Plano DWI Lawyer Blog

On July 8, 2010 the Texas Sentate Criminal Justice Commitee heard wide ranging testimony
on DWI policy. Among the topics discussed were the surcharges imposed on people convicted of DWI and the potential for legislation authorizing sobriety checkpoints.

At the Dallas Morning News, it was reported that witnesses testified that,

"stiff civil fines and mandatory punishments have prompted those arrested for driving while intoxicated to refuse plea deals and probation that could include treatment and alcohol monitoring. Instead, they are insisting on jury trials."

Resulting in a  "20 percent drop in conviction rates since 2005, and a court backlog of 125,000 casescivil fines and mandatory punishments have prompted those arrested for driving while intoxicated to refuse plea deals and probation that could include treatment and alcohol monitoring. Instead, they are insisting on jury trials."

It doens't appear that any of the witnesses attributed any portion of the drop in conviction rates to not guilty verdicts delivered by juries due to the filing of marginal or poorly investigated cases.

The Houston Chronicle coverage of the hearings reported on testimony concerning the potential that Texas may move forward on establish the legal framework authorizing sobriety checkpoints.  As I have blogged about in the past, The Texas Court of Criminal Appeals ruled approximately fifteen years ago that sobriety checkpoints, without specific legislative authorization, are unreasonable and therefore unconstitutional.  Since that time, the political will to pass law establishing such checkpoints has not existed.  Perhaps that is changinng, perhaps not.

  In some of the testimony yesterday, Bill Lewis of M.A.D.D. analogized the public roads of Texas with airport security checkpoints while testfiying in support of checkpoints.  Said Mr. Lewis "I've never tried to carry a gun into the airport or the Capitol or the Senate gallery, yet I go through a checkpoint." 

There will always be a tension between public safety and individual privacy as guaranteed by the Constitution.  If Mr. Lewis envisions a society in which travel n public roads is as intrusive and regulated as passing through airport security, I must confess that I don't share the same view.

When a person is arrested for DWI in Texas, they will soon face a criminal charge. Most people understand this. Many of the people that consult with me about their DWI  do not know that they will soon be dealing with a civil case that is addressed exclusivley to the issue of whether their license to drive will be suspended.  This civil case is known as Administrative License Revocation or ALR .

Many people who are aware of the process and the deadlines, nevertheless don't understand the value in exercsing their right to a hearing.  I am frequently asked if the hearings can be won.  The answer is an emphatic YES!  ALR hearing can be won, and often are won by experienced and dilligent DWI attorneys. 

Some of the reasons why it is always a good idea to request an ALR hearing are as follows.

1.  It is one method to force disclosure of the "discovery."  The discovery is a term that refers to the documentary evidence that the Department of Public Safety's attorneys plan to use to seek suspension fo your license.  By using the ALR discovery process, you can force the State to reveal details about the evidence against you.

2.  You can subpoeana the arresting officer to the ALR hearing.  By issuing a subpoena to the arresting officer you can compel his or her testimony under oath.  This may be the only opportunity that you will have to question the officer under oath about the facts of your case prior to trial.

3.   The ALR hearing is an opportunity to explore defenses and issues in your criminal DWI case.  At the ALR hearing, you will have an opportunity to, among other things, contest the legality of the stop of your car, contest the lawfulness of the process by which your breath or blood was collected.

4.  ALR hearings are often won.  With an experienced DWI attorney, flaws in the ALR case can be exposed and turned to your advantage.  If you win the ALR hearing, the Department of Public Safety will not be authorized to suspend your license.

5.  When you request an ALR hearing, your license to drive will be preserved at least until the hearing. 

What should your attorney look for in handling an ALR case?

Just by way of example,

Did the police stop your car lawfully?

Does the admissible evidence concerning the police observations establish probable cause to arrest?

In a Chapter 524 case, is there admissible proof that you operated the car?

In a blood test case, was blood collected in a sanitary place by a person authorized to draw blood.

Did the police comply with the fifteen minute observation period?

Did the police impart any erroneous advice related to the consequences of refusing or taking a breath test? 

Was the discovery promptly turned over by the Department's Attoreys?

This is a just a partial list of the sort of issues that can be effectively raised in properly handling an ALR case.  If you have been arrested for DWI, please do yourself a favor and consult and experienced DWI attorney within FIFTEEN DAYS of your arrest.  The failure to request an ALR hearing within 15 days will result in a suspension of your license.

The Mayor of Houston announced recently that she was scrapping a program that trained police officers to draw blood.  The Houston Police Department officers were being trained to draw blood so that they could personally take blood samples from DWI suspects. In the most chilling aspect of the news media coverage surrounding the Mayor's decision, the officers were apparently drawing blood from live subjects at a psychiatric unit of TDC.  

Rather than training police officers to draw blood in the unsanitary conditions of a jail, would it not be more safe for all involved to simply have qualified medical personnel draw the blood in a hospital setting that is equipped to address emergencies or unexpected events?  The police are not trained or equipped to address the peculiar medical conditions of the person they have arrested, nor are they capable of dealing, on their own medical emergenices that may arise.

The Texas Transportation Code provision regulating blood draws has two main requirements.  First, the blood must be drawn in a sanitary place, and second it must be drawn by a person who is listed in the satute as qualified or who is a qualified technician.

In my view, having police drawing blood at the police station may violate the Texas Transportation Code.  Further, and even more importantly, that manner of blood draw may be unreasonable as a Fouth Amendment matter.  I look forward to continuing to raise thethe statutory and constitutional issue in appropriate  blood draw cases

In yet another situation involving the Intoxilyer 5000, approximately 360 people in Washington D.C. were convicted of Driving While Intoxicated based on evidence of their alcohol concentration provided by the machine known as the Intoxilyzer 5000.
Just one problem. Due to human error, the results were inaccurate by as much as twenty percent!

The Intoxilyzer 5000 is the "instrument" used in Texas to measure the alcohol concentration of persons suspected of DWI.  In the DC case, human beings were able to manipulate the baseline data, intetnionally or not, that resulted in the false reporting of the alcohol concentration.  

Nevertheless, the results of the Intoxilyzer 5000 were accepted as accurate by juries in the DC cases, just as the results are sometimes accepted as accurate by juries in Texas and elsewhere. 

According to a press release issued by the Plano Police Department, the Plano Police plan to conduct a so called no refusal weekend over the Memorial Day weekend. The press release is here.

During a no refusal operation, if you are arrested on suspicion of DWI and refuse to submit to a breath or blood test, the police will prepare an affidavit in support of a search warrant application.  The affidavit must recite facts that demonstrate that the police have probable cause to believe that you were DWI and that evidence of alcohol or drugs will be found in your blood.   The police will then present the affidavit to a judge who will review if for probable cause.  In practice, the police rarely appear in person before a judge and swear to the affidavit.  Rather, the typical practice is for them to fax it or recite it over the phone.

Recently, the Fifth Court of Appeals in Dallas sidestepped the question of whether the Texas Code of Criminal Procedure requires that the police swear to the facts contained in the affidavit in the personal presence of the magistrate.

In the case of Swenson v. State of Texas the Court stated that

I have written about this issue previously, but was pleased to see that momentum appears to be building in Texas to address the problems associated with the surcharge program.  For those of you that don't know, the Texas legislature established a series of new surcharges that took effect in 2004.  The misnamed law is referred to as the Driver Responsibility Program. 

    Essentially, a person convicted of driving while intoxicated will be required to pay a $1,000 annual surcharge for the first thrity six months following a conviction, just to maintain their driver's license.  If a person is convicted of a second or subsequent DWI, or their breath or blood test is .16 or higher the surcharge amounts are greater.

Recently, a former District Judge testified before the Texas Public Safety Commission that the effect of the surcharge program has been to actually increase DWI dismissals because so many more DWI cases are being tried to juries since the passage of the surcharge law.  There are approximately 1.2 million drivers in Texas presently who are subject to the surcharge law who are unable or unwilling to pay the surcharge.  

The Public Safety commission convened a hearing in an effort to assess public opinion concerning a partial amnesety proposal to reduce the surcharge amounts for the indigent.  In 2007, the Texas Legislature authorized the Department to create a program to address the indigent inability to pay. This recent hearing appears to be the first step that the Department has taken toward the creation of such a program. 

It is important to remember that under the current state of the law, the Public Safety Commission does not have the authority to eliminate the surcharge. It may only carry out its legislatively authorized mandate to create a program addressing the reality that many of the drivers subject to the law, cannot pay. 

Should the Texas Department of Public Safety fail to address the issue in a meaningful and significant way, there are those in the Legislature who may introduce legislation to change ro eliminate the surcharge. 

It will be if Texas State Senator Jane Nelson R-Flower Mound, has her way.  Senator Nelson, reacting to an Easter morning tragic crash in which three people lost their life, has proposed a change in the law because she feels that "the penalties are not severe enough to change behavior."  She plans to introduce legislation in the 2011 session that would provide for a mandatory lifetime driver license suspenison for those convicted of a second dwi offense. 

Currently, the law provides for a maximum two years suspension for a Driving While Intoxicated, second offense.  A second DWI conviction is a misdemeanor punishable by up to one year in a county jail and a $4,000 fine.  We have all heard of three strikes and your out.  This particular provision, if it becomes law, would essentially operate as a two strikes and you are out law. 

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In 2003 the Texas Legislature, while casting about for a new source of revenue, came up with the idea to create a surcharge program for those convicted of, among other crimes, Driving While Intoxicated
 The law provides, essentially that a person convicted of driving while intoxicated will be required to pay a $1,000 annual surcharge for the first thrity six months following a conviction, just to maintain their driver's license.  If a person is convicted of a second or subsequent DWI, or their breath or blood test is .16 or higher the surcharge amounts are greater.

If a person can't or won't pay, your license will be suspended.  Many in the broader public may simply shrug their shoulders and say "too bad, shouldn't have been convicted of DWI", but that misses the point.  The DWI laws themselves already provide the potential for stiff fines that punish and deter.  This surcharge program has nothing to do with punishing those who drive while intoxicated.  This program is an effort to generate a government revenue stream, off an unpopular segment of society.

The program isn't working as intended an ought to be discontinued.

I was pleased to read over the weekend on the Dallas Morning News editorial page, a piece advocating the elimination of these surcharges.    Calling the program an "embarassment." the News specifically urges the Legislature to "pull the plug."  Thank you, Dallas Morning News for calling attention to this. 

Fortunately, this has not yet started in Collin or Dallas County. Apparently, the District Attorney's Office in Montgomery County, Texas has begun publsihing the names of those arrested for DWI in that County on the D.A's Twitter feed.

In a guest column in a local Collin County newspaper, the Frisco Texas police department has announced that it will be seeking blood from Driving While Intoxicated suspects over the upcoming Holidays. There is nothing per se unusual about this, but for the fact that they plan to conduct the blood draw at the Frisco Police station.  The blood would be drawn from the suspect not at a hospita,l where there are facilites and equipment available to deal with an emergency should one arise, but in the confines of the Frisco Police Department.

The Texas Transportation Code section 724.017 requires that the the blood of a DWI suspect be drawn in a "sanitary place."  Is the Frisco Police Department a sanitary place within the meaning of the law?  The broader question, in my mind anway, is why?  Is the need to obtain a blood sample so urgent  that the police can't wait a few minutes to transport the arrested person to a hospital?  Not at all.  In fact, traditionally, blood draws have nearly alwsy been taken at a hospital.  In my view, the convenience of having the blood drawn a the police station is vastly outweighed by the risks associated with sticking a needle into a person about whom the police know next to nothing.  For example, the police will not know anything about the person's medical condition and history, allergies, etc.

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A Collin County man was recently arrested by the Wylie Texas police and charged with possessing pepper spray.  He was charged under Texas Penal Code 46.01 with a Third Degree Felony. 

The problem is that the law specfically authorizes citizens to carry a small chemical dispensing device sold commercially for personal protection.  The story ends well in that a Collin County Grand Jury refused to indict the case and issued what's called a No Bill. 

Proving that the Fourth Amendment is not just a myth, the Second Court of Appeals in Fort Worth, Texas issued its opinion on Friday in the case of State of Texas v. Johnston.   

  Johnston was arrested on suspicion of Driving While Intoxicated.  While at the police station her blood was drawn over her objection by two police officers.  Her blood was not drawn at a hospital.  Her blood was not drawn by a nurse.  Her blood was not drawn by someone who had the slightest clue about her medical history or medical issues that may exist.  

Instead her blood was drawn by two policemen at the police station.  The trial court excluded the blood test results as a Fourth Amendment violation.  The Fourth Amendment requires, among other things, that searches be "reasonable."   The Court of Appeals in this case found that the search in this case was not reasonable.  A sensible decision and a victory for the Fourth Amendment.  

I will use this case where appropriate, to seek to exclude the blood test results of my clients in future cases.  Some factors to look for will include, the location of the draw.  Who is performing the draw?  Is that person qualified?   Is the draw conducted pursuant to a stardard operating procedure that is written down?  Does the person performing the draw know anything about my client's medical history or medical conditions. 

I'm not the first to blog about this issue, and it has been fairly well covered both by the by the Collin County Observer as well as by Hunter Biederman, but I wanted to share my perspective because I find the WFAA coverage so misleading. 

For those who are not familiar, WFAA recently broke a story strongly implying that a Collin County prosecutor fixed a case for some unspecified personal benefit; with the after the fact knowledge of her supervisor.  Specfically, the piece indicates that this particular prosecutor (who has since resigned from the Collin County District Attorney's Office); waived a jury, cancelled all the witnesses who could have provided eveidence of guilt,  and intentionally presented no evidence when the case was called for trial, thus ensuring a not guilty verdict. 

The misleading part?  The story would have you believe that this was an airtight case of guilt and the only explanation is that the prosecutor threw the case for some unknwon reason.  The story leads the viewer to conclude that the civilian witnesses were the source for this story and that they came forward because they were so outraged. 

 In fact, the source for the story appears to be a disgruntled former Collin County junior prosecutor who was recently let go by the office.  For weeks prior to the WFAA story, the local attorneys were aware of this particular prosecutor, and that he sent an email to a former law school professor in which he accuses his boss of fixing the very case reported on by WFAA. 

The second aspect of the story that is misleading is the claim that this case was so airtight.  Apparently the disgrunted former junior prosecutor believes so, and that's part of the problem.  He lacks the experience and judgment to know the difference.   WFAA reported the story from this premise based on the facts apparently supplied to them by the disgruntled former prosecutor.  Was it an airtight case?  Well, there are numerous honest reasons why a hardworking honest prosecutor might conduct a no evidence bench trial.  Perhaps the stop of the defendant's motor vehicle was "bad." Maybe the defendant looked great on video or the case was poorly investigated.  Maybe there was some problem in the way in which the breath sample was collected that would have prevented its admission into evidence. 

Continue reading "COLLIN COUNTY DWI CASE BURIED? NOT SO FAST." »

In many driving while intoxicated cases in Collin and Dallas Counties, and throughout Texas, the state relies upon a machine known as an Intoxilyzer to try and secure convictions. The theory is that this machine can measure the grams of alcohol present in  a specified volume of breath.

Regular maintenance of the machines is critical, and the Department of Public Safety frequently outsources this task. Recently, over one thousand DWI convictions is Harris County Texas were eligible to be set aside because one of the inspectors hired to maintain the instruments simply falsified the maintenance records.  This particular inspector handled machines that were used by seven separate police departments.  Instead of working, she simply pocketed her salary.

In spite of this, in many of the cases involved here, the "technical supervisors" presumably testified at the trial of those accused of DWI.  The techinical supervisors testify to the accuracy and validity of the breath test result. The technical supervisors presumably testfied to the validity and accurance of the breath test results, never knowing of the falsity, and relying completely upon the work of another person. 

I see many, many trials where the technical supervisors testify that the breath test result is accurate, frequently relying on someone else's work.   I have never had a personal concern about the honesty of any of the technical supervisors I have met in Collin or Dallas County, but the potential for abuse still exists in this system.  Our system deserves better.

Imagine being pulled over in your car by a police officer who suspects that you are driving while intoxicated.  Imagine also that he requests a blood sample and rather than taking you to a hospital where a qualified person will draw your blood, he simply produces a kit and takes the blood himself at the side of the road.

Unimaginable?  Read on.

Under the current state of the law, the Texas Transportation Code prohibits the police from taking blood samples from Driving While Intoxicated suspects themselves. In other words, the police are required to take their suspect to a "sanitary place" and have the blood drawn by someone who is qualified to draw the blood.

I was startled to read recently that Texas has sent some of its law enforcement officers to Idaho to be trained in blood draw techniques. Since this practice is expressly prohibited by Texas law, what is the point?  The point may be a concerted push by law enforcement to change the law to authorize the scenario I described above.  This is the wrong way to go about achieving the goal of reducing the number of intoxicated motorists on the road.