Austin DWI Attorney Blog : Austin DWI Lawyer & Attorney : Law Office of Ken Gibson : Texas DUI Defense

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.

 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.

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.

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.

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.

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.

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.

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.

In this session, like in previous one, some state legislators targeted drunk drivers but most of those proposals, seem to be going nowhere. Here are some of the bills and their status three weeks before the Legislature adjourns. .

Bill Goal Status

• SB 231 To revoke driving privileges of anyone with two convictions. In committee

• HB 99 Third-degree felony for anyone with a previous conviction. House calendar

• HB 101 A hotline to report suspected cases of impaired driving. In committee

• HB 189 Mandating ignition interlock for any DWI conviction. Attached to other bill

• HB 237 To mark driver’s license of anyone with a prior conviction. In committee

• HB 3477 Ten-year driver’s license suspension after five convictions. To full House

Fortunately, the Legislature seems distracted with cutting education funding, cutting back who can vote, and making sure the police don't give immigrants any protection from deportation even when they are witnesses to a crime, to care much about DWIs this session.

San Antonio Express News ran a report last week of a Tarrant County DWI probation program called Felony Alcohol Intervention Project. It is designed for offenders with three or more DWIs.  This program these repeat offenders to accept a “plea bargain for a seven-year prison sentence that is probated to four years.  The goal of the program is to reduce the number of injuries and deaths from alcohol related accidents. Currently, there are 175 probationers with 10 graduates.

 FAIP include the following requirements:

-        10 days jail

-        work 40 hours a week

-        Driver’s license suspense for 6 months to a year

-        random urinalysis

-        counseling and alcohol treatment; including daily meeting for the first 90 days

-        ankle monitor that detects alcohol for the first 90 days

-        attend court weekly for judicial review

-        meet with their probation officer once a week

-        community service at homeless shelters

While this may be good resolution for some folks, it is clearly not a one size fits all solution.  Some case just need fighting, and not just a quick probation outcome.  If this type of programs comes to Austin, we will sure look at on a client by client bases.  Pleading guilty to a felony DWI is always an avenue of last resort.  

The Texas Tribune reported this week that state lawmakers are considering eliminating the Driver Responsibility Program that was created in 2003 “to generate money and discourage unsafe driving.” The program tacks on a surcharge to drivers who get ticketed for various moving violations like driving while intoxicated, driving without insurance and driving without a license. Since inception, “DPS has been unable to collect more than $1 billion in fines they’ve issued” and have clogged Texas courtrooms with people who have failed to pay these fines. Rep. Lon Burman “argued that the surcharge program is unconstitutional because it puts drivers in double jeopardy, punishing them twice for the same offense.”

In hopes to collect on the $1 billion of unpaid fines, DPS has initiated an amnesty program for drivers “whose licenses have been suspended are eligible if they had a surcharge assessed between Sept. 30, 2004 and Dec. 31, 2008, and were delinquent on payments.” The amnesty program runs through April 17.

The Dallas Morning News also had a similar report which added that almost 60 percent of assessed surcharges have not been collected. It is estimated that the state receives $86 million a year in revenue from drivers who are paying the surcharges. And because the Texas Driver Responsibility Program is a large revenue source for the state, Rep. Berman has suggested a tax increase on cigarettes to make up for the lost revenue.   

The Austin Police Department has released its annual compilation of  bars, clubs and restaurants that are most frequently named by motorists who are arrested for DWI.  Police use the information when deciding what areas of Austin to target their enforcement.

Here’s the bar name, the address and the number of motorists who reported having their last drink at the locations for 2009:

J. Blacks, 710 W. Sixth Street - 27 DWI arrests

The Ranch, 708 W. Sixth Street - 22 DWI arrests

Rain, 217 W. Fourth Street - 17 DWI arrests

Maggie Mae's, 323 E. Sixth Street - 16 DWI arrests

Blind Pig, 317 E. Sixth Street - 16 DWI arrests

Oilcan Harry's, 211 W. Fourth Street - 15 DWI arrests

Fado, 214 W. Fourth Street - 15 DWI arrests

Pure, 419 E. Sixth Street - 13 DWI arrests

Cedar Street, 208 W. Fourth Street - 13 DWI arrests

Union Park, 612 W. Sixth Street - 12 DWI arrests

Fuel Nightclub, 607 Trinity Street - 12 DWI arrests

Lavaca Street Bar, 405 Lavaca Street - 12 DWI arrests

Key Bar, 617 W. Sixth Street - 12 DWI arrests

Jackalope, 404 E. Sixth Street - 12 DWI arrests

Sherlock's, 9012 Research Boulevard - 11 DWI arrests

Shakespeare's, 314 E. Sixth Street - 11 DWI arrests

Antones, 213 W. Fifth Street - 11 DWI arrests

Gingerman, 304 W. Fourth St., 10 DWI arrests

Lucky Lounge, 209 W. Fifth Street - 10 DWI arrests

Dizzy Rooster, 306 E. Sixth Street - 10 DWI arrests

The Yellow Rose, 6528 N. Lamar Boulevard - 10 DWI arrests

Charlie's, 1301 Lavaca Street - 10 DWI arrests

Groove, 101 W. Fifth Street - 10 DWI arrests

Ace's Lounge, 222 E. Sixth Street - 9 DWI arrests

Red Fez, 209 W. Fifth Street - 9 DWI arrests

Molotov, 719 W. Sixth Street - 8 DWI arrests

Qua, 213 W. Fourth Street - 8 DWI arrests

219 West, 219 W. Fourth Street - 8 DWI arrests

Six, 117 W. Fourth Street - 8 DWI arrests

Speakeasy, 412D Congress Avenue - 8 DWI arrests

Stubb's, 801 Red River - 8 DWI arrests

Little Woodrow's, 520 W. Sixth Street - 8 DWI arrests

Eddie V's, 301 E. Fifth Street - 8 DWI arrests

The Dallas Morning News reported that some Legislators are already beating their drums regarding their proposals to fight DWIs. In the past, Legislators have thought the only solution was to make the punishment for DWI more harsh. They are not realizing that this isn’t the answer.

The real issue is what works and what doesn’t. In the past, the Legislators just passed tougher and tougher laws. There was an attitude that if you put someone in jail long enough and fined them enough, they would change their behavior. This is what I call the Williamson County approach. But, Legislators are now realizing that this isn’t very effective. They have also tried to deter it by making it very expensive. The problem with that approach is that folks end up choosing jail over probation to save themselves money. Many folks in the system now realize the best way to deter the undesired behavior is to get folks in substance abuse treatment.

The two ideas that are certain to rear their ugly heads as road blocks and the requirement of Ignition Interlock on first time DWI offenders.

On a side note, one legislator out of Lewisville will be pitching an idea that if someone is convicted of a second DWI, then they should have their license permanently revoked. What she isn’t taking into consideration is that folks HAVE to be able to drive to work. Also, folks are going to drive, whether they have a license or not. And, if they don’t have a license, they won’t have insurance, so we end up with a bunch of non-licensed, non-insured folks on the road.

The main problem with roadblocks, is that every Legislator that has put for the idea has had to admit, that they just don’t work as well as roving patrols. So, if they don’t work as well, why do them. They are also more expensive to man, and bottling up traffic at 2:00 a.m., when folks are leaving the bars, just doesn’t seem very smart.

Increasing the Ignition Interlock requirements always seem to be on the Legislators' agenda. The problem with this idea is that it punishes the masses for the problems of the few. If a person has a drinking problem that would make the Ignition Interlock a good idea, the Judge can currently order it. The way the system works now, is on a case by case basis, where the Counseling and Education folks, the prosecutors, and the Judge can look at each case and make the determination as to what is appropriate. The IID folks want to remove the discretion from the Judge. The majority of folks arrested from DWI never reoffended, so we should leave it to the folks involved with each case to make the determination as to what is appropriate, not the Ignition Interlock companies that have lobbied the Legislators.

The Austin American Statesman reported today that the Travis County Commissioners voted to enter into an agreement between Travis County and the City of Austin that will allow for a phlebotomist to be at the jail from Tuesday night through Sunday morning.  These folks have reported that they anticipate the cost of this service to be approximately $60,243 per year.  What they are not taking into account is the added cost of having those folks present to testify in the cases for which they drew blood.  I was told that they plan to contract with a "phlebotomy service", rather than hire a single phlebotomist.  The logical nightmare will be when the actual person that took the blood no longer works at the contracted service.  Further, who do they think is going to pay for their time. 

The article states that the phlebotomist(s) will work from 9:00 p.m. to 5:00 a.m.  Well, we shall see how they feel about waking up to be in court at 9:00 a.m.   Further, who is going to pay for the blood to be tested.  Chief Acevedo has been pushing for a full time no refusal policy, and I think this is just one step towards his goal.  As I have stated in past posts, this isn't Williamson County.  Folks, in general, are against people being held down and stabbed with a needle.  Sooner or later, Acevedo will have to realize that.  Either that, or maybe another city will consider him for their Chief, since Dallas apparently didn't want him.

As of today, September 1, two new laws go into force that deal with DWIs in Texas.  Section 724.017 of the Transportation Code is now expended to allow more situations where police can do a forced blood draw without a warrant.  Mandatory warrantless blood draws are now allowed if a person is arrested for DWI, or BWI, the person refuses to submit to the taking of a specimen volutarily, and: 1) an individual other than the person arrested has suffered bodily injury and was transported to a hospital or other medical facility for medical treatment; 2) the person is arrested for DWI with a child passenger under 15; 3) the officer has reliable information that the person has been previously convicted of DWI two or more times; or 4) the officer has reliable information that the person has been previously convicted of DWI with a child passenger under 15, intoxication assault, or intoxication manslaughter.

The Legislature also tried to give some assurance to the health care providers that actually draw the blood persuant to a blood warrant, or mandatory blood draw.  Section 724.017 of the Transportation code was amended to provide protection to those who take blood specimens according to "recognized medical procedures."  However, this change in the law DOES NOT relieve a person from lability for negligence in the taking of a blood specimen.  And there lies the danger to anyone that takes blood under these intrusive warrant/warrantless blood draws.

The Austin American Statesman reported in today's paper that Austin's Hospitals and the Travis County Sheriff's Department have informed the Austin Police Department (APD) that they will no longer collect blood for APD.

 Travis County's central booking facility had been the place where APD took their suspected DWI folks for the forced blood draw.  APD would rely on the Sheriff's nurses to do the forced blood draw.  (If the person refused, they would literally strap them in a chair so that the person couldn't move their arms, and then stick them with the needle)  The Sheriff's Department nurses stopped taking blood samples on January 1.  The Sheriff's Department has finally realized that the nurses main function should be to treat inmates, not collect evidence.  Further, they are deeply concerned about having to give nurse's overtime pay to appear in court after having been the one that draws the blood. 

Since the Sheriff's Office stopped doing the blood draws, APD started taking suspects to the hospital for the blood draws.  (I can't verifiy this, but I heard that the hospital was charging APD $400.00 per blood draw.)  The Hospital representatives have now told APD they don't want them to bring suspects to jail for blood draws.  The Hospital staff are worried about lawsuits, and are concerned because these types of blood draws are not being done for medical reasons.  Further, the Hospitals are worried about who will pay for the nurse's time when they are called to court to testify about the procedure they used to draw the blood. 

 Chief Acevedo thinks he has figured out a way around these problems.  APD contracted with a private phlebotomist to draw the blood of folks on Halloween weekend and New Years Eve.  APD agreed to pay the phlebotomist for three eight hour shifts during these weekends.  What APD didn't contract for was pay for this phlebotomist when she is drug into court to testify about the blood draws.  I predict there will be a lot of screaming from the phlebotomist when she finally figures out that the money she received per hour will now be reduced by the number hours she has to sit in court.

 In the Statesman article, an "expert in blood draws" states that "the state laws are clear that nurses and hospitals are protected from such suits.  What the "expert" appears to be referencing is Section 724.017 of the Texas Transportation Code.  The relevant section, section (b), states:

The person who takes the blood specimen under this chapter, or the hospital where the blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter if the blood specimen was taken according to recognized medical procedures.

 However, this "expert" left out the final sentence to section (b):

This subsection does not relieve a person from liability for negligence in the taking of a blood specimen. 

Now, what the "expert" seems to be forgetting is that it will ultimately be up to a fact finder (Judge or Jury) to determine if negligence took place.

 Also, I bet no one informed the phlebotomists that they could be held liable for the blood draws either. 

APD is treading on thin ice on this issue, and the sad part is, they either don't even realize it, or they just don't care.

This past weekend, the Gregg County, Texas sheriff issued a press release that stated that if  you drink and drive this independence day weekend - you will go to jail.

In December 2006, Gregg County commissioners approved a grant to participate in the statewide “Drink, Drive, Go To Jail” campaign.  This grant provides resources necessary to conduct DWI enforcement throughout the holiday periods to increase the arrests of folks that drink and drive.

Captain Ken Hartley with the Gregg County Sheriff’s Department says; “We’d just like to remind people to drive responsibly. Don’t drink and drive. Enforcement will be out there and it’s not worth that chance and certainly not taking a chance of hurting yourself or others.”

What they are totally ignoring is the fact that is not against the law to drink and then drive as long as  you are at least 21 years of age, and  you are not intoxicated. I believe that the Sheriff is setting up a great argument for the fact that people are going to be arrested that don’t meet the above criteria.

The police and prosecutors always want to lower the standard, but it just isn’t the law. Another example of the attempt to lower this standard is the “Buzzed driving is Drunk Driving” billboards. Neither Buzzed driving, nor Drunk Driving is the standard…..Intoxication is.

I certainly hope a defense attorney in Gregg County is paying attention to this and is willing to use this to show the juries there that THIS Sheriff’s deputies have the potential for making wrongful arrests.

While we all know the Austin Police practice a “Drink, Drive, Go to Jail” policy, the administration has been smart enough not to voice it publicly.

The City of Austin has decided to replace their current BAT Bus(Breath Alcohol Test Bus) with a new improved BAT Bus.

The city agreed to buy a breath alcohol testing bus so officers don’t have to make the trip to the county jail.

The new Bat Bus will have to stations for Intoxilyzer 5000s as well as workstations for the officers to review the videotapes of the incident and prepare the offense reports.

Futher, there will be City Marshalls on hand to transport folks who have been arrested to the jail facility. This will allow officers like the one they call “the Machine” to get back on the street faster. The Machine currently holds the record for making 7 arrests in one night.

“Typical, DWI arrest takes between three and four hours,” Austin police Cmdr. Patti Robertson said. “It narrows it down. Takes off 3/4 of that time. They have all the paperwork, turns it over to the officers on the bus.”

DWI has become big business in Austin.

“We are at 800 per 100,000 people for DWI arrests…” Robertson said. “What that means is we are ……the highest in the state for DWI arrests. I think that speaks volumes.” It certainly does.

There are approximately 10 different agencies in and around Austin that are all competing for grant money related to DWIs. The question then becomes, “Could this possibly motivate officer to make more and more arrests?” My belief……ABSOLUTELY!