Aug 21
0
2023 Scholarship Winners BHW

2023 Scholarship Winners

By | Scholarship

Barnett Howard & Williams PLLC Announces the Recipients of the 2023 Scholarship Awards

2023 Scholarship Winners BHWBHW is thrilled to continue our two scholarships for 2023. In honor of the sacrifices of our military veterans, our scholarships are 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.

2023 Winner – Military Veteran Law Student Scholarship

The winner of the 2023 Military Veteran Law Student Scholarship is:

ANDREW BACON

Andrew Bacon is a Marine Corps veteran who currently attends the University of Denver Sturm College of Law. Congratulations Andrew Bacon. Best wishes as you continue toward your law degree.

2023 Winner – Military Dependent Scholarship

The winner of the 2023 Military Dependent Undergraduate Scholarship is:

FRANCESCA QUINATA

Francesca Quinata is a US Army dependent whose father enlisted from Guam and served for over 20 years. Francesca currently attends the University of Texas and will be the first member of her family to attend college. Congratulations Francesca! 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

Jul 03
10
Fireworks Laws in Texas2

Fireworks Laws in Texas | Could a Sparkler Really Cost You $2,000?

By | Criminal Defense

Do Not Lose Your Liberty on Independence Day

Fireworks Laws in TexasIndependence Day is right around the corner. You will probably start seeing the notices spread across social media from local police departments, warning that setting off fireworks (including sparklers) is illegal inside of city limits. We know that you’re probably going to do it anyway (so are we), but we wanted to let you know what Texas law provides regarding fireworks on the 4th of July.

Texas Fireworks Law | Are Sparklers Illegal Inside of City Limits?

While state law in Texas permits possessing and using fireworks, it’s important to note that where and when a person can possess them is still highly regulated. There are State laws that limit the use and display of fireworks but use is predominantly regulated by way of city ordinances.

Specifically, under state law, a person may not:

  1. Explode or ignite fireworks within 600 feet of any church, a hospital other than a veterinary hospital, an asylum, a licensed child care center, or a public or private primary or secondary school or institution of higher education unless the person receives authorization in writing from that organization;
  2. Sell at retail, explode, or ignite fireworks within 100 feet of a place where flammable liquids or flammable compressed gasses are stored and dispensed;
  3. Explode or ignite fireworks within 100 feet of a place where fireworks are stored or sold;
  4. Ignite or discharge fireworks in or from a motor vehicle;
  5. Place ignited fireworks in, or throw ignited fireworks at, a motor vehicle;
  6. Conduct a public fireworks display that includes Fireworks 1.3G unless the person is a licensed pyrotechnic operator;
  7. Conduct a proximate display of fireworks that includes Fireworks 1.3G or Fireworks 1.4G as defined in NFPA 1126 Standards for the Use of Pyrotechnics Before a Proximate Audience unless the person is a licensed pyrotechnic special effects operator and has the approval of the local fire prevention officer; or
  8. Sell, store, manufacture, distribute, or display fireworks except as provided by this chapter or rules adopted by the commissioner under this chapter.

Texas Occupations Code, Subchapter F, Sec. 2154.251

These violations are Class C Misdemeanors, which can be punishable by a fine up to $500.

Fireworks licensing violations are Class B Misdemeanors which can result in a jail term up to 180 days and a fine not to exceed $2,000.

Fireworks City Ordinances | Local Fireworks Rules in Fort Worth, Keller, and Southlake

In addition to State law, most cities in Texas regulate the use and display of fireworks by way of specific city ordinances. For example, Fort Worth, Texas has enacted an ordinance making the sale, discharge or possession of fireworks within the incorporated city limits a Class C misdemeanor punishable by up to a $2,000.00 fine. Similar ordinances exist in Keller and Southlake, and most other Texas cities.

Before your celebrations, it’s always best to review the above regulations under the Texas Occupations Code and check your local city ordinances online to ensure that you’re legally possessing, using and displaying fireworks.

Jun 28
15
UM UIM PIP Insurance Texas

What You Need to Know When Buying or Renewing Your Car Insurance

By | Car Wreck

Protect Your Family By Knowing These 3 Car Insurance Acronyms

UM UIM PIP Insurance TexasCar insurance premiums, like everything else these days, have reached historic highs. You get your renewal notice in the mail and gasp at the increase. So, you make the call to your insurance agent to see what can be done to save you money.

We’ve all seen the commercials – switch to us, bundle this with that, install this in your car, etc. and promises are made to save you money! A lot of times you will receive discounts by doing these things, BUT one of the main ways that insurance companies try to “save you money” is by asking you to reject KEY options in your policy that you’re unfamiliar with.

Here are the acronyms we want to educate you about:

UM – Uninsured Motorist Policy
UIM – Underinsured Motorist Policy
PIP – Personal Injury Protection

Under Texas law, these three options are required to be offered to you by your insurance company. However, you can choose to reject them as part of your car insurance policy if you so choose (Texas Insurance Code Art. 5.06(1) & Sec. 1952.152(b).)

It’s important to note these insurance options are part of YOUR insurance policy that add extra layers of coverage if you or your family are involved in a car wreck. Let’s talk about what these options are and why they are crucial to providing the adequate protection you need.

What is Uninsured Motorist Insurance (UM)?

This one’s pretty straightforward. This Uninsured Motorist insurance provides coverage if you are involved in an accident with another at-fault driver who does NOT have car insurance. Research estimates that around 1,500,000 drivers in Texas are not insured. That’s a lot of folks and the importance of having this insurance cannot be overstated!

What is Underinsured Motorist Insurance (UIM)?

This insurance provides coverage when you are involved in an accident and the at-fault party’s insurance limits aren’t enough to pay for your or your family’s medical bills, lost wages, loss of earning capacity, pain and suffering, etc. Believe it or not Texas’ minimum policy limits for auto insurance is STILL $30,000 per person/$60,000 per accident (Texas Transportation Code 601.072.) Those are the same minimum coverage amounts that existed in 2011! We could go into further discussion regarding why those amounts haven’t increased in 12 years, but we think it’s pretty obvious that the insurance companies have done a good job of making sure our state legislature doesn’t address this issue. When you consider how expensive medical bills have become and how much inflation has occurred over the last 12 years, it becomes apparent that this insurance is extremely necessary, too.

What is Personal Injury Protection (PIP)?

If you are involved in a car wreck, regardless of who is at fault, Personal Injury Protection insurance provides coverage to a certain limit for necessary expenses for:

1) Necessary medical, surgical, x-ray, or dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing or funeral services
2) Replacement of income lost as the result of the accident (lost wages) and,
3) if not an income or wage producer, reimbursement of necessary and reasonable expenses for essential services ordinarily provided by that person for care and maintenance of the family or household (Texas Insurance Code 1952.151.)

This coverage extends not only to the driver, but also to all occupants in the vehicle driven by you or your family member. It also provides coverage to you or your family member if you or they are a passenger in another vehicle driven by another person with their own insurance.

These three options were created by law to provide solid insurance coverage to protect Texas citizens and their families. For insurance companies, however, it’s not good for their bottom line and profits.

And, unfortunately, Texas law allows a way for insurance companies to avoid offering these options as part of your insurance policy. How do they do it? By getting YOU to agree to reject these options at the time you purchase your car insurance.

Now that you’ve read this and know what these insurance options provide, you would never agree to reject them, right? The reality, however, is that when you’re going through the insurance shopping experience (especially nowadays with current inflation rates) your focus becomes:

“HOW MUCH IS THIS GOING TO COST ME AND ARE THERE WAYS TO SAVE ME MONEY?”

Therein lies the vulnerability that insurance companies love to pounce on.

Your insurance agent or company will offer to save you a nominal amount of money if you agree to reject these options. We use the word nominal because the savings you might see are significantly outweighed by the out-of-pocket costs you will experience if involved in a car wreck and don’t have these coverages.

It’s worth noting that some insurance companies operate in such a way that they’d prefer to not even discuss UM/UIM/PIP and will instead deceptively present rejecting them as an easy option to save money without informing you fully about the consequences of doing so. That is exactly why we are providing you with the information in this article. Most shoppers are savvy these days and want to be informed about their purchases. We hope this article helps educate you about why these insurance options matter and how rejecting them ultimately offers you no real benefit. Don’t let the small amount of increase in your total policy premium deter you from REFUSING to reject UM/UIM/PIP coverage. Simply put – the additional amount you will pay IS WORTH IT.

Things we recommend when shopping for your insurance or when renewing it:

1) CONFIRM with your insurance agent or company that you are NOT rejecting UM/UIM/PIP,
2) READ WHAT YOU SIGN – we know this can be overwhelming and the insurance companies prefer it that way but do your best,
3) LOOK SPECIFICALLY for documentation that indicates you are rejecting UM/UIM/PIP,
4) LOOK SPECIFICALLY at your declarations page and look to see where UM/UIM/PIP coverages are included,
5) PAY ATTENTION to the minimum amounts for each so you know what you’re getting, and
6) IF YOU WANT MORE THAN THE MINIMUM COVERAGE, ask your insurance agent what higher limits they offer.

One more thing to note – if, after reading this article, you look at your policy and discover that you have rejected UM/UIM/PIP as part of your insurance coverage, call your insurance agent or company and inform them you want it added as soon as possible. We often handle cases where the client has rejected UM/UIM/PIP and unfortunately discover the “full coverage” they thought they had is far from it.

We’ll conclude with this – our hope is you have solid insurance coverage and NEVER need to use it. That really is the best case. If, however, you or your family are involved in a car accident, we highly recommend you consult with an attorney. Barnett, Howard & Williams, PLLC offers a free consultation and are here if you need us.

May 03
9
Operation Motor Vehicle Texas DWI

Operating a Motor Vehicle in the DWI Context

By | DWI

What does it mean to “Operate” a vehicle under Texas’ DWI laws?

Operation Motor Vehicle Texas DWIThe simple answer is that it means whatever the jury (not the judge) says it means.

Under Section 49.04(a) of the Texas Penal Code, a person commits the offense of DWI when the person “is intoxicated while operating a motor vehicle in a public place.” Emphasis added.  The Penal Code, however, does not define the term “operating.” When words are left undefined by statute, the Texas Government Code Section 311.011 tells us that those words are to be “construed according to the rules of grammar and common usage,” unless the word or phrase has some “technical or particular meaning,” in which case, the word or phrase “shall be construed accordingly.” What about the word “operating?” Is it common or technical?

In the trial of Kirsch v. State out in the Longview area, the defendant was charged with DWI after the police found him drunk while standing over his motorcycle trying to kick-start it on a public road.  As you might guess, there was a dispute over whether he was “operating” his vehicle while intoxicated.  Over defense objection, the trial court included the prosecutor’s requested definition of “operate” in the jury instructions:

to exert personal effort to cause the vehicle to function.

To the prosecutor’s credit, the definition was taken from an appellate case (although not one dealing with jury instructions).  Now, under this definition it is pretty clear that by trying to kick-start the motorcycle, the defendant was indeed operating a motor vehicle.  But if the term “operate” had been left undefined for the jury, then the defense could have certainly argued under the rules of grammar and common usage that the defendant was not “operating” his vehicle, because it was not running (or whatever other arguments an able defense counsel might make).  Armed with a black and white definition of “operate,” the jury convicted the defendant of DWI.

The 6th District Court of Appeals (Texarkana) affirmed the conviction.

The Texas Court of Criminal Appeals reversed. For a unanimous court, Judge Alcala wrote:

Our cases have consistently held that “operate” is a common term that has not acquired a technical meaning and may be interpreted according to its common usage… Although an appellate court may articulate a definition of a statutorily undefined, common term in assessing the sufficiency of the evidence on appellate review, a trial court’s inclusion of that definition in a jury charge may constitute an improper comment on the weight of the evidence.

The opinion goes on to note that by instructing the jurors on the definition of the term “operate,” the trial court “impermissibly guided their understanding of the term.” “The jury should have been free,” the CCA held, “to assign that term ‘any meaning which is acceptable in common parlance.’” The CCA reversed the case and remanded it back to the COA for a harm analysis.

There you have it. The meaning of the term “operating” in the Texas DWI statute means…whatever the jury thinks it means.

Fort Worth DWI Defense Attorneys | Keller DWI | Grapevine DWI

Contact the top-rated Tarrant County DWI attorneys of Barnett Howard & Williams PLLC for a FREE consultation of your DWI case. We will help you determine whether the State could prove that you were operating a motor vehicle under Texas DWI law.  Call (817) 993-9249 or send us a contact email from our website. Our team of DWI attorneys will get to work defending your rights and protecting your future.

Feb 16
2

Texas Child Custody: Standard Possession and Visitation in Texas

By | Child Custody

Which Parent Gets Custody? The Standard Possession Order for Child Custody in Texas

When parents in Texas divorce or separate, one of the most important issues they face is child custody. Texas law recognizes two types of custody: physical custody, which refers to where the child lives, and legal custody, which refers to the right to make decisions about the child’s upbringing. In cases where parents cannot agree on custody arrangements, the court may order a standard possession order.

A standard possession order is a court-ordered schedule that determines when each parent will have physical custody of the child. The order is designed to provide regular and predictable time for both parents to spend with the child. In Texas, the standard possession order is governed by the Texas Family Code, and it provides a default schedule that can be modified by agreement of the parties or by the court if certain circumstances exist.

Under the standard possession order, for parents residing within 50 miles of each other, the non-custodial parent (referred to as the “possessory conservator” in Texas) has the right to possession of the child on the first, third, and fifth weekends of each month, starting at the time school is dismissed on Friday and ending at the time school resumes on Monday. In addition, the possessory conservator has the right to possession on mid-week during the school year from the time school is dismissed on Thursday until the time school resumes on Friday morning.

The standard possession order, for parents residing within 50 miles of each other, also provides for the possessory conservator to have the child for 30 days in the summer, which can be broken up into two periods of at least seven days each. The order also provides for the possessory conservator to have the child on alternating holidays, such as Thanksgiving, Christmas, and spring break. The exact dates and times for each holiday are specified in the order.

Printable Standard Possession Order for 2023. CLICK HERE

2023 Texas Standard Possession Order SPO

Does the SPO Apply if the Parents Live Too Far Away?

In cases where the parent lives more than 50 miles but less 100 miles apart, the non-custodial parent (referred to as the “possessory conservator” in Texas) has the right to possession of the child on the first, third, and fifth weekends of each month, starting at 6:00 pm on Friday and ending at 6:00 pm on Sunday. In addition, the possessory conservator has the right to possession on Thursdays during the school year from 6:00 pm to 8:00 pm.

In cases where the parents live more than 100 miles apart, the standard possession order provides for additional periods of possession to ensure that the non-custodial parent has meaningful time with the child. For example, the non-custodial parent may have the right to possession on one weekend per month instead of the first, third, and fifth weekends. You
should consult with your family law attorney to determine whether this distance consideration impacts your situation.

Can the Standard Possession Order be Modified?

It’s worth noting that the standard possession order is just that – a default schedule that can be modified by agreement of the parties or by the court. Parents who are able to work together to create a schedule that works for their family may be able to deviate from the standard possession order. However, if the parties cannot agree, the court will likely order the standard possession order.

Overall, the standard possession order provides a predictable schedule for both parents to spend time with the child. While it may not work for every family, it is a useful starting point for parents who are unable to agree on a custody schedule.

An Experienced Divorce and Child Custody Lawyer Can Help Determine When Each Parent Has Possession of Their Child

Most of the time, it is best to contact an experienced family law attorney to help explain and establish each of these possession schedules, including any customizations or unique provisions the court finds to be in the best interest of your child. You are often not limited to the standard and expanded standard schedule above–but you may need an experienced attorney to fight for you to have more time with your child. Let our experienced family law attorneys assist you in discussing this schedule with the other parent and the court. Contact BHW Family Law at (817) 993-9249 for a free
consultation of your family law matter.

Feb 02
15
Accident on Icy Road

Accidents on Icy Texas Roads: Who is Liable?

By | Car Wreck

Accident on Icy RoadWhen we think of extreme weather in Texas, we generally think of severe thunderstorms, hail, wind, and tornados, but, as we have learned, ice and snow storms can be just as dangerous and deadly. There’s also a human factor when snow and ice hit Texas that increases the likelihood of severe injuries and even death for the untrained, inexperienced, and careless driver.

A Federal Highway Administration report states that on average, icy roads cause 151,944 vehicle accidents, 38,770 crash injuries, and 559 crash fatalities a year. These ice-related accidents produce roughly 11% of all weather-related accidents in the country. This is alarming because it shows how dangerous icy roads can be, but it should also alert you to the possibility of personal injury or property damage if you decide to drive in icy conditions.

Icy Roads in the Texas News

The Basics of Negligent Driving in Texas

In the simplest form, negligence involves:

  • A duty to a person (the duty to be a careful, safe driver);
  • A breach of that duty (driving too fast, etc); and
  • That breach causing damages to another person (property damage, injuries, or death caused by a car accident).

Every driver has a basic duty to other drivers to drive safely and not collide with anyone. This requires them to drive as a reasonably prudent person would drive in the given situation. When they breach that duty, or collide with another person or vehicle, they may be liable for the physical or financial damages they caused. But what if the roads were icy and the driver lost control?

Ice is NO Defense to an Accident! | Liability for Accident and Injuries in Winter Conditions

Drivers are expected to take note of weather and road conditions and adjust their driving accordingly. When the temperatures are near or below freezing and precipitation is present, there is a strong possibility of ice on the roads. Because a driver should know of the chance of icy conditions, they should drive as a reasonably prudent person would drive on icy roads.  Blaming the ice will not work if the driver crashes into another car on the road.

Precautionary Measures for Driving in Icy Weather | Driving in Texas in the Winter

When there may be ice on the roads, you should take precautionary measures when driving:

  • Don’t drive unless you have to;
  • Follow your local news or go to drivetexas.org* to get updates on road conditions;
  • Drive below the speed limit;
  • Do not get distracted from the road; and
  • Avoid hills, bridges, and low spots if you can.

If you are hit by a driver who was driving in icy conditions, even if they lost control, they may be liable for negligently driving. You should contact your attorney with the accident report and any other information from the accident to help work through your options.

For more winter weather driving tips, click here.

*drivetexas.org is run by the Texas Department of Transportation who also posts on social media outlets.

Jan 28
9
Solicitation Prostitution Sting Texas

Solicitation of Prostitution in Texas

By | Prostitution

Prostitution is Illegal in Texas

Solicitation Prostitution Sting TexasIn Texas, under Chapter 43 of the Penal Code, all forms of prostitution are outlawed. Whether a person is involved in promoting prostitution, engaging in prostitution, or soliciting another to engage in an act of prostitution, it is all illegal and can result in arrest, conviction, and prison time in Texas.

What is Solicitation of Prostitution Under Texas Law?

As defined in Section 43.021(a) of the Texas Penal Code, “A person commits an offense if the person knowingly offers or agrees to pay a fee to another person for the purpose of engaging in sexual conduct with that person or another.” This law does not require a person to actually show up to the agreed location in person, since the offense is committed at the time the offer of money for sex is proffered. However, in most circumstances, the police will not make an arrest unless the “John” actually shows up to the scene.

Prostitution Stings in Texas

Many solicitation of prostitution arrests occur as part of undercover police sting operations. Due to the prevalence and increase of human trafficking in Texas, police agencies have ramped up prostitution sting operations in hopes of decreasing the demand for sex services. Most sting operations are widely publicized afterwards, causing embarrassment, job loss, and relationship stress for those caught in the sting, not to mention the follow-on criminal implications. Our firm has represented people across North Texas that have been arrested in prostitution stings with favorable results.

Call BHW Today (817) 993-9249

Solicitation of Prostitution is a State Jail Felony in Texas

On September 1, 2021, the offense of soliciting a prostitute in Texas was enhanced from being a Class B Misdemeanor to a State Jail Felony. This means that, even if it is your first offense, if you “knowingly offer or agree to pay a fee to another person for the purpose of engaging in sexual conduct with that person” you can be convicted of a felony offense and sentenced to a minimum of 6 months and a maximum of 2 years in a State Jail facility. If you have a previous solicitation conviction, then the next offense is a 3rd Degree Felony with a punishment range of 2-10 years in prison.

What to do if you are Arrested for Solicitation of a Prostitute?

If you are arrested for solicitation, once you have bonded out of jail, you should contact an experienced and trusted criminal defense attorney in the jurisdiction where the arrest occurred. Our team of criminal defense lawyers at Barnett Howard & Williams handle around a dozen solicitation cases every year, many of which are the product of Tarrant County Sheriff sting operations. Contact us today for a free consultation at (817) 993-9249. We have offices in Fort Worth and Keller.

Jan 26
9
EPO Drop Protective Order Texas

Lifting an Emergency Protective Order Issued After a Domestic Violence Arrest

By | Domestic Violence

How To Lift an Emergency Protective Order (EPO) Associated with a Texas Domestic Violence Case?

EPO Drop Protective Order Texas

If you were arrested for Assault (Family Violence), chances are that you also received an Emergency Protective Order prohibiting you from going within 500 yards (or similar distance) from the “victim’s” home or workplace, along with other conditions for a period of 31, 61, or 91 days depending on the nature of the alleged assault. Protective Orders can cause big problems, especially when the two parties live together in the same house and share childcare and other family responsibilities.

Can I Lift The Emergency Protective Order So That I Can Go Home?

Yes, you can (in most cases). We are asked this question on a daily basis. A spouse that was arrested for Domestic Violence has been forced to leave the family home because of the EPO. EPOs, however, do not relieve people of their daily responsibilities to take care of children, go to work, or provide for their families. An EPO can certainly throw a wrench into a family dynamic.

We help families modify protective orders to allow a defendant to return home. We do not typically request that the entire EPO be lifted completely, only amended.

Amending an EPO is Not the Same Thing as Lifting an EPO.

So what’s the big difference in lifting an EPO versus amending an EPO. Most judges will not agree to completely lift an EPO, because, as they see it, there was likely a good reason for the imposition of the EPO in the first place. Additionally, in almost every scenario, the District Attorney’s office will oppose lifting the EPO. However, many judges will agree to amend or modify an EPO and change some of the conditions. Usually, if the victim requests it, a judge will amend the protective order to allow the defendant to return home or resume contact with the complainant and the family. However, the remaining conditions, usually involving not committing family violence or threatening the victim, remain in place for the duration of the protective order.

Call BHW Today (817) 993-9249

What are the Steps to Amending a Protective Order in Fort Worth?

First, it is important to know that all jurisdictions handle protective orders differently. For instance, the Fort Worth Municipal Court handles protective orders differently from Tarrant County Criminal Court #5. Some courts prefer to hold a formal hearing and others do not. However, in all cases, we request the following:

  • An Affidavit from the Victim Requesting a Change of the Protective Order: This can be drafted and signed in our office, but the victim must be present and indicate that this is what he/she wants. In our experience, if the complaining witness does not want the EPO changed, then the judge is not going to change it.
  • A Motion to Modify the Protective Order: We draft and file the motion with the court having jurisdiction over the EPO. Texas law requires that we allege 3 things in our motion and that the judge find those 3 things to be true before he/she can modify the EPO:
    • (1) The current EPO is unworkable;
    • (2) Modification of the EPO will not place the victim in a greater risk of harm; and
    • (3) Modification of the EPO will not result in harm to any person protected under the order.
  • An Affidavit of Non-Prosecution: This is not a required document, but we allow victims to sign an ANP in our office if they request it. They may end up having to sign another ANP with the prosecutor, but we like to give them the opportunity.
  • Formal or Informal Hearing with the Presiding Judge: Some courts will require an actual hearing with witnesses before deciding whether to modify an EPO. Other courts simply prefer the verified documentation and an informal meeting with the state and the defense.
  • Filing the Amended Order with the Arresting Agency and Sheriff’s Office: If the judge agrees to amend the protective order, we send a copy of the signed order to the defendant, the complainant, the arresting police agency, and the local sheriff’s office. We also advise our clients to keep a copy of the order near the front door in case a nosy neighbor decides to call the police believing that the EPO is being violated.

I Have an Emergency Protective Order. How Do I Get Started in Amending the Order?

If you have an EPO that was issued against you in response to an allegation of Assault (Family Violence), give us a call today to see if we can assist you in getting the order amended so that you can return home to your family. Every case is different, so we want to speak with you and learn more about your situation. This article will not apply to every case, so call us today at (817) 993-9249. We offer Free Consultations in every case with no obligation.

Aug 31
26
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.

Standardized 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, slurred speech) and asking some questions:

  • “Where are you coming from this evening?”
  • “Have you had anything to drink tonight?”
  • “How many is a couple?”

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’s body worn camera and dash camera are recording so that the footage 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 NORMALLY ask permission to conduct the
standardized 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 Standardized 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 “eyes test,” (2) the Walk and Turn test (also known as 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 (HGN) – this test requires the officer to use specific precision in the field which results in mistakes often being made. Further, even with updated body worn camera technology, the video rarely shows what the officer claims to observe in the eyes. So we are usually left with officer testimony alone;
  • The Walk and Turn test – this test is difficult (even for sober people) because it requires the person to take challenging heel to toe steps on an imaginary line in all conditions and officers never take into account the person’s stress level, the weather conditions, footwear, fatigue from a long day, etc.; and
  • The One Leg Stand – this test is also difficult. It requires you to balance on one foot for 30 FULL seconds. TAKE NOTE – 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 (they are claimed to be used as evidence of the loss of mental or physical faculties).  In short, these tests exist for the officer to build a case against you in court and we feel ultimately set you up to fail. So what benefit is there for a driver who is suspected of DWI to take the tests if they don’t have to?

You DO NOT Have to Submit to Standardized 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 tests are no good and that you refuse to 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 standardized 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 standardized 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:

  • You are extremely nervous and have a high stress level from being pulled out of your car in the middle of the night by a police officer
  • 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 or not walk “normally”
  • You have bad balance (even on a good day)

Lastly, these tests are extremely technical. The instructions are long and tedious and can be very confusing for someone who has never attempted these tests before. Officers also like to compound this issue by providing you the instructions very aggressively and rapidly. Your failure to comply perfectly with these instructions can be used against you in court.

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.

Aug 08
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Scholarship Winners BHW

2022 BHW Scholarship Winners

By | Scholarship

Barnett Howard & Williams PLLC Announces the Recipients of the 2022 Scholarship Awards

BHW Scholarship Winners

This was the 7th year for our law firm to offer scholarships. In honor of the sacrifices of our military veterans, BHW awards 2 scholarships that are 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.

2022 Winner – Military Veteran Law Student Scholarship

The winner of the 2022 Military Veteran Law Student Scholarship is:

CHRISTOPHER KOLKOWSKI

Christopher Kolkowski is an Air Force veteran and C130J pilot. Mr. Kolkowski currently attends University of Arkansas – Little Rock Bowen School of Law. Congratulations CPT Kolkowski. Best wishes as you continue toward your law degree.

2022 Winner – Military Dependent Scholarship

The winner of the 2022 Military Dependent Undergraduate Scholarship is:

MAGGIE EVANS

Maggie Evans is a US Navy dependent whose father served in the US Navy. Ms. Evans currently attends the University of Texas – San Antonio and is pursuing a Masters degree in Clinical Mental Health Counseling, a field that is dear to her heart (and those of the military community). Congratulations Maggie Evans. 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