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

If you are arrested for DWI or DUI in Houston or anywhere in Texas, you may be unsure of what to expect. This is common. Criminal defense lawyers know that more than for other offenses, people charged with DUI or DWI are new to the criminal justice system.

Criminal cases, including DWI or DUI cases, typically end in one of three ways: dismissal, trial, or by some sort of plea agreement with the State. Many people charged with a DUI or DWI in Texas will want to know how their case will be resolved, and what the likelihood of a dismissal is.

Before your DUI or DWI lawyer will be able to recommend the best strategy in your case, he will need to conduct his own investigation. This will include obtaining police reports, videos, results of breath or blood tests, along with the underlying data of those tests, and any medical records that could be relevant. Additionally, your DWI or DUI attorney may want to visit the scene of the alleged offense. A thorough investigation is essential to successfully defending a Texas DWI or DUI case. Criminal defense attorneys know that this can take several weeks or even months.

Although thousands of DWI and DUI cases are filed in Texas every year, only a very small percentage are dismissed. Experienced criminal defense lawyers know that cases can be dismissed for several reasons. In some cases, a police officer might not have had a proper justification to make a traffic stop. In legal terms, this is known as reasonable suspicion. In other cases, a case could be dismissed if the officer did not have enough evidence to arrest you. This is known as probable cause for an arrest.  An arrest can lack probable cause if the police officer did not administer any Standardized Field Sobriety Tests (SFSTs) or administers them incorrectly. Even if the stop and arrest where valid, a case can also be dismissed if it is weak, and the District Attorney’s office does not feel it can prove it beyond a reasonable doubt.

If your criminal case, including a DWI or DUI, is not dismissed, it will usually be resolved by either trial or plea. Experienced criminal defense lawyers know that cases can go to trial for several reasons, and that it can be difficult to generalize. However, people charged with DWI or DUI who have no prior criminal record will generally go to trial in three situations. The first is where their case is strong, and they have a high likelihood of winning at trial. The second is where a plea agreement for a DWI or DUI cannot be accepted under any circumstances. This is a common situation for people who could lose a professional license as a result of accepting a plea. The last situation where DWI or DUI cases proceed to trial is where the offer from the District Attorney is not much worse than what a person would get if they went to trial and lost. In other words, although a case might not have a high likelihood of winning, in some cases, a person may decide he or she has “nothing to lose” by going to trial.

A good DWI or DUI criminal defense lawyer should conduct a thorough investigation on your behalf and then help you obtain the best possible result in your case. After all, that’s the attorney’s job, not yours.

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If you are stopped and investigated for DWI or DUI in Houston or anywhere in Texas, most law enforcement officers will attempt to administer Standardized Field Sobriety Tests (SFSTs) as a part of their investigation. Criminal defense attorneys with experience in DUI or DWI cases know that these tests consist of the horizontal gaze nystagmus test (”HGN”), the one-leg stand, and the walk-and-turn.  Although police officers sometimes administer additional tests, these three tests are the only “standardized” tests recognized by the National Highway Transportation  Safety Administration (”NHTSA”). In Houston and all over Texas, police officers are trained to conduct DWI and DUI investigations based on the guidelines set out by NHTSA.

The walk-and-turn test is referred to by many as the “walk the line” test. In this test, a police officer will ask a DUI or DWI suspect to walk an imaginary or real line for nine steps, take a series of small steps, and then walk back. In DWI or DUI investigations, this test is used to assess a suspect’s motor control and ability to balance. Additionally, the test is used to assess a suspect’s ability to multi-task and follow directions (it is assumed that an intoxicated person cannot do these things). For example, at the beginning of the test, a police officer should instruct the suspect to stand on the line with his right foot in front of his left foot, and to maintain that position until the instructions are completed.

The test is scored based on how many “clues” a person exhibits. According to the NHTSA manual, a clue is an indication that a DWI or DUI suspect is intoxicated. On any of the three tests, if a suspect exhibits two clues, they are considered to have failed the test.

Criminal defense lawyers with experience in DWI and DUI cases know that this test is unreliable for several reasons. First of all, it is common for officers to not follow NHTSA’s guidelines in administering the test.  If a police officer does not explain the test properly, that may affect a suspect’s performance on the test, and undermine its reliability (which is already highly questionable).

Even when the test is administered correctly, criminal defense attorney know it can still be attacked as fundamentally flawed. This is because the test does not take into account a person’s “normal” physical state. In other words, it scores everyone the same regardless of age, weight, balance or coordination. As a result, a sober person could fail the test, and a drunk person could pass it (both of these things frequently happen).

If you are arrested for DWI, DUI or any alcohol-related charge, it is important to consult with an experienced criminal defense attorney familiar with NHTSA guidelines. The attorneys at Scheiner Law Group are an excellent choice.

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Have you been accused of drug possession or drug delivery? You are not alone. There are over 100,000 drug arrests every year in Texas, with many arrests occurring in Houston.

The penalties for drug possession or drug delivery can range from minor to severe. Cases may be filed in state or federal court. But regardless of the type of case, size of case or where it is filed, there are several legal principles that your criminal defense attorney can use to successfully defend your case in court.

Criminal defense lawyers know that drug arrests usually happen as a result of a police “search” and can occur just about anywhere. The most common places are vehicles, residences or vehicles.

One key to successfully defending a drug possession or drug delivery case is to challenge the “Legality of the Search.” A police search is considered illegal when it violates a person’s state or federal constitutional right against “unlawful search and seizure.” Lawyers experienced with drug charges know that among other things, search and seizure law focuses on whether the police had a valid search warrant, whether the police had a lawful right to stop and detain a person, and whether the police had a right to search a person, his vehicle, his residence or his place of business.

If your criminal defense lawyer can prove in court that the police violated your constitutional rights, it might lead to a dismissal of the charges against you. Search and seizure law is complex and is constantly evolving. Your criminal defense lawyer should be familiar with the latest developments in Texas and federal law.

Another key to defending a drug possession or delivery case is to challenge the “affirmative link” between you and the illegal drug. An affirmative link is the relationship between an object and the person accused of possessing it.

In many instances, the illegal drug – whether marijuana, cocaine or some other substance – is not actually found on a person, but possibly nearby or in an area that others have access to. If a prosecutor cannot prove an affirmative link, or if the defense attorney can effectively challenge the link in court, it could lead to a dismissal of the charges or a trial verdict of “not guilty.”

A good criminal defense attorney should be able to spot the legal issues and the factual issues in your drug possession or delivery case.  As always, that’s the attorney’s job, not yours.

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If you are charged with a criminal offense in Houston, Texas or anywhere, you may wonder if your case will end up in a trial. Most criminal cases, including DUI, DWI and assault cases, end in one of three ways: trial, plea, or dismissal. If your criminal case is not dismissed, your criminal defense lawyer will help you decide whether trial or plea will be in your best interest.

In most cases, your criminal defense attorney will need to closely examine the evidence in your case and conduct his or her own investigation before recommending any course of action. This includes examining all police reports, photos, videos, statements, and scientific evidence. Once your criminal defense lawyer does this, he or she will be able to estimate the likely outcome of a trial.

A dismissal, of course, is preferable and is our goal for all of our clients. We presume our clients are innocent, and therefore, also start with the assumption that their cases should be dismissed. But unfortunately, in some cases, that is not possible, and prosecutors will make you choose between trial or plea.

Because of the unique nature of each criminal case, criminal defense attorneys know that it is difficult to draw generalizations. However, trial is preferable to pleading in many cases. This is because in many cases, like DUI or DWI cases, for example, the State’s offer to settle a case by plea agreement is often not much worse than what someone could expect to receive if they went to trial and lost. For example, in Houston, the Harris County Attorney’s Office typically offers first-time DWI offenders something like 1 year probation. Assuming the defendant has no record, he would probably end up with something similar at trial if he lost.

Of course, if the stakes are higher, it may not be so simple. An experienced criminal defense attorney should be able to help you decide the best course of action once he or she has had a chance to conduct a thorough investigation. If you are charged with any criminal offense, the attorneys of the Scheiner Law Group are an excellent choice and can help guide you through accusations of any criminal charges, including DUI, DWI, assault, or sexually-related crimes.

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A new study released Monday contains interesting findings related to eyewitness identifications and provides suggestions as to how law enforcement can increase their accuracy. This is currently a hot issue among criminal defense attorneys in Houston and everywhere. As this blog previously noted, several new studies suggest that of the 75,000 eyewitness identifications made every year, about a third are wrong.

The new study – which was conducted at police departments in Austin, Texas, Charlotte, North Carolina, and Tucson Arizona – concluded that identifications are far more reliable where witnesses are asked to look at suspects individually, rather than in a group (read the New York Times article here, or the Christian Science monitor article here). Also, the study concluded, identifications should be made under circumstances where neither the police officer nor the witness know if the actual suspect is included in the set of individual photographs (so called “double blind”). This reduces the possibility that the witness will feel the need to identify somebody and the possibility that the police officer will act suggestively and somehow indicate who he believes is the suspect. Criminal defense lawyers know that unfortunately, the procedure outlined in the study is currently not in practice in Houston, or in most parts of Texas.

Criminal defense lawyers know that with regard to eyewitness identifications, there is no correlation between certainty and accuracy. In other words, although a witness may be 100 percent certain in his belief in the accuracy of his identification of a suspect, and yet be totally wrong. Although our understanding of eyewitness identifications is improving, there is still a huge possibility of misidentifications, and that is why we hope police departments take the study’s recommendations seriously.

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If you are stopped in Houston or anywhere in Texas and suspected of DWI or DUI, it is likely that the officer will administer Standardized Field Sobriety Tests (SFSTs), in order to assess your level of impairment. Although criminal defense lawyers understand that SFSTs are poor indicators of impairment, they are nevertheless a central part of DWI or DUI investigations. If you perform poorly on the tests, the officer may develop the probable cause needed to arrest you.

The first test administered by police officers is usually the horizontal gaze nystagmus test (”HGN” – also referred to as the “eye test”). According manuals put out by the National Highway Transportation Safety Administration (”NHTSA”), “[n]ystagmus is defined as involuntary jerking of the eyes. Alcohol and certain other drugs cause Horizontal Gaze Nystagmus.”

As the name of the test implies, Horizontal Gaze Nystagmus occurs as the eyes move to the side. Manuals put out by NHTSA claim – and this is disputed by criminal defense lawyers in Houston and everywhere –  that HGN provides the “first and most accurate test in the Standardized Field Sobriety Test battery.”

An officer who administers HGN will usually ask a DWI or DUI suspect to keep his head still and follow a pen, light or even a finger. According to the detailed instructions in the NHTSA manual, the officer should check each eye individually and make several passes.

In DWI or DUI  investigations, experienced criminal defense attorney know that there are three “clues” that HGN is present in a suspect: lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset of nystagmus prior to 45 degrees. According to the manual, the “higher the degree of impairment, the sooner nystagmus will be observable.”

DWI or DUI lawyers know that the test must be performed in strict compliance with the guidelines set out by NHTSA – otherwise it is an even poorer indicator of sobriety and may not even be admissible in court. The manual specifies in detail how the test should be administered, and an experienced DWI lawyer should be familiar with the guidelines. Because the test is “standardized,” it should be administered the same each time in and DWI investigation, whether it be in Houston, Galveston, Conroe, or anywhere in Texas or the United States.

Although many people understand that they have the right to refuse a breath or blood test, they do not know that they can also refuse to participate in SFSTs. Although criminal defense attorneys know there are risks to not participating in SFSTs (in many cases, for example, the officer will think you are drunk and will arrest you), it may be the wise approach in many cases. If you refuse to participate in SFSTs, you should always do so politely and in a clear voice.

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As Houston criminal defense attorneys with extensive experience in DWI or DUI cases, many people ask us what is the best way to stay out of trouble if you find yourself the target of a DWI or DUI investigation in Texas. Of course, the smartest approach is to not drink and drive at all. Choose a designated driver. Get a cab. Walk.

Of course, it is not illegal to drink and drive. Any criminal defense lawyer with experience in DUI or DWI knows that in Texas, it is only illegal to drink and drive if you’re blood alcohol concentration is above 0.08, or you lose your “normal” use of your physical or mental faculties (whatever that means).

But the reality is, if you are pulled over, and a police officer smells any alcohol on you, you run a high risk of getting arrested. For one, police officers are taught to err on the side of caution and will usually arrest anyone who smells like alcohol for DWI (although this lead to some unfair arrests, this is understandable – would you like to be the officer who let the drunk go who later caused a fatality?). But before making an arrest, an officer will usually administer field sobriety tests (“SFSTs”) and ask you to take either a breath or blood test.

While most people know that they have the right to refuse a chemical test in a Texas DWI or DUI investigation, many people do not know that they can also refuse SFSTs. But is this the best approach? We believe that in many cases, it is. The SFSTs – which consist of the horizontal gaze nystagmus test, the one-leg stand, and the walk and turn – are extremely subjective tests which are a very poor indicator of intoxication. It is no secret that many sober people fail SFSTs, while many drunk people pass. Additionally, in a DWI or DUI case, a person will often be asked to perform the SFSTs on the side of a road, knowing that if they fail, they could be convicted of DWI and go to jail. If you choose to refuse SFSTs, we recommend doing so politely and with a clear voice.

The downside of refusing, of course, is that the officer might think that you are intoxicated (why else would anyone refuse SFSTs, the officer will conclude), and arrest you. But the point is that you were likely going to be arrested anyway and being subjected to a battery of subjective and unfair tests does not improve your situation.

Next, in Texas DWI or DUI investigations, the officer will usually ask you to blow into the breathalyzer, or give a blood sample. We believe that refusing is also the best choice, although it does carry its own consequences which should be considered. Although your license could be suspended for at least 180 days if you refuse, we believe that in many cases, it is still not a good idea to blow or to give blood. This is mainly because the police’s techniques can be unreliable, and of course, you have the right to not help the police in their investigation against you. As we have discussed in this blog previously, you can refuse a breath or blood test anytime, even on the dishonestly named “No Refusal” weekends (you have every right to refuse a breath or blood test on a “No Refusal” weekend!). In Texas DWI or DUI cases of course, if you refuse, the police could get a warrant for your blood but that will often add valuable hours to their investigation.

In Texas, there can be many consequences of a DWI or DUI and it is best to ask for a criminal defense lawyer as soon as you can to help you assess your options before you are arrested. If you have been charged with DWI, DUI or any  alcohol related offense, the attorneys at the Scheiner Law Group are an excellent choice, and will work to get the best possible result in your case.

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A recent article in the New York Times focused on a frightening phenomenon in criminal cases: mistakes in eyewitness identifications. Among many alarming facts, the article notes that a “pile” of studies suggest that of the 75,000 eyewitness identifications made every year, about a third are wrong. Sometime in November, the United States Supreme Court will revisit the issue of eyewitness identifications for the first time since 1977.

Experienced criminal defense attorneys know that insofar as eyewitness identifications are concerned, there is no correlation between certainty and accuracy. As the article notes, “[m]any of those eyewitnesses were as certain as they were wrong.”

But it gets worse: Despite being horribly inaccurate, eyewitness identifications are, paradoxically, among the most powerful pieces of evidence in criminal cases. As noted by Supreme Court Justice William Brennen, “[t]here is almost nothing more convincing than a live human being who takes a stand, points a finger at the defendant , and says, ‘That’s the one!’”

The question the Supreme Court will answer in November is a narrow, but important one: Whether the Due Process Clause of the United States Constitution requires judges to question the reliability of all identifications made under “suggestive” circumstances, or only when the suggestive circumstances were orchestrated by police.

But the Supreme Court could use the opportunity to require a more rigorous standard of reliability before a eyewitness identification is admitted as a piece of evidence. That could include, for example, “double-blind” photo arrays where neither the police, nor the witness know for certain whether the suspect is included in the lineup. Criminal defense lawyers know that unfortunately, such practices are not the norm in Houston and much of Texas.

We will be anxiously awaiting the Supreme Court’s decision…

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If you were arrested for DWI or DUI in Houston or anywhere in Texas, an experienced criminal defense attorney should work to challenge each phase of the police’s investigation. In DWI and DUI investigations, police officers follow guidelines set out by the National Highway Transportation  Safety Administration (”NHTSA”). These guidelines cover DWI detection and the administration of Standardized Field Sobriety Tests (”SFSTs”).

An experienced DWI or DUI defense lawyer should be familiar with these guidelines. In general, the NHTSA manual breaks a DUI or DWI investigation up into three main phases known as vehicle in motion, personal contact, and pre-arrest screening.

In the vehicle in motion phase, the police officer will observe an individual’s driving behavior, and look for clues claimed by NHTSA to be consistent with impaired driving. In DWI or DUI cases, these driving behaviors include swerving, driving erratically, driving on the wrong side of the road or driving with the lights off.

In DWI or DUI investigations, the personal contact phase of the investigation takes place after the police officer has already made the decision to stop an individual and initiate an investigation. This phase includes face-to-face contact with the driver. During this phase, the police officer will attempt to gauge whether the driver is sober based on his appearance, behavior, smell, balance, coordination, his manner of speaking, and any statements he may make. DWI and DUI criminal defense lawyers know that this phase of the investigation can lead to unreliable conclusions. After all, the police officers has not previously met the suspect, so it is questionable whether he can determine what the suspect is “normally” like.

In any event, in DUI or DWI investigations, if the police officer believes that the suspect is intoxicated after phase one and phase two are completed, he may then move into phase three, where the police officer will administer standardized field sobriety tests. The tests outlined by NHTSA are standardized, meaning that they are conducted the same in all DWI or DUI investigations, in Houston and anywhere. The three standardized tests include the horizontal gaze nystagmus test, the one-leg stand, and the walk and turn. DWI and DUI criminal defense attorney also know that problems in the administration of the test are common. A surprising number of officers do not follow the guidelines set out by NHTSA.

DWI and DUI law can be specialized and it is important to hire an experienced criminal defense attorney if you are charged with a DWI or DUI in Houston, or anywhere in Texas. An experienced criminal defense lawyer will be able to aggressively challenge each phase of the police’s investigation, with the goal of achieving the best possible result in your case.

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Criminal defense lawyers in Houston and all over Texas have been bracing for the new “Extreme” DWI law, which took effect last Thursday.  That law doubles the penalties for first-time DWI offenders who have a blood alcohol concentration of 0.15 or higher.

Up until now, the maximum penalty for most first time DWIs was 180 days in jail, a $2000 fine, or both. Now, drivers charged with “Extreme DWI” will face up to 360 days in jail and a $4000 fine or both.

We question whether this new law will have any impact on the number of intoxicated drivers on our roads. Does this new law provide a real disincentive to intoxicated drivers over what current laws already provide? Probably not. Was our previous DWI law (which did not provide for greater punishments for DWI suspects with BACs over 0.08) sufficient to punish first time offenders? Absolutely.

In any event, this new law highlights the need to hire an aggressive, experienced DWI attorney to defend you if you are charged with DWI in Houston or anywhere in Texas.  The combination of faulty science, “No-Refusal” weekends, and increased penalties for DWI have created a situation where innocent people could be punished.

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