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DWI BLOOD TESTS
Are blood tests more accurate than breath tests? Blood tests are not always reliable.
About David Breston
The Breston Law Firm has handled over 4,000 cases and has been helping people in Texas since 1987. Watch this video to find out more about our firm
CHOOSING A DWI LAWYER
Learn how to choose a DWI lawyer and the importance of choosing an experienced attorney.
A Texas DWI charge can cost you to lose your license, you face fines and may cost you your job.
Have you been charged with Driving While Intoxicated (DWI)? Watch this video by David Breston explaining how he may be able to help you.
DWI BREATH TESTS
Should you refuse a breath test if you are pulled over for DWI in Texas? Watch this video to learn.
A DWI court is a court program that uses known, successful alcohol interventions and other forms of treatment to work with defendants who have been convicted on multiple occasions of drunk driving.
The first DWI court (sometimes called DUI court) came into existence about 15 years ago – most likely because it became apparent that sentencing convicted drunk drivers to fines, jail time and community service was not an answer to the underlying problem – most repeat drunk drivers are actually alcoholics. In addition, the majority of drunk driving accidents are caused by repeat offenders.
Today there are over 500 DWI courts (substance abuse/hybrid) across the country and by all accounts they are having more success with lowering the incidences of drunk driving that all the laws on the books. One study in Georgia showed that those individuals who 'graduate' from DWI court have only a 9% recidivism rate compared to 24% of persons who went through the regular court system. Another study in Michigan found offered similar findings – graduates of DWI court were nearly 20 times LESS likely to be rearrested for drunk driving. Finally, a third study in California showed recidivism dropped from 45% to approximately 13%. These impressive statistics support the premise that punitive measures for drunk driving are ineffective.
Those who agree to enter DWI court must first agree to abstain totally from alcohol. They must also understand that they will have their blood alcohol content level measured daily and can expect unannounced visits from police that could occur even more than once a day.
The program is usually set up in phases. During the first phase the convicted individual must attend multiple AA meetings as well as attend sessions with someone at the courthouse itself. They may be assigned to meet with a social service worker or psychologist. Finally, they must also meet with a parole officer once every 7 days. This means that the defendant has access to multiple support systems that work in tandem to create a safety net while supervising the recovering alcoholic.
Over time the support systems are withdrawn slowly and the defendant's ability to maintain an alcohol-free lifestyle is assessed – the person graduates. But now the alcoholic has begun down the road to recovery – and realizes the inherent dangers of drinking and driving.
Even though DWI courts are getting increased support from a variety of organizations – such as the International Institute for Alcohol Awareness and the National Highway Traffic Safety Administration – policy makers in general are slow to support this innovative approach to decreasing the incidence of drunk driving. This is likely due to the fact that the judicial system is historically known for punishing not treating.
DWI court is not an automatic choice for defendants. They will not take minors or people with a history of mental or emotional problems. Too, if the drunk driver caused an injury or fatality accident they will not be permitted to enter the program.
If you are charged with drinking and driving it is your right to opt for a jury trial in the case (at least in those states that have not banned it). If this is your choice – the following information should be considered before a final decision is made.
*First of all – just as it is your right to defend yourself on the stand – it is equally your right (in most cases) to remain silent as well – and allow your attorney to create the defense for you. Finally, there is psychology in a trial that finds it is difficult for a jury to disregard the fact that the defendant will not speak on his or her own behalf (that is a fact that cannot be overlooked).
*Even though it is the decision of the defendant whether or not to testify – most defendants look to their attorneys for professional advice. The bottom line is if the testimony will further damage a case it is not likely that the lawyer will advise his or her client to speak out. If, instead, the sworn statement is of no import to the outcome – then the attorney may decide to have the client take the stand.
*The defendant's attorney must be able to predict to some extent what the possibility could be that damaging information may be revealed upon cross-examination by the prosecutor. This requires the defendant to be completely forthcoming with the defense attorney as to prior arrests and convictions – no matter how minimal or inconsequential they may seem to the client. It is better that this information be revealed in advance to ensure that the defense attorney has a full understanding of the scope of the case – than to have the information come out in cross-examination.
*Prior drinking and driving convictions make a DUI case more difficult for the defendant and lawyer. If that information is permitted to be shared with a jury – it is hard to explain away. However, there are no conditions under which an attorney would recommend that the client lie under oath or support it. This relates back to the previous advice – in which you are forthcoming with your attorney. Remember, they are bound by the attorney-client privilege and they have sworn an oath to provide the best defense possible. It would not be to your advantage to work at cross-purposes by hiding the truth.
*Part of preparing for a case in which the defendant will be testifying on his or her own behalf – is actually 'prepping' the witness. This will require an initial assessment of what a potential jury may consider to be a defendant's strengths and weaknesses. Are they believable? Are they insolent? Even such seemingly unrelated things as a person's manner of dress and language must be taken under advisement. Defense attorneys will take some time to offer practice question and answer sessions with the defendant. Although it may not seem fair to be judged by your look and dress – it is a sad, subliminal fact that in this media-driven world these superficial concerns matter.
A prosecutor represents the government when criminal charges are filed against an individual. He or she develops and then presents the case on behalf of the local, state or federal entity. The terms 'district attorney' or 'assistant district attorney', 'city attorney' or 'state attorney' may all be used to refer to the prosecutor. In a court case, the prosecutor is an adversary to the defendant. It is his or her job to find the defendant guilty of intoxicated or impaired driving charges and then ensure that the convicted defendant receives a harsh punishment for the transgression.
The usual progression of a drunk-driving case begins with the police presenting a prosecutor with evidence of an intoxicated driving incident. This is often in the form of the investigation and arrest forms (videos and other evidentiary material including items uncovered during a search of the vehicle or person) and the processing files that resulted in the person being incarcerated for suspected drunk-driving. It would also include any information related to the blood alcohol content level of the defendant that was obtained through a sobriety test, breathalyzer, blood or urine test.
Not every alleged drunk driving case is prosecuted. The prosecutor must examine the evidence and decide whether or not enough reliable and valid proof exists to move forward. He or she will consider such things as whether or not the case is 'legally sound' and can be proved. Sometimes prosecutors decide not to pursue a case – and under these circumstances the case is usually over.
What types of evidence might be questioned by the prosecutor and cause them to refuse to pursue charges? One thing may be that some evidence was lost, mishandled or otherwise faulty. Breathalyzer results are one notorious example of this. More and more research is confirming that there are problems with breathalyzer machines in general and the results are easily and often successfully contested in courtrooms across the country (including Texas).
At the end of the day the prosecutor represents the best interest of the public at large and their decisions center on this knowledge. While they are not inclined to dismiss a drunk-driving case out-of-hand, they are also not likely to waste tax payer dollars in the pursuit of a case that they are not likely to win – and winning is important to a prosecutor. The success of their career is often based on the number of cases they prosecute and 'win'.
Armed with this knowledge, those who are charged with a DUI or DWI should understand that the prosecutor is probably experienced and – after assessing the available evidence – believes he or she will be able to get a conviction in your case.
However, defendants should also realize that most drunk-driving cases never make it to the courtroom. Instead, a prosecutor may 'cut a deal' that will result in little or no jail time, fines and other punitive measures. This may be what is in the best interest of the 'people' when it comes to YOUR case.
As often as possible we like to take DWI and DUI cases to trial – and not plead them out. Why? Because it is the right of every American to be judged by a jury of their peers – and for you to present a defense to the crime for which you stand accused. However, just as important is the fact that it offers the defense attorney the opportunity to create 'reasonable doubt' in the minds of a jury which is how many DUI cases are won. Those who take a plea or otherwise admit their guilt or culpability do not have this golden second chance.
Legally, it is on prosecutor's responsibility to prove beyond 'reasonable doubt' that a crime was committed by the person who is standing before and accused by the court. As well, it requires the jury to determine with conviction that the allegations are true in their entirety and that the evidence presented by the prosecution leaves no room for doubt that the accused person is the guilty of the crime.
What is 'reasonable doubt'? A legal definition for it is – upon consideration of all evidence presented and after due deliberation and consideration of said evidence – the jurors are left with the 'condition' in which they do not support the belief that there is an undeniable or unwavering conviction on their part of the truth of these charges.
Readers should remember that the defendant has the psychological advantage of 'being considered innocent until proven guilty'. That is a powerful premise from which to proceed in a criminal case. Requiring that the prosecution prove their accusations beyond a reasonable doubt is an additional position of favor for the defendant because if there is any doubt in the mind of even a single juror as to the veracity of the evidence then it is not possible to return a guilty verdict.
In DUI cases there are multiple occasions to create reasonable doubt in the mind of the jurors. For instance, was the police officer justified in stopping the driver? What was his stated purpose for pulling the driver over? Did he or she witness first-hand a traffic violation or did the officer rely on the word of another driver on the road.
And what observations did the officer make that led him or her to further pursue a DUI examination that might have resulted in the driver being asked to take a sobriety or breathalyzer test? There are many other actions on the part of the police officer and other components of the traffic stop that can be called into question during a trial as well. The technology used to gauge an individual's blood alcohol content could very likely be faulty. The officer may have stepped over the line in the reason for the stop and/or his initial assessment of a driver's intoxication.
Indeed, readers, there are many opportunities to create 'reasonable doubt' in the minds of the jurors – which is beneficial to the defendant. Seek qualified, experienced legal defense.
"David pushed the case and on the day of trial the prosecutor dismissed the case, and I did not loose my DL!"