Houston DWI Law Blog

Smart Start Is Not the Only Game in Town Anymore - Thanks for the Comment Smart Start

Dane Johnson — Fri, 26 Feb 2010 09:59:46 -0600

I received the following comment from Neil Guerrier (an assistant manager with Smart Start - unbiased, no doubt!) a couple of days ago regarding my post related his company and the DWI Divert Program,

If any other company offered and IID with a camera that worked, perhaps offenders would have a choice, as it stands however....

Also, Dane, you lose any credibility by mentioning that you have a friend that works for a competitor.

The point is with the Divert program is that a device with a camera is required. Any other client is given a choice of what provider they wish to install with.

For years, judges and other court officials been screaming for positive id on the person blowing into the device. Smart Start beat other companies to the punch with their devices.

Also, if i remember correctly, there was an incident in Houston a few years ago where a Judge was part owner or investor in an Interlock company, was ordering clients to install with that company only...

Actually, I'm glad he left the comment because I have needed to write an update to my previous post.

What Neil failed to point out in his criticism of me is that Smart Start is not the only company that now has a contract with the Harris County DWI DIVERT Program. In fact, my friend's company (the one that made me biased presumeably) EZ Interlock is now an approved provider of services for the DWI DIVERT Program. Apparently the cameras are working now.

I would like to think my post had something to do with EZ Interlock getting approved to be a provider for the DIVERT Program - competition is good for all, right Neil?

Thank you Neil for giving me a reason to write this post.

Cops Should Not Be Able to Draw DWI Supects Blood - Leave That to the Medical Professionals

Dane Johnson — Wed, 24 Feb 2010 13:16:42 -0600

As I reported back in September of 2009 and as Paul Kennedy writes about this week, the Houston Police Department began making arrangements for some of its officers to be trained to take blood from citizens they arrest for DWI in Harris County.

As KPRC reports, the Houston Police Department currently has 7 police officers enrolled at Lone Star College to become phlebotomists - people that draw blood. Unlike what happens now, the cops will now be taking our citizen's blood. As I have said before, cops have no business taking the blood of our citizens - leave that job to the medically trained professionals.

Just like I don't want nurses and doctors carrying guns and enforcing the law at hospitals, I sure don't think the police should be drawing blood.

To watch the KPRC video, click here.

New Illinois Supreme Court Case - The HGN Test Is Not All It's Been Touted to Be

Dane Johnson — Fri, 19 Feb 2010 15:14:17 -0600

The Supreme Court of Illinois in The People of the State of Illinois v. Joanne Mckown last week issued an opinion regarding the Horizontal Gaze Nystagmus (HGN) field sobriety test and made some remarkable findings.

First, the Court held that the HGN test can not be used to show actual loss of the normal use of mental or physical faculties, but instead, can only be used to show that a "defendant may have consumed alcohol and may, as a result, be impaired." There is no more of this, "they failed the HGN so they are therefore intoxicated" arguments.

Second, the Court held that just because a scientific test is regularly relied upon in law enforcement does not make it admissible in court. The test is whether the particular test is relied upon in the scientific community, not the law enforcement community.

Third, just because a test meets the standards for admissibility under Frye, that does not preclude the trial court from conducting a balancing test and deem the evidence "inadmissible on grounds of undue prejudice."

Finally, the Court held that the test must strictly comply with the NHTSA standards for performing the test. This means the cops aren't going to be allowed to come in a testify, "I did it the way I was trained to do it." They are going to be held to the standard of the NHTSA.

Here's hoping the Texas Court of Criminal Appeals will at least read this opinion. Even more importantly, here's hoping that the trial courts in Texas will read the case and understand that they truly are gatekeepers for the admission of evidence.

Harris County Prosecutors Using HGN Video in Trial - Good Trial Tactic?

Dane Johnson — Thu, 18 Feb 2010 14:41:34 -0600

One of the field sobriety tests that police often rely on in DWI investigations is the Horizontal Gaze Nystagmus (HGN). Apparently the Harris County District Attorney's Office has recently started using a video in DWI cases that show what HGN looks like - presumably to influence jurors to give more weight to the HGN test.

It seems that they have realized what many of us have known for years, jurors want to see it to believe it. Jurors are sharper than most of us give them credit for. Hearing a cop say he observed 6 of 6 clues on the HGN means relatively little to most jurors that I have spoken to. However, if they had seen a video of the Defendant's eyes and the jerking the cop says he saw, I think they would feel much differently. Here is a video that shows what HGN looks like.

Unfortunately for the prosecutors, the video they are showing to the jury is not the defendant or the defendant's eyes. It seems any good DWI lawyer would quickly point this out to the jury. It seems just as obvious another drawback for the prosecution - the technology does exist to look at a defendant's eyes and let the jury actually see the defendant's eyes. Instead we get to tell the jury - the technology exists to record this so called HGN - prosecutor showed you that. What he/she didn't show you was my DWI client's eyes. Why?

Houston Law Professor Suggests No More Jury Trials in DWI Cases - What a Joke?

Dane Johnson — Thu, 18 Feb 2010 12:03:02 -0600

Adam M. Gershowitz, law professor at the University of Houston Law Center, has proposed a simple solution for deterring Drunk Driving / DWI cases - eliminate Jury Trials. The abstract from his paper reads,

Over the last few decades, states have imposed tougher punishments on drunk drivers. This article argues that increasing punishments is counter-productive. If legislatures are seeking to hold guilty offenders accountable and deter drunk driving generally, they should keep punishments low and instead abolish the right to jury trials. Under the petty offense doctrine, the Supreme Court has authorized states to abolish jury trials when defendants face a maximum sentence of six months' incarceration. . And researchers have also found that the certainty of punishment, not the severity of punishment, is the key factor in maximizing deterrence. Thus, by keeping maximum sentences for most drunk driving offenders at six months or less, states can abolish jury trials, thereby raising conviction rates and improving general deterrence. Additionally, bench trials will be far more efficient because the greater certainty of conviction will give defendants an incentive to plead guilty rather than taking their cases to trial. When trials do occur they will be much faster because there will be no need to select juries, and lawyers will have to present far less background information to already knowledgeable judges. At present, only a handful of states have eliminated jury trials for drunk drivers. This article outlines the specific steps that states should take to abolish jury trials and thereby increase convictions, maximize general deterrence, and more efficiently handle one of the most common crimes in the United States.

Although I'm admittedly no Constitutional scholar, I firmly believe in every citizen's right to a jury trial. In fact, the right to a jury trial before incarceration has long been a tenet of not only our national criminal jurisprudence, but also here in Texas.

Quoting Gershowitz' abstract,

Social science evidence has long demonstrated that judges are more likely to convict than juries, particularly in drunk driving cases.

I doubt Gershowitz would like a rubber stamp guilty verdict by our judiciary if he (or someone he knows - possibly the colleague at the University of Houston Law Center that was recently charged with DWI whose case was ultimately dismissed) was wrongly charged with a DWI. I'm quite certain that his law professor colleague is glad the judiciary doesn't have the right to just rubber stamp a guilty verdict for DWI. Gershowitz - why don't you walk down the hall and ask your fellow law professor that had his case dismissed if he agrees with you.

Let me tell you, there are many of our Harris County citizens that have been wrongly charged with DWI that are thankful we do still have a right to a trial by jury. Gershowitz couldn't be more wrong on this point. He seems to be buying into the ever increasing attitude by some (including Justice Roberts of the United States Supreme Court) that the Constitution does not apply in DWI cases.

DIVERT Coercion Revisited

Dane Johnson — Fri, 12 Feb 2010 13:43:36 -0600

In response to Herman Martinez' post and my post about the new rules for the DIVERT Program, Mark Bennett offers another (and I must admit compelling) reason for the changes in the DIVERT Program.

Mark writes,

The DA’s Office is not trying to get more people to reject DIVERT, and is not trying to prevent DWI trials. Rather it’s like a monkey at the controls of a nuclear reactor, pulling levers and pushing buttons without a thought to the consequences.

It does seem that this decision to expedite these cases was made in haste without much thought about the practical aspects of the policy.

My partner had a discussion today with one of the attorneys working in the DIVERT Division and explained how ridiculous this new policy is. In fairness, there was apparently a meeting about this short reset BS yesterday and the policy is apparently being change. We will wait and see, but it does seem once again that Mark's conclusion is right on the money.

Harris County Commissioner's Court Decides Not to Appoint Judges During Executive Session

Dane Johnson — Thu, 11 Feb 2010 11:24:52 -0600

While the appointment of Harris County Criminal Court Judges was on the agenda this week, apparently Harris County Commissioner's Court decided to wait on the appointments until after the primary elections in March. Not sure exactly what happened in the executive session with the Commissioners, but it seems they made the correct decision to appoint after the primary election. This allows the voters to decide who they want on the November ballot. It seems logical that the Commissioners will then appoint the victor of the primary election to fill the vacancies.

I guess we are going to continue to see Neal Richardson in Harris County Criminal Court at Law No. 1 and Henry Onken in Harris County Criminal Court at Law No. 3 for the near future.

Harris County Criminal Courts - Judicial Appointments on Commisioner's Court Agenda

Dane Johnson — Wed, 10 Feb 2010 14:11:20 -0600

According to the Harris County Commissioner's Court Agenda, the Commissioners were going to discuss the resignation of Reagan Helm of Harris County Court at Law Number 1 and appointing new Judges for Harris County Criminal Courts at Law 1 and 3. According to the agenda, the Commissioners were to meet yesterday (February 9, 2010) in Executive Session to discuss the Judicial Appointments for the vacant Harris County Criminal Courts.

Seems like a strange time for this in light of the upcoming primary election (less than 1 month from now). Anyone hear if they actually did appoint anyone to these benches or if they are waiting until a later time? My sources have told me who they thought the Harris County Commissioners were going to appoint, but I have not confirmed yet if they did appoint anyone.

Breath Test Refusal Lands Man in Prison for 3 Years?

Dane Johnson — Wed, 10 Feb 2010 13:07:07 -0600

At least we don't live in Akron, Ohio. According to this report, an Ohio man was convicted and sentenced to 3 years in prison for Tampering with a Government Document for failing to give a breath test after his DWI arrest.

Am I missing something here? How is refusing a breath test tampering with a government document? Doesn't it seem that you would have to actually alter, change, destroy, or manipulate a document in order to tamper it? Even more basic, wouldn't there have to be a document already in existence or one that you fraudulently made to alter or tamper with?

After the verdict, the prosecutor apparently said, "the law is now clear that drunk drivers cannot refuse to take a breath test, It is mandatory, and the jury agreed that Mr. Simin broke that law and deserved prison time. Bottom line: It doesn't pay to refuse to cooperate. It will increase your sentence."

Since when did our Constitution require us to aid in a police investigation? Is the Fifth Amendment to the United States Constitution still around? Funny, I thought we were all protected in our right to remain silent and not aid the Government in convicting us.

Less Resets - More Coercion with the DIVERT Program

Dane Johnson — Mon, 08 Feb 2010 13:29:34 -0600

It seems the new DIVERT Program is again changing without a real reason why. As of last week, the county court prosecutors learned that the DWI cases that may be DIVERT eligible must now be set up for DIVERT no later than the second setting. For the record, the first setting is generally scheduled for 1 week after the arrest. The second setting normally will be approximately 3 weeks later.

The new policy mandates that a person arrested for a Harris County DWI must make a decision about his/her case within a month of the DWI arrest. Mind you, no person charged with any other offense in Harris County has to make a decision within the first month - only those that may or may not want to participate in the DIVERT Program will be required to make that life altering decision this quickly.

It appears that this is more coercion by the district attorney's office to force people to take the DIVERT Program. There are cases where we don't have the offense report or video within a month of the arrest. Without such basic information about the case, how can a person be expected to make a rational decision about his/her case within a month of the arrest? Wouldn't you expect your DWI lawyer to have all information about your case before having to make that major decision?

Is it because the Harris County District Attorney's office has lost so many DWI cases recently? Do they not want us to have the information? Are they tired of losing so many DWI cases?

My questions to the policy makers: What is the rush? Why not let us properly evaluate these cases like the rest of the cases? What are you scared of?

Texas Drunk Driving Campaign - False and Misleading

Dane Johnson — Wed, 03 Feb 2010 14:52:13 -0600

This billboard image was recently sent to me and it reminded me of the Texas DWI campaign,

DRINK, DRIVE, GO TO JAIL

The problem that Houston driver's face - Houston Police officers believe the statement to be true. Unfortunately, the statement is very true for all intents and purposes. Many citizens are arrested simply because they have had a drink, smell like alcohol and are driving.

This is just simply not the law. The law allows a person to drink and then drive so long as they are not intoxicated at the time they are driving.

I believe the Texas Department of Public Safety is not only trying to curb the number of people that drive while intoxicated, but also to taint the jury pool for DWI cases. The state and DPS are purposefully misstating the law on the DPS signs in the hope that jurors will believe that the law is any drinking and then driving is enough for a DWI conviction.

Supreme Court Again Gives Teeth to the Confrontation Clause in Briscoe v. Virginia

Dane Johnson — Mon, 25 Jan 2010 13:59:54 -0600

The Supreme Court of the United States tells the government that the Confrontation Clause does still exist. In a one sentence opinion, the Supreme Court said in Briscoe v. Virginia,

We vacate the Judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U.S. _____.

Previously, I wrote about the Melendez-Diaz opinion. Essentially, the Court reaffirms that we have a right to confront witnesses and not be tried by affidavit or documents. Instead, we get to cross-examine the people that make reports, not just live with what the report says.

Some have speculated that the Supreme Court granted certiorari in this case to see what Justice Sotomayor's position is on this issue. Fortunately for the accused, it seems Justice Sotomayor is in agreement with the Melendez-Diaz opinion.

Is the Driver of this Houston Police Vehicle Intoxicated?

Dane Johnson — Wed, 20 Jan 2010 13:24:23 -0600

I took this photo this morning at the State Office. Presumably, the cop that drove this Houston Police vehicle was at the State Office for an ALR hearing to suspend the driver's license of a person the officer arrested for DWI.

Do you think the officer would consider this a sign of intoxication if the driver was one of our clients? Would he listen to the innocent reason our client had for the reason he parked the entire front of his car on the curb? Would this Houston police officer give our clients the benefit of the doubt? Was this cop DWI? Had he been drinking?

Harris County Judge Sentenced - Judicial Career in Jeopardy

Dane Johnson — Mon, 21 Dec 2009 16:25:14 -0600

Barring an appeal of his conviction for official oppression for offereing to help a DWI defendant in his court get a dismissal of her DWI case, Judge Donald Jackson's tenure as a Harris County Judge is over. Judge Jackson was sentenced to probation that includes 30 days in the Harris County jail as a condition of the probation.

For what it is worth, I always liked Judge Jackson and felt like he tried to do the "right thing" in the cases that I handled in his court. It seems that most of the lawyers that I have spoken to about Judge Jackson have said the same. Hopefully, Judge Jackson's replacement will have a similar outlook on the law and do the "right thing" with the cases that come before him/her.

Smart Start and DWI DIVERT Program - What a Scam

Dane Johnson — Wed, 02 Dec 2009 13:31:48 -0600

What a scam Smart Start has with the the DWI DIVERT Program. As it turns out, one of the requirements of the DIVERT Program is that the person who enters into the contract with the Harris County District Attorney's office is required to go through Smart Start to have an ignition interlock device.

So why is it a scam? Well, many of the Judges in Harris County require as a condition of bond to have an ignition interlock device put in a vehicle as a condition of bond. There are a few companies that offer this service, including EZ Interlock that is run by a friend of ours, John Burns. John has been around the courthouse since long before I started practicing law.

If a citizen decides to go through a company other than Smart Start for the ignition interlock as a condition of bond, he/she will be required to switch companies (cost to be paid by client) to Smart Start if they decide to participate in the DIVERT Program. It seems to me that someone (hint: Smart Start) stands to make a lot of money on this new DIVERT Program. What is the need for someone that has no problems with the ignition interlock device as a condition of bond to change companies? why do they need to absorb the additional cost of changing companies? Seems like a pretty good money maker for Smart Start to me. Wonder who made this monopolized deal go through and if any money changed hands in that process?

Tiger Woods and the Constitution - Even Tiger has the Right to Remain Silent

Dane Johnson — Mon, 30 Nov 2009 11:31:00 -0600

According to reports, Tiger Woods was involved in a single car accident near his residence. The big story seems to be that he is "refusing" to talk to investigators about the accident.

Just a guess, but he probably hired a competent lawyer to advise him on the matter. That competent attorney probably told Tiger he did not have any obligation to answer any questions about the accident and did not have to speak to investigators about the accident.

Remember that document that I write about - The United States Constitution? We as citizens have no duty to talk to the police about anything. Yes, this includes the famed Tiger Woods.

As a Houston DWI lawyer, we have had several clients that have been contacted by the police to get "client's" side of the story. The problem is, the police are often trying to gather evidence to use against that person. In our experience, it is rare that law enforcement contacts our clients to exonerate them. More often than not, the police are seeking information to build a case against the person to whom they are speaking.

If the cops come knocking on your door to speak to you about a crime, I suggest you find a lawyer to help you through that process (even if you have nothing to hide.)

Felony DWI Dismissed after Cop Indicted

Dane Johnson — Wed, 25 Nov 2009 14:08:38 -0600

Remember the Conroe Police Officer that was indicted for falsifying a DWI offense report? Well good news for our client that was arrested by this officer - his felony DWI case was dismissed yesterday.

Our client had absolutely nothing to drink and looked and sounded absolutely sober on the video. He was still arrested and charged with Felony DWI, had to make a bond and hire a Texas DWI attorney. Additionally, he had the ongoing worry of having a felony DWI hanging over his head for several months.

I don't normally write on this blog about our victories. However, I think it is important to show just how easy it is to be arrested for a DWI / DUI. All the cops have to do is say they smell alcohol and that you have not passed the field exercises and you as a citizen, are off to jail. Fortunately in this case, the Montgomery County District Attorney's Office saw through this officer's BS. Based on our years of experience, this calling the officer on his shenanigan and outright lies is the exception, not the rule.

You ever caught a cop lying either in his report or on the witness stand?

Should Judicial Candidates Have Experience Before Becoming a Judge?

Dane Johnson — Tue, 24 Nov 2009 11:47:09 -0600

Mark Bennett wrote about this a while back, but I just looked at the slate of judicial candidates for Harris County Democrats seeking a Misdemeanor Court bench for the 2010 election. Who the hell are most of these judicial candidates? I know I don't know everyone that has stepped foot in the criminal courthouse, but I am there just about every day.

I know most of prosecutors and most of the criminal defense lawyers either by name or face or both. While there are some on the list that I know by either face or name, many I have never heard their names.

The Harris County Criminal Courts at Law handle Class A and Class B Misdemeanors. The majority of jury trials that these courts hear are Driving While Intoxicated (DWI) cases, Assaults and Possession of Marijuana cases. Given that the majority of cases that are tried in these courts are DWIs, Assaults and Marijuana cases, is it too much to ask of these candidates that they have tried a few DWI, Assaults or Marijuana cases before running for the bench?

What is Brady Material? Here's a Simplified Definition

Dane Johnson — Fri, 20 Nov 2009 13:58:13 -0600

It seems that Brady material is an ongoing problem with the Harris County District Attorney's Office.

I offer this on behalf of Jordan Lewis in our office. His simplified definition of Brady material is something like this -

If a prosecutor learns something about a case and his/her first reaction is, I hope the defense lawyer doesn't find out about this, then it is probably Brady material.

This is to all of the young prosecutors out there, if there is any question about whether something is Brady material or not, turn it over. As a matter of fact, if you are trying to convict someone and take away his/her freedom, don't you think it is fair to give the defense everything you have - especially the information that tends to show he/she didn't do it?

Coercing Defendants to Plea with the DIVERT Program

Dane Johnson — Wed, 18 Nov 2009 15:25:17 -0600

As predicted, the DIVERT Program is turning into a coercive program.

Yesterday, I asked a prosecutor to evaluate a DWI case. He asked, "for the DIVERT Program?" I replied, "No, I would like for you to evaluate it for the other 'D' word, a Dismissal." The prosecutor then told me that he was under orders form the "higher ups" that if they evaluate a case for trial, they will no longer be offering the DIVERT Program.

We, the Houston Criminal Defense Bar, specifically asked the Honorable Roger Bridgewater about the office's position on evaluating cases when the Harris County District Attorney's office initially spoke about the DIVERT Program. Judge Bridgewater specifically told us that the cases that need to be dismissed will be dismissed. How in the hell is the prosecutor going to know if the case needs to be dismissed if they don't evaluate the case? Am I missing something, or have they changed their policy?

I hope this prosecutor is wrong. I hope Judge Bridgewater is standing by what he told us several months ago that being that his prosecutors are going to first evaluate the merits of the DWI cases before offering the DIVERT Program.