Can You Flag Down That Prosecutor For Me?

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?”

DWI Checkpoints as the Roach Motel of Law Enforcement

Despite the best efforts of some legislators in Austin to whittle away at the protections of the Fourth Amendment, DWI roadblocks or sobriety checkpoints are still not legal in Texas.

But they are in Missouri, and Randy England notes an interesting tactic used there:

The police sometimes get clever in setting up such roadblocks. A sign on the highway will say “Sobriety checkpoint ahead - be prepared to stop.” The police then setup the roadblock–not on the highway–but at the next exit.

The idea is that drunk drivers will “select” themselves by taking the exit to avoid the roadblock. Like checking into a roach motel. Too late, the driver realizes, he put his head in the noose.

Of course, once the police have a car stopped and the window is rolled down, the party is over in the time it takes to smell the driver’s breath.

Well, I have to admit it’s clever. And every 2 years when the legislature meets, it's more and more likely to be coming to us in Texas.

DWI, Community Caretaking and High Crime Areas in Austin, Texas

I was waiting in Travis County Court #7 this morning to talk to the judge about a post conviction occupational driver’s license. Meanwhile, a pretrial motion to suppress had already started.

From what I could gather, the officer had seen a car pulled off on the side of the road. The defense attorney was doing a good job pointing out through cross examination that no traffic violations had been witnessed.

Apparently, the State was attempting to justify the initial detention through the ‘community caretaking’ exception. Community caretaking is shorthand for the legal concept in Texas that the police can legally detain you ‘for your own good’. Of course, since it’s only litigated in the criminal context, that means they ended up arresting you for one thing or another, so how much good it ended up doing you is questionable at best.

So the officer had pulled over ‘to investigate,’ I suppose, but I had missed that part of the testimony, when this little gem came up:

• Defense attorney: Was there anything unsafe about stopping in that neighborhood?
• Officer: Well, any area in Austin can be unsafe.
• Defense attorney: Do you consider that to be a high crime area?
• Officer: All areas in Austin can be ‘high crime’.

Exactly! There’s no place in Austin, in Texas, or really in the world that an officer can’t characterize as “could be a high crime neighborhood’.

So, when an arresting officer testifies that “part of the reason I detained him was to investigate due to it being a high crime area,’ appellate courts need to stop pretending that adds any logical or legal basis for a stop or a detention. Is this really how low we want our standards to sink?

Like most of the affronts to our constitution, no one cares about this sort of erosion of civil rights… until they are arrested for DWI…

DWI & Videotape Evidence

In Texas DWI cases, there’s almost always a video tape of your client. It will include some driving, and many times the entire substantive interaction between the arresting officer and the defendant.

And that’s going to end up being a better record of how someone did on the Field Sobriety Tests than the officer’s recollection.

True, the initial portion of the traffic stop, i.e., the reason for the initial detention may not be recorded. For example, the Austin DWI Task Force officers drive cars equipped with video cameras, but they only activate once the overheads have been turned on.

Since the officer isn’t going to activate his overheads to pull someone over until after he sees a traffic violation, unfortunately this isn’t caught on tape.

But wait, you say… no video, means no evidence right? And if they can’t prove the traffic violation, then the judge will have to grant a Motion to Suppress and throw the case out.

Not so fast.

There’s no rule requiring the State to present videotape evidence in a DWI, or in any other type of criminal case for that matter. In fact, in most jury trials, for non-DWI offense, there is no video tape evidence of any kind.

Evidence usually comes from the witness stand in the form of oral testimony from one or more witnesses, and that may be it.

How many times do you think the State has to produce a videotape of somebody actually committing a murder to convict them of it? I’m sure it’s happened, but it isn’t all that common.

I’m a big fan of videotape. At least the officer will be confined to the facts of the case, rather than feel free to add incriminating statements or other evidence that can’t be disproved.

I’m also glad to see that Texas DPS has recently gotten a new video machine in some of their vehicles. Apparently, it works like a DVR. It is constantly recording, and it keeps several minutes in the pipeline, so to speak. Then, when overheads are activated, the machine actually saves several minutes worth of video prior to the lights coming on.

Yes, this often leads to videotape evidence of my client committing that traffic violation that the DWI officer is claiming. But the judge was likely to take his word for it anyway, if there hadn’t been video.

Consequently, not having the video of the driving is almost always a losing issue for the defense. But recently, I litigated a Motion to Suppress where the officer had written in his report that my client had ‘Failed to Maintain a Single Marked Lane’.

And the video showed the Trooper’s approach of the vehicle, and my client’s tires barely crossing the line once. But we could also show, due to the DVR-style video, that there was no other traffic around, and that the movement wasn’t unsafe to others.

Based on that, I made the argument that the State had failed to prove reasonable suspicion to detain because the video evidence didn’t meet the standards of the Hernandez case. [Short version: Defendant doesn’t commit Failure to Maintain a Single Marked Lane in a case where he crossed the line once, by 18 inches, and did not cause any safety hazard to others. The case itself has been watered down significantly since it was issued in 1998, but the facts on my video were actually remarkably close to the original case.]

The judge took the case under advisement, and I don’t have a ruling yet. But without that extra bit of videotape evidence, I wouldn’t have been able to even make a credible argument.

I doubt the officer would have admitted that it was only one time, that no other cars were around, that the movement wasn’t unsafe, etc.

The ‘extra’ videotape in that case may end up saving my client from a DWI conviction

Police Admit Using Incorrect Standard for 'DWI'

Police in New York State have admitted to arresting and charging drivers with any alcohol on their breath, although the law only criminalizes impaired driving. Well, that’s my DWI defense lawyer take on the story, but you tell me:

"If you're going to drink, do it at home, designate a driver or hire a taxi. We're not saying there's anything wrong with drinking - just drinking and driving," said state police Lt. Douglas Larkin of Troop K in Westchester…

Once the driver rolls down the window, (the officer) said, it's easy to tell if he or she has been drinking.

"The first thing that hits you is the odor of alcohol -it's so obvious," he said. "I've had a few drivers who know they've been drinking and try to play it down, but the odor on their breath gives them away."

“Drinking and driving.” And having alcohol on your breath. These are the main standards it appears that police use to make an arrest for DWI.

But the law itself doesn’t say having a detectable odor of alcohol on your breath and operating a motor vehicle is illegal (unless you are under 21 – then it’s a DUI in Texas). Driving while having lost the normal use of your mental or physical faculties, due to the introduction of alcohol, a controlled substance, etc., is illegal.

On a side note, I’ll add this: I advise friends and family, and anyone else who asks, that in Austin, DWI arrests are made using this same standard.

If you are pulled over for a traffic violation in Austin, Texas, and the police officer smells the odor of an alcoholic beverage on your breath, you are very likely going to jail for DWI. I have heard testimony from Austin Police Department DWI Task Force officers that is substantively the same as what is quoted above

Visual Detection of DWI Motorcyclists: NHTSA Manual

The primary student manual “DWI Detection and Standardized Field Sobriety Testing” published in February 2006 by NHTSA spends less than half a page on its subsection “Visual Detection of DWI Motorcyclists”. It’s in Chapter 5, Phase One “Vehicle in Motion” immediately after the section on visual cue descriptions for auto motorists.

However, in March of 2005 NHTSA published a brochure on the subject entitled “The Detection of DWI Motorcyclists”.

From both sources, the list of driving cues that officers are trained to look for in Motorcycle DWI/DUI cases are listed as either excellent (above 50% chance) or good (30-50% chance):

Excellent Cues

• Drifting during turn or curve
• Trouble with dismount
• Trouble with balance at stop
• Turning problems
• Inattentive to surroundings
• Inappropriate or unusual behavior
• Weaving

Good Cues

• Erratic movements while going straight
• Operating without lights at night
• Recklessness
• Following too closely
• Running stop light or sign
• Evasion
• Wrong way

Good fodder for DWI lawyers in motorcycle cases where the defendant is stopped ‘only’ for speeding (which is pretty common)…page 5 of the brochure:

Motorcyclists stopped for excessive speed are likely to be driving while intoxicated only about 10 percent of the time (i.e., 10 times out of 100 stops for speeding). But because motorcyclists tend to travel in excess of posted speed limits, speeding is associated with a large portion of all motorcycle DWI arrests.

In other words, while only a small proportion of speeding motorcyclists are likely to be considered DWI, the large number of motorcyclists who are speeding results in a large number of DWIs, despite the relatively small probability.

In cross examination, this can be used if the stopping officer testifies that speeding is a sign of intoxication (which belies the common sense of the jury as well).

Also, the officer should be crossed on all the things your client did right: no drifting, no trouble dismounting, etc.

DWI lawyers should consider asking the officer whether the dismount itself is a useful sobriety test. Many officers will openly scoff at the notion…that’s fine. Prod him to insist that only the NHTSA field sobriety tests are appropriate for evaluating the likeliness of intoxication or impairment.

Then have him read this paragraph from pp7-8 from the NHTSA brochure:

Trouble with Dismount

Parking and dismounting a motorcycle can be a useful field sobriety test. The motorcyclist must turn off the engine and locate and deploy the kickstand. The operator must then balance his or her weight on one foot while swinging the other foot to dismount. But first, the operator must decide upon a safe place to stop the bike. Problems with any step in this sequence can be evidence of alcohol impairment.

And having absolutely no trouble with the dismount is at least some evidence of a lack of impairment, correct Officer? (Doesn’t matter how he answers; the jury gets the point.)

DWI Roadblocks to be Debated in Austin

Senate Bill 59, written by Sen. Judith Zaffirini, D-Laredo, gives police the authority to set up temporary sobriety checkpoints. The roadside barricades haven't been legal in Texas since 1994. A state court of appeals ruled them unconstitutional because the Legislature had not developed guidelines to ensure they were being conducted legally.

The bill would add (literally) a new chapter to the Texas Code of Criminal Procedure entitled “Sobriety Checkpoints”. This sort of legislation often sounds like a good idea at first…I mean, let’s get those drunks off the roads, right?

But make no mistake about though…this bill will authorize the police to stop vehicles without reasonable suspicion or probable cause. Non legal mumbo-jumbo translation?... The cops will be able to stop you for any reason, or for no reason at all.

They will then be allowed, after the fact, to “develop” probable cause to believe that an offense has been committed.

Unfortunately, the US Supreme Court has long ago ruled that DWI roadblocks can be constitutional, but the Texas Court of Criminal Appeals has so far not allowed them. This is truly a slippery slope folks…be careful what you wish for. It's not to late to tell your representatives you oppose this.

Is it legal to U-Turn at a No Left Turn sign?

I had a DWI client who was initially stopped for making a U-Turn at an intersection in Austin where there was a posted “No Left Turn” sign. Never having seen this exact situation before, I decided to do a little research to find out whether the detention was valid.

Oddly, it turns out that the Texas Transportation Code is nearly silent in terms of laws regulating U-Turns in Texas. Finally I stumbled across something I thought might help in the Austin City Code.

Austin City Code, Title 12, Traffic Regulations, Chapter 12-1 Traffic Regulation and Administration, Section 12 – 1 – 30. That Austin City Code provision says:

§ 12-1-30 U-TURNS RESTRICTED.

The driver of a vehicle may not turn the vehicle to proceed in the opposite direction at:

(1) an intersection or median opening on a divided street where a posted traffic sign prohibits turning in the opposite direction; or

(2) a location where the turn is not prohibited, unless the turn can be made safely and without interfering with other traffic.

My argument therefore was that the statute specifically provided that a person may not U-Turn (1) if there’s a “No U-Turn” sign, or (2) if it can’t be done safely.

My client was fortunate that the officer testified at the ALR that there were no other traffic violations besides making a U-Turn where there was a “No Left Turn” sign, that there was not a “No U-Turn” sign, and that the maneuver wasn’t a danger to other traffic around him.

At the pretrial hearing on the Motion to Suppress, I led the officer through the prior testimony. The judge initially took the case under advisement, asked for briefs and re-argument, and eventually ruled in my client’s favor, granting the Motion to Suppress. All evidence gathered after the detention was “thrown out” (as they say on TV), and it left the State with literally no evidence against my client.

By the way, the State’s argument - and it makes for a pretty good one on a common sense level - is that a U-Turn is necessarily two left turns.

Finally, I should probably point out that this is not only a very specific situation that doesn’t come up very often, and that it only applies in Austin – or other Texas cities with similar Code provisions.

Visual Detection of DWI Motorists - According to NHTSA

The NHTSA DWI Detection and Standardized Field Sobriety Testing Manual has a chapter devoted to “DWI Detection Phase One: Vehicle in Motion”. A list of 24 driving cues which “police officers may use to detect nighttime impaired drivers” is the meat of the chapter.

These same 24 cues are also listed in NHTSA’s booklet “The Visual Detection of DWI Motorists”. The chapter in the manual breaks these driving behaviors, most of which but not all are traffic violations, into four separate categories:

1. Problems Maintaining Proper Lane Position
2. Speed and Braking Problems
3. Vigilance Problems
4. Judgment Problems

The second part of Phase One: Vehicle in Motion is entitled “The Stopping Sequence”. In it, the officer is told to look for how the vehicle responds to the signal to stop (which will almost always be the activation of police overheads). Cues include:

1. an attempt to flee
2. no response
3. slow response
4. an abrupt swerve
5. sudden stop, and
6. striking the curb or another object

In most cases, while my client will probably be spotted initially committing a traffic violation, which may be included in the first 24 driving behaviors, the vast majority of times they exhibit none of the stopping sequence cues.

Absence of these cues, of course, does not prove the absence of intoxication. But, the defense is not required to prove innocence. Secondly, pointing out that all of these behaviors commonly associated with the typical intoxicated driver do not apply to my client can be useful for cross examination of the stopping officer.

[For those interested, The Visual Detection of DWI Motorists is available free of charge in booklet form upon request to: National Highway Traffic Safety Administration – Impaired Driver Division, 400 Seventh Street, SW., Room 5118, Washington D.C., 20590.]

Missed It By That Much

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

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

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:

(c) The department may not suspend a person's driver's license if:

(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?

Continue Reading...

Can You Flag Down That Prosecutor For Me?

Iwas 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

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)

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.

Goodbye Retrograde Extrapolation for Breath Test DWIs?

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”?

The Innocent and the Guilty

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"...

…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

Can You Say Challenge for Cause?

My friend and Lubbock DWI lawyer Steve Hamilton on a recent Q&A in a DWI voir dire:

So in this trial I asked the potential jurors about a hypothetical. What would you do if you only had one option, either convict an innocent person or set a guilty person free? Out of 20 people, 7 or 8 said they would actually convict an innocent person!!

I was actually somewhat shocked with the amount of people who said they would send an innocent person to prison. One person said he would do that and that he hoped he would be the person who was sent to prison to protect society.

I bet it’s a lot easier for that potential juror to say he’d be A-OK with being toted off to jail or prison for something he didn’t do… when he’s not the one that is being accused.

What is the "Attorney-Client Privilege" and are jails exempt?

I've often wondered whether conversations that I have with clients are being recorded... even if there are not signs warning against it. While I want to believe that they are NOT, as I think that would be a clear breach of confidentiality between clients & attorney's, it would not surprise me. One of my favorite bloggers, Grits for Breakfast wrote on this topic in this article. And, Grits even quotes a nearby personality for central Texas, District Attorney for Williamson County, John Bradley, who said,

... jailed inmates have no expectation of privacy.

I agree with that statement for its general tenet, but definitely not in the perspective of when an attorney is talking with his or her client. Now, one could argue that if an attorney knows there is a chance a conversation is being recorded that he or she should control the conversation to compensate for that, but under some circumstances the information is needed and should be available based on the centuries old principle of attorney-client communication as discussed at length by the National Association of Criminal Defense Lawyers, here.

What I have done to avoid the risk is to speak with client's in person and in the rare instance where I am on the telephone with them, the first thing I say after identifying myself is that I want them to be very cautious in what is said just in case someone is listening in.

Maybe what we all should do as a defense bar is to begin with open records requests to the jails of our respective counties to obtain their official "policies" on such matters... things like their "General Orders" may be available. The unfortunate side to all of this is that we can almost rest assured that the written policies will not contain language that this occurs....

Thanks to Robert Guest another Texas attorney blogger for bringing this to our attention.

Good Job, Williamson County (for filing false report charges against a 'victim')

Seeing this story was very exciting to me, as it seems that for too long law enforcement has taken complaints from victims and pursued them, which often results in charges being filed against an individual. Most of the time, I find that I am representing the person charged as his or her criminal defense attorney, but today, in what is generally considered to be an unpopular action, law enforcement in Williamson County filed charges against someone for falsely reporting an offense.

The reported story may be read on the KEYE website here or on one of several other Austin-area news stations. But, to summarize the story,

a woman who was experiencing car problems pulled over on Highway 29 west of Ronald Reagan Blvd. Police then say a suspect pulled behind the woman offering her help around 8:30p.m. The individual sexually assaulted her at the location.

The complaining victim was arrested for false report on this past Friday. Detective John Foster of the Williamson County Sheriff's Office would not provide details about the matter, and this story is available for further review, here.

The reason that I congratulate Williamson County for this action is that too often people call the police and then back out of the charge later. Meaning, they complain about someone's action, get the person arrested, and then change their mind. Most often, this is in domestic violence / assault with bodily injury cases involving family violence. Too often, there are unwritten policies in place not to pursue charges against these complaining witnesses because law enforcement or prosecutors do not want to prevent people for calling for help out of fear of prosecution if they later change their story.

But, I must say, if you are not going to stand behind your testimony, do not cause someone the stress and anxiety of being arrested, jailed, and prosecuted, not to mention the thousands of dollars wasted in defending that matter. Hence, one more time, Good Job, Wilco!

Solving the Drug Problem starts by Decriminalizing Pot and Reducing State Jail Felony Cases to Misdemeanors...

Many of Grits for Breakfasts blog postings receive numerous hits and initiate heated debate, but Williamson DA Sees Drug Penalty Debate as Turf War really grabbed my attention because it involves Williamson County, which is one of the places I practice criminal defense.

John Bradley, District Attorney for Williamson County, was quoted as saying:

If SJF drug cases become misdemeanors, the shift in workload from district to county courts at law would be substantial. In selfish terms, a DA with only felony jurisdiction (like myself) would suddenly have an enormous percentage of the caseload moved off the docket. A county attorney with only misdemeanor jurisdiction (such as my colleague in Williamson County) would suddenly find herself with lots of new cases.

This would be an extraordinary movement of resources for no reason other than someone deciding to reclassify the crime from felony to misdemeanor. Punishment would require county dollars (in county jail) rather than state dollars (in state jail)....

The discussion became more heated in the comments that followed Grits blog entry. Although several of them made very valid points, the one in particular really made a point with me:

kaptinemo said...

How many times must the system be 'tweaked' before the recognition is made that it is the system, itself, that is the problem?

The 'system', in this case, is drug prohibition, which is the font of the complained-about caseload. Prior to 1914 and the Harrison Narcotics Act, which Federalized drug 'crimes' such as possession, we didn't have these problems...or caseloads.

Why bother playing around with trying to unravel the Gordian Knot of drug prohibition and all its' baggage? We've been trying to do that, to the tune of a trillion dollars since 1968, and we're no closer to achieving a drug-free utopia now than they were back then...as the complained about caseload demonstrates. A caseload we can no longer fiscally afford. It's long past time to consider the once unthinkable, and to speak the once forbidden, and talk about alternatives to the present - and punitive - DrugWar.

Now, in these difficult economic times, it may really be time to try something new, and different. I will be the first to admit that the legalization or the decriminalization of all drugs or even most drugs may not be in society's best interest, I am willing to consider alternatives. I absolutely agree that these SJF crimes should be reduced to misdemeanor offenses, as too often people are being convicted of felonies for miniscule amounts of an illegal substance. Even when these people are given deferred ajudication probations, often the conditions are so stringent that a saint would have a difficult time completing them.

So, as kaptinemo wrote about fighting the drug war and spending trillions of dollars, which I agree is a worthless fight and an unwinnable one at that, I propose the following:

• legalize the possession of less than 2 ounces of marijuana;
• criminalize its use when driving (similar to DWI, afterall, is pot really any worse than alcohol);
• allow the government to regulate the sale of marijuana and tax it (similar to tobacco); and
• reduce the levels from SJF to misdemeanor offenses on other drug crimes.

This process would guarantee that the marijuana is not laced with something more addictive or harmful and would allow the government to create revenue to help pay off its trillions of dollars in expenses. Not to mention, not fighting the "war on pot" would save counties, states, and the government in general large sums of money (purposely I am being vague as I do not have a figure to write).

Further, it would save money on prosecutions and those convicted of the SJF amounts of other substances. And, as to John Bradley's comment about shifting the burden of work to another office, I believe this would only allow a couple of things to happen:

• assistant district attorney's would have more time to review and handle the other, "more serious" cases; and / or
• given that these ADAs are also county employees, nothing would prevent them, aside from politics, from working on some of these lower level cases, unless the agencies in question absolutely refuse to work together or share responsibilities; afterall, both are paid by county tax dollars and both work for "The County".

To conclude, pushing more people into the criminal justice system, whether it is by placing them on probation or putting them in jail or prison is not the answer. We already have the highest percentage of our population involved in this system, at least among the developed world.

Lazy? Oversight? Moronic? Red Tape? (a few words that crossed my mind while driving to the Williamson County Jail)

So tonight, I found myself having to work through more of the bureaucratic red-tape that is caused by either the lack of communication, poor training, disorganization, laziness or simply the complete ineptitude by some but not all of the people working in the Williamson County Sheriff's Office.

The background:

At approximately 3:45 to 4:30 p.m. on Friday, February 13, 2009, I spoke with a client and signed a waiver of magistration to speed up the time of her release from custody in the Williamson County Jail. She was arrested earlier this date on a warrant with a bond already set by a different judge. I completed the form that the jail staff provided me and submitted it to one of the jail staff supervisors. The Waiver was accepted. The time was now approximately 4:30-4:45 p.m. I left the jail and spoke with the client's relative who had hired me on her behalf. In addition, the surety bond itself was posted almost simultaneously to this by a local bonding company. The client should be released anytime now that these documents were in place.

The result:

At 10:25 p.m. (approximately 6 hours later) I receive a call from the bonding company saying there is a problem with the client's release because "they" (Williamson County Jail) did not have a copy of my bar card with the Waiver. I called the jail and spoke with the Sgt. working at that time and was told that they must have the bar card with it. I explained that it had been filed by a Lt. on a previous release, but this Sgt. said that was not sufficient, that it must be with this Waiver. I asked the Sgt. if she could copy it from a prior file that I turned in on a different client on February 12. I was told no because that does not verify my identity. I then asked if it could be pulled from the State Bar of Texas website, where the State of Texas maintains my record as an attorney. Again, I was told "no". Then, I was told that if I wanted to wait and discuss the matter with the Lt. or another supervisor, I was free to do that but that the client would not be released without a copy of my bar card. Of course, I got out of bed and made a special trip back to Georgetown to fulfill this "request".

My opinion:

Granted, we all have opinions and thus they are not necessarily worth anything. However, I was completely appalled by this entire process for a number of reasons:

1. This information (bar card information) is on file with the Sheriff's Department in a rolodex at the front desk (taken by the Lt. I referenced);
2. This information is available on the Internet, which I provided the link to above and offered to the Sgt. (and given the countless hours that County employees spend surfing the internet when they should be working, this "required information" could have been pulled and put with the Waiver, if it is so important);
3. Most importantly, the Waiver was accepted when I turned it in ... no one told me that they needed my bar card again (previously filed and even checked when I entered the jail on this date, so they knew I was an attorney);
4. Probably of less importance, but I worked at the Williamson County Sheriff's Office from October, 2005 until June, 2008 (granted I doubt everyone knows that or cares, but I know that I am in the County computer system);
5. This was probably just a passive aggressive act to hold the client in jail a few hours longer... afterall, why on earth did it take until 10:25 p.m. for me to even get a call about this "error"?

My plea to anyone with an interest in changing Williamson County:

1. Start paying attention to things that happen here;
2. VOTE (for anyone who runs against the elected members of this monopolized, disfunctional machine);
3. Take note of stories like this and remember them ... it is only a matter of time until something happens to every one of us (directly or indirectly);
4. Question why it took so long to process this release when the documents were submitted before 5:00 p.m.;
5. Respond to my blog ... let's really start a discussion here (I am still incensed by the lack of professionalism, communication, and integrity that pervades the very core of the Williamson County Criminal Justice System and so should every person who resides in that County... unless you are part of the problem rather than the solution).

I purposely omitted names of the parties and other entities involved, as there is no reason for me to name them individually, however, the ranks of the people I spoke with were accurate and gender was purposely excluded. As a criminal defense attorney who regularly defends people accused of crimes in Williamson County, Texas, I see a direct need for getting that system to change, as it is overrun with problems just like this on so many levels and with a very few exceptions, most people are not willing to speak against it to urge that Change come to this place.

Travis County Hospitals and Sheriff's Department have finally figured out that Forced Blood Draws are a bad idea. When will Chief Acevedo figure it ou

The Austin American Statesman reported in today's paper that Austin's Hospitals and the Travis County Sheriff's Department have informed the Austin Police Department (APD) that they will no longer collect blood for APD.

Travis County's central booking facility had been the place where APD took their suspected DWI folks for the forced blood draw. APD would rely on the Sheriff's nurses to do the forced blood draw. (If the person refused, they would literally strap them in a chair so that the person couldn't move their arms, and then stick them with the needle) The Sheriff's Department nurses stopped taking blood samples on January 1. The Sheriff's Department has finally realized that the nurses main function should be to treat inmates, not collect evidence. Further, they are deeply concerned about having to give nurse's overtime pay to appear in court after having been the one that draws the blood.

Since the Sheriff's Office stopped doing the blood draws, APD started taking suspects to the hospital for the blood draws. (I can't verifiy this, but I heard that the hospital was charging APD $400.00 per blood draw.) The Hospital representatives have now told APD they don't want them to bring suspects to jail for blood draws. The Hospital staff are worried about lawsuits, and are concerned because these types of blood draws are not being done for medical reasons. Further, the Hospitals are worried about who will pay for the nurse's time when they are called to court to testify about the procedure they used to draw the blood.

Chief Acevedo thinks he has figured out a way around these problems. APD contracted with a private phlebotomist to draw the blood of folks on Halloween weekend and New Years Eve. APD agreed to pay the phlebotomist for three eight hour shifts during these weekends. What APD didn't contract for was pay for this phlebotomist when she is drug into court to testify about the blood draws. I predict there will be a lot of screaming from the phlebotomist when she finally figures out that the money she received per hour will now be reduced by the number hours she has to sit in court.

In the Statesman article, an "expert in blood draws" states that "the state laws are clear that nurses and hospitals are protected from such suits. What the "expert" appears to be referencing is Section 724.017 of the Texas Transportation Code. The relevant section, section (b), states:

The person who takes the blood specimen under this chapter, or the hospital where the blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter if the blood specimen was taken according to recognized medical procedures.

However, this "expert" left out the final sentence to section (b):

This subsection does not relieve a person from liability for negligence in the taking of a blood specimen.

Now, what the "expert" seems to be forgetting is that it will ultimately be up to a fact finder (Judge or Jury) to determine if negligence took place.

Also, I bet no one informed the phlebotomists that they could be held liable for the blood draws either.

APD is treading on thin ice on this issue, and the sad part is, they either don't even realize it, or they just don't care.

Austin Police Department set to roll out new Bat Bus

The City of Austin has decided to replace their current BAT Bus(Breath Alcohol Test Bus) with a new improved BAT Bus.

The city agreed to buy a breath alcohol testing bus so officers don’t have to make the trip to the county jail.

The new Bat Bus will have to stations for Intoxilyzer 5000s as well as workstations for the officers to review the videotapes of the incident and prepare the offense reports.

Futher, there will be City Marshalls on hand to transport folks who have been arrested to the jail facility. This will allow officers like the one they call “the Machine” to get back on the street faster. The Machine currently holds the record for making 7 arrests in one night.

“Typical, DWI arrest takes between three and four hours,” Austin police Cmdr. Patti Robertson said. “It narrows it down. Takes off 3/4 of that time. They have all the paperwork, turns it over to the officers on the bus.”

DWI has become big business in Austin.

“We are at 800 per 100,000 people for DWI arrests…” Robertson said. “What that means is we are ……the highest in the state for DWI arrests. I think that speaks volumes.” It certainly does.

There are approximately 10 different agencies in and around Austin that are all competing for grant money related to DWIs. The question then becomes, “Could this possibly motivate officer to make more and more arrests?” My belief……ABSOLUTELY!

Can the Atkins diet affect the Breath Test?

A Virgin Atlantic Pilot found out the hard way that the Adkins diet can affect the breath test when he was removed from a transatlantic flight after failing a breathalyser test. He has finally been cleard of this charge after it was discovered that his low-carbohydrate diet triggered a false reading.

Subsequent blood tests on the pilot showed a blood-alcohol reading of just over a fifth of the limit set for airline pilots - which in turn is a quarter of the drink-drive level.

The pilot’s nightmare began when he went through the security checks for flight crew one of the guards thought he could smell alcohol on his breath.

The pilot was allowed to board the plane but about 45 minutes before take-off police got on the aircraft and breathalysed the pilot in the cockpit using a machine calibrated to aviation levels. The pilot failed this test and was escorted off the plane.

A standby crew was called and the pilot was taken to the police station, where blood tests were taken.

He was suspended from duty and released on bail.

The pilot’s blood was sent it to a laboratory where they found only a minimal blood alcohol reading. After the lab tested two more samples, he was exonerated.

Even non-drinkers are capable of producing trace elements of alcohol in their bloodstream, which would explain the level in the pilot’s blood.

The breathalyser reading was attributed to the pilot’s low–carbohydrate diet, which can affect the smell of a person’s breath and their metabolism.

Breathalysers mainly detect ethanol (the type of alcohol found in drinks) But some machines are unable to distinguish ethanol from acetone, a chemical that is produced by people on low-carbohydrate diets such as the Atkins diet. In normal circumstances this is not a problem but with the alcohol limit in the aviation industry is set at about a quarter of the normal “intoxication” level (.02) even these traces can result in a positive reading.

Where this is most likely to cause problems is when a person has been drinking, but not to the level of being intoxicated (.08). You then add the fact that the person is on a low carbohydrate diet, which will produce acetone in their breath, and there is a strong likelihood you will end up with a unreliable result from the breath testing machine.

Drink, Drive, Go to Jail maybe the policy, but it isn't the law!

This past weekend, the Gregg County, Texas sheriff issued a press release that stated that if you drink and drive this independence day weekend - you will go to jail.

In December 2006, Gregg County commissioners approved a grant to participate in the statewide “Drink, Drive, Go To Jail” campaign. This grant provides resources necessary to conduct DWI enforcement throughout the holiday periods to increase the arrests of folks that drink and drive.

Captain Ken Hartley with the Gregg County Sheriff’s Department says; “We’d just like to remind people to drive responsibly. Don’t drink and drive. Enforcement will be out there and it’s not worth that chance and certainly not taking a chance of hurting yourself or others.”

What they are totally ignoring is the fact that is not against the law to drink and then drive as long as you are at least 21 years of age, and you are not intoxicated. I believe that the Sheriff is setting up a great argument for the fact that people are going to be arrested that don’t meet the above criteria.

The police and prosecutors always want to lower the standard, but it just isn’t the law. Another example of the attempt to lower this standard is the “Buzzed driving is Drunk Driving” billboards. Neither Buzzed driving, nor Drunk Driving is the standard…..Intoxication is.

I certainly hope a defense attorney in Gregg County is paying attention to this and is willing to use this to show the juries there that THIS Sheriff’s deputies have the potential for making wrongful arrests.

While we all know the Austin Police practice a “Drink, Drive, Go to Jail” policy, the administration has been smart enough not to voice it publicly.

Tougher Punishments Are Not The Answer To Deter DWIs

University of Florida researchers have deteremined that tougher punishments may not be effective in deterring people from driving drunk.

Increasing the minimum jail time keeps few drunken drivers off the road and doesn't significantly prevent fatal car crashes, according to the study, published in the journal Accident Analysis & Prevention.

The researchers examined the changes in DWI laws and policies between 1976 and 2002. They also studied the rates of DWI arrests and fatal alcohol-related car crashes.

Alexander C. Wagenaar cq , lead author of the study and epidemiology professor in the UF College of Medicine, said researchers wanted to find out if stricter regulations deterred people from drinking and driving and if the number of accidents would drop in the population as a whole.

"We found out that's not the case," he said.

James C. Fell, director of traffic safety and enforcement programs for the Pacific Institute for Research and Evaluation in Maryland, said on average, statistics show that a person drives under the influence 50 to 200 times before he or she is caught or gets into a crash.

I have said over and over and over, we must move our resources into education, rather than punishment. Until the powers that be, the Legislature, figures this out, they will continue to increase punishments to no avail. I was once told that the two areas that Legislators love to go home and tout, is tax cuts and being tough on crime. Unfortunately, I guess that still holds true today.