Galveston Driving While Intoxicated Attorney - DWI Charges in Galveston County, Texas

Galveston Driving While Intoxicated Attorney - DWI Charges in Galveston County, Texas

We're going to be going over all the different things that you may need to know about getting a DWI charge in Galveston in Texas. We call it DWI; it's driving while intoxicated. In some other states, they call it a DUI. We have something separate in Texas for DUI; that's if you're under 21 and you have any alcohol in your system. But what does intoxication mean? Let's look at the definition. The Texas Penal Code defines intoxication as having an alcohol concentration of 0.08 or more, typically in your breath or blood. That's how they're going to try to test for that. Or it could be, if they don't get a blood test (and that does happen sometimes), that you've lost the normal use of your mental faculties or you've lost the normal use of your physical faculties due to the introduction of alcohol into your body.

Now, when we talk about that, what we're talking about is sort of the eyeball test. Eventually, what happens is when somebody gets pulled over or there's a crash or something like that, the officer takes body camera footage from a camera on their lapel, kind of right here, kind of behind the microphone there, but somewhere right there. And then maybe on the dash cam of their police car. And that is normally the most important evidence in a DWI case. If you do not look intoxicated on that video, then even a high blood test kind of case can be beaten in some instances. If you look really bad on this video, sometimes even a result that's below 0.08 could result in a conviction. And that's because that 0.08 number only applies to alcohol; it could be some other substance. So if you have PCP or Methamphetamine or coding cough syrup, even a prescription drug, I've seen people who were prescribed Xanax get charged with DWI from a prosecutor at the state level.

Traffic stops in Galveston which lead to a DWI arrest, you know, a lot of these are going to happen right on the seawall. They may try to pull you over for speeding, which is one of the reasons they could pull you over; that's what's called Reasonable Suspicion for a traffic stop. If they catch you on radar or liar, they believe you're speeding. Another thing they will try to pull people over for is failure to maintain a single Lane in Galveston County. If you have a failure to maintain a single Lane reason for the traffic stop, that is probably the most likely way that we're going to get your case dismissed for a DWI. And that is because for a failure to maintain single Lane, you would have to show, as the officer, that not only did that person fail to maintain a single Lane, but they did it in an unsafe manner. So if you're in Galveston driving and you're on the seawall area and there's nobody else there, it is like 3 in the morning, not another car hardly on the road at all, then they're not going to have to just show you moved over into the other lane a little bit and then went back without using a signal. They're going to have to show that what happened there was dangerous, that you almost hit somebody, maybe it was a pedestrian coming back from the beach, maybe it was another car, but something to show that it was done in a dangerous way.

Then finally, if there was a crash, this is probably the most difficult type of case for us to get dismissed because of a traffic stop like the Reasonable Suspicion is kind of built in when there's a crash. Officers are going to typically have the ability to investigate some type of Road crash either for, you know, failure to control speed through a turn or just the fact that they have a community caretaking function when they see somebody in a situation where they may be hurt or need help.

So if somebody in Galveston County has pulled you over for DWI, they've got a traffic stop that's valid, something like that. The next thing we look at is the field sobriety tests. Did they administer these in an accurate way and a fair way so that you had a chance to show that you're not intoxicated? There are three standardized field sobriety tests that they typically administer, whether it's Galveston police or the Galveston County Sheriff's Office, whoever it is, they're going to be administering these three tests. The HGN, which is called the horizontal gaze nystagmus test, it's an eye test and it measures the involuntary jerking of the eyes. So if you've ever seen windshield wiper blades go over the windshield of a car where it's very dry, they kind of bounce and skip, and that's kind of what they're looking for in your eyes.

The walk and turn test is a nine-step walking a straight line test, and there are eight different clues on this test. They're looking for things like starting too soon, using your arms for balance, and they will say that you're using your arms for balance if you move them more than six inches away from your leg. So if you're doing one of these tests, you got to keep them all the way to the side of your legs, taking the wrong number of steps, then an improper turn. An improper turn is any turn where you don't leave your lead foot planted and then make a series of small choppy steps to turn around, pivoting only on that lead foot. It's a very strange way to do things; nobody walks like this, nobody's ready to do this kind of test. The point that the officers would say is that because you're not ready to do the test right away, you have to listen, comprehend, and that tests both your mental and your physical faculties. They call that a divided attention test. The last test that they normally do is called the one leg stand test. The one leg stand does just that; they ask you to pick one foot, lift it approximately 6 inches off the ground, point your toe, and then count. Typically, they'll say in a manner like 1,001, 1,002, 1,003, and do that until they tell you to stop. They're going to do it for about 30 seconds before they tell you to stop. And so if you put your foot down, if you sway while you're balancing, if you hop on that foot, or you use your arms for balance, they're going to cause that's going to cause them to give you what's called a clue. There's four total clues on that test. The worst one to show is probably hopping. In my experience, prosecutors don't like to dismiss a case where there's a hopping person, but that is also another one of these tests.

So what do we do to combat these things? Well, we look a little bit more into our clients' history. Do they have back problems? Do they have surgery on their ankle from like an old football injury or something like that? Are there reasons why they are not able to do this test when a person with normal physical capabilities would be able to do the test? Other things to look for is did the officer give them a fair chance to do the test by explaining it correctly and succinctly? I've seen officers have to re-explain these tests five and six

times, not necessarily because of anything the defendant or our client did, but because they're just confused or they get interrupted; another officer comes on scene and starts asking them questions while they're in the middle of the instructions. So we make sure that if they did field test on you, they did it in a fair way.

So if the officer believes you are intoxicated after the field sobriety tests, they have a couple of options. They could give you a breath test, a portable pre-breath test on the side of the road, but the number that comes out of that portable breath test is not admissible in court. So there's no requirement for an officer to do a portable breath test before he arrests you, and a lot of officers just don't do it. The next part would happen is they're going to read you a document called the DIC-24, and it explains to you that you're under arrest for DWI. They're going to ask you for a breath or a blood sample, and the breath sample in this case would be one done on an intoxilizer 9000, which is the certified breath testing instrument from the state. It's a very large machine; it's kept normally back at the jail, and it's not a portable, it's not a handheld device. And the number that comes out of that is admissible in court. So the officer reads you this form, he requests breath or blood, and then you can either refuse to give a sample, or you can give a sample. If you give a sample, obviously, they're probably going to ask for blood. A lot of times, if they're asking for breath, it's because they're trying to churn, we call it, like churn and burn people. It is something that officers use when there's like a no-refusal weekend on the fourth of July, on New Year's when they have a lot of DWI rest. They're trying to get back out on the street and get things done quickly. The blood sample takes a lot longer to do. So what they will do is get probable cause, you know, based on the description of what you did on the field sobriety test, and ask a judge for them to sign a blood warrant. If you do not submit to the chemical testing, if you don't agree to give a blood sample, they will try to force one out of you. And if you resist them doing that, they may charge you with an additional misdemeanor charge of resisting arrest or search; in this case, it would be a search of the search warrant trying to get your blood.

So how do we combat these things? Can you win a DWI if there's a blood test? Yes, you can. One of the things we look at is the blood testing that happens in a vacuum tube that has a gray top; we call that a forensic draw tube. And it has chemicals that are in the bottom of that tube that are supposed to be mixed to make sure there's no clotting or you know, a spoiling of the blood sample over time. But they don't always mix it properly, and there can be clotting when the vacuum tube gets to the Department of Public Safety. And they'll notate that in some of their records; we would get those records and try to find errors there. The way they test blood is they use what's called gas chromatography, and gas chromatography is a process where they put vials of your blood in with like 60 or 70 other people's blood, and they run it all through a machine, and they actually test the air above your blood as opposed to the blood itself. And so there's a lot of different things that can go wrong in this kind of testing. And if you've ever asked a DPS chemist if they've ever made a mistake and switched a vial, they'll tell you no, even though they've done hundreds and hundreds of thousands of these kinds of tests. And we all know just from our daily experience you can't do anything a 100 thousand times and never make a mistake.

So in any case, that's a look at blood warrants and blood testing; we will try to fight all those different things for all of our DWI clients. So a lot of what we talked about so far have been legal challenges, evidentiary challenges, and then if we look at a case and we look to decide that we don't think we're going to be winning a jury trial, right, we're ready to go to jury trial, we'll do it if we have to. But we don't think that that's a great option for our client. Is there another way out of this where we don't have to have a conviction? We will go to what's called negotiation and mitigation. Mitigation basically means that our client is deserving of a second chance, that they have things that are going on in their life that show that they're a good person, they're unlikely to reoffend, they're willing to do what it takes to get the case dismissed and off of their record. And so that's something we do in negotiation with the District Attorney's Office in Galveston. We can do deals where they either reduce the charge to something other than DWI that doesn't have license suspension, that doesn't have the enhancement issues that a DWI can.

Or maybe we get a deal in place where you do a class or do some community service, and we can get the case dismissed. Or something more formal like a pre-trial diversion that allows the case to fall off your record after a certain amount of time. If it's dismissed by pre-trial diversion, you may be eligible for an expunction which gets the case entirely removed from your criminal record even the what's called the TCIC records so that if the prosecutors or a police officer pulls you over in the future, they won't even know that the case happened. That's ultimately the best result that can happen in a case. And every case is different, but we can negotiate with the state, and we always want to try to do that. If you have to go to a trial, you have

to be ready as an attorney to try a case, but if there's another way to get your client a great result that you can have control of through a negotiation, you always want to try to do that. DWI charges in Galveston County, now we're going to be going over all the different things that you may need to know about getting a DWI charge in Galveston in Texas. We call it DWI; it's driving while intoxicated. In some other states, they call it a DUI. We have something separate in Texas for DUI; that's if you're under 21 and you have any alcohol in your system. But what does intoxication mean? Let's look at the definition. The Texas Penal Code defines intoxication as having an alcohol concentration of 0.08 or more. Typically, in your breath or blood is how they're going to try to test for that. Or it could be, if they don't get a blood test, and that does happen sometimes, that you've lost the normal use of your mental faculties or you lost the normal use of your physical faculties due to the introduction of alcohol into your body. Now when we talk about that, what we're talking about is sort of the eyeball test. Eventually, what happens is when somebody gets pulled over or there's a crash or something like that, the officer takes body camera footage from a camera on their lapel, kind of right here, kind of behind the microphone there, but somewhere right there, and then maybe on the dash cam of their police car. And that is normally the most important evidence in a DWI case. If you do not look intoxicated on that video, then even a high blood test kind of case can be beaten in some instances. If you look really bad on this video, sometimes even a result that's below 0.08 could result in a conviction. And that's because that 0.08 number only applies to alcohol; it could be some other substance. So if you have PCP or Methamphetamine or coding cough syrup, even a prescription drug. I've seen people who were prescribed Xanax get charged with DWI from a prosecutor at the state level.

Traffic stops in Galveston which lead to a DWI arrest, you know, a lot of these are going to happen right on the seawall. They may try to pull you over for speeding, which is one of the reasons they could pull you over; that's what's called Reasonable Suspicion for a traffic stop. If they catch you on radar or liar, they believe you're speeding. Another thing they will try to pull people over for is failure to maintain a single lane in Galveston County. If you have a failure to maintain a single lane reason for the traffic stop, that is probably the most likely way that we're going to get your case dismissed for a DWI. And that is because for a failure to maintain single lane, you would have to show, as the officer, that not only did that person fail to maintain a single lane, but they did it in an unsafe manner. So if you're in Galveston driving and you're on the seawall area and there's nobody else there, it is like 3 in the morning, not another car hardly on the road at all, then they're not going to have to just show you moved over into the other lane a little bit and then went back without using a signal. They're going to have to show that what happened there was dangerous, that you almost hit somebody, maybe it was a pedestrian coming back from the beach, maybe it was another car, but something to show that it was done in a dangerous way. Then finally, if there was a crash, this is probably the most difficult type of case for us to get dismissed because of a traffic stop like the Reasonable Suspicion is kind of built in. When there's a crash, officers are going to typically have the ability to investigate some type of road crash, either for, you know, failure to control speed through a turn or just the fact that they have a community caretaking function when they see somebody in a situation where they may be hurt or need help. So if somebody in Galveston County has pulled you over for DWI, they've got a traffic stop that's valid, something like that.

The next thing we look at is the field sobriety tests. Did they administer these in an accurate way and a fair way so that you had a chance to show that you're not intoxicated? There are three standardized field sobriety tests that they typically administer, whether it's Galveston police or the Galveston County Sheriff's Office, whoever it is. They're going to be administering these three tests: the HGN, which is called the horizontal gaze nystagmus test. It's an eye test, and it measures the involuntary jerking of the eyes. So if you've ever seen windshield wiper blades go over the windshield of a car where it's very dry, they kind of bounce and skip, and that's kind of what they're looking for in your eyes.

The walk and turn test is a nine-step walking a straight line test, and there are eight different clues on this test. They're looking for things like starting too soon, using your arms for balance, and they will say that you're using your arms for balance if you move them more than six inches away from your leg. So if you're doing one of these tests, you got to keep them all the way to the side of your legs, taking the wrong number of steps, then an improper turn. An improper turn is any turn where you don't leave your lead foot planted and then make a series of small choppy steps to turn around, pivoting only on that lead foot. It's a very strange way to do things, nobody walks like this, nobody's ready to do this kind of test. The point that the officers would say is that because you're not ready to do the test right away, you have to listen, comprehend, and that tests both your mental and your physical faculties. They call that a divided attention test. The last test that they normally do is called the one leg stand test.

The one leg stand does just that; they ask you to pick one foot, lift it approximately 6 inches off the ground, point your toe, and then count. Typically, they'll say in a manner like 1,001, 1,002, 1,003, and do that until they tell you to stop. They're going to do it for about 30 seconds before they tell you to stop. And so if you put your foot down, if you sway while you're balancing, if you hop on that foot, or you use your arms for balance, they're going to cause that's going to cause them to give you what's called a clue. There's four total clues on that test. The worst one to show is probably hopping. In my experience, prosecutors don't like to dismiss a case where there's a hopping person, but that is also another one of these tests. So what do we do to combat these things? Well, we look a little bit more into our client's history. Do they have back problems? Do they have surgery on their ankle from like an old football injury or something like that? Are there reasons why they are not able to do this test when a person with normal physical capabilities would

be able to do the test? Other things to look for is did the officer give them a fair chance to do the test by explaining it correctly and succinctly? I've seen officers have to re-explain these tests five and six times, not necessarily because of anything the defendant or our client did, but because they're just confused or they get interrupted; another officer comes on scene and starts asking them questions while they're in the middle of the instructions. So we make sure that if they did field test on you, they did it in a fair way. So if the officer believes you are intoxicated after the field sobriety tests, they have a couple of options. They could give you a breath test, a portable pre-breath test on the side of the road, but the number that comes out of that portable breath test is not admissible in court. So there's no requirement for an officer to do a portable breath test before he arrests you, and a lot of officers just don't do it. The next part would happen is they're going to read you a document called the DIC-24, and it explains to you that you're under arrest for DWI. They're going to ask you for a breath or a blood sample, and the breath sample in this case would be one done on an intoxilizer 9000, which is the certified breath testing instrument from the state. It's a very large machine; it's kept normally back at the jail, and it's not a portable, it's not a handheld device. And the number that comes out of that is admissible in court. So the officer reads you this form, he requests breath or blood, and then you can either refuse to give a sample, or you can give a sample. If you give a sample, obviously, they're probably going to ask for blood. A lot of times, if they're asking for breath, it's because they're trying to churn, we call it, like churn and burn people. It is something that officers use when there's like a no-refusal weekend on the fourth of July, on New Year's when they have a lot of DWI rest. They're trying to get back out on the street and get things done quickly. The blood sample takes a lot longer to do. So what they will do is get probable cause, you know, based on the description of what you did on the field sobriety test, and ask a judge for them to sign a blood warrant. If you do not submit to the chemical testing, if you don't agree to give a blood sample, they will try to force one out of you. And if you resist them doing that, they may charge you with an additional misdemeanor charge of resisting arrest or search; in this case, it would be a search of the search warrant trying to get your blood. So how do we combat these things? Can you win a DWI if there's a blood test? Yes, you can. One of the things we look at is the blood testing that happens in a vacuum tube that has a gray top; we call that a forensic draw tube. And it has chemicals that are in the bottom of that tube that are supposed to be mixed to make sure there's no clotting or you know, a spoiling of the blood sample over time. But they don't always mix it properly, and there can be clotting when the vacuum tube gets to the Department of Public Safety. And they'll notate that in some of their records; we would get those records and try to find errors there. The way they test blood is they use what's called gas chromatography, and gas chromatography is a process where they put vials of your blood in with like 60 or 70 other people's blood, and they run it all through a machine, and they actually test the air above your blood as opposed to the blood itself. And so there's a lot of different things that can go wrong in this kind of testing. And if you've ever asked a DPS chemist if they've ever made a mistake and switched a vial, they'll tell you no, even though they've done hundreds and hundreds of thousands of these kinds of tests. And we all know just from our daily experience you can't do anything a 100 thousand times and never make a mistake.

So in any case, that's a look at blood warrants and blood testing; we will try to fight all those different things for all of our DWI clients. So a lot of what we talked about so far have been legal challenges, evidentiary challenges, and then if we look at a case and we look to decide that we don't think we're going to be winning a jury trial, right, we're ready to go to jury trial, we'll do it if we have to. But we don't think that that's a great option for our client. Is there another way out of this where we don't have to have a conviction? We will go to what's called negotiation and mitigation. Mitigation basically means that our client is deserving of a second chance, that they have things that are going on in their life that show that they're a good person, they're unlikely to reoffend, they're willing to do what it takes to get the case dismissed and off of their record. And so that's something we do in negotiation with the District Attorney's Office in Galveston. We can do deals where they either reduce the charge to something other than DWI that doesn't have license suspension, that doesn't have the enhancement issues that a DWI can. Or maybe we get a deal in place where you do a class or do some community service, and we can get the case dismissed.

Or something more formal like a pre-trial diversion that allows the case to fall off your record after a certain amount of time. If it's dismissed by pre-trial diversion, you may be eligible for an expunction which gets the case entirely removed from your criminal record even the what's called the TCIC records so that if the prosecutors or a police officer pulls you over in the future, they won't even know that the case happened. That's ultimately the best result that can happen in a case. And every case is different, but we can negotiate with the state, and we always want to try to do that. If you have to go to a trial, you have to be ready as an attorney to try a case, but if there's another way to get your client a great result that you can have control of through a negotiation, you always want to try to do that.