If your driver’s license is suspended as a result of a DWI arrest or conviction, you may have a right to have your driving privileges reinstated with an occupational driver’s license. Click the link below to view some requirements for an occupational driver’s license.
In addition to the above requirements, you must draft a Petition for an Occupational License, present the petition to a judge, show proof f SR-22 insurance, and in some cases, present the judge with a copy of your driving record prior to being granted an occupational license. My office can guide you through the occupational process and help to get your driver’s privileges reinstated. For more information or to request an initial consultation with our office contact The Law Office of Troy P. Burleson, P. C. toll free at (866) 439-2182.
]]>If you have recently been arrested and charged with DWI, your license is not automatically suspended unless you fail to request an ALR hearing prior to 15 days after your arrest. On the date of your arrest, you should have received a notice of suspension form (a.k.a. DIC-25) from the arresting officer. Click the link below to see a sample DIC-25 form.
If you fail to request an ALR hearing within 15 days of your arrest your driver’s license will be AUTOMATICALLY suspended on the fortieth (40th) day after your arrest. Specific rules must be followed in order for an ALR request to be valid. My office requests ALR hearing FREE OF CHARGE for clients who request an initial consultation with our office. To request an appointment and an ALR hearing, contact The Law Office of Troy P. Burleson, P. C. toll free at (866)439-2182.
]]>Officers administer field sobriety tests o citizens they suspect are guilty of DWI/DUI. According to most officers, these tests give the citizen a chance to prove he or she is not intoxicated. With that in mind, the question should be, “how fair are these tests?” More to the point, “are these tests designed to make a person look bad or look good?” Let’s take a look at the instructions of one of the field sobriety tests, the one leg stand, and the possible errors and see if we can mathematically determine if these test or fair.
]]> Walk and Turn Instructions1. Stand heel to toe and hands down to your side
2. Maintain stance during instructions
3. If you lose your stance, resume until instructions are complete
4. Take nine heel to toe steps down the line
5. Turn taking a series of small steps
6. Take nine heel to toe steps back down the line
7. Keep arms down to the side during the entire test
8. Keep your eyes on your feet
9. Count your steps out loud
10. Don’t stop walking until the test is complete
Walk and Turn Possible Errors
{Note: an error could be scored at each count during test performance}
1. Loses balance during instructions--1
2. Starts the test before being told to begin--1
3. Stops while walking on the line--18
4. Misses heel/toe (at least ½ inch; not the number of times; one or more=1 clue)—18
5. Raises arms for balance at least six inches; one or more= 1 clue)—18
6. steps off line—18
7. Turns improperly—1
8. Takes wrong number of steps—2
TOTAL POSSIBLE ERRORS--77
NUMBER OF CLUES TO FAIL TEST--2
Let’s Do the Math:
There are 77 possible errors on the One Leg Stand Test. To fail, the officer only needs to observe 2 errors, or clues. A simple mathematical formula will show:
2/77 =X/100
X=200/77
X=2.59
THEREFORE—You MUST score “97.5” to PASS the One Leg Stand Test based on 100 Possible Points.
Question—How many tests have you taken in your life in which a 97 or below was a FAILING GRADE?
Do you still think that the field sobriety tests are designed to make you look good? NO, they are designed to make you fail.
]]>Officers administer field sobriety tests to citizens they suspect are guilty of DWI/DUI. According to most officers, these tests give the citizen a chance to prove he or she is not intoxicated. With that in mind, the question should be, “how fair are these tests?” More to the point, “are these tests designed to make a person look bad or look good?” Let’s take a look at the instructions of one of the field sobriety tests, the one leg stand, and the possible errors and see if we can mathematically determine if these test or fair.
]]> One Leg Stand Instructions1. Stand with feet together
2. Stand with your arms down to your side
3. Do not begin until instructed
4. Were instructions understood
5. Stand on one foot
6. The other foot held out straight about six inches off the ground
7. Point toes forward
8. Toes parallel o the ground
9. Count from one to thirty by thousands (1001, 1002, etc.)
10. If your foot goes down, restart at point of interruption
One Leg Stand Possible Errors
{Note: an error could be scored at each count during test performance}
1. Puts foot down 30
2. Hops 30
3. Raises arms (more than six inches) 30
4. Sways (must be noticeable) 30
TOTAL POSSIBLE ERRORS 120
NUMBER OF CLUES TO FAIL TEST 2
Let’s Do the Math:
There are 120 possible errors on the One Leg Stand Test. To fail, the officer only needs to observe 2 errors, or clues. A simple mathematical formula will show:
2/120 =X/100
X=200/120
X=1.67
THEREFORE—You MUST score “98” to PASS the One Leg Stand Test based on 100 Possible Points.
Question—How many tests have you taken in your life in which a 97 or below was a FAILING GRADE?
Do you still think that the field sobriety tests are designed to make you look good? NO, they are designed to make you fail.
Dental appliances can be a major factor in high breath test results. Like GERD defenses, dental issues concern mouth alcohol. If a person fails a breath test, and has had major dental work, this defense should be explored.
Dental appliances include, but are not limited to: braces, retainers, mouth expanders, bridges and false teeth or dentures. These appliances provide an opportunity for food to become trapped in the mouth after eating. Anyone who has had extensive dental work, such as braces, will tell you that getting food trapped in their teeth is a persistent problem.
Some studies have demonstrated that some dental adhesives can trap alcohol in ones mouth for up to one hour. A 15-20 minute waiting period before a breath test can be administered does not eliminate this problem.
There has been insufficient testing on subject who had both consumed and absorbed alcohol in their system with certain dental appliances to truly know the magnitude of the effect of the dental appliance. Therefore, a dental appliance problem can escape detection by the traditional slope detector on the machine. A “disconnect defense” may be available for a defendant who has dental issues, a high breath test and a “sober” video.
A Note about this Article from Troy Burleson--The contents of the article above were taken by permission from copyrighted material from the Law Office of Christopher N. Hoover, P.C. Mr. Hoover is my law partner and a lifelong criminal defense attorney whose particle is exclusively dedicated to DWI/DUI defense.
]]>The Tyndall Effect is a physics concept used to discuss something known as “colloidal suspensions.” Colloidal suspensions describe a homogenous substance consisting of submicroscopic particles dispersed in another. Unlike solutions, colloidal suspensions exhibit light scattering. A beam of light or laser, invisible in clear air or pure water, will trace a visible path through a genuine colloidal suspension, e.g. a headlight on a car shining through fog. This is knows as the Tyndall effect (after its discoverer, British physicist John Tyndall), and is a special instance of diffraction. Diffraction is a phenomenon that occurs with gases and liquids.
]]> The original air bag design called for the air bag to be packed in a powdery substance to preserve the inflatability of the bag. Over time, the air bag could develop cracks. The powder prevented the cracking and thus made the air bag available for inflation rather than explosion in the event of a collision. Now air bags are made differently and there is no powder in newer model vehicles.The Tyndall Effect in breath testing alleges that is a subject is driving in a collision in which the air bag has inflated; the subject would inhale microscopic particles of the powder at impact. All persons who have experienced an air bag will tell you that they get an awful taste in their mouths and sometimes it is difficult to breathe. The effect hypothesizes that these microscopic particles continue to remain airborne for several hours.
If a person has been exposed to an air bag deflation prior to breath testing, some of those microscopic particles of powder will be supplied into the sample chamber at testing. The presence of the powder will “diffract” the light from the infrared source and create a false high result in the breath test.
A Note about this Article from Troy Burleson--The contents of the article above were taken by permission from copyrighted material from the Law Office of Christopher N. Hoover, P.C. Mr. Hoover is my law partner and a lifelong criminal defense attorney whose particle is exclusively dedicated to DWI/DUI defense.
If you have been accused of DWI/DUI and are currently on a low carb diet, such as the Atkins Diet, then you may have a valid defense to a high breath test result. Low carb diets are based upon the concept of vastly decreasing your intake of carbohydrates while relying on protein intake as your major source of nutrition. The absence of carbs forces your body to burn fat rather than carbohydrates and therefore you lose weight.
]]> Low carb diets generally have four phases: Induction, Ongoing weight loss, Pre-maintenance and Lifetime maintenance. In order for these diets to work, a person must follow the four phases as described for maximum results.A prevalent byproduct of the Atkins diet is the increase in Isopropyl alcohol molecules in your system. These molecules are created by enzymes in your body that break down complex substances for nutrition or elimination through chemical reactions. Although you do not smell like rubbing alcohol (Isopropyl) after being on the diet, isopropanol is one of the major waste products of the Atkins diet.
As discussed here before, ispopropanol molecules look much like ethanol molecules. Both isopropanol and ethanol contains the CH3 bonding that the Intoxilyzer 5000 measure. There is also no know interferent detector on the Intox 5000 to detect or deduct any isopropanol from the air within the sample chamber. If significant amounts of both isopropanol and ethanol are measured by the machine, it will assume all CH3 bonds belong to ethanol molecules and a false high breath test may result.
Generally, a low carb diet will only affect the results of a breath test is you have followed the diet fairly religiously for at least four to six months before this isopropanol byproduct is significant.
To understand how chemical exposure might affect the results from an Intoxilyzer 5000, one must first have a basic understanding of how the Intoxilyzer works. The basic operation of the Intox 5000 is infrared spectroscopy combined with a computer program hat converts a measure in decreased light o units of measurement of alcohol (gm/210 liters). The machine does this by measuring infrared light in the sample chamber of the machine. When a subject’s breath is introduced into the sample chamber, a photo detector measures and decrease in light emitted from on side of the chamber to the other side. The amount of the decrease in light is then entered into a computer program designed to convert the decreased light into grams of alcohol and the converted into an expression of grams per 210 liters of air.
]]> I know that sounds like a lot, but it is really quite simple. A light bulb on one end of the sample chamber send light to the other end. Molecules in the chamber (supposedly alcohol from your breath) will prevent some of the light from going all the way across the chamber. The difference is then computed by a highly guarded computer program to determine your breath/alcohol concentration.It is important to understand which molecular bonds the Intox 5000 is looking for in its analysis. Specifically, it is looking for the bonds that are between the carbon (C) and three hydrogen (H) atoms (CH3). Therefore, if a compound contains carbon and hydrogen atoms that combine into a CH3 bonding pattern (like that of alcohol), that compound will potentially be recognized as “alcohol” molecules within the sample chamber. If this is the case, the breath test will produce a result that is above the actual alcohol concentration in the person’s blood. Some other compounds that have CH3 bonding patterns similar to alcohol are:
Acetone
Xylenes
Toluene
Acetaldehyde
Isopropyl Alcohol (Isopropanol)
Methanol
The chemicals listed above can be found in everyday life in products such as: nail polish remover, auto body paint, petrochemical products, floor refinishers and strippers, solvents (home and garage).
To affect a breath test, a person must be involved with the chemical source long enough to have had it introduced into their bodies. These molecules may be absorbed through the skin and lungs if sufficient exposure occurs. Typically, people with jobs such as 1) a floor refinisher, 2) paint and body person, 3) manicurist and 4) computer technician whose job it is to clean microprocessors with acetone may have chemical exposure that might affect the result of a breath test.
One can do a quick search on Google concerning the Intoxilyzer 5000 and discover that there is a great volume of internet literature concerning the many scientific problems with the machine used in Texas to measure a person’s breath/alcohol concentration. As an attorney dedicated to DWI/DUI defense I have spent numerous hours researching issues concerning the performance, or lack there of, of the Intoxilyzer machine. In addition, my law partner, Christopher N. Hoover, has spoken numerous times and written many articles on the major issues with the Intoxilyzer 5000. Below, are the 5 major issues that Chris has discovered and written on concerning the performance of the Intoxilyzer 5000. The 5 things that can have a major affect on the machines performance are: 1) Chemical Exposure; 2) Air Bags (aka the Tyndall Effect); 3) Atkins or low carb diets; 4) Gastro Esophageal Reflux Disorder (GERD); and 5) Dental Issues.
The first three (chemical exposure, Tyndall Effect, and Atkins or low carb diets) are problems based on interferents that may not be detected by the Intoxilyzer 5000. The last two relate to “mouth alcohol” which is increased alcohol laden breath results based upon gastro esophagus disorder and dental issues.
To read more about these 5 major issues that may affect the result from an Intoxilyzer 5000 click on the links below:
Chemical Exposure
Air Bags (aka Tyndall Effect)
Atkins or low carb diets
GERD
Dental Issues
If you gave a breath sample you may be familiar with the following scenario:
A police officer takes a person into the Intoxilyzer room to give a sample of his or her breath. The officer explains to the person that he or she must give two breath sample and must blow into a tube, connected to the Intoxilyzer hard enough to make the machine emit a steady, audible tone. The person then begins to blow into the machine and the officer starts cheering, like a high school pep squad,
“Keep breathing! Breathe harder! Harder! Keep going, that’s good you doing great!”]]> Ever wonder why the officer would seem supportive of your efforts and so enthusiastic to cheer you on? The following studies may shed some light on that question:
According to these studies, a persons breathing pattern may affect the results of a breath test in the following ways:
a) Holding your breath for 30 seconds before exhaling increased the blood-alcohol concentration (BAC) by 15.7%.
b) Hyperventilating for 20 seconds immediately before the analyses of breath, on the other hand, decreased the blood-alcohol level by 10.6%.
c) Keeping the mouth closed for five minutes and using shallow nasal breathing resulted in increasing the BAC by 7.3%, and
d) Testing after a slow, 20-second exhalation increased levels by 2%.
Moreover, Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington has gone farther and concluded:
"By far, the most overlooked error in breath testing for alcohol is the pattern of breathing….The concentration of alcohol changes considerably during the breath…The first part of the breath, after discarding the dead space, has an alcohol concentration much lower than the equivalent BAC. Whereas, the last part of the breath has an alcohol concentration that is much higher than the equivalent BAC. The last part of the breath can be over 50% above the alcohol level….Thus, a breath tester reading of 0.14% taken from the last part of the breath may indicate that the blood level is only 0.09%.”9(6) The Champion 16 (1985).
Most police officers know this. They also know that if the machine contradicts their judgment that the person they arrested is intoxicated, they won’t look good. So when they tell the arrestee to blow into the machine’s mouthpiece, they’ll yell at the person and try to cheer them on to influence the persons breathing patter to change the way the person blows into the machine.
So, if you were wondering why you got such an ardent cheering session from the officer during your arrest for DWI, now you know the reason!!!
When it comes to DWI, your innocence or guilt depends largely if not entirely upon what a machine says. The simple fact is that people are being convicted of a crime — beyond a reasonable doubt — based entirely upon what a machine says. That being said, the question every citizen should ask is “Are we that sure of the machine’s accuracy?”
A better question would be, “Are the manufacturers of the machine sure of its accuracy?”
“CMI, Inc., a subsidiary of MPD, Inc., warrants that each new product will be free from defects in material and workmanship, under normal use and service, for a period of one year from the date of delivery to the first user-purchaser….”
“There are no other warranties expressed or implied, including but not limited to, any implied warranties of merchantability or fitness for a particular purpose….”What? CMI, Inc., says this machine is not warranted for any “particular purpose” — which, for the Intoxilyzer 5000, is measuring alcohol on the breath. So they don’t guarantee that it will measure breath alcohol?
One of the most argued points of law concerning the Intoxilyzer 5000 is the amount of assumptions that the machines internal “source code” makes when calculating a persons BAC (breath alcohol concentration). Until recently, the manufacture (CMI) has refused to turn over there source code to defense attorneys so that we can test the code for internal flaws. However, courts have begun to force CMI to turn over its source code and if CMI refused, courts have refused to allow the State to use the breath test result in trial.
]]> On of the biggest assumption the Intoxilyzer 5000’s source code makes is that the machine is programmed to assume that the suspect has 2100 units of alcohol in his blood for every unit of alcohol in his breath. This is called the “partition ratio”. But this ratio is only an average: actual ratios vary from as low as 900:1 to as high as 3500:1Click below to view the infamous Intoxilyzer 5000.
Download file
The breath test machine used in Texas to determine a person’s alcohol concentration is the Intoxilyzer 5000 which is made by the Kentucky Corporation, CMI. Click the link below to view an article by Craig Freudenrich, Ph.D. describing how the Intoxilyzer 5000 is supposed to work.
“How Breathalyzers Work”
by Craig Freudenrich, Ph.D.
Collin County DWI Field Sobriety Tests: If you have been arrested for DWI in Collin County, the officer who arrested you probably asked you to perform three tests known as the "field sobriety tests." I have described these tests in detail in this blog here. As a recap, there are three field sobriety tests. The first is the horizontal gaze nystagmus test. The second, is the walk and turn test. Finally, the third test is the one leg stand test.
Many defense attorneys, including this one, argue that these tests are designed to make you look bad or fail. They are inherently biased and do not test a persons normal ability to operate a motor vehicle. Among the attorneys who share the belief that these tests are designed to make you fail, is Lawrence Taylor. Attorney Taylor is a nationally know DWI/DUI attorney from California and the author of the book "Drunk Driving Defense."
Roadside field sobriety tests (“FSTs”) are commonly used by police officers in DUI investigations to determine whether a driver is under the influence of alcohol. Typically, they consist of a battery of 3-5 excercises, such as walk-and turn, one-leg stand, “nystagmus” (“follow the pencil with your eyes”), finger-to-nose, alphabet recitation, “Rohmberg” (eyes-closed-position-of-attention), etc. The officer may subjectively decide whether the individual “failed”, or he may decide after applying recent federal “standardized” scoring.
These DUI tests have an aura of scientific credibility. Unfortunately, however, they have no real basis in science and are almost useless in a drunk driving case. First, as any traffic officer or DUI attorney knows, the decision to arrest is made at the driver’s window; the FSTs given supposedly to determine probable cause to arrest are actually for the purpose of gathering evidence. Second, since the officer has already made up his mind, his subjective decision as to whether a person passed or failed field sobriety tests is suspect: as with any human, he will “see” what he expects to see. Third, the conditions under which the field sboriety tests are taken almost guarantee failure: usually late at night, possibly cold, along a graveled or sloped roadside, with bright headlights from passing cars (setting up wind waves), the officer’s flashlight and patrol car’s strobe and headlights providing the lighting — and given to a person who is nervous, frightened and completely unfamiliar with the tests.
Fourth, field sobriety tests are irrelevant and, in fact, designed for failure.
What scientific basis exists to validate FSTs in a DUI investigation? Only a “study” by a private business firm, the “Southern California Research Institute”, with a grant from the federal government to find a “standardized” battery of usable DUI tests. To earn their money, SCRI came up with three tests which, they said, were not foolproof but were much better than all of the other FSTs that were being used. Yet after some study even this company concluded that, using the three standardized tests, 47 percent of the subjects tested would have been arrested for DUI — even though they were under the .10% limit. (Burns and Moskowitz, Psychophysical Tests for DWI Arrest: Final Report, DOT-HS-802-424, NHTSA, 1977.) The company was sent back to the drawing board and, in 1981 came up with some better figures: only 32 percent of those who “failed” the tests were actually innocent. (Tharp, Burns and Moskowitz, Development and Field Sobriety Test of Psychophysical Tests for DWI Arrests: Final Report, DOT-HS-805-864, NHTSA, 1981.)
Well, SCRI was paid to put their stamp of approval on a set of field sobriety tests. But what has been the reaction of the (non-profit) scientific community? In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had “had too much to drink and drive”. Unknown to the officers, the blood-alcohol concentration of each of the 21 DUI subjects was .00%, stone sober. The results: the officers gave their opinion that 46% of these innocent people were too drunk to drive! In other words, the field sobriety tests were hardly more accurate at detecting intoxication than flipping a coin. Cole and Nowaczyk, “Field Sobriety Tests: Are they Designed for Failure?”, 79 Perceptual and Motor Skills Journal 99 (1994).
As I have reported here in recent posts, the house of cards that is the Intoxilyzer 5000 may indeed be ready to topple. First, a Washington State court ruled that breath tests results would not be admissible, and wrongfully convicted citizens may appeal their conviction, due to malfeasance by the state’s lab technicians. Now, a new “smoking gun” email may future expose the Intoxilyzer 500 as the fraud that it is!
]]> According to a report from the Pioneer Press in Minnesota, Charles A. Ramsay, a DUI defense attorney, on Monday released a copy of what he calls the "smoking gun" e-mail from a BCA toxicologist to Intoxilyzer 5000 manufacturer CMI Inc. of Owensboro, Ky.