Austin Texas Drunk Driving Defense, Ken Gibson, Attorney at Law

Recently, the Gregg County (Longview) sheriff made the proclimation that if you drink and drive this independence day weekend - you will go to jail.

In December 2006, Gregg County commissioners approved a grant to participate in the statewide “Drink, Drive, Go To Jail” campaign with the funding being provided by the Texas Department of Transportation.

This grant provides resources necessary to conduct DWI enforcement throughout the holiday periods to increase the arrests of folks that drink and drive.

Captain Ken Hartley with the Gregg County Sheriff’s Department says; “We’d just like to remind people to drive responsibly. Don’t drink and drive. Enforcement will be out there and it’s not worth that chance and certainly not taking a chance of hurting yourself or others.”

Well, here lies the rub….it is not against the law to drink and then drive as long as two things are true: 1) you are at least 21 years of age, and 2) you are not intoxicated. I believe that the Sheriff is setting up a great argument for the fact that people are going to be arrested that don’t meet the above criteria. Read the rest of this entry »

University of Florida researchers have deteremined that tougher punishments may not be effective in deterring people from driving drunk.

Increasing the minimum jail time keeps few drunken drivers off the road and doesn’t significantly prevent fatal car crashes, according to the study, published in the journal Accident Analysis & Prevention.

The researchers examined the changes in DWI laws and policies between 1976 and 2002. They also studied the rates of DWI arrests and fatal alcohol-related car crashes.

Alexander C. Wagenaar cq , lead author of the study and epidemiology professor in the UF College of Medicine, said researchers wanted to find out if stricter regulations deterred people from drinking and driving and if the number of accidents would drop in the population as a whole.

“We found out that’s not the case,” he said.

James C. Fell, director of traffic safety and enforcement programs for the Pacific Institute for Research and Evaluation in Maryland, said on average, statistics show that a person drives under the influence 50 to 200 times before he or she is caught or gets into a crash.

I have said over and over and over, we must move our resources into education, rather than punishment. Until the powers that be, the Legislature, figures this out, they will continue to increase punishments to no avail. I was once told that the two areas that Legislators love to go home and tout, is tax cuts and being tough on crime. Unfortunately, I guess that still holds true today.

A Virgin Atlantic pilot was removed from a transatlantic flight after failing a breathalyser test. He has finally been cleard of this charge after it was discovered that his low-carbohydrate diet triggered a false reading.

Subsequent blood tests on the pilot showed a blood-alcohol reading of just over a fifth of the limit set for airline pilots - which in turn is a quarter of the drink-drive level.

The pilot’s nightmare began when he went through the security checks for flight crew one of the guards thought he could smell alcohol on his breath.

The pilot was allowed to board the plane but about 45 minutes before take-off police got on the aircraft and breathalysed the pilot in the cockpit using a machine calibrated to aviation levels. The pilot failed this test and was escorted off the plane.

A standby crew was called and the pilot was taken to the police station, where blood tests were taken.

He was suspended from duty and released on bail.

The pilot’s blood was sent it to a laboratory where they found only a minimal blood alcohol reading. After the lab tested two more samples, he was exonerated. Read the rest of this entry »

KVUE reported that the Co-Op Bar, formerly known as Wylie’s, on 6th Street bar in Austin is under fire from state agents who want it closed. The Texas Alcoholic Beverage Commission alleges that the Co-Op Bar is a public safety hazard.

TABC is reporting that the Co-Op Bar has a history of violations. After a bouncer died in the back in January after a fight outside the club, TABC decided to take action.

TABC believes that the Co-Op is worse than the other bars in the city.

“Several intoxication issues and several issues with minors and breaches of the peace seem to be the recurring problem at this location,” said Lieutenant Robert Saenz, with TABC.

Saenz said the agency tried working with the Co-Op Bar, but to no avail.

“We feel like this location has had ample time and opportunity to clean up their act. Therefore we are recommending cancellation (of their license) due to their history of serious violations,” he said. Read the rest of this entry »

New Mexico Governor Bill Richardson recently signed an unorthodox bill that would require convicted drunk drivers who move to New Mexico from other states to install ignition interlocks in their vehicles before receiving a New Mexico driver’s license.

An interlock would be required for those convicted of driving while intoxicated in other states on or after June 17, 2005. The legislation requires that the device be installed for a period of one year for a first conviction, two years for a second conviction, three years for a third, or for life for fourth time offenders!

The device basically prevents a driver from operating a vehicle if the individual has been drinking. A driver must blow into the device before starting the vehicle and then again randomly after that.

“Fighting DWI is my top priority and these new laws will make life tougher for drivers with out-of-state DWI convictions and tighten rules to ease DWI prosecutions,” Richardson said in a news release.

This new law will certainly place added burden and expense on any individual convicted of driving while intoxicated who attempts to get a New Mexico driver’s license.

State legislators have passed the bill which would re-write the law that made it illegal to obscure any part of a license plate.

The Texas House last week approved the legislation; the Senate approved it earlier. (S.B. 360)

Under the new law, provided it is signed by the Governor, states license plate holders are not in violation of the law as long as the license plate number is visible and most of the name of the issuing state is visible and not altered.

The problems with license plate covers began with the passage, in 2003, of the revisions to Section 502.409 of the Transportation Code. The purpose of the bill was to prevent the use of products that would obscure information on license plates (like the reflective spray) and circumvent the effective use of photo radar and law enforcement cameras.

Some law enforcement agencies took this change in the law to extremes. Some agencies have even stopped motorists and issued citation for obscuring the starry night or the cowboy on horseback riding along the bottom of the plates even if the plate number and the word Texas were clearly visible.

One citation for an obscured license plate out of Fredericksburg resulted in the person being charge with a DWI. That case was appealed up to the Texas Court of Criminal Appeals. (State v. Johnson)

The Court of Criminal Appeals decision highlighted the absurdity of the law, but still held that the officer had the right to stop and cite the person. It would have been interesting to see what the court would have done, had it not been part of a DWI case.

§ 31.124 of the Texas Parks and Wildlife Code states, “an enforcement officer may stop and board a vessel . . . and may inspect the boat” to determine whether it is in compliance with the various provisions of the Code.

What this means for the average lake-goer is that an officer has the power to stop his or her boat without probable cause or a reasonable suspicion to believe that a crime has been or is about to be committed. Basically, a law enforcement officer may board any boat, for absolutely any reason and, once aboard, may legally come into contact with evidence of a possible crime, like boating while intoxicated.

The Court of Criminal Appeals of Texas recently discussed whether or not this statute violates the 4th Amendment’s ban on illegal searches. The court held in Schenekl v. State that it does not.

It may be difficult to understand how a random stop, unsupported by probable cause, could be constitutional. The court, in making this determination, applied a two-prong test, weighing the State’s interest in the search against the individual’s right to personal security free from arbitrary interference by law enforcement. Read the rest of this entry »

“All prescription sleeping pills may sometimes cause sleep-driving,” federal health officials warned Wednesday.

Sleep driving is a variation of sleepwalking. It involves getting in the car in the middle of the night, driving around, and with absolutely no memory of the drive.

The Food and Drug Administration wouldn’t say exactly how many cases of sleep-driving it had linked to insomnia drugs, but neurology chief Dr. Russell Katz said the agency uncovered more than a dozen reports — and is worried that more are going uncounted.

Given the millions of prescriptions for insomnia drugs, Katz called the problem rare, and said he was unaware of any deaths. But because sleep-driving is so dangerous — and there are precautions that patients can take — the FDA ordered a series of strict new steps Wednesday.

First, the makers of 13 sleep drugs must put warnings on their labels about two rare but serious side effects:

• sleep-driving, along with other less dangerous “complex sleep-related behaviors” — like making phone calls, fixing and eating food, and having sex while still asleep.

• and life-threatening allergic reactions, as well as severe facial swelling, both of which can occur either the first time the pills are taken or anytime thereafter. Read the rest of this entry »

The City of Austin has decided to replace their current BAT Bus (Breath Alcohol Test Bus) with a new improved BAT Bus.

The city agreed to buy a breath alcohol testing bus so officers don’t have to make the trip to the county jail.

The new Bat Bus will have to stations for Intoxilyzer 5000s as well as workstations for the officers to review the videotapes of the incident and prepare the offense reports.

Futher, there will be City Marshalls on hand to transport folks who have been arrested to the jail facility. This will allow officers like the one they call “the Machine” to get back on the street faster. The Machine currently holds the record for making 7 arrests in one night.

“Typical, DWI arrest takes between three and four hours,” Austin police Cmdr. Patti Robertson said. “It narrows it down. Takes off 3/4 of that time. They have all the paperwork, turns it over to the officers on the bus.”

DWI has become big business in Austin.

“We are at 800 per 100,000 people for DWI arrests…” Robertson said. “What that means is we are ……the highest in the state for DWI arrests. I think that speaks volumes.” It certainly does.

There are approximately 10 different agencies in and around Austin that are all competing for grant money related to DWIs. The question then becomes, “Could this possibly motivate officer to make more and more arrests?” My belief……ABSOLUTELY!

The Austin American Statesman carried a good article detailing that acting Austin Police Chief Cathy Ellison fired an officer Tuesday after she said the officer lied about the circumstances of an arrest that led to a man’s conviction.

Travis County Assistant District Attorney Patty Robertson said Learmonth remains under a criminal investigation.

According to the disciplinary memo, Learmonth stopped a car Smith was driving and arrested and charged him with possession of drug paraphernalia and drug possession. He also arrested and charged Smith’s female passenger with tampering with evidence. Internal affairs looked into the case, and Learmonth admitted during an interview with investigators that he had lied in his police report, according to the memo. He also falsely wrote in reports that the female passenger tried to destroy evidence, an action that Learmonth’s patrol car video shows she never did. “Officer Learmonth falsified his report and probable cause affidavits to bolster the charges,” the memo said. “He intentionally and knowingly placed false information in these documents, knowing it was unlawful to do so.” The memo said that Learmonth’s actions were reported by local media, which discredited the department and that his actions “are unethical and taint the entire justice system.”

Learmonth’s credibility, will certainly be affected for all pending cases for which he participated.