In a DWI case, it is the officer's opinion that the accused is guilty being the main source of evidence in the case. Juries are then asked by the State's attorneys to trust the officer, that his/her judgement was correct.
A friend sent me this picture yesterday which demonstrates how officers always use good discretion. This is parked in front of the Collin County Courthouse.
I dont usually post video clips. Especially because every time I see one posted, I've seen it 50 times already. But here is an old one, that I have just never seen before. From the 1983 Steve Martin movie, "The Man With Two Brains." Enjoy.
So far, the best lecture has been put on by Attorney Mimi Coffee. Mimi practices in Ft. Worth, and also Dallas, I believe.
She went over how to knock a breath test down, piece by piece, and get show how low the score could be. Her speech was a significantly easier topic, considering Texas uses the old and outdated Intoxilyzer 5000.
First, you go through the setup stage during your cross examination.
- Always give the D the benefit of the doubt: This is done mostly in voir dire. Usually the experts that I've seen will say that they go with the lower score "to give the benefit of the doubt."
- Dont know what the 3rd blow would be: Most will readily agree with this. We don't know what the 3rd blow will be.
- set up .02 margin of tolerance, precision: This one is pretty easy to set up as well. With the Intoxilyzer 5000, Both breath samples must be within .02 of each other to get a valid result. (Interestingly enough, in Oklahoma, it is .03. I never knew that).
- not possible to metabolize .01/.02 in 2 minutes: If the 2 scores are off of each other, you should establish that this isn't the person metabolizing the alcohol within a few minutes of the test. Usually the 2 "subject samples" are not equal. The State's witness will always agree with this.
- up down variance in 2 scores does not show metabolism: One common misconception of juror is that you can tell if someone's BAC is going up or down which correlates to the 2 subject samples going up and down. I have seen prosecutors in Collin county say "you see how the 2nd breath score is lower than the first? That means his BAC was going down -- therefore, his BAC was higher at the time of driving!" I'm not sure if they were purposely lying, or just green, but either way, even the State's expert will agree this is false.
.01 predicted value must agree with actual value: This is for the reference sample. The reference sample is mixed up to supposedly be .08. As long as it is within .01, the intoxilyzer 5000 says "OK".
-retrograde / # of drinks in a normal drinking spree one would have to consume (not what's present in one's system): You may be able to get the breath score lower by successfully arguing that your client was lower at the time of driving.
- air blank is not .000: Apparently when the machine says .000, it's not really .000. Depending on what expert you get, .000 can actually be as high as .009. (Some experts will say .005).
- Dr. AW Jones, breath temperature: According to Dr. Jones, breath score can be affected by the breath temperature.
- Tolerance - "Texas Breath Alcohol Testing Program Operator Manual, ethanol section, p.47 -- has the actual definition. Basically, you cant fake a BAC. Tolerance wont affect the score.
The below example is based on a .14 breath test:
| Defendant's Breath Score | .014 |
| Intrinsic Margin | -.010 |
| Margin of Tolerance | -.020 |
| Air Blank Fallacy | -.009 |
(.6.5%* (37degrees - 34 degrees).140) |
-.027 |
| Scientifically giving benefit of doubt to a Defendant | -.074 |
Well, the ALR Update and "They key to obtaining evidence for a blood test case" is going on now.
So far, all of the updates that were given, I have covered in the past. Most of them deal with items I have already gone over in a the past post "Everything You Need To Know About the New ALR Rules. I'll stick to new things I learn. . . Mostly about the blood test cases, especially voluntary blood draws. Because if it is a blood warrant case, SOAH just deals with the case as a refusal, so not much changes.
The speaker said he spoke to a local SOAH judge, who said that he needs to really go over the new changes. Because in their opinion, there have only been 5 attorneys who are now doing it correctly! (I assume I'm in that minority!!)
BLOOD ISSUES:
-You can ask for a subpoena for the people that did the blood analysis. However, the judge in the case is the one that must grant the subpoena request. I'm not really sure this will get us anywhere.
That's it. Nothing more was mentioned. What a disappointment. This was the single most important issue that I think would have helped me defend my clients from this seminar. All the time was spent discussing the new rules, and nothing about how to get evidence in blood test cases. Yuch. Very disappointing.
Right now I'm listening to a speaker talking about Felony DWI Jury Selection, and really Felony DWI's in general.
Felony DWI's are a much different beast than the misdemeanor DWI. This is because of:
a) The punishment range. Felony DWIs (usually DWI 3rds or higher) have punishment ranges from 2-10 years in prison.
b) The jury knows about your 2 priors
One of the suggestions given by the speaker is that you get your client tested immediately for substance abuse. This is as a precaution for later, even if you are going to fight the case. Just in case your client is convicted, this will assist in gaining probation after the trial.
One of the benefits to the jury knowing about the 2 priors, is that you get to discuss this with them during jury selection. Plus, if they say that they cannot be fair in the case, and automatically assume that if your client did "it" 2 times before, he probably did it this time, they will be booted off the jury. This can be a huge advantage, in that you are really getting off many of the people that would be very State's oriented.
-Know the terrain: So true, you must know the nuances of the counties. Some counties are significantly tougher on punishment. This is important to know when advising your client of whether or not to take a plea deal. For instance, if you are in a county that routinely gives large prison sentences for Felony DWI's, an offer of probation might not be too bad of a deal. The truth is, in the end, it is always up to the client of whether or not to go trial, however, they can only make informed decisions with attorneys who know the local terrain.
Thought I'd give the "live blogging" thing a try today. Today I am attending the DWI Defense Project seminar at the Belo Mansion in Dallas.
Topics covered today are:
- Felony DWI Jury Selection
- Blood Testing: What you must know about the science
- Defending Hospital Blood Draws
- ALR: The key to obtaining evidence in a blood test case
- Cross Ex. of the State's expert in a Breath Test Case
- Exposing Flaws in the Search Warrant of a DWI Blood Test Case
- DWI Trial Strategy
- Pretrial Motions to obtain Evidence to give your blood test expert
- Ethics in a DWI Trial
- Voir Dire Strategy : Positioning to Win
I wonder if other bloggers will be joining me live in the discussion? I know Robert Guest told me he'd be here. Not sure if Shawn Matlock, Jamie Spencer, or maybe even Mark Bennett from Houston will be here??? I know Troy Burleson has court obligations and cannot attend . . .
I get this question all the time:
Can I keep my license from being suspended in a DWI? I thought the license suspension was automatic.
The answer is, YES, you can keep your license from being suspended. I previously explained the ALR process (Administrative License Revocation) in a past post.
I get very frustrated about ALR's, especially because there are a lot of lawyers giving absolutely horrible advice out there. Many lawyers tell prospective clients that you cannot win ALR hearings. This is simply not true. MOST LAWYERS WHO TELL PEOPLE YOU CANNOT WIN EITHER ARE TOO IGNORANT TO FIGHT FOR THEIR CLIENTS, TOO LAZY TO FIGHT, OR SIMPLY DON'T HAVE THE EXPERTISE TO WIN THESE HEARINGS.
The statement that you cannot win, so don't try usually comes from some attorney who gains most of his income from bailing people out of jail at 4:00 AM. Yes, there are some attorneys who do this who are great attorneys, but many simply need the business because a of lack of referrals or repeat business.
I am often asked about how often we win. This past weekend I spent time going through all of our past results on ALR cases.
In 2007, the Sunset Commission did a study on ALR hearings. DPS issued 100.472 notices of suspensions. Of those, only 6,980 were able to keep their driving privileges. This means, Statewide, only 6.9% of people keep their driving privledges.
Our firm, since 2006, kept accurate records on every DWI case we handled an ALR hearing. Of those cases, 51.6% of our clients kept their driving privledges.
So is it possible to win these hearings and keep your driving privileges? Yes! But remember, you only have 15 days to request a hearing on your license suspension. If you miss that window, the license suspension will be automatic.
A new bill proposed in the Senate by Senator Whitmire seems to be the same as that of HB 1906.
The bill deals with lowering the surcharge for someone who successfully completes the DWI/Drug Court program. As I stated before, this only helps someone that completes the course, which can be 2 years or more later. This means that the bill does not really save the person much. It would be a better bill if the savings were upon entering the DWI court program. I would even be in support if those savings were only temporary and became permanent after successful completion. I think that would be a better idea.
Below is the text of the entire bill:
A BILL TO BE ENTITLED
AN ACT
relating to the amount of a surcharge assessed on conviction of certain intoxicated driver offenses on the driver's license of certain persons who complete a drug court program.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 469, Health and Safety Code, is amended by adding Section 469.010 to read as follows:
Sec. 469.010. REDUCTION IN AMOUNT OF ANNUAL SURCHARGE ON SUCCESSFUL COMPLETION OF DRUG COURT PROGRAM. (a) A judge or magistrate administering a drug court program under this chapter may order the Department of Public Safety to reduce the amount of the annual surcharge assessed under Section 708.102, Transportation Code, on the license of a person finally convicted of an offense relating to the operating of a motor vehicle while intoxicated to an amount that may not be less than 20 percent of the amount specified by that section, if the judge or magistrate enters a written finding in the papers in the case indicating that the person:
(1) successfully completed a drug court program under this chapter; and
(2) has not been arrested for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, Penal Code, during the 180 days after the date of the program completion.
(b) On a timely request by the defendant, the judge or magistrate shall enter the written findings under Subsection (a) and promptly send a copy of those findings to the Department of Public Safety accompanied by the court's order to reduce the amount of the annual surcharge assessed under Section 708.102, Transportation Code. On receipt of a copy of the written findings under this subsection, the Department of Public Safety shall reduce the amount of the surcharge assessed to the amount specified in the court's order.
SECTION 2. The change in law made by this Act applies to a person who, on or after the effective date of this Act, enters a drug court program under Chapter 469, Health and Safety Code, regardless of whether the person committed the offense for which the person enters the program before, on, or after the effective date of this Act.
SECTION 3. This Act takes effect September 1, 2009.
A new House Bill proposed by Representative Coleman affects the surcharges assessed on those convicted of DWI. Right now, if you are convicted of DWI first, you owe the state $3,000 over 3 years just to keep your driving privledges.
The bill seems to say that the 3,000 is now a maximum surcharge, instead of it being the automatic surcharge. It would be based now on the "seriousness of the charge, the amount necessary to deter future violations, and an amount that maximizes collection."
I like the idea of this, except it doesnt seem to really say who determines how much the amount is, and why! Nor does it seem to give you any kind of due process, like a hearing to present to a judge or magistrate why you think your surcharge should be less. Basically it seems like a proposal with no teeth.
The bill also makes some changes to the plea bargaining process. It provides that anyone pleaing guilty must be given notice about the surcharge. I like this idea, but it is mostly for people who are hiring non-DWI lawyers. Any DWI lawyer worth their salt is going to be informing their clients about the surcharge. At our firm, we speak about it during the initial consultation along with paperwork about the potential surcharge. And in any plea of guilty or not guilty, we ALWAYS discuss the ramifications of the potential surcharge.
Below is the entire text of the bill:
A BILL TO BE ENTITLED
AN ACT
relating to the administration of the driver responsibility program.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter A, Chapter 708, Transportation Code, is amended by adding Section 708.004 to read as follows:
Sec. 708.004. DEPARTMENT'S DETERMINATION OF AMOUNT OF SURCHARGE. The department by rule shall set the amount of a surcharge to be assessed under this chapter on a person's license. The amount may not exceed the maximum amount allowed by this chapter for a surcharge based on points or a conviction, as applicable. The amount shall be based on:
(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;
(2) the amount necessary to deter a future violation; and
(3) the amount that maximizes the collection of surcharges by the department.
SECTION 2. Section 708.054, Transportation Code, is amended to read as follows:
Sec. 708.054. AMOUNT OF POINTS SURCHARGE. The amount of a surcharge under this chapter may not exceed [is] $100 for the first six points and may not exceed $25 for each additional point.
SECTION 3. Section 708.102(c), Transportation Code, is amended to read as follows:
(c) The amount of a surcharge under this section may not exceed [is] $1,000 per year, except that the amount of the surcharge may not exceed [is]:
(1) $1,500 per year for a second or subsequent conviction within a 36-month period; and
(2) $2,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.16 or more at the time the analysis was performed.
SECTION 4. Section 708.103(b), Transportation Code, is amended to read as follows:
(b) The amount of a surcharge under this section may not exceed [is] $250 per year.
SECTION 5. Section 708.104(b), Transportation Code, is amended to read as follows:
(b) The amount of a surcharge under this section may not exceed [is] $100 per year.
SECTION 6. Section 708.105, Transportation Code, is amended by adding Subsections (c) and (d) to read as follows:
(c) Before accepting a plea other than a plea under Article 27.14(d), Code of Criminal Procedure, the court must provide a defendant charged with an offense described by Section 708.102, 708.103, or 708.104 the following statement and require the defendant to sign the statement:
"A conviction for the offense charged will result in the assessment of a surcharge that will be imposed annually for a period of 36 months under the Driver Responsibility Program."
(d) The statement provided to a defendant under Subsection (c) must also state the maximum amount of the annual surcharge as provided by Section 708.102, 708.103, or 708.104. The copy of the statement signed by the defendant shall be retained by the court.
SECTION 7. Section 708.157, Transportation Code, is amended by amending Subsection (c) and adding Subsection (d) to read as follows:
(c) The department by rule shall [may] establish an indigency program to reduce the surcharge on a person's license if the department determines that the person is indigent [for holders of a driver's license on which a surcharge has been assessed for certain offenses, as determined by the department]. The department shall require a person to submit proof of indigency.
(d) For purposes of this section, a person is indigent if the person's income is not more than 100 percent of the applicable income level established by the federal poverty guidelines.
SECTION 8. (a) Not later than October 1, 2010, the Department of Public Safety shall adopt initial rules determining the amount of a surcharge on a person's driver's license under Chapter 708, Transportation Code, as amended by this Act. Not later than October 1 of each subsequent year, the Department of Public Safety shall review its rules and determine whether the amount of a surcharge should be increased or decreased.
(b) A surcharge imposed under Chapter 708, Transportation Code, before the effective date of the initial rules adopted by the Department of Public Safety under Subsection (a) of this section is governed by that chapter as it existed on the date the surcharge was imposed, and the former law is continued in effect for that purpose.
SECTION 9. This Act takes effect September 1, 2009.
A third new DWI bill proposed by Representative Guillen deals with the DWI surcharge for those convicted of DWI, but completed the DWI/Drug Court program. I have spoken about the DWI/Drug Court program in the past. In Collin County, the only DWI /Drug Court is in Judge Ray Wheless' County Court #4.
This bill would allow the surcharge to be reduced by up to 80%. Right now, anyone convicted of DWI 1st must pay 3,000 to the state over three years. If you are convicted of DWI 2nd, it is 4,500 over 3 years, and if you blow over .16, it is $6,000 over three years.
I think this bill is a great idea, because it gives some incentives for someone to really turn their lives around. The Drug court is usually reserved for those on DWI 2nd, so it is an important time in those offenders' lives.
I do see some problems with this bill, though. It only rewards those "sucessfully completing" the program. Instead, it should reward those entering the program. It is possible to be in the DWI court for 2 years or longer. By then, this bill wouldn't be of much help.
Below is the entire test of the bill:
A BILL TO BE ENTITLED
AN ACT
relating to the amount of a surcharge assessed on conviction of certain intoxicated driver offenses on the driver's license of certain persons who complete a drug court program.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 469, Health and Safety Code, is amended by adding Section 469.010 to read as follows:
Sec. 469.010. REDUCTION IN AMOUNT OF ANNUAL SURCHARGE ON SUCCESSFUL COMPLETION OF DRUG COURT PROGRAM. (a) A judge or magistrate administering a drug court program under this chapter may order the Department of Public Safety to reduce the amount of the annual surcharge assessed under Section 708.102, Transportation Code, on the license of a person finally convicted of an offense relating to the operating of a motor vehicle while intoxicated to an amount that may not be less than 20 percent of the amount specified by that section, if the judge or magistrate enters a written finding in the papers in the case indicating that the person:
(1) successfully completed a drug court program under this chapter; and
(2) has not been arrested for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, Penal Code, during the 180 days after the date of the program completion.
(b) On a timely request by the defendant, the judge or magistrate shall enter the written findings under Subsection (a) and promptly send a copy of those findings to the Department of Public Safety accompanied by the court's order to reduce the amount of the annual surcharge assessed under Section 708.102, Transportation Code. On receipt of a copy of the written findings under this subsection, the Department of Public Safety shall reduce the amount of the surcharge assessed to the amount specified in the court's order.
SECTION 2. The change in law made by this Act applies to a person who, on or after the effective date of this Act, enters a drug court program under Chapter 469, Health and Safety Code, regardless of whether the person committed the offense for which the person enters the program before, on, or after the effective date of this Act.
SECTION 3. This Act takes effect September 1, 2009.
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