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.

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.

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.

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.

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!

A Virgin Atlantic Pilot found out the hard way that the Adkins diet can affect the breath test when he was removed from a transatlantic flight after failing a breathalyser test. He has finally been cleard of this charge after it was discovered that his low-carbohydrate diet triggered a false reading.

Subsequent blood tests on the pilot showed a blood-alcohol reading of just over a fifth of the limit set for airline pilots - which in turn is a quarter of the drink-drive level.

The pilot’s nightmare began when he went through the security checks for flight crew one of the guards thought he could smell alcohol on his breath.

The pilot was allowed to board the plane but about 45 minutes before take-off police got on the aircraft and breathalysed the pilot in the cockpit using a machine calibrated to aviation levels. The pilot failed this test and was escorted off the plane.

A standby crew was called and the pilot was taken to the police station, where blood tests were taken.

He was suspended from duty and released on bail.

The pilot’s blood was sent it to a laboratory where they found only a minimal blood alcohol reading. After the lab tested two more samples, he was exonerated.

Even non-drinkers are capable of producing trace elements of alcohol in their bloodstream, which would explain the level in the pilot’s blood.

The breathalyser reading was attributed to the pilot’s low–carbohydrate diet, which can affect the smell of a person’s breath and their metabolism.

Breathalysers mainly detect ethanol (the type of alcohol found in drinks) But some machines are unable to distinguish ethanol from acetone, a chemical that is produced by people on low-carbohydrate diets such as the Atkins diet. In normal circumstances this is not a problem but with the alcohol limit in the aviation industry is set at about a quarter of the normal “intoxication” level (.02) even these traces can result in a positive reading.

Where this is most likely to cause problems is when a person has been drinking, but not to the level of being intoxicated (.08). You then add the fact that the person is on a low carbohydrate diet, which will produce acetone in their breath, and there is a strong likelihood you will end up with a unreliable result from the breath testing machine.