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

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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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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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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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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After receiving criticism from four United States Senators – Tom Udall of New Mexico, Charles Schumer of New York, Harry Reid of Nevada and Frank Lautenberg of New Jersey – Apple announced last week that it will no longer permit apps for its products that “contain DUI checkpoints that are not published by law enforcement agencies, or encourage and enable drunk driving.” The Los Angeles Times story is available here.

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This morning, we were pleased at the dismissal of another one of our cases. Our client – I’ll call him John – was charged with criminal trespass after being involved in an altercation with bouncers at a night club. From the start, the case had its problems: John was simply at the wrong place at the wrong time, and was tackled and Tased by security guards before being forcefully escorted from the property. It was unlikely that any jury would convict him of trespass under the facts of the case.

However, what may have made the difference in this case was our criminal defense attorneys’ investigation of the case. Soon after being hired, the criminal defense lawyers started their own investigation, which included going to the nightclub and speaking with the owner. The owner agreed that the case wasn’t a case at all, and allowed us to take a videotaped statement where he said that he did not want to press charges and that he did not feel that John had any intent to break the law. This video was shown to prosecutors minutes before the case was dismissed.

In many cases, speaking with witnesses soon after an event is essential to building a successful defense. Often, a witness is eager to tell his or her side of the story. This can often lead to a good result, as in John’s case. The best criminal defense attorneys – in Houston and everywhere – know that good results and thorough investigations go hand and had. At Scheiner Law Group, we do not rely on the police’s investigation to defend a criminal case – we conduct our own.

If you or a loved one is charged with any criminal offense in Houston or anywhere in Texas, the lawyers at Scheiner Law Group are a top choice.

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After being arrested and charged with a crime, choosing a criminal defense attorney can feel like a daunting task. In choosing a criminal defense attorney, it pays to ask the following questions:

1) Does the attorney specialize in criminal defense? As in all trades, practice makes perfect. In much the same way, if a criminal defense attorney practices criminal law exclusively and is certified by the State Bar of Texas as a criminal defense specialist, he will be more likely to have the expertise necessary to achieve the best results.

2) Does the attorney have any specialized training relevant to the crime I am charged with? A dedicated criminal defense attorney will look to give his client every possible advantage, including mastering the tools used by police in conducting criminal investigations. For example, dedicated DWI attorneys undergo the same training police officers receive to administering Standardized Field Sobriety Tests (SFSTs), which often form the basis of a DWI charge. Specialized training can show a dedication to a field of law and can make all the difference in many cases.

3) What kind of reputation does the attorney enjoy? Attorneys earn their reputations from their peers and from the results they achieve for their clients. The importance of an attorney’s reputation is difficult to overstate. Criminal defense can often involve complicated negotiations with judges and prosecutors, and attorneys with good reputations will have an advantage because they will be known, trusted and respected. Asking other attorneys who they would recommend is a good way to gauge an attorney’s reputation. The Internet has also made it possible to read reviews of attorneys from former clients on websites such as Google or Avvo.

The personal and professional consequences of being charged with any criminal offense can be great. But choosing an attorney is really no different than choosing any other professional – a decision should be based on level of expertise, dedication, and reputation. Keeping these factors in mind will allow you to achieve optimal results by choosing the right attorney for your case.

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1. If you are arrested for Driving while Intoxicated, your Texas driver’s license will probably be suspended.

2. You have only 15 days from the date your Texas driver’s license is suspended to request an Administrative License Revocation (”ALR”) hearing.

3. The ALR Hearing allows you or your attorney to contest  the suspension of your driver’s license.

4. A Houston Criminal Defense Attorney who specializes in DWI cases can request the ALR hearing for you and also handle your Driving while Intoxicated case at the Harris County Courthouse.

5.  Even if your license remains suspended after the ALR hearing, you may still be eligible to request and receive an Occupational Driver’s License, which would allow you to drive to places like work and church, but with certain restrictions.

If you have been arrested for Driving while Intoxicated and need a defense attorney who is experienced in these types of cases, call the Scheiner Law Group, P.C.

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