Fort Bend DWI Lawyer
ADMINISTRATIVE LICENSE REVOCATION (ALR) HEARINGS
You have two cases against you if you have been arrested for DWI. You likely know about the criminal case charging you with the crime of DWI, but you also have a civil case against your driver’s license. You have 15 days from the date of your arrest to request a hearing to try and save your license. If you hire Ross before then, he will request the hearing for you. If you don’t, he can still help you so that you don’t lose that valuable driving privilege.
There is no constitutional right to drive. When you first got your license, you signed it, effectuating a contract between you and the State of Texas. One of the rules in the statutes says that if you are ever pulled over for DWI then you must provide a breath sample. It is called implied consent; however, in Texas, there is a clash between the Texas Transportation Code and the Texas Property Code. As a result, the State generally cannot force you to take a breath or blood test. We will go into more detail on implied consent below. You can and should refuse to take a breath or blood test.
If you refused the breath test, then the State is going to attempt to suspend your license for 180 days on your first DWI arrest. If you have another prior DWI where you refused the breath test and it is within 10 years of your first refusal, then the State will attempt a license suspension of two years. If that prior DWI was within 10 years but you took the breath test and failed, they will attempt a license suspension of one year. If you are a minor (under 21), then the suspension time will only be 90 days on the first refusal.
If you took the breath test and failed (0.08 or above), then the State will attempt a license suspension of 90 days on the First DWI and one year if you have any prior convictions within 10 years. Again, if you are a minor, then the suspension is only 90 days. Under the Fourth Amendment, though, you still have the right to a hearing on whether your license can be suspended. The hearing is called an Administrative License Revocation hearing (ALR). It is a civil hearing with an Administrative Law Judge at the State Office of Administrative Hearings. Once we request the hearing within the 15 day window after your arrest, then the hearing will be randomly scheduled around 5-8 months later, depending on what county the case is in. You do not have to attend the hearing, and not doing so is better if the officer decides to show up and then sees and remembers you. If s/he does appear, Ross Torres will get a chance at cross-examination under oath and get a transcript of her/his testimony to use in your criminal case. Many times the officer’s testimony is discredited at the ALR, resulting in a win for the DWI case. For that reason, many officers refuse to show up. If they fail to appear and they were properly subpoenaed, then you win and keep your license. At the ALR, we are either going to get valuable testimony for your criminal case or you will get to keep your license. Even if you lose your license, most times you are entitled to an Occupational Driver’s License, which we can also help you acquire. There are some complications regarding priors and commercial driver’s licenses, but those can be discussed in person if the need arises.
BACK TO YOUR DWI CASE
First, we need to see what court you landed in. The particular court tells us a lot about how the judge operates, who the prosecutors are and what chance this case has of getting dismissed. Some courts have unreasonable prosecutors who refuse dismissal and we must go to trial.
On a side note, some lawyers will tell their clients that everything will be okay or dismissed at the initial consultation. That is simply malpractice. At this point in the case, they do not know enough to make such a statement and are just giving you a false sense of security. I am honest with you from the very beginning. We will need these things:
- Offense Report: I will get the Offense Report at the first court date and sit down with you and show you the contents. There are many ways around a DWI conviction. Why were you pulled over? Is that reason consistent with the current case law? Next, who is the officer? Is he DPS or a DWI Task Force Officer or is he an inexperienced patrolman who is going to crumble on the stand? What Standard Field Sobriety Tests did you perform? Did you have any prior mental or physical injuries?
- Video: I will request the video of the arrest. It is up to the officer to turn in the video tape, if there is one. If there is not a video, I will subpoena his patrol vehicle’s maintenance records and figure out why there was not. If there is a video, I will watch it and ask that you do as well. Then, together, we can discuss the pros and cons of contesting what is on the video. Are we able to suppress the video? Usually not. But we can suppress portions if they violate the law.
We will also secure the station video and see how you looked when you were booked at the station. Again, we will discuss the pros and cons of using this video and weigh out our options.
- Breath Test Score: Only about 5% of attorneys are capable of trying a breath test case with a chance of winning. Ross Torres is trial tested and proven. And since he’s also an honest lawyer, you must know that he will need a good video to beat a high breath test. If you had a low breath test, Ross Torres can usually educate the jury on all of the problems with the breathalyzer machine and the acceptable ranges of error in order to explain the reading. The Intoxilyzer 500EN is outdated and in need of replacement. Many states have already abandoned the machine and moved on the better or newer models.
- Blood Test Results: Anyone can win a trial with the blood suppressed. You need an attorney who can win with the blood coming in. The science is based on gas chromatography, mass spectrometry gas chromatography or enzymatic assay testing, and is highly scientific. Only a skilled and knowledgeable DWI trial lawyer will not only challenge the four corners of the warrant and the chain of custody with the blood, but will also know how the science works and where problems arise in that process.
HOW DO YOU WIN A DWI TRIAL?
Few lawyers have learned to win DWI trials on a regular basis. DWI is one of the hardest cases to try because it is an opinion crime. The definition of intoxication is not having the normal use of your mental or physical faculties, or having a blood alcohol concentration of 0.08 or higher.
A skilled DWI trial attorney will systematically weave a thread of doubt throughout the entire case, demonstrating to the jury everything that occurred leading up to, during and after the arrest. The police and district attorney only focus on the negative aspects of your police interaction. Ross gives the jury ALL the information they need to follow the law. The State must prove you guilty beyond a reasonable doubt and it is their job to do so. Our job is to reveal the truth to the jury, even if it prevents the district attorney from completing their mission. What separates Ross from the other DWI trial lawyers is that he cares about his clients: He gets to know who you are so that he can present the real you to the jury for their consideration.
If the State has a breath or blood test, your case might become more difficult, but a fair jury will still follow the law and find you not guilty. The State must prove that your BAC is accurate and reliable. Ross Torres has rarely met a district attorney with enough knowledge and understanding of the Intoxilyzer machine and infrared spectroscopy to be able to convince a jury upon the reliability of the results. Blood is more difficult to defend than breath and, again, few DWI defense attorneys understand the science, and even fewer district attorneys understand blood. It is absolutely crucial that you hire a blood or breath DWI trial attorney such as Ross Torres.
OTHER DWI ISSUES
DRUG RECOGNITION EVALUATIONS (DRE)
A person may be intoxicated by a variety of substances including: alcohol, prescription medication, illegal drugs, over the counter medication or any combination thereof. So, if you look intoxicated and blow a 0.000, you are still not going home. Blowing a 0.000 is the first step of the 14-step Drug Recognition Evaluation where the officer tries to allege that you are intoxicated by something other than alcohol. You are going to need a skilled attorney who is familiar and comfortable in all aspects of a DRE.
FELONY DWI/THIRD OFFENSE
The third felony DWI is no different than preparing and attacking a first DWI. But the biggest difference occurs at jury trial. The first thing the jury hears is that you already have two DWIs. It is a tough—but not impossible—stain to overcome. Much more is at risk in felony court, but if your case is good, there is no reason you should be prevented from professing your innocence even though you admitted guilt twice before.
MANDATORY BLOOD DRAWS
The newest litigation surrounds blood testing, mandatory blood draws, forced blood draws and “no refusal” weekends. I agree that the previous are a violation of your personal rights; however, the Texas Supreme Court has allowed all four of these DWI deterrents.
The Texas Supreme Court allows police officers to draw blood without your consent. On “no refusal” weekends, if an officer has probable cause to believe you are intoxicated and you are hiding evidence, then a judge can author a search warrant for your blood. They will strap you down and forcefully take your blood. Also, there are three instances (after September 1, 2009) where the police do not need a warrant and can take your blood under statute:
- If, as a result of your accident, someone “has suffered bodily injury and has been transported to a hospital or other medical facility for medical treatment.”
- If you have a child under the age of 15 in the car with you.
- If you have one prior DWI with a child or intoxication assault conviction, if the officer reasonably believes that you do, or if you are being charged with a felony DWI due to two prior DWI convictions.
Let Ross Torres fight the warrant for you.
The penalties for DWI are as follows:
- First offense: A fine not to exceed $2,000 and/or the possibility of serving jail time from three days to 180 days, and a driver's license suspension of 90 to 365 days. (Class B Misdemeanor)
- Second offense: Fine increases to no more than $4,000 and/or jail from 30 days to one year, and a possible driver's license suspension ranging from 180 days to two years. (Class A Misdemeanor)
- Third offense: A fine up to $10,000 and/or two to 10 years of imprisonment, and suspension of your driver's license ranging from 180 days up to two years. (3rd Degree Felony)
- DWI with an open alcohol container (first offense): In addition to the penalty referenced above, you face a minimum six days in jail and a fine of no more than $2,000. (Class B Misdemeanor)
- DWI with an accident where serious bodily injury occurred as a proximate cause of the intoxication (Intoxication Assault): If convicted you may serve a minimum of two years up to a maximum of 10 years in jail. Additionally, you may be fined up to $10,000. (Third Degree Felony)
- DWI where a death has occurred as a proximate cause of the intoxication (Intoxication Manslaughter): If convicted you may pay a maximum fine of $10,000 and/or be imprisoned from two to 20 years (Intoxication Manslaughter or Manslaughter with use of Deadly Weapon are both 2nd degree felonies.) Note: the district attorney can stack charges against you for each death, for example, two deaths can mean four to 40 years.
- A prior DWI conviction and a present drag racing charge: Drag racing is a class B misdemeanor; however, it becomes a class A misdemeanor if the person had a prior drag racing conviction, a DWI conviction or had an open alcohol container while they were driving.
- DWI with a passenger under the age of 15: State jail felony. Punishment for a non-enhanced state jail felony is confinement in a state jail for any term of not more than two years or less than 180 days and a fine not to exceed $10,000.
In the misdemeanor classifications you may be eligible for probation, but there is no guarantee that you will receive a probated jail sentence or fine. If convicted of intoxication assault and granted probation, a minimum of 30 days in jail is mandatory as a condition of probation. Probation of intoxication manslaughter requires a minimum of 120 days in jail as a condition of your probation. If you are convicted of intoxication assault or intoxication manslaughter, though, and the court or jury finds that you committed the offense with a deadly weapon, you may be ineligible for probation.
Q: WHAT ARE THE STANDARD FIELD SOBRIETY TESTS (SFSTs)?
A: The National Highway Traffic Safety Administration (NHTSA) developed Standard Field Sobriety Testing (SFST) as a series of psychophysical tests administered by law enforcement designed to determine if an individual is driving while intoxicated (DWI) or driving under the influence (DUI). More specifically, Standard Field Sobriety Testing (SFST) is used to determine if an individual is under the influence of alcohol.
The Standard Field Sobriety Test (SFST) consists of a battery of three tests which are to be administered and evaluated in a standardized manner in order to obtain validated indicators of impairment and to establish probable cause for arrest. The three tests administered are: The Horizontal Gaze Nystagmus (HGN), the Walk-and-Turn and the One-Leg Stand.
1. HORIZONTAL GAZE NYSTAGMUS (HGN) TESTING
Horizontal gaze nystagmus is an involuntary jerking movement of the eyeball that occurs naturally as an individual's eye gazes to the side. Normally, nystagmus (jerking movement) occurs when the eyes are rotated at high peripheral angles. When an individual is impaired by the effects of alcohol, this jerking is exaggerated and can occur at lesser angles. Additionally, an individual driving while intoxicated or driving under the influence will have greater difficulty tracking a moving object. As the test is administered, law enforcement personnel look for three clues of intoxication in each eye. The clues are:
- Lack of Smooth Pursuit: If the eye cannot follow a moving object smoothly.
- Distinct and Sustained at Maximum Deviation: If jerking is distinctly noticeable when the eye is looking as far to the side as it can (maximum deviation).
- Onset of Nystagmus Prior to 45 Degrees: If the jerking begins when the eye is within 45 degrees of center.
The officer tests each eye. If, between both eyes, four or more of the indicators are observed, then the police determine you are intoxicated.
The problems with the HGN are: (1) this does not measure an individual’s mental faculties; (2) this does not measure an individual’s physical faculties; (3) some people have natural nystagmus; (4) the police are looking for millimeter ticks of your eye, and they don’t even know what is natural for you; (5) there are plenty of ways to get a false nystagmus, i.e. if you are facing their headlights or rapidly moving traffic; (6) each clue has very specific time requirements to properly administer this test: usually 14 passes, 82 seconds in all, and if an officer violates this, then the results are compromised; (7) they don’t ever have a camera close enough to your eye so that a jury can actually see the ticking themselves, so the police always say you failed; (8) head injuries may affect the results. Bottom line: This test is utter nonsense and you should hire an attorney who understands all the nuances and problem areas of the HGN test.
DIVIDED ATTENTION TESTING
The Walk-and-Turn test and the One-Leg Stand test are both "divided attention" which means you must listen to the instructions very carefully. These are highly complicated, you are given no chance to practice and it is quite easy to fail even if you are sober.
2. WALK-AND-TURN TEST
The Walk-and-Turn test (WAT) has 15 different instructions: Place your feet (1) on the line (2) in a heel to toe manner (3) with your left foot in front of your right, with (4) your arms at your sides. The officer should then demonstrate the position you must stand it while he gives you all the other instructions. (5) Do not begin before you are instructed to. When instructed to begin, (6) take nine heel-to-toe steps (7) on the line. Then on your ninth step (8) take a series of small steps to turn around. Then (9) return on the line taking (10) nine heel-to-toe steps. (11) Count each step out loud. (12) Look at your feet while walking. (13) Do not raise your arms from your side. (14) Do not stop once you begin. (15) Say that you understand. This test has eight possible clues and it only takes two minor errors for officers to think you are impaired. The clues are:
- Can’t Balance During Instructions: If the individual cannot maintain balance while in the instruction phase.
- Starts Too Soon: If the individual begins before instructions are finished.
- Stops While Walking: If the individual stops at any time during the test.
- Misses Heel to Toe: If the individual does not touch heel-to-toe by half an inch.
- Raises Arms: If the individual raises arms more than six inches from the body for balance.
- Improper Turn: If the individual doesn’t use a series of small steps or fails to turn to the left direction.
- Wrong Number of Steps: If the individual takes an incorrect number of steps.
- Steps Off The Line: if the individual steps on the imaginary or designated straight line.
Officers may tell you the instructions more than once if you ask for them. They will not let you practice and only require two clues to fail the test in their eyes.
The problems with the WAT are: (1) you don’t get to practice; (2) if you are 50 pounds or more overweight, this may affect the results; (3) back, leg and neck injuries can affect the results; (4) it is the individual’s job to disclose any injuries – the officer will not ask; (5) the officer must determine whether any clues were subject to nervousness, inexperience or language barriers; (6) you don’t get credit for all the things you do correctly on the test; and (7) many times the test is administered on the side of a busy road. Bottom line: This test is so easy to fail, you should never even attempt it.
3. ONE-LEG STAND TEST
The One-Leg Stand Test has 13 different instructions: (1) Stand straight. (2) Place your feet together. (3) Hold your arms at your side. (4) Do not begin until instructed to. (5) Say that you understand. When instructed, (6) raise either leg, (7) approximately six inches from the ground, (8) keeping the raised foot parallel to the ground. (9) Keep both legs straight and (10) look at the elevated foot. (11) Count out loud in the following manner: (12) one thousand one, one thousand two, one thousand three and so on (13) until told to stop. The officer should use a timer and require the individual to perform this test for 30 seconds. This test has four possible clues and it only takes two minor errors for officers to think you are impaired. The clues are:
- Sways: If the individual sways while balancing.
- Raises Arms: If the individual raises arms more than six inches from their body.
- Hops: If the individual hops to maintain balance.
- Drops Foot: If the individual puts a foot down.
Again, you are only given the instructions one time, unless you ask for them again. And you are not allowed to practice.
The problems with this test are: (1) you don’t get to practice; (2) if you are 50 pounds or more overweight, this may affect the results; (3) back, leg and neck injuries can affect the results; (4) it is the individual’s job to disclose any injuries – the officer will not ask; (5) the officer must determine whether any clues were subject to nervousness, inexperience or language barriers; (6) you don’t get credit for all the things you do correctly on the test; (7) many times the test is administered on the side of a busy road; and (8) the sway clue is a subjective determination and may be different for every officer’s belief of what “sway” is. Bottom line: This test is so easy to fail, you should never even attempt it.