Dallas Criminal Defense Lawyer Blog

I spent the morning at the State Office of Administrative Hearings in Dallas. SOAH is where all live Dallas ALR hearings are held. You can also request a telephone hearing. Ceteris paribus, I prefer a live hearing. A live cross examination contains more useful information than one by phone.

What is an ALR hearing?
ALR stands for Administrative License Revocation hearing. These hearings are triggered when you are arrested for DWI. Refusing, or failing a breath/blood test allows the State to suspend your license. If you request an ALR hearing your attorney can challenge the suspension and by association, your DWI arrest itself. These hearings are held separately from any criminal case. Winning at the ALR has no effect on a later criminal case.

YOU MUST REQUEST THIS HEARING WITHIN 15 DAYS OF BEING ARRESTED!!

My Morning
The hearing notice lists 8:30AM as the start time. However, like many court proceedings 8:30 is more of an idea than a reality since many cases are all set at 8:30. While waiting in the lobby I overheard a few officer discussing the monotony of these hearings. "The lawyers ruined it" one officer remarked.

"Ruined what?" I thought. Is Due Process really such an inconvenience? This statement was telling about how the government views rights and liberty- as a frivolous impediment from the glorious work of DWI enforcement. TDCAA message boards echo this sentiment.

ALR hearings are not held in a courtroom. They are held in a small conference room at SOAH. These hearings are open to the public. Many people are surprised to learn that they can watch almost any court proceeding. I enjoy watching different lawyers approach the same problem.

My Hearing
I had an interesting case with some unique facts. However, I generally don't blog about pending cases. I will say that at any ALR hearing the burden is on the State to prove that the defendant (respondent) was legally stopped and asked for a specimen, and the defendant refused or failed said request. I believe one of these elements was missing. Hopefully, the judge will agree.

Grand Theft Auto IV (GTA IV) is this season's must have video game. In GTA IV you play a small time hood working his way up the criminal syndicate hierarchy. The game allows players to engage in a multitude of antisocial and criminal behaviors, including drinking and driving.Que the MADD hysteria!!!

Each year nearly 13,500 people die in drunk driving crashes and another half a million are injured in alcohol-related traffic crashes. This is why MADD is extremely disappointed by the decision of the manufacturers of the game Grand Theft Auto IV to include a game module where players have to drive drunk. Drunk driving is not a game and it is not a joke. Drunk driving is a choice, a violent crime and it is also 100 percent preventable. MADD is calling on the Entertainment Software Ratings Board to reclassify Grand Theft Auto IV as an Adults Only game, a step up from the current rating of Mature and for the manufacturer to consider a stop in distribution – if not out of responsibility to society then out of respect for the millions of victims/survivors of drunk driving.

First of all, 13,500 people do not die in drunk driving crashes. That is a complete statistical fabrication. However, no one besides me seems to care.

Second, Grand Theft Auto allows players to car jack, sell drugs, visit a hooker, kill said hooker, kill pedestrians, kill cops, kill any person you came across with an assortment of weapons, and drink and drive.

Out of that list what are MADD mothers most worried about? Simulated drunk driving. What kind of mothers would single out drunk driving over homicide and armed robbery? MADD's myopic Neo Prohibitionism is the reason the founder of MADD quit 20 years ago. MADD is seeking an Adults Only rating for GTA IV.

Gaming fans better buy GTA IV before MADD gets unconstitutional DWI roadblocks and illegal DWI forced blood draws added to GTA V.

What is the greater threat to America- MADD's Neo Prohibitionism, or GTA IV? Let's compare. GTA IV doesn't constantly lobby for the police state. GTA IV doesn't receive millions in tax dollars to destroy the Bill of Rights. GTA IV doesn't lie about "alcohol related fatalities" to achieve their goals.

Moral Panic aside, GTA IV is not a threat to your safety. MADD is a threat to all of our freedom. Reserve your copy today!

Collin County has jumped on the Vampire Prosecutor bandwagon with "no refusal" DWI weekends. A recent DMN story featured a Collin County ADA talking about their new tough on DWI blood draw program.

I filed an open records request for communications, documents, memos etc regarding implementation of this program. After all, if the Collin County District Attorney is so proud of this program then why not share the details with the public?

As usual, the CCDA sought to keep the records secret via the Attorney General. Cheap "tough on crime" PR stunts are easy for bureaucrats. Actually revealing what they are doing to the public is always met with resistance.

Today I received the Attorney Generals ruling. Collin County's illegal unconstitutional forced blood draw program will remain secret. Th CCDA is allowed to withhold most of the documents I requested. I am still unclear as to what, in anything, they are required to send.

How did Sunshine lose? The Texas Government Code states that "internal records" for "internal use" are exempted if "prepared by an attorney representing the state in anticipation.... [of] criminal litigation."

Unbelievable. Prosecutors use judicial activism to create new law, violate your constitutional rights, violate clear provisions of Texas law, and then get to keep it secret from the public.

Bureaucracy always chooses the path of least disclosure.

Some earlier posts on Vampire Prosecutors and DWI No Refusal Policies

Why They Clearly Violate Texas State Law, (COCA Judicial Activism To The Rescue!)

Fort Worth Police

Putting the Force in Forced Blood Draws

Vampire Prosecutors Part II

I have long argued that the Standard Field Sobriety Tests (SFST) used in DWI detection are a fraud. The science is garbage that has never been peer reviewed. However, tell a lie long enough and it becomes the truth. In Texas 3 SFSTs are used in almost every DWI case. The HGN, One Leg Stand and Walk Turn. Officers are trained that these tests are highly accurate in detecting impairment and bac levels over .08.

A fortuitous Google search led meto Dr. Greg Kane. Dr. Kane has examined the field sobriety validation studies. He has examined the raw data that cops never see. His conclusions- the numbers don't add up.

Why would a sober person refuse field sobriety tests? Read on to find out.

1. Name, Background, Resume
Greg Kane. live in metro Denver. I have degrees in math and in physics from Rice, 1980. I went to med school at UT Houston; I practiced internal medicine from '91 till '98. Since '98 I've been a consultant to attorneys working on medical malpractice claims. See www.medmalEXPERTS.com

2. How did you get involved with SFST?
We medical doctors spend a lot of time interpreting imprecise physical tests. A spot on an x-ray may mean cancer, or it may mean nothing. Do you cut the lady open, or do you send her home? Medicine has developed a sophisticated mathematics for answering questions like that. In med school they teach you that math. As a math - physics guy, I though it was cool. My post-graduate research dealt with how that mathematics worked out for one specific type of x-ray. So I come to the question of SFST accuracy with an interest and some expertise in the mathematics of "accuracy."

As an expert broker I get calls from defense attorneys looking for a doctor to counter FST evidence. Too often these cases involve drivers who failed an FST, had a BAC of zero, and are now charged with driving while intoxicated by, say, a therapeutic level of some benign medicine prescribed by their own doctor. The government's reasoning: they failed an FST, they must have been impaired.

Because I happen to know how science says FST results are correctly interpreted, I know the government's theory is wrong. The most difficult thing in life is to know how to do a thing right and to watch somebody else do it wrong, without comment. Also, it's un-American to convict people with secret evidence, and with "scientific" tests that don't work.

3. What did you learn about SFST validation studies?.
First, all the usual stuff defense attorneys complain about. They were never peer reviewed. They're chock-a-block with procedural and logical flaws.

Second, I discovered things that don't get talked about. For example
l The "accuracy" statistic the NHTSA uses to validate the SFST is a technical mathematical statistic that does NOT reflect the likelihood that a DUI defendant who failed the test was impaired.
l The NHTSA's "accuracy" statistic is open to manipulation. Simply by manipulating the group of drivers you choose to “study,” you can set up your validation study beforehand so it is certain to “discover” whatever arrest accuracy you’ve been paid to validate. Not only is it possible to manipulate study groups this way, that's actually how it's done in real life. NHTSA contractors do manipulate their study groups in a way that uses this statistical trick. Every NHTSA FST validation study that "discovers" a high FST accuracy uses this trick. Every validation study that fails to use this statistical trick also fails to "discover" a high FST accuracy.
l SFST studies do not study SFSTs. They study officers instincts. The "accuracies" they report are not the accuracies of the standardized FST, they are the "accuracies" of officers' unstandardized gut instincts about whether each driver is impaired or not. Validation study officers are as accurate as they are only because they repeatedly ignore the SFST. If they did actually rely on the SFST, their arrest accuracies would be substantially worse. That's right, worse. SFSTs are less accurate than officers' gut instincts, and validation study reports prove it.
l All FST validation studies keep the accuracy of the SFST itself secret. When I looked at the raw data for the 1998 San Diego study, I was shocked. To a first approximation the SFST works like this: Everybody fails. Everybody fails, and officers release people their gut instinct tells them are not impaired.

At the 0.04% BAC level:
296 drivers took the SFST
292 failed—99%.
4 passed— 1 %

On innocent people the accuracy is 7%! If juries rely on the SFST to decide the guilt of drivers charged with DWAI at the current 0.05% level, they will wrongly convict 93% of the innocent drivers who go to trial.

4. Tell us about your mathematical analysis. How is it done?
Basically it's as if the government were pushing Youth Cream. The claim is, rub YC on your face and you wake up looking, acting and feeling young. So the government pays for Youth Cream validation studies done at an elementary school, and guess what, 95% of the people who used the cream in the scientific study did look, act, and feel young. Then the government claims the contractors' research proves YC is highly accurate at making people young. But the secret isn't in the cream, it's in how contractors picked the group they "studied."

It's the same for SFSTs. Validation contractors "discover" high accuracies because they load their study groups with drunks.

The home page of my web site fieldsobrietytest.info links several of my published articles on how sensitivity-specificity-predictive-value science applies to SFSTs.

5. Officers are taught these tests are highly accurate. Is that true?
Yes and No.
Yes, there is a technical mathematical statistic called "accuracy," and Yes the "accuracy" of SFSTs is high in the manipulated study groups in the government studies.
No, SFSTs are not accurate in the everyday sense that the answers they give are usually correct. The never before published raw data I managed to uncover proves that within the margin of error a failed SFST carries no implication of impairment. None. You can't tell whether the person who failed the test is actually impaired, or whether they're just one of the 93% of innocent people who also fail the test.


6. How do sober drivers fare on SFSTs?
At the 0.04% BAC, on innocent people the accuracy is 7%! That's not a typo. Seven percent. If juries rely on the SFST to decide the guilt of drivers charged with DWAI at the current 0.05% level, they will wrongly convict 93% of the innocent drivers who go to trial.

At 0.08% BAC, on innocent people the SFST is only 29% accurate! That's worse than a coin toss. If juries rely on the standardized field sobriety test to decide the guilt of drivers charged with DUI at the 0.08% level, they will falsely convict 71% of the innocent drivers who go to trial.

Continue reading "Standard Field Sobriety Test Expert- Dr. Greg Kane" »

Texas trains DWI officers with the NHTSA Standardized Field Sobriety Student Testing Manual. The NHTSA SFST Manual is the national standard for DWI enforcement. Every DWI defense lawyer should own a copy.

The manual includes, inter alia, training on how an officer should testify in court. DWI officers are professional witnesses, trained and paid to speak in court. Some of the manual's tips are pretty mundane; read the police report beforehand, listen carefully, take your time, speak clearly. Not too exiting.

Training Officers To Be Ignorant
Good propaganda demands blind adherence to principle. In our case officers are taught to never question "the studies" or the breath test machine.

Here is how the manual instructs officers to answer questions about the breath test machine, the Intoxilyzer 5000.

From the manual

You are not required to know, and in fact know nothing, about the Intoxilyzer 5000, or your jurisdiction breath test instrument, its internal workings or anything other than how to operate it and take a breath sample from a defendant.... Never testify to its internal workings, or the defense attorney will discredit you and make you out to be a "thinks-he-knows-it-all who really knows nothing

A typical breath test room contains the officer and the DWI suspect. That means NO ONE in the breath machine room knows how the Intoxilyzer works!! Another reason why you should have the right to counsel before bac testing.

What is worse in the encouragement of officers to not learn anything about the breath machine. What other profession would encourage ignorance? What is NHTSA afraid of? Maybe that the officers would read this, or this, or this.

Here is some more gold on NHTSA validation studies.

Be sure the officer is aware that NHTSA has done validation studies, and the SFST is considered very useful in determining whether or not is driving while intoxicated. The officer doesn't need to know the number, or care, because in this case, this defendant was impaired.

First of all, these studies have not been validated. Here is a great breakdown of the "studies" that "validate" the garbage SFST science.

For detecting innnocent drivers SFST's score as low as 7%! We certainly wouldn't officers to know that would we? They might lose the moral certainty required for subjective mass arrests. Officers shouldn't take time to learn about what they are doing. After all in your case, you are impaired.

Sitemeter makes it easy to browse the Google searches of my readers. Here are some recent search terms that led readers to DCDLB (formerly IWTS).

where to buy marijuana in dallas?
Reader, no one in America buys, sells, or uses marijuana. Our dear leaders in the federal government have declared that marijuana is verboten. Americans would never violate our divinely inspired federal drugs laws. I would be shocked if marijuana is for sale in Dallas, shocked!

Ok, all kidding aside. The hundreds of pot cases pending in Dallas County tell me that buying marijuana in Big D can't be that difficult. Perhaps a better question is "Where can't you buy marijuana in Dallas?"

Just so you know reader, Possessing or Selling Marijuana is illegal in Texas.!! Don't be like George W. Bush, Newt Gingrich, Barack Obama, Bill Clinton, The Beatles, Steve Jobs, or the new Governor of New York- Just say no!!

texas laws on possession of meth
In Texas possession of methamphetamine is at least a State Jail felony (under 1 gram). The crime, Possession of a Controlled Substance carries with it a sentence of 6 months to 2 years in State Jail (probation may be an option, or even required).

As a rule- jail in Texas sucks. However, State Jail is worse than your normal prison. Why? Unlike TDC (Texas Department of Corrections) State Jail has no "good time" credit, you have to serve your sentence day for day. So the inmates have no incentive to behave in State Jail. Ergo, they don't.

Possession of prescription amphetamines (Adderall) is a Class A misdemeanor.

alr hearing got dismissed does this help me for my dui case
It depends on why your ALR case was dismissed. If the judge found there was no probable cause to stop or arrest that will help your attorney defend your DWI case. If the case was dismissed because the right witness did not show up at the ALR hearing, then not so much. Either way, in Texas an ALR win does not prevent the State from filing a DWI case.

As long as I have been practicing criminal law I have been watching DWI videos. As a prosecutor in East Texas DWI videos were on VHS tapes. This was very inconvenient for trial. I had to write down the time stamp for each scene I wanted, while noting all any objectionable material (defendant's criminal history blaring over the police radio) etc. I spent time at trial awkwardly fast forwarding, reversing, pausing etc. Very cumbersome, those old VHS tapes.

In Kaufman County DWI videos are on DVD. Not a great technological leap forward from VHS. A DVD has a better picture, and is more convenient to browse. However, a DVD offers no more information than a VHS tape.

AVD Viewer-
Today I received a DWI DVD from the Kaufman District Attorney. It was an incar video from the Terrell Police. It looked like all the other DWI DVDs I usually receive. However, when I loaded the disc into my work computer a new program opened up. I usually watch DVDs on Power DVD. This disc opened up in AVD Viewer, a program by L3 Communications.

AVD viewer is a real leap forward. For starters it has a panel of "triggers" that tell you when the police are hitting the brakes in the car, or when the emergency lights are on, inter alia. AVD also allow me to choose which microphone to listen in on. For example- I could listen to the in car mic, or the officer's personal microphone. It also allows the user to pick between different police car views.

The disc also includes a chain of custody page where I can see who logged the video into evidence. My only gripe is that the program seems a little buggy. It will freeze up on me more than I like. As a DWI defense lawyer I prefer even a buggy DVD that contains more information. Overeall AVD is not a Star Trek leap forward in technology, but a good start.

MADD is on a never ending quest to destroy the Bill of Rights. To MADD any protection for suspects/defendants, any privacy rights, any amount of due process is simply an obstacle to their Utopian vision of no drunk driving deaths.

Texas is usually a easy target for MADD's "tough" DWI proposals. However, Texas is one of the few states that has resisted sobriety checkpoints. Texas MADD had this list of "Myths" and "Facts" about sobriety checkpoints on their website.

Myths About Sobriety Checkpoints

Myth: Sobriety checkpoints are not as effective as routine police patrols in detecting high-BAC drivers.

Fact: Sobriety checkpoints deter impaired driving by increasing the perception that impaired drivers will be detected and arrested.

Checkpoints may also have a greater chance of apprehending a high-BAC driver who regularly drinks and drives because many of these drivers believe they can drive carefully enough to avoid notice by regular patrol. A checkpoint can determine their alcohol use without observing their driving behavior.

Truth- There is no correlation between sobriety checkpoints and drunk driving fatalities.

Myth: Sobriety checkpoints are expensive, time-consuming, and a poor use of police officers’ time.

Fact: Preventing drunk driving has a legitimate place in the police budget. Checkpoints can be conducted with as few as 3-5 officers. Equipment, additional personnel, etc. can be obtained through cooperation with neighboring law enforcement agencies. Grants from NHTSA are available to departments who conduct sobriety checkpoints using their guidelines.

Truth- Sobriety checkpoints are expensive, time-consuming, and a poor use of police officers’ time.

Myth: The public is against sobriety checkpoints and views them as a form of police harassment.

Fact: Public polls show that 2 out of 3 Texans favor the use of checkpoints to combat drunk driving. A majority of Americans—79 percent—favor the use of sobriety checkpoints. Over 91% of drivers in Tennessee favor the use of sobriety checkpoints.

Truth- "Constitutional rights may not be infringed simply because the majority of the people choose that they be." Westbrook v. Mihaly 2 Cal. 3d 756.

Myth: Sobriety checkpoints constitute illegal search and seizure.

Fact: The U.S. Supreme Court ruled them constitutional. They are similar to metal detectors at airports, and they save lives.

Truth- The US Supreme Court did rule in favor of these roadblocks. The decision is sheer idiocy. Wikipedia sums it up well.

However, by a 6-3 decision in Michigan Dept. of State Police v. Sitz (1990), the United States Supreme Court found properly conducted sobriety checkpoints to be constitutional. Although acknowledging that such checkpoints infringed on a constitutional right, Chief Justice Rehnquist argued that the state interest in reducing drunk driving outweighed this minor infringement.

Dissenting justices argued that the Constitution doesn’t provide exceptions. "That stopping every car might make it easier to prevent drunken driving...is an insufficient justification for abandoning the requirement of individualized suspicion", dissenting Justice Brennan insisted

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I have been following the embarrassing proliferation of forced blood draw warrants in Texas. One issue that has not been covered is what happens when a subject is faced with a warrant and still refuses the blood test? Prosecutor Jeff Swain (Parker County) wrote an article describing the horrific practice in his county.

Our DWI search warrant blood-draw program has been up and running for two years now. The judges are still willing participants, with the fax machines still in their homes. One of our greatest concerns—the defendant who fights to avoid the blood draw—has not materialized on a significant level. While a good number of arrestees say they will not let the blood draw occur, a show of force by a few officers standing nearby has stopped all but two from actually resisting the process. In those two exceptional situations, the officers teamed up, some holding the defendant to a chair and others holding his arm to the arm of the chair with towels. Blood was withdrawn from the arrestees’ arms at that point without further incident.

Why are these forced blood draws necessary in Parker County? Because the State lost a DWI case.

After (the defendant's) acquittal, we decided that we needed to do something to prevent another intoxicated driver from going free. Feedback from the jury was that they just weren’t completely sure that Watkins was guilty and that what they really wanted was a BAC score to be certain of his intoxication.

The jury acquitted because the jury decided it had a reasonable doubt about intoxication. There was a video in this case. The jury saw the defendant's actions. If a defendant does not drive, walk, or talk like an intoxicated person should he be acquitted, or held down by officers to have his blood drawn?

Texas employs the Intoxilyzer 5000 is used for DWI Breath Alcohol Testing. The Operator's Manual for this machine is available online. I know you don't want to read this manual so let me share some points of interest.

1. The Intoxilyzer Does Not Measure Alcohol
Really. It measures the decrease of energy in a small tube. From the manual-

When alcohol is introduced into the sample chamber, by either the test subject or the reference sample device... the amount of infrared energy reaching the photodetector will decrease. The decrease in the infrared energy striking the photodetector is directly proportional to the increase in the alcohol concentration in the sample chamber. The breath alcohol concentration is determined by the difference between the zero reference point and the breath sample measurement.

The computer then uses a secret formula to convert this into a BAC score. No one knows the formula that is employed.

2. The Accuracy Has Not Improved Since 1980
The machine uses the same chip set it used in 1980. In 30 years the have not managed to improve accuracy. From the manual

In 1980 the Intoxilyzer 4011-A® began use in Texas and in 1988 the Intoxilyzer 5000® was introduced. The Intoxilyzer 5000 is the standard evidentiary breath alcohol testing instrument for law enforcement and is also widely used in industry. The instrument utilizes infrared analysis,while the Breathalyzer uses wet chemical analysis. The biggest difference between the instruments as they have developed relates not to their accuracy and precision or to their method of analysis, but to their automation and ease of operation.

To compare, in 1980 the most advanced video game was Space Invaders. We've made a little progress in technology since then.

3. The Machine Is Never Calibrated On Humans.
The machine that is used to convict thousands annually is never calibrated on humans. A reference sample simulator provides a mix of air and alcohol into the machine.

I have been reading Sitemeter again to see what brings you to my site. A recent reader googled "HOW TO GET A DWI CASE DIMISSED".

Reader, first let me tell you that Google will search the internet very well even if you do not TYPE IN ALL CAPS. Now on to your question.

How To Get A DWI Dismissed-
Short answer- You can't. An experienced DWI defense lawyer can.

DWI cases are among the hardest to get dismissed. DWIs are built upon a police officer's opinion. Unlike lay witnesses a professional law enforcement witness will always show up, and always testify that you are guilty. Finally, weak DWI cases are usually not filed (unless you are in Collin County).

I have had two DWI dismissals recently. Every case is different, but here are some lessons.

Hire A Defense Lawyer Early
One was accomplished with a great ALR cross examination (I had a cop actually say my client was not intoxicated, just "under the influence"). Make sure you hire an attorney early so you can have an ALR hearing. In Texas you only have 15 days after arrest to request this hearing.

Bring A Lawyer To Court
A recent DWI dismissal was because critical evidence went missing. The case couldn't be tried without it. However, if my client had gone to court alone and plead guilty this case would not have been dismissed. Lesson- Even if you subjectively believe you are "guilty" a defense lawyer can help evaluate the case.

Reader, get an attorney now. An experienced DWI defense lawyer is your best chance to protect your rights.

The State of Minnesota is suing CMI, the maker of the Intoxilyzer 5000. Minnesota is requesting the software (source code) that runs the machine. Texas also uses the Intox 5000 for breath alcohol testing.

CMI has long held that this source code is a trade secret. In Texas, the government technicians who "certify" these machines in the field, have no idea how the software works. If the software breaks down, they send the machine in.

I hope Minnesota is successful in this lawsuit. Secret software has no place in criminal justice. If the software is fine then why not release it? If it doesn't work, and innocent people have/are being convicted I could see CMI reluctance (class action anyone?)

If you are pulled over in Texas for a DWI, you have very few rights. You can be arrested with only a police officer's subjective opinion as evidence. You do not have the right to an attorney prior to giving a breath sample, or even while being held down and forced to give a blood sample. Then you are tried by jurors inundated by MADD propadanda.

What right do you have in Texas? You have the "right" to give a blood sample.

From the Transportation Code-

§ 724.019. ADDITIONAL ANALYSIS BY REQUEST. (a) A
person who submits to the taking of a specimen of breath, blood,
urine, or another bodily substance at the request or order of a
peace officer may, on request and within a reasonable time not to
exceed two hours after the arrest, have a physician, qualified
technician, chemist, or registered professional nurse selected by
the person take for analysis an additional specimen of the person's
blood.
(b) The person shall be allowed a reasonable opportunity to
contact a person specified by Subsection (a).
(c) A peace officer or law enforcement agency is not
required to transport for testing a person who requests that a blood
specimen be taken under this section.
(d) The failure or inability to obtain an additional
specimen or analysis under this section does not preclude the
admission of evidence relating to the analysis of the specimen
taken at the request or order of the peace officer.
(e) A peace officer, another person acting for or on behalf
of the state, or a law enforcement agency is not liable for damages
arising from a person's request to have a blood specimen taken.

This is why freedom does not come from government, but from our Creator. When the government gives you freedom they do a half ass job. The State is interested in convictions, not due process.

What happens if the police do not tell you about this "right" after you give a breath test?
Nothing. Police never tell defendants about this provision.

What if you need to go to the hospital for the test?
You are out of luck. The Police do not have to transport you anywhere. Good luck getting your family doctor to come to the county jail at 2AM.

What happens if you ask for another sample but the doctor gets there after 2 hours?
Nothing. The State's original sample is admissable, and they can deny the doctor from giving you a sample. After all, you only have two hours to get re tested.

DWI makes a farce out of the Bill of Rights. The more freedom we give up, the more innocent people we convict. We should replace these phony "rights" with some new basic freedoms. Let us try- the right to not give evidence against yourself, the right be free from unreasonable search and seizure, and the right to counsel for starters.

A quick recap- Tray Boswell was arrested by the Plano Police for Driving While Intoxicated. Tray's Attorney, Don Tittle, overcame Texas' incredibly limited discovery laws to find out that the arresting officers had been in contact with Tray's ex wife before, during, and after the arrest of Mr. Boswell.

Here is the Tray Boswell DWI Case Report. Sadly, it looks like all other police reports. I wonder how many of these phony DWI cases are never detected?

Pre Text Stops
Pre Text stops in Texas are legal. What is a pre text stop? If a cops wants to search or arrest you, but can not get a warrant, she is allowed to follow you while you drive until you commit any traffic violation. Then the officer may search, arrest, etc.

No other benign act does more to destory your rights than driving. In Texas, you can be arrested for almost any class C misdemeanor (even though class C misdemeanor do NOT allow incarceration as a punishment). Tray was pulled over for not having a front license plate.

What the camera doesn't see
Notice the police alleged the front license plate was missing. Why? Probably because you can't see it on the video. Ergo, for Tray to suppress this stop you would have a situation where the police say one thing, Tray says another, and the judge decides. Guess how that turns out?

HGN
Tray "failed" the HGN. The Horizontal Gaze Nystagmus is a great tool for corrupt officers.Why? Because the state can argue it is "science" and because the jurors can not see the suspect's eyes on video.

Other Allegations
Slurred Speech, Odor of an Alcoholic Beverage, Swaying, Blood Shot eyes, thick tounged speech. These are in the vast majority of DWI offense reports. None of them are viewable on camera.

You are arrested for DWI In Kaufman County DPS is involved in most DWI arrests. DPS officers initiate many DWI stops on I-20. DPS troopers are also frequently called by local police to administer field sobriety testing. It is a rare DWI case in Kaufman that does not involve a DPS trooper.

You take some field sobriety tests, blow or not blow, and then a police officer subjectively and unilaterally decides you are intoxicated. You spend all night in Kaufman's really nice jail. Bail is set in the morning between 7-9AM. In Kaufman bail is usually between $1,000 and $3,000 for a DWI first offense.

ALR Hearing- If you hire a DWI defense lawyer within 15 days of arrest they will challenge the suspension of your license. These challenges are heard at an ALR hearing. ALR stands for Administrative License Revocation. ALR hearings are very hard to “win”. The rules make a State victory almost automatic. However, winning at the ALR hearing does not prevent the State from filing a criminal charge against you for DWI.

Occupational Driver’s License- If we lose at the ALR hearing your license will be suspended between 90 days and 2 years. You are allowed to apply for an Occupational License to drive to work and to perform essential household duties.

Indictment/Information- The criminal case against you begins with either an indictment or information. In Kaufman County this takes between 3-6 months, sometimes longer.

Misdemeanor DWI cases begin when the State files an information. An information is merely a piece of paper signed by the prosecutor stating that you committed DWI on a certain date. Once that is filed you will be assigned a first court appearance.

If your case is a felony DWI (DWI 3rd or more, DWI w/child passenger) you will be indicted by a grand jury. The grand jury is a board of citizens chosen by the DA to rubber stamp cases. They will always choose to indict a case if asked.

1st Appearance/Announcement- After your case is filed you will be notified by mail (usually) of your first appearance in court. You MUST keep in contact with your bail bonds company during this time. Your bail bondsmen or the court should notify you of your first court date.

DWI Pre Trial Hearings Most DWI cases could use a pre trial hearing. DWI is such a technical, scientific, and procedure intensive crime. A suppression motion, motion in limine, or discovery motion is always in order.

Trial-All criminal cases end one of three ways- a plea bargain, a trial, or a dismissal. Sometimes a DWI case will be refiled as "Obstructing a Highway" as part of a plea deal. Almost every case set for trial in Kaufman County Courts are DWIs. No misdemeanor case carries more cost upon conviction.

To ensure the best results for your Kaufman County DWI here are some guidelines.

1. Don't take field sobriety tests. Why would you? These tests can not detect if you are sober. The false positive rate is astronomical.
2. Don't take a breath/blood test. Again, why would you? If you are so obviously intoxicated as to warrant arrest the State doesn't need the evidence anyway.

If you are not intoxicated and the machine malfunctions and scores you at .16, don't expect the cops to let you go. Belief in the Intoxilyzer 5000 is dogmatic among law enforcement.

Finally, even if the machine is accurate a breath score opens the door for the voodoo science of retrograde extrapolation. RE is junk science, based upon a junk machine.
3. Hire a DWI defense lawyer as soon as possible. The ALR hearing is of critical importance. Do not give up your opportunity to defend your right to drive.

No MADD member can get through an interview without stating the lie that drunk drivers kill 14,000 - 17,000 each year. I have blogged before on how the alcohol related fatality number is a complete fraud. Today I found out that MADD knows this as well.

Why would