Wednesday, April 22, 2009

10 Mistakes Lawyers Make In DWI Cases And How To Avoid Them

Even though attorneys are schooled in the laws pertaining to a wide variety of legal areas, a huge amount of expertise comes from practical experience, either by prosecuting or defending individuals or businesses. For DWI cases, which involve a great deal of science in addition to just knowledge of the basic governing laws, this experience may be the most critical thing.

And because of the complexity of DWI cases, knowledgeable attorneys consider them to be among the most difficult to defend. Because of this same complexity, a great many attorneys make 10 big mistakes when it comes to defending DWI clients, mistakes which can profoundly harm their clients in terms of losing their license, paying considerable fines, being jailed, having huge increases in their insurance rates, and the effect it could have on their current or future job. To protect yourself and to help decide whom to hire and how to plead, you had better know what these mistakes are.

1. Assuming the Case Can’t be Won

Making this assumption and pleading you guilty is the single most important mistake attorneys make in representing individuals arrested for DWI. After getting the breath test result and the police report, many lawyers simply give it up and advise the client to plead guilty. In fact, the breath test, the alcohol blood level test, and the roadside tests the arrested person has to perform all have potential built-in flaws: flaws which can make the difference. For example, the results of a breath test can be challenged through a Motion to Suppress, or evidence of your sobriety, or with cross examination of the police officer or the state’s expert. Records of the specific Intoxilyzer that you used should be examined.

2. Assuming That The Breath Test Rules Were Followed

Virtually every state has rules and regulations concerning the breath test given to people suspected of DWI. The critical point for the prosecution is that these rules must be followed. This leaves open attacking the results on the grounds that the technical rules weren’t followed. Far too many lawyers don’t understand or know the regulations covering breath testing. Those that don’t know the regulations don’t realize that violations of the rules introduced into evidence, and other things that aren't introduced into evidence, can show that the results are unreliable. Further, showing this can be used to exclude the breath test results altogether. Here’s an example. The officer is supposed to observe you for 15 minutes before giving the test to make sure you don’t hiccup, burp, or puke, because these things can totally skew the test results. Odds are the officer wouldn’t have noticed if you had hiccupped, burped or puked.

In fact, a host of criteria must be met or the test results will often be thrown out. These include:

- the test operator having a current certification.
- the machine having a current certification.
- calibrating the machine as often as required.
- changing the mouthpiece before the test is given.
- keeping a record of the temperature of the calibrating solutions in the machine.
- keeping a log of the tests run.
- counting the number of times the calibration solution has been changed.
- the sample was not taken within a reasonable time of your arrest.
- there is only one test taken.
- the results of the two tests are no more than 0.02 apart
- you have dentures
- you work with solvents

Thus, to defend you properly, a lawyer should get copies of the various logs, maintenance records, and the operator’s license or certification.

3. Not Filing A Motion to Suppress

Not filing this pre-trial motion before a trial is a huge mistake according to many experts, and maybe the most common mistake according to others. Even though this motion doesn’t succeed very often, a case can be won by filing it. While a stop is generally justified if you were weaving from lane to lane, weaving within a lane may not make the stop justified. And whether they’ll admit it or not, this motion may resonate with a judge. Equally as important, even if the motion loses, it provides another opportunity to question the arresting officer. The officer can be asked broad range of questions. And his testimony can be used at trial. If the testimony at the pre-trial hearing is different from that at the trial, the stronger your case is. And it is not uncommon for this to happen.

4. Not Personally Checking Out The Arrest Location

Many lawyers don’t visit the arrest location. And in some cases, this can be exceedingly crucial. One lawyer goes to the arrest scene even before a prospective client comes in for his/her first appointment. And he takes pictures of the spot where the tests were given. This could point out that the particular location made the roadside test difficult to perform. For example, if there’s heavy traffic speeding by on a highway. Or if the shoulder of the road used for the roadside test is slanted. A slanting road automatically makes the tests more difficult to perform. Or a winding road could explain erratic driving. Seeing and knowing these things makes it much easier for your lawyer to ask probing questions about the roadside test, and, in some cases, point out a physical impossibility to the court. An example: An officer may testify that you wove a certain number of times on the road. But there may not have been enough time for you to weave this many times in a given stretch of road. When illustrated by your attorney, this is very telling. Or, there may have been obstacles preventing you from driving with two wheels on the sidewalk, which the police may claim you did.

5. Not Exploiting The Advantage of The "Training Manual" For Roadside Tests

The "Training Manual" is another example of rules that the police must follow when they perform a field sobriety test, that is, the roadside tests mentioned above. Most lawyers know little about this manual and its rules. A very few actually take training courses themselves to become certified and qualified to give these tests. At the very least, this manual should be studied by your lawyer. He or she will then know exactly what questions to ask the arresting officer to see if he completely followed the manual’s directions. This can be powerful evidence frequently overlooked by defense lawyers. If the manual’s directions weren’t completely followed, the test’s validity can be attacked. At what point the test is attacked varies by state. Wherever your lawyer does it, a successful challenge results in the test evidence being excluded at trial. Which significantly weakens the prosecutor's case. I’ve found that in an extremely large number of cases, the police do things inconsistent with the manual’s material. Even more important, officers don’t always use objective scoring. The manual explains how to score the tests and how to arrive at a final score. All too often the officer simply subjectively decides whether or not you failed the tests. Another facet of this is officers asking you to do more than the manual requires. If you were asked to take a test not in the manual (and there are only three), then your lawyer can challenge the test as not being scientifically validated. Incidentally, the police commonly use tests that aren’t in the manual.

6. Not Explaining The Extra Penalties Coming With a Conviction or a Guilty Plea

Your lawyer must advise you about the administrative sanctions resulting from a conviction. They can include license suspension or revocation, jail time, a significant fine, inability to rent a car, substantially higher insurance rates, and loss of your job (particularly if your job involves driving). You must take these extra penalties into account when deciding to plead guilty. If you’re not aware of these penalties, you cannot help but be the loser.

7. Putting the Client on The Stand

Contrary to popular belief, it is not typically a good idea to put the defendant on the stand, expert DWI attorneys believe. This is primarily because they are not experienced witnesses, often appearing to be nervous. Moreover, a defendant who is put on the stand shifts the judge’s focus. The objective of the defense is to show that the prosecutor’s case is not strong enough to convict beyond all reasonable doubt. When the defendant is put on the stand, however, the focus shifts to the credibility and honesty of the defendant. The judge is thus forced to choose between the police officer and the defendant. Plus, it gives the prosecutor the chance to make the defendant look like he’s hiding something. Only good time to put the defendant on the stand is if attorney needs to contradict something the officer said, beyond that, your lawyer should stick to placing reasonable doubt in the judge’s mind.

8. Attempting to Show The Officer Lied

Your lawyer doesn’t need to make the officer sound like he lied to put reasonable doubt in the judge’s mind. All he really needs to do is show how the officer might simply be mistaken this time. No one wants to believe that the officer is lying. But the Court may accept the officer being mistaken. It’s far better to simply paint the case as being about a cop jumping to conclusions and making mistakes.

9. Not Consulting A Lawyer That Focuses His Practice On DWIs

Just as you wouldn’t hire a criminal attorney to advise on business law or divorce, you should consult with an attorney who handles DWI matters and is fully familiar with the process that goes with it. The reason for this is simple: DWI law is complex, it involves a lot of science, and a generalist cannot be everything to everybody. Knowing how to defend a DWI case involves considerable preparation, familiarity with the law, and knowing what motions to make and when. An attorney that concentrates in DWI law has that knowledge. He or she will quickly be able to spot potential defenses. He’ll know what the investigation and discovery should be.
If your lawyer’s practice is not totally focused on DWIs, you may not be getting the best advice and you may not have the strongest case. DWI is no longer a minor offense. The reforms of the 80's and 90's, the tightening of the standards defining what DWI is, and the penalties imposed have made these cases not just complex, but also important. So it’s necessary for you to hire the best attorney you can afford so your case is as strong as possible.

10. Not Consulting with an Expert on the Testing Procedures

Whether it is a breath test or a blood sample, a serious mistake results when counsel does not consult with the proper experts that can assist in the defense of the case. If the police reports and testing reports are defective, expert testimony is required to prove your case. Consulting with the proper experts, and getting written opinions from those experts when necessary can help convince the Prosecutor that he or she cannot prove your case beyond a reasonable doubt.
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10 Biggest Mistakes People Make After Being Arrested For DWI And How To Avoid Them

1. Not taking the matter seriously. This is a charge that will follow you for the rest of your life, if you are convicted. The additional insurance charges alone could cost you thousands of dollars.

2. Not hiring an attorney. The law is complex and you need competent representation. You must raise the right defenses at the right time or you will lose them. Facts will disappear, memories fade and witnesses vanish. A winable case can quickly become a loser.

3. Hiring an attorney based on the amount of the fee alone. The State of Texas has almost unlimited resources when it comes to your case. You need to hire an attorney and pay a fee which will allow him to put time and effort into your case to counter the prosecution. Attorneys must earn enough in the time they spend on your case in order to keep their doors open and make a living wage. If you go too low, your attorney will not be able to put in the time necessary to protect you. Look for a reasonable, predictable fee, not the lowest.

4. Not complying with driver's license laws. You could lose your right to drive.

5. Driving after your license has been taken away.

6. Not taking full advantage of your constitutional rights.

7. Taking the prosecutor's first offer. The first offer is not a bargain, it's just to get rid of your case with the least amount of work. Very few cases are dismissed or reduced to a non-alcohol charge at this stage. You do not give the judge an opportunity to rule on constitutional challenges. You give up your right to raise these issues and make the State prove it's case.

8. Fail to appear in Court. The Court will issue a bench warrant for your arrest and revoke any bond. The next time you are stopped for a traffic infraction, you will be spending some time in jail and posting a bond for your future appearances.

9. Talk to anyone but an attorney about your case. Anything you say to them can be used against you.

10. Think that talking to numerous attorneys will help you handle it on your own. You need to have an attorney go to Court with you.
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15 Mistakes The Police Make And How They Can Help You

1. Stopping a vehicle on the basis of an anonymous call. An officer can not rely on a phone call to stop you, if he does not have a name and address for the caller.

2. Following a driver into his residence without an invitaion or without enough information to justify the entry. Your home is protected under the fourth amendment.

3. Basing an arrest on the statements of the driver alone. The officer must have independent evidence to corroborate these statements. This often arises when he has not seen you in physical control of your car.

4. Detaining a driver longer than is reasonable to investigate. The constitution does not allow officers to hold you without limit.

5. Stopping a vehicle without an articulable suspicion. An officer can not stop you just because he thinks you are suspicious.

6. Stopping a vehicle because it stops in the middle of the street or it is driving too slow. Unless there is a specific traffic ordinance you are violating, such as impeding traffic, it is not lawful for an officer to stop you.

7. Weaving within a lane. The statute only requires you to drive as nearly as is practible within a single lane. Some cases hold that one weave into the shoulder is not enough reason for a stop.

8. Stopping a vehicle based on a misperceived violation of a law. The officer must be right about his interpretation of the law.

9. Stopping a vehicle for an improper sign. Street signs and lane markings must comply with Texas law.

10. Failing to follow the rules of the Department of Public Safety, Breath Testing Manual. These failures may invalidate any alcohol testing.

11. Stopping at an improper roadblock. There are guidlines that must be followed to validate the stop.

12. Stopping a vehicle just to check the driver's license and registration. There must be an actual traffic violation or an articulable suspicion of a crime.

13. Stopping a vehicle without being able to identify it as the one actually commiting a traffic infraction. Officers must be able to convince the Court that they stopped the right car.

14. Stopping a vehicle for no reason at all. It's done. Officers usually do not show up in Court on these.

15. Blocking a vehicle's exit without justification. Officers may not restrict a drivers freedom to leave without a reason.
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Tuesday, April 21, 2009

Austin DWI Attorney - Top 5 Firms in Austin

I'm sure that most of you have found yourself in a need of an attorney for a DWI case. This post should help you find the most renowned and sucessful attorneys in Austin. They all have great recommendations and will do everything in their power to help you case.

1. Dunham & Rogers
With an experience of more than 20 years, attorneys at Dunham & Rogers know fully well how to defend and win DWI cases. Another good thing about this law firm is that the fees are not too high and you can easily afford it.

2. Law Office of EG Morris
Texas Board of Legal Specialization has recently awarded EG Morris the designation of Criminal Law Specialist. In addition, he has also earned the prestigious AV rating from the Martindale Hubbell legal directory. With team members also been highly qualified, Law Office of EG Morris is a perfect DWI attorney firm for your DWI case. Customer service is also top class at Law Office of EG Morris.

3. Kuhn, Doyle & Kuhn
This is an Austin based law firm that specializes in DWI. The best part about this law firm is that they do not charge any sort of consultation fee.

4. Ben Florey Law Offices: Unlike many law firms where individual attention is not given to the clients, Ben Florey Law offices give their clients individual attention, which is quite critical in handling of DWI cases.

5. Ian Inglis Attorney at Law
Certified as criminal law specialist by the Texas Board of Legal Specialization, Ian Inglis has an experience of more than 25 years in handling DWI cases. When you take the services of Ian Inglis, he will arrange an administrative license revocation hearing for you, which means that you are not going to loose your driving license.

DWI attorneys try their best to ensure their clients receive the minimum penalty possible but it is upto the client to be positive and generally truthful in their dealings with the attorney.

Article Source - Austin DWI Attorney - Top 5 Firms in Austin
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Austin DWI Attorney

Austin Texas DWI attorney focuses on the defense of state and federal criminals accused of DWI. Their practice extends to the federal courts in Texas and also the state courts of Austin. Various different issues are handled by these attorneys such as Federal Offenses which are white collar offenses, narcotics and drugs which are dangerous, and various other Federal and State offenses. Listed under these offenses are several issues such as bank fraud, health care fraud, Federal Tax offenses, embezzlement and insurance fraud, and computer related crimes. Other serious offenses are murder, sexual offenses, assault and drug related crimes.

An Austin Texas DWI attorney also looks into cases regarding drunken driving or for driving under the influence of a substance which is intoxicating. The attorney assists their client in preventing their license from being revoked or suspended, and represents their client at the hearing. The attorney could also call for an acquittal of the case or a dismissal.

For those who have a criminal case pending and need an attorney to represent them or would like some clarification on some criminal matter, they could contact any of the Austin Texas DWI attorneys by making an appointment with them.

In the category of Federal Drug cases, possession or distribution of a large amount of drugs that are unlawful and manufacturing or importing them could implicate the person in a criminal offense. Among the white collar crimes fraudulent business deals are the main cause of persons getting accused of criminal offenses. Such cases are handled by Austin Texas attorneys and if the defendant is found to be guilty can be punished by the United States government under their guidelines.

For drunken driving in Texas, a person who is committing this crime for the first time could be punished for a period of six months along with a fine. As the number of times this offense is repeated both the prison sentence and the amount payable as a fine will keep increasing. Their driving license could also be suspended if the defendant refuses to undergo an alcohol test after being found guilty of a DWI felony. For assistance in all such cases the defendant would require the services of an Austin Texas DWi attorney to help get them out of the situation at least with a minimum amount of punishment.

Article Source - Austin DWI Attorney
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Challenging the Breath Test in Court

A breathalyzer or breath test result showing a blood alcohol concentration (BAC) over the legal limit can be one of the most damaging pieces of evidence in the context of a driving while intoxicated (DWI) or driving under the influence (DUI) trial. Though damaging, however, breathalyzer evidence is not ironclad. A variety of factors may cause false or inaccurate readings, allowing DWI defense lawyers to challenge their reliability in court.

Common ways to dispute breathalyzer test results include:

Calibration Error

Like any machine, breathalyzers degrade and become less sensitive over time. Proper calibration is needed to ensure that results are accurate. Evidence that a machine was not properly adjusted and/or maintained may discredit its results.

Operator Qualifications

In most states, strict laws are in place to regulate the operation and maintenance of breath test machines. Because these devices are very sensitive, operators must be properly trained to adapt to different environmental, biological, and physical circumstances. A test administered by an untrained police officer may produce inaccurate or unreliable readings.

Absorption Defense

The absorption of alcohol into the bloodstream takes time. By some estimates, it may take up to two hours for consumed alcohol to reach equilibrium distribution throughout the body. Breathalyzer tests administered during this period can produce inaccurate results, since alcohol content is inconsistent in different areas of the body. Furthermore, if alcohol has not yet been absorbed into the bloodstream, it does not contribute to a person's level of intoxication.

Biological Variables

Breath test results are based on a standard mathematical formula which relates the amount of alcohol on a person's breath with the amount of alcohol present in their bloodstream. This formula, however, only applies when all biological variables conform to its standards. The ratio of breath alcohol to blood alcohol varies between individuals and over time; variations in body temperature can also affect results.


All in all, there are many ways in which breathalyzer tests can produce inaccurate or misleading results, leading to situations where defendants can and should challenge this evidence in court.

Article Source - Challenging the Breath Test in Court
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Drinking Problems and DWI Convictions

It is difficult for many of us to understand why anyone would operate a vehicle while drunk or under the influence of another drug. It is even more perplexing to learn that someone we know has been convicted of this crime multiple times. It seems like a matter of simple common sense to take a taxi or get a ride with a friend when one is impaired. Why do some people have difficulty doing this? There are many potential reasons, ranging from ignorance to recklessness to self-destructive impulses. One common factor among people with DWI convictions is a problem with drinking.

"Alcoholism" has been defined many different ways by many different individuals and organizations, depending on their personal views and experiences. The DSM IV-TR, the current manual that US psychologists use when making diagnoses, attempts to quantify mental health issues by defining them in terms of observable, measurable behaviors. Based on the information they have gathered, the authors of the DSM IV-TR offer two related but distinct drinking problems: abuse and dependency.

Alcohol abuse is the more mild of the two, although it can still have very serious consequences. A person is abusing alcohol if they continue to drink to excess after suffering some sort of consequence for it. The consequence(s) may be legal, such as a DWI conviction; emotional, such as loss of self-respect or damaged relationships with other people; financial, such as spending too much money on liquor or legal fees; or health-related, such as liver damage. A person who is abusing alcohol will not suffer physical symptoms of withdrawal when they cannot drink; they simply have no desire to quit. This may be because alcohol is a way for them to self-medicate a separate emotional problem, such as depression or anxiety. It may be that they feel alcohol gives them something they are lacking in their life, such as self confidence, a sense of security or happiness.

Alcohol dependence is similar to alcohol abuse, with one crucial addition: physiological symptoms. This can mean increased tolerance, requiring the person to drink more to get the same effects, or physical withdrawal. Symptoms of alcohol withdrawal include shakiness, anxiety or irritability, nausea and difficulty concentrating, among others. In the most severe cases, a person might experience what is known as the DT's - a period of intense distress and visual hallucinations.

These difficult emotional problems can make it difficult for a person to resist the temptation to drink at social events, and increase their temptation to drink alone, making it harder to simply get a ride home with a friend. The emotional effects of a drinking problem, such as depression and low self-esteem, also make people more likely to engage in risky behavior.

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Drunk Driving Statistics - Fact Or Fiction?

Every 30 minutes, another person is killed by a drunk driver - so says one set of dramatic statistics often cited by anti-alcohol activist groups like Mothers Against Drunk Driving (MADD). No doubt such a statistic should and does make an impact on anyone who hears it. Drunk driving is not a laughing matter, and it is most definitely a serious issue - however, the situation may not be nearly as grim as some make it out to be.

There's a saying that 90% of all statistics can be made to say anything, 50% of the time. While this statement is obviously an exaggeration, it contains a grain of truth - statistics are not nearly as scientifically sound as many people would like to believe. In many cases, statistics become skewed (whether intentionally or unintentionally) and communicate a message inconsistent with the reality they are meant to depict. Could something like this happen in DWI-related research?

Alcohol-Related Incidents

If you believe the popular media, about 50% of all traffic fatalities are caused by the actions of people driving drunk. If you choose to find the truth yourself, you'll probably come up with a percentage closer to 10%, according to the National Motorists Association - a significant drop, to say the least.

Why is the popularized figure so far off? One cause is an unfortunate confusion involving the term "alcohol-related incident." In most cases, any traffic fatality in which someone involved has a measurable amount of alcohol in their system qualifies as an "alcohol-related incident."

This applies even if the person with alcohol in their system was not physically or mentally impaired by alcohol in anyway, if he or she was not the cause of the accident, or even if he or she was an innocent pedestrian who was not behind the wheel at all. That is to say, if a sober driver is driving recklessly and kills a non-impaired pedestrian with a blood alcohol concentration (BAC) of .01 (the legal limit is .08, for comparison), the incident will be classified as alcohol-related and spread over the media by special interest groups and politicians.

Politicization of the Issue

Unfortunately, efforts to actually deter drunk driving have been hindered by the sensationalist approach of the popular media, the single-minded crusade of biased interest groups, and the general politicization of the topic. Because dire DWI statistics make good news, promote interest groups' narrow-minded agendas, and make for dramatic political speeches, they are often preferred in place of the truth.

Although the original goal of organizations like MADD (that is, the goal of preventing drunk driving) is a noble one, this goal has been perverted, becoming more about highly visible and politically attractive actions (sobriety roadblocks and checkpoints, for example) than about solutions which have been scientifically proven to work.

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DWI - Texas Law

The state of Texas has a .08 blood alcohol concentration limit for intoxication. However, a driver may be issued a citation for impaired driving due to alcohol or drugs regardless of the amount of alcohol. Impairment can begin with the first drink. Depending on body weight, gender, and the food in one's stomach, a person's tolerance varies. In general, women, smaller people, and younger people do not have high tolerances.

Once you are stopped, you will be asked to take a blood or breath test. You can deny. However, you will then be automatically subjected to a 180 day driver's license. In the state of Texas, punishment for DWI depends on the number of previous convictions.

For a person's first DWI offense, they will spend between 72 hours and 180 days in jail. In addition, they are subject to fines up to $2,000 and their driver's license will be suspended for a minimum of 90 days and a maximum of a year. A second offense carries a possible fine of $4,000. An offender will spend between a month and a year in jail. Their driver's license will be suspended for a maximum of 2 years. If a person is convicted of DWI the third time, they face up to 10 years in prison, a $4,000 fine, and a driver's license suspension for up to 2 years.

If you are found in possession of alcohol and are under 21, the following will occur on the first offense: 30 day driver's license suspension, 8 to 12 hours of community service, alcohol-awareness classes and a fine of up to $500. If a second or third offense occurs, the driver's license can be suspended 180 days. If the offender is above the age of 17 they face a maximum of $2,000 in fines and 180 days in jail for the third offense.

If you are under the legal drinking age of 21 and are drinking and driving, the following will occur: 60 day driver's license suspension, $500 fine, 20 to 40 hours of community service, an alcohol awareness classes. Penalties increase with subsequent offenses.

The state of Texas has a zero tolerance rule. That means an individual under the age of 21 cannot possess any alcohol in their blood. The above consequences will occur if the amount of alcohol is very minimal. If the BAC is .08 or greater and the individual is 17 they face up to 180 days in jail.

Article Source - DWI Texas Law
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DWI - Typical Investigation and Arrest

Following are common procedures when a law enforcement officer has reason to suspect a driver is intoxicated.

Reasonable Suspicion to stop

There are several situations in which the officer will come into contact with a driver, some examples are:
- The driver has been involved in an automobile accident, the officer has responded to the scene and is conducting an investigation.
- The driver has been stopped at a sobriety checkpoint (also known as roadblocks).
- The police have received a report, possibly from an anonymous citizen, that a described car has been driving erratically. The officer should verify the erratic driving before pulling the driver over. In some cases, the driver will no longer be in the vehicle.
- The officer on patrol has observed erratic, suspicious driving, or a series of traffic infractions indicating the possibility that the driver may be impaired. This is by far the most common reason for stopping a suspect.
A police officer has stopped a vehicle for a lesser traffic offense, notices the signs of intoxication, and begins the DWI investigation.

The following list of DWI symptoms, from a publication issued by the National Highway Traffic Safety Administration (DOT HS-805-711) is widely used in training officers to detect drunk drivers. After each symptom is a percentage figure which, according to NHTSA, indicates the statistical chances through research, that a driver is over the legal limit.

f the officer observes enough to have a reasonable suspicion to legally justify a further detention and investigation, he will ask the driver to step out of the vehicle.

Reasonable suspicion requires less evidence than probable cause, but more than a mere hunch. A rule of thumb is that reasonable suspicion requires 25 % proof, and probable cause requires more than 50 % statistical chance. Therefore, if there is probable cause for arrest for DWI, as suggested by the research and examples used above, then there is reasonable suspicion to stop a driver.


The officer will typically approach the driver's window and ask some preliminary questions. During this phase of the stop the officer will note if they detect any of the following indicators of intoxication:

- odor of an alcoholic beverage on the driver's breath or in the car generally
slurred speech in response to the questioning
- watery, blood shot, and/or reddish eyes
- flushed face
- droopy eyelids
- difficulty in understanding and responding intelligently to question
- fumbling with his or her driver's license and registration
- the plain-view presence of containers of alcoholic beverages in the vehicle
- admission of consumption of alcoholic beverage

If the officer observes enough to have a reasonable suspicion to legally justify a further detention and investigation, he will ask the driver to step out of the vehicle. In some states (Texas and Louisiana, for example), if the officer has reasonable suspicion or probable cause to make the stop, the driver can be ordered out of the vehicle at any time, not just during a DWI investigation.

Field sobriety tests

The officer will administer one or more field sobriety tests (FSTs). FSTs are "divided attention tests" that theoretically test the suspect's ability to perform the type of mental and physical multitasking that is required to operate an automobile. The most commonly administered FSTs include:
- horizontal gaze nystagmus test, which involves following an object with the eyes (such as a pen) to determine characteristic eye movement reaction. A sober person should be able to smoothly track the object with their eyes. In an intoxicated individual the eyes will jerk as they follow the object
- walk-and-turn (heel-to-toe in a straight line)
- one-leg-stand
- modified-position-of-attention (feet together, head back, eyes closed for thirty seconds; also known as the Romberg test)
- finger-to-nose (tip head back, eyes closed, touch the tip of nose with tip of index finger)
- recite all or part of the alphabet (a common myth is that the alphabet must be recited backwards, however, this is never done during an FST, as many sober people are unable to do this)
- touch each finger of hand to thumb counting with each touch (1, 2, 3, 4, 4, 3, 2, 1)
- count backwards from a number such as 30 or 100.
- breathe into a "portable or preliminary breath tester" or PBT.

Although most law enforcement agencies continue to use a variety of these FSTs, increasingly a 3-test battery of standardized field sobriety tests (SFSTs) is being adopted. These tests are recommended by the National Highway Traffic Safety Administration (NHTSA) after studies indicated other FSTs were relatively unreliable. The NHTSA-approved battery of tests consists of the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand. In some states, such as Ohio, only the standardized tests will be admitted into evidence, provided they were administered and objectively scored "in substantial compliance" with NHTSA standards (ORC 4511.19(D)(4)(b)).

FSTs are more effective at determining the level of impairment than they are at estimating the driver's blood alcohol concentration (BAC). However, studies question whether the tests increase the officer's ability to judge either. In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had "had too much to drink and drive". The blood-alcohol concentration of each of the 21 DWI subjects was .00, unknown to the officers. The result: the officers gave their opinion that 46% of these innocent people were too drunk to be able drive. This study showed the possible inaccuracy of FSTs.

An increasingly used field sobriety test involves having the suspect breathe into a small, handheld breath testing device. Called variously a PAS ("preliminary alcohol screening") or PBT ("preliminary breath test"), the units are small, inexpensive versions of their larger, more sophisticated instruments at the police stations, the EBTs ("evidentiary breath test"). Whereas the EBTs usually employ infrared spectroscopy, the PAS units use a relatively simple electrochemical (fuel cell) technology. Their purpose, along with other FSTs, is to assist the officer in determining probable cause for arrest. Although because of their relative inaccuracy they were never intended to be used in court for proving actual blood-alcohol concentration, some courts have begun to admit them as evidence of BAC.

Probable cause to arrest

If the officer has sufficient probable cause that the suspect has been driving under the influence of alcohol, he will make the arrest, handcuff the suspect and transport him to the police station. En route, the officer may advise him of his Miranda rights and his legal implied consent obligation to submit to an evidentiary chemical test of blood, breath or possibly urine.

Laws relating to what exactly constitutes probable cause vary from state to state. In California it is a refutable presumption that a person with a BAC of .08 or higher is driving under the influence. However, section 23610(a)(2) of the California Vehicle Code states that driving with a BAC between .05 and .08 "shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage."

Chemical test

At the police station, the arrestee will be offered a chemical test of breath, blood or, much less frequently, urine. Breath test results are usually available immediately; urine and blood samples are sent to a lab for later analysis to determine the BAC or possible presence of drugs.

If the arrestee refuses to submit to chemical testing, he will usually be booked for driving under the influence, there will be no evidence for filing the second charge of driving with .08% blood alcohol content. In some cases the arrestee may be charged with DWI even after passing a breathalyzer test if he or she refuses also to take subsequent urine or blood tests. However, the refusal will carry increased penalties on the driving under the influence charge (typically a longer license suspension and/or an increased jail sentence), and the act of refusing may be admissible in court as evidence of "consciousness of guilt". In some states, refusal to submit to a chemical test can result in an automatic suspension of driving privileges, regardless of whether the suspect is convicted of DWI. In an increasing number of jurisdictions, if the suspect refuses to take a chemical test the police in some states may restrain the individual and forcefully withdraw blood. This is particularly common in situations involving an accident with injury or death. In some jurisdictions this may require obtaining a warrant from a judge. Some commentators, such as Brown University's Jacob Appel, have criticized the role of medical personnel in this process. According to Appel, "If physicians acquiesce today in the removal of a resistant patient's blood, soon they may be called upon to pump the contents of an unwilling patient's stomach or even to perform involuntary surgery to retrieve an evidentiary bullet."

While chemical tests are used to determine the driver's BAC, they do not determine the driver's level of impairment. However, state laws usually provide for a rebuttable legal presumption of intoxication at blood alcohol levels of .08 or higher.

The accuracy of breath, blood and urine testing is a subject of some dispute, with various scientific studies indicating unreliable results (see breathalyzer). In any case, breath and urine tests can only estimate the BAC at the time the test is taken, which can be different than when the vehicle was actually operated.

Booking and charging

If it is determined after arrest that the person's blood alcohol concentration is not at or above the legal limit of .08, they will probably be released without any charges. One may, however, still be charged with driving under the influence of alcohol on the basis of driving symptoms, observed impairment, admissions and/or performance on the field sobriety tests. And if there is suspicion of drug usage, a blood or urine test is likely, or at least the testimony of a specially-trained officer called a Drug Recognition Expert (DRE). Assuming sufficient evidence of impaired driving from drugs, the arrestee may face charges of driving under the influence of drugs or the combined influence of alcohol and drugs.

Most of the time, the driver will either be kept in a holding cell (sometimes referred to as the "drunk tank") until he is deemed sober enough to be released on bail or on his "own recognizance" ("O.R."). A date to appear in court for an arraignment will be given to him. If he cannot make bail or is not granted O.R., he will be kept in jail to wait for the arraignment on remand.
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DWI - Law

All states in the U.S. designate a per se blood or breath alcohol level as the threshold point for an independent criminal offense. A second criminal offense of driving "under the influence" or "while impaired" is also usually charged in most states, with a permissive presumption of guilt where the person's blood alcohol concentration (BAC) is .08 percent or greater (units of milligrams per deciliter, representing 8 g of alcohol in 10 liters of blood). Some states (e.g., Colorado) include a lesser charge, sometimes referred to as driving while ability impaired (this may apply to individuals with a .05 percent or above, but less than the .08 per se limit for the more serious charge. The amount of alcohol intake to reach 0.08 percent varies substantially with body composition and health state. Risk of traffic accidents are increased already by far less dosage.

Prior to increased emphasis on drinking and driving in the 1980s, standards of .10-.15 percent were in place. The legal limit for commercial drivers in the U.S. is set at 0.04 percent.All states also observe a much stricter standard for drivers under the age of 21, commonly of .01-.02 these are often referred to as "Zero Tolerance" laws.

Driving under the influence of drugs

Unlike DUI, DWI, or OWUI cases that involve alcohol, there is generally no "per se" or legal limit that is employed for persons accused of driving under the influence of prescription medication or illicit drugs (although this is not the case in Ohio). Instead, the key inquiry focuses on whether the driver's faculties were impaired by the substance that was consumed. The detection and successful prosecution of drivers impaired by prescription medication or illegal drugs can therefore be difficult. Similarly, although urinalysis toxicology screens can detect the presence of such substances in the driver's bloodstream, these analyses are unable to demonstrate that the substance was actually causing impairment at the time of driving. In response to these problems, several jurisdictions are currently considering legislation that would establish "zero tolerance" laws for those drivers arrested for DUI and found to have drugs or medication in their system. Additionally, breathalyzers have been developed for the purpose of administering roadside or laboratory tests that can detect the actual level of a controlled substance in an individual's body.


Compared to many other countries penalities for drunk driving, unless involved in an incident involving injury or death of others, are light. Many states do not revoke driving permits even if the offender is convicted multiple times. In most U.S. states drink driving is socialy acceptable in a way that it is not in much of Europe. Many jurisdictions require more serious penalties (such as jail time, larger fines, longer DUI program, the installation of ignition interlock devices) in cases where the driver's BAC is over 0.20, or 0.15 in some places. These additional sanctions are an attempt to deter and punish the operation of a vehicle at extremely high BAC levels and the concomitant danger posed to the safety of persons and property by heavily impaired drivers. In many cases, the reason given for these additional sanctions is because an average person would have passed out from that much alcohol. To be able to drive at that level, a person has to have consumed alcohol regularly for months in order to increase his/her alcohol tolerance and therefore is likely to have driven drunk repeatedly. However, since there is currently no standard test to measure alcohol tolerance, proponents of additional penalties for high-BAC offenders point to some studies that indicate that high-BAC offenders are more likely to be involved in a crash and more likely to recidivate. Critics of such laws point out that due to wide variations of alcohol tolerance, people with high tolerances will suffer the additional penalties, despite being less impaired than those with lower tolerances who drive with much lower BACs.

Some U.S. states also increase the penalties for drunk driving (even to the point of making it a felony) if certain other aggravating circumstances besides a high BAC are present, such as if the drunk driver caused an accident requiring the hospitalization of another person lasting greater than a specified period of time (often 72 hours), in cases where an accident resulted in property damage exceeding a certain amount (often $500), or where the driver has prior (and relatively recent) convictions for drunk driving. In addition, most states observe administrative laws that further penalize people convicted of DUI, typically enforced by the department that issues driver's licenses, usually titled Department of Motor Vehicles (DMV), or Department of Licensing. Australia and the UK have higher alcohol consumption rates, lower ages for alcohol consumption, much lower sentencing regimes for DUI Manslaughter, and much lower incidences of DUI.
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1. DWI - Law
2. DWI - Typical Investigation and Arrest
3. DWI - Texas Law
4. Drunk Driving Statistics - Fact Or Fiction?
5. Drinking Problems and DWI Convictions
6. Challenging the Breath Test in Court
7. Austin DWI Attorney
8. Austin DWI Attorney - Top 5 Firms in Austin
9. 15 Mistakes The Police Make And How They Can Help You
10. 10 Biggest Mistakes People Make After Being Arrested For DWI And How To Avoid Them
11. 10 Mistakes Lawyers Make In DWI Cases And How To Avoid Them
12. Blood Alcohol Content
13. Out of State Drivers arrested in Texas for DWI
14. Underage Drinking
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Driving While Intoxicated

Driving while intoxicated is the act of operating and/or driving a motor vehicle while under the influence of alcohol and/or drugs to the degree that mental and motor skills are impaired. It is illegal in all jurisdictions within the U.S. The specific criminal offense is usually called driving under the influence (of alcohol and/or other drugs, DUI), and in some states driving while intoxicated (DWI), operating while impaired (OWI), or operating a vehicle under the influence (OVI). Such laws may also apply to boating or piloting aircraft.

In the United States the National Highway Traffic Safety Administration (NHTSA) estimates that 17,941 people died in 2006 in "alcohol-related" collisions, representing 40 percent of total traffic deaths in the US. Over 500,000 people were injured in alcohol-related accidents in the US in 2003. NHTSA defines fatal collisions as "alcohol-related" if they believe the driver, a passenger, or an occupant of the vehicle (such as a pedestrian or pedalcyclist) had a blood alcohol content (BAC) of 0.01 or greater. NHTSA defines nonfatal collisions as "alcohol-related" if the accident report indicates evidence of alcohol present. NHTSA specifically notes that "alcohol-related" does not necessarily mean a driver or nonoccupant was tested for alcohol and that the term does not indicate a collision or fatality was caused by the presence of alcohol. On average, about 60 percent of the BAC values are missing or unknown. To analyze what they believe is the complete data, statisticians simulate BAC information. Drivers with a BAC of 0.10 are 6 to 12 times more likely to get into a fatal crash or injury then drivers with no alcohol.