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DWI

No Refusal Weekends for DWI in Fort Worth, Texas

No Refusal Weekends in Texas | DWI Blood Search Warrant

By | DWI

What you need to know about No Refusal Weekends in Texas | Fort Worth DWI Attorneys

No Refusal Weekends for DWI in Fort Worth, TexasThroughout the year, as various holidays approach (Christmas, New Year’s, Super Bowl weekend, 4th of July, etc.), we receive questions about “No Refusal Weekends,” in which police agencies crack down on driving while intoxicated or DWI. It is important that Texas motorists understand the rules of the road, so that every holiday season remains merry and bright. Many have seen the “No Refusal” notices on electronic road signs, heard the “No Refusal” advertisements on the radio, or watched stories on the news related to “No Refusal” for suspected drunk driving. What is “No Refusal” and how does the law impact your holiday travel? Understanding a few basic things about the law could help you in the event of a traffic stop or a detention by a law enforcement officer.

What is No Refusal Weekend?

No Refusal Weekend refers to a short period of time, typically a holiday weekend or the weekend of a special event, such as the Super Bowl, where law enforcement advertises the ability to conduct routine traffic stops, detaining motorists for suspected DWI. During the stop, law enforcement requests a blood or breath sample, and, if the motorist refuses to comply, law enforcement immediately contacts a judge or magistrate who is designated “on call” during the No Refusal time frame. If the law enforcement officer conveys to the judge that (1) there was reasonable suspicion to detain the motorist for a traffic or criminal offense, and, (2) there is probable cause to believe the motorist is driving under the influence of drugs or alcohol, then the judge quickly issues a search warrant for the sample. Tex. Transp. Code §§ 724.011(a), 724.012(b), 724. At that point, law enforcement may call for a phlebotomist to take the sample on site, or may transport a motorist to a facility to obtain the sample. If all goes according to plan, “no refusal” speeds up the process by which law enforcement obtain samples used for DWI/DUI arrests. Further, the sample becomes evidence for trial.

What is the purpose of No Refusal Weekend?

The entire No Refusal process from detention to arrest is faster in theory, the goal being to catch motorists who are driving under the influence quickly, and to capture the highest blood alcohol content (“BAC”) possible. In Texas, a BAC level of .08 is considered legally intoxicated. No Refusal Weekend differs from a DWI stop on regular days by it’s speed — the quick phone call to an “on call” judge who is waiting by the phone to issue warrants — and it’s deference to law enforcement in the moment. So what does this mean for you, the Texas motorist?

You have the right to refuse blood and breath tests initially.

The term No Refusal sometimes confuses motorists. Many believe they cannot refuse a law enforcement officer’s request for a sample during a No Refusal period. Not true. On No Refusal Weekend motorists still have the right to refuse to provide blood and breath during a traffic stop. However, if law enforcement obtains a search warrant for blood, the motorist must comply; failure to comply may result in additional charges. Once the officer has a warrant in hand, the rules change. But before the officer obtains a warrant, you can refuse to provide breath or blood and you may refuse to submit to field sobriety tests. For notifications about when No Refusal Weekends begin in the Dallas Fort Worth area, and to know your rights if you are stopped by an officer, download our free App from the App Store or Google Play — know your rights before you go out!

*Note: Refusal of a breath or blood test may result in temporary loss of driving privileges, even if the officer later obtains a warrant to conduct the search.  The courts will typically grant an occupational driver’s license to work and household tasks.

Warrantless searches for blood alcohol content in DWI cases violate the Fourth Amendment.

The No Refusal law comes from an “implied consent” provision in the Texas Transportation Code. The 2007 law states, “if a person is arrested for…operating a motor vehicle in a public place…while intoxicated…the person is deemed to have consented…to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.” Tex. Transp. Code §§ 724.011(a), 724.012(b), 724. However, in 2014, the Texas Court of Criminal Appeals held that “warrantless, nonconsensual testing of a DWI suspect’s blood does not…fall within any recognized exception to the Fourth Amendment’s warrant requirement, nor can it be justified under a…Fourth Amendment balancing test.” State v. Villareal, PD-0306-14 (Tex. Crim. App. 2014).  See also, the US Supreme Court’s opinion in Missouri v. McNeely. In summary, a motorist may refuse a blood or breath test upon an initial request by law enforcement, but after a warrant is obtained from a judge, a motorist may not refuse at that point because it is mandatory—hence the name No Refusal.

Please take the time to know your responsibilities and rights before heading out on No Refusal Weekends in Texas. Download our App on the App Store or on Google Play for the latest information on No Refusal Weekends. Have a safe and happy holiday season! This article is for educational purposes only and does not take the place of legal advice. If you are in need of a DWI attorney, please contact our office for a free consultation at (817) 993-9249.

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Public Intoxication Charges in Texas

What is the Punishment for Public Intoxication in Texas?

By | DWI

Is a Texas Public Intoxication charge a serious offense? What is the Possible Punishment for a PI in Tarrant County?

Public Intoxication Charges in TexasWe often receive calls or emails from people in Tarrant County who have been arrested for or cited with Public Intoxication (PI) in Fort Worth. Typically, they contact us to determine how serious a PI charge is in Texas and what the possible punishment might be. They want to know whether this is something they should handle on their own or whether they need a criminal defense attorney to help.

Generally, Public Intoxication in Texas is a Class C misdemeanor. Some might tell you that a Class C misdemeanor is the same as a traffic ticket and that is somewhat true. However, some Class C convictions can have a much larger impact on your future than a simple speeding violation. So when someone asks me whether they need an attorney to help them handle a PI, I tell them yes. You won’t need to pay an arm and a leg, but a criminal defense attorney can help ensure that your rights are protected throughout the process and can, hopefully, set your case up for a dismissal and an expunction down the road.

Public Intoxication Punishment When the Offender is 21 Years of Age or Older

Section 49.02(c) of the Texas Penal Code provides that Public Intoxication in Texas is a Class C Misdemeanor, which is punishable by a fine not to exceed $500.00. However, if a person has two prior Public Intoxication convictions on their record, a third PI can be enhanced to a Class B misdemeanor, which has a range of punishment of up to 180 days in the Tarrant County jail and a fine up to $2,000. This enhancement provision is one of the big reasons that it pays to hire an attorney for each and every Public Intoxication violation in Texas.

Should You Plead Guilty to a Public Intoxication Charge in Texas?

Sure it is easy to just plead guilty, pay the fine, and get on with life. However, a conviction for a PI, even though it is only a Class C offense, can have a lasting negative impact on your job prospects, military or college admissions, and more. As stated above, a PI conviction can also count toward a future enhancement charge or possible even evidence during sentencing in a DWI trial. If you do plead guilty, please do so after consultation with a criminal defense attorney in your area.

Public Intoxication Punishment When the Offender is Under 21 Years Old

There are different rules for persons under 21 in Texas. As you probably know, person under 21 are not allowed to consume any amount of alcohol, so the legislators drafted special rules for them. Section 49.02(e) of the Texas Penal Code Section relates to minors and states that minors would face the same punishment as if they committed an offense under Section 106.071 of the Texas Alcoholic Beverage Code. Here are the highlights for you:

  • A person under 21 can be enhanced to a Class B misdemeanor for a 3rd PI, just like a person over 21 can
  • A first time conviction for Public Intoxication can result in a driver’s license suspension.
  • The fine for PI for a person under 21 is between $250 and $500.
  • Mandatory community service.
  • Alcohol education course or alcohol awareness program.

Fort Worth Public Intoxication Defense Attorneys

If you have been arrested in Tarrant County for Public Intoxication, contact our Fort Worth public intoxication defense attorneys today for a free consultation of your case. We can help you get your PI dismissed and then help you get the entire thing expunged from your record.  Call us today at (817) 993-9249.

Community Caretaking Fort Worth

“Hunched Over” Passenger Not Enough Distress to Invoke the Community Caretaking Exception

By | Criminal Defense, DWI

Community Caretaking Fort WorthWhile conducting a preventative patrol on the Fourth of July in 2013, a Fort Worth police officer stopped at a red light beside Cameron Byram’s vehicle. Both vehicles had the windows rolled down. The officer testified at trial that he noticed a female passenger in Byram’s car “hunched over…[and that he]…didn’t see any movement at all [from] the female.” The officer smelled alcohol coming from Byram’s car, and felt Byram was “not attending to the female passenger.” The officer shouted over to Byram, asking if she was alright, but Byram faced forward and drove away when the light turned green. Believing the female passenger needed medical attention, coupled with Byram’s actions “as an attempt to avoid contact with the police,” the officer stopped Byram’s car to conduct traffic stop. The officer checked on the passenger and called for medical attention, which she later refused. Next, the officer investigated and arrested Byram for driving while intoxicated (DWI). The officer testified that Byram had not committed a traffic offense, nor were there any technical violations on Byram’s car—he only stopped the car to perform a safety check.

Byram v. State (2nd Court of Appeals – Fort Worth, 2015)

***UPDATE – This case was REVERSED by the Texas Court of Criminal Appeals in 2017. See opinion.

After his motion to suppress the evidence for the DWI charge was denied, Byram entered a guilty plea. The trial court assessed punishment at ninety days in jail and a $750 fine, but suspended the sentence, placing him on community supervision for eighteen months. Byram appealed.

The issue before the Fort Worth Court of Appeals is whether the community caretaking exception to the Fourth Amendment applies to the facts of the case, or, whether the police officer had reasonable suspicion to stop Byram.

The Fourth Amendment provides a safeguard against unreasonable searches and seizures. U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). A warrantless arrest is considered unreasonable unless it fits into an exception, such as the community caretaking exception. Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 2135 (1993); Torres, 182 S.W.3d at 901. A search or seizure “is not unreasonable” when community caretaking is the goal, however, the exception is “narrowly applied” in the “most unusual of circumstances.” Wright, 7 S.W.3d at 152.

“Courts consider four non-exclusive factors in determining whether the officer’s belief that the defendant needed help was reasonable: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others.” Corbin v. State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002).

First, the Court of Appeals concludes that the passenger did not exhibit distress. “The passenger did not appear to be in any great distress, she was located in a busy area of town where there were nearby hospitals, she was not alone [in the car], she was in public, and she did not appear to be a danger to herself or others.” Further, the Court of Appeals states, “We…cannot conclude that the…community caretaking exception, when applied to a hunched over passenger…indicates that the passenger presented a danger to herself or others.”

Second, the Court of Appeals determines that the officer lacked reasonable suspicion to be able to perform a safety check. “[While] we do not question the good faith of [the officer’s] subjective suspicion that Byram might have been involved in an alcohol-based offense…so long as consumption of alcohol is not illegal…permitting…investigation of persons for alcohol-based offenses solely on whether the odor of alcohol is present invites unwarranted police intrusions.” Byram’s traffic stop violated his Fourth Amendment rights.

Justice Sue Walker dissents, stating the passenger was exhibiting signs of distress because she “was not moving and appeared unconscious.” The passenger was also in a vehicle driven by a man “who appeared unconcerned about her well-being.” The passenger’s access to assistance was doubtful because Byram did not respond to the police officer’s question about her condition. Lastly, the passenger was a danger to herself because she appeared unresponsive and unable to ask for help. “Thus, all four factors…support the reasonableness of the officer’s belief that she needed assistance.”

Law enforcement officers must abide by local, state and federal procedural and substantive laws when conducting traffic stops and arrests. If you or a loved one is facing DWI charges or traffic violations, please contact our office today for a free consultation at (817) 993-9249.

Fort Worth Keller DWI Attorneys

DWI Intox Manslaughter Case Reversed Due to Drunk Victim

By | DWI

Causation Difficult to Prove In DWI Intoxication Manslaughter Case | Fort Worth DWI Attorneys

Fort Worth Keller DWI AttorneysOne of the key issues in any criminal case is causation. In order to be found guilty of a crime, a defendant’s actions must be found to have been the cause of the criminal act. While causation may seem like a simple thing to prove, causation may depend as much on the actions of the victim as on the actions of the defendant.

Saenz v. State (14th Court of Appeals, August 2015)

FACTS: Monika Saenz was driving her truck around 3:00 a.m. when she struck Jose Torres, Jr., killing him. Blood drawn over an hour after the accident yielded a blood alcohol concentration (BAC) of .172 for Saenz. The autopsy of Torres determined that his BAC was also .172 at the time of the accident and that he had used marijuana and cocaine prior to his death.

Saenz was convicted of intoxication manslaughter and accident involving injury or death. There was no question as to whether Saenz’s truck hit Torres. Saenz’s only defense was concurrent causation: If Torres’ conduct was clearly sufficient to produce the accident that resulted in his death, and Saenz’s conduct was clearly insufficient to produce that result, then Saenz should be acquitted under the theory of concurrent causation.

Saenz pointed to many features of Torres’ conduct that were sufficient to cause the accident. He was walking in the road in dark clothes while intoxicated in the middle of the night; there was no evidence that Saenz’s car ever left the roadway; Torres was walking on the wrong side of the road; and Saenz was not speeding at the time of the accident. Saenz’s position was that her driving while intoxicated was insufficient to cause Torres’ death because even a sober driver would have struck and killed Torres given his conduct.

As part of her concurrent causation defense, Saenz attempted to admit evidence of Torres’ .172 BAC. However, the medical examiner refused to state his opinion that Torres’ .172 BAC would have affected his normal use of physical or mental faculties. As a result, the trial court did not allow admission of the evidence regarding Torres’ BAC.

On appeal, the Texas Fourteenth Court of Appeals questioned why the medical examiner would refuse to concede that a BAC of more than twice the legal limit for driving may have affected Torres’ use of his mental or physical faculties. Furthermore, the Court noted that the standard for public intoxication is that an individual is intoxicated to the degree that he may endanger himself or others. According to the Court, the evidence of Torres’ .172 BAC may have led the jury to conclude that Torres was a danger to himself while walking in the middle of the road in the dark. Further, the Court held, the BAC evidence might have provided a possible explanation to the jury for why Torres failed to move from the roadway when the vehicle appeared.

After finding that the evidence of the victim’s BAC should have been admitted, the Court addressed the question of whether the failure to admit had harmed Saenz’s case. According to the Court, Torres’ BAC evidence was essential Saenz’s defense, and excluding the evidence denied Saenz the opportunity to properly present her concurrent causation defense. Because the Court determined that exclusion of evidence of the victim’s BAC was error that may have contributed to the conviction or punishment, the Court reversed the conviction for intoxication manslaughter and remanded the case for a new trial.

This case illustrates the complexity of the current causation defense, which is used in cases other than criminal cases, particularly property insurance cases. A Fort Worth Criminal Defense Attorney will be familiar with the concurrent causation defense and may be able to obtain an acquittal for his or her client by showing that the criminal act would have occurred even if the defendant had done nothing wrong because the victim’s conduct would have caused it.

DWI Lawyers Keller, Texas

Court Rejects Blood Alcohol Content Evidence by Unqualified Expert in DWI Case

By | DWI

Rejecting the “Science” of Retrograde Extrapolation in Texas DWI Cases

DWI Lawyers Keller, TexasMost people are familiar with the blood alcohol concentration (BAC) level for DWI: 0.08.  Most people, however, are not familiar with “retrograde extrapolation” and the role it plays in determining BAC. A Fort Worth Criminal Defense Attorney will understand the importance of retrograde extrapolation in a DWI case as evidenced by a recent decision from the Texas Fourteenth Court of Appeals.

VELIZ v. STATE (14th Court of Appeals, Houston, 2015)

FACTS: Houston Police Officer Joel Quezada arrested Luis Veliz shortly after midnight. Veliz admitted to having two beers to drink. After Officer Quezada obtained a search warrant, Veliz’s blood was drawn at 3:32 a.m. Veliz’s BAC was .081.

At Veliz’s trial, a criminalist from the police crime laboratory testified that, based on the .081 BAC at 3:32 a.m., Veliz’s BAC at the time of the stop would have been between 0.095 and 0.124. The jury found Veliz guilty of DWI.

On appeal, Veliz argued the criminalist’s testimony regarding his BAC was not admissible. This is where retrograde extrapolation became important.

The issue in a DWI case is the BAC at the time the defendant was driving. The blood sample is often obtained hours after the arrest. The process for estimating a BAC at the time of arrest based on a blood sample drawn later is known as retrograde extrapolation: a BAC at one point in time (3:32 a.m. for Veliz) is used to estimate the BAC at a time in the past (12:05 a.m. for Veliz).

Mata Factors Must Be Proven In Order to Apply Retrograde Extrapolation in Texas DWI Cases

Texas case law allows retrograde extrapolation testimony if the expert witness understands how to apply and how to clearly explain the process. In assessing such testimony, courts consider the time between the offense and the blood test, how many tests are administered and at what intervals, and any characteristics of the individual that were considered, including weight, gender, drinking pattern, tolerance for alcohol, amount of alcohol consumed, type of alcohol consumed, time of the last drink and what food was consumed. These are known as the Mata factors, based on the case in which they were first applied.

The Mata factors are important because different individuals’ bodies absorb and eliminate alcohol at different rates. And calculating a BAC retroactively requires knowing whether the individual was in the absorption phase (increasing BAC) or in the elimination phase (declining BAC). While not every factor must be known, Texas case law requires that if only one test is performed some time after the alleged offense, retrograde extrapolation is reliable only if many of the factors are considered.

The Court found the criminalist did not know many of Veliz’s relevant characteristics–his drinking pattern, the time of his first or last drink, or whether he had eaten recently. The criminalist testified she did not know the Mata factors for retrograde extrapolation. She also testified–incorrectly–that all she needed to perform a retrograde extrapolation was the time of the stop and the time of the blood draw. Because the criminalist did not understand and could not explain the subtleties of retrograde extrapolation, the court reversed the verdict and remanded for a new trial.

Some people believe refusing a blood test when arrested for DWI is a good strategy because any delay will result in a lower (and unreliable) BAC. However, a Fort Worth Criminal Defense Attorney will advise that a BAC based on blood drawn several hours after the arrest can be used to calculate a BAC at the time of arrest that will be admissible in court if the retrograde extrapolation appropriately considers some or all of the Mata factors.

On the other hand, if an individual is on trial for DWI, his or her Fort Worth Criminal Defense Attorney should carefully question any BAC evidence, particularly if it is based on a blood draw that occurred some time after the arrest. Retrograde extrapolation is not an exact science, and a jury will be allowed to hear testimony only if the extrapolation is appropriately performed and explained.

Contact the Experienced Fort Worth DWI Attorneys at Barnett Howard & Williams PLLC. (817) 993-9249

Our Tarrant County DWI attorneys are experienced in the science behind DWI and retrograde extrapolation for determining BAC. If you have been arrested for DWI, please contact us today for a FREE consultation of your case. Call (817) 993-9249 and set up an office consultation in Fort Worth, Keller, or Grapevine.

Fort Worth DWI Lawyers

Coming Soon: DWI Videos Releasable to Defendant

By | DWI

Legislative Changes to Texas DWI Laws | Fort Worth DWI Defense Attorneys

Fort Worth DWI LawyersDWI Update:  Some clients want to see their DWI video.  Some don’t.  Some want to take it home and show their friends and some want to dig a deep hole and bury it away forever.  Since the passing of the Michael Morton act, regardless of their clients’ wishes, criminal defense lawyers could not provide a copy of the DWI video without first obtaining a court order or prosecutor permission.  This all changes on 9/1/15.

This past legislative session, the Texas legislature passed House Bill 3791 which amends Chapter 2 of the Texas Code of Criminal Procedure by adding the following paragraph:

Art. 2.139. VIDEO RECORDINGS OF ARRESTS FOR INTOXICATION OFFENSES.

A person stopped or arrested on suspicion of an offense under Section 49.04, 49.045, 49.07, or 49.08, Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that contains footage of:

(1) the stop;

(2) the arrest;

(3) the conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test; or

(4) a procedure in which a specimen of the person’s breath or blood is taken.

Now (beginning 9/1/15) DWI defendants are entitled to receive a copy of the DWI video (if they want it).  There is no clarification regarding whether the defense attorney, or the DA may provide the copy, but at a minimum it may come from the police agency.

DWI Trial Lawyers | Free Consultations

Barnett Howard & Williams PLLC practices DWI defense in Fort Worth, Texas.  Our office is located in Sundance Square in downtown Fort Worth.  Call (817) 993-9249 for free consultation of your DWI case.

Fort Worth Double Jeopardy DWI

Intoxication Assault, Felony DWI, and Double Jeopardy

By | DWI

DWI Caselaw Update | Fort Worth Criminal Defense Lawyers

Fort Worth Double Jeopardy DWIThe Fifth Amendment protection against double jeopardy is often viewed as a guarantee against having to stand trial for an offense if an individual has already been found not guilty in a previous trial. It also applies to situations where a defendant is charged with more than one offense: Is it double jeopardy if a defendant receives multiple punishments for the same transaction for multiple offenses?

Yousef Benson was convicted of two offenses as a result of a 2010 traffic accident that seriously injured another individual–intoxication assault and felony DWI.  The offense of intoxication assault occurs when a person “by accident or mistake . . . while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another.”  Felony DWI occurs when a person “is intoxicated while operating a motor vehicle in a public place” and the person has been previously been convicted of two DWI offenses.

The appellant argued that the two offenses should be considered the same offense, which would prevent the imposition of multiple punishments. The state argued that the offenses were separate and that multiple punishment was allowed. The principle point of contention was whether the previous conviction requirement for felony DWI is an element of the offense or is a punishment enhancement.

The Court of Criminal Appeals performed an “elements” analysis. The elements analysis looks at the specific elements of each crime. If each crime has the same elements, then a court presumes that the offenses are the same for purposes of double jeopardy. Conversely, if two offenses have different elements, the presumption is that the two offenses are separate. In either case, the presumption can be rebutted by showing that the legislature clearly intended the opposite result.

In Benson, the CCA focused on felony DWI’s requirement of two previous convictions. In some cases, such requirements are viewed as creating a separate offense; in other cases, they are considered an enhancement of the level or the punishment for the offense. As Benson acknowledged, the CCA had already held in earlier cases that the required prior convictions for felony DWI constitute an element of the offense, calling them “specific attendant circumstances” that help define the offense. In other words, intoxication assault and felony DWI are presumed to be separate offenses, and a defendant can receive a sentence for each offense.

The CCA then turned to the question of whether there was evidence to rebut the presumption: Did the legislature intend for the two offenses to be treated as one? The court acknowledged that the two offenses are in the same chapter of the criminal code, a factor that supports the same-offense position. But the court looked at the language of the statute and concluded that if the legislature had intended the two offenses to be the same, they would have structured the statutory language differently.

The court also looked at the name of the offenses, pointing out that both offenses have some form of the word “intoxicate” in their names, although used as a modifier in each name rather than as a noun. The court concluded that this factor slightly favored the same-offense position.

The court noted that the two offenses have the same punishment ranges. Although this factor can favor either position, the court concluded that it slightly favored treating the same-offense view.

The court looked at the focus of the offenses and found intoxication assault to be a result-oriented offense (causing serious bodily injury) and felony DWI to be a conduct-oriented (driving while intoxicated) or circumstances-oriented (two prior convictions) offense. Unlike intoxication assault, felony DWI does not even require a victim. This analysis favored treating the offenses as separate.

Finally, the court considered the history of the two offenses and concluded that the various revisions of the criminal code supported the position that the two offenses are separate.

In its final analysis, the court recognized some factors supported Benson’s argument (same offense). However, the court considered the factors supporting the state’s position (separate offenses) as “more substantial.” In the court’s view, the evidence did not support the view that the legislature intended one punishment. Therefore, separate punishment for each offense was not a violation of Benson’s right to protection from double jeopardy.

DWI for sleeping in car

Asleep in a Running Vehicle: Sufficient Evidence of “Operating” for DWI?

By | DWI

Can I be Arrested for DWI for Sleeping in My Car?

DWI for sleeping in carOne of the requirements for a DWI in Fort Worth is straightforward–the intoxicated individual must be “operating” a vehicle while intoxicated. Any DWI attorney in Fort Worth would tell you that basic requirement. The Texas Court of Criminal Appeals recently considered the question of whether an individual who is passed out in a running, yet stationary, vehicle is “operating” the vehicle for DWI purposes. In Murray v. State, the court answered in the affirmative.

Chad Murray was passed out in his running truck in the early hours of the morning. Deputy James McClanahan observed Murray’s truck with its lights on, parked partially on the shoulder of Highway 22 and partially in a driveway near a fireworks stand. Deputy McClanahan observed exhaust coming from the truck but could not see anyone inside. The Deputy approached the truck and saw Murray asleep in the driver’s seat. The truck was indeed running. The transmission was in “park,” and the radio was on high volume. Deputy McClanahan finally succeeded in waking Murray up and, after Murray’s bungled attempts failed, in obtaining Murray’s ID. The deputy reported that he immediately smelled alcohol in the truck when Murray opened the window and that Murray appeared very intoxicated. Murray failed a field sobriety test and was charged with DWI.

At trial, Murray was found guilty and sentenced to one year in jail and a $1,000 fine. The jail sentence was suspended, and Murray was placed on two years of community supervision. Murray appealed his conviction to the Seventh Court of Appeals, arguing that there was insufficient evidence at trial to prove that he was actually operating his truck and that he was, therefore, not guilty of DWI. The court of appeals agreed and reversed Murray’s conviction, holding that, although it was possible to infer from the circumstances that someone drove Murray’s truck to the location where it was found, there was no evidence as to when that occurred or whether the driver was intoxicated at the time. The Prosecuting Attorney appealed to the Court of Criminal Appeals based on the question of whether Murray could have been found guilty of DWI without direct evidence that he was operating a vehicle while intoxicated.

The CCA took exception to the lower court’s conclusion, pointing to evidence that the vehicle was running, that Murray was in the driver’s seat, that Murray was the only one in the vehicle and that he was the only person in the vicinity. The court also pointed to the fact that there were no alcoholic beverages or containers in the vicinity and that the Deputy’s conclusion that Murray was very intoxicated was reasonable; Murray even admitted to the Deputy that he had been drinking. Because Murray was intoxicated, no one else was around, and there was no alcohol in the area, the court found it reasonable for the jury to infer that Murray had driven his truck to the location on Highway 22 and had done so while intoxicated.

Justice Meyers disagreed and in a dissenting opinion argued that allowing Murray’s DWI conviction to stand was comparable to convicting someone for possession of marijuana based solely on the individual being high and smelling of marijuana. Justice Meyers believed that being passed out behind the wheel of a running vehicle is not enough to be considered “operating” the vehicle; operation of a vehicle requires some action to enable the use of the vehicle, even something as simple as turning the key in the ignition. For DWI purposes, there must be evidence that the action was taken while the individual was intoxicated. For Justice Meyers, inferring these facts from the evidence presented was a leap too big for a jury to make.

The case is instructive for anyone charged with DWI in Fort Worth. A trial jury will have wide latitude in drawing conclusions regarding whether you were operating the vehicle while intoxicated, even if an officer does not directly observe you doing so. If you find yourself in this predicament, you should consult a DWI attorney in Fort Worth. Do not assume that you will get off on a technicality. Chad Murray didn’t.

DWI Blood Draw Defense Lawyers Fort Worth

Warrantless DWI Blood Draw Held Unconstitutional By Fort Worth Court

By | DWI

DWI Blood Draw Defense Lawyers Fort WorthMosquitoes are pesky little things. They land on you, insert a sharp needle-like nose into your arm and suck your blood without even asking for permission. Well, like the hard slap of a hand on top of one of these pests, Texas courts are finally falling in line behind the Supreme Court’s ruling in Missouri v. McNeely (133 S. Ct. 1551 (2013)) striking down warrantless blood draws of a driver’s blood in DWI cases.

Last month, the Second District Court of Appeals in Burks v. State held that a warrantless, nonconsensual blood draw – even conducted pursuant to the mandatory-blood-draw and implied-consent provisions of the Texas Transportation Code violates the Fourth Amendment to the United State’s Constitution.

The defendant in the Burks case was pulled over for changing lanes without signaling. A North Richland Hills police officer pulled him over and developed probable cause to arrest him for DWI. Because the defendant had been convicted twice before for DWI, the officer relied on Texas Transportation Code 724.012 to take the defendant’s blood without consent and without a warrant. Texas Transportation Code 724.012 provides that an officer may obtain a blood sample from a defendant without consent and without a warrant if the defendant on two or more occasions had been previously convicted or placed on community supervision for Driving While Intoxicated.

The Second Court of Appeals specifically held that this type of blood draw, despite being authorized by a state statute, still violates the Fourth Amendment’s protection from unreasonable searches and seizures. In addition to the Supreme Court’s ruling in McNeely, the court here relied on the Texas Court of Criminal Appeals decision in State v. Villarreal (No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014), which held also that a warrantless, nonconsensual draw of a DWI suspect’s blood does not categorically fall within any recognized exception to the Fourth Amendment’s warrant requirement, nor can it be justified under a general Fourth Amendment balancing test.

What does all this mean? As we’ve said in the past, the demise of warrantless blood draws for drivers in Texas continues to remain imminent and cases like Burks continue to reinforce the fact that the teeth of the United State’s Constitution bite much harder than the needle of an unreasonable search and seizure.

DWI defense attorney Fort Worth

DWI: Is Passing on the Shoulder Evidence of a Traffic Offense?

By | DWI

DWI Conviction Overturned | Passing on the Shoulder Permitted in Certain Circumstances

DWI defense attorney Fort WorthIn many ways, Texas Court of Criminal Appeals also acts the State’s highest traffic court. What follows is a synopsis of Lothrop v. State, wherein the CCA opines on the legality of using the right shoulder of a road to pass a slower vehicle.

In Lothrop, the police stopped Appellant after observing him use the right shoulder of the road to pass a vehicle that was slowing down.  Appellant was later arrested for Driving While Intoxicated (DWI). At trial, he filed a motion to suppress the evidence gained from the stop, arguing that the police officer did not have reasonable suspicion to make the stop. Appellant pointed to Section 545.058(a) of the Texas Transportation Code, which provides:

(a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway of that operation is necessary and may be done safely, but only:

(1) to stop, stand, or park;

(2) to accelerate before entering the main traveled lane of traffic;

(3) to decelerate before making a right turn;

(4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;

(5) to allow another vehicle traveling faster to pass;

(6) as permitted or required by an official traffic-control device; or

(7) to avoid a collision.

The trial court denied the motion and Appellant pled guilty to DWI. The 2nd Court of Appeals (Fort Worth) affirmed the conviction, holding that “driving on an improved shoulder, regardless of circumstance, is prima facie evidence of an offense, and that Section 545.058(a) merely establishes defenses that a defendant may raise at trial.”

Think again, said the Traffic Court (a.k.a. CCA):

[T]he offense of illegally driving on an improved shoulder can be proved in one of two ways: either driving on the improved shoulder was not a necessary part of achieving one of the seven approved purposes, or driving on an improved shoulder could not have been done safely. Merely driving on an improved shoulder is not prima facie evidence of an offense. Thus if an officer sees a driver driving on an improved shoulder, and it appears that driving on the improved shoulder was necessary to achieving one of the seven approved purposes, and it is done safely, that officer does not have reasonable suspicion that an offense occurred.

With that, the CCA reversed the Court of Appeals and remanded the case back to the trial court.   So there you have it – your traffic lesson for today from the CCA. You are free to drive on the improved shoulder of the road (without worrying that you will be pulled over) IF you are doing it safely and for one of the seven listed purposes.