Texas being an “At the Time of Driving State” Can Make DWI Cases a Bit More Complex
Yesterday I got an interesting DWI case dismissed. When I first met with my client he had no clue why he was being charged with DWI. He asked me what the legal limit in Texas was and I told him .08. Well my client blew a .07 into the Intoxilyzer 5000, which is the breath test machine that was used in his case, hence his confusion.
So why would someone who blew UNDER the legal limit be charged with DWI?
Texas: An”At the Time of Driving State”
The problem is that Texas is an “at the time of driving state”. This means that what is really important is what was the blood alcohol level of an individual at the actual time he was driving. Sometimes it takes 30 minutes, but sometimes it takes hours for an individual to take a blood or a breath test after being arrested. So how can they prove what the BAC was at the time of driving? That’s the tough question, and bottom line is, they can’t. The State’s experts will always say, “all I can say is that the BAC was either higher, the same, or lower” at the time of driving.
Now sometimes, they will try to formulate a guess to what the BAC was, and it truly is a GUESS. They use what is called retrograde extrapolation. In basic terms, retrograde extrapolation is a mathematical process based on “science” that is used to try to figure out what the BAC was of a person at a certain time.
The problem that arises is that it is RARE that we know everything we need to know about a person to figure this out. They need things such as: time of first drink, time of last drink, when was the last time they ate, how much did they eat, what did they eat, etc. And those are just the basic items that need to be known. They also need to know everything about that person’s body, health, how they process food, alcohol, etc. It’s virtually impossible to have all of this data.
So as a lawyer I see DWI cases like this from time to time, and they are always a fight. Because there is absolutely zero percent chance that I would ever advice a client to take any sort of deal on a case where their blood or breath came back below the legal limit. In this particular DWI case there were no extrapolation facts. My client spoke Spanish, the officer spoke English, and the officer didn’t bother getting a Spanish speaking officer to interview him. On top of that he looked great doing the sobriety tests, so they could not prove that he lost the normal use of his mental or physical faculties (which are the other 2 ways besides <.08 to prove intoxication). It took much longer than expected, but my client walked out of the courtroom a happy man.
A Look into SWEWP, Harris County’s New Program and a DWI Case that Touches on Plea Bargains
SWEWP is the new program in Harris County program, short for Sheriffs Weekend Work Program. In this program you are sentenced to jail time and a TDL suspension, but instead of actually going to jail you are allowed to do a weekend community service work program instead. In this program you get 3 for 1 credit. For example, if you get sentenced to 30 days in jail, you will need to work 10 days.
For this SWEWP program, the judge must first approve, you fill out a contract which has all of your work details. You are instructed that you have to work every Saturday and Sunday (from 7am – 3pm) until your sentence is complete. You go in front of the judge, plead guilty, the judge sentences you, and then you go to the SWEWP window at 49 San Jacinto for further instructions. This is a great option for individuals who do not want to do probation or go to jail. It is not automatic however; every judge is different as to what types of cases they will accept SWEWP plea bargains on.
DWI Case and Plea Bargains
Today I went to court with an individual who was being charged with Driving While Intoxicated (DWI). We have been working on this DWI case for many months, gathering all of the documents, evidence, etc. Many times it is in a person’s best interest to fight the case and go to trial. Many times, if you go to trial and lose you will get probation on a 1st time DWI. If you plead guilty to the DWI, the typical plea bargain is probation as well. So why would you plea guilty and guarantee yourself a conviction when you can at least have a chance at trial?
Why do People Take Plea Bargains
Most people decide to take plea bargains for a multitude of reasons –
- They don’t want to go to trial because they feel like they are going to lose
- They don’t want to risk getting a worse punishment
- They don’t want to pay for trial
- Their lawyer convinces them not to go to trial, etc, etc
In my client’s DWI case he was afraid of going to trial because he was not a citizen, and he was scared of possible consequences if he went to jail, and he also wanted to accept responsibility. In Harris County, a typical plea bargain is either 1 year probation (with no driver’s license suspension), or 30 days in jail (which is 2 for 1 credit, so 15 days, with a 1 year TDL suspension). That’s typical, but not always the case, a couple of judges allow fines only, its court specific.
- DWI – Client Entered SWEWP Program
- PCS – Reset
Update 3/1/2018: See my new article regarding Houston’s SWEWP on ericbenavides.com
Positive Results on Hit and Run, DWI and Assault-Family Member Cases
Today was a fairly busy attorney day, and I was in a bunch of courts. My first stop was a hit and run case. This hit and run case was different than most cases since my client was accused of hitting a cement post in front of a business (not another vehicle as we typically see). A lot of people don’t realize that if you damage property you should either contact the owner, or leave a note. Luckily, we helped our client get an agreement to dismiss this hit and run case, since no one was injured. Everyone was only concerned that the business is made whole with regards to money.
Had a quick reset on an assault-family member case that is very defensible and is likely either going to get dismissed or end up in trial. We also did a reset on a DWI case where we are still waiting on evidence. We finally got the dash cam video, so I need to review that with my client so we can decide together how we are going to proceed.
Possession of Criminal Instruments Case
And the most interesting case I saw today is a charge that in my opinion is pretty silly. Its along the lines of possession of criminal instruments. You can be charged if an officer believes that you are using normal household items, and were planning on using them in a crime. For example: a person gets charged with breaking into a car in his past. If an officer pulls him over today and he has things in his car that look like they could be used to break into a car (crow bars, tire irons, bricks, pliers, etc), you can be charged with a crime. This is pretty silly in my opinion, unless there is darn good proof that something was imminent. If someone is just driving around with tools, I think it is ridiculous to charge them. It calls for way too many assumptions on the officer’s part.
Subjective Charges and its Impact
The problem in general with charges that are subjective, is even if the officers are wrong, the defendant is still affected even if his case is dismissed. They go to jail, they get their vehicle towed, they have to pay a bond to get out of jail, they have to spend big money on a lawyer, they have to miss work multiple times to go to court, etc. It’s not fair, but it’s one of the many problems with the legal system.
- DWI – Reset
- FSGI – Set for Dismissal
- Assault-FM – Reset
Hit and Run / Failure to Stop and Give Information Reset for our Client
Went to court today on a hit and run case. The facts of the hit and run case do not make much sense. My client is accused of not leaving her information at the time of the accident.
The case is confusing, I am going to have to spend some time investigating this one. First of all, the complainants are saying that the accident was not their fault (they hit my client from behind, their insurance already paid for my clients car, their insurance already settled with my clients personal injury lawyer). It was obviously their fault, so I don’t know where that comes from. Police reports were made days later, it’s a big “he said she said” on who left first. We will see what happens with that. We ended up getting a reset on the hit and run case, we need to get proof of certain items for the next setting.
DWI Case and Elevator Problems at the Criminal Courthouse
I also dropped of a DVD to make a copy of a very interesting DWI case. My client claims that there were camera crews recording his arrest, so that will be interesting to see.
The unfortunate part about dropping that video off was that it took me 30 minutes to get from the second floor back down to the first floor. There are like 10 elevators in the criminal courthouse and they never seem to work. We really either need to get a new building or we need to trade with the civil courthouse. It’s crazy that the civil courthouse is so much better suited to handle the load of people that the criminal courthouse takes in on a daily basis, but the civil courthouse is always empty. They have wonderful elevators, and even escalators that allow individuals to choose how they will get to where they need to go. The criminal courthouse is a huge fire hazard, and let’s hope there is never a situation where the building needs to be evacuated.
I am back in the Benavides & Serrano office now preparing to meet with a client on an interesting Aggravated Assault of a Family Member case. And then I have a couple of consultations this afternoon as well. I am definitely ready for the weekend. I’m excited to get to spend some time with my wife and daughter and enjoy my first father’s day with them. Not to mention its US Open Weekend, and we will have a game 7 in the NBA finals! It should be a good weekend.
- Failure to Stop and Give Information – Reset
Intoxication is defined the same in either a Driving While Intoxicated (DWI) or Public Intoxication (PI) case in Texas. I had a very interesting situation that came up recently. I had a client who had been arrested for DWI. He was leaving the bar late at night with some friends and while driving home late at night one of his friends got sick. The friend had a little too much to drink and needed to throw up. My client who was driving, pulled over on the highway to let his friend handle his business. Within a couple of minutes an officer pulled in behind them to see if they needed any help. When they smelled alcohol and saw some guy puking they decided to conduct a DWI investigation on my client.
They went through the normal standard field sobriety tests (Horizontal Gaze Nystagmus, One Leg Stand, Walk and Turn) and determined that my client was intoxicated. He was arrested for DWI and taken to the station. At the station they asked him to submit to a breath test to which my client agreed. He took the test and blew a .04, well below the legal limit in Texas.
Now if you have any common sense, this just doesn’t seem right. At the end of the day the definition of intoxication is the same for both DWI and PI. What happened next was interesting. Officers usually get people to take breath tests by saying, “If you blow under the legal limit you are free to go”. Well in this case I think the officers were either embarrassed or upset, so they decided to charge him with Public Intoxication.
Per the Texas Penal Code, Intoxicated means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.
So you are intoxicated in Texas if you lose your physical faculties, lose your mental faculties, or if your alcohol concentration is .08 or more. My client was not intoxicated by law in Texas, but somehow the officers thought it was ok to charge him with a “small” misdemeanor because it wasn’t that “serious”.
Lucky the prosecutor understood the law and dismissed this case after the first hearing. It’s sad that my client had to waste time and money, but justice prevailed.