Seal DWI Conviction Texas

Denton County’s First DWI Non-Disclosure Granted

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Seal DWI Conviction TexasWhen Governor Abbott signed the new DWI sealing law allowing for first-time DWI convictions to be non-disclosed, we began to pull records for our past DWI clients to see if any of them were eligible to have their conviction sealed. We filed the first DWI non-disclosure petition in Denton County as soon as the law took effect in September 2017. Our client was exactly the type of person for whom this new law was written:

  • He was convicted of Class B DWI
  • He successfully completed all terms of his probation
  • More than 5 years have elapsed since he completed probation
  • He had no other arrests on his record either before or after this DWI conviction

Sealing a DWI with a BAC Exceeding 0.15

One of the wrinkles in our client’s non-disclosure petition involved his blood alcohol content. The new DWI sealing law does not allow DWI convictions to be non-disclosed if the person was convicted of having a BAC over 0.15 (Texas Penal Code Section 49.04(d)). Our client’s case involved a BAC over 0.15, but he was not convicted under Section 49.04(d), but rather under 49.04 without any finding of a particular BAC. Our client’s DWI case happened before the legislature added paragraph (d) to the DWI law in 2011. So, as we saw it, our client still qualified for the new sealing law.

The DWI Non-Disclosure Hearing

Having alleged all of the qualifying conditions in our petition, there wasn’t much to the hearing when the time came. The Denton County District Attorney did not oppose our petition and we were able to take the proposed order to the judge without the need for an evidentiary hearing. We were prepared with the offense report, clerk’s records, and criminal history for our client, but none was needed. The judge gladly signed the order for non-disclosure and our client became the very first person in Denton County to have his DWI conviction non-disclosed.

Our client, who has only had this one encounter with the criminal justice system, was thrilled that this uncharacteristic mistake can finally be put behind him. We look forward to helping more people seal their DWI convictions in both Tarrant and Denton Counties. To see if you might be eligible to have your DWI case sealed, contact our team today at (817) 993-9249.

*If you are a Texas attorney and need assistance drafting a petition or order for a DWI non-disclosure, please reach out and we will be glad to help.

DWI Jury Instruction Alcohol Burnett

Error to Instruct DWI Jury on Drug Intoxication When Not Supported By Evidence

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Is it Error to Provide a Jury with Instructions When the Statutory Language is not Supported by the Evidence?

DWI Jury Instruction Alcohol BurnettThe Court of Criminal Appeals recently handed down a case regarding the State’s ability to use the full statutory definition of “intoxicated” in a jury charge for DWI cases. The issue faced by the court was whether the trial court erred in providing the jury with portions of the statutory language that were not supported by evidence presented at trial.

Burnett v. State, Court of Criminal Appeals (2017)

The Facts—What Happened?

Burnett was arrested and charged with DWI after rear-ending a vehicle occupied by Bussey and Chappa. When Burnett exited his vehicle both Bussey and Chappa observed him to be intoxicated. Bussey and Chapa smelled the odor of alcohol on Burnett’s breath and noticed his speech to be slurred. Additionally, the first officer on the scene also noticed Burnett to have slurred speech and the odor of alcohol on his breath. Burnett told officers that he had not been drinking and consented to taking the standard field sobriety tests. Burnett showed signs of intoxication during the all three tests and was subsequently arrested.

In a search incident to arrest, officers found pills in Burnett’s jacket and a prescription pill bottle located in his car. The pills and prescription bottle were not photographed or admitted into evidence.

The State later charged Burnett with a Class B misdemeanor DWI and alleged that he was intoxicated “by not having the normal use of his mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of the substances, and any other substance into his body . . .”

Defendant’s Motion to Suppress—The Trial Court Granted Defendant’s Motion then Subsequently Admitted the Excluded Evidence as Same-Transaction Evidence.

One of the officers who saw the pills at the scene thought they were hydrocodone and was going to testify regarding such. The defendant filed a motion to suppress arguing that the officers should not be able to testify to what type of pills they found because the officers were not drug recognition experts. The trial court granted the motion to suppress.

Nonetheless, the following day at trial the pill discussion was brought up again. The state advised the Court that there was video evidence from the scene showing officer Coapland, officer Allred, and Burnett talking about the pills. Specifically, it showed that “Coapland found the pills in Burnett’s jacket, he gave them to Allred, who said that the pills looked like hydrocodone. Allred asked Burnett whether he had a prescription for the medication, and Burnett responded that he did.”

The State argued that the evidence of Burnett’s pill possession should be admitted into evidence as same-transaction contextual evidence. Over Burnett’s same objection the trial court admitted the pill evidence.

Then, when the court submitted the instructions to the jury, it included in the full statutory definition of the legal term “intoxicated,” which included not only intoxication by introduction of alcohol, but also by introduction of a drug (or a combination of alcohol and drugs).  Burnett objected to this definition, arguing that the proper instruction should not include language regarding drug intoxication because there was no evidence produced at trial to indicate that he had ingested any drugs at the time of his arrest.

The Court of Appeals Agreed with the Defendant—Holding that it to be Error to Submit the Entire Statutory Language.

On appeal, Burnett argued that the trial court erred in admitting evidence that he was in possession of hydrocodone and further argued that the trial court erroneously instructed the jury that it could convict him if it found that any substance other than alcohol intoxicated him.

The court of appeals agreed and held that the charging instrument must apply the law to the facts. In support they distinguished the facts in Burnett from those in Ouellette, a 2011 court of criminal appeals case.

In Ouellette, the defendant appeared intoxicated. After her arrest, officers found a drug that she expressly identified that was known to produce the same symptoms of intoxication as alcohol. Although there was no direct evidence that she consumed the drug, there was circumstantial evidence from which a rational juror could have found that she did based on her express identification of the drug and the officer’s testimony that the drug would produce similar symptoms. Thus, the jury charge in Ouellette reflected the law as it applied to the evidence.

The Court of Criminal Appeals Affirmed the COA Judgment and Agreed that the Jury Charge was Erroneous Since it did not Apply the Law to the Facts Produced at Trial.

The State appealed the appellate court reversal and argued that the jury charge should include the entire statutory definition regardless of the evidence presented at trial. More specifically, the State argued that the focus is only on whether the defendant is intoxicated, not the intoxicant itself. In support of this argument, the State referred to Judge Cochran’s dissenting opinion in Gray v. State, 152 S.W.3d 125, 136 (Tex. Crim. App. 2004) (Cochran, J., dissenting).

In response, Burnett argued that while the State only needs to allege that the defendant was “intoxicated” and is permitted to use the language of the entire statutory definition, it would be erroneous to provide the jury with a section of statutory language that is not supported by the evidence at trial. Burnett argued that ruling for the State would allow “such guessing [that] could ensnare thousands of innocent Texans, such as fatigued drivers and those with naturally bad balance, even though they never ingested any substance as required to prove intoxication.” Burnett also claimed that the State misinterpreted Judge Cochran’s dissent and would not apply.

The Court of Criminal Appeals agreed that the State misinterpreted Judge Cochran’s dissent; the dissent discussed pleadings rather than jury charges and thus, was not applicable. Furthermore, the Court declined to follow the State’s argument that in every case the full statutory language should be allowed regardless of evidence. The court reasoned that the trial court is responsible for ensuring the jury instructions set forth the law applicable to the evidence in the case. As such, the jury charge must be tailored to the facts presented during the trial.

The court also noted that a jury will still be permitted to consider whether the defendant is intoxicated by “any other substance” if there is evidence that the defendant ingested a substance that caused intoxication or there is circumstantial evidence for a rational juror to make an inference, like Ouellette.

Here, the Court determined that Burnett only showed signs of intoxication by alcohol—nothing else. The odor of alcohol was present on his breath, he had slurred speech and he failed the field sobriety tests. The fact that police later found pills that may have been hydrocodone was irrelevant because “there was no evidence as to what kind of drug hydrocodone is, whether it can cause intoxicating effects, or whether the symptoms of intoxication Burnett was experiencing were also indicative of intoxication by hydrocodone.” These criteria were the critical elements that were present in Ouellette but not in Burnett’s case. Accordingly, the court held the jury charge in Burnett’s case to be erroneous because it did not apply the law to the evidence presented at trial and it constituted harmful error.

Takeaways…

In any DWI case, if there is no evidence presented at trial that would suggest intoxication by drugs or vice versa by alcohol, then the defense should ask for the statutory language in the jury charge to be limited to only facts produced. Additionally, the mere fact that drugs are found is not enough, by itself, to have such language in the jury charge. If Burnett had not objected to the full statutory definition of intoxication, he could have been finally convicted based on evidence never presented at trial. (In Judge Richardson’s concurring opinion he also notes that there were no objections made to the evidence in Ouellette).

Judge Richardson Concurring Opinion

Presiding Judge Keller Dissenting Opinion

Judge Yeary Dissenting Opinion

Seal Texas DWI Non Disclosure HB 3016

New Texas Law Makes First-Time DWI Convictions Eligible for Sealing

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Expanding Eligibility for Orders of Nondisclosure for First-Time DWI and Other Offenses

Seal Texas DWI Non Disclosure HB 3016Let’s face it, a criminal record is not a good thing when it comes to employment opportunities and other things that require a background search. Even when the criminal offense is non-violent and unintentional, like DWI, it can negatively impact a person’s future. Our Texas lawmakers recognized this stigma and did something about it. This past legislative session (2017), Texas lawmakers from both sides of the aisle proposed legislation to help expand the opportunity to seal criminal convictions with an order of non-disclosure.

What is an Order of Non-Disclosure?

Having your record “sealed” is common verbiage used by laypersons. Under Texas law, this is referred to as non-disclosure. Orders of non-disclosure “seal” a criminal record from the eyes of the general public and allow a person to deny such record in most situations. However, the offense will remain visible to law enforcement, state and federal authorities, and employers in government fields.

Non-Disclosures Prior to House Bill 3016

Before the legislature acted in 2017, the Texas Government Code required a court to issue an order of nondisclosure of criminal records for a person receiving discharge and dismissal of certain nonviolent misdemeanors for which the person was placed on deferred adjudication community supervision (probation). The code also allowed for some “second-chance” considerations under limited circumstances. However, the Texas Government Code did not previously allow for nondisclosure of DWI offenses under any scenario.

What is HB 3016?

Governor Greg Abbott signed HB 3016 on June 15th, 2017. HB 3016 will be effective, retroactively, beginning September 1, 2017. This law amends and expands the Texas Government Code to allow a person convicted of nonviolent misdemeanors, including DWI’s, to petition the court for orders of nondisclosure under certain circumstances and alters some waiting periods.

HB 3016 also allows a person to petition for an order of nondisclosure of criminal history if that person was ineligible to receive an automatic order based solely on a judge’s affirmative finding that issuing such an order was not “in the best interest of justice.” If the offense was a misdemeanor punishable by a fine only an individual may petition for an order of nondisclosure immediately upon the date of completion of their sentence. However, if the misdemeanor was not punishable by fine only, they must wait until the second anniversary of the date of completing the sentence to petition.

See the full text of HB 3016 – Enrolled version.

Orders of Non-Disclosure for DWI Offenses

HB 3016 now allows a person convicted of a first-time Driving While Intoxicated offense with a blood-alcohol concentration (BAC) less than 0.15 to petition for an order of non-disclosure of criminal history related to that offense. However, there are certain criteria that must be met to be eligible to petition for a non-disclosure of a Texas DWI.

A person may petition to have a DWI sealed only if he/she:

  • has never been convicted of or placed on deferred adjudication community supervision (probation) for another offense—this does not include a traffic offense (punishable by fine only);
  • has successfully completed any imposed community supervision and any term of confinement;
  • has paid all fines, costs, and restitution imposed; and
  • the waiting period has elapsed:
    • 2 years if the person successfully completed a period of at least six months of driving restricted to a motor vehicle equipped with an ignition interlock device as a part of the sentence; or
    • 5 years if there was no interlock requirement as part of the sentence.

Additionally, the court will not issue an order of nondisclosure if an attorney representing the state presents evidence sufficient to the court that demonstrates that the underlying offense, for which the order was sought, resulted in a motor vehicle accident involving another person (this includes a passenger of the defendant).

When may you Petition the Court for an Order of Non-Disclosure for a DWI?

The law requires individuals to wait until the second anniversary of the date of completion of their sentence, if the person:

  • complied with all conditions of the sentence for a period not less than six months; and
  • was restricted to operation of a motor vehicle equipped with an interlock device for at least 6 months.

If the court did not impose the above conditions, they are required to wait until the fifth anniversary of the date of completion of their sentence.

NOTE: Having a first-time DWI sealed by an Order of Non-Disclosure will NOT prevent another DWI from being charged as a DWI (Misdemeanor Repetition).

What are the Disqualifying Factors for DWI Sealing?

A person may NOT have their DWI record sealed if:

  • The DWI was a 2nd or 3rd offense;
  • The DWI involved a finding that the Blood-Alcohol Content was greater than 0.15;
  • The DWI involved an accident involving another person;
  • The DWI was within the last 2 years (5 years if there was not interlock requirement)*

*If the waiting period has not expired, but all other conditions are met, the applicant must simply wait until the waiting period is complete.

Which Offenses are Specifically Excluded from Consideration for an Order of Nondisclosure?

Certain misdemeanors are not eligible for consideration for an order of nondisclosure, mostly intoxication related offenses, which include any misdemeanors under the:

  • Alcoholic Beverage Code §106.041 (possession and/or consumption of or selling alcohol to minors); or,
  • Penal Code § 49.04(d) (driving while intoxicated .15 or higher);
  • 49.05 (flying while intoxicated);
  • 49.06 (boating while intoxicated); or,
  • 49.065 (operating an amusement park ride while intoxicated).

Additionally, any conviction under Chapter 71 of the penal code (engaging in organized criminal activity) may not be non-disclosed.

Furthermore, a person will not be granted an order of nondisclosure and is not eligible to petition the court if the person has previously been convicted or placed on deferred adjudication probation for:

  • an offense requiring sex offender registration;
  • murder;
  • capital murder;
  • aggravated kidnapping;
  • trafficking/continuous trafficking of persons;
  • abandoning or endangering a child;
  • violation/repeated violation of certain court orders or conditions of bond in a family violence, sexual assault or abuse, stalking, or trafficking case;
  • stalking; or
  • any other offense involving family violence.

Results of HB 3016 and the New Non-Disclosure Law

HB 3016 makes it easier for persons with certain low-level nonviolent offenses, particularly DWI’s, to obtain employment and become productive members of society. However, subsequent offenders will remain accountable because law enforcement may still use the “sealed” conviction against subsequent offenses and certain entities will still be able to view the offense.

Contact our Criminal Defense Team Today to See if You Qualify to Have Your Record Sealed Under this Law

Contact Barnett Howard & Williams today and let our team help you determine whether you may be eligible for a non-disclosure under this law when it takes effect in September 2017. We are happy to provide a free consultation to walk you through the steps for sealing your record.  Call our attorney today at (817) 993-9249.

Texas Occupational Drivers License Rules

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

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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.

Community Caretaking Function Texas

Community Caretaking Function: Police May Stop without Reasonable Suspicion

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Community Caretaking Function TexasIn November of 2015, we wrote about State v. Byram, a DWI case out of Tarrant County. In Byram, the 2nd Court of Appeals held that a “hunched over” passenger in a vehicle was not enough to invoke the police “community caretaking” function to allow the police to initiate a traffic stop without reasonable suspicion of a violation.  The 2nd Court reversed the DWI conviction and remanded the case back to the trial court. The State appealed this decision to the Texas Court of Criminal Appeals, which issued its opinion today.

When May the Police Invoke the “Community Caretaking” Function to Make a Stop or Detention Without Reasonable Suspicion?

Byram v. State (Tex.Crim.App. 2017)

In this case, State argued that the police officer was engaged in his “community caretaking” function when he pulled the driver over. The State contends that this was a proper exercise of police authority and that the primary purpose of the stop need not be to investigate any alleged violation.

Reviewing the facts in the light most favorable to the trial court’s ruling (denying the suppression motion), the CCA agreed with the State and explained its view on the Community Caretaking function:

Local police officers frequently engage in “community caretaking functions,” totally divorced from the detection, investigation, and acquisition of evidence relating to the violation of a criminal statute. Cady v. Dombrowski, 413 U.S. 433, 441 (1973). “As part of his duty to ‘serve and protect,’ a police officer may stop and assist an individual whom a reasonable person—given the totality of the circumstances—would believe is in need of help.” Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999). However, because the reasonableness of a community-caretaking seizure sprouts from its dissociation from the competitive enterprise of ferreting out crime, “a police officer may not properly invoke his community caretaking function if he is primarily motivated by a non–community caretaking purpose.” Corbin v. State, 85 S.W.3d 272, 276-277 (Tex. Crim. App. 2002).

The Court went on to lay out a two-step test for determining whether an officer may properly invoke his community-caretaking function:

  1. whether the officer was primarily motivated by a community-caretaking purpose; and
  2. whether the officer’s belief that the individual needed help was reasonable.”*

*The standard for reasonableness is no different when the officer stops a vehicle to check the welfare of a passenger rather than the driver. Wright, 7 S.W.3d at 151.

In this particular case, the CCA held, “[the officer] saw a woman in a precarious situation, and acted reasonably to help her by first asking whether she was okay, and then conducting a traffic stop when his
question went unheeded. This is the sort of ‘sound, commonsense police work that reason
commends, rather than condemns.'”

DWI No Refusal Christmas Fort Worth

Twas the Night Before No Refusal Weekend in Tarrant County

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Tarrant County No Refusal Period to Begin on Christmas Eve

Tarrant County typically implements a No Refusal period during major holidays.  Being in the Christmas spirit, we thought that our No Refusal warning would be better if it rhymed.  Enjoy our Christmas No Refusal poem.

DWI No Refusal Christmas Fort Worth

Twas the night before Christmas, the police are all out,
Searching for drunk drivers that might be about.
They’ll be near the parties at restaurants and taverns.
They’ll pull your car over for bizarre driving patterns.
They’ll give the field test, “walk the line, heel to toe,”
And if you misstep, to the pokey you’ll go.
They’ll ask you to blow in the breath test device,
To see how much eggnog you’ve had on this night.
And if you refuse, to a magistrate they’ll dash,
To get a search warrant as quick as a flash.
So take an Uber this Christmas, a lesser price you’ll pay.
Don’t drink and drive on this No Refusal Holiday.

Birchfield v. North Dakota Supreme Court Breath Test

Criminal Penalties for Refusing a Breath Test—Are They Coming to Texas?

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Can Texas Charge a Person with a Crime for Refusing a Breath or Blood Test During a DWI Stop?

In Texas, when a person refuses to provide a breath or blood specimen when being arrested for alleged drunk driving offense, their driver’s license is typically suspended. But, can a state have a law that additionally makes it a crime to refuse a breath or blood test? In Birchfield v. North Dakota, the United States Supreme Court held that a state can attach a criminal penalty to those that refuse to submit to a warrantless breath test but they cannot for those that refuse to submit to a warrantless blood test.

In a previous blog post we discussed the oral arguments that took place in this case and briefed the three cases facing the court, Birchfield , Bernard and Beylund.  Birchfield had been criminally prosecuted for refusing a warrantless blood draw; Bernard had been criminally prosecuted for refusing a warrantless breath test; and Beylund, while not criminally prosecuted for refusing a test, submitted to a blood test after the officer told him the law required it. Birchfield v. North Dakota 579 U.S. ____ (2016).

U.S. Supreme Court Issues Opinion in Birchfield Upholding Criminal Penalty for Breath Test Refusal (But Not Blood)

SUPREME COURT DECISION – Birchfield v. North Dakota

First, the Court determined whether warrantless breath and blood tests were proper searches incident to arrest for drunk driving. The Court held that since “breath tests are significantly less intrusive than blood tests” and in most cases adequately serve law enforcement interests, the Fourth Amendment permits a warrantless breath test but not blood test as a search incident to arrest for drunk driving.

Next, the Court addressed the argument that when making the decision to drive on a public road, drivers are deemed to have given consent to submit to a blood test. Applying the Fourth Amendment reasonableness standard, the Court held that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Birchfield, 579 U.S. ____ (2016).

Finally, the Court applies these legal conclusions to the three cases.  In Birchfield, the Court held that the judgment affirming his conviction must be reversed because the warrantless blood draw was not a justified search incident to arrest and he was thus, threatened with an unlawful search. In Bernard, the Court held that Bernard had no right to refuse the breath test because it was a proper search incident to arrest. In Beylund, the Court vacated the judgment and remanded the case to the state court to reconsider Beylund’s consent given the partial inaccuracy of the officer’s statement that “the law required it.”

In conclusion, the Supreme Court held that States may enact laws that attach criminal penalties to the refusal to submit to a breath test but they may not enact such laws that will apply to refusal to submit a blood test. So what does this mean for Texas? Well, while we do not currently have laws in place that attaches a criminal penalty to refusal of a breathalyzer, the State could enact a law that makes it a crime to refuse to provide a warrantless breath test incident to arrest of drunk driving.

Field Sobriety Test Fort Worth

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

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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.

Exigent Circumstances Warrantless Blood Draw

Understaffing of Police Cannot Create the “Exigency” to Justify a Warrantless Blood Draw

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In a Warrantless DWI Blood Draw Case, State Offers “Understaffing of Police” as an Exigent Circumstance.

Exigent Circumstances Warrantless Blood DrawBonsignore v State (2nd Court of Appeals – Fort Worth, 2016)

After traveling eighty miles an hour in a forty miles per hour zone, Jeremy Bonsignore pulled into a Waffle House and started walking toward the restaurant. Unknown to Bonsignore, law enforcement had been following him for several minutes. Once the officer pulled into the parking lot, he activated his lights and began yelling at Bonsignore to stop walking. Bonsignore turned around, stumbled, and lost his balance. The officer noted the presence of a strong odor of alcohol and that Bonsignore’s eyes appeared glassy.

Bonsignore admitted to having a few drinks earlier in the day, which prompted the officer to conduct several field sobriety tests. Bonsignore failed them and then abruptly refused to do anymore tests or provide a breath or blood sample. Bonsignore was placed under arrest at 1:49 am. Dispatch informed the officer that Bonsignore had two prior DWI convictions, which could amount to Bonsignore being a repeat DWI offender, a felony offense. With this information in mind, the officer instructed a second officer to take Bonsignore to the hospital for a mandatory blood draw. The blood draw was conducted at 2:55 am. Bonsignore did not consent to the taking of his blood and the officer did not obtain a warrant.

Warrantless Blood Draw Issue at Trial

Before trial began, Bonsignore filed a motion to suppress the results of the blood draw, arguing that the blood draw was warrantless, and therefore, unconstitutional. The motion was never officially ruled upon, although the court did take the motion under advisement. During trial, when asked why he ordered the blood draw, the officer said that Bonsignore’s “two prior convictions were his only authority for obtaining the blood draw.” The officer did not attempt to obtain a search warrant, and he acknowledged that Bonsignore did not give his consent to a blood draw.

The officer testified that he relied solely on the statute, Texas Transportation Code 724.012, for authority to order the draw against Bonsignore’s will. Pleading guilty to the charges, the trial court issued Bonsignore a two-year sentence. Bonsignore appealed, arguing that his motion to suppress the evidence should have been ruled upon because the blood draw was taken without his consent and without a search warrant, violating the ruling in Missouri v. McNeely, 133 S. Ct. 1552 (2013). The State argues that (1) Bonsignore’s blood-alcohol level would dissipate over time, (2) he was a repeat felony offender, and (3) the police department was small and understaffed, and that obtaining a warrant in this case would have been overly-burdensome for the officers that night.

Is “Dissipation” an Exigent Circumstance to Justify a Warrantless Search?

In the wake of the McNeely case, the Second Court of Appeals must determine whether Bonsignore’s blood draw was constitutional, and, whether the State may rely on an exigency “emergency circumstances” argument as an exception to the Fourth Amendment.

Texas Transportation Code

Section 724.012(b)(3)(B) states that blood or breath samples may be required to be taken when the suspect is arrested for DWI and he refuses to give the specimen voluntarily, so long as the suspect has two prior DWI convictions, “although [the code] does not expressly authorize taking the specimen without a warrant.” State v. Swan, 483, S.W.3d 760, 764 (Tex. App.—Fort Worth 2016, no pet.).

However, “the explicit refusal to submit to blood testing overrides the existence of any implied consent and that implied consent that has been withdrawn by a suspect cannot serve as a substitute for the free and voluntary consent that the Fourth Amendment requires.” State v. Villarreal, 475 S.W.3d 784, 800.

Precedent Case Law: Missouri v. McNeely

“The natural metabolism of alcohol in the bloodstream [does not] present a per se exigent circumstance justifying an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” McNeely, 133 S. Ct. at 1556, 1558.

The Second Court of Appeals Weighs In

The Second Court of Appeals agreed with Bonsignore. “The police may not create their own exigency to make a warrantless arrest or search.” Parker v. State, 206 S.W.3d 593, 598 (Tex. Crim. App. 2006). “Exigent circumstances do not meet Fourth Amendment standards if [law enforcement] deliberately creates the [circumstances].” Id.

Here, the Court held, law enforcement knew that it was not a “No Refusal Weekend” in Texas. Further, the police department knew that it only had three officers on duty the entire night Bonsignore was arrested. In fact, understaffing the department was a typical occurrence. There was nothing out of the norm about the number of officers on duty that night. “Deliberately scheduling an insufficient number of patrol officers on an evening shift does not constitute an exigent circumstance.” State v. McClendon, NO. 02-15-00019-CR, 2016 WL 742018 (Tex. App.—Forth Worth, Feb. 25, 2016, no pet.).

Additionally, the department had a protocol for obtaining warrants, even in the absence of magistrates “on call.” Also, there was no earth-shattering emergency or problem that prevented the officers from making attempts to secure a warrant for Bonsignore’s search. The Court makes a point to highlight the efficiency of fax machines for the purposes of securing warrants, “thanks to the fax machine, [law enforcement] could …request a search warrant” and “thanks again to a fax machine…once [law enforcement] had the search warrant, [they] could fax it directly to a hospital instead of driving [the warrant] there.” The argument that the police department is small was unpersuasive for the Second Court of Appeals. For these reasons, the Second Court of Appeals reversed the trial court’s ruling, and remanded the case to the trial court for a new trial.

Preserve Appeal in DWI Blood Draw Case

Warrantless Blood Draw Case Turns on Defense Failure to Preserve Appellate Issue

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Court of Criminal Appeals Considers Whether Defense Failed to Preserve Appeal

Preserve Appeal in DWI Blood Draw Case

Smith v. State (Tex Crim. App. 2016)

Warrantless Blood Draw Provides Evidence of DWI

William Smith was stopped by police for driving without a seatbelt. Immediately, law enforcement suspected Smith of driving under the influence because of the “extremely strong smell of alcohol” coming from Smith. Accordingly, law enforcement administered several field sobriety tests and determined that Smith “exhibited clues of intoxication.” Smith became belligerent after being arrested, and refused a breathalyzer. Law enforcement searched Smith’s car incident to his arrest, finding three open containers that were “cold to the touch.” Dashboard camera footage captured the entire stop.

Law enforcement decided to transport Smith to a local hospital for a blood draw because a quick check of Smith’s ID showed that he had two prior DWI convictions. The blood sample taken at the hospital reflected a blood-alcohol concentration of .21 grams of alcohol per 100 milliliters of blood—well above the legal limit of .08. Smith elected a bench trial.

Defense Counsel Argues that Blood Draw was Unconstitutional, Trial Judge Seems to Agree

At trial, the State called a forensic scientist to testify about Smith’s blood sample. The forensic scientist testified that Smith’s blood alcohol level exceeded the statutory minimum of .08. Shortly thereafter, there was discussion between the judge and counsel about Texas case law in regards to whether the court must have an “order” signed by a judge or magistrate in order for a blood alcohol test to be admitted into evidence. The defense counsel stated, “I would…object…on constitutional grounds [because] there should be a written order [in evidence].” The State replied that law enforcement was “operating under the laws of the State.” The judge seemed to agree with defense counsel, “No…the legislature allows for this…but that doesn’t mean the law is constitutional.” The judge decided to “carry” the constitutional issue so that each side could research and make a formal brief before the court. However, at the end of the trial, Smith was convicted of DWI. The judge stated the “video of [Smith] showed signs of intoxication, but the judge was surprised…that [Smith]…did as well as he did on the [field sobriety tests]” given the .21 blood alcohol concentration. The judge sentenced Smith to twenty-five years imprisonment. There were no further objections on the record made by defense counsel post-judgment.

Appeal Turns on Lawfulness of the Blood Draw

On appeal, the court of appeals reversed Smith’s conviction because the blood sample was obtained without a warrant, violating the Fourth Amendment. State appeals to the Court of Criminal Appeals, arguing that Smith did not preserve error at trial with regard to his Fourth Amendment issue, and as a result of the failure, Smith was precluded from raising a constitutional argument on appeal.

The Issue Before the CCA – Did the Defense Preserve Appeal of the Blood Draw Issue?

The CCA must determine whether defense preserved error so that the fourth amendment search and seizure issue could be raised on appeal. To preserve error, defense counsel must obtain a ruling on the complaint, or object to the trial judge’s refusal to rule.” Tex. R. App. P. 33.1(a)(2) However, “even evidence that is improperly admitted is considered in determining whether the evidence is sufficient to support a conviction.” Soliz v. State, 432 S.W.3d 895, 900 (Tex. Crim. App. 2014).

The CCA Holds that Appellate Issue was NOT Preserved

Here, the CCA determined that the trial judge declined to rule on the Fourth Amendment constitutional issue at the time, but decided to “carry” the issue. Garza v. State, 126 S.W.3d 79, 83 (Tex. Crim. App. 2004). The CCA says that although the trial judge admitted the blood-alcohol test results, he did not rule on Smith’s initial objection, and thus, error was not preserved in this case. “In any event,” says the CCA, “there was…evidence to support [Smith’s] conviction aside from the blood-test results.” “Smith never asked for a ruling on the [constitutional issue], nor did defense counsel object to the trial judge’s failure to rule. In sum, failure to preserve error on a fourth amendment search and seizure argument for warrantless blood draws in DWI cases precludes a defendant from raising the constitutional argument on appeal.