Dallas DWI Lawyer & Attorney Blog

What does "Operating" a Motor Vehicle Mean?

Troy Burleson — Mon, 12 Apr 2010 11:17:08 -0600

Under Texas law, a person cannot be found guilty of driving while intoxicated unless there is sufficient proof that he/she "operated" a motor vehicle while intoxicated. See, Texas Penal Code section 49.94. The question often while arise in some DWI cases, "what does it mean to operate a motor vehicle." For example, let's say a person goes to a bar and has a few drinks. Then he/she walks out to his/her car but decides it is not a good idea to drive home. Instead, they get into the car, turn it on to listen to the radio and falls asleep intending to "sleep it off." The question is, "can the state charge you with driving while intoxicated?" The answer is YES.

Take a look at the cases below:

Freeman v. State, 69 S.W. 3d 374 (Tex. App--Dallas 2002)--In this case an officer observed a driver asleep in a parked vehicle with the motor running. The vehicle was parked against a curb with the motor running and the lights on. The court ruled that based on the totality of the circumstances it appeared that the defendant exerted personal effort in a manner that showed his intentional use of the vehicle for the purpose of driving and therefore sufficient proof of "operating" a motor vehicle.

Stagg v. DPS, 81 S.W.3d 441 (Tex. App.--Austin 2002)--Here an officer observed a vehicle stopped in a lane of traffic with the engine running, the lights on and no apparent mechanical flaws with the vehicle. The court ruled that although no one actually witness the vehicle in motion, that the totality of the circumstances was enough to establish "operating."

Hearne v. State, 80 S.W. 3d 677 (Tex. App.--Houston [1st Dist.] 2002)--Here the defendant was found asleep behind the wheel with one hand on his head and the other on his waist. Further, the vehicle was running but in park. The court ruled that because the vehicle was running, registered to the defendant, the defendant was in the driver's seat and since no one else was around that there was enough to establish "operating."

What do the three cases above mean? Well, legally speaking, it is no difficult for officers' to show that a person was "operating" a motor vehicle. However, just because an officer can establish the legal sufficiency of a crime DOES NOT mean that the state will be able to establish factual sufficiency.

The jury can and will determine if the facts prove an element of a crime. Therefore, under the original hypothetical above, the state could most likely charge the person with DWI. However, a great argument could be made to a jury that the person was not "operating a motor vehicle but was merely doing the right thing by not driving off. These factual arguments can be very powerful in certain DWI cases.

Stopped for DWI? Do you know your Rights?

Troy Burleson — Thu, 04 Feb 2010 12:23:00 -0600

Many people often ask me, "If I am stopped by an officer and suspected of drunk driving, what are my rights?" This is a very good question because under Texas Law a police officer DOES NOT have to tell you about your rights when questioning you about drunk driving. Additionally, Texas law does not require an officer to allow you to speak to an attorney while he or she is investigation a DWI.

So, If you are stopped by a officer and he or she begins questioning you about drinking, i.e., "have you been drinking?", then we recommend that you know and follow the following 7 points about your rights at the time you are stopped.

Texas law requires you to produce a driver's license and current insurance card to the officer.
You are allowed to tell the officer that you have committed no crime and request that your license and insurance be returned to you so that you may leave.
If the officer says you are NOT allowed to leave: Tell him/her that you invoke your right to remain silent and will not answer any question concerning drinking and driving and that you WILL NOT CONSENT to ANY sobriety testing
You have a right to REFUSE ANY Request for a Breath or Blood test
You DO NOT have to Consent to a search of your vehicle
You DO NOT have to answer any questions or Sign ANY paperwork
You have a right to immediately request an attorney.

These 7 points are not intended to help citizens avoid drunk driving convictions. They are intended only to make the public aware of the rights a person has if questioned for drunk driving.

A failed breath test DOES NOT matter unless the State can prove you were over the limit at the TIME OF DRIVING!

Troy Burleson — Fri, 22 Jan 2010 14:44:59 -0600

In most DWI breath test cases, the State will attempt to convince the jury to find a person guilty based on a failed breath test. In every one of these cases the State will use a breath test that was given some time after the arrest was made.

It is important to remember that officers DO NOT HAVE scientifically valid breath test machines in their vehicles when they make an arrest for DWI. Instead, the officer must transport the citizen accused of DWI to what is known as the "intoxilyzer room" which is usually located in a city or county jail. The length of time between an arrest on the side of the road and a breath test score that is given in an intoxilyzer room is an important factor in EVERY DWI breath test prosecution.

The law requires that the state must prove a person was intoxicated AT THE TIME OF DRIVING, not 30 minutes, one hour or in many cases even longer when he or she gives a breath test at a jail facility. In order to relate a failed breath test back to the time of driving, a State's expert must use what is known as Retrograde Extrapolation.

Retrograde Extrapolation is the scientific process used to take the score of a breath test and then back it up in time to show what a person's BAC was when they were driving. However, in order to properly calculate usuing retrograde extrapolation the State's expert needs to know the following information:

The person's gender;
Their weight;
The time they had their first drink;
The time they had their last drink;
The time of the stop (arrest);
The type of alcoholic beverage consumed;
The type of food a person ate and when they last ate;
The time the breath test was given;
The result of the breath test.

Often time, the state does not have all of the information for their expert to properly retrograde a breath test result to the time of driving. In these cases a successful argument can be made by the defense attorney that the State did not satisfy its burden of proving that the citizen accused was intoxicated at the time they were operation a motor vehicle, and therefore, they should be found NOT GUILTY of driving while intoxicated.

It is important to do a thorough review of the police report and video of a DWI investigation to determine if the State will have problems with retrograde extrapolation in a DWI breath test case. This is one of the most successful defensive arguments and can, in some cases, lead to a not guilty verdict.

Could a trip to the dentist cause you to fail a breath test?

Troy Burleson — Fri, 22 Jan 2010 14:26:55 -0600

Did you know that those new braces, veneers, bridge or even cap may cause you to fail a breath test? It is true!

Dental appliances can be a major factor in high breath test results. Like GERD defenses, dental issues concern mouth alcohol. If a person fails a breath test, and has had major dental work, this defense should be explored.

Dental appliances include, but are not limited to: braces, retainers, mouth expanders, bridges and false teeth or dentures. These appliances provide an opportunity for food to become trapped in the mouth after eating. Anyone who has had extensive dental work, such as braces, will tell you that getting food trapped in their teeth is a persistent problem.

When food is trapped within the teeth and alcohol is consumed, portions of the alcohol may become trapped in the teeth or dental appliance. Upon taking a breath test, breath is blown back through the mouth and alcohol molecules can be picked up by the expired breath before introduction into the machine. When this occurs, a false positive test for alcohol may be obtained.

Some studies have demonstrated that some dental adhesives can trap alcohol in ones mouth for up to one hour. A 15-20 minute waiting period before a breath test can be administered does not eliminate this problem.

There has been insufficient testing on subject who had both consumed and absorbed alcohol in their system with certain dental appliances to truly know the magnitude of the effect of the dental appliance. Therefore, a dental appliance problem can escape detection by the traditional slope detector on the machine. A “disconnect defense” may be available for a defendant who has dental issues, a high breath test and a “sober” video.

Note: The above article also appears in our Collin County DWI Blog.

What is the "Implied Consent" Law? Do I have to give a breath or blood test?

Troy Burleson — Fri, 22 Jan 2010 14:08:19 -0600

Does a citizen have an obligation to give a breath or blood test if asked by an officer during a DWI investigation? To answer this question, an explanation of the "Implied Consent Law" in Texas is needed. Below, please find an article from out Plano DWI Law blog detailing the Texas Implied Consent Law.

Texas Implied Consent Law. By Dallas DWI Lawyer Troy P. Burleson

As I have reported in multiples posts, local counties are experimenting with mandatory blood tests from citizens suspected of DWI who refuse a breath test. These mandatory blood draws are likely to be challenged on state and United States constitutional grounds. As counties increasingly use this overly invasive tactic (forcible inserting a needle into citizens' veins), challenges to these policies are sure to follow.

However, a review of the Texas Transportation Code reveals that a citizen does have a right to refuse a breath or blood test. Below are three relevant sections from chapter 724 of the Texas Transportation Code which controls the law and procedures for blood and breath testing in Texas:

1) Implied Consent Law:

Most citizens do not know that as a condition of being issued a Texas driver’s license, they gave “implied consent” that they would submit to a breath or blood test if asked to do so by a police officer. Here is the Implied Consent law:

§ 724.011. CONSENT TO TAKING OF SPECIMEN. (a) If a
person is arrested for an offense arising out of acts alleged to
have been committed while the person was operating a motor vehicle
in a public place, or a watercraft, while intoxicated, or an offense
under Section 106.041, Alcoholic Beverage Code, the person is
deemed to have consented, subject to this chapter, 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.
(b) A person arrested for an offense described by Subsection
(a) may consent to submit to the taking of any other type of
specimen to determine the person's alcohol concentration.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 1013, § 32, eff. Sept. 1, 1997.

2) Your Right to Withdraw your Implied Consent and Refuse a Breath or Blood Test:

Although you gave implied consent to submit to a breath or blood test when you received your driver’s license, the Transportation Code allows you to WITHDRAW your implied consent and refuse a breath or blood test. Below is the relevant section from the Texas Transportation Code:

>§ 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON
REFUSES; EXCEPTION. Except as provided by Section 724.012(b), a
specimen may not be taken if a person refuses to submit to the
taking of a specimen designated by a peace officer.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.

This section of the Transportation Code clearly states that a
“specimen may not be taken”
if a citizen refuses to submit to the test. Therefore, according to the Transportation Code, you have an ABSOLUTE RIGHT to refuse a blood or breath test.

As indicated in 724.013 of the code, there are some exceptions that prohibit a person from refusing a blood or breath sample. Below are the exceptions from Section 724.012(b) of the Texas Transportation Code:

EXCEPTION:
(b) A peace officer shall require the taking of a specimen
of the person's breath or blood if:
(1) the officer arrests the person for an offense
under Chapter 49, Penal Code, involving the operation of a motor
vehicle or a watercraft;
(2) the person was the operator of a motor vehicle or a
watercraft involved in an accident that the officer reasonably
believes occurred as a result of the offense;
(3) at the time of the arrest the officer reasonably
believes that as a direct result of the accident:
(A) any individual has died or will die; or
(B) an individual other than the person has
suffered serious bodily injury; and
(4) the person refuses the officer's request to submit
to the taking of a specimen voluntarily.

Conclusion:

I am having a hard time understanding the stance of certain district attorneys and counties who seem to believe a citizen does not have a right to refuse a blood or breath test. It seems clear that unless you are 1) involved in an accident, 2) in which an individual has died, will die or suffered serious bodily injury, and 3) you are arrested for DWI then you do have a right to refuse a blood or breath test result (See the above sections from chapter 724 of the Texas Transportation Code). Therefore, I believe it is only a matter of time before these mandatory blood test policies are challenged in the Texas appeals courts.

Currently, the law allows a police officer to obtain a warrant from a judge or magistrate and obtain your blood. As reported, many local prosecutors and district attorneys believe that citizens do not have a right to refuse a scientific test, such as breath or blood.

3) Exceptions to your Right to Refuse a blood or breath test:

DWI: What Does the State Have to Prove?

Troy Burleson — Thu, 21 Jan 2010 14:12:27 -0600

Before the State can convict a citizen of the offense of Driving While Intoxicated, the prosecution must prove the following elements beyond a reasonable doubt:

The State MUST prove that:

The Defendant;
Operated a Motor Vehicle;
In a Public Place;
In the Texas County where the Defendant is charged;
While the Defendant was Intoxicated.

In Texas, the term "Intoxicated" means either:

The defendant lost the normal use of his/her mental OR physical faculties due to the introduction of alcohol, a drug, a dangerous drug, a controlled substance or any other substance into hi or her body; OR
Had a blood or breath alcohol concentration over the legal limit of 0.08.

What is the Difference Between a DWI and a DUI in Texas?

Troy Burleson — Thu, 21 Jan 2010 13:55:04 -0600

One of the most asked questions we get from citizens is, "what is the difference between a DWI and a DUI?". Below, is a detailed explanation of the difference that we posted on our Dallas DWI website and Collin County DWI website.

DWI v. DUI in Texas: What is the Difference?

Under Texas Law, driving while intoxicated and driving under the influence are two distinct criminal offenses. Generally speaking, Driving While Intoxicated is a more major offense under Texas law with a greater range of punishment. Driving Under the Influence is a lesser punished charge with a smaller range of punishment. There are two main differences between DWI and DUI. The first is the age of the person accused. In Texas, any person regardless of age can be charged with DWI. However, only citizens under 21 years of age may be charged with DUI.

The second difference between DWI and DUI is the level of proof needed to prove the offense. To convict a citizen accused of DWI (Driving While Intoxicated) the State must prove that the person was intoxicated at the time he or she was operating a motor vehicle. For the legal definition of "Intoxicated" under Texas law, click HERE.

In order to convict a citizen of DUI (Driving Under the Influence) the State only has to prove that the person accused had ANY detectable amount of alcohol in his or her system at the time they were operating a motor vehicle. The State can prove this various ways including but not limited to: a) the accused admitting to consuming alcohol; b) the odor of an alcoholic beverage on a person's breath; or c) a breath test under the legal limit of 0.08.

Below, please find the law for Driving While Intoxicated and Driving Under the Influence in Texas.

Driving While Intoxicated: Texas Penal Code section 49.04

§ 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. (b) Except as provided by Subsection (c) and § 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours. (c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days. Added by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, § 14.55, eff. Sept. 1, 1995.

Driving Under The Influence: Texas Alcoholic Beverage Code section 106.041

§ 106.041. DRIVING UNDER THE INFLUENCE OF ALCOHOL BY MINOR. (a) A minor commits an offense if the minor operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor's system. (b) Except as provided by Subsection (c), an offense under this section is a Class C misdemeanor. (c) If it is shown at the trial of the defendant that the defendant is a minor who is not a child and who has been previously convicted at least twice of an offense under this section, the offense is punishable by: (1) a fine of not less than $500 or more than $2,000; (2) confinement in jail for a term not to exceed 180 days; or (3) both the fine and confinement. (d) In addition to any fine and any order issued under Section 106.115, the court shall order a minor convicted of an offense under this section to perform community service for: (1) not less than 20 or more than 40 hours, if the minor has not been previously convicted of a prior.

an offense under this section; or (2) not less than 40 or more than 60 hours, if the minor has been previously convicted of an offense under this section. (e) Community service ordered under this section must be related to education about or prevention of misuse of alcohol. (f) A minor who commits an offense under this section and who has been previously convicted twice or more of offenses under this section is not eligible for deferred disposition or deferred adjudication. (g) An offense under this section is not a lesser included offense under Section 49.04, Penal Code. (h) For the purpose of determining whether a minor has been previously convicted of an offense under this section: (1) an adjudication under Title 3, Family Code, that the minor engaged in conduct described by this section is considered a conviction under this section; and (2) an order of deferred disposition for an offense alleged under this section is considered a conviction of an offense under this section. (i) A peace officer who is charging a minor with committing an offense under this section is not required to take the minor into custody but may issue a citation to the minor that contains written notice of the time and place the minor must appear before a magistrate, the name and address of the minor charged, and the offense charged. (j) In this section: (1) "Child" has the meaning assigned by Section 51.02, Family Code. (2) "Motor vehicle" has the meaning assigned by Section 32.34(a), Penal Code. (3) "Public place" has the meaning assigned by Section 1.07, Penal Code. Added by Acts 1997, 75th Leg., ch. 1013, § 5, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 1207, § 2, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch 949, § 29, eff. September 1, 2005.

Dallas DWI Court Process: What You Need to Know

Troy Burleson — Thu, 21 Jan 2010 13:04:22 -0600

If you or someone you love has been charged with drunk driving we know you probably have a number of questions. Most people have never been through the criminal process and therefore do not know what to expect at their court appearances. Each county has different policies and procedures. The professional DWI attorneys at The Law Office of Troy P. Burleson, P.C. practice in the Dallas County Courts on a daily basis. Therefore, we have the knowledge to explain what you should expect at each of your court settings and guide you effectively through the Dallas DWI process. Below is a summary of the Dallas DWI court process. For a review of what to expect from the Dallas County DWI Process, read the information below from our website www.dwidallaslawyer.com.

The Criminal Prosecution of DWI

In Texas, a first offense DWI is a Class B Misdemeanor that carries a range of punishment of not less than 72 hours or more than 180 days confinement in the county jail, a fine not to exceed $2,000.00 or any combination of fine and jail time. The good news is that most DWI offenders never go back to jail after the night of their arrest. Typically, people convicted of DWI are placed on probation for a period of 12-24 months. As long as the person complied with the terms and conditions of his or her probation, no more jail time occurs.

Do not expect to resolve your DWI case at your first court appearance. Several court appearances usually occur before your case is disposed.

First Appearance

The first time you will be required to go to court is know as a "First Appearance" setting. In Dallas County, the first appearance setting will normally be 40 to 60 days after the date or your arrest. At the first appearance, you will inform the court whether or not you have hired an attorney. If you have hired an attorney then he or she will meet with the prosecutors about your case. Your attorney will then begin the process of requesting copies of any police reports, witness statements, videos and any other evidence in the prosecutor's possession. After that, the court will give you a new court date for your first "announcement" setting. You WILL NOT be required to enter a plea or set your case for trial at the first appearance setting. Typically, you will do no more than sit in the gallery of the court during the first appearance process in Dallas. NOTE: If you hire us, you most likely will not have to go to court for any setting except for a plea setting or a trial setting. We will handle them on your behalf.

Announcement Setting (Usually there are two in Dallas Courts)

The settings immediately following your first appearance are know as "announcement" settings. The first announcement setting is typically 20 to 30 days after your first appearance. The second announcement setting is typically 20 to 30 days after the first announcement setting. The purpose of the announcement setting is just like it sounds, to announce to the court whether you are ready to enter a plea in your DWI case or your are ready to set your case for trial.

Just like your first appearance, you will typically do no more that sit in the gallery of the court during the announcement settings. The Dallas courts give citizens these setting to allow attorneys time to obtain all the discovery materials from the Dallas County District Attorney's Office. The discovery materials are all the police reports, witness' statements, videos and any other evidence that your DWI defense attorney typically will request at your first appearance setting. Because of the volume of criminal cases filed each month in Dallas County, it usually takes the Dallas County prosecutors some time to comply with discovery requests. For this reason, Dallas County Judges usually give defendants two announcement settings to ensure that citizens and their attorneys have enough time to receive and review all of the materials necessary to make an informed decision to set a DWI case for a plea of a trial.

In addition to discovery materials, announcement settings also allow your DWI defense attorney to review all of the documents in the court's file to evaluate them for any procedural or evidentiary defects that may warrant a dismissal of your driving while intoxicated criminal case. After your two announcement settings, and once you have had an adequate opportunity to review all the evidence in your DWI case, the Dallas courts will require you to set your case for a plea setting or a trial setting.

Plea Bargain: A Plea of Guilty

If you decide not to fight your case you will enter a plea bargain agreement with the prosecution. However, before you enter a plea of guilty your attorney should carefully review your case to ensure there are no legal defects or factual problems with the prosecution's case that may warrant a dismissal of the charges. After your attorney has completed this process, he or she should explain the pros and cons of entering a plea of guilty and setting your case for trial. Remember, an attorney cannot tell you to plea guilty or set your case for trial. Doing so is against the professional rules of ethics. A good attorney must carefully explain your options clearly so that you can make the best informed decision possible.

If you do decide to enter a plea of guilty, then you will most likely be assessed a fine, jail term, and possible probation. If you are offered probation then the typical terms and conditions of probation usually include: 1) testing for possible alcohol or drug problems, 2) completion of a 12 hour DWI Education program, 3) mandatory attendance at a 3 hour session of a Victim Impact Panel conducted by Mothers Against Drunk Driving, and 4) Community Service of between 24 to 100 hours.

Once the judge finds you guilty, a record of your conviction will be made and forwarded to the DPS. A record of your conviction will be maintained by DPS and will also be forwarded to the Federal Bureau of Investigations so that you can be monitored locally and nationally. A DWI conviction will remain on your record permanently. A conviction for DWI cannot be expunged or Non-Disclosed unless you are pardoned by the Governor or President.

Trial

ONLY THE PERSON ACCUSSED can decide whether or not the case goes to trial. If you plan on taking your case to trial you should be sure that the attorney you hire has ACTUAL TRIAL EXPERIENCE in DWI cases. Not all attorneys, even criminal attorneys, have extensive trial experience. Trial skills are hard to learn and nothing beats experience when your future and freedom is at stake.

A good attorney should give you a personal evaluation of your case's strengths and weaknesses. The attorney should explain the legal reasons (if any) and the factual reason why a judge or jury may find you not guilty. MOST IMPORTANTLY, an attorney should never give you a guarantee concerning the outcome of your case. Trials can be won or lost for a multitude of reasons, most of which may not be foreseeable. An attorney's job is to gather all relevant evidence, properly evaluate your case, then to give you his or her professional opinion concerning the possible outcome. Once your attorney gives you this information, then ONLY YOU can decide to proceed with trial or not.

It is important to note that in most DWI cases the punishment is not increased if you elect to go to trial. In fact, judges and/or juries typically give less punishment if you are found guilty than what the prosecution offers for a plea bargain. The reason for this is because with a trial both the judge and the jury will be fully aware of the facts and circumstances surrounding your accusation. In a plea bargain agreement, the facts are not disclosed except under limited circumstances.

Expunction of your Record--Clearing your name

If you plea guilty then you will have a DWI conviction on your record for the rest of your life. There is NO 5, 7, or 20 year rule that would allow someone to remove a DWI conviction off his or her record. However, if your case is dismissed by the State or if you are found NOT GUILTY then you have a right to have the DWI arrest erased from your record. The process for clearing your record includes filing a Expunction motion with the District Court, obtaining an expunction order from the court, and then sending the expunction order to local and federal law enforcement agencies to permanently erase all record of the DWI arrest from your record.

Airbags may Give False-Hight Breath Test Scores

Troy Burleson — Mon, 26 Oct 2009 12:08:27 -0600

The Tyndall Effect is a physics concept used to discuss something known as “colloidal suspensions.” Colloidal suspensions describe a homogenous substance consisting of submicroscopic particles dispersed in another. Unlike solutions, colloidal suspensions exhibit light scattering. A beam of light or laser, invisible in clear air or pure water, will trace a visible path through a genuine colloidal suspension, e.g. a headlight on a car shining through fog. This is knows as the Tyndall effect (after its discoverer, British physicist John Tyndall), and is a special instance of diffraction. Diffraction is a phenomenon that occurs with gases and liquids.

The original air bag design called for the air bag to be packed in a powdery substance to preserve the inflatability of the bag. Over time, the air bag could develop cracks. The powder prevented the cracking and thus made the air bag available for inflation rather than explosion in the event of a collision. Now air bags are made differently and there is no powder in newer model vehicles.

The Tyndall Effect in breath testing alleges that is a subject is driving in a collision in which the air bag has inflated; the subject would inhale microscopic particles of the powder at impact. All persons who have experienced an air bag will tell you that they get an awful taste in their mouths and sometimes it is difficult to breathe. The effect hypothesizes that these microscopic particles continue to remain airborne for several hours.

If a person has been exposed to an air bag deflation prior to breath testing, some of those microscopic particles of powder will be supplied into the sample chamber at testing. The presence of the powder will “diffract” the light from the infrared source and create a false high result in the breath test.

5 Major Issues that May Affect a Breath Test Result

Troy Burleson — Thu, 17 Sep 2009 14:22:10 -0600

One can do a quick search on Google concerning the Intoxilyzer 5000 and discover that there is a great volume of internet literature concerning the many scientific problems with the machine used in Texas to measure a person’s breath/alcohol concentration. As an attorney dedicated to DWI/DUI defense I have spent numerous hours researching issues concerning the performance, or lack there of, of the Intoxilyzer machine. Below, are the 5 major issues concerning the performance of the Intoxilyzer 5000.

The 5 things that can have a major affect on the machines performance are: 1) Chemical Exposure; 2) Air Bags (aka the Tyndall Effect); 3) Atkins or low carb diets; 4) Gastro Esophageal Reflux Disorder (GERD); and 5) Dental Issues.

The first three (chemical exposure, Tyndall Effect, and Atkins or low carb diets) are problems based on interferents that may not be detected by the Intoxilyzer 5000. The last two relate to “mouth alcohol” which is increased alcohol laden breath results based upon gastro esophagus disorder and dental issues.

To read more about these 5 major issues that may affect the result from an Intoxilyzer 5000 click on the links below:

Chemical Exposure
Air Bags (aka Tyndall Effect)
Atkins or low carb diets
GERD
Dental Issues

7 Defensive Tactics that may be used to WIN your Dallas DWI

Troy Burleson — Sun, 24 May 2009 13:29:06 -0600

7 Defense Tactics that may be used to Win your case prior to trial by using Pre-Trial Motions:

by Dallas DWI attorney Troy Burleson

1. Contest the constitutionality of any search and seizure of your person;
2. Contest the constitutionality of your stop;
3. Contest the constitutionality of the administration of roadside tests (SFSTs);
4. Contest the constitutionality of the probably cause of your arrest;
5. Contest the constitutionality of the reading, or lack there of, of your Miranda rights;
6. Contest the manner in which roadside tests were administered by the officer;
7. Contest the use of any blood or breath test.

You will Be Arrested even if you give a Breath Test Under the Legal Limit.

Troy Burleson — Fri, 20 Feb 2009 13:26:20 -0600

A common misconception among the public is that if a person gives a breath test that is under the legal limit (0.08) then that person will not be charged will DWI. WRONG! See the article below from my other DWI blog for an explanation.

If I give a breath sample under 0.08 the officer will let me go, Right? WRONG! By Plano DWI Lawyer Troy P. Burleson

If you are suspected of drunk driving, you will probably be asked to give a sample of your breath to determine your alcohol concentration. The question most people ask is, "If I give a sample under the legal limit of 0.08, will the officer let me go?” The answer is NO. Even if you give a breath sample below the legal limit of 0.08, you will still be charged with DWI.

Under Texas law, the prosecutors can prove that you were intoxicated by proving:
1) You lost the normal use of your mental faculties; OR
2) You lost the normal use of you physical faculties; OR
3) You had an alcohol concentration of 0.08 or more.

The “Or” in the above law means that the State only has to prove one of the elements above not two or all three. If you give a breath sample under the legal limit, the State will argue that you have a low tolerance for alcohol, you had other substances in your system besides alcohol, or that you had “sobered up” during the time that elapsed between your arrest and the time you gave a breath sample.

Before you are asked to give a breath sample, the officer must read what is known as you “DIC” warnings to you. This warning, which explains the consequences or giving or not giving a breath sample, states out by stating, “You are under arrest…” That means that the office has already decided to ARREST YOU BEFORE you give a breath sample.

Many people are shocked to discover that an officer will still arrest a citizen if they give a breath sample under the legal limit. But, officers will testify to the truth of that statement. So, if you are going to be charged with DWI regardless of what you blow, why would you take he chance on a breath machine that is not universally accepted in the scientific community?

Dallas Mandatory DWI Blood Testing Program: What YOU Should Know!

Troy Burleson — Fri, 20 Feb 2009 12:52:17 -0600

I have written extensively on my Collin County DWI blog about the current law enforcement trend toward mandatory blood testing on citizens accused of drunk driving. Many of our clients ask questions about the legality of forcing citizens to give a blood sample. Although the current state of Texas Law allows law enforcement to obtain a blood warrant to forcible extract a sample of your blood, I along with man other defense attorneys and legal scholars share the belief that this police is against established Texas law and United States Constitutional law.

Below is an article I published in my Collin County DWI blog. This article explains sections of the Texas Transportation Code that you should review about the topic of mandatory blood testing.

DWI Blood Tests: 3 sections of the Transportation Code you should know concerning DWI blood test laws.
By Plano DWI lawyer Troy Burleson

Collin, Dallas and Denton County mandatory DWI blood tests: As I have reported in multiples posts, local counties are experimenting with mandatory blood tests from citizens suspected of DWI who refuse a breath test. These mandatory blood draws are likely to be challenged on state and United States constitutional grounds. As counties increasingly use this overly invasive tactic (forcible inserting a needle into citizens' veins), challenges to these policies are sure to follow.

Currently, the law allows a police officer to obtain a warrant from a judge or magistrate and obtain your blood. As reported, many local prosecutors and district attorneys believe that citizens do not have a right to refuse a scientific test, such as breath or blood.

However, a review of the Texas Transportation Code reveals that a citizen does have a right to refuse a breath or blood test. Below are three relevant sections from chapter 724 of the Texas Transportation Code which controls the law and procedures for blood and breath testing in Texas:

1) Implied Consent Law:

Most citizens do not know that as a condition of being issued a Texas driver’s license, they gave “implied consent” that they would submit to a breath or blood test if asked to do so by a police officer. Here is the Implied Consent law:

§ 724.011. CONSENT TO TAKING OF SPECIMEN. (a) If a
person is arrested for an offense arising out of acts alleged to
have been committed while the person was operating a motor vehicle
in a public place, or a watercraft, while intoxicated, or an offense
under Section 106.041, Alcoholic Beverage Code, the person is
deemed to have consented, subject to this chapter, 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.
(b) A person arrested for an offense described by Subsection
(a) may consent to submit to the taking of any other type of
specimen to determine the person's alcohol concentration.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended
by Acts 1997, 75th Leg., ch. 1013, § 32, eff. Sept. 1, 1997.

2) Your Right to Withdraw your Implied Consent and Refuse a Breath or Blood Test:

Although you gave implied consent to submit to a breath or blood test when you received your driver’s license, the Transportation Code allows you to WITHDRAW your implied consent and refuse a breath or blood test. Below is the relevant section from the Texas Transportation Code:

>§ 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON
REFUSES; EXCEPTION. Except as provided by Section 724.012(b), a
specimen may not be taken if a person refuses to submit to the
taking of a specimen designated by a peace officer.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.

This section of the Transportation Code clearly states that a

“specimen may not be taken”

if a citizen refuses to submit to the test. Therefore, according to the Transportation Code, you have an ABSOLUTE RIGHT to refuse a blood or breath test.

3) Exceptions to your Right to Refuse a blood or breath test:

As indicated in 724.013 of the code, there are some exceptions that prohibit a person from refusing a blood or breath sample. Below are the exceptions from Section 724.012(b) of the Texas Transportation Code:

EXCEPTION:
(b) A peace officer shall require the taking of a specimen
of the person's breath or blood if:
(1) the officer arrests the person for an offense
under Chapter 49, Penal Code, involving the operation of a motor
vehicle or a watercraft;
(2) the person was the operator of a motor vehicle or a
watercraft involved in an accident that the officer reasonably
believes occurred as a result of the offense;
(3) at the time of the arrest the officer reasonably
believes that as a direct result of the accident:
(A) any individual has died or will die; or
(B) an individual other than the person has
suffered serious bodily injury; and
(4) the person refuses the officer's request to submit
to the taking of a specimen voluntarily.

Conclusion:

I am having a hard time understanding the stance of certain district attorneys and counties who seem to believe a citizen does not have a right to refuse a blood or breath test. It seems clear that unless you are 1) involved in an accident, 2) in which an individual has died, will die or suffered serious bodily injury, and 3) you are arrested for DWI then you do have a right to refuse a blood or breath test result (See the above sections from chapter 724 of the Texas Transportation Code). Therefore, I believe it is only a matter of time before these mandatory blood test policies are challenged in the Texas appeals courts.

2 NOT GUILTY Breath Test Verdicts in One Week for Biederman & Burleson

Troy Burleson — Fri, 13 Feb 2009 11:05:30 -0600

It was a great week for the Law Office of Biederman & Burleson. Two of our clients, who gave breath tests over the legal limit, were found not guilty after trials. We reported about the first client here who gave a breath test of over twice the legal limit. A week later, we obtained another not guilty verdict for a client who blew over the legal limit.

When we first met with these clients they intended to plea guilty because other attorneys told them that they could not win a breath test case. Even the prosecutors told us that there was no way we would win these cases! Well, breath test cases can be won with a proper defense. Don't believe us, just ask our clients!

Your Right to Get Your Own Blood Test

Troy Burleson — Sat, 07 Feb 2009 10:43:51 -0600

Under Texas law, if you provide a breath test to an officer and you disagree with the results, you have a RIGHT to request a blood test.

Very few people understand that they have a right to request a blood test of their own if they are charged with DWI and give a breath test. Under Texas law, a Defendant has a right to request a separate blood test of their own if they take and fail a breath test.

However, this is rarely done. The reason is two fold. First, Texas law DOES NOT require officers to inform citizens of their right to obtain a blood test after they fail a breath test. Most people don't know this provision in the law and officers don't tell them about it. Second, even if you are informed about your right to a subsequent blood test, the officer has no duty to take you to a hospital, or any other medical facility, to give a blood test. The defendant, from jail, has to contact someone to perform the blood test. As such, even if a person does request a subsequent blood test it is often impossible to make arrangements to get a test done.

Here is relevant Texas law on a Defendant's Right to His/Her Own Blood Test:

McKinnon v. State, 709 S.W.2d 805 (Tex. App.--Fort Worth 1986, no pet.). ...the arresting officer does not have a duty to advise the suspect of his right to have his own blood test.

Crawford v. State, 643 S.W.2d 178 (Tex. App.--Tyler 1982, no pet.). Failure or inability of defendant to obtain a blood test will not preclude admission of breath test evidence. Failure of arresting officer to inform defendant of his right to a blood test is not a reversible error, though it would have been a better practice for officers to inform defendant of such right.

Why ALR Hearings are Important: Because they can TKO the State's Case!

Troy Burleson — Fri, 06 Feb 2009 09:37:41 -0600

As we have reported here before, the first thing a person must do after his or her DWI arrest is to request an ALR hearing. This MUST be done within 15 days of your arrest. For more explanation on the ALR process see our former post.

Clients often ask why an ALR hearing is important for good reason. Most attorneys put little effort into the ALR process because they see them as lost causes. State-wide, people lose about 85% of ALR hearings. At our office, we WIN close to 60% of our ALR hearings. The reason we have such a high success rate (60% compared to the state average of 15%) is because of our aggressive tactics in these hearings.

TKO'ing the State's Criminal Case at an ALR Hearing.

Last week, one of our client's was found NOT GUILTY of a DWI. The client in this case gave a breath sample of .170 which is over twice the legal limit of 0.08 AND admitted to the officer that he was intoxicated.

How did we get a not guilty verdict? Because we destroyed the State's case during the ALR hearing. Here are some things you need to know about the ALR hearing:

1) They are mini-trials. We get to cross examine the officer about the facts of your arrest;

2) The testimony is given under oath. This means that whatever the officer testifies to in the ALR hearing is under oath and on the record. Therefore, we can pin the officer's testimony down in the ALR hearing. If he/she changes their story at the criminal trial, we can use the ALR transcript to impeach the officer;

3) The officer has not been "coached" by the prosecutors yet at the ALR hearing. The criminal prosecutors do not handle ALR hearings for the State. An attorney for the DPS does. Typically, the state's prosecutor will meet with officers prior to the criminal trial to go over the facts of the case and "remind" the officers of certain facts. In other words, coach the officer on what to say on the stand. This is not the case in the ALR hearing. As such, the defense has a tremendous advantage in these hearing because we get to cross-examine the officer before he/she has been coached by the state.

How Did the ALR Hearing Allow Our Client to Be Found Not Guilty?

My partner, Hunter Biederman, handled the ALR hearing is this particular case. Hunter reviewed the police report prior to the hearing and found that the officer made a huge mistake. In the report, the officer’s only listed reason for stopping our client was that he failed to stop behind a designated line at a stop sign. Hunter then reviewed the video and saw that the officer was correct, our client did not stop and the designated stop line. However, there was a crosswalk and our client DID STOP behind the crosswalk.

Hunter then did a little legal research and discovered that our client committed no violation of the law. Under Texas law, as long as you stop behind a crosswalk there is no violation. Therefore, the officer made a mistake of law. As such, this was an illegal stop and, under the law, any evidence gathered against our client (including the breath test) would be inadmissible in trial.

Hunter cross examined the officer at the ALR hearing about the stop and got her to admit that our client stopped behind the crosswalk and that there were no other traffic violations that would warrant stopping the client. We then got the ALR transcript and set the case for a jury trial.

What Happened at Trial?

On the day of trial we filed a Motion to Suppress all evidence against our client due to an illegal stop. In the motion, we presented the court with the ALR transcript and law regarding stop signs and crosswalks (Section 544.010(c) of the Texas Transportation Code). We then had a hearing on the motion.

The State tried to "Coach" the Officer but it was TOO LATE

Once the State read our motion, they meet with the officer and tried to figure out a way around the officer's prior testimony. The State tried to have the officer offer an alternative reason as to why she stopped our client. After the State's presentation, the trial judge read the ALR transcript and dismissed the State's argument.

As a result, the judge granted our motion and suppressed all evidence gathered during our client's illegal stop, including the breath test result. Thus, the State had no evidence against our client and he was found NOT GUILTY.

What Would Have Happened Without the ALR HEARING?

If my partner, Hunter Biederman, would not have fought as hard in the ALR hearing, the results would have been much different. The State, most likely, would have coached the officer prior to trial and the officer would have offered an alternative excuse for why she stopped our client. However, since we had pinned her testimony down at the ALR hearing, this was not an option for the State. Our client was found NOT GUILTY because of how we handled the ALR hearing. So, don't let anyone tell you that ALR hearings are not important. Our client would beg to differ. After being TKO’d on a breath test case, the State would disagree as well.

ALR Subpoena Requests

Troy Burleson — Sun, 01 Feb 2009 09:58:03 -0600

Recently, SOAH posted new procedures for requesting subpoenas for arresting officers, intox operators and technical supervisors. My law partner, Hunter Biederman, recently wrote an article outlining the new subpoena procedure.

Here is the entire article about subpoena requests:

Everything You Need to Know About the New ALR Rules

by Hunter Biederman

I have been getting a lot of questions, regarding the New SOAH rules.

Of the 3 major issues that we thought might happen, none of them did. Hearings are still in person, no subpoena is needed for BTO’s or Tech Super, and they are still required to be there if we request. The new rules can be found here:

http://www.soah.state.tx.us/AboutUs/ALR_Rules_Bikmkd_n_Linked_eff_20090120.pdf

The major changes that are presented are in the subpoena arena. If there are other major changes, I haven’t noticed them yet.

In the past, in order to subpoena an officer, we would need to create a subpoena and subpoena request and send it to SOAH for their approval and signature. This often created a delay because they will sign them at their own leisure. Or nit-pick the subpoena, reject it, disallowing enough time to generate a new one that was approved.

Now, attorneys can issue their own subpoenas if they are authorized to practice law in Texas. (Sect. 159.103). We may issue up to two subpoenas for witnesses – the peace officer who was primarily responsible for the defendant’s stop or detention, and the peace officer who was primarily responsible for finding probable cause to arrest the defendant. If the same officer did both, you may only subpoena one.

To issue the subpoenas yourself:

1) Use their form found here: http://www.soah.state.tx.us/AboutUs/ALR_Subpoena_Form_Dec_2008_2a.pdf -- You can even type it out online and print it.

2) Send in a check for $10 plus mileage over 25 miles to SOAH, along with the return of service at least 3 calendar days before the hearing.

3) Serve the subpoena within FIVE calendar days before the hearing.

4) Serve DPS a copy of the subpoena the same date it is issued.

5) Serve DPS a copy of the subpoena return not later than 3 calendar days before the hearing.

If for some reason the hearing is reset, you must notify them of the new hearing date. In the past, local SOAH has provided that this should be done by cert. mail, return receipt.

PLANO issues:

This one is still a work in progress. We were recently informed by a 3CDLA member that Plano was no longer going to “accept” subpoenas that are not signed by judges. I took this to mean that we could not use the previously negotiated Subpoena Coordinator (If you recall, it took us months to get Plano to agree to do this instead of us hunting down officers.) This is because they have no choice but to “accept” this subpoena. My first response was, “so what,” I’ll just continue to get subpoenas from the judges like we always did.

WRONG: The Dallas SOAH Judge today informed me that she or the other judges will no longer be signing any subpoenas unless they are one of the 3 enumerated by the rules (2+ cops, civilian witnesses, for pro se people). Therefore, doing what we used to do is not going to work.

I have contacted Plano and am told that they will be issuing a new directive on how to handle this. My guess is that they were worried that we were going to start issuing our own subpoenas, dropping them off the night before, and screwing the officers. I let them know that there is already a 5-day time period in the new rules. In fact, I said that a 7 day period was even reasonable for them to request. I will disseminate what ends up happening with this. Of course if Plano does not accept this new form of subpoena through a coordinator, we are going to have to go back to the practice we had 6 months ago or tracking down the officers on duty, off duty, at home, etc. I’m hoping this doesn’t have to go back to that.

So there you go. That’s all you need to know about the new rules (until I hear more about Plano’s subpoena coordinator). Please tip your waitstaff.

The ALR Process: Protecting Your Driving Privileges

Troy Burleson — Sat, 31 Jan 2009 09:39:43 -0600

The first thing that you must do after you are arrested for DWI is to request an ALR Hearing. An ALR hearing is an administrative process in which your continued ability to drive will be determined. You have 15 days from the day of your arrest to request an ALR hearing. If you fail to request an ALR hearing your license will automatically be suspended 40 days after your arrest. For more information about the ALR process, read the article below written by my law partner Hunter Biederman.

By Hunter Biederman

The ALR Process
Administrative License Revocation Program

I am often asked about the process that occurs after your license is confiscated subsequent to a DWI arrest.

As mentioned on several other pages of this site, there are actually two different processes working against you at the same time. The Criminal Case and the ALR / License Suspension process.

As a general rule, when you hire me, you need to do nothing regarding this process. I take care of filing all motions, requests, and appearing at the hearing. You do not need to do or attend anything. Despite my taking care of everything, it is nice to know what is going on. I always keep my clients updated as to where they are in the process.

Request a Hearing

This is the first step in the process. You must request a hearing within 15 days in order to preserve your right to fight the suspension. In general, this is the first step I take on behalf of my clients. Even if you tried to call in yourself, or sent something in that you cut and paste from another website, I always resend this on my own. That way, I can be sure that it is on the proper forms, and I ALWAYS keep the fax confirmation to prove that we filed on time. I always request a hearing in person, and never by phone.

Request for Discovery

As part of the administrative rules, we are entitled to receive certain documents from the prosecuting attorney (from DPS). I always request these from the department. These documents may include:

Peace Officer's Sworn Report / Probable Cause Affidavit
DWI Statutory Warning
Notice of Suspension
Breath / Blood Test Results
Breath Test Technical Supervisor's Affidavit
Toxicology Report
Specimen Routing Report
Criminal Complaint
Spanish Translation Affidavit
Driving Record

Subpoenaing of Witnesses

It is the responsibility of the requestor of the hearing (you, through me) to subpoena any witnesses that we need. This includes the arresting officer. I request a subpoena from SOAH (the State office of Administrative Hearings), and have the subpoena served on the arresting officer by a process server of mine.

If you submitted to a breath test, we will also request that the Breath Test Operator, and the Technical Supervisor to be present. If properly subpoenaed / requested, and they do not show, the department may either move to continue the case, dismiss the case, or proceed (and usually lose).

Requests for Continuances

Occasionally, I will have a court date, or another ALR hearing on the date of your hearing. If this happens, I will either request a continuance on your case, or have another attorney handle the hearing for me. I usually handle the hearings myself, but occasionally find myself in a situation where I am unable to cover the hearing.

When I do have another attorney to handle your hearing, I always work with them in advance to make sure they understand the issues that we need to focus on. In fact, The attorney that I usually use, used to be a DPS attorney, and is really good at what they do!

Live Hearing

I handle the actual hearing in front of the Administrative Law Judge. Any witnesses requested to be there, must be there. In a breath test case, the department must prove that:

Reasonable suspicion to stop or probable cause to arrest the person existed; and
the person had an alcohol concentration of 0.08 or greater while operating a motor vehicle in a public place

In a case where you refused a breath test, the department must prove that:

Reasonable suspicion to stop or probable cause to arrest the person existed; and
probable cause existed to believe that the person was operating a motor vehicle in a public place while intoxicated or operating a watercraft powered with an engine having a manufacturer's rating of 50 horsepower or more while intoxicated; and
the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and
the person refused to submit to the taking of a specimen on request of the officer.

Filing for an ODL

If I am not sucessful in keeping your licence from being suspeneded, I will file an occupational drivers license for your on your behalf. This is sometimes referred to as a "hardship license." That license will allow you to drive to and from work, school, or anywhere else important that you need to know.

In general, if you are reasonable about the amount of time you are requesting to drive, the judge in your case will be reasonable too. Depending on if your license was suspended in the past, or you have a prior DWI, there may be a waiting period to file for your occupational drivers license.

Other general information

In the past, DPS allowed us time to let our clients know that their license was about to be suspended. Now, your license is suspended when the Administrative Law Judge signs the judgment. Therefore, I always let you know when the hearing is coming up, so you know that the possibility exists that your license is going to be suspended on or around that date.

How long does the ALR process take?

It has been taking longer and longer lately to even get a hearing date on your license suspension hearing. Lately, I have been getting a hearing date no earlier than 90 days from the date of arrest. In some cases it is meeting or exceeding six months to have the hearing.

These long dates can be good and bad. They are good in that your license is not suspended for the entire time, and you can continue to drive as normal. However, if the trial court is moving faster, it would be better to have your ALR hearing before your court case is heard. This would give us an opportunity to cross-examine the police officer and help determine the strengths and weaknesses of your case.

Are DWI Roadblocks Legal in Texas?

Troy Burleson — Tue, 16 Dec 2008 16:47:35 -0600

The Fourth Amendment to the United State's Constitution prohibits illegal and unnecessary search and seizures without due process of law. DWI roadblocks or checkpoints have been used in various states in an attempt to crack down on drunk driving. However, stopping citizens without justification can be impermissible under both Federal and State law. As the law currently stands, the use of roadblocks is limited and highly regulated.

For a DWI roadblock to be legal, the roadblock must be established under a political accountable authority, usually a governor of a state, and have specific guidelines set out by said authority. The roadblock must have standardized procedures in order to serve a stated purpose that minimized an officers discretion on who and when to stop.

The following cases summarize Texas Law concerning DWI roadblocks.

Michigan v. Dep't of State Police, 496 U.S. 444 (1990). united States Supreme Court upheld the constitutionality of sobriety checkpoints established pursuant to guidelines established by a political accountable authority (the Governor of the State).

State v. Sanchez, 856 S.W.2d 166 (Tex. Crim. App. 1993). in the absence of evidence of authoritatively standardized procedures followed in operating the subject roadblock (driver's license/insurance) in order to serve its stated purpose and minimize the officer's discretion, and int he absence of testimony or empirical evidence demonstrating the effectiveness of the roadblock, the court of appeals erred in concluding that the roadblock was reasonable under the Forth Amendment.

Holt v. State, 887 S.W.2d 16 (Tex. Crim. App. 1994). Sobriety checkpoints are unreasonable and unconstitutional under the Forth Amendment unless and until a politically accountable state governing body enacts constitutional guidelines foe such checkpoints.

If I refuse a breath test can I be forced to take a blood test?

Troy Burleson — Mon, 15 Dec 2008 14:06:09 -0600

If you are suspected of drunk driving in Texas then you will probably be asked to voluntarily give a sample of your breath or blood. However, you can refuse to give a sample. if you do refuse then the police officer who arrested you may be able to get a warrant from a judge or magistrate to force you to provide a breath sample. We have reported quite a bit on so called "no refusal" weekends in our blags here.

Here is some law that enables the State to obtain a warrant and force you to give a blood sample.

Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). Defendant refused to consent or submit to a breath test. The officer obtained a search warrant for defendants' blood. Over defendant's objection, the specimen was drawn at a local hospital. Defendant argued that the Implied Consent law exclusively controlled how an officer could obtain a breath or blood specimen following a person's arrest for DWI. The Court ruled that nothing precludes an officer from obtaining a warrant if probable cause exists irrespective of whether a driver consents.

Dye v. State, No. 08-02-00018-CR, 2003 Tex. App. LEXIS 1556 (Tex. App.--El Paso Feb. 20, 2003, no pet.). The officer obtained an evidentiary search warrant to conduct a blood test. Defendant moved to suppress the test result arguing it was conducted in Violation of Tex. Transportation Code section 724.012 and 724.013. The court found that Sections 724.012 and 724.013 became moot when a valid search warrant is secured by an officer.