Plano DWI Lawyer Blog

To reflect changes made to the Texas Transportation Code effective September 1, 2011, the state Department of Public Safety has amended both the DIC 23 and DIC 24 (as well as the 54).

The DIC 24 is a document that is more commonly known as the statutory warning.  It is a script that Texas police officers are required to read to Driving While Intoxicated suspects prior to requesting a breath or blood sample.  Essentially, is informs the suspect of their statutory rights, and the consequences of refusing to submit to the request for breath or blood.   The new form includes language explaining to the suspect that if he or she refuses to submit, the officer may request that a judge issue a search warrant for the person's blood.

Similarly, the document known as the DIC 23 has also been amended to reflect new legislative changes.  The DIC 23 will no longer need to be sworn to by a notary. 

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The client drove his car into a Texaco station (literally) after sideswiping another car on Central Expressway. Hospital records indicated the presence of multiple controlled substances in the client's system.  Seems like an airtight case? 

Well, at first glance, maybe.  The fact of the matter is that there were multiple physical and emotional conditions that explained the bizarre driving.  Further, the drug test was a urine "screen" which shows presence of a particular drug.  It cannot show when the drug was taken, how much was ingested, the form of ingestion (oral, intravenous), whether the drug in the urine is still even in the blood,  or a host of other factors that may influence the concentration of a particular drug in a person's blood. 

Further, the state did not call a witness who actually performed the drug test.  The bottom line is that there was a rushed decision that this was a DWI case.  The evidence at trial just did not show that.  The jury did the right thing and the client was relieved and pleased.

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During the last decade, the U.S. Supreme Court has focused a great deal of attention on what is known as the "Confrontation Clause" of the Sixth Amendment to the U.S. Constitution.The Confrontation Clause provides that persons accused of crimes have the right "to be confronted with the witnesses against" them.  

 The recent case of  Bullcoming v. New Mexico  is the latest example of the Court's interestthe Court held that Mr. Bullcoming's Confrontation Clause rights were violated when he was denied the opportunity to confront and cross examine the analyst who actually test the alcohol concentration of the blood in his case.  In Bullcoming, the prosecution called a different lab analyst to testify than the one that actually analyzed Bullcoming's blood sample.  The Court held that this testimony was not proper as Mr. Bullcoming was not able to confron the witness who actually analyzed his blood.  Rather, he was able only to questions a surrogate analyst testifying to what another analyst did to reach his or her conclusion as the alcohol concentration.

This decision may impact Collin County Driving While Intoxicated cases because it will likely require the State to arrange for the anaylist that actually performed the blood test to appear in court to testify and be subject to cross examination before the results of a blood test will be admissible against an accused person

Generally, if a person who has been arrested for Driving While Intoxicated in Texas refuses to submit to a request for breath or blood made by a police officer, the officer must seek a search warrant from a judge authorizing him or her to draw the blood over the person's objection.
In order for the Judge to consider the search warrant request, the officer must prepare an affidavit describing the facts that the officer believes will establish probable cause that evidenced of a crime (DWI) will be found in the person's blood. This affidavit must be sworn to in the presence of a neutral and detached  judge. Often, police officers seek to satisfy the requirement that they swear to the truth of the matter in the affidavit by calling the judge and swearing to it over the phone.
Texas Code of Criminal Procedure 18.01 appears to require the personal presence of the affiant in front of the judge. The Fifth Court of Appeals in Dallas, Texas avoided directly addressing the question in the case of Swenson v. State.  I have written previously about the Swenson court's decision, here.   

The Twelfth Court of Appeals in Tyler, Texas however has directly addressed the question of whether Section 18.01 of the Texas Code of Criminal Procedure requires an officer to personally appear and swear to the truth of the information in the affidavit in the case of Taylor v. State.

The Taylor court held that the Code does require that the "affiant must be physically present in front of the magisttrate or officer authorized to administer oaths when swearing to the facts in his affidavit."

Thus, at least in the Twelfth, telphonic swearing of the oath does not comply with the Texas Code of Criminal Procedure.  How will this affect Driving While Intoxicated cases in Collin County or Dallas County?  Well, lawyers must continue to file Motions to Suppress the blood test results when the blood was obtained by a search warrant when the facts were sworn to over the phone.  We now have a Court of Appeals case specifically identifying the process as not in compliance with the Code of Criminal Procedure.  The issue, in my view, is eventually headed to the Court of Criminal Appeals.

Approximately eighteen months ago I wrote here about the decision of the Fort Worth Court of Appeals to uphold a trial judge's ruling that the method by which a Driving While Intoxicated Suspect's blood was drawn at a police station was constitutionally unreasonable.  Because the Court ruled that the manner of the blood draw violated the Fourth Amendnment to the U.S. Constitution's requirement of reasonableness, the Court agreed with the lower Court decision to exclude the results of the blood test from evidence. 

The State sought appeal to the Texas Court of Criminal Appeals and recently the Texas Court of Criminal Appeals reversed the Fort Worth Court of Appeals.   The case is known as State v. Johnson, and in Johnson the Court held that the blood draw was constitutionally reasonable, and appeared to go so far as to indicate that it will presume the constitutional reasonableness of venipuncture blood draws in the future. 

What does this mean for the future of DWI enforcement in practical terms?  I would anticipate that many police agencies will develop programs to draw blood at the station and may arrange to have officers themselves trained to draw blood, as opposed to medical professionals.  I read the Johnson case to "green light" these programs.

A blood draw warrant is a search warrant requested by a law enforcement officer and signed by a judge.  It is a search warrant that specifically authorizes the police to have blood drawn from the person of a Driving While Intoxicated suspect.  In almost all cases in which the police seek a search warrant for blood, they do so because a person has refused to submit voluntarily to a request for a blood sample after they have been arrested for Driving While Intoxicated.

When the police seek a search warrant for blood, they must prepare, sign, and swear to an affidavit that seeks to persuade a judicial officer that evidence of the crime of DWI (i.e. alcohol or drugs) will be found in the suspect's blood.  The affidavit is often a pre printed form in which the officer will check the applicable boxes or fill in the blanks.  The officer is then required to present a sworn affidavit to a judge setting forth the facts on which the officer bases his or her request.  The law appears to require that the office appear before the judge and swear to the truth of the matter.    In practice however, the sworn affidavits are sometimes faxed,and the officer is sworn over the phone, not in the judge's presence. This practice may violate the Texas Code of Criminal Procedure, as there is presently no legislative auhortization for faxed search warrant applications as there is in the Federal Rules of Criminal Procedure.  Presumably, if Texas lawmakers wanted faxed search warrants they could pass a law allowing for it.  

The issue of blood draw search warrants being faxed has been raised in Collin.   The Fifth Court of Appeals in Dallas avoided making a decision on the propriety of swearing affiant's over the phone and faxing search warrant affidavits.  In  Swenson v. State  the Court affirmed Mr. Swenson's conviction by finding that, even if having the officer sworn over the phone is unlawful, the search warrant is nevertheless valid under the good faith exception.  In other words, if the officer in good faith relied upon an invalid search warrant, the evidence seized pursuant to the warrant need not be excluded from evidence because the officer relied upon the warrant "in good faith."

The admissibility of blood test results in court may also be challenged in other ways.  For example if the affidavit in support of the search warrant does not establish probable cause. Other potential areas include whether the blood was drawn in a sanitary place, as required by law, or whether the blood was drawn by a qualified person. 

In addition, other factors may bear on whether the seizure of blood is constitutionally reasonable such the location of the draw, the extent to which the person drawing the blood is aware of the particular medical conditions of the suspect, etc. 

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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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.

In my career as a trial atttorney I have tried many cases in which my client was accused of being intoxicated due to some substance other than alcohol.  Recently, I tried a DWI case to a jury in which my client struck a police cruiser with her car in broad daylight and admitted to the use of prescription meds.  At trial, the State attempted to introduce evidence that my client was intoxicated due to prescription drugs.  I successfully argued to the judge  that there was no evidence that the drug analysis was performed with a scientifically valid technique.  Further, and even more importanly, I argued that there was no evidence that drug analysis in question was even performed on my client, as opposed to some other person. 

Fortunately for my client, the judge understood the law and refused to allow the jury to hear scientific evidence in the absence of any showing whatsoever.  The jury returned a Not Guilty verdict quickly.

In the case of Layton v. State of Texas, Mr. Layton was not so lucky, at least at the trial level. Layton's attorney objected to testimony concerning his client's use of prescription drugs arguing that in the absence of scientific evidence demonstrating its relevance to Layton's alleged intoxication, the jury should not hear the evidence.  The judge disagreed and allowed the jury to hear the evidence.  The jury convicted Mr. Layton. 

On appeal, the Texas Court of Criminal Appeals reversed the conviction and held that the testimony was not relevant to the issue of intoxication in the absence of scientific evidence establishing its relevance.  Layton should be a good case to rely upon in arguing to courts that police testimony concerning my client's dug use should be excluded from court.