DWI Archives - Buford & Gonzalez

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Can Austin Police Force Me to Take a Blood Test If They Suspect DWI?

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When you are suspected of drunk driving, police in Austin and throughout Texas must still respect your constitutional rights. This includes the right to be free from any unreasonable search of your person. A search is considered unreasonable if law enforcement does not first obtain a warrant or establish there is some “exigent” or emergency circumstances that excuses the lack of such a warrant. Any evidence obtained by the police in violation of these requirements cannot be used against you at trial.

Texas Courts Clamp Down on Warrantless DWI Blood Tests

In DWI accident cases, one of the most common searches that a defendant may face is a blood test. A blood-alcohol test is often the key piece of evidence used to convict a person of DWI and related offenses, such as intoxication manslaughter. Police and prosecutors often attempt to conduct such blood tests without a warrant, but Texas courts have increasingly rejected such efforts.

In 2014, the Texas Court of Criminal Appeals held that “warrantless, nonconsensual testing of a DWI suspect’s blood does not categorically fall within any recognized exception to the Fourth Amendment’s warrant requirement.” But the Court did not say that all warrantless blood tests were illegal. Rather, it held the government could not create a blanket exception to the warrant requirement for DWI blood tests. Depending on the circumstances of a particular case, a warrantless blood test may still be deemed legal.

Still, the Court’s decision offers DWI defendants an important tool in challenging the evidence against them. For example, on May 10 of this year, a Texas district court of appeals reversed a defendant’s conviction based largely on a warrantless blood test. This case was of particular interest given the defendant was not convicted merely of DWI, but felony murder arising from an alleged act of drunk driving.

The defendant was returning home from a bar when he struck a motorcycle. The motorcycle operator suffered fatal injuries. Police officers responding to the scene disagreed as to whether the defendant appeared intoxicated. Some officers took the defendant to a nearby hospital, where they ordered a blood test without the defendant’s consent—he had refused it—or attempting to obtain a warrant. Following a trial, a jury convicted the defendant of felony murder.

On appeal, the defendant challenged the admissibility of the warrantless blood test. The appeals court agreed that the police had violated the defendant’s constitutional rights. The court cited the testimony of the lead Texas Department of Public Safety officer at the scene, who said he took “zero steps” to obtain a warrant, even though at least 90 minutes elapsed between the accident and the blood test. Indeed, although the accident occurred after midnight, local police “had a process in place to assist officers in obtaining warrants.” The policy simply ignored that process and the defendant’s constitutional rights. Accordingly, the court said the defendant was entitled to a new trial, one where the blood test results cannot be introduced as evidence against him.

Stand Up For Your Constitutional Rights

Cases like the one above illustrate the importance of constitutional safeguards against warrantless, non-consensual searches. If you face criminal charges as the result of alleged drunk driving, or if you have been struck by a drunk driver in Austin, it is important you retain an experienced Austin personal injury lawyer or an Austin DWI accident attorney who can help ensure the courts and law enforcement respect your rights. Contact the Austin DWI lawyers at Buford & Gonzalez today if you require immediate assistance.

Can You Get a DWI While Sleeping it Off in Your Car in Texas?

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DWI breath test

News stories in Texas often arise featuring people charged with driving while intoxicated (“DWI”). Rarely, however, do these stories involve individuals charged with DWI in parked vehicles. Unfortunately, in many states across the United States, including Texas, if you are under the influence and in a parked car, you may still be charged with a DWI.

Under Texas law, a individual commits a DWI when he or she is operating a motor vehicle in a public place while intoxicated. Texas law defines what it means to be intoxicated and what is considered a motor vehicle. However, it does not define the term operating. Since it does not define operating, the courts have to interpret the term and of course, they interpret it broadly. If your car is properly parked, in a designated parking area, and the engine is still running, you could be found to have been operating the motor vehicle. Likewise, if you are asleep and have the radio on and A/C blasting, or there exist other DWI indicators police look for, the court may find that you were operating the motor vehicle.

Ways to Avoid Getting Arrested for A DWI in A Parked Car

Sleeping in the driver’s seat is one of the ways that lead a police officer to believe that you were intending to drive while under the influence. Although that may not have been your intent, the police officer may choose to arrest you anyway.

DWI charges can be difficult to defend because you need to prove that you did not intend to operate the motor vehicle while you were intoxicated. If you take certain precautions, you will have an easier time fighting the charges. These precautions include:

  • Reclining the seat;
  • Sleeping in the back seat;
  • Shutting off the engine and the lights;
  • Taking your keys out of the ignition; and
  • Parking your car in a legal spot, if possible.

Ultimately, the best decision you could make is to place your keys in the trunk or outside the car. That way, the police cannot say that you intended to operate the motor vehicle while intoxicated because your keys were not easily accessible.

If you do decide to sleep it off in a parked car after a night of drinking, make sure you do everything in your power to ensure the police cannot say you were ‘operating’ the motor vehicle.

Contact an Experienced DWI Defense Attorney

With this information in mind, you can still be charged with a DWI, even if you intended to be responsible. If you are facing DWI charges, you should not hesitate to contact the Austin criminal attorneys at Buford & Gonzalez who will challenge the prosecution’s case and vigorously do everything in their power to decrease the chances that you will face fines, jail time or a suspended license.

Above the Law?

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Above the law

Texas law enforcement is taking a hard stance on charging people suspected of driving while intoxicated (DWI) across the state, but some recent news shows that some state authorities believe that they are above the law when it comes to DWI. These cases not only highlight the fact that anyone can be arrested for DWI, but they also illustrate what indicators that police look for when determining whether they suspect a person of driving while intoxicated.

Recent Cases of County Official DWIs

Two recent arrests in the Travis County area highlight how some county officials believe that they are above the law when it comes to DWI. In March, a Travis County state district judge was charged with DWI when she and other members of the criminal justice community were coming home from a taping of Jimmy Kimmel Live. Judge Gisela Triana was arrested after she was stopped for speeding 47 mph in a 30 mph zone. She failed field sobriety tests at the scene and had an empty bottle of alcohol in the center console. The police report stated that she swayed, stepped off the line, and took the wrong number of steps during her field sobriety tests.

In addition, an Austin police officer was arrested last month for DWI with a BAC of 0.15% or more. Albert Arevalo, 37, was stopped for speeding 91 mph in a 55 mph zone on MoPac Boulevard. Police noted that he smelled strongly of alcohol, swayed, and lost his balance during the field sobriety test. He admitted to drinking six gin and tonics throughout the night and twice blew over the elevated 0.15% BAC limit at 0.178% and 0.163%, respectively.

DWI Indicators

If you have been pulled over on suspicion of driving while intoxicated, you should know what DWI factors police look for. The National Highway Traffic Safety Administration (NHTSA) researchers interviewed police officers from across the United States and developed a list of more than 100 driving cues that the authorities use to visually detect people suspected of driving while intoxicated. These predictor cues have been shown to accurately predict that a driver is intoxicated at least 35% of the time.

Before getting pulled over, police will look for problems maintaining the proper lane position, speed and braking problems, vigilance problems, and judgment problems. After a vehicle has been stopped, police look for the following indicators:

  • Difficulty with vehicle control;
  • Difficulty exiting the vehicle;
  • Fumbling with license and registration;
  • Repeating statements or questions;
  • Swaying, unsteadiness, or balance issues;
  • Leaning on the vehicle;
  • Slurred speech;
  • Slow to respond to police;
  • Providing incorrect information or changing answers; and
  • Smell of alcohol emanating from the person or vehicle.

Contact a DUI Defense Attorney

Call the office or contact us today at Buford & Gonzalez if you have failed a DWI breath test in Austin. Our experienced Austin DWI attorneys are here to help and defend your rights through the legal process if you have been arrested for suspicion of driving while intoxicated.

Are BAC Tests Unreliable to Determine DWI?

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DWI breath test

The biggest piece of evidence in any case of driving while intoxicated (DWI) is the results of a blood alcohol concentration (BAC) test. These are chemical tests that determine a driver’s BAC through their breath, saliva, or blood. Under Texas law, it is illegal for a driver to have a BAC 0.08% or higher. However, BAC tests have come under recent scrutiny and may not be a reliable way to test for DWI.

Types of BAC Tests

In suspected DWI cases, Texas police use two types of BAC tests: a DWI breath test and a DWI blood test. In a DWI breath test, the authorities have a person breathe into a Breathalyzer machine that determines the BAC from the breath and saliva. Typically, an officer will ask a person to submit to a breath test before arrest, but this is voluntary and the driver can legally decline. However, after the arrest an officer can get a warrant that compels the driver to breathe into the machine.

In a DWI blood test, the police take a sample of blood to determine a driver’s BAC. This test must be performed at the police station or the hospital and cannot be done on the road. However, an officer can compel a DWI blood test with a warrant.

Why Tests are Unreliable

Breath tests for DWI, performed on the road or in a police station, have been criticized for inaccuracies when determining BAC. False BAC readings from Breathalyzer machines can result from minor technological interference, such as a cell phone signal. In addition, breath tests have been known to misread BAC if there are other substances in the mouth, like blood or vomit, and irregular breathing has misrepresented BAC results, as well.

DWI blood tests have also been scrutinized for their flaws in reading the BAC of a suspected drunk driver. People with diabetes or high blood ketones, or those taking cough medicine or herbal supplements have all reported erroneous BAC readings on a DWI blood test. If an alcohol swab is used prior to the blood draw, it can also misrepresent the results. Finally, some blood tests only check the blood serum and not the entire sample. Studies have shown that testing the serum alone can produce BAC results up to 25% higher than testing the whole sample.

Beyond technicalities in the tests, there are other reasons why BAC tests are unreliable methods of testing for DWI. These tests do not take into account the alcohol tolerance, age, gender, metabolism, or weight of the individual. They also fail to consider whether the person’s BAC is rising or falling at the time of the test. High stress levels, a person’s emotional state, food, and carbonation can all also affect the results of a DWI test.

Our Firm Can Help

Call us now or contact our office today if you failed a DWI breath test in Austin or had a forced blood draw for DWI. Our experienced defense attorneys at Buford & Gonzalez are here to help protect your rights against unreliable DWI tests.