Texas

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Junk Science: It May Have Caused Your DWI Charge

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If a police officer pulls you over and suspects that you’re Driving While Intoxicated, they’ll usually administer a test to determine your BAC level, or Blood Alcohol Concentration level. This is the level of alcohol found in a person’s bloodstream and is technically measured as mass per volume.

A BAC of 0.08% implies there is 0.08 grams of alcohol per 100 grams of blood. A BAC result of 0.08% and above indicates that a person is under the influence, and driving under such conditions is considered illegal in Texas.

There are a number of methods used by the police to determine if a person was driving under the influence.

Two of the most commonly used methods include:

  • Field sobriety test, and
  • Chemical blood test

A standardized field sobriety test (SFST) recommended by the National Highway Traffic & Safety Administration (NHTSA) consists of three tests, namely the horizontal gaze nystagmus (HGN), walk-and-turn (WAT), and the one-leg stand (OLS).

If the SFST results fail to satisfy the officers about their belief about the driver’s state of intoxication (or absence thereof), they usually proceed to chemical blood testing which analyzes the person’s blood, breath, or urine, in order to diagnose the blood alcohol level of the person who is under suspicion for DWI.

How to Fight These Tests

None of these methods for DWI detection in Galveston are infallible.

The readings of these adhoc chemical tests should always be taken with a grain of salt. Thousands of people are falsely charged with DWI every year, including in Galveston, Texas.

Following, are some of the factors that can result in an erroneous FST and/or blood test result :

  • Medical condition – Medical conditions such as gastroesophageal reflux disease (GERD), acid reflux or heartburn can cause erroneous DUI breath test results.
  • Psychological state of mind – Adrenaline induced nervousness, intimidation at the sight of the police and panic at the possible future as a convict can very well be an innocent but truthful cause of a botched FST. Poor eyesight, bad weather conditions, bad lighting, obesity, leg or joint problems are also valid reasons.
  • Diet – Conditions like diabetes, hypoglycemia or any low-carbohydrate/high-protein diet can occasionally give a false positive BAC report. Residual alcohol-soaked food in dental cavities or use of alcohol-rich mouthwash like Listerine can also give a false BAC level.
  • Improper storage of sample – Unscientific storage or lack of refrigeration often results in blood fermentation and contamination, which in turn can cause a tainted DUI test report.
  • Rising blood alcohol level – Typically, alcohol absorption in the blood stream may take anywhere between 50 – 180 minutes in order to reach the peak level. In between the time that a driver was stopped and the test was taken, a rising blood alcohol level shall give a high BAC but will not necessarily imply that the driver was drunk while driving.

An Experienced DWI Lawyer Can Help

In Texas, DWI laws are governed by Title 10 Chapter 49 of the Texas Penal Code. If you think you are falsely charged with DUI/DWI, contact an experienced Galveston, Texas DUI/DWI defense lawyer and have them examine some of the defenses that may be raised to combat the “junk science” test results and successfully beat your DUI charges.

The Law Office of Tad Nelson & Associates is here to help.

Mr. Nelson earned his Board Certification in Criminal Law by the Texas Board of Legal Specialization in 1996, after being licensed for five years. He is also a member of the American Chemical Society (ACS/CHAL Lawyer-Scientist).

Give us a call to discuss your case.

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By The Book: Drunk Drivers & Telephone Tips

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Generally speaking, an anonymous tip to the police is not by itself enough for an officer to stop a driver. Ultimately, the tips provided by anonymous callers remain suspect.

Because they remain anonymous they are unaccountable for the claims they make to police.

In the case Navarette v. California, the U.S. Supreme Court ruled on a set of facts that would be enough for an officer to stop a driver: when a person calls 911 and describes a particular driver’s actions, occurring in the moment, that signify DWI.

This is not an exception to all anonymous tip cases, however each tip must be analyzed on a case-by-case basis. If the tip is of the right kind of driving and the caller relates it to police in the right way, the anonymous tip will be sufficient to warrant a stop by police for suspected DWI.

Reliability of Tip

The majority opinion assessed the reliability of the tip by considering the informant’s basis of knowledge and veracity. In Navarette, the majority acknowledged that the facts before it made the case a close one.

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“In the case Navarette v. California, the U.S. Supreme Court ruled on a set of facts that would be enough”

The court ultimately found factors suggesting the tip had both a firm basis of knowledge and credibility. The caller’s ability to specifically describe the vehicle and her allegation that the driver had run her off the road meant she was claiming to be an eyewitness, which gave sufficient support to the tip.

The Court found that the tip was reliable because the 911 system has the ability to trace calls and provides some assurance against false reports. Therefore, unnamed 911 callers are more reliable over other anonymous tips. Additionally, the fact that the tip claimed to be reporting recently occurring activity also enhanced its reliability.

The Court likened the tip to a present sense impression, which is an evidence-based exception to hearsay and is generally considered to enhance the reliability of evidence. Likewise, the Court believed it would enhance the reliability in the tip context.

After determining the tip was reliable, the Court went on to determine whether the tip justified a Terry stop. The majority upheld the officer’s actions as a stop to investigate an ongoing DWI, not to investigate a completed traffic violation (for example failure to maintain their lane). A stop based on an unconfirmed report of a completed traffic offense would be “constitutionally suspect.”

Challenging the DWI Stop

Because DWI convictions carry significant consequences in Texas, it is vital to have an attorney who knows the law and understands how to challenge the stop that led to your charge.

If your DWI charge involves a police tip, you want to explore how to challenge the stop with your attorney. At The Law Offices of Tad Nelson & Associates, we understand DWI law and all possible defenses.

We leave no stone unturned. If you have been charged with DWI in Galveston county or surrounding counties, call our office today to discuss the facts of your case and how we can assist you.

By The Book: Drunk Drivers & Telephone Tips

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Understanding Galveston DWI Charges

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Galveston DWI Lawyer Tad Nelson

In the State of Texas, a person can be criminally charged for the unlawful offense of driving while intoxicated (DWI) if they are found by law enforcement to be intoxicated and operating a motor vehicle in a public place. DWI offenses are harshly prosecuted in the state of Texas due to the number of lives lost on Texas roads as a result of innocent people being killed or maimed in a vehicle accident caused by a drunk driver.

Although some criminal offenses involving DWI’s can result in fatal consequences, in most cases these are simple misdemeanor offenses that usually result in a slap on the wrist and the person never again having to appear in court for another criminal offense ever again in their life.

However, in other cases, a number of defendants are guilty of nothing more than being falsely accused of driving while intoxicated by law enforcement and are later proven innocent after the evidence of their alleged intoxication is weighed and put to the test using normal everyday scientific standards. Then thrown out.

The truth of the matter is that in some cases when a person is arrested for a DWI offense in Galveston, they are neither intoxicated, nor drunk. We’ve dealt with a number of cases where the defendant was undergoing medical care or either under the influence of prescribed drugs from their doctor, and found themselves accused of DWI. While driving under the influence of prescribed drugs is illegal and can result in a driving under the influence (DUI) offense, it serves as a perfect example of how a person can be falsely accused of drunk driving.

The 15 Day Rule: Losing Your Texas Drivers’ License

If you’re arrested for driving while intoxicated (DWI) in the state of Texas, there’s a strong possibility that you’ll lose your Texas Drivers’ License long before you get your day in court.

This makes it more important than ever to seek out qualified legal representation so that you can work with your attorney to take the necessary steps to prevent the suspension of your Texas Drivers’ License. In the worst-case, with a decent DWI lawyer on your side, you will at least be allowed an occupational license you can get back and forth to and from work until the final decision is made as to your guilt or innocence for the crime of DWI within the criminal justice system.

We only have 15 days to request a hearing to save your Texas Drivers’ License. If you’ve been arrested for DWI, and its still within 15 days, be sure and contact the Law Offices of Tad Nelson and Associates as soon as possible so we can take the necessary steps to prevent the suspension of your Texas Drivers’ License. If you’re caught driving with a suspended Texas Drivers’ License it amounts to a trip straight to jail.

When The 15 Day Rule Applies

The 15 day rule applies if you took one of the police sobriety tests, be it blood or breath, and the results revealed your legally acceptable blood alcohol level to be over the limit of 0.8, then the 15 day rule would apply to you. The 15 day rule will also apply if you refused to take the or breath test, or you attempted to cooperate, and the police decided that you failed or refused.

Finally, a person under the age of 21 at the time of the DWI arrest with a BAC level greater than 0.02 will also face Texas Drivers’ License suspension within 15 days unless a special hearing is requested in writing by the DWI attorney representing the defendant. This process is referred to as Administrative License Revocation (ALR).

Criminal Penalties For DWI Offenses In The State Of Texas

In the State of Texas the criminal penalties for DWI offenses, in which the defendant has been found guilty in a court of law, can range from probation, to a few days in jail, on up to a 20 to 25 year sentences with the Texas Department of Criminal Justice.

Obviously, the severity of the criminal offense will determine the severity of the criminal penalty imposed by the criminal justice system in the event of the defendant’s guilt, at least that’s how it’s supposed to work.

DWI: First Offense

A person charged with DWI for the first time is highly unlikely to be required to serve jail time granted they have a decent attorney who knows how to work the system in their favor. Galveston DWI case defense lawyer Tad Nelson knows how to work the system in favor of his clients.

For informational purposes, we’ve listed the criminal penalties imposed on persons convicted in the court of law for first-time DWI offenses below.

  • First-time DWI offenders may receive criminal fines of up to $2000.
  • First-time DWI offenders may be given a prison sentence of anywhere from 72 hours to 180 days County jail time.
  • First-time DWI offenders may face Texas Drivers’ License suspension of anywhere from 90 days to one year.

First offense DWI cases are classified as Class B Misdemeanors.

DWI: Second Offense

Two-Time DWI offenders can expect to face a bit more harsh punishment than that of those found guilty of DWI for the first time. Although you can get probation for a second DWI offense, you will have to serve some jail time as a condition of any probationary period granted to you by the court, participate with a community service program if offered to you, and you may be required to have an anti-drunk driving device installed on your vehicle to prevent the ignition of the vehicle when and if the device were to detect the presence of alcohol on your breath.

The technologies in these devices now have the ability to make direct contact with the court, judge, and your probation officer the second it detects the presence of alcohol on your breath. If one of these devices is installed on your vehicle as a condition of your probation you’ll have to play it straight. Otherwise, your probation will likely be revoked and you’ll have to serve jail time.

Penalties For Second DWI Offenses In The State Of Texas

  • Second time DWI offenders may receive criminal fines of up to $4000.
  • Second time DWI offenders face jail sentencing of 30 days to one year County jail time.
  • Second time DWI offenders face Texas Drivers’ License suspension of a period from 180 days to two years.

Second offense DWI cases are classified as Class A Misdemeanors.

DWI: Third Offense

If you’ve been arrested for a DWI offense a third time in the state of Texas, your best bet is to talk with a Board Certified criminal defense attorney who specializes in defense of DWI accusations. You’ll want to do everything in your power to fight a felony charge. Felony charges, unlike misdemeanors, are serious and can result in multi-year prison sentences which will leave your life in shambles.

Although the ramifications for the third time DWI offense may sound terminal, there are a number of factors up for review by the court when making a determination on how severe your sentence will be.

Some of the information the court will take into consideration when determining your punishment are things like the length of time since your last DWI offense, the severity of the facts of the current DWI case, whether or not anyone was hurt/automobile accident resulted, and, if considered for probation, whether or not you were successful during any previous probationary period you were sentenced to as a result of your previous DWI offenses (if applicable).

The criminal penalties for person convicted of DWI third time in the state of Texas are as follows;

  • Third time DWI offenders may receive criminal fines of up to $10,000
  • Third time DWI offenders may be facing stiff prison sentences of anywhere from 2 to 10 years in a state penitentiary operated by the Texas Department of Criminal Justice.
  • Third time DWI offenders will also have their Texas Drivers’ License suspended for a period that will last anywhere from 180 days to two years.

Third Offense DWI Cases Are Classified As Third-Degree Felonies In The State Of Texas

DWI: Intoxication Assault

The criminal offense for persons convicted of a DWI in which a person was hurt is often referred to as intoxication assault. Criminal penalties for intoxication assault are the same as third offense DWI cases.

The best definition of intoxication assault is when a person who was found guilty of driving while intoxicated caused severe or life-threatening bodily injury to another person as a result.

Criminal penalties include fines of up to $10,000, 2 to 10 years in the state penitentiary run by the Texas Department of criminal Justice, and last but not least, Texas Drivers’ License suspension of anywhere from 180 days to one year.

Intoxication Assault Cases Are Classified As Third-Degree Felonies In The State Of Texas.

Intoxication Manslaughter

Intoxication manslaughter is a serious felonious criminal offense in which human loss of life occurred as a result of DWI. Intoxication manslaughter cases are always harshly prosecuted by the district attorney due to the fact that an innocent person was killed as a result of the negligence of another during the commission of a criminal offense, DWI.

Galveston DWI lawyer Tad Nelson has over 25 years of experience defending people accused of DWI offenses up to, and including, intoxication manslaughter. Attorney Tad Nelson will represent you if you’ve been accused of this sort of offense. You will need competent legal representation.

The criminal penalties for an intoxication manslaughter range from 2 to 20 years in a Texas Department of Criminal Justice run penitentiary facility. You’ll also face fines of up to $10,000, and the suspension of your Texas Drivers’ license for a period of 180 days to two years.

Galveston DWI Defense Lawyer Tad Nelson Will Help

Not only does Tad Nelson have over 25 years of experience defending people accused of DWI offenses in the Galveston area, he is also one of the distinguished few attorneys practicing criminal defense litigation in the state of Texas that holds a Board Certification as an expert in criminal law.

In addition to his Board Certification in criminal law from the Texas Board of Legal Specialization, he is also a graduate and member of the National College of DUI Defense (NCDD), and an American Chemical Society certified ACS/CHAL Forensic DWI Lawyer-Scientist as a result of successfully completing the hands-on forensic gas chromatography course.

If the ramifications of being found guilty on your case are so high that you need to seek out the highest skilled and most competent legal counsel in Galveston, contact the Law Offices of Tad Nelson and Associates immediately.

Galveston, Texas DWI-DUI Attorneys

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Warrants Now Required for DWI Blood Tests in Galveston County

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In 2014, the Texas’ Court of Criminal Appeals, the state’s highest criminal court, ruled that it is unconstitutional for an officer to take a suspected DWI offender’s blood without consent or a warrant.

Writing for the majority, Justice Elsa Alcala stated,

“We hold that a nonconsensual search of a DWI suspect’s blood conducted pursuant to the mandatory-blood-draw and implied-consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment.”.

Why Warrants Are Required

The Fourth Amendment of the U.S. Constitution prohibits the unreasonable search or seizure of a person or his/her affects. Therefore, if no exception to the Fourth Amendment applies, officers are required to obtain a search warrant prior to taking a suspected drunk driver’s blood unless consent is given.

In Galveston County, Texas this is still a little bit of a problem because the Galveston County District Attorneys Office actually is teaching the police how to formulate and document exigent circumstances. And exigent circumstances are an exception to the warrant statute. I have heard this in recorded telephone phone calls between the on-call Assistant DA and the arresting officer and have been heard about emails that further explain exigent circumstances to the DWI officers.

What Does This Ruling Mean?

It is believed that this ruling will have a major effect on how police in Texas gather evidence that illustrates a driver’s blood alcohol content (BAC) level is above the legal threshold of 0.8 percent. Previously, an officer could bring a suspect to a hospital, or other sanitary place, for blood to be drawn by a doctor, nurse, or other qualified technician.

Now, in order to obtain blood evidence, a prosecutor will need to find a judge to issue a warrant. As such, many counties, especially those with “no-refusal weekends,” are keeping a magistrate judge on call to issue warrants requested by officers who seek to obtain blood evidence of suspected drunk drivers.

This decision stems from the criminal appeal of the case of David Villarreal, who was arrested in 2012 for DWI. The officer in his case testified there was probable cause to believe that Villarreal had previous convictions for DWI, and therefore used the state’s transportation code to have Villarreal’s blood drawn at a hospital without a warrant or his consent. The transportation code gave officers leave to require breath or blood tests when the suspected driver had previously been convicted or placed under community supervision for drunk driving offenses more than twice.

The blood test showed that Villarreal’s BAC was 0.16 percent, well over the legal threshold. He was convicted of felony driving while intoxicated and the prosecutors had requested he face at least 25 years in prison. His attorney appealed, and due to the high court’s ruling, the blood evidence used against him at trial is now inadmissible. Villarreal’s attorney suspects that the prosecution will retry the case, which is weaker now that the blood evidence is excluded.

How A DWI Attorney Can Help Your Case

Are you in need of a criminal appeal for a DWI conviction based on evidence that may have been obtained unconstitutionally? If the police made an error or mistake when arresting you, we may be able to assist. Contact our experienced Galveston DWI attorneys at The Law Offices of Tad Nelson & Associates. We are committed to providing zealous representation for those who have been charged or convicted of a DWI offense in the South Texas area.