Houston Criminal Lawyer and DWI Blog – Scheiner Law Group, P.C.

As with most major holiday weekends (and more and more non-holiday weekends), Labor Day Weekend will be a “No-Refusal” weekend for DWI investigations in Houston, and in many other places in Texas. Additionally, State and local law enforcement agencies will have additional patrols and checkpoints in Houston and all over Texas to beef up DWI enforcement.

There seems to be some confusion as to what “No-Refusal” weekends entail. Many people mistakenly believe that “No-Refusal” weekends carry some sort of legal weight, and that the right to refuse a breath or blood test is somehow limited. This is wrong. The only thing different about a “No-Refusal” weekend is that law enforcement have an internal policy of obtaining search warrants to take the blood of anyone who refuses a breath or blood test in a DWI investigation. Of course, law enforcement always have that option, but because applying for and executing a search warrant is time-consuming, this is not usually done.

The fact that law enforcement choose to call these weekends “No Refusal” weekends is troubling because it seems to be a part of an intentional misinformation campaign. The term “No Refusal” is blatantly inaccurate: During no refusal weekends, DWI suspects in Houston and Texas still have every right to refuse a chemical test. What law enforcement appear to be doing is attempting to bully the public into believing that they must submit to breath tests because they do not have the right to refuse.

As a result of this misinformation campaign, many people who would otherwise refuse a breath test (usually a wise decision, by the way) are unsure whether that is still the best approach on “No Refusal” weekends. After all, many seem to ask themselves, if they will take my blood anyway, then what’s the point of refusing?

We believe that refusing is still the best approach. Although it may be true that you may be forced to give blood if you refuse to consent to a breath test during a “No-Refusal Weekend,” it does not follow that DWI suspects should succumb to bullying and make law enforcement’s job easier. Additionally, even on “No Refusal” weekends, it will usually take much longer for law enforcement to draft and execute a search warrant than administer a voluntary breath test. The additional time could result in a lower blood alcohol level – maybe even a blood alcohol below the legal limit.

Of course, the wisest plan of action is to not drink and drive at all. But if you are in unfortunate position of being the target of DWI investigation, it is important to remember your right to refuse on a “No-Refusal” weekend.

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Criminal defense lawyers in Houston and everywhere understand that DWI investigations usually begin before a person is pulled over. Officers who have been certified to administer Standardized Field Sobriety Tests (”SFSTs”), are trained to look for driving behaviors thought to be consistent with alcohol intoxication. In its training materials, the National Highway Traffic Safety Administration (”NHTSA”) claims that “common effects of alcohol on the driver’s mental and physical faculties lead to predictable driving violations and vehicle operating characteristics.”

In DWI cases in Houston and anywhere officers are trained to follow the NHTSA manual, criminal defense lawyers know that officers look for driving “cues” of intoxication which can include weaving, drifting, acceleration or deceleration problems, driving the wrong way or slow responses (the NHTSA manual contains many more behaviors it claims are consistent with alcohol intoxication). It is interesting to note that speeding – which is perhaps the most common driving violation – is not considered a cue.

These alleged cues of intoxication are usually relied on by law enforcement and prosecutors to prove someone guilty of DWI or DUI. However, as with other aspects of DWI or DUI investigation, criminal defense attorneys know that relying on these cues is often misleading because certain people are uncoordinated and may exhibit some of these driving cues even when sober. Additionally, there is a danger that officers will expect that anyone exhibiting these driving cues will be guilty of DWI or DUI, and will conduct the remainder of that investigation under that assumption.

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If you are stopped by the police for a traffic offense in Texas or anywhere, and the police officer suspects that you have been drinking, criminal defense lawyers know that unfortunately, it is likely you will be investigated for DWI or DUI.

After pulling you over, officers are trained to look closely for signs of intoxication. Most police officers have gone though basic DWI or DUI training to detect indicators that are claimed to be consistent with intoxication. In DWI or DUI investigations, after a traffic stop is made, police are trained to use their sense of sight, hearing, and smell. Criminal defense attorneys know that police will look for blood shoot eyes, alcohol containers and unusual actions. Police will also listen for slurred speech, admissions of drinking, abusive language or unusual statements. Finally, they will smell for alcoholic beverages or odors used to makes the smell of alcohol, like gum or breath sprays.

A good criminal defense attorney will understand that none of these indicators means a person is intoxicated or guilty of DWI or DUI. In other words, a good criminal defense lawyer will know that the smell of alcohol does not indicate intoxication, that there are countless reasons for red eyes, and that some people have naturally slurred, or lazy speech.

Unfortunately, police officers are trained to assume that all drivers who smell like alcohol are intoxicated, and as a result, they use any possible evidence they observe to support that conclusion. A good DWI defense attorney should be able to challenge the police’s investigation and make a jury understand that none of these indicators are proof of guilt in a DWI or DUI case.

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If you are pulled over for on suspicion of DWI, DUI or any alcohol related offense in Houston, Texas or anywhere, it is likely that you were subjected to sobriety tests known as Standardized Field Sobriety Tests (”SFSTs”). A good criminal defense attorney will be familiar with the three SFSTs  employed by law enforcement in DUI or DWI investigations – the horizontal gaze nystagmus test (known and “HGN” or simply the “eye test”), the walk and turn, and the one-leg stand.

Criminal defense lawyers know that the first test officers conduct is the HGN test. Using an object like a pen, a small flashlight, or even just a finger, a police officer will ask a DWI or DUI suspect to follow the tip of the object with their eyes, and their eyes only. The officer will then look at each eye individually and look for an involuntary jerking of the eyes as they follow the object.

Law enforcement in Texas and elsewhere claim that in DWI or DUI investigations, the HGN test is the most reliable SFST. They claim that as a person’s blood alcohol increases, it is more likely that the involuntary jerking of the eye will be present.

Criminal defense lawyers who understand the science behind these tests and the way they are administered are highly skeptical of their reliability. Even if someone’s eyes are displaying involuntary jerking there may be other reasons for the jerking other than consumption of alcohol. Additionally, criminal defense attorneys know that a surprising number of officers in Texas do not follow the standardized guidelines for administering the HGN test in DUI or DWI investigations.

A good criminal defense attorney should be familiar with the guidelines and be prepared to challenge the HGN test in your DUI or DWI case.

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Criminal defense lawyers know that many cases, including drug possession offenses or firearms offenses, begin with a traffic stop that leads to a search of a car. In fact, many police officers interested in investigating the occupants of a car for an offense will look for any excuse to stop the vehicle. Often, the excuse will be a traffic violation, or a problem with the car, like a broken tail light. Many people are surprised to learn that these traffic stops – which are known as pretextual stops - are often legally valid.

But when are the police allowed to search a suspect’s car? Criminal defense attorneys know that in Houston, just like all over the country, once the police stop a vehicle they suspect might contain evidence of an offense, they will simply ask the driver or owner of the vehicle for consent to search. Most of the time, the police officer will not let the suspect know that he has the right to refuse a search, and that he has the right to have a criminal defense attorney present.

If a suspect refuses to allow the police to search his car, the police can still conduct a search in many cases. For example, criminal defense lawyers the smell of an illegal drug, like marijuana, can provide a legal justification for a search in many instances. If the police stop a vehicle and smell marijuana, they can usually search the vehicle for marijuana, whether the owner consents or not.

The police can also search a car if they obtain a search warrant. Although search warrants are commonly used to search homes, they are used less commonly in vehicle searches. That is because usually, the police will obtain consent from a driver for a search, or they see or smell something in the car that allows them to conduct a search without obtaining a search warrant. Also, criminal defense attorneys know that people have a reduced “expectation of privacy” in their vehicles, unlike homes or areas that are given more protection under the law.

It is important to remember that you always have the right to refuse a search of your home, vehicle or person. If you are arrested for drug possession, possession of a firearm, or any other criminal offense, it is important to hire a criminal defense lawyer well-versed in search and seizure law. Although people do have less of an expectation of privacy in their vehicles the police commonly perform illegal searches of vehicles which could lead to the suppression of evidence.

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In Texas and elsewhere, criminal defense lawyers understand that sexually-related offenses, like sexual assault or possession of child pornography, carry some of the most severe penalties in the penal system. Additionally, in Texas, these offenses usually require mandatory sex offender registration which can do immeasurable damage to a person’s reputation.  That is why it is important to talk to a criminal defense lawyer right away if you are charged with any sexually related offense.

Criminal defense attorneys know that far too often, people are falsely accused of sexual assault. This can happen for a number of reasons. Sadly, children in the middle of a divorce or a custody dispute have often falsely accused a parent of sexual assault, sometimes at the urging of one parent. A good sexual assault defense attorney understands that uncovering the motive behind the accusation is extremely important to building a good defense.

Although it may sound difficult to believe criminal defense lawyers know that in Texas, there have been cases of accusations of sexual assault made on the basis of false memories. This is a very real psychological phenomenon that has led to accusations of sexual assault against many innocent people. An experienced sexual assault attorney will be able to investigate whether accusations of sexual assault were made on the basis of false memories.

An experienced, compassionate criminal defense attorney will recognize that being charged with sexual assault or any sexually-related offense can be emotionally devastating and lead to severe penalties like sex-offender registration or imprisonment. But sexual assault cases can be successfully defended by experienced attorneys who understand the nature of sexual assault accusations.

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Attorneys know that in trial for a criminal case, whether it be a DWI, DUI, sexual assault, or drug possession case, one of the most important phases is jury selection. The rules for jury selection vary depending on what state you are in, but in Texas, criminal defense lawyers know that the rules regarding jury selection and “voir dire” allow for the selection of a jury that will be fair.

For Texas criminal defense attorneys, probably the most important function of jury selection is to identify potential jurors who might harbor a bias that would make it difficult for them to listen to the evidence objectively. In a DWI or DUI case, for example, a criminal defense lawyer would want to know whether a potential juror might have had an unusually bad experience with alcohol that would make him unable to be fair to both sides. In a sexual assault case, a criminal defense attorney would want to know if the juror, or someone close to the juror, was a victim of sexual assault. Finally, in a drug possession case, criminal defense lawyers would want to know whether a potential juror has a close friend or family member who has been affected by drug abuse.

In Texas, criminal defense lawyers actually get to ask specific questions to potential jurors regarding virtually any topic. Sometimes, the questions asked by the criminal defense attorneys may seem personal, but it is in everyone’s interest that the attorneys end up with a jury that will be fair to both sides. If you are not selected for a jury, you should not feel bad – some people are better suited than others to hear particular types of cases.

Criminal defense attorneys are aware that different types of cases – whether they are DWI, DUI, sexual assault or drug possession cases – present very different issues, and a good criminal defense lawyer will structure a voir dire in a manner that will allow bias to be uncovered. It is also important that the lawyer receive feedback from the client regarding potential jurors because often, intuition is a very valuable tool.

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If you are arrested for DWI or DUI in Houston, or anywhere in Texas, it is likely that you were subjected to what attorneys refer to as Standardized Field Sobriety Tests (”SFSTs”). These tests are used in Texas and in other states as a standard part of DWI or DUI investigations, and your lawyer should be familiar with the guidelines they are based on.

The SFSTs generally consist of the Horizontal Gaze Nystagmus Test (referred to by many as the “eye test”), the one leg stand, and the walk and turn.  If you were asked to perform these tests, and you feel you did poorly, you are not alone. The tests are designed to be almost impossible to pass (particularly when forced to do them at the side of the road, or in a police station, with your freedom on the line) and are an extremely poor indicator of a person’s level of intoxication.

One of the problems with SFSTs in DUI or DWI investigations is that they do not (and cannot) take into account a person’s “normal” physical coordination. In other words, it is possible that an unusually coordinated intoxicated person could pass the tests, while a sober, uncoordinated person could fail.

Despite the test’s shortcomings, attorneys understand they are usually a central part of the State’s case in DWI and DUI trials in Houston and elsewhere in Texas. That is why it is essential that your lawyer thoroughly understand the guidelines the tests are based on, and do everything possible to limit their effectiveness in court. This includes criticizing the “science” the tests are based on, the conditions under which and individual was asked to perform the tests, the manner in which the tests were explained, and any pre-existing physical or mental conditions that might have made it difficult for an individual to perform the tests.

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In Texas and elsewhere, many criminal cases, including DUI, DWI cases and drug possession cases, begin with an investigation into an unrelated traffic violation. For example, a motorist may be driving down a Houston street and be observed by an officer to make some sort of a traffic infraction like swerving in his lane.  The officer will then make a traffic stop and decide to investigate some other offense. Maybe the officer notices the driver smells like alcohol and is having trouble following basic commands. Or maybe the officer will smell marijuana or see some other controlled substance in plain view.

The problem however, is that sometimes, police officers will exaggerate an alleged traffic violation, or fabricate one completely, in order to investigate a hunch that a motorist is committing some other offense. In these cases, it is important for a criminal defense attorney to make a thorough investigation into the police officer’s reasons for making a traffic stop. If a criminal defense lawyer can prove in court that the police officer did not have reasonable suspicion to make a traffic stop, that could lead to the suppression of any evidence discovered as a result of the stop.

In Texas and elsewhere, criminal defense attorneys will want to investigate the circumstances of the traffic stop and the applicable law. To investigate the facts, criminal defense lawyers will want to review the offense report produced by the officer, any video relating to the stop, and also visit the scene of the traffic stop in person. Once the facts are thoroughly understood by the criminal defense attorney, he should research the law regarding the specific traffic violation alleged by the police. For example, under Texas law, a motorist swerving in a Houston street (as in the example above) may not give an officer a sufficient justification to make a traffic stop if the motorist was not somehow presenting a danger to himself or others.

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Many people charged with DWI have no experience with the criminal justice system, and are unsure of what to expect after being cited for DWI in Texas. Here are a few tips on what you can expect from your DWI case, and what your attorney will do to fight to keep the charges off of your record

In Texas, first time DWI is a Class “B” misdemeanor, punishable by up to 180 days in jail, a $2000 fine, or both. You may also be put on probation, or assessed other conditions, like an ignition interlock.

As soon as possible, your attorney should begin gathering the evidence necessary to defend your case. In a DWI case, this will include, at a minimum, obtaining a copy of the video showing the traffic stop and your performance on field sobriety tests, the police report, and the results of any breath or blood tests. Your DWI attorney will also want to look at other information, such as the background of the officers who arrested you, and information relating to the performance of the machines used in your chemical test.

Once your attorney learns about your case, he will begin fighting on your behalf. DWI cases usually end in one of three ways: dismissal, trial, or plea agreement.

A dismissal is possible under many circumstances. For example, if your attorney proves in court that the police did not have probable cause to stop or arrest you, that could lead to the dismissal of your case. Also, often your attorney can convince prosecutors that they will not be able to convict you at trial, and they may chose to dismiss your case.

If your case is not dismissed, your DWI case may go to trial where a jury will decide if your are guilty, or not guilty, based on evidence presented in court. In all criminal trials it is the prosecution’s burden to prove that someone is guilty of committing an offense. In a DWI case, it is often difficult for the prosecution to prove its case beyond a reasonable doubt, because the science that DWIs are based on, including the field sobriety tests and the chemical tests, are unreliable. A good DWI attorney will know how to exploit weaknesses in the State’s case, with the goal of obtaining a “not guilty” verdict.

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