Houston DWI Law Blog

Houston Police Announce DWI "No Refusal" for July 4th Weekend

Dane Johnson — Fri, 01 Jul 2011 10:27:58 -0600

Harris County DWI Enforcement Officers are at it again with another DWI "No Refusal" weekend planned for the 4th of July.

So what exactly does that mean? It means that if you are arrested for DWI and refuse to voluntarily give a breath test or blood test, the Government will forcibly put you in a chair and stick a needle in your arm to take your blood.

Although the Texas Courts disagree with me, I firmly believe that our right to be free from unreasonable searches and seizures in all aspects of our lives should cover a misdemeanor DWI charge. In my opinion, the involuntary taking of a citizen's blood should not be allowed in misdemeanor DWI cases. Let me know your thoughts on this or any other DWI related matters.

Headline Irony: "Former MADD Head Charged With Drunken Driving"

Dane Johnson — Fri, 25 Feb 2011 15:51:22 -0600

Let's just say the headline struck me as quite ironic. It seems every other day MADD seems to be cramming some new piece of propaganda or legislation down our throats.

Let me further say that this woman should be afforded the presumption of innocence and all other constitutional protections just like every other DWI and criminal defendant.

Unfortunately and ironically, it seems that MADD has and continues to tear away at the presumption of innocence in DWI cases. Even before a person is convicted of DWI, MADD has pushed legislators to require DWI suspects to install Ignition Interlocks in their vehicles - so much for the presumption of innocence in these cases.

Houston Police Department Announces Yet Another DWI Enforcement Program

Dane Johnson — Wed, 16 Feb 2011 14:34:44 -0600

The Houston Police Department has once again announced another Houston DWI Initiative aimed at reducing the number of DWI accidents and DWI fatalities in the Harris County area. HPD was joined in this announcement by the Harris County District Attorney's Office, Mothers Against Drunk Driving (M.A.D.D.) and Crime Stoppers.

The stated goal is "to reduce drunk driving accidents and associated fatalities by using a combination of public education and heightened enforcement of drinking and driving offenses."

They are once again touting the HPD Breath Alcohol Testing (BAT) vans. These are the mobile DWI investigation vans that HPD and other police agencies use to investigate Houston DWI cases. They drive the vans to various locations around the city to perform breath tests, blood tests and obtain warrants for blood when a citizen refuses to give blood.

By the looks of the crowd, it doesn't seem like many people were too interested in attending the event.

If Arrested for DWI in Houston, Texas - Can I still Drive?

Dane Johnson — Tue, 01 Feb 2011 11:32:39 -0600

Assuming that you were driving on a valid Texas Driver's License at the time that you were arrested for DWI, there should be no restriction on your driving privileges immediately after you are arrested for the DWI. You can legally get in your car and drive as if you were not arrested for DWI.

If you do nothing at all, you will automatically have your Texas driver's license suspended after 40 days. However, if you request a hearing to contest the automatic suspension of your driver's license within the first 15 days after your DWI arrest, Texas DPS can not suspend your Texas driver's license unless and until you have a hearing on your Texas driver's license. This hearing on your Driver's License is called an Administrative License Revocation (ALR) hearing.

DPS does on occasion lose or misplace the request for your ALR hearing and DPS has taken the position that it is your responsibility as the person arrested for DWI to "prove" that you made a proper request for an ALR hearing. Therefore, it is imperative that you hire a competent Houston DWI lawyer to represent you on your DWI and ALR cases.

Harris County DA's Office Changes Tune on DWI DIVERT Program

Dane Johnson — Wed, 08 Dec 2010 14:30:09 -0600

The Harris County DWI DIVERT Program has turned into exactly what I expected at the inception of the program. Despite the promises by Roger Bridgwater when the program was first created, the standard line that we are now hearing from prosecutors is, "If we evaluate the case for trial, the DWI Divert Program is no longer on the table as an option in this case."

A little background might help explain. Roger Bridgwater, the Assistant Harris County District Attorney who came up with the DWI DIVERT Program, told members of the defense bar last year that the prosecutors in the courts would evaluate each Harris County DWI case on the merits. He went on to say that the evaluation of the DWI case would not disqualify anyone from participating in the DWI DIVERT Program.

Because we are hearing it more and more often, I have to assume the DA's office has a new policy that they have yet to share with the defense bar and has gone back on its original promise.

Harris County Judge Questions Houston DWI DIVERT Program

Dane Johnson — Tue, 07 Dec 2010 14:41:58 -0600

Harris County Court Judge Bill Harmon questions the legality of the Harris County DWI DIVERT Program. Does that sound familiar? Seems like he is not the only one questioning it.

Judge Harmon tells 11 News of the controversial DWI DIVERT Program, "It's illegal." He goes on to say of the Program, "All 14 of my colleagues are doing it. And certainly I could have gone along with this illegal program, and if I had, you wouldn't be sitting down here today."

He is not alone in his thinking. The legislature has made DWI one of the only crimes in Texas that is not eligible for deferred adjudication probation - that's right, one of the only crimes. Murder, Aggravated Robbery, Burglary - all eligible for deferred adjudication probation, but not DWI. The legislature took deferred adjudication away as possible outcome on a DWI back in the early 1980's. Maybe its time the legislature revisited the idea of allowing deferred adjudication for those charged with DWI.

Houston DWI "No Refusal" Weekends - Now Every Weekend in Harris County?

Dane Johnson — Mon, 20 Sep 2010 14:10:45 -0600

According to Herman Martinez' blog, Harris County DWI "No Refusal" weekends are going to be every weekend for the next 3 years. This should come as no surprise to any of us DWI attorneys that regularly defend those that are charged with DWI. Apparently, the federal government has given Harris County a federal grant that funds the DWI "No Refusal" weekends.

I wonder how this will effect the crime lab that is now responsible for testing the blood that is drawn on DWI suspects? I just received the blood results of a client that had his blood involuntarily back on July 4, 2010 - it took over 2 months to get the blood results. Will the backlog at the Houston Police crime lab grow even larger than it already is? Will the federal grant pay to employ more employees at the Houston crime lab to test these additional blood samples? As always, has the government really thought through the logistics of these "No Refusal" weekends or have they hastily approved a plan that is destined to create a further backlog at the Houston Crime lab?

Labor Day in Houston - Another "No Refusal" Weekend

Dane Johnson — Fri, 03 Sep 2010 15:07:45 -0600

Another holiday weekend brings out the cops and their "No Refusal" policies. The Houston Police Department has announced that they will once again start sticking needles in the arms of citizens for misdemeanor DWI offenses.

So what does it take for you to be strapped down against your will and have a needle stuck in your arm? As it turns out, not a lot. The police pull you over, smell alcohol and claim you are intoxicated. They fill out a few forms, ask a Judge to sign a warrant (according to those that have checked, no warrant has been refused) and you are strapped into a chair with a needle stuck into your vein.

So how do you avoid the needle stick? Don't drive while intoxicated.

By the way, you will not be in a hospital for this invasion procedure. Instead, you will be in the "bat van" - a van they drive around the city and park. All the other DWI suspects that refuse a breath test will be brought to the same site. In our experience, the "bat van" has its own issues with cleanliness.

Can Harris County Prosecute for Boating While Intoxicated off the LaPorte Coast?

Dane Johnson — Wed, 11 Aug 2010 10:37:26 -0600

The simple answer is, they can try. Jurisdiction in Harris County criminal cases is not normally an issue, however, there is more to that story.

A few months ago, LaPorte Police Officers arrested a Harris County citizen for Boating While Intoxicated. Client was boating in the waters of Galveston Bay adjacent to LaPorte, Texas. It should be noted that LaPorte is wholly within Harris County. LaPorte police officers flagged the defendant down and ordered him to shore, ultimately arresting him for Boating While Intoxicated. They called the Harris County District Attorney's office and they accepted the BWI charge.

During the course of our representation, Client informed us that the portion of Galveston Bay adjacent to LaPorte where the "boating" took place is actually a part of Chambers County, not Harris County. After bringing this to the prosecutor's attention. he contacted a "higher up" at LaPorte PD to verify - sure enough, client was in Chambers County at the time of the "boating."

Apparently the LaPorte PD and Chambers County officers have an "Agreement" that it is OK for LaPorte to enforce the law in the waters of Chambers County. Unfortunately for the LaPorte PD, they did not consult Harris County defense attorneys prior to entering this "Agreement" to see if we were OK with it.

Harris County does not have jurisdiction to hear cases that occur in other counties. However, it is up to the accused to bring this to the attention of the court.

Houston DWI DIVERT Program - Preferential Treatment for Professional Athletes?

Dane Johnson — Tue, 03 Aug 2010 12:29:04 -0600

Do professional athletes get preferential treatment in the Harris County DWI DIVERT Program? Don't get me wrong, I'm very happy for this individual and don't blame him. I would only hope the preferential treatment would extend to all of the rest of those in the Harris County DWI DIVERT Program. I would like to see the same courtesy to all, not just the professional athletes.

The Harris County District Attorney's Office officially started the DWI DIVERT Program in August of 2009. According to the District Attorney's office, the minimum contract period for anyone in the DWI DIVERT Program is one year. Therefore, it seems that none of the people in the DWI DIVERT Program could possibly have been finished with the program and had his case dismissed, right? WRONG!!!

Let's take a look at the chronology of a local professional athlete's case.

March 2008 - Professional athlete arrested for DWI in Houston.
August 2009 - DWI DIVERT Program started by Harris County District Attorney's office.
September 22, 2009 - Professional athlete placed into the DWI DIVERT Program.
April 1, 2010 - Professional athlete's DWI case dismissed by District Attorney - Just over 6 months into program.
September 20, 2010 - Day the case was originally scheduled to be dismissed.

Because we are less than a year into the program, I suspect this case is the only DWI DIVERT dismissal that has taken place so far. So I ask you again, is there preferential treatment for this professional athlete by the Harris County District Attorney's Office?

Deferred Adjudication for a Houston DWI?

Dane Johnson — Thu, 15 Jul 2010 13:32:20 -0600

A question that we here fairly often, "Can you get Deferred Adjudication for a Houston DWI?" Not since 1984 have Houston DWI suspects been able to receive a deferred for their DWI arrests. That' right, the Texas Legislature took the deferred probation option away from DWI suspects over 25 years ago.

What is more surprising to those that don't practice criminal law, a citizen charged with any other crime in Texas is eligible for deferred probation. Murder? Sexual Assault of a Child? Aggravated Assault? Drug Dealing? Yes, each and every one of these crimes is eligible for deferred adjudication probation. but not DWI.

Why is it that DWI is the only crime in Texas that one is not eligible for deferred? Could it be that we really think a DWI is a worse crime than murder? Could it be that the Legislature is beholden to someone? Could that someone be the incredibly powerful lobbyists at MADD? Let me know your thoughts.

July 4th Weekend - Another "No Refusal" Weekend for Houston DWI Suspects

Dane Johnson — Fri, 02 Jul 2010 12:20:13 -0600

The 4th of July weekend brings another weekend that law enforcement will once again utilize its controversial “No Refusal” policy for those citizens arrested for a Houston DWI offenses. Law enforcement agencies have teamed up with the district attorney’s office to force blood from DWI suspects who don’t volunteer to give a breath or blood test.

When a police officer, sheriff’s deputy or DPS Trooper arrests a citizen for DWI this 4th of July weekend, they simply won’t take no for an answer. Even though we all have a right to refuse a breath or blood test, law enforcement just refuses to see it that way. Instead, these law enforcement officers – with the aid of the district attorney’s office – will fill out a search warrant affidavit and ask a Judge to sign that affidavit. The police will then strap the DWI suspect down and forcibly take his blood.

It should be noted that a prominent Houston DWI lawyer recently made a request to determine how many, if any, DWI blood search warrants had been refused by the Judges. The answer, I believe, was none. The Judges are “suppose” to be neutral and detached from the facts and the results in this process. They are “suppose” to carefully scrutinize these DWI search warrant affidavits and only sign if the affidavit is sufficient. Does it sound like the Judges are acting as a rubber stamp in these DWI search warrant cases? Does it sound like the Judges are acting neutral and detached in this process as required by the Code of Criminal Procedure?

For a more cynical article, read Paul Kennedy's take on the "No Refusal" 4th of July weekend.

Houston DWI Cops Practice Drawing Blood from Prisoners in Psychiatric Ward

Dane Johnson — Mon, 21 Jun 2010 12:56:46 -0600

What is wrong with the title of this? The real question is what was the Government thinking? Testing psychiatric patients to further prosecution for DWI arrests is irresponsible at best, and depending on your views, downright despicable.

How far is the Government going to go in its efforts to obtain evidence in Harris County DWI cases? Should we allow this police state type behavior or are we going to finally say enough is enough in these DWI investigations? Fortunately, Houston Mayor Annise Parker finally told the Houston Police Department to stop to this particular DWI program.

So why were the Houston Police officers drawing psychiatric patients blood? They were there "training" to become phlebotomists - yes that's right, phlebotomists. The Houston Police Department started training DWI officers to draw blood on suspects arrested for DWI several months ago to negate the necessity of having a qualified medical person take blood in DWI cases.

According to Stephen Dean at Channel 2, the University of Texas Medical Branch said in a statement,

UTMB’s Correctional Managed Care program has an agreement with Lone Star College involving its Law Enforcement Phlebotomy Program. The participating Houston police officers at the units were there as part of the Lone Star College course they were taking. Having blood drawn is part of the standard intake process at TDCJ and offenders were given the option of having a police officer or a staff phlebotomist perform the procedure. All of the offenders involved chose to allow the police officers to do the procedure.

So every psychiatric patient involved would rather a cop draw their blood than a certified trained professional? Why would psychiatric patients even be in the pool of persons to "practice" on? As we say in the legal profession, this just doesn't pass the smell test. Actually, for a more satirical take on this issue, take a look at Mark Bennett's blog.

Thanks to Mayor Parker for stopping a program that should never have been started in the first place.

A Compliment from a Police Officer - What's the DWI World Coming To?

Dane Johnson — Wed, 02 Jun 2010 14:41:36 -0600

I had an interesting conversation with a police officer today after an ALR / Driver's License Hearing today related to a client's DWI arrest. We spoke briefly about the defendant and the facts of the case that we had the hearing on today.

The police officer went on to thank me for my previous cross examinations of him in the past. He said that he has changed the way that he conducts his DWI investigations and the way in which he writes his DWI case reports. Unlike some that we encounter, this police officer takes a great deal of pride in his work and truly wants to "get it right."

Believe it or not, I want police officers to have pride in what they do and do their jobs well. It was refreshing to hear a police officer thank me for a rigorous cross examination, which is not the norm. It is also refreshing for the officer to recognize that we all have a job to do in the criminal justice system. Their job is to investigate and arrest suspects, the district attorney prosecutes and we have a duty to defend. Thank you officer for recognizing this.

Memorial Day Weekend - Another DWI "No Refusal Weekend" - What Does That Mean?

Dane Johnson — Tue, 01 Jun 2010 12:47:19 -0600

Houston Police and other Harris County police agencies used this Memorial Day weekend to once again deprive citizens of the privacy we should all have in our own bodies. Memorial Day weekend was announced as a "No Refusal Weekend" by authorities.

So what exactly is a "No Refusal Weekend?" If you read the words, you would think that we as citizens of Harris County do not have the right to refuse to give a breath test or blood test if offered by the police. This could not be further from the truth - you can always refuse to do any of the tests the police ask us to do. That includes the right to refuse field sobriety tests, breath tests or blood tests.

That brings us back to the question, what is a "No Refusal Weekend?" If you refuse to give a breath test or blood test, the police are forbidden from taking your blood at that point without a search warrant. During the "No Refusal Weekend," the government puts together a team of police officers, medical personnel, district attorney's office representatives, nurses, the "bat van" and Judge(s). The purpose of putting this "DWI TEAM" together is to make getting a search warrant for your blood easier. The arresting officer will take you to where the "DWI TEAM" is. The district attorney's office will help the officer draft a search warrant that is then presented to a "Neutral and Detached" Judge. The Judge signs the warrant and they strap you down and extract your blood.

By refusing to give your breath or blood, the "DWI TEAM" is forced to jump through a few extra hoops which can sometimes lead to problems for the prosecutors. Don't let the media / police / MADD / District Attorney's PR campaign go unchecked. I hope that our citizens actually know the law, not what these PR campaigns want them to know. If arrested for DWI, you absolutely have the right to refuse a breath or blood test.

Should Houston Juries Know Margins of Error in Breath Testing?

Dane Johnson — Tue, 25 May 2010 12:59:52 -0600

A hearing was held to determine what evidence is required to be presented regarding breath tests in DWI cases in Washington. At issue, whether the State should be required to produce for the DWI defense team and jurors the margin of error in breath testing procedures. In other words, should the jurors in a DWI case with a breath test be given information about the breath test and the inherent errors in the breath testing machine?

Ted Vosk, the attorney for the DWI suspect, merely says, "All we’re asking is that this information be given to defendants and to the jury.” Vosk is not arguing that the test should be thrown out all together. However, he is arguing that the jurors should be given all information regarding the test.

He goes on to say, "If prosecutors are going to use these tests as evidence, they should be required to show the jury the full picture."

To most of us citizens, this sounds pretty reasonable. If the government is trying to convict a citizen of DWI (or any other crime for that matter), don't you think it makes sense that they have to provide everything to the defense? I don't think that many would want their government to hide evidence in DWI cases - maybe I'm wrong.

So what did the government say? Prosecutors argue that the law doesn’t require them to provide an uncertainty calculation for each test. State legislators already have established the hurdles that must be cleared for prosecutors to introduce test results as evidence — a move to clarify drunken-driving law. The margin of error is not among the criteria, Snohomish County deputy prosecutor Elise Deschenes said. Jurors should be allowed to hear the results even if the margin of error isn’t calculated. It is up to the defense attorneys to attack the results, she said.

“It’s just one more way that the defense attorneys are trying to keep out the breath tests,” Deschenes said.

It seems like the prosecutors in this case don't really care about the fairness of the process or the potential for convicting an innocent person. How about some independent thought from the prosecutor? How hard would it be to tell the Court, "Judge, we have so much confidence in this breath test machine that we are happy to turn over the margins of error - we can win even with this evidence being presented?" I would have gained a great deal of respect for the prosecutor if he had done just that. But instead, the prosecutor tries to avoid being forced to turn it over.

I would hope the prosecutors here in Houston would have the guts to take a different stand on this issue than the prosecutors in this case. Do you think Houston juries should have all the evidence about the breath test? Share your thoughts.

Thinking About the Houston DWI DIVERT Program? Have a Concealed Handgun License?

Dane Johnson — Wed, 19 May 2010 15:12:49 -0600

Is your concealed handgun license important to you? If so, the Harris County DIVERT Program may not be for you. You see, if you have a pending charge for DWI, DPS may send you a notice that they are going to try and suspend your License to Carry a Concealed Handgun.

So how does this relate to the DIVERT Program? While you are a participant in the DIVERT Program, your DWI case is still "PENDING" in the Harris County court system. Beware, the entire time your DWI case is pending you may not be eligible to carry your concealed handgun license. If you are concerned, ask your DWI lawyer about the ramifications of the DIVERT Program on your concealed handgun license.

Just one more potential pitfall with the Harris County DIVERT Program that no one told you about.

Harris County DWI Blood Draws - Look to Austin for Help

Dane Johnson — Thu, 13 May 2010 14:28:28 -0600

According to the Austin American Statesman, the Travis County (Texas' capital county), Commissioner's Court approved a plan that would allow the city of Austin and Travis County to share the cost of employing a phlebotomist at the county jail to draw blood from those suspected of DWI. The reasoning, save the taxpayers money. Not a bad reason to try something new.

Hiring a non-cop (someone with blood drawing experience) to draw blood sure does seem like a better idea than having cops draw blood. Harris County, however, is in the process of training police officers to draw DWI suspects blood. Let the cops do what they do and let the medical people do what they do.

COPS SHOULD NOT BE TAKING BLOOD FROM ANY CITIZEN - DWI SUSPECTS ARE NO EXCEPTION

Harris County should take a page out of Austin's book and have a medical person draw blood. Keep the cops away from needles.

Does Driver's License Surcharge Lead to More DWI Dismissals?

Dane Johnson — Wed, 12 May 2010 14:30:31 -0600

Just a little background. In 2004, the Texas Legislature mandated that anyone convicted of DWI in Texas is required to pay a driver's license surcharge in order to legally continue to drive. The surcharge on a driver's license is between $1,000 and $2,000 per year for 3 years. The state has failed in its attempt to collect many of the imposed surcharges.

The question, what purpose does the surcharge (I call it a tax or fine) serve? Does the surcharge help resolve DWI cases or simply encourage citizens to go to trial?

According to Derk Wadas of Plano, "A former District Judge testified before the Texas Public Safety Commission that the effect of the surcharge program has been to actually increase DWI dismissals because so many more DWI cases are being tried to juries since the passage of the surcharge law."

Maybe the surcharge is actually helping many of those charged with DWI from ever having a conviction. More and more dismissals means less and less money for the government.

Basketball Coach Resigns After DWI Arrest - Why?

Dane Johnson — Mon, 03 May 2010 12:29:09 -0600

According to reports, Hofstra's men's basketball coach Tim Welsh resigned only 3 days after he was arrested and charged with DWI. The question that I ask, "Why, why would you resign after only an allegation of Drunk Driving?"

"The university accepted the resignation in the best interests of the university and of the men's basketball program," Hofstra spokesman Stephen Gorchov said in a statement. According to the report, Welsh was to be paid $3 million over the next 5 years.

Was this really a resignation from someone charged with DWI or did the University force him to resign. My guess - the University forced him to resign pursuant to some morality clause in his contract, though that was not in any report I have seen. This begs the question, "Is an arrest for DWI really a morality issue." There have been coaches that have certainly survived a DWI arrest and conviction. Let me know your thoughts on this issue.