Articles Posted in DWI Defense Lawyer

When I first started DWI defense lawyering blood draws were pretty rare in DWI cases, but today they are becoming more common with the “no refusal” weekends etc. This has caused some problems as far the ALR/driver license suspensions are concerned. How does a blood draw affect your drivers license? Let’s take a look.

When Texas set up the ALR hearing system to suspend drivers licenses after DWI arrests they had breath tests in mind. That is, the State would know the bac result from the breath test at the time the defendant was arrested, so if the defendant failed, then the cops would notify DPS to suspend their license.

The law in Texas states that after being arrested you have 15 days to call DPS and ask for an ALR hearing to challenge your license suspension. If you don’t request a hearing, then your license will be suspended after 40 days (from the date of arrest). If you do request a hearing within 15 days your license is good until the hearing and then only if the judge rules against you (which usually happens, the ALR game is rigged so that DPS usually wins, because tuff on crime).

Being a DWI defense lawyer, or defendant, is tough in Texas. One reason is that our appellate courts will go to almost any length to uphold a DWI conviction. We have pro-conviction judicial activism to an amazing degree in Texas. Don’t believe me. Let’s go to the case of the day,

Kristen Aleia Simpson v. The State of Texas


Kristen was convicted of DWI after a jury trial. But it was a rigged trial. Rigged in the fact that the judge allowed jurors who expressed a bias towards the State to remain in the jury pool. Did you think that jurors are not supposed to be biased? That they are supposed to be fair and neutral? That’s only fair right?

Lesser included offenses can be an important part of a criminal jury trial. Some offenses, like misdemeanor DWI, don’t have any lesser included offenses. Others, like Aggravated Assault, are full of lesser included opportunities.

What is a lesser included offense? Let’s take an aggravated assault case. The difference between an aggravated assault (felony) and a misdemeanor assault is “serious bodily injury”. Aggravated assaults require that someone suffer a serious bodily injury, where misdemeanor assault just require some injury. So if you are on trial for aggravated assault, and you want to argue over whether the injury was “serious”, then you can ask that the jury be allowed to consider the lesser included offense of assault. That means, instead of just deciding if the defendant is guilty or not guilty of aggravated assault, the jury could consider finding the defendant guilty of only a misdemeanor assault. Confused? That’s ok, this isn’t an exciting topic for the lay person.

This being Texas, we do all sorts of mental gymnastics to uphold convictions on appeal. So if you want to appeal a conviction because the trial judge would not allow a lesser included instruction, here is how the court will decide that issue (spoiler alert, they will rule against the Defendant, but this is how they will rule against the Defendant).

Some prosecutors will seek to punish a Defendant who demands a trial and start digging through the case to find an “enhancement” (enhancement increase the possible sentence or limit parole etc). This is more common for Defendants with lengthy criminal histories, but some prosecutors apply this approach to anyone who dares seek a jury trial.

For example, a prosecutor may try to enhance certain felony cases because the county did not receive enough rain last year and was declared a disaster area. Our laws are so poorly written, and prosecuting in Texas is so poorly regulated, that these revenge charge enhancements (or trial penalties) are easy to come by if a prosecutor is so inclined. There is literally no risk to the State for piling on new charges or enhancements on every Defendant who seeks a trial.

This leads us to our case of the day-

It’s another No-Refusal weekend across the Metroplex. That means cops are going to seek blood warrant, and hold you down and take your blood vampire style. Murica!

First, let’s remember how we got here. The legislator passed laws limiting the ability of officer’s to hold you down and steal your blood.That wasn’t good enough for our convict-at-all-costs prosecutors, who got activist judges to effecitvely destroy the protections that were in place.

So now officers will fax their fill-in-the-blank warrants to friendly Judge Rubberstamp to take your blood, because the system needs arrests so we can justify more government employees and higher budgets fora agencies.

Pardon the generic title, but I need the internet to know that the Guest and Gray Rockwall Criminal Defense office is for business. Our firm been taking cases in Rockwall for years and we decided it would better serve our clients to open an office there.

If you are searching for a Rockwall criminal defense lawyer let me take this moment to introduce myself. I’m Robert Guest, Chief of the Criminal Defense Division. I’ve been blogging about criminal defense for a few years now. There is some great information available on the left, sorted by category. I’m a true believer member of the NORML legal committee. I think it’s insane and immoral that we arrest pot smokers, sellers, retailers, dealers etc. So if you are charged with a drug crime and want a lawyer who won’t judge you and thinks the drug war is a crime against humanity, consider our firm (and check out my War on Drugs posts).

I’ve been working criminal cases for a decade now. I prosecuted for 2 years, and my former blog was called “I Was The State”, which morphed into this blog. Being a former prosecutor has some advantages, but really it’s overrated. Clients like to know that you use to prosecute, but prosecuting doesn’t teach you anything about defending a case at trial, or investigating a case. It does offer some insight into criminal law, law enforcement, and it gives you a chance to watch some good defense lawyers try cases. Looking back on it, prosecuting was the easiest job I ever had as an attorney.

DMN reports on the ongoing battle of Uber vs. the local taxi cartel. Uber is an app that lets you quickly connect to a taxi cab. It’s easy to use and has quickly gained a following in major cities across the US. Unfortunately for Uber their program is a threat to the Dallas taxi cartel. Instead of learning to compete with Uber and offer a better service, the Dallas Taxi Cartel is seeking to cash in on their influence and make Uber illegal. That’s right, of all the problems we have in Dallas the City Council is wasting time trying to make a taxi app illegal.

Why would the powers that be entertain such an idea. Easy? The Taxi Cartel makes profits by limiting competition. The cab companies uses these profits to “influence” council members and lobby for more anti-competitive regulations. For example, Dallas has an artificial limit on the number of taxis, this means the market can’t respond to demand and the consumer pays more.

So how much influence does the Taxi Cartel have in Dallas? DPD sent the vice out to arrest cab drivers who offered rides through Uber. Read that again, arrest cab drivers for the “crime” of giving rides to people who use an app. Fortunately for Dallas citizens the Vice Squad enforces mostly consensual crimes like prostitution, so their absence isn’t much of a threat to public safety.

When you ask potential jurors how they feel about defense experts you will usually hear some voices of distrust. They will think that defense experts are “hired guns” and are approached with some degree of skepticism. I’ve found that many jurors are less cynical when it comes to Department of Public Safety (DPS) experts.

Here is how broken our criminal justice system is. The Department of Public Safety is an agency of the State of Texas. The same State of Texas that is bringing a case against the Defendant. DPS has it’s own army of Troopers who arrests drivers for all sorts of offenses, but mostly make believe “crimes” (drugs) and opinion crimes (DWI).

So after a DPS trooper takes your blood in a DWI case, where do they have this evidence analyzed? At their very own DPS lab! Run by their DPS buddies! The lab will “analyze” this evidence and then show up in court to say…. guess what.. the State should win and the defendant is guilty! It’s like having as A-Rod as the homeplate umpire in the next Rangers-Yankees series.

Texas has a lot of terrible laws, but one thing we don’t allow is DWI checkpoints. The Supreme Court has decided that these can be constitutional but the state legislature must approve them. Hopefully ours never will. In case you ever think they are a good idea, here is what we are missing.

The Supreme Court heard arguments in McNeely vs Missouri this week. The issue was whether the 4th Amendment’s requirement for a warrant actually applies to DWI blood draws. The defendant in Mcneely refused to give a breath specimen, so the police just held him down and took his blood, which was allowed by statute in Missouri.

This should be a straight forward issue; the State shouldn’t be able to simply over turn the bill of rights by statute.. Blood draws are a search, a very intrusive search at that, and we require warrants for searches. Of course, DWI and drug prosecutions are the tip of the spear when it comes to destroying the bill of rights. We’ve lost more freedom to save dope convictions and DWI cases than we’ll ever get back.

The Government in McNeely argued that every DWI is an emergency, so they shouldn’t have to get a warrant. That’s a pretty broad definition of emergency and it really makes the government look lazy. I’m sure it would be easier to just ignore the 4th Amendment and let the conviction machine run unabated. But that’s the point, we require warrants because we can not trust the government to do the right thing. We want to limit the power of government to act without oversight.

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