Monthly Archives - October 2013

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.