Archive for June, 2013

Can Mouth Alcohol Provide a Viable Texas DUI Defense?

Friday, June 21st, 2013

Many people arrested for DUI in Texas are familiar with the term “mouth alcohol,” but wonder whether it is a valid defense or more of an urban myth.  Because the most compelling piece of evidence used by prosecutors in most Texas DUI cases is a failed breathalyzer test, the accuracy of blood alcohol concentration (BAC) test results obtained through breath testing is an extremely important issue in most DUI cases.  Mouth alcohol represents one of the most significant causes of inaccurate BAC breath testing.

The term “mouth alcohol” refers to residual alcohol that lingers in the mouth that has not yet been absorbed and metabolized by the body.  Breath testing devices used by law enforcement do not actually measure the volume of alcohol in one’s blood.  Rather, the device measures the alcohol in breath from the deep lung tissue and converts this using a mathematical ratio to the concentration of alcohol in the blood.  The fundamental issue that makes the presence of mouth alcohol so critical is that alcohol that has not yet been absorbed and metabolized by the body will have a much higher BAC level than alcohol that has been metabolized before being expelled from the deep tissue of the lungs.

Although law enforcement officers engage in specific procedures to minimize the risk of mouth alcohol distorting a breath test result, these measures do not address all potential mouth alcohol issues nor do officers always carefully adhere to these procedures.  Texas law enforcement officers are required to observe a mandatory waiting period of fifteen minutes before administering the breath test.  The risk of residual alcohol lingering in the mouth if food or drinks being ingested is the rationale for imposing this waiting period.  The officer is expected to continuously observe you during this period so that the officer can ensure no food or beverages are consumed and so that he can note a belch, vomiting or regurgitation, which could cause undigested alcohol to be present in the mouth.

In practice, officers frequently engage in other activities during this period so they are not carefully observing the DUI suspect.   When the officer is watching closely, the officer still may not realize that a motorist who has been pulled over has belched or suffers from acid reflux (GERD).  If you have a medical history of GERD or acid reflux, this may provide a basis for challenging the BAC test results in your DUI case so you should let your Texas DUI attorney know about this aspect of your medical history.

There also are other forms of mouth alcohol that this observation period cannot address.  For example, alcohol can be trapped in dental work like a filling or cap, which could cause an erroneous breath testing result.  If you are arrested for driving under the influence (DUI), Texas DUI attorney Alex Tyra offers a free consultation during which he can advise you about your legal rights and potential strategies for avoiding a DUI conviction.  We invite you to contact us in our Longview office at 903-753-7499 or visit our website and submit a case contact form.

Distinguishing Divorce, Legal Separation and Annulment in Kansas

Friday, June 7th, 2013

When a marriage breaks down, the prospect of taking legal action that formalizes the end of the relationship can be a source of apprehension and stress.  At our Texas divorce law firm, we often hear from clients that are unclear on the distinctions between the various legal actions to address the rights of married parties when a relationship ends, such as divorce, legal separation (called “separate maintenance” in Texas) and annulment.  Some clients use these terms interchangeably or in ways that make it clear that they do not understand the distinctions between these alternatives.  Texas divorce attorney Alex Tyra explains how divorce, legal separation and annulment differ.

Dissolution of Marriage (Divorce)

Divorce (formally called “dissolution of marriage”) is the most common legal action to terminate a marriage.  A divorce action terminates marital status based most typically on the “incompatibility” of the parties, which means that the marriage has completely broken down and cannot be restored with counseling or other forms of intervention.  While the divorce process will completely dissolve the marital relationship, it also acknowledges that a valid marriage between the parties previously existed.  A divorce action may address a wide range of relevant issues that include property division, alimony (spouse support), child custody/visitation, child support and other issues.

Legal Separation (Separate Maintenance)

Separate maintenance is a variation of the process that is referred to as “legal separation” in other states.  While legal separation can address essentially all of the issues in a divorce action like asset and debt distribution, spousal maintenance, parenting plans, child support and others, it differs from a divorce because the marital status of the parties is not altered.  This type of action is not filed frequently.  If a couple wishes to keep their marital status intact for religious or reconciliation reasons, however, this may still provide an option.  If one of the parties files for divorce, the court will proceed on the dissolution of marriage claim rather than the separate maintenance claim.

Annulment

When a party seeks a Kansas annulment, the party is essentially asking the court to formally acknowledge that the marriage was “void” from its inception or “voidable” based on some fact that one or both parties did not know entering into the marriage that would have materially affected the moving party’s decision to marry.  An example of a void marriage would include a marriage where one of the parties never obtained a final judgment of dissolution of marriage in a prior divorce or the parties were too closely related by blood to be lawfully married.  An example of a voidable marriage might include a spouse finding out that his or her spouse only entered into the marriage to obtain immigration benefits.  While some people believe that annulment may only be granted if the marriage is extremely brief, this form of relief can be sought if the statutory criteria are met regardless of the length of the marriage.

Texas divorce attorney Alex Tyra offers a free consultation during which he can advise you about the various options including dissolution of marriage, annulment or legal separation.  We invite you to contact us in our Longview office at 903-753-7499 or visit our website and submit a case contact form.