Articles Posted in DWI Seminars

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 Her speech was a significantly easier topic, considering Texas uses the old and outdated Intoxilyzer 5000.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

 

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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!!)

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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

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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