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. 

  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. 

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. 

  As an aside, since the defendant in the case reported on by WFAA was found not guilty and the case was expunged, it seems to me that their source violated the Texas expunction statute by providing a copy of the police report to WFAA. 

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.    

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.

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.

 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.   

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

 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.

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.  

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.