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

Here is an interesting article on mandatory blood draws for DWI cases. This has been the latest trend in trying to convict those suspected of DWI.  I haven't really written much about it, but I am planning on it in the future. 

There seems to be some serious constitutional, administrative, and public policy problems with the mandatory taking of blood tests.

Here is the article:

Weekend DWI roundup has 'dramatic' results

by Audrie Palmer
Midland Reporter-Telegram
Published: Saturday, April 12, 2008 7:51 AM CDT
Results from Midland's March 28-29 "No Refusal Weekend" were released Friday, and the amount of alcohol in the system of some of the drivers cited for driving while intoxicated was shocking to officials.

"We had, what I consider, pretty dramatic results," Midland County District Attorney Teresa Clingman said Friday morning at a press conference.

In all, the average blood alcohol content in those who voluntarily subjected themselves to a Breathalyzer test was 0.136. The average BACs of those who refused the Breathalyzer test and were then made to submit a blood sample because of a search warrant were 0.22.

In Texas, one is considered legally intoxicated when his or her BAC is 0.08.

The weekend project was a combined effort of the Midland County District Attorney's office, Midland County Sheriff's Office, Midland Police Department and the Texas Department of Public Safety.

About 10 additional DPS troopers were brought in to help from nearby counties and both the Sheriff's Office and MPD provided extra officers to help patrol the areas.

"It's fair to say that the effort was to keep Midland safer," said MPD traffic Lt. Brian Bogart.

In all, the weekend netted 26 arrests with eight of those being for felony offenses.

For the month of February, authorities arrested a total of 36 individuals over the course of four weekends with eight of those citations for felony offenses.

By law, anyone stopped for a DWI can refuse to take a breath test, and by doing so, it hurts in building a case against the driver based only on an officer's testimony and videotape, said Clingman.

"You can't smell what the officer is smelling. You can't hear that well. You can't see what the police officer sees," she said in regards to using a videotape as evidence when on trial.

But Midland defense attorney Steve Hershberger is convinced that taking a breath test isn't always effective.

"I have had cases where the Breathalyzer machine didn't work," he said.

During the "No Refusal Weekend," those who resisted taking a Breathalyzer test were apprehended while a search warrant was made for a sample of their blood.

And getting a search warrant for one's blood is not unusual or uncommon.

Hershberger said that it is not unconstitutional for officials to collect a fluid sample -- whether it be from a person's blood, saliva or urine -- as long as it doesn't impose on their Fourth Amendment right which prohibits unreasonable searches and seizures.

Authorities are allowed to file for one if they have any reasonable doubt about a driver's intoxication levels. Bogart said that officers can get a search warrant any time, but that it could take up to 3-4 hours to complete.

But with the DWI weekend project, county judges were on call making the efforts easier for officials and a nurse from the health department administered the tests. It reduced the time for the officers by several hours, said officials.

Only about one of every four drivers that weekend submitted to a breath test, according to Bogart.

"We need to make them more aware they don't really need to drive while intoxicated," Clingman said. "People just need to be aware we will do it again in the future."

But Hershberger, believes that the consequences on an individual charged for DWI are sometimes "too far ranging."

Those with a DWI arrest on their record, he said, have been affected with having an increase in their insurance as well as some of his clients have had a hard time finding future employment.

"It really does wreck people's livelihood," Hershberger said.

Faye Hodges, president of the Stop DWI organization in Midland, volunteered her time during the "No Refusal" project and brought refreshments and snacks out to officers.

Hodges, who lost her 24-year-old son when he was killed in a head-on collision by a drunken driver, was in favor of the collaborative effort of the local agencies for this project.

"I commend everyone who worked. It's hard to get a prosecution when someone refuses a breath test," she said.

Hodges said Friday she has sat in on DWI trials before and has watched defendants "get off" because of a lack of evidence declaring them to be intoxicated during the incident.

"There's no doubt when you take someone's blood to see if they are drunk or not," she said.

Audrie Palmer can be reached at palmer@mrt.com.



Fact box:

Youngest driver arrested 17

Oldest driver arrested 56

Average age of drivers 33

Highest BAC with breath test 0.205

Lowest BAC with breath test 0.085

Average BAC with breath test 0.136

Highest BAC with a blood sample 0.32

Lowest BAC with a blood sample 0.13

Average BAC with a blood sample 0.22

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I've often said that the reason I do not post a list of trial "wins" on my website is because I feel that to do so is deceiving to potential clients.  Simply saying "DWI case - Not Guilty" is not fair because EVERY case is different.  Some cases, quite honestly, you SHOULD be winning.  Some cases, are significantly harder.  And in every case, the client's idea of what a "win" is, is different.

My trial this week truly brings this point home.  I represented a client accused of DWI 2nd.  He provided a breath sample of .210, and .220.  Close to 3 times the legal limit.  The offer pre-trial was to be convicted of DWI second, $2000 fine, court costs, 2 years probation, an ignition interlock device on his car, a S.C.R.A.M. device (ankle monitor that checks for alcohol -- very expensive), and 30 days in jail as a term and condition of his sentence.

We decided to take the case to trial, knowing that it was going to be a very tough battle.  The jury ended up finding my client guilty.  After a VERY hard fought trial, the  judge assessed the punishment.  the punishment ended up being a lower fine ($1000 instead of $2000), and only 5 days in jail instead of 30 days in jail.

(5 days in jail, keep in mind, is the statutory minimum jail term if you are convicted of DWI 2nd, and your first conviction was within 5 years.  3 days in jail is required for a DWI 2nd if the conviction was over 5 years ago).

So basically, he was granted the minimum amount of jail time.  For him, it is a win.  Of course, our goal was to be found not guilty, but we still achieved a better result than pleading guilty.  You must factor in, though, that he had to pay his attorney to try the case.  But I suspect if he was asked before trial, if he was willing to pay a little more to spend 25 less days in jail, he would have happily agreed.

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In an interesting development in Plano DWI news, it appears that four officers are now on trial for THEIR misconduct...

Four Plano officers face federal lawsuit
By Stephanie Flemmons, Staff Writer

A Driving While Intoxicated arrest has led to the unveiling of what Tray Boswell believes was a “set-up” by four Plano police officers and his ex-wife.

A federal lawsuit was filed against Plano officers Ron Kress, Michael Nunns, Scott Copeland and Jon Britton.

Boswell’s attorney Don Tittle said the lawsuit is in the initial stages and a dollar amount has not been determined.

On Oct. 18, 2006, Boswell was arrested and charged with a DWI by Kress and other police officers.

According to court documents, probable cause did not exist for the detention or arrest of Boswell, nor was he intoxicated at the time.

Boswell claims the four officers and his ex-wife, Sarah Boswell, planned the conspiracy to charge him with a crime, he said he did not commit. “There is a lot of police misconduct,” Tittle said. “It is beyond outrageous. The Plano Police Department didn’t even bother to conduct an internal investigation.”

During Boswell’s DWI trial, his criminal attorney Phillip Linder, requested the cell phone records from Sarah Boswell. The records indicated that numerous phone calls were made between Sarah Boswell and the police officers over a number of weeks. The calls were initiated by both parties.

Kress, Copeland and Britton claimed they had never met Sarah Boswell despite records showing the calls between the officers’ personal cell phones, both before, during and immediately after Boswell’s arrest.

“It doesn’t take a rocket scientist to figure out what was going on,” Tittle said. “The charge was tried and the district attorney dismissed the case, due to evidence supporting the conspiracy.”

He said Boswell is a musician and his ex-wife knew his routine.

Court records state, at the time Boswell was going through a divorce. There were child custody issues in controversy during the divorce proceeding. Boswel claims his ex-wife used her connection with Nunns to encourage an arrest in an effort to gain leverage against him in their ongoing divorce.

Plano City Attorney Dianne Wetherbee said the officers conducted themselves in an appropriate manner involving the incident.

“We will vigorously defend them,” Wetherbee said.

A few months before Boswell’s DWI arrest, he claims he was illegally detained and then released 30 minutes later.

Court records state Copeland detained Boswell without probable cause and issued two traffic citations. Phone records state on that day, at least four phone calls were made from Sarah Boswell to Copeland, despite their claim of never meeting before.

Boswell has requested a trial by jury, which will take place at the Sherman Division of the Eastern District of Texas.

The Plano Police Department denied comment. Sarah Boswell could not be reached

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Many of my clients come into my office knowing that they want to fight their DWI case.  I'm OK with that.   In fact, as I have stated in past blogs, in general, there is very little to lose by going to trial on a DWI 1st case.

Despite knowing we are going to trial, the plea bargaining process is still an important one. . . even in counties, such as Collin County or Dallas County, where pleaing to a non-DWI offense will almost never happen.

Here is why it is important to get the best offer you can from the state, even if you never plan on pleaing to it.  If you go to trial, and are not successful, often the first thing done by the prosecutor is to look at the last recommendation given to the attorney in the case.  The point being, usually they will be seeking a tougher punishment after trial. 

Often times, you can come to an agreement with the prosecutor on the case... maybe a slightly larger fine, or a few months extra probation if your client is found guilty after trial.  If you did not actively pursue a good plea bargain pre-trial, your negotiating position after trial will diminished.

It is for this reason (and also so the client can weigh all options before deciding whether or not a trial is in their best interest), that I always actively pursue the best plea bargain possible pre-trial, even if the client has their heart set on a trial.

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The following is an article by Lawrence Taylor that is by far the best article I've seen on the "history" of breath testing.  I thought about making comments to it, and adding my take on each of the pieces of the article, but I don't want to mess up his article.  It's great just how it is.

During trial, in a breath test case, attorneys often want to relate the message to the jury that this machine is simply the newest contraption in a long line of contraptions.  The argument is that the state is going to tell us that this is up to date technology, and works perfectly.  . . But here's the problem.  They used say the last machine was up to date technology and worked perfectly.  And the machine before that, and the machine before that.

Right now, in the Collin County, Dallas County and Denton County they use the Intoxilyzer 5000.  some use the en version, and some do not.  There is an intoxilyzer 8000 out there already.  On CMI's website, they even proclaim:

It takes accuracy and reliability to a new level by using both 3 and 9 micron technology together!

With a statement like that, it makes you think, "well, then this 5000 version is outdated!". . .

Here is the full article, with link's to Lawrence's DUI Blog:

Breathalyzers: “State of the Art”?

Posted by Lawrence Taylor on May 19th, 2007

As readers of this blog are aware, I’ve railed long and hard against the so-called “breathalyzers” (see, for example, ”How Breathalyzers Work — And Why They Don’t”).  The number of citizens falsely convicted of DUI because of these gizmos is in the high thousands. A few days ago I commented about how some police agencies are finally abandoning these machines and turning completely to direct blood testing (“So If Breathalyzers Are So Accurate…”).  Why?

Getting convictions in the ongoing “War on Drunk Driving” depends upon the public’s faith in blood-alcohol evidence — particularly in these breathalyzers. And over the 37 years or so that I’ve prosecuted and then defended, prosecutors have always represented them to juries as deadly accurate and fail-safe — no matter what make or model the breath machine. State of the art. Yet, I’ve noticed an interesting phenomenon…..

The manufacturers keep changing them.

A whole lot of years ago, when I was dealing with the grandaddy of the breath machines, the Breathalyzer 900, these devices were presented to juries as ushering in a new age of highly accurate breath-alcohol analysis. And which scientific laboratory developed and manufactured these scientific wonders? Well, not exactly a lab.  Actually, uh, Smith and Wesson. Yes, the manufacturer of that marvel of science, the six-shooter.

And, of course, there were endless problems with these machines, so Smith and Wesson modified it and offered the model 900A. Which continued to have problems, so S&W developed the Breathalyzer 900B — followed by the new, improved, “state of the art” and now truly foolproof Breathalyzer 1000. Which turned out to be even less reliable than the 900.

Of course, this led to the model 1100, followed by the absolutely-no-fooling-state-of-the-art Breathalyzer 2000. Which eventually led to Smith and Wesson finally throwing up their hands and selling out to a German company, National Draeger. (Incidentally, the old Breathalyzer 900s are still being used by some rural police departments today.)

Meanwhile, other corporations had smelled the government money. A new player, Omicron Systems, came out with a machine to compete with the Breathalyzer: the Intoxilyzer. Omicron then sold out to CMI, Inc., which produced the Intoxilyzer 4011 — offered as a vast improvement over the Breathalyzers. This model, like the Breathalyzer, was followed by a series of modifications and improvements (models 4011A, 4011AR, 4011AS, et al.) and, of course, finally by ditching the machine for their new, ultimate gizmo: the Intoxilyzer 5000. Truly “state of the art”. Except, of course, it wasn’t.

So back to the drawing board — and, after a series of modified versions of the 5000 over the years, the latest model: the Intoxilyzer 8000. Which, jurors are again assured, is completely reliable and deadly accurate….until the next improved version.  Predictably, the 8000 is receiving a less-than-entusiastic reception.

Meanwhile, other competitors decided that the sad state of breath testing presented opportunities. Intoximeters, Inc., was created and produced the Intoximeter 3000. Which did not fare well. This time Intoximeters, Inc., gave up relying solely on the underlying technology, infrared spectroscopy, and tried to integrate a simpler method involving electrochemical analysis. Result: the Intoximeter EC/IR. State of the art….until the next improved model is offered.

Others smelled the blood in the water. Verax Systems produced the BAC Datamaster, then quickly gave up and sold out to another manufacturer, National Patent. And the German heirs to Smith and Wesson, Draeger, began marketing their improved version, the Alcotest 7110. And so on….

Each of these devices, their manufacturers assured well-funded law enforcement agencies, was a great improvement over earlier models and competitors’ machines. And in each and every case, regardless of the machine being used, the prosecution would assure jurors that this machine was reliable, accurate and, in fact, “state of the art”: based entirely upon its reading, they could convict the defendant with a clear conscience.

And when defense attorneys would point out the defects and problems, jurors would be assured that this was just “smoke and mirrors” from sleazy lawyers. The defense would point out, for example, that the machine falsely reports a wide range of chemical compounds as alcohol. Acetone in the breath, for example, caused high readings. And prosecutors assured jurors that this was another defense lie…until the manufacturers developed and began marketing acetone detectors.

Then there were the studies indicating that radio frequency interference (RFI) was widely causing unpredictable fluctuations in test results. More smoke and mirrors from the defense, jurors were told. But soon manufacturers were marketing RFI detectors.

And the mouth alcohol problem — another baseless attack on the prosecution’s state of the art evidence, followed by another device developed by the machines’ makers: the mouth alcohol detector. Which didn’t work reliably. And so on ad nauseum….

So what is the latest trend? Apparently, after all of those public reassurances, law enforcement is starting to give up on the machines. Abandoning the search for “state of the art”, they are going in the opposite direction: cheaper, easier to use and even less accurate hand-held breath gizmos used in the field. And, as I’ve indicated in past posts, police are turning increasingly to direct blood analysis: cops jamming hypodermic needles into suspects out on the highways. 

State of the art.

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I have been recently asked:

You stated: "You will receive almost identical punishment if you are found guilty
after trial."

If one is found Guilty, is the punishment generally the same as was
offered in the plea bargain, or generally the full penalty?
---
While I can never predict the future, no judge in the counties I practice in will ever assess a maximum punishment for a first time DWI offender with no history. Standard "plea bargain" punishment before trial, or after trial are almost always the same. Between 1 and 2 years probation, a fine between $300-$800, 24-40 hours of community service, and alcohol awareness courses.

Because of the getting generally same punishment given even if you lose at trial, many charged (when represented by competent DWI counsel), will opt for a trial, knowing there is very little to lose. If you plea guilty you have a 100% chance of being convicted for life. If you plea not guilty, you at least have some chance of keeping your record clean. Depending on the facts of your case, of course, your chances go up or down.

PS. I tried to respond to the sender of this question, but was unable to reply to the email address given. If you need assistance with a case, feel free to call me at 469-252-4018.

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In another attempt to influence the Courts, the New Mexico chapter of MADD (Mothers Against Drunk Driving), has decided to pay $30,000 - $40,000 per year (per person)  in order to "monitor" DWI and DUI in the local courtroom, and the activities of judges and prosecutors.  Oh yeah.. they are hiring 5 full time people to perform this service.

Problem 1:
Political/lobbyist organizations using taxpayer money

I wouldn't be quite as much against this proposition if the funds for the "monitors" was raised independently.  In my opinion, any organization can do whatever they want with their money, and pursue the goals of their organization.  But here, they received $400,000 grant from the state Traffic Safety Bureau.  Taxpayer money going to a political organization.. I see major problems with that.

Problem 2:
The court's "biased" approach to law enforcement

"Metro Court spokeswoman Janet Blair issued a statement on July 25 saying the court has had an excellent relationship with MADD in the past. 'We look forward to their continuing observations in our courtrooms. We will welcome any constructive recommendations that come from their study that will help reduce drunk driving in our community,' Blair wrote.

The court should be an unbiased entity in an adversarial system.  Why would the court spokeswoman be looking forward to recommendations of a lobbying group?  I can't imagine the court spokeswoman taking meetings with the local criminal bar association.

-------------------
The article comes from the posting on the free republic.  See below:

New Mexico MADD chapter moves offices Downtown to better monitor DWI cases
Albuquerque Tribune ^ | 7/26/07 | Christopher Sanchez

Posted on 07/28/2007 6:00:54 PM PDT by elkfersupper

The New Mexico chapter of Mothers Against Drunk Driving has plenty to celebrate.

The organization on July 25 held a grand opening for its new headquarters Downtown and received a $400,000 grant from the state Traffic Safety Bureau to monitor DWI cases in six counties, including Bernalillo, said Terry Huertaz, executive director of MADD New Mexico.

The organization will hire five full-time court monitors to track DWI cases at random and to gather data for an annual report, Huertaz said.

"We're hoping our presence in the court will be a positive thing. We're not there to find something corrupt, but if that does happen, we will expose it to the public," she said. "We don't want to be an organization throwing rocks at the system - we want to be part of the solution."

The report doesn't have to be negative, she said.

"We might see something really awesome going on in a particular county that a district attorney, a police officer or a judge has figured out," Huertaz said, "and we should share that information with everyone."

The court monitors will track 200 to 400 cases annually in each county - Bernalillo, Santa Fe, San Juan, Rio Arriba, McKinley and Doña Ana. They were chosen because they have the highest numbers of alcohol-related arrests, crashes, deaths and injuries, Huertaz said.

The organization received the grant a week before moving into its new headquarters at 1100 Fourth St. N.W., she said.

MADD moved Downtown because it is closer to the courts, the District Attorney's Office and the Albuquerque Police Department, she said.

"We strategically moved here so we can be near all our partners," Huertaz said.

The court monitors will be paid between $30,000 and $40,000 per year, she said.

Metro Court spokeswoman Janet Blair issued a statement on July 25 saying the court has had an excellent relationship with MADD in the past.

"We look forward to their continuing observations in our courtrooms. We will welcome any constructive recommendations that come from their study that will help reduce drunk driving in our community," Blair wrote.

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