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Pilots Arrested For DWI: What You Need To Know

What Pilots Arrested For DWI Need To Know
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PILOTS ARRESTED FOR DWI: WHAT YOU NEED TO KNOW

What Pilots Arrested For DWI Need To Know

What A Pilot Needs To Know If Arrested For DWI or Faced With A Driver's license Suspension Choice

I.   Introduction: The Problem for the Pilot in a DWI

The general public has no idea how unfairly pilots are treated by the Federal Aviation Administration (FAA) when they are arrested for DWI.  The FAA does not presume the pilot defendant to be innocent, but rather, guilty!  

Moreover, the FAA presumes without any backup information, that all breath and blood test results are accurate and reliable. In short, from an FAA enforcement perspective, there is a stacked deck against the pilot.

That being said, what is a pilot to do after being arrested for DWI? Should the pilot submit to a blood or breath test request or refuse it?  Regrettably, there are no easy answers to these questions other than pilots should never drink and drive because the costs are just too high.

For the pilot who has been arrested for DWI, the only sage advice to embrace is to get the very best DWI/license suspension/Expunction lawyer you can get.  

Importantly, this lawyer needs to both be knowledgeable and experienced in the Federal Aviation Regulations (FARs) so that the DWI pilot defendant can be guided through the FARs minefield. 

Knowledge of the 60-day reporting rule, medical certificate expiration times, and Texas Expunction Law are critical to avoiding a suspension/revocation/deferment of a medical certificate. 

This should not be the time to pinch pennies because there is so much riding on the outcome of the DWI/ license suspension prosecutions. Of import, because there are two prosecutions, the FAA has two shots at suspending and/or revoking and/or deferring the pilot’s medical certificate.  

Unbelievable as it may sound, in most cases, the FAA takes the position that not only will the pilot be presumed guilty, but also, they will be presumed to have an alcohol abuse problem.

For example, a medical examiner (AME) must defer medical certificate issuance for any of the following (deferral criteria):

    1. Where the AME cannot obtain and review the court and arrest records within 14 days of the date of the examination,

        2. For DWI/ Licensed Revocation cases:

a. Any DWI/License Revocations cases with a BAC of .15 or higher.  This would even be the case where there was a BAC below .15 and where another was .15 or above. Indeed, this would still be the case if there was an arrest followed by a dismissal or not guilty verdict (unless there was an expunction). Without question, this rule applies to convictions and administrative driver’s license actions.

b. Any DWI case/license revocations where a BAC test was refused. Like above, this would still be the case if there was an arrest followed by a dismissal or not guilty (absent an expunction).  Without question, this rule applies to convictions and administrative driver’s license actions.

c. Any DWI arrest, conviction, or administrative action within the proceeding two years AND THERE HAS BEEN ANOTHER arrest, conviction, and/or administrative action AT ANY OTHER TIME,

d. where there has been a total of three arrests or convictions, and/or administrative actions within a lifetime; and,

e. where within the proceeding ten years, there is a total of two arrests, convictions, and/or administrative actions.

II.   The Answer for the Pilot

In regard to these draconian consequences, a timely expunction under Texas Law is the only way to legally avoid having to report any of the above under the 60-day rule or on a medical application. 

For those that do not know, an expunction is a means to destroy all arrest and court records, and thereafter, under the protection of law to never have to admit the event ever happened. 

In effect, an expunction is like a legal time machine that brings your life back to a time just before you were stopped and arrested.  Accordingly, it should be obvious to the pilot who cares about flying, that the search for the right lawyer must immediately begin upon being arrested. 

Common sense dictates that the DWI pilot defendant needs to act quickly because the medical certificate clock is always ticking.

In summation, an expunction can only occur where there has been either a dismissal and/or the pilot was found not guilty.  Expunctions take time (averaging 3-6 months)! 

That is why a good lawyer starts immediately planning the pilot’s DWI/license suspension defense while never losing sight of the expunction and the FAA clock.

III. But what if there cannot be an Expunction and there is going to be a Deferral: What must a Pilot do?

Where the expunction stars did not line up correctly for the pilot, and a deferment of the medical certificate occurs, the FAA requires the pilot to provide the following:

  1. a personal statement detailing his/her present and past patterns of alcohol and/or drug abuse,

2. their driving record for the past 10 years (even if in multiple states),

3. copies of all arrest and court records that have not already been provided to the AME. This might also include relevant military records dealing with non-judicial punishment or substance abuse.

4. An evaluation from an addiction psychologist/psychiatrist or addictionologist familiar with aviation standards.  This would be a Human Intervention Motivational Study (HIMS) approved professional.

In regard to deferments, once the pilot is deferred, it is generally the case that the FAA requires a two-year proof of sobriety period.  Here, it is incumbent upon the pilot to supply that proof in order to get back in the cockpit.  

Again, the knowledgeable and experienced lawyer can help to guide, gather, organize, and structure that proof in the most persuasive way to help the pilot get back in the air.

IV.  So when can an AME issue a Medical Certificate (issuance criteria)?

An AME can issue a valid medical certificate where none of the above-referenced deferral criteria are met.  Where a deferral criteria is identified, but the most recent incident occurred more than five years prior to the exam, and the AME does a detailed interview, and the examiner determines on both the exam and the applicant’s history, that there is not a possible substance abuse or dependence problem, a medical certificate can be issued. 

However, where the most recent incident was within the five years of the exam and the AME has the benefit of reviewing court records and arrest reports, the examiner may still issue a medical certificate where the examination and the applicant’s history did not indicate a possible substance abuse or dependency problem.  

Note, for the latter to happen, the pilot applicant is going to have to have every “T” crossed and every “I” dotted, plus have all the arrest and court records for the AME to review within the allotted 14 day period.  

Again, the knowledgeable and experienced lawyer can be of immense assistance to the pilot applicant in gathering, organizing, and structuring these records for the AME to timely review.

V.   Closing: The Best Advice

The best advice to the pilot is to never drink and drive.  The “8 Hours from Bottle to Throttle Rule” is just as applicable to automobiles as it is to airplanes. 

But if you do get arrested for DWI and you are a pilot, please feel free to contact me so that working together we can keep you flying.  Telephone (713) 524-1010 / gary@texasdwilaw.com / www.texasdwilaw.com

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Pilots Arrested For DWI: Getting Your Wings Back

Pilot Gary Trichter
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GETTING YOUR WINGS BACK

How Pilots Charged With DWI Can Get Back To Flying

By J. Gary Trichter & Arthur T. Hadley, III, MD, AME

Pilot Gary Trichter

The job of the AME in the aviator fitness for flight medical examination process is to coordinate the flow of information to the FAA so it may make an informed and safe decision regarding the aviator’s flying status. 

When an aviator has their flight physical, and there is a DWI noted in the history section of the medical application (Form 8700-2; Question 18), the AME will ask the applicant questions about that event. 

Regardless of the level of alcohol at the time of the event, the AME cannot certify the applicant and must defer that decision to the FAA.

Here, it must be acknowledged that the FAA is not known for its rapid speed decision-making process. Knowing that, how can the AME accelerate this process for the aviator? 

First, he can make sure that the aviator has timely notified the FAA Security and Hazardous Materials Safety Office (SHMSO) in Oklahoma City, Oklahoma, of the DWI and/or license suspension event, as the aviator has 60 days after the event to notify SHMSO. 

Should that 60-day window be missed, it is still better to then not at all. Second, the AME will remind the aviator to request their driving record from the Texas Department of Public Safety. The AME will further tell the aviator to obtain from his DWI lawyer all records from the DWI and Administrative License Revocation cases so that they, too, can be given to the AME for review. 

By doing so, the AME can make a judgment about how serious the event was and inform the FAA of that opinion. Indeed, the AME may pre-furnish those documents to the FAA to try to speed the medical application along. 

Here, in rare circumstances, the end result may be that the AME, having pre-furnished the documents to the FAA, may be able to receive telephone approval for the issuance of the medical certificate without a deferment. However, this is rare, but it has happened, and it is certainly worth trying.

A Senior AME, and especially a HIMS qualified AME (These AME’s have additional training and certification and the acronym stands for Human Interventional Motivational Study– a study that clinically and scientifically showed that aviators were very motivated to return to flying and could remain abstinent from drugs and/or alcohol — will not let the matter rest with the mere submission of the flight physical exam). 

Those AMEs will contact the FAA and try to determine what the FAA’s decisions are regarding the specific applicant and what will be the rehabilitation requirements to get the pilot back flying. That conversation will likely be with the FAA’s HIMS qualified AME.

Regarding proving sobriety to fly, the aviator should prepare themselves for frequent and random drug/alcohol tests, and also, at least quarterly visits to their AME of record. Here, it is presumed that the aviator will hire the AME to represent and guide through this FAA reapplication process. 

Of course, the aviator should be sure they have a comfortable and trusting working relationship with their AME because the process will likely take at least one year or more. 

Note, this process is fluid, and there are no guarantees that it will be successful, and accordingly, it is often the case that the aviator will become frustrated with the process. Notwithstanding, with unceasing dedication and hard work by the aviator and the AME, the light at the end of the tunnel can most often be seen.

Focusing on whether or not there will be a medical deferment because of a DWI arrest, it does not matter what BAC level resulted from an Intoxilyzer or blood test, a deferment is the default FAA position. 

Moreover, any result at, or above 0.15%, is a red flag presumption to the FAA that the aviator has a substance abuse and/or addiction problem. 

Understanding this, the aviator can expect that the FAA will want, in addition to the above, evaluations showing that there is no dependence on drugs and/or alcohol. 

In this instance, the aviator will be counseled that the cause would be better served if a licensed professional counselor (LPC) is hired to make that determination. 

Better yet the hiring of a psychiatrist or an addiction medicine specialist will make the aviator’s case to get back flying more persuasive. If money is not an object, or if the aviator wants to increase the chances of success, the aviator can create a team by hiring a licensed professional counselor, a psychiatrist, an addiction medicine specialist, and an attorney who is very experienced in FAA matters. 

From the FAA’s view, the more qualified the medical evaluators are, the more weight will be given to their opinions. Also, in almost all cases, the FAA will require that the aviator participates in an out-patient sobriety program such as Alcoholics Anonymous (AA) meetings. 

Here, it is important that the aviator has a log that can be signed by the individual running each meeting to prove their attendance. Also, it is a good idea for the aviator to keep a journal of what was discussed and learned at each meeting so both the log and the journal can be produced to the FAA as part of its evaluation. 

It is here, by gathering, organizing, and assembling your sobriety and a low risk to aviation safety proof, that the experienced aviation lawyer can be of great assistance.

Turning now to the type of medical application sought, if the aviator is an applying for a First or Second Class Medical Certificate, and the applicant is flying for an airline that has its own HIMS Program (generally these are national or international airlines that have their own regulations and specifications that have been HIMS approved, such as the Southwest Airlines program which is available to view on the web). 

Nevertheless, all First or Second Class Medical Certificates are certified in Washington DC. History has shown that in some cases the process takes 14-16 months just to make the initial decision. 

That being the case, if the aviator is not flying for one of these large commercial airlines or not flying commercially, many Senior AMEs will recommend that the aviator applies only for a Third Class Medical Certificate because that decision will not be made in Washington DC, but rather, the FAA in Oklahoma City makes that “okay to return to flying” decision and does so with much less delay- about a year or more. 

Here, it must be remembered that a deferment only means that the pilot can no longer act as pilot in command. The pilot can still fly with a certified flight instructor.

So, what advice do Senior AME’s give to their pilot applicants? 

To be blunt, never drink and drive. 

Being charged with a DWI, even if you are innocent, is not worth the risk of losing your flying privileges, and from a commercial pilot’s perspective, your career and your future. 

While it is legal in Texas to drink and drive while not intoxicated, it is far safer to use a designated driver, Uber or taxi, and if none are available, to show good judgment, and simply not drive if you are drinking or don’t drink if you must drive.

Here are just two examples of the collateral dangers of drinking and driving to the aviator. 

The first example, there was an aviator who was erratically driving in a church parking lot and was arrested for DWI. It took five years of sobriety proof for that aviator to be returned to flying status. 

The second example involved an aviator who was speeding to escape the threat of a sexual assault and was arrested for DWI. Her reinstatement took over a year of sobriety proof before she could be returned to flying status. 

These two examples hopefully clearly show that an aviator should not drink and drive no matter what the reason. Incidentally, even where the aviator is found to be not guilty of a DWI, the FAA still takes a presumptive guilt position until there is substantial proof of continued sobriety.

Our final advice to the aviator charged with DWI, wishing to continue in aviation, is that they should wisely choose their AME and aviation lawyer. 

Again, the aviator should be very comfortable in the choices because they will be working with that AME and lawyer for an extended period of time. 

Moreover, when thinking about drinking before driving, to first think about the cost of a bond to get out of jail, the cost of getting your vehicle from the tow truck yard, the cost of a good DWI and license suspension lawyer, a good lawyer experienced in FAA matters. 

You should also be thinking about the cost of a licensed professional counselor, a psychiatrist, and an addiction medicine specialist. Thinking in terms of a defense team, it is important to remember that the FAA Medical Certification Division decision-makers will only speak to physicians. 

To be clear, we are not talking about the enforcement process where your lawyer would be speaking to the FAA, but medical fitness, which is solely the jurisdiction of the Medical Certification Division.

Accordingly, from an aviation medical perspective, the AME is critical in knowing where the aviator’s case stands with the FAA. Having this knowledge, allows the AME to guide you and your sobriety team on the best path to have your flying privileges reinstated. 

In closing, the best defense against losing your flying privileges is by pre-deciding to NEVER drink and drive. 

However, if you do, the best medicine to overcome a medical deferment is to hire both an AME who is experienced and cares, and also, a lawyer experienced in FAA matters!

*Arthur T. Hadley, III, MD, is an Aviation Medical Examiner (AME) and a pilot. He has been a practicing physician since 1972 and is a 1978 graduate of the United States Airforce School of Aeromedicine. His primary practice is Preventive Medicine, but Aerospace Medicine is a favorite sub-specialty. He has been honored to have been elected as a Fellow to Aerospace Medical Association and was an astronaut candidate and a NASA flight surgeon. Dr. Hadley has been practicing medicine from 2008 to the present at the Arthur Hadley Medicine Clinic www.fitslim.com. Dr. Hadley can be contacted by telephone at (281) 597-1010 and by e-mail at arthurhadley@hadleymd.com

** J. Gary Trichter is the senior lawyer with the Houston & Bandera, Texas Law Firm of Trichter & LeGrand, P.C.  Known as “The Cowboy Pilot Lawyer”, he has been in practice for approximately 40 years and represents clients throughout Texas.  Gary is the former co-author of the two-volume treatise entitled Texas Drunk Driving Law (1s through 4th Editions) and is author of over forty journal articles ranging from DWI, grand jury, drug couriers, aviation, to the Star-Spangled Banner.

Gary is “AV” rated by Martindale-Hubbell and has been voted by his peers the past 14 years as a Texas Monthly Magazine “Super Lawyer”.  He is also “Board Certified” as a DWI Specialist.  This rating comes from the National College for DUI Defense whose rating has been approved by the American Bar Association and accepted by the Texas Board of Legal Specialization. Gary is Founder and Past-President of Texas DWI Lawyers (formerly Texas DWI Defense Lawyers Association), past President of the Texas Criminal Defense Lawyers Association and past Dean and Regent for the National College for DUI Defense.  He is a former Director and former DWI co-chair for the DWI Committee for the Texas Criminal Defense Lawyers Association and past chairman of NACDL’s Drunk Driving Committee.

From an aviation experience perception, Gary has multiple Certified Flight Instructor ratings, he is a CFI, CFII (Instrument), and MEI (Multi-Engine). Mr. Trichter can be contacted by telephone at (713) 524-1010 or by e-mail at gary@texasdwilaw.com

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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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The POLICE: Earned Valor and Respect

Gary Trichter DWI Specialist
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The POLICE: Earned Valor aNd Respect

Gary Trichter DWI Specialist

My friends, our very existence is being attacked from within. The attack is on heroes we call policemen and policewomen.

When William Shakespeare wrote “a rose by any other name would smell as sweet“, he could’ve been referring to our police brothers and sisters.
 
Like our military, law enforcement officers stand ever ready to give up their lives for us. Unlike the military, however, they are wrongly held in contempt, misunderstood, and maligned.
 
Most people do not have any clue what it is like to be a police officer.
 
Think about this for a moment: you get up in the morning, you get dressed, you go to work, and, you really don’t know if you’ll be alive at the end of your day!
 
Not only do you not know but also, your family does know whether you will come home after work.
 
On a daily basis, they are called to respond to domestic disputes, to assaults, to burglaries, to robberies, and to murders – some after the fact and some in progress.
 
They get beat up, spit on, and verbally abused!
 
Here, every time an officer is sent to help, he/she has no clue what she/he is walking into and who she/he will interact with.
 
Will those people be friendly, will they be hostile, will they have evil intent, will they be reasonable, will they be filled with hate?
 
In every instance, the officers simply do not know, but yet, they go!
 
Why would someone volunteer to do this?
 
Because they are Racist?
 
Because they have a political agenda?
 
Because they don’t care about people?
 
No, the answer is much simpler than that! Officers go into police work to make a positive difference! They go into police work because they understand the need for the law to apply equally to all of us!
 
Moreover, they go into police work because they care about this country and about the children that will have to grow up in it – their children and your children.
 
Today, the mainstream media and the far left claim our biggest problem is police racism and its abuse of power!
 
The mainstream media and the left argue that there is a need for a major cultural change within the police profession!
 
This focus is both MISPLACED and a knowing LIE!
 
The problem is not the police, but rather, the problem is a society that disrespects the law! The problem is a society that allows others to avoid accountability for their wrongs.
 
The problem is a society that lacks the courage to directly address the problem and to tell the truth!
 
Here, the truth is THAT ALL LIVES MATTER, BLACK, WHITE, BROWN, RED, AND ESPECIALLY, BLUE! Indeed, without the BLUE, none of the lives will really matter because none of the lives will be protected!
 
The truth is that the mainstream media, the left, and gutless politicians are the BIG problem!!!
 
Our police officers, like our military, are equally important to the very existence of America! Without question, soldiers in battle deserve the valor they earned. That said, our police officers deserve no less appreciation and thanks for their Valor than that of our military.
 
Clearly, in terms of the ultimate price that could be paid, there is no difference!
 
To those that hate the police, I say read your Scripture –especially John: 13 where it is written: “Greater love has no man than this, that a man lay down his life for his friends.”
 
Moreover, I say to you, many of the claims of police abuse occurred directly because those claiming the abuse absolutely both disrespected the officers, the law, and through the first stone.
Being an officer, having to make split-second life & death decisions, on a daily basis, is incredibly hard and challenging- you can’t get it right every time.
 
Sadly, even when those decisions are right, political differences, and hateful people with an agenda, challenge officers, and not only hurt the police profession but WE THE PEOPLE, as a REPUBLIC.
 
The police culture does need a major changed, rather, it is the culture of the rebellious media and left that needs to change. To do otherwise is to put the cart before the horse. Police come in a rainbow of colors so it is a lie to label all of them Racist. It is a sin to let others call the police Racist.
 
Dr. Martin Luther King once said: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”
 
If Dr. King were alive today, he would say the same thing that a person should not be judged by the color of their uniform.
 
Without a doubt, he would support the police and condemn the rioters, looters, the instigators, the mainstream media, and left for destroying the very accomplishments he fights so hard to bring to all of us.
 
In our Declaration of Independence, our founders wrote as they broke ties with England, “and for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, our fortunes, and our sacred Honor.
 
Think about that pledge as you wake up every morning because every morning our police are going out to do their job where they have pledged their lives to protect you/us!
 
Think about your responsibility to protect them and their families from misplaced judgment, wrongful criticism, hate, injury, death, and politics – think about your Honor and go earn it.
 
And remember, at the end of your day, there’s a much greater chance that you will return home to your family, than does a police officer.
 
Moreover, think about what you do today, will set the stage for whether or not good people will remain in law-enforcement. Think about whether or not good people, will go into law-enforcement?
 
Do nothing and nothing good will happen.
 
Do something good and it will.
 
Without good people going into law-enforcement, our country is doomed and you will be partly responsible.
 
Tell that to your children! God bless the police, and Lord, help them in their job.
 
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This Is Why You Should Refuse The Breathalyzer

Trichter & LeGrand DWI Lawyers
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Stopped For DWI?

This Is Why You Should Refuse The Breathalyzer

Specifically when it comes to the breath test, if you know you are going to be below the legal limit then blow. 

If you get to the point where he is asking you for a breath test then ninety-nine times out of a hundred you are going to be arrested. 

So whether you say yes or no, it is not going to change the outcome right then and there. 

So if you know that you are going to be arrested, and you typically are at that point, but you have a strong belief that you are going to come in below the legal limit based on the amount of alcohol you have had, then you really should probably go ahead and take the breath test. 

Because if you pass it you are probably going to get let go. 

It is not always that way but there is a much better chance. 

Now I think most people who find themselves in this situation are not going to have that level of confidence. 

They are not going to know if they are below the legal limit or not. 

Most of us do not know what our limit is or the actual legal limit. 

We don’t know how many beers, glasses of wine, or mixed drinks it’s gonna take us to get to .08 and there is a lot of different factors that play into that. 

Things like how quickly you drank them, what your body weight is, what you had for dinner and the last time you ate. 

So if you are in that gray area, which most people will find themselves, my advice to you is not to provide the breath test because you are giving them a piece of evidence that they can use against you. 

Just about every time they are going to be able to use that piece of evidence in court because you are consenting to it. 

When you refuse the breath test you put the officer in a position where he is going to have to go seek a warrant from a judge to draw your blood. 

They almost always will, but if they do that, that puts a few more hurdles in their way they have to get over. 

So for the typical person I am going to recommend that you do not comply and give a breath test because we want to have as many hurdles in the way later on down the line when we are defending your case because it is going to give us more opportunities to try and get favorable results for you. 

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Chances Of Getting A DWI Dismissed?

What Are The Chances Of Getting A DWI Dismissed? - DWI Lawyer Gary Trichter Trichter & LeGrand
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CHANCES OF GETTING A DWI DISMISSED

What Are The Chances Of Getting A DWI Dismissed? - DWI Lawyer Gary Trichter Trichter & LeGrand

What are the chances of getting a DWI dismissed?

That is a question I get an awful lot. 

The answer is, it depends. 

The reason I say that is, it really depends on the circumstances under which you get pulled over and what was happening before. 

My first piece of advice to anyone who gets pulled over is to be respectful, polite, and answer the questions that the officers are asking you. 

Officers are always going to appreciate someone that is polite, respectful, that feels that they feel is being compliant because, as we all know, being a police officer can be a dangerous job and if you are resistant or you are non compliant in anyway it certainly pushes you into in an area where this interaction is not going to go so well for you. 

So that is my first piece of advice. 

When you get pulled over, just be polite, be respectful and cooperate as much as you can. 

I think people’s natural inclination is to be cooperative and just do what the police officer is asking you to do. 

I think we are all brought up in that way, if a police officer stops you and asks you some questions you better do what it is that he is asking you to do or else you are going to get in trouble.

To a certain extent that is true, but there is a point when you start to put yourself in a position where you are making it more likely you are going to get arrested or if you end up getting arrested. 

Regardless, you are making it more difficult on your defense attorney later down the road to get to a favorable result in your case. 

Specifically when it comes to the breath test, if you know you are going to be below the legal limit then blow. 

If you get to the point where he is asking you for a breath test then ninety-nine times out of a hundred you are going to be arrested. 

So whether you say yes or no, it is not going to change the outcome right then and there. 

So if you know that you are going to be arrested, and you typically are at that point, but you have a strong belief that you are going to come in below the legal limit based on the amount of alcohol you have had, then you really should probably go ahead and take the breath test. 

Because if you pass it you are probably going to get let go. 

It is not always that way but there is a much better chance. 

Now I think most people who find themselves in this situation are not going to have that level of confidence. 

They are not going to know if they are below the legal limit or not. 

Most of us do not know what our limit is or the actual legal limit. 

We don’t know how many beers, glasses of wine, or mixed drinks it’s gonna take us to get to .08 and there is a lot of different factors that play into that. 

Things like how quickly you drank them, what your body weight is, what you had for dinner and the last time you ate. 

So if you are in that gray area, which most people will find themselves, my advice to you is not to provide the breath test because you are giving them a piece of evidence that they can use against you. 

Just about every time they are going to be able to use that piece of evidence in court because you are consenting to it. 

When you refuse the breath test you put the officer in a position where he is going to have to go seek a warrant from a judge to draw your blood. 

They almost always will, but if they do that, that puts a few more hurdles in their way they have to get over. 

So for the typical person I am going to recommend that you do not comply and give a breath test because we want to have as many hurdles in the way later on down the line when we are defending your case because it is going to give us more opportunities to try and get favorable results for you. 

[Interviewer]

If you refused the breath test and they get a warrant where do they draw the blood? 

Is it roadside or at the police station? 

[Aaron White]

It depends on the jurisdiction. 

A large jurisdiction like Harris County will have a station set up by the local law enforcement. 

They will have one at the jail or they will have one at a processing station with nurses that are on duty. 

They can bring the suspects into the station, get the warrant drafted via fax or email and have it sent back and forth between the judge and the police officers in the DA’s office. 

They’ll be able to draw your blood right there on site so it’s something that can happen as quick as thirty minutes to an hour after your rest. 

In a small jurisdiction they may have to take you to a hospital and they may have to be doing some driving back and forth to get the warrant signed. 

So the delay in getting a blood draw can also be of benefit because it could take three or four hours to get the blood draw and that is time that your body has to process the alcohol and it more often can result in a lower blood alcohol concentration. 

It gets a little complicated at that point as far as being able to extrapolate and all those sorts of things but you’re always better off having a lower BAC then a higher BAC. 

[Interviewer]

Okay, so let us say you took the breath test and was arrested. 

What are the chances of getting a first DWI dismissed? 

[Aaron White]

I know I sound like a broken record here but it just depends. 

We have a lot of success in finding mistakes along the way within the investigation, the probable cause for the stop, the way they administered the field sobriety tests, the questions they asked, when was the decision was made to arrest, did they follow the proper protocol and things like that. 

Police officers are just like you and me: they are going to make mistakes in their job and they are typically going to make a mistake or two in every single arrest and detention. 

Did they make some crucial mistakes? 

The question for each case becomes how many of those mistakes did they make it and did they go to the crucial elements of the investigation, detention and arrest. 

For instance, one of the most common mistakes that we find is that they jumped the gun and pulled you over for something that did not actually happen, like you were weaving within your lane. 

If we can determine later by watching their videos from their squad car that you technically did not break the law and weave within your lane or fail to maintain a single lane, then the rest of the evidence in the case is likely to be thrown out. 

So, if we can find an error there or a mistake that is to our advantage, then that is one possible Avenue to get your case dismissed and there are many others throughout the process. 

Like I was saying earlier, if you force them to go get a warrant and they make a mistake in drafting the warrant or executing the warrant, then perhaps the blood results become inadmissible and all the sudden the state has a weaker case. 

It is going to take many of those things together to convince the district attorney’s office that they do not have a good case anymore and they need to dismiss it. 

It is obviously difficult to do but we find that we are successful in getting a lot more cases dismissed because we are experienced with all these sorts of issues that can come into play in a DWI arrest and prosecution. 

Many of us have former experience being prosecutors on the other side. 

[Interviewer]

You were previously a Harris County prosecutor, right? 

[Aaron White]

Yes, Sir. 

[Interviewer]

So you have been on both sides of cases like this. 

Another question that gets brought up is about the evidence and building the evidence. 

The police video all these arrests, right? 

How do they video the arrest?

[Aaron White]

Most big agencies like Harris, County, the Houston sheriff’s office and the Houston police department are going to have a variety of different cameras that are going to be provided to the defense attorneys in a DWI arrest. 

They are going to come from the squad car with a dash camera that’s going to show the suspect’s vehicle before the arrest and before the traffic stop. 

Then sometimes it will show an angle of the interaction with the police officer. 

They are going to be equipped with a what we call body worn cameras. 

Those are cameras that are attached to their uniform on their chest, and it is going to record interactions with suspects and witnesses in every investigation that can lead to a criminal charge. 

So sometimes we get up to five, six or seven different angles of the arrest from multiple police officers who were on the scene.

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