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WHAT ARE MY RIGHTS WHEN I’M ARRESTED FOR DWI?

DWI Lawyer Gary Trichter At Trichter & LeGrand
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WHAT ARE MY RIGHTS WHEN I’M ARRESTED FOR DWI?

Felony DWI and arrested for DWI Third offense Texas DWI Penalties

Arrested For DWI? 

If You Are Arrested For DWI, You Have Rights. 

That Doesn’t Mean You Can Evade Arrest Or, In Some Cases, Refuse A Breath Or Blood Test, But Rather, It Means That You Don’t Have To Willingly Comply With All “Requests” Made By The Officer.

DWI And Your Rights During The Traffic Stop

Most Driving While Intoxicated (DWI) Investigations Begin When A Police Officer Observes Someone Driving Whom He Thinks Committed A Traffic Violation And Initiates A Traffic Stop. 

Once The Officer Has Turned On His Emergency Lights And Sirens, You Do Not Have The Legal Option To Drive Away. 

Doing So Would Make Matters Much Worse Because It’s Considered “Evading Arrest In A Motor Vehicle” Which Is A Felony Offense.

Our Advice Is Simple: DON’T DRIVE AWAY! USE YOUR RIGHT BLINKER, MOVE TO THE RIGHT, AND PARK OUT OF THE FLOW OF TRAFFIC. A PARKING LOT IS THE BEST PLACE TO STOP.

This Mandatory Stop Is Considered To Be Either A Temporary Detention Or Arrest. 

Both Invoke Your Constitutional Rights Under The 4thAmendment Which States:

The Right Of The People To Be Secure In Their Persons, Houses, Papers, Effects, Against Unreasonable Searches And Seizures, Shall Not Be Violated, And No Warrants Shall Issue, But Upon Probable Cause, Supported By Oath Of Affirmation, And Particularly Describing The Place To Be, Searched, And The Persons Or Things To Be Seized.

In Order For The Police Officer To Legally Stop You, He Must Be Able To Articulate The Facts That (Probable Cause) Show You Committed A Traffic Violation. 

In Most DWI Cases, The Officer May Cite A Traffic Law Violation Such As:

  • Speeding
  • Failure To Maintain A Single Lane, Or
  • Failing To Stop At A Designated Stop Sign.

Once You’ve Been Pulled Over, Keep In Mind That The Side Of The Road Is Not The Time Or The Place To Question The Officer Or Begin Your Legal Arguments. 

Always Be Polite And Remember That The Less Said Is Generally The Best Action You Can Take. 

Our Advice Is To Wait For Your DWI Attorney To Examine The Evidence Supporting Or Refuting The Validity Of The Initial Traffic Stop. 

You’ll Have Four Opportunities To Exercise Your Right To Legally Challenge The Stop:

  • Administrative License Revocation (ALR) Hearing,
  • At The Initial Court Appearance Where Probable Cause Must Be Evaluated By The Judge,
  • Later During A Motion To Suppress Hearing, (A Hearing Where The Defense Requests The Judge To Exclude Certain Evidence From Trial)
  • Or, If Necessary, At Trial.

YOUR RIGHTS: You Have The Right NOT To Be Stopped Without Legal Justification. If The Officer Has No Probable Cause, Then He Has Violated Your 4thAmendment Rights During His Initial Contact And The State Will Have Little To Build A Valid DWI Case Upon Since All Evidence Gathered After That Point Is Inadmissible.

DWI And Your Rights During Personal Contact

After The Officer Initiates The Traffic Stop, Whether Invalid Or Not, He Will Make Contact With You. 

He Will Ask For Your Driver License And Registration And May Try To Make “Small Talk”. “Small Talk” Is A Polite Tactic To Gather Evidence Against You. 

Here The Officer Will Solicit As Much Information From You As He Can–Especially If He Is Suspicious Of DWI.

He’ll Ask Things Like:

  • Where Are You Coming From Tonight?
  • Where Are You Headed?
  • Have You Had Anything To Drink Today?
  • Are You Coming From A Bar?
  • What Smells Like Alcohol?
  • Do You Know Where You Are Right Now?

While You’re Talking, The Officer Will Be Observing Your Body Language, How You Answer The Questions, Your Voice And Whether You’re Slurring Your Words. 

He’ll Also Be Looking For The Smell Of Alcohol On Your Breath.

YOUR RIGHTS: As You Talk With The Police Officer During The Personal Contact…

Remember These Three Important Things:

He Is Not Legally Required To Read You Your Miranda Warnings At This Point.

Your Conversation Is Almost Certainly Being Recorded By Either His Body Camera Or A Patrol Car Camera With A Microphone Attached To His Uniform.

Most Importantly, You Have The Right To Remain Silent. 

You May Politely State That You Would Like To Talk To Your Attorney Before Answering Any Questions Or That You Don’t Want To Answer Questions. 

This Approach May Not Keep You From Being Arrested, But It Will Keep You From Voluntarily Incriminating Yourself With The Answers You Give.

DWI And Your Rights During The Field Sobriety Tests

After The Officer Talks With You, He May Suspect A Possible DWI And Ask You To Step Out Of Your Vehicle. 

While Cameras Are Recording, He’ll Ask You To Perform A Series Of Exercises Known As Field Sobriety Tests Where He’ll Be Looking For:

  • Any Sway Or Stagger,
  • Any Delayed Responses Or Faulty Movements, And
  • Any Imperfect Field Sobriety Performance Which Will Be Up To His Discretion.

While In His Charge, You Must Comply With The Officer’s Reasonable Commands Like Exiting Your Vehicle, But You Don’t Have To Volunteer To Incriminate Yourself. 

You Also Don’t Have To Perform Any Field Sobriety Tests- Especially An On-Scene Breath Test.

The Most Common “Requested” Field Sobriety Tests Are:

The Horizontal Gaze Nystagmus Or HGN Test Which Involves The Officer “Requesting” That You Stand With Your Feet Together, Hands To Your Side And Your Head Still. 

He Will Then Ask That You Follow With Your Eyes Only An Object In His Hand—Such As A Pen.

The Officer Is Looking For The Involuntary Eye-Jerking Known As Nystagmus (Also Known As “Dancing Eyes”). Enhanced Nystagmus Can Indicate That Someone’s BAC Is Above A .08. Diseases Such As Multiple Sclerosis, Brain Tumors, Diabetic Neuropathy, Or Neurological Issues Brought On By A Head Injury May Also Cause Nystagmus.

Again, You Don’t Have To Do This Test!

The One Leg Stand (OLS) Involves The Officer “Requesting” That You Stand With Your Feet Together, Hands To Your Sides, And Raise One Foot About Six Inches Off The Ground While Counting Out Loud. The Officer Is Observing 4 Types Of Clues:

Using Arms For Balance,

Sways While Balancing,

Hopping, Or

Putting Your Foot Down During The Test.

All Of These Could Be Signs Of Lost Motor Skills Or Coordination, But They Could Also Be The Product Of An Exercise That’s Just Difficult And Designed To Throw Someone Off Balance.

Again, You Don’t Have To Do This Test!

  • The Walk And Turn (W&T) Involves The Officer “Requesting” That You Stand Heel To Toe With Your Arms To Your Side And Walk 9 Heel-To-Toe Steps Forward. Then He’ll Ask You To Turn Around With A Series Of Small Steps, Then Take 9 Heel-To-Toe Steps Back.

The Officer Is Observing 8 Types Of Subjective Clues:

  • Cannot Keep Balance,
  • Starts Too Soon,
  • Stops Walking,
  • Steps Off The Line,
  • Takes The Wrong Number Of Steps,
  • Misses Heel-To-Toe,
  • Uses Arms To Balance, Or
  • Turns Improperly.

All Of These “Missteps” Could Be A Sign Of Intoxication, But They Are More Likely Because The Exercise Is Flawed. 

Most People Find Them Too Difficult Since They’re Designed To Throw The Participant Off Balance. 

In Many Cases, People “Fail” Because The Officer Gave Unclear Directions, Or The Participant Couldn’t Hear Them.

Once Again, You Don’t Have To Do This Test!

YOUR RIGHTS: Your Participation In The Above-Listed Field Sobriety Tests Is “Requested” By The Officer And Is Not A Lawful Command. That Means That You Have The Right To Refuse Any And All Tests That You Think May Show You In An Unfavorable Light And Provide Evidence That May Incriminate You. You Can Request Your Attorney’s Presence Before Any Test Or Subsequent Investigation. 

Your Rights And The DWI Breath And Blood Tests

Usually, The Final Stage In A DWI Investigation Occurs After You’re Arrested. 

This Involves A “Request” That You Give A Breath Or Blood Sample. If Done Correctly, The Officer Will Hand You A Copy Of Statutory Warning Or Form DIC-24 And Read It To You As You Follow Along. 

This Form Requests That You Voluntarily Consent To Provide A Blood Or Breath Sample And Explains The Consequences If You Refuse:

  • Your License May Be Suspended For A Longer Period Of Time Than If You Had Consented, And
  • Your Refusal Could Be Used Against You In A Subsequent Prosecution.

YOUR RIGHTS: You Have The Right To:

  • See And Be Read This Form So That You Understand Your Right To Refuse Any Blood Or Breath Test And The Consequences Of Doing So. If The Officer Requests The Sample Without Showing Or Reading The DIC-24 Form With You, Any Subsequent Test As Part Of The DWI Investigation May Be Suppressed.
  •  
  • If You Refuse To Give A Blood Or Breath Test, The Officer May Seek To Get A Sample Of Your Blood Through A Legally Valid Search Warrant Signed By A Judge. If A Warrant Is Issued, You Cannot Refuse The Test. That Said, An Effective DWI Attorney Should Closely Evaluate Whether Or Not The Officer Followed All Of The Legally Required Steps Before Securing A Valid Blood Draw.
  •  
  • If You Volunteer To Provide Breath Or Blood, You Waive Many Of The Legal Requirements Involved In A Breath Or Blood Draw. Remember, You Have The Right To Not Incriminate Yourself! By Refusing To Give A Sample Of Your Breath Or Blood, You Are Simply Saying You Don’t Want To Help The Government Prosecute You.

Under Our Law, Authorities Are Supposed To Respect And Follow Each Of Your Legal Rights. 

Police Blood And Breath Testing Are Done For The Sole Purpose Of Gathering Evidence Against You. 

Moreover, It Is Often The Case That Their Testing Is Flawed Giving Rise To Erroneous Results.

For Example, Breath Samples Are Not Saved Or Preserved For Re-Testing And Blood Samples Are Subject To Faulty Collection And Testing Procedures That Flow From Contamination And/Or Operator Error. 

Clearly, The Best Course Of Action Is Not To Participate In Tests That Produce Erroneous Results.

Your Rights During The Formal Arrest For DWI

If You Are Formally Arrested For DWI, The Officer Must Read You Your Miranda Rights Which Reads:

You Have The Right To Remain Silent. Anything You Say Can And Will Be Used Against You In A Court Of Law. You Have The Right To Have An Attorney. If You Cannot Afford On, One Will Be Appointed To You By The Court. With These Rights In Mind, Are You Still Willing To Talk With Me About The Charges Against You?

Of Course, The Only Legally Educated Answer To That Question Is, “No, I Wish To Speak To An Attorney.”

If You Have Been Arrested For DWI, DUI Or BWI (Boating While Intoxicated), Call The DWI Attorneys At Trichter & LeGrand 24/7 To Schedule A Free Consultation.

TELL US ABOUT YOUR CASE

Get A Fast Response

Use the form to request your free consultation to discuss your case with one of our attorneys. The use of this form does not establish an attorney-client relationship.

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.

© 2020 Trichter & LeGrand. All rights reserved
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WHAT EVERY DRIVER SHOULD KNOW

DWI Specialist Gary Trichter
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WHAT EVERY DRIVER SHOULD KNOW

In Texas, There Appears To Be A Lot Of Confusion Between The Citizens, Law Enforcement, And Even Lawyers, About Deemed Consent. 

When It Is Proper For A Law Enforcement Officer To Ask For A Breath Or Blood Specimen?

Many People Have The Misconception — Especially Police Officers And Courts — That A Driver Gives Deemed Consent To Testing When They Obtain Their Driver’s License. 

This “Misconception” Is Based Upon Texas’s Deemed Consent Law Found At Section 724.011 Of The Texas Transportation Code Which Provides:

Sec. 724.011.  CONSENT TO TAKING OF SPECIMEN.  (A)  If A Person Is Arrested For An Offense Arising Out Of Acts Alleged To Have Been Committed While The Person Was Operating A Motor Vehicle In A Public Place, Or A Watercraft, While Intoxicated, Or An Offense Under Section 106.041, Alcoholic Beverage Code, The Person Is Deemed To Have Consented, Subject To This Chapter, To Submit To The Taking Of One Or More Specimens Of The Person’s Breath Or Blood For Analysis To Determine The Alcohol Concentration Or The Presence In The Person’s Body Of A Controlled Substance, Drug, Dangerous Drug, Or Other Substance.

The Conditions Of Deemed Consent

A Close Reading Of This Statute Makes Clear That Deemed Consent Is Conditional On The Police Following The Deemed Consent Law And Not When A Driver Obtains A License. 

Accordingly, Deemed Consent Is Conditioned On Three Things Happening Before A Proper Police Request, Better Known As A “Statutory Warning”, Can Be Made.

Note, That The Required Language Of A “Statutory Warning” Is Found At Section 724.015. 

Properly Provided, It Allows The Officer To Threaten Certain Coercive Penalties For The Driver’s Noncompliance. 

That Section, In Pertinent Part, States:

Sec. 724.015.  INFORMATION PROVIDED BY OFFICER BEFORE REQUESTING SPECIMEN.  Before Requesting A Person To Submit To The Taking Of A Specimen, The Officer Shall Inform The Person Orally And In Writing That:

(1)  If The Person Refuses To Submit To The Taking Of The Specimen, That Refusal May Be Admissible In A Subsequent Prosecution;

(2)  If The Person Refuses To Submit To The Taking Of The Specimen, The Person’s License To Operate A Motor Vehicle Will Be Automatically Suspended, Whether Or Not The Person Is Subsequently Prosecuted As A Result Of The Arrest, For Not Less Than 180 Days;

(3)  If The Person Refuses To Submit To The Taking Of A Specimen, The Officer May Apply For A Warrant Authorizing A Specimen To Be Taken From The Person;

(4)  If The Person Is 21 Years Of Age Or Older And Submits To The Taking Of A Specimen Designated By The Officer And An Analysis Of The Specimen Shows The Person Had An Alcohol Concentration Of A Level Specified By Chapter 49, Penal Code, The Person’s License To Operate A Motor Vehicle Will Be Automatically Suspended For Not Less Than 90 Days, Whether Or Not The Person Is Subsequently Prosecuted As A Result Of The Arrest;

(5)  If The Person Is Younger Than 21 Years Of Age And Has Any Detectable Amount Of Alcohol In The Person’s System, The Person’s License To Operate A Motor Vehicle Will Be Automatically Suspended For Not Less Than 60 Days Even If The Person Submits To The Taking Of The Specimen, But That If The Person Submits To The Taking Of The Specimen And An Analysis Of The Specimen Shows That The Person Had An Alcohol Concentration Less Than The Level Specified By Chapter 49, Penal Code, The Person May Be Subject To Criminal Penalties Less Severe Than Those Provided Under That Chapter;

(6)  If The Officer Determines That The Person Is A Resident Without A License To Operate A Motor Vehicle In This State, The Department Will Deny To The Person The Issuance Of A License, Whether Or Not The Person Is Subsequently Prosecuted As A Result Of The Arrest, Under The Same Conditions And For The Same Periods That Would Have Applied To A Revocation Of The Person’s Driver’s License If The Person Had Held A Driver’s License Issued By This State; And

(7)  The Person Has A Right To A Hearing On The Suspension Or Denial If, Not Later Than The 15th Day After The Date On Which The Person Receives The Notice Of Suspension Or Denial Or On Which The Person Is Considered To Have Received The Notice By Mail As Provided By Law, The Department Receives, At Its Headquarters In Austin, A Written Demand, Including A Facsimile Transmission, Or A Request In Another Form Prescribed By The Department For The Hearing.

The Officer Can Coerce Under Deemed Consent Only After The Person Is Arrested

By Section 724.011, “If The Person Is Arrested”, The First Condition Is Met Only Where The Person Being Requested To Provide A Specimen Has Been Arrested

Hence, As Per The Deemed Consent Statute, It Is Improper For An Officer To Give A “Statutory Warning” To A Driver Unless That Person Has First Been Arrested. 

And So, What Is Clear, Is That Texas Does Allow Legal Limited Coercion In Order To Get A Blood Or Breath Test. 

However, That Coercion Can Only Be Utilized After There Has Been An Arrest.

Further, There Is Nothing That Prevents An Officer From Asking For A Consensual Blood, Breath Or Urine Tests — Either Before Or After An Arrest — Provided There Is No Coercion Threatened Of Any Nature. 

There Is No Deemed Consent For The Taking Of Urine.

The Officer May Take A Specimen Under Deemed Consent Only With Oral And Written Warnings

Turning Now To Conditions 2 And 3, We Must Now Look At The Statutory Provisions Of Section 724.015, Entitled “Information Provided By Officer Before Requesting Specimen”.  

That Section Provides: 

“Before Requesting A Person To Submit To The Taking Of A Specimen, The Officer Shall Inform The Person Orally And In Writing…” (Emphasis Added).

 

As So, This Language, Too, Makes Clear That Deemed Consent Also Requires That Officer To Do 2 More Things Before A Driver Can Suffer Any Coercive Consequences.  

Specifically, He Must Provide An Oral, And He Must Also Provide A Written Warning (As Is Noted In The First Referenced Section Of 724.015, Supra).  

Again, This Is Done With A Form Designated A “Statutory Warning, Better Known As A DIC 24”. This Section Requires The Officer To Both Orally Read It Out Loud And Provide It To A Driver After An Arrest. 

This Is So Because The Legislature Wanted The Citizens To Know That Stated Penalties Might Occur If There Was A Refusal To A Properly Made Test Request.

The Requirement That There Be Two Required Simultaneous Methods Of Providing The Same Warning Is A Realistic Legislative Recognition That A Person, Being Subjected To A DWI Investigation, Is Going To Be Nervous And Perhaps Not Understand His/Her Rights Or The Possible Consequences Of A Refusal.  

Without Question, The Legislature Understood That There Was A Better Chance Of A Person Understanding Both The Request And Consequences Of Refusal Where They Hear And Read The Same Message. 

That Said, Both Means Of Delivering That Message — An Oral And Written Presentation — Must Be Made Before The Request For A Blood Or Breath Test Can Be Made.

Until This Happens, There Is No Deemed Consent.

“May” Vs. “Shall”

In Drafting The Bill That Later Became The Law, Section 724.015, Words Were Important! 

Under Our Code Construction Act, The Legislature’s Use Of Certain Words Leave No Doubt That The Use Of The Term “Shall” Meant It Is The Officer’s Required Duty, I.E. “The Officer Shall Inform”.  

We Know This Because The Act At Section 311.016says: “The Following Constructions Apply Unless The Context In Which The Word Or Phrase Appears Necessarily Requires A Different Construction Or Unless A Different Construction Is Expressly Provided By Statute:

(1) ‘May’ Creates Discretionary Authority Or Grants Permission Or A Power.

(2) ‘Shall’ Imposes A Duty.”

 

Accordingly, The Legislature’s Use Of The Word “Shall” (Duty) Instead Of “May” (Discretionary) Leaves No Doubt That Both The Written And Oral Warnings Must Be Meaningfully Given Before A Breath/Blood Test Can Be Made. 

That Understood, Our Law Does Not Allow For Any Discretion About The Need To Provide The Totality Of The Dual Warnings. 

That Same Lesson Is Applicable To The Word “And” Which Is To Be Distinguished From The Word “Or”.  

Therefore, Absent A Proper “Statutory Warning” Being Provided, There Is No Deemed Consent And No Penalty For A Refusal.

You Can Still Refuse A Test Under Deemed Consent Even If You’re Provided A Statutory Warning

Interestingly, Just Because A Proper Statutory Warning Is Provided, It Does Not Mean That That Driver Cannot Decline Or Refuse Submission To The Test. 

Indeed, The Driver Can! However, If That Is Done, The State Can Then Proceed To Impose Two Limited And Particularized Penalties: Suspending A Driver’s License And Telling A Jury About The Driver’s Failure To Submit To Testing.

The Purpose Of The Latter Penalty Is To Allow The State To Infer A Concept Called “Guilty Mind” To A Jury, I.E. The Driver Thought He Was Guilty Of DWI And Was Trying To Hide Evidence Of His Guilt.  

Here, In Regard To “Guilty Mind”, It Is Of Import That Not All Refusals Will Be Admitted Into Evidence. 

Its Admissibility Depends On Relevance And Potential Harm.

For Example, It Is Arguable That A Driver’s Refusal, Based On His/Her Desire To First Have The Advice Of A Lawyer Before Agreeing Or Refusing, Has No Relevance Unless The Officer First Informs The Driver That There Is Not A Right To An Attorney For That Purpose. 

This Is True Because Texas Courts Have Long Held That No Inference Of Guilt Can Occur By The Invocation Of The Rights, E.G., To Have The Help Of A Lawyer Or To Remain Silent.

In Regard To A Driver’s Right To Refuse, It Is Found At Section 724.013, It Says:

PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES; EXCEPTION. Except As Provided By Section 724.012(B), A Specimen May Not Be Taken If A Person Refuses To Submit To The Taking Of A Specimen Designated By A Peace Officer.

 

Sadly, Almost Every Right A Citizen Has Will Have An Exception To It, And, The “Right To Refuse” (No Pun Intended) Is Not An Exception. 

For Example, Under Very Limited Circumstances, An Officer Can Forcibly Take Blood If There Are “Exigent Circumstances” To Do So (E.G. The Substances That Are Causing Impairment Are Dissipating In The Driver’s Body) And There Is Simply Not The Time To Secure A Search Warrant.

Search Warrants Are Not And Should Not Be Automatic

The Other Example Is That A Search Warrant Is Procured That Authorizes The Forceful Taking Of Blood.  

A Search Warrant Is A Judicial Order Based Upon An Affidavit, I.E. A Sworn Narrative Of Events That The Officer Provides To A Judge For The Purpose Of Establishing Probable Cause That The Driver Committed The Offense Of DWI And That The Alcohol/Drug/Controlled Substance Evidence Of That Crime, Is In That Person’s Blood And Is Dissipating.

Further, A Search Warrant Is Not Supposed To Be Automatically Issued Upon An Officer’s Request. 

Simply Because An Officer Requests A Warrant Does Not Mean That A Judge Should Grant It.  Indeed, If The Judge, Upon Review Of The Officer’s Affidavit, Determines There Are Insufficient Facts To Establish Probable Cause, (I.E. Facts Showing The Driver Probably Committed The Offense Of DWI/Not A Naked Hunch Or Suspicion Or A Simple Conclusion), The Warrant Request Must Be Denied.

Said Another Way, Getting A Search Warrant Is Not Automatic As It Is Conditioned On A Factually Sufficient Affidavit Showing Probable Cause Being Provided To A Neutral And Detached Judge. 

Lastly, If A Warrant Is Issued, The Driver Needs To Know That He/She Can Forcibly Be Made To Provide Blood Samples So Long As The Officer Uses Limited And Reasonable Force.

No Deemed Consent For A Taking Of A Urine Test, But There Is For Breath And Blood If Conditions Are Met

In Conclusion, There Is No Deemed Consent For A Taking Of A Urine Test.  

Moreover, There Is No Deemed Consent For A Breath Or Blood Test Unless The Following 3 Conditions Have Been Met:

  • The Driver Is Under Arrest,
  • An Oral Statutory Warning Was Provided, And
  • A Written Statutory Warning Was Provided, And That Said Warnings Occurred Before A Test Request Was Made.

Further, Simply Because The 3 Conditions Are Met, It Does Not Mean That A Driver Has To Agree To The Taking Of Those Sample Specimens. 

Indeed, Many Argue That It Is Better To Refuse Testing Because Breath Test Machines Are Not Warranted Fit By Their Manufacturers For Breath Testing, And, Because The Breath Provided Is Not Preserved For A Subsequent Checking Of That Machine’s Accuracy And Reliability.

That Same Logic Applies To The Taking Of The Blood Sample. This Is So Because There Is No Guarantee That It Will Be Done In A Sanitary Place, By Individuals That Are Properly Trained To Take The Sample And To Analyze It. 

Lastly, Knowing About The Problems In Breath And Blood Testing, Some Argue That The Best Evidence Of Sobriety Is Where That Driver Refuses Testing Because Then There Is No Risk That Erroneous Test Evidence Or An Infection Can Occur.

Finally, From A Lawyer And Driver’s Economic Perspective, A Driver Is Probably Better Off Declining To Submit To Any Testing Because A No-Test Case Is Easier For The Jury To Understand While Being Easier, Shorter And Costing Less To Defend.

TELL US ABOUT YOUR CASE

Get A Fast Response

Use the form to request your free consultation to discuss your case with one of our attorneys. The use of this form does not establish an attorney-client relationship.

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.

© 2020 Trichter & LeGrand. All rights reserved
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HOW A DWI CAN AFFECT AUTO INSURANCE RATES

DWI auto insurance rates
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HOW A DWI CAN AFFECT AUTO INSURANCE RATES

DWI auto insurance rates

If You’ve Been Arrested For DWI You’re Suddenly Faced With A Great Deal Of Uncertainty Regarding Your Future. 

As You Weight The Financial Impact Of Your Arrest, Don’t Overlook How Your Possible Conviction Could Affect Your Auto Insurance Rates.

A DWI Charge Will Lead To A Number Of Immediate Expenses Including:

  • Making Bond
  • Hiring An Attorney And,
  • Meeting Some Conditions Of Bond Such As Alcohol Monitoring Devices.

While The Costs Vary Depending On Each Individual Circumstance, A Final DWI Conviction Could Result In An Increase Of As Much As Two To Three Times The Amount You Are Currently Paying For Auto Insurance. 

This Is In Addition To All The Other Expenses You’re Facing Mounting An Effective Defense.

Why Do Auto Insurance Rates Increase After A DWI Conviction?

The Main Reason For An Increase In Rates Is Risk. Once Your DWI Conviction Is Finalized, You’ll Be Considered A Higher Risk For Auto Insurance Purposes Resulting In An Increased Cost.  

The National Highway Traffic Safety Administration (NHTSA) Estimates That DWI Related Crashes Caused Over 10,000 Deaths And Over $44 Billion In Damages In 2016. 

Insurance Carriers Will Offset That Risk By Charging A Higher Premium For Those Classified As High Risk.

Financial Responsibility Insurance Certificates?

In Addition To Increasing Your Actual Auto Insurance Rates, You’ll Also Be Required To Get A Financial Responsibility Insurance Certificate Or An SR-22. 

This Certificate Provides Proof That You Have An Insurance Policy That Covers The Minimum Liability Requirements For That State.

Here In Texas, The Minimum Liability Requirements For Auto Insurance Are:

  • $30,000 To Cover Bodily Injury Or Death Of One Person In A Car Crash
  • $60,000 To Cover Bodily Injuries Or Deaths Of Two Or More People In A Motor Vehicle Accident And
  • $25,000 To Cover Damages Incurred To Any Property From An Auto Accident.

You Will Need An SR-22 For A Minimum Of Two Years Beginning On Your Conviction Date. 

This Additional Cost Is Typically Assessed In A Lump Sum Payment, Not A Monthly Premium. SR-22 Insurance Must Be Paid Typically In Six-Month Increments.

Expect Your Auto Insurance Rates To Increase Dramatically As A Result Of A DWI Conviction.

Your Auto Insurance Rates Increase Will Vary Depending Upon Your Situation. 

In Some Cases, You May Be Dropped From Your Insurance Carrier Because Of Your DWI Conviction. 

In Some States, A DWI Conviction Can Increase Rates By Over 400% And About 100% In Texas.

When Assessing Rates, Most Insurance Companies Will Look Back 3-5 Years At Your Driving Record, So A DWI Can Continue To Affect Your Rates Long After Your Conviction. 

However, If You Keep A Clear Record, Your Auto Insurance Premiums Will Eventually Decrease.

How To Avoid Or Reduce The Cost Of Escalating Auto Insurance Premiums.

Obviously, The Best Way To Reduce The Financial Impact Of A DWI Arrest Is To Avoid Being Convicted. 

Many Of The Costs Associated With Your Arrest And Charge Are Unavoidable. 

But If Your Case Is Resolved Properly, You Can Drastically Affect The Long-Term Consequences Of Your Arrest.

If You Enroll In A Program Such As Pre-Trial Diversion, You Won’t Have To Plead Guilty And Your License Won’t Be Suspended, So It Won’t Likely Affect Your Insurability. 

If Your Case Is Dismissed Or Reduced To A Different Charge That Does Not Include License Suspension, You Could Reduce Or Eliminate The Need For SR-22 Insurance Which Leads To Higher Monthly Auto Insurance Rates.

How A DWI Specialist Can Help

Having An Attorney Who Understands DWI Law And Its Consequences Can Help You Navigate Through This Legal Quagmire. 

Look For A Legal Team To Help You Understand Your Options And The Ancillary Consequences That Will Allow You To Make Smarter Decisions.

TELL US ABOUT YOUR CASE

Get A Fast Response

Use the form to request your free consultation to discuss your case with one of our attorneys. The use of this form does not establish an attorney-client relationship.

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.

© 2020 Trichter & LeGrand. All rights reserved
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YOUR DWI LAWYER IS YOUR BOATING WHILE INTOXICATED LAWYER

Boating While Intoxicated Lawyers
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HOW YOUR DWI LAWYER IS YOUR BOATING WHILE INTOXICATED LAWYER

Boating While Intoxicated Lawyers

During The Summer Months, We Become Boating While Intoxicated Lawyers As Police Crack Down On Boating While Intoxicated Offenses. 

In Its Peak Time, Our Firm Will Defend Just As Many BWI Cases As We Will Driving While Intoxicated Cases Because The Consequences For A Conviction Or An Arrest For BWI Are Almost Identical To Those Of DWI.

Bring A Boating While Intoxicated Lawyer Onboard

Certain Activities And Holidays Seem To Always Intermingle With Alcohol. 

When We Close Our Eyes And Picture A Boat On The Water, Our Image Will Most Likely Contain Water Skis, The Wind Coming Off The Lake And, Yes, A Cooler Filled With Beer.  

Most Of The Time We Exit The Water In The Same State As When We Launched Our Boat, But Other Times, We’re Stopped By The Police And We Need A Boating While Intoxicated Lawyer.

Boating While Intoxicated Versus Just Floating While Intoxicated

Chapter 49 Of The Penal Code Defines A Watercraft As,

“A Vessel, One Or More Water Skis, An Aquaplane, Or Another Device Used For Transporting Or Carrying A Person On Water, Other Than A Device Propelled Only By The Current Of The Water.”

 

In Essence, This Means That If You Are Floating The Guadalupe In A Tube Or Raft, Then You May Only Be At Risk Of A Lesser Alcohol-Related Charge, But Just About Anything Else On The Water Qualifies A Watercraft For BWI Purposes.

One Of The Differences Between “Floating While Intoxicated” (Not A Real Charge) And Boating While Intoxicated, Is That A Police Officer Does Not Need To Have Reasonable Suspicion That You Are Violating Any Law In Order To Stop And Board Your Vessel.

The Ruse Of Boating “Safety Checks”

It Is Becoming Routine For Residents And Guests Alike To Have To Deal With Officers Doing A “Safety Inspection.” 

Generally Speaking, This Safety Inspection Is A Ruse To Check Your Boat Equipment And Then Start Asking Questions About The Number Of Drinks You Have Consumed.

The Officers Will Likely Ask You To Perform A Few Non-Standardized Tests And Then Request That You Move To Your Boat And Head For The Shore. 

Once On Land, They Will Let You Sit For 15 Minutes To Get Your Equilibrium, Then Begin Doing Roadside Tests—The Same Standard Field Sobriety Tests Used In Driving While Intoxicated Arrests.

You Could Have Been Fishing Off The Coast For 8 Hours Or Simply Taking A Joy Ride On The Lake And All The Time The Officers Will Allow You Is 15 Minutes Before They Commence Testing.

Boating While Intoxicated And Implied Consent

Keep In Mind That The Implied Consent Law Applies To Boating While Intoxicated The Same Way It Does To DWI. 

This Means That A Police Officer Will Ask You To Submit To A Breath Or Blood Test And The Choice You Make Will Have Major Consequences On Your Driver’s License.

If You Refuse To Provide A Breath Or Blood Specimen, Your License Or Privilege To Operate A Motor Vehicle Will Be Suspended For 180 Days. 

If Your BAC Results Are Over .08, Then Your License Will Be Suspended For 90 Days.

Boating While Intoxicated And Your Commercial Driver License

If You Have A Commercial Driver License And You Refuse The Breath Or Blood Test Or You Are Found To Have A Result About A .08, Your CDL Will Be Suspended For One Year. 

That Means If You Have A Job That Requires A CDL, You Could Lose That Job For Having Too Many Drinks While Fishing On The Lake.

However, You Have 15 Days From Your Arrest To Request A Hearing—Also Known As An Administrative License Revocation (ALR) Hearing—In Order To Save Your Driver License Or CDL. 

An Experienced Boating While Intoxicated Attorney Will Use This Hearing To Potentially Save Your Driver License And Use The Evidence Gathered In This Hearing In Your Underlying BWI Case.

Boating While Intoxicated Penalties

A First Time BWI Case Is A Class B Misdemeanor Which Hold The Following Punishment:

  • From 3 Days To 180 Days In Jail
  • A $2,000 Fine
  • Unlike A DWI Charge, If Your Blood Alcohol Level Is Above .15, The Boating While Intoxicated Charge Remains A Class B Misdemeanor.
  • However, A BWI Can Be Used To Enhance The Punishment Range Of Any Subsequent BWI Or DWI.
  • Additionally, If You Have Prior DWI And BWI Convictions, The Punishment Can Be Enhanced To A Class A Misdemeanor For One Prior And A Third Degree Felony For Two Prior Convictions.

Call A Boating While Intoxicated Attorney

A Boating While Intoxicated Attorney Will Know How To Navigate The Troubled Waters To Help You Through Your BWI Charges. 

We Know How Unfair Police Tests Are And How They Are Designed To Make You Fail Them. 

Call Us 24/7 To Discuss Your Case And Schedule A Free Consultation.

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Use the form to request your free consultation to discuss your case with one of our attorneys. The use of this form does not establish an attorney-client relationship.

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.

© 2020 Trichter & LeGrand. All rights reserved
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CELL PHONE DATA PRIVACY AFFECTS LEGALITY OF THE BLOOD SEARCH WARRANT

What Are The Chances Of Getting A DWI Dismissed? - DWI Lawyer Gary Trichter Trichter & LeGrand
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CELL PHONE DATA PRIVACY AFFECTS LEGALITY OF THE BLOOD SEARCH WARRANT

DWI Lawyer-Trichter & LeGrand Law Firm

In Mid-June 2018, The United States Supreme Court Decided A Case With A Rationale That Interestingly Applies To Police Blood Testing And The Blood Search Warrant.

The Effects On Our 4thAmendment Protections Against Unreasonable Searches And Seizures

The Case, United States Vs Carpenter, Holds That The Government May Not Seize Data Concerning Cell Phone Locations Absent An Emergency Or Exigency, And Absent A Search Warrant Issued By A Neutral And Detached Magistrate Who Finds Probable Cause To Do So.

BLOOD SEARCH WITHOUT A WARRANT

Our 4thAmendment Right Under The Constitution Has A Preference That, For Searches To Be Legal, They Must Be Under The Authority Of A Search Warrant. 

Although There Are A Few Exceptions To The Warrant Requirement, They Pale In Comparison To The Responsibility That Belongs To The Government For Justifying A Search Without A Warrant.

Exceptions To A Warrantless Search Include:

  • Driver Consent,
  • Emergencies Or Exigencies Or,
  • Routine Matters That Leave Little Discretion For An Officer Like An Automobile Inventory Before It Is Impounded Where He Makes Note Of The Property In The Vehicle To Protect The Owner As Well As The Officer Performing The Inventory From Allegations Of Theft.

THE 3-DAY LIFE OF A WARRANT

By Statute, A Warrant Has A Life Of Only Three Days, So Searches On A Timed-Out Warrant Are Illegal And The Evidence Derived From It Becomes Inadmissible In A Court Proceeding. 

Accordingly, A Blood Search Warrant Can Only Authorize Both The Initial Seizure Of The Blood And Any Subsequent Testing, Provided That The Testing Is Done Within That Three-Day Window.

It’s Important To Note That Almost All Blood Testing Is Done Weeks To Months After The Initial Seizure And Is Performed Outside The Authority Of The Initial Valid Warrant. 

PHONE DATA = BLOOD SAMPLE DATA

This Brings Us Back To The Carpenter Case. 

The Vast Amount Of Data Stored On A Cell Phone Or Mobile Device Is Very Similar To The Amount Of Data Contained In A Blood Sample. 

In Fact, A Short While Ago The United States Supreme Court Decided Another Cell Phone Case, California Vs Riley, That Held That The Contents Of A Cell Phone Were Indeed Private And Protected.

Further, The Court Went On To Say That, Unless An Exception Applied To Searching The Phone, A Separate Warrant Was Needed To Access The Data.

ARGUING CONSENT AND THE BLOOD SEARCH WARRANT

According To The Court, A Warrant Was Required Even When The Cell Phone Had Been Initially Seized On A Legal Basis. 

Of Course, All This Is Good News For Those Accused Of DWI, Because A Skilled Defense Attorney Can Make A Legal Argument That Subsequent Blood Samples Analyses, In Order To Be Used Against The Accused, Must Be Based On Either A Warrant Or Consent.

As An Aside, Even If There Was Consent To Take The Sample, There May Not Have Been Consent Given To Test The Sample. 

Further, Earlier Limited Consent To Take The Sample Does Not Authorize Police To Test It. 

Moreover, Even If There Was Consent Given, The Citizen Still Has The Right To Withdraw Consent. 

Further, If Police Test It Without Consent Or A Warrant, A Good Defense Attorney Would Point Out To The Court That The Citizen’s Search And Seizure (Privacy) Rights Were Violated.

ASK US ABOUT YOUR BLOOD TEST AND YOUR RIGHTS

In Summation, If You Have Been Arrested For DWI And Your Blood Was Seized Pursuant To Consent Or A Blood Search Warrant, It Does Not Automatically Mean The Blood Results Can Legally Be Used Against You. 

If You Have A Blood Case, Feel Free To Call Us And Let Us Walk You Through How Your Constitutional Rights Can Protect You And Make This The Great Country That It Is.

TELL US ABOUT YOUR CASE

Get A Fast Response

Use the form to request your free consultation to discuss your case with one of our attorneys. The use of this form does not establish an attorney-client relationship.

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.

© 2020 Trichter & LeGrand. All rights reserved
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