PRACTICE AREAS - DWI CRIMINAL DEFENSE LAWYER

Today, the penalties for driving while intoxicated in Texas have never been more severe. For example, DWI is the only misdemeanor criminal offense for which you cannot receive deferred adjudication. Moreover, new laws require that if your license is suspend for DWI, you will be required to pay a minimum of $1,000 per year for three years just to keep your license. Because of these and many other extra penalties associated with DWI, Michael Lowe often advises his DWI clients to try their case to a jury. As a former misdemeanor prosecutor with the Dallas County District Attorney’s Office, Mr. Lowe knows the difference an experienced DWI lawyer can make in a jury trial.

Mr. Lowe will obtain a copy of the police report and videotape and help you evaluate your options. Mr. Lowe will defend you both at your license suspension hearing and at trial by vigorously cross-examining the arresting officers and the intoxilizer 5000 technical supervisor. If your license is suspended Mr. Lowe can also get you an occupational license during the suspension period.

Just because you have given a breath test and the result is an .08 (g/210 liters) or higher, doesn’t mean you don’t have a chance. Here just some of the proven ways of beating the breath test on DWI cases in Texas:

40 POTENTIAL DEFENSES TO BREATH TESTS

1. Manifestations and actions of defendant don=t match test (use third party witnesses to establish the contrary facts).

2. Officer untrained or marginally trained and cannot explain anything about how breath testing works.

3. Officer fails to follow breath test training manual protocol, just like a cook not following a recipe or a doctor skipping steps in performing an operation.

4. Officer fails to follow own training protocol from breath test school (e.g., not waiting the fifteen minute waiting period).

5. Defendant has a physical problem or health limitation, which officer did not ask about or request alternative type test (e.g., emphysema, dentures and spongy adhesives adhering them in subject=s mouth and so on).

6. Testing room or circuitry has a problem (RFI; recently painted walls or trim; certain cleaning solutions, smoking in or near machine; shared power supply with heater or other appliance B must be dedicated Aclean@ electrical source; machine may have been Amalfunctioning@).

7. Defendant has had environmental exposure to volatile chemicals and will have cumulative reading of any ethanol plus readings from these other volatiles. (See National Law Journal, New drunken-driving defense cause a stir, April 18, 1088, p. 7.)

8. Defendant unable to blow sufficient sample due to lung capacity or size, respiratory health or high alcohol level (e.g., many Intoxilyzer 5000 machines are equipped with pressure switches and require sufficient time, pressure and a proper Aslope@ of the alcohol curve to deliver a valid reading).

9. Improper or inadequate inspections by state inspectors (example: no linearity proven, or single tests being run at the target alcohol concentrations).

10. Use of machine after factory repair is made but before new calibration check is one by inspector or breath instrument supervisor at police department site.

11. Air bag defenses B Athe Tyndall effect@ B diffusion of light; propellant exposure; cut lips; lung and airway irritation and fluid buildup from caustic gas propellant. (See DWI Journal: Law & Science, vol.15, No. 10, October, 2000.)

12. Videotape refutes the high reading, supports sobriety, based on voice, demeanor and ability to perform field tests reasonably well.

13. High test result, yet defendant never urinates for three to four hours or more B physiological.

14. Something in person=s mouth containing alcohol (ex: Breath Drops7 with SD alcohol).

15. Something in mouth that contains interfering or contaminating substance (Skoal7 snuff B wintergreen; Altoids7).

16. Dentures, gingivitis, bridgework, Apockets@ (video or photo of this and dental records).

17. Vomiting, belching within fifteen to twenty minutes of test and no rinsing of mouth permitted, or inadequate deprivation period before retest is started.

18. Insufficient observation period, as per breath test training manual.

19. Actual improper or out of Aagreement@ tests, without follow-up tests to correct (e.g., both results must be within 0.02 of each other, as per the law of Texas).

20. Police report supports sobriety, or lack of investigation of alternative causes.

21. Rising BAC showing time of driving BAC would have been lower than time of testing.

22. Elevated breath temperature cause by fever, hot tub, sauna, detention in hot sun or back of patrol car in summer, dancing menstrual cycle, menopause (hot flashes) and so forth.

23. Failure to verify simulator temperature remains constant and within tolerance; otherwise, results cannot be accurate. Reference sample must be between 33.8N and 34.2N Celsius.

24. Assumed breath-blood ratio (2,100:1) not proven to be defendant=s ratio; show how minor error gets multiplied by an algorithm of 1,000 to 3,000, depending on type of machine used. Example: on an Intoxilyzer 5000, an indicated 1.20 result, if accurate, contains only 17/10,000,000th of an ounce. The algorithm for the Intoxilyzer results in a multiplier of 2, 592 (derived from the 81-cc size of the sample chamber as compared to 210 liters of air). Any minor error can skew results dramatically. (Some states have case law or statutes that eliminate this defense.)

25. Show defendant has abnormally low blood or breath conversation ratio through testing or experts. (Some states have case law or statutes that eliminate this defense.)

26. No proper periodic calibration checks using quantities of commonly occurring interfering substances (e.g., toluene, acetone, acetaldehyde) likely found in a living subject, to assure machine=s ability to distinguish alcohol from other volatiles.

27. Burp, belch that is silent.

28. Gastric reflux or hiatal hernia, preferably diagnosed and treated before arrest occurred (bring the Ascope@ photos taken during endoscopic surgery by a physician).

29. Random vials of simulator solutions not checked by GC-mass spec analysis upon receipt from company that sells them, therefore, no assurance of precision for target alcohol concentrations.

30. Inherent Asampling variability@ or Amargin of error@ issues (e.g., 0.088 reading in an 0.08 state, and manual acknowledges " 0.01 or " 0.02 precision problem).

31. Blowing pattern irregularities (blubbering and crying causing artificially high water vapor problem; mucus buildup from cold, sinus infection can trap alcohol and increase BrAC).

32. Prosecutor fails to lay a proper evidentiary foundation for admissions of the test.

33. Defendant of strict high protein diet, then ingests carbohydrates, thereby triggering autogenerated alcohol production when ketones (accumulated from the diet) are converted to isopropyl alcohol.

34. Failure to give timely, complete or Acorrect@ implied consent warning. (The Erdmann doctrine.)

35. Defendant has diabetes, is Aborderline@ diabetic or is hypoglycemic and consumes alcohol in any amount, causing conversion of high acetone levels into isopropyl alcohol.

36. Officer obtains first set of BAC results, which will not support a per se case, then waits a few more minutes and retests, obtaining a reading above the per se limit B illegal.

37. State fails to prove the alcohol was consumed either during driving or before driving ended.

38. Officer fails to get his or her annual or periodic updates in training, thereby disqualifying the test operator from administering tests.

39. In handling case, office commits crime (e.g., obstruction of justice or perjury) in an effort to conceal evidence; prosecutor cannot proceed to trial or (more commonly) officer makes an illegal, warrantless stop or arrests person without probable cause.

40. "FIRD" defense. Officer gets fired, indicted, retires (and moves away) or dies.

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