Dallas Criminal Defense Lawyer Blog

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.

Celebrate the new year with the DWI Security Theater production of No Refusal. Of course by "no refusal" what is really meant is that the police are going to punish you for not taking their breath test, exercising your right to remain silent and not produce evidence, and exercising your right to not be held down while police goons steal your blood.

"No refusal" sounds better to the public than "forced blood draw program". PR points for the police. Here the story from Bell County.

“We want everyone in Bell County to have a great New Year’s holiday,” Sheriff Dan Smith said. “Our intent is to protect the public and have an accident and fatality free holiday.”

People suspected of driving while intoxicated are generally asked to submit to a breath test that measures the person’s blood-alcohol content. Those who refuse the test may have their licenses suspended but they also leave prosecutors with one less piece of evidence to use against them.

“We’re not going to allow refusals,” Smith said....

“We’ll be out in force,” said Mike Gentry, police chief in Harker Heights. “Drinking and driving is unacceptable and highly dangerous conduct.”

This is why police chiefs and sheriffs can't practice law. First, a refusal itself doesn't mean the police can get a warrant. They must have probable cause of DWI. Simply not allowing refusals isn't a legitimate goal of law enforcement.

Second, to correct Mr. Gentry, drinking and driving is NOT illegal in Texas. He may consider it unacceptable and highly dangerous (as I consider home invasion SWAT raids), but he shouldn't be arresting for it. Mr. Gentry has been exposed to so much TxDot propaganda he has forgotten (or never knew) what the law is. DWI requires intoxication, not just drinking.

But wait, Bell County isn't alone, here is the story from Smith county.

Upon the arrest of a suspected drunken driver, he or she will be asked if they would submit to blow into a breath-test machine or take a blood test. If the driver refuses and says 'no,' officers will obtain an immediate search warrant signed by a judge on call to have blood drawn by a nurse on staff at the Smith County Jail," said Don Martin, Tyler Police public information officer.

Bobby Mims, public affairs officer for the Smith County Criminal Defense Lawyers Association, said Monday that the group met and came up with an appropriate response to the "No Refusal" weekend announced by Tyler police.

He said defense attorneys are not telling the public to refuse the test but want the public, as well as law enforcement officers and judges, to know that sufficient probable cause based on evidence is needed for a search warrant and that just refusing a breath test is not sufficient.

He said just because it is a "No Refusal" weekend, doesn't mean people don't have a defense.

"You do have a defense, and we're going to provide it to our clients," Mims said.

Nice try Mr. Martin. Notice how the police believe that upon a refusal they have the automatic right to a search warrant. Probable cause to arrest never occurs to them. We don't spend a lot of time teaching police the value or nuances of the 4th, 5th, or 6th amendments. So it's not suprising that they have no working knowledge of your rights.

Bobby Mims cuts through the empty rhetoric to inform the public that the law can still protect them from the best intentions of DWI zealots.

Finally, have a safe and enjoyable New Years. Call a cab, and yes, don't drink and drive unless you want to spend time with DWI vampires; thirsting for your blood while ignorant of your rights.

Hat tip to the TDCAA website for highlighting this recent COCA DWI opinion. In a remarkable decision the Court of Criminal Appeals actually upheld the rights of a DWI defendant. Unbelievable.

Case-Roy Bob Bartlett vs. The State of Texas

Facts- Roy Bob was charged with DWI. Roy Bob refused a breath test. The State wanted the jury charge to include language that refusing a breath test is evidence of guilt. The jury charge addressed the refusal and what the jury could think about said refusal.

Problem 1- Judges are not allowed to comment on the evidence. Juries decide what the facts are. You can't tell the jury what the facts are, or even what facts are important, in the jury charge.

Problem 2- The prosecution in this case was flat wrong. The law creates no presumption that a breath test refusal is evidence of guilt. That may be what most prosecutors and cops think, but it's not the law in Texas.

What is the law? Transportation Code section 724.061 allows evidence of a refusal to be introduced in a DWI trial. It doesn't say what the refusal means.

Holding- The case is sent back for a "harm analysis". Translation- sure this jury charge was illegal, but maybe we can still save this conviction by calling said error "harmless".

From the opinion-

Section 724.061 of the Transportation Code does not establish a legally recognized presumption of consciousness of guilt that follows from the fact of refusal. We are aware of no other statutory language that expressly authorizes the jury to presume a consciousness of guilt from the refusal to take a breath test. In the absence of such a legal presumption, it is improper for the trial court to instruct the jury with respect to inferences that may or may not be drawn from evidentiary facts to ultimate or elemental facts. Because a presumption of consciousness of guilt from the refusal to submit to a breath test "is not an explicit legal tool for the jury[,]" (22) it was error for the trial court to have instructed the jury with respect to available inferences that may derive from that evidence.

Finally, the admission of the appellant's refusal to take the breath test was not contingent on any other fact which a jury is charged by law to decide. Indeed, the law typically assigns to the judge, not the jury, the role of determining the admissibility of evidence. (23) Absent some express legal provision that does assign some role to the jury in the determination of what evidence may be considered, such as Article 38.22, Section 6, or Article 38.23(a) of the Code of Criminal Procedure, (24) to simply instruct the jury that certain evidence may be considered serves no legitimate purpose and needlessly calls its attention to that particular evidence to the derogation of all other evidence in the case. On its face, Section 724.061 of the Transportation Code does not involve the jury in the decision whether evidence of the refusal to take a breath test may be admitted for its consideration, and there was no call for the trial court in this case to give a jury instruction on that account.

I'm only surprised MADD, TxDot, or DPS didn't think of this first. We already use the fake DWI death/car crash and the fake DWI arrest to scare students. How long until we threaten them with eternal damnation?

I'm on an ALR win streak. My last three hearings have resulted in a victory for my client. (ALR hearings are when the state moves to suspend your license for a DWI arrest).

I know these clients appreciated not having their license suspended. However, two of the victories were dismissals because the arresting officer failed to appear. That is still a victory, but only in the short term. (The other was because the State couldn't prove my client refused to provide a specimen). When the officer fails to appear my client gets a short term benefit (no DL suspensions) but still faces long term problems (the criminal DWI charge).

I tell my clients that it can be better to lose the ALR hearing if I get to cross examine the arresting officer. Many of the best results I have got in a DWI case (dismissals, obstructions etc) resulted directly from ALR testimony. The DWI offense report contains one set of facts. An officer's memory can, and often is, completely different.

On a side note- The State's ALR attorney is now required to write down exactly what time the police officers arrive and leave the hearing. I was informed this is a survey on the time requirements of ALR hearings. I'm certain that whatever "problems" this survey uncovers will have one solution; make ALR hearings "more efficient" and even easier for the state to win (i.e.-allowing affidavits without live witnesses).

Why should we care if ALR hearings require some officer time? We allow this implied consent nonsense as a civil suit end run around protections for criminal defendants. The state is trying to take away your ability to drive. In a strip mall, tollway, limited public transportation, exurb-commuting state like Texas that is no small detriment. Requiring law enforcement to show up for a 15 minute ALR cross examination is the least we should do.

Many potential clients assume that if there no video tape of a DWI arrest, it helps their case. They believe that the absence of such evidence will make it harder for the State to convict them. Some also believe the State will, or must, dismiss the case for lack of video evidence.

This is a logical assumption. The State bears the burden of proving the defendant is guilty beyond a reasonable doubt. It doesn't seem unreasonable that when the State loses critical evidence they should have to dismiss the case (unfortunately, the appellate courts require an impossible showing of "bad faith"). In my experience, the absence of a DWI videotape always hurts the defense more than the State.

First, the absence of a video tape leaves out the only unbiased observation of events. Defendants don't take notes during their arrest (most wouldn't know what to write anyway). That means the only record of events is the police report.

The problem is that the police are not writing objective factual observations. Rather, the police are trying to justify their decision to arrest and present a good case so the prosecutor will file it.

For example, most DWI reports state that the defendant had slurred speech, was swaying, failed certain field sobriety tests etc. From reading the report you would be convinced the defendant was falling over drunk.

At trial the officer is allowed to read from this report to "refresh his recollection". This is a strange practice as police reports themselves are inadmissible as evidence (they aren't trustworthy). So the police officer's version of events can be the only version presented at trial.

Only by playing the video and asking the officer to show which words were slurred, and to show the jury the swaying can you effectively negate this testimony.

Without a video tape the defense has at best (if the defendant testifies), a cop versus defendant situation. My experience is that when jurors are asked to believe the testimony of an articulate well trained uniformed police officer or the defendant, they will choose the former.

No matter how brilliant my cross examination is, it is the video tape that can convince the judge/ jury that maybe this officer was exaggerating, or did make a mistake.

I check the fresh opinions from the Dallas Court of Appeals almost daily. TCDLA helps me stay on top of opinions from across the State. Today, a TCDLA member shared an interesting DWI case with the defense bar.

Kurt Wells vs. The State of Texas- This opinion was handed down on 11/25 from the Amarillo court of appeals.

Facts -Kurt was convicted of DWI. Kurt performed the Horizontal Gaze Nystagmus test. (Personally, I would never take the HGN test, because, inter alia, the results are not confirmed on the in dash video tape.) At trial the State offered a statement from the American Optometrist Association declaring that HGN testing was valid and useful in DWI cases.

The Problem- The State offered this evidence through the arresting offer. The officer is not an optometrist, or a member of AOA. The officer had no knowledge of how the AOA came to its conclusion. We call such evidence, hearsay. Also, allowing these statements violates your right to confront the witnesses against you (Crawford).

State's Argument on Appeal- Sure it was hearsay, and it did violate the 6th Amendment right to confrontation; but it was merely a harmless error. Please uphold the conviction.

Holding- Conviction Reversed. Here is a great quote from a justice (Brian Quinn) who gets it.

While it is laudable for the State to concede error, it seems somewhat incongruous to invite like conduct in the future by simply holding that its actions were harmless. Indeed, experience teaches that in the heat of battle litigants often push the envelope of propriety until they are told to stop. As the old cliche goes, "give 'em an inch and they'll take a mile." So, care should be taken to dissuade litigants from attempting to take the mile when given the inch inherent in the harmless error rule. This seems especially so in those situations were there exists a quantum of admissible evidence indicative of guilt. The presence of legitimate evidence of guilt should not be seen by the State as a way to slip into the record evidence of dubious legitimacy.

Harmless error holdings are dangerous because they encourage the State to continue violating your rights. It's only by reversing convictions that conduct is changed.

Harmless error findings also discourage future appellants from asserting their rights on appeal. Many defendants can't afford to appeal their conviction. Those who can afford an appeal may choose to forgo an appeal if they think the court will rule that error is harmless.

Speaking of harmless error. There is no harm in requiring a new trial. If we are going to err, it should be on the side of upholding the constitution and granting new trials. Mr. Wells might very well be convicted again. If he is, at least it is without violating his constitutional protections.

www.sobrietytesting.org is the National Sobriety Testing Resources Center. This website limits access to police/prosecutors and shares DWI testing information. Defense attorney's aren't welcome.

Naturally, I filed an open records request with the Department of Public Safety to see what documentation, emails, or letters they had from this group.

Today I found out- None.

I find it hard to believe that a National Sobriety Testing Resource Center has not a single member from DPS. However, that's what DPS is telling me.

A TDCAA message board post led me to the National Sobriety Testing Resource Center, www.sobrietytesting.org.

What is the NSTRC? From their website

Welcome to the National Sobriety Testing Resource Center (NSTRC). The purpose of the Center is to provide a comprehensive source of information regarding standardized field sobriety testing, training and certification for authorized and active law enforcement practitioners and instructors. The NSTRC also provides access to the SFST Training Management System, a voluntary, state oriented practitioner and trainer database. The NSTRC is a cooperative effort of the National Highway Traffic Safety Administration (NHTSA) of the US Department of Transportation and the International Association of Directors of Law Enforcement Standards and Training (IADLEST).

Sounds great. I love learning about field sobriety tests. It seems tax dollars are being used on this project so the public, even defense attorneys, should have access to this data. Right?

Wrong.

This system contains confidential and privileged information that is intended only for use by individuals who have received the permission of the Program Director to access this system. If you have not been granted authority by the Program Director, then you are hereby notified that any access, disclosure, dissemination, copying or distribution of the information contained herein is strictly prohibited. Please treat the contents of this site as LAW ENFORCEMENT SENSITIVE AND FOR OFFICIAL USE ONLY. Further distribution of this information is restricted to law enforcement agencies. Any and all persons or organizations violating distribution restrictions will be prohibited from accessing this system.

I'm supposed to believe that this field sobriety test information is so important, that only law enforcement can view it? I can't think of any legitimate reason to keep this information from the public. This isn't counter terrorism, it's DWI enforcement.

Naturally, I sent an email to the Program Director asking for access to the database, and for their public information officer. Then I sent an email to Texas DPS asking for any records they have on this project.

What top secret field sobriety test information is being kept from the public?... Stay tuned to find out.

I've had some recent DWI cases plead to Obstruction of a Highway. In each case my client was charged with a DWI, and the case had problems. The choice was between having a DWI jury trial, or pleading guilty to Obstruction.

What is Obstructing a Highway? Read this earlier post.

I usually, if not always, recommend taking the Obstruction plea rather than go to trial on the DWI.

Why?

1. A DWI Lasts Forever
In the past, a DWI conviction had a ten year limitation for enhancement. That is, if you got 3 DWI's that were each 11 years apart, the State couldn't enhance your case to a felony (DWI 3rd is a felony in Texas).

Not any more. The lege changed the law so that a DWI conviction can be used against your FOREVER. That is, if you get a DWI in 2008, and another in 2028; then the original 2008 conviction will be used to "enhance" your 2028 case. That is, the punishment is worse (from Class B to Class A misdemeanor). Every client I've had with a DWI charge states they will never drink and drive again. However, forever is a long time.

2. Surcharge
A few years ago a doltish majority in Austin found a great way to balance the budget. Instead of cutting spending the lege invented millions of dollars in revenue from "surcharges" they would collect from those convicted of DWI. In theory those convicted of DWI are supposed to pay at least $1,000 a year to keep their license. In practice, most of these fees are never collected.

These "surcharges" should be unconstitutional (double jeopardy) in that they punish a person twice for the same offense. DWI suspects already face fines, fees, court costs, and forced donations to MADD (victim impact class). Unfortunately Texas appellate courts are more than willing to justify constitutional violations in DWI cases.

By pleading to OAH, clients don't risk the possibility of paying thousands in extra "surcharges" just to keep their DL.

3. Jury Trials
One of the services I offer is taking an uncertain criminal situation and providing guidance and direction to my clients. I am in the certainty business. When my clients are offered and OAH plea I can guarantee the DWI will be dismissed (not expunged though). With a jury trial, there are few things I can guarantee. Most defendants aren't exited about the idea of having a jury trial. They would much rather take the certainty of an OAH charge.

Even with a strong case for the defense I can't guarantee a jury will find a client not guilty. The State has professional coached witnesses, and jurors are inundated with DWI propaganda. With those factors working against the innocent, an OAH plea can be a great resolution to a DWI case.

Texas has repealed most constitutional protections for DWI suspects. Texas also indoctrinates law enforcement and breath test "experts" with blood on the highway DWI propaganda.

The system forces DWI suspects to take the State's breath/blood/field sobriety tests, and the State's witnesses are taught that they must arrest more and convict more or people will die. Is anyone surprised when a DWI lab "expert" starts faking test results? After all, who cares about drunk drivers?

From the Dallas Morning News

Texas DPS says inspector faked records, jeopardizing 2,600 DWI cases

04:34 PM CDT on Friday, October 24, 2008
By EMILY RAMSHAW / The Dallas Morning News
eramshaw@dallasnews.com

AUSTIN – At least 2,600 Houston-area DWI arrests are now in question, after a Department of Public Safety contractor failed to inspect breath analysis equipment – and faked records to show that she had.

Breath test instruments must be checked and calibrated once a month to ensure accuracy. DPS officials believe the contractor, whom they haven't identified, may have been falsifying inspection records for up to a year at eight Houston-area police departments.

She was not working in other parts of the state.

"Once DPS found reason to believe that these records had been altered, we suspended the supervisor's certification and opened up a criminal investigation,"said Col. Stan Clark, interim DPS director.

"These are serious allegations and we will not tolerate any activities that call into question the integrity of the breath test system"

This is why we need constitutional protections for all suspects, even alleged DWI drivers. You should have the right to an attorney before you take a breath test. After all, the State's intoxilyzer expert doesn't care if you get convicted with false evidence. The police certainly don't care if the breath test machine works or not. In Texas, we teach DWI officers NOT to learn how the breath machine works.

When we convict the innocent with phony evidence, we impugn the integrity of the criminal justice system. After all, why follow the law when the State will convict the innocent with phony evidence?

Another legislative session brings another request by MADD for DWI roadblocks. The Texas lege has rejected this bad idea for 10 years. Hopes springs eternal for neo prohibitionist zealots. From DMN

"This could be the year," said Mary Kardell, the executive director of the North Texas branch of Mothers Against Drunk Driving, referring to renewed efforts to legalize sobriety checkpoints... "There is so much outrage right now."

Not low enough for MADD. MADD wants to let the police stop all drivers without cause, and then make the drivers prove they are sober and that they have their papers in order. This is MADD's America, where DWI enforcement trumps freedom. MADD has already taken away your right to counsel, your right to a fair trial, your right to remain silent. MADD is betting you won't mind giving up another minor constitutional protection.

MADD is selling the promise of safety and only asking for a little freedom in return.

Roadblocks don't work!
The best reason to oppose police roadblocks is that they do not work. Here is a great quote from DUIblog.com

According to MADD’s own website, 40 states have checkpoints and 10 do not. Well, it would be interesting to compare the states with the highest percentage of alcohol-related fatalities with the list of states not using checkpoints: If MADD is correct, the states with the highest fatality rates will be the no-roadblock states. Fortunately, another section of MADD’s website provides such statistics for each of the states. The 5 states with the highest alcohol-related fatality rates:

Hawaii
Nevada
North Dakota
Rhode Island
South Carolina

According to MADD, all 5 states should be non-checkpoint states. In fact, however, 4 of these states use checkpoints; only Rhode Island does not. Well, what about the 5 states with the lowest fatality percentages? They are:

Georgia
Kentucky
Indiana
Iowa
New York

If MADD is correct about the effectiveness of checkpoints, these should all be checkpoint states. But as with the previous list, only 4 of the states permit the use of sobriety checkpoints; Iowa does not. As with the previous list, the percentage is what one would expect from pure random incidence: 20% of the states (10 of 50) do not have checkpoints — and 20% of the states on each list (1 of 5) do not use checkpoints. There appears to be no correlation between fatality rates and the use of checkpoints.

Pulling over every driver for a random search is not law enforcement. It's police state idiocy to believe that we are safer when the police waste time harassing innocent motorists.

Note to roadblock supporters- If you want to stop DWI then you want the police out looking for drunk drivers!

Finally, roadblocks are always abused by law enforcement. What starts as a limited search for drunk drivers always turns into fishing expeditions for contraband. Another disturbing trend; police often record the information of every motorist stopped. Big brother then compiles a database of who travels in the "wrong" neighborhoods.

MADD comes to Austin every two years selling safety, and asking for freedom. Don't be afraid to say no to petty tyrants with bad ideas.

The Kaufman County Bar met today. The luncheon was held at Maples Hall, a restored building from 1890 that you can rent for gatherings. It's an amazing structure and I highly recommend it. If you are in Kaufman, and need to meet for any reason, use Maples Hall.

Kaufman DWI Court
Kaufman is instituting a new DWI court program. What is DWI court? Basically, it's a new way for our criminal justice system to address addiction. The old way of addressing addiction- incarceration, has not proven effective at changing behavior. An alcoholic who leaves jail is still an alcoholic.

How do you get in DWI court?
This program is designed for felony DWI cases, as well as those on probation who are showing signs of addiction (failed UA's, drinking). Instead of being revoked and incarcerated these defendants will enter the DWI court program.

DWI court requires the probationers to meet with the judge every week to discuss their situation. Defendants will be responsible for attending AA/NA meetings, and getting medical treatment or counseling.

Any criminal defense lawyer will eventually have clients with addiction problems. I encourage my clients to solve these issues outside of the criminal justice system before accepting a plea bargain for probation. While I'm never exited when my clients are found guilty and put on probation I hope this new probation program will be a success.

You are charged with DWI. You look good on the video, you refuse to blow, and you have no record. The State offers you a plea bargain in which they will dismiss the DWI if you plead guilty to Obstructing a Highway.

What is obstructing a highway?
OAH is a class B misdemeanor in Texas. It is the same level of offense as a DWI but lacks the $1,000+ driver's license tax upon conviction. It is also the most frequently pled to charge in a DWI case, other than DWI.

Is OAH really a crime?
Sure. Here is the Texas Penal Code
§ 42.03. OBSTRUCTING HIGHWAY OR OTHER PASSAGEWAY.
(a) A person commits an offense if, without legal privilege or authority, he intentionally, knowingly, or recklessly:
(1) obstructs a highway, street, sidewalk, railway, waterway, elevator, aisle, hallway, entrance, or exit to which the public or a substantial group of the public has access, or any other place used for the passage of persons, vehicles, or conveyances, regardless of the means of creating the obstruction and whether the obstruction arises from his acts alone or from his acts and the acts of others; or

So people actually plead guilty to OAH to escape a DWI charge?
Yes. However, DWI is NOT a lesser included offense for DWI. That means the State is not barred from charging you with DWI after you plead guilty to OAH. I have never seen a prosecutor who would actually go back on an OAH/DWI plea agreement and not dismiss a DWI charge. It could happen though.

OAH is easily the least arrested for, yet most convicted for offense in Texas. I've never seen an actual arrest for OAH. I've seen dozens of guilty pleas for OAH.

Can my DWI be changed to OAH?
It's a very case by case situation. Some DA's ban the practice. Some limit it to the first time DWI offenders. I've seen OAH happen on the day of trial or pre trial, or during a regular plea bargain discussion.

Speaking of official oppression, Dallas is planning to celebrate Labor Day by violating your constitutional rights. It's another "No Refusal" weekend!!

To kick off the festivities Ryan Evans, First Assistant City Manager, sent out this letter regarding DWI no refusal weekends. A reader was kind enough to send me a link to this letter.

The letter begins with a clear misunderstanding of Texas law. From bureaucrat Evans-

"Under the Texas Implied Consent Law a person arrested for DWI is required to provide a breath and/or blood specimen."

Which implied consent law would that be Mr. Evans? Certainly not this one.

§ 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES;

After this strong start bureaucrat Evans proudly declares that DWI blood draw warrants are issued for innocent drivers only 8% of the time-Therefore this program is a great success! I wouldn't put too much stock in those numbers. After all, the government will lie with numbers to convict for DWI. Assuming they are true, you should still oppose blood draw warrants.

Proponents of DWI blood draw warrants often argue than some of the blood collected is over the .08. That is a fool's argument. The fact that violating the Constitution makes conviction easier, or provides useful evidence, is not a reason to violate the Constitution.

We could convict more defendants if we eliminated the right to counsel and beat defendants until they confessed. That doesn't mean we should. Can you hear the arguments of petty tyrants like Mr. Evans- "But 93% of those we beat confessed, and were guilty!!"

For those new to this blog here is some background on DWI blood draw warrants Here is my FAQ on the subject. These forced blood draw warrants should violate both the Texas Constitution and Texas' implied consent law. I say should because appellate courts have invented a DWI exception to the Bill of Rights.

Finally, if the police are doing their job and have actual evidence of intoxicated driving, why do they need these warrants in the first place? Because the goal of law enforcement is to convict, not to see that justice is done. Happy Labor Day!

A recent poll shows that 31% of Americans want the government to regulate blog content via the "Fairness Doctrine". The FD would force blogs to provide equal time to opposing viewpoints. Let's see how this would work in practice. Recently, a Wichita Falls man was sentenced to 99 years for DWI. I'll provide equal time to different viewpoints on the issue.

First up is the DUIblog by Lawrenence Taylor.

So what do you do with someone who has the genetic disease of alcoholism – and continues to drink and drive? Get him treatment for his disease? Or maybe you throw him in prison for the rest of his life.

Wichita County Man Gets Life Sentence for 10th DWI
Wichita Falls, TX. Aug. 8 - A man with nine previous drunken driving convictions was sentenced to life in prison. Kenneth Chris Oneal, 58, received the maximum sentence Thursday after jurors convicted him of driving while intoxicated-repetition, his 10th drunken-driving related offense…

Well, you say, he may be an alcoholic, but he didnt have to choose to drive. But that’s a Catch-22, isn’t it? I mean, part of the legal definition of driving while intoxicated is impaired judgment – the inability to make rational and intelligent choices.

This sentence is far from an aberration. See, for example, Third DUI = Life in Prison and 99 Years for Drunk Driving.
A Texas man with nine previous drunken driving convictions was sentenced to life in prison.

For 15 years now, the DUI fatality rate has remained fairly stable (see MADDness and Latest Figures in MADD’s War on Drunk Driving). In view of the fact that most fatalities are caused by recidivists — usually alcoholics — isn’t it time to consider alternatives to MADD’s hysterical vengeance/prohibition approach? Read Time for a Change .

Now for the counter point, here is MADDs blog-

A Texas man with nine previous drunken driving convictions was sentenced to life in prison. Read the complete story from KTVT.

The goal of MADD’s Campaign to Eliminate Drunk Driving is to end drunk driving permanently through:
1) High-visibility law enforcement, including sobriety checkpoints
2) Ignition interlock devices for all convicted drunk drivers
3) Advanced vehicle technologies that will prevent drunk driving
4) Public support

Which blogger provides better content and a unique viewpoint? Which post is cut and paste blog drivel? The FD would force blogs like mine to provide equal time to hopelessly untalented bloggers.

The Fairness Doctrine may or may not come back. If it does I will become the Al Capone of blogging. I wouldn't subject my viewers to crap police state bloggs like MADD or Pushingback. These tax payer funded blogs can't earn an audience. We should not allow the government to mandate an audience for them.

Ever wondered how DPS operates their DWI blood testing machine? Probably not. But if you are a DWI attorney, or defendant, this is an important topic.

I am proud to present the Texas Department of Public Safety's

Standard Operating Procedures for Blood Alcohol Analysis by Gas Chromatography

Interesting fact about Gas Chromatography machines. GC machines do NOT measure the amount of alcohol in a blood sample. Rather a GC measures the chemicals in the head space gas surrounding the sample. Henry's Law is applied to determine what the BAC is.

The manual is short, but not a very exiting read. If any scientists/medical technicians wish to offer some insight please comment.

MADD recently started their own blog. It seems no one has noticed. Comments are sparce. Not surprising since the writing is formulaic blog drivel.

From the blog title it appears that neo prohibitionist mission creep has set in at MADD. Not content to eliminate drunk driving, MADD is also on a crusade of "underage drinking prevention" and "support of the 21 minimum drinking age law".

Most posts link a news story about a DWI death or a repeat offender being arrest. Then MADD touts their simple solution that would magically prevent all tragedies in the future. MADD is selling security and only asking for a little liberty in return.

The theme of the MADD blog is that if you don't support their neo prohibitionist idiocy (banning kegs, arresting college students for drinking) or their police state idiocy (making it a crime to refuse a breath test) you must support death on the highway.

That isn't the choice; between death and freedom. We have been tough on DWI and the fatality numbers aren't responding. We have already repealed the 4th, 5th, and 6th Amendment for DWI suspects. Maybe, just maybe, a new approach is warranted.

Is an impartial judiciary important for criminal defendants? Even if the defendant is charged with DWI?

DWI enforcement has already destroyed many Constitutional Protections for DWI suspects. The 4th, 5th, and 6th amendments were long ago sacrificed to ensure efficient DWI convictions. Unfortunately MADDness and DWI hysteria are now threatening to destroy the impartial judiciary.

National Center for State Courts
The excellent DUIblog by Lawrenece Taylor recently exposed the judicial DWI training offered by the National Center for State Courts. NCSC teaches judges to be advocates for DWI convictions, going so far as to suggest judges meet with police and prosecutors to help them convict. If that was any case besides DWI, I would be shocked. Here is the NCSC, in their own words.

"What is the role of the courts in DUI Cases?"

In DWI cases, courts can have a much broader role than in many other types of cases. Through its interaction with law enforcement, prosecutors, defense attorneys, defendants, the public, and the press, the court establishes a tone toward DWI cases in the community. This is evident when the court addresses a defendant at sentencing to stress the severity of a DWI offense, invites school groups to attend DWI trials or dockets, or explains to law enforcement procedural shortcomings following unsuccessfully prosecuted cases. Judges, through their roles on the bench and in their personal lives, are leaders in the community and the attitudes they express are critical to shape public attitude toward DWI prevention and enforcement.

Training Texas Judges To Prosecute DWI
Naturally I wondered if similar DWI training was offered to Texas Judges. A quick Google search led me to the Texas Center for the Judiciary (TCJ). What is the TCJ? From their website-

The Texas Center for the Judiciary is the primary provider of specialized judicial education and training opportunities for Texas appellate, district, and county court at law judges.

What DWI training does the primary provider of Texas judicial education offer? Here is the DWI course list from the TCJ website-

Development and Field Test of Psychophysical Tests for DWI Arrest Source- Government |
Validation of the Standardized field Sobriety Test Battery at BACs Below 0.10 Percent Source- Government
A Florida Validation Study of the Standardized Field Sobriety Test (SFST) Battery Source- Government
The ABCs of DREs - Georgia Traffic Prosecutor Source- Prosecution
Horizontal Gaze Nystagmus: The Science and the Law Source- Prosecution
Psychophysical Tests for DWI Arrest Source- Government
The Detection of DWI Motorcyclists Source- Government

Notice anything? All these courses are authored by Prosecutors, or the Government! This is the same training we give the police and prosecutors. Judges with this type of DWI training would not be aware of, inter alia, the statistical fraud behind field sobriety testing.

Fortunately, Texas Judges are free to attend any training they choose. I have seen many judges at TCDLA seminars. The question then becomes- how many judges are trained only to prosecute DWI?

I had a pre trial hearing today regarding the broken Intoxilyzer machine in Kaufman. In Texas, technical supervisors are employed by DPS to maintain and verify these machines.

I was looking to suppress the evidence from a machine that had proven to be faulty and was taken out of service. We had a spirited hearing for 90 minutes, and my suppression motion was denied.

However, there was some interesting testimony on the I-5000. As a public service, here is some information on the Intoxilyzer 5000 (I-5000) and Technical Supervisors (TS).

1. Technical Supervisors have no repair on maintenance manual for the Intoxilyzer. If an I-5000 breaks a TS can only replace parts. If that doesn't work, they send it to Austin.

2. Technical supervisors only know an Intoxilyzer is broken if and when the Intoxilyzer tells the TS that it is broken.

To see if an I-5000 is working correctly a TS will ask the I-5000 to perform a self check. If the self check comes back ok, the machine is verified as accurate.

Wait a minute? If a machine is broken or malfunctioning, it may not run a self check correctly?

That's right. If this was a case other than DWI that would be a problem. However, we let all kinds of phony evidence in on DWI cases.

If an I-5000 does not self report that it is broken, no one knows. Not the TS, the prosecutor, defendant, defense lawyer, or jurors. TSs do not have any way to independently verify that an I-5000 is working properly.

3. TSs can not tell if the self check software is malfunctioning. TSs do not know how the software works.

Actually, it's worse than that. TSs don't know how ANY of the I-5000 software works. What formula does the software use to calculate BAC from photons? Ask the company.

Besides being inaccurate, Intoxilyzer machines break down frequently.

Last year Kaufman County's DWI breath test machine was taken out of service. Here is what happened.

Reference Sample
Breath test machines are never calibrated on humans. By that, I mean that you don't have a human take a breath then a blood test to see if the machine is accurrate. Instead we rely on reference sample solutions. These solutions are designed for the machine to report a 08 bac.

Horseshoes, Hand Grenades, and Breath Test Machines
In this case the machine was given a reference sample to analyze. What should the machine score a .08 sample to be verified as fit for service? After all, we are convicting Texans with this machine. How accurate should this state's witness have to be?

If you guessed .08 you'd be wrong. Reading from .073 to .087 are acceptable. Good enough for government work.

This particular machine broke down on 1/9/07. What happened to the DWI defendants from the days and weeks before? Did they receive a letter that the machine was broken? Cases dismissed maybe?

Nope. Unless they subpoenad these records, or filed an open records request, these defendants would have never known they blew into a broken machine.

Some would consider material of a broken inaccurate breath test machine to be Brady material. However, DPS decided not to tell anyone about this broken machine.

Texas prosecutors and the Fort Worth police are planning to celebrate July 4th by mocking the freedom our country was founded on. It's another holiday DWI "no refusal" party and you're invited.

To celebrate the desecration of our Bill of Rights, here is an FAQ on DWI blood draw warrants.

What is a "no refusal" blood draw warrant?
If a DWI suspect refuses to give a breath sample officers will get a warrant to take the suspects blood by force.

What's wrong with that?
Where to start? First, there are no protections for DWI suspects. No due process. No right to counsel. The legislature never approved blood warrants. They are judicial activism. Finally, prosecutors seek to hide this practice from the public.

There is no right to counsel?
Our courts have held that judges, cops, and prosecutors can conspire to take your bodily fluid and you have no right to counsel.

What is the procedure?
Prosecutors line up cooperative judges to rubber stamp fill in the blank warrants that are faxed in by police. (Yes, they really use fill in the blank warrants).

Do these really violate the Constitution?
Sure. Here is your Texas Constitution-

In all criminal prosecutions the accused shall... not be compelled to give
evidence against himself

Blood would seem to be evidence in a DWI case. Forcing you to give meets most definitions of "compelling". Luckily, our prosecutor friendly appeals courts have held that "evidence" doesn't really mean "evidence." "Evidence" means testimony. Obviously.

How Do They Violate State Law?
You don't need a law degree to understand how forced blood draws violate Texas law.

§ 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES; EXCEPTION. Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.

How is this judicial activism?
The law and our Constitution forbid these forced blood draws. Texas prosecutors could have lobbied the legislature to pass a law and amend the Texas Constitution to allow these blood draws. Instead, prosecutor made an end run around the law and got pro-State judges to create new law.

What if you refuse to allow the officer's to take your blood?
As you would expect, this process born from tyranny, ends with police brutality. The police hold you down while a needle is stuck in your arm. Assaulting suspects to steal their blood is un-American and degrades the criminal justice system. The more we "get tough" on DWI, the more we treat DWI suspects like GITMO detainees.

How can I learn more?
You can't. Prosecutors love to brag about these forced blood draws on their message board. However, they will routinely fight open records request to disclose the details of this practice.

Background- Read the original post
It seems that Texas prosecutors are in agreement that judges who do not sign off on their blood draw warrants must be removed. Police state apologist (and Williamson County DA) Jon Bradley weighed in with typical blood on the highway rhetoric.

A vehicle crashing into another vehicle, on the other hand, is considered a MAJOR intrusion into the life of an innocent person. If we wait for that to happen, then, amazingly, the prick of a needle is somehow "justified" to prove intoxication murder. For my money, I'd rather deal with forcing the MINOR intrusion before a drunk driver kills someone. So, tell that judge you are actually doing the defendant a favor. Then file the grievance.

A typical argument against constitutional protections for DWI suspects is to claim that it will save lives to make it easier to convict. Mr. Bradley's position is that if he could only replace this judge with a rubber stamp magistrate lives would be saved. This is a classic false dichotomy.

DWI enforcement is not a choice between liberty and death. Instead of being "tough on crime", destroying freedom, and convicting the innocent- law enforcement could use their resources more efficiently by focusing on the driver's likely to cause an accident.

Look at Fort Worth, they have implemented forced blood draws and an increase in DWI enforcement. The results? Convictions are up 40%, deaths are up 30%. We are arresting the wrong people uner a misguided belief that convictions alone save lives. It's simply not true.

Title of TDCAA thread-
Zealous DWI enforcement can make on oblivious to hypocrisy. The title of the TDCAA post is "Are magistrates supposed to be objective?" However, "objective" to this DPS trooper means a rubber stamp warrant signing judge. A real objective judge would recognize that she is not a law enforcement tool, but employed to exercise discretion.

Judicial Complaint
It's disturbing that Texas prosecutors would propose filing a judicial complaint when a judge rules against them. DWI hysteria and "tough on DWI" indoctrination seminars has made prosecutors like Bradley zealots for conviction, when they are supposed to be seeking justice.

One prosecutor, Clay Abbott from Austin, notes the judge should be grieved for "not following the law." Mr. Abbott, here is the law on forced blood draws. Tell me how the judge is not following that law.

Finally, I'd like to share some information with these prosecutors from the Judicial Ethics Commission. From their website-

What is not judicial misconduct?
"Wrong" decisions by a judge are not misconduct, even if those decisions appear to fly in the face of the evidence or appear to be based upon "perjured" testimony, and even if the judge misapplies the law. Appeal may be the only remedy for such a situation, or there may be no remedy. Granting of custody or visitation, or setting child support are generally decisions within the discretion of the trial court. Any fine or sentence imposed by a judge in a traffic or criminal matter, if it is within the parameters set by law for the offense charged, is not usually a matter for Commission consideration.

An Austin DPS Trooper is furious that a magistrate refused to sign his blood draw warrant. His post provides a great insight into how cops view DWI arrests, magistrates, and your 5th Amendment rights.

Here is Michael.Scheffler@txdps.state.tx.us, in his own words.

Here's the scenario.... I made a DWI arrest last night in Austin. The driver refused any and all SFST's but showed plenty of indicators and admitted to drinking. He license in currently under ALR Suspension for a DWI arrest, also in Liberal County U.S.A, in March of this year. I explain to the driver that PC for the stop, my observations (and I tell him what they are) and his refusal to cooperate with SFST's leave me with no choice but to place him under arrest for DWI. He refused to respond so I gave him a pair of pretty silver bracelets.

Take him to Travis County Central booking and do affidavit for DWI and DWLI and an affidavit for a blood search warrant. Magistrate on duty signs both arrest affidavits and sets a pretty decent bond along with an order for an ignition interlock device. She then refuses the blood warrant because she feels that taking a person's blood, even with a court order, is extremely intrusive and should not be allowed. Told me that she is even hesitant on subsequents and felonies (I know this to be true because I had the same fight with her the previous night on a felony DWI). She told me that had the PC for the stop, Drove w/o Headlights, been something more aggravated like excessive speeding, ran a red light or driving the wrong way down 6th street, she would be more likely to sign the blood warrant. I tried to explain to her that the vast majority of DWI arrests are not made with "aggravated PC" as she described and that our job was to catch these drivers BEFORE they reach the point of hurting or killing someone. I also questioned how she could justify allowing someone to hide the evidence of a crime and she stuck with the idea that it is too personally intrusive.

My main concern, beyond the fact that we have no breath or blood evidence, is that a magistrate is being allowed to pontificate from the bench and, in my opinion, is acting more like a defense attorney than a judge. How is it that we can play by the rules and try to legally obtain evidence legally and a magistrate is allowed to inject her personal bias into the case? Seems like a conflict of interest to me.

DPS Troopers Need Your Help; To Convict You
First, this trooper suffers from the misguided belief that citizens are somehow obligated to assist in their own prosecution. We pay police officers to gather evidence and investigate criminal activity. They should not require the assistance of the accused to make their case.

You Leave Me No Choice
This suspect refuses to perform stupid human tricks for the officer (maybe the suspect knows the high failure rate for sober drivers). This cop responds like most officers who face suspects asserting their rights- with an arrest.The "you leave me no choice" statement is also sadly typical.

Every officer has a choice whether to arrest a suspect. "You leave me no choice" statements have always struck me as a cheap rationalization to deflect personal responsibility (for the injustice of arresting without evidence)

However, officers are taught that arresting without evidence is not only acceptable, but a life saving duty. DWI hysteria has replaced objectivity in police training.

Acting Like a Defense Attorney
Second, the trooper is shocked when a judge actually wants some objective DWI evidence in order to sign a blood warrant. Cops are so used to arresting without evidence they can't imagine why a judge would balk at signing a blood warrant. Never mind the warrants should be unconstitutional, and clearly violate Texas law.

The tropper is upset that the magistrate is acting more like a defense attorney than a judge. Pot meet kettle. I'm sure this same trooper has no problem when "friendly" magistrates set up fax machines to sign fill in the blank warrants for police, even though such behavior could be seen as "acting like a prosecutor."

Judge Must Be Removed
I don't know who this judge is. However, she has the courage to recognize the value of freedom, liberty, and privacy even in the face of DWI hysteria and an angry police officer. These values are more important than any DWI bust. This judge should be commended. However, at least one TDCAA commenter (prosecutor?) is asking that this judge be reported to the Judicial Ethics Commission. This judge hasn't done anything unethical. If the duty of prosecutor is not to convict, but to see that justice is done, why should this judge be removed?

Is this DWI bust so important that we must file frivolous judicial complaints against this judge?

I'm never surprised when MADD lies to further their agenda. However, this is a new low, even for them.

Thanks for William for sending the link. A shocking story in Phoenix highlights all that is wrong with DWI enforcement.

Here is the story-
Jason Squires is a DWI attorney in Arizona. Mr. Squires gets a not guilty verdict on an "extreme" DWI case. Officer Bond Gonzalez was a witness at the trial.

A few weeks later Mr. Squires goes out drinking with his wife Heather and two friends. Heather was the designated driver and did not drink.

On the way home Officer Gonzalez pulls the car over. Officer G smells alcohol (from passengers) and demands Heather perform field sobriety tests.

Jason tells Heather to refuse these tests. DWI defense attorneys know these tests are a fraud. Jason also believed that Officer Gonzalez wasn't going to be impartial. Result- Heather gets arrested for DWI, car is impounded. Heather's blood alcohol was then tested and confirmed to be .000!!

This is why opinion crime is so dangerous. The police have unilateral authority to arrest without evidence. The driving public has no protection from corrupt or incompetent police.

Later the police department stated that Heather had "forced" Officer Gonzalez to arrest her by "not cooperating"! The very purpose of the 5th amendment is that you are not required to "cooperate" with the police.

At the very best this case represents the presumption of guilt for DWI cases. We train police to assume drivers are drunk and that they must arrest more to save lives. We then reward officers who arrest the most.

At worst this is a payback arrest by a corrupt officer. In an earlier time, Freedom protected you from corrupt police. However, the Bill of Rights has since been repealed in for DWI suspects.

What will happen to the either incompetent or corrupt Officer Bond Gonzalez? Nothing. Police who arrest the innocent rarely face any consequences.

Dallas Morning News has yet another story on the proliferation of DWI blood warrants. This time the Dallas Police are joining the bandwagon of cities who have chosen to circumvent the law and violate your right to refuse blood testing.

What about the right to counsel? Will these DWI suspects have the right to consult an attorney before the Dallas Police forcefully remove their blood?

Texas Bill of Rights
From your Texas Constitution- Article 1 Section 10.

In all criminal prosecutions the accused shall have the right of being heard by counsel,

DWI Blood Draws
Does Article I Section apply to DWI suspects? After all, the Dallas police want to detain you, interrogate you, ask you to perform useless physical challenges, arrest you, ask for a breath sample, and finally hold you down and forcefully extract your blood. That sounds like a good time for a defense attorney to intervene.

Unfortunately, the right to counsel for DWI suspects was repealed long ago. Here is a summary of the sorry state of RTC law from the Texas prosecutor's DWI manual, DWI Prosecution and Investigation by TDCAA.

An officer does not have to give Miranda warnings to a suspect before asking for a breath sample. A suspect does not have the right to counsel before deciding whether to give a sample. An invocation of the suspect's right to an attorney will not later exclude evidence of a refusal to take a breath test.

How was the right to counsel repealed? Conservative Judicial Activism. (Due Process also applies to this discussion. However, that is outside the scope of this post.)

McCambridge v. State
The Court of Criminal Appeals abated the right to counsel for DWI suspects in the early 1990s. A string of DWI cases allowed COCA to rewrite the Texas Constitution in order to save DWI convictions. A good example is McCambridge v. State (778 S.W. 2d 70).

In McCambridge the defendant was found guilty of DWI. On appeal McCambridge argued that he should have had the right to speak with an attorney before deciding whether or not to give a breath sample.

How would COCA save this DWI conviction that clearly violates the Texas Bill of Rights?

Rights under Article 1 Section 10 only apply during a "criminal prosecutions." COCA held that DWI suspects are not being prosecuted. Ergo, they have no rights.

Only in a DWI case would such tortured logic be allowed. COCA won't even stoop this low to save a drug case. For example, if the police had a warrant to search your house for drugs they could not force you to show them where the drugs are. If you asked for an attorney while they were searched they would not continue to question you.

The Dissenting opinion sums up the McCambridge decision well.

Today... a lackluster majority of this Court declines to hold that under Art. I, § 10, of the Texas Constitution, the "Rights of the Accused in Criminal Prosecutions" clause, 1 an individual lawfully arrested for allegedly committing the offense of driving while intoxicated has the right to the assistance of counsel from that point forward; they opt instead to hold that such a person has the right to the assistance of counsel only after formal criminal charges have been filed, which act apparently lies in the discretion of the police as to just when that must occur.

For unknown reasons, a person lawfully arrested in Texas for driving while intoxicated is to be treated differently from a person who has been lawfully arrested for committing some other criminal wrong.

DWI = Not A Criminal Prosecution?
This arbitrary decision by COCA has little basis in law enforcement reality. Any assistant DA or criminal defense lawyer can attest that every DWI arrest is indeed a criminal prosecution. Every facet of law enforcement works in concert to arrest and convict dwi suspects. The police work under the direction of prosecutors, who then conspire with cooperative judges, who then sign "fill in the blank" search warrants. Under any definition (besides COCA's) that is clearly a criminal prosecution. But don't take my word for it. From DMN-

Deputy Chief Tom Lawrence said the effort is "the next step in what we are ultimately trying to achieve when we make an arrest for driving while intoxicated. That is the successful prosecution of these cases."

When I use a word it means just what I choose it to mean, neither more nor less.' - Humpty Dumpty, Through the Looking Glass

Most of the rhetoric surrounding DWI includes statements about drunk drivers. For example, Texas MADD has a "campaign to end drunk driving." No one supports drunk driving which makes the label great to stifle debate.

The reality is that Texas DWI law is not aimed at drunk drivers. Texas law forbids driving while "intoxicated". Ask most people what intoxication means, and they will say "drunk". Webster defines intoxicated as "affected by or as if by alcohol : drunk." Proving a driver was drunk would be a high standard and lead to less convictions for DWI. To make convictions easier the Texas Legislature simply redefined intoxicated for the purpose of DWI. From the Texas Penal Code- Intoxication means-

not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more.

I'll save .08 for a future discussion. Let's start with "loss of normal use." If an officer states that you have lost the normal use of your faculties what does that imply? That the officer actually knows what your normal physical mental or faculties are. The reality is that the police have no idea what you act like normally. Most will readily admit to this fact during cross examination. How do officers swear to something they do not know is true? Training!

Since the State of Texas has invented a new definition for intoxication, they can also simply invent evidence that shows you meet their new definition. This explains the bizarre laundry list of driving behaviors that are taught to be evidence of intoxication.

Field sobriety testing is another great example. SFSTs were designed to detect specific BAC levels (which they don't). SFST were never designed to detect "intoxication." However, officers are taught to use SFST's as evidence you have lost your mental and physical faculties.

How can that be? Made up definitions, allow for made up evidence. DWI laws are written to maximize convictions, not to reflect reality. No one support drunk drivers. If only convicting the innocent carried the same stigma.

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master - that's all.'

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 obstruction on their neo prohibitionist highway.

The Texas lege is usually an easy target for the MADD lobby. However, Texas is one of the last states to protect it's citizenry from DWI roadblocks. Texas MADD had this list of "Myths" and "Facts" about sobriety checkpoints on their website. Before the lobbying begins this time around, let's review their arguments.

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

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 here. 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.

Greetings, I am Robert Guest, criminal defense lawyer in Kaufman, Texas. I am ready to help fight your case. I understand the stress, uncertainty, and embarrassment many criminal defendants face. I can guide you through the criminal justice system.

I want you to call me now at 469.376.1000. I will answer your questions about bond, bail, possible jail time, probation, trials, plea bargains etc. The more you know about your case and your options, the better decisions you will make.

I defend any and all criminal cases in Kaufman County including-
DWI- Driving While Intoxicated
Intoxication Assault
Intoxication Manslaughter
Assault, Sexual Assault,
Family Violence
Possession of Marijuana
Possession of a Controlled Substance
Probation Revocation

If you are charged with it, I can help. Also, if you are looking to clean up your record with an expunction give me a call.

Feel free to browse my blog for my libertarian commentary on criminal justice.

For more information on my legal services go to my website- www.robertguest.com

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.

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. You do not have to take field sobriety tests. These tests can not detect if you are sober. The false positive rate is astronomical.
2. Don't give a breath sample unless you are 100% sure that the machine works, and you are below the legal limit. Why would you voluntarily give the State their favorite piece of DWI evidence?

Failing to give a sample will result in a longer license suspension, so the decision is not without risk. We had a breath machine break in 2007. Many defendants plead guilty without knowing their breath machine was faulty. Don't assume your machine works, or that you can challenge this later. The

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.
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.

The story- A female suspect was arrested for DWI. She was brought into the 5th Amendment violation (breath test) room.
The woman then asked to make a phone call. Her request was denied. The officer then handcuffed the now irate suspect.

This is where the incident turns violent. The police officer turns off the room's video camera. When the camera finally is turned back on the woman is lying in a pool of blood on the floor.

The officer's story- "she fell." No word on if this suspect's blood was taken off the floor for alcohol sampling. No charges have been filed agains the officer.

We arrest DWI suspects, deny them attorneys, force them to take blood tests, etc/ to protect "public safety." Our only protection from the police, however, is freedom.

Texas does not allow for phone calls (including to defense counsel) before DWI samples are taken. I can't see the danger in allowing a phone call. However, the state needs their DWI convictions to keep us safe.

Here is something to check out while I'm gone.
Ten Funniest Anti Drug Commericals

Labels: DWI

This is part of the "implied consent" chapter of the Texas Trasnportation Code. Unless you are in a car accident with serious injuries (724.012b) this Prohibition on Taking Specimen applies. Notice how their is now exception for fill in the blank search warrants signed by "cooperative judges."

Now, pretend you are on the Court of Criminal Appeals. Here are the facts.

A defendant has been arrested for DWI and refused to give a blood sample. There has been no injury accident. Officer Friendly gets a warrant and forcibly removes defendant's blood. Defendants argues that this search violates 724.013 and the 4th Amendment and should be suppressed.

COCA Ruling- To dissalow these forced blood draws "results in giving DWI suspects more protection than other criminal suspects---an absurd result."

That sentence says a lot about COCA, the 4th Amendment and criminal justice in Texas. COCA judges find it absurd to give DWI suspects more protection even if the law is clear and unambiguous. Absurd- their word, not mine.

Judicial Activism Cuts Both Ways
Conservatives often decry "judicial activism" for issues like gay marriage.Yet this police state judicial activism is ignored by the same conservative pundits.

COCA ignored the plain meaning of the statute. The legislature could have put in an exception in the law for warrants, and didn't. So, an appellate court made new law and ignored the "strict constructionism" so often praised in conservative circles.

Police officers will fax paperwork for the search warrants to a judge who will be on call to review the requests, said Greg Davis, Collin County first district attorney. "We think it will eliminate many of the DWI trials we have in our misdemeanor courts," Mr. Davis said. "The scientific evidence for the defendant is difficult to overcome in trial."

However, Texas has an arbitrary .08 BAC standard in Texas. Even if a driver is not intoxicated by impairment, prosecutors can still convict with a .08.

MADD sold us the lie that this new tougher BAC standard would keep us safe. It hasn't. What is has done is make prosecutors desperate for blood to get convictions.

More important, he believes it will make roadways safer for all motorists once
the public becomes aware that evidence will be obtained even if suspects
initially refuse to cooperate with police.

"We have the support of these agencies and judges who are willing to assist us,"
Mr. Davis said.

What is left for a DWI suspect have to protect his rights?

Not the 6th Amendment. Suspects have not right to an attorney to challenge the blood draw warrant or his arrest until the case goes to court. Even though the State has judges, lawyers, and police working against a suspect, the right to counsel has not yet "attached."

Not the 5th Amendment. The 5th Amendment has been ruled not to apply because blood isn't "testimony."

Is DWI such a threat to society that we must abandon our Constitutional protections, circumvent the legislative process, and forcibly remove blood from suspects?

Barring an injury accident, Texans have the right to refuse blood/breath testing. These prosecutors are making an end run around the legislative process with these warrants. But I digress.

Here is a comment by "Greg Davis"-

Collin County will be conducting another no-refusal weekend this weekend to
coincide with the Super Bowl. We've lengthened the effective time periods to
7:00 p.m.-5:00 a.m. after consulting with our agencies and the Tarrant County
DA's Office. We'll be using a fax/email system to communicate with our judges,
and we've streamlined the affidavit so that officers can fill in the blanks and
complete it in less than 10 minutes. We anticipate 10-20 blood draws from the
participating agencies. It's good to see that other counties are pursuing this
type of DWI enforcement. It would be good to see a state-wide no-refusal weekend
in the near future.

I filed an open records request to learn more about this Super Bowl no refusal weekend. I'm expecting the usual AG request delay tactics. The public should be aware that these self described "cutting edge" prosecutors are making an Orwellian farce out of our constitutional protections. My advice- watch the Super Bowl at home, or in Dallas County.

Finally, Don a brave reader from Levelland has jumped onto the TDCAA message board and voiced his concerns. Good job Don! Let your elected DA know that you do not stand for these forced blood draws.

Release of theInformation requested would give people insight into our procedures, which wouldput officers at a disadvantage in a situation regarding: DWI enforcement....searches, arrest and detention, including but not limited to, placing the officer's life in danger. In addition the Information relates to policies and procedures which are different from those commonly known with law enforcement and crime prevention."

WARNING- WYLIE POLICE OFFICERS MAY DIE IF YOU READ THIS.

The statement from Wylie PD's attorney contains many lies, the two most obvious are that these procedures are somehow different than those commonly known, the second is that officer's lives will be threatened. Hyperbolic boilerplate fabrications seem to be the norm in Open Records requests.

I should change my FOIA request letters to match the garbage these City's Attorneys put out. Maybe something like "Million of children may perish, the Moon may explode, and puppies will be tortured if these records are not released within 24 hours!!!!"

What could make that situation even worse for the citizens of Texas? DWI arrest quotas. Austin DPS troopers operating under just such a system. These officers received memos stating that they had to make a minimum number of DWI arrests annualy.

What's wrong with quotas? Cops chasing a number of arrests, and given wide discretion to interpret "intoxication" will arrest the innocent and spin the evidence.

I shudder to think how many innocent drivers were arrested so DPS troopers could meet their quota. I guarantee these innocent drivers all had "bloodshot and glassy eyes, slurred speech, and the odor of an alcoholic beverage" and that they all "failed" the HGN.

Texas is supposed to have laws against law enforcement quotas. However, I'm sure no one involved in this scandal will face any charges.

For the MADD/fascism crowd here is your hero,

The idea for the 'no refusal' holiday actually came from senior prosecutor Lloyd Whelchel of the Tarrant County District Attorney's Office. Whelchel recently attended a training seminar and reminded officials that authorities in El Paso and Harris County had similar programs in place.

At least 18 motorists suspected of driving while intoxicated were arrested Monday night and Tuesday morning during the Fort Worth Police Department's "No Refusal" DWI campaign. Of that number, 10 drivers refused to provide a breath specimen, prompting police to obtain a search warrant and draw their blood to determine whether their blood-alcohol levels were above the legal limit of 0.08. At least one had to be restrained while his blood was taken, said Lt. Dean Sullivan, a police spokesman.

How did we get here? Judicial activism, creative prosecutors, and rubber stamp magistrates.

Texas Law- Implied Consent
Texas law is clear, barring an accident involving death or serious bodily injury, you can refuse to give a blood/breath specimen.

Texas has a popular and misguided law- implied consent. The idea being that you can lose your license if you did not give a breath sample upon request. The law is clear that driver's have a right to refuse a sample.

The legislature then created a procedure that allowed for blood draws in for accidents resulting in seriously bodily injury. So if you were suspected of DWI that resulted in death or serious injury the police could draw blood. Barring that, you could still refuse to give a sample.

Prosecutors Work Around The Law
Mr. Welchel and his ilk could have lobbied the legislature for an expansion of the implied consent law. Instead, prosecutors have decided to make an Orwellian farce out of the criminal justice system and rely on a pro State appellate court for some needed judicial activism.

The idea behind this tragedy is that the blood in your body is evidence. The State merely needs a warrant to get this "evidence" for their DWI case.

To game the system prosecutors set up a friendly magistrate to sign the warrants on demand. Our pro-State Court of Appeals has declared this practice constitutional. Finally, this idea spreads at tax payer funded prosecutor conventions.

This is how freedom dies, with creative prosecutors gaming the system and a complacent Court of Appeals finding more exceptions to the Bill of Rights. The State of Texas has no right to invade the bodies of driver's who have injured no one. I am embarassed that we are taking forced blood draws from suspects who are deprived not only of counsel, but of liberty.

Steve Rubenzer is a board certified forensic pyscologist and an expert on SFST. His paper, the The Psychometrics and Science of the Standardized Field Sobriety Tests is a must read for any DWI defense lawyer.

I emailed some questions which Dr. Rubenzer was kind enough to answer.

1. What should the public know about field sobriety testing?

Depends on their situation. If stopped by the police, they usually are under no obligation to perform them. If on a jury, realize that there are many problems with them.

2. How accurate are SFSTs?

That’s not easy to answer, because it depends a great deal on things like what subjects are used (high school gymnasts vs. middle aged and old fat people), BAC distribution, and ratio of sober to intoxicated subjects. Overall accuracy rates are not useful, which is why most researchers don’t rely on them.

3. What could be done to improve SFST? Better training and monitoring of police administration.

More research. Possibly expanded scoring (from present/absent to Present/absent/?) Probably should add some physical tests that don’t depend on balance and some mental tests, as WAT and OLS are largely redundant.

4. Would you take SFSTs?

Depends if I thought I would pass them

5. If SFST's are flawed, why are they so prevalent?

There is a real need for something that does what the SFSTs are supposed to do.

6. Do you believe that innocent driver's are convicted via SFSTs?

Almost certainly given the large number of DWI stops. No test is perfect, and even if the false positive rate is say 5%, 5% of one million is 50,000.

DWI prosecution is a threat to freedom because it is an opinion crime. href="http://www.duiblog.com/2007/11/27/another-dui-supercop-2/">it is easy for cops to file false DWI charges, or unilaterally decide that a suspect is intoxicated and arrest. Combine the vague law with the "you must arrest more" propaganda we feed young cops and you have a recipe for injustice.

As a prosecutor and defense lawyer I have read the DWI Investigation and Prosecution Training Manual by TDCAA. Until today, I never read the intro. I was to learn that the author of the DWI manual agrees with my conclusion that DWI is an opinion crime.

The goal of this book is to serve as an aid to those prosecutors who face [DWI] in trial daily, to help them overcome the difficulties inherent in attempting to prove an offense that, at its core, is based upon an "opinion".

Actually, the goal of the book is help get convictions, not to see that justice is done. Notwithstanding the above statement an opinion crime is great for the State. There is no physical evidence to contradict and few, if any, unbiased witnesses to worry about. To make things easier we have eliminated the pesky 4th, 5th, and 6th amendments in DWI cases. More from the intro...

Most DWI cases do not involve "falling down drunks" who stumble from their cars and give breath samples that register at over twice the legal limit. Instead, most cases- if they include bad driving form the defendant at all- involve.... police stops in which a defendant performs, at most, three fields whose methods are hard to follow and whose scoring is an easy target for defense cross-examination. DWI prosecutors will most likely be trying cases where [the suspect on the videotape] does not sway, slur his speech, and wants to talk to an attorney before he decides to give a breath sample...

This is an important message to young prosecutors. Even if there is no evidence of intoxication that affects driving, or speech, or balance, you can use this training manual to get convictions.

The reason that the "methods" of "field tests" are "hard to follow" and are an "easy target for defense" lawyers is because SFST science is garbage.

Everyone agrees that "falling down drunks" who "blow over twice the legal limit" should not be driving. Unfortunately, we are targeting social drinkers who pose a threat to no one. This book helps prosecutors feel good about convicting citizens of an opinion crime.p>

From the TDCAA Publication "DWI Investigation and Prosecution" comes these exiting tips on the State's DWI close. In sum, we teach ADA's to argue that the defendant was on his way to kill somebody, even if there is no evidence to support that argument.

1. Blood on the Highway- The TDCAA manual tells prosecutors to "spend some time reminding them (the jurors) of the dangers of this offense. The case you are prosecuting may not have involved a crash but the thanks for that goes to the police officer who the skill and training to recognize the danger this defendants posed."

Basically, the State wants jurors to find the defendant guilty out of fear. Even if a defendant posed a threat to no one, act like he killed somebody and thank the police for stopping him.

2. Blood on the Highway Part II- "The defense is very likely to make light of the fact that his client was arrested for stepping off a line a couple of times... Ask yourself what difference it would have made if he missed the brake by an inch."

Even though field sobriety tests have never been tested to relate to driving impairment, argue it anyway. Again, another fear based argument. Ignore the facts, play to emotion.

3. Breath Test Refusal- "This defendant made a contract with the State of Texas. He promised that in exchange for the privilege of driving on our streets he would give a sample of his breath.... Now you know what his word is worth... that he is able to continue to put his pleasure above the safety and security of the rest of us."

Implied consent is not a contract. Contracts require two parties bargaining fairly. Implied consent was created and enforced by fiat. Did you give up your 4th and 5th amendment rights to drive? Should you have to?

This is a plea to collectivism. The defendant is to be shown as selfish for not worshipping the idol of Public Safety. Life, liberty, and the pursuit of Public Safety?

Where are the pictures of those wrongfully arrested and acquitted? Why not post those photos?

Why not post the mugshot of officers who arrest the innocent? That would be a public service.

I wonder if this DWI offender website will start with George Bush's and Dick Cheney's photos? They were both convicted of DWI.

Freedom, liberty, and the now defunct Bill of Rights used to protect us from corrupt law enforcement. Today, criminal defense lawyers are freedom's last hope.

This leads me to the story of Tray Boswell. Trey was arrested by Plano PD for DWI. The Plano Star Courier reports that during Boswell’s DWI trial, his criminal attorney Phillip, requested the cell phone records from Sarah Boswell, Trey's wife. Trey and Sarah were going through a divorce. Child custody was an issue.

Phone records indicated that numerous phone calls were made between Sarah Boswell and the arresting officers Ron Michael Scott Copeland and Jon. The calls were initiated by both parties. Kress, Copeland and Britton claimed they had never met Sarah Boswell .

Court records state Copeland detained Boswell without probable cause and issued two traffic citations. Phone records state on that day, at least four phone calls were made from Sarah Boswell to Copeland, despite their claim of never meeting before.

Tray filed a federal lawsuit after the DWI was dismissed. Don't believe criminal defense lawyers are freedom's last hope? Surely the government is policing the police and looking out for your rights? Here is a great quote from the Plano City Attorney, Diane Wetherbee.

Plano City Attorney Dianne Wetherbee said the officers conducted themselves
in an appropriate manner involving the incident.“We will vigorously defend
them,” While Diane is vigorously defending the officers, we should all be glad Phillip Linder was doing the same for Mr. Boswell.

"When someone who is under the age of 21 gets behind the wheel, they just don't have the maturity and the ability to combine drinking and driving," says Pat Hodgkin of MADD.

If you are mature enough to make the decision to fight and possibly die for our country, you are mature enough to drink.

To reinforce this idea the video constantly talks about "The Research" that backs up these findings. "The Research has shown" is a constant phrase throught the film. What the video does not state is the research is flawed, biased, has never been subject to peer review, and has only been evaluated by the Government. It is not "research" it is government propoganda disguised as science.

This training video lies to officers. These lies give the moral certainty needed to arrest driver's who are not intoxicated. "The Research" says it must be done, we can not disagree with "The Research".

Common sense tells us this "research" is false. Look at the traffic violations listed as signs of intoxication. How many of those traffic violations have you committed this year? How many times were you intoxicated? Yesterday I parked too far from the curb. I must have been completely intoxicated!!

This video helps explain the illogical testimony I often get from troopers. For example, officers often testify that a defendant's speeding is a sign of intoxication. However, the same officer will then admit that over 99% of speeders are NOT intoxicated.

An officer who will claim that speeding is a sign of intoxication will also never admit the opposite- that the absence of moving violations is a sign of sobriety. Why? "The research" didn't say that and we do not teach logic 101 at DWI school.

DWI is an opinion crime based on junk science. I give DWI, The Movie an F-. It is however, a must see for anyone concerned with the loss of liberty in an age of Neo Prohibiton.

Labels: DWI, Police

I love freedom. I love liberty.

I do not love MADD.

MADD, how do I not love thee, let me count the ways.

1. MADD supports an 8-10 year sentence (later reduced to 27 months) for parents allowing underage drinking at their house. Not one of the teenagers was legally drunk. All keys were confiscated. The local MADD chapter liked "the message the judge was trying to send."
MADD advocates a zero tolerance policy abstinence only alcohol policy. If you disagree they are happy to watch you spend a decade in jail.

2. MADD views defense lawyers as a nuisance in their neo prohibtionist quest. MADD calls the DWI bar a "Hurdle to Reform." What's wrong with defense attorneys? We are more interested in "winning the case" than in helping convict defendants. Shame on us.

3. MADD hates the Constitution and liberty. Like all tyrants MADD believes that their ends justifies their means. To them, no freedom is more important than stopping every DWI.

Their most recent triumph; reducing the legal BAC to .08, is a complete failure. "Alcohol related" traffic falalities are up since that law passed. What to do when one law does not work? Repeal it? No. Get tougher.

MADD advocates "getting serious" about the "War on Drunk Driving" by putting breath machine technology in all cars.

MADD also loves police roadblocks (sobriety checkpoints). Authoritarian dictatorships stop and question their citizens for no reason. Traffic stops used to require a reasonable suspicion of criminal activity. MADD helped rid our country of that bothersome 4th Amendment.

4. MADD was founded as an organization against drunk driving. However, MADD has transformed into a neo prohibitionist movement (which caused their founder to quit).

5. MADD uses phony "alcohol related fatality" statistics to scare the public and silence opposition. Only 1/4 of alcohol related fatalities involve a drunk driver killing a sober driver. The rest of the "alcohol related fatalities" include situations where a pedestrian had been drinking (not drunk) and was killed by a vehicle. Or sober drivers who accidently get in a wreck and kill a passenger who was drinking.

It is time to stand up for freedom and against MADD. DWI enforcement is not more important than the Constitution.