We’ve officially bid farewell to 2018, and for many of us, 2019 arrived with promises of new opportunities and resolutions for growth and change in the months to come. I’m looking forward to growing my practice, meeting new clients, and assisting my community with the myriad legal issues that can arise as the year progresses.
Unfortunately for other Texas drivers, the new year rang in with a less optimistic bang. This New Year’s Eve’s numbers aren’t in yet, but by this time last year, law-enforcement officials had made over 400 DWI-related arrests. If you are one of the hundreds of Texas motorists charged with driving while intoxicated or other alcohol-related offenses this holiday season (for example, consumption, purchase, attempt to purchase, or possession of alcohol, misrepresentation of age, or public intoxication), you’re already starkly aware that Texas is one of the toughest on drivers alleged with these offenses.
Most of us have learned through public information campaigns that the consequences of a DWI conviction are life-altering. The Texas Department of Public Safety will typically require an adult convicted of driving while intoxicated to complete an alcohol education program and/or intervention program, suspend their driver license for up to two years (for first-time offenders), and/or fulfill probation requirements. Minor drivers convicted of DWI receive a one-year driver license suspension and must complete a 12-hour alcohol education program. To boot, if you’re a Commercial Driver’s License (CDL) holder convicted of DWI, you may have your CDL disqualified. So what does it mean to be legally intoxicated in Texas?
In Texas, ‘legally intoxicated’ means a person has a blood alcohol content (BAC) of 0.08% or higher. This percentage is measured by way of blood tests, breath tests, and field sobriety tests administered by law enforcement officials. Blood tests consist of a blood draw taken while a driver is in custody under suspicion of driving while intoxicated. It can take weeks for the test results to arrive, and not infrequently, those test results are inflated or just plain wrong. This is not to say BAC blood test results are by any means easy to beat, but an experienced DWI lawyer knows the potential for errors. For instance, errors can occur in the processing and handling of the blood sample. The vacuum-sealed storage device used to store the blood sample may have expired, the seal might be compromised, or contaminants may have entered the storage device. These factors can prove a false-positive result.
Problems also exist with breath test results. For example, drivers who strictly follow low-carb, high-protein diets such as the ‘keto’ or ketogenic, Atkins, or South Beach diets, or who have certain medical conditions like gastrointestinal reflux disease (GERD), diabetes, or hypoglycemia, can encounter inflated or false breath test result levels. The diets (and others) mentioned above create ‘ketones’ in the body as a by-product of using stored fat as an energy source. Ketones chemically mimic acetone, a type of alcohol, and have been known to trick the devices used in alcohol breath testing. Similarly, insulin-related medical conditions can create ketones that have the same effect. GERD causes stomach contents to flow back into the mouth, and the stomach acid in these contents can read as alcohol.
Sometimes, circumstances like having just one alcoholic beverage prior to getting on the road can elevate BAC results in a breath test. This is caused by alcohol remaining in the driver’s mouth linings, and it is called residual mouth alcohol. Residual mouth alcohol typically dissipates after 15-20 minutes after consuming an alcoholic beverage, but if a driver is pulled over and a breath test is administered before this time, the BAC level can read above the legal limit. A DWI attorney who knows the ropes can determine if the breath test is compliant with Texas Department of Public Safety Rules for collecting breath specimens. If the test violates the Texas Administrative Code’s requirements, or isn’t compliant with the Standard Operating Guidelines for supervisors overseeing particular parts of the testing program, the results may not be admissible.
Field sobriety tests present their own list of potential defenses. The National Highway Traffic Safety Administration (NHTSA) recognizes three types of tests that together make up the Standardized Field Sobriety Test: the horizontal gaze nystagmus, the walk-and-turn, and the one-leg stand. In the horizontal gaze nystagmus test the officer asks the suspect driver to follow a moving object (we frequently see a pen or a flashlight used here) with their eyes whole the officer watched for any wavering or jerking of the eyes. In the walk-and-turn test, the driver must walk nine heel-to-toe steps one direction, turn, and complete the same back the other direction, all in a straight line. Here, the officer is looking for missteps or imbalance as signs of intoxication. Lastly, the one-leg stand measures usually thirty seconds of the driver balancing on one foot, with the other six inches or so off of the ground. Swaying or using one’s arms to counter-balance can indicate the suspect driver is intoxicated. The officer doesn’t have to use all three tests, and can choose which to administer to determine whether or not the suspect driver identifies as impaired enough to have more than the legal limit of blood alcohol content. Knowing how to defend against field sobriety test results can be an enormous advantage when fighting a DWI charge, and our attorneys are skilled in this area.
Quite clearly, it is imperative that Texas drivers charged with DWI or similar criminal offenses educate themselves, and be armed with, knowledge of their legal rights. No matter what time of year, DWI and other alcohol-related offenses demand immediate legal action, especially if the driver is a minor or if they are charged with multiple DWI offenses. The criminal defense attorneys at Alex R. Hernandez, PLLC are ready to defend drunk driving and other criminal defense matters through results-driven service and client-focused attention. Our accomplished and knowledgeable attorneys and staff comprise a team dedicated to providing our clients excellent legal representation and fair, individualized treatment.