The following is an interview between – Collin Evans – Houston DWI Lawyer, and Chris Ornelas – CEO of Eye See You Now Inc. (ESYN) Digital Marketing Agency. The purpose of this consultation-style interview is solely to serve the general public with education of available resources and possible outcomes of a DWI charge. We are grateful to Collin for sharing his time with us and sharing his 12+ years of experience working as a criminal defense attorney on DWI cases in Harris County.
(Bold text indicates important text, key terms, definitions, or quotes that we feel are of vital info to the public.)
– Eye See You Now Inc.
— START INTERVIEW —
ESYN (EYE SEE YOU NOW):
“I really appreciate your time today Collin.
Just for our readers to catch up real quick, let me ask you: What is your experience with DWI cases and how did you get started?”
“Sure thing Chris. When I first started working on DWI cases, I was in law school and clerking for a law firm. There was one partner in particular there who specialized in DWI, and I learned a lot from him. After graduating law school and then working as an attorney, I started to focus more on training and learning as much as I could about DWI law enforcement and what methods officers use to investigate – through standardized field sobriety tests and breath-testing instruments like the intoxilyzer. After a few years, the landscape changed – there were a lot more blood cases, so I learned about gas chromatography, how proper blood draws are done, and all the different ways that the government can make mistakes–with the blood testing procedures, and also with the officer’s investigation.”
“On your website, you explain that due to the nature of a DWI – it is an opinion crime.
The reality for a majority of people arrested for a DWI is that the arresting officers don’t actually know if a person is under the influence of alcohol or if it could be medication, or a medical issue, or a number of other things that people may have that often don’t get accounted for.”
“Yeah, and a lot of people do get wrongfully accused by officers who think they’re doing the right thing and get somebody who they think is intoxicated off the road. But it’s a very low standard for the officer to be able to make that arrest decision and throw somebody in jail, even if they haven’t done anything wrong. You know, there are a lot of different reasons why someone could seem to be intoxicated to an officer who has never met them before.”
“Things as simple as a speech impediment, or being diabetic.
A keto diet and being in ketosis – that can give off a sweet odor of what seems like alcohol – when it’s really your body that’s causing that and not because you’ve ingested alcohol.”
“Same thing with medications. I mean… people that have to take medications because of physical or mental issues – they’re better on the road on those medications. You don’t want – I don’t want – to be driving on the road with someone who is diagnosed ADHD and because they’re not on their medication is distracted and creates a dangerous situation on the road for everyone. Same with someone who has severe depression. Would you rather have someone who is feeling so down in the dumps and blue that they would rather have their world end by driving their car into a tree or worse, on-coming traffic, on their medication like Xanax or not following their doctor’s orders and drive without haven taken it? By taking their medication, that depressed person feels normal and is not in a state where they could put other people in harm’s way. Officers these days are hyper-sensitive when someone admits they’ve taken anything because they take that as “you’re under the influence” so I’m getting you off the road. And you might be – “under the influence” – that doesn’t mean you’re intoxicated. Impairment and under the influence – it’s all relative. How many millions of people drink coffee or drink cokes all day? That you are “under the influence” of something doesn’t always mean you’re going to be a danger at the level of someone who is intoxicated–especially when it is something that can be treated to enable functioning at their normal baseline level.”
“That makes sense.”
Putting it that way most of us would likely prefer that drivers be under the influence of their prescribed medications.
That was quite the thought, but it really does make sense when I think about it. Most adults are medicated, so why shouldn’t a police officer expect that to be a contributing factor in someone’s behavior and apply that logic to their driving behavior?
Collin most times is careful and exact in choosing his words, other times, he’s letting it rip – something I think I’d want from my attorney – especially when the facts all check out. He seems not only justified, but is passionate about this particular point, and that likely comes from a long and impressive track record successfully representing DWI clients in court.
“So whether someone is on medication or not – would you recommend that people refuse things like breathalyzers and sobriety tests?”
“So, what they call SFTS – standardized field sobriety tests – I call them roadside balancing tests. I mean, those are set up to make you look…abnormal. You get put into positions that people don’t do day in and day out.”
“You don’t usually stand there listening to someone giving instructions on how to perform a physical task with one foot directly placed in front of the other, and your hand at your side.”
“And no, you don’t walk the way they want you to either. They put you in these positions where you’re just bound to fail, no matter what your physical capabilities. I’ve had clients who are professional athletes, who have looked like they’ve failed those tests. And then there’s people who are overweight or older. They should be disqualified from taking those tests, but the officer still puts them through it, runs them through the battery.”
“A real simple example is that you get a “clue” – get dinged – in those tests for using your arms to balance right, and you look at a professional gymnast who has spent their entire life training and practicing and competing to get on a balance beam. They have their arms completely out to their sides, and are teetering back and forth and swaying. But I guarantee that none of those girls are under the influence of something – at least not to the point of being intoxicated.”
“Whether or not you should refuse tests, I think every case is different. There are situations where It was probably better that someone went through the tests because they looked good in it and yet when we get the blood results back they’re crazy high – three times the legal limit – and you’re just watching this video going: “That makes no sense! he should be vomiting and passing out, have urinated on themselves” …which I’ve seen those. And then there are others where you get the blood results back in and know there Is something wrong that that can’t be right and that there was a problem somewhere. These days it’s tough to say what to refuse. But a breath test case can be easier to win than a blood test case because of the inherent trust that jurors seem to have with blood tests. They just think it’s the same as when they go to the doctor and get their blood drawn, and do tests on that, so why is it any different – well, it takes educating them about how they actually work.”
HOW BLOOD TESTS ACTUALLY WORK:
“It’s not the blood that they’re testing at all actually. It’s actually the air above the blood.
That is what they’re drawing a sample from and it’s not the same. What’s important to know here is that there are problems with both kinds of tests and generally – refusing a test is not a bad idea.”
“My general advice to people is – refuse everything.”
“Make them do their job, because they’re the ones that have to prove the case. I have run into those situations where they refuse to test and they don’t end up getting blood or there’s a problem with the way they got the blood, the warrants, the procedure in the draw, the way it was handled, or something happened that the blood result doesn’t end up coming in. All this can affect the way a case is handled and the way a jury looks at it.”
“For years the general advice was – “do not blow” – because they weren’t really doing blood tests or blood warrants. But now here in Harris County, every day is a no refusal day.”
“If you refuse, can they still take your blood and go to jail for the night?”
“They can still get a warrant, and if you want to fight them about it, they’ll strap you down and they’ll take your blood. Whether you like it or not.”
“Do you get a suspended license?”
“Getting arrested for a DWI doesn’t mean that your license gets suspended automatically, but it can happen so you have to act quick. I can’t tell you how many times someone has called me weeks after their arrest because they stuck their head in the sand about the situation–hoping it would just blow over–only to find out that there was nothing I could do to help with the suspension.”
“There’s lots of different ways to avoid a license suspension and avoid a conviction, even if you’ve been drinking, or taking drugs, or mixing the two. I have people come to me all the time that are truthful about what happened before they got arrested. We may have problems with their case, but that doesn’t stop me from looking into it and making sure that the government does their job. It’s not my job to prove the case – it’s my job to represent my client and put the government’s evidence to the test.”
“OK, that makes sense. Now as far as cost – is there a range of pay or does it depend on what you foresee happening in their case?”
“As far as my representation?”
“If somebody called you on the phone and said – “How much would it cost me for you to represent me for A DWI case?””
“Every case is different. When you take a breath test or your blood is drawn, and they analyze that, and the prosecutor will come back with a report that has the result and will say:
‘This is what your client was.’”
“I’ll say: ‘Okay. Fine. That’s what you are saying it was at that time when they took that test.’
You still have to prove that’s what they were at the time they were driving, prove that your machine’s working right, that the sample was taken correctly, and that all these different factors that go into whether or not the results are admissible and reliable.”
“More importantly, that involves hundreds and hundreds of documents that I have to review that they don’t just give to you initially. I’ve seen or have worked with lawyers, who will get that blood test result and say ‘alright – it’s two times the legal limit – I don’t see how we get around this.’”
“But that is when you have to take the time and put in the effort to learn the science, learn how to spot issues with what they’ve given you, then you can find ways to hopefully make a case go away, or convince a jury to find not guilty.”
“I guess to answer the question – it really depends on the case. A DWI first versus a DWI second versus or felony DWI–like an intoxication assault. You know, or where you’ve got someone hurt, or there’s a dead body. That drastically changes things. So everybody’s situation is different.”
“Do you offer payment plans? I’m sure that helps.”
“I do. Yeah, for a lot of people it does.”
“That’s great, and so somebody calls you and explains their situation. There’s of course a lot of competition out there. How do you differentiate yourself from the guy you know across the street? Is it your years of experience, or do you have certain methods and strategies that you use versus the other guys? How do you get that person to choose you over the next lawyer down the street?”
“Sure, so I think it goes back to first – my experience. I’ve been working in criminal defense for fifteen years, and a practicing attorney for over twelve years now, and just seeing cases – hundreds and hundreds and hundreds of DWI cases and there’s different defenses in different situations, and I think that my experience coupled with my passion for educating myself is what separates me. I go to a lot of seminars. I’ve gone to a lot of continuing legal education seminars specifically focused on DWI defense. I’ve become certified in standardized field sobriety tests, just like the officers who walk out of the academy are certified. I have also done training at a laboratory. It’s called Axion Labs, where I’ve done hands-on training with the machines that the lab analysts use. I’ve seen how mistakes can be made and how to identify those mistakes, and point those out to a jury.”
“There aren’t a lot of attorneys in our area that spend the time and put the effort into learning the science and how to combat that BAC number when the state tries to bring in scientific evidence. But the lawyers who have put in the time and effort can really make a difference for their clients. I have learned from them and really appreciate their willingness to share their knowledge. I try to differentiate myself from the guy across the street through my understanding and experience handling these types of cases.”
“You mention the jury – is somebody that is going through a DWI situation definitely going to have to go to court and is there always a jury involved? “
“At the first court setting, they’re always going to have to go to court. That’s their arraignment. That’s where the judge informs them of their rights and what they’re charged with to make sure they understand what they’re going to be facing moving forward. After that, it kind of depends on what court you’re in whether or not you’re going to have to be returning. And also what’s going on with your case. Not every case gets set for trial.”
“My number one goal in every client’s case is a dismissal and that is the best outcome for most clients because it doesn’t involve the stress of trial and having to go through that fight because it is a stressful process to go through as a defendant, I can imagine, having to sit there for two or three days or more in some situations to find out whether or not you are going to be convicted and whether or not you may have to go to jail. But a jury’s not going to be involved in every case.”
“I’ve had plenty of cases that were dismissed, that never even got to a trial setting. And then there’s other ways that we can work cases out. If I’ve got a really tough case where the facts just aren’t good for us and I can’t seem to find a way to get around those bad facts, and the client decides that they don’t want to take it to trial, then there’s other things we can do like pre-trial intervention programs for first time offenders; the case can be dismissed after they go through supervision, like probation. In Harris County, there are situations where even people who aren’t first time offenders, or had other cases in their past, can still get in the program. But it’s still a case-by-case basis.”
“So going into everything – you don’t necessarily have to plead guilty right?”
“Does a DWI make things like car insurance go up?”
“It can. When you get arrested for DWI, there are public records right away. There’s also an administrative case called the Administrative License Revocation hearing (ALR). That is something that goes on your driving record once it’s reported to DPS that you’ve been arrested. If you don’t win that hearing, then there is a suspension that’s reported on your driving record, and then if you get convicted that gets reported to DPS and goes on your driving record.”
“So if your insurance company runs that driving record and finds out about the DWI, then it can result in an increase in your rates. I’ve had clients whose policy was canceled and clients whose insurance company refused to renew the policy when that time period came up. It doesn’t always happen because there was a conviction or a suspension.”
“If there was an accident at all and the insurance company figures out that it was DWI-related, then that can affect that policy or the way the insurance company deals with it in the future.”
“What is the best case scenario of helping somebody come out of this situation?“
“Meaning once it’s closed and done, do the insurers look at that and say, ‘Well, they actually weren’t convicted, never mind, we’re not going to charge them more?’
Or – is there still a record of a DWI?”
“Does the outcome of your services completely wipe any trace of DWI, or does it stay on the record somehow regardless?”
“So a best case scenario for a DWI is that we win the ALR, Or so there isn’t a license suspension from that. The DWI case is dismissed or found not guilty at trial. And then we get through the expunction process to the point where law enforcement records of the case are destroyed.”
“Going through the expunction process, you have to take additional steps if you want to make sure the criminal background check companies are updated about that and make sure that their records are correct. Because of the information age that we live in and the Internet it’s almost impossible to guarantee that it will never pop up for someone in the future but I do everything that I can to clean things up once we’ve gotten through and had that kind of success. But even if you are convicted, there are ways to seal the record from the public, depending on the situation. If your license gets suspended and we go to trial and you are found not guilty, then we can go back and clean up that suspension off the driving record.”
“If your license is suspended because of the ALR and the DWI case is dismissed there’s nothing I can do to get that suspension taken off the driving record, unfortunately. So that’s something that an insurance company if they run it can find and it can affect their policy.”
“What about working with people that work full time 9-5 type. Do you work with people along with their schedule to meet with them?”
“Yeah I certainly will work with people. I offer virtual consultations and do consultations over the phone. You know, there are some situations where we just need to meet face to face. If we’re getting close to making a decision about what to do with the case, then I have my clients come in and look over their video so they know what a juror would be looking at and seeing what it looked like out there. We sit down and we go over things face to face. I think that’s important, but you know there’s plenty of situations where I will do what I can to make it convenient for the client.”
“How long does this full process take – a few months, a year?”
“Well, it’s the ”lawyer” answer that everyone hates to hear: It depends.”
“Every case is different. I mean, I’ve had cases where, in the first setting, I’ve gone in there and convinced the judge to find that there is no probable cause, which leads to a dismissal, or I’ve convinced the prosecutor to dismiss, and the case goes away.”
“And then I’ve had cases where it took well over a year before we got to a trial setting. It’s the discovery process that right now is a little frustrating because it takes time for the labs to do their analysis and to report those to the prosecutors. Law enforcement has often taken a long time. There’s a big backlog on getting videos from body-worn cameras and dash cameras, so there’s some delays. if I’ve got a client with an H.P.D. case, I tell him, we’re not going to be having any sort of sit down discussion about your case until at least six months have gone by because I’m probably not going to have the video before then.”
“And then again with blood test cases, I’ve got to get hundreds and hundreds of pages of records from the lab and have a chance to go through those and then possibly get an expert involved as well and this can add time to it.”
“Generally, what I tell clients when they hire me is “if you want this done right, you need to be prepared for this to be a marathon, not a sprint.” Because it’s rare for a case to go away at the beginning of the process. It usually takes a long, long time and requires a lot of effort.”