Driving While Texting

I have observed drivers weave in out of a single lane of traffic aimlessly from time to time. The initial reaction is to think "is the driver intoxicated?" But countless times as I pass the driver that cannot control his/her vehicle from swerving, what I see is someone texting/emailing or using their iphone or other smartphone while driving. I have been guilty of this myself, and it is dangerous, and often times the driving habits of someone driving while texting mimic those signs of someone driving while intoxicated.

The New York Times has a great new interactive game that let's you test your reaction time when you text while driving. If you play the game below, try to actually read the text messages like you would one from a friend, and when you text an answer, don't just do whichever is shorter. The point of the "game" is not to win, but to just see potential consequences of texting while driving.

Interactive Game

Two new Texas laws reflecting phones are in effect: one banning teen drivers from using cell phones and text messaging devices; the other prohibiting drivers from using handheld cell phones in school crossing zones.

Legislation Update/New Texas Laws

Some new traffic and criminal laws to be aware of:

SEATBELTS

House Bill 53

Requires all occupants of a vehicle, no matter their age, to be secured by a safety belt, no matter where they are seated in the vehicle; changes the definition of a passenger vehicle to include a passenger van designed to transport 15 or fewer passengers including the driver; removes the current exemption for third-party Medicaid transportation provisions regarding the use of child passenger safety seats; and prohibits a motorcycle operator from carrying a passenger under the age of 5 unless the child is seated in a sidecar attached to the motorcycle.

Senate Bill 61

Amends the existing statute regarding child passenger safety seats. The bill requires any child younger than 8 years of age be restrained in an approved child passenger safety seat unless the child is at least 4 feet 9 inches in height. The fine is no more than $25 for a first offense and $250 for a second offense. The law also creates a new court cost for conviction of an offense under this section to be collected and used by TxDOT to buy safety seats for low- income families. The law becomes effective today, but tickets for this offense cannot be issued until June 1, 2010. Police officers are allowed to issue a warning before that date.

DRIVING

House Bill 55

Makes it illegal to use a wireless communication device in a school zone unless the vehicle is stopped or a hands-free device is used. Cities or counties wanting to enforce this law must post a sign at the beginning of each school zone to inform drivers that using a wireless communications device is prohibited and the operator is subject to a fine. It is a defense to prosecution if the operator was making an emergency call.

House Bill 2730

Increases the penalties for driving while intoxicated with a child passenger by adding an automatic driver’s license suspension period for first-time offenders and an increased suspension period for repeat offenders. The driver’s license reinstatement fee for completing an education program will rise from $50 to $100. Closes a loophole so a person who commits an offense as a minor cannot circumvent the driver’s license penalty if the person turns 21 before their court date.

House Bill 2012

Creates two new punishment enhancements: a Class B misdemeanor if a person drives with a suspended license and without insurance; and a class A misdemeanor if the person driving without insurance or a valid driver’s license has an accident and someone is seriously injured or dies as a result of that accident.

Senate Bill 129

Authorizes neighborhood electric vehicles (NEVs) to be operated on roads with a posted speed limit of 45 miles per hour or less. The bill authorizes driver’s license holders to operate NEVs without having a motorcycle endorsement, clarifies that drivers and passengers in such vehicles are not required to wear helmets and specifies that enclosed three-wheeled vehicles as described in the bill are authorized to operate in preferential lanes.

MOTORCYCLES

Senate Bill 1967

Requires that applicants for an original class M license or class A, B or C driver license (including commercial driver licenses and permits) with authorization to operate a motorcycle, provide evidence of completion of an approved motorcycle operator training course. The law also increases the penalty for failure to yield the right-of-way if there is a crash that results in injury to a person other than the motorcycle operator.

VEHICLE INSPECTION

Senate Bill 589

Requires that a vehicle equipment safety compliance label be placed on a windshield, side or rear window stating that the window tinting complies with the appropriate provisions of the Transportation Code. Failing to place the required label on the vehicle could lead to a $1,000 fine.

DRIVER'S LICENSE

House Bill 2730

Requires that all applicants under the age of 18 take the driving skills exam to receive a driver’s license. The law also requires that a provisional driver’s license (under 18) or instruction permit expire on an individual’s 18th birthday, removes the requirement that a provisional driver’s license or instruction permit be renewed annually and increases the fee for those licenses from $5 to $15. It also extends the current phase-two restrictions for holders of a graduated driver’s license from 6 months to 1 year. These restrictions include limited night driving, prohibited use of wireless communication devices and a limited number of passengers.

House Bill 339

Increases the total hours of behind-the-wheel driving instruction a teen receives from 14 to 34 and creates an adult driver’s education requirement for applicants older than 18 and younger than 21.

Senate Bill 1317

Creates a six-hour driver’s education course required for driver’s license applicants 18 years of age or older. It also mandates that applicants 25 or under must submit to an approved driver’s education course. (Goes into effect March 1, 2010.)

Senate Bill 328

Gives DPS the power to suspend a minor’s driver’s license for failing a breath or blood alcohol test while operating a watercraft. Chapter 524 of the Transportation Code also clearly defines the suspension period for an individual who was under the age of 21 at the time when the offense of boating under the influence or driving under the influence of alcohol occurred. The law also increases the reinstatement fee for a license suspended under sections 49.04-49.08, Penal Code from $50 to $100.

House Bill 2730

Increases the driver’s license sanction from a one-year CDL license disqualification to a lifetime disqualification if a person uses a motor vehicle to transport, conceal or harbor an alien. If a child is engaged in conduct involving a severe form of trafficking persons, a judge at a juvenile hearing is required to order the juvenile’s driver license or permit to be suspended.

House Bill 2730

Prohibits DPS from issuing a driver’s license or identification card to a person who has not established a domicile in Texas. The law specifies that an applicant may receive a driver’s license at a post office box only if the applicant’s residence address has also been provided, with some exceptions.

CONCEALED HANDGUN

House Bill 2730

Amends numerous provisions regarding concealed handgun licenses (CHLs), including eliminating student loan defaults as a disqualifier, to clarify that DPS must suspend or revoke a license when the licensee becomes ineligible and mandating that a magistrate suspend a CHL held by the subject of an emergency protective order.

House Bill 2664

Provides a defense to prosecution if a concealed handgun license holder carries a concealed handgun into an establishment that gets 51 percent or more of its income from the sale of alcoholic beverages, but has failed to post the statutorily required notice that it derives 51 percent or more of its income from the sale of alcoholic beverages. (Under current law, a concealed handgun licensee can be charged with a Class A misdemeanor for doing this.)

House Bill 2730

Removes DPS authority to suspend a concealed handgun license (CHL) for the holder’s failure to display the CHL to a peace officer on demand. It removes associated penalties and suspensions for the failure to display.

CRIME

House Bill 558

Allows minors to be charged with public intoxication.

House Bill 2386

Allows courts to immediately seal juvenile criminal records if the juvenile successfully completes a drug court program, or another special program ordered by the court.

House Bill 1282

Makes it a Class B misdemeanor to steal a driver’s license, commercial driver’s license or personal identification.

Senate Bill 554

Makes it illegal to own or possess dog-fighting equipment and establishes that such equipment and property where dogs are found to be engaged in dog fighting is contraband and is subject to forfeiture. The law also makes dog fighting subject to the elevated penalties authorized in the Texas Penal Code, Section 71.02(a), in an effort to deter organized criminal activity.

House Bill 1813

Makes it a third-degree felony to tamper with forensic, medical, chemical, toxicological and ballistic reports, as well as reports of certification, inspection or maintenance of instruments used to examine or test physical evidence. (Currently, someone who does this can only be charged with a state jail felony.)

House Bill 358

Allows law enforcement authorities to store only a small part of gambling machines that have been seized, instead of storing the whole machine. They would be able to remove and store just the computer chips in gambling machines, which are the core of the machines and contain the information necessary for prosecutions to go forward.

REGISTERED SEX OFFENDERS

Senate Bill 689

Restricts Internet usage by certain registered sex offenders, and requires registered sex offenders to provide information about their e-mail addresses when they register.

MISCELLANEOUS

House Bill 2730

Increases the fine for a parking violation at the state Capitol from $10 to $25, and increases the late fee from $2 to $5.

Senate Bill 1188

Authorizes a Texas resident to buy firearms, ammunition or firearms accessories in any other state, not just those contiguous to Texas, to reflect updated federal statutes.

Source: Texas Department of Public Safety

A few new Texas laws

Starting tomorrow we will have a batch of new laws. I will do my best to to add as many of the relevant new laws as I can in the next few posts.

Here's some of the ones that will impact everyone:

All passengers in every vehicle will have to wear a seat belt, no matter how old they are or where they are in that vehicle.

There is a new booster seat requirement for kids in vehicles, it's no longer kids under five but it's kids under eight, or shorter than 4'9".

Teenagers trying to get their first driver's license will have to get 34 hours of behind-the-wheel driving instruction, and they will have to take a driving skills test in addition to the written test.

Using a hand held phone while driving through an active school zone becomes illegal, however, local authorities can only enforce the new restriction if signs announcing the ban are posted at the beginning of each school zone.

What is a Walk-Through?

Sometimes we throw around words or terms that we are accustomed to in our legal field, but that mean nothing to our client. One of those phrases is a "Walk-Through."

At it's most basic definition, a walk through is a process of self-surrendering with a get out of jail card in hand. For example, if you have a warrant for your arrest in Travis County for let's say Assault Bodily Injury. You can either 1) wait to get arrested, and then hire an attorney or pay a bail bonds company to get you out of jail or 2) be proactive and hire an attorney to get your bond signed as soon as you know there is a warrant.


If you go with option number 2, the process is as follows:

1. You hire an attorney to do a walk through.

2. The attorney gets a bond signed for your warrant.

3. You and your attorney then schedule a time for you to turn yourself in, along with your bond/get out of jail card.

4. The jail then books you so that they can get your information, such as picture, thumbprint and so on.

5. After the process is complete, you go home, and your warrant is no longer active and you did not spend a night in jail, get put in jail clothes, or go to actual jail. The process can take anywhere from 30 minutes to 2 hours depending on the number of self surrenders on that particular night.

6. Once the warrant has been taken care of with a walk through, you are not at risk for being arrested for that particular warrant and you and your attorney can begin the defense of your criminal charge without a night in jail.

The Iphone to calculate your BAC?

What can't this Iphone do? (Well until yesterday mine couldn't get reception, but that's a different story).

The clever named Application and Website is called "RUPISSED?" The website and application for your iphone features a blood alcohol calculator that guesstimates your BAC level depending on your honest answers to the variables. The website also features other valuable information about Alcohol, Hangover cures, and some other somewhat useful and entertaining information on topic.

And to make sure my post is also somewhat education, below is a brief overview of how a breathalyzer works.

How can a person's breath show how much that person has had to drink?

Alcohol that a person drinks shows up in the breath because it gets absorbed from the mouth, throat, stomach and intestines into the bloodstream. Alcohol is not digested upon absorption or chemically changed in the bloodstream. As the blood goes through the lungs, a physiologically predictable amount of the alcohol will moves across the lung membranes and into the lungs themselves.

Once in contact with the air in the lungs, it evaporates and is exhaled. The concentration of the alcohol in the air in the lungs is directly related to the concentration of the alcohol in the blood.

The ratio of breath alcohol to blood alcohol is 2100 to 1 (and called the partition ratio), so the alcohol content of 2100 milliliters of exhaled air will be the same as for 1 milliliter of blood. The maths are simple from there and leads to blood alcohol readings expressed as a percentage of alcohol in the blood.

The partition ratio can vary between 1700 and 2400 depending upon the individual and local environmental conditions, leading to a breath analysis reporting either a higher or lower calculated blood alcohol reading.

Since it is a physiological response, the partition ratio can be raised or lowered by:

Body Temperature: The widely used blood-to-air partition ratio of 2100 is based on a normal body temperature of 98.6°F. A higher body temperature of the individual will overestimate the actual BAC because of the higher volatility (or vapor pressure) of liquids like alcohol at a higher temperature. An elevation in body temperature of 1°C (1.8°F) results in a 7% higher value in the result since the air in the lungs will contain an artificially higher amount of evaporated alcohol. Therefore, a person with a body temperature of 100.4°F, and with an actual blood alcohol of 0.0935%, will register a value of 0.10% by the breath test. Be careful if you have a cold or the flu.

Cellular Composition Of Blood: Blood contains suspended cells (e.g. red and white cells) and proteins, and is therefore only a partial liquid. The partition ratio of 2100 is based on an average cell volume 47%. Some of this cell volume is tissue, and at 47% cell volume, 81.5% of the blood volume is liquid in which the alcohol is actually dissolved. A person with a lower cell volume will have a falsely elevated blood alcohol level based on a breath test since the amount of alcohol in 2100ml of lung breath will be dissolved in a slightly higher amount of liquid, and hence have a lower concentration. Cell volume values range from 42% to 52% in males, and 37% to 47% in females. This variability will only have a small impact on BAC (ranging from -2% to +5%) so don't rely on it in court.

Factors Affecting Breathalyser Accuracy- Breathalysers only estimate the BAC, not physically measure it, so several factors can cause the breathalyser to give either an artificially higher or lower reading. The most common are:

• Body temperature and blood composition as outlined above.


• Some breathalysers can't differentiate between ethyl alcohol and other compounds of a simple chemical nature. Methyl compounds such as acetone and ketones can be present in the breath of diabetics and those taking dietary supplements, causing the breathalyser to over-estimate the BAC. Similarly vinegar can cause confusion with some of the older or dumber breathalysers. Envronmental substances in the vicinity of the breathalyser including compounds found in lacquer, paint remover, celluloid, gasoline, and cleaning fluids can also effect the reading in older breathalysers.


• Breathalysers assume that the alcohol concentration in the breath will be the same as in the blood, and that the breath is sourced from deep in the lungs, but the breath alcohol concentration can be increased by vomit or blood in the mouth, acid reflux, or simply having had a drink recently with alcohol residue from that drink still being in the mouth at the time of testing. Mouthwash or breath freshener often contain alcohol, so don't use these in an attempt to disguise the smell of alcohol when being pulled over.


• Electrical interference from cell phones and police radios.


• By law, police breathalysers are required to be calibrated for a particular ambient operating temperature, and nearly all are. The problem comes in areas that experience cold winters - while the breathalyser may be calibrated for the correct outside temperature, if its taken out of the nice warm patrol car and used immediately it will not have had enough time to cool down to its calibrated operating temperature and will give an artificially high reading.


• Absorption of alcohol into the blood may lag actually drinking it by as much as 1-2 hours so even though you may have alcohol in your breath, if you've only consumed it recently it may not be in your bloodstream in the concentration that testing your breath indicates.

Question & Answer

Question: “I’m on probation and I got arrested last night for a public intoxication. I’m really scared. What is going to happen?I would be off probation actually this month….will this effect it?”

Any new arrest can affect your probation as it is considered a violation of probation. A probation officer has the discretion to give a probationer a warning, or to make him appear before a court for a “probation violation” hearing. If the latter is done, the probation officer can ask the Judge to extend your probation for more time, or add extra conditions such as more community sesrvice or classes, or ask that your probation be revoked and ask for your placement in jail. If the violation is serious (the same level or higher than your original offense), your probation may be revoked completely and confinement in jail imposed, usually that requires a bigger violation than a public intoxication.

by: Law Office of Florencia Rueda,PLLC
905 West Oltorf, Suite D Austin, Texas, 78704
(512) 415-7648

How to Avoid a Bond Forfeiture

If you have bonded out of jail, either through a personal bond or a surety bond, that bond can be revoked and an order for your arrest can be mandated if you have forfeited your bond. I often get hired to help a client after they have already acquired a bond forfeiture. They tell me about their case, and more times then not the initial charge is a minor infraction that could have been handled easily in court, if only they would have gone to court. After I explain to my clients the process of bond forfeitures and how to go about setting them aside, and all the fees associated with it, my clients then realize that what was once an easy case is now a bit more complex. So before it gets to that point, I will do my best to explain 1) How to avoid a bond forfeiture and 2) the consequences of having a forfeiture.

Show up to All Court Dates

A condition of your bond is that you be present to each one of your court dates. It is your responsibility to attend court and not be late, even if your attorney is going to court for you as well. That is why it is very important that you be aware of all of your pending court dates and times. If you fail to show up for your court date in a misdemeanor case the judge can forfeit your bond, increases the amount of the bond and issues a warrant for the your arrest.

However, if you fail to show up for your Felony case the consequences are more severe. The District Attorney could file a felony Bail Jumping charge. This is unlikely where only one court date is missed and through counsel you quickly gets your case back on the docket in good standing. Under Texas Penal Code, Section 38.10, Bail jumping is a third-degree felony punishable by two to ten years in prison, and/or a $10,000 fine.

Complete all Conditions

Sometimes a condition of a personal bond will be to do counseling classes, or to have ignition interlock installed in your vehicle. Of course, a given condition is to not commit any new offenses while out on bond, so a new offenses can also result in your bond being forfeited. If there is a condition of your bond, and you do not complete that condition in the time allowed, a judge may revoke your bond, issue a forfeiture, and order a warrant for your arrest.

Bond Forfeiture Civil Suits

Once your bond is forfeited you not only face a warrant and (usually) at least some time in jail, you also face a civil suit to recover the amount of the bond forfeited. As a general rule, the Travis County Attorney’s Office will file a civil suit against 45 days after the bond forfeiture is entered.

A civil suit can be avoided if the bond forfeiture is set aside within 30 days of its issuance. However, if the forfeiture is not set aside, the County Attorney’s Office will file the civil suit and start the clock ticking for settlement of the suit. Typically, the fees for settling a civil bond forfeiture lawsuit are the costs of filing the suit, the State’s attorney fees, and, in most cases, 5 percent per month of the amount of the bond. These fees are in addition to the cost of hiring your own attorney to handle the settlement.

If you already know that your bond has been forfeited, you should hire an attorney as soon as possible to set the forfeiture aside, stop or settle the civil suit, and get your case back on the docket.

By: Law Office of Florencia Rueda, PLLC
905 West Oltorf, Suite D,
Austin, Texas, 78704
(512) 415-7648