Most people assume that a DWI charge requires the act of driving at the time of your encounter with law enforcement. However, within the state of Texas, it is possible to receive a DWI charge when you are not actually driving a vehicle. In fact, you may receive charges even though you were not even inside of a car. While this scenario may seem ridiculous, it is a very real possibility with very real potential consequences without the assistance of a capable Austin DWI attorney.

Deciphering the Statute

Section 10 of the Texas Penal Code makes it a crime for an intoxicated person to operate a motor vehicle in a public space. It is generally a Class B misdemeanor and requires a minimum of 72 hours confinement. Even though the statute is called “Driving While Intoxicated”, it uses the word “operate” instead of the word “drive”. The legislature did not provide a definition for the term “operate,” which has opened it up to interpretation by the courts. Various Texas courts have ruled that “operate” applies when a person exerts control over a motor vehicle. As exemplified by past cases, this definition may include incidents such as:

• An intoxicated person sitting in the driver’s seat of the vehicle, with the keys in the ignition to play music on the radio; and
• An intoxicated person who is involved in a one-vehicle accident, who is not operating the vehicle at the time of law enforcement arrival, but does have control of the vehicle keys.

In both of the scenarios, the accused is not driving the vehicle at the time of arrest, but there may be probable cause to support an argument for “operation” of a motor vehicle.

Defending the Charge

When establishing a case for operation of a vehicle, the state may rely on a number of factors, including:

• Your physical proximity to the vehicle may show that you were not driving it at the time of arrest, but you had driven it recently;
• Eyewitness statements that you previously operated the vehicle; An admission of guilt; and
• Physical evidence of your having recently operated the vehicle.

When defending your case, an experienced attorney may employ a variety of tactics, based on the fact that you were not driving when the DWI arrest was made. He may attack the credibility of any eyewitness, or work to have your confession suppressed, along with any additional evidence that may have been obtained illegally.

What if the State Meets the “Operation” Requirement?

Even if the state proves that your actions fell within the parameters of “operating” a motor vehicle, prosecutors must still prove that you were intoxicated during the time of operation. This is where your proximity to the car comes into play, along with the time between any related incident and your arrest by law enforcement officials. The possibility of receiving a DWI charge for an incident where you were not actually driving is very possible. However, an experienced attorney can assist you with a successful defense. Contact the aggressive Austin DWI attorneys at The Law Office Of Robert L. Buford. We will advocate for a fair outcome, while working to protect your rights along the way.

The repercussions of a DWI conviction can be extensive. Not only are you at risk of losing your driving privileges and even your freedom through a mandatory minimum jail sentence, but the financial hit can be quite large. Why? Because if you have a DWI on your record, insurance companies categorize you as a “high risk” driver and your insurance rates may rise sharply.

How Steep Will the Premium Hike Be After a DWI?

It’s a good question and depends on a variety of factors. The car insurance company you are with and how they choose to enforce the terms of your policy will play a major role. For example, some auto insurance companies review a DWI conviction on a case-by case basis factoring in your driving history, age, length of time you’ve been with the insurance company, and so forth. Other companies have much stricter policies applying to all drivers convicted of a DWI. They may have a mandatory minimum premium increase based on a percentage of your current premium or they could even make the decision to drop your coverage.

How Does Being Classified as “High-Risk” Affect Car Insurance

If your auto insurance policy is canceled or moved, you will probably end up in a high-risk pool of drivers. Many states are required, under law, to offer insurance to these high-risk pools. In the Lone Star State, there is the Texas Automobile Insurance Plan Association (TAIPA). This was created to help secure auto insurance for high-risk drivers who could not find coverage on the voluntary market, according to the Heartland Institute. You can get an auto insurance policy through TAIPA if at least two insurers have refused to offer you insurance coverage because of your high-risk status. This is certainly beneficial to DWI drivers, especially those that already have a poor driving record, because they will at least have an option for car insurance. However, the premium is not going to be cheap. In fact, it’s quite costly for just the legal minimum amount of liability coverage.

Mitigating the Damage of a DWI Conviction

Despite the possibility of a major premium increase, a DWI conviction does not necessarily mean you will be forever marked as a “high-risk driver.” In fact, there are proactive steps you can take to try and mitigate the damage of a DWI conviction. One step is taking a driver improvement course. Some courses are offered online, while others require in-class participation. When you complete the course, you usually get a certificate that you can send to insurance companies as proof that you’re working to change your ways and improve your driving judgment. Another step is to ensure, if you are a first-time DWI offender, to never get a second DWI. The premium increase may be high for a DWI offense, but drivers with multiple DWIs are much more likely to be deemed “high-risk” and may lose their auto insurance coverage. Finally, if you’re facing a DWI charge, hire an experienced Austin criminal lawyer to advocate for your rights.

Contact an Experienced Austin DWI Defense Attorney

DWI charges can be challenged in court. Remember, the state has the burden of proving that you were intoxicated. Even if there is sufficient evidence, a seasoned Austin criminal lawyer can negotiate with a prosecutor to try and reduce the charge. Contact The Law Office Of Robert L. Buford today and tell us what happened.

Let’s say you had a DWI conviction years ago. Your driving record has been exemplary since the conviction. Can you get that conviction removed from your record? The answer is…maybe. Having a DWI conviction erased (which, in legal terms, is an expungement) depends on a variety of factors. In Texas, you must have either had your case dismissed without probation and not pled to any offense that arose out of the DWI arrest or you were found not guilty by a judge or jury, according to Tex. Code Crim. Proc. § 55.01. To make matters worse, if your DWI case was dismissed without probation, you still cannot get a driver’s license suspension removed from your record. If you were found not guilty, you have the ability to get your driver’s license suspension removed from your record. This is a big reason why it makes sense to hire an experienced Austin DWI defense lawyer to advocate for your rights and fight the DWI charge if you are not guilty. In Texas, even a probation deal will result in the DWI staying on your record.

Understanding the Expungement Process

There are procedural requirements that must be followed under Tex. Code Crim. Proc. § 55.02. According to the criminal code, if you are acquitted of the charges, the court must enter an order for expunction for every individual who requests an expunction within 30 days of the acquittal. Again, this is why you should strongly consider speaking to an experienced Austin DWI lawyer. An acquittal can help restore your record to pre-charge status.

Benefits of Having Your DWI Record Expunged

If your criminal DWI record is expunged, you will have the ability to legally deny that the DWI arrest even occurred and the existence of an order granting the expungement. In fact, post-expungement, if you are questioned under oath in a criminal proceeding about an arrest, you do not have to disclose any details of the criminal arrest. You would only be obligated to mention that the matter was expunged from your record. In addition, an expungement means that you do not need to disclose the arrest on job applications, educational applications, and applications for certain types of government benefits.

Another Option – “Sealing” Your DWI Record

Though most individuals convicted of a DWI will not be able to have their criminal record sealed under Tex. Govt. Code § 411.081, some people may be able to qualify. For example, if you or a loved one was charged with a misdemeanor DWI, the alleged offender can ask the court for an order of nondisclosure when the offense has been discharged and dismissed. However, if you or a loved one is facing felony DWI charges, you can only petition a court for an order of nondisclosure after five years from the date the offense was discharged and dismissed. Attempting to have these charges sealed makes sense because you would not be required to disclose they were the subject of a criminal proceeding on an application for employment, a school application, etc.

Speak to an Experienced DWI Defense Lawyer Today

Don’t go through the intimidating and overwhelming experience of trying to navigate the legal system on your own. Let the experienced Austin DWI lawyers at The Law Office Of Robert L. Buford help you and/or your loved ones. Call us today for a private and free case review.

A lawyer can only do so much. If you make certain decisions or take certain actions, you can severely hinder your case and make it much more difficult for your Austin DWI defense lawyer to mitigate the charges, or get you acquitted. Below are five ways to ensure you actually lose your Austin criminal defense case

1. Not Hiring an Experienced Austin DWI Defense Lawyer

It is so frustrating to see people try and fight the system alone and get eaten up by a seasoned prosecutor in court. Keep in mind, prosecutors spend their days in court. Most prosecutors enjoy arguing before a judge or jury. If you try and fight your DWI charge pro se (i.e. on your own) there is a good chance you will wind up with a guilty verdict and serious criminal penalties (along with a criminal record). Do not make this mistake. Speak to an experienced Austin DWI defense attorney to advocate for your Constitutionally-protected rights.

2. Allowing Police to Ask You Questions After You’ve Been Arrested

“You have the right to remain silent…” This is the opening salvo of the well-established Miranda warning. Unfortunately, many people do not exercise this right and decide to talk to their arresting officer on the way to the police station. Or, they talk to police officers for hours on end at the station without ever asking to speak to a lawyer. This is a huge mistake since virtually every statement you make post-arrest could potentially be used against you in court. So, if you are charged with a DWI, remain silent and ask to speak to an attorney asap.

3. Accepting the Field Sobriety Test Results

Many people think that if they blew a 0.08 or higher, they are automatically guilty of a DWI. This is simply not accurate. Sobriety test results can be challenged in court and there are numerous cases where these results were determined to be invalid based on defenses such as:

• The test operator did not have a current certification in administering the Breathalyzer;
• The Breathalyzer lacked certification; and/or
• The Breathalyzer was not calibrated correctly.

4. Ignoring the Advice of Your Lawyer

You hired an experienced, qualified DWI defense lawyer. They are working to keep you out of jail and/or to avoid a criminal record. If they give you legal advice, follow it. Unfortunately, this does not always happen. For example, when your lawyer advises you about the attorney-client privilege and the fact that you do not have to tell anyone, and should not tell anyone, your private conversations with your attorney, some people freely talk about their discussions, which may come back to hurt them if the case is tried in court. Another major mistake is being dishonest or consciously withholding information from your lawyer. For example, if you have a prior DWI conviction, that is highly probative information your lawyer must know. Do not think you can just not tell anyone and no one will find out.

5. Posting Statements About Your Case on Social Media

After you are charged by police, social media posts on Facebook, Twitter, etc. can actually be admitted as evidence against you in court. Therefore, do not post anything about your charges, about the police, or about your lawyer while your case is active. Given the advent of social media in the past few years, it seems like people do not fully realize that what you post online can, and likely will, follow you and could be shown to a judge or jury in court.

Consult an Experienced DWI Attorney Today

As you can see, there are many ways you can wind up severely hurting your Austin criminal defense case. You should contact the experienced, knowledgeable and aggressive Austin criminal defense attorneys at The Law Office Of Robert L. Buford. We will protect your rights and advocate on your behalf.

https://buford-law.com/wp-content/uploads/2015/08/man-in-jail-20010382-e1442614050379.jpg

When you are arrested for driving under the influence (“DWI”), it is imperative that you take the charges seriously. Depending on the circumstances, you could face a stiff jail sentence, large fines and high court costs. After you are arrested for a DWI, and released, there are certain things that you should avoid doing.

The worst thing you can do is fail to understand the gravity of the situation, as the effects of DWI charges may follow you throughout the remainder of your life. According to Texas law and the Texas Department of Transportation, a first time DWI offense carries a fine up to $2,000, 3 to 180 days in jail and an annual fee of $1,000 to $2,000 for up to 3 years to retain your driver’s license. If there are certain aggravating circumstances, such as receiving a DWI with a child in the car, the penalties could be higher. Below you will find five mistakes you should avoid.

Five Things to Avoid

Avoiding the following when out on DWI jail release will allow you a fighting chance to challenge the charges you are facing:

• First, you should avoid missing any court dates. You must appear at every court date the court assigns to you. Failing to appear at a court date guarantees that you will end up back in jail. The court will issue a bench warrant for your arrest and once you are arrested again, the court could place you back in jail for an unspecified amount of time.
• Second, if you refuse to blow for a breathalyzer test, your license will automatically be suspended for 180 days; however, if you fail the breathalyzer test, your license will be automatically suspended for 90 days. Under no circumstances should you drive with a suspended license. You could be arrested and face more fines. It could also negatively affect your DWI case or administrative hearing to keep your license.
• Third, to avoid driving with a suspended license, you should immediately request a hearing with the Texas Department of Public Safety once you are released from jail. You have 15 days from the date you receive the Notice of Suspension to file a request for an administrative hearing to contest the suspension. The hearing will be held within 120 days of receiving your request. However, any requests sent after 15 days will be denied.
• Fourth, avoid drinking. Drinking may be a violation of your release and you might be subject to alcohol testing, which could land you back in jail.
• Fifth, avoid posting any information related to your DWI on social media. Ultimately, anything you post can be used against you during your case.

Consult an Attorney

As you can see, there are many things that you can do wrong that could negatively impact your case. This also includes attempting to handle this on your own without an attorney. You should contact the experienced and knowledgeable Austin criminal defense attorneys at The Law Office Of Robert L. Buford who will protect your rights and aggressively advocate on your behalf.

One of the most widely known and charged offense across the United States, including Texas, is driving while intoxicated (“DWI”). Under Texas Law, an individual is charged with a DWI when he or she, while intoxicated by drugs or alcohol, operates a motor vehicle. Even if you are sleeping in a parked motor vehicle, you could still be charged with a DWI. DWI charges carry hefty penalties, fines and even significant jail time. It is important that you understand the consequences of drinking and driving, as well as relevant DWI laws in Texas.

Driving Under the Influence in Texas

Texas law indicates that a person commits a DWI when he or she is intoxicated while operating a motor vehicle in a public place. The law defines “intoxicated” in two separate ways:

• Having a blood alcohol content of .08 percent or more; or
• Not having the normal use of your mental and physical faculties due to the consumption of drugs or alcohol.

For drivers under 21, any detectable amount of alcohol in their blood subjects them to a DWI.

Texas Law Also Requires Five Things:

• First, Under Texas law, a police officer must have a reasonable suspicion that you were violating the law to stop you and requires probable cause that you are intoxicated prior to an arrest.

• Second, the arresting officer must provide you with a notice of suspension of your license. Texas law requires it. You have 15 days from the date the notice was served to request a hearing to contest the suspension or your license will be automatically be suspended for 90 or 180 days, depending on the circumstances of your case.

• Third, at the administrative hearing with the Texas Department of Public Safety, the Department must prove, by a preponderance of the evidence, that:
  • There was reasonable suspicion to stop your vehicle or probable cause to arrest you;
  • You were operating a motor vehicle in a public place while intoxicated;
  • You were placed under arrest and offered an opportunity to perform the breathalyzer or to give blood; and
  • You refused to take the breathalyzer or refused to give blood to the officer; or
  • You failed a breath or blood test by registering an alcohol concentration of .08 or greater.

• Fourth, Texas law has stiff penalties for first, second and third time offenders. You could face up to $10,000 in fines, 10 years in prison, and your license could be suspended for up to two years.
• Fifth, the prosecution has to prove that you: operated a motor vehicle; under the influence of drugs or alcohol; in a public place; in the state of Texas; on the date of your arrest.

Consult an Attorney

If you are facing DWI charges, you should not hesitate to contact the Austin criminal defense lawyers at The Law Office Of Robert L. Buford who will protect your rights and hold the prosecution to its high burden. Reach out to us today for a consultation on your case.

When stopped for DWI, it used to be that you should simply refuse everything. Refuse the field sobriety tests, refuse the breath test, refuse the blood test, say as little as possible and ask for a lawyer. Assuming you had more than a few, this used to be a good plan (if you really only had two beers, you should probably be giving a blood test).

With the advent of search warrants for blood in DWI cases, this old paradigm can now end up making you much worse off. In Austin, Texas, where our practice is located, this started with “no refusal” weekends. APD started designating certain holidays or events (July 4 Weekend, Memorial Day Weekend, SXSW, etc.) as “no refusal” weekends. On “no refusal” weekends, if DWI arrestees did not give breath tests, the arresting officer would apply for a search warrant to take their blood. Over time, APD’s guidelines for when to get a search warrant for blood have gradually broadened outside of only “no refusal” weekends and holidays.

Currently, if you are stopped by APD for DWI and refuse any of their field sobriety tests—including the portable breath test (if one is available)—they will typically apply for a search warrant for blood. This is only absolute if there is a DWI enforcement officer involved. If there is not a DWI enforcement officer involved, depending upon the circumstances, you may still avoid a search warrant (for example: If you are stopped by an officer with less than 2-years experience, he or she will handle the arrest instead of calling for a DWI enforcement backup. Typically they will not get a search warrant even if you refuse some or all of the tests). If you have prior conviction for DWI, or if there is a collision, they will usually apply for a warrant even if you cooperate.

So, the game now is to avoid a search warrant for blood. Your best shot at this is to cooperate and perform all of the field sobriety tests (eye test, walk and turn, one leg stand and sometimes the modified Rhomberg test), and also to give a portable breath test if requested. Portable breath test results are not admissible in court, but they don’t always inform you about this (it is admissible for them to say it showed you had alcohol in your system, but they can’t say the number). If you are lucky, this will give you the best chance to avoid a search warrant for blood.

The rationale for this change in conduct is simple: Doing the field sobriety tests does give them ammunition to use against you, but poor balance is much easier to explain to a jury than a blood test where you are 2x the legal limit.

If it’s a “no refusal” day, you can’t get out of a search warrant for blood unless you give a breath test, so you may as well give a breath test. Breath tests are more susceptible to error than blood tests and, accordingly, easier to get jurors to bring into question.

In 2009, Texas legislators passed a law that allows a police officer to conduct a forced blood draw when a person is suspected of driving while intoxicated (DWI) in certain situations. However, many defense attorneys, legal scholars, and advocates have voiced concerns over the legality of a warrantless forced blood draw during a DWI.

Texas DWI Forced Blood Draw Law

Texas Code Section 724.012 dictates when a police officer is allowed to draw blood without a warrant during a DWI. Under the law, a forced blood draw can take place if the driver refuses to voluntarily give a sample for testing and another person has died or will die, has suffered from serious bodily injury, or suffered bodily injury and has been transported to the hospital for medical treatment.

In addition, a forced blood draw can take place if the driver was arrested for DWI with a child passenger or if the officer believes that the driver will be arrested for felony DWI because of prior convictions. Finally, the officer can force a blood draw if it is believed that the driver committed DWI and was previously convicted of either intoxication assault or DWI with a child passenger. In all other cases of suspected DWI, the police officer must get a warrant for the taking of blood if the driver has refused to voluntarily give a sample.

Legal Concerns with Forced Blood Draw

In 2013, the Supreme Court of the United States shed some light on the issue of warrantless blood draws during a DWI in the case of Missouri v. McNeely. A divided court ruled that the natural dissipation of alcohol in the blood is not enough to warrant a forced blood draw during a DWI; however, the court did say that other exigent circumstances could possibly allow for the warrantless test.

Other cities across Texas, such as San Antonio, have changed their procedures to require warrants for all blood tests during DWI cases. Every case of DWI must now be judged on its own merits and facts in order to determine whether the warrantless forced blood draw was legal, and some prosecutors are encouraging officers to get warrants for all blood draws in non-felony DWI cases.

There have also been questions of constitutionality in regards to forced blood draws under the Fourth Amendment search and seizure provisions. Under the law, this Amendment protects citizens from them or their property being taken without a warrant issued with probable cause, except in very limited circumstances. The forced blood draw potentially violates this amendment by allowing the warrantless taking of blood that may not meet the specific exceptions of the law.

Contact Our Office Today

If you were forced to have your blood drawn during a DWI stop in the Austin area,don’t face this case alone. Our dedicated attorneys at The Law Office Of Robert L. Buford may be able to help. Call the office or contact us today for a free and confidential consultation of your case.

As a deterrent to drivers that have been convicted of driving while intoxicated (DWI), the court may impose the penalty of the installation of ignition interlock devices in every vehicle that the driver uses. However, recent developments in the technology of ignition interlock devices have also caused serious problems for drivers even when they are obeying the law.

Use of Ignition Interlocks

Under Texas law, Section 521.246 states that if a person has been convicted of DWI, the judge may restrict the driver’s use of the vehicle with the installation of an ignition interlock device. The interlock device may be installed if the driver has two or more DWI convictions or has had their license suspended because of a DWI. The installation of these devices is commonplace when judges determine the penalties for a conviction of driving while intoxicated.

The ignition interlock device is installed at the expense of the driver by a state qualified service center and remain in place for at least half of the time of supervision. The only time that the driver may use a vehicle without the use of the interlock device is if the vehicle is in the scope and course of employment, the vehicle is owned by the employer, the employer knows of the driving restriction, and proof of that notification is in the vehicle.

Developments in Ignition Interlocks

The technological development of ignition interlock devices has come a long way, but problems persist in their use. When an ignition interlock device malfunctions, it can cause serious problems for the driver and their loved ones. It can prevent people from getting to school, work, home, or even to the hospital in an emergency situation. Furthermore, it can present incorrect data to the authorities for every false read and malfunction that happens with the equipment.

In 2008, the Vice President of the Alliance of Automobile Manufacturers stated that even if ignition interlock devices met Six Sigma standards, or only having 3.4 defective parts per million, it would still mean that there are 4,000 misreadings per day. Realistically, the defect rate is probably around the Three Sigma standards, or 2,700 defects per million, which causes nearly three million misreadings per day across the country.

Other developments in ignition interlock devices have raised legal and privacy concerns for the drivers involved. New technology in ignition interlock devices records each breath sample given and also tracks how many times a driver attempts to start the vehicle after consuming alcohol. The National Highway Traffic Safety Administration is seeking to further develop ignition interlock technology be installing cameras inside the vehicle and wireless transmission of interlock data directly to police in real time.

Our Attorneys Can Help

At The Law Office Of Robert L. Buford, we understand the problems that can come with ignition interlock devices and are here to help. Call the office or contact us today for a private and free review of your case. Our Austin DWI Attorneys have successfully helped clients throughout the Austin area that are faced with issues involving DWI.