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  • Writer's pictureBrian Foley

Houston Criminal Defense Attorney - Houston DWI investigation and prosecution.

Houston Criminal Defense Attorney - Houston DWI investigation and prosecution - Brian Foley - Board Certified in Criminal Law.

If you have been arrested in Houston, Texas for a DWI you know how seriously the law takes these types of case. Prosecutors at the Harris County District Attorney's Office routinely file DWI charges even before a blood test returns a result for blood alcohol. You don't get a ride home or a chance to take an Uber. The police often make the arrest after only a few roadside tests and their own personal observations. If you smell like alcohol and have poor balance you are probably going to jail regardless of your actual blood alcohol level.

There are three tests that the police most often employ on the side of the road but the investigation starts with what they call the vehicle in motion phase.

The vehicle in motion phase is when, as the name suggests, your vehicle is still in motion. The police may look for weaving in your lane, or failing to signal a turn. Although speeding is a reason for the police to pull you over and begin a DWI investigation the Standardized Filed Sobriety Test manual does not list speeding as an indication that someone is intoxicated.

Once the police have pulled over your vehicle they will start to look for what they call "mom's field sobriety tests." They will look for bad finger dexterity in your hands when you are retrieving your driver's license and insurance information. They will also look to see if you can stand and walk normally or if you use your car for balance as you walk to the rear area of your vehicle.

Then the officers will start asking you to participate in the first of the field sobriety tests, the Horizontal Gaze Nystagmus. This is an eye test that looks for involuntary jerking in the eyes called nystagmus. Horizontal Gaze Nystagmus is said to occur when the muscles controlling eye movement are impaired by alcohol. Officers routinely find 6/6 clues when conducting this test.

The second test is the Walk and Turn test where an officer asks you to walk a straight line touching heel to toe on each step, turning around and coming back taking 9 steps each direction. Nobody walks like this normally. But it is designed to put you slightly off balance and if you show 2 out of 8 clues or more then you are going to be considered intoxicated by the officer.

The final filed sobriety test is the One leg stand test where the officer asks you to lift one of your feet approximately six inches off the ground and point your toe. You are supposed to be able to count and maintain this position for 30 seconds without putting your foot down or moving your arms for balance. The officers look for a total of 4 clues and anything more than 2 clues will count as a failure.

It is at this point that the officer has two choices, either arrest the individual based on their performance on the filed sobriety tests or continue to get more information and conduct more tests. There are a number of other tests but the most common thing at this point in an investigation is to have the person accused of the crime blow into a roadside breath testing instrument which measures the alcohol content in their breath. This isn't the same kind of breath testing instrument used and approved by the scientific director of the State of Texas. These roadside breath tests are called PBTs which stands for portable breath test. The results of these types of breath instruments is not admissible in court because it can't meet the requirements of Texas Rule of Evidence 702.

After you have been put in handcuffs you are read a document called the DIC-24 which informs you that you can either consent to a breath or blood test or your driver's license is going to be suspended. If you refuse to provide a breath or blood sample then officers will typically apply for a warrant to get the blood anyway. In Harris County it is common practice to get a warrant from a magistrate judge at the Joint Processing Center in Downtown Houston. Because Harris County is so large and there are so many government employees, the process of obtaining a warrant is much easier today than it ever has been. Most warrants are done via email and over the phone.

If a judge approves a warrant for your blood at this point then the police will take you to the joint processing center where they have nurses on staff to administer a blood draw.

When the blood draw is complete you will go to be booked into jail and then go to probable cause court. This is a court appearance in front of a magistrate judge that determines if probable cause exists to continue detaining you or if the case should be dismissed right then. Some cases are "no pc'd" and the district attorneys office dismisses the charges due to the judge not finding probable cause. Other times the district attorney will choose to indict the cases in front of a grand jury which finds probable cause for all cases that are "true billed."

Finally you make it home after being bonded out of jail and having your probable cause hearing. Now is the time to hire a lawyer. It is important to hire a lawyer quickly especially in a DWI case because there is normally only a 15 day window to request a driver's license hearing which can help save your license and ability to drive.

Myself and Luis Baez are both former prosecutors and know the government's playbook on DWI and other criminal charges. Don't wait call today 713-703-1718.

For litigants who do not have counsel: Reading this blog post does not create an attorney client relationship. Call to set up a free consultation.

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For attorneys: This Blog is informational and educational in nature and is not a substitute for Westlaw or other research and consultation on specific matters pertaining to your clients. As you know the law can change day to day based on recent case opinions. And unfortunately you shouldn't cite it in court as binding authority because it is not. Mention it to your friends, just seek real consultation if it’s something important.

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