DWI Arrest Procedures in Texas |
What You Can Expect And How You Can Fight
The Charges Against You, Even If You Took A Breath Test
The Breath Test
The breath test, commonly referred to as a breathalyzer test, is done on a machine called the Intoxilyzer 5000. Many people feel that if they have taken this test and not passed after being arrested for DWI that they won’t be able to fight the charges, but that is not true. There are ways to show it is only a machine and it is often wrong. You need a smart, experienced attorney to help you navigate through the complicated legal system, fight for your rights and freedom and achieve the best possible outcome in your case.
The Law in the State of Texas provides that if an individual is driving or operating a motor vehicle on a public roadway and a police officer has probable cause to stop that individual due to a traffic law violation such as speeding, failing to maintain a single lane, failing to signal a lane change, no front license plate, or having an expired registration, to name just a few, then the reason for the stop, or probable cause for the stop has been demonstrated. The officer has a right to pull a person over.
The Odor of Alcohol
Next, comes any evidence for his suspicion to go farther in the investigation, if any. The odor of alcohol will certainly create a reason for the officer to make further inquiries; as will slurred speech, blood shot eyes, the driver fumbling around to obtain his or her driving license and evidence of proof of current liability insurance and are additional cues, as they are designated in the U. S. Department of Transportation, Transportation Safety Institute, National Highway Traffic Safety Administration, DWI Detection and Standard Field Sobriety Testing Manual, those small things that a normal person would call a clue.
The next step is to ask the person who has been pulled over to get out of the vehicle. The speed in which this is done, the balance maintained while performing this everyday and simple task is watched very closely by the officer. If the officer sees any perceived stumbling, balance issues, needing to hold on to the car door or roof of the vehicle for support, when exiting, these become additional cues or clues to the officer that further confirm his or her opinion that the person pulled over has been drinking too much to be safely operating the vehicle being driven.
The Standard Field Sobriety Tests
Then there are the Standard Field Sobriety Tests that the driver will be asked to perform. Generally, the first test the officer will try and administer is the Horizontal Gaze Nystagmas Test or the HGN. This test is designed to determine the point at which the eyes begin to jerk while the person maintains a fixed head position and follows a stimulus as it is being drawn slightly above and across the eyes to culminate in a 45 degree angle on each side.
The onset of nystagmus prior to the 45 degree point, according to the National Highway Traffic Safety Administration, indicates, one, the presence of alcohol and also the degree the person may be without the normal use of their mental or physical faculties due to the introduction of alcohol into their body (the definition of intoxication in Texas); claiming an 77% success rate, according to the manual.
However the officer is prohibited from testifying to this as he is not an expert in the interpretation of the readings of the HGN testing and many, many other factors come into play, e.g. illness, head injuries, and other such factors that must be taken into consideration prior to an expert being able to express an opinion on the level of alcohol concentration, and I don’t believe that there are any that can do anything but express an educated guess. This test is not even admissible in some states, due to its unreliability, and certainly the officer cannot testify to the predicted level of alcohol in a person’s system.
The Walk and Turn (or the WAT) wherein the officer has the accused person walking an imaginary line, heel to toe, 9 steps in one direction with a 3 step pivoting turn and then heel to toe, 9 steps back, with another 3 step pivotal turn, in order to face the officer, exhibiting no imbalance or stumbling ; all this done with hands flat by the person’s sides and looking down at their feet, is generally the next test administered at the roadside, regardless of the surface upon which it is being conducted, the type of shoes being worn, the angle of the surface, the anxiety the person may feel being put on the side of the road in public view to perform this test, which, incidentally, is not designed to demonstrate a person’s balance, rather the person’s imbalance.
Try it, having had no alcohol to drink, and see how you perform. It is just not a correct indicator of a person that may be intoxicated or without the normal use of mental or physical faculties and takes no ameliorating factors into account, e.g., persons over 50 don’t have the same ability to maintain their balance as a younger person, some people have balance imparities such as Meniure’s Disease, the various vertigo ailments that develop as people age, being overweight is a huge factor in inability in maintaining one’s balance, not to mention various injuries to the feet, legs, knees and hips, as well as, to the lumbar spine (the lower back) or the cervical spine (the discs in the neck).
The One Leg Stand (OLS)
The One Leg Stand (OLS) is the holding up of one foot above the ground with the foot parallel to the ground at the height of six inches, with hands by the side while the person silently counts to 30 as the officer times the person with his own timepiece. All of the same infirmities as listed above affect this test and none are taken into consideration when administering this particular test, either.
One must ask themselves, given the above albeit brief descriptions of the various tests, and the analyses provided, if they would feel comfortable taking any of these tests, which in the final analysis are designed to show imbalance and not balance. Once the odor of alcohol is included in the equation, from even one glass of wine at dinner, if the person is stopped at the proper time of the evening, the person will be tested and is going to be asked to perhaps say the alphabet or read from a pre-printed card.
Think for a minute, how is that a fair evaluation of a person’s normal use of their mental faculties? Seventy percent of the citizens that live in San Antonio and Bexar County, Texas are of Hispanic heritage and English was not their first language. The police officer doesn’t give them anything to read in the Spanish language, the only thing read is in English. It is only logical that a person may stumble saying the alphabet or attempting to read a little card in the glare of headlights and a flashlight, whether or not their first language was English, but particularly so, if their firsts language was Spanish.
The Intoxilyzer 5000
They will then be arrested and asked to take a breath test with the current popular machine, the Intoxilyzer 5000. A machine that must be calibrated regularly for accuracy and the accuracy of each individual test is determined by the what is called the “reference sample solution” which is blown through the machine to see if the machine is accurately testing for 0.08 breath alcohol content, prior to the individual blowing into the machine.
This sample is mixed by the officer administering the test, not the Technical Supervisor in charge of making sure the machine is operating in a true and correct fashion, and the mixture is often incorrectly mixed, which skews the test, the test that is used to indicate the person’s breath alcohol content. And remember, if a score of 0.08 is obtained, then there has now been a presumption created that the person is intoxicated (without the normal use of their mental or physical faculties), which can be rebutted, but who wants to create evidence against themselves, especially by taking a test by a machine that probably isn’t accurately functioning in the first place.
Know Your Rights
Sure, once pulled over and arrested for DWI and requested to take the breath alcohol content test, if the person refuses, then a license suspicion will result; however, within 15 days of receiving the DWI, the person has a right to request a hearing on the legality of the stop, the suspicion of intoxication, and the right of the officer to request the application of the test given by the Intoxilyzer 5000 machine.
This suspends the suspension prior to the hearing, which has to be lost in order that an actual suspicion occur. If a suspension occurs, then the general remedy is a request for an Occupational license.
Though this has its problems with insurance, employer-employee relations, etc., a refusal, if one has had alcohol to drink before getting behind the wheel, and enough factors have occurred to cause the police officer to pull them over, then that person is probably going to jail anyway, their car will be towed, and any of these Standard Field Sobriety Tests, if performed, or the taking of the test from the Intoxilyzer 5000 machine, if taken, will generally created an abundance of evidence that will have to be overcome and /or rebutted at a subsequent trial of the case.
As a sidelight, it is interesting to note, that the manufacturer of the Intoxilyzer 5000 machine will not ever release its manual or specifications, except to designated law enforcement personnel. They don’t want the attorneys to understand how it truly works and what weaknesses it may have in the proper determination of the breath alcohol test reading of an individual. What is there to hide?
You have a Constitutional Right to refuse all testing and my recommendation is that Right should be vigorously exercised, NO MATTER WHAT THE ARRESTING OFFICER HAS TO SAY. To do otherwise is creating evidence against yourself.
Why hire Attorney Stephen Nicholas?
So, to return to the main crux of this explanation, when you are making the choice to hire an attorney to represent your rights and protect you when charged with a DWI, only an attorney with the experience I, Stephen Nicholas, has, after almost 31 years of practice in defending innocent citizens from this overzealous prosecutorial atmosphere promulgated by the Media, Mothers Against Drunk Driving, just to name a few inflammatory organizations responsible for the almost zero tolerance to drinking and driving, which is legal, by the way, for the test is whether or not the person driving after having something alcoholic to drink, is driving without the normal use of their mental or physical faculties by the reason of the introduction of alcohol into their body, not if they have had a glass or two wine with dinner and are driving home later in the evening.
Legal limits in Texas
The blood-alcohol concentration (BAC) limit for drivers 21 and over in Texas is 0.08. In order to convict you of a drunk-driving charge, the State of Texas must show that you were driving while your BAC was at or over that legal limit. To prove it, authorities must take a sample of your blood, breath or urine. Most police agencies rely on a breath test to make their cases, or use it first when making an arrest. But as evidence mounts that breath tests have serious flaws, more and more drivers are able to avoid a DWI conviction by challenging the reliability of their test results in court. The Law Offices of Stephen Nicholas can tell you whether the facts of your case make it a good candidate for a vigorous defense. Most DWI cases are such candidates.
Many Ways Exist to show the fallibility of the Intoxilyzer 5000
The variety of factors that influence the test by the Intoxilyzer 5000 are numerous and include, but are not limited to the following:
- air temperatures for which the device wasn't calibrated
- variations in barometric pressure
- genetic variations in blood chemistry
- differences in individuals' physical fitness or activity levels
- how fast the individual being tested is breathing
- how well the person conducting the test formulates the reference sample,
- the age, quality, and the Supervisor’s testing of the machine and those results and frequency of inaccurate readings or necessary repairs of the machine
- whether the individual being tested was exposed properly explained the procedures and the procedures were followed by the officer administering the test, including his certification to administer such tests, when was he or she was recertified or has taken a refresher course.
Judges have no choice but to allow the defense to present their own DWI/DUI experts to testify on these and other flaws in the tests that could give their clients a false positive. If a judge were to refuse this, it would be a point of error on appeal of the case in the event of a conviction.
Any DWI/DUI case can be challenged. The result for misdemeanor DWI/DUI convictions are the same. Generally, Community Supervision is imposed, in any case without egregious circumstances such as a bad accident, which would really result in a different charge, or something similar to that scenario involving an accident involving only the person’s vehicle, or a near calamity as a result of the person driving without the normal use of his mental or physical faculties.
Other than those extreme circumstances, chances are a person will receive Community Supervision, a fine, both of which may be a little higher after a trial, but with essentially the same result as a plea of guilty or no contest to a charge of DWI/DUI and the $3,000.00 surcharge presently in existence, which is being challenged on Constitutional grounds anyway. It makes as much sense to take your DWI/DUI case to a jury than it is to plead guilty of no contest, for a not guilty finding by a judge or jury, and most cases go to trial by jury, is the only way such charge can be permanently removed from the person’s record.
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Contact The Law Offices of Stephen Nicholas as soon as you are arrested for DWI/DUI for an in depth consultation at no expense to you. This will be an in depth consultation for the purpose of determining the best defense for your case. Remember, the first consultation is free and the only way to properly evaluate your case is by an in depth consultation by an experienced attorney in the field of DWI/DUI. Many firms claim experience, few can show it. My firm can and will for FREE.
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CALL TODAY!, THERE IS NO REASON TO WAIT IF YOU HAVE BEEN CHARGED WITH A DWI/DUI AND REGARDLESS OF WHAT YOU DO OR WHO YOU CALL, REMEMBER, YOU HAVE ONLY 15 DAYS FROM THE DATE OF ARREST TO REQUEST A HEARING ON YOUR LICENSE SUSPENSION OR IT WILL BE SUSPENDED ON THE 40TH DAY FROM THE ARREST.
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