Yearly Archives - 2013

On Saturday, October 5, a Houston police officer and a motorist were slightly injured after they were struck by an allegedly intoxicated driver.

KHOU Houston reports that the motorist got a flat tire along Tidwell Street near Wayside Road around 4 a.m. The officer stopped to assist and turned on his lights to alert other drivers that the two vehicles were there on the side of the road.

Shortly after the officer pulled over, a pickup truck rear-ended the squad car, which in turn sent the squad car into the vehicle with the flat tire. All three vehicles involved sustained minor damage, it seems.

The officer and the driver of the car with the flat tire were both taken to nearby hospitals to be treated for minor injuries. The driver of the pickup was not injured, but he was arrested on suspicion of DWI.

Stories like this illustrate why law enforcement agencies take DWI so seriously. The situation grows more dire when it’s a second or third offense, rather than a first, with the potential punishment growing more severe with every previous conviction.

If you are ever accused of driving while intoxicated, especially if it is not for the first time, it is absolutely vital that you take proactive steps to arrange for a vigorous defense. If you do not take charge of your situation, perhaps with the assistance of an experience Houston criminal defense counselor, you are very much at risk for losing the best opportunity you have to make your case.

A 16-year-old Texas boy has been charged with four counts of intoxication manslaughter after he was involved in a car accident back in June that left four people dead and nine others injured.

At a hearing this month, he was allowed to stay with his parents, rather than in a juvenile facility, until his trial begins. He must wear an ankle monitoring bracelet, however.

According to KHOU Houston, the boy was driving through Tarrant County when he struck a church vehicle that had stopped to help a woman who had gotten a flat tire. The resulting collision killed a youth pastor, a mother and daughter who attended the pastor’s church and the 24-year-old woman who had gotten the flat tire. Nine other people who were also on the scene were badly hurt.

Authorities say the boy was driving between 68 and 70 mph in a 40 mph zone and had a BAC of 0.24 at the time of the accident. In Texas, the legal limit is 0.08.

If the boy is convicted on all counts, he could spend as many as 20 years in prison.

In a situation like this, the objective of the boy’s defense team is likely not to prove him innocent (presuming he did, of course, cause the deadly collision, and we do not yet know that he did). Rather, the defense counsel’s job will likely entail carefully reviewing the facts and circumstances of this incident, making sure the charges fit what actually happened, and then working to ensure a just and fair sentence (again, assuming that one is merited). This way, the defense counsel will be carrying out our justice system’s belief that everyone deserves a zealous advocate and the full and fair benefit of one’s day in court.

If you are ever accused of drunk driving, you may want to speak with an attorney to ensure that your rights are respected. You are free to contact us at any time.

Alice Walton, the Walmart heiress estimated to be worth about 27 billion dollars, was arrested for driving while intoxicated back in 2011.  In September of this year, she made the news again when it turns out the DWI charge won’t be formally filed.

She was arrested for a DWI in Texas on her 62nd birthday after being pulled over for speeding, allegedly going 71 mph in a construction zone with a speed limit of 55 mph.  She was determined to be intoxicated after a field sobriety test, but she refused to take a breath test.  She wound up getting booked, and was released on $1000 bail.  In the two years that followed, what delayed her prosecution? Why have the charges now been dropped?

Here are some things to consider about her case.

Unsurprisingly, many people are suspicious that she never had formal charges filed against her by prosecutors because of her status and wealth.  Without a doubt, she had a strong legal defense team working for her and negotiating with prosecutors behind the scenes.  Obtaining the best legal representation is important for anyone, regardless of how wealthy or well-known they are.

The case shows that it can take time to formally file charges for a DWI arrest; there’s a two-year window in which to do so, where the police officers need to fully investigate the case and present their evidence to prosecutors, and prosecutors need to do their own review and investigative work to determine what charges to formally file.  Your defense attorney would be on the lookout for improper evidence gathering and whether charges are being filed with insufficient evidence.

The reason prosecutors gave for dropping the charges was the absence of the key witness: the state trooper who pulled over Walton.  He’s currently on paid leave, suspended since February for misconduct allegedly uncovered during an internal investigation.  He would’ve needed to provide testimony about the field sobriety test, which was the basis for Walton’s arrest.  Because there was no blood or breath test administered, there was no way of knowing what her blood-alcohol content actually was that night; the case would have strongly depended on witness testimony.  One would also have to raise questions about how the field sobriety test was conducted by the trooper and what it actually revealed about Walton’s driving.

When an individual suspected of DWI refuses to take a breath test or agree to a blood sample, law enforcement may try to obtain a warrant in order to collect a blood sample.  Why wasn’t a warrant obtained in this case? It may be because the DWI in this case wasn’t a felony offense involving damage to property, injury, or death.  Police will also run a background check to look for previous DWIs, and in Walton’s case nothing turned up, even though in 1998 in Arkansas she was indeed convicted of a DWI.

The extent to which Walton’s wealth and connections played a role in this recent case isn’t known for sure, and wouldn’t be relevant to the vast majority of people who are pulled over for a DWI.  However, what it does show is the uniqueness and complexity of each DWI case; other cases also crumble due to lack of witness testimony or other evidence, or the ways in which they’re investigated.  No matter what circumstances surround your DWI case, you’ll always need the help of a good lawyer to obtain the best possible outcome for you.

Dina Lohan, the mother of troubled actress and singer Lindsay Lohan, pleaded not guilty to DWI on Sept. 24.

We are not writing about this story because we care about its tabloid elements. Rather, we think it is worth writing a post about because it contains some lessons that would be valuable to our Houston audience.

Lohan, 50, was arrested in New York on Sept. 12 after she was allegedly pulled over while driving 77 mph in a 55 mph zone. She was supposedly given a blood-alcohol content test that showed her BAC to be 0.20. In New York, Texas and all of the other 48 states, the legal BAC to drive is 0.08

Lohan will next appear in court on Oct. 23.

As you may be aware, Lindsay Lohan has struggled with substance abuse herself, having been admitted to rehabilitation programs six times. She has been candid in interviews about how both of her parents have also had their own troubles with alcohol and drugs; her estranged father, Michael, has also graduated from rehabilitation program before relapsing.

What we see when we look at this is a family that is, for some reason and in some way, predisposed to have difficulty creating healthy relationships with alcohol and other substances. This is not an excuse for any kind of illegal behavior, of course, but it might be at least something of an explanation. In our society, some people are not getting the help they need to overcome problematic relationships with dangerous substances.

If you are ever accused of driving while intoxicated, please do not react to these charges blithely. It is very important that you approach them with seriousness and gravity

A 44-year-old Texas woman was recently sentenced to life in prison after her sixth conviction for driving while intoxicated.

Yes, you read that correctly — life in prison.

The length and severity of the woman’s prison sentence has reignited discussion in our state about which crimes we punish most harshly and why. No one is saying it is okay to drive drunk; rather, some have questioned whether life in prison is an appropriate punishment for a nonviolent crime. Although endangering the health and safety of other people is not okay, that this woman has been sentenced to life in prison is stunning. She did not actually hurt anyone, and there have certainly been cases in which an individual did hurt someone and wound up spending less time in prison than this woman.

The San Marcos woman was arrested in July 2012. A Kyle police officer allegedly saw her driving erratically down Interstate 35. When he pulled her over, he found that she had an open container of beer in her car; subsequently, she failed field sobriety tests and a blood-alcohol content test.

The woman’s first DWI came in 1996. She has served prison time for her previous DWI offenses.

When you consider that five previous DWI convictions were not enough to get this woman to change her behavior, you can see that she has a severe problem and is not getting the help she needs. It is truly unfortunate any time a member of our society falls through the cracks like this.

As a criminal defense attorney, I specialize in representing clients who have been charged with DWI. You are welcome to contact me today to learn more about representation.

When police arrest you over suspicion of any crime, including DWI, there are certain protocols they’re required to follow; their behavior is constrained by law.  And while many arrests take place without improper conduct from police, there are unfortunately times when police officers use excessive force against an individual they’re arresting.

Recently, a man in Carrollton, Texas won a suit against an officer who had used excessive force against him during a DWI arrest, in a jail intake facility.  According to a piece from Fox-4 Dallas Fort Worth, the man (whose DWI charges wound up getting dropped) suffered a concussion and some other minor injuries as a result of getting pushed violently against a wall.

When people get arrested for DWI, they may be especially vulnerable to acts of excessive force from the police.  If they’re truly intoxicated, for instance, they may tend to be more argumentative with the cops, stagger into them accidentally, and in general move more slowly.  Police could interpret these actions as resistance to arrest or general uncooperativeness.  Even when an individual isn’t intoxicated, they might still be vulnerable; if they question the reason they’re getting pulled over or show even the slightest sign of not being fully cooperative (according to police interpretation), they might also be subjected to excessive force.

How does one determine whether the police behaved reasonably versus used excessive force? Different factors to evaluate include the following:

The suspect’s behavior.  What were they allegedly doing that seemed to call for a more severe use of force? Were they really being uncooperative, resisting arrest, or posing a threat to police officers?

The extent of the injuries.

The actions permitted a police officer in a given jurisdiction.

In these cases, it’s also important to go over evidence from witnesses and from any camera footage.

The general conduct of police during a DWI arrest could play an important role in how you defend yourself against the charge.  Every aspect of police behavior, from what they said and did to you during an arrest to how they gathered evidence, needs to be examined.  Beyond that, you should know that no matter what you’re arrested for, you deserve to be treated fairly and humanely.

Austin police ended their “No Refusal” weekend crackdown at 5am Tuesday morning. During this event 106 individuals were arrested for driving while intoxicated. During the initiative, officers were allowed a warrant to take a suspect’s blood if they refused a breathalyzer test. Out of the 106 arrests, 60% of suspects refused the breath test and were subsequently forced to have blood drawn for blood alcohol content analysis.

Because of the implemented “No Refusal” weekends in Texas, it is important to understand your rights and the severity of a possible DWI conviction. During normal DWI stops, you can refuse a breathalyzer test, it is your right. If an officer feels you are intoxicated, he or she must take you to a separate locale and await a warrant to have your blood drawn in order to determine your BAC. During a “No Refusal” weekend such as Labor Day, an officer can simply order you take a blood test. Your rights essentially have been condensed, opening you up to possible steep charges which can result in damaging penalties, fines, and\or jail time.

Unfortunately, the popularity among law enforcement of these types of initiatives does not allow for much chance of exoneration. Because the warrant is easily obtain and because of the assumption you may have been drinking on a holiday weekend, a judge and jury may have a preconceived notion of your guilt.

Though these cases are harder to defend in court, it is important that if you have been arrested as a result of a “No Refusal” holiday initiative, to contact an attorney who is intimately familiar with Texas DWI laws and your rights. Remember that even if you have been charged with a DWI as a result of a “No Refusal” initiative, there is still hope. A knowledgeable attorney can present evidence and circumstances that can lessen your charges and get you a fair trial. I invite you to contact the attorney’s at the Martinez Law Firm; we will fight hard to ensure you receive the best possible outcome in your DWI case.

The Texas Legislature recently amended the Transportation Code to allow blood samples to be taken by Emergency Medical Technicians (EMT). The new rules governing blood draws during a DWI stop will take effect as of September 1, 2013. What could this change mean to those charged with drunk driving?

Old Law vs. New Law

Previously, Texas law only authorized physicians, nurses, specifically trained technicians or chemists to withdraw blood from a suspect in a DWI case. Getting the authorized person to the alleged drunk driver took some amount of time. The new law allows EMTs to perform this task, paving the way for more roadside blood draws.

Many police officers are also trained as EMTs. Additionally, if an ambulance is called to the scene of an accident, an EMT would be present to perform the blood draw.

Conflict at the Federal Level

A recent ruling by the U.S. Supreme Court (Missouri v. McNeely) did not explicitly state that blood draws from DWI suspects were illegal, but left a gray area where the procedure could be unconstitutional. The court stated that police officers could take a blood sample without first obtaining a warrant if “exigent circumstances” were present. However, the justices offered no definition regarding what constitutes an “exigent circumstance,” leaving that decision to lower courts.

Cases involving blood samples are more complicated than a traditional DWI defense. The scientific process involved can add to the confidence the jury gives to the prosecution’s case. Thus, it’s imperative that individuals involved in an alleged DWI seek the help of an attorney who understands the science and procedures involved, as well as the constitutionality of the charge.

News stories regularly emerge featuring people who get charged with Driving While Intoxicated (DWI) when they’re in a vehicle that isn’t moving.  Sometimes they catch the notice of police because they happen to fall asleep in a car that’s parked improperly.  For instance, in NY state a man was recently arrested after being found asleep in his car, parked with the engine still running, in a drive-thru lane at a McDonald’s; the police woke him up, tested him for alcohol intoxication, and then arrested him.

But even if you don’t park your car in a way that obstructs traffic, you may still get arrested for DWI if the police discover you.  Your engine may be off, you may be trying to sleep off the effects of the alcohol, but nevertheless you’ll be in danger of a DWI charge.

How can that be? The common perception of DWI is that it applies to people who are actually operating the vehicle as they’re intoxicated, putting themselves and others in danger on the road.  If the vehicle isn’t even moving, and the car is properly parked along the curb or in a parking lot, what’s the danger? Why might they get arrested?

Under the law in Texas, and in other states, the definition of ‘operating a vehicle’ encompasses a broader range of actions than simply driving.  If the car is securely parked, but the engine is still running, that may constitute operating a vehicle.  Likewise, if the headlights are on or the radio is playing, that could be construed as a vehicle getting put to use by a person who’s intoxicated.

You also have to take into account what any witnesses might say.  For instance, if a driver pulls into a parking lot, and weaves around and drives unstably under the influence, but then manages to park successfully and turn off the car, witnesses may still call the police on them. And even if the driver never intended to go any further, but to instead stop and sleep off the alcohol first, they could still get charged; they don’t need to be caught by the police immediately in the act of driving or only after having caused damage or injury.

So keep this information in mind.  Even if you intend to be responsible, and to only slip into your car to rest for a while, you could still be in danger of a DWI charge. If you do find yourself facing such a situation, don’t hesitate to contact an attorney who can advocate for you in court and decrease the chances that you’ll get fined, jailed, or experience a loss of your driver’s license.

While drunk driving has serious consequences for anyone, those with a CDL license may find that the repercussions are even more serious. If you are a commercial driver and are charged with DWI, whether or not you were driving your commercial vehicle at the time of your arrest you can still lose your CDL license.

How the law works is that if you are driving a commercial vehicle as a CDL license holder and are stopped, you cannot have a blood alcohol concentration (BAC) over a 0.04. For non-commercial drivers the blood alcohol concentration limit is 0.08 so you’re already at a disadvantage. The difference is that even if you are not driving a commercial vehicle during the time of your arrest and have a BAC of 0.08, you may not only lose your regular driver’s license but you may lose your CDL license as well.

This can affect your livelihood since you can no longer drive – residentially and commercially. If you are a commercial driver, not being able to perform your work duties most likely means losing your job.

The first thing to do if you are charged with a DWI is to obtain legal representation. If you are charged with drunk driving and hold a CDL license, it is even more imperative that you do so as soon as possible. Without the professional help you need you are putting your way of life and job at risk.

Along with penalties and fines, you can’t afford to lose your income at the same time which is why it is important to ensure that you have someone that can build a solid defense in order to help you when it’s time to face the charges.