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.

Holidays, such as the recent Memorial Day weekend, are a time when law enforcement steps up its efforts to find people who may be driving while intoxicated. As a result, police often report a higher-than-average number of DWI arrests during these periods. The result occurs because of people’s propensity to drink during holidays and an increased police presence on the roads. Does increased law enforcement activity include DWI checkpoints? Not in Texas, where courts have ruled that such checkpoints are unconstitutional.

What Are Checkpoints?

Normally, DWI stops occur when police officers pull over drivers that they reasonably suspect may be intoxicated or committing a traffic violation. The principle behind DWI checkpoints is that law enforcement sets up a roadblock where all passing drivers are stopped to check for signs of intoxication. States that allow DWI checkpoints have argued that they are both legal and necessary because:

• They are effective at catching intoxicated drivers;
• They protect public safety from potentially dangerous drivers; and
• They cause minimal intrusion on drivers who are not intoxicated.

Unconstitutional in Texas

The fourth amendment to the U.S. Constitution protects people against unlawful searches and seizures. A police officer is unlawfully seizing you if he or she stops you without reasonable suspicion of DWI or another criminal offense. Prosecutors cannot use any evidence of DWI that was obtained after an unlawful stop, effectively ending the case.

Police suspicion that you may be driving while intoxicated can start from the moment you are pulled over. Erratic driving suggests to them that you might be impaired, and the time of night and proximity to drinking establishments may further their suspicions. However, suspicions and police intuition about your driving are not enough reason to immediately demand a sobriety test or arrest you for DWI. The officer will observe your appearance and behavior to determine whether there is probable cause for an arrest.

Your Appearance

Officers are familiar with the visual cues that a driver may be under the influence of alcohol or drugs, such as:

• Bloodshot or watery eyes;
• Dilated pupils;
• Flushed face;
• Sweating;
• An odor of alcohol or drugs; and
• An unkempt appearance.

A combination of any of these symptoms will raise suspicion, but each one could have an explanation that is unrelated to alcohol or drugs. You may be sweating or have bloodshot eyes if you are sick or tired. While being sick or tired can impair your driving ability, the consequences are not the same as being under the influence of an intoxicating substance. The smell of alcohol or drugs is more difficult to explain. It is possible that the odor could be coming from a current or recent passenger who was drinking or using drugs.

A first-time conviction for driving while intoxicated often does not include any jail time for the offender. Texas law does not require jail for a first-time offense, and courts prefer to give probation. However, some people choose to serve jail time instead of accepting the conditions of probation. Why would a defendant reject the chance to avoid jail time? For some, it is a matter of cost, hassle, and the duration of probation.

Hassle

There are several conditions to being on probation, and violating them may result in you going to jail. People on probation for a DWI conviction often must:

• Regularly report to a probation officer;
• Abstain from drinking alcohol;
• Submit to random alcohol breath tests;
• Install an ignition interlock device on their vehicles;
• Attend counseling or classes;
• Perform community service; and
• Remain in their county of residence, unless they receive court permission.

Some people find these conditions too prohibitive or fear that they will not be able to comply. They would rather serve time in jail and be free of these conditions once they are released.

When facing a charge of driving while intoxicated in Texas, it can sometimes feel like your case is hopeless. Prosecutors may present convincing evidence, such as chemical tests and testimony from the arresting officer and other witnesses. You may be tempted to plead guilty to the charge in order to expedite the process and possibly receive a lighter sentence. However, it is worth your effort to contest your DWI charge instead of resigning yourself to being convicted. There are several consequences to a DWI conviction that you want to avoid if possible:

1. Sentencing: A first-time DWI offense, which is the most basic offense, can result in as long as 180 days in jail, a fine of as much as $2,000, and a driver’s license suspension for as long as a year. The penalties increase if you have any aggravating factors, such as a DWI charge with a blood alcohol concentration of 0.15 or greater or if someone was injured during the incident. Previous DWI convictions on your record will also raise the level of the charge.
2. Criminal Record: You can never expunge a DWI conviction from your criminal record. The best you can do is seal your record from the public if you were convicted for a first-time offense with no aggravating factors and you completed your probation. Without sealing your record, your DWI conviction will appear in a background check when you apply for a job or loan. Even if your record is sealed, law enforcement and employers in sensitive industries can still see the conviction.
3. Driving Privileges: You can continue to drive after a DWI conviction if you receive probation. However, you will likely be required to install an ignition interlock device on any vehicle you drive. You may lose your job if you drive a commercial vehicle. A DWI conviction also suspends a commercial driver’s license, and most employers will not allow you to use an ignition interlock device on their vehicles.
4. Travel Privileges: Probation often comes with a travel restriction. Texas may require you to receive permission before you leave the state. Some countries may bar you from entry if you have a DWI conviction unless you apply for a special permit.

Contact a San Antonio DWI Defense Lawyer

Before you assume that your case will end in a conviction, you should consult with a San Antonio DWI defense attorney at the Law Offices of Sam H. Lock. There may be details in your case that cast doubt on the prosecution’s evidence or make that evidence inadmissible in court. To schedule a free consultation, call 888-726-5625.

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