Dallas Criminal Defense Lawyer Blog

Defense lawyers are not big fans of MADD, or any pro police state organization for that matter. However, one thing I will say is that their public policy liason, Bill Lewis, is an honest guy. DMN ran a round up of the various DWI bills this session. Most died sine die, however the lege did pass one new Tuff on DWI enchancement that will leave first time DWI offenders open to a greater range of punishement if they have a bac over .15 (yet another reason to NEVER take a breath test).

Won't longer sentences stop people from drinking and driving? Shouldn't we all celebrate this life saving measure from the lege? Not so much says MADD. From DMN-

The... act is not a bad bill, Lewis said, "but as for stopping drunk driving, the bill is just not going to do that much."

Exactly the point DWI observers in Texas have been making for years now. We are well past the point of diminishing returns with enforcement. I can't think of what other freedom, liberty, or privacy that is left to sacrifice to the DWI police state. We need a systemic change in the way Texans get to the places they drink, not longer sentences for first time offenders.

This story just keeps on giving. One of the State's leading DWI prosecutors, Richard Alpert, was asked about the death of the DWI "deferred" bill. The "deferred" bill would have most likely led to more plea bargains, but less DWI convictions overall.

The bill, which was supported by prosecutors, defense attorneys and MADD, "had a lot of momentum," Alpert said, but the possible loss of money for the state from surcharges that accompany convictions may have doomed it. "This wasn't the year to be cutting into sources of revenue," he said.

Intoxicated drivers are just another revenue source, and the State has made themselves financially dependent upon same defendants they supposedly loathe. The State has little incentive to stop all drinking and driving. In fact, all the incentives are for the State to maximize intoxicated driving (which they are doing a great job of through suburban sprawl/zoning and a fierce opposition to public transporation).

DPS has their misleading "Drink. Drive. Go To Jail" billboards. When will the Comptroller begin a "Please Drink And Drive, Texas Needs The Cash" campaign?

Facing a DWI charge in Kaufman county? Have a serious drinking problem and/or a history of alcohol related offenses? DWI court may be in your future.

What is the Kaufman County DWI court? This is from a handout I found in CC2. I think the DA's office made this although I can't be positive as no authorship is claimed.

"The Kaufman County DWI court is a twelve month minimum program that integrates local criminal justice resources, case management, and alcohol abuse treatment to rehabilitate targeted repeat DWI offenders. There are two aspects of the program, the Court side, and the Treatment side and there are three phases to the court side. As a participant progresses through the phases, the intensity of the program lessens."

Phase I
- Weekly court meeting
- Group meeting twice a week
- Two AA (or similar) meeting a week
- Weekly probation meetings

Phase II
- Court meeting on the 1st, 3rd, and 5th week of the month
- Two AA (or similar) meetings per week
- Group meeting once a week
- Meet with probation every other week

Phase III
- Attend court once a month
- Aftercare group meeting once a month
- Two AA meeting/week
- Meet with probation every other week

Who is eligible?
- Over 17
- Reside or work in Kaufman county (there may be some leeway with this, just don't live in Houston and expect to be accepted)
- Have no current holds (that means TDC can't be waiting to pick you up)
- Physically and mentally capable of participating in the program
- Eligible to be on probation, or have your probation extended
- Must be alcohol or drug dependent

Disqualifications
- Severe mentally illness
- Prior conviction as an "abusive offender" (I think this means crimes of violence)
- Prior DWI court participant
- Prior felony conviction within 10 years of the immediate case

Why do people enter DWI court?
The carrot in this approach is that defendants get a better plea deal if they enter the program. For example, felony defendants get a shorter probation period (and avoid prison), but they have to sign up for some serious life changes.

Lawrence Boyd is a great guy, and a badass Dallas DWI lawyer. He literally wrote the book on Texas ALR hearings. The best DWI lawyers in Texas pay to hear Mr. Boyd speak at seminars.

I had the pleasure of hanging out with Lawrence at a conference last summer (SPI), and am proud to have him as a colleague, and facebook friend.

Facebook is how I got Lawrence thoughts on the Lujan disaster. Larry wrote out the following, as a comment to my shameless facebook link to my own blog post on Lujan vs. State.

Before you read Mr. Boyd's insight, you must be forewarned that his thoughts and writings are the intellectual property of Knowles publishing, and not to be reproduced without their consent.

A type of roadblock to verify drivers licenses and vehicle registration may be permissible, but checkpoints to detect evidence or ordinary criminal wrongdoing are not. During the direct-examination in Lujan, the "AO" stated that the officers were just there to check drivers licenses; however, on cross, he stated that the purpose of their unit was to take care of racing, DWI, traffic enforcement, narcotics, and other particular tasks. They were present for any violations they would see.

In the trial court in future cases, we have to have the court issue specific findings of fact and conclusions of law that the Judge did not believe that the roadblock was there for the primary purpose of checking for licenses but that the presence of dogs and other admissions by the police undermined the credibility of the officer to the extent that the trial court concluded that it was an impermissible "general purpose roadblock.".

When I spoke @ the Stu Kinard Advanced DWI course on 11/18, 2010, I warned everyone there that, since this appeared to be a settled area of the law, then why would the Court of Criminal Appeals grant a petition in this case?

As you point out, our Court appears to be on an activist binge to eliminate our Fourth Amendment rights again. So much for judicial self-restraint. If you haven't read the Foster case, they also greatly reduced the State's burden to show reasonable suspicion of DWI by requiring only "some minimal level of objective justification" for the stop. I expect more bad news forthwith.

Judge Meyer's dissent in Lujan is worth reading because The Supreme Court of the United States has "never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing." City of Indianapolis v. Edmond, 531 U.S. 32, 412000).

The checkpoint in Lujan included a K-9 unit. So, if the primary purpose of this checkpoint program was, as the majority concludes, to check drivers' licenses and insurance, then the deputies did not need drug-sniffing dogs. This was akin to bringing a gun to a knife fight, and from then on, it was officially a gun fight. Based upon the facts of this case, Judge Meyer disagreed with the majority and would have concluded that the primary purpose of the checkpoint was to "uncover evidence of ordinary criminal wrongdoing," in contravention of the Fourth Amendment.

Kaufman County had a rare flying while intoxicated arrest this week. Allegedly, the pilot landed on FM 429 and was arrested shortly after.

Best quote about this arrest from Kaufman Chief Public Defender Andrew Jordan. "This defendant may have trouble making bail... because he poses a flight risk." Rim shot!

In my entire legal career I had never seen a Texas FWI case. It just doesn't happen that often. First, most pilots don't land near police officers. They go from small airport to small airport. Second, we don't have any aeronautic speed traps. Pilots don't face the constant leo harrassment that drivers face. If you can find a way to only commute in an airplane, you'd save a lot in potential traffic tickets/police harassment (thought not enough to cover your airplane overhead).

I'm not sure most people know that FWI is a crime in Texas. When most people think "while intoxicated", they think driving, not flying, or assembling an amusement ride, which is also illegal.

I'm on a boat!

Boating while intoxicated is another one that most people aren't aware of until they get arrested. I've been on many Texas lakes and spent a fair amount of time observing the lake going public. Many of you think intoxication is the point of going out on Joe Pool etc. Unfortunately, the kill joys in the legislature want to ruin your Cedar Creek lake cruise.

Keep any eye out for the LEO on the lake. Aqua fuzz doesn't need a reasonable suspicion or probable cause to stop your boat and bust up your party. Lake cops have the power to do a "safety check" sans cause, because nothing makes you feel safer than a few cops on your boat.

How are safety checks constitutional?
Good question. First, this is Texas, everything law enforcement does is constitutional. Ok, seriously our state's highest criminal court decided that the State could keep us safer, if we ignored the 4th Amendment, and got rid of the whole warrant/probable cause/reasonable suspicion paradigm for boats. We traded our maritime liberty for the State's false promise of boat safety.

BWI presents a whole slew of logistical problems for law enforcement. Try and do field sobriety tests on a boat. The one leg stand and walk and turn are BS on land. On the lake, or with a person who just gotten off a boat, it's comedy. That leaves only the completely discredited HGN for many BWI defendants.

So remember, if you're flying, or boating, or amusement ride operating, be wary of your alcohol intake, and be careful not to cross our State's arbitrary unknowable make believe "intoxication" threshold.

Thanks to Houston Defense Lawyer Paul Kennedy for tracking down HB 189. I had some tepid enthusiasm after reading the Statesman article. The devil is in the details.

What's wrong with HB 189? Three quick points.

1. It's deferred, but still counts a conviction?

From 189

A deferred adjudication for an offense under Section 49.04, 49.05, 49.06, or 49.065 is considered a conviction for purposes of enhancement of penalties under this section or Subchapter D, Chapter 12

The whole point of taking deferred probation is that it does not result in a conviction. That's why defendants give up their right to trial. DWI convictions can be used to enhance forever and creates a new legal animal, the deferred "conviction".

2. Interlock lobby gets theirs-

(

o)AAA judge granting deferred adjudication to a defendant
for an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal Code, shall require the defendant to have an ignition interlock device installed under Subsection (i), regardless of whether the defendant would be required to have the device installed if the defendant was convicted.

I'm not sure how much lobbyist cash the interlock lobby is throwing around Austin these days, but it's paying off with this bill. A few thousand more interlocks devices installed annually, even for cases where the defendant wasn't drinking.

Let's say your doctor switches your prescription from drug A to drug B. Drug B leaves you without the normal use of your physical and mental faculties. You learn this fact after driving home from the pharmacy where you took your new meds. Officer Friendly pulls you over and arrests you for DWI.

You want to plead the case because a doctor's prescription is not a defense to DWI, your lawyer tells you that deferred is a great deal, and a trial fee is going to be expensive. Despite your case having nothing to do with alcohol, you still have an interlock ordered as a condition of probation. Nice.

3. No non disclosure.

The bill also prevents a motion for non disclosure, the only other real benefit in a deferred case. MFND's allow a partial sealing of records from public view. In an internet age it's impossible to un-ring the criminal case bell without a full fledged expunction. MFND's provide a small measure of relief for defendants who successfully finish deferred probation, but even that paltry measure isn't available under 189.

So the two main benefits of deferred probation; no conviction and a motion for non disclosure, aren't available with this "deferred" bill.

Who benefits from this bill? Prosecutors, interlock providers, phony DWI lawyers, and some defendants who were going to plead anyway.

Prosecutors love plea bargains, it saves them from putting their case together, and glosses over possible reasonable doubts, and sloppy police work/junk DWI science.

There could be some small benefit to DWI defendants who were going to plead anyway. Not much, it's deferred in name only. But you can still tell your friends you were only sort of convicted for your DWI, and you can avoid the nasty DPS surcharge for DWI. However, given the expense of the interlock machine that's a negligible financial plus.

Just like plea bargains gloss over a junk case. Plea bargains also gloss over subpar defense work. "DWI lawyers" who don't really understand or try DWI cases, will convince some defendants who should be on the trial docket, into pleading for "deferred".

Beat your spouse, sell some drugs, look at kiddie porn, steal a few Xbox's from Wal Mart and you can get deferred probation in Texas. (Deferred probation does not result in a conviction if you finish probation). But, catch a case for DWI and deferred is not available. It has been this way since the 80's when MADD hysteria brought us this dumb on crime law.

The result- DWI is the most common criminal case tried in Texas. Backlogs are common in big counties, and weak DWI cases are often pled as "obstruction of a highway" or "reckless driving".

A bill has been filed to allow deferred for DWI first timers (I can't find a text of this bill). From the Austin Statesman

A backlog of thousands of Texas court cases. Drunken drivers convicted on lesser charges. Repeat DWI offenders who don't have a record of a related conviction or treatment.

Those are some examples of what's bringing together a new coalition that includes Mother s Against Drunk Driving, prosecutors and defense attorneys who support a widespread change in how the state punishes first-time drunken drivers.

Supporter say the plan, a legislative proposal to allow deferred adjudication for first-time offenses, would ease the court backlog and improve efforts to track and punish repeat DWI offenders.

First-time offenders could be acquitted of the offense if they complete supervision and treatment. If the offense were repeated, it would become grounds to boost future punishments.

"Generally we do not support deferred adjudication bills, but we are going to support this one," said Bill Lewis, public policy liaison for the Irving-based nonprofit group MADD. "Right now, we are hearing that many cases are not getting prosecuted for DWI but for a bogus charge. We hope the practice of reducing charges will be reduced if this bill does indeed pass."

MADD's support of the measure is somewhat shocking. I've never seen MADD support repealing any tuff on DWI legislation.

TDCAA has come out in favor of the bill. Lest you think prosecutors in Texas have gone soft, this bill does nothing to limit their discretion or power. ADA's aren't really giving up anything by having deferred as an option.

Deferred probation gives them one more chip to bargain away your right to trial. The more cases the State can get to plead, the more they can bury dog cases and bad police work without being exposed at trial.

Some defense lawyers are going to oppose this bill for the wrong reasons. Less DWI trials = less DWI trial fees. Some defense lawyers are going to oppose this bill for the right reasons. That is, more DWI pleas = less DWI acquittals. Defendants are going to plead for deferred because it saves them the expense of trial, and because most DWI defendants have no problem with probation (besides marijuana possession, DWI defendants are the least "criminal" defendants in the system).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What should defense counsel look for in BWI cases?

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

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

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

Anything else?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Are blood tests more accurate than breath tests?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you sir, may I have another!

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

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

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

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

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

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

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

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

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

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

Justice Louis Brandeis

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

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

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

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

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

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

Further reading-
The Roadblock Future
Radley Balko on MADD