Frisco DWI Lawyer & Attorney Blog : Collin County DWI Lawyer & Attorney : Hunter Biederman : Texas DWI Defense : Serving Collin County, Denton County, Dallas County

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 Her speech was a significantly easier topic, considering Texas uses the old and outdated Intoxilyzer 5000.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:

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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. 

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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.

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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 . . .

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