Posted on September 09, 2018 in Uncategorized

The month of August was a busy one for the Houston Police Department. In all, Houston PD arrested 54 drivers on felony charges related to alcohol. At nearly two felony DWI arrests per day, this number may seem high. However, the number of felony arrests fell compared to August of last year.

The vast majority of the DWI felony arrests were for third-offense DWI charges. However, ten of the 54 drivers were charged with DWI with a child passenger. Additionally, one person was charged with intoxicated manslaughter. Those arrested came from all walks of life, representing a broad spectrum of races and genders.

Alcohol-Related Felonies in Texas

For the most part, those charged with DWIs are first-time offenders facing misdemeanor charges. It is rare in those cases for the offenders to face any additional jail time other than at the time of their arrest. However, there are four different types of alcohol-related charges that are felonies under Texas law. They are third or subsequent DWIs, DWI with a child passenger, intoxicated assault, and intoxicated manslaughter.

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 Posted on September 09, 2018 in Uncategorized

Earlier this summer a Harris County Sheriff's deputy was arrested on suspicion of DWI when she drove her car into wet cement. According to reports, the deputy was driving at approximately 11 PM on a Tuesday evening when she ran through construction barrels. She was able to drive the vehicle more than 100 feet before it became lodged in the wet cement. A forklift was required to remove the deputy's vehicle from the construction zone after she was able to get out. The estimated cost of the damage caused by the accident is approximately $2 million dollars.

The deputy was arrested for her second DWI when she failed a field sobriety test. She later admitted in court that she had consumed at least four large beers before getting into her vehicle that night. In addition to criminal charges for her second DWI, the deputy can also face criminal charges for property damage caused by the accident.

DWI Accidents Causing Property Damage

DWIs are taken very seriously in Texas. The stakes can become even greater when a DWI involves an accident. When a DWI accident causes property damage, drivers can face criminal charges in addition to those for DWI. Possible charges can include reckless damage and criminal mischief.

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 Posted on September 09, 2018 in Uncategorized

In Montgomery County, the District Attorney's Office refers the stretch of time between Memorial Day and Labor Day as the "100 Deadliest Days of Summer." Why? More drivers tend to get behind the wheel while intoxicated during the summer months. In an effort to keep the public safe, the DA's office works with local law enforcement to crack down on DWI and BWI offenders. This past summer, 982 DWI arrests were made in Montgomery County during these 100 deadliest days. That's nearly 10 DWI arrests every day.

Breakdown of DWI Arrests in Montgomery County TX

Police in Montgomery County were busy this past summer. According to reports, most arrests made during the 100 Deadliest Days of Summer affected first-time DWI offenders. In fact, two-thirds of all arrests were for first-time DWIs. Sixteen percent of arrests were for second-time DWIs, while nearly 10 percent were for a third or subsequent DWI.

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 Posted on September 09, 2018 in Uncategorized

In 2014, the Texas Court of Appeals determined that the state's DWI implied consent law was unconstitutional. Under the law, all drivers were automatically required to submit to chemical testing when requested by a police officer. In other words, getting behind the wheel triggered consent for testing if you were pulled over for DWI. There was no right to refuse testing. Police had the right to test your breath or blood without a warrant.

The Court of Appeals found that the implied consent law was a violation of the Fourth Amendment. In turn, drivers in Texas are no longer required to comply with an officer's request to provide a sample of their breath or blood. The fact that a driver refuses chemical testing can't be used as evidence against them in a criminal DWI case. Police can, however, still make an arrest based on other evidence or request a search warrant to obtain a sample of a driver's blood.

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 Posted on September 09, 2018 in Uncategorized

It's not uncommon to see a spike in DWI arrests in the summer. This is certainly true in August when summer begins to come to a close. Last month, Houston police arrested more than 50 people on felony DWI charges alone.

Driving while intoxicated, particularly for first-time offenders, is typically a misdemeanor offense in Houston. Felony charges are typically only applicable when a driver has multiple DWI infractions, causes harm, or puts a young child in danger.

Felony DWI: Multiple DWI Convictions

First and second-time DWIs are generally misdemeanor offenses in Houston. However, once you have two DWI convictions, any subsequent DWIs will be felonies. It doesn't matter how long ago your two prior DWI convictions occurred. Any prior DWI convictions will trigger felony charges for future arrests.

Third DWI: A third DWI is a third-degree felony in Texas, punishable by:

• Imprisonment: 2 to 10 years

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 Posted on July 07, 2018 in Uncategorized

It's a common misconception in Texas and across the United States that just because someone dies in a motor vehicle accident or other crash, that a person will be criminally charged for that death.

Just today, in Houston, Harris County, Texas, a construction worker was fatally run over by a forklift, driven by another worker.

In Texas, there are two things to consider when deciding whether charges will be filed. First, was the person responsible for or cause the death of the victim? And second, was there at least criminal negligence on the part of the actor?

Texas law states that "a person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient."

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 Posted on June 06, 2018 in Uncategorized

When you are driving a car in Texas, looking down at your phone or smart watch to read a text from a friend seems harmless, but under Texas law, it's now illegal and you could be arrested on the spot.

In 2017 alone, there were over half a million reported accidents on Texas roadways according to the Texas Department of Transportation. Of those, a little over 100,000 involved some type of distracted driving (driver distraction, inattention or cell phone use). And of those 100,687 distracted driving crashes, 444 resulted in death (a 7% decrease from 2016) and 2,889 resulted in serious bodily injury.

According to a 2015 study by the Transport Research Laboratory, a driver looking at an Apple Watch would take 2.32 seconds to react when an emergency maneuver is required, compared to just 0.9 seconds for a driver talking to a passenger. A driver using a smartphone reacted in 1.85 seconds.

On September 1, 2017, in an effort to continue the downward trend of distracted driving fatalities, the Texas Legislature outlawed the reading, writing, and sending of electronic communications, i.e., text messages and emails, while driving.

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 Posted on December 12, 2017 in Uncategorized

On December 16, 2017, a a 16- year veteran of the Pearland Police Department was arrested for driving while intoxicated (DWI). According to Pearland Police Department press release, Officer Gebert was driving a Pearland P.D. patrol car and was dressed in full police uniform. The press release did not indicate whether Officer Gebert was also charged with unlawful carrying of a weapon. Texas law forbids anyone--including police officers and license to carry holders--to possess a weapon when they are intoxicated.

No other details concerning the arrest have been released as would be normal for a high profile civilian arrested for DWI or unlawful carrying of a weapon. A standard press release in a high profile civilian arrest would contain the reason for the traffic stop, the officer's observations of the suspect's eyes, speech, odor of alcohol on their breath, admission to drinking, etc. Officer's observations after conducting balance and coordination exercises, often referred to as sobriety exercises, such as the 9 step walk the line exercise, and also a one legged stand. The report would end with a report on whether a breath or blood test was failed or refused. There was also no report of whether a search warrant was issued if he refused a breath or blood test. Search warrants are a common practice throughout Texas when a person refuses a chemical test. Why was there no report of any of this information for Officer Gebert? Officer Gebert is certainly entitled to the same presumption of innocence as every citizen is guaranteed. But why is he being treated differently by his own police department?

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 Posted on June 06, 2017 in Uncategorized

Forced Urine or Blood Draw in a DUI DWI Case

Law enforcement aggressive tactics to force blood or urine draws after a person is arrested for DWI or DUI sometimes are not always safe or reasonable. The 4th Amendment of the United States Constitution requires a warrant be issued for any search or seizure. The U.S. Supreme Court reminded law enforcement that the 4th Amendment is still alive and well in the United States requiring a search warrant in order to draw blood from a DUI or DWI suspect if they do not consent.

Forced Urine or Blood Draw Must be Reasonable

Just because the government has a search warrant, the execution of that search warrant must also be reasonable. The U.S. Supreme Court held in Schmerber v. California that the forced bodily fluid extraction must be executed in a reasonable manner, i.e., according to reasonable "means and procedures", or accepted medical practices. The Supreme Court went further to hold that they were not deciding a case where blood was drawn at a police station... "if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain." They obviously had the foresight to understand realistic medical concerns with forced police blood or urine draws.

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 Posted on May 05, 2017 in Uncategorized

Memorial Day brings in the boating season at area lakes Lake Conroe, Lake Houston, Clear Lake, and on the coast near Seabrook, Kemah, Clear Lake and Galveston or other Texas waterways. It is not illegal to consume alcohol on a boat for either the driver or the passengers, unlike in a car. But boaters need to be responsible and careful when enjoying this right because law enforcement patrols will be patrolling near the marina conducting "water safety checks". If Texas Parks & Wildlife Game Wardens or other law enforcement smell alcohol on your breath, they will conduct a series of seated sobriety tests. These seated sobriety tests are not reliable, and sober people often score the clues they associate with intoxication that law enforcement to look for to make an arrest decision. More information about these seated float sobriety tests can be loaded HERE.

If you, a friend or family member gets wrongly caught up in the net of a wrongful boating while intoxicated, BWI, boating under the influence, BUI, charge. Contact board certified DWI and criminal lawyer Doug Murphy today for help 713-229-8333. Doug Murphy is the noted BWI defense authority with multiple published articles on defending BWI BUI cases, and speaking engagements. Doug Murphy is named to Best Lawyers in America, and Texas Super Lawyers. Don't let a BWI BUI arrest ruin your Memorial Day weekend on Lake Conroe, Lake Houston, Seabrook, Kemah or Galveston.

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