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Blood Test Seminar - Live Blogging - Cross of the Chain of Custody Witness
Today's lecture on Cross of the Chain of Custody Witness was presented by Houston DWI Lawyer Tyler Flood.
A very good showing. It was in the Q & A style of a cross examination, so a bit hard to put into a blog the exact questions. But here are some of the points brought up, that should be explored with the witness:
- Get the SOP of the police department. You can find (sometimes) their procedures of how things should be done. Tyler did this with Houston PD. It seems like he then tailored his questions to the witness to explore if they were done. I presume after his cross, he would cross an officer on the correct procedures to bust up the chain of custody
- Tyler went through exactly step by step where the sample was, who it was handed to and where it was stored
- Was it refrigerated? If it was, what about when you pull it out to put it in a cooler? How long out? What about when you brought it to the police station?
- What about other sample's proximity to your client's sample? Do they stuff everyone's in an envelope, cooler, or lockbox? Who else's samples were in there?
- Examine all the numbers on who is signing in and out items? What if they were mailed? See if a bunch of them were all sent in the same envelope?
- Is special handling checked off??
- What about biological hazard stickers?
- (From the last lecture, does this mean the sample is being inverted more than it should have been?)
Great job overall on this part of the lecture.
Blood Test Seminar - Live Blogging - Crossing the Blood Drawer
Today presenting on how to cross examine the Blood Drawer (Nurse, qualified technician, etc) was attorney Kelly Case.
A really great job. So good, I don't really want to give up the strategy or specific questions on my blog. If any attorneys are interested in my notes or thoughts, I'll send them along. Just shoot me an email and I'll send it along.
In general, with the Blood Drawer, you can question if intereferrants are present, if there are problems with the blood draw, about the blood draw kit, about the place it was taken, and about the qualifications of the blood drawer. Really good stuff.
Blood Test Seminar - Live Blogging - Pre Trial Discover
The pre-trial discover portion of this seminar is being taught by Houston DWI lawyer Troy McKinney. Troy is responsible for putting on many DWI seminars, and speaks at most of them. Not to be confused with Collin and Dallas DWI Attorney Troy Burleson (my law partner).
First off, you cannot defend a blood test case without Documents. You need to know what they have. You need it to prepare, educate the judge, and confuse the prosecutor.
PS - as a totally random side note, the Houston's Crowne Plaza's cups suck. They leak. I got 2 coffees, and both of the cups I used leak out of the bottom. Also, this is the first time I didn't pay to get the book along with the CD. I think that was a good decision. Especially when you can bring in and plug in a laptop and pull it up.
Very often, you are going to need an expert. Even if not at trial, you'll need them to review the documents you get.
There is a lot of legwork that can be done on looking into Accreditation of the laboratory. This comes into play at not only looking at the lab that did the testing, but any lab that you might have used to retest the sample.
His lecture was pretty complex. I certainly cannot relate all of it here. The problem I have at a lot of these seminars (especially the scientifically based DWI seminars, is that without an expert, none of this stuff will ever come into evidence. It is definitely impossible to cross examine a cop on this stuff, and pretty tough to cross the state's lab expert on it as well. You will need an expert of your own to come in and explain a lot of it. Remember, attorney's cant testify (technically), only witnesses.
Blood Test Seminar - Live Blogging - Attacking the State's Search WArrant
One of today's speakers, Mark Daniel, a Ft. Worth Criminal Defense Attorney, has been getting a lot of recognition for his recent work on Tarrant County District Judge Elizabeth Berry's case. Much of the good press was about he finally getting her case dismissed. Not easy in a case where a blood test was taken.
He first attacked the search warrant in the case, and got the blood test results kept out of court. After some appeals by the state, he then won the appeal. The State's response after that was to dismiss the case.
Mark's talk is about fighting search warrants in DWI cases. . .
Some of what Mark pointed out, is that this is still a new area of law. His feel is that it is here to stay, and the only way to fight back is to do just that -- fight back. Especially in these borderline cases. Try and litigate these cases!
First off, there are still plenty of mistakes being made. The officers are the ones that are asking for the warrants, and are not perfect about articulating probable cause.
Nurses and Doctors aren't on the State payroll. The hospitals might not like their nurses and doctors sitting around waiting to testify all day long. And they wont be at court unless we are litigating these cases.
Cops must be saying facts that support the PC. Just checking off boxes wont necessarily be enough.
Who can sign warrants - After Sept 1st, there will be a lot of other people that will be allowed to sign these warrants. This includes any local magistrate that is a licensed attorney. This would also include courts that are not courts of record.
Additionally (and I'll post more on this later), there are going to be plenty more blood draws coming WITHOUT a warrant. Some of this may be outside the 4th amendment, if properly fought. This isn't going to happen here at the local level, but maybe if appealed higher. Some of the new times the police can take blood without a warrant is where, a) a DWI felony, b) a DWI with a child passenger in the car, and c)a DWI where there is bodily injury and someone goes to the hospital.
According to Mark, "c) a DWI where there is bodily injury and someone goes to the hospital" is an area where the TCDLA fought hard with the legislature. Apparently it was originally worded just "bodily injury". That could be pretty much anything -- broken fingernails, etc.
With PC, you need facts, not just conclusions. Looked intoxicated, failed the test, etc isn't enough. Also, we need to know about training and experience of the affiant as well.
You can request a Frank's hearing. This is when there are false statements in a warrant.
Faxed warrants can be fought as well. In the Govt code, it says an affidavit has to be before an officer. In fact, at one point, a court said that we need to let the legislature ask for allowing fax warrants.
Overall, this was an awesome speaker. Probably about the best speaker I have heard in the past few years -- and I hit a lot of these seminars. Also gave out great materials of his briefs and case law that he has looked up and used. in the past.
Top Gun DWI - Blood Test Seminar - Live Blogging
Well, today I am attending the Texas Criminal Defense Lawyers Association's Top Gun DWI - A Blood Test trial from Start to Finish.
In the past I did some live blogging from another DWI Seminar Here, here, and here. I got a pretty good response from it, so I'm going to give it another shot.
Although the premise of this seminar is an actual trial style : i.e. cross examination of officers, toxicologist, etc, there will also be some normal seminar speaking as well.
New ALR (Transportation Code) Changes
Well, it seems there are some new rules in store for us as well, however, this time, they are coming from the legislature in the form of Transportation Code changes. Before, it was SOAH's rules changes and subpoena form changes.
In the past I wrote about recent rule changes in the ALR, or License Revocation process. They included mostly changes on how to subpoena the witnesses (officer). That post has been one of my most popular posts. I have gotten a lot of feedback about those changes.
The major change that I have been able to find affecting ALRs, is from Section 524.039. It has to do with allowing what I feel is a fundamental right when the government is taking away a liberty or privilege-- Confronting your accuser.
In the past, we could simply request in writing that the BTO (Breath Testing Operator) and TS (Technical Supervisor) be present at the hearing. Now, it seems that we must issue them a subpoena to appear. I'm not that worried about that part. What I am worried about is that an "Administrative Law Judge" is the one that gets the final decision of whether or not to issue the subpoena. The are the only ones that get to determine if there is good cause for you to be able to confront your accuser.
If your request is overturned, your only recourse is an appeal to the county court. Personally, I've got my notice of appeal form ready to go.
Additionally, it is going to be difficult to issue these subpoenas considering SOAH, in my opinion, purposely delays giving a proper amount of notice before a hearing takes place. They give you such a short amount of time, it is almost impossible to request a subpoena, get it signed (there is no time limit, the "Administrative Law Judge" can sit on it as long as he/she wants), get it returned, send it to the process server, and serve the witness who often hide and try not to be served.
According to the new rules, these take place on all hearings that are set after Sept 1st.
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Below is the entire text of the bill that I BELIEVE has passed :
ARTICLE 3. ADMINISTRATIVE SUSPENSION OF DRIVER'S LICENSE FOR INTOXICATION OFFENSES
SECTION 3.01. Section 524.039, Transportation Code, is amended to read as follows: Sec. 524.039. APPEARANCE OF TECHNICIANS AT HEARING. (a) Not [Notwithstanding Section 524.038, if not] later than the fifth day before the date of a scheduled hearing, [the department receives from] the person who requested a hearing may apply to the State Office of Administrative Hearings to issue a subpoena for the attendance [written notice, including a facsimile transmission, requesting the presence at the hearing] of the breath test operator who took the specimen of the person's breath to determine alcohol concentration or the certified breath test technical supervisor responsible for maintaining and directing the operation of the breath test instrument used to analyze the specimen of the person's breath, or both[, each requested person must appear at the hearing]. The State Office of Administrative Hearings shall issue the subpoena only on a showing of good cause. (b) The department may reschedule a hearing once not less than 48 hours before the hearing if a [the] person subpoenaed [requested to attend] under Subsection (a) is unavailable. The department may also reschedule the hearing on showing good cause that a [the] person subpoenaed [requested] under Subsection (a) is not available at the time of the hearing. SECTION 3.02. The changes in law made by this article by the amendment of Section 524.039, Transportation Code, apply only to a hearing conducted on or after September 1, 2009. A hearing conducted before September 1, 2009, is covered by the law in effect immediately before that date, and the former law is continued in effect for that purpose.
