Austin DWI Lawyer

Witness Chicken (The Police Version)

Jamie Spencer — Wed, 03 Feb 2010 14:39:55 -0600

Maybe your client is guilty. Maybe it will be easy for the State to prove that your client is guilty. That is, if they can get their witnesses to show up.

There are all sorts of reasons that defense lawyers set cases for hearings and trials, not the least of which is that they expect(well… hope?) that a judge will suppress some or all of the evidence, or that a jury will find their client not guilty.

Occasionally a client will even volunteer this as the solution to their problems, “What are the chances that so-and-so won’t show up, and my case will be dismissed?”

For now, I’ll ignore the ethical issues that answering that question raises, and focus on one small aspect of it. The answer depends greatly on whether or not the witness against your client is a police officer or a civilian. The chances of winning witness chicken when the only folks the State needs wear a badge and a gun are substantially less than if they don’t. Part of every cop’s job description includes “professional witness,” and they even take classes to learn how to do it.

So what are the chances that an officer won’t show up to testify in a pretrial suppression hearing? Usually pretty slight. But a cynic might say there are other factors to consider, such as… what your client does for a living. Is the answer different if your client is also part of the thin blue line?

From “Texas Officer Catches Break in DWI Case; Arresting officer is no-show for court”:

An Hidalgo County judge killed a McAllen policeman's criminal case after one of the defendant's fellow officers failed to appear in court and testify against him, court records state.

Judge Jay Palacios of Hidalgo County Court-at-law No. 2 dealt a "fatal" blow to the prosecution's case, Hidalgo County District Attorney Rene Guerra said, when he granted a motion to suppress evidence in Officer Alex Alvarez's pending case on a charge of driving while intoxicated.

No witness, evidence suppressed, case closed. Until the newspaper called, and the D.A. had to come up with an explanation.

District Attorney Guerra said he learned Wednesday that the case was set for dismissal when a Monitor reporter contacted him about the matter. Guerra said he would ask Palacios to reconsider his decision to suppress the evidence in the case.

"Legally, I don't know if he can reconsider it," the district attorney said. "I don't know until I try."

But why the arresting officer missed the court date remains unclear.

Did the state even ask for a continuance? According to the article, “McAllen's Police Chief Rodriguez said he believed the officer was hospitalized.” In Austin, prosecutors will ask for a continuance at a first setting, even if they have no idea why their witness isn’t there, and it will usually be granted. One time any way.

Did that happen in this case? And if it regularly happens in that court, but didn’t this time, what made this case different from any other?

SCRAM Violation? Maybe, Maybe Not...

Jamie Spencer — Fri, 22 Jan 2010 20:49:46 -0600

From an out of state commenter:

I received a summons today to appear in court next week. The papers did not even include what the appearance would be for. I have been on the SCRAM bracelet for two months now. This is the second time that I have been notified of violation of the bracelet.

The first was just a failure to download. I just received a prerecorded phone call for that violation, "no biggy." Today when I called the court house to find out why I had to appear, I was informed it was a violation from SCRAM.

I then called SCRAM. I asked what the violation was and when it occurred. She informed me that the violation was tampering, then implied that I had stuck something between the bracelet and my skin.

I have a witness that knows that I was not drinking. I know this does not matter because our judicial system fails all the time and has already convicted me of this DUI that I was
innocent of. I have come to terms with the fact I was found guilty of the DUI. How am I supposed to come to terms with being violated for something that I did not do?

My bracelet is often too tight or way too loose. I also suffer from the scratches and cuts caused by the bracelet. I am female and I know that water weight and bloating are causing the scratches and cuts. I think it has also caused the tampering violation.

The only way something was placed in between is if it happened while I was sleeping.

I understand your cynicism about the system, but it is too early to despair. SCRAM devices are a subset of devices, aka machines, and are far from infallible. For example, check out D.A. Confidential’s full post entitled “A Fine Piece of Lawyering”. It tells the story of a supposed SCRAM violation and the defense attorney that wouldn’t quit until his client’s pleas of innocence were finally vindicated.

First, the accusers:

…the people responsible for the SCRAM came into court.

They showed [the judge] their proof, a print out of a black-and-white graph.

On that graph were two lines, one showing whether the SCRAM had been tampered with, one showing whether Mr. Smith had been drinking. Both lines spiked. Thank you SCRAM people, Mr. Smith stays in jail.

Ah, but was that what really happened? Did the defendant really violate his terms of release, or was it possible that – despite the SCRAM company line – he was innocent of wrongdoing?

So [the defense lawyer] went back to the SCRAM office and obtained another copy of the graph. But he made to sure to get a print out in color, not just a photocopy. Lo and behold, the color graph contained three lines (as opposed to two), each a different color:

one showing whether Mr. Smith used alcohol

one showing whether Mr. Smith tampered with the SCRAM

one showing Mr. Smith's body temperature

The spikes were in the bottom two lines, the ones showing body temp and tampering. The line showing his alcohol use was a flat-line at the bottom of the graph, and had been mistaken by everyone as the baseline, the line you'd draw at the bottom of every graph.

Ooops. Mr. Smith had not, it was now clear, used alcohol.

How does this apply to the commenter’s situation?

But that still left the tampering spike. Well, the ever-diligent [defense lawyer] obtained the second page of the SCRAM report, which showed examples of spikes when the SCRAM had aluminum shoved under it, a wet cloth stuck under it, and when a sock got stuck under it.

Guess which it was? Right, the sock.

DAC’s post goes on to say that the SCRAM folk showed back up in court and “accepted responsibility” for their mistake. Really? What might that entail? Giving this poor fellow whatever he spent on attorney’s fees? Maybe turning back the clock and not jailing him in the first place?

If “accepting responsibility” means showing up in court and telling the judge what he already knows, that is, that you presented yourself as an expert but don’t know what you’re talking about, don’t know how to read your own company’s “graph charts”, and unfairly incarcerated someone, then perhaps they did. I don’t know, I wasn’t there.

So, to the commenter, get a lawyer who will bring your witnesses to court, and who knows how to track down the rest of the story, who doesn’t accept whatever the company line is at face value, and you just might be alright.

Good luck.

DWI Defendants Are Coming! Away! Which Way?

Jamie Spencer — Wed, 30 Dec 2009 10:47:30 -0600

Just in from a marketer via email, with the title line “Thousands of DUI Defendents are Coming!”:

Because we are the #1 Google ranked DUI/DWI website, thousands of DUI/DWI defendents[sic – I couldn’t bring myself to misspell it in the title of my post though] will come to our site next week looking for an attorney. Will you get your share?

Just one case will pay for your Membership many times over. Please respond to this email now or call (123) 456-7890.

I haven’t linked to the “nationwide network of DUI defenders” that sent me the email, not wanting to hand out any undeserved Google love. But from a quick click through to the site – I had to look - the amusing thing, at least from my perspective, is that it tries to sell both potential clients on member lawyers, and potential lawyer clients of the network on paying the site to list them.

It’s super obvious that there is absolutely no screening of the lawyers whatever. If you pay the fee, you are listed, and then become (simply by virtue of sending them money):

…expertly familiar with all the intricacies and nuances involved with DUI offenses. This index of lawyers will take you through them step by step, explaining testing, sentencing, jury trends…

Do the recently arrested who comb the internet realize: a bar card and some money makes any and every lawyer an expert?

The Will Of The People

Jamie Spencer — Fri, 06 Nov 2009 17:05:17 -0600

Here’s the text of the resolution, along with my running commentary , on last week’s City Council agenda regarding the possibility of Austin police officers - instead of registered nurses or otherwise medically qualified and trained personnel - collecting blood specimens from DWI suspects:

WHEREAS, the State of Texas allows peace officers to collect breath and blood specimens as evidence for prosecuting people suspected of operating a motor vehicle while intoxicated through Texas Transportation Code §724.012, and Texas Code of Criminal Procedure Article 18.01; and

Since there’s already an implied consent statute, and a law governing search warrants…

WHEREAS, Austin’s police force consists of highly trained law enforcement professionals whose compensation is commensurate with the specialized public safety service they provide; and

This is harder for me to translate. Maybe something on the order of: the police are already well paid for the job they have been taught to do…

WHEREAS, the safe collection of blood specimens requires separate specialized public health training and ongoing yearly medical education in order to ensure healthy and accurate phlebotomy; and

Cops are cops not phlebotomists. And a few hours of “training” them to stab people with needles won’t change that.

WHEREAS, such training is geared for clinical health technicians consistently practicing phlebotomy on a daily basis in a controlled public health setting with emergency health services close at hand;

Four or eight or twenty four hours worth of “classes” isn’t enough to properly teach police officers how to draw blood safely…

NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF AUSTIN: In order to protect the health and safety of officers and suspects, the City Manager is hereby directed to bar Austin Police Department officers from conducting phlebotomies.

Don’t Do It! Make sure Austin Police officers are not allowed to stab suspects, make the nurses do it. Period.

It was a great resolution, but instead of passing, there was some big fake brouhaha instigated by the City Attorney about how the resolution would conflict with state law because officers are required to “use all lawful means” to enforce the law. From the Statesman:

Austin city council members, in a unanimous vote, approved a resolution today that said it is their “clear will” and the community’s desire that police officers not personally collect blood from drunken driving suspects — an idea Police Chief Art Acevedo had floated for months.

The resolution stopped short of directing City Manager Marc Ott to ban such draws, which had been the original proposal by council members Bill Spelman and Laura Morrison and Mayor Lee Leffingwell.

First and foremost, it is indeed clearly “the will of the people of Austin” that police not forcibly take blood samples from suspects. I have no doubt of that. But not passing the resolution as originally written shows the Council to be out of touch, or perhaps just easily bullied by the Police Department.

Besides, if they “can’t” pass a resolution banning the police from sticking the needles in themselves, because that would “conflict with state law”, why is it kosher to express an opinion that would conflict with that same non-existent law?

A Not So Anonymous Tip

Jamie Spencer — Tue, 03 Nov 2009 09:45:26 -0600

The 911 call:

Caller: Somebody's really drunk driving down Granton Road."

Dispatch: Okay are you behind them, or...

Caller: No, I am them.

Dispatch: You am them?

Caller: Yes, I am them.

Dispatch: Okay so you want to call and report that you’re driving durnk?

Caller: Yes.

…and the police report speak for themselves, I guess:

On Saturday October 24, 2009 at about 11:23 p.m. I was dispatched to Granton Rd. Near Miller Ave. to a possible intoxicated driver. Dispatch said the caller Mary [Name Redacted] called stating she wanted to report a drunk driver which she said was herself. Dispatch informed me Mary said she pulled over along the road and turned her emergency flashers on.

…Mary said then began driving home alone in her vehicle until she called the Sheriff’s Department to report that she was driving drunk…

Let’s hope she gets some credit from the prosecutors for “doing the right thing”.

Sprung From Cages Out On Highway Nine

Jamie Spencer — Wed, 16 Sep 2009 00:02:48 -0600

From the “Tramps Like Us” version of passed-out-while-intoxicated comes this “DWI” arrest out of New Jersey:

A Holmdel man was charged with driving while intoxicated after police found him lying on the grass near his parked car, police said today…

Officer Paul Papamarkos was on patrol around 4:15 a.m. Friday when he found [Defendant]'s car parked on Loantaka Way, near a walking path. As he was checking out the vehicle, a 9-1-1 caller reported a man lying in the grass a short distance away.

After a brief search, Papamarkos found [Defendant] lying on his face in the grass. He was found to be highly intoxicated and arrested, Dachisen said.

I’m going to try to get the PC affidavit, or whatever the New Jersey equivalent is on this one. I’m betting it says he told the police he was driving home, then stopped his car, turned it off, got out, laid on the grass and went to sleep.

They’re going to try to use the admission of driving against him to prove “operating a motor vehicle” – or whatever that part of the statute says in the Garden State. More when I track down the PC.

Do Cops Get To Make Up New DWI Laws?

Jamie Spencer — Mon, 24 Aug 2009 10:50:33 -0600

The Dallas Morning News Crime Blog ran a story recently about stepped up DWI enforcement for a holiday weekend:

The message: If you drink and drive during the Labor Day holiday, you will go to jail.

That's the word from local law enforcement and the Texas Department of Transportation which launched its anti-drunk driving campaign in the Dallas/Fort Worth area Friday morning…

"Drunk driving is a serious issue, and we intend to come down especially hard on drunk drivers during the two weeks leading up to Labor Day holiday," said North Richland Hills police Sgt. Neal Maranto. "If you are drinking and driving, you will be pulled over and you will be arrested.”

Two commenters immediately noticed the substitution of “drinking and driving” for “DWI”. (They are not the same thing.)

Posted by TexasYellowDog @ 4:33 PM Sat, Aug 22, 2009

"If you drink and drive during the Labor Day holiday, you will go to jail."

Why's that? Drinking and driving aren't illegal. Do the cops get to make up new laws because it's a holiday?

and

Posted by retry @ 10:21 PM Sat, Aug 22, 2009

...also- as YellowDog correctly points out, there is a HUGE difference between "Drinking and Driving" and "Driving While Intoxicated."

DWI is illegal. Drinking and driving is not. Confusing these two does not help anyone.

I don’t begrudge the police spokesperson trying to discourage DWI or drinking/driving, although the second is not always unlawful. But these two comments from public readers show why conflating the two is ineffective, possibly even counterproductive.

When you obviously lie to folks about part of your message, the truthful parts are more likely to be ignored. Then again, DWI lawyers might tell you that the police are inadvertently being truthful; that is, they do indeed arrest everyone who drives with an odor of alcohol on their breath, even though that is not against the law. It’s just a bad idea.

The Last Thing You Need When You're In Trial

Jamie Spencer — Thu, 13 Aug 2009 21:53:51 -0600

…is to check your iPhone during a break and realize that one of your so-called friends has snapped an unfavorable picture of you crossing a deputy and sent it out via email to everyone you know.

I’m blond, so sometimes my hair looks see-though, right? I’m not balding yet, am I?

DWI Dismissal Could Lead To Removal Of Ignition Interlock Device

Jamie Spencer — Thu, 23 Jul 2009 21:54:44 -0600

Proving that the Wichita Falls Times Record News Online is just a little behind what most people would consider news, a few days ago they ran a story titled “First Offense May Require DWI Device”:

Repeat drinking and driving offenders in Texas know the hassle that comes with the advanced charges, but soon, first-time offenders, too, could face a tougher crack down.

Texas state legislation mandates that repeat offenders be ordered to have an ignition interlock installed on their vehicle as a condition of their bond.

However, that could change soon, as legislators are looking at amending the law, making the interlock a requirement on the first offense.

Actually, the legislative session is over, and I’m pretty sure House Bill 1110, which would have done just that, was left pending in committee, which is fancy legi-speak for “went nowhere”. I say “pretty sure” because Texas has some funky procedures regarding the Governor’s ability to call special sessions for certain issues, but I haven’t heard of one for this… yet. Not saying it couldn’t happen.

At any rate, I found this tidbit from the article amusing. Sometimes journalists like to rile their readers up, let ‘em know what sorts of outrageous consequences there could be if a bill doesn’t pass:

For some, the device is only a temporary inconvenience.

Being a condition of bond, the suspect could be allowed to have the device removed if the case is dismissed, or the terms of the conviction or probation don’t mandate its use.

That’s right folks! You get arrested, not convicted but just accused of DWI second in Texas, and you’re going to be required to put an interlock on your car. But as the law stands now… if the state dismisses your case (or, and the article doesn’t mention this, but hey, this is bad law too) if you are acquitted…

Under current law, you are no longer required to have the IID on your car. Imagine that. The horror. Better call your legislator and, well, tell them what? Rewind time and get this bill out of committee?

Do Prosecutors Trust The Intoxiliar 5000?

Jamie Spencer — Thu, 09 Jul 2009 00:12:45 -0600

Well, Eric Dexheimer, on the Statesman’s Focal Point blog, actually asks the question “Do prosecutors walk the walk with DWI breath tests?”. The answer, of course, is usually a resounding “Hell No!” but a more interesting question is – if you believe me that the answer is “No”- then “Why Not?”

Could it be that as lawyers intimately involved in the criminal justice system, that they know their rights, and when to exercise them?

If the Death Penalty Capital of the World Can Do It...

Jamie Spencer — Sun, 31 May 2009 22:18:12 -0600

Harris County DA Pat Lykos has announced that she will allow first time DWI offenders to apply for Pretrial Diversion and/or be eligible for a Deferred Prosecution:

Harris County District Attorney Pat Lykos announced plans Friday for a program that allows first-time DWI and drug offenders to avoid conviction, an idea she acknowledged could be a hard sell to the public.

The plan, referred to as pretrial diversion and scheduled to begin in August, was heartily endorsed by the county’s defense attorneys, supported by the sheriff deputies’ and the Houston police officers’ unions, but strongly opposed by the local chapter of Mothers Against Drunk Drivers.

“What we’re trying to do is prevent recidivism. So, it’s a carrot-stick approach,” Lykos said. “With respect to DWI, that’s an absolute plague in Harris County. If we can get first offenders, get them into treatment … and divert them so they don’t become repeat offenders, that’s going to have enormous dividends. And the same thing for first-time drug possession.”

This move was, and I know I’m repeating myself here, “supported by the sheriff deputies’ and the Houston police officers’ unions”. For all you law and order folks out there, doesn’t that endorsement convince you that it can’t be an all-bad idea, can it?

Heck, even Williamson County, not known for its soft-on-crime reputation allows DWI defendants with no prior criminal history to apply for what they call Pretrial Intervention – the same thing as Travis County’s Pretrial Diversion.

Isn’t it about time the progressive folks in charge of our Travis County Attorney’s Office here in Austin do the same thing?

Missed It By That Much

Jamie Spencer — Fri, 01 May 2009 09:10:08 -0600

I should know better than to get my hopes up.

Yesterday morning, my client’s DWI was set for a pretrial conference. That’s the last setting before a contested pretrial motions hearing in Travis County. But it doesn’t get set for pretrial motions until the complaint and information (official charging instrument in a misdemeanor) have been filed at the county clerk’s office.

This was – hang on, let me go check my calendar – the 27th time my client’s case was set on the docket. Which is a lot – but, no complaint and information, it just keeps getting reset about once every 3 or 4 weeks for another status check.

Today was 732 days after my client’s arrest. Two years and two days after. The statute of limitations for a misdemeanor DWI in Texas – which applies to the filing of the charging instrument only – expired two days ago. But this morning when I looked in the clerk’s file, the C&I was there. It had been filed in between the last two settings, just under the two year deadline.

Sigh.

That’s OK. Now I’ll just have to earn my fee the regular way.

Maybe It Should Be The Law, But It Isn't

Jamie Spencer — Thu, 02 Apr 2009 17:09:43 -0600

Over two years ago, I wrote a post called “The Implied Consent Fallacy”. In the essay I objected to the legal fiction that everyone knows they are consenting to give a breath or blood test when asked by the police, simply by virtue of applying for and accepting a Texas Driver’s License.

Semi-anonomous first time reader “Jason” weighed in recently with this comment:

It's a good law. Bottom line, don't drive after consuming alcohol.

Simple enough, why don't they get it? Too bad there are attorney's [sic] who defend these people of lower than average intelligence.

Well, Jason, despite the fact that you missed the entire point of the post itself, let’s address your point. It seems to be that you think:

Driving after consuming alcohol is illegal…

and that therefore,

You deserve to have your license suspended…

even if the suspension is predicated on the falsehood that you knowingly and willingly agreed to provide a breath specimen when you got your driver’s license.

Just one problem with your theory… taint so. It is not illegal to consume an alcoholic beverage and get behind the wheel in Texas. You can make a good argument that it should be; but until you change the law to make it so, your premise is 100% incorrect.

One last thing. I often edit people’s grammar and spelling errors in comments, but given this particular combination of double ad hominem attack with a healthy dose of self righteousness I decided to let your comment stand as is.

Questions: One Always Seems to Lead to Another

Jamie Spencer — Mon, 16 Feb 2009 23:13:20 -0600

My internet stats program for this blog - Mint - keeps track of IP addresses associated with various searches as well as other interesting (if you’re a geek) tidbits of information. Tonight I saw the following string of searches, which started five weeks ago:

How long does a DWI case take in Travis County?

Of course the answer to this question, like all of those that don’t provide enough information to properly answer, is… it depends. But let me see if I can do better than that anyway. The discovery process – getting the video, offense report, intoxilyzer records if it’s a breath test case, and sitting down at least once to substantively chat with a prosecutor about your case? – will take at least three to four months, sometimes longer.

Several more uncontested settings and at least one contested pretrial setting on a motion to suppress can be several more months, depending primarily on availability of the officer and your lawyer’s schedule.

How long will you be on the jury docket if you don’t work out a plea? I talked to a client earlier today and his case is a year and half old. We are just now bubbling to the top of the jury docket in that court. (I’d say that’s a little unusual, but it’s by no means record-setting either.)

Next search, some time later, same IP:

Travis County DWI No Contest

Can’t tell if this is part of a “do I have to hire a lawyer” stage. Since the first search is only five weeks ago, it seems a tad early to be hearing this from your lawyer, but who knows? Maybe it’s just ‘background’ research on what happens. Next query:

Transcripts of ALR hearings

Seems like something a lawyer might Google if they were trying to learn some good cross examination questions. Or maybe the client wants to know how much something like that might cost. Next search, a little later still:

What if officer does not appear at ALR hearing?

A lawyer would know the answer – I hope – to this one, so maybe this really is a defendant trying to figure out how things work. Assuming the officer has been properly subpoenaed, and DPS doesn’t have ‘good cause’ for his absence, it should be dismissed. (But don’t hold your breath – I’ve objected to and been overruled on some pretty flimsy ‘good cause’ issues at SOAH.)

What if my attorney did not get an ALR hearing?

Well now things have taken a turn for the worse. The next search/same IP provides us some insight into the mystery:

My attorney did not request ALR because I passed breath test did not take a blood test

“I see,” said the blind man. I think I’ve figured this out. You told your lawyer that you passed the breath test – blew under .08 – and I hope for your sake that you told him about the blood test part.

Was your license confiscated? Did they ask for blood after you passed the breath test? If you refused the second test, they may have issued the DIC paperwork and started the license suspension process. Including that 15 day period you’ve been reading about – at least since you started doing your own internet research.

I think it’s good advice for the lawyer to request an ALR in every case, including when the potential client comes in and says, “I passed the test”. First, I’ve had cases where clients told me, “They said I blew .07”, but we find out later there was some confusion about the “.0” part. (i.e., “.17”)

Second, if DIC paperwork was issued, it has to be done. DPS is basically just a big bunch of computers. There are humans too, of course, but by and large they are there to correct the computer errors. Some clerk receives a Notice of Suspension from a police agency, enters the info, and that 15 day time limit starts ticking.

Third, DPS considers passing the breath test but refusing the next round of blood tests to actually be a refusal. And more importantly, back to point number two, if the computers were fed the information about the notice of suspension, and you/your lawyer didn’t do anything then the “Automatic” License Revocation kicked in.

Something like this came up recently – although I can’t find the email so the details might have differed - on either the Texas criminal defense lawyer listserv or the Texas DWI defender listserv, and Houston DWI lawyer Troy McKinney properly referred the questioner to Texas Transportation Code 524.012:

(1) the person is an adult and the analysis of the person's breath or blood specimen determined that the person had an alcohol concentration of a level below that specified by Section 49.01(2)(B), Penal Code, at the time the specimen was taken;

Unfortunately section (d) continues:

(d) A determination under this section is final unless a hearing is requested under Section 524.031

So it’s a moot point without the request. Sounds like your lawyer woulda, coulda, shoulda… Or maybe I’m missing something, who knows?

Update: New search since writing and posting…

Can one appeal dwi license suspension Travis County?

Uh, not successfully, if the hearing wasn’t requested in the first place. (Texas DWI lawyers please chime in and tell me I’m wrong; and more importantly, how to do it. I can’t tell you how many people call me after the 15 days. Ughhh.)

Can You Flag Down That Prosecutor For Me?

Jamie Spencer — Fri, 13 Feb 2009 22:30:17 -0600

I was in District Court most of the morning and saw an interesting set of events. As they unfolded, I paid more and more attention, but I’m sure I missed some details at the beginning. Here goes:

First: A prosecutor, a cop, defense lawyer Oscar Buitron, and the defendant at the bench. Testimony was being taken in a DWI case. Something about a CAD report and whether or not the officer really had called in to dispatch to check the license and registration on a vehicle as he had previously sworn under oath.

I suspected, and later confirmed, that it was some sort of continuation of a pretrial hearing that had already occurred. The officer was insisting that he indeed had called in to check the vehicle, but he was squirming, uncomfortable. Just a little bit. He’d testified before, so he was almost holding his own.

But it was obvious from the questioning that Oscar thought he could prove the officer was being… let’s say… untruthful. And more importantly that he had the goods to prove it. Then out came the CAD report itself (of course).

I had other things going on, but my interest was piqued and I managed to catch something about “if you press this button here”, “then you press that button there”, “blah blah blah”. They were up at the bench, no microphones, I didn’t catch everything being said.

After testimony concludes, there’s some chatter about resetting it to another-another-pretrial setting so that Oscar can bring in some more witnesses (APD officers no less) who will be able to show that the arresting officer’s testimony – that he had called it in, that dispatch had called him back and said the registration wasn’t current, but that he had then manually deleted that information from the CAD report itself – was impossible. (Never mind nonsensical. “Gee, let me take some time out of my busy day to erase the confirmation that this was a good stop.”)

Second: Probably 15/20 minutes later I’m chatting with that prosecutor about something completely unrelated, and the bailiff walks up to him and says, “The officer wants to talk to you”. He motions to the jury room. The prosecutor excuses himself from our conversation and leaves.

Third: Another half hour later… the defendant is back at the bench entering a plea. To back time on a misdemeanor.

Now I don’t need to see parts one and two to know that as a general rule when a defendant walks up to the bench in Felony Court and pleads to a misdemeanor, that he’s getting a significantly above average deal in his case. Never mind that it was back time: no probation, no more jail. Oscar was obviously well prepared and had gotten a good result.

By the way, I left it out of the initial description, but the prosecutor had brought out other traffic violations for the court to hang its hat on, so this was – despite the testilying – no slam dunk win for the defense.

I talked to Oscar afterwards (who among us doesn’t love it when one of our brothers or sisters ekes out a victory) and found out some more details. It was a habitual case. The defendant had (at least) two prior pen trips and was looking at a minimum of 25 years if convicted on the indictment.

More invigorating (perplexing? commonplace?) still was that Oscar hadn’t known this would pop up during the first pretrial. The officer had already listed in his PC affidavit, and testified to traffic violations that weren’t demonstrably false, when he decided to just “add” the testimony about calling in the license to dispatch. (This is a favorite police “excuse” in my experience. Which is foolish because it’s one of the easiest to catch them on.) Nothing mentioned about it though in the PC or the offense report.

Oscar’s BS detector went off. He asked the judge to continue it, rechecked the tape which confirmed his memory that the officer appeared to discover that the vehicle was unregistered well after the stop, and ordered the CAD.

Mostly though, it’s that second step listed above that intrigues me so. The cop in the back room sweating and “needing to talk” to the prosecutor.

What exactly did that officer tell the prosecutor, when the bailiff alerted him that he needed to “confer”? I’ve never worked for the State, so I can only imagine the possibilities…

“Hey I’m not sure how intoxicated he was after all. Can you work out a deal?”
“Please drop this case… I don’t want to come back on it. Ever.”
“Quick question for you… what’s the penalty for perjury again?”

A Feisty Question About Refusing the Breath Test

Jamie Spencer — Fri, 06 Feb 2009 11:16:20 -0600

Despite the banner proclaiming that the writer “won’t hide behind an alias” I couldn’t figure out the blogger’s name; his alias is Feisty – or based on the URL, is it perhaps Feisty Geek? – but he sure brings up a good point in his “DWI Hypothetical”.

The hypo assumes that Joe Blow gets stopped by the police while driving, investigated for DWI, refuses (politely, we hope) to do any of the proffered field sobriety tests, and then, after being arrested is asked whether or not he wants to take a breath test:

The officer then asks Joe to take a breath test for intoxication. Joe's thinks for a moment, and responds:

Joe: Am I under arrest?

Officer: Yes

Joe: Do I have the right to remain silent?

Officer: Yes

Joe: Do I have the right to an attorney before I answer any questions?

Officer: Yes

Joe: Well, I now invoke my right to remain silent and to have an attorney before answering any questions.

Officer: Will you submit to a breath test?

Joe: Officer, that sounds like a question. I have already said that I invoke my right to counsel before answering any questions.

Officer: Huh?

Great hypothetical, and we can see where the lay-legal reasoning is leading us. Heck, it’s where the legal-legal reasoning leads me too.

If I’m under arrest, and I now have the right not to answer any questions without an attorney present, I probably shouldn’t answer questions without legal advice. Especially questions like “Will you take the breath test?”

Sounds like this is exactly the situation where I should consult a lawyer familiar with DWI procedures. Feisty continues and takes a stab at answering his own hypothetical question:

If you don't refuse the test, but instead just refuse to answer the officer's question as to whether you will take the test, that might not pass muster as a refusal, particularly when you've invoked your constitutional rights as the basis for not answering the question.

Anyone know if this might work?

Unfortunately, at least in Texas, there is caselaw directly on point that is not favorable to this position, at least from the DWI suspect’s standpoint. A refusal to answer the question at all is “taken as” or “deemed to be” a refusal. And that will hold up in an ALR hearing. And on appeal.

Alas our Joe Blow is tagged with a 180 day No-Blow ALR refusal driver’s license suspension. Well, 180 days… assuming it’s a first time DWI. There’s a potential enhancement to a full two years if our hero has a prior alcohol related contact.

But Feisty hits the nail on the head with his last observation:

Obviously, anyone coherent enough to go through that conversation without slipping up probably isn't that intoxicated, even though they might blow a .08 if they tested.

Exactly. The DIC-24 Statutory Warning reads “If you refuse to give a specimen, that refusal may be admissible in a subsequent prosecution.” The intent is to blackmail the suspect into giving a sample.

But in fact, as Feisty points out, it’s just as easily evidence that you are not intoxicated.

But Officer, I Can't Do That When I'm Sober (A True Story)

Jamie Spencer — Sat, 31 Jan 2009 21:49:59 -0600

Several years back I took the same class that police officers take to become certified to administer the Field Sobriety Tests. It’s not an impressive feat; I just did it to learn more about DWI defense.

The class was taught by Troy Walden and Lance Platt, two ex-police officers who, then and now, specialize in helping lawyers defend DWIs in Texas. It used the same manuals, and they themselves were certified Instructors, so it was pretty much identical in every aspect. (I’m tempted to say the students probably paid more attention than some officers do, but I can’t scientifically prove it.)

The three day class even included the part where we the students administer tests to some subjects before and after drinking. That’s right. They bring them in with nothing to drink. All subjects get the HGN, Walk and Turn, One Leg Stand. Then, while the students go on to some other rigorous examination of FSTs, the subjects sit at a bar and get dosed with alcohol.

In other words, someone sits there and buys them drinks. Then they come back and do the tests all over again.

I was reminded of this experience when my longtime friend and office mate, as well as fellow Austin DWI lawyer Lance Stott wrote this post about his experience as a guinea pig:

My role, difficult as it was, was to be a test subject, get drunk, and then take the tests again. It was a tough job, but somebody had to do it.

I’m a little bit clumsy by nature. I didn’t listen to the instructions all that well, and performing the tests in front a group of people gave me a case of nervers. Long story short: I bombed.

I took the wrong number of steps, started before I was instructed to, did the turn improperly, and I think I stepped off the line, as well. There are 8 clues on the walk and turn, and I think I got them all.

I was there. On the second day of class they had asked if any of us could bring in our friends to be subjects, so I asked Lance if he wanted to come, and he agreed. So I designated-ly drove him to and from the class. (Another lawyer brought a friend from one of Austin’s local “bars”; she scored terribly on the tests before and after.)

I don’t remember whether he got all eight clues, but I do remember he did terribly on the first – i.e. sober – attempt. I specifically remember him getting the number of steps wrong, even though I knew he knew it’s called the nine step walk and turn.

As an aside, I also remember that someone, not Lance, had natural nystagmus in one eye. Everyone ooohed and aaaahed, as that poor guy got HGN’d to within an inch of his life. Everyone had to see it.

Police officers, when asked about natural nystagmus, will pooh pooh it in that tone of voice that let’s you know only about ten people on earth probably have natural nystagmus, and all of them know it and will announce that before they have the HGN administered to them. Apparently one of the ten just randomly made it into our class. And, no, he had no idea he had visible nystagmus at all times in one eye. But I digress.

Back to Stott. How did he do after the trip to the bar?

The second time around, I did much better. I began when I was supposed to. I took the right number of steps. I touched heel to toe, and I even did the turn more or less the way you’re supposed to. (By the way, nobody ever does the turn right.)

What happened? Well, after my trip to the bar, I wasn’t the least bit nervous anymore. More importantly, this was my second time around. I’d had a bit of practice, and this time I knew what they were looking for.

Right again. That’s exactly how it happened. I was the witness. I don’t remember the second time around HGN results for him, but other than that, I think he got zero out of eight clues on the Walk and Turn, and either zero or one clue - a passing score - on the One Leg Stand after being dosed with alcohol.

Go figure.

Goodbye Retrograde Extrapolation for Breath Test DWIs?

Jamie Spencer — Mon, 19 Jan 2009 10:57:16 -0600

In order of most to least common, the 3 basic defenses to DWI in Texas would be:

Not Intoxicated
Not Driving
Not Driving While Intoxicated

I might be wrong about “Not Driving” being a more frequently viable defense than “Not While” but the third is still probably the least known to laypersons. The short version of the defense goes like this: Maybe there’s an accurate breath test over .08, but it’s barely over, and since the defendant’s BAC could have been rising between the time of the stop and the time of the Intoxilyzer results… reasonable doubt exists as to whether he was under .08 at the time of driving.

From an earlier post, DWI and the "While" Defense:

The point is that having a BAC of .085, for example, 30 to 45 minutes after the driving, does not in and of itself prove that the defendant was driving while intoxicated.

Depending on various factors, primarily the particular drinking pattern that night and the stomach contents, it is possible for the Defendant’s BAC to be higher at the time of the test, than it is at the time of driving. It is also affected by variations in human physiology as well.

This is most likely in scenarios where the defendant’s last drink was very near the time of driving; which - given what often happens at closing time - is not an unlikely scenario at all.

This isn’t just some crazy DWI defense lawyer theory here either – it’s both basic common sense, and basic science. So basic, that even the CMI manual for the Intoxilyzer 500 (used for breath tests here in Austin) admits that the defendant’s actual breath alcohol content at the time of the test may be “higher than, lower than or the same as” the BAC at time of driving.

So what’s the State to do when confronted with common sense and basic science telling them that “over .08” is sometimes “less than .08”? Change the rules, that’s what.

Proposed House Bill 170 attempts to ruin two of my favorite statutes (Code of Criminal Procedure 38.22 and 38.23) by following them up with a new section 38.24:

Article 38.24 Evidence of Alcohol Concentration

(a) In this article, “offense relating to the operating of a motor vehicle while intoxicated” and “offense of operating a watercraft while intoxicated” have the meanings assigned by Section 49.09, Penal code.

(b) For purposes of the prosecution of an offense relating to the operating of a motor vehicle or watercraft while intoxicated, it is presumed that the person had an alcohol concentration equal to or higher than 0.08 at the time of the offense if that level of alcohol concentration is shown by an analysis of the specimen of the person’s breath, blood, or urine taken from the person not later than 90 minutes after the time of the person’s arrest.

Retrograde extrapolation is the mathematical/scientific process by which an estimated BAC range for the time of driving is deduced/guessed by taking the BAC at the time of the test, the time since driving and other factors. These factors include when the suspect drank his last beer, .eg., to his last meal, and other considerations.

These are ultimately unknown factors no matter what the pre field sobriety test interview question and answers reveal from the defendant. And therefore, there’s room for some of that old reasonable doubt defense attorneys like to try and raise.

Since this is potentially a problem for the prosecution, they want to write into the law an unscientific instruction that allows them to argue that any test over .08 given within an hour and a half of driving automatically gives them a presumption of guilt. Since it’s unconstitutional to have an irrebuttable presumption in favor of the State in criminal cases, this proposed legislation can’t eliminate all tricks from the DWI lawyer’s bag, but it’s a start in the wrong direction.

After all, are they going to change the title of the offense to “Being Intoxicated After Driving”?

[Hat Tip: Houston DWI lawyer Mark "I like to call it DUI" Bennett]

The Innocent and the Guilty

Jamie Spencer — Tue, 09 Dec 2008 14:23:08 -0600

Received a big box at work today and didn’t have the faintest idea what it could be. Since it was addressed to me, I opened it up, and tada… two bottles of wine.

It was a thoughtful gift from Houston DWI lawyer Mark Bennett. I had done some local co-counseling of a DWI/POM case here in Austin for a client he was representing. Mark did all the heavy lifting; I just went along for the ride.

Of course, Mark didn’t just send me any 2 bottles. They were from an Australian vineyard and named “The Guilty” and “The Innocent”. I read the label of “The Innocent” first:

The Innocent is produced from a single vineyard. Due to its limited production only a lucky few will ever get to taste it.

Aha. Clever commentary on the sometimes overwhelming and unfair advantage the State brings to bear on those it chooses to criminally accuse? Expecting something equally clever, I read the other label.

Apparently only the “lucky few” will get to taste that one too.

As for Mark's case? Well, the only disappointment was that after several settings on the jury docket the State eventually offered his client a deal that was too good to refuse: dismiss the DWI outright, plead to a lesser offense, no conviction (12.45) for the marijuana, and backtime credit, no probation, no community service, etc.

I had hoped to learn a thing or two by sitting second chair on the voir dire, if not the whole trial. Oh well. Maybe next time. And thanks for the tipple, Mark.

Letting Your Web Designer Write Your "DWI Content"...

Jamie Spencer — Wed, 03 Dec 2008 21:45:04 -0600

…is a bad idea.

I won’t link to it, but I just ran across an attorney’s web page that I hope was not written by him. (N.B. It was not an Austin lawyer.)

The website first acknowledges that in today’s world you need to drive: work, school, church, groceries, etc., and that one of the consequences of a DWI arrest can be loss of driver’s license, and then the attorney advertises that he will:

“effectively argue your need for a license at the ALR hearing”

In other words, hire me, and I’ll let the judge know that your license shouldn’t be suspended because you really need it.

Excuse me? Are you – that is, the lawyer, not the client – are you serious?

It’s not uncommon for clients to suggest that I should stress to the Administrative Law Judge that they really need their license, and perhaps if we demonstrate exactly how much they have to drive that they can avoid a suspension. Alas, I have to disabuse them of the notion that the ALR process is concerned at all about their essential need for a license; that’s what an occupational license is for, and those aren’t issued at the suspension hearing, or even by that type of judge.

Now it’s likely that the lawyer didn’t write the webpage content himself (see examples of comment spamming by marketers on blogs here and here). But you’d at least think he would have read it by now.