Sam Lock, Texas Criminal Defense Lawyer

Trooper Purportedly Able to Manipulate Breath Test Readings

http://www.theeagle.com/stories/102806/local_20061028003.php

DUI vs. DWI in Texas

I am often asked the difference between the charges of Driving While Intoxicated and Driving Under the Influence. 

The confusion arises because the terms are used interchangeably in other jurisdictions.  In Texas, we have both crimes on the books.  Driving While Intoxicated is the name given to the run of the mill, had to much to drink and tried to drive - case.  Driving Under the Influence is the offense committed by someone under the legal drinking age who has any detectable amount alcohol in his system.  The difference between the two will become clear to many in the Houston area during the mayor's daughter's DWI trial. 

http://chron.com/disp/story.mpl/front/4088107.html 

She is under 21, but charged with the more serious crime of DWI, where prosecutors will have the burden to show that she had lost the normal use of her mental or physical faculties because she had too much to drink. 

Don't be surprised to see the charge reduced to DUI, a class C misdemeanor.

Peter Coors and the Breath Test

Beer Magnate Peter Coors finds himself in a pickle.  http://www.denverpost.com/news/ci_4070933

The myth of ".08" is in a jam. 

The advocates of the NeoProhibition have had success in recent years in getting state legislatures to drop the "legal limit" from .10 to .08.  NHTSA got on board and retrofitted their "field sobriety tests."  http://www.nhtsa.dot.gov/people/injury/alcohol/SFST/contents.htm  There have been recent pushes by MADD and the like to drop the limit even further -- to .05.  At that point, we truly have a "zero tolerance" situation where ingesting any alcohol before operating a motor vehicle exposes one to criminal liablity.  (For more on NeoProhibition, go here- http://www.foxnews.com/story/0,2933,171383,00.html )

It may all come crashing down in a courtroom in Colorado over the next few months where prosecutors face the uphill battle of bolstering their "opinion crime" case with a marginal breath test result. 

The public and the media will follow the case of Peter Coors because of the giggle factor involved.  Coors can afford the best defense with experts from around the country and world.  Law enforcement has its hands full.  Not only is the state's case probably tough to prove, the public will be educated on the pitfalls of the machine itself, retrograde extrapolation, reference sample temperature, breath temperature, body temperature, partition ratio and the myriad of other factors that make the breath test result an arbitrary number. 

The case is also worth watching because of the policy implications involved.  I was shocked to see Coors' comments after his arrest.   http://news.bbc.co.uk/2/hi/americas/5184214.stm  I'd hazard a guess that he had not talked to defense lawyer yet at that point, and was receiving advice from corporate lawyers and watching the price of his company's stock.  At play here, Coors constitutional rights, his desire not to offend the Neo-Prohibitionists, and law enforcement backing of a mythical .08 standard.

If only Dr. Hunter S. Thompson were here to chronicle it all.

Pilots, Commercial Drivers

As seen recently in the Dallas Morning News, pilots who drink alcohol at or near the time of takeoff face stiff consequences. 

ttp://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/071106dnnatswpilot.cf1c14.html

What many people don't know is that a trucker or pilot who is arrested for driving while intoxicated AT ANY TIME is facing the total loss of his livelihood. 

The Texas legislature has even gone to the extreme of disallowing deferred adjudication on moving violations for commercial drivers who receive tickets in their personal vehicles. 

http://www.capitol.state.tx.us/tlo/78R/billtext/HB03588F.HTM

The elimination of this option is viewed by many prosecutors and judges as unfair. 

As with each added patently unfair penalty and assessment, the great equalizer is the jury trial and attorneys willing to take the cases to court.  As the courts become more clogged with people fighting convictions, perhaps the word will get back to the legislators that some of the measures enacted are ineffective.  One can only hope.

Obtaining an Occupational License

One of the biggest problems facing someone arrested for DWI conviction is the suspension of his license.  Rather than attempt to explain the detailed process from beginning to end over the phone to someone still reeling from the news that his license is suspended, I will send them the following letter about seven days before his license is suspended.

The letter serves as a good outline that a driver can use to keep street legal with all of the insurance and proper licensing that we come to expect from our fellow drivers.

The letter:

Mr. Joe Blow

San Antonio, Texas 78232

Dear Mr. Blow,

In the event that your driver’s license is suspended you may be eligible to obtain an occupational driver’s license. This license will permit you to drive to and from work and in the performance of household duties. An occupational driver’s license will typically permit you to drive twelve (12) hours a day, six (6) days a week in specified counties. We must meet the following requirements to obtain an occupational license:

OBTAIN SR-22: You must contact an insurance carrier to obtain an SR-22. This form is issued by the State of Texas and shows that you maintain financial responsibility for your automobile for the duration of your suspension. Please contact me for more information regarding this requirement.

FILL OUT SR-37: The SR-37 contains the same information usually found on your driver’s license. These forms are available in my office. It will be filed with the Department of Public Safety. You must fill out the SR-37 before I file the petition requesting the occupational license.

THE PETITION: I must draft a petition (a lawsuit) and file it with the appropriate court. In this petition I must include (1) the hours of the day you wish to drive, (2) the days of the week you wish to drive, and (3) the counties in which you wish to drive. You must sign this petition in front of a notary public. Once I file the petition, I must present it to a judge for his or her signature. County Clerks charges a  filing fee of $182 for the filing of the Petition. These filing fees are your responsibility as stated in our contract. Please contact me to discuss the exact amount. Once the petition is signed, I must have certified copies of the order made.

REINSTATEMENT AND DEPARTMENT OF PUBLIC SAFETY FILING FEE: The Department of Public Safety (“DPS”) charges a fee of $125 to reinstate your driver’s license and a $10 fee to process your occupational driver’s license. Please send a check for $135.00, made payable to Sam H. Lock. I will then write a check from my client trust account to DPS to pay for the Reinstatement and DPS filing fee. (Note: You may combine the $135.00 DPS filing fee with the County Clerk filing fee so that you only have to send one check.)

If you have any questions, please call.

                                                                            Sincerely,


                                                                            Sam H. Lock

Collateral Consequences of DWI Convictions

In August of 2005, I made a presentation for the San Antonio Criminal Defense Lawyers Association to over 200 lawyers regarding the very bad things that can happen to someone arrested for the offense of Driving While Intoxicated.   The following outline gives a sketch of many of the problems in store for someone arrested for DWI.

For someone arrested for DWI, the prospect of a conviction is daunting.  The process itself is almost beyond comprehension.  My advice to anyone facing a DWI charge is to call a qualified attorney.

The outline:

VERY BAD THINGS

Collateral Consequences to DWI Prosecution and Conviction
in Texas

License Suspensions

Occupational Licenses

The Next Go ‘Round

Insurance Considerations

Newly Enacted Laws

ALR SUSPENSIONS

Failure

Refusals

SPECIAL CLASSES:

UNDER 21,

COMMERCIAL DRIVERS

OUT OF STATE LICENSEES

POST CONVICTION SUSPENSIONS

Failure

ARC DEFINED: TRANSPORTATION CODE 524.001 (a) (1)

DWI conviction from any state.

A breath / blood refusal.

Being over the legal alcohol concentration 

SUSPENSION PERIOD IS 180 DAYS

TWO YEAR SUSPENSION – IF PREVIOUS ARC WITHIN TEN YEARS FROM DATE OF ARREST (TC 724.035)

PRE-CONVICTION - Civil Proceeding

POST CONVICTION

Transportation Code Sec. 521.241, et. seq.

Must be Verified

May be in the county of Petitioner’s Residence OR

Where the underlying offense occurred.

Duties of Clerk – Send copy to Attorney representing the State (by certified mail.)

Sec. 521.242 (b)

DETERMINATION OF ESSENTIAL NEED

FINANCIAL RESPONSIBILITY

HEARING MAY BE EX PARTE

REQUIRED COUNSELING

TC SEC. 521.248

HOURS OF DAY

DAYS OF WEEK

REASONS

NO MORE THAN FOUR HOURS IN ANY 24 HOUR PERIOD

EXCEPT: ON SHOWING OF NECESSITY: 12 HOURS IN 24 HOUR PERIOD.

THE COURT SHALL send certified copy of petition and order to DPS.

Order is "Restricted License" until 31^st day after order is signed

Upon receipt of Order, DPS issues license.

Court order in Operator’s Possession.

Practice Note: Send copy of SR-22, DIC-37, Reinstatement fee, certified copy of order to DPS.

Revocation for GOOD CAUSE

Criminal Penalty under 521.253 or DWLS

Bexar County

County Courts at Law

DIC-37

SR-22

Fees (yours, the county’s, the state’s)

Form Letters

PREVIOUS SUSPENSION WITHIN 5 YEARS OF ARREST =

 

PREVIOUS SUSPENSION FOR DWI, INTOX ASSLT., OR INTOX MANSL. WITHIN 5 YEARS OF ARREST (TC 521.251 (C) )=

PREVIOUS SUSPENSION FOR CONVICTION FOR SECOND (+) DWI, INTOX ASSLT, INTOX MANSL. W/IN LAST 5 YEARS =

The Next Go ‘Round

Sentencing Enhancements

Conditions of Bail