DWI Stops & Testing

Did you know Sullo & Sullo Attorneys have MORE NOT GUILTY JURY VERDICTS at Houston Municipal Court than any other Law Firm (2009-2014, 2017, 2018)?

If you are facing DWI charges in Texas, you may be wondering what you need to do next to minimize the consequences of these charges. Perhaps you are wondering whether your stop was actually lawful, whether your field sobriety tests were conducted properly—or were even required—and whether there may have been issues with your breathalyzer or blood test. You may assume that if you failed one or more of the tests that you are already essentially convicted, so you might as well plead guilty. This is the time to stop, take a deep breath, and consider calling an experienced Harris County DWI attorney. Consider the following:

  • DWI is an “opinion” crime. It has been shown that field sobriety tests are not reliable indicators of sobriety, rather based on the police officer’s opinion. A DWI stop begins with a police officer’s opinion—that you were driving erratically, giving the officer reasonable cause to pull you over. Next, the officer will make an opinion about your demeanor—whether your eyes are red, or you are slurring your words. Then your field sobriety test performance will be judged by the police officer. In other words, the officer’s opinion about certain things will get you arrested, and a jury’s opinion about your innocence or guilt will determine whether you are convicted. Unfortunately, many police officers, prosecutors and jurors use their opinions to determine guilt, therefore you absolutely must have a strong legal advocate in your corner to point out the flaws in the system.
  • Next, always remember that you are not guilty unless and until you are proven guilty beyond a reasonable doubt. Perhaps you truly were wrongly accused of DWI. Or, perhaps your BAC was borderline, and you were honestly fine to drive. Or, you may have actually committed a serious error in judgement by drinking then getting behind the wheel. Whatever your situation, it is never the best choice to simply plead guilty and hope for the best.
  • Finally, remember that your Harris County DWI attorney has experience fighting DWI charges. Your attorney will fight hard for you, your rights and your future, possibly having your charges reduced or dropped altogether if there were serious issues with your DWI stop or testing. If that is just not possible, then your attorney will work hard for reduced sentencing—sentencing that will not completely derail your life. Your Harris County DWI lawyer will hold the prosecution and jury accountable to the legal premise of “beyond a reasonable doubt.”   

Before you decide to throw in the towel and plead guilty to your charges, take the time to speak to a knowledgeable Texas DWI attorney so you will have a clear idea of your options and the potential penalties for your charges. Not only will having a highly qualified DWI attorney by your side lend you credibility with the prosecutor, judge and jury, it can also take a huge burden off your shoulders. You have plenty of things to worry about right now. A single bad decision in the DWI process can potentially have adverse consequences for a very long time to come.

Your DWI attorney will ensure no bad decisions are made from this moment forward. There may be many issues with your DWI concerning your initial stop, your field sobriety test, and your BAC test. Your attorney will know the right questions to ask to reveal any issues which could work in your favor.  After all, the state’s tools against you are essentially a breath or blood test, a field sobriety test, and the police officer’s opinion. Let’s look at these issues in more depth.

The DWI Checkpoint - Were you stopped at a DWI checkpoint, or simply pulled over by a police officer? DWI checkpoints are roadblocks used by the police to assess the sobriety of passing drivers. The stops are often set up during dates and times when the police believe high numbers of intoxicated drivers will be on the roads—holidays and weekends. At these DWI checkpoints, breathalyzer tests may be performed on individuals who are suspected of intoxication. The question is whether DWI checkpoints are legal in Texas. This is a complex issue. DWI checkpoints have been challenged on the basis they violate the Fourth Amendment, which prohibits unreasonable searches and seizures. Some states permit DWI checkpoints, under the theory that the checkpoints benefit public safety, and public safety concerns outweigh an individual’s rights.

When the level of intrusion to the drivers is considered minimal, the state can demonstrate an interest in protecting the general public from intoxicated drivers, and the state can demonstrate the DWI checkpoints are effective in ensuring public safety, DWI checkpoints may be deemed legal. Texas, however, has not approved DWI checkpoints; in 1991, the Texas Court of Criminal Appeals held that such checkpoints were unconstitutional. This means that if you were stopped at a DWI checkpoint prior to your DWI arrest, your rights may have been violated. Despite the issues with Texas checkpoints, police officers in the state may still detain anyone they have reason to believe is driving under the influence. That being said, the police officer must have reasonable cause to do so.

Police Stops on Suspicion of DWI - A police officer must have reasonable cause to pull you over. While “reasonable cause” is somewhat subjective, there are times when the police officer absolutely did not have reasonable cause. Some of the causes to challenge a stop, include the following:

  • Racial profiling—you were stopped because you are a person of color and were driving in a predominately white neighborhood. Race, religion, national origin, gender identification or creed cannot be the basis for pulling you over.
  • Your only “fault” was that the officer saw you leaving a bar—just because you left a bar (even if you had been there for hours), does not justify a stop, unless the officer observed you violating a specific traffic law. You could have been playing pool or visiting with friends and may not have even had a single drink. The officer may not assume that just because you left a bar you are guilty of driving while intoxicated.
  • The officer offered no specific details on why you were pulled over—there was no mention of your driving conduct, no mention of your demeanor or the smell of alcohol, the officer only testified that you were stopped and arrested. The officer must clearly articulate specific facts which led him or her to believe a crime was being committed. If only generalities are remembered, then the stop may not have been lawful.
  • You were driving late at night—no matter what time of day or night you were driving, this cannot be the sole reason the officer pulled you over. The officer may be making an assumption that if you are driving at 2:00 p.m., you probably just left a bar and are inebriated. This is a huge leap on many fronts. Perhaps you work the night shift and were headed home. Perhaps you have a family member in the hospital, and you just left to go home and get some sleep or take a shower. No matter why you are out late at night or in the early hours of the morning, the police officer may not use that as the sole cause for pulling you over.
  • Refusal to answer questions—If you gave your name and address, then politely refused to answer any more questions, this is NOT sufficient cause to arrest you for DWI. You have the right to refuse to answer questions, and the officer may not decide to arrest you for DWI based on this fact.

Problems with Field Sobriety Tests - If a police officer has reason to believe the driver is intoxicated, the driver may be asked to take field sobriety tests. These are standardized physical tests. While many people believe they are required under the law to take these tests, in fact, in the state of Texas, you may politely refuse. Field sobriety tests have been shown to have major weaknesses and have been deemed by many scientific researchers to be only “somewhat” accurate. Suspects with any of the following issues can do poorly on field sobriety tests, even when totally sober.

  • Poor balance;
  • Inner ear problems;
  • Obesity;
  • Advanced age;
  • Mental impairments;
  • Restrictive clothing;
  • Inclement weather;
  • Speech or hearing impediments;
  • Poor vision;
  • Certain illnesses;
  • Fatigue;
  • Anxiety regarding the field sobriety tests;
  • Certain prescription drugs;
  • A sloped and/or rocky surface, or
  • Improper shoes, such as high heels for a woman.

The problem with these tests is that many people are unable to pass them—particularly, the one-leg stand—even when they are absolutely sober. Those who do not have really good balance are probably unable to hold one foot off the ground for thirty seconds without swaying, hopping, or putting a foot down. So, should you agree to field sobriety tests? Whether or not you should refuse the field sobriety tests is a somewhat complex question, and the answer is based on many different things.

If you have had absolutely nothing to drink, have taken no drugs (prescription, over-the-counter, or illegal), have no medical conditions, and have pretty good balance, then taking the field sobriety tests could, potentially, allow you to go home and try to forget about the stop. If, however, you are the least bit unsure about the tests, you are better off refusing and asking for an Harris County DWI attorney.

Breath and Blood Tests - Like field sobriety tests, breathalyzer tests and blood tests can have serious issues. A breathalyzer machine may not have been properly maintained, properly calibrated, or the officer may not be properly trained in using the machine. Other than procedures and maintenance issues, breathalyzer tests are not entirely reliable, and can be challenged by your attorney, based on a number of issues. Medical conditions, including diabetes, asthma and acid reflux can cause a breathalyzer test to report a false positive result. Unusual breathing patterns, shallow breathing or an insufficient breath sample can also result in an inaccurate breath test. Blood tests, while generally considered the most accurate of all tests, can also have issues. There may be a problem with chain of custody of the blood sample; blood samples are handled by different personnel, and throughout the process blood samples can be mixed up or contaminated.

While you may refuse a breathalyzer test, you will be penalized for doing so through the loss of your Texas driver’s license. While you may also refuse a blood test, there are certain instances when your blood can be taken regardless of your refusal. If a warrant is obtained for a blood draw, you must submit. Under certain circumstances, in Harris County, you may be under “no refusal,” meaning you must submit to a blood test. That being said, if your blood is taken without a warrant and without your consent, your Harris County DWI attorney may have grounds to have the results of the blood test excluded.

How a Sullo & Sullo DWI Attorney Can Help - As you can see, there are many issues associated with DWI stops, field sobriety tests and BAC tests. If you have an experienced Sullo & Sullo DWI attorney on your side, in your corner, we will fight to have faulty test results barred from your trial. Our knowledge and skills give you the very best chance for a positive outcome to your DWI trial, and we are ready to put our experience to work for you. Never, ever give in without a fight if you have been charged with a DWI. Contact Sullo & Sullo today.

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