Austin DWI Attorney Blog

Austin DWI Attorney Blog

Information regarding DWIs in and around Austin/Travis County

The List of people that can draw blood from a person accused of DWI is about to get bigger.

Posted in Austin DWI, Austin Police, Blood Test, DPS Troopers, Texas DWI Laws

 

Starting September 1, 2013, the number of individuals that will be authorize to take blood samples from people accused of DWI will increase. The Legislature has amended the Transportation Code Section 7.24.017 to include Emergency Medical Technicians. Up until now, only licensed physicians, qualified nurses, technicians or chemists were allowed to draw blood. Currently, Emergency Medical Technicians are not allowed to draw blood from DWI suspects. 

Now that the law is changing, blood will more likely be taken on the roadside. Also, there are quite a few police officers that are EMTs. This will likely be used as justification for the police officers to start drawing blood again in some jurisdictions. Fortunately, there hasn’t been a big push for that here in Travis County. 

Blood cases are not like regular DWIs. They are more scientific and more complicated than a regular DWI. As such, it is important to retain an attorney that understands the science and procedures that are involved with Blood Draw DWIs. 

NTSB wants 0.05 to be the standard for DWI

Posted in Austin DWI, Blood Test, Breath Test, Intoxilyzer

CNN reported that Washington’s National Transportation Safety Board (NTSB) is recommending that all 50 states should lower the blood alcohol content rate from .08 to .05.  The NTSB is trying to force the states to expand their laws allowing officers to confiscate a driver’s license when arrested for DWI….Something Texas already does.  NTSB is also trying to get ALL states to require ignition locks (IID) on all first-time offenders. 

 

As I have previously stated, requiring IID on ALL drivers takes the subjectivity away from the Judges, and instead places the IID decision making on the legislature.  The Judge, who has full knowledge of the facts, should be the one that make the decision as to whether it is in everyone’s best interest that IID be required.  While nearly all states grapple with shrinking budgets, NTSB is expected to recommend to the National Highway Traffic Safety Administration that it provide financial incentives to states to implement the changes. 

 

Really, this is just another “feel good” approach to fighting DWIs.  The number of folks that test between .05 and .08 is so small, that it will likely have little effect. 

 

However, with the margin of error, measuring smaller and smaller amounts will become more and more unreliable.

Involuntary, warrantless, blood tests may be unconstitutional!

Posted in Austin DWI, Blood Test, Texas DWI Laws

 The Austin American Statesman did a good job with their article on what a new Supreme Court case may mean to DWIs.  

 

Involuntary, warrantless, blood tests may be unconstitutional after the U.S. Supreme Court ruling in MISSOURI v. MCNEELY

 

The U.S. Supreme Court recently held that involuntary blood draws from drunken driving suspects can be unconstitutional. But the court offered little guidance on when they might be allowed, leaving the fate of pending cases in doubt.

 

The court’s ruling said officers can only take blood samples without a warrant in “exigent circumstances,” but did not define the term, and lower courts must now refine the ruling on a case-by-case basis.

 

It will be interesting to see what will happen to all our pending DWI cases in which our client’s blood was drawn without consent or a search warrant. With these cases, blood was taken based on Texas statutes which had previously allowed officers to demand blood without a warrant.  These include accidents in which there was a death or serious injury; when children were in the vehicle; when the person had has two or more drunken driving convictions; or when the suspect has a single previous conviction for intoxication assault, intoxication manslaughter or drunken driving with a child passenger, among others. As you can see, these, for the most part, are felony DWI charges.

 

You can bet we are going to challenge all of these statutory blood draws.  If we can get the blood result suppressed by the Judge, we have moved the case a long way towards getting the result we, and out clients want.  The McNeely case may end up being a very good tool in fighting “blood test” DWIs.

 

MAAD continues to request IID for first time DWI offenders

Posted in Austin DWI, Breath Test, Intoxilyzer, Texas DWI Laws

 

Members of the House Committee on Jurisprudence are meeting to consider ways to address DWIs in Texas, including whether to require ignition interlock systems for first time drunk driving offenders.

 

MAAD is pushing this hard, and has the attitude that it isn’t expensive to have the IID installed and maintained in a vehicle. 

 

However, one probation official estimates that it will cost between $7 and $12 million to monitor those with interlocks. It’s not just as simple as putting them on points out the probation official. 

 

The probation official believes that we should institute a standardized system to determine which offenders would benefit the most from the device.  He believes that is should be installed based on evidence-based practices, after an assessment. 

 

Basically, he is saying, let the Judge decide who needs it, not just a blanket rule for everyone.   Of course, that is the system we have now.

 

 

 

Can Energy Drinks Show Up as Alcohol on the Ignition Interlock Device (IID)?

Posted in Austin DWI, Breath Test, Intoxilyzer

Brian Lutmer, Carol Zurfluh and Christopher Long with the Missouri Department of Health and Senior Services, State Public Health Laboratory, Breath Alcohol Program, and the Saint Louis University Toxicology Laboratory, Toxicology Department conducted a study to answer such a question. They tested 27 energy drinks, and 11 (40.7%) showed up positive for alcohol on the IID. The problem with the IID is that Ethanol can be found in many energy drinks as merely an incidental additive for flavoring or other agent.

You would think the alcohol would show up on a label, but federal law only requires the ethanol content to be reported or labeled if the alcohol content is .5% w/v or greater. During their research, they found that 13 of the 27 drinks tested had ethanol concentrations above .06% w/v and 9 of the 27 had concentrations higher than .096% w/v. At these levels, the IID will show a positive reading for alcohol. Where the problem comes in is that the IID that is commonly used has no way of guarding against positive readings due to residual mouth alcohol.

The study goes on to say that a mandatory observation period prior to testing should help prevent these false positives, however, that is something that is very unrealistic in the IID setting. Most folks just get in their car, blow into the IID and attempt to start the car. All along, not realizing they may be in the first step of a Motion to Revoke their bond or probation. Again, what seems simple rarely is. Hiring a good attorney that realizes what can cause false positives in the IID is imperative.

DWI Conviction and Traveling to Canada

Posted in Austin DWI, Austin Police, Blood Test, Breath Test, Texas DWI Laws

The Canadian government has always been difficult when it comes to allowing folks with DWI conviction on their records to gain entry. The Canadian rule about entry is pretty straightforward. A person will be denied entry into Canada if they have been convicted outside of Canada of an offense that, if convicted in Canada, would constitute an indictable offense under Canadian law.

A foreign conviction is considered indictable if there is an equivalent offense under the Canadian Criminal Code. Unfortunately, Canada usually considers any alcohol related driving offense to be equivalent to their alcohol statute. And to further complicate things, the Canadian Government considers Reckless Driving equivalent to their “Dangerous Operation of Motor Vehicle” statute. So pleading down a DWI to Reckless Driving, while it might be a great result for a particular set of facts, could make a person ineligible to enter into Canada. 

There are two ways a person can become eligible to be admitted into Canada after they have been deemed inadmissible. The first way is Criminal Rehabilitation, and the other is to apply for, and receive, a Temporary Resident Permit. To be considered for Criminal Rehabilitation, a person must wait until five years has lapsed since the completion of all the conditions of their sentence. To obtain a Temporary Resident Permit, a person must show a significant reason to travel to Canada.

If, however, a person has more than one conviction on their record, they must apply for criminal rehabilitation. A person may also be considered rehabilitated if there has been more than ten years since the completion of all the conditions of their sentence, and the person has only one conviction. If a person has more than one conviction, they must be prepared to show that they have been rehabilitated. This is something that can rarely be done without the help of a lawyer.

While pleading guilty to a DWI may not seem to be a big deal to some folks, it can have far reaching consequences. Most folks from Texas don’t think about going to Canada, but you just never know when a job might need you to travel there for business.

APD Proposes Cost-Saving Measures

Posted in Austin Police

The Austin Chronicle alerted us that the Austin Police Department is looking at the possibility of opening its own magistration and jail-booking facility and has even begun talks with City Management. Up until 2000-2001, Austin Police ran their own jail at 7th and IH-35, however, APD now contracts with Travis County for this service.  Every few years, and my guess it is at contact negotiations time, APD sends out a press release stating that they are thinking about opening their own jail. APD states that they will save money by doing this, but by the time they calculate the costs of the facility, jailers, magistrates, medical staff, food service, and transportation to and from court, just to name some of the major expenses, I think it is not too difficult to realize that it is just too cost prohibitive to attempt this.  While it might look good on paper, I think it is just a negotiations ploy. 

Austin Police Department Releases the List of Austin’s Top DWI Bars

Posted in Austin DWI, Austin Police, Texas DWI Laws

images.bimedia.net/documents/Copy+of+Top+Bar+Location+2011.xlsThe Top 20 DWI bars are:

  1. Kung Fu Saloon (23 Arrests)
  2. J Black’s (17 Arrests)
  3. Rain (15 Arrests)
  4. The Ranch (14 Arrests)
  5. Molotov (13 Arrests)
  6. Thirsty Nickel (13 Arrests)
  7. Oilcan Harry’s (12 Arrests)
  8. Sherlock’s Baker St (11 Arrests)
  9. Blind Pig Pub (10 Arrests)
  10. Key Bar (10 Arrests)
  11. Shakespeares (10 Arrests)
  12. The Yellow Rose (10 Arrests)
  13. Kiss & Fly (9 Arrests)
  14. Antones (7 Arrests)
  15. Cedar Street (4 Arrests)
  16. Dizzy Rooster (7 Arrests)
  17. Dogwood (7 Arrests)
  18. Third Base (7 Arrests)
  19. Weirdos (4 Arrests)
  20. 512 Bar (6 Arrests); Barbarella (6 Arrests); Barcelona (6 Arrests); Chuggin Monkey (6 Arrests); Jackalope (6 Arrests); La Preferida (6 Arrests); Lavaca Street Bar (6 Arrests); Parish (6 Arrests) (these bars tied for #20)

It is no coincidence that four of the top five bars are on or near West 6th street. The DWI Task Force Officers often sit right in front of GSD&M on 6th Street, and catch folks speeding towards Mopac.

While APD says that it uses this compiled list to decide where to put its Officers, it really is the chicken and the egg story. The question is, “Do they make more arrests because the officers are on 6th Street, or are there more officers on 6th Street, because that is where the DWIs are?”

The other wildcard in all of this is that most officers only ask “Where have you been drinking?” For all we know, they could have gone to that bar first, and only had one drink, and then moved on to somewhere else. This list is hardly statistically reliable to say the least. It makes for good publicity for APD, but I dare say, it has little value past that.

Provide Blood or Breath and your DWI may turn into a Class A Misdemeanor

Posted in Austin DWI, Blood Test, Breath Test, Texas DWI Laws

A new law, which is being called the “Extreme DWI Law”, took effect on September 1. This new law enhances the punishment for anyone with .15, or higher, alcohol content in their blood or breath, taking a DWI offense from a Class B to a Class A misdemeanor.

This new law carries with it a possible sentence of up to a year in jail and $4,000 in fines, even for first-timers.

This is just another example of the enhancement that can occur when you provide a breath or blood sample. If you don’t give a breath or blood sample, then the .15 enhancement is irrelevant.

Jail for First Time DWI Doesn’t Prevent A Subsequent DWI

Posted in Austin DWI, Texas DWI Laws

USA Today posted a good article about the fact that punishment for drunken driving among the states is inconsistent at best. Get arrested in Alaska, Tennessee or Georgia and you will face mandatory jail time for your first offense. These three states require mandatory sentences ranging from one to three days. Get arrested in California, Texas, Connecticut or Indiana and you won’t face mandatory jail time for your first offense.

In some states, like Wisconsin, first-offense DWIs aren’t even considered a criminal matter. It’s a civil infraction that results in a ticket. So far, there are no punishment guidelines for the states. It is up to each State’s Legislature to figure out what the punishment range should be.

The article states that National research suggests jailing first-time offenders "has no impact" on whether they will do it again.

Sentencing guidelines drawn up in 2006 by federal highway officials and the National Institute on Alcohol Abuse and Alcoholism concur. "The available evidence suggests that as a specific deterrent, jail terms are extremely costly and no more effective in reducing (drunken driving) recidivism," the guidelines note.