Posted on October 10, 2021 in Uncategorized

Facing a DWI in Texas is never an easy matter. You know that you may face financial penalties, a suspended license, or even time in jail. But if you're arrested for a DWI with a child under the age of 15 in your car, the penalties can be even more serious. That's what a North Harris County father recently discovered.

DWI in Harris County

On June 6, 2021, the constable's office deputies pulled over a car for a traffic stop on North Sam Houston Parkway. The police reported that the driver showed signs of intoxication and performed field sobriety tests. The police decided to arrest the driver for driving while intoxicated. Upon further investigation, the police discovered an eight-year-old child in the car as well. According to Constable Mark Herman, "Brandon Blackburn was arrested and booked into the Harris County Jail, charged with Driving While Intoxicated with a Child Passenger. His bond was set at $20,000.00 out of the 177th District Court." News reports and the statement from the constable appear to indicate that police arrested the driver based solely on the officers' impressions and field sobriety tests.

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 Posted on October 10, 2021 in Uncategorized

Bodycam footage or other video evidence of a DWI arrest can raise more problems for the defendant than just its incriminating effect. A recent media story showing bodycam footage of a Texas county judge arrested for DWI illustrates the special embarrassment of bodycam or other video footage.

Admissibility of Bodycam Footage

Bodycam or other video footage is generally admissible as evidence in a DWI case under the same rules for other evidence. That means the bodycam footage generally only gets in if the police had reasonable suspicion supporting the stop. An unconstitutional stop in violation of Fourth and Fourteenth Amendment rights should make the evidence inadmissible. Police officers must also lay the usual foundation for video evidence showing that it is an accurate and reliable representation of what it purports to show. Skilled defense counsel can raise these challenges and sometimes bar video evidence, as fruit of the poisonous tree, as lacking a reliable foundation, or for other reasons.

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 Posted on October 10, 2021 in Uncategorized

Police officers are human, too. They are not beyond committing the occasional mistake. Given their obvious power, position, and authority, judges, prosecutors, and police officers who handle DWI cases can at times seem unassailable, holier than thou, even above the law. They are not. They are as human as the rest of us, just as flawed and just as able to make mistakes. An extreme example may remind us of just how human an officer of the law can be.

An Extreme Example of Officer Misconduct

Consider this recent story of an allegedly intoxicated off-duty San Antonio officer causing a DWI accident. The report indicates that the intoxicated officer first rear-ended the accident victim's vehicle stopped at a red light. The 61-year-old victim was on his way home from his security work at around 9:45 at night. Rather than stop after the accident, though, the officer allegedly maneuvered his vehicle around the victim's vehicle and took off. The victim pursued until the officer hit a curb, disabling his vehicle. When the victim confronted the officer, the officer allegedly punched, kicked, and threw down the victim, fracturing his eye socket and breaking his nose and tooth. Even more remarkably, in this case, the officer had allegedly had two prior road-rage incidents. In one of those incidents, the officer had allegedly shot the other driver eight times, paralyzing him. Road rage is an ugly thing, especially when the perpetrator is a police officer.

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 Posted on October 10, 2021 in Uncategorized

Enough is sometimes too much. Consider a recent report of a Walker County jury recommending a 75-year sentence for a Huntsville man convicted of a Texas DWI charge. The DWI offense alone may not sound nearly so extreme as to warrant a 75-year sentence for a 45-year-old man. Three witnesses in another vehicle simply saw the defendant driving erratically while drinking from a beer can. They followed him to a fast-food parking lot, where police surrounded and arrested him. Arrest, warrant, and blood test confirmed a blood-alcohol level of more than twice the legal limit. If the crime had been a Texas first DWI offense with a blood test, then the man would have faced up to 180 days in jail and a $3,000 fine. But a lengthy criminal history effectively doomed the unfortunate man to prison.

Enhanced Sentences for Prior Convictions

Texas law can indeed enhance DWI sentences when the defendant has prior convictions. Most defendants charged with a second, third, or fourth DWI offense know that multiple DWI offenses lead to enhanced penalties. While a first Texas DWI carries the above 180-day, $3,000-fine maximums, a second Texas DWI offense with a blood test carries one-year, $6,000-fine maximums. A third Texas DWI offense with a blood test carries ten-year, $10,000-fine maximums. A fourth Texas DWI offense with a blood test can carry up to a twenty-year maximum sentence of imprisonment. Things get worse, sometimes much worse, with prior DWI convictions. The unfortunate man in the above story had three prior DWI convictions.

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 Posted on October 10, 2021 in Uncategorized

Harris County Constable Mark Herman recently reached the local media with a complaint that the Harris County courts are unwisely releasing repeat DWI offenders right back onto the streets, only to face DWI arrest once again. Constable Herman cites the death of a mother and three children in a DWI accident, although the story gives no indication that the perpetrator was a repeat offender. Are DWI offenders really in an arrest, release, repeat cycle? And if so, is the solution really to lock every arrestee up while they await a fair trial?

Constable Authority and Responsibility

Constable Herman has due authority and responsibility to raise certain law-enforcement concerns. A Texas constable is a licensed peace officer authorized under the Texas Constitution to enforce certain laws, as well as to serve certain civil duties like court bailiff and service of process. Constables clearly have the authority to enforce traffic laws and make traffic arrests. The frequency of DWIs is a legitimate constable concern. Harris County Constables divide their authority and responsibility across eight precincts. Constable Herman serves Precinct 4, north of Houston to the county's northern border. DWIs can be a problem in Precinct 4, just as in any other Harris County precinct.

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 Posted on October 10, 2021 in Uncategorized

If you've been involved in a crash that results in someone's death, the tragedy can be shocking and terrifying. Your life, and the lives of everyone involved in the crash, can change forever. If the police accuse you of drunk driving as well, the fallout can be overwhelming. You're undoubtedly frightened about what may happen and the possible consequences of a conviction. But the charges you may face can vary from crash to crash, as two recent fatal accidents in the Houston area demonstrate.

In the first case, two women died after a fiery wrong-way crash at 2:45 am on a recent Saturday night in Bexar County. A suspected drunk driver hit the women in a Nissan Rogue after driving the wrong way down the southbound lanes of Interstate 35 near Walzem Road. Police charged the driver with two counts of intoxication manslaughter.

Contrast this with a recent crash in Houston on Eastex Freeway that killed a grandfather driving his three grandchildren home from the hospital at 2 am on a Thursday. Police reported that he was trying to exit the freeway in the rain when an F-150 slammed into the back of his trailblazer. The children, ages 14, 12, and 8, were treated for minor injuries while their grandfather was pronounced dead at the scene. Police believe that the driver of the F-150 and her passenger were both intoxicated and charged her with murder. According to the Houston Police Department, she has two prior DWI convictions.

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 Posted on September 09, 2021 in Uncategorized

Law enforcement authorities take drinking and driving seriously in Texas. After all, the Houston area has one of the highest rates of deadly DWI accidents in the entire country. As a result, they place a high priority on DWI arrests. Now, whether those arrests will stand up to scrutiny in court depends in large part on the training of the officers performing the arrests. While Houston police officers go through training to perform DWI stops and tests in the field, things can still go wrong. When officers aren't adequately trained or fail to follow procedures, potentially innocent people can face arrest.

Houston Police Department Training Process

In Houston--and all throughout Texas--police officers go through specialized training for DWI stops, including Standardized Field Sobriety Testing, Advanced Roadside Impaired Driving Enforcement, and the Drug Evaluation Classification Program.

1. Standardized Field Sobriety Testing

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 Posted on September 09, 2021 in Uncategorized

If you're facing a drug DWI, you may be frightened and unsure of what happens next. In Texas, you can be arrested for driving while intoxicated if you:

• Operate a vehicle in a public place, and
• You don't have the normal use of your mental or physical faculties, or
• You have a blood alcohol concentration of.08% or more.

So, you can still face a DWI if you don't have the normal use of your mental or physical faculties due to alcohol, a controlled substance, an illegal drug, or a combination of these.

Drug DWI

Proving a DWI due to drug use is a bit more complicated than an alcohol-related DWI. There is no single blood or breath test the police can conduct like with alcohol intoxication. Instead, the police use something called the Drug Recognition Expert (DRE) Protocol. The DRE protocol involves 12 steps, most of which are highly subjective and observational, conducted by the police to determine whether a driver is impaired by substances other than alcohol. The final step of the 12 is a toxicological examination.

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 Posted on September 09, 2021 in Uncategorized

If you hold a high-profile position in your community, a DWI arrest can be even more stressful. Your arrest may end up in the media; you may have reporters calling your home or people looking for your arrest records. That's what a Cibolo city councilman recently faced after a DWI arrest.

On August 8, 2021, the councilman crashed his car near Fazio Drive and Carnousty Drive in Cibolo. Police found him near his car in a large drainage ditch at about 1:45 am. He told officers he'd been driving home from a party where he'd consumed three beers. Police reported he had difficulty walking up the hill and then failed a field sobriety test. When an officer told him he believed he was drunk, the councilman agreed with him, stating, "I believe that." After he refused a breath BAC test, police got a warrant for a blood draw. The councilman faces a misdemeanor DWI charge after the court released him on a $3,000 bond.

Public Arrest Records

In Texas, arrest records are typically public records. As a result, anyone who runs a background check will find your arrest record, charge, and conviction for DWI. In some cases, however, you may be eligible to have your record expunged if:

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 Posted on September 09, 2021 in Uncategorized

Blood Test Tube Recall

Prosecutors and defense lawyers across Texas are dealing with the fallout from a leading medical device manufacturer's 2019 recall of nearly a quarter-million of the tubes used to collect and preserve blood drawn from a person suspected of drunk driving.

The official FDA record of the recall shows it applying to a full lot of BD 247,000 tubes. The manufacturer admits that it failed to add a preservative to the tubes, which could thus test either falsely high or low:

"Lot has been confirmed to have no additive within the tube. Sample processed without the preservative (additive) in the tube, testing has yielded reliable results if the samples were stored at room temperature for no longer than two days. If the sample was stored for more than 2 days, the result for blood alcohol determination might not be accurate (either falsely low or falsely high)."

The FDA record of the recall instructs police to immediately review tube inventory and destroy all recalled tubes. Consistent with that direction, the Texas District & County Attorney's Association instructed prosecutors across the state to notify law enforcement agencies "to stop using tubes from this lot." The reason to abandon the suspect tubes is clear: blood-alcohol evidence based on the faulty tubes would itself be suspect, given that the absence of preservatives could produce false blood-alcohol results.

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