Frequently Asked Questions

I was arrested for a DWI, what should I do next?
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Posting your bond is the first step to get out of jail as quickly as possible. Once your bond is set, bail may be posted as a cash bond with the sheriff’s office. Most often, people contact a bail bondsman to post their bond for them. For a bondsman recommendation in Harris or surrounding counties call Cannon Law at (346) 406 – 5114.

The next step you should take is contacting an attorney right away. Not only are you facing a deadline to save your driver’s license, but also evidence can be lost each day you wait.

An experienced attorney does not wait to receive evidence from the prosecutor’s office. It can be vital to conduct a scene investigation in a person’s case as close in time to the incident as possible. Moreover, Cannon Law wants to preserve the evidence in your case by sending subpoenas to the police agencies as soon as possible before any evidence can be lost or destroyed.

It might sound cliché, but time is truly of the essence in your case.

Start the process today by contacting Cannon Law.

Should I hire a DWI attorney? When?
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Hiring a DWI attorney is invaluable to your case. It is better to hire an expert in DWI who maintains a deep understanding of the many complex issues that often arise in a DWI case, than a general practitioner who has a more shallow knowledge of several areas of practice.

Also, DWI laws and issues change on a regular basis. When your attorney dedicates their practice solely to DWI, they are more capable of keeping current on changes to the law and will apply them strategically to your case.

Do I have to tell my employer I was arrested for DWI?
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It depends. Different companies have different rules regarding DWI arrests and convictions. Many employment contracts lay out the guidelines and rules surrounding this issue. Pay special attention to the wording your company uses. There is a big difference between being ARRESTED for a DWI, and being CONVICTED of a DWI.

If your company asks you to report any misdemeanor CONVICTIONS other than traffic tickets/moving violations, then you would likely not have to report the arrest. Many companies allow you to wait until you have plead guilty, or were found guilty of the crime you have been charged with. (Innocence until Proven Guilty)

If your company asks if you have been ARRESTED for or CHARGED with any misdemeanor or felony charges, then you would likely need to report the incident to your company, and let them know you have hired a highly respected firm, and fully intend to fight your case.

Cannon Law can help you decipher whether or not you need to report your situation to your employer. Contact Cannon Law now for a free consultation.

How long does a DWI case take to fight?
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This answer depends on a few different factors: police agency, breath or blood test, and the court a person is assigned. Typically speaking, the only people who have their case resolved “quickly” are simply pleading guilty and accepting the state’s generic plea offer. Evidence can take time to trickle in piece by piece- police reports, accident reports, blood results, videos etc.

On average in Houston and surrounding areas it would take 6 months to one year to fight a DWI case the proper way.

Some police agencies can take longer to submit their reports and videos to the DA’s office and defense counsel. Other agencies submit their report and finding instantaneously.

Breath test cases tend to move a little quicker than blood cases because the breath result is established on the night of the arrest. Blood labs can take anywhere from a few weeks to a few months to submit their results to the district attorney’s office and defense counsel.

Finally, the court a person is assigned to can also affect the time it takes to properly fight their case. Some court’s have busier trial dockets than others at varying times throughout the year.

Cannon Law promises not to drag your case out any longer than necessary. It is our goal to achieve the most desirable result for you, in the shortest amount of time necessary to aggressively fight your case.

What is the difference between a DUI and a DWI in Texas?
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In Texas, a Driving Under the Influence (DUI) charge applies only to minors. A minor is not permitted to have any deductible amount of alcohol in their system. Therefore, a minor does not have to be legally intoxicated to be charged with a DUI. A DUI conviction can carry a penalty of up to $500 fine, a 60-day suspension of ones driver’s license, community service requirements, and mandatory alcohol-awareness classes.

However, a minor can still be charged with a DWI, if they are legally intoxicated. (See definition for legal intoxication here). A DWI will carry the possibility of higher fines, stricter punishment, and potential jail time. (See the punishment rules for Driving While Intoxicated here).

What does Intoxication mean for a DWI case?
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The most common element disputed in a DWI trial is legal intoxication.

The state must prove one of three things to establish a person is legally intoxicated. To summarize-

  1. A person lost the normal use of their mental faculties due to the introduction of drugs or alcohol

    OR

  2. A person lost the normal use of their physical faculties due to the introduction of alcohol

    OR

  3. A person has a blood alcohol concentration of a .08 or higher at the time of driving

What does it mean for a person to lose their normal physical or mental faculties? This is extremely subjective. For example:

The average person being pulled over for a DWI test would likely not perform a balancing test as well as Olympic gold medalist Simone Biles might perform the same exact test which is being used to determine one’s physical faculties.

Moreover, a person who is dealing with stress in their personal life from a divorce, work, or health issues may not exhibit the same mental faculties as they normally would, even if they have not consumed any alcohol.

Finally, it is not enough for the prosecutor to produce a breath or blood test at or above a .08, alone. This result must be found to be reliable beyond a reasonable doubt. Further, they must prove that a person’s results were a .08 or higher at the time a person was driving. Often the “at the time of driving” requirement can be difficult for the state to prove if the defense attorney has the proper knowledge and training in the science of retrograde extrapolation.

Simply put, a high BAC does not necessarily mean you will be found guilty of a DWI. It is important to hire a knowledgeable DWI attorney who is experienced in this area, and can show a jury or judge the potential issues involved with the testing methods currently used by the government in DWI cases.

Is my DWI a misdemeanor or a felony?
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In most circumstances, a first or second DWI is a class B or class A misdemeanor. (See more punishment details here)

A DWI can be charged as a felony under some circumstances, for example-

  • When there is an accident involving serious bodily injury, you could be charged with Intoxication Assault

  • When there is an accident involving the death of another person, you could be charged with Intoxication Manslaughter

  • If you have plead or been found guilty in two prior instances, you can be charged with a felony DWI Third

  • If you were arrested for DWI with a child passenger, you can be charged with a felony.

Contact Cannon Law to learn more about your DWI case.

Can I seal my DWI conviction?
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As of September 2017, House Bill 3016 might allow you to conceal your DWI conviction.

Concealing your past DWI conviction could potentially help you with future job opportunities, insurance rates, and a public criminal record. Contact Cannon Law here and read more information here to see if you are eligible for a DWI non-disclosure under this new law.

What are the pros and cons of hiring an attorney from the county in which I am charged?
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This is such an important question. There can be pros and cons of hiring an attorney from the county of your pending case.

My best advice would be to ask each attorney the following questions:
How well do they know the county?
How often do they practice there?
Are they familiar with the judge, and do they know how the judge rules and feels on particular legal issues?
Do they know the prosecutors?
Do they take court appointments in that court?

There are two important ideas to consider-

Often, you want a lawyer who is familiar with the judge and prosecutors in your case, so he/she knows how the judge will likely rule on certain legal issues and how the prosecutor will usually craft and present their case. Therefore, your attorney can construct and provide a well researched and prepared defense strategy.

Also, it is important to ask about an attorney’s court appointments. I have found that often when attorney’s take court appointments from the court, they feel more pressure to “settle” or plea cases in fear they will not be appointed more cases in the future from that court.

As Cannon Law does not accept any court appointed cases, these outside monetary influences and circumstances do not affect any case strategies and legal defenses. The Cannon Law goal is simple, fight for you no matter what.

What should I expect at my first DWI court date?
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This varies by county. In most counties, the first court date is simply to determine whether you have or plan to hire an attorney. If you have an attorney, they will sign on to your case, collect any evidence that has been submitted to the state, and reset your case to a later date.

Usually this is the lowest stress of all of your court dates (even though you may not feel it at the time). Court usually begins by “calling docket.” This can be compared to taking attendance during grade school.

The best way to reduce your stress-

  1. Hire a knowledgeable attorney to represent you

  2. BE ON TIME

  3. Dress appropriately. You don’t need to wear a suit, but wearing business casual attire will show the court staff and judge that you take the charges against you seriously.

I realize attire or being on time might seem small in the grand scheme of the charges you face, but this is your first impression in front of the judge. It matters.

Am I allowed to drive, or is my license automatically suspended if I have been pulled over or arrested for a DWI?
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If your license was not suspended prior to being pulled over, your license should not be suspended automatically just because you were arrested for a DWI. A person has 15 days from the date of their arrest to request a hearing on the suspension on their driver’s license.

The request is sent to the Texas Department of Public Safety. Once a hearing is properly requested, The Texas Department of Public Safety will provide you with a hearing date to fight the suspension of your driver’s license.

A person is able to drive up to the time of the hearing, and if the Department cannot prove the required elements a person’s license will not be suspended as a civil matter from this incident. Read more about the license hearing here.

What is the Administrative License Revocation (ALR) hearing, and is it important for my case?
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The ALR hearing is a civil proceeding which allows you to fight the suspension of your driver’s license. You have 15 days from the date of your arrest to request a driver’s license hearing; this request is sent to the Texas Department of Public Safety (TX DPS).

Often times the officer tells those being detained for DWI that if they take the breath test, they will not lose their license. This notion is slightly misleading. It is true that if you refuse to give a specimen of your breath or blood, the officer can take your driver’s license from you. However, the same is true if you FAIL a breath or blood test. Therefore, even if you consent to giving a specimen of your breath or blood, TX DPS can still try and suspend your license if the result is a .08 or higher.

Once a person requests the ALR hearing, the TX DPS will have to prove their case against you. First, they will have to prove that the officer had reasonable suspicion to stop you, and probable cause to arrest you. If the Department cannot meet this burden, then you win the hearing.

The TX DPS must also prove that you either REFUSED to take a breath or blood test, or you consented to a breath or blood sample and your BAC was a .08 or higher.

First, the ALR is important for your case first and foremost for potentially keeping your license from being suspended.

Second, an ALR can be valuable as a discovery tool by eliciting testimony from the arresting officer if he or she is subpoenaed, and shows up to testify at the hearing. This allows an attorney to question the officer, under oath, prior to cross examination of the same officer at your criminal trial.

If the officer does not show up to the ALR hearing, a person wins by default. When the officer does show up, it is important to have an experienced DWI lawyer to ask the right questions of the officer.

Can the ALR hearing affect my criminal case?
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The ALR hearing is completely separate from your criminal case. The outcome of one will not affect the outcome or status of the other.

However, if the officer testifies at the license hearing, his testimony cannot change when he shows up later to testify at your criminal trial. Sometimes this can be problematic for an officer who testifies to one fact/ opinion at the license hearing, and then his answers change at the criminal trial.

For example, an officer testifies at the license hearing that he smelled a slight odor of alcohol on someone’s breath after they exited their vehicle. Then, several months later at the person’s criminal trial, the officer testifies that he smelled a very strong odor of an alcoholic beverage as soon as he approached the car.

If your attorney is well prepared, he can use this conflicting testimony to show the jury the officer might have credibility issues in the case.

What is an occupational license? Do I need one?
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If your license is suspended from an administrative license revocation hearing, or due to a DWI conviction, you might be eligible for an occupational driver’s license. If the court grants an occupational license, the permit allows you to drive under certain conditions while your license is suspended. Requirements and restrictions can vary by county and by court.

In addition to a court filing fee, a person will also have to pay $125 reinstatement fee to TX DPS.

Furthermore, all occupational licenses require a ignition interlock machine in your vehicle. This requires you to submit a breath sample before your car would turn on.

Also, a person must purchase SR 22 insurance for the duration of the occupational license. Cannon Law recommends not purchasing this SR 22 insurance through your insurance company. This puts them on notice of your pending charges unnecessarily. Rather there are local companies which you can purchase this special insurance through online.

To see if you are eligible for an occupational license, or for SR 22 Insurance recommendations, contact Cannon Law

Do I have to give a breath or blood sample if I am pulled over? What if the officer gets a warrant?
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The simple answer is that you are allowed to refuse a breath or blood sample. However, if you refuse, an officer can then apply for a warrant to get a sample of your blood. If the officer obtains a warrant, he or she can take a sample of your blood without your consent- and use reasonable force to do so if necessary.

In Texas, when we get a driver’s license, we are giving our “implied consent” that we will provide a specimen of our breath or blood if we are pulled over. However, we are able to revoke our consent. Revoking your consent would then mandate an officer get a warrant to take your blood.

Should I give a breath or a blood sample?
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This is always a tough question to answer. In most situations, it is better to refuse a breath or blood sample, and require the officer to get a warrant. I will go through some of the potential benefits of refusal below.

First, some smaller counties do not always have a judge or magistrate on call 24 hours to sign a blood warrant. In this case, if you refused the breath/ blood test, the officer would not be able to get a sample, and there would be no blood alcohol evidence in your case.

Second, the warrant itself can give rise to several issues in DWI cases. To get a search warrant, a police officer must provide a probable cause affidavit alleging the details of why he stopped you, any signs or clues of intoxication that lead him to believe you were driving while intoxicated, and that he believes by refusing the test you are attempting to hide evidence of intoxication. When the probable cause affidavit does not have the proper information, or if the search warrant is not executed correctly, an experienced DWI attorney can get the blood thrown out of evidence. Again, in this circumstance there would be no blood alcohol level in your case.

Also, there are more ways to get blood thrown out of evidence than there are for breath. To have a proper admissible breath test, fewer things have to happen and less people are usually involved in the process. Therefore, there is a lesser chance of human error.

In a breath test case, often there are only one or two officers involved with the stop, arrest and breath test process. Then there is a technical supervisor who makes sure the breath test machine is working properly.

In a blood case, you usually have the officer who stopped/arrested you, the judge who signs your warrant, the nurse who takes your blood, the officer who transports it to the lab, the person who receives the blood and stores it, and the analyst who prepares the sample and tests the blood. Thus, there is a greater chance of human error every step of the way.

There has been some debate amongst attorneys about breath versus blood. Some attorneys argue that when the breath or blood test cannot be thrown out, and will be coming into evidence, juries tend to distrust a breath sample more than a blood sample.

Either way, you want to hire an experienced DWI attorney who knows how to fight your case, regardless if there is a breath test, blood test, or no BAC in your case. You want an attorney who has the legal knowledge to get breath and blood results thrown out of evidence, and who can also successfully argue a case to a jury with the BAC in evidence.

Call Cannon Law today to book your free consultation.

If my BAC is above a .08 am I automatically guilty of DWI?
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No. Just because the breath or blood sample is alleged to be .08 or above, does not mean you are automatically guilty of a DWI.

The state is required to prove their case beyond a reasonable doubt. Therefore, the state must prove that the test result in your case is accurate and reliable beyond a reasonable doubt.

Hiring an experienced DWI attorney is important to help explain to a jury the multitude of problems commonly seen in breath and blood results. It is important that your attorney has a deep understanding of the instruments the police agency uses in breath test cases, as well as the science of gas chromatography and lab's standard operating procedures in blood test cases.

When your attorney can accurately explain these complex sciences in simple terms, juries often do not feel the state can prove the breath test or blood test was accurate or reliable beyond a reasonable doubt.

If my BAC is below a .08 will my case be automatically dismissed?
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Not necessarily. It would seem almost common sense that the district attorney’s office would dismiss your case if your breath or blood was under the legal limit. However, I’ve seen prosecutor’s refuse to dismiss the case out right for a few reasons.

The first reason being that the prosecutor believes they can prove one of the other definitions of intoxication. (See definitions of legal intoxication here). The prosecutor in this case after watching your video and seeing the Standard Field Sobriety tests, thinks they can prove to a jury that you lost the normal use of your mental or physical faculties due to the introduction of alcohol or drugs.

The second reason your case might not be dismissed out right is because the prosecutor will argue that even though your BAC was under the legal limit when the officer took your breath/ blood sample, your BAC was higher at the time of driving. Just because you had alcohol earlier in time, it does not mean that your BAC was always higher earlier in time. It takes time (30 min up to 2 hours) for the body to absorb alcohol; your BAC will be rising during this phase. Then your body starts eliminating the alcohol, and your BAC will begin to decline.

If a prosecutor has certain information, they will try to do what is known as retrograde extrapolation. This is a calculation based on certain information that you gave the officer to calculate what your BAC was at the time you were driving.

Finally, some prosecutors will not dismiss your case outright when there is a combination of drugs and alcohol in your body. Even if you might be under the legal limit for alcohol, and only have prescriptions in your system, some prosecutors will try to argue that you were intoxicated because of the combination of the two substances.

Are breath and blood tests always accurate?
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NO! I could write pages upon pages of all of the problems with breath and blood testing. Problems with breath and blood tests, when successfully argued, are thrown out of evidence all of the time. These can be due to both human and machine error.

To keep it simple, you need to hire an attorney who dedicates their practice to DWI; your attorney should have the proper education and training on how to find these issues in your case and successfully argue them to the prosecutor, judge, or jury.

What if I only had prescription drugs in my system to which I was legally prescribed by my doctor?
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The state can still charge you with Driving While Intoxicated, even if the drugs in your system are legally prescribed to you. The prosecutor will have to prove that not only you had the drugs in your system, but also that they were affecting you at the time you were driving.

Will I have to go back to jail if this is my first DWI?
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Usually no. In most cases for a first DWI, a person is not required or sentenced to any jail time if they plead or are found guilty.

Most often, if a person spends extra time in jail for a first DWI, it is because they did not follow the Court’s rules while out on bond, and their case is still pending. This can include being late to court, blowing a positive alcohol test in their guardian interlock device, or failing a drug test.

Are DWI convictions permanent?
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The simple answer is yes. If you plead or are found guilty of DWI, you can never completely wipe it from your record.

However, depending on the facts of your case and the time surpassed, you MIGHT be eligible for a non-disclosure. If you are eligible, this will not completely erase the arrest or conviction. Government agencies and law enforcement are still able to access these records. This might potentially allow you to seal/ hide a past conviction from future employers and from public record.

What are the best and worst outcomes I can expect for my DWI case? What costs can I expect if I am convicted?
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The best outcome for any DWI is a dismissal. A dismissal is always Cannon Law’s primary goal for any case. If there is no dismissal in a case, then going to trial and the jury finding you Not Guilty is the next best outcome. Both a dismissal and a not guilty verdict will allow you to expunge the case from your record. Once your case is expunged, you can legally deny it ever happened.

The worst outcome for a DWI would obviously be a conviction- and the punishment a person receives as a result.

Punishment levels can vary greatly depending upon the level of DWI you are charged with.

DWI 1st Offense– Class B Misdemeanor

  • Up to a $2,000 fine.

  • 3 – 180 days in jail (This time is usually served through probation)

  • License suspension for up to 2 years.

  • Annual surcharge up to $2,000 for 3 years to keep your license.

DWI 1st Offense with a BAC at or above a .15 – Class A Misdemeanor

  • Up to a $4,000 fine.

  • 3 Days – 1 Year in Jail (This time is usually served through probation)

  • License suspension for up to 2 years.

  • Annual surcharge up to $2,000 for 3 years to keep your license.

DWI Second Offense– Class A Misdemeanor

  • Up to a $4,000 fine.

  • 30 days - 1 year in jail (Majority of jail time is usually probated)

    • Requires at least 3-5 days in jail depending upon when the prior DWI took place

  • License suspension for up to 2 years.

  • Annual surcharge up to $2,000 for 3 years to keep your license.

DWI Third Offense-

  • Up to a $10,000 fine.

  • State prison time between 2 years and 10 years.

  • License suspension from 6 months - 2 years.

  • Annual surcharge up to $2,000 for 3 years to keep your license.

DWI with a Child Passenger Under 15-

  • Up to a $10,000 fine.

  • Jail time up to 2 years.

  • License suspension for 180 days.

Can a DWI affect my ability to work or travel out of the state or internationally?
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Yes, it can affect your ability to travel while you are on bond and your case is pending, while on probation, and sometimes even after you served your sentence.

Some courts will set travel restrictions while your case is pending or while on probation. However, if your attorney knows about upcoming travel dates, they can often get permission from the judge for you to travel.

Also, a DWI conviction (even a misdemeanor), can affect your ability to travel internationally. This is commonly a problem for those wishing to travel to Canada.

Allow Cannon Law to help you with any travel issues you may be facing because of your DWI conviction.

What am I required to do, say, or provide when I am pulled over?
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You will be required to provide your license and registration. You are not obligated to provide any details about your day. Ex: Where you are coming from, where you are going, what you have had to drink, how much you have had to drink, when you consumed that alcohol, what your last meal was, how often you drink, etc.

Often times the officer already smells the alcohol on your breath, and is only looking to build his case against you.

Most importantly, always be polite and courteous when you are pulled over, even if the officer isn’t being friendly toward you. If the officer asks you to step out of your car, you should comply.

You do not have to perform any standard field sobriety tests (Which you can read about in more detail here). You do not have to take any breath test at the scene or back at the station. You do not need to consent to a blood test. If the officer gets a warrant to take your blood, at this time, you can express that you do not consent to the blood sample being taken, but comply and allow the nurse/ phlebotomist to draw your blood.

Often times people feel they have to consent to road side tests, breath tests, or blood tests or else they will get into more trouble. That is not necessarily the case. How you refuse the officer’s tests and questioning can make all the difference. It is okay for you to politely tell the officer you do not feel comfortable with any balancing tests, you would prefer the officer get a warrant before drawing your blood, and you would like to speak to your attorney before answering any questions. The scenario would likely play out much differently if you have an attitude with the officer, try to leave the scene, or physically resist the officer when he is trying to place you under arrest.

Be polite, but know your rights!

What are the Standard Field Sobriety Tests and how accurate are they?
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There are 3 tests an officer will usually ask you to perform: The Horizontal Gaze Nystagmus (HGN), the Walk and Turn, and the One Leg Stand. These tests were created and standardized by the National Highway Traffic Safety Administration (NHTSA).

Horizontal Gaze Nystagmus (HGN) -
During the Horizontal Gaze Nystagmus test, the officer will ask you to stand with your feet together and follow a stimulus (a light or a pen) with only your eyes, and without moving your head. I hear all too commonly that people think the way to pass this test is by not moving their head. Unfortunately, that is not what the officer is looking for. The officer is looking for a small involuntary jerking motion in your eyes which is caused by a CNS depressant such as alcohol.

This jerking cannot be felt by the person taking the test. Without going into too much detail, the officer is looking for a total of 6 clues of intoxication during this test. If the officer observes 4 out of the 6 clues, then the police will determine you are intoxicated.

However, there are many issues with this test both at the scene and in trial.

  1. The HGN test must be administered correctly or the results can be invalidated. Often times, the officer does not give the test properly as required, but will testify he saw 6 out of 6 clues of intoxication anyway. A knowledgeable DWI attorney will recognize the problems with the way the officer administered the test during or prior to trial, and argue to have the HGN test thrown out of evidence before the jury hears this damaging and prejudicial testimony.

  2. Some people have natural nystagmus. Without the officer knowing whether or not you have natural nystagmus without consuming alcohol, he cannot know whether you are even a good candidate for the HGN test. Certain injuries and conditions can cause this jerking in a persons’ eyes; for example, head injuries/ concussions, neurological diseases, or certain eye issues can cause eyes to jerk even if the person has not had any alcohol.

  3. The eye movements the officer is looking for are very slight. The officer’s dash camera which is filming the test will not show a person’s eyes. Therefore, these results cannot be shown in the court room for the jury to see. This means we are forced to accept the officer’s subjective memory of the test, which likely took place 6 months to a year ago. Knowing their finding cannot be refuted, officer’s almost always find 6 of 6 clues on this test.

  4. Also, certain environmental factors can cause the eyes to jerk i.e. flashing lights during heavy traffic on the side of the freeway or from the officer’s flashing lights on his car.

Walk and Turn Test -
The walk and turn test is one of two divided attention tests. Although people presume this to be a simple “walk in a straight line” test, it is actually far more complicated than that.

There are a total of 8 clues the officer is looking for on this test. The officer is looking for 2 of these clues before he even tells you to begin the test. It only takes 2 of 8 clues for the officer to make the determination that you are intoxicated. You can fail the test before you have taken your first step.

The officer starts by giving you instructions. He will ask you to stand on a line with your left foot in front of your right, touching your heel to your toe, and with your arms down at your side. Once you are in this position, he should tell you not to move from this position until he tells you to begin.

He should then explain that once you are instructed to begin the test, you will take 9 heel to toe steps down the line (real or imaginary), and on your 9th step, to turn around by taking a series of small steps, and return down the line taking 9 heel to toe steps. He will tell you to count your steps out loud, look down at your feet while walking, and not to raise your arms from your side. Finally, he will tell you that once you start, do not stop.

If you “broke” from the position the officer put you in before he started explaining the lengthy instructions for the test, you have already exhibited one clue of intoxication.

Also, if you started to walk your 9 heel to toe steps before the officer told you it was okay to begin, then you have exhibited another clue of intoxication.

It does not take tripping and falling to fail this test. I have seen many people fail this test sober. The officer does not tell you the factors they are watching for to score your test. Keep in mind some of the clues can be very minor and you don’t get a practice run.

8 Total Clues-

  1. Can’t maintain balance during instructions/ Breaks from the starting position

  2. Begins test too soon

  3. Miss Heel to Toe - You only have to miss touching heel to toe by half an inch

  4. Uses Arms for Balance- Many people simply didn’t catch the officer giving this as one of the many instructions, and naturally they put their arms out straight while walking the line. You only have to raise your arms 6 inches from your side during the entire test to mark this as a clue.

  5. Improper turn- Many people do not turn using the odd “series of small steps” that the officer asked. Simply pivoting or doing an about face will be considered another clue of intoxication.

  6. Taking the wrong number of steps- This one seems common sense. However, I have had people tell me that they thought it would help them to do more steps than the officer required of them. Unfortunately, this is counted as another clue of intoxication.

  7. Stepping off the line- Even if the officer asks you to imagine a straight line, and no such line actually exists, the officer can still determine you stepped off said imaginary line and list it as a clue of intoxication.

  8. Stopped While Walking- If you stop at anytime during the test, the officer can mark this as a clue of intoxication. Even if you are merely stopping to ask the officer for clarification or to ask a question, it can be counted against you.

There can be many other factors that could affect your performance other than intoxication: natural balance and coordination, the shoes you are wearing, injuries, anxiety, age, weight, language barrier, etc.

As you can see, this test is far more complicated than just walking in a straight line to show the officer you are not drunk.

One Leg Stand-
The instructions for the One Leg Stand are a little less convoluted than the Walk and Turn test.

The officer will tell you to:

  1. Stand straight with your feet together with your arms down by your side.

  2. Not to begin until you are instructed to

  3. After you are instructed to begin, lift one leg of your choosing

  4. Keep the leg lifted about 6 inches parallel to the ground

  5. Keep both of your legs straight and look down at your foot.

  6. Count out loud in the manner described (one thousand 1, one thousand 2, one thousand 3)

  7. Continue until he tells you to stop. The officer will use a timer and require the person to stand on one leg for 30 seconds.

The officer is looking for a total of 4 clues of intoxication. If a person shows 2 or more clues, the officer will determine the person is intoxicated.

4 Clues-

  1. Sways- It does not take falling or nearly falling. If a person merely sways the officer can mark this as a clue of intoxication

  2. Raises Arms- A person would only need to raise their arm 6 inches from their side to be marked as a clue of intoxication

  3. Puts Foot Down- If you put your foot down at any time during the 30 seconds, this will be marked as a clue of intoxication

  4. Hop- If you hop to maintain your balance within the 30 seconds, this can be marked as a clue of intoxication.

These tests are not easy to perform. It does not take being drunk to fail these tests. An experienced DWI attorney not only understands how these tests work, but have more training and education regarding the SFSTs than the officers do.

Understanding these issues and explaining them to a jury can be vital to your case. Contact Cannon Law today to start preparing your best legal defense in your case

Do I have to perform the Standard Field Sobriety Tests?
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No, you do not have to perform the field sobriety tests. They will rarely help your case. Typically speaking, the officer is not trying to give you a way to “prove your innocence” or prove that you are not drunk. Rather, they are looking to build their case against you.

Does the police officer have to read me my Miranda Rights? Will my case be dismissed if he didn’t?
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An officer has to read you your Miranda Rights once you are under arrest and before any “custodial interrogation.”

Failure to do so will not necessarily get your case dismissed.

If the officer places you under arrest and does not read your Miranda Rights to you, he can not ask you any more questions. If the officer did ask you questions without reading you your proper rights, your answers might not be admissible against you at trial. It depends on what questions the officer asked you.

This would not include questions verifying your identity (name, date of birth, address, etc.), or any breath or blood test results. The officer reads a separate set of statutory warnings to you before asking for your consent or refusal for a breath or blood test.

In summary, if the officer does not read you your Miranda Rights, your case will not automatically be dismissed, but potentially admissions or confessions might be thrown out of evidence.

Do I have to accept the State’s Plea Offer? How do I know if I should go to trial?
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No, you do not have to accept the state’s plea offer, which is typically a permanent conviction. You always have the right to go to trial.

Most of the time if a DWI is not dismissed, my advice IS to go to trial.

Cannon Law always communicates the offers made by the state and the benefits and risks of going to trial. It is important to go through your case with your attorney so you are able to see the best and worst facts and evidence that would be presented in trial. Cannon Law will take you step by step through your case so you feel informed about all of your options.

What is “No Refusal” Weekend? Does that mean I have to consent to give my breath or blood?
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On certain holidays or during special events, a city or county can say it is “no refusal” weekend.

That does not mean you HAVE to consent to a breath or a blood test. It merely means if you choose NOT to consent, there will be a judge or magistrate available to give the officer a warrant to take your blood.

Many people ask if that means they should just consent since the officer will be able to get their blood anyway. Click here for a detailed answer outlining that question.

When do I have the right to call my attorney?
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Nothing in the law requires the police officer to allow you to call your attorney while you are in their custody. Once you have been arrested and taken into jail, there are typically phones you can use.

Was I being videotaped? How can I get a copy of the video(s)?
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Most likely you were being videotaped during most of your encounter.

Most police cars are equipped with a dash camera and were running prior to the officer turning on his lights and pulling you over. Some of the larger police agencies are starting to use body worn cameras in addition to their dash cameras. There is often a back seat camera when the officer is transporting you from the scene, to the jail or hospital. At the police station most of the rooms and holding cells are being recorded. Therefore, any more field sobriety tests done at the station, any breath test, or any blood draw is being recorded.

Your attorney will receive a copy of any video the district attorney has for your case.

Cannon Law does not rely upon the state to provide all of the evidence in your case even though the prosecutor is required to provide it. Cannon Law goes further and subpoenas the agency directly for any evidence in your case, and conducts a scene investigation to see if there is any security footage from surrounding businesses that could help your case. Time is of the essence in this regard, as many video recordings can be lost or deleted as time passes. Contact Cannon Law today for a free consultation.

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