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Jason Howard

DWI Costs Texas

14 Ways a Texas DWI Conviction Can Cost You | A Look at the Numbers

By | Criminal Defense

“DWI – YOU CAN’T AFFORD IT”

DWI Costs TexasYou’ve seen the blue and white signs posted all over Texas roadways that read “DWI – You Can’t Afford It.” The signs offer a simple warning, but they don’t detail the actual costs related to a DWI arrest. So, we thought we’d help give you a general idea of what to expect financially if you or someone you know is faced with a DWI charge in Texas. The figures that we provide may not be 100% accurate for every case or situation but are drawn from our experience in representing well over 500 Texans charged with all types of DWI offenses.

1. Attorney Fees (Varies)

The cost of hiring a DWI attorney is probably the first thing that comes to mind for most folks when they consider the cost of a DWI. As you know, if you are charged with a DWI in Texas, having solid, experienced DWI representation is paramount. Keep in mind that your attorney can often help you save or offset some of the costs we will discuss in detail below, so it is important to retain counsel that is experienced in handling DWIs in your jurisdiction.

*A word of warning… “Nothing is more expensive than a cheap lawyer.” The range of DWI attorney’s fees is broad and can vary by experience and expertise. Contact our DWI defense team to learn about our fees for DWI representation.

2. Bail Bond Costs (Est. $100 – $2,500)

After being arrested for DWI, paying the bond to secure jail release will be the first expense incurred. Depending on the type of DWI charge and the jurisdiction, judges across the state set bond amounts that we’ve seen range from $500 – $10,000. Bail Bondsmen typically charge 10-15% of the total bond amount, but that amount you pay the bondsman is kept by the bondsman. You can also pay a Cash Bond. A cash bond requires payment in full of the bond amount, but the money is returned to you upon disposition of the case (minus any administrative fees charged by your county.) Some counties offer bond release programs for low-risk offenders. This option is often the cheapest route initially, but there can be monthly reporting requirements that require additional fees.

*If you plan to pay a bail bondsman, you will probably pay between $100 and $500.

*If you pay the full cash bond, you can estimate between $500 and $2500 in our experience.

3. Ignition Interlock and/or Alcohol Monitoring ($65 – $250 monthly)

Counties vary on how and when they require an ignition interlock device or alternative alcohol monitoring device as a condition of bond. If required in your case, the court will require you to maintain the device as a condition of your bond. Additionally, if you are convicted and placed on probation for certain DWI offenses, the law requires the ignition interlock device requirement. There are several different companies that offer these devices and we’ve seen the monthly costs of the devices range from $65-105 monthly. Some companies require deposits or administrative fees at the time of device installation.

*If you are required to install an ignition interlock device on your vehicle, the monthly cost will range from $65 – $150.

*If you are required to have a home alcohol monitor or use a wearable SCRAM device that measures alcohol 24/7, the monthly cost will range from $65 to $250.

4. Occupational Driver’s License Costs ($180 – $420)

If, during your arrest for DWI, you refuse to provide a specimen of breath or blood, or the specimen that you provide is over the legal limit of .08, DPS will seek to suspend your license for a period of 90 days – 2 years. You have a right to a hearing on that suspension (a good attorney will request a hearing on the suspension and contest it.) However, if the license is ultimately suspended, you should be eligible for an occupational driver’s license.

An occupational license gives you the ability to drive for employment purposes as well as essential household duties. In order to obtain an occupational license, you must file a petition with the court. The filing fees associated with a Petition for Occupational License range from $45-$285, depending on the court.

Once the occupational license is granted, the order granting the license has to be processed by DPS. At that time, DPS will charge a $125 license reinstatement fee and $10 fee to process the plastic occupational license. It is important to note that a request for occupational license requires proof of financial responsibility also known as an SR22.

5. SR22 Insurance Costs ($25 to $125 monthly)

An SR22 is proof of your financial responsibility. Ultimately, you will maintain your liability insurance. The SR22 is an additional endorsement that monitors your status as an insured driver and confirms for DPS that you are insured. The costs of an SR22 can vary from $25-$125 monthly depending on the insurance company and how the SR22 is requested.

6. DWI Fines (Est. $500 – $1,250)

If you are ultimately convicted of DWI, whether as a result of a plea agreement or after a jury trial, the court will typically impose a fine. The fines misdemeanor DWI convictions in Texas range from $0 – $4,000 and the fines for felony DWI convictions range from $0 – $10,000. Regardless of the charge, fines are typically negotiated by your attorney during plea negotiations with the prosecution.

* If you are found Not Guilty of your DWI charge, there are no fines imposed.

7. Court costs (Est. $300 – $400)

True to their name, “court costs” are the costs charged by the court for processing your case. Court costs are only incurred when there is a guilty finding or a guilty plea and they usually range from approximately $300-400.

* If you are found Not Guilty of your DWI charge, there are no court costs.

8. DWI Probation Fees (Est. $60 monthly)

If your DWI case results in a probation sentence, the judge will order you to pay a monthly supervision fee to the probation department. We’ve seen these fees waived and seen them imposed up to $60 monthly depending on the person’s financial status.

9. DWI Eduction Program Costs (Est. $100 – $125)

If you are convicted and placed on probation, you will be required to complete a 12 hour DWI Education Program class. The cost of the DWI Education program class is typically around $100-125.

10. Victim Impact Panel (Est. $50 – $70)

Another requirement that is typically imposed by the court as a condition of probation is the Victim Impact Panel (VIP). VIP is a presentation by Mothers Against Drunk Driving (M.A.D.D.) or similar organizations where people or family members of people affected by intoxicated offenses describe their experiences with those situations.

* The fee for attending the panel is usually $50-70.

11. Substance Abuse Evaluation (Varies)

If sentenced to probation, you will be required to submit to an assessment to confirm whether you have any underlying alcohol or drug-related disorders. Once the assessment is performed, there will be a recommendation made if there are findings of alcohol or drug-use issues. Those recommendations can range from individual counseling to outpatient treatment to residential treatment. As you know, these services are not free and can be very expensive.

12. Restitution to Impacted Party or Labs (Varies)

If you were involved in an accident where property damage or medical bills are incurred by a third party, you can be required to provide restitution to that person or persons. We also see restitution requested by the labs that perform blood alcohol analysis for the state (typically around $180).

13. DPS License Surcharges ($3,000 – $6,000)

License surcharges are usually the last cost incurred, but also the most expensive. Texas has a highly controversial program known as the “Texas DPS Driver Responsibility Surcharge Program.” The purpose of the program is to penalize people convicted of DWI with an additional financial penalty related to their driver’s license. If not paid, the consequence is an automatic, indefinite suspension of their driver’s license until paid.

The surcharges range from $3,000 – $6,000 depending on the type of DWI charge.

14. Insurance Rate Increase (Varies)

Many people report their car insurance rates skyrocketing after a DWI conviction. In the alternative, several insurance companies will deny future coverage altogether. This can be one of the most expensive consequences of getting a DWI and it is hard to forecast the exact impact because it will last for a long time.

Conclusion

While every DWI arrest is different, it is easy to see how a DWI conviction in Texas could end up costing $15,000 in the long run. Hiring an attorney experienced in handling DWI cases is essential. The majority of these costs are only applicable if you are convicted. The best thing you can do is hire an attorney who can review your case to determine what problematic issues there are for the state and whether the state has the evidence they need for a conviction. If they don’t, you might be able to avoid some of these costs altogether. If you or someone you know is charged with a DWI, please give Barnett, Howard & Williams, PLLC a call at (817) 993-9249. We will gladly offer a free in-person consultation to sit down and discuss your case with you.

Refuse Field Sobriety Test Texas

May I Legally Refuse Field Sobriety Tests if Stopped for DWI?

By | DWI

Yes. You may legally refuse field sobriety tests in Texas. This article explains why you should consider refusing.

Field Sobriety Tests Can Be the Best Evidence for the State in a DWI Trial

Field Sobriety Test Fort WorthWhen a driver is stopped in Texas and the officer suspects that the driver may be intoxicated, the officer will typically run through a standard DWI roadside investigation. This investigation begins by simply observing the driver (bloodshot eyes, odor of alcohol) and asking some questions:

  • “Where are you coming from this evening?”
  • “Have you had anything to drink tonight?”
  • “Is that urine all over you pants?” (Just kidding, okay not kidding)

If the officer sees enough to warrant a further investigation, they will ask the driver to step out of the car.

“Let’s Make Sure that You’re Okay to Drive Tonight.”

Once the driver steps out of the car, the officer will typically position them in front of the squad car so that the dash cam can capture the interaction (to be used later at trial if needed). The officer will then explain that they are going to do some tests just to “make sure that you’re okay to drive.” Note: The officer WILL NOT ask permission to conduct the field sobriety tasks.  He will jump right in and hope that you just go along with it.  There are 3 standard tests that are explained in more detail on our DWI page.

The Field Sobriety Tests are Not Designed for You to Pass

The 3 standard tests are (1) the HGN test (Horizontal Gaze Nystagmus), which is the “light-in-the-eyes-test,” (2) the Walk the Line test, and (3) the One Leg Stand test. I don’t have enough time to go into the many problems with the tests, but to list a few:

  • The Eye Test requires the officer to conduct it perfectly and the camera can never capture the test so we are left with officer testimony alone;
  • The Walk the Line test is difficult even for sober people because it requires the person to take tiny heel to toe steps on an imaginary line in all weather conditions; and
  • The One Leg Stand test is also difficult for a sober person to maintain for 30 seconds and if the person puts their foot down at 27 seconds it is a strike against them.

Throughout the years, the tests have been debunked and challenged by experts as unreliable, but the courts are still allowing them as proof of intoxication (the loss of mental or physical faculties).  In short, the tests set you up to fail. So why would a driver who is suspected of DWI take the tests if they didn’t have to?

You DO NOT Have to Submit to Field Sobriety Tests in Texas

Even though the officer might act as if you must take the tests, you don’t. If he asks you to exit the vehicle then you must get out of the car. But as soon as he tries to start the HGN (eye test) on you, you can (and probably should) politely refuse to take the test. Take note of what I said…Politely Refuse. Do not be a jerk about it and go into a diatribe about how you read this blog and you know these test are no good and that you will not do them. Remember this is all being captured on audio and video; audio and video that will be exhibit #1 at a trial if it goes that far. Simply inform the officer that you do not wish to participate in the field sobriety tests.

Can I Still be Arrested if I Refuse to Perform the Field Sobriety Tests?

Yes you can (and probably will) be arrested if you refuse to perform the FSTs. If the officer already felt like he had enough evidence to administer the tests, then he will probably go ahead and arrest you for DWI if you refuse to take them. But hey, you were probably going to get arrested anyway. Now, however, there will be less evidence against you.  You have an absolute right not to give evidence against yourself.  This constitutional right applies equally in the DWI context.

Should I Take the Tests if I Haven’t Had that Much to Drink?

You are an adult, so it is really up to you, but our advice (from over 10 years of handling DWI cases) is NO. You should not perform the field sobriety tests. Your DWI case becomes tougher to defend if you look intoxicated on the video. Even if you haven’t had that much to drink, there are many reasons why you might appear intoxicated on the video:

  • Your footwear (high heels, flip flops, etc)
  • The wind is blowing hard
  • It is cold outside and you are shivering
  • You have an old injury that causes you to limp
  • You have bad balance (even on a good day)
  • You are extremely nervous

We have seen each of these scenarios on actual DWI videos.

Next Time, Please Take an Uber

We hope you will listen to our advice regarding DWI field sobriety tests. Better yet, we hope that you’ll just pay the $40 for an Uber or taxi from the bar or restaurant and avoid this altogether. But if you didn’t take our advice and you didn’t call and Uber, call us and we’ll be happy to be your advocates.

*This article did not discuss whether you may legally refuse a Breath Test or a Blood Test. We’ve written on that many times and the answer is YES. You may refuse breath and blood tests UNLESS the officer has a warrant for your blood. If they have a warrant, you may not refuse.

Final Four DWI Texas

DWI Madness | “The Final Four” Reasons Texans are Stopped for DWI

By | DWI

Final Four DWI TexasMarch Madness is here again. With the Final Four approaching, we built a bracket of our own. In this article, DWI attorney Jason Howard discusses the top four reasons people are stopped or detained for a DWI investigation in Texas. We’ve compiled and power-seeded our list based on the numerous Tarrant County DWI cases we handle every year. Before we get to the “Final Four,” here are some honorable mentions that didn’t quite make the tournament list:

  • Sleeping in a running vehicle
  • Driving the wrong way on a one-way street
  • Rolling through a stop sign
  • Expired registration as seen by police scanner
  • No license plate light

Of course, there are many more reasons that folks are stopped and investigated for DWI, but below are the top four reasons that we see the most.

The Top Four Reasons Drivers Are Stopped for a DWI Investigation in Texas

#4 – Auto Accident

By auto accident, we mean everything from a head-on collision to a run-in with a mailbox. More serious accidents will usually generate the presence of officers on scene within a matter of minutes. Officers are usually looking to rule out the possibility of someone being intoxicated as soon as they arrive on scene. Minor accidents where there are no injuries might elicit a call to 911 (when there would otherwise just be a swap of insurance) if the other party involved suspects a DWI. Easy to see that if you’ve consumed alcohol and are involved in an accident, there is a high probability of a DWI investigation.

#3 – Swerving or Weaving

Please note – there is a difference between the two. Swerving is the more blatant failure to maintain a single lane by driving the vehicle all across the road. Weaving, on the other hand, is usually more subtle and sometimes observed within the lane. Regardless, if it’s late at night and a police officer is behind you and observes either of these driving behaviors, the red and blues are probably going to come on and the driver asked to step out of the vehicle for field sobriety testing.

#2 – Lane Change Problems

The #3 and #4 seeds were probably the top guesses, right? Surprisingly, we see more of numbers 1 and 2 than any other. And they probably weren’t the ones you guessed. I’ve grouped lane change issues because they can vary from the failure to signal a lane change or turn to the failure to make a proper turn at intersection (aka the “wide right” or “wide left” turn.) If you monitor your daily driving (when you’ve consumed no alcohol,) you’ll probably see that you commit many of these types of traffic infractions constantly. You’ll certainly see other people commit them. So, how does that translate to a police officer’s suspicion of drinking and driving? If it’s late at night on a Friday or Saturday, most patrol officers are quick to pull people over for any traffic violation just to check them out and make sure they’re not DWI.

That brings us to our number one reason people are stopped prior to a DWI arrest…

#1 – Speeding

We’re not talking 100mph in a 30mph zone, although we have seen some crazy speeds. No, we’re talking general, everyday speeding; 5 or 10 miles an hour over the speed limit. Nighttime patrol officers love to use their speed detection devices to initiate stops to find DWIs. That’s right! Patrol officers aren’t just looking for obvious impaired driving clues. It’s clear from our experience in handling DWI cases in Tarrant County that most officers are suspicious of anyone out late at night (especially on the weekends.) They know they only need a legal reason to stop someone at any given time. And once they establish their legal reason (even if it’s just speeding,) they then get to proceed with the “where are you coming from, where are you going, have you had anything to drink?” line of questioning. Once they get an admission of “yeah, I had a couple” or smell even the faintest odor of alcohol from the vehicle, they then get the driver out of the vehicle and begin the field sobriety tests. And once they start with the field sobriety tests, the possibility of being arrested goes up astronomically – even if you’re not intoxicated!

If we were to play out the DWI Final Four tournament, Speeding would be your Texas State Champion.

What Should You Do If You Are Suspected of Driving While Intoxicated?

We’ve written on this topic several times, including:
DWI Information Page
May I Legally Refuse a Field Sobriety Test?

If you have been arrested for DWI in Tarrant County after being stopped for one of these four reasons (or any other reason), contact our Tarrant County DWI attorneys for a free case evaluation.

Texas Occupational Drivers License Rules

Texas Occupational License Restrictions and Requirements (and why they matter)

By | DWI

What You Can, Should, and Must Do While You are Driving on an Occupational Drivers License in Texas

Texas Occupational Drivers License RulesIf you’ve received an occupational license related to a DWI ALR suspension (blood or breath test refusal or failure) in Texas, the judge who granted you that license likely included several restrictions and requirements you must follow. Those requirements can be found in the order granting your occupational license. You should have that order handy because Texas Transportation Code Section 521.250 requires you to possess a certified copy of the order when you drive. In fact, it’s a criminal offense not to possess a certified copy (we’ll revisit that below.)

Learn About Your Restrictions and Requirements

It all starts with the order that the judge signed. Review it. When reviewing the order granting your occupational license, you will find various restrictions and requirements. Restrictions typically limit your time, location and purpose of travel. In some scenarios, people are restricted to use an occupational license only when driving a vehicle equipped with an ignition interlock device. Other requirements can vary. They often include (but are not limited to) keeping a travel logbook, no traffic citations, no radar devices, etc. Specifically, however, Texas Transportation Code Section 521.245 requires the judge to require the person attend some form of an alcohol dependency program in the order granting occupational license. The order can also require you to submit proof of attendance to the court.

What Happens if Fail to Follow The Occupational Drivers License Restrictions or Requirements?

Texas Transportation code 521.253 says:
(a) A person who holds an occupational license commits an offense if the person:
…..(1) operates a motor vehicle in violation of a restriction imposed on the license; or
…..(2) fails to have in the person’s possession a certified copy of the court order as required under Section 521.250.
(b) An offense under this section is a Class B misdemeanor.
(c) On conviction of an offense under this section, the occupational license and the order granting that license are revoked.

What about not complying with the requirement for attending an alcohol dependency program? Per Texas Transportation Code Section 521.245, judges have the authority to revoke the occupational license and impose an additional 60-120 day suspension. That additional suspension is costly, too. Unlike the original DWI ALR suspension where you could apply for an occupational license, there is no option for another occupational license if you were granted one and failed to comply with this requirement.

Don’t Run Afoul of the Occupational DL Rules or Restrictions

So, the suggested practice here is simple:

  1. Have a certified copy of the order granting your occupational license.
  2. Read it carefully and educate yourself about the restrictions/requirements involved.
  3. Comply with said restrictions/requirements for the duration of your occupational license.

If you have questions about your occupational license, contact your attorney for assistance. If you don’t have an attorney, the attorneys at Barnett, Howard & Williams, PLLC are only a phone call away.

2016 Scholarship Winners BHW

2016 Scholarship Winners | Veteran Law Student & Military Dependent

By | Scholarship

Barnett Howard & Williams PLLC Announces the Recipients of the 2016 Scholarship Awards

2016 Scholarship Winners BHW

This was the first year for our law firm to offer scholarships. In honor of the sacrifices of our military veterans, we decided to that the scholarships should be connected to military service. The first scholarship is a $500 award for a Military Veteran Law Student and the second scholarship is a $500 award for a Military Dependent undergraduate student. Throughout the year, we received several applications from very deserving students. We appreciate all of the students that took the time to apply for the scholarships and wish them all the best in their studies. For those students that were not selected, we invite you to apply again next year as we plan to continue the scholarship offers as an annual award.

2016 Winner – Military Veteran Law Student Scholarship

The winner of the 2016 Military Veteran Law Student Scholarship is:

JAMES CROWDER

James Crowder is a Marine Corps veteran that served in Operation Enduring Freedom. Mr. Crowder currently attends University of Houston Law Center. Congratulations James Crowder. Best wishes as you continue toward your law degree.

2016 Winner – Military Dependent Scholarship

The winner of the 2016 Military Dependent Undergraduate Scholarship is:

AMANDA OBLANDER

Amanda Oblander is a US Navy dependent whose husband is currently serving in Coronado, CA. Mrs. Oblander currently attends the University of Phoenix and is pursuing a degree in marketing. Congratulations Amanda Oblander. Best wishes as you continue in your studies.

More Information About Our Scholarship Opportunities:

For more information about how to apply for these scholarships in future years, please visit the scholarship pages:

Military Veteran Law Student Scholarship

Military Dependent Scholarship

Birchfield v. North Dakota Supreme Court Breath Test

Should Drivers Face Criminal Charges for Refusing a Breathalyzer Test?

By | DWI

SCOTUS Hears Oral Argument in Birchfield v. North Dakota

Birchfield v. North Dakota Supreme Court Breath TestOn April 20, 2016, the Supreme Court of the United States (“SCOTUS”) heard oral arguments in Birchfield v. North Dakota, a case that consolidates Birchfield with Bernard v. Minnesota and Beylund v. Levi, where the SCOTUS will determine whether the government may, without a warrant, make it a crime for a motorist to refuse to take a blood-alcohol test. Currently, thirteen states make it a crime to refuse any form of drunk-driving tests (breathalyzer, field sobriety, etc.). Birchfield comes on the heels of the 2013 Missouri v. McNeely case, where the SCOTUS held that if police have time, they should get a warrant before taking an invasive test of a suspected drunk driver. Let’s take a look at each consolidated case to understand the big issue before the Supreme Court.

Case #1: Birchfield v. North Dakota

In Birchfield, motorist Danny Birchfield drove his car off of a North Dakota road and subsequently failed a field sobriety test and a preliminary breath test, given by the state highway patrol. At that point Birchfield was arrested, told he had to take another more invasive chemical test, and informed of North Dakota’s implied consent rule. In North Dakota, any individual who operates a motor vehicle on any public or private road in the state is deemed to have consented to a chemical test for alcohol in the blood stream. Birchfield refused to submit to any further testing and was charged with both DUI and Failure to Submit to chemical testing. Birchfield filed several appeals, arguing that North Dakota’s implied consent law is unconstitutional under the 4th Amendment of the United States Constitution. Birchfield is opposed to “refusal” being a crime all by itself.

Read the brief in Birchfield here.

Case #2: Bernard v. Minnesota

In Bernard, police confronted a man who smelled of alcohol on a public boat ramp and asked him to consent to field sobriety tests. Bernard consented to a breathalyzer test after being told of the criminal penalties for refusal. Under Minnesota’s implied consent law, it is a criminal offense for a driver who has been arrested on probable cause for driving while impaired to refuse a chemical test. Minnesota argues that a warrantless breath search is constitutional under the “search incident to an arrest” doctrine. On the other hand, Bernard argues that a breathalyzer is not a valid search incident to an arrest because the search does nothing to further officer safety or to preserve evidence.

Read the brief in Bernard here.

Case #3: Beylund v. Levi

In Beylund, law enforcement observed a car driving erratically and stopping in the middle of the road. The police asked defendant Beylund to consent to chemical testing. At trial, Beylund argued that the test imposed an unconstitutional condition on his driver’s license.

Read the brief in Beylund here.

The Big Issues—Implied Consent or Criminalization of a Constitutional Right?

The highest court will determine whether in the absence of a warrant, a state can make it a crime, in and of itself, for a person to refuse to take a chemical test (blood, breath and urine) to detect the presence of alcohol in the blood? The Supreme Court will likely be examining the following questions to determine the answer to that question:

  • When drivers obtain a driver’s license from a state agency, does a driver impliedly consent to invasive chemical testing to detect the presence of alcohol?
  • Is refusing an invasive chemical test criminal in and of itself?
  • Do citizens have the constitutional right to refuse an invasive chemical test without penalty?
  • Do states have a compelling interest in protecting public roadways from drunk driving so that they may order chemical testing for suspected drunk drivers even without a warrant?
  • Can a government benefit (such as driving on public roadways) be conditioned upon search requirements, even if the search is an invasive chemical test?

Precedent Case: Missouri v. McNeely

Driving While Intoxicated and invasive chemical testing are not new topics to the SCOTUS. In 2013, the Court heard Missouri v. McNeely. Defendant McNeely had been arrested for DUI after failing field sobriety tests. He refused to take a breathalyzer, so law enforcement transported him to a hospital where his blood was removed against his will. After several appeals and suppression hearings, McNeely was heard by the SCOTUS. Chief Justice Sonia Sotomayor reiterated that a blood draw “is an invasion of bodily integrity that implicates the most personal and deep-rooted expectations of privacy.” Although the SCOTUS noted that from time to time cases may arise that will allow for a warrantless blood alcohol test, the Court ultimately held, “in drunk driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.”

What Will the Supreme Court Say About Warrantless Breath Tests?

Several national organizations, such a Mothers Against Drunk Driving (see the MADD brief here) and the American Civil Liberties Union (read the ACLU brief here), have filed amicus “friends of the court” briefs for this case arguing for and against the constitutionally of implied consent laws. In the past decade, 112,998 people have been killed in alcohol-impaired driving crashes. With grim statistics underpinning many of the individual states’ implied consent laws, will the Supreme Court overturn or add to McNeely? It will be very interesting to see how the SCOTUS squares this case with the precedent case law and which legal theory they will select to reach a conclusion.

HIPAA Medical Record Search Warrant DWI

HIPAA Does Not Bar Admissibility of Private Medical Records in Criminal Case

By | DWI, Evidence

Does HIPAA Impact Fourth Amendment Standing When the State Obtains Medical Records in a Criminal Investigation?

HIPAA Medical Record Search Warrant DWIWe’ve all signed the “HIPAA” privacy statements at the doctor’s office before treatment. The HIPAA Privacy Rule mandates nationwide standards to protect our medical records and personal health information by establishing safeguards, such as disclosure rules, patient authorization, and uniform protocols for the electronic transmission of medical data. HIPAA also grants patients the right to their own health information, but what about others? Does HIPAA prohibit the release of health information in a criminal investigation? What if that information is obtained via a grand jury subpoena?

State v. Huse (Tex. Crim. App. 2016)

One Month After Car Accident, Man is Charged with DWI

On February 13, 2010, Hayden Huse ran off the road and crashed into a cotton field at two in the morning. When law enforcement responded to the scene, they smelled alcohol on Huse’s breath. Instead of giving him a sobriety test, they transported him to the local hospital for injuries he sustained. During the medical exam, the hospital ran routine blood work. A few hours later during an interview with law enforcement, Huse admitted that he consumed six or seven alcoholic drinks the previous evening. However, he refused law enforcement’s request for a breath or blood specimen for blood alcohol analysis.

One month later, based upon the police report taken of Huse’s car accident, a Lubbock County Assistant District Attorney filed an application for a grand jury subpoena to obtain Huse’s medical records from the hospital, even though no grand jury had been investigating Huse. The hospital complied with the subpoena, providing Huse’s medical records, along with a business records affidavit. The records revealed that approximately two hours after the car accident, Huse’s blood alcohol concentration was .219—an amount well above the legal limit.

Huse Files a Motion to Suppress the Evidence

Huse filed a motion to suppress the records at a suppression hearing. The trial court granted his motion to suppress on the grounds that the records were obtained in violation of the Fourth Amendment and that the Assistant District Attorney misused the grand jury subpoena process. The State appealed to the Seventh Court of Appeals, which reversed the trial court’s suppression order because “[Huse] lacked standing to raise a Fourth Amendment challenge…and [because] the State did not acquire [Huse’s] medical records through an unlawful grand jury subpoena.” State v. Huse, No. 07-12-00383-CR, 2014 WL 931265 (Tex. App.—Amarillo Mar. 6, 2014). Huse filed a petition to the Court of Criminal Appeals for a discretionary review of his case.

The Two Big Issues for The Court of Criminal Appeals

The Court of Criminal Appeals set out to determine whether the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) impacts Fourth Amendment standing when the State obtains medical records in a criminal matter, and, whether the State acquired Huse’s records via a grand jury subpoena that potentially violated HIPAA.

The Fourth Amendment and Reasonable Expectation of Privacy

Under the Fourth Amendment, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. CONST. amend. IV. “The provision protects people, not places.” Katz v. United States, 389 U.S. 347, 351 (1967). In order to raise a Fourth Amendment claim, a person must have legal standing, that may be “predicated on…a reasonable expectation of privacy principle.” United States v. Jones, 132 S.Ct. 945 (2012); Florida v. Jardines, 133 S.Ct. 1409 (2013).

State v. Hardy: The Precedent Case for the CCA

In Hardy, the CCA recognized that when the State itself extracts blood from a DWI suspect, and then subsequently conducts a blood alcohol analysis, then two “discrete searches” have occurred for a Fourth Amendment analysis. State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997). The State neither extracted the sample nor conducted the blood alcohol analysis. As a result, the CCA concluded that the “Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on its own initiative.” Skinner v. Railway Labor Exec. Assn., U.S. 602, 624 (1989). Further, “society [does not] recognize a reasonable expectation of privacy in privately-generated and maintained medical records that would show the result of a blood alcohol analysis [in a DWI investigation].” Hardy, 963 S.W.2d at 525-27.

The CCA Decides Whether HIPAA Trumps the Holding In Hardy?

Here, the CCA says that the State neither extracted nor analyzed Huse’s blood sample—the third-party hospital did. Huse, therefore, has no Fourth Amendment standing because he had no reasonable expectation of privacy in his privately-generated and maintained medical records. Further, “whatever interests society may have in safeguarding the privacy of medical records, [such interests] are not strong to require protection of blood-alcohol test results taken by hospital personnel solely for medical purposes after a traffic accident.” Id. But what about HIPAA? Does HIPAA trump the holding in Hardy?

The CCA explains that while HIPAA “might support a broader claim that society recognizes that patients have a legitimate expectation of privacy in their own medical records, generally, HIPAA does not undercut the Court’s holding in Hardy.” Further, the CCA states, “HIPAA expressly permits the disclosure of otherwise protected health information when it is sought by grand jury subpoena.”

In sum, Huse had no expectation of privacy in third-party generated and maintained medical records for a Fourth Amendment claim, and, no provisions in HIPAA specifically deny the disclosure of health information in the event of a criminal investigation. The CCA affirms the judgment Seventh Court of Appeals that Huse’s medical records shall not be suppressed.

Difference in Deferred Adjudication Straight Probation in Texas

What is the Difference Between Deferred Adjudication and Straight Probation?

By | Criminal Defense

Probation in Texas: Make Sure You are Headed Down the Right Path. What is Deferred Adjudication?

Difference in Deferred Adjudication Straight Probation in TexasWhen we are counseling new clients, we routinely address the punishment range that is available for the charged offense and whether probation is an option in their case.  It is important to note that all criminal offenses (except class C citations) are punishable by incarceration. However, first-time offenders and those charged with misdemeanors and non-aggravated felonies will often receive probation when prosecutors, judges, and juries agree that community supervision (probation) is a better alternative to jail time in the given situation.  For some offenses, however, probation is not an option (see our previous article on 3g offenses in Texas).

For those of you that prefer the bullet points up front, here is the short answer regarding the difference between straight probation and deferred adjudication:

Straight Probation in Texas

  • A person on Straight Probation in Texas must report to probation and complete required terms as set by the judge
  • In a straight probation, the case results in a Criminal Conviction
  • In straight probation, there is no option have the case expunged or non-disclosed upon completion of probation
  • If revoked on a straight probation, the penalty range is limited to the underlying jail term (see more below).

Deferred Adjudication in Texas

  • A person on Deferred Adjudication in Texas must report to probation and complete required terms as set by the judge
  • A Deferred Adjudication Case Does NOT result in a Criminal Conviction
  • In a Deferred Adjudication in Texas, there is an option to have the case non-disclosed upon completion (in most cases)
  • Under a Deferred Adjudication, If revoked, the judge may sentence anywhere in the full punishment range for the offense.

Deferred Adjudication vs. Straight Probation

In Texas, there are two types of community supervision in criminal cases: regular community supervision (or what is typically referred to as “straight probation”) and deferred adjudication (or “deferred probation.”) The difference between them is significant.  Chapter 42.12 of the Texas Code of Criminal Procedure covers with both types of probation in Texas.

Straight Probation in Texas

Let’s discuss straight probation first. As an example, assume someone is facing a charge for a Class A Misdemeanor. The penalty range is 0-365 days in jail. A straight probation offer from the state might look like this:

180 days in jail probated for 12 months.

If you agree to this offer and decide to take it, at the time of the plea the judge would ask for your plea of guilty, find you guilty and assess punishment at 180 days in jail. However, he would not require you to actually serve the jail time. Rather, he would probate the jail time and place you on community supervision for a period of 12 months. If you successfully complete the straight probation by reporting as directed and abiding by the terms and conditions, you would not be required to serve jail time for the conviction.

Straight Probation Comes With a Criminal Conviction

With straight probation, the most significant consequence is the conviction itself. When you plead guilty, the judge finds you guilty and a conviction is rendered. You avoid jail time by the sentence being probated, but the conviction remains on your record. A conviction, even if probation, can never be expunged from your record (regardless of the passage of time), so it is important to be wise with your decision to take a plea agreement in which straight probation is offered.

If you receive straight probation and fail to comply with the terms and conditions, the state can seek to have your probation revoked. At a revocation hearing or sentencing, the judge’s sentencing ability is limited by the underlying sentence received at the time of your original plea. So, in the above example, if you received a sentence for 180 days in jail probated for 12 months and are later revoked, the judge cannot sentence you beyond the 180 days (even though the penalty range for a class A misdemeanor is up to 365 days.)

Deferred Adjudication in Texas

Chapter 42.12 section 5 offers a different type of probation than the straight probation discussed above. It’s called deferred adjudication. Let’s go back to our example and say your facing a Class A Misdemeanor with a penalty range of 0-365 days. A deferred adjudication offer might look like this:

18 months probation

If you agree to this offer, you would plead guilty at the time of the plea. However, the judge would withhold finding you guilty and instead place you on probation for a period of 18 months. The reporting and terms and conditions would mirror those of a straight probation. If you successfully complete the probation and are discharged, you would not be required to serve jail time and you would not receive a criminal conviction.

Deferred Adjudication Does Not Come With a Criminal Conviction

With deferred adjudication, the most significant benefit is the case is dismissed upon discharge and no conviction rendered. You not only avoid jail time, but a conviction as well. You also may be eligible to file for a non-disclosure after discharge in most cases. Section 411.081 of the Texas Government Code is the law covering when and if you can file for a non-disclosure after discharge from deferred adjudication.

As with straight probation, if you receive deferred adjudication and fail to comply with the terms and conditions, the state can seek to have your probation revoked. However, there are some significant distinctions at a revocation hearing or sentencing on a deferred adjudication case. First, the judge’s sentencing ability is unlimited. This means he can use the entire penalty range. In our example, if you receive deferred adjudication for 18 months for a class A misdemeanor and are later revoked, the judge can sentence you anywhere in the penalty range of 0- 365 days. Also and more importantly, if revoked, the judge will find you guilty resulting in a conviction.

Contact Our Fort Worth Criminal Defense Firm if You Have Questions About Deferred Adjudication or Straight Probation in Texas

This was a rough overview of the different types of probation in Texas on criminal cases. Of course, there are always factors that can effect if and which type of probation is available as an option to you. The attorneys at Barnett Howard & Williams PLLC would be glad to discuss your situation and provide more information about these options. Please feel free to give us a call at (817) 993-9249.

NOTE:
DWI offenses are not eligible for deferred adjudication in Texas. If you’d like to see that changed, contact your state representatives’ offices and voice your opinion

12.44(a) and 12.44(b) State Jail Felony Reduction

Explaining Section 12.44 | Felony Reduced to Misdemeanor

By | Sentencing

What is Section 12.44(a) and Why Does it Matter to the State Jail Felony Defendant?

1244(a) and 1244(b) State Jail Felony Reduction Our Fort Worth criminal defense attorneys are routinely asked by family and friends of clients charged with State Jail Felony offenses about 12.44(a) and 12.44(b). Although it is sometimes elusive, our attorneys have had success in reducing State Jail Felony cases under Section 12.44. This article will discuss Sections 12.44(a) and 12.44(b) of the Texas Penal Code and explain why they are important to the State Jail Felony defendant.

State Jail Felony Punishment in Texas

In accordance with Section 12.35 of the Texas Penal Code, the confinement range for a State Jail Felony in Texas:

  • From 180 days to 2 years in a State Jail facility.

Any resulting conviction under Section 12.35 is considered a felony conviction for most purposes.

When a person is sentenced to confinement for a State Jail Felony offense, the sentence is served day for day. Aside from State Jail Diligent Participation Credit, a state jail sentence will last for every single day of the term, unlike a prison sentence, which may be cut short for parole or good time. For example, if someone receives a sentence for 12 months in state jail, that person will serve 365 actual days on the sentence.

What about 12.44?

Since parole and good time are not options for state jail time, Section 12.35 requires the defendant to serve that sentence day for day. However, section 12.44 of the Texas Penal Code allows for a reduction of the above consequences for someone charged with a state jail felony.

Sec. 12.44. REDUCTION OF STATE JAIL FELONY PUNISHMENT TO MISDEMEANOR PUNISHMENT.
(a) A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.
(b) At the request of the prosecuting attorney, the court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.

Please note section 12.44 has two subsections. The differences between them are significant.

What is the Difference Between 12.44(a) and 12.44(b)?

12.44(a)

Under 12.44(a), at the discretion of the court, a state jail felony can be punished as a Class A misdemeanor. If convicted, the conviction results in a felony conviction. However, if sentenced to confinement, the defendant is allowed to serve time the same as if he were convicted of a Class A misdemeanor. That means the defendant can serve his time in the local county jail as opposed to a State Jail facility. That also may allow the defendant to have access to good time offered by the county jail in his jurisdiction (e.g. In Tarrant County, this could result in 2 for 1 credit or 3 for 1 if the defendant is a trustee).

12.44(b)

Under 12.44(b), at the discretion of the prosecutor, a state jail felony can be converted to a Class A misdemeanor. If convicted, the conviction results in a misdemeanor conviction. If incarcerated, the defendant would serve his time in the county jail the same as described in the above paragraph.
Note: Both 12.44(a) and (b) require the sentence to be within the penalty range of a Class A misdemeanor (0-365 days confinement and a fine, if any, not to exceed $4,000).

Probation Under 12.44

Straight Probation and Deferred Adjudication probation are also allowed under both 12.44(a) and 12.44(b). Straight probation would result in a conviction for a felony if reduced under 12.44(a) and a conviction for a misdemeanor if reduced under 12.44(b). If you receive deferred adjudication probation under either a 12.44(a) or 12.44(b) reduction, a conviction can be avoided altogether if the probation is successfully completed. Any future probation revocation proceedings by the state would be limited at sentencing to the misdemeanor punishment provided by section 12.44 as discussed in the paragraphs above.

Note: A probated sentence under 12.44 cannot exceed 2 years – the maximum time allowed for a probated sentence for a Class A misdemeanor.

State Jail Felony Defense Attorneys, Fort Worth, Texas

Depending on the circumstances, if you or someone you know is charged with a state jail felony in Texas, Section 12.44 may be applicable. There are many factors that the prosecutor or judge will consider if your attorney requests a 12.44 reduction. It is important to discuss your specific circumstances with your attorney. Please feel free to contact Barnett Howard & Williams PLLC if you have questions.

Fort Worth Grand Jury Attorneys

The Big Needed Change To Grand Jury Selection

By | Grand Jury

Fort Worth Grand Jury AttorneysYears ago, I was employed as an assistant district attorney in a DA’s office out in West Texas. From time to time, I would oversee the grand jury and the presentation of felony cases for indictment. At the first of every month, the county would summon potential jurors from a random selection process to serve on the grand jury. The first fourteen (twelve to serve as grand jurors and two as alternates) who were not disqualified by statute were seated on the grand jury.

Those fourteen citizens were always different. Different ethnicity. Different gender. Different religions. Different socio-economic status. Most importantly, different political parties. The goal was to create an impartial jury of peers to review the evidence in criminal cases and determine whether probable cause existed for indictment.

You can imagine my surprise when I moved to the DFW area and discovered jurisdictions here which used the other method of selecting grand jurors.

Article 19.01 of the Texas Code of Criminal Procedure allows the “pick a pal” method wherein judges can hand pick “jury commissioners” who individually select citizens to serve on the grand jury. As you can imagine, there has been a serious influence of politics on the grand jury process a result of this practice. It’s hard to have an impartial grand jury when everybody comes from the same political party and economic sector of society.

Fortunately, House Bill 2150 was signed into law last month. On September 1, 2015, the “pick a pal” process will no longer be an option. Instead, the newly revised Article 19.01 will require all jurisdictions to apply the random selection process to the grand jury selection process.

This change is long overdue. An accused’s right to an impartial jury should be the same at the grand jury as it is at trial.