DRIVING WHILE INTOXICATED
BOARD CERTIFIED IN CRIMINAL LAW
Former felony chief DWI prosecutor
DWI is one of the most commonly prosecuted offenses in the State of Texas. According to recent statistics more than 150,000 people are hurt in DWI related crashes in Texas each year and Harris County leads the State in alcohol related cases. As a result, local law enforcement is under tremendous pressure to crack down on people charged with DWI and send a severe message. If you find yourself charged with DWI in the Houston area then you are in need of an aggressive attorney with an extensive DWI background and the skill to defeat the government’s evidence.
Wes Rucker has a proven track record in the DWI field. He has taught prosecutors and other defense attorneys how to effectively try DWI cases and knows what it takes to overcome a DWI charge. He has handled DWI cases in the Houston area for over 13 years and even trained police officers on the correct methods to take while conducting a DWI arrest.
What constitutes DWI?
In Texas a person commits the offense of DWI when they operate a motor vehicle in a public place while intoxicated. Typically, the State can prove intoxication by showing a person lost the normal use of their mental or physical faculties or by showing they had a blood/alcohol concentration of .08 or higher.
What is the Punishment for DWI?
A DWI related offense can range anywhere from simply paying a fine to serving life in prison. Whether you meant to hurt someone or not does not matter. Depending on the facts of your case the punishment could be devastating.
A first time DWI arrest with a score under a .15 is a Class B misdemeanor and carries a punishment range of 72 hours in jail up to 180 days. You could also receive up to a $2,000.00 fine. In addition, there are potential court costs, license suspensions and surcharge fees that are associated with a conviction. If your blood alcohol concentration is above a .15 then your punishment range can be enhanced to a Class A misdemeanor which carries a sentence of up to 1 year in jail and a $4,000.00 fine.
A first time DWI with an open container of alcohol creates a minimum sentence of six days in jail.
A second time DWI offense is a Class A misdemeanor and carries a mandatory minimum jail sentence of 30 days. If you are placed on probation there is still a mandatory jail condition of 3-5 days depending on the age of your first DWI conviction.
Driving while intoxicated with a person under 15 years old in your car is a felony offense. You could potentially go to the State Jail Facility for 6 months or up to two years.
A DWI where an accident occurs and someone suffers serious bodily injury could result in a third degree felony charge. This means you could go to prison for minimum of two years and a maximum of 10 years. A person placed on probation for an intoxication assault charge must serve 30 days confinement in the county jail as a condition of that probation. If you accidentally injure a police officer or some other emergency worker you could go to prison for two years and up to twenty years.
If you cause the death of another person while you are DWI you can be charged with a second degree felony. That punishment ranges from 2-20 years in prison and possibly up to life in prison if you accidentally kill a police officer or some other emergency personnel worker.
If you are arrested for DWI in Texas your license can be suspended for two reasons. The first is if you refuse or fail a breath/blood test and the second is if you are convicted of DWI in court.
Once you are arrested for DWI you will have 15 days to save your license. You are entitled to an Administrative License Revocation Hearing (ALR) where you may challenge the circumstances of your detention, arrest and the officer's request for a breath or blood test. The ALR can be one of the most power tools used by your attorney in crafting your defense.
Your license could also be suspended if you are convicted of DWI.
Call Wes Rucker Law immediately if you have recently been arrested for DWI and let them fight on your behalf to keep your license.
For a free check on the status of your license go to https://txapps.texas.gov/txapp/txdps/dleligibility/login.do
WHAT ARE THE LICENSE SUSPENSION PERIODS?
A DWI conviction can lead to some very serious license consequences. Your license will be suspended for 30 days if you are convicted of DUI minor. A first time DWI conviction carries a potential license suspension for a period of 90 days or up to 1 year. The same suspension period also applies for a DWI with a Child Passenger conviction and an Intoxication Assault conviction. A second conviction for DWI as well as a conviction for intoxication manslaughter will trigger a license suspension period of 180 days to two years. If the second DWI occurs within 5 years of the previous DWI then the suspension period increases from 1 year to 2 years. Sound confusing?
If you fail a voluntary breath/blood test your license could be suspended for 90 days. If you refuse to submit to a breath or blood test your license could be suspended for 180 days or two years if you have a previous alcohol related contact within 10 years (such as a DWI ).
If you or someone you care about is facing a license suspension or has already received one, do not delay in calling the Wes Rucker Law firm. There are ways to get you legally back on the roadway so you can continue with the necessary driving activities that life throws at you.
What is DUI? IS DUI THE SAME AS DWI?
In Texas the difference between DWI and DUI comes down to the age of the defendant. Driving Under the Influence of Alcohol (DUI) refers to a minor. If you are under the age of 21 and suspected of driving with any detectable amount of alcohol in your system you could be charged with DUI. You do not have to be intoxicated to be charged with DUI minor. The State only need show a person under the age of 21 has a detectable amount of alcohol in their system.
However, if you are a minor and intoxicated the State can and will still charge you with DWI.
DUI minor is governed by the Alcoholic Beverage Code instead of the Texas Penal Code like DWI. A conviction for DUI minor is punishable by a fine only (no jail time) and a license suspension. Unlike a conviction for DWI you can can get the case expunged if you can reach the age of 21 without any more convictions under the Alcoholic Beverage Code.
DO I HAVE TO TAKE A BREATH TEST?
No! You have the right to refuse a breath test and cannot be compelled to take one. While this refusal is not without consequences, you are free to politely tell the police you will not blow into their machine. If you exercise your rights and refuse the breath test the police may apply for a search warrant to take your blood. Once a search warrant is obtained the police may forcibly take a blood specimen from you. The State of Texas may try to suspend your license for refusing to take a breath test and attempt to use your refusal as evidence of guilt in court.
I FAILED A BREATH TEST. AM I AUTOMATICALLY GUILTY?
No. Clients often ask if they should just plead guilty because they failed the breath test. The answer is, "of course not". When the machine spits out a number it does not mean the score scientifically reliable. The breath test evidence used in Texas can be faulty or misleading. The police have a mandatory protocol that they must follow to ensure the breath test is voluntary, untainted and error free. Many officers makes mistakes or cut corners during this portion the investigation. This alone can render your test inadmissible in a court of law if you have an attorney that is skilled in DWI defense and can recognize these problems.
The police breath machine must also be properly maintained. Testing records will show whether the machine you were tested on was having error readings or malfunctioning around the time of your test. The government will not simply hand over that information. Your attorney must track it down and analyze it.
There are many other ways which a breath test result can be flat out wrong. If you took a breath test and are concerned about the result contact Wes Rucker Law for a free consultation and a better understanding of breath test evidence.
CAN THE POLICE TAKE MY BLOOD WITHOUT MY CONSENT?
Yes. If the government obtains a valid search warrant they may take a sample of your blood against your will. However, there are circumstances where the blood evidence gathered against you was done in a way that violated your rights. An illegal taking of your blood can result in its exclusion from evidence.
I FAILED a BLOOD TEST. AM I AUTOMATICALLY GUILTY?
No. Forensic blood tests can be wrong. Normally, alcohol is tested in the blood using a process called gas chromatography. The government must follow dozens of crucial steps in order to demonstrate a valid and reliable test. Error in testing can come from the human or the machine. To understand how this could possibly happen it is important to know how a blood sample is taken, stored and tested.
Problems with a blood test score can occur during the pre-analysis phase or when the blood is collected and stored. A nurse or phlebotomist will collect your blood specimen and they must follow basic protocol. This is important not only for the safety of the suspect but also to ensure the blood draw does not become tainted. A tainted blood sample can result in alcohol gain and an unreliable result. Yes, the alcohol in a blood tube can INCREASE once it is collected.
After the blood is collected is must be stored correctly. Laboratory protocol demands that certain storage conditions be followed. If your blood sample is not stored in the right location or that information is not accurately documented then it could affect the blood alcohol score.
Once your blood sample is ready to be tested the lab has to document every significant procedure so that the results can be verified. This includes the temperature of the machine, how much air pressure is going through a column, the length of the column. Some lab analysts will fail to document their work. Others may not accurately document their work. These problems can cause a blood score to become unreliable. Finally, only the air above the blood is tested for alcohol. One can see how problems with a blood test can easily occur.
If you would like to more know more of how a blood test works or to see if the police correctly tested your blood, call the Wes Rucker Law Firm for a free consultation.
WHAT ARE STANDARDIZED FIELD SOBRIETY TESTS (SFST)?
Standardized field sobriety tests (SFSTs) are the roadside exercises used by the police when they suspect a person is DWI. SFSTs consist of the Horizontal Gaze Nystagmus (HGN) exam, the Walk and Turn, and the One Leg Stand. They are to be administered in accordance with the instructions given by the National Highway and Traffic Administration (NHTSA).
The HGN exam looks for an involuntary jerking in the eyes and is often called the pen test. The Walk and Turn and One Leg Stand are geared towards testing one's attention, balance, and coordination. The Walk and Turn requires a person to take 9 steps placing their heel to of one foot in front of the toe of the other. The test subject then turns around and repeats 9 more steps. The One Leg Stand demands that a person raise one foot 6 inches off the ground and hold that position for close to 30 seconds.
Outside of these three tests there are other tools the police may use to test a persons sobriety. Some officers will ask a subject to recite the alphabet, estimate 30 seconds in their head with their eyes closed or touch their fingers to their thumbs. However, these tests have not been validated and are not relied upon and used as often as the SFSTs.
ARE STANDARDIZED FIELD SOBRIETY TESTS ACCURATE?
No. Sober people can and will fail the field sobriety tests. When you are given these roadside exercises the police will make a decision to take away your liberty based only on 3 tests. Things like injuries, age, weight, weather conditions, and fatigue can cause someone that is not impaired to perform poorly on the field tests. There is a tremendous amount of stress knowing you will be arrested if you do not perform road exercises to perfection. Some people respond poorly under these stressful conditions. Some of the greatest athletes in the world can lose their coordination when pressure and stress become factors.
Even if you pass the coordination exercises the police will still arrest you. If the arresting officer believes you have failed the HGN (see above) exam you will most likely still be arrested for DWI no matter how coordinated you appear.
Wes Rucker knows that innocent people are arrested for failing the field sobriety tests. He also knows how to pick apart the police investigation and demonstrate to a jury how someone can be wrongly arrested.
What should i look for in A DWI/DUI ATTORNEY?
There are some great DWI/DUI attorneys in Houston. But even some of the best criminal lawyers are not equipped to handle the complexities of a DWI case. To find the right lawyer for your DWI case there are a few things you might look for.
1.) Does your DWI attorney understand the science behind blood or breath testing? If you are facing a drunk driving allegation you need an attorney who knows the science behind the government's test. You also need a DWI lawyer who knows how to beat the chemical tests in your case. Wes Rucker spent years as a felony chief prosecutor and founded the intoxication crimes team in Harris County. As a defense attorney he has trained other lawyers on DWI cases and has spent weeks in the class room and laboratory understanding the science behind DWI tests.
2.) Will my defense lawyer also handle the license hearing? Many lawyers are not aware that a drunk driving charge involves two cases. One is your DWI case and the other is the ALR (license hearing). Others will choose to ignore the license hearing. This is not acceptable. If you find a DWI attorney make sure they understand the importance of a license hearing and how it can affect your drunk driving case. Wes Rucker will handle every aspect of your DWI case included the minor details. That means he will aggressively represent you at your DWI trial but also at your license hearing.
3.) Is your lawyer board certified in criminal law? Board certification is a mark the State Bar of Texas will place on lawyers that have proven their acumen and ability in a certain area of law. Wes Rucker is board certified in criminal law by the Texas Board of Legal Specialization. Only 7% of all lawyers in Texas have achieved this distinction.
4.) Does your Houston DWI lawyer know how to challenge the field sobriety tests? The field sobriety tests must be administered correctly. If not, your results may be compromised. The police will expect perfection from you. Wes Rucker knows when an officer makes a mistake that is detrimental to you. He also knows when when an officer is trying to skew the evidence.
5.) Have you been promised a dismissal just to get your business? The best DWI attorneys in Houston will not promise a result before looking at the government's evidence. They understand how each client deserves honest and no nonsense advice. If a lawyer promises you a dismissal on your DWI arrest before looking at the government's blood evidence, video or report then you are being told what you want to hear and not being treated honestly.
6.) Are you talking to an experienced DWI attorney? Experience matters. Your DWI lawyer must not only know the law and the science behind chemical testing but they must also know how to try a case. This only comes from experience. For more than 13 years Wes Rucker has been trying DWI cases from both sides of the courtroom. He knows what tactics the government will used in building their DWI arrest evidence. He also knows where the flaws can be find.