Texas has an implied consent law that states that a licensed driver has consented to chemical testing if a police officer has probable cause to believe that they have been driving while intoxicated. The law applies even when the suspect is unconscious and unable to give consent. When a DWI suspect is injured in an incident, the officer will often collect a blood sample from the suspect at the hospital, where there is a trained staff available to draw the sample. However, some hospitals have a policy against drawing blood from a patient who is unable to consent. This can lead to disputes between police officers trying to obtain evidence and hospital staff concerned about the patient’s privacy.

Recent Example

A nurse at a Dallas area hospital recently refused to allow police to draw blood from a DWI suspect until they presented a warrant. The male suspect had been involved in a car accident that killed two women. The man had been convicted for DWI five times previously, gotten off of probation five days earlier, and just had the ignition interlock device removed from his vehicle. A breath test showed no traces of alcohol, but the officer believed that he was intoxicated because they claim that he:

• Had been driving the wrong way at the time of the accident;
• Said he had been taking Xanax;
• Had bloodshot eyes; and
• Spoke rapidly.

Police arrested the man, who allegedly agreed to a blood test. After the suspect was taken to a hospital, a nurse told the officer that they could not do a legal blood draw on the suspect, claiming that the suspect could not consent to the test because he was intoxicated. The officer obtained a warrant to draw the blood sample from the suspect, who has been charged with two counts of intoxication manslaughter.

The preferred strategy when you have been charged with driving while intoxicated is to try to receive a “not guilty” verdict or to get the charge dismissed. In some cases, your best strategy is to minimize the penalties you receive. When a conviction seems unavoidable, your DWI defense attorney can negotiate a plea bargain with prosecutors, in which you agree to plead guilty in exchange for a lesser charge or lesser penalty. Plea bargaining should be a last resort after evaluating your case and determining how you can contest the charge. A plea bargain can still result in severe consequences.

The Reality of Plea Bargains

Your best-case scenario in plea bargaining with prosecutors would be to get your DWI charge reduced to reckless driving, obstruction of a highway or public intoxication. These charges could allow you to avoid jail time and a driver’s license suspension. However, prosecutors are more likely to offer lesser penalties in exchange for pleading guilty to DWI. When deciding whether to offer a plea bargain, prosecutors will consider:

• Your previous criminal record, or lack thereof;
• How much greater they claim your blood alcohol concentration was than the 0.08 legal limit;
• Whether there was a crash or injuries involved in the incident; and
• The conduct of yourself and the police officer during your arrest.

A first-time DWI conviction in Texas is a class B misdemeanor, with a minimum of 72 hours in jail and a driver’s license suspension of at least 90 days.

Texas is ending its controversial Driver Responsibility Program that requires an annual surcharge for people convicted for driving violations, including driving while intoxicated. Statistics suggest that more than 1 million Texas drivers will be eligible to regain their driver’s licenses – some immediately and some when the program officially ends on Sept. 1. Civil liberties advocates have criticized the program for disproportionately affecting low-income traffic offenders. However, the news is not completely positive for people facing DWI charges. In exchange for eliminating the Driver Responsibility Program, Texas is increasing its fines for people convicted of DWI.

Driver Responsibility Program

Texas enacted the Driver Responsibility Program in 2003 to charge an additional fee beyond the fine charged upon conviction for a traffic violation. Drivers whose licenses were suspended must pay an annual surcharge to the Texas Department of Public Safety for three years in order to regain their licenses. For DWI convictions, the annual surcharge was:

• $1,000 for a first offense;
• $1,500 for a second offense; and
• $2,000 for DWI with a blood alcohol concentration of 0.16 or greater.

The Austin Community Law Center had filed a lawsuit against Texas, claiming that the program placed too great of a financial burden on people with low incomes. Many Texas residents either did not understand or could not afford the surcharges and were left without a driver’s license as a result. Texas will wipe out the remaining surcharges on Sept. 1, and drivers will be able to reinstate their licenses if they pay the reinstatement fee and resolve any issues that are not related to the Driver Responsibility Program.

The Fourth of July and the accompanying weekend may be the height of summer celebration in the U.S. It is also a time of year that will see an increased number of vehicle crashes and fatalities related to driving while intoxicated. Police will try to prevent the damage by having additional officers on patrol for drivers who may be under the influence of alcohol or drugs. You do not want to ruin your holiday by becoming one of the many people who will be arrested for DWI. Here are three tips for preventing a DWI arrest that may be relevant to your Independence Day:

1. Have a Transportation Plan: The best way to avoid a DWI charge is to not drink and drive. Even if you think you are safe to drive, police officers will be attentive to any signs that you may be impaired. Whether at a public event or private party, plan ahead for how you will get home if you expect to drink. Have a designated driver or use a ride-share service. Waiting for a ride to show up is better than waiting in the back of a police car or ambulance. If at a private residence, ask your host if you can stay until you sober up or plan on ending your drinking earlier in the night.
2. Be Careful About Sleeping in Your Car: It may be tempting or even seem responsible to sleep in your car if you feel too drunk to drive. However, police can still arrest you for DWI in this situation if they believe you are operating or have recently operated the vehicle. The evidence could be that you had the key in the ignition in order to run the air conditioning or radio. Sleeping in your car while drunk is a risky decision. If you do so, you should sleep in the back seat with the car turned off.
3. Understand Your Legal Rights: Being stopped by a police officer on the Fourth of July does not automatically mean you will be arrested or charged. First, the officer must have reasonable suspicion that you are committing a crime to legally stop you. Then, the officer must have probable cause that you are intoxicated to arrest you for DWI. The officer cannot force you to say or do anything that may incriminate yourself, including participating in a field sobriety test. The officer cannot take a blood sample or search your vehicle without a warrant. By remaining calm, you reduce the chance that you will give the officer any evidence of a crime.

Contact a San Antonio DWI Defense Attorney

If you have been charged with DWI, you must act quickly to protect yourself. A San Antonio DWI defense attorney at the Law Offices of Sam H. Lock can work towards the best outcome for you in your case. Schedule a free consultation by calling 888-726-5625.

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You have the right to deny a police search until an officer presents you with a search warrant. To obtain a warrant, the officer files an affidavit with a judge, who will approve a warrant if he or she agrees that there is probable cause to conduct a search. Police often use warrants to search residences or vehicles, but a warrant is also required to obtain a blood sample if police suspect you of driving while intoxicated. Police are essentially asking to search your body for evidence of intoxication, which prosecutors can use in a trial. Officers in the field often send their affidavits electronically to a judge in order to expedite the process. In two recent cases, DWI defendants successfully argued that the evidence obtained from their search warrants was inadmissible because the officer who signed the affidavit had not been put under oath.

Purpose of the Oath

The fourth amendment to the U.S. Constitution states that a court shall not issue a warrant without “probable cause, supported by Oath or affirmation.” When creating an affidavit, the police officer must swear under oath that the information in the affidavit is truthful, to the best of his or her knowledge. If the officer appeared before a judge to request a warrant, he or she would be sworn in before giving testimony. Two police officers are needed when sending an affidavit electronically:

• One officer to write and sign the affidavit; and
• A second officer to place the first officer under oath and sign the affidavit to confirm the oath was administered.

In the two recent cases, both involving the Texas Tech University Police Department, body camera footage showed that the second officer did not verbally administer the oath to the officer creating the affidavit for the blood search warrant. The prosecution argued that the oversight was a technicality that did not discredit the validity of the warrants. However, the court granted the defense’s request to suppress the evidence in both cases. Even if the officers intended to tell the truth, putting them under oath is an important step in protecting defendants against false statements of probable cause.