Galveston Criminal
Defense and DWI Attorneys
Galveston DWI Attorneys
Managing Partner Brian Foley and Trial Bureau Chief Luis Baez are both former prosecutors and members of a special DWI prosecution unit known as the Vehicular Crimes Team which focused on intoxicated driving cases that involve serious bodily injury or death. You can now harness their experience and training for your case and take back control of your life. If you or a loved one has been arrested for DWI in Houston you need to know two things right away.
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If you fail or refuse to take a breath or blood test, the law only allows15 days to request a hearing to save a driver's license.
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Even if you think you're guilty, we may still be able to beat a DWI case.
The Process of Fighting Galveston DWI Cases
I. The Start of Galveston DWI Investigations: Challenging the Traffic Stop
When a person is pulled over for suspicion of DWI (Driving While Intoxicated), the investigation begins with the traffic stop itself. From the moment a law enforcement officer initiates the stop, a defense attorney's primary job is to ensure that the stop was justified in the first place. The law requires that police officers have reasonable suspicion to pull someone over. Without this, the entire DWI investigation may be called into question, and evidence gathered during an unlawful stop could be inadmissible in court.
Reasonable Suspicion for Galveston DWI Charges
In the state of Texas, reasonable suspicion is defined similarly to its federal counterpart. It generally requires that a law enforcement officer, based on their training and experience, has a reasonable belief that a person has been, is, or will be involved in criminal activity.
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Law enforcement officers can establish reasonable suspicion for a traffic stop based on various violations of traffic laws. Here are some common examples.
Speeding: Exceeding the posted speed limit or driving at a speed that is unsafe for current road or weather conditions can lead to a traffic stop.
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Running Red Lights or Stop Signs: Failing to come to a complete stop at stop signs or running red lights is a clear violation that can result in a traffic stop.
Expired Registration: Failure to maintain inspection and registration or failure to display a registration sticker on your vehicle can lead to a traffic stop.
No or Unconfirmed Insurance: Police can scan your license plate at any point and check if your insurance is confirmed by the Department of Public Safety. Even if it turns out you do have insurance a computer system entry that insurance is unconfirmed can lead to reasonable suspicion.
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Reckless Driving: Behaviors such as aggressive driving, swerving between lanes, or tailgating can be indicative of reckless driving, leading to a traffic stop.
Expired or Missing License Plates: Driving a vehicle with expired or missing license plates or registration can provide grounds for a stop. Texas requires a license plate to be displayed in the front and rear of your vehicle. Having a license plate in the front windshield does not comply with the law and will lead to reasonable suspicion for a traffic stop and investigation.
Failure to Use Signals: Failing to use turn signals when changing lanes, merging, or making turns can lead to a reasonable suspicion stop.
Equipment Violations: Non-functional headlights, taillights, brake lights, or other required vehicle equipment can result in a traffic stop. Even failure to illuminate your license plate with a non-functioning license plate light can lead to an investigative detention.
Driving Without a Valid License: Operating a vehicle without a valid driver's license or with a suspended/revoked license can lead to a stop.
Seat Belt Violations: Not wearing a seatbelt, especially if it's mandatory by law, can provide reasonable suspicion for a stop.
Failure to Maintain Single Lane in Galveston DWI Cases
A common reason for a traffic stop is failure to maintain a single lane. Officers may pull over a driver if they observe the vehicle weaving or drifting within its lane, or crossing over lane markings. However, there are several ways to challenge this basis for the stop. For example, if the driver is merely momentarily adjusting their position within the lane due to road conditions or to avoid an obstruction, the defense can argue that such movements do not meet the threshold for reasonable suspicion. Minor or momentary lane deviations may not be enough to establish that a crime is being committed.
State v. Hardin, No. PD-0799-19, 9 (Tex. Crim. App. Nov. 2, 2022) held that for an officer to legally pull over a defendant for failure to maintain a single lane the person must not only fail to maintain the lane but must also do this in an unsafe manner. Without proof of this unsafe manner there is no violation and no reasonable suspicion for a traffic stop. The statute requires individuals to stay "as nearly as practical entirely within a single lane" and to only move from the lane if it can be done safely. “ Section 545.060(a) provides in relevant part:” "(a) An operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely." Officers will sometimes try to justify the stop based on other means like a person calling in previously observed dangerous behavior or a combination of factors including time of night and proximity to bar districts leading to a generalized reasonable suspicion that the defendant is driving while intoxicated and not simply failing to maintain a single lane.
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Derichsweiler v. State, 348 S.W.3d 906, 914-15 (Tex. Crim. App. 2011), a police officer has reasonable suspicion to detain an individual if he possesses specific, articulable facts that, when combined with rational inferences drawn from those facts, would lead him to reasonably conclude that the person detained is, has been, or will soon be involved in criminal activity. Reasonable suspicion is established using an objective standard that disregards the subjective thoughts of the arresting officer. The court will consider the totality of the circumstances, which means that apparently innocuous circumstances may be combined to indicate criminal behavior. Id. In Derichsweiler the defendant was observed sitting in his car at a McDonald's, smiling at a husband and wife who had entered the restaurant. Feeling uncomfortable the couple reported his behavior to the police. Upon arrival, the officers found Derichsweiler in his car and he was subsequently convicted of Driving While Intoxicated. This case shows just how far the courts will go to uphold an officer’s decision to make an investigative detention.
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II. Field Sobriety Testing in Galveston DWI Cases
When an Officer pulls someone over they typically begin by asking them a few questions and seeing if they can smell alcohol as they are speaking through the window of the person's car. If you fumble with your driver's license or don't answer where your coming from quickly enough for the officer you can get asked to step out of the car and perform field sobriety tests. The tests are the HGN, Walk and Turn, and the One Leg Stand.
Horizontal Gaze Nystagmus (HGN): The HGN test is designed to detect involuntary jerking of the eyes, known as nystagmus, which can be exacerbated by alcohol or certain drugs. During the test, the officer will observe the driver's eyes as they follow a moving object, such as a pen or flashlight, from side to side. The officer looks for specific indicators of impairment, such as the inability to smoothly track the object or the onset of nystagmus at certain angles.
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Walk-and-Turn (WAT): The WAT test assesses a person's balance, coordination, and ability to follow instructions. The driver is instructed to take nine heel-to-toe steps along a straight line, turn around, and take nine steps back. The officer observes for signs of impairment, such as:
- Inability to maintain balance during instructions.
- Initiating the test prematurely.
- Pausing while walking.
- Failure to touch heel-to-toe.
- Stepping off the line.
- Using arms for balance.
- Incorrect number of steps.
- Improper execution of the turn.
One-Leg Stand (OLS): In the OLS test, the driver is asked to stand on one leg while keeping the other foot approximately six inches off the ground. They must count aloud by thousands (e.g., "one thousand one, one thousand two," etc.) until told to stop. The officer looks for indicators of impairment, such as swaying, hopping, or putting the foot down. Developed by the National Highway Traffic Safety Administration (NHTSA), the 9-Step Walk and Turn test aims to evaluate a suspect's divided attention and balance. It operates on the premise that alcohol impairment impairs cognitive abilities and motor skills. Law enforcement officers undergo training to administer this test as part of the standard protocol for DWI investigations.
Can you refuse field sobriety testing in Galveston, Texas?
Every person being questioned by police has a right to refuse such questioning without the assistance of a lawyer.
You can tell an officer that you refuse to allow him to conduct field sobriety testing including the HGN, Walk and Turn, and One Leg Stand. However, Texas Courts have held that your refusal to perform these tests or to take a breath or blood test may be considered by a jury on the question of guilt or innocence of DWI. Barraza v. State, 733 S.W.2d 379 (Tex. App.-Corpus Christi, 1987, pet. granted) aff’d 790 S.W.2d 654 (Tex. Crim. App. June 20, 1990). You can me sure that if you refuse to participate in the testing and the officer has smelled alcohol that you have a high chance of being arrested. This may seem like a catch-22 and it is. However when a jury is deciding the legal standard if a person has lost their mental or physical faculties based on the introduction of alcohol a person who has refused to participate in the field sobriety testing offers less evidence for their own conviction. ​​
What if the Police can't prove you were actually driving in Galveston DWI charges?
One of the elements in a DWI is that the defendant "Operated" the motor vehicle. In Nieschwietz v. State, No. 04-05-00520-CR, 2006 WL 1684739 (Tex. App. - San Antonio 2006, pet. ref’d) the court found that the defendant could be convicted of driving while intoxicated even though nobody saw him operate the vehicle when the defendant admitted that he drove and he was found near the vehicle and there was documentation that the vehicle belonged to the defendant. Similarly an officer does not need to prove that you were actually driving. It is sufficient that there is proof that the vehicle was being "operated." Another case found that it was sufficient to prove operation when the engine was running and headlights were on and vehicle was in park and the defendant was asleep then woke up and reached for gearshift but never drove or put it in gear. Anderson v. State, No. 02-15-00405-CR, 2016 WL 1605330 (Tex.App.-Fort Worth)​​
Portable Breath Tests in Galveston DWI Cases
After the officer has completed the field sobriety testing he may ask you to blow into a roadside handheld breath testing device. These are called portable breath tests. The most important thing to know about these tests are that they are not admissible in court to prove a person's alcohol content although they could be used to prove the presence of alcohol on the person's breath. Typically portions of officer video with the PBT are redacted so that the jury cannot see or hear the result of a PBT. Officers may request a PBT in every case or they may only request one when they aren't sure if the person has sufficient clues to indicate intoxication. There are almost no positive reasons to take a portable breath test for a defendant who has consumed any alcohol at all. They are not an accurate measure of alcohol levels. These are also different from admissible breath tests generated by the Intoxylizer 9000. These larger instruments are kept at the jail and not by officers in their car.
Did you know this about DWI?
Driver's License Hearings
In a DWI you are prosecuted by two different agencies, the Galveston County DA's office prosecutes the DWI and the Texas Department of Public Safety prosecutes your driver's license case.