Conroe Criminal Lawyer Blog

The federal government knows what is best for you. Your government tries to control you by legislating penalties for not doing what Big Brother wants you to do. To limit your behavior, your government has levied steep taxes on items such as cigarettes, other tobacco products, even soft drinks. Currently, in Austin, your Texas legislators are trying to pass a law banning all text messaging while driving. And on the national level, the federal government is trying to take away your right to split a bottle of wine at dinner or to have a few beers at the ball game.

For years, the National Transportation Safety Board (NTSB) has pushed to lower the legal limit in drunk driving cases to .05. The current level in Texas is .08. If you have seen the movie “Sully,” you know the NTSB as the villains in the film calling for Captain Sullenberger’s head. Okay, that’s Hollywood, but the truth of the matter is that there just aren’t enough plane and train accidents to justify the budget of the NTSB. What does your government do when it tries to justify its existence? Your government uses fear tactics to make itself relevant. Bad things are happening, we must act. Wake up citizen, I’m your government, you need me, listen to me. These tactics are getting tiresome.

In Utah, state legislators are already pushing for the .05 limit. How does that affect us in Montgomery, Walker, Madison, and Leon County, Texas? Because Utah was the first state to lower the legal limit in drunk driving to .08. The old standard was .10. Truth be told, the field sobriety tests that law enforcement uses to arrest you in a DWI stop were based on the old .15 standard. Yep, the standard started at .15 for impairment. But why drop the limit? Simple, taxes. Your government wants more money. The penalties on a first DWI in Texas start at $1000 a year for three years and climb from there. But what say you, groups against drunk driving?

It was a rough week for law enforcement officials in Texas.  In San Antonio, three local law enforcement officers were arrested on Thursday night within hours of each other.  Police officers Gena Rodriguez and Harold Thomaston were both arrested for driving while intoxicated.  San Antonio Police Chief William McManus was quoted with saying, “Anytime an officer gets arrested for anything it’s disappointing, but DWI is just so preventable and there is no excuse for it.”

Rodriguez was an eleven-year veteran who was driving with her three children in the vehicle when she crashed into another car.  Police officers on the scene stated that Rodriguez was slurring her speech, was unsteady on her feet, and smelled like alcohol.  Later that night police veteran Harold Thomaston was also pulled over for driving while intoxicated.  Police say that Thomaston swerved into the lane of another police officer and then ran a red light.  Chief McManus stated, “SAPD officers were arrested by SAPD officers, so absolutely not, they are not held to a different standard, they are held to a higher standard.”

Bexar County Deputy Sabrina Moreno was also arrested Thursday night for DWI.  Bexar County Sheriff Javier Salazar said, “I am furious, there is no other way to put it, I am just furious.”

So, what is the Intoxilyzer 9000? This is a new breath test device that is being transitioned into use in Texas. This new unit will eventually replace the decades old Intoxilyzer 5000. The new device will be used in the prosecution of drunk driving cases. However, as the machine is new and being transitioned in, it is still plagued with problems including software issues and bugs. Clearly, this is cause for concern as it may lead to wrongful convictions for DWI.

It works like this. Say you are arrested for suspicion of drunk driving in Walker, Harris, or Montgomery Counties. Typically, the arresting officer will ask you if you wish to provide a breath or blood sample. On a first offense, the penalty for refusal of one of the two tests will result in a 180 day Texas driver’s license suspension versus a ninety-day suspension for those that comply. Lately, most officers have opted for blood over breath due to the problems with the old Intoxilyzer machines. By the way, it’s the officer’s choice not yours as to the breath or blood election. Many people are confused by this distinction. People say, I offered to give breath in lieu of blood because I am afraid of needles. Too bad, that’s considered a refusal.

In Georgia, the new Intoxilzer 9000 recorded seventy-four tests in the first two month in one area. Of the seventy-four tests, fifty-one of the tests generated error messages. In other words, a brand-new machine was wrong almost seventy percent of the time. When you are prosecuting someone for DWI or any other crime for that matter, any error is unacceptable.

Okay, no it hasn’t gone that far.  But where do we draw the line at how far police can go to collect evidence in a driving while intoxicated arrest?  This issue is being pushed to the limit.  Texas law enforcement agencies argue that alcohol testing is legitimate requirement for being allowed the privilege of driving on our publicly owned Texas roads.  Some have argued that the burden for obtaining a search warrant in DWI cases is too big of a burden for law enforcement.  But even in the rural counties that I work in, including Walker, Madison, and Leon Counties, there is almost always at least one judge on call.

How extreme has the matter of DWI blood draws become?  In Georgia, police have been strapping down citizens to a gurney as they forcibly draw blood from the victim.  One such video shows the victim screaming, “What country is this?”  One victim stated, “We are all American citizens and you guys have me strapped to a table like I’m in f***ing Guantanamo Bay.”

As Texans, it was hard to ignore the case in Southlake last year where the victim was tasered.  Hannah Fossier, a twenty-one-year-old Keller, Texas woman states that she refused repeatedly to have her blood drawn on the night of her DWI arrest.  Thus, officers hit her twice with the Taser.   Once incapacitated, the nurse performed a blood draw.  “I must have told them at least 10 times no,” Fossier told reporters after her arrest. “One officer said if you don’t cooperate, I’m going to Tase you, and he did.”