Plano DWI Lawyer Blog

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.