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A  common misconception among the public is that if a person gives a breath test that is under the legal limit (0.08) then that person will not be charged will DWI.  WRONG!  See the article below from my other DWI blog for an explanation.

If I give a breath sample under 0.08 the officer will let me go, Right? WRONG! By Plano DWI Lawyer Troy P. Burleson

If you are suspected of drunk driving, you will probably be asked to give a sample of your breath to determine your alcohol concentration. The question most people ask is, "If I give a sample under the legal limit of 0.08, will the officer let me go?” The answer is NO. Even if you give a breath sample below the legal limit of 0.08, you will still be charged with DWI.

Under Texas law, the prosecutors can prove that you were intoxicated by proving:
1) You lost the normal use of your mental faculties; OR
2) You lost the normal use of you physical faculties; OR
3) You had an alcohol concentration of 0.08 or more.

The “Or” in the above law means that the State only has to prove one of the elements above not two or all three. If you give a breath sample under the legal limit, the State will argue that you have a low tolerance for alcohol, you had other substances in your system besides alcohol, or that you had “sobered up” during the time that elapsed between your arrest and the time you gave a breath sample.

Before you are asked to give a breath sample, the officer must read what is known as you “DIC” warnings to you. This warning, which explains the consequences or giving or not giving a breath sample, states out by stating, “You are under arrest…” That means that the office has already decided to ARREST YOU BEFORE you give a breath sample.

Many people are shocked to discover that an officer will still arrest a citizen if they give a breath sample under the legal limit. But, officers will testify to the truth of that statement. So, if you are going to be charged with DWI regardless of what you blow, why would you take he chance on a breath machine that is not universally accepted in the scientific community?

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I have written extensively on my Collin County DWI blog about the current law enforcement trend toward mandatory blood testing on citizens accused of drunk driving. Many of our clients ask questions about the legality of forcing citizens to give a blood sample. Although the current state of Texas Law allows law enforcement to obtain a blood warrant to forcible extract a sample of your blood, I along with man other defense attorneys and legal scholars share the belief that this police is against established Texas law and United States Constitutional law.

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It was a great week for the Law Office of Biederman & Burleson.  Two of our clients, who gave breath tests over the legal limit, were found not guilty after trials.  We reported about the first client here who gave a breath test of over twice the legal limit.  A week later, we obtained another not guilty verdict for a client who blew over the legal limit. 

When we first met with these clients they intended to plea guilty because other attorneys told them that they could not win a breath test case.  Even the prosecutors told us that there was no way we would win these cases!  Well, breath test cases can be won with a proper defense.  Don't believe us, just ask our clients!

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Under Texas law, if you provide a breath test to an officer and you disagree with the results, you have a RIGHT to request a blood test.

Very few people understand that they have a right to request a blood test of their own if they are charged with DWI and give a breath test.  Under Texas law, a Defendant has a right to request a separate blood test of their own if they take and fail a breath test.

However, this is rarely done.  The reason is two fold.  First, Texas law DOES NOT require officers to inform citizens of their right to obtain a blood test after they fail a breath test.  Most people don't know this provision in the law and officers don't tell them about it.  Second, even if you are informed about your right to a subsequent blood test, the officer has no duty to take you to a hospital, or any other medical facility, to give a blood test.  The defendant, from jail, has to contact someone to perform the blood test.  As such, even if a person does request a subsequent blood test it is often impossible to make arrangements to get a test done.

Here is relevant Texas law on a Defendant's Right to His/Her Own Blood Test:

McKinnon v. State, 709 S.W.2d 805 (Tex. App.--Fort Worth 1986, no pet.).  ...the arresting officer does not have a duty to advise the suspect of his right to have his own blood test. 

Crawford v. State,  643 S.W.2d 178 (Tex. App.--Tyler 1982, no pet.).   Failure or inability of defendant to obtain a blood test will not preclude admission of breath test evidence.  Failure of arresting officer to inform defendant of his right to a blood test is not a reversible error, though it would have been a better practice for officers to inform defendant of such right.

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As we have reported here before, the first thing a person must do after his or her DWI arrest is to request an ALR hearing.  This MUST be done within 15 days of your arrest.  For more explanation on the ALR process see our former post.

Clients often ask why an ALR hearing is important for good reason.  Most attorneys put little effort into the ALR process because they see them as lost causes.  State-wide, people lose about 85% of ALR hearings.  At our office, we WIN close to 60% of our ALR hearings. The reason we have such a high success rate (60% compared to the state average of 15%) is because of our aggressive tactics in these hearings.

TKO'ing the State's Criminal Case at an ALR Hearing.

Last week, one of our client's was found NOT GUILTY of a DWI.  The client in this case gave a breath sample of .170 which is over twice the legal limit of 0.08 AND admitted to the officer that he was intoxicated.

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Recently, SOAH posted new procedures for requesting subpoenas for arresting officers, intox operators and technical supervisors.  My law partner, Hunter Biederman, recently wrote an article outlining the new subpoena procedure.

Here is the entire article about subpoena requests:

Everything You Need to Know About the New ALR Rules

by Hunter Biederman

I have been getting a lot of questions, regarding the New SOAH rules.

Of the 3 major issues that we thought might happen, none of them did. Hearings are still in person, no subpoena is needed for BTO’s or Tech Super, and they are still required to be there if we request. The new rules can be found here:

http://www.soah.state.tx.us/AboutUs/ALR_Rules_Bikmkd_n_Linked_eff_20090120.pdf

The major changes that are presented are in the subpoena arena. If there are other major changes, I haven’t noticed them yet. 

In the past, in order to subpoena an officer, we would need to create a subpoena and subpoena request and send it to SOAH for their approval and signature. This often created a delay because they will sign them at their own leisure. Or nit-pick the subpoena, reject it, disallowing enough time to generate a new one that was approved.

Now, attorneys can issue their own subpoenas if they are authorized to practice law in Texas. (Sect. 159.103). We may issue up to two subpoenas for witnesses – the peace officer who was primarily responsible for the defendant’s stop or detention, and the peace officer who was primarily responsible for finding probable cause to arrest the defendant. If the same officer did both, you may only subpoena one.

To issue the subpoenas yourself: 

1)       Use their form found here: http://www.soah.state.tx.us/AboutUs/ALR_Subpoena_Form_Dec_2008_2a.pdf -- You can even type it out online and print it.

2)       Send in a check for $10 plus mileage over 25 miles to SOAH, along with the return of service at least 3 calendar days before the hearing.

3)       Serve the subpoena within FIVE calendar days before the hearing.

4)       Serve DPS a copy of the subpoena the same date it is issued.

5)       Serve DPS a copy of the subpoena return not later than 3 calendar days before the hearing.

If for some reason the hearing is reset, you must notify them of the new hearing date. In the past, local SOAH has provided that this should be done by cert. mail, return receipt.

PLANO issues:

This one is still a work in progress. We were recently informed by a 3CDLA member that Plano was no longer going to “accept” subpoenas that are not signed by judges. I took this to mean that we could not use the previously negotiated Subpoena Coordinator (If you recall, it took us months to get Plano to agree to do this instead of us hunting down officers.)  This is because they have no choice but to “accept” this subpoena.  My first response was, “so what,” I’ll just continue to get subpoenas from the judges like we always did.

WRONG: The Dallas SOAH Judge today informed me that she or the other judges will no longer be signing any subpoenas unless they are one of the 3 enumerated by the rules (2+ cops, civilian witnesses, for pro se people). Therefore, doing what we used to do is not going to work. 

I have contacted Plano and am told that they will be issuing a new directive on how to handle this. My guess is that they were worried that we were going to start issuing our own subpoenas, dropping them off the night before, and screwing the officers. I let them know that there is already a 5-day time period in the new rules. In fact, I said that a 7 day period was even reasonable for them to request. I will disseminate what ends up happening with this. Of course if Plano does not accept this new form of subpoena through a coordinator, we are going to have to go back to the practice we had 6 months ago or tracking down the officers on duty, off duty, at home, etc. I’m hoping this doesn’t have to go back to that.

So there you go. That’s all you need to know about the new rules (until I hear more about Plano’s subpoena coordinator). Please tip your waitstaff.

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