Conroe DWI Defense Lawyer
An Explanation of Potential Defense Strategies to Challenge DWI Charges
There are many ways to fight a
DWI or other alcohol related offense. Every case is different, and
Conroe DWI attorney Doug Atkinson will study the video and offense report of your case to
determine which defense strategy will work best in your particular case.
The following are examples of potential DWI defenses:
Attacking the HGN Test
The National Highway and Safety Administration (NHTSA) has set forth rigorous
guidelines that law enforcement officers must follow to correctly administer the HGN.
HGN stands for Horizontal Gaze Nystagmus. In simple terms, the officer
is looking to see if a set number of clues are present, which he/she will
use to help determine whether there is probable cause to make a DWI arrest.
Nystagmus is simply an involuntary jerking of the eye which is present
in most people’s eyes. Nystagmus is generally not visible to the
naked eye. When a person consumes alcohol the jerking, or nystagmus, is
exaggerated and visible.
The officer will look for a total of 6 clues (3 per eye) in scoring a HGN
test. First, the officer will look to see if the person's eyes track
smoothly. Second, the officer will look to see if nystagmus is present
prior to a 45 degree angle. Third, the law enforcement officer will look
to see if he/she sees nystagmus at maximum deviation (jerking of the eye
when held at the far outside edge of the eye).
There are many attacks available for the HGN. The officer must follow the
guidelines to administer the test. An example is that a person must be
screened for equal pupil size and equal tracking. If a person is not screened
correctly or at all the results should be suppressed.
Another attack is available when officers commonly have a citizen face
the flashing lights of the patrol car or passing traffic when administering
the HGN. This may invalidate the test because it may cause nystagmus rather
than alcohol. Further, the officer may hold the object too close or too
far away. The officer may not do the correct number of passes nor take
the correct amount of time to do the passes.
Remember: law enforcement officers are not ophthalmologists or optometrists.
Under effective cross examination,
Doug Atkinson has had the test results thrown out of court. By not allowing the jury
to hear the HGN test results, the prosecution has one less tool to use
Attacking the One Leg Stand & Walk-and-Turn Tests
What law enforcement officers commonly forget is that the
field sobriety tests are designed to test your abilities not theirs or someone else’s.
Each individual is different and has distinct abilities. In his years as
a Conroe DWI defense lawyer, Mr. Atkinson has successfully convinced jurors
that the tests were not fairly applied to his clients. For example, some
people are overweight and have difficulty standing on one leg or walking
heel to toe. It often has nothing to do with alcohol consumption. Others
may have head injuries from an automobile accident or inner ear problems
causing them to have balance difficulties.
Many people are not candidates for standardized field sobriety tests because
of injuries including but not limited to, inner ear, lower back, knee,
ankle, and foot. Further, many people are not proper candidates under
the standardized field sobriety testing protocol because they are over
the allowable age.
Police often do not properly qualify candidates to take the tests or give
tests to people who do not qualify for the tests. Additionally, these
tests are often “scored” by the officer on the roadside in
a manner that is hyper-technical and unfair. Therefore, many innocent
people are arrested because the officer chooses to “detect”
minor or non-existent clues on the tests and make the arrest.
Subjective unfair scoring of field sobriety tests is one of the biggest
areas of overreaching and unjustified arrests of innocent people for DWI.
Attacking the Refusal to Conduct Field Sobriety Tests
You are not required to give evidence against yourself. The fact that you
refused to perform the field sobriety tests does not necessarily mean
that you are intoxicated. There are many reasons people refuse such tests
such as fear, nervousness, lack of coordination, weight, injuries, inner
ear problems, or other medical problems. The fact that you refused to
do the tests can be used in your favor.
Attacking the Blood Test
blood test must be conducted under the strict rules of the Texas Transportation Code.
Doug Atkinson has represented citizens with blood tests that resulted
in dismissals and reductions to lesser offenses. He has tried a blood
test case to jury verdict with a high blood alcohol content and won and
acquittal. He will look at the facts of your case and find legal reasons
to keep the test results out of court.
The following reasons, as well as many others, may result in blood test
results being thrown out of court or ruled unreliable in a
Conroe DWI case:
- The test was taken by someone not qualified under Texas law, such as emergency
medical services personnel.
- The test was not taken at a sanitary place. Sometimes the test is taken
at the jail facility which may be shown to be unsanitary.
- The person who drew the blood did not use a non-alcoholic swab such as
Betadine to clean the injection site. An alcoholic swab could contaminate
the blood specimen.
- The blood was not collected in a tube that contained an anticoagulant and
sodium fluoride preservative. If the blood clots or contains bacteria
then the test may not be accurate.
- The blood was not properly handled.
- The proper chain of custody was not followed for the blood sample.
- The blood was not refrigerated immediately. If the sample was not refrigerated
the test results could be compromised.
- The technician did use a gas-chromatography test to analyze the blood specimen
resulting in an inaccurate BAC result.
- The test was taken several hours from the time of the arrest. Unless the
test is done quickly after the arrest, the results will not accurately
reflect what the BAC was at the time of driving.
- The correct warnings were not given before requesting a blood specimen.
Attacking the Breath Test
Attorney Atkinson has successfully tried
breath test cases involving high BAC’s. He will look at the facts of your case
and find legal reasons to keep the breath test results out of court and/or
explain the many fallacies of the breath test.
- One effective attack is that the machine did not test the blood alcohol
content at the time of driving. After the officer conducts field sobriety
tests, arrests you, reads the Miranda warnings, meets with the tow truck
operators, inventories the vehicle, reads the breath/blood test warnings,
and drives to the jail it can be an hour or much, much longer before the
test is performed. If tests was not conducted until much later it makes
it difficult for the prosecution to prove that you had a 0.08 BAC or higher
at the time of driving.
- If the officer failed to question you as to when your last drink was, how
much did you drink, when did you last eat, what did you eat, then the
breath test technical supervisor will not likely be able to extrapolate
the BAC results to the time of driving.
- If the officer did not read the DIC 24 warnings to you before asking you
to submit to the taking of the specimen then the tests may be thrown out of court.
- If the officer compelled you to take the test in some way the test can
be thrown out of court.
- Another common line of defense is to convince the jury to disregard the
breath test results due to the inaccuracy of the Intoxilyzer machine.
Attacking the Refusal to Conduct a Blood or Breath Test
Your refusal to take either a blood or breath test can be used against
you during your trial. Attorney Atkinson has successfully defended numerous
people who refused to take the blood or breath test. He has used several
strategies to explain a refusal to juries and keep it from hurting his
client. By focusing the jury on the field sobriety test results, emphasizing
our fifth amendment rights, and forcing the government to prove its case,
juries can and will find citizens innocent of DWI.
Attacking the Stop
Attorney Atkinson has defeated numerous Conroe DWI cases by having them
thrown out of court after motion to suppress hearings where he proved
that the officer did not have reasonable suspicion or probable cause to
make the stop. By suppressing the stop of your vehicle the DWI will be
thrown out of court. Many more cases for Doug’s clients have been
dismissed without the need to have a suppression hearing after effective
negotiation with the State’s prosecutor. For example:
- Many officers will stop a citizen for weaving within a single lane. This
is not a good stop. In order to qualify as the offense of “failure
to maintain a single marked lane” the driver must have failed to
drive within a single lane and do so unsafely.
- Other drivers frequently call police to report a suspicious driver. If
the officer does not independently observe a traffic offense or suspicious
driving then the stop may be challenged. Further, if the caller was anonymous
the stop may also be contested.
- Officers often justify a stop by calling it a community caretaking stop.
However, case law has provided very specific instances where such a stop
is allowed. Very often, the officer cannot meet these guidelines and the
stop can be suppressed.
The Officer Did Not See You Driving
Sometimes an officer will be called to the scene of a car accident or pull
up to a car stopped on the side of the road. When the officer arrives
the driver may be out of the car. If there are no witnesses to testify
that they saw that person driving the car and the person does not admit
to driving the car then the officer may not be able to prove who drove
the car. An element of DWI is that the person operated a motor vehicle.
Without evidence that you were operating the car, the case can be thrown
out of court.
Cross Examination of the Officer
A DWI case can be won solely on cross examination of the law enforcement
officer. Doug Atkinson will question officers aggressively to get to the truth.
Many times officers testify to things they did not put in their report,
facts that seem to contradict the offense report, and information that
directly conflicts with the video of the stop and arrest. Doug has successfully
represented clients by juries acquitting his clients of DWI by showing
that the officer was untruthful or was unfair to the citizen.
Additionally, Doug will conduct
ALR hearings which are imperative to the DWI trial. At the ALR hearing, the officer
is being recorded. Any testimony he gives at that hearing can be used
against him during the jury trial. Many officers will contradict themselves
or changes their testimony from the ALR hearing to the jury trial. By
showing this to the jury, they will often find in favor of the citizen
once the officer’s lack of truthfulness is exposed.
The Officer Has a Poor Employment Record
In many cases Doug Atkinson obtains the employment records of the arresting
officer. These records may show that the officer has been disciplined
at work for his or her behavior or had reprimands for a variety of reasons
including honesty. This information can be used at trial to discredit
the officer’s testimony.
Ready to learn more about the defense strategies that may be used to turn
your case in your favor?
Contact a Conroe DWI defense attorney who has the skill and resources to aggressively challenge your charges.