Texas DWI Gal

Proud to Be One of the Forensic Lawyers!

2012-01-03T19:04:00.000-08:00

Thanks to Pennsylvania attorney Justin McShane for putting the spotlight on the lawyers who have graduated from Axion Labs/ACS Gas Chromatography school in Chicago.

http://www.TheTruthAboutForensicScience.com/first-lets-educate-all-of-the-lawyers/

So Will They Publish All Those Acquitted of DWI?

2011-12-31T08:29:00.001-08:00

From Grits for Breakfast blog:

FRIDAY, DECEMBER 30, 2011

Does pre-conviction shaming deter DWI or just obliterate presumption of innocence?

The Tarrant County District Attorney's website is posting the names of everyone charged with DWI as a supposed deterrent to drunk driving over the holiday weekend, reports the Fort Worth Star-Telegram. But this pre-conviction shaming sanction has its critics:
Defense attorneys, however, said the postings could violate the civil liberties of those accused of driving drunk.

"I absolutely condemn driving while intoxicated ... but these people are presumed innocent," attorney Richard Henderson said. "I just don't think that's right."

Attorney Steve Gordon, president of the Tarrant County Criminal Defense Lawyers Association, said the postings could violate state ethics rules for prosecutors.

"There are some people [members] who are very upset about it," Gordon said. "Is he going to pull the information on the case when he loses?"
Good question about what happens when the DA loses a case - haven't they then just slandered somebody who didn't deserve it? In 2009, for example, 102,309 DWI arrests statewide resulted in just 44,777 convictions. This seems like putting the cart before the horse.

For the DA to do this raises a host of questions about pretrial punishments, presumption of innocence, etc., but commercial media do the same thing all the time. The broader and seldom-broached question is whether it need be reported at all? In Britain, by contrast, most information about criminal prosecutions is confidential pre-conviction. As a young man, I considered that an outrageous restriction on the press, but anymore I'm not so sure. As Grits has written previously, "much US crime coverage is quite poor, sensationalistic, frequently misleading, one-sided, and often flat-out counterproductive. In Texas, there are at most half a dozen news reporters who I consider to produce high-quality crime beat coverage, and most of the rest often do more harm than good. That's not a great ratio."

A topic Grits hopes to delve into more deeply in the coming year is the extent to which such pretrial publicity - whether it's the DAs doing it themselves, the Austin Statesman publishing booking photos, a Denton art student putting arrests on Twitter, or Nancy Grace flailing defendants in nationally publicized cases - serves or harms the public interest. Stuff like booking photos, arrest logs, jail logs, etc., are historically public data but nobody but insiders, journalists, and those viewing it in a professional capacity would, as a practical matter, ever access it. Now it can be easily disseminated electronically, but doing so before the conclusion of a criminal case, especially high-profile ones, can be highly prejudicial. Shaming can properly be in and of itself a punishment - indeed, some sentencing theorists actively promote shaming sanctions - but punishment should occur after a conviction rather than merely as the consequence of an accusation that may prove unfounded.

Grits fears the issues surrounding the Tarrant DA's DWI arrest list are merely the point of the spear, and that widespread publication of such data will become a major flashpoint among 21st century privacy concerns. I noticed that over at the Texas Tribune, their largest database app (government employee salaries), drew 125 times as many page views as their most popular news story, at 19.1 million page views compared to 153,000. Their second most popular data app was their Texas inmate database, a service which duplicates one on the TDCJ website, which came in at just over 5 million page views.

With web-traffic flagging, more media are putting unfiltered government data online precisely because of numbers like those - they look at their web traffic and see their prose isn't nearly the draw they hoped it might be, but database apps get much more traffic. Lots of papers these days are putting booking photos online to draw eyeballs, but like the Trib's employee salary database, its draw is mostly a function of voyeurism, not because the practice is a boon to public safety or a driver of improved public policy. Grits considers it ethically questionable for the media to publish booking photos and unproven allegations about non-public figures, and even more problematic when the Tarrant DA engages in public shaming while defendants still retain a presumption of innocence.

Back in the Saddle

2011-12-31T08:22:00.001-08:00

I've been away from the blogging world for a few months due to too many trials and flying around giving blood presentations. The last quarter of 2011 was CRAZY!

So far I have over 20 DWI jury trials set in 2012 plus being booked to speak in Texas, Ohio, Pennsylvania and possibly Louisiana again.

Bring on 2012!

Court Rules Against Involuntary Blood Draws in Florida

2011-08-20T12:43:00.000-07:00

Court: Vero Beach Police can't use search warrants for blood samples in suspected DUI cases
By Elliott Jones

Posted August 17, 2011 at 7:16 a.m., updated August 17, 2011 at 12:56 p.m.

VERO BEACH — Because of a Florida appeals court ruling, city police have stopped using search warrants to take blood samples from motorists refusing to give breath tests for alcohol, Police Chief Donald Dappen said this week.

Florida's 5th District Court Appeal, in Daytona Beach, in May ruled blood can't be seized, like a handgun, as an item used in committing a crime, court records show.

Now, Dappen said he will wait to see whether the Florida Attorney General's Office challenges the appeal court ruling.

In November 2009, the Vero Beach Police Department became one of a few law enforcement agencies in Florida to implement the controversial approach of using a search warrant in suspected DUI cases. The state ranks third highest in the nation in people refusing a breath test when stopped on suspicion of driving drunk, according to a U.S. Department of Transportation report to Congress in 2008.

The first time a driver refuses a Breathalyzer, the state may take away a driver's license for a year. Refusing during a second DUI investigation is a criminal offense, punishable by up to a year in jail.

After the city started using search warrants, local defense attorneys unsuccessfully challenged the policy in Indian River County Court.

In early 2010, Vero Beach-based attorney Andy Metcalf argued that blood couldn't be considered property that is subject to search warrants. In February 2010, County Judge David Morgan disagreed.

"The defense has offered no good reason why blood should not be considered 'property' " that can be seized for evidence in criminal cases, Morgan wrote in his ruling.

The next DUI case involving a search warrant ended in the defendant entering a plea. Indian River County resident Tamara Iannuzzi, 31, of the 2200 block of S.E. Powell Court, pleaded no contest to DUI and to refusing a breath test on Nov. 19, 2009, court records show. During May 2010, Morgan sentenced that second-time DUI offender to 45 days in the Indian River County Jail.

The appeals court ruling won't affect those cases, Metcalf said Tuesday. It only applies to future cases.

The Treasure Coast is under the 4th District Court of Appeal, based in West Palm Beach. Metcalf said the 5th District ruling applies to the remainder of Florida because it is the only court that has ruled on the issue.

"The Vero Beach Police Department will have no choice but to follow the law," Metcalf said.

According to the appeals court written ruling, "We agree ... that blood cannot be drawn (through a search warrant) based on probable cause that a suspect has committed misdemeanor DUI."

Crime and Science

2011-08-20T12:37:00.000-07:00

From Grits for Breakfast:

Friday, August 19, 2011

'The Science of Injustice'

Jordan Smith at the Austin Chronicle has a terrific article this week with the same title as this post on the case of Larry Swearingen, who was convicted of capital murder for the death of Melissa Trotter in 1999. Now, a growing litany of experts say he was convicted based on junk science. Here's a notable excerpt from the much longer story:

More than a decade after Trotter's death, a growing number of scientists – including pathologists, forensic anthropologists, and entomologists – agree that Swearingen could not have been responsible for Trotter's death.

Specifically at issue is histological evidence (analysis of cell tissue) that nearly a half-dozen doctors have reviewed and that they say shows conclusively that Trotter had not been dead for 25 days at the time she was found in January 1999. Samples of cardiac, lung, and vascular tissues harvested from Trotter at autopsy, saved in a paraffin block and finally recovered from the Harris County Medical Examiner's Office by Swearingen's attorney in 2009, show tissue that is hardly decomposed at all and is most consistent with a person who has been dead less than a week.

If Trotter was dead less than a week when her body was discovered, Swearingen was in jail when she died and could not have killed her.

"[I]t is categorically impossible, beyond all reasonable doubt, that Ms. Trotter was killed and her body left at that location by ... Swearingen, who had been incarcerated ... 23 days before the body was found," Dr. Lloyd White, deputy medical examiner in Tarrant County, wrote in a June 2011 report detailing his most recent examination of the tissue samples.

Yet despite what appears to be clear and convincing medical evidence that Swearingen could not have killed Trotter, neither prosecutors nor the courts have been persuaded that he could be innocent. Swearingen's defense has been trying for four years to demonstrate to the courts – the trial court and the CCA as well as federal courts – the import of the new scientific findings. While the CCA has remanded the case to the trial court twice for further hearings, they've ultimately sided with prosecutors, ruling that the forensic evidence isn't convincing enough to outweigh what CCA Judge Cathy Cochran wrote in January 2009 is a "mountain" of circumstantial evidence pointing to Swearingen's guilt.

The case renews questions about the intersection of and tension between science and law – how courts and law enforcement professionals view and understand science, and how decisions are made about what kind of science is "good enough" to be deemed more telling or important than other compelling but decidedly nonscientific evidence. "When you have objective forensic evidence and testimonial evidence – which is subjective – [that testimonial evidence] must be questioned and take a backseat to the objective science," says Dr. Stephen Pustilnik, the chief medical examiner for Galveston County, who after reviewing the Trotter tissue samples also concluded that Trotter was killed within days of being found in the forest, not in early December, and therefore not by Swearingen. "It's not the convenient scenario, not the easy scenario" for the state, he says. "Just because [Swearingen] is the easy and convenient person, all of a sudden, if the science says he didn't do it, doesn't mean that you can ignore the science."

Minnesota Supreme Court to Rule on Intox 5000EN Admissibility

2011-08-20T12:06:00.001-07:00

From today's New York Times:

A Lawyer in Minnesota Challenges the Accuracy of D.W.I. Breath Tests
By TIMOTHY WILLIAMS
Published: August 19, 2011

For nearly five years, the accuracy of drunken driven tests administered with a breath testing device used by Minnesota law enforcement agencies has been in question.

About 4,000 people in 69 Minnesota counties have challenged the results based on what they believe to be the device’s faulty readings of blood-alcohol levels. The state has maintained that the breath test results are accurate and that those found to have been driving with alcohol levels above the legal limit should be punished.

This year, a judge ruled that although the device’s source code contained errors, its shortcomings did not affect the accuracy of the results. The decision was appealed, and the case is before the Minnesota Supreme Court. Ryan Pacyga, a lawyer who represents nearly 200 of the people accused of drunken driving, and who are now challenging the results, discusses.

Q Please describe what is at issue with this device.

A The machine is called the Intoxilyzer 5000EN. It is manufactured by a Kentucky company that sold the machines to Minnesota law enforcement. It uses infrared technology to measure particulate matter, and then uses a mathematical formula to convert it to what the blood-alcohol level would be. That’s because our law in Minnesota says it’s illegal to have a blood-alcohol content of .08 or more, so any test other than blood — like breath and urine — has to use a conversion rate to convert the reading into its blood-alcohol equivalent. The machine is somewhat antiquated — akin somewhat to an old Atari machine game console. There is a lawyer in the state who got the idea we should ask for the source codes for these machines, which are software updates that from time to time the manufacturer sends out. At times, Minnesota has installed the source codes. At times, it has not. That’s problem No. 1. Problem No. 2 is we want to test the source codes themselves because it is the source code that is the accuser, not the officer. Some judges started granting our requests to test the source code. Some said it was irrelevant. Prosecutors said, “We don’t have access to the source codes.” And then the manufacturers said they weren’t going to release the source code because it was akin to Coca-Cola’s secret formula.

Q How long do you believe there has been a problem with the Intoxilyzer, and what made people start looking into it?

A The suspicion is that this probably started a long time ago. The more air you blow into the machine, the higher the alcohol rate it registers. You have officers saying, “Blow harder. Blow harder,” as people are blowing into these machines. I’ve seen it happen time and again. In some cases, if you didn’t blow enough air into a machine you get what is called a “deficient sample,” which is qualified as a refusal. A refusal takes a harsher punishment in Minnesota.” [Note: The state and the manufacturer dispute that blowing harder is linked to higher readings.] I’ve handled over 1,000 D.W.I.’s in the last seven years and always look at the breath volume and compare the two samples [tests consist of two breaths into the Intoxilyzer]. I’ve seen this. I don’t know whether it could be tested or if it’s been tested. It’s kind of anecdotal. The other thing is this machine uses a control — a simulated solution control that is usually between a .078 and .082 when it is put into the machine. When the machine does the “control” and “replicate,” I often see that, despite knowing the control is a given value, the machine measures it higher, or lower. The point is that it knows what the control is, and it still isn’t measuring it right. The state says it’s within an acceptable limit. It may be acceptable to the state, but if you are a defendant, it’s not so cool.

Q How many cases are involved here?

A Over all, tens of thousands of tests probably over five or six years. A lot of lawyers never challenged the tests. We’re probably down to around 4,000 now. I’ve got over 160 people myself. My understanding is that is the second largest group in the state.

Q Why is this issue important?

A In some form or other, everyone involved in this is fighting for their lives. Someone who drives as part of a job — a truck driver, someone who makes deliveries, a traveling salesman — they’re going to lose that job. They’ve had training for their jobs and that’s all the training they have, and especially in this economy, their prospects for employment are not good. There are mechanics, they have to test-drive cars. They’re out of work. There are also background checks for white-collar workers. There’s not a lot of tolerance for a D.W.I. A lot of people are getting screened out because employers think if you have a D.W.I., you must be an alcoholic.

Great Win Today on a .18 Blood Test DWI Case

2011-08-16T18:33:00.000-07:00

In the middle of trial today the Judge granted our defense motion to suppress the blood test result due to the blood being drawn in an unsanitary location. As a result of the ruling the State dismissed the case mid-trial. Right result. Happy client.

Top Gun DWI 2011

2011-08-14T08:17:00.000-07:00

Thanks to TCDLA and the Harris County Criminal Defense Laawyers Association for putting on the outstanding Top Gun DWI seminar and allowing me to demonstrate cross examination of an expert in a blood test case.

More Voodoo from the Houston Crime Lab

2011-08-03T15:50:00.000-07:00

From the Houston Chronicle:

HPD crime lab faces more heat
Former supervisor testifies she quit over accuracy of alcohol tests
By BRIAN ROGERS and ANITA HASSAN

HOUSTON CHRONICLE

July 29, 2011, 6:35AM

Under intense scrutiny for shoddy work during the past decade, the Houston Police Department crime lab faced renewed criticism Thursday when a former HPD lab supervisor dropped a bombshell, testifying she quit because she could not trust the accuracy of breath alcohol tests from the department's testing vans.

Amanda Culbertson said electrical problems including overheating in HPD's six breath alcohol testing vans were well-documented before she and another supervisor quit. The vans are used as satellite offices for Houston police officers to give breath tests to suspected drunk drivers.

"We could no longer choose between a paycheck and our integrity," Culbertson said during a hearing in a DWI case in court-at-law judge Pam Derbyshire's court.

Culbertson, who resigned in May, said she and another supervisor quit because they could not trust the integrity of the results they use to prosecute cases.

Culbertson testified they feared retaliation from Irma Rios, HPD's crime lab director, for disciplining officers and civilian technicians who did not follow strict rules to keep breath-test machines from overheating and measuring alcohol levels inaccurately.

Rios did not respond to calls for comment. The revelations from Culbertson follow recent reports by the Houston Chronicle about thousands of rape kits sitting untested in the HPD property room.

Past problems
In 2002 DNA testing at HPD's crime lab was temporarily suspended after an audit revealed shoddy forensic work including unqualified personnel, lax protocols and facilities that included a roof that leaked rainwater onto evidence. Although the lab resumed operations five years ago, it still carries a backlog of about 4,000 untested rape kits in addition to new cases.

After Culbertson's surprise testimony Thursday, Harris County District Attorney Pat Lykos said her office will investigate the allegations.

"We sponsor the crime laboratory's scientific evidence in our prosecutions," Lykos said in a written statement. "Accordingly, we have a responsibility to ensure that the evidence was collected and analyzed properly."

In court Thursday, Culbertson agreed with prosecutors that the district attorney's office was never notified of the alleged problems.

Defense attorney Dane Johnson, who called Culbertson as a witness, said dozens, even hundreds, of cases may be affected since the vans went in to service in 2008.

He also said HPD's crime lab has been "just a big mess" for years.

Culbertson said she and others trained van technicians to keep air-conditioning units on. Overheating in the van can affect the gauges, Culbertson said. It also can alter the control sample used to calibrate the breath-test machine.

She said an electrical glitch in each of the six vans meant the sophisticated $6,000 machines would reset every time the van's air conditioner came on, which also cast doubts on accuracy.

She testified she was most concerned about cases filed during the hottest times of the year, spring and summer, beginning in 2009.

HPD officials said there were no problems with the integrity of test results because the machines will not function if they are too hot. They acknowledged that there have been problems including air conditioningin the breath alcohol testing (BAT) vans since they were purchased in 2008.

"No cases should be compromised as a result of the temperature in the BAT vans," said HPD Traffic Enforcement Division Capt. Carl Driskell, who oversees the vehicles. "Those breath instruments are either working or they are not."

Driskell said he was surprised to hear about Culbertson's allegations about the machine's accuracy because she never told him about it.

"I don't know where she's coming from," he said. "It's quite a bombshell, quite honestly."

Culbertson testified that she reported the problems to Rios, who was in her "chain of command." She said she was prohibited from talking to other supervisors or to prosecutors about the possible problems.

Driskell said the vans' electrical problems, including the air conditioning, have been resolved.

DWI lawyers await
After HPD officials testified there were no problems with the equipment Wednesday, attorneys Johnson and Jordan Lewis handed Culbertson a subpoena while she was in the courthouse on another case.

Culbertson now works for Lone Star College, which monitors and calibrates breath testing machines for other law enforcement agencies. She regularly testifies about how the machines work and their accuracy.

Jorge Wong, another supervising technician at the crime lab who left HPD, also was subpoenaed to testify. In court, Culbertson said she expected Wong to corroborate her story.

The hearing was cut short when prosecutors asked for a continuance so they could investigate the allegations.

During much of Culbertson's testimony, the courtroom was filled with defense lawyers who specialize in DWI cases, including Tyler Flood.

He said he was shocked last year when he first heard about inaccurate test results and fears of retribution.

He estimated his firm may have 20 cases that could be affected.

More Bad Breath Testing in Houston

2011-08-02T04:12:00.000-07:00

Reprinted from Grits for Breakfast:

Grits for Breakfast
Welcome to Texas justice: You might beat the rap, but you won't beat the ride.

Monday, August 01, 2011

Paycheck vs. Integrity: Houston PD lab supervisor resigns over faulty breathalyzers, feared retaliation

Yet another bombshell out of the Houston crime lab, as reported over the weekend in the Houston Chronicle ("HPD crime lab faces more heat," July 29), this time regarding breath-alcohol tests. The story opens:

Under intense scrutiny for shoddy work during the past decade, the Houston Police Department crime lab faced renewed criticism Thursday when a former HPD lab supervisor dropped a bombshell, testifying she quit because she could not trust the accuracy of breath alcohol tests from the department's testing vans.

Amanda Culbertson said electrical problems including overheating in HPD's six breath alcohol testing vans were well-documented before she and another supervisor quit. The vans are used as satellite offices for Houston police officers to give breath tests to suspected drunk drivers.

"We could no longer choose between a paycheck and our integrity," Culbertson said during a hearing in a DWI case in court-at-law judge Pam Derbyshire's court.

Culbertson, who resigned in May, said she and another supervisor quit because they could not trust the integrity of the results they use to prosecute cases.

Culbertson testified they feared retaliation from Irma Rios, HPD's crime lab director, for disciplining officers and civilian technicians who did not follow strict rules to keep breath-test machines from overheating and measuring alcohol levels inaccurately.

Rios did not respond to calls for comment. The revelations from Culbertson follow recent reports by the Houston Chronicle about thousands of rape kits sitting untested in the HPD property room.
Posted by Gritsforbreakfast at 7:44 AM

Breath Tests on Hold in Minnesota

2011-07-30T14:07:00.000-07:00

Waiting to exhale: 4,000 Minnesota DWI cases on hold

Article by: ABBY SIMONS , Star Tribune Updated: July 27, 2011

More than 4,000 cases await the state Supreme Court's decision on whether results from a breath-testing device are considered as reliable.

More than 4,000 DWI and implied-consent cases are on hold until the Minnesota Supreme Court issues a final order on whether results from a controversial breath-testing device are deemed reliable.

The state's high court on Tuesday granted a motion by a coalition of defense attorneys who requested that each of the cases from around the state be stayed until an appeal is complete regarding the Intoxilyzer 5000EN.

In March, Scott County District Judge Jerome Abrams ruled that although the device's much-debated computer source code contains errors, the problems don't affect accuracy of the results. His 122-page order followed a five-year legal battle in state and federal courts involving lawyers for 4,000 people in 69 counties who are accused of drunken driving.

After the ruling, each case returned to its home district while defense attorneys appealed and the Supreme Court agreed to hear the case. Tuesday's order stops some judges and prosecutors from moving the cases through the system in the meantime.

According to the order, the 4,000 cases were originally consolidated before one judge to prevent duplicate court battles and inconsistent rulings and preserve resources. Putting all of the cases on hold serves the same purpose, Chief Justice Lorie Gildea wrote.

Minneapolis criminal defense attorney Ryan Pacyga, who represents 160 people in the dispute, called the order a relief for attorneys and clients. Not only would cases inefficiently bounce throughout the system, it would drive up defense costs.

"This restores efficiency to one part of our government, and our government really needs efficiency right now." he said.

Oral arguments before the Supreme Court haven't been scheduled.

The state is phasing out its 264 Intoxilyzer devices in favor of the Datamaster DMT breath-testing machine, which should be released within the next few months after training and testing at the state Bureau of Criminal Apprehension.

SACDL "No Refusal" DWI Blood Seminar 2011

2011-07-11T19:43:00.000-07:00

Presenting in San Antonio at the "No Refusal" seminar with Josh Lee and Justin McShane.

2011: A Whirlwind So Far

2011-07-10T07:49:00.000-07:00

Over the course of the past few years, I have presented at numerous continuing legal education seminars on topics ranging from discrediting the intoxilyzer 5000 to trial tactics in DWI blood draw cases. At most I would speak 2-3 times per year. This year, however, I have been in overdrive on the speaking circuit.

In March I flew to Ohio for the Ohio Association of Criminal Defense Lawyers Annual DUI Seminar. My topics included discrediting hospital blood testing as evidence in DWI cases, building a "house of doubt" in trial and participating on a discussion panel with some of the best DWI lawyers in the country.

April always brings MSE - Mastering Scientific Evidence in DUI Cases - AKA the "mack daddy" of DUI science courses. This year I had the honor of being asked to present on the topic of discovery in DWI blood draw cases. Speaking at MSE is considered a high honor in my profession.

In May David Burrows and TCDLA put on their annual DWI seminar. This year it was held in Arlington. I spoke on blood draw errors and trial tactics.

May also brought an exciting opportunity to address the statewide county judges at their judicial conference in Dallas called the DWI Technology Conference. I was invited to speak, along with a state's expert, on the topic of breath testing. My job was to present on the Intoxilyzer 5000 from a defense perspective. It had been years since I gave a presentation on the errors in breath testing so it was great to revisit a topic that has always been one of my favorites.

In June I flew to San Antonio to give a DWI case law update at the criminal justice section of the State Bar of Texas at their annual meeting. This was the 2nd time I had been asked to speak at the annual meeting and I never pass up a chance to visit San Antonio, my college town.

As soon as I finished in San Antonio, I hopped on a place for Chicago to spend 6 days at Axion Labs learning the ins and outs of gas chromatography. GC is the testing method for blood alcohol concentration. The American Chemical Society and Axion Labs put on training for lab people but 2-3 times per year will offer their 40 hour course specifically for attorneys. I'm proud to now be one of only 53 attorneys nationwide to graduate from their GC course!

In July I flew back to San Antonio to join my good friends, Justin McShane (Pennsylvania) and Josh Lee (Oklahoma), at a seminar they were putting on for the San Antonio Criminal Defense Lawyers Association on defending "no refusal" cases. I discussed discovery in DWI blood draw cases and released a brand new discovery motion that has now been sent out statewide and will hopefully replace my old one as the standard motion in Texas. It is based on a fantastic article Justin wrote. I simply converted it into a usable Texas motion so that all Texas attorneys could benefit from it.

Now on to August. I will be in Houston for the Top Gun DWI seminar (as usual) but this year I'm a speaker. My job is to conduct a mock cross examination of a state's expert in a blood draw case. I consider this the hardest kind of speaking engagement so I'm already working on perfecting my cross examination!

As for the Fall, mabye I'll have a little break after August! In between trips I'm either preparing for trial or in trial so life has been a little crazy in 2011. Did I mention I finished updating The Texas DWI Manual for release later in the Fall? Lots of weekends and late nights spent writing.

It's not easy being the Texas DWI Gal but I wouldn't change a thing.

Light at the End of the Tunnel in Ohio?

2011-07-04T16:43:00.000-07:00

Legality of using OVI test device being questioned

Law director halts Intoxilyzer 8000 use while courts debate its accuracy

NEWARK -- Newark Law Director Doug Sassen advised local law enforcement Monday to cease use of the Intoxilyzer 8000 breath test while courts debate its reliability.

Sassen told the Ohio Highway Patrol, Licking County Sheriff's Office and Newark, Granville, Reynoldsburg and Heath police to use urine tests whenever possible, but BAC Datamaster breath tests could be employed. Pataskala police had not started using the Intoxilyzer 8000, Lt. Michael Boals said.

"Urine tests are a very reliable form of chemical testing and should not pose any cumbersome procedural issues," Sassen wrote.

He emphasized he didn't think there were any problems with the Intoxilyzer 8000, but it had not been tested in the courts and he didn't want to duplicate legal issues debated elsewhere.

"We still have the Datamaster, which has been reliable in the state for 30 years," Sassen said. "I can't think of a downside of waiting this out."

Sassen, like attorneys statewide, is watching a case in Athens County Municipal Court. On Wednesday, Judge William A. Grim opened the door for defense attorneys to attack errors with individual tests but found the machine could be used to obtain an accurate blood-alcohol content.

"It's a narrower reading of State v. Vega," Newark defense attorney Rob Calesaric said.

Prosecutors and judges across Ohio had interpreted State v. Vega, a 1984 state supreme court case, to mean the general reliability of a breath-alcohol testing device cannot be challenged after it is approved by the Ohio Department of Health.

"Vega has been good law in the state of Ohio for some time," Sassen said.

But defense attorneys argue the ruling prevents individuals accused of drunken driving from facing their accuser -- the machine, Calesaric said.

For Grim, the legislative branch took power from the court by allowing the Ohio Department of Health to OK breath-alcohol testing machines.

"It is a core function of the judiciary to determine the admissibility of evidence," Grim wrote.

His decision Wednesday won't change the way Licking County prosecutors look at operating a vehicle while intoxicated cases until an appellate court reviews the logic, Sassen said.

Because Athens County is in a different appellate district, Licking County would not be required to change until after an Ohio Supreme Court decision.

Licking County has not had a suppression hearing or trial for an Intoxilyzer 8000-tested OVI, Sassen said. One of Calesaric's clients has a suppression hearing set for July 14.

Those already convicted of operating a vehicle while intoxicated based on an Intoxilyzer 8000 have little recourse, Calesaric said.

"It's very difficult to withdraw a no contest or guilty plea," Calesaric said.

http://www.newarkadvocate.com/article/20110703/NEWS01/107030303/Legality-using-OVI-test-device-being-questioned?odyssey=tab%7Ctopnews%7Ctext%7CFrontpage

Update on Ohio's Breath Testing Battles

2011-07-04T16:36:00.000-07:00

Defense attorneys point out breath test flaws

NEWARK -- Would you trust a machine that is banned in other states for unreliability to test your blood-alcohol content?

The state of Ohio does.

In 2011, Licking County law enforcement agencies started using the Intoxilyzer 8000, a breath-alcohol testing machine manufactured by CMI Inc. in Owensburg, Ky., Newark Law Director Doug Sassen said. Most used it along with the BAC Datamaster, its predecessor manufactured by National Patent Analytical Services in Mansfield.

Defense attorneys have raised several concerns about the reliability of the machine from its record-keeping to the possibility a smartphone could alter a blood-alcohol content test.

To make the Intoxilyzer 8000 portable, CMI Inc. used a different light source, detector and filters. The 8000 uses a pulsed light beam that measures at four points per second, compared to 40 points per second on the Intoxilyzer 5000 or about 100 points per second on the BAC Datamaster, defense attorney Robert Calesaric said.

"Because of the longer pauses, it does not allow as accurate of a reading," Calesaric said.

The Intoxilyzer 8000 is more prone to picking up mouth alcohol or acid reflux that have higher levels of alcohol. Its limited pulses might not pick up a spike indicative of something other than deep lung air.

Before and after two samples are taken from an individual's breath, the machine tests a dry gas control. Differences in the dry gas should indicate an improper test, Calesaric said.

In a March breath test for a Newark man, the machine was off by .013 for dry air, according to the subject test report. He was tested again 13 minutes later despite the discrepancy and cited for operating a vehicle while intoxicated.

Mary Martin, program administrator for the Bureau of Alcohol and Drug Testing, said she thought the department had removed a couple machines for similar issues.

"If it's out of range, we'll remove that instrument," Martin said.

The machine from the March test still was in use at the Ohio Highway Patrol as of June.

The Intoxilyzer 8000 also allows for a 20 percent difference between the two samples before rejecting the test. That means a .080 result could be between a .06 and .10 -- a 40 percent difference.

Martin said .02 was a difference accepted by national scientific research. Calesaric thought a .005 difference would be fair.

"If the machine is accurate, it's accurate. A 5 percent error rate is high enough," Calesaric said.

In addition to being portable, the Ohio Department of Heath touted the Intoxilyzer 8000's ability to transmit data electronically as one of its greatest benefits.

Agencies using the Intoxilyzer's predecessor, the BAC Datamaster, would record the results of each test and keep a log at the department, said Martin. Now, all data is transmitted to the Bureau of Alcohol and Drug Testing, where it aggregates reports in a searchable database on its website.

This will allow the state to target areas with a large number of operating a vehicle while intoxicated citations, said Martin, adding that no research has been started yet because not all machines have been distributed.

Defense attorneys are concerned data can be easily deleted and there is no policy in place to store records necessary for trial as required by Ohio Administrative Code, Calesaric said.

In result on the website, a tested listed a blood-alcohol content of 23 -- more than 38 times the lethal limit. It was removed from the website.

The CMI software allows anomalies, such as a 23 BAC, to be replaced with other data and thus hides "inconvenient information," Athens County Municipal Court Judge William A. Grim wrote. ODH switched software in May to alleviate any problem, Martin said.

"It was a software issue," Martin said.

Grim found that the disappearance of data was, at best, an indication the website is still a work in progress, and at worst, a manipulation to hide adverse information.

"If it is the purpose of ODH to have a comprehensive database, that purpose has not been achieved," Grim said.

Calesaric said no policy is in place to store these records. Martin said the department is required to keep them for three years but plans to store the information indefinitely.

"We have no plans to get rid of them," Martin said.

Another concern is how the machine operates around radio frequency interference from cell phones or Blackberries. Thomas Workman Jr., who has testified for defense attorneys as an Intoxilyzer 8000 expert, said interference might skew results from .09 to .20. Ward acknowledged interference from a Blackberry, but former Chief Toxicologist John Kucmanic found it "impractical" to test all frequencies of available smart phones.

CMI did testing that found cell phones do not interfere with the Intoxilyzer 8000, Martin said. A representative testified the company didn't test smartphones or PDAs.

Another vulnerability is the machine will detect more alcohol the longer a person breathes into it. The person should stop when the progress bar reaches 100 percent, but the sample is not collected until the person stops breathing.

Defense attorneys are concerned officers could manipulate the system to yield a higher blood-alcohol content sample.

"It's not consistent between each person," Calesaric said.

Inconsistent does not necessarily mean inaccurate, Martin said.

"You really can't blow higher than what's in your lungs," she said.

Local law enforcement said they hadn't had any problems with the Intoxilyzer 8000. Sassen said the arguments from defense attorneys are typical of any new technology.

"I don't think there are problems with it," Sassen said.

Martin said she trusts the extensive research the Ohio Department of Health did into the Intoxilyzer 8000 to determine its reliability.

"It has time and time again shown that it is reliable, it is accurate," Martin said.

Grim did find that the Intoxilyzer 8000 could be used to determine blood-alcohol content and have those findings accepted in court.

"There is no such thing as a perfect person, a perfect machine or a perfect computer operating system. All have limitations or vulnerabilities," Grim wrote.

http://www.newarkadvocate.com/article/20110703/NEWS01/107030301/Defense-attorneys-point-out-breath-test-flaws

Dr. Harold McNair

2011-07-03T09:17:00.001-07:00

"Graduating" from Axion Labs after learning from the masters, Dr. Harold McNair and Dr. Lee Polite.

Hands on GC training at Axion Labs

2011-07-03T09:09:00.000-07:00

Our successful column change on the gas chromatograph.

My pals and DWI trial champs, Linda Callahan (Washington) and Brent de la Paz (San Antonio).

Changing the liner. Not bad for a business major!

Gas Chromatography training at Axion Labs

2011-06-26T05:47:00.000-07:00

I'm in Chicago attending the Gas Chromatography course at Axion Analytical Laboratory with the giants in this field, Dr. Harold McNair and Dr. Lee Polite. Gas chromatography is the testing method used to determine blood alcohol concentration in Texas when blood is drawn from a DWI suspect. This course is 5 long days of classroom and laboratory "hands on" education in this field of science. I will definitely be ready to take on any "expert" the government tries to throw at me in trial when I finish this course!

The CMI Stand-Off in Florida

2011-05-11T13:56:00.000-07:00

CMI, the manufacturer of the Intoxilyzer 5000 (used in Texas) and the Intoxilyzer 8000 (used in Florida), is in yet another stand-off over the company's refusal to turn over the source code for review by outside experts. Florida is in year 6 of the battle.

From the HeraldTribune.com:

DUI justice denied

Published: Wednesday, May 11, 2011 at 1:00 a.m.
Last Modified: Tuesday, May 10, 2011 at 6:27 p.m.
( page all of 3 )

"The Intoxilyzer, a device that detects alcohol in drivers, is designed to help the cause of public safety. But the manufacturer's intransigence in a related legal dispute is not helping the public. Instead, it is hurting hundreds of DUI prosecutions and clogging courts.

"The company, CMI Inc., should do the right thing: Resolve the dispute before it further undermines the battle against drunken driving. If CMI refuses, police agencies should start looking for a more cooperative manufacturer."

Those were the first two paragraphs in a June 2009 Herald-Tribune editorial.

Unfortunately, little has changed — except for the passage of nearly two years and the increasing number of cases jeopardized by CMI's refusal to comply with court subpoenas to give DUI defendants information that would allow experts to analyze the Intoxilizer 8000's computer source code and the machine's reliability.

This is unacceptable: State and local law enforcement agencies pay for these devices; as customers, they deserve the manufacturer's cooperation in response to repeated court orders dating back to 2005.

Six years of court orders

Six years ago, Sarasota County judges ordered that CMI's source code be turned over to a designated expert for analysis. Judges in Manatee County subsequently did the same.

Complex legal battles ensued: Last year, the 2nd District Court of Appeal upheld an order to produce the source code for analysis. In January, the Florida Supreme Court declined to hear an appeal from CMI, whose lawyers sought to help the manufacturer avoid compliance with a subpoena.

The Supreme Court decision should have expedited CMI's compliance or prompted the Florida Department of Law Enforcement, which is responsible for approving breath-test machines, to seek another vendor. (The Intoxilizer is the only DUI machine approved for use in Florida.)

Yet, as Todd Ruger's front-page report in yesterday's Herald-Tribune demonstrated, the lack of a solution continues to undermine cases.

Last week, for instance, prosecutors dropped their case against a Manatee County woman arrested for DUI for the 11th time. The woman is in prison for committing other driving-related offenses. But it's telling that the state attorney, according to Ruger, declined to press the charge "rather than allow a judge to issue a written order that could be used to throw out all breath evidence in DUI cases" in Manatee and Sarasota counties.

There are ways for the state attorney to get around the questions raised by defense lawyers and judges, but they involve additional time and money — and should be unnecessary.

A problem in other states

Judges in our region and Florida aren't the only ones who've challenged CMI and its machines. Judges hearing DUI cases in Arizona, Minnesota and other states have directed the manufacturer to reveal the Intoxilyzer's secret coding.

In response to Florida cases, CMI has attempted to dictate the terms under which it might comply with court orders; perhaps if company officials were faced with being held in contempt of the courts, their resistance might diminish.

What's more, the company's contention that its codes are trade secrets are overstated. The court orders provide adequate protections for any proprietary information an analysis might find — consistent with precedent and Florida law.

One possible way to encourage resolution would be to convene a panel of independent experts to review the source code in a secure setting. Florida used that approach, with mixed success, in addressing touch-screen voting problems in the disputed 2006 13th congressional district election.

An exercise such as that could take months. A faster route would be for CMI to simply cooperate with judicial orders.

Secrecy heightens doubts

If company officials want to build confidence in their product, they should recognize that secrecy is the wrong approach. It heightens doubts, undermining the value of the evidence and discouraging further purchases by police agencies.

Wasted court time, stymied DUI cases, rising legal costs — these are the side effects of the CMI standoff, and they are spreading in other jurisdictions and states. Clearly, the public is not being well served by these continued delays after six years.

Government Voodoo "Science" Meets REAL Science

2011-05-11T13:31:00.000-07:00

Kudos to fellow NCDD member Mike Nichols for his tireless fight!

From LansingNoise.com:

DUI blood tests could face scrutiny after judge's ruling: East Lansing attorney works case in Ludington area

Blood tests in drunken-driving cases statewide will face more scrutiny, experts say, after a Mason County judge ruled that the state crime lab's test results "are not reliable."

In a ruling signed Friday, 79th District Court Judge Peter Wadel refused to admit blood-alcohol results in a drunken-driving case. He said the crime lab - which conducts blood and other forensic tests in cases from around the state - does not report an error rate, or margin of error, along with blood-alcohol results.

Police routinely report a single number for blood-alcohol content in drunken-driving cases. But East Lansing attorney Mike Nichols, who is handling the case in Mason County - which includes the city of Ludington along Lake Michigan - said there are no absolutes in science.

"Everyone says a blood test is so accurate. Well, it's not," Nichols said. "That's what this judge has ruled."

Not including a range of possible results, Nichols said, ignores the uncertainties in the collection, handling, analysis and reporting process.

A blood-alcohol level of 0.08 percent is the threshold in Michigan for being charged with drunken driving. But Nichols said when someone's blood-alcohol is determined to be 0.10, for example, it could actually be higher - or lower - than 0.08.

The Mason County case is being watched by attorneys across Michigan and the country.

Washington-based attorney Ted Vosk, who consults with defense attorneys and prosecutors about the importance of calculating error rates, praised Wadel's ruling.

If police and prosecutors don't acknowledge scientific uncertainties, Vosk said, innocent people will be convicted and guilty people will go free.

"And we won't know which are which," he said.

Large impact

Vosk said Washington and Michigan are the only two states in which judges have made rulings challenging blood-alcohol tests.

Wadel's ruling is not binding on any judge outside of the 79th District Court, which includes Mason and Lake counties. But it likely will have impact statewide, Thomas M. Cooley Law School professor Ron Bretz said.

From WoodTV.com:

Judge rules against blood-alcohol tests: Not retroactive, and only in Judge Wadel's court

By Marc Thompson

GRAND RAPIDS, Mich. (WOOD) - A judge ruled blood-alcohol tests conducted by the Michigan State Police Crime Lab are unreliable, and will not be admitted in his court.

The judge made this ruling on a blood test, taken from a collected blood sample that was tested at the MSP lab. But to prove his point Tuesday, attorney Michael Nichols set up a simple breath test experiment.

Two of his staff members consumed one beer apiece over a 45-minute period. After waiting the required 15 minutes, each blew eight times over an approximate 10-minute period.

In the results, each of the staff member's numbers varied at least once in the course of the test. Nichols said this proves that it's nearly impossible to get one exact number, and there must be a margin of error.

The same principle applied when state police conduct a blood-alcohol test in the lab, Nichols added.

"Any instrument that attempts to measure something in the human body, is going to have bias in the instrument itself -- from hour to hour and day to day and week to week -- and differences in the person who is providing the analysis or the sample," he told 24 Hour News 8. "And then, you're going to have differences in analyst to analyst and officer to officer taking the sample."

In a series of hearings, 79th District Judge Peter J. Wadel listened to testimony from state police lab technicians, who argued all blood samples are tested thoroughly -- two different ways, using the lowest value as the exact BAC number. No margin of error is factored in or needed here, they contend.

But Judge Wadel disagreed, ruling there are natural inconsistencies in the testing. An error rate exists, he said, and that's information a jury should have.

That margin of error can mean the difference between guilty and not guilty, for someone on the cusp of the .08 legal limit in Michigan, Nichols said.

"(It) ruins your life," he said. "A DUI in the state of Michigan, you can never get off your record."

To support his ruling further, Wadel cited the fact that the American Society of Crime Laboratory-Laboratory Accreditation Board -- which gives the MSP lab its accreditation -- has required state police to come up with an uncertainty budget, or a margin-of-error scale.

The MSP lab has not complied yet.

This ruling is not retroactive, and will not affect past operating-while-intoxicated cases. For now, this only applied in Wadel's court. State police officials strongly disagree with the judge's ruling, they said Tuesday night.

A prosecutor is looking at ways to have the measure overturned. This is the first ruling of its type in Michigan, and cases still can be tried on the basis of a field sobriety test.

Upcoming Speaking Engagements

2011-03-23T17:50:00.000-07:00

2011 Speaking Engagements

Legal Seminars:

Defending DWI's with Hospital Tested Blood

•March – Ohio Association of Criminal Defense Lawyers Annual Advanced OVI (DWI) Seminar

Discovery in DWI Blood Draw Cases

•April - TCDLA's Mastering Scientific Evidence in DUI/DWI Cases

DWI Blood Cases: Discovery, Science, & Strategy

•May - Annual DWI Defense Project Seminar
•June - State Bar of Texas Annual Meeting

The Intoxilyzer 5000 From a Defense Perspective

•May - DWI Technology Conference (Texas Center for the Judiciary)

Latest on the Surcharge Debate

2011-03-23T17:47:00.000-07:00

http://www.youtube.com/watch?v=hbAJxAmauk8

Will the Surcharge Survive This Session?

2011-02-23T04:24:00.000-08:00

2 bills have been introduced to do away with the draconian DPS surcharge. I'm watching both and will report on their progress.

Ohio Bound

2011-02-16T18:10:00.000-08:00

I'm heading to Ohio to speak to the Ohio Association of Criminal Defense Lawyers at their annual DWI (OVI) seminar. I'll be teaching a session on defending DWI accident cases where a blood sample was tested in the hospital lab.

The Latest on Surcharge Amnesty

2011-01-30T13:31:00.000-08:00

The Associated Press

AUSTIN, Texas — Texas is offering a discounted amnesty program for drivers whose licenses have been suspended and who owe fines and other surcharges, the Department of Public Safety said Tuesday.

If payment is not received by April 17, the amnesty reduction is voided, all surcharge balances revert to the original owed amounts and suspensions are put back on a driver's record, according to the Texas Department of Public Safety.
The goal of the amnesty period is to bring drivers into compliance with the surcharge law and allow them to become licensed and insured drivers, DPS said Tuesday.

About 650,000 Texans who owe traffic fines could be eligible for the 90 percent break on payment, as part of the DPS Driver Responsibility Program. The program, which assesses fees for a variety of driving-related offenses, was passed by the 2003 Legislature.

Anyone with an unpaid surcharge that was assessed between Sept. 20, 2004, and Dec. 31, 2008, are eligible to take part. Other restrictions apply. DPS say service fees will still apply to the reduced amount being paid.

Once the application is approved, the surcharge suspensions will be cleared on the applicant's driving record within three business days, said DPS. Applicants will be provided the reduced amount to pay, and they can begin making payments after three business days.

DPS does not have plans to offer another amnesty period, the agency said.

A program to help indigent drivers will be offered after the amnesty period ends, to assist individuals who are at or below 125 percent of poverty level, in paying their surcharges.

DPS Surcharge Amnesty starts today

2011-01-18T04:32:00.000-08:00

Check out this website to see if you qualify and to apply:

https://www.txsurchargeonline.com/AmnestyMain.aspx

A Must-Read for Texas Lawyers

2011-01-17T07:08:00.000-08:00

From Connecticut attorney Norm Pattis' blog:

Memo To Texas Bar: Back Off

I hate the Texas Bar Association. You should too. So should everyone who cares about whether people accused of a crime can find a lawyer to represent them.

I hate the Texas Bar Association because it is setting its sights on criminal defense lawyers: The unstated goal? Driving them into extinction. What’s more, the Lone Star state isn’t alone. Not long ago, the District of Columbia also cast an evil eye in the direction of criminal defense lawyers. Unless this madness stops, there will be far fewer folks willing and able to practice criminal defense.

The issue is fees, and how to collect them.

Criminal defense lawyers distinguish between the so-called street crimes and white collar crime. Into the later class fall the myriad of ways in which paper-pushers can bilk clients, employers and the government of their due, together with a bewildering array of regulatory offenses that keep even lawyers guessing just what the law prohibits and permits. The majority of white-collar defendants can afford legal services. Most often, they pay by the hour.

Then there are street crimes. The list here is familiar to all: murder, robbery, rape, drug sales – all the sorts of things that go bump in the night. These crimes are often crimes of passion, stupidity, or a crass inability to conform to the behavior required by law. Many of the people who are charged with these crimes struggle to pay legal fees. Few can afford to pay hourly.

Lawyers earning their living in the criminal law’s trenches know a thing or two about human need, and one of the first things learned is the first-date rule. A terrified client seeking to retain you in fear for his liberty has fallen in love with you. You are the mysterious stranger at the bar, the dream date, the fantasy lover offering a way out of a desperate situation. Like besotted lovers world over, a client on a first date with the a lawyer will say or do just about anything to get onto the lawyer’s list of clients. Hence, rule number one: Get you fee paid in advance.

This rule is necessary because once you sign on to represent a client, few judges will let you out of the case because the client stiffed you on a fee. Sure, the client’s promise you the moon. Try paying salaries, rent and bills with client promises sometime. Judges live in a magical world in which their efforts, skills and aptitude are detached from economic reality -- they get paid no matter how stupid their ruling, or how late they arrive to the courthouse – they know little of economic reality.

Lawyers nationwide are required to keep wto sets of bank accounts: One is an account to maintain funds belonging to others. This is a trust account. The other account is the firm operating account: From this account a lawyer pays his bills and himself.

When a client pays a flat fee for representation, where should the money go? Some say it should go into the trust account and remain there until it is earned. Few small firms can afford this practice. Many lawyers deposit flat fees straight into their firm account. In those cases in which a client terminates the lawyer, lawyers pay refunds for unearned fees out of their firm account.

Texas thinks that is too untidy. It wants all money held in trust until it is earned. This is another way of abolishing flat fees. Thus, if a lawyer’s hourly rate is $300, and a client pays $2,000 for pre-trial work, the client is entitled to precisely six and two-thirds hours of time. Depending on the case, that means the client gets about two court appearances, if the lawyer bills for the time he or she spends discussing the case with the client, traveling to and from court, reading the police reports and attending pre-trial hearings.

Once that $2,000 is earned, what’s the lawyer to do? On the reasoning of the Texas Bar Association, the lawyer should be able to withdraw from the case once the money runs out. I doubt the Lone Star bar heavies want to force their brethren to work for nothing. But that won’t happen. Judges hold lawyers to the bargains they strike. That is at it should be: Clients come first. That’s why we call it a profession.

For years, trench lawyers have lived by their wits. Adjusting fees based on the availability of work, their schedules and expenses. The fact is that all criminal defense lawyers lose money on a significant percentage of their files. Quoting fees is an art, not a matter of accounting science. Requiring hourly fees will mean that difficult clients go without lawyers: Let’s face it, many folks charged with crimes are in trouble because of mental health or substance abuse issue.

The relationship between a lawyer and client is complex. Many variables account for how a client picks a lawyer. The primary variable is trust. A client places his life and liberty in the hands of the lawyer; the lawyer takes a fee for the service. Bar regulators trying to force their way into the relationship will succeed only in making it even harder for ordinary people to find lawyers, especially in a bad economy, where money is tight.

Memo to Texas: Back off before clients get hurt. The new rule you propose might work for big firms awash in cash. It will be a disaster for small firms called upon to work big miracles for such fees as their clients can afford to pay. Or is it the case that Texans just don’t want little people living on the margins to have good lawyers?

http://www.pattisblog.com/index.php?article=Memo_To_Texas_Bar_Back_Off_2941&limit=2

Big Honor from D Magazine

2011-01-10T19:30:00.000-08:00

I was notified today that I've been named one of the Best Lawyers in Dallas 2011 by D Magazine. The issue will be out in June.

A Scarlet Letter for DWI's?

2011-01-07T18:55:00.000-08:00

One of the first crappy DWI bills for the Lege:

A BILL TO BE ENTITLED
AN ACT
relating to requiring a distinctive symbol or marking on the
driver's license issued to a person convicted of certain
intoxication offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter F, Chapter 521, Transportation Code,
is amended by adding Section 521.127 to read as follows:
Sec. 521.127. DRIVER'S LICENSE FOR PERSONS CONVICTED OF
CERTAIN INTOXICATED DRIVING OFFENSES. (a) In this section,
"offense relating to the operating of a motor vehicle while
intoxicated" has the meaning assigned by Section 49.09, Penal Code.
(b) Notwithstanding Section 521.347, a court in which a
person is convicted of an offense relating to the operating of a
motor vehicle while intoxicated shall require the person to
surrender to the court the person's driver's license.
(c) A court that requires a person to surrender the person's
driver's license under Subsection (b) shall send to the department:
(1) a record of the person's conviction; and
(2) an indication that the driver's license issued to
the person is subject to the requirements of this section.
(d) A person who is required to surrender the person's
driver's license to the court under Subsection (b) may apply to the
department for the issuance of a new or duplicate license provided
that any applicable suspension period has expired.
(e) On the payment of all required fees, the department
shall issue to a person who applies for a new or duplicate license
under Subsection (d) a driver's license that includes a distinctive
symbol or marking on the face of the license identifying the license
holder as a person who has been convicted of an offense relating to
the operating of a motor vehicle while intoxicated. The department
by rule shall specify the symbol or marking required by this
subsection.
(f) A driver's license issued under this section must
include the symbol or marking required by Subsection (e) for the
following time periods:
(1) if the person to whom the license is issued has
been convicted only one time of an offense relating to the operating
of a motor vehicle while intoxicated, until the third anniversary
of the later of:
(A) the date of that conviction; or
(B) the expiration of the period of suspension of
the person's license as a result of the conviction;
(2) if the person to whom the license is issued has
been convicted two times of an offense relating to the operating of
a motor vehicle while intoxicated, until the fifth anniversary of
the later of:
(A) the date of the person's most recent
conviction of an offense relating to the operating of a motor
vehicle while intoxicated; or
(B) the expiration of the period of suspension of
the person's license as a result of that conviction; or
(3) if the person to whom the license is issued has
been convicted three or more times of an offense relating to the
operating of a motor vehicle while intoxicated, permanently.
(g) The symbol or marking required by Subsection (e) is in
addition to any other information on the person's driver's license
required by this chapter or the department.
(h) On or after the expiration of the time period specified
by Subsection (f)(1) or (2), as applicable, a person issued a
driver's license under Subsection (e) may apply to the department
for a license that does not include the distinctive symbol or
marking.
SECTION 2. Section 521.127, Transportation Code, as added
by this Act, applies only to a person who is convicted of an offense
on or after the effective date of this Act. A person who was
convicted of an offense before the effective date of this Act is
governed by the law in effect when the person was convicted, and the
former law is continued in effect for that purpose.
SECTION 3. This Act takes effect September 1, 2011.

What Fresh Hell is This?

2011-01-04T17:43:00.000-08:00

That statement generally sums up my feelings every 2 years when the Texas Legislature convenes to try and implement as many Draconian DWI laws and penalties as can be crammed into a Session. On the menu for this Session: breathing life into long-dead DWI roadblocks, deferred adjudication for DWI's that is being pushed by cops, prosecutors and MADD which means it will be a screwing for the citizenry, a new offense for drivers who are under a .08 - that is, trying to criminalize citizens WHO ARE NOT INTOXICATED...

Stay tuned...I'll report on all the drama as it unfolds during the Session...

The Scientific Method

2010-12-28T13:54:00.000-08:00

Thanks to DUI lawyer Josh Dale for this gem:

Minnesota Fight Over the Intox 5000

2010-12-14T16:33:00.000-08:00

Minnesota DWI lawyer Chuck Ramsay and his team are battling over the Intoxilyzer 5000 in court this month. To follow the progress, check out his blog:

http://www.mndwidefenseblog.com/2010/12/articles/source-code/fight-over-intoxilyzer-5000-rages-on/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+MinnesotaDwiDefenseBlog+%28Minnesota+DWI+Defense+Blog%29&utm_content=Google+Reader

Today's "Not Guilty" Verdict

2010-12-14T14:58:00.000-08:00

Today I won a .266 "blood test" DWI case in Collin County. I'm posting this, not to pat myself on the back, but to comment about the pitiful state of affairs when it comes to admitting non-forensically reliable chemical test results into criminal trials. My client was involved in a car accident during the freak snow storm we had in March. He lost control of his truck and hit a tree. This resulted in both a head injury and a ruptured bowel. The police later subpoenaed his medical records and charged him with a DWI based on a test result from the hospital lab which showed a .266 alcohol level. The problem with this from a forensic standpoint is that the test was run on serum instead of blood and the testing method is subject to interference from other substances - such as the lactic acid released into the blood after muscle injuries one might sustain in a car accident. The byproducts of alcohol and lactate are measured as alcohol (to put it in a very simplistic way). My client's .266 could have actually been a 0.00. He ended up charged with a crime based on crappy science. Period. That is just wrong.

DWI-lite in Texas? Time Will Tell...

2010-11-30T16:56:00.000-08:00

Few toasting 'DWI Lite' proposal

Austin police chief suggests a new category for impaired driving
By PEGGY FIKAC
AUSTIN BUREAU
Nov. 30, 2010, 5:39AM

AUSTIN — Under a recent proposal floated for a new drinking-and-driving offense, those who enjoy a glass or two of wine while out at dinner might find themselves on the wrong side of the law if they decided to drive home — even if their blood alcohol is below the 0.08 percent legal intoxication level.

The potential effect on moderate imbibers appears to be one big reason the "driving-while-ability-impaired" idea isn't gaining steam, despite an initial flurry of attention.

"It created a lot of dialogue, but I don't think will ever be workable," said state Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, of the idea submitted to his group by Austin Police Chief Art Acevedo.

The idea wouldn't lower the legal intoxication limit. Instead, it would create an offense for those whose blood alcohol concentration is between 0.05 and 0.07 — below the 0.08 concentration at which people are presumed to be intoxicated.

"If you're going to write up people for that and test 'em on the side of the road for that, you'd probably have to shut down all your bars and restaurants and your sports events. ... Essentially, wine with dinner would have to go out the window," said Whitmire.

No prohibition

While emphasizing that he takes seriously the offense of drunken driving, Whitmire said, "I think society has already decided years ago, they don't want prohibition."

Whitmire is focused on other related issues, including ensuring repeat drunken-driving offenders acknowledge and receive treatment for alcohol problems, and pushing for a uniform system of dealing with drunken drivers across local jurisdictions.

Acevedo wasn't available for an interview on the driving-while-impaired idea, which he submitted in testimony to Whitmire's committee as part of a broader list of potential proposals.

Acevedo didn't propose a penalty. A first offense of driving while intoxicated is a Class B misdemeanor.

Whitmire said Acevedo told him the idea was largely "to give people an opportunity to plead down to something."

'Makes more sense'

First-time offenders may often agree to a lesser offense in a plea bargain, and the talking points submitted by Acevedo said, "This makes much more sense than reducing a charge to reckless driving or obstructing the roadway."

But the American Beverage Institute, a restaurant trade association, jumped on the so-called "DWI Lite" proposal with both feet.

The group said the idea mistakenly places the focus on moderate social drinkers instead of "hard-core drunk drivers who cause the majority of alcohol-related fatalities."

"The attempt here is about trying to criminalize what has been considered perfectly legal behavior. ... The idea is to discourage people from having anything to drink prior to driving," said Sarah Longwell, managing director of the institute.

She said a 120-pound woman can reach the 0.08 level by drinking two six-ounce glasses of wine in two hours.

The idea of creating an offense at a lower level could cost jobs by having "a chilling effect on moderate and responsible consumption" of alcohol and thus hurting the hospitality industry, she said

Laws already in place

Longwell and others noted that Texas law already allows for someone to be considered intoxicated apart from the 0.08 blood alcohol concentration, defining it as "not having the normal use of mental or physical faculties by reason of the introduction of alcohol" or drugs.

The institute said every state allows for people to be arrested for impaired driving, even with a blood alcohol concentration below 0.08. Colorado and New York have laws in place like the driving-while-ability-impaired idea floated here, it said.

James McLaughlin, general counsel and executive director of the Texas Police Chiefs Association, said his group has no objection to the DWAI idea.

"The idea is to get these people off the road," he said. "Whatever mechanism that can be done legally is what we want to do. They're killing people."

The idea isn't part of the legislative agenda for Mothers Against Drunk Driving, said Bill Lewis, the group's public policy liaison.

He said MADD prefers to focus on priorities that include sobriety checkpoints and ignition interlock devices for all convicted drunken drivers.

"We do not support that (new DWAI offense). It's too strong to say we oppose it," Lewis said. "I'm just not sure it's necessary."

FSA Certification

2010-11-30T07:21:00.000-08:00

Dr. Steve Rubenzer developed a course to take individuals to the next level in their mastery of the science of the detection of intoxication and where the law and science currently stand in that particular area. From his website:

Forensic Sobriety Assessment trains and certifies professionals in DWI/DUI enforcement and defense. FSA certification requires working knowledge of the scientific principles and research relating to sobriety testing in a DWI / DUI stop, including:

The scientific literature on indications of intoxication such as red eyes and slurred speech
NHTSA's Standardized Field Sobriety Tests (SFSTs)
Testing concepts: Reliability and validity
Diagnostic statistics: False positive rates, sensitivity, specificity, etc.
Experimental design issues relevant to sobriety test studies
Statistical concepts such as correlation, statistical significance, and effect size
Visual science pertaining to the Horizontal Gaze Nystagmus (HGN) sobriety test
The scientific literature on sobriety tests other than the SFSTs

FSA Certification is the most advanced credential available to DUI professionals in behavioral sobriety assessment. Ideally, all attorneys, judges, and police officers who deal with DWI cases would be knowledgeable about these topics. While the National Highway Traffic Safety Administration (NHTSA) trains police officers to assess intoxication, it does not provide training in important scientific topics or differential diagnosis, and does not address the many criticisms of the tests. FSA Certification is available to those who demonstrate proficiency by passing examinations in seven of the eight content areas (the module on statistical significance and effect size is currently optional).

I have been meaning to take the course for over a year but finally got around to it this past month. I can't say enought about the course. With all of the training I've had in SFST's, I still learned new things regarding the various studies and the unacceptable false positive rates for sober drivers. I never cease to be amazed that this voodoo is allowed into courtrooms and cloaked with legitimacy.

After passing all 11 exams, I am proud to now be FSA certified. You can check out Dr. Rubenzer's program at http://www.forensicsobrietyassessment.com/.

More Absurdity in the World of DWI Investigation

2010-11-09T11:24:00.000-08:00

Russians Develop DUI Camera
Handheld device claims to remotely detect the presence of alcohol in a moving vehicle.

Localities may one day issue tickets for the crime of driving under the influence of alcohol (DUI) by mail. The Russian firm Laser Systems has developed Alcolaser, a device that uses lasers to remotely detect the presence of alcohol vapors in an automobile. The Alcolaser is available in either in the form of a handheld gun the size of a police radar or in a mounted version designed to work from a moving police car.

The device takes about half-a-second to scan an automobile. According to the manufacturer, the laser has a range of 65 feet and can test vehicles moving at up to 75 MPH. Laser Systems claims that Alcolaser can detect amounts as small as a quart of beer or 3.5 ounces of vodka without being fooled by other sources of ethanol that might be present in a passenger compartment.

An individual with a blood alcohol content of 0.10 would on average exhale enough alcohol vapors to bring the level in a car with the windows closed to 3 parts per million within 30 minutes. The level would be lower in a vehicle with the ventilation system active. Alcolaser takes advantage of spectroscopy, through which light hitting a specific type of molecule is scattered in a specific way. The shift in the energy content of the light differs based on the type of molecule hit, allowing one to detect the presence of a particular substance.

The method used would be incapable of distinguishing between a sober driver and a drunk passenger. It would also be fooled by beer spilled in the passenger compartment. Despite the limitations, the device has been demonstrated at a number of international trade shows and the Russian police are reportedly interested in testing the equipment. The firm already supplies a number of products to various branches of the Russian government.

http://www.thenewspaper.com/news/33/3317.asp#source

Blogs of Note - a pro-DRE blog

2010-11-07T09:47:00.000-08:00

The is an interesting blog for those of us dealing with DRE evidence. The guy who writes this is pro-DRE so it's a good resource for knowing what the other side thinks:

Drug Recognition Expert

Blogs of Note - The Truth About Forensic Science

2010-11-07T09:43:00.000-08:00

My good friend, Justin McShane, has an outstanding blog that should be on all dwi lawyer "must read" lists:

The Truth About Forensic Science

Dr. Jim Booker's new book released

2010-11-07T09:27:00.001-08:00

Dr. Jim Booker has just released the 2nd edition of his book, DWI DETECTION TESTS. I was fortunate enough to be asked by Dr. Booker to review the manuscript and make suggestions. He just mailed me the final product. It is an excellent resource for attorneys who are just beginning to handle DWI cases and are trying to learn the basics regarding SFST's, breath testing and blood testing. I highly recommend the book. Dr. Booker has a unique perspective on DWI "tests". I don't have a link for purchasing the book or a price yet. As soon as I know, I'll post it here.

UPDATE: The book is available for $150 (includes tax and shipping) at TUPOSITE Publications, P.O. Box 569, Eddy, Texas, 76524.

Greg Willis

2010-11-07T09:22:00.000-08:00

On January 1, 2011, former judge Greg Willis will be sworn in as the new Collin County DA. This will mark the end of the infamous reign of John Roach. It can't come soon enough. Willis is a level-headed, smart, respected, decent man who will usher in a new era. Here's hoping the prosecutors will be given discretion to reduce weak DWI cases and make rational decisions about the cases they are handling.

On Blogging, or the Lack Of

2010-11-07T09:11:00.000-08:00

Ok, so I started a blog and then never blogged. I freely admit biting off more than I could chew in 2009-2010 with the re-write of The Texas DWI Manual. Writing a book sounded like a great plan but it's extremely difficult for a full-time trial lawyer. I've promised my publisher the last chapter (on blood testing) will be in by Thanksgiving so we're nearing the finish line. Now I can turn my attention to filling up this blog...

Welcome to My New Blog

2009-08-31T14:57:00.000-07:00

I'm transitioning to a new blog. Welcome to the launch! I'll be posting on various topics over the next few weeks. I have a big hearing tomorrow in Collin County (9/1) and will post on the results later in the week.