Gastric Bypass Issues with a DWI

The law in Texas on DWI regarding alcohol is: Are you normal mentally? Are you normal physically? Are you .08 or more at the time of operating a motor vehicle? The problem with folks who have been arrested for DWI and have had gastric bypass, is that their alcohol metabolism does not reflect a normal person’s alcohol metabolism. When the legislature determined that .08 grams of ethanol in 210 liters of breath, or .08 grams of ethanol in 100 milliliters of blood, at the time of operation is illegal, this was a purposeful, calculated amount of alcohol determined to be... Continue reading →

Can You Get a DWI for Being Asleep, Parked in a Parking Lot?

Common sense and good public policy says NO! However, cops and prosecutors are taught otherwise. So, what is the legal answer? The legal answer is: DWI in Texas is “operate a motor vehicle.” The terms “operate a motor vehicle” are NOT defined in the Texas Penal Code, so judges and juries are free to assign their own definition to “operate.” I have had both juries and judges say Not Guilty in situations where a defendant is behind the wheel, asleep, and the vehicle is in park, parked in a parking lot or on a residential street. The obvious follow up... Continue reading →

What is a DWI on Private Property?

One of the requirements of a Texas DWI is that it be committed on public property. Texas Penal Code 49.04 defines Driving While Intoxicated as “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.” So how does the law define public place? Texas Penal Code 1.07 (40) defines public place as “Any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.”... Continue reading →

Interstate Probation Complications for DWIs

So, you want to move to another state while on DWI probation? Did you get a DWI in Texas but live in another state? What are the complications? This is a very tricky and delicate matter. See the statutes below. The bottom line is, please be aware that under the Interstate Compact Act, you may not be able to fly back to your home state for a period of days or weeks after you finalize your case in Texas, until and unless the other state has formally accepted your probation (some judges are sticklers on this). The easiest way to handle... Continue reading →

Getting Alcohol or Drug Abuse Counseling?

 What you say is NOT confidential. A cornerstone of alcohol and drug abuse counseling and treatment is honesty. Alcoholics Anonymous (AA) has a healthy recovery percentage (around 5%, a little higher than average for the rehab industry), but the key to recovery is honesty. According to a 2014 Cornell Law Review article on privileged communications by Ari Diaconis, the possibility of recovery for those who attend AA but do not participate in discussions is virtually zero. The same applies not just for AA meetings, but any type or form of alcohol or drug rehab. In Absalon v. State, 460 S.W.3d, 158,... Continue reading →

Illegal Blood Draws

Beware of the EMT or Paramedic blood draw! Many blood draws are being done are illegal. Texas law says the following people can legally draw blood:   Texas Tn. Code § 724.017(a) and (c): (a) Only the following may take a blood specimen at the request or order of a peace officer under this chapter:        (1)  a physician;        (2)  a qualified technician;        (3)  a registered professional nurse;        (4) a licensed vocational nurse; or        (5) a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic... Continue reading →

5 Year Rule

Did you know? In the state of Texas, there is a “5 Year Rule” that is critical in second or subsequent DWIs? If it’s within 5 years from the conviction date of the PRESENT offense of DWI, to the offense date of the PREVIOUS DWI, you MUST serve 5 days in jail just to get probation on the second DWI.   If the offense date of your previous DWI is within 5 years of the offense date of your current DWI, it doesn’t matter how long the case was pending or when the conviction date was. After the end of the your... Continue reading →