FREE TEXAS DWI DUI CASE EVALUATION

Tactics in Texas DWI Cases

So exactly what can I do for you when I say that there are quite a few defense tactics?

Let me show you what I mean through actual examples.

Prescription Medicine

Ron was a computer technician. He was 46 years old and had never been in trouble before. He was arrested in February and again in March for DWI. He was in a state of panic because the only option offered by the prosecutor was for him to spend four months in jail, a fine of $1,200 and lose his license for a year without any ability to get a hardship license.

Ron told me he didn't know what happened on either arrest. He said that the last thing he remembered on both nights was taking his medicine and going to bed. The next thing he remembers was waking up in jail the next day. Ron did not seem to be lying to me and I thought there was something very unusual happening with this case.

After reviewing the police reports of the arrest I learned even more disturbing facts. On the first night, Ron had rear ended two cars in a left turn lane and then fled the scene. He had driven for about a mile when his truck jumped the median in the six lane parkway and came to rest against a brick wall. When asked by the officer where he was going, Ron told him that "he and his friends were going to the parade."

There were only two problems: there were no other people in the truck and there was no parade!

Ron was arrested and taken to jail. The video showed a man obviously not having the normal use of his physical or mental faculties but very "out of it". Ron readily agreed to take a breath test which showed an alcohol concentration of 0.040 (legal limit 0.080), half the legal limit. I began to suspect the medication even more.

On the second incident the police report was worse. It seems that a another driver had seen Ron weaving across all of the lanes on the freeway and almost striking several other cars. The citizen followed as Ron drove through several suburbs of Dallas. Ron exited the freeway and proceeded on a county road at about 80 mph. A car in front of him tried to get off onto the shoulder and was rear ended by Ron. Ron didn't stop. He sped forward and made a U-turn and headed straight for the car he had hit earlier. The people in the other car were in fear for their life and pulled into a driveway at the last minute.

The report continued: Ron kept driving in the same direction, where he eventually met the police. He again made a U-turn, off the roadway and led four police officers on a 21 mile chase at speeds of 100 mph! Ron only was stopped when he misjudged a right turn in another county and wrecked his truck.

Ron was arrested and the transporting officer testified that Ron "did not seem to know anything that was happening or comprehend what was going on." Ron again agreed to take a breath test and this time the results were 0.006, well below the legal limit and slightly above the range of accuracy for the breath test machine.

I researched Ron's medication and medical history. It seems that two years earlier he was hospitalized for a mild heart attack and underwent angioplasty for blockage near his heart. He also had very high blood pressure (240/140). After being released his doctor put him on a regimen of blood pressure medication. This medication however caused insomnia and Ron could not get more than 1 hour of sleep each night. The doctor then prescribed another drug to help him get to sleep: Ambien.

This course of treatment seemed to work well for Ron for almost two years when these two incidents occurred. After his second arrest, Ron returned to the doctor and the Ambien was immediately discontinued. No more problems have been reported.

I researched Ambien in the Physician's Desk reference. Because I have a background in chemistry and biology I knew about this book that is published by drug manufacturers warning about all adverse effect of drugs that were documented during FDA approval. To my amazement there were five pages on Ambien. The usual drug may have two pages, but never had I seen five.

After reading the reported side effects closely I discovered that a rare, but documented, side effect was "somnambulism" or sleep walking. I then began to research what a person could do while sleep walking and was it possible that this was what happened to Ron. I learned that you can perform any activity while sleep walking and that the only difference was that you were not "awake" and therefore not aware of what was happening. I also noted that this side effect lasted almost exactly as long as Ron's memory was missing.

I made a strategy decision to try all of Ron's cases before the same jury. I believed that one jury should hear all of these facts and make the decision on all cases as they were all related to the side effect of Ambien.

At trial we defended two charges of DWI, one charge of hit and run and one charge of evading arrest. Intoxication was never contested as we conceded that Ron had lost the normal use of his physical and mental faculties by the introduction of alcohol and a controlled substance. The prosecutor called ten witnesses who all testified that Ron was really "out of it". They described someone in an altered state of consciousness.

I called a doctor to teach the jury about Ambien. The PDR pages were introduced and the doctor explained that Ron's actions were likely caused by the long term use of this short term sleep medication. He also stated that the descriptions given by the other witnesses indicated a person who was in a somnambulistic state, appearing awake and doing normal things, but being controlled by his subconscious.

Before final argument, I argued that Ron's actions were involuntary and mandated a certain instruction to the jury to find him not guilty if they believed that his driving and intoxication were involuntary. This motion argument took approximately two hours as a record needed to be preserved in the event there was an appeal.

Texas law is now very strict on DWI charges and the law seems to state that it doesn't matter whether or not you suffer from unknown side effects from prescription drugs or someone slips something into your drink without your knowledge. If you aren't normal and you drive, you are guilty of DWI. The judge denied my requested charge on this issue.

This jury deliberated for eight hours on all four cases before coming to their verdicts in his cases. Ron was found not guilty of evading arrest and hit and run because the voluntary instruction was given for those charges by the judge. Ron was convicted on both of the DWI cases. Instead of the four months in jail however, the jury granted probation in both cases and total fines of $2,000. They also agreed not to suspend Ron's drivers license for any of these offenses.

Much relieved at the verdicts in his cases, Ron is now back to normal and swears that he'll never take any medication for sleeping again. The jurors also said that they had heard of Ambien, but they would never take it. One juror also shared with me that his father suffers from Parkinson's disease and had a similar experience with a new medication. He asked me if I thought he could be prosecuted for DWI under Texas law and I sadly stated that I believed that the law appeared to state that he could.

This was a VERY unusual case and not likely to be repeated. Because of my training in science, chemistry, breath testing and general research I was able to obtain favorable results.

And that's the point here. While each case depends on its own facts, a knowledge of applicable science, chemistry, breath and blood testing, and Field Sobriety Testing is invaluable in defending a DWI. The outcome of your case may well depend upon it. My background shows that I have that knowledge, and that I can use it to help your case.

Moreover, which is often overlooked when someone selects an attorney, you need one who is willing to believe you and fight for you with every possible defense. These are the types of cases that I enjoy the most.

Before I go any further, let me tell you that I'm not promising that I can do the same in your case. That would be unethical. Every situation is different.

That was pretty interesting , wasn't it?

Let me give you another example.

Intoxication is not the only issue.

Charles was a lawyer. He was also a chiropractor. A criminal conviction for DWI was not something that he needed on his resume. When he came to my office he was distraught because he knew nothing about criminal defense law because he was in civil practice. He wanted and needed--to win.

The facts were fairly simple. It seems that a local police officer had "set up shop" just outside a local sports bar after midnight. He reported that he saw Charles speed out of the parking lot and swerve going down the service road to the freeway. He decided to follow Charles to look for any more erratic driving. Charles entered the freeway after making a legal U-turn and the police officer saw no more reckless driving, but decided to stop him and check him out.

Of course Charles admitted that he had been drinking as he had just left the bar, but the officer did not believe that he had only had "a couple of beers". The officer asked Charles to perform several balancing tests and the HGN (eye) test, which he did. In the officer€s opinion Charles was intoxicated and he was arrested and taken to jail.

At the jail Charles was videotaped and did not appear to have very good balance. He performed the exercises again and did very poorly. When asked to count his money for inventory into the jail, Charles could not do it even after trying three times. His speech sounded slurred and he did not appear "normal" on the video. I truthfully told Charles that winning would be an uphill battle, but that we couldn€t win if we didn't try. Charles agreed.

At trial I contested the delay in stopping Charles for "burning off" out of the parking lot and observing no more bad driving. The officer was also questioned about his "stakeout" at the local bar, which he denied. The video was played and the look on the jury's face was one of which seemed to say, there€s no question this guy's not intoxicated.

During direct examination the officer testified that he stopped Charles in the 26000 block of Central Expressway. When I heard this I recalled all of the traffic tickets I had done previously in this area and realized that Charles was stopped and observed driving in another county. Rather than try to get the officer to admit that he had filed the case in the wrong court, I did not question him.

When Charles took the stand (a rare strategy for me, but Charles insisted), I admitted a Mapsco of the area. The prosecutor tried to object, but Mapsco is a recognized authority on the streets of the city. The prosecutor only glanced at the map when it was admitted.

In my closing argument, I asked the jury why didn't the prosecutor bring them the map? Why did I have to do it? I then picked up the map which clearly showed the 26000 block of Central Expressway was in another county as was the local bar and all of the driving before the stop. I reminded the jurors that they had sworn to require the state to prove all of the elements they had outlined in jury selection. I used this Mapsco exhibit to point out that the county of offense was an essential element in the case.

After twenty minutes, the jury returned with a verdict of not guilty. When asked their thoughts and reasoning they informed me that while they believed that Charles was driving while intoxicated, they also believed that it happened in the nearby county and not in the county in which the trial was being held. They took their oath seriously.

This is not an unusual event in the trial of a case, but it was not a planned strategy for winning. Trial offers many unusual opportunities and only a skilled and experienced trial attorney can guide a case to victory with constantly changing facts. It is critical that you ask any attorney you visit what his or her trial experience has been.

The Breath Test Machine Made a Mistake

I'll call this client Leo. Leo was an international businessman who was looking to move to Canada. He appeared to be a very responsible person who was afraid of a DWI conviction. This was especially true when he learned that Canada would refuse to admit anyone into Canada who had a DWI conviction on their driving record.

Leo told me that he and his friends had been out for dinner and drinks that night, but that he had a big dinner with his two beers and three glasses of wine. The dinner and 5 drinks were over a four hour period. When he was arrested, he believed that he wasn't intoxicated and agreed to take a breath test. Imagine his surprise when the officer told him that his results were 0.26 or 3 times the legal limit!

Because of my training on the breath test machine, I asked Leo all of the questions that I normally do to determine what may have affected the results. According to generally accepted scientific principles of absorption and elimination of alcohol, I predicted that his breath test should have been in the range of 0.020 - 0.040.

Another confusing part of the case was the video at the jail. During the video Leo was polite, cooperative, displayed excellent speech and balance. The officer had Leo perform 7 sobriety exercises just before the breath test and Leo made absolutely no mistakes. In other words, these tests did not validate the breath test results. For Leo to have had a concentration of 0.26 he would have had to drink about 15 beers in two hours!

I told Leo that something must have been wrong with the machine and that I would obtain and review the machine records for the month before and after the testing. When I got the records I noticed that it said that the machine was "Operating Correctly" on every day except the day that Leo took the test. I told Leo that I thought we could win his trial with this evidence and we proceeded to trial.

With these records in hand I decided not to contest the introduction of the breath test results. When the prosecutor's expert took the stand I asked him if he had the records for this machine. He did and much to my surprise his records indicated that the machine was "Operating Correctly" on the date of Leo's arrest!

I compared his records to mine and noted that the operational status was printed on a different line and that my records were identical expect that they had been produced three months earlier. It was the same computer generated report. I then admitted his records and had him identify and admit the records I had obtained from his officer three months earlier. I also had the expert make the calculation for the jury that Leo would have had to drink 15 drinks in two hours to have this result.

In closing argument the prosecutor said that Leo must have a "high tolerance" for alcohol and I objected that there was no evidence of tolerance in the trial (Leo took my advice and did not testify). My objection was sustained and the jury instructed to disregard that comment.

In my closing I pointed out how well Leo had done on the balancing, reading, alphabet and counting backwards tests. I then showed them both of the records for the breath test machine and asked them to decide why these records had been altered. The jury had a very quizzical look on their face when I pointed out the identical records and the appearance that the "Operating Correctly" notation had been added at a later date.

This jury deliberated for 15 minutes and returned a verdict of not guilty. When asked their thoughts, they said that they did not believe the machine because Leo could not have done that well after drinking 15 drinks. They were also very curious (as was the prosecutor) as to why the records appeared to have been altered and they therefore didn't know which one to believe.

Needless to say, Leo was ecstatic. He is now a successful businessman in Canada and his DWI arrest and accusation have been completely erased from any and all records created as a result of his arrest and accusation for DWI.

Could the same be true for you? I don't know now, but if you call for your free consultation, I will explore all these types of possibilities with you.

The lesson to be learned from this example is that a case--your case--may be able to be defended by one or more challenges to the charges you are facing.

That's what I do for my clients.

Texas Drunk Driving Defense
CHRISTOPHER N. HOOVER
Attorney at Law
520 East Central Parkway, Ste. 112
Plano, Texas 75074
Telephone: (888) 252-4394

e-mail:dwidallas@dwitexas.com

Site Map

Texas DWI DUI Defense:
Dallas, Ft. Worth, Plano, Arlington, Carrolton TX