May 13, 2015

Driving While Intoxicated (DWI)

Texas DWI Lawyer Chris Dorbandt

When selecting a Texas DWI lawyer for legal representation you should strongly consider my prior law enforcement experience and knowledge of police procedures, including Intoxilyzer operations and other specialized police tactics, which have proven to be extremely insightful and beneficial to my clients. I am a very experienced in defending DWI cases.

I am an experienced, knowledgeable Texas DWI lawyer who successfully handles many DWI cases each year. My experience with Driving While Intoxicated (DWI), Driving Under the Influence (DUI), and Boating While Intoxicated (BWI) has earned the firm a stellar reputation for successes in obtaining dismissals and/or a reduction of the charges. 

In addition, I have won a large number of trials before the judge or jury.  After all, you don’t want to have to serve a jail sentence or complete a lengthy probation period if you don’t have too?  If you’ve been charged with DWI, it is critical that you know your rights and what to expect.  You are going to be dealing with two (2) immediate legal issues – the first is Administrative License Revocation (ALR) and second is the criminal charge itself, the issue of Driving While Intoxicated.

If you have been charged with Driving While Intoxicated (DWI), it is critical that you know your rights and what to expect.

Texas DWI Lawyer Chris Dorbandt defends you in court

The law is complex and much is at stake. You need an experienced, knowledgeable Driving While Intoxicated (DWI) lawyer who is able to exert time and effort countering a prosecutor with almost unlimited resources.  In order to be successful, a DWI lawyer must have similar capital to maintain an office and mount a winnable defense. Hiring a DWI defense attorney in Austin or the central Texas area based solely upon fee structure alone in order to save money is unwise. Be aware than an attorney without adequate resources will be hampered by financial constraints. This could cost you much more than the legal fees expended. It’s not worth the risk! You get what you pay for.

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Administrative License Suspension (ALR) Hearing

Assuming the license holder makes the request for a hearing within the statutory period, a hearing is scheduled. In Texas, the hearing takes place in court before a judge. The procedures for the administrative hearings don’t vary much. The hearing will be presided over by an Administrative Law Judge (ALJ), and the state’s case will be presented by a prosecutor representing Texas Department of Public Safety (DPS).  Usually the officer will be required to testify, if he/she has been properly subpoenaed.  Usually within a short period of time after the hearing, the ALJ will make a ruling to suspend or not suspend the person’s driver’s license.

Again, the ALR program is the administrative process by which the Texas Department of Public Safety suspends the driver licenses of individuals who are arrested for the offense of Driving While Intoxicated (DWI). Texas Transportation Code Chapters 524 and 724 provide that an individual who has been served notice for refusing or failing a chemical test will be automatically suspended unless the individual requests a hearing in a timely manner.

DWI Conviction – A Hefty Surcharge Applies to Your Driver’s License

Secondly, if convicted of Driving While Intoxicated (DWI), you could be ordered to pay substantial fines, court costs, and probation fees as well as having your driver’s license suspended for up to two (2) years (in addition to the ALR suspension!). In addition, you will be subjected to an annual administrative surcharge fee of a $1,000.00 a year for three (3) years just to keep your driver’s license valid. My first piece of advice is to call us immediately for a consultation with an experienced Texas DWI lawyer. There are many reasons to seek competent representation from an experienced DWI lawyer. An effective successful Texas DWI lawyer will raise key defenses in a timely fashion, thereby preserving evidence, your memory of the arrest and ensuring witness availability. A winnable case can easily be lost if memories are allowed to fade and witnesses become unaccessible.

Field Sobriety Testing in Texas

When stopped by a police officer, sheriff’s deputy or state trooper, the first thing to know about roadside field sobriety testing is that you are not required to perform them! You can refuse these field sobriety tests and it is your right to do so. Unfortunately, the police are not required to explain this to you. The police make hundreds of arrests a year and are wise on how to obtain your cooperation. Be cautious when confronted by any law enforcement officer.  Don’t act out or say too much. Don’t agree with them when asked “don’t you think you’ve had too much to drink to be driving tonight?” Every word you say is being recorded!  I like to think of it this way.  The police are not generally bad people, but when being investigated for DWI or any criminal offense, they are your legal enemy. Be aware that the state prosecutor obtains DWI convictions in two ways: (1) if your alcohol concentration is 0.08% or greater (by breath, blood or urine testing), or (2) if you have lost the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances.

Tests such as holding your head back with your eyes closed are designed to make you look foolish to a jury. They are not, however, standardized field sobriety tests. Even counting on your fingers in a complicated pattern, touching your nose with your arms extended, and the many other varied tests can be used by the officer during the field testing and instruction phase; they are not prohibited. There are no set rules, other than what the officer tells you, and you are being arrested, in part, on how you follow or fail to follow instructions. Nationwide, one of the most common tests is reciting the alphabet. Surprisingly, many sober people cannot accurately recite their ABC’s, or they get confused when reciting them.

However, there are three tests that have been validated by a governmental agency. If instructed properly, they may be used against you as evidence at your trial. A validation study was set forth by the National Highway Traffic Safety Administration (NHTSA) (www.nhtsa.gov) and the Standardized Field Sobriety Tests (SFST’s) are as follows:

Intoxilyzer Testing – As Prosecutors Like to Say … “We Have You Now!”

Police frequently test blood alcohol content by subjecting a suspect to a “breathalyzer” or “Intoxilyzer”.  These instruments are different from — and much more sophisticated than the “portable breath test” units police use to test blood-alcohol content at the scene of the stop.  To be admissible at trial, breath test results must be conducted in conformity with regulations set forth by the Scientific Director of the Texas Department of Public Safety (DPS).  These regulations require the instrument to be regularly checked and calibrated, the person operating the test to be certified, a 15-minute minimum observation period established prior to testing, and two breath samples taken within a prescribed period of time.  The two breath test results must be within 0.02 percent of each other.  Failure of the police to comply with any of these regulations can result in the test record being suppressed (ruled inadmissible) at trial.

Breath testing has been around for a long time.  In 1969, Senate Bill 74 of the 61st Texas Legislature promulgated authority to the Texas Department of Public Safety to establish breath alcohol test standards. The Department created the Office of the Scientific Director and developed rules governing evidential breath testing. These rules are contained in the Texas Administrative Code, Title 37, Chapter 19, and are commonly known as the Texas Breath Alcohol Testing Regulations.

The Scientific Director’s Office administers and regulates the state breath alcohol testing program through technical supervisors in compliance with the Texas Breath Alcohol Testing Regulations. All analyses conducted by state, county, and city law enforcement officials are performed in accordance with these regulations, which require the certification of all aspects of breath testing. These breath alcohol analyses are performed in conjunction with various alcohol related criminal offenses and the enforcement of commercial driver license statutes.

The Scientific Director’s Office directly manages the Department’s technical supervisors, and administratively manages technical supervisors employed by other agencies as well. Duties include certification of 340 breath testing instrument locations and 4,200+ breath test operators. The office also provides expert testimony as needed in contested criminal, civil, and administrative breath test cases.  The Intoxilyzer 5000en is the certified evidential instrument of choice in Texas. It has been around since 2003 and it is becoming a bit dated.  More on this later!

In addition to evidential breath testing, the Office of the Scientific Director regulates the breath alcohol ignition interlock device (IID) industry within the State. Breath alcohol ignition interlock devices (IID) require the operator of a motor vehicle to submit a sample of alcohol free breath prior to engaging the ignition of a motor vehicle.   Many courts and probation officers mandate the installation of such devices as a condition of bond and/or probation for individuals convicted of alcohol related offenses. The Texas Ignition Interlock Device Regulations can be found in Title 37, Chapter 19, Texas Administrative Code.

If you have been charged with a DWI offense, you need to retain the services of a criminal defense attorney as soon as possible. We can help by investigating and collecting necessary evidence to defeat a DWI charge.

First, YOU HAVE ONLY FIFTEEN (15) DAYS FROM THE DATE OF YOUR ARREST TO CONTEST THE SUSPENSION OF YOUR DRIVER’S LICENSE.  Obtain a skilled Texas DWI lawyer quickly because in this case, time truly is of the essence!  If you fail to meet the statutory 15 day deadline, your driver’s license will be suspended.

  • I have prior law enforcement experience and knowledge of police procedures, including Intoxilyzer operations and other specialized police tactics.
  • I have won a large number of trials.
  • I have been handling DWI cases regularly since 1998.

In Texas, Administrative License Revocation (ALR) is a process by which an individual who has been arrested for Driving While Intoxicated (DWI) has his or her driver’s license administratively suspended. This program became effective September 1, 2003, and it is administered by the Texas Department of Public Safety (DPS) (http://www.dps.texas.gov)

A suspension can occur from either 1) the refusal to submit to a chemical test (breath or blood) or 2) the taking a breath test and failing it; that is, having the results of the test be at or greater than 0.08% blood alcohol when a breath test is administered. This blood alcohol concentration of 0.08% applies to all drivers, but a lower blood alcohol concentration (BAC) level is applicable to underage drivers (minors) or any driver operating a commercial motor vehicle. DPS is authorized to suspend the drivers license of minors who commits the offense of Driving Under the Influence (DUI) as well as individuals who refuse to provide a specimen following an arrest for the offense of Boating While Intoxicated (BWI). The statutes concerning ALR suspensions are found in the Texas Transportation Code, Chapters 524 and 724, respectively.

The administrative license suspension process usually begins when a law enforcement officer determines that there is reasonable suspicion for an initial traffic stop of a motorist. If the officer has reason to believe that the driver is impaired, he or she will generally administer field sobriety tests. If the driver performs poorly, the driver is arrested for DWI and transported to the police station. At the station, the officer will read to the driver a “Statutory Warning” and then a request is made that driver submit to a breath or blood test to measure his/her blood alcohol concentration. If the driver refuses to provide a specimen or provides a specimen with an alcohol concentration at or greater than 0.08, the officer serves a notice of suspension and confiscates the driver’s license.

Procedures for handling minors vary slightly. A law enforcement officer must have reasonable suspicion to conduct a traffic stop.  However, a full custodial arrest is not required. Once the officer determines that the individual is under 21 years of age and has reason to believe that he/she has consumed alcohol (any detectable amount of alcoholic beverage will do), the officer may issue the driver a citation for DUI, serve the notice of suspension, and confiscate the driver license. The minor may or may not be placed under arrest and a chemical test may or may not be requested. The officer may proceed with a custodial arrest procedure if he believes the individual is seriously impaired.

As above, the driver has fifteen (15) days from the date of the notice of suspension is served to request a hearing. If no hearing is requested, the suspension will automatically go into effect on the 40th day after notice was served.  The period of suspension is 90 days to a year, depending upon the existence of prior alcohol related contacts; if a refusal to submit to testing is involved, the periods are 180 days to two years. Minors face suspensions of 60 to 180 days.

Texas DWI Charges can be dismissed or reduced by a knowledgeable Texas DWI lawyer

HGN Testing

Horizontal Gaze Nystagmus (HGN) is an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his or her eyes. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, and if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.08 or greater. HGN may also indicate consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.

It’s unfortunate that so many officers, who are trained by other officers, not physicians or other eye specialists, buy into this junk science.  Yes, they can see a person’s eyes jerking, but this is not an indicator that one is highly intoxicated.  It is important to note that even the National Highway Traffic Safety Administration (NHTSA) acknowledges that the HGN testing allows for the proper classification of only 77 percent of suspects.  That is, the HGN test will result in many false positives and cannot be considered a reliable indicator of intoxication.  Indeed, the HGN is not admissible in many state courts (although Texas allows it in most courts).  Police are permitted to use the test to establish probable cause to arrest a suspect.  People taking medication such as seizure and psychiatric medication may also “fail” the HGN test even though they are not intoxicated.  I’ve talked to board certified ophthalmologists who can’t believe police use HGN to determine intoxication!

Walk & Turn

The Walk-and-Turn and One-Leg Stand are “divided attention” tests that are not easily performed by most people. They require a person to listen and follow instructions while performing physical movements. Impaired persons have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises.

In the Walk-and-Turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for eight indicators of impairment that he/she will refer to as “clues”. If the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, steps off the line, uses arms to balance, makes an improper turn, or takes an incorrect number of steps. If two or more clues are identified, a person is considered to be likely intoxicated. It is important to note that even the NHTSA concedes that only 68% of individuals who exhibit two (2) or more indicators in the performance of the test will have a BAC of 0.08% or greater.  It is also important to note whether a person has some reason unrelated to intoxication – such as a physical disability, high-heeled shoes, use of prescribed medication, obesity, advanced age, and many other additional reasons – that makes it more difficult to complete the test.  It is very important to point out these issues to a judge or jury when a case goes to trial.  The average person on the street cannot complete this test with 100% accuracy.  It is hard by any measure, if the instructions are performed precisely as given.  Remember, the police practice these tests almost on a daily basis.  They look great for court as they perform the test before a jury.  How do you think you will look when there are three officers, a K-9 unit and who knows who passing by as you’re trying to perform them along the roadside?

One Leg Stand

In the One-Leg Stand test, the person is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put their foot down. The officer times the subject for 30 seconds (notice the officer does not tell you to hold your foot up for 30 seconds, but if you put it down, you’ve basically failed the test). The officer looks for four (4) indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down.

Prosecutors sometimes argue that a person’s “failure” of field sobriety tests such as the one-leg stand conclusively prove a person’s intoxication.  However the NHTSA itself admits that only 65 percent of individuals who exhibit two (2) or more indicators in the performance of the test will have a BAC of 0.08 or greater.  And, like the walk-and-turn test, there are many factors other then intoxication that can make it difficult for a person to stand on one foot for 30 seconds.

It is important to carefully examine field sobriety test evidence.  In many, if not most instances, police officers do not administer the test in full compliance with NHTSA guidelines.  For example, an officer’s opinion should be considered suspect if he/she uses improper scoring criteria, was improperly trained, incorrectly instructed the suspect on how to perform the test or did not use the standardized methodology in performing the tests.  Cross-examining police officers with their own training manuals frequently exposes their lack of knowledge and skill in conducting these tests.  At trial, all of these factors must be fully explored so that a judge and/or jury understand the fallibility of field sobriety testing.

Portable Breath Testing (PBT)

Police in Texas may use a portable handheld breath testing device (PBT) for the sole purpose of determining whether there is probable cause to request a more reliable Intoxilyzer test.  PBT tests are “quick and dirty” for the officer but they cannot be used against you at trial.  Why?  The portable device is non-evidentiary.  That means it lacks reliability and the results cannot be admitted as evidence against you in court.  However, it gives the officer a “quick and dirty” blood alcohol reading and then he or she may request that you submit to the “real” evidentiary test, the Intoxilyzer.  The test results from the Intoxilyzer can be used against you in court.

You need an experienced, knowledgeable Texas DWI lawyer who is able to handle your case. Contact us today for a free consultation and get the best results you can for your case.