Once in a while a scenario pops up when a DWI investigation changes from Alcohol to Drugs. In other words, the cops might think a person was intoxicated by alcohol, and then later change their mind and investigate the case as a drug DWI.
This case was very interesting. My client was pulled over on a traffic violation and the officer immediately started a DWI investigation. The officer noted in his police report that he smelled a “STRONG ODOR OF ALCOHOL”, and all the other typical things officers claim they see and smell on every DWI case.
My client was adamant that she had not been drinking. They had her perform sobriety tests, and even though she was severely overweight, she did reasonable. It did not matter. The officers put her in handcuffs and took her away.
Once at the jail my client gladly volunteered to take a breath test. The result? 0.00 alcohol in her system. The officer seemed dumbfounded. He went and grabbed a supervisor and they put her through the sobriety tests a 2nd time. A little bit of time passed and they got a third officer to put her through the sobriety tests.
At this point my client was livid. She was demanding answers as to why she was there, and why they were not releasing her. She told them she felt like she was being railroaded, and they were essentially trying to find something that wasn’t there (correct!).
They put her through interviews, and asked if she had taken any medications. She told them she had a prescription for a medical issue and BAM! There was the officer’s out. They charged her with DWI and put in the offense report that it was due to prescription drugs!
Their problem? Alcohol and Drug DWI Investigations are very, very different. In an Alcohol Investigation they have a checklist of questions they go through, and they typically do the 3 standard field sobriety tests (Horizontal Gaze Nystagmus, Walk and Turn, One Leg Stand).
However in a drug DWI, they are supposed to get an officer who is a certified DRE (Drug Recognition Expert) to do a special 12 part evaluation to determine if the driver is impaired by something other than alcohol.
Those 12 steps are:
- Breath Test to see if there is any alcohol
- Interview the officer who arrested the person
- Do a preliminary exam and check the pulse
- Eye Exam
- Divided attention tests
- Take vital signs and a pulse a 2nd time
- Pupil tests under 2 separate lighting conditions
- Muscle Tone Exam
- Examination for injection sites and a 3rd pulse
- Interview and additional observations
- DRE forms an opinion on intoxication and potential substances
- Request of a toxicological exam
In this case they never got a DRE, and they didn’t do most of the 12 steps. At the end of the day, even if they had done it, a DRE is simply the opinion of the officer. But without it, it leaves the investigation incomplete.
After I was able to point out numerous problems to the DA, they finally dismissed the case, even though her blood came back with prescription pills (that doesn’t always matter either!). My client was thrilled.
DWI’s can be complex. You need an Attorney who knows what to do when a DWI Investigation Changes from Alcohol to Drugs. If you have any questions feel free to reach out to me, Houston DWI Attorney Eric J. Benavides and I will be more than happy to talk to you.
Eric Benavides is a Houston Criminal Defense Attorney. He is the founder of Benavides Law Group. He is a graduate of the prestigious Texas Criminal Defense Lawyers Trial College and is a proven trial lawyer. He has been named a Texas Super Lawyers Rising Star and has been recognized as one of the best criminal lawyers in Houston by Houstonia and H-Texas magazines.