After a DWI Arrest You Only Have a Set Time Period To Request A Driver License Hearing

Posted on May 22, 2011 by Stephen Hamilton

 If you are arrested for a DWI or DUIM (driving under the influence by a minor) in Texas then if you either gave a breath sample and it was over .08 (.04 if in a commercial vehicle or a detectable amount if a minor) or refused to give a sample, you have 15 days, working DPS days, to request a hearing on your license.  If you gave a voluntary blood you will get a letter of the results from DPS and if over .08 you will have 20 days to request a hearing.  It is important if you were arrested for a DWI that you contact an attorney immediately to discuss these deadlines and why you want to always contest your automatic driver license suspension.

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What does "Implied Consent" to give a breath or blood test for a Lubbock DWI mean?

Posted on May 8, 2011 by Stephen Hamilton

 If you or someone you love has been arrested for a DWI in Lubbock or west Texas, most likely the arresting officer read them what is called the statutory warning.  This piece of paper is about 6 paragraphs long and basically tells the person arrested for a DWI about the breath or blood test request.  Today's video tip covers the Implied Consent Law in Texas.

 There are several potential defenses to a "refusal" case.  It is important the arresting officer actually read the statutory warning to you.  It is important he or she does not add anything to or leave out anything on the warnings.

If you have any questions about the statutory warnings and a DWI, please call me, Stephen Hamilton.  As a Board Certified Criminal Defense Attorney my goal is to help you with your case.


 

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Lubbock DWI Breath Test Machine and how it works

Posted on May 3, 2011 by Stephen Hamilton

Today's video topic is the Intoxilyzer 5000 and how it relates to a Lubbock Texas DWI arrest.  If you were arrested in Lubbock or the South Plains for a DWI and gave a breath test at the police station, you did so on what is known as the Intoxilyzer 5000.  It is the breath test machine's result that can be admitted into evidence against you in court.  In other words, it is the breath test that counts.  It is the machine that prints out the result that the prosecutor will use to try and show you were intoxicated because your breath or blood alcohol concentration was over the legal limit.  Here is an overview of how the machine used in Lubbock DWI breath test cases operates.

 

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Did you really refuse to give a breath test when you were arrested for a Lubbock DWI? Police say yes, science says no!

Posted on May 1, 2011 by Stephen Hamilton

 If you or somebody you love has been arrested for a DWI in Lubbock Texas and gave a breath sample at the Lubbock Police Department or the Lubbock County Detention Center you did so on the machine called an Intoxilyzer (better known as the intoxaliar, or assumptionizer) 5000.  

For the past few years DWI lawyers in other states and Texas have attacked the breath test machine.  As we learn more of the lack of science behind the machine the more areas of attack become apparent.  Chuck Ramsay, a DWI attorney in Minnesota has been litigating the reliability of the Intoxilyzer 5000 for several years.  Recently in Minnesota a Court has held that the machine cannot be used to prove that a person refused to give a sample.  The idea of the machine is that a person must blow a certain amount of air thru the machine for a certain length of time.  If not, the machine classifies the non sample as a "deficient" sample.  

Few people realize that Judge Abrams did not find that all test results are admissible. He actually highlighted the fatal errors in the source code that wrongly reject perfectly valid samples, stating that, “In cases in which the Intoxilyzer 5000EN … reported a ‘Deficient Sample,’ the Source Code of the instrument does impact the reliability, solely, of this result. Evidence in such cases of a ‘Deficient Sample’ test report should not be allowed ….”

In the order’s Conclusion, the court indicates the machine reports a deficient sample even when the sample is not actually deficient.

There is one limited situation, as discussed earlier, in which the labeling of a sample as “deficient” arises from multiple causes. At least one of these causes is a consequence of the Source Code's instructions to the microprocessors and has little, if anything, to do with whether the sample is actually deficient.

Under my cross examination, BCA experts were forced to openly admit that the current version of the source code has more than three times the number of deficient samples as the prior version. According to the BCA’s own data, hundreds of drivers each year who provide a sample greater than 1.1 liters are deemed to have provided a deficient sample!

Unlike Minnesota, it is not currently an offense to refuse to give a breath sample in Texas.  Usually when the machine classifies the breath test sample as deficient the arresting officer will mark the case as a refusal.  The consequence of a "refusal" is a longer potential driver license suspension.  There are medical reasons a person cannot blow 1.1 liters of their breath thru the machine.  If you had problems giving a sample and the arresting officer said you refused that does not mean the government can prove that you refused to give a breath test.  If you or a loved one were arrested in Lubbock or West-Texas for a DWI wouldn’t you want the government to have the best available “guesser” for you? Is  just close enough for government work acceptable for your loved one?

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Is the Lubbock Texas DWI Breath Test machine trustworthy?

Posted on April 21, 2011 by Stephen Hamilton

      It seems that almost every week now someplace either in Texas or another state there is a report or news article questioning the validity of a breath test. Just this week in Ventura, CA the local prosecutor's office sent a memo to local defense attorneys stating that "eight Intoximeter Alco-Sensor V breathalyzers have shown "erratic results" in blood-alcohol tests taken between Jan. 20 and March 31, according to Kevin Drescher, the supervising attorney with the felony unit."

The report gets better. The prosecutor's office indicates they "didn't know how many people charged with DUI were tested with the Alco-Sensor V during that time. I don't have the actual numbers," he said, adding that the office was still looking into the matter. "Obviously, we are trying to do what's right in this situation."   

So how does a problem in CA affect a Lubbock County Texas DWI arrest you ask.  Good question and the answer basically is that a machine is not always accurate.  We all know that.  How many times have you ever had to turn off or restart your computer because the computer froze or had an error?  The problem with breath test machines and the way they work in Lubbock Texas is everything is covered in secrecy.  

  • The Texas Department of Public Safety which maintains the machines won't provide the source codes for the units.  Believe it or not the government's "expert" has no knowledge about how the computer program in the machine works.  Basically all they know is that a number comes out when it comes to the software of the machine.
  • The Texas Department of Public Safety won't allow a defense expert to inspect the machine. 
  • The Department of Public Safety won't require all breath tests to be video taped so we can make sure the testing procedures were followed.
  • The Department of Public Safety does not require that the temperate of the simulator solution be video recorded.  This is important because temperature affects the breath test results.

When I have a client who is arrested in Lubbock by the Lubbock Police Department, Texas Department of Public Safety or Texas Tech police for a DWI or DUI minor the secrecy of the breath test program is always an issue.  The arrogance of the government that the machine "checked itself" so it must be working correctly must be contested.  Trust me I'm from the government is not necessarily a good thing these days.  

 




 

 

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Texas DWI Breath Tests, can they be trusted?

Posted on October 11, 2009 by Stephen Hamilton

Recently a Texas Breath testing supervisor for the State of Texas was sentenced to a year in prison for faking thousands of Texas DWI breath tests.  

One of the real problems with the breath testing program in Texas is the secrecy of its work.   

From 2002 until she was arrested in October 2008, Wallace handled DPS instruments that were used to determine alcohol concentration in DWI cases for at least seven police departments — League City, Friends wood, Webster, Seabrook, Galveston, Clute and South Houston.

In court documents, Wallace told investigators that she had falsified inspection records for both the South Houston and Clute police department Intoxilyzers.

Some of the police departments owned the Intoxilyzers under Wallace's supervision, while others borrowed or leased the devices from her.

Buess said Wallace manipulated the machines instead of changing the reference sample every month, and pocketed $146,000.

Think about it, the government says you are guilty because you blow into a machine and the result that the machine prints out is over a .08, that is, pretty simple from the government's view.

Now look at the rest of the story.  Your arrested on the side of the road in Lubbock for Driving While Intoxicated.  The arresting officer asks if you want to take a breath test.  You know you are under the legal limit and want to prove it so you agree.  

 You wait at the scene of your arrest for thirty minutes to an hour before you are taken to the jail to take the breath test.  

  • In Lubbock if the Lubbock Police Department arrested you then the breath test is at the Lubbock City jail.  If DPS, Texas Tech Police Department, Slaton PD or any other agency arrested you, the breath test is at the Lubbock County jail.

Issue #1  The DWI Law in Texas is driving WHILE intoxicated.  The state must prove your blood or breath (more on this issue in another post) at the time of driving.  So let's says when you got to the station and took the breath test you blew .11.

Again from the government's position pretty simple, .11 is over .08.  

The problem is this simple understanding does not follow scientific principles.  Because there was a delay in the breath test of 30 minutes from the time your were stopped for suspicion of driving while intoxicated in Lubbock to an hour from the arrest, we don't know the alcohol concentration at the time of driving.  

Add to that the fact that from the time of the stop to the time of the arrest is probably another thirty minutes that means the alcohol in your blood or breath could have been rising from the time All of a sudden something as simple as a breath test result is not so simple. The Houston example maybe abnormal or not but without access to the Texas Breath Testing program how do we know?

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