Plano DWI Lawyer Blog

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.

,   

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.    

Another set of changes to the law governing the ALR process will go into effect soon, and some of changes are not positive for Collin and Dallas County who wish to contest the suspension of their license in an Administrative License Revocation hearing.

HB 2370 amends Texas Transportation Code 524.039 and requires a showing of "good cause" before the ALR judge will authorize a subpoena for the breath test operator to appear at the ALR hearing.  In other words, the law now allows the judge to refuse you an oppoprtunity to call the very person who obtained your breath sample as a witness at your ALR hearing.

 The breath test operator is frequently an important witness for the motorist at the ALR hearing and can shed light on crucial defensive issues, such as the requirement that the person suspected of DWI be observed for fifteen minutes prior to the taking of the test.   In order to establish good cause, lawyers for DWI suspects will have to be more diligent and determined than ever to study the facts surroundin the taking of the client's breath. 

From my perspective, this is another example of the slow but sure march to eliminate process for people accused of Driving While Intoxicated.  As an attorney practicing in this field for ten years, I don't understand the harm that the legislature apparently perceives in having an open, complete, hearing on the issue.  I, for one, eagerly view each ALR hearing as an opportunity.  The legislature has decided to erect another barrier, but creative lawyering will frequently carry th day.

A new law taking effect tomorrow, September 1, 2009 will make it easier for the police to obtain blood samples from motorists whom they suspect are intoxicated.

Under previous law, except in limited circumstances, if police suspected that you were intoxicated, the law required them to explain their suspcicions in writing to a neutral, detached judge who could consider whether probable cause existed to draw your blood. Senate Bill 328 becomes law tomorrow and it will allow the police to obtain blood in greatly expanded situations.

*  If someone other than the suspect is injured and was transported to a hospital.

*  If the person is arrested for Driving While Intoxicated with a child under fifteen in the car

*  If the suspect has been previously convicted of Driving While Intoxicated two or more times;

or has previously been convicted of DWI with child under fifteen, intoxication assault, or intoxication manslaughter. 

The legistature has consciously decided to dispense with the warrant requirement.  The warrant requirement has been a fundamental feature of our legal system since the beginning. 

In the name of expediency and speed, our law now removes this time honored method of checks and balances between the different branchs of government.  Personally, I look forward to developing creative new challenges in the cases that will arrive with the change in law.

Frequently, potential clients ask me if there is any point in conducting an Administrative License Revocation (ALR) hearing.  My answer is always an emphatic YES!  It seems there is a misconception out there that ALR hearings cannot be won by the person accused.  This is false and I can only imagine that this myth is  perpetuated by attorneys that don't put much effort into them.

 Even if you don't win, there are numerous reasons why it's important to conduct an ALR anyway.  First,The ALR hearing will likely be the only opportunity you have to question the police officer that arrested you under oath prior to trial.  If a hearing is set I will compel the State's lawyers to turn over all the evidence they intend to use against you at the hearing.  This will include all police reports and frequently breath or blood test results. Also, unless strategy suggests otherwise, I will require the presence of the arresting officer at your hearing.  The ALR hearing is a tremendous opportunity to test the strengh of the State's case against you and to look for weaknesses in their case.  At the ALR hearing I will be looking for ways to challenge all aspects of the state's case in an effort to maintain your right to drive.       If you prevail at the ALR hearing the civil case is dismissed and you WILL RETAIN YOUR RIGHT TO DRIVE.

In an ALR hearing I conducted this week, it looked like an uphill fight.  The client's car was stopped after he was reported to be involved in a car accident.  He consented to have his blood drawn and the toxicology report indicated a high alcohol concentration.  Airtight case?  Not quite.  At the hearing I argued that the paperwork admitted into evidence by the Department of Public Safety's lawyers did not show that the person who took my client's blood was qualified to do so, and that there was no proof that the blood was drawn in a sanitary place.  Both of the above are requirements of the law.

The judge agreed with my argument and refused to allow the DPS to suspend my client's license.   

I have learned the Collin County law enforcement, in connection with the District Attorney's Office, is planning to conduct a "no refusal" weekend ove the 4th of July.  This means that the police will be seeking search warrants for the blood of all DWI suspects that refuse to submit voluntarily to breath or blood samples.

Collin County will be operating one as well.
--------------------------------------------------------------------------------
Posts: 51 | From: McKinney, Texas, USA | Registered: 02-19-01

Motorists in Collin and Dallas Counties, and throughout Texas, will now have fewer protections against having forcible blood draws. A few months ago I blogged about SB 261, a bill that sought to expand the authority of police to obtain a sample of blood from driving while intoxicated suspects.  The changes proposed to the law in that bill have become the law in Texas.

 The police will now have the authority to take blood samples from DWI suspects when there was an accident that required someone other than the DWI suspect to be taken to a hospital or medical clinic. In addition, it authorizes blood draws for people accused of DWI with child - a state jail felony, and people who are suspected of having two prior DWI convictions or a prior felony DWI conviction.

 Bear in mind that this law gives police authority to take the samples without your consent or the approval of a neutral, detached judge through the warrant process. If the police are convinced that their suspect is, in fact, intoxicated, why the legislative push to cut judges out of the process? Why not present the evidence to a judge who can review it? I would anticipate many more blood draw cases. The upshot of all this? There will be many more opportunities for me  to challenge the lawfulness of these warrantless, non consensual blood draws in specific cases on behalf of my clients.

In a previous post I discussed the Intoxilyzer 5000, which is the device used in Texas to take a breath sample from motorists who are suspected of being intoxicated while driving.  As I mentioned in the previous post, attorneys are having increasing success in obtaining court orders to have CMI, the manufacturers of the Intoxilyzer 5000, turn over the source code that is found in the software supporting the device to defense attorneys who seek to review it. 

Now, the Minnesota Supreme Court has ordered the source code to be turned over.  Rather than abide by a lawful court Order, the manufacturer has refused.  In turn, authorities in certain Minnesota counties will no longer use the Intoxilyzer 5000 in DWI cases because the results will be inadmissible in court unless the manufacturer of the Intoxilyzer 5000 relents and complies with the court order to allow attorneys access to the source code.  

It is a fundamental principle of our law that people accused of crimes are entitled to confront the witnesses against them and access the evidence that is utilized by those who seek to convict them.  Until CMI is willing to allow defense experts to review the source code, attorney will continue to press forward with this claim.  

I have previously posted about the Texas legislature this session, and the move to make changes to DWI laws here and here.   As the session winds down, it appears that the lawmakers in Austin have at least one more proposed revision to the law.  House Bill 4061 authored by Todd Smith R- Euless would expand the use of Ignition Interlock or Deep Lung Devices.  An Ignition Interlock Device is a device which is installed in a car and is designed to prevent the car from starting if a breath sample submitted to the machine indicates an alcohol concentration over a pre set limit.  The Bill would require anyone convicted of Driving While Intoxicated and placed on community supervision to have such a device installed.  This new law would apply even to first time DWI convictions.  This Bill has cleared the House.  It's fate in the Senate remains uncertain.  If passed, Texas would join only six other states to have made such a requirement.

While there is little room for debate that Driving While Intoxicated is a social ill, there is legitimate debate about the punishments to be imposed.  This Bill, if passed, would not require Ignition Interlock devices for hard core, repeat offenders.  Rather it would impose an obvious, obtrusive device in the car of every single person convicted of DWI.  The law would make no distinction between the otherwise law abiding person who made one mistake, and the alcoholic who repeatedly drives while intoxicated.  In my view, mandatory Ignition Interlock devices for first time DWI offenders who are over twenty one are an unwarranted intrusion into the personal sphere.  The devices are already mandated in Texas for those under twenty one, or repeat offenders.

 The organization known as MADD apparently does not have concerns about intrusions into the personal sphere.  Accoording to their campaign to eliminate drunk driving, MADD not only supports the requirement of Ignition Interlock devices for all first time DWI offenders, it also supports the idea that equivalent technology be placed in all cars during the manufacturing process.  In other words, if MADD's policy is adopted, all cars would be manufactured with the technology to detect alcohol.