Dallas Criminal Defense Lawyer Blog

As a Libertarian/criminal defense lawyer I am often torn between my financial self interests and my political beliefs. The reality of criminal defense practice is that the more authoritarian unjust and idiotic our state's criminal justice system is, the more we defense lawyers make. We are pump jacks over a sea of tyrannical crude, black gold, Texas tea.

Whenever a pol proposes a new "tuff" on crime law, my immediate reaction is to cringe at the inanity and mourn the potential loss of the few scraps of freedom and liberty that remain. Last week, State Senator Jane (R- Flower Mound) announced she was drafting legislation requiring a lifetime driver's license suspension for anyone convicted of DWI 2nd.

What is wrong with this idea? First, a lifetime ban driving for DWI 2nd convicts assumes that people can't change. A lot of Texans get a DWI or 2 and go on to live productive lives as adults.

Second, the standards for DWI in Texas are subjective (ie bullshit). "Intoxication" is still just an opinion. Violating this make believe standard twice should not lead to a lifetime ban on driving.

Third, I've said this before so I'll be succinct. The same politicians who claim to be shocked by our state's DWI problem passed the laws that led to our suburban commuting no public transportation culture. If you are serious about reducing drunk driving fatalities you should look at why Texans have to drive everywhere in the first place.

Fourth, this seems a little disproportionate. Why not a lifetime driving ban for murderers, or crooked cops and prosecutors who steal money from black motorists?

Fifth, it won't work. People will drive with a license, or without. It's inevitable. You can't function in Texas today without a car. Stupid laws (eg marijuana prohibition) are often ignored.

Of course if this law does pass it will be gravy for the criminal defense bar. We will be diving into pools of money like Scrooge McDuck. Every DWI will require a jury trial. No one will ever plead to DWI 2nd, and most people won't even plead to DWI 1st.

But just like defending marijuana cases I'd rather not have it. I'd rather take more divorces and credit card debt cases than give the police state any more ground in Texas.

Yes, that is an SEO friendly title and I know the blog world looks down on self promotion, but I can't help it. I'm proud of this accomplishment and I'm going to toot my own horn for a bit.

If you want something substantive on criminal justice try this excellent Grits post about hatchet man John Bradley's cover up work on the Forensic Science Commission.

Not guilty, ya'll got to feel me
Since 1/1/09 I've had 4 DWI trials in Kaufman county. The breakdown-two bench trials, two jury trials, two without a breath test, two with a breath sample (both over .15), two in CC2, two in County Court at law. The cases varied factually but united in outcome- not guilty. Four acquittals with one directed verdict.

80%
What makes this streak noteworthy is the talent at the Kaufman DAs office. Simply put, these prosecutors prosecute very well.

Kaufman misdemeanor prosecutors had an 80% jury trial conviction rate in 2008-2009. 4 out of 5 times the State left a misdemeanor jury trial with a conviction. To compare- the 2009 Yankees only won 63% of their games, the 2009 Lakers won 79% of the time. These are the Globetrotters, not the Generals.

No logistical wins
I didn't win any of these cases because the cop didn't show up, or the breath test guy couldn't be there. In each case the State had their witnesses show up and testify that they thought my client was DWI.

Why write about this?
Why not? I want google to know that I've been doing some good work for my clients. This may come across as scoreboarding, but if the sign of a good DA is conviction rates, then my DWI acquittal rate is noteworthy.

Is that all?
In the interest of full disclosure I did have two non DWI trials in the last year in which my client was convicted. I'm not ashamed to admit that. Part of being a trial lawyer is having things go to the other way. Streaks and stats don't always tell the whole story as each case is statistically independent in a gambler's fallacy sort of way. That's another of saying I'm not "due" to lose, but past results do not guarantee future performance.

Auto accident reconstruction is an issue that comes up in intox assault/manslaughter cases. I know enough about accident reconstruction to know that I need an expert's assistance. Being in the DFW area I don't see a lot of boating while intoxicated (BWI) cases, much less a boating accident reconstruction scenario. So let's learn about this science together shall we?

Recently I had the chance to interview Phil Odom of H20 invesgitations. Phil spent years in DWI/BWI enforcement and is an expert in accident reconstruction. How exactly does one recreate an accident on the high seas? Let's ask Phil.

Resume/Background
I started in Law Enforcement in 1984 and I took most of the alcohol/drug related courses offered through the department. I completed the Drug Recognition Expert training (DRE) and later became a DRE Instructor. I was a DUI Enforcement Unit for a year and a half and received awards from MAAD. I was assigned to numerous “Attack Drunk Driver” Task Force operations on both land and water. I completed all of the training to be qualified as a Major Accident Investigation Team (MAIT) member. I was selected for the MAIT Team in the contract city I worked in and the department’s Regional MAIT Team. In 1996 I was promoted and transferred to the Colorado River Station. There was a lack of organization in boating collision investigation that was present in a MAINT investigation. I developed and supervised the Boating Accident Investigation Team (BAIT) for seven years, which initially got a lot of grins. I completed Boating Accident Reconstruction courses from the State of California, Underwriters Laboratories and The National Association of State Boating Law Administrators. I began teaching boating accident reconstruction for the California Department of Boating and Waterways (DBW). I took part in committees to rewrite DBW’s Accident Investigation Manual and Boating Under the Influence Manual. I was on the committee, which developed the curriculum for DBW’s Advanced Boating Reconstruction Investigation Course. I have been the operator of the striking vessel in over sixty staged boating collisions from speeds of 5 MPH to 45 MPH, which to my knowledge there are only three other people that have done this. My CV is contained on my website.

I've never seen a boating accident reconstruction report. Walk me through the process. How do you do this?

Boating accident reconstruction in the private sector starts with a contact from an attorney. I am sent all the reports, interviews, interrogatories, depositions photographs and any other information for review. In some cases, I can reconstruct the collision from this information alone. In more complex cases, the reconstruction starts with the evidence, which is the vessels involved in the collision, especially if there is question to the collision dynamics and fault. I will go to the location where the vessels are stored and inspect them. Damage analysis is crucial in any vessel accident reconstruction. Occupant kinetics and injuries are also a very important part of the reconstruction. Entry angles, damage and exit angles lead to course of the vessels and speed of the vessels. Most recreational vessels are constructed of fiberglass (there are no industry standards), which is resilient and can be deceptive when analyzing it. Scene examination is also important in considering environmental factors, vision obscurants, along with time-distance factors. I find initial interviews lacking in moist cases because lack of knowledge on the interviewers part and most parties are reinterviewed.

What are some of the difference between your auto accident
 reconstruction and car accident reconstruction?

Boating collisions are in far contrast to a vehicle collision. After a boating collision, the vessels do not stay at rest unless a vessel has struck the shore. Physical evidence can disappear at a very rapid rate along with witnesses; this is due in part to the length of response times of law enforcement. Another factor is, unlike collisions that occur on land, there is a third dimension added to a vessel vs. vessel collision, which is below the waters surface, vessels depress below the surface of the water when struck by another vessel, this creates a ramp for the striking vessel. A striking vessel can completely go over from stern (back) to bow (front) at speeds lower than 20 MPH. In a rear end vehicle collision the energy is absorbed by movement, front and rear end damage to the vehicles Most of the mathematical formulas used in auto collisions to determine speed can’t be applied in a boating collision. Crush calculations are impossible to determine the speed of a vessel using any type of mathematical formula. In contrast to automobile collisions, federal statues require actions on both operators of a vessel to take action to avoid a collision.

What should defense counsel look for in BWI cases?

In defense of a BUI case, there are many similar aspects as a DUI (vehicle) case. The first to look at is the probable cause for the stop, which can be based on an opinion, such as the age of a child not wearing a life vest, regulatory ordnance or a violation of a state and/or a federal statute. The US Coast Guard can board any vessel without probable cause, for safety inspection purposes. The main focus in a defense would be the field sobriety tests. In any field sobriety test conducted on the water, the operator performs the FST’s on a moving platform, the patrol vessel. If field sobriety tests are conducted on the water, it leaves a large area to question as to the validity of the test and the impairment of an operator. Just one example is a “modified” finger to nose test, which is commonly used, on the water. Questions would be what were the environmental conditions at the time? The operator is expected to touch the tip of his finger, to the tip of his nose and if it is missed by a quarter of an inch, it is considered by law enforcement as missed. This test conducted on a moving vessel could be impossible to “pass” if wind, any type of wave or other environmental conditions is present. If the FST’s are conducted on land other factors not associated with motor vehicles is equal librium issues from being on the water which can influence the FST’s. If the tests are conducted on land was it a detention or an arrest? Another area that is overlooked is the preliminary alcohol screen test (PAS). There are manufactures requirements that are rarely practiced in the marine environment, including calibration logs. There was a fatal collision in northern California and the instrument used by law enforcement was not calibrated for over a year. In BUI cases, from police reports I can review the case and prepare questions for council to ask in the proceedings.

What is the status of field sobriety testing in boating cases?

At the present time there are no field sobriety test validated for use on the water. In 2007 The National Association of State Boating Law Administrators (NASBLA) began year one of a three-year SFST Validation Study. The first year gathered BUI arrest reports from across the country and analyzed the data to develop a total of 13 possible candidates for standardized field sobriety testing. Testing on those preliminary tests has shown that six have higher promise than the others. Testing standards have been developed, and laboratory testing has begun and should be completed by the end of this year. The Executive Summary can be found on NASBLA’s website.

Anything else?

In representing someone of any alcohol related offence that occurred on the water or a vessel collision and the use of an expert is needed, look closely at the experts experience and qualifications in the exact field.

In an era of swine flu you would think that drawing blood in a jail, which are usually full of staph and other nasty bugs, would be verboten. Unfortunately police departments across Texas are giving cops a crash course in needle work and setting them loose to prey on the driving public.

Does the Constitution provide any protection from police station blood draws? Or will we add yet another DWI exception to the Bill of Rights?

This brings us to our case of the day from the Fort Worth Court of Appeals.
Johnston vs. State-

Facts- Christi Lynn Johnston was pulled over for having an expired vehicle registration. Using the latest in voodoo SFST "science" Dalworthington PD believed Johnston was intoxicated.

The arresting officer then requested a blood sample. Dalworthington PD had a policy against offering defendants the opportunity to provide a breath sample.

Johnson exercised her right to not be stabbed with a syringe and refused the officer's request for blood. Reflexively the arresting officer pulled out his fill in the blank blood warrant, found a "friendly" magistrate, and a warrant for Johnston' blood was quickly obtained.

To make matters worse, the police refused to take Johnston to a hospital for the procedure. Instead Dalworthington PD opted to go all Grey's Anatomy at the police station. Like any normal freedom loving person would do at the sign of a cop with a needle, Johnston resisted. In a moment that would make the founders proud, Johnston was forcefully restrained while the police took her blood.

Issue- Are we really going to allow cops to draw blood from suspects at the police station? Really?

Holding- This particular blood draw was unreasonable and violated the 4th Amendment, but just barely..

Why was this blood draw deemed illegal? Cops have as much business drawing blood as dentists have driving the SWAT tank. What makes cops so bad at phlebotomy? What they don't know can hurt you.

Here is a frighetning exchange between defense counsel and the vampire cop-

Q. . . . What type of tourniquet did [Officer Burkhart] use?
A. Latex.
Q. Does my client have latex allergies?
A. Not sure.
Q. You don't have the slightest clue, do you?
A. No, sir.
Q. Was my client on blood thinners that night?
A. I don't know, sir.
Q. You don't have the slightest clue, do you?
A. No, sir.
Q. You didn=t ask any medical history before you stuck her or she was stuck with that needle, did you?
A. The jailers have a full medical history that they ask them while they=re booked into jail.
. . . .
Q. So you had a medical history on her before you took the blood?
A. That's correct.
Q. Did you review that?
A. No, sir.
Q. So what good would it have done?
A. I"m not sure.
Q. . . . You didn't know anything about her medically, did you?
A. No, sir.

Medical history, allergies, blood thinners? Why should the police be bothered with such minitua when they have drivers to convict and Constitutional protections to violate?

The most obvious problems with vampire police work is that LEO has an agenda which is in direct conflict with attending to the medical needs of a suspect. Cops aren't trained to care about your medical history, they are trained to gather evidence for your prosecution.

The Transportation code requires that blood draws be done by trained professionals (not LEO's or EMT's) in a sanitary place. Police state judicial activism effectively vetoed the implied consent laws. Instead of the legislative process deciding how blood draws should occur, we have judges legislating from the bench.

The 2nd COA describes the end run around the legislative process thusly-

When a blood specimen is taken in accordance with a valid warrant, we must look to guiding Fourth Amendment principles to determine whether the method of taking the specimen is reasonable instead of chapter 724, the implied consent statute. Beeman, 86 S.W.3d at 615.

Unfortunately, this small victory could be overturned by the CCA. I can almost guarantee that PDR will be granted, and I wouldn't bet against a reversal.

I was talking to a friend at the Kaufman courthouse who noted that I've won my last 3 DWI trials (2 bench/1 jury). Neither one of us could remember any attorney who had ever won 3 Kaufman county DWI trials in a row. I'm always proud to achieve my client's goals in criminal litigation (acquittal). However, my practice is geared toward clients, not stats.

I know that some attorneys prominently advertise their trial win percentage. The idea being that if Lawyer X wins 80% of their DWI trials then this lawyer has an 80% chance of beating your DWI. I applaud any attorney who can get a not guilty verdict from a jury. Too many defense lawyers strive to avoid trial at all costs.

In my experience lawyers who advertise a win % generally exercise great control over (cherry pick) which cases they will take to trial. Not me. The choice of whether or not to have a trial is always up to my client. If I was concerned with my W/L record I would accept only no breath test/good SFST DWI cases. I have chosen to go a different route. If I refuse to take a case it's not because the facts are bad.

I've had clients with high BAC scores who wanted to take a case to trial. That is always the client's choice. It's not my job to refuse a trial just because I'm afraid the client will be convicted. Any lawyer who tries DWI cases knows that even the most prepared, experienced, and knowledgeable defense lawyer can and will end up with a guilty verdict. It happens. Guilty verdicts are not always a sign the lawyer did a bad job, or is a sub par trial attorney.

My job is to explain the law, the facts, my experience in front of the judge/jury with similar cases and let the client make a decision on whether to set the case for trial. There are also financial considerations. I use a two part contract and charge a separate trial fee. My clients decide whether they want to invest in a trial or not.

I'm proud of my 3 DWI win streak, but I know some very capable attorneys who have gone on long DWI losing streaks (myself included). A lawyer's W/L trial stats alone do not always tell the whole story. There is a lawyer in my office in Kaufman, Dennis Jones, who is frequently appointed on the most serious felony cases. Many of Mr. Jones' appointed clients are convicted. Nevertheless, Dennis is viewed as one of the best defense lawyers in Kaufman county. I would not hesitate to recommend Mr. Jones and the judges never hesitate to appoint him. He's a great trial lawyer who happens to try really tough cases. Dennis can not cherry pick his appointed cases, and is often given chicken shit and ordered to make chicken salad.

Criminal defense isn't baseball. Some of us are pitching in the Ballpark in Arlington, others at Petco Park. Not that you should go looking for a lawyer who has never won a trial, but don't discount a lawyer who has lost a few.

Blood evidence is all the rage in DWI cases. Like most DWI defense lawyers I need an expert to help analyze blood results. Let's talk to one.

Today's expert is Dwain Fuller, Technical Director of the Toxicology Laboratories at a leading North Texas medical center. Mr. Fuller holds a Bachelor of Science degree in Chemistry from the University of Oklahoma and has worked in toxicology since 1984.

His impressive bio would devour this entire post, so click here for his complete resume.

Are blood tests more accurate than breath tests?

This could be discussed in all of its nuances for several pages and still not completely exhaust the subject, but to be somewhat brief: It depends on what you mean by your question. If you mean “Which test most accurately measures the concentration of alcohol in a person’s blood?”, then the answer is, “a blood test is more accurate than breath.” A breath test can only estimate the alcohol concentration in the blood. To estimate the blood alcohol concentration (BAC) from a breath test it must be assumed that a 2100:1 concentration ratio exists between blood and breath. In fact this is an average ratio; some people have a higher ratio, some lower. In fact, the actual average ratio is probably a bit higher at around 2300:1. Therefore, calculating a BAC from a breath alcohol at the 2100:1 ratio would likely underestimate the BAC to some degree.

However, Texas law recognizes the problem of the 2100:1 ratio being an average and defines the per se concentration separately for each allowed specimen. In other words, Texas law defines the per se concentration in whole blood as 0.08 g/dL, in breath as 0.08 g/210 liters (2100 dL) of breath, and for similar reasons, urine per se concentration is defined as 0.08 g/67 mL of urine. Since there is no need to convert to a BAC the problem of what ratio to use is eliminated.

Probably what you are really asking is “Which test is analytically more accurate (and/or precise) in measuring alcohol in its respective matrix? The short answer is: “Both techniques are based on sound analytical principles and are capable of highly accurate results.” However, there are several other factors that must be considered.

Breath tests are typically performed by specially trained law enforcement officers. While I have the greatest respect for most law enforcement officers, analytical chemistry is usually not the course of study one pursues to work in this field. Likewise, I would put more confidence in a law enforcement officer protecting me and my loved ones from bad guys than I would in most of my forensic toxicologist colleagues. It’s all about doing best those things we understand the best.

Since a breath test is conducted directly on a living human subject, there exist certain conditions that must be controlled to ensure accuracy and precision. For example the subject must be observed for a period of at least 15 minutes to ensure that there is no remaining mouth alcohol or that the subject hasn’t place anything into his or her mouth or belched. During the test the subject must blow for a sufficient period of time to ensure that the air sample is of deep lung or alveolar air. The concentration of alcohol in the air first expired from the lungs is typically lower in alcohol concentration than that of deep lung air. In other words, the concentration of alcohol in the expired air being blown into the breath testing device changes from the beginning of the blowing until the end.

Furthermore, the breath instrument works on the assumption that the breath temperature is 34C which may or may not be the case, depending on the subject. This is important because this is the temperature at which the device is calibrated and the temperature at which the reference sample, used to validate the results, is obtained from the breath simulator. This is based on a physical chemistry principle known as Henry’s law. According to Henry's Law, at a given temperature, the amount of alcohol in the air above a solution of alcohol (reference sample) is proportional to the amount of alcohol in the solution (reference solution). If the solution temperature is low, the reference results will be low. If the solution temperature is high, the reference results will be high. Likewise, if the subjects body temperature is increased, his or her breath alcohol concentration will be increased and vice versa.

There exist many other factors that must be controlled or otherwise dealt with, such as electromagnetic interference and possible interfering substances such as acetone or other volatile compounds that may have been produced, ingested or absorbed by the subject, or are perhaps in the ambient air of the room housing the testing device.

To be fair, most testing devices enlist “fail safe” mechanisms in an attempt prevent errant readings from these sources, but there exists some dispute at the effectiveness of these mechanisms. Perhaps you might want to envision a juggler; the more balls one must keep in the air, the more chances are that you will drop one.

More from Dwain after the jump... including what problems can occur with blood testing, discovery advise, and even a pot question

Continue reading "Ask the Expert- Toxicologist Dwain Fuller" »

Polka Fest 09-
This weekend is the annual Ennis Polka Festival. I'll be at the KJT (Katolická Jednota Texaská) Saturday night (around 8ish) to see the Czechaholics and Brave Combo.

Come to Ennis and experience this one of a kind polkapalooza. Most of the polka dances can be accomplished with a slight variation of the country two step (quick, quick, slow, or something like that). No problem for most people to pick up. However, I largely rely on my wife to count the steps out loud while we are dancing. If NHTSA ever adopts the two step as a field sobriety test I"ll quit driving because I would fail every time.

DMN on DWI-
I'm not surprised that the various DMN "blogs" take a less objective journalism tone and adopt the informal blogger style. However, this DWI blood draw post seems to have been written by MADD. I've never seen such enthusiasm for blood tyranny before outside of MADD.

If you get pulled over for drunken driving this Memorial Day weekend, don't bother refusing to blow. Dallas police are gonna get a warrant for bulletproof evidence - your alcohol-laced blood. And they'll take it whether you like it or not.

First, "don't bother refusing to blow" is some pretty blunt legal advise. The decision to blow or not is complicated with legal and factual considerations. The kind of decision we used to allow defendants to make with counsel.

For example, in deciding to blow or not you should be aware that we still don't know what kind of software the Texas breath machine uses. Should we believe that our breath machine software is any less flawed than the Alcotest? Certain medical conditions can affect a breath score, as well as breath temperature. Should you blow or not? Depends, ask a lawyer, not a journalist.

Second, blood is only "bulletproof evidence" if you don't know anything about blood testing, or evidence. Blood tests are complicated and require precision in every step or the results will be corrupted. Precise scientific evidence and law enforcement don't always mix.

Also, just because a blood result is over .08 does not mean that the driver was over .08 when driving. We allow the make believe science of retrograde extrapolation to make that leap, but it's far from "bulletproof."

Finally, "take your blood whether you like it or not"? That sentence says a lot about the current state of DWI hysteria. We've gone GITMO on DWI suspects. You have no rights, and DPD has their needles ready.

Pot leads to crack and death says FBI director
Forcing our bureaucrats to advocate such ridiculous positions in public makes us all look bad. I'm sure this Robert Mueller guy is embarrassed and having to promote this idiocy. We should legalize pot if for no other reason than to end the public humiliation of our bureaucrats.

This must be some kind of secret federal government hazing ritual. Mr. Mueller is the pledge and before he gets a cabinet level position he has to get "punk'd" in front of Congress to show his loyalty. That makes more sense than his idea that we should treat pot like crack.

Thank you sir, may I have another!

Last Friday I attended the DWI Innocence Project at the Belo Mansion downtown. It was good to see some old friends, and make some new ones. Blood topics were hot this year with more agencies choosing GITMO style forced blood draws over actual DWI investigation.

Side Note- If DWI suspects are so obviously intoxicated, why are blood draws necessary?

Gas Chromotography for Dummies
Dr. Gary Wimbish did a good job explaining how they figure out how much hooch is in your blood. Gas chromatogarphy (GC) is the process by which a BAC is computed from your B.

To summarize- It's complicated. Complicated science has a way of being glossed over by law enforcement. Actually investing a result gets in the way of convicting DWI suspects.

As an ADA when I received a DWI case in intake the breath score was the first thing I checked. I didn't have enough information (or time) to rigorously investigate the result. I wasn't taught enough about the machine to look for errors. I only learned to critically examine the machine as a defense lawyer.

I never attended any blood seminars by TDCAA. If tradition holds prosecutors will be taught how to steal blood, not how to investigate individual blood results for accuracy. Prosecutors have a lot of DWI cases and are under pressure to convict for their promotions. What would an ADA gain by spending hours investigating one blood test result? You don't become a chief prosecutor by dismissing DWI blood cases.

Unlike the fake quack science of say, field sobriety testing, blood lab work requires precision and expertise. Any error can invalidate the results. The problem for defendants is that challenging blood work is prohibitively expensive. It's not an area that defense lawyers can easily tackle without expert assistance.

Unfortunately, the vast majority of defendants can not afford the experts needed to investigate or challenge blood results. The State has an on call prosecutor friendly expert ready to help convict DWI suspects. A comparable expert is going to cost a defendant at least a thousand dollars.

Most defendants gather every available nickel to afford a competent lawyer they trust. There is rarely any money left for experts. What kind of justice system provides a professional advocate expert to only one side? If we are going to allow forced blood evidence then we need to start appointing defense blood experts.

Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent... The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

Justice Louis Brandeis

The DWI roadblock bill (SB 298) is scheduled for a hearing Wednesday afternoon. We are running out of opportunities to defeat this dangerously misguided legislation. MADD is close to achieving their magnum opus; the suspicionless harassment and detention of innocent Texas motorists.

Politicians may not realize that opposing roadblocks does not mean one supports drunk driving. Instead, opposition to roadblocks is an affirmation that freedom and privacy has value. Texans deserve the simple liberty of not being assumed guilty of DWI.

Currently, Texas drivers who can obey every one of our state's numerous traffic laws can traverse the state in peace. When 298 passes all motorists will be forced to dance for police on the side of road and prove themselves not intoxicated.

It is beyond naive to assume that the police can handle such awesome power responsibly. What happens when the Officer Powells of Texas are unleashed at a roadblock?

The exact time of the hearing hasn't been set. I want to encourage anyone with a love for freedom, privacy, or liberty to attend this hearing and speak out against this bill.

Will freedom die with a whimper? Or will you stand up against tyrannical neo prohibition police state MADDness?

Further reading-
The Roadblock Future
Radley Balko on MADD

I was interviewed last week by RidinDirtyRadio. Thanks to Ken and Heidi for having me on.

Click here for the interview.

A follow up-
I stated that drinking and driving is not illegal. I meant that drinking then driving is not illegal (sans intoxication) in Texas. We still have an open container law.

Still, I recommend never drinking then driving. Intoxication is an opinion. You can never know when a cop will decide you are intoxicated and take you to jail. I've seen the innocent convicted of DWI. Don't risk it.

Not all cops are bad. But every department has a few Officer Powells on the force. Besides harassing motorists on their way to the ER Officer Powell also attempted at least one DWI arrest. Allegedly, he (shock!) told conflicting stories at the scene, on the stand, and in his police reports.

From DMN

In one Denton County case, dismissed by prosecutors last year, Powell can be heard on his dashboard video camera acting hostile toward a man he pulled over for speeding.

"What's your hurry?" Powell asked.

"No hurry, sir."

"All right, try again," Powell said. "What's your hurry? ... Don't lie."

Powell can then be heard telling another officer that he didn't smell any alcohol on the man but was going to check him for intoxication anyway.

The man refused to blow into a Breathalyzer but did perform field sobriety tests of speech and balance. Powell arrested the man on a DWI charge.

Later, at a state hearing to determine whether the man would lose his driver's license for refusing the breath test, Powell contradicted what he said on video. "And you asked him to step out of the car for what reason?" the man's attorney, Kimberly Griffin Tucker, asked Powell, according to a transcript.

"Because I smelled alcohol on his breath," Powell replied.

When Tucker then played the video, Powell gave another explanation.

"Well, I didn't say exactly when I smelled the alcohol," he said. "Sometimes when I get people out, I can smell it more than in their vehicle because a lot of times people won't exactly look at me."

The judge, unconvinced that Powell had probable cause, declined to suspend the man's license in the December 2007 arrest. And Denton County prosecutors dismissed the DWI charge. They didn't feel they had enough evidence to make a case, prosecutor Jamie Beck said.

Of the defendant's actions on tape, Beck said: "He's being very polite, very cooperative, and his mental faculties appear to be intact."

"The officer is kind of a jerk," the prosecutor said, "so that's going to count against us when we're trying it in court."

Remember that "protection" in the DWI roadblock law that requires reasonable suspicion to require SFSTs? If Officer Powell hadn't been stupid (or honest) enough to admit on camera he couldn't smell alcohol a judge may very well have ruled he had RS to conduct SFST.

Here is the video of the stop. This is your checkpoint future Texas. We will remember these pre roadblock (PR) days as a simpler time when Texans were able to avoid the wrath of rogue cops by obeying every traffic law. Glory days, they'll pass you by, glory daaaaaaa aaa aaays.

The DWI roadblock bill has passed through the Senate is working it's way through the House as I type this. The roadblock, I mean "checkpoint" bill is SB 298.

So how much security are we getting for our freedom?
From DMN and State Senator John Carona (R-Dallas)

"We're not taking anyone's rights away. We're trying to make sure my right and your right to drive safely is protected," Carona said....

Checkpoints could save 300 lives a year in Texas, Carona said, citing federal highway safety experts.

I beg to differ. In fact, you are taking away this right

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..

and replacing it with a new "right" to be stopped without cause and forced to prove yourself not intoxicated. I've searched the US and Texas constitution for the "right to drive safely" and I couldn't find it. Maybe John can show me where he go that from.

What's in 298?
There are limitations on these these random suspicionless searches of Texas drivers. They are only allowed in counties over 250,000. Only one a year per location. The police have to stop cars at random (every third or fourth etc). Here are some other "protections" that caught my attention.

From 298-

(i) A peace officer at the sobriety checkpoint may not
require a motor vehicle operator to perform a sobriety test unless
the officer has reasonable suspicion or probable cause to believe
that the operator is in violation of Section 49.04 or 49.045, Penal
Code. A peace officer who requires or requests an operator to
provide a specimen of breath, blood, or urine must comply with
Chapter 724, Transportation Code.

(j) Unless a peace officer has reasonable suspicion or
probable cause to detain a motor vehicle operator for a criminal
offense, the time during which an officer makes an inquiry of an
operator should not exceed three minutes, and the total time during
which the operator must wait to pass through the checkpoint should
not exceed 10 minutes. The law enforcement agency shall make
reasonable efforts to reduce these periods to not more than one and
five minutes, respectively.

On a side note, SWAT home invasion searches have less statutory requirements than a roadblock. But that's for a different post.

Notice the weasel word "should". "Shall not exceed three minutes" would actually mean something. "Should" is a suggestion, and I predict the appellate courts will treat it as such. If there really was a three minutes limitation why not just lock the windows and refuse to cooperate for 3 minutes?

The only "shall" requirement is to take "reasonable efforts" to keep these between one and five minutes. I don't expect zealous enforcement of that requirement by our appellate courts.

Prediction 1- I predict the standard for reasonable suspicion at a roadblock is going to become; "slurred speech, odor of alcoholic beverage, and bloodshot eyes." Those are three most common boilerplate signs of "intoxication" listed in police reports. And, what else can you observe from a driver sitting in a vehicle?

Prediction 2- When Senator Corona's 300 fatality reduction doesn't materialize a new "tougher" DWI checkpoint bill will be drafted doing away with the already anemic "protections" this bill offers. Once you get the public used to roadblocks, it's a much easier sell to get "tougher" at roadblocks. Why not demand a breath sample of every driver? Or a blood sample? Or make all drivers take SFSTs?

Prediction 3- Once we legalize random suspicionless searches there will be a call to expand to other causes du jour. It won't be long until another "crisis" demands it's own version of a checkpoint.

Why not look for illegal immigrants at a checkpoint? Why not search for drugs at a checkpoint? Why not search for sex offenders at a checkpoint? Why not search for terrorists, nuclear weapons, illegal handguns or illegal sex toys at a checkpoint? Why limit this to cars? Let's search passengers on the DART rail. Or search private homes for drugs, child pornography, or "passion parties".

Do roadblocks work? Depends on what the goal is. Even MADD admits the "primary" goal of a checkpoint is deterrence. From MADD.org

The point of a checkpoint is to deter primarily and to enforce the law when required. Sobriety checkpoints are higher visibility and raise the perceived risk of getting caught more than do roving patrols or saturation patrols.

MADD is right. They can scare the shit out of Texas drivers by stopping every car without reason and treating each driver like a criminal. Does that mean we should engage in big brother security theater? Using fear to change public behavior has catalyzed the shift from peace officers to law enforcement.

Do roadblocks prevent fatalities?
Probably not. In fact roadblocks have proven so ineffective (and so expensive) that communities are calling to end them.

And why would we expect roadblocks to reduce fatalities? If you want stop dangerous drivers cops should patrol the roads looking for dangerous driving behavior. If you want to randomly harass the public, then put up a roadblock.

Me on the radio-
I was just interviewed by ridindirtyradio.com about Texas checkpoints. I have to say it made me fairly nervous to be on the air. I had not been on the radio since the summer of 2002 when I did a few shifts for the Texas Tech student radio. (Keep it locked to the left, 88.1 FM).

I was on with Ken and Heidi aka ridin dirty radio, 830 AM in Los Angeles. I probably talked way too fast to make any sense. We discussed the roadblock bill, the driving culture in Texas, and the role parents could play in preventing DWI.

They asked if the Texas-OU game would have a checkpoint. I stated that I doubted the alumni would allow it. My guess that there will be an inverse relationship between political influence and roadblocks. Can you see Jerry Jones allowing a checkpoint outside his new stadium? Right.

Today's case of the day is....

State of Texas vs. James Ray Deeds-
Facts- Balch Springs officer Palfreyman was working late one night when a motorist flagged the officer down. The motorist was concerned about a possible DWI driver in a red pickup.

What facts did the concerned citizen tell the officer to justify his DWI concern? Let's ask the officer-

I don't recall the exact statement, but led me to believe that, based on the driving patterns that he had witnessed, that he believed the driver of the pickup truck to be intoxicated.

Nothing. The officer can't remember and didn't bother to record anything. Who needs facts? This is DWI enforcement. Based on this rock solid investigation the officer spots a red pickup and immediately pulls the car over.

Problem- The red pickup had committed no traffic violation. The officer had no articulable facts or evidence that this driver was DWI. The defendant filed a motion to suppress the illegal arrest.

Holding- This is a DWI case so conviction affirmed. The court found plenty of "evidence" of DWI, enough to justify detaining this driver.

From the opinion-

The record shows that after receiving the informant's report, Palfreyman witnessed appellant “weave back and forth” within his traffic lane. That weaving “gave a small additional measure of corroboration” to the informant's report. See State v. Nelson, 228 S.W.3d 899, 904 (Tex. App.-Austin 2007, no pet.)...

Corroboration
How exactly do you corroborate a report that contains NO FACTS? Weaving in a lane is not illegal in Texas. You probably weaved in your lane on the way to work. Were you drunk? Should you have been pulled over if some random citizen told the police to arrest you?

Don't Drive After 11PM

Think weaving in a lane is a stretch? The court also rules that driving late at night can be used against you. From the opinion-

Finally, Palfreyman testified the likelihood of encountering an intoxicated driver on the roadway is generally highest between the hours of 11 p.m. and 3 a.m. The record shows the events at issue occurred at approximately 2 a.m

Statistical profiling is a poor substitute for real police work. It's a logical fallacy disguised as law enforcement.

If more drunk drivers are out late at night, that doesn't mean any individual late night driver is drunk. Why don't we just run credit scores to establish probable cause?

We've replaced the right to not be detained without cause, with the right to be arbitrarily stopped by law enforcement after 11pm. Another sacrifice of freedom at the idol of DWI enforcement. But who cares about DWI defendants?

Not a very good one. A Johnson County magistrate earned $50 for each forced blood draw warrant she reviewed.

When you compensate someone for the volume of work done, you will get quantity, but not always quality. What do you know? She signed at least one warrant without the required probable cause.

From the Star Telegram-

CLEBURNE — Results of a blood-alcohol test on state District Judge Elizabeth Berry after she was stopped for speeding through Alvarado last year cannot be used to try her on a charge of driving while intoxicated, a visiting judge ruled Thursday.

After a three-hour hearing Thursday, retired Senior Judge Robert Dohoney ruled that the facts cited by the officer who arrested Berry on Nov. 8 were not sufficient to support a search warrant granted by a judge to obtain her blood.

Berry’s attorney, Mark Daniel, said Dohoney’s ruling is legally correct.

"He ruled on the sufficiency of probable cause within the [officer’s] affidavit," Daniel said. "A small quantity of evidence is required to sustain probable cause. He found it did not exist."

Daniel initially challenged the admissibility of the blood tests on several grounds, including the legality of the traffic stop; evidence used to obtain the search warrant for Berry’s blood; and the fact that it was drawn in a jail interview room....

Focus on the warrant

Instead, the hearing focused on the search warrant signed by Municipal Judge Toni Driver based on the affidavit of arresting officer Taylor Archibald, who sought permission to take Berry’s blood after she refused to complete a field sobriety test or take a breath test.

Madison had also planned to call medical personnel involved in drawing Berry’s blood. Those witnesses were not called after Dohoney, at Daniel’s request, ruled on the validity of the search warrant.

Daniel led Archibald and Driver line by line through the two-page affidavit in an effort to show that the officer did not present enough facts to justify the search warrant.

He pointed out that the affidavit did not list many commonly accepted signs of intoxication, including bloodshot eyes, lack of balance or unsteady movements. Details such as the odor of alcohol on Berry noted by another officer were not included in the affidavit until Driver told Archibald that she needed more information to grant the warrant.

Even then, Daniel said, the affidavit did not say when the officer noticed the odor or where in Berry’s car the officers saw eight 12-ounce beer bottles.

Most cops and prosecutors think a refusal is enough to steal your blood. Not so, probable cause is still required for these forced blood draw warrants. Years of pro State appellate decisions have made made this a laughably easy burden to meet.

Setting the bar so low for law enforcement perpetuates incompetence. That seems to be the case here. DWI hysteria and pro conviction appellate courts have created an environment where poor DWI investigations are not punished (or suppressed). It's no surprise this officer didn't do his job on this warrant. Most of the time the defendant will plead, or the appellate court will forgive his mistakes.

The $50 Magistrate
Most disturbing is the relationship between the magistrate and the state. Magistrates are supposed to neutral and detached. To further the DWI conviction machine we have made magistrates agents for law enforcement.

From the ST-

And he questioned the propriety of the county paying Driver to review search warrant requests.

She is paid $250 a month, plus $50 per warrant reviewed, under a contract that says she is on call to "assist law enforcement and prosecutors."

Not even the pretense of neutrality. We've gamed the system to the point of absurdity. No right to counsel, no right against self incrimination, no right to confront the state's machine. The more we crack down on "drunk driving" the more we erode the fundamentals of our adversarial system.

I had a DWI bench trial few weeks ago and received a directed verdict of not guilty. I respect the ADA involved so I've waited until now to write about it. I don't want to appear like I'm scoreboarding anyone. It was a unique case that played out very strange at trial.

It offers a lesson for DWI defendants. The information contained in a police report may very greatly from the evidence at trial. Cross examination is still the best way to test the veracity of evidence.

What is a directed verdict?
In general, at trial after the State rests (finishes presenting their case in chief) the defense will move for a directed verdict. The defense is asking the judge to find the defendant not guilty because as a matter of law the State has failed to produce any evidence on an element of the case. I've seen and made dozens of directed verdict motions. They are routinely denied.

Why was mine granted?
I made a motion to suppress all the State's evidence during trial. The judge granted that motion. That meant that the State had not put on any evidence of DWI. Therefore, a directed verdict was required.

Why was my motion to suppress granted?
The arrest report listed one set of facts regarding the initial traffic stop. At trial, the officer testified to a complete different reason for the traffic stop. However, that reason was factually impossible. It couldn't have happened. Evidence from an illegal traffic stop can't be used against the defendant (38.23). Ergo, all the State's evidence vanished.

Why did I have a bench trial instead of a jury trial?
The decision to have a judge or jury trial is always up to the defendant. I provide advise of what to do. But if the client and I disagree, it's his/her decision.

Going into trial I thought there was going to be a legal defense of necessity. DWI necessity is a strange animal. I thought allowing the judge to rule on the facts and the law would be most beneficial in that situation. However, with the directed verdict the necessity issue was never raised.