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DWI Archives - Robert Littlefield Buford III, Attorney at Law

Blowing Into the Machine or Giving a Blood Test

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The state of Texas has strict DWI laws. Under the Texas Penal Code, you can be convicted of drunk driving if your blood alcohol concentration (BAC) is higher than 0.08. As any good Austin DWI defense attorney will tell you, many people make major mistakes when they are pulled over for a traffic stop. If you have been pulled over, you need to know what to do to protect your legal rights and to ensure you don’t face severe DUI/DWI penalties.

In the United States, all defendants are innocent until proven guilty in a court of law. Defendants have no obligation to help the prosecution prove their case; instead, the state of Texas has the burden of proof in DWI cases. One of the biggest mistakes you can make as a defendant is voluntarily agreeing to blow into the machine or submit to a blood test.

Refusing to Blow or Give Blood Subjects You to a Civil Penalty

There is a lot of confusion about whether or not motorists in Texas are legally required to take a breathalyzer test or give a blood sample. The answer is a resounding no. You are fully within your rights to refuse to blow into the machine. A Texas police officer cannot physically force you to take a breathalyzer test.

This is not to say that there are zero consequences for a refusal. When you get a license from the Texas Department of Public Safety, you are inherently agreeing to take a breath test when asked to do so during a traffic stop. If you refuse a breathalyzer test, you will be subject to automatic civil penalties. To be clear, a refusal is a civil infraction. Your Texas driver’s license comes with an implied contract that you will submit to a breath test or blood test. Refusal to do so is a breach of that contract. Upon refusal, you will likely be arrested, your license will be taken, and you will be issued a piece of paper that acts as your temporary license and serves you notice of suspension.

With all that being said, an experienced Texas DWI defense attorney will likely tell you that you should still refuse to submit to a breath test or blood test. Why? Because if you are being asked to perform those tests, you are almost certainly about to be arrested for drunk driving regardless of the results. At this point in your interaction, the police officer is most likely attempting to secure additional evidence of your guilt.

Avoid Criminal DWI Punishment: Exercise Your Right to Refuse to Blow or Give Blood

Being convicted of the criminal offense of drunk driving carries a much greater penalty than does the civil infraction of a refusal to blow into the machine or submit to a blood test. Once you have been suspected of drunk driving, you need to take care to protect your legal rights. While you should always remain polite with the responding police officers, you are under no obligation to answer questions or assist them with their criminal investigation.

At this point, the best thing that you can do to protect your own best interests is to exercise your right to request access to your Austin criminal defense lawyer. Your lawyer will be able to guide you through the legal process, helping you protect your rights, your freedom, and your driving privileges.

Raising the Bar

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As an Austin DWI attorney, I have defended several people who have been served a DWI charge. DWIs in Austin are serious business and can lead to problems for everyone involved, especially if the DWI resulted in an accident. While I don’t condone drinking and driving, there is nothing wrong with throwing a few back – as long as you are doing it responsibly and make good decisions when it comes to getting home. Austin is well-known for its clubs and fun bars, and you should be able to enjoy them. See my recommendations for the best bars around the city, and remember everyone: be smart before getting in your car.

1. Bar Inception

Within the walls of a bar called the Clive Bar lies another small bar called Bar Illegal (despite its name, it is actually legitimate). It is disguised as an inside shed that few pay attention to, but it serves drinks specifically from southern Mexico. If you are lucky enough to grab a drink inside Bar Illegal, you will certainly feel like your drinking experience is a dream within a dream.

2. The Bar-thel

On a street in downtown Austin that many few as disreputable is situated another bar called the Midnight Cowboy. What was once a brothel during prohibition is now a small luxury bar that only serves 8 people at a time due to its small size. Unlike other bars, you have to make a reservation as a group to get in.

3. Bar with an Ego

The bar Ego actually doesn’t have much of one. The place is really a dive, and it is really great. It boasts everything from no windows to graffiti all over the bathroom stalls, but the best parts are their cheap drinks and awesome karaoke. After enough drinks, everyone will think you’re Eric Clapton, but don’t let that give you too big of an ego.

4. Aged Bar

The Lulu’s Christmas Bar isn’t famous for their aged wines, just the fact that really old people go there to drink. What’s so great about that? I don’t know, but if drinking with your parents isn’t your scene, think about hitting up The Roosevelt Room instead. There they try and teach kids in their 20s how to actually appreciate good alcohol so they will be ready to drink with the old timers at Lulu’s.

5. The Handle-Bar

If you want to feel like a kid again, this hipster-inspired bar is probably your best bet. While enjoying all of your drinks, you can also play on their adult jungle gym, get into some adult Jenga, or ride their seesaw. They really take “Keep Austin weird” seriously.

6. Get a Mugshot Bar

We don’t want you to get arrested for anything, but if you want some good drinks and a picture to remind you of how sloshed you were, the Mugshot bar has a famous photo booth that accepts credit cards. Just make sure Mugshot doesn’t turn into another mugshot.

Austin DWI Attorney

I don’t want to see you in my office after you’ve been arrested for drinking and driving after bar hopping, but if you do end up in trouble, you need a good attorney. Call me, Robert Littlefield Buford III, Attorney at Law, to get the best legal representation for your DWI in Austin.

Charged with DWI? Why You Should Hire an Austin DWI Lawyer

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Many people think that DWI charges cases are cut-and-dry, meaning that if they are charged with driving while intoxicated, they will be convicted and have to face the penalties that accompany a Texas DWI conviction. This is simply not true. Like with all other criminal offenses, an individual charged with DWI is innocent until he or she is proven guilty, which requires the court to make use of available evidence to prove beyond a reasonable doubt that the individual was driving while his or her blood alcohol content was .08 percent or higher. This is why you should work with a DWI lawyer to defend your case if you are charged with this offense.

How Can a DWI Lawyer Help Me with my Case?

There are a few ways a DWI lawyer can help you with your case’s defense. These include, but are not limited to:

  • Your lawyer can conduct his or her own investigation of the evidence presented by law enforcement. Remember, the court has to prove that you were driving while intoxicated through the evidence it collects and present, which can include data from your field sobriety test, the results of your Breathalyzer test, the original arrest report detailing your behavior prior to being pulled over, witness testimonies, and video surveillance of the arrest. Your lawyer can point to discrepancies between pieces of evidence and determine if any are not admissible in court, having them removed from the case;
  • You have rights, such as the right to legal counsel and the right to refuse to say anything that might incriminate you. A lawyer knows these rights and can advise you about how to exercise them and how to interact with law enforcement and the court; and
  • Your case has multiple components. In addition to your criminal hearing for DWI, you can request an administrative hearing to fight your driver’s license suspension within 15 days of your arrest. Your lawyer can not only request this hearing, but advocate for you through it, keeping you on the road until your case is resolved.

Why Should I Specifically Work with an Austin DWI Lawyer?

If you were arrested for DWI in Austin, Texas, it is best that you work with a lawyer who is familiar with the local court system and the specific road where your arrest took place. This local knowledge will help him or her defend your case by discussing specific aspects, such as local traffic patterns, in detail. A local lawyer will also be familiar with the nuances of the Travis County Criminal Court at Law and the people working within its system, such as the judge who will hear your case.

Work with an Experienced Austin DWI Defense Lawyer

If you have been charged with DWI, do not wait to start working on your defense with an experienced Austin DWI lawyer. Contact Robert Littlefield Buford III, Attorney at Law, today to set up your free legal consultation in our office.

Can Austin Police Force Me to Take a Blood Test If They Suspect DWI?

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When you are suspected of drunk driving, police in Austin and throughout Texas must still respect your constitutional rights. This includes the right to be free from any unreasonable search of your person. A search is considered unreasonable if law enforcement does not first obtain a warrant or establish there is some “exigent” or emergency circumstances that excuses the lack of such a warrant. Any evidence obtained by the police in violation of these requirements cannot be used against you at trial.

Texas Courts Clamp Down on Warrantless DWI Blood Tests

In DWI accident cases, one of the most common searches that a defendant may face is a blood test. A blood-alcohol test is often the key piece of evidence used to convict a person of DWI and related offenses, such as intoxication manslaughter. Police and prosecutors often attempt to conduct such blood tests without a warrant, but Texas courts have increasingly rejected such efforts.

In 2014, the Texas Court of Criminal Appeals held that “warrantless, nonconsensual testing of a DWI suspect’s blood does not categorically fall within any recognized exception to the Fourth Amendment’s warrant requirement.” But the Court did not say that all warrantless blood tests were illegal. Rather, it held the government could not create a blanket exception to the warrant requirement for DWI blood tests. Depending on the circumstances of a particular case, a warrantless blood test may still be deemed legal.

Still, the Court’s decision offers DWI defendants an important tool in challenging the evidence against them. For example, on May 10 of this year, a Texas district court of appeals reversed a defendant’s conviction based largely on a warrantless blood test. This case was of particular interest given the defendant was not convicted merely of DWI, but felony murder arising from an alleged act of drunk driving.

The defendant was returning home from a bar when he struck a motorcycle. The motorcycle operator suffered fatal injuries. Police officers responding to the scene disagreed as to whether the defendant appeared intoxicated. Some officers took the defendant to a nearby hospital, where they ordered a blood test without the defendant’s consent—he had refused it—or attempting to obtain a warrant. Following a trial, a jury convicted the defendant of felony murder.

On appeal, the defendant challenged the admissibility of the warrantless blood test. The appeals court agreed that the police had violated the defendant’s constitutional rights. The court cited the testimony of the lead Texas Department of Public Safety officer at the scene, who said he took “zero steps” to obtain a warrant, even though at least 90 minutes elapsed between the accident and the blood test. Indeed, although the accident occurred after midnight, local police “had a process in place to assist officers in obtaining warrants.” The policy simply ignored that process and the defendant’s constitutional rights. Accordingly, the court said the defendant was entitled to a new trial, one where the blood test results cannot be introduced as evidence against him.

Stand Up For Your Constitutional Rights

Cases like the one above illustrate the importance of constitutional safeguards against warrantless, non-consensual searches. If you face criminal charges as the result of alleged drunk driving, or if you have been struck by a drunk driver in Austin, it is important you retain an experienced Austin personal injury lawyer or an Austin DWI accident attorney who can help ensure the courts and law enforcement respect your rights. Contact the Austin DWI lawyers at The Law Office Of Robert L. Buford today if you require immediate assistance.

Can You Get a DWI While Sleeping it Off in Your Car in Texas?

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DWI breath test

News stories in Texas often arise featuring people charged with driving while intoxicated (“DWI”). Rarely, however, do these stories involve individuals charged with DWI in parked vehicles. Unfortunately, in many states across the United States, including Texas, if you are under the influence and in a parked car, you may still be charged with a DWI.

Under Texas law, a individual commits a DWI when he or she is operating a motor vehicle in a public place while intoxicated. Texas law defines what it means to be intoxicated and what is considered a motor vehicle. However, it does not define the term operating. Since it does not define operating, the courts have to interpret the term and of course, they interpret it broadly. If your car is properly parked, in a designated parking area, and the engine is still running, you could be found to have been operating the motor vehicle. Likewise, if you are asleep and have the radio on and A/C blasting, or there exist other DWI indicators police look for, the court may find that you were operating the motor vehicle.

Ways to Avoid Getting Arrested for A DWI in A Parked Car

Sleeping in the driver’s seat is one of the ways that lead a police officer to believe that you were intending to drive while under the influence. Although that may not have been your intent, the police officer may choose to arrest you anyway.

DWI charges can be difficult to defend because you need to prove that you did not intend to operate the motor vehicle while you were intoxicated. If you take certain precautions, you will have an easier time fighting the charges. These precautions include:

  • Reclining the seat;
  • Sleeping in the back seat;
  • Shutting off the engine and the lights;
  • Taking your keys out of the ignition; and
  • Parking your car in a legal spot, if possible.

Ultimately, the best decision you could make is to place your keys in the trunk or outside the car. That way, the police cannot say that you intended to operate the motor vehicle while intoxicated because your keys were not easily accessible.

If you do decide to sleep it off in a parked car after a night of drinking, make sure you do everything in your power to ensure the police cannot say you were ‘operating’ the motor vehicle.

Contact an Experienced DWI Defense Attorney

With this information in mind, you can still be charged with a DWI, even if you intended to be responsible. If you are facing DWI charges, you should not hesitate to contact the Austin criminal attorneys at The Law Office Of Robert L. Buford who will challenge the prosecution’s case and vigorously do everything in their power to decrease the chances that you will face fines, jail time or a suspended license.

Above the Law?

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Above the law

Texas law enforcement is taking a hard stance on charging people suspected of driving while intoxicated (DWI) across the state, but some recent news shows that some state authorities believe that they are above the law when it comes to DWI. These cases not only highlight the fact that anyone can be arrested for DWI, but they also illustrate what indicators that police look for when determining whether they suspect a person of driving while intoxicated.

Recent Cases of County Official DWIs

Two recent arrests in the Travis County area highlight how some county officials believe that they are above the law when it comes to DWI. In March, a Travis County state district judge was charged with DWI when she and other members of the criminal justice community were coming home from a taping of Jimmy Kimmel Live. Judge Gisela Triana was arrested after she was stopped for speeding 47 mph in a 30 mph zone. She failed field sobriety tests at the scene and had an empty bottle of alcohol in the center console. The police report stated that she swayed, stepped off the line, and took the wrong number of steps during her field sobriety tests.

In addition, an Austin police officer was arrested last month for DWI with a BAC of 0.15% or more. Albert Arevalo, 37, was stopped for speeding 91 mph in a 55 mph zone on MoPac Boulevard. Police noted that he smelled strongly of alcohol, swayed, and lost his balance during the field sobriety test. He admitted to drinking six gin and tonics throughout the night and twice blew over the elevated 0.15% BAC limit at 0.178% and 0.163%, respectively.

DWI Indicators

If you have been pulled over on suspicion of driving while intoxicated, you should know what DWI factors police look for. The National Highway Traffic Safety Administration (NHTSA) researchers interviewed police officers from across the United States and developed a list of more than 100 driving cues that the authorities use to visually detect people suspected of driving while intoxicated. These predictor cues have been shown to accurately predict that a driver is intoxicated at least 35% of the time.

Before getting pulled over, police will look for problems maintaining the proper lane position, speed and braking problems, vigilance problems, and judgment problems. After a vehicle has been stopped, police look for the following indicators:

  • Difficulty with vehicle control;
  • Difficulty exiting the vehicle;
  • Fumbling with license and registration;
  • Repeating statements or questions;
  • Swaying, unsteadiness, or balance issues;
  • Leaning on the vehicle;
  • Slurred speech;
  • Slow to respond to police;
  • Providing incorrect information or changing answers; and
  • Smell of alcohol emanating from the person or vehicle.

Contact a DUI Defense Attorney

Call the office or contact us today at The Law Office Of Robert L. Buford if you have failed a DWI breath test in Austin. Our experienced Austin DWI attorneys are here to help and defend your rights through the legal process if you have been arrested for suspicion of driving while intoxicated.

Are BAC Tests Unreliable to Determine DWI?

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DWI breath test

The biggest piece of evidence in any case of driving while intoxicated (DWI) is the results of a blood alcohol concentration (BAC) test. These are chemical tests that determine a driver’s BAC through their breath, saliva, or blood. Under Texas law, it is illegal for a driver to have a BAC 0.08% or higher. However, BAC tests have come under recent scrutiny and may not be a reliable way to test for DWI.

Types of BAC Tests

In suspected DWI cases, Texas police use two types of BAC tests: a DWI breath test and a DWI blood test. In a DWI breath test, the authorities have a person breathe into a Breathalyzer machine that determines the BAC from the breath and saliva. Typically, an officer will ask a person to submit to a breath test before arrest, but this is voluntary and the driver can legally decline. However, after the arrest an officer can get a warrant that compels the driver to breathe into the machine. In a DWI blood test, the police take a sample of blood to determine a driver’s BAC. This test must be performed at the police station or the hospital and cannot be done on the road. However, an officer can compel a DWI blood test with a warrant.

Why Tests are Unreliable

Breath tests for DWI, performed on the road or in a police station, have been criticized for inaccuracies when determining BAC. False BAC readings from Breathalyzer machines can result from minor technological interference, such as a cell phone signal. In addition, breath tests have been known to misread BAC if there are other substances in the mouth, like blood or vomit, and irregular breathing has misrepresented BAC results, as well. DWI blood tests have also been scrutinized for their flaws in reading the BAC of a suspected drunk driver. People with diabetes or high blood ketones, or those taking cough medicine or herbal supplements have all reported erroneous BAC readings on a DWI blood test. If an alcohol swab is used prior to the blood draw, it can also misrepresent the results. Finally, some blood tests only check the blood serum and not the entire sample. Studies have shown that testing the serum alone can produce BAC results up to 25% higher than testing the whole sample. Beyond technicalities in the tests, there are other reasons why BAC tests are unreliable methods of testing for DWI. These tests do not take into account the alcohol tolerance, age, gender, metabolism, or weight of the individual. They also fail to consider whether the person’s BAC is rising or falling at the time of the test. High stress levels, a person’s emotional state, food, and carbonation can all also affect the results of a DWI test.

Our Firm Can Help

Call us now or contact our office today if you failed a DWI breath test in Austin or had a forced blood draw for DWI. Our experienced defense attorneys at The Law Office Of Robert L. Buford are here to help protect your rights against unreliable DWI tests. Our experience as Austin DWI Attorneys can help with your situation.