Often times folks who are having some type of medical condition look and act like they are intoxicated.  This is true even if they have not had anything to drink.  One area of real concern is those folks that are diabetic.  When a person is in a diabetic shock state they have the same type of odor that comes from alcoholic beverages.  I saw this story today about a 65-year-old St. Louis man who is missing after Amtrak personnel, mistaking his diabetic shock for drunk and disorderly behavior, kicked him off a train in the middle of a national forest.  The sad part of this story is that the folks just assumed that he was intoxicated.  Often times police simply assume that because a person can’t do something perfectly and has a smell of alcohol that he is intoxicated.  There are many reasons, including but not limited to medical issues, that a person may make mistakes.  If the police allege it is because a person is intoxicated they better be able to prove it and not just make an assumption.  You know what they say about the word assume.  I trust and pray that this gentleman is found alive and well. 

In Texas, a public place means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.  If the area is restricted to a private homeowner or to a place to which the public generally does not have access, then the element needed of operating a motor vehicle in a public place for a DWI conviction cannot be satisfied.   Years ago, my law partner and I tried a case where our client was accused of a DWI in a cotton field.  We were able to successfully argue that the cotton field did not fall within the definition of a public place.  When fighting DWI’s/DUI’s remember that each and every element must be satisfied in order for there to be a conviction.

Today I had several people ask me my views on the Paris Hilton story. Specifically they wanted to know about the issues with the prosecutor in the case. What is really interesting about her case is that had she not simply pled guilty to the reckless driving she would have had a great chance of being found not guilty. She had a very low breath test case and most dwi experts have said she had a great case to try. Just another reason that if a person is accused of a crime, they should not plead guilty.
In case you have not heard, the prosecutor in the case has several issues. The prosecutor, Mr. Delgadillo, 46, decried Hilton’s release from jail by the sheriff. He argued that Hilton should serve more time behind bars for driving with a suspended license and violating her probation on alcohol-related reckless driving charges. Then on the same day, he acknowledged that his wife, Michelle, got a ticket for driving with a suspended license in 2005. Here is the link for the full story if you are interested. As for Lubbock and West-Texas I will tell you that I believe we have some very good and ethical prosecutors. For the most part, I think they do what they think is right. I often disagree with them about areas of cases and facts but I do believe that almost all of the folks we deal with are good ethical people. There are several prosecutors over the years however are simply not concerned about justice but in fact will do just about anything, ethical or not to get a conviction. As my dad has always said what is good for the Goose….

There are many reasons to request an Administrative License Revocation Hearing also known as an ALR hearing.  One reason to request the hearing is to try to save your drivers license.  Understand that it is very easy to take a license.   Another reason to request the hearing is to see what type of witness the officer/trooper in the case is going to make when he or she testifies in court.  This is the opportunity to find out how well trained the officer/trooper is in the area of DWI.  Finally, you request the hearing to tie down the officer’s/trooper’s testimony.  This hearing is under oath and you can obtain a copy of the transcript.  Just last week, we were able to use the ALR transcript to impeach the officer’s testimony in a suppression hearing.  Overall, the ALR is a very important tool when it comes to DWI defense and should be requested in each and every case if possible.  REMEMBER you only have 15 days from the date of arrest to request the hearing.

This week the United States Supreme Court held that a passenger in a vehicle has standing to challenge a stop of the vehicle made by the police. It has always been the law that when a driver is stopped by the police that the driver can challenge the legality of the stop. In Texas the passenger has been able to challenge the reason for the stop under specific Texas statutes. I’ll write more on these statutes next week. However, there has been some confusion as to whether under the federal constitution a passenger can challenge the reason for the stop. In legal terms we call this standing. This just means that if the stop is bad or illegal only those who have standing can challenge the stop. It is pretty obvious that the driver has a legal right to fight the reason for an officer’s stop but now it is also clear that a passenger can also challange the reason. This is important because if the reasons for the officer’s stop are illegal or invalid then any evidence found as a result of the stop is also illegal. We call this the “fruit of the poisonous tree. The Supreme Court case is Brendlin v. California, __U.S.__ (No. 06-8120, 06/18/07) and was decided in favor of the passenger in a 9-0 vote.
For those of you who don’t want to read the entire case, here is an overview of the case and the reasoning behind the case.

Cops stopped a vehicle with an expired registration and recognized and later identified the passenger as petitioner Brendlin. The car that was stopped had an expired registration but a valid permit was on display indicating that the vehicle was being operated lawfully. Because Brendlin was in violation of his parole, he was apprehended. Cops searched the vehicle, and uncovered methamphetamine, among other things. When Brendlin raised challenges to the constitutionality of the traffic stop, the State Supreme Court held that passengers in vehicles no not have the same status as drivers in traffic stops when Fourth Amendment issues are raised.

Held: The right to challenge the constitutionality of a traffic stop extends to the passengers of the vehicle in question. The Supreme Court reasoned that no reasonable passenger in a traffic stop would believe that s/he was free to “terminate the encounter” with the officer, thus rendering passengers “seized” in the same way that the driver is in a traffic stop for purposes of the Fourth Amendment. Judgment is therefore vacated and case us remanded for further proceedings.

Welcome to our west-texas/ Lubbock dwi blog. My name is Stephen Hamilton and my law partner is Nicky Boatwright. Nicky and I try many dwi/ duim cases in Lubbock and West-Texas. We decided to start this blog for several reasons. First, we often receive questions from clients and others about areas involving dwi. These questions often times raise interesting questions and so we have decided to use this blog to answer these questions and well as inform the public about dwi issues. We also decided to start the blog because we both enjoy the work we do as dwi defense attorneys. We strongly believe in the right of an adult to consume alcohol and operate a motor vehicle so long as the adult is not intoxicated. Our office including all of our staff is dedicated to the defense of those who drink and drive. We aggressively fight charges in Lubbock and west texas and are proud to say that we are DWI/ DUI trial attorneys. We hope you find this blog both educational and informative. We hope that if you or a loved one is ever chaged with a DUI, you will seek a skilled DUI/ DWI trial attorney and remember just being arrested does not mean that a person is automatically guilty.