Transportation Code Governing the Blood Draw:
The Transportation Code, Section 724.012, governs the taking of a blood specimen. Only a physician, qualified technician – NOT including EMT’s, chemist, RN or LVN may take a blood specimen and it must be done in a sanitary place. Those who draw blood have been granted immunity from civil liabilities for damages arising from the taking of a blood specimen at the order of a peace officer or pursuant to a warrant. This provision, however, does not relieve them from liability for negligence in the actual taking of the blood. So if you are convicted based on the evidence from a nurse’s blood draw, you cannot sue her but if you contract a disease from an unsanitary needle she used, you can.
Another section of the Transportation Code provides for the arrested individual to have medical personnel of his or her own choosing draw a sample for independent testing. You have two hours from the time of your arrest to summon your own qualified technician to take an additional specimen of your blood. Police must give you a reasonable opportunity to contact your own technician but they are not required to transport you to have your own sample drawn. Failure to provide your own specimen of blood does not preclude the admission into evidence the specimen taken at the order of the police. Thus, you must summon your own nurse or physician to the scene but if you can’t get anyone to come to draw your own sample for independent analysis and are thereby prevented from providing your own sample, the sample drawn by police will still be considered as lawful evidence.
Insufficiency in Search Warrant Affidavits:
The search warrant affidavit must be in what is known in the law as “sufficient”. A search warrant affidavit supporting a blood draw warrant is insufficient if it fails to state why the blood constitutes evidence of a crime.
An unsworn search warrant affidavit – but not an unsigned one – is illegal and thus insufficient.
Fifth Amendment Does Not Protect Against Blood Draws:
While the Fifth Amendment bars against compulsory testimony the Supreme Court has ruled that it does not prevent the State from forcing a suspect to provide physical evidence such as fingerprints, photographs, voice exemplars – or blood.
Three Mandatory Blood Draw Provisions:
Effective Sept. 1, 2009 the law allows mandatory blood draws for all arrests for felony DWI, DWI with a child [under 15] passenger, and any DWI with accident in which any person is transported to a hospital. In these cases, the mandatory blood draw provisions act as an alternative theory supporting the seized blood evidence and the search warrant affidavit does not need any probable cause statement to allow the blood draw.
Imperfections and Omissions in the Warrant:
The DWI lawyers at The Haggard Law Firm always consider challenging the accuracy and adequacy of the description contained in the warrant. We also raise issues of irregularities or technical imperfections in the warrants, which often have missing or improper dates, grammatical imperfections or other important omissions. Although, such imperfections and omissions do not generally void a warrant – as long as the meaning of the order to search and seize is clear – we are very careful to ascertain this.
The Texas Good-Faith Exception:
A warrant will be held to be invalid where there are conflicting dates unless the State introduces testimony to explain the error as clerical. In general, the Texas good-faith exception will be applied to overcome technical, non-probable cause defects. Such examples of errors that do NOT render a warrant void or invalid are where the warrant is a signed copy, where the magistratre fails to fill in all the blanks, and where there is no jurat on the affidavit – as long as other evience shows it was properly sworn to.
Sufficient Factual Information is Necessary for Probable Cause:
The reasonableness of the blood draw warrant pursuant to the Fourth Amendment turns on the question of whether there is sufficient factual information to constitute probable cause to believe a person has committed a DWI and that his blood would provide evidence of intoxication. For the known information to constitute probable cause, there must be a “fair probability” that the blood will show illegal levels of alcohol. This may be based either on the police officer’s personal knowledge or on information from “reasonably trustworthy” sources.
Opinions of Police Are Not Probable Cause:
Opinions, even of police, are not sufficient probable cause unless supported by articulated facts. In a 2005 landmark victory for DWI suspects, the Court rejected the argument that the opinions of police officers are inherently reliable and stated that opinions cannot be transformed into facts without supporting evidence. In the case at bar, the DWI defendant had driven his car off the road into a porch. He did not admit to drinking but only stated that he did not know the road and took a wrong turn. Nor did police smell alcohol, or ask if he had been drinking, or conduct any sobriety tests or observe slurred speech or poor balance. The DWI arrest was thus based upon the opinion of police that he was intoxicated and not upon any articulable facts and it was thrown out.
Conclusory Statements in Affidavit Are Not Sufficient to Establish Probable Cause:
The TCCP also provides that a sworn affidavit stating sufficient facts – not conclusory statements – to show probable cause must be filed with the magistrate prior to the issuance of the search warrant. A mere conclusory statement in an affidavit does not suffice to support probable cause.
What the Affidavit Must Establish:
The affidavit must instead establish four things:
1) that a specific offense has been committed;
2) that the item to be seized [blood] will give evidence of the offense;
3) that the item is located on the person;
4) that there is a nexus between the blood to be seized and the evidence of the
DWI offense; in other words – that the blood will show evidence of intoxication.
Hearsay Information:
What about hearsay information to serve as the probable cause to support the issuance of the warrant? Unfortunately, this is allowed. This permits police to obtain blood draw warrants based on information received from other officers.
Challenging Untruthful Affidavits:
Evidence is inadmissible if seized by way of an affidavit that knowingly or recklessly contains false statements if these false statements are material to the issue of probable cause and if the remainder of the warrant, excluding the false statement, is insufficient to establish probable cause. Generally, we cannot go behind the face of the warrant to challenge its validity. There is also a presumption of truthfulness of the affidavit supporting the warrant.
If we are alleging a deliberate falsehood or reckless disregard for the truth of an affidavit, we can obtain a hearing. (A misstatement resulting from negligence or inadvertence does not invalidate the affidavit.) We must be able to show that the alleged falsehood in the affidavit was necessary to support probable cause.
Telephone and Facsimile Warrants:
What about warrants by phone and fax? How does that work? The arresting officer prepares an affidavit and faxes it to the judge along with the warrant. He then calls the judge who swears the officer over the phone to the facts contained in the affidavit. The judge signs the warrant and faxes it back to the officer. Although this does not happen routinely in Houston, it does happen routinely in several other Texas counties. In these cases we hold that Texas law should require the affiant to personally appear before the judge in order for the affidavit to be valid; that the solemnity of the oath and affirmation process required by the Fourth Amendment and the TCCP should never be diminished by a casual telephone call; that the absence of a personal appearance before the magistrate denies the magistrate the opportunity to meaningully assess the credibility, demeanor and truthfulness of the affiant; that the Fourth Amendment demands and deserves a higher standard than a phone call. The Texas Court of Criminal Appeals has also held that oath by telephone is something to be reserved for action by the Texas legislature.
Blood draws are increasingly used in DWI arrests as police and prosecutors throughout Texas advocate for their universal implementation. We are vigilant in our attempts to defeat this practice wherever possible as we feel it is a violation of the constitutional rights of our clients.
The Houston, Texas DWI attorneys at The Haggard Law Firm review and scrutinize the blood draw warrant and its supporting affidavit to discover inconsistencies, false statements, conclusory statements and a lack of sustainable probable cause in our efforts to avoid DWI convictions for our clients.
ALR HEARINGS – THE SHORT COURSE
You have 15 days from the date of arrest to call to schedule an ALR Hearing. Call 1-800-394-9913 to schedule. The purpose of the ALR Hearing is that DPS may be able to suspend your license. If you do not make the phone call by the 15th day after your arrest, you forfeit your right to the ALR Hearing and your license will definitely be suspended on the 40th day after your arrest.
As long as you have requested the Hearing, you may drive legally under your regular license, even if it was confiscated, until the date of your hearing. The ALR Hearing is not held in the criminal courts and it is not required to have an attorney represent you at the ALR Hearing; you may attend on your own and represent yourself.
We recommend the in-person hearing, whether you do it on your own or whether you hire us, as opposed to telephonic. We prefer to conduct your ALR Hearing if you are committed to a Trial in the event we cannot obtain a Dismissal for you: That Hearing gives us a chance to scope out the arresting officer’s testimony and gives us a good preview of how a Trial might go. We subpoena all of the Discovery from the ALR Hearing and use it to prepare for Trial.
If you hire us to handle the ALR Hearing, we will attend it for you. You are permitted to be present but it is preferable if you are not. If we win the Hearing, your license will not be suspended. If we lose, you may be eligible to drive with an Occupational or Restricted License. Even if we lose, the Discovery we subpoena for the Hearing provides us with a valuable preview of how the arresting officer might testify in your case at trial, so there are good reasons to hire us to handle your ALR if you think you will want to go to trial in your case if we can’t obtain a Dismissal.
Our fee for the ALR Hearing is $400 payable [current as of Jan. 2011] one month in advance of the Hearing; an Occupational or Restricted License, if necessary and if you are eligible, is additional if we lose the ALR Hearing and your license is suspended. Once we have been retained for the DWI, we will schedule your ALR Hearing if you indicate that you want us to handle it.
As long as you have requested a date for the ALR Hearing you may drive legally under your regular TDL – even if it has been confiscated – up until the date of the ALR Hearing. Thus, the “40th day after arrest” suspension rule does not apply as long as you have requested a date within 15 days from the date of your arrest. Most ALR Hearings are not reached until three months after the date of arrest. This effectively extends the time during which you can drive under your regular license well beyond the 40 days just by making a phone call and requesting an in-person hearing date.
Even if you ultimately decide not to attend the Hearing you should request one; there is no additional penalty by forfeiting the Hearing (your license will definitely be suspended if you don’t show up but there is no extra penalty imposed for not showing up). You may request a hearing date now and decide to hire us later on. If the Hearing date given you by DPS is not convenient for us, we can file a Motion for Continuance it.
PROBLEMS WITH THE TEXAS FIELD SOBRIETY TEST
The Standardized Field Sobriety Test – “SFST” is used as evidence of intoxication in making DWI arrests. But the problems with the SFST are legion. In 2002, new interpretations of the SFST were introduced into the Texas legal system. These new interpretations are based on the uncritical acceptance of a farcical study and were disseminated to law enforcement throughout Texas.
The testing procedures employed in establishing the sobriety test were so mysterious and so poorly described that it is impossible to fully understand the parameters of the field sobriety test. Moreover, some of the conclusions drawn from the study which created the field sobriety test directly contradict the reported test results. The SFST which is used to arrest YOU for DWI is not based on ethical scientific research but is based rather on a confused polemic – to serve law enforcement and prosecutors – and on professional incompetence and hubris.
What this means for your DWI is that – we can often overcome a poor performance on the SFST by proving, sometimes with the aid of our forensics experts, that “failed” sobriety tests are often not evidence of intoxication.
The SFST lacks scientific merit. At first, the idea was to create simple tests to evaluate the presence and body burden of alcohol. Later, deliberate fraud was used to promote these tests to law enforcement and the courts. The tests as taught to Texas law enforcement are flawed and unreliable as shown by original data obtained only through the Freedom of Information Act request!
Police officers are trained to offer these tests into testimony in the criminal court system. The validity of their testimony rests upon the accuracy and legitimacy of the original study [the "San Diego Study"] on which they were based. Yet, the authors of this study will not divulge the nature of their validation procedures! Now, when scientific evidence is offered in court, it is assumed that the court will take an active role in assuring that the testimony conforms to Daubert standards. For instance, breath test testimony requires that a technical supervisor with a bachelor’s degree in chemistry from an accredited university provide foundational testimony.
The field sobriety test, however, is UNIQUE in that no such proof of scientific credibility is required. Why? Simply because the police officers who administer them are “certified” to conduct the test! [Educational requirements to become a police officer are simply a GED and completion of a training course conducted by a state agency.]
The uncritical acceptance of the sobriety tests and their results in Texas courts is based on flawed science and methodology. Moreover, these tests do not appear in the peer-reviewed scientific literature since they have been actively concealed from scientific inquiry. At The Haggard Law Firm, we argue vociferously against such flawed science being used to convict our clients of “DWI”.
Other problems with the SFST are that police can count test clues (“failed” components of the sobriety test) to estimate a numerical BAC (breath alcohol concentration)! This is problematic for the motorists police stop for several reasons:
1) Estimating numerical BAC’s is not part of and never has been a part of the NHTSA’s field sobriety testing program. Indeed, 30 years ago the HGN was used to estimate the BAC but the method was so unreliable it was abandoned.
2) Clue counting is not a basis for estimating numerical BAC values! The total number of clues from all 3 tests is 18 [8 for the walk-and-turn test, 4 for the one-leg-stand test, 6 for the HGN test], is not even enough to accommodate the range of BAC’s typically found among DWI suspects.
3) Some of the clues are not in direct proportion to the amount of alcohol ingested; thus, BAC’s based on these clues are flawed from their inception.
Finally, a positive bias is built into the SFST – this is the tendency of police to produce evidence, to “rate” the suspects performance on the field sobriety tests in such a way that implies a higher level of intoxication than is supported by actual chemical testing. In other words, the police tend to view a motorist’s sobriety test performance with a bias toward assuming intoxication. Yet 30% of all estimates of intoxication based on the sobriety test alone are wrong – chemical testing of the breath or blood proves no intoxication in 30% of those who “failed” the sobriety test. This is because these tests, even in the hands of the most careful and best-trained police officers, overestimate intoxication.
Another study showed that police misclassified more than two-thirds of sober drivers as being intoxicated based on the walk-and-turn test.
Now, the minimum standard for scientists, any scientist, who conduct tests and offer expert testimony is:
1) that they are competent in the field in which they give evidence,
2) that they confine their testimony to their field of expertise,
3) that they present their testimony impartially,
4) that their testimony be based on sound scientific principles and
5) that any uncertainties or limitations associated with their testing be
acknowledged and explained.
The use of laymen such as police officers to testify about scientific matters effectively circumvents each element of this set of constraints.
The basis of our Texas SFST is a polemical not a scientific document – a document that does nothing to ameliorate the major deficiencies of the SFST. The authors of the study on which our Texas sobriety test is based recognized that their experiments produced specious results: They unethically failed to disclose the procedures used in the testing protocol, not a small matter given the weight given to it in training manuals. The mysteries of “clue counting” fit into this category of unethical behavior.
A common thread throughout the development of the sobriety tests has been the ease with which the various authors have simply dismissed data they didn’t like. The usual excuse for intoxication that does not show up by chemical testing – .00 BAC – is the presence of drugs.
Field sobriety tests are NOT designed to measure driving impairment as you would think! For ex., how one performs on the HGN test has nothing to do with one’s ability to operate a motor vehicle. This is because the objective of the HGN test is NOT to measure driving impairment but to discriminate between drivers above and below .08 BAC.
No medical or forensic toxicologists use and rely on the field sobriety tests; they are simply insignificant in peer-reviewed literature. The field sobriety tests are written about exclusively for law enforcement and the prosecutorial community.
It appears from all of the above that the role of the training agency for state law enforcement personnel is rather to facilitate arrests, not to assure fair treatment of its citizens. Our DWI defense attorneys fight to assure your fair treatment.
The salient question after all the above is – why is a series of tests that generate false positives half the time when applied to non-intoxicated subjects recommended as a reliable testing protocol?!
Bottom line: The field sobriety test is not ethical forensic science and was designed to be used by police and prosecutors to make DWI arrests and make DWI convictions.
The DWI lawyers at The Haggard Law Firm understand this and fight DWI arrests made on the basis of such specious “evidence” as failed sobriety test clues.
The Drink Wheel On-Line BAC Calculator
Click below to estimate your BAC based upon amount and type of alcoholic drink, time period, weight, and gender.
Drink Wheel Calculator
About the Drink Wheel
The Intoximeters Inc. “Drink Wheel”1 is a form that you can fill out. Upon completion we will instantly compute your estimated blood/breath alcohol concentration (“BAC”) based on the information that you have provided and return that estimate to you. It is presented as a public service to Intoximeters web site visitors. Its primary purpose is to provide useful information about the responsible use of alcohol.
Why is it called a “Drink Wheel”?
We call it the “Drink Wheel” because it is based on various paper and cardboard BAC calculators that are given out in alcohol awareness programs, some of which are in the form of a wheel that you can spin around to calculate your estimated BAC based on what and how much you have had to drink.
Disclaimer
It would be extremely foolish for us to pretend that our “Drink Wheel” can tell you what your BAC actually is, first because it would open us up to an incredible amount of potential liability and second if it really did work accurately there would be no need for police agencies to buy the instruments. A person’s actual BAC is dependent on many complex factors, including their physical condition (body composition, health, whether they are diabetic, etc…) and what they have recently ingested (including food, water, medications and other drugs). This site includes a more detailed discussion of the Pharmacology and Disposition of alcohol in humans. The results that are generated are rough estimates of an average healthy person’s BAC assuming typical beverage sizes, recipes and alcohol content. The BAC estimates generated by the Drink Wheel should not be used to infer anyone’s fitness to work, drive or perform any other task or duty.
Courtesy of Intoximeters Inc.
Texas Implied Consent Law
National Highway Traffic Safety Administration
Texas Department of Public Safety
Intoxilyzer 5000EN Website
~The Haggard Law Firm accepts selected criminal defense cases in Harris, Fort Bend, Galveston, Brazoria, Montgomery, Matagorda and surrounding Texas counties. Affordable representation; payment plans arranged in some cases. We represent clients in all Misdemeanor Courts, Felony Courts, Juvenile Court and Federal Court.~
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