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Pre-Trial Intervention FAQ’S

What is the DWI PTI program?

A contract between the DA’s office and the defendant which results in a Dismissal of the DWI after satisfactory completion of the terms of the contract and the option to expunge the arrest from your record (2 years after Dismissal).

Is DWI PTI probation?

Technically it’s not probation – it’s a contract agreement – although the requirements are similar to those of probation.

How long does it last?

Typically, one year.

I refused the breath test. Am I eligible for the PTI program?

No. You must submit to the breath test to be eligible. If blood was drawn due to your refusal to submit to the breath test, you will not be granted entry into the program.

What must my breath test reading be?

It must be under .15 for you to be eligible. If you blow .15 or higher, you will not be granted entry into the program.

What are the fees and costs associated with the DWI PTI program?

Approx. $400 in one-time fees:

  • Assessment fee [one time] – $202 – due at the time of the assessment – cash, money order, or cashier’s check made payable to HCCSCD
  • DA’s Office DWI PTI fee [one time] – $130 – due before you sign the PTI Agreement
  • Offender ID [one time] – $14.50
  • HCCSCD Alcohol/Drug Education 9 hour mandatory class [one time] – $62

Monthly fees –

Ignition Interlock Monthly Lease [fees may vary] – $75 – All participants must have the interlock or portable monitor regardless of how low their BAC reading was at the time of the arrest.

What is the “acceptance of responsibility” statement?

This is a sworn statement that you must provide stating what and how much you had to drink, where you were coming from, where you were going to, why you should be considered for DWI PTI and why it’s more appropriate for you than probation.

Can the DA’s office use my sworn statement against me?

Only for impeachment purposes of your testimony in any future criminal case against you including any continued prosecution in the subject DWI. (For ex., if you are discharged from the program or decline to enter after writing the statement and your DWI goes to trial.)

Can I have a prior record and get into the DWI PTI program?

The only thing you can have on your record is a Class C misdemeanor conviction. Any other arrests – even if juvenile and even if subsequently dismissed – will disqualify you.

Do I have to be a U.S. Citizen?

No but you must be a Lawful Permanent Resident or have ICE-documented lawful presence in the USA. You cannot have “applied for” status.

Do I have to live in Harris County?

No – but you must live in a county contiguous to Harris and all conditions must be met in Harris County.

Do I need a current valid license and insurance?

No – to be eligible all you need is proof your license and insurance were valid at the time of the offense.

I was charged with another case at the same time as my DWI. Can I still receive PTI?

Yes if your companion case is a POM, PCS or PDD. (Possession of Dangerous Drug). Any other companion offense will disqualify you.

What is the assessment?

This is an evaluation during which you’ll be asked extensive questions regarding your background, habits and the subject case. The assessment is used, among other objectives, to determine the level of help and supervision you may need to succeed in DWI PTI.

What happens if I’m late or miss my assessment?

You will not be considered for DWI PTI. It’s a zero-tolerance program.

What if I need a translator for the assessment?

You must pay the cost and the translator must come from a pool of certified translators approved by the HCDA’s office.

What if I’m going to college out of state?

The DA’s Office will consider it and we will try to get you in the program but you must be able to comply with all of the requirements and assume responsibility for any additional costs.

What if I test positive for alcohol or drugs while out on bond or during the term of the agreement?

You will be removed from eligibility or from the program. DWI PTI is a zero-tolerance program.

What are the primary eligibility requirements?

  • First-time offender
  • US Citizen or Lawful Permanent Resident
  • Live in Harris or contiguous county
  • Employed or in school
  • No high travel demands
  • No companion cases other than POM/PCS
  • Took breath test – did not refuse it
  • Have a BAC reading via breath sample of less than .15
  • Valid TDL & insurance at time of offense

When can I get my DWI arrest expunged?

Two years from the date of the Dismissal.

What if I don’t have a car to get the interlock installed in or my license is suspended?

You must then obtain a portable breath testing device.

What else do I need to know about the ignition interlock or portable breath test device?

They are required to have cameras. And you can’t sign the PTI Agreement in court until you have provided proof that you have obtained one.

When is DWI PTI orientation?

You will be given your orientation date in court after you sign the agreement. It will most likely be on the first Thursday after you sign the agreement. Orientations are held every Thursday at 1:30 at 9111 Eastex Freeway. Failure to appear for this orientation will result in your removal from the DWI PTI program. DWI PTI is a zero-tolerance program.

When and where do I get my offender ID?

Anytime after you sign the agreement. Take a copy of it and $14.50 cash to 49 San Jacinto, 4th floor.

What if I have a CDL or I drive a company truck & the company won’t let me install an ignition interlock in it?

In this event, you must have the ignition interlock installed on your personal vehicle AND a portable breath testing device.

What if I blew just barely over the limit – do I still need to have the interlock or portable breath monitor?

Yes. All participants in the program are required to have the interlock/portable monitor regardless of their breath test reading at the time of their arrest.

Will I need to attend AA or other self-help program?

Not necessarily. Your assessment will determine whether you need to attend AA meetings.

Can I travel while I am on DWI PTI?

Yes, you can travel within Texas without having to obtain a permit. But any travel outside of Texas must be approved by the Harris County probation department. Any travel outside of the country must be approved by the DA’s office. If you are not in compliance travel will be denied. You must be issued a travel permit before you can leave.

What if I have other questions while I’m on PTI?

Feel free to call our office and we will try to assist. Or you can also call directly:

713-755-2270

713-696-2000

713-755-4523

DWI S.O.B.E.R. Court

Below are some of the basics and common questions about SOBER court.

The links at the end will link to a Client Agreement and the SOBER Handbook.

What is SOBER Court?

SOBER stands for Saving Ourselves By Education & Recovery. It’s a Harris County DWI comprehensive 4-phase abstinence program for defendants with true alcohol addictions. SOBER is designed to bridge the gap between the courts and criminal just system on the one hand, and the therapeutic community on the other.

What is SOBER’s goal for the public?

To increase public safety and reduce long-term cost to the criminal justice system and taxpayers. A multi-disciplinary team effort is utilized to provide intense supervision.

What is SOBER’s goal for the high-risk defendant?

To break the cycle of addiction and reduce repeat DWI’s through treatment and rehabilitation.

What methods does SOBER use?

  • Accountability
  • Honesty
  • Frequent drug testing and alcohol monitoring
  • Education and counseling
  • 12-step participation
  • Sanctions
  • Incentives
  • Judicial supervision
  • Intensive case management

.. all designed to promote long-term sobriety and productive lifestyles.

Am I eligible for SOBER?

You must –

Have a current DWI in Harris County

Live in Harris or a contiguous county

AND

Have a previous DWI within 10 years

OR

Have more than one prior alcohol or drug related offense

OR

Be currently on probation or PTI for DWI

AND

Have a history of alcohol or drug addiction

OR

Be considered high-risk – BAC .15 or higher or an assessment that indicates high risk

AND

Be willing & able to stop use of lawfully prescribed and OTC medications that affect the accuracy of drug screening

I’m eligible. Now what?

Now you must be assessed by a SOBER Court Case Manager.

How much does the assessment cost?

The assessment is free.

What factors are considered during the assessment?

  • Substance abuse history
  • Criminal history
  • Medical factors
  • Mental health factors
  • Support system
  • Readiness for treatment
  • Commitment to change

Who are the members of my SOBER team?

  • Your defense attorney
  • Judge
  • Prosecutor
  • Probation department personnel
  • Court coordinator

Using input from the SOBER team, the judge uses a progressive sanctions and incentives grid to make decisions after violations or good progress.

What happens in the first 30 days of my acceptance into SOBER?

They will find out your level of addiction/dependency, diagnose you, and draw up guidelines for case management. Then you will be referred to any needed substance abuse treatment, education or mental heath services facilities.

Now what?

You are now assigned to one of the 3 SOBER courts. Then you begin your 4 phases of treatments.

Phase I – minimum 3 months

  • Random drug and alcohol tests
  • Court 2x per month
  • Daily 12 step meetings
  • Use alcohol monitor
  • Begin DWI Offender course

Phase II – minimum 3 months

Everything in Phase I except the 12 step meetings decrease to 2x pera week and with the addition of weekly group and individual counseling

Phase III – minimum 6 months

Everything in Phase II except the court visits decrease to once a month and cognitive education is added

Phase IV – minimum 12 months

Everything in Phase III except no more drug/alcohol testing and aftercare and supportive services are added. In Phase IV you will also prepare for graduation.

You can be promoted up a phase or demoted down a phase at any time by the Court based on your performance.

What if I’m experiencing an emotional crisis?

Call the National Suicide Prevention Hotline at 800-273-8255 for 24/7 emergency counseling.

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.

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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.

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General Blood Test Q&A

They drew my blood & it was over the limit. Can you beat my case?

Yes, it is possible to beat it even if over the limit on technicalities – by attacking either the protocol & procedures of the blood draw or the analysis of the blood sample.

The police didn’t ask for my blood to be drawn – the hospital just drew it after I was transported there after my accident. Is this a defense?

Not in & of itself but most hospital-initiated blood draws (as opposed to police-initiated blood draws) use a forensically invalid method to analyze the blood alcohol content.

What is wrong with the enzymatic assay method hospitals use to analyze blood?

From the standpoint of a DWI prosecution – it produces falsely elevated ethanol results.

How will this help you beat my DWI blood draw case?

If we go to trial, the prosecutors must produce an expert witness for the State who can prove to the jury that the underlying scientific theory of enzymatic assay is valid. If they cannot do this, we can have the over-the-limit results of the blood draw suppressed.

After arresting me, the police requested a blood draw without my consent and without a warrant? Can they do this?

Only if there are exigent circumstances – such as after a serious accident or you have prior DWI convictions on your record. Otherwise, they must obtain a warrant.

Who has to prove there was an exigent circumstance to draw my blood without a warrant & without my consent?

It is the burden of the State to prove there was an urgent, exigent circumstance for drawing blood without a warrant. Keep in mind, however, “exigent circumstance” can be a fluid concept in the mind of police officers & judges – many will maintain the inability to obtain a warrant in a reasonable amount of time in itself creates an exigent circumstance. Given modern technology & staffing levels of DA’s & magistrates, we can usually present evidence to the contrary, to try to get the blood results suppressed as having been drawn without an exigent circumstance, but this, as much else in a contested DWI blood draw case, will have to be litigated in a hearing.

Who has to draw my blood?

The statutes specify who can draw blood depending on whether you are under arrest or not at the time of the draw & whether there is a warrant or not. The basic rule is that the drawer of blood must be a “qualified technician” for the results to be admitted into evidence. The trend shows this qualification becoming easier & broader over time allowing it to apply to practically any medical related personnel such as EMT’s. The draw must always occur in a sanitary place.

I was arrested, I did not give my consent, there was no warrant, & there was no exigent circumstance, but they still drew blood. What now?

The State must be able to prove you DID give voluntary consent for the blood draw by convincing & clear evidence. If they cannot, the results of the blood draw may be suppressed. (This means we get them thrown out so there is no blood evidence of intoxication & we are much more likely to obtain a Dismissal.)

They obtained a warrant & drew blood. Do I have any defenses besides technical issues?

Yes. The State doesn’t get to automatically use that evidence. We are protected by the Fourth Amendment from unreasonable search & seizure: any warrant must be supported by probable cause. If there is intentional deception or reckless disregard for the facts giving rise to the probable cause, we can have a hearing on the validity of the warrant.

Other Fourth Amendment defenses to the warrant include the use of excessive force by police in practically assaulting the defendant to hold the him down for the blood draw.

I was taken to the hospital unconscious, my blood was drawn by the hospital for medical treatment purposes, & I was later arrested for DWI – can the State still get my blood work?

Yes. In situations like this – where the police did not ask for the blood but the hospital took it for medical reasons – the prosecutors just have to issue a HIPAA Grand Jury subpoena for your hospital records.

Where is my blood sample analyzed if drawn by order of the police?

At a police or government-owned forensic lab which uses gas chromatography. Gas chromatography is a forensically reliable method of analyzing blood alcohol content.

What are ways to attack the blood sample on technicalities at trial?

There are many: The State must make the actual analyst who tested the blood available for cross examination in trial before they can reveal the results of your blood test to a jury or offer any opinion on the result of the blood test to a jury. In cross-examination we can attack the procedures for proper site preparation, execution of the blood draw, preparation of the blood for analysis, maintenance of the instruments used in the analysis, the actual analysis of the sample & interpretation of the results.

My blood draw came back over .15. What now?

Now the state can enhance your Class B DWI to a Class A increasing the punishment range to $4000 & 1 year in jail. You can’t get into the DWI Pre-Trial Intervention program with a .15 or over result. A high blood test result is an immense burden for us to overcome. Many DWI lawyers, including us, use a common sense defense some call the “disconnect defense” to empower the jury to trust their common sense as to whether a defendant was really intoxicated & not blindly accept the scientific results.

ALR HEARINGS – FAQ

Can I represent myself at the ALR Hearing or do I need to hire an attorney?

Yes. It is not required for you to have an attorney. But your chances of winning are much better if you hire an attorney knowledgeable in ALR procedures. It’s almost impossible for somebody to win an ALR hearing pro se. Hearings can be won pro se only if the paperwork is facially defective – but this is rare – and then only IF the judge notices the problem.

For instance… subpoenas of the arresting officers are necessary when the paperwork is legally sufficient. Issuing a subpoena gives you two ways to win. If the cop fails to appear, it’s automatic. If the cop appears, you have the opportunity to cross examine him and punch holes in his testimony. In order to suppress the documents, you must issue the subpoenas and send notice to DPS, serve the subpoenas 5 days before the ALR Hearing, and file the returns according to chapter 159 of the Administrative code, providing notice to DPS three days before the hearing.

ALR hearings are all about using the procedural rules against the other side. A pro se defendant cannot jump through all of the procedural hoops representing himself. In addition, for a pro se defendant there are additional complicating factors, such as the fact that they cannot issue their own subpoenas; instead, they must file a Request for Subpoena at least 10 days before the Hearing. The judge will grant the Request for Subpoena if the pro se defendant can show good cause.

If you can’t afford us to handle your ALR Hearing, at least don’t skip it. If the paperwork happens to be bad, although rare, you’d lose on a default by simply not being there whereas if you had gone, you would have won. It’s like buying a lottery ticket and throwing it away without scratching it off. If you are called to testify by a DPS prosecutor, don’t. Say, “I take the 5th.”

How much do you charge for the ALR Hearing?

Current rates [2014] are $800 plus $80 for the subpoena. The Occupational License is included if we lose the ALR Hearing.

If I hire you to handle the ALR do I need to attend?

No. In fact, it’s better if you do not come.

Does the portable breath test I took count for the purposes of the ALR?

No. (Also the result is inadmissible for trial. Its only relevance is to establish probable cause to arrest for DWI.)

Does the ALR hearing have to be done in person to be won?

No, but we are more likely to win a live hearing than a telephonic hearing.

What are reasons to do the ALR hearing besides saving my license?

It allows us get the arresting officer on record on many issues that could help us win a Dismissal of the DWI, such as probable cause to stop issues, the 15 minute observation period, & whether consent was actually given to draw blood on warrantless arrests. If the arresting officer cannot, at the ALR hearing, articulate for us exactly why driving under the speed limit was impeding the normal movement of traffic, or exactly why the weaving the defendant was stopped for was done in an unsafe manner, we can usually get the stop thrown out as not legal which destroys everything that follows, namely, the DWI case. When we suspect but can’t prove that the 15 minute breath test rule was not observed (as for instance when there is no scene video), then methodical questioning of the arresting officer at the ALR hearing will often give us what we need to be able to prove that this rule was NOT observed & we get the test thrown out & the case as well. Some police will lie or play fast & loose under testimony about the necessary consent to draw blood having been given – even when we know for a fact from the video it was NOT. The ALR hearing allows us to pin him down on this issue & that consent was not given at another time during the arrest procedure.

I already requested my ALR hearing to be done by phone. If I hire you to take it over – can you change it to an in-person hearing?

Yes. We can also change the date if necessary.

If I am accepted into the DWI PTI program, & you all have won my ALR Hearing – can the judge go back and suspend the license for his own reasons?

No – only if your DWI PTI is revoked.

The police officer didn’t give me a copy of my temporary driving permit. How can I get one?

We should be able to get a copy from the DA’s file. You should also go to DPS and request replacement of a lost drivers license. You’ll have about a two week window of time from the date of your arrest to do this.

My license was suspended after I got a DWI while working in Texas but I live in another state. Will the suspension follow my drivers license to my home state?

We can usually avoid the suspension in the home state in circumstances like this.

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 fighting your case as the testimony from the arresting officer can help obtain a pre-trial Dismissal or a Not Guilty verdict at trial. We also 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.

Our fee for the ALR Hearing is $800 payable [current as of 2014] one month in advance of the Hearing; an Occupational or Restricted License, if necessary, is included 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.

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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.

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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.

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