Dallas Criminal Defense Lawyer Blog

Just got this in last week. It includes the testing procedures for controlled substances. In your typical dope case the DPS lab sends a short one page summary of the results of their testing. ADA's never think to question the veracity of these results. The assumption is that the lab did everything right, and the dope is dope. If you want to even try to second guess DPS lab work here is the place to start.

Texas DPS Controlled Substance Testing Manual

As part of my regular open records work I ask for LEO disciplinary records. Today I received a thick envelope with over 60 pages of complaints and source material, including a DVD I haven't watched yet. This complaint stood out-

On March 7th, 2005 Trooper XXXX was counseled for requesting a cigarette from a female he didn't know, in a public place while on duty and in uniform. The arrested person later complained that Trooper XXXX was flirting with her, and took the cigarette pack from her without permission, and then arrested her when he discovered it contained a marijuana cigarette.

If the indignity of being hit on and having your smokes stolen by a uniformed officer wasn't enough this poor lady was arrested for the "crime" of carrying a joint. Marijuana prohibition, empowering LEO creeps for over 70 years.

I know what you're thinking- "One incident isn't so bad." It's still an abuse of power to steal cigarettes and sexually harass the public, but nothing like say using excessive force on a DWI suspect to impress your LEO girlfriend.

However, this Trooper had approximately 20 other complaints including sustained allegations of excessive force (allegedly slamming a DWI suspect's head into a rear window to impress his LEO girlfriend) and statements from a prosecutor and other LEO's who didn't want this guy around. This all happened (allegedly) in Uvalde in 2005.

What did DPS do with this problem officer? They transferred him to Kaufman. More on this later.

The rise of the paramilitary SWAT team is a testament to the failure of America's criminal justice system. It defines the transition from peace officers, to law enforcement.

One problem with giving the government the power to kick in doors while playing army is that the government can't be trusted to kick down the right doors. "New professionalism" advocates like Scalia would be shocked to learn how often the government wields the shock and awe power of the SWAT team at the wrong location.

Recently I file an open records request on Dallas SWAT wrong house raids. The first report I received detailed an incident from December 2005. The person involved didn't ask for blog publicity, so I won't reveal any personal information.

The victim's story-
The victim was at home with her son. The police came to her door demanding entry. The victim pointed out that they were at the wrong house. The police entered the home without pemission, pointed a gun at her son, and threatened to shoot her dog (Puppycide is epidemic among SWAT teams).

This complaint prompted an internal affairs investigation. IA interviewed the cops involved. Can you guess their version of events? Do you think the officer's testimony was all on the same page?

Cop's story
The officers admit to approaching and entering the wrong house. That's where the similarities end. The officers claim to have received permission to enter and search the house. Furthermore they deny pointing a gun at anyone and threatening to murder any dogs.

Amazingly, each police officer testified to the same version of events. That must make it true, right!

Inconclusive
How did internal affairs rule in this case? "Inconclusive" with "no violation of department rules." The main reason for this decision was "conflicting testimony." That is, the cops who entered the wrong house wouldn't admit to the other mistakes they made.

The standard applied by internal affairs was preponderance of the evidence. IA ruled there was not a 51% chance the victim's story was true.

IA obviously discounted the testimony of anyone who was not law enforcement. The victim wasn't a criminal, she was a citizen whose home was wrongfully invaded by SWAT. Is it not 51% possible she was telling the truth? Or is a police confession required?

This is why all police encounters, much less home invasion SWAT raids, should be recorded. Too often a criminal trial comes down to an officer's testimony. Just like IA many jurors will decide conflicting testimony in favor of the person in uniform.

More reading: Grits has this report on the Dallas Police no snitching culture.

Today I received my new 841 page DPS general operations manual on CD. I thought I knew most of DPS' crime investigation techniques. This section on hypnosis took me by surprise.

25 .05 .00 GENERAL The use of hypnosis as an investigative tool for law enforcement is a fairly recent development. Although it was used for this purpose at various times, there was no concentrated effort to develop it as a practicable working tool until about 1970 when the use of hypnosis in several major cases by the Los Angeles Police Department caused a number of other police agencies to examine the possibility of such use . Currently many major police agencies are using hypnosis to some degree in criminal cases.

INVESTIGATIVE HYPNOSIS
05 .02 These guidelines are designed to outline the criteria to be
used in the selection and training of DPS personnel to use hypnosis
and the use of hypnosis by Department personnel .

There are further sections on how to run the hypnosis session, and who not to hypnotize (those with health conditions, and the defendant), and the various hypnotism related reports that are required. I will probably request the Hypnosis Oversight and Training Committee's reports to see if this program is actually in use.

My lay opinion is that hypnosis is quackery. However, if DPS officers are being instructed to consider hypnotizing witnesses I'll have to keep my cynicism in check and do some research.

Assuming hypnosis is real couldn't the hypnotist DPS officer influence the outcome. Isn't that the point of hypnosis? To make people quit smoking, lose weight, or otherwise influence their behavior?

Finally, the rule of evidence require that witnesses can only testify if they have "personal knowledge." Hypnosis would seem to stretch the limits of that definition to absurdity.

What do you think? Is this a valid crime fighting tool? Should we hypnotize witnesses?

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.

The police pull you over and find a suspicious white powder in your car. You swear this powder is for your athlete's foot. The police believe this powder is cocaine.

You are booked into jail. Bail is set at $25,000. The powder is sent to the DPS lab for further testing. You spend two weeks in jail but the DPS lab report comes back negative. Vindicated, you leave jail, short two weeks of life you will never get back.

Think that never happens? You must not practice criminal defense in Texas.

A similar situation with a client led me to file an open records request with DPS. I asked for documentation of cases in which "drugs" were sent to the DPS lab, tested, and found not to be drugs. Here is a copy of my email I sent to the DPS Public Information Office. (To learn how to send your own Open Records Request, click here).

Please accept this email as an open records requests.

Please send all documentation of DPS lab drug testing in which a substance turned out not to be a controlled substance (including marijuana). Please send all offense/arrest reports for these cases.

Please include Dallas and Kaufman County. Please limit this request to cases from 1/1/2006.

I would also like any training manual for testing controlled substances in the field, and DPS lab testing of substances.

I received 62 cases from Kaufman County, and over 500 from Dallas County!! I am still awaiting the police reports on these cases.

Questions I have-
Were these substances all field tested? Were those field tests positive?
Did the suspects tell the police these were not drugs? Did the cops ignore these pleas?
How long did these suspects sit in jail? What was bail set at?
How many of these tests were for marijuana? In Texas, the police can testify that a substance is marijuana. For other drugs, a lab test is required to confirm the substance is narcotics.

Finally, whenever Dallasnews.com does a story on the horrible conditions in the Dallas jail, there are always a few comments on the lines of "Don't break the law, and you won't go to jail!" I wonder what these people would say to the 500 people arrested in these cases?

I'll update as the story progresses.

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 am starting work on a new open records project for the Texas Criminal Defense Lawyers Association. Texas already has many individual defense lawyers doing some great open records work. However, these records are not easily shared with other defense attorneys. Ergo, the benefits of these records are not reaching the maximum number of attorneys/defendants.

A central database of open records PDF files seems long overdue. I am going to the December TCDLA executive committee meeting in Denton to pitch this project.

I want to start with Intoxiylzer records. I am seeking maintenance, failure, repair records for all counties in Texas. I'm also seeking TCLEOSE records, training manuals etc.

Are you a criminal defense attorney with open records experience? Are you a law student interested in criminal defense or open government? Do you have a closet full of records to share? Please contact me via email.

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.

I filed an open records request for documents pertaining to the Cherry Pit raid. I received the affidavit used to search the premises and the investigation report.

Cherry Pit Search Warrant Affidavit and Return

Cherry Pit Investigation Report

I don't have time to break these down yet. Let me know your thoughts.

Few things on the highway are as ubiquitous as a cop hiding from view, armed with a radar gun. As long as local governments have needed tax revenue, radar guns have been used to fine speeders.

How exactly does a radar gun work? Can this information help beat your ticket?
See for yourself. Here is a copy of the Radar Operations Manual from the Texas Department of Public Safety. Happy reading.

Table of Contents/ Chapter 1- Introduction

Chapter 2 Basic Principles of Radar Speed Measurement

Chapter 3 Legal Considerations

Chapter 4 Additional Considerations

Annexes (Graphs etc)

I'm off to Austin to speak at Netroots Nation. I'm in the Open Records Laws For Bloggers roundtable with some other great speakers.

Here is the official Robert Guest guide to Texas Open Records Law For Bloggers

If you don't want to read two pages of brilliant public information information, here is the three sentence version.
1. Open Records Laws Are Confusing.
2. There is no risk in not knowing the law and asking for records.
3. Start asking for records, learn the law later.

I encourage every one to file Open Records requests. You can email, fax, or mail in a request to any government entity in Texas. If you get denied, you lose nothing! If the government tells you the request costs $1,204.23, you can cancel the request. There is no downside to asking, and it makes great blog material.

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.

RACIAL PROFILING PROHIBITED. A peace officer may not engage in racial profiling.

-Texas Code of Criminal Procedure, Article 2.131

This begs the question- What is racial profiling?

From the Code of Criminal Procedure-

law enforcement-initiated action based on an individual's race, ethnicity, or national origin rather than on the individual's behavior or on information identifying the individual as having engaged in criminal activity.

Texas racial profiling law also requires each law enforcement agency to keep statistics for each officer. The number of arrests, searches, tickets, and warnings are broken down by the race of the suspect. It is then up to the public to examine this information to discover any possible profiling.

Here are the RP stats for Kaufman County DPS troopers.

How To Order Racial Profiling Stats For Your County
Very simple process. Just send an email to pio@txdps.state.tx.us, and request racial profiling statistics for all officers in your county. The information comes in excel, so you shouldn't have to pay anything.

More How-To Open Records Posts
Open Records 101
Open Records 102

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

Sentry, is an online snitch program run by the Department of Public Safety. Sentry allows the public to make anonymous reports of criminal/terrorist activity. From the DPS website-

Take an active role in Texas Homeland Security! Join in the war on terrorism by submitting information about unusual, suspicious and/or criminal activities. You CAN make a difference! Take an active role in Texas Homeland Security! Join in the war on terrorism by submitting information about unusual, suspicious and/or criminal activities. You CAN make a difference!

Citizen Informants- Historically Not Good For Freedom
Let us start with the obvious.Turning citizens into a vigilante spy network is not the work of a limited government. Historically, only tyrants have used such methods. The Stasi and KGB both used citizen informants extensively.

Our government, state and federal, knows that the public will accept almost any program to "fight terrrorism." Ergo, Sentry is not a "snitch on your neighbor for drugs" program. Sentry is for "homeland security."

I was hoping to shed some light on this program. I wanted to see what "terrorist" activity was being reported. Just like DWI roadblocks are really used to find drugs, I expected to find that Sentry was really being used to catch illegal aliens and drug users.

Sentry received over 2,000 reports during 2007. I filed an open records and asked for a copy. The typical bureaucratic reflexes (stall, delay, never disclose) set in and DPS filed for an Attorney General Opinion.

AG Opinion- Keep The Snitching Secret
The AG ruled and- I lost. These records are going to be kept secret unless I file a lawsuit. How was open government defeated?

First of all, DPS filed their response after the 10 day deadline. It should not have been considered. Procedure aside, here is the AG's logic.

1. Texas Open Records Law allows information to be kept from disclosure if the information is confidential by law.
2. No Texas law makes this information confidential.
3. However, a federal law on intelligence databases prevents this information from becoming public.

How does a federal law apply to Texas Open Records? Bribery. The Omnibus Crime Control Act of 1968 is merely a grant program. If a state wants federal cash, they have to play by the rules. Texas, like all states, has chosen to take the money and adopt federal standards for Texas law enforcement.

A side note on limited government/federalism. An expansive federal government that seeks to solve all problems (education, health care, retirement, crime) is anathematic to state's rights and liberty.

Here is how the federal grant hustle works. The feds annually take billions from the citizens of each state. If a state wants to recover the money they have to sign away their sovereignty. If you want education dollars you have to follow No Child Left Behind. If you want highway money then no drinking under 21.

If a state does not take part in this extortion then their citizen's money will go to another state. It's a crooked system and a reason why our federal government was supposed to be limited. Decisions about Texas Open Records should be made by Texans. A Senator from Oregon or a Rep from Kansas has no business deciding Texas law.

Ratemycop.com is a new website where the public can post information on law enforcement. RMC is sending out open records requests to Texas law enforcement agencies. District Attorney offices are responsible for handling some Open Records requests.

How do you think prosecutors feel about Open Records/RateMyCop.com? Let's ask Jim Tirey of Plainview, Texas. From the TDCAA message board.

There are many PIA requestors who are merely out to harass a particular government organization. They make hundreds, if not thousands of requests on a continuing basis. The government entity has to comply; there is no exception for harassing requests.

The striking aspect about organizations such as ratemycop is that it appears to lack a reasonable purpose. If anything, it probably serves to harass the men and women who are out every day trying to make our society safe.

First of all, no entity is more harassing than law enforcement. Only the State jails people who are innocent, or for unpaid traffic tickets, or for engaging in consensual victimless behavior. It shows a disturbing lack of insight that the a prosecutor would consider making copies of public documents harassment. What would that make a suppression hearing- Murder?

Mr. Tirey also states this information serves no reasonable purpose. He must not read This Week's Corrupt Cop Stories. Maybe a service like RateMyCop could prevent disasters like Tulia in the future.

Finally, no TDCAA post would be complete without a John Bradley quote. How does JB feel about Open Records? He thinks they get in the way of his noble crime fighting mission. If any police department can not solve crime because of open records, they are too inept to be in law enforcement.

Prosecutors are in the unique position of being able to let lawmakers know the sometimes dangerous and often unintended consequences of the bills they pass. In the area of public information, some of those laws directly conflict with our duty to make sure investigations are conducted in a safe and professional manner. Interruption by disclosure of confidential information sometimes can and does prevent a worthy public goal of solving crime.

Prosecutors are not in a unique position. I see the dangers and unintended consequences of stupid laws every day. Mr. Bradley would probably be surprised to learn that his "unique" insight on open records is really one of my arguments against Prohibition.

You know Open Records are important if the Government hates it. The State exists not to make your life better, but to advance the interests of the State. Prosecutors see no benefit to Open Records because it does not benefit them directly.

It is the definition of hypocrisy that our Government demands more of our privacy and personal information yet feels harassed when citizens dare ask for copies of public documents.

If you want to know more about your Government file an Open Records request. Prosecutors have much more pull with the legislature than open records activists. If JB and his ilk get their way, open records may be a thing of the past.

Recap- I am participating in a WikiFOIA open records project. Open records requests are being sent to all 50 governors to see if their interoffice email is available to the public.

I sent a open records request to Rick Perry. I asked for all emails to and from the Office of the Governor for four days.

$217 for email
I received a letter from Office of the Governor today. I was told today that it would cost $217 to produce these emails.

That cost includes 12 hours of staff time at $15 an hour plus an extra 20% "overhead" charge. Government employees require 12 hour to do what my Outlook program can do in 30 seconds. I can't wait until they run my health care.

What Next?
Should I send the $217? Nah. I enjoy open records, but not $217 worth. I am considering asking for a waiver of the fee since this material primarily benefits the public. That is supposed to insulate costs in these requests. However, I'm not sure I want to spend the energy. After all, in the private sector I have to keep working to make money.

Labels: open records, Texas

The Collin County District Attorney is proud of their forced blood draw DWI program. They bragged about it to the media, and on the TDCAA message board.

However, they were less enthusiastic when it came to my open records request. As I expected the Collin County DA fired off a letter to the Attorney General asking to keep details of this program secret.

The AG request (right) is notable only for it's pathetic brevity. AG requests usually carry histrionics about officer safety. Collin County merely lists statute numbers and asks for relief.

My prediction- The AG will rule against Collin County and require disclosure. The AG does not favor short unarticulated arguments.

If I walked into court during a criminal trial and said "Objection, Bill of Rights", and then left I wouldn't expect to win either. Obviously, this is just a delay tactic. There can be no legitimate purpose to a request designed to fail.

Why These Blood Draws Should Be Unconstitutional
From your Texas Constitution-

In all criminal prosecutions the accused shall... not be compelled to give
evidence against himself, and shall have the right of being heard by himself or
counsel...

Let's see, we hold suspects down and force them to give blood all while denying them the right to an attorney. Maybe, just maybe, that could violate these provisions.

Labels: Collin County, DWI, open records

WikiFOIA is running an open records expiriment. Bloggers are filing open records requests asking their Governor for email. I am proud to be part of this project and will send a request to Rick Perry today via email (my preferred method).

This project is in response to a series of incident of email destruction among executives in Government. For the history click here.

If you want to join this Sunshine Bloggers Project feel free. Here are the instructions.

Also, here is an excellent Open Records Letter Generator.

Update- Chelsea, a very cheerful employee of Rick Perry, called me to clarify my request. I have dealt with many PIO workers and they have all been very helpful. I hope to post these emails soon.