Austin DWI arrest

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DWI arrests Austin Texas

Friday, October 21st, 2011

Generally, a police officer first initiates contact with a person due to a traffic violation, or to investigate some other violation of the law. During the investigation or detention begins an investigation of Driving While Intoxicated (DWI). There are certain situations where an officer may stop and assist a person whom a reasonable person, given the totality of the circumstances, would believe is in need of help. There are situations in Austin, Texas, where the Austin Police Officer’s initial encounter with a person later arrested for Driving While Intoxicated originated under the officer’s community caretaking function. The police officer’s community caretaking function is an issue that the Texas Courts have addressed on numerous occasions. I must stress that the community caretaking function of an officer is a highly fact based issue, and one that is flux. Meaning that the smallest detail can play a role in whether the officer’s stop was reasonable. The following is the case law associated with the officer’s community care taking function summarized above.

A police officer may seize an individual through the exercise of his community caretaking function. Corbin v. State, 85S.W.3d 272, 276 (Tex. Crim. App. 2002); Wright v. State, 7 S.W.3d 148,151-52 (Tex. Crim. App. 1999).

“As part of an officers’ duty to ‘serve and protect,’ an officer ‘may stop and assist an individual whom a reasonable person given the totality of circumstances, would believe is in need of help.’” Corbin, 85 S.W.3d at 276 (quoting Wright, 7 S.W.3d at 151).

“Once it is determined that an officer is primarily motivated by his community caretaking function, it must then be determined whether the officer’s believe that the defendant needs help is reasonable. Corbin, 85 S.W.3d at 277 (citing Wright, 7.S.W.3d at 151-52).

In evaluating whether an officer reasonably believes that a person needs help, courts may look to a list of four non-exclusive factors:
(1) the nature and level of the distress exhibited by the individual;
(2) the location of the individual;
(3) whether or not the individual was alone and/or had access to assistance other than that offered by the officer; and
(4) to what extent the individual, if not assisted, presented a danger to himself or others.
The first factor is entitled to the greatest weight. Corbin, 85 S.W.3d at 277.

Where the evidence establishes that an officer’s belief that an individual was in need of assistance was not objectively reasonable, a “community caretaking” seizure is not authorized and violates the Fourth Amendment and any evidence obtained as a result of such seizure must be suppressed. Corbin, 85 S.W.3d at 277-78; Wright 7.S.W.3d at 151-52.

Where an officer is not acting on a reliable tip about a suspicious person and the area where the individual was seized was not a “high crime” area, an individual’s nervousness and crying do not rise to the level of anxiety necessary to support a seizure pursuant to the “community caretaking” function. Franks v. State, 241 S.W.3d 135, 143 (Tex. App. – Austin 2008, pet. ref’d.).

My friend Steve Graham’s blog post on DUI’s Under.08 discusses legal issues in Washington State concerning the subjective nature of DWI arrests. Through my discussions with Steve, I have learned that Washington State has a two prong DWI/DUI statute similar to Texas in that the statutes are both objective and subjective in relation to intoxication. In his blog post, he discusses an officer’s reluctance to send a person back on the road if they are at all “questionable.” I think his discussion of legal issues in Washington State is relevant to my discussion of the community caretaking function of Austin Texas police officers only as to the highly fact-specific and subjective nature of both types of issues.

The above discussion relating to an officer’s community caretaking function (sometimes used as the reasoning for an initial encounter with a future DWI defendant) is brief and highly fact specific. Due to the rapidly changing nature of the law on this issue, one should not rely in any way on the accuracy of the information. If you have any questions relating to the community care taking function of a police officer or have been arrested for DWI, please schedule a consultation.

Austin DWI Lawyer
Clifford Swayze
Attorney At Law
512 E. 11th Street, Ste. 202
Austin, Texas 78701
Phone: (512) 335-5245

Austin Texas DWI Laws

Tuesday, October 18th, 2011

Generally, a first offense Driving While Intoxicated (DWI) charge with a breath and/or blood alcohol concentration of under a .15 is a class B misdemeanor punishable by a minimum of 72 hours in jail, with a maximum of up to 180 days in jail and up to a $2000 dollar fine. However, there are situations where a first offense Driving While Intoxicated (DWI) arrest can lead to higher level charges and punishment ranges. As I have stated in previous blog posts, a first offense Driving While Intoxicated (DWI) charge in Austin, Texas, where the defendant provides a breath and/or blood sample at .15 or higher is a Class A misdemeanor.

The purpose of this blog post is to discuss Driving While Intoxicated (DWI) with a child passenger. A person commits this offense if they are intoxicated, while operating a motor vehicle in a public place and the vehicle being operated (by the person) has an occupant who is younger than 15 years old. An arrest for Driving While Intoxicated (DWI) with a child passenger is a state jail felony in Texas. This means that if convicted, the defendant faces a minimum of 180 days in jail and up to 2 years in jail and up to a $10,000 dollar fine. The one major difference between state jail felony Driving While Intoxicated (DWI) convictions is that a state jail felony conviction requires the defendant to serve day for day in jail. This means that if the defendant is required to go to jail, he or she will be forced to serve out the sentence day for day rather than 2 for 1, or 3 for 1 that a person may be eligible for if convicted of a Class B misdemeanor Driving While Intoxicated (DWI) charge.

I am not saying that a person convicted for Driving While Intoxicated (DWI) with a child passenger will have to go to jail, in Travis County (Austin) the person, depending on the circumstances may be eligible for probation.

Austin DWI Lawyer
Clifford Swayze
Attorney at Law
512 E. 11th Street, Ste. 202
Austin, Texas 78701
Phone: 512-335-5245

DWI Voluntary? Austin, Texas

Wednesday, September 21st, 2011

Occasionally, a Driving While Intoxicated (DWI) involves a situation in which the person did not intend to drive intoxicated. Prosecutions for Driving While Intoxicated (DWI) in Texas do not require that the State prove a culpable mental state. For instance, the Travis County Attorney’s Office is not required to plead that the defendant operated a motor vehicle in a public place intentionally, knowingly, recklessly, or with criminal negligence. A person may still be convicted of Driving While Intoxicated (DWI) even though he or she was involuntarily intoxicated, or where the person did not know he or she was intoxicated.

The issue of whether a person knew they were intoxicated as defined by the Texas Penal Code arises in the following situation. First, the objective portion of the Driving While Intoxicated statute in Texas defines Intoxication as having a blood alcohol concentration over a .08 reading. A woman and a man who weigh exactly the same, consume the same amount of alcohol under the same circumstances will have different blood alcohol levels. In this situation, the woman’s blood alcohol will climb higher than a male’s. The reason for this is that the female body typically has a lower percentage of water than that of a man, meaning that women have less space to distribute the alcohol. When you add to the equation that the average woman is smaller than the average man, it is no surprise that a specific amount of alcohol will generally cause a woman to have a higher blood alcohol concentration than a man.

The average 180 lb male is going to reach the objective legal alcohol limit at 4 or fewer drinks. There are a lot of factors that could change this average, so you should in no way use this as a barometer for how much alcohol you can consumer before you drive. The best option is to never have a drink and operate a motor vehicle. If the average 180 lb male reaches the legal limit at 4 or fewer drinks, how many drinks do you think it is going to take for a 100 lb 21 year old female going to downtown Austin for the evening? The answer, not much. I am not saying the female will feel intoxicated, or that she has lost the normal use of her mental or physical faculties, but her blood alcohol concentration will be higher!

Austin DWI Lawyer
Clifford Swayze
Attorney at Law
512 E. 11th St. Ste. 202
Austin, Texas 78701
Phone: 512-335-5245

DWI arrest Confession? Austin, Texas

Tuesday, September 20th, 2011

Practicing criminal law in Travis County (Austin), Texas, one of the first things defendants tell me is that the officer did not read them their rights.
To invoke the 5th Amendment privilege against self-incrimination, a suspect has the right to consult with an attorney, and have counsel present during a custodial interrogation. The police officer must explain this right to the suspect before questioning commences. The warnings and rights are codified in the Texas Code of Criminal Procedure.

The warnings or rights do not have to be read to the suspect until the person has been placed into custody. A traffic stop, as I have described in earlier posts, is an investigative detention and the suspect has not been placed into custody. This means that the police officer may have found reasonable suspicion to stop the person, such as speeding, no headlights, or going the wrong way on a one way street to name a few. At this point in the officer’s investigation he has not obtained probable cause to arrest the suspect for Driving While Intoxicated (DWI). As I have described in earlier posts, a traffic stop is an investigative detention when a police officer detains a person reasonably suspected of criminal activity. The point of the stop is to determine the suspect’s identity or at least to momentarily maintain the status quo to gather information. The Austin Police officer’s investigative detention must last no longer than necessary to accomplish the purpose of the stop. The police officer must actually be investigating, and the police officer has to use the least intrusive means to dispel the police officer’s suspicions.

The determination of whether a person has already been placed into custody for Driving While Intoxicated (DWI) has to be evaluated on a case by case basis by taking into account all the objective circumstances. There are four factors that are relevant in determining if a person has been placed into custody. They are as follows:
1. Whether the police officer has probable cause to arrest the person for Driving While Intoxicated (DWI).
2. The subjective intent of the police officer.
3. The focus of the investigation.
4. The subjective belief of the suspect

There are also 4 situations to think about when figuring out if a non-custodial encounter has become a custodial interrogation. The first situation occurs when the defendant has been physically deprived of freedom of action in any significant way. The second situation occurs when a police officer tells a person that they are not free to leave. The third situation arises when the police officer has probable cause to arrest the person, but the law enforcement officers have not told the person that he or she is free to leave. The fourth situation occurs when the police officers have created a situation in which a reasonable person believes their freedom of movement has been significantly restricted.
The gist of this is that generally a person does not need to be read his or her rights when they have been pulled over for a traffic violation. For instance, if a person gets pulled over for speeding, the officer approaches the vehicle, and detects the odor of alcohol on the driver’s breath. The officer is not required to read the person his rights prior to asking him if he has had any alcohol to drink, or asking him to submit to the standardized field sobriety tests. Generally, the above actions do not rise to the level of an arrest. The officer is engaged in what is referred to as an investigative detention.

Furthermore, if a suspect for a Driving While Intoxicated offense is sitting in the back seat of the police car and blurts out “God, I have had way too much to drink,” then the officer need not have read him his rights in order for the state to use this statement against the defendant. The reason for this is that the police officer was not interrogating the defendant. The defendant must be subject to an interrogation, and if the defendant voluntarily makes a statement while he is in custody, then it can still be used against him! This is a very general look into this subject, and I will have future posts that go into more detail. This area of the law is extremely complicated. If you have any questions about this subject you should consult a lawyer. Furthermore, due to the rapidly shifting nature of the law, I make no warranty or guarantee concerning the accuracy or reliability of this content.

Austin DWI Lawyer
Clifford Swayze
Attorney at Law
512 E. 11th St. Ste. 202
Austin, Texas 78701
Phone: 512-335-5245

Austin Texas DWI Arrest?

Monday, September 19th, 2011

Travis County Texas overview of the new DWI laws that went into effect on September 1, 2011

In many instances, a Driving While Intoxicated (DWI) arrest is a misdemeanor in Texas. If a person has no prior DWI convictions, no one was injured or killed, and if there is no child passenger in the vehicle, then the offense will be a misdemeanor. What does a misdemeanor mean to someone arrested for Driving While Intoxicated (DWI)? The classification of an arrest for Driving While Intoxicated (DWI) as a misdemeanor rather than a felony is important because the penalties for a felony conviction are far worse than a misdemeanor conviction.

The previous classification for a Driving While Intoxicated first offense conviction in Austin, Texas, was a Class B misdemeanor regardless of a person’s blood alcohol concentration. Effective September 1, 2011 an arrest for Driving While Intoxicated first offense is enhanced from a class B misdemeanor if the person has a blood alcohol concentration of a .15 or higher. If the person’s blood alcohol concentration is above a .15 then the arrest for DWI is now charged a class A misdemeanor. The State of Texas enhanced a first offense DWI arrest when a person has a blood alcohol concentration of over a .15. The enhanced punishment for a first offense Driving While Intoxicated arrest from a class B to class A misdemeanor when a person has a blood alcohol concentration of over a .15 clearly increases the potential penalty for the offense. In essence, the State of Texas is saying that if you refuse to provide a breath sample then you will get a class B misdemeanor, but if you choose to provide a sample of your breath and/or blood or are forced to submit to a forced blood withdrawal, and the results come back at .15 blood alcohol concentration or higher, then you will face the increased penalties. A class B misdemeanor Driving While Intoxicated (DWI) conviction range of punishment is from 72 hours to 180 days in jail and/or up to a $2000 fine. The enhanced class A misdemeanor Driving While Intoxicated (DWI) conviction involves a minimum of 5 days to 365 days in jail and/or a $4000 fine. Furthermore, the defendant that is convicted for the new enhanced Driving While Intoxicated (DWI) first offense with a blood alcohol concentration of a .15 or higher is required to install an ignition interlock device in their vehicle. A second offense conviction for Driving While Intoxicated (DWI) is still a class A misdemeanor regardless of the blood alcohol concentration of the defendant and will be required to install an ignition interlock device in their vehicle.

A third or more Driving While Intoxicated (DWI) Conviction will be a 3rd degree felony regardless of the defendant’s blood alcohol concentration. A third or more Driving While Intoxicated Conviction will subject the defendant a punishment range from 2 years to 10 years in prison and/or a fine of up to $10,000 dollars! There are other enhancements and situations that increase punishment for the various Driving While Intoxicated (DWI) related offenses in Austin, Texas. My discussion of penalties and punishment ranges are not all inclusive and there are other issues and variables that can weigh in on a particular defendant’s case. If you have been arrested for Driving While Intoxicated, then you should speak to a lawyer regarding the specific facts of your case.

Austin DWI Lawyer
Clifford Swayze
Attorney at Law
512 E. 11th St. Ste. 202
Austin, Texas 78701
Phone: 512-335-5245

Austin Texas DWI Charge

Sunday, September 18th, 2011

Administrative License Revocation Hearing (A.L.R.)

For many, the most difficult aspect of a Driving While Intoxicated (DWI) arrest or conviction is the suspension of their driver’s license. A person arrested for Driving While Intoxicated (DWI) is subject to an administrative license suspension. If a person is arrested for Driving While Intoxicated, then he/she has 15 days after the date of arrest to request the driver’s license hearing. If the person fails to request the hearing, their driver’s license will be suspended on the 40th day after arrest for Driving While Intoxicated (DWI).

The elements that must be established in a failure case are codified in Sec. 524.035 and of the Texas Transportation code. The issues that must be proved at a hearing by a preponderance of the evidence are: whether: the person had an alcohol concentration of a level specified by Section 49.01(2)(B), Penal Code, while operating a motor vehicle in a public place; or (B) the person is a minor and had any detectable amount of alcohol in the minor’s system while operating a motor vehicle in a public place; and(2) whether reasonable suspicion to stop or probable cause to arrest the person existed. If the administrative law judge finds in the affirmative on each issue in Subsection (a), the suspension is sustained. If the administrative law judge does not find in the affirmative on each issue in Subsection (a), the department shall: (1) return the person’s driver’s license to the person, if the license was taken by a peace officer under Section 524.011(b); (2) reinstate the person’s driver’s license; and (3) rescind an order prohibiting the issuance of a driver’s license to the person. An administrative law judge may not find in the affirmative on the issue in Subsection (a)(1) if: (1) the person is an adult and the analysis of the person’s breath or blood determined that the person had an alcohol concentration of a level below that specified by Section 49.01, Penal Code, at the time the specimen was taken; or (2) the person is a minor and the administrative law judge does not find that the minor had any detectable amount of alcohol in the minor’s system when the minor was arrested. (e) The decision of the administrative law judge is final when issued and signed.

The elements that must be established in a refusal case are codified in Sec. 724.042 of the Texas Transportation code. The issues at a hearing when someone refuses the breath and/or blood test subsequent to a Driving While Intoxicated (DWI) arrest are:  (1)  reasonable suspicion or probable cause existed to stop or arrest the person; (2)  probable cause existed to believe that the person was: (A)  operating a motor vehicle in a public place while intoxicated;  or (B)  operating a watercraft powered with an engine having a manufacturer’s rating of 50 horsepower or above while intoxicated; (3)  the person was placed under arrest by the officer and was requested to submit to the taking of a specimen;  and (4)  the person refused to submit to the taking of a specimen on request of the officer.

 

The stop

A large percentage of Driving While Intoxicated (DWI) arrests are the result of a traffic stop such as speeding, wrong way down a one way street, or failing to signal intent to change lanes. These are situations where the police officer has observed specific driving behavior that the police officer believes justifies the stop.

Probable Cause for DWI arrest

The second issue when dealing with a Driving While Intoxicated (DWI) arrest relating to the Administrative license revocation hearing (ALR) is whether the police officer had probable cause to arrest the defendant for Driving While Intoxicated (DWI). This is where the officer gives the specific observations that he used to determine that the defendant was intoxicated. A few observations that an officer may note on his probable cause affidavit are blood shot, glassy eyes, swaying, staggering, or the odor of alcohol on the defendant’s breath.

Evidence of Refusal (refused to provide a breath and/or blood sample)

Generally, the DIC-24 Statutory Warnings discussed in a previous post is used to prove a person refused to provide a breath and/or blood test after being arrested for Driving While Intoxicated.

 

Failure Case (breath and/or blood sample of over a .08)

When a person is arrested for Driving While Intoxicated (DWI) and they submit to a breath and/or blood test and the specimen provided is over a .08 blood alcohol concentration a person may still have issues with the validity of the test. A few issues that may come up in a failure case are: Was consent voluntary, or whether the breath test operator is required to be present and observe the defendant for 15 minutes prior to administering the breath test.

 

Administrative License Suspensions

If, after a hearing, the Administrative law judge allows the Texas Department of Public Safety to suspend the defendant’s driver’s license and the person has not had his driver’s license suspended within the previous 5 years for a drugs or alcohol, then the person will be able to petition the court for an occupational driver’s license. If the person has had a previous drug or alcohol related suspension in the previous 5 years then there will be a waiting period before the person is eligible for an occupational driver’s license.

 

Austin DWI Lawyer

Clifford Swayze

512 E. 11th St. Ste. 202

Austin, Texas 78701

Phone: 512-335-5245

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