Fort Worth DWI Attorneys

DWI Charge Did Not Include a Year in the Allegation

Louis Jarvis, Jr. and his wife Jennifer Jones were charged with driving while intoxicated arising out of separate but related incidents on the same evening. Both pled no contest to the charges against them. But before they were found guilty, it was discovered that neither complaint against Jarvis or Jones alleged a year that the offense was committed. The trial court granted their motions to acquit. The State appealed.

The trial court stated, “The date of an offense is a key element of the offense which must be pled and proved. There is no question that it was not pled in this case nor was any trial amendment requested to amend the Information to amend the pleadings. It is my belief that the law is very clear in this case, that the State accepted its burden of proof and failed to meet it.”

The State filed a motion for a rehearing in the two cases and argued that “acquittals could not be entered because jeopardy had not attached, the trial court had never accepted the no-contest pleas and found the defendants guilty, and effectively dismissing with prejudice the prosecutions was improper.” The trial court denied the motions for rehearing. The State appealed.

10th Court of Appeals Holds that the Acquittals were Actually Dismissals

The Tenth Court of Appeals then reviewed the appeal. The Tenth Court of Appeals disagreed that the State had accepted a burden of proof. The Court held that the State is not required to introduce any evidence to support a plea to a misdemeanor and that the trial court has not authority to weigh the sufficiency of the evidence in a guilty plea to a misdemeanor case. The Court found that the Trial Court’s problem was with the State’s charging instruments, not with the State’s evidence. The Appellate Court concluded that this was not an acquittal but was a dismissal with prejudice without the State’s consent.

This might sound like the same outcome, but it is in fact very different. A dismissal, usually occurring before trial begins, means that a case can be tried again so long as the statute of limitations has not expired. Whereas, an acquittal means that a trial was held (and jeopardy attached) and now the defendant cannot be tried again for this matter. Though these seem like subtle nuances, the difference between an acquittal and a dismissal can have huge implications on the defendant.

Double Jeopardy Does Not Bar Further Prosecution

The Tenth Court of Appeals went on to determine whether Jeopardy attached in Jarvis’s case. The Court determined, “even if jeopardy attached, because, as we have held, the trial court granted a defense motion to dismiss the prosecution on a legal basis unrelated to guilt or innocence and ‘without ultimately addressing the issue of guilt or innocence, there is no double jeopardy impediment to the State’s appeal.’” In essence, because the cases concluded with a DISMISSAL and not an ACQUITTAL, the defendants can now be retried under a new information that alleges the proper date.

For more information, read the court’s full opinion in State v. Jarvis.

Traveling to Canada, Eh?  Travel Plans for Some Americans May Be Foiled as Canada Cracks Down on DWI Arrests and Convictions

Do you have a DWI conviction in Texas (or anywhere in the United States)? Are you traveling to Canada any time soon? If you answered “Yes” to both of these questions, you may be in for a surprise at the border. Even if you have recently been acquitted of a DWI charge, you may still be turned away and deemed “criminally inadmissible for entry.” This article will explain the law and provide some solutions if you find yourself in this dilemma.

Canada’s Immigration Laws Create Anxiety for Americans with DWI Charges

Recently, Canada enacted strict immigration laws making entry into the country by car, plane, train or boat more difficult for United States passport holders who have a DWI arrest or conviction on their record. Regardless of whether the arrest or conviction was a misdemeanor charge, whether you plan to drive while in Canada, or whether the charge happened when you were a juvenile, any DWI charge at all could cause you to be turned away at the border, further damaging chances for success in all Canadian immigration programs for life. Bottom line: travelers with any type of DWI arrest or conviction will face enhanced scrutiny by the border patrol and must comply with additional legal requirements set forth by the Canadian government for entry. It is a better strategy to be proactive and prepared before traveling, instead of reactive and defensive once “caught” at the border.

Unlike the division between federal and state powers in the United States with regard to law enforcement, Canadian criminal law is solely a federal responsibility. As a result, criminal laws are uniformly interpreted and enforced throughout all of the Canadian provinces. Traveling to a different province in the hope of more leniency because of different criminal laws will not be helpful.

The federal Canadian Immigration and Refugee Protection Act (“IRPA”) governs immigration admissibility into Canada. Section 36(b)-(c) of IRPA states, “a permanent resident or a foreign national is inadmissible on grounds of serious criminality for having been convicted of an offense [or committing an act] outside Canada that, if committed in Canada, would constitute an offense under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years.” Basically, IRPA converts any DWI charge or conviction from the United States into a “serious criminal offense” in Canada and allows Canadian authorities to deny entry into the country at border checkpoints on roads, railways, airports, and maritime ports.

Generally speaking, Canada views DWI offenses—even minor offenses—very seriously. However, there are a few options available for travelers who have a DWI on their record. If a traveler wishes to apply for relief, Canadian officials will assess the following: number and type of offense(s), when the sentencing for the offense(s) was completed, and the severity of the offense(s). The three solutions below are the most popular options for relief for travelers with DWI history, however, they are not an exhaustive list of all of the application and appeals procedures, so please consult an attorney for specific details on your particular case.

Solutions For Gaining Permission to Enter Canada with a DWI

Option 1: The Temporary Resident Permit (“TRP”)

The TRP allows a traveler with a DWI to gain entry Canada on a temporary basis. The permit can be issued for any length of stay, up to a period of three years, and the traveler must state the reason for the visit (for example, family or school). Travelers should apply for the TRP if their most recent offense occurred within the last five years. According to the Canadian Immigration Newsletter, this type of permit may take six months to a year to process.

Option 2: Criminal Rehabilitation

Travelers seeking to permanently resolve their inadmissibility issues can apply for Criminal Rehabilitation. Essentially, the traveler with a DWI charge or conviction is asking the Canadian government to forgive their DWI history. In order to be eligible, more than 5 years must have passed since the completion of one’s most recent sentence (which may have included alcohol classes, counseling, fines, jail or prison time, community service, community supervision, driving courses, probation, etc.). Rehabilitation applications can take a year or more to process. It is possible to have a TRP while one is applying for Permanent Criminal Rehabilitation, so that one has the ability to travel to Canada in the interim while waiting on the resolution of the Criminal Rehabilitation application.

Option 3: Deemed Rehabilitation

If a traveler has only one single DWI conviction where more than 10 years have passed from completion of the full sentence (for example jail or prison time, fines paid, reinstatement of driver’s license, etc), an individual may be deemed rehabilitated by virtue of the time that has elapsed. However, even if you fit this category, it is probably still a good idea to have prepared an affidavit or letter explaining the incident to Canadian border officials because full disclosure is critical to overcoming the barriers to entry. Trying to hide a conviction or denying altogether that you have one are sure fire ways to be denied entry permanently into the country.

Getting into Canada with a DWI is not as easy as showing up to the border checkpoint with a valid passport and a smile. Don’t be caught by surprise at the border! To increase your chances of admissibility into Canada, it is a good idea to talk with an attorney who will help you take the proactive steps before your trip so that you have the greatest possible chance of gaining approval for entry.

Judge Deborah Nekhom to preside over Tarrant County's new DWI Court Program for Misdemeanor DWI Cases

Tarrant County has many specialty court programs for various types of criminal cases, but for DWI cases, the only specialty program available was limited to felony-level cases - the Felony Alcohol Intervention Program (FAIP). Not anymore. After much debate, Tarrant County started a new specialty court designed for misdemeanor DWI cases (it is not currently listed on the county's website). The program officially began on March 30, 2016.  Judge Deborah Nekhom in County Criminal Court 4 is the presiding judge over the new DWI Court and she is dedicated to making it a success.

DWI Court is Designed for High-Risk / High-Need Offenders

The goal of the new DWI Court is to identify high-risk DWI defendants and intervene so that they do not end up with a felony DWI down the road. With the help of defense attorneys and clinical specialists, the program seeks to identify defendants with significant substance abuse issues, who are in need of serious help. While the specifics of the program are still being ironed out, our firm has been told that there will be strict oversight and accountability for all participants so that they can have the best chance of successfully completing the program and their DWI probation.

What are the benefits of the Tarrant County DWI Court?

The main benefit of participating in the new DWI Court is that participants will receive the counseling and support they need to overcome their addiction and live a health, productive, alcohol-free and drug-free lifestyle. In addition, some of the following benefits have been discussed and are being implemented:

• Probation time is reduced after completion of the program, allowing participants to enter into a non-reporting status;
• Waiver of DWI fines (up to $4,000)
• No program fees
• *Dismissal of the underlying DWI charge and allowance for a Non-Disclosure (*this expires on 1/1/17 with changes to the Texas Government Code)

Several other benefits are being considered and are not ripe for public discussion at this point.

How Do I Get a Client into the DWI Court?

If you have a client that would be a good candidate for misdemeanor DWI Court, you should get him or her an assessment ASAP to determine whether they are classified as high-risk / high-need. You should then discuss the option of DWI court with the presiding judge of your client's DWI case. If, after seeing the assessment, the judge agrees that DWI court is a good option, he or she will transfer the case to CCC4 after your clients enters a plea of guilty to the DWI.

Contact Us for More Information About DWI Court

I realize that this article does not provide a lot in the way of specifics about the new program, but it only started yesterday and there are not a lot of specifics to publish at this point. If you have some questions, our DWI defense attorneys would be happy to answer them if we can. Contact our office at (817) 993-9249.

What you need to know about No Refusal Weekends in Texas | Fort Worth DWI Attorneys

Throughout the year, as various holidays approach (Christmas, New Year's, Super Bowl weekend, 4th of July, etc.), we receive questions about "No Refusal Weekends," in which police agencies crack down on driving while intoxicated or DWI. It is important that Texas motorists understand the rules of the road, so that every holiday season remains merry and bright. Many have seen the “No Refusal” notices on electronic road signs, heard the “No Refusal” advertisements on the radio, or watched stories on the news related to “No Refusal" for suspected drunk driving. What is “No Refusal” and how does the law impact your holiday travel? Understanding a few basic things about the law could help you in the event of a traffic stop or a detention by a law enforcement officer.

What is No Refusal Weekend?

No Refusal Weekend refers to a short period of time, typically a holiday weekend or the weekend of a special event, such as the Super Bowl, where law enforcement advertises the ability to conduct routine traffic stops, detaining motorists for suspected DWI. During the stop, law enforcement requests a blood or breath sample, and, if the motorist refuses to comply, law enforcement immediately contacts a judge or magistrate who is designated “on call” during the No Refusal time frame. If the law enforcement officer conveys to the judge that (1) there was reasonable suspicion to detain the motorist for a traffic or criminal offense, and, (2) there is probable cause to believe the motorist is driving under the influence of drugs or alcohol, then the judge quickly issues a search warrant for the sample. Tex. Transp. Code §§ 724.011(a), 724.012(b), 724. At that point, law enforcement may call for a phlebotomist to take the sample on site, or may transport a motorist to a facility to obtain the sample. If all goes according to plan, “no refusal” speeds up the process by which law enforcement obtain samples used for DWI/DUI arrests. Further, the sample becomes evidence for trial.

What is the purpose of No Refusal Weekend?

The entire No Refusal process from detention to arrest is faster in theory, the goal being to catch motorists who are driving under the influence quickly, and to capture the highest blood alcohol content (“BAC”) possible. In Texas, a BAC level of .08 is considered legally intoxicated. No Refusal Weekend differs from a DWI stop on regular days by it’s speed — the quick phone call to an “on call” judge who is waiting by the phone to issue warrants — and it’s deference to law enforcement in the moment. So what does this mean for you, the Texas motorist?

You have the right to refuse blood and breath tests initially.

The term No Refusal sometimes confuses motorists. Many believe they cannot refuse a law enforcement officer’s request for a sample during a No Refusal period. Not true. On No Refusal Weekend motorists still have the right to refuse to provide blood and breath during a traffic stop. However, if law enforcement obtains a search warrant for blood, the motorist must comply; failure to comply may result in additional charges. Once the officer has a warrant in hand, the rules change. But before the officer obtains a warrant, you can refuse to provide breath or blood and you may refuse to submit to field sobriety tests. For notifications about when No Refusal Weekends begin in the Dallas Fort Worth area, and to know your rights if you are stopped by an officer, download our free App from the App Store or Google Play — know your rights before you go out!

*Note: Refusal of a breath or blood test may result in temporary loss of driving privileges, even if the officer later obtains a warrant to conduct the search.  The courts will typically grant an occupational driver's license to work and household tasks.

Warrantless searches for blood alcohol content in DWI cases violate the Fourth Amendment.

The No Refusal law comes from an “implied consent” provision in the Texas Transportation Code. The 2007 law states, “if a person is arrested for...operating a motor vehicle in a public place…while intoxicated…the person is deemed to have consented…to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance.” Tex. Transp. Code §§ 724.011(a), 724.012(b), 724. However, in 2014, the Texas Court of Criminal Appeals held that “warrantless, nonconsensual testing of a DWI suspect's blood does not…fall within any recognized exception to the Fourth Amendment's warrant requirement, nor can it be justified under a…Fourth Amendment balancing test.” State v. Villareal, PD-0306-14 (Tex. Crim. App. 2014).  See also, the US Supreme Court's opinion in Missouri v. McNeely. In summary, a motorist may refuse a blood or breath test upon an initial request by law enforcement, but after a warrant is obtained from a judge, a motorist may not refuse at that point because it is mandatory—hence the name No Refusal.

Please take the time to know your responsibilities and rights before heading out on No Refusal Weekends in Texas. Download our App on the App Store or on Google Play for the latest information on No Refusal Weekends. Have a safe and happy holiday season! This article is for educational purposes only and does not take the place of legal advice. If you are in need of a DWI attorney, please contact our office for a free consultation at (817) 993-9249.

Is a Texas Public Intoxication charge a serious offense? What is the Possible Punishment for a PI in Tarrant County?

We often receive calls or emails from people in Tarrant County who have been arrested for or cited with Public Intoxication (PI) in Fort Worth. Typically, they contact us to determine how serious a PI charge is in Texas and what the possible punishment might be. They want to know whether this is something they should handle on their own or whether they need a criminal defense attorney to help.

Generally, Public Intoxication in Texas is a Class C misdemeanor. Some might tell you that a Class C misdemeanor is the same as a traffic ticket and that is somewhat true. However, some Class C convictions can have a much larger impact on your future than a simple speeding violation. So when someone asks me whether they need an attorney to help them handle a PI, I tell them yes. You won't need to pay an arm and a leg, but a criminal defense attorney can help ensure that your rights are protected throughout the process and can, hopefully, set your case up for a dismissal and an expunction down the road.

Public Intoxication Punishment When the Offender is 21 Years of Age or Older

Section 49.02(c) of the Texas Penal Code provides that Public Intoxication in Texas is a Class C Misdemeanor, which is punishable by a fine not to exceed $500.00. However, if a person has two prior Public Intoxication convictions on their record, a third PI can be enhanced to a Class B misdemeanor, which has a range of punishment of up to 180 days in the Tarrant County jail and a fine up to $2,000. This enhancement provision is one of the big reasons that it pays to hire an attorney for each and every Public Intoxication violation in Texas.

Should You Plead Guilty to a Public Intoxication Charge in Texas?

Sure it is easy to just plead guilty, pay the fine, and get on with life. However, a conviction for a PI, even though it is only a Class C offense, can have a lasting negative impact on your job prospects, military or college admissions, and more. As stated above, a PI conviction can also count toward a future enhancement charge or possible even evidence during sentencing in a DWI trial. If you do plead guilty, please do so after consultation with a criminal defense attorney in your area.

Public Intoxication Punishment When the Offender is Under 21 Years Old

There are different rules for persons under 21 in Texas. As you probably know, person under 21 are not allowed to consume any amount of alcohol, so the legislators drafted special rules for them. Section 49.02(e) of the Texas Penal Code Section relates to minors and states that minors would face the same punishment as if they committed an offense under Section 106.071 of the Texas Alcoholic Beverage Code. Here are the highlights for you:

• A person under 21 can be enhanced to a Class B misdemeanor for a 3rd PI, just like a person over 21 can
• A first time conviction for Public Intoxication can result in a driver’s license suspension.
• The fine for PI for a person under 21 is between $250 and $500.
• Mandatory community service.
• Alcohol education course or alcohol awareness program.

Fort Worth Public Intoxication Defense Attorneys

If you have been arrested in Tarrant County for Public Intoxication, contact our Fort Worth public intoxication defense attorneys today for a free consultation of your case. We can help you get your PI dismissed and then help you get the entire thing expunged from your record.  Call us today at (817) 993-9249.

When I think of someone impersonating an attorney, my mind goes to Joe Pesci and My Cousin Vinny.  In the movie Vincent Gambino only impersonated a criminal defense lawyer (not a public servant) so nobody seemed to care (except the judge), but in Texas, Impersonating Public Servant (including a district attorney) is a serious matter.  Robert Cornwell found this out after he pretended to be a Dallas County Assistant District Attorney in hopes of helping his friend with a DWI case.

In May of 2012, Robert Cornwell called Montgomery County Assistant District Attorney Kourtney Teaff, identifying himself as an assistant district attorney from Dallas County, attempting to “resolve [his friend’s] [DWI] case.” Cornwell claimed access to criminal histories, case files, and fingerprint cards. He mentioned speaking with governmental offices, and prosecuting his nephew for drug possession. Cornwell insisted on using his personal cell phone number because he and Teaff “were on the same team.” Becoming suspicious of the “highly unusual” requests coming from another district attorney, Teaff recorded the conversations. According to the trial court, Cornwell always used his real name, he had never been an attorney in Texas, he never attempted to claim official authority over Teaff, and he intended that “Teaff should consider the requests a personal favor.” Cornwell was sentenced to two years imprisonment for impersonating a public servant.

See the opinion in Cornwell v. State

What does "Impersonating a Public Servant" mean in Texas?

Impersonating a Public Servant is a Third Degree Felony with a punishment range of 2-10 years in prison and up to a $10,000 fine.  A person violates Section 37.11(a)(1) of the Texas Penal Code when the person impersonates a public servant in combination with the requisite intent...[which] can be satisfied with either the submission theory (“with intent to induce another to submit to his pretended official authority”) or the reliance theory (“with the intent to induce another…to rely on his pretended official acts.”).

Cornwell appealed to the Court of Appeals, arguing that the evidence was insufficient to show either theory of intent—submission or reliance—because he did not persuade Teaff to submit to any asserted authority he might have over her. The Court of Appeals rejected Cornwell’s argument, “concluding that the evidence was…sufficient to support a jury finding that he had impersonated a public official with intent to induce another to rely on his pretended official acts—the reliance theory.” Cornwell then petitioned the Court of Criminal Appeals (“CCA”) for discretionary review.

Here, the CCA determines whether the Court of Appeals was incorrect in misconstruing the meaning of the Section 37.11(a)(1) of the Texas Penal Code, as only “a few Texas appellate courts have directly addressed the reliance theory of intent, and specifically, the meaning of pretended official acts.” See Ex Parte Niswanger, 335 S.W.3d at 617 & n.11; Tiller v. State, 362 S.W.3d 125, 128 (Tex. App.—San Antonio 2011, pet. ref’d.); Tovar v. State, 777 S.W.2d 481,489 (Tex. App.—Corpus Christi 1989, pet. ref’d.).

The CCA Clarifies what "Impersonating" means (and doesn't mean).

The CCA explained that Section 37.11(a)(1) can be broken down into two parts: the culpable act (actus reus, the bad act) and a culpable mental state (mens rea, the guilty mind). To violate the statute, the State must prove:

1. that the impersonation happened and
2. that the impersonator had the specific intent to induce another to submit or to rely upon.

“An accused may not be convicted on a simple showing that he falsely held himself out to be a public servant.”

Because it was undisputed that Cornwell did impersonate a public servant—an assistant district attorney from Dallas County—satisfying the first part of the statute, the CCA focused on Cornwell’s mental state, specifically the reliance theory—the evidence that shows Cornwell’s intent to induce another to rely upon his pretended official acts. The CCA explained that Cornwell attempted to persuade Teaff he was “an experienced assistant district attorney by relating various claims of conduct he had undertaken as an assistant district attorney” namely, “putting his nephew in jail, reviewing case files, and investigating matters in the capacity of assistant district attorney.” The CCA is adamant that, “the only reason [Cornwell] could have had for relaying these pretended official acts to Teaff was to enhance the credibility of his claim to be an assistant district attorney.” “By calling and speaking to an assistant district attorney as a member of the same team, [Cornwell]…hoped to gain [Teaff’s] trust and goodwill.” Further, Cornwell did not ask for favor[s] in his capacity as a private citizen or concerned friend, rather, he asked under the guise of being an assistant district attorney. The CCA states, such “purported actions exceed mere false identification as a public servant.” The CCA agreed with the Court of Appeals, affirming Cornwell’s conviction and sentence.

There are no shortcuts to due process. The Texas Penal Code prescribes strict punishment for those impersonating officers of the court. There is no doubt that criminal charges and allegations can make the accused feel panicked and overwhelmed, however, the old adage “desperate times call for desperate measures,” will not hold water in court where impersonation is concerned. If you or a loved one are facing criminal charges, contact an actual Texas attorney who will explain the proper steps in dealing with the legal system. Contact our office today for a free consultation at (817) 993-9249.

While conducting a preventative patrol on the Fourth of July in 2013, a Fort Worth police officer stopped at a red light beside Cameron Byram’s vehicle. Both vehicles had the windows rolled down. The officer testified at trial that he noticed a female passenger in Byram’s car “hunched over…[and that he]…didn’t see any movement at all [from] the female.” The officer smelled alcohol coming from Byram’s car, and felt Byram was “not attending to the female passenger.” The officer shouted over to Byram, asking if she was alright, but Byram faced forward and drove away when the light turned green. Believing the female passenger needed medical attention, coupled with Byram’s actions “as an attempt to avoid contact with the police,” the officer stopped Byram’s car to conduct traffic stop. The officer checked on the passenger and called for medical attention, which she later refused. Next, the officer investigated and arrested Byram for driving while intoxicated (DWI). The officer testified that Byram had not committed a traffic offense, nor were there any technical violations on Byram’s car—he only stopped the car to perform a safety check.

Byram v. State (2nd Court of Appeals - Fort Worth, 2015)

***UPDATE - This case was REVERSED by the Texas Court of Criminal Appeals in 2017. See opinion.

After his motion to suppress the evidence for the DWI charge was denied, Byram entered a guilty plea. The trial court assessed punishment at ninety days in jail and a $750 fine, but suspended the sentence, placing him on community supervision for eighteen months. Byram appealed.

The issue before the Fort Worth Court of Appeals is whether the community caretaking exception to the Fourth Amendment applies to the facts of the case, or, whether the police officer had reasonable suspicion to stop Byram.

The Fourth Amendment provides a safeguard against unreasonable searches and seizures. U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). A warrantless arrest is considered unreasonable unless it fits into an exception, such as the community caretaking exception. Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 2135 (1993); Torres, 182 S.W.3d at 901. A search or seizure “is not unreasonable” when community caretaking is the goal, however, the exception is “narrowly applied” in the “most unusual of circumstances.” Wright, 7 S.W.3d at 152.

“Courts consider four non-exclusive factors in determining whether the officer’s belief that the defendant needed help was reasonable: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others.” Corbin v. State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002).

First, the Court of Appeals concludes that the passenger did not exhibit distress. “The passenger did not appear to be in any great distress, she was located in a busy area of town where there were nearby hospitals, she was not alone [in the car], she was in public, and she did not appear to be a danger to herself or others.” Further, the Court of Appeals states, “We…cannot conclude that the…community caretaking exception, when applied to a hunched over passenger…indicates that the passenger presented a danger to herself or others.”

Second, the Court of Appeals determines that the officer lacked reasonable suspicion to be able to perform a safety check. “[While] we do not question the good faith of [the officer’s] subjective suspicion that Byram might have been involved in an alcohol-based offense…so long as consumption of alcohol is not illegal…permitting…investigation of persons for alcohol-based offenses solely on whether the odor of alcohol is present invites unwarranted police intrusions.” Byram’s traffic stop violated his Fourth Amendment rights.

Justice Sue Walker dissents, stating the passenger was exhibiting signs of distress because she “was not moving and appeared unconscious.” The passenger was also in a vehicle driven by a man “who appeared unconcerned about her well-being.” The passenger’s access to assistance was doubtful because Byram did not respond to the police officer’s question about her condition. Lastly, the passenger was a danger to herself because she appeared unresponsive and unable to ask for help. “Thus, all four factors…support the reasonableness of the officer’s belief that she needed assistance.”

Law enforcement officers must abide by local, state and federal procedural and substantive laws when conducting traffic stops and arrests. If you or a loved one is facing DWI charges or traffic violations, please contact our office today for a free consultation at (817) 993-9249.

Let me make an admission...sometimes we lose at trial. There, I said it. We don't win every case. Sometimes the evidence is not in our favor. Sometimes the State is able to prove every element of the alleged offense. And we typically know that going into it.

It begs the question, "Why take the case to a jury trial if you suspect you are going to lose?" Here's why...because in many situations, going to trial is the only way to get a good result.

For instance, we had a client that was charged with a low level misdemeanor offense. The State was offering a plea bargain of 18 months probation, a $1,250 fine, and numerous classes in exchange for a guilty plea. We considered this offer to be too steep in relation to the alleged offense. Our client agreed. But the State was not willing to budge on the offer. So we set it for trial.

After a hard fought trial, the jury came back with a guilty verdict, which is what we suspected all along. Then we went to the judge for punishment. The State continued to recommend 18 months probation and a $1250 fine. The judge, however, awarded our client 2 days of labor detail and a $750 fine. Two short days later, the entire ordeal was but a fleeting memory for our client. No probation. No monthly reporting. No random drug tests. No classes.

We would have never received such a low punishment offer from the State. We also would have never received such a low sentence from the judge if we hadn't gone to trial and filled her in on the extenuating and mitigating circumstances of the case and our client.

In criminal defense, a moral victory is still a victory and sometimes you win by losing.

Can I be Arrested for DWI for Sleeping in My Car?

One of the requirements for a DWI in Fort Worth is straightforward--the intoxicated individual must be "operating" a vehicle while intoxicated. Any DWI attorney in Fort Worth would tell you that basic requirement. The Texas Court of Criminal Appeals recently considered the question of whether an individual who is passed out in a running, yet stationary, vehicle is "operating" the vehicle for DWI purposes. In Murray v. State, the court answered in the affirmative.

Chad Murray was passed out in his running truck in the early hours of the morning. Deputy James McClanahan observed Murray's truck with its lights on, parked partially on the shoulder of Highway 22 and partially in a driveway near a fireworks stand. Deputy McClanahan observed exhaust coming from the truck but could not see anyone inside. The Deputy approached the truck and saw Murray asleep in the driver's seat. The truck was indeed running. The transmission was in "park," and the radio was on high volume. Deputy McClanahan finally succeeded in waking Murray up and, after Murray's bungled attempts failed, in obtaining Murray's ID. The deputy reported that he immediately smelled alcohol in the truck when Murray opened the window and that Murray appeared very intoxicated. Murray failed a field sobriety test and was charged with DWI.

At trial, Murray was found guilty and sentenced to one year in jail and a $1,000 fine. The jail sentence was suspended, and Murray was placed on two years of community supervision. Murray appealed his conviction to the Seventh Court of Appeals, arguing that there was insufficient evidence at trial to prove that he was actually operating his truck and that he was, therefore, not guilty of DWI. The court of appeals agreed and reversed Murray's conviction, holding that, although it was possible to infer from the circumstances that someone drove Murray's truck to the location where it was found, there was no evidence as to when that occurred or whether the driver was intoxicated at the time. The Prosecuting Attorney appealed to the Court of Criminal Appeals based on the question of whether Murray could have been found guilty of DWI without direct evidence that he was operating a vehicle while intoxicated.

The CCA took exception to the lower court's conclusion, pointing to evidence that the vehicle was running, that Murray was in the driver's seat, that Murray was the only one in the vehicle and that he was the only person in the vicinity. The court also pointed to the fact that there were no alcoholic beverages or containers in the vicinity and that the Deputy's conclusion that Murray was very intoxicated was reasonable; Murray even admitted to the Deputy that he had been drinking. Because Murray was intoxicated, no one else was around, and there was no alcohol in the area, the court found it reasonable for the jury to infer that Murray had driven his truck to the location on Highway 22 and had done so while intoxicated.

Justice Meyers disagreed and in a dissenting opinion argued that allowing Murray's DWI conviction to stand was comparable to convicting someone for possession of marijuana based solely on the individual being high and smelling of marijuana. Justice Meyers believed that being passed out behind the wheel of a running vehicle is not enough to be considered "operating" the vehicle; operation of a vehicle requires some action to enable the use of the vehicle, even something as simple as turning the key in the ignition. For DWI purposes, there must be evidence that the action was taken while the individual was intoxicated. For Justice Meyers, inferring these facts from the evidence presented was a leap too big for a jury to make.

The case is instructive for anyone charged with DWI in Fort Worth. A trial jury will have wide latitude in drawing conclusions regarding whether you were operating the vehicle while intoxicated, even if an officer does not directly observe you doing so. If you find yourself in this predicament, you should consult a DWI attorney in Fort Worth. Do not assume that you will get off on a technicality. Chad Murray didn't.

Obscure Texas Traffic Offenses | Fort Worth Criminal Attorneys

Many of our criminal cases begin with traffic offenses. Something as simple as failing to signal for a lane change can quickly become a DWI investigation if the officer suspects the driver has been drinking. Often, during a traffic stop an officer will ask for consent to search the vehicle and then, depending on what might be in the car, the traffic stop turns into an arrest for possession of an illegal substance or contraband. (Tip: Never give consent to search. Ever.)

We put our heads together to think about some of the more obscure traffic violations about which drivers may not know. We have listed four of them below. The officers on the road know about them, so you should too.

Sec. 544.010(c) - Stopping before the crosswalk or white line. When you approach a streetlight or stop sign you must stop before the white line (or crosswalk line), regardless of where the stop sign or streetlight is positioned. Many times the actual stop sign will be a few yards in front of the line, just begging you to inch a little closer. Resist the urge to stop at the sign. There's probably a traffic cop right around the corner just waiting for you to mess this one up. (If you are a person that remembers rhymes better...Stop at the line, not at the sign!)

Sec. 545.104(a) - Signal intent to start from a parked position. This is one that I'll admit I did not know about. When you are parallel parked on a street and you wish to enter the roadway, you must signal your intent to do so. Put on your turn signal and then begin driving into the roadway. (Signal when parked, before you depart.)

Sec. 545.104(b) - Signal turn/lane change 100 feet prior to turn/lane change. We all know that we must signal when making a turn or changing lanes, but many folks do not know that it must be done 100 feet prior to the movement. If you must make a quick turn, any signal is better than none, but the rule says 100 feet. (Before you change lanes or turn on the street, you must signal for 100 feet.)

Sec. 547.322(f) - Separate lamp must be mounted to rear license plate and be visible from 50 feet. You cannot rely on your taillights to illuminate your license plate in Texas. Your license plate, like a special work of art hanging in the lobby of some fancy building, must have its own light so that everyone can clearly read your vanity plates proclaiming IMCOOL. Further, the license plate must be visible from 50 feet away. (When driving at night, do what's right. Give your license plate a light.)

Issue before the Court: "In the absence of exigent circumstances or consent, does Texas Transportation Code §724.012(b)(3)(B) violate the Texas and U.S. constitutional prohibitions against unreasonable searches and seizures where the statute requires law enforcement officers to seize a specimen of a DWI arrestee's blood without a search warrant in all cases where the officer believes the arrestee has been previously convicted of DWI two or more times?"

Sutherland v. State (2014)- On the night of February 2, 2011, Austin PD Officer Housmans initiated a traffic stop after a vehicle changed lanes without using a turn signal.  Once the vehicle had pulled over, Housmans approached the driver, appellant Sutherland, and, after speaking with him for "a bit," asked the appellant to step out of the vehicle.  Housmans administered field sobriety tests on appellant, and arrested appellant based on his performance on the tests and on his suspicion that the appellant was driving while intoxicated.  Appellant refused to provide a breath specimen. Dispatch provided Housmans with Texas DPS records showing that appellant had two or more previous convictions for DWI.  The appellant was then transported to the Travis County jail where, ultimately, a blood sample was drawn without appellant's consent and without a warrant.

Following the trial court's denial of a motion to suppress evidence of his intoxication, appellant pleaded guilty to the charges but reserved his right to appeal the trial court's ruling.  The appellant appealed his conviction for felony DWI.  The appellant challenged the constitutionality of the procedure and authority under which a sample of his blood was taken without his consent.  Appellant contends that the trial court erred by denying his motion to suppress the results of the testing done on the sample of his blood taken in such a manner.

Housmans claimed that he relied on the provision of the Texas Transportation Code that required him to obtain a sample of a suspect's blood whenever he learns that the individual has been convicted two or more times of DWI.  Appellant maintained that, regardless of the mandatory language of the Transportation Code, constitutional protections against unreasonable searches and seizures require that a warrantless search be supported by an established exception to the Fourth Amendment's warrant requirement, in this case, the exigent circumstances exception.  Appellant further contended that no established exception-exigent circumstances or otherwise - applied here.

According to the Seventh Court of Appeals- Amarillo, the arresting officer was not faced with exigent circumstances such that the natural dissipation of alcohol from appellant's bloodstream would support a warrantless seizure of a specimen of appellant's blood.  The arresting officer did not describe any factors that would suggest he was confronted with an emergency or any unusual delay in securing a warrant.  He testified that he made no effort to obtain a warrant because he believed that the law required that he obtain a blood sample under the circumstances presented to him.  The appellant was not transported to the hospital for medical care, the scene of the traffic stop was not very far from the booking facility, and transportation time was not a factor that could be said to lend to the exigency of the circumstances.  Furthermore, while the unavailability of a magistrate may affect whether an exigency exists to justify a warrantless blood draw, a magistrate is available twenty-four hours a day, every day at the Travis County central booking facility.  Therefore, based on these facts, the trial court erred by denying the defendant's motion to suppress.  Reversed and remanded.

U.S. Supreme Court holds:  "In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify a blood test without a warrant." 

, No. 11-1425 (U.S. Apr 17, 2013). The Defendant was charged with DWI.  He filed a motion to suppress the results of a warrantless blood draw that was taken without a valid search warrant.  The trial court granted the motion to suppress.  The Missouri Supreme Court affirmed the grant of the motion.  The U.S. Supreme Court granted certiorari to resolve a split of authority.

The U.S. Supreme Court affirmed the Missouri Supreme Court. Kennedy concurred. Roberts concurred in part and dissented in part. Thomas dissented. The question was whether the natural metabolization of alcohol in the bloodstream presented a per se exigency that justified an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases.  The Court held that it did not.  While the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, it does not do so categorically.

Whether a warrantless blood test of a drunk-driving suspect is reasonable has to be determined on the totality of the circumstances.  Any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.  The general importance of the interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.  Because the case was argued on the broad proposition that drunk-driving cases present a per se exigency, the Court was not provided with an adequate analytic framework for a detailed discussion of all the relevant factors to determine the reasonableness of acting without a warrant.