DWI Defenses in Conroe

Results-Driven Legal Service in Montgomery County

There are many ways to fight a DWI or other alcohol-related offense—every case is different. As you attorney, Doug Atkinson will study the video and offense report of your case to determine which defense strategy will work best for you. Since 1998, his outstanding representation has earned him a 10.0 Superb Avvo Rating and ranking among The National Trial Lawyers' Top 100 Trial Lawyers since 2017.

Schedule your free consultation with Douglas W. Atkinson, Attorney at Law now by calling (936) 681-0031 or contacting the firm online.

How to Fight the Charges against You

Because law enforcement are given a variety of tests to use when trying to gain evidence against someone, it is important to understand each method as well as each one's respective flaws.

Attacking the HGN Test

HGN stands for Horizontal Gaze Nystagmus. In this test, an officer looks for a set number of clues which they will use to help determine whether there is probable cause to make a DWI arrest. Nystagmus is simply an involuntary jerking of the eye. 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 they see 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, attorney Atkinson will fight to suppress admission of the HGN.

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 against you.

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 to their:

• Inner ear
• Lower back
• Knee
• Ankle
• 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 they 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
• Other medical problems

The fact that you refused to do the tests can be used in your favor.

Attacking the Blood Test

A 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 an acquittal. He can look at the facts of your case and find legal reasons to keep the test results out of court.

There are many ways blood test results can be thrown out of court or ruled unreliable, such as:

• 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 BACs. As your advocate, 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. By the time an 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.

You may be able to contest the results if:

• The test was not conducted until much later, which makes it difficult for the prosecution to prove that you had a 0.08 BAC or higher at the time of driving.
• 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, meaning that the breath test technical supervisor will not likely be able to extrapolate the BAC results to the time of driving.
• The officer did not read the DIC 24 warnings to you before asking you to submit to the taking of the specimen.
• If the officer compelled you to take the test in some way.

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 your 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 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 questions 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 can conduct ALR hearings which are imperative to the DWI trial. At the ALR hearing, the officer's testimony is recorded, and these statements 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 now by calling (936) 681-0031.