Texas DWI Lawyer Blog

I have recently started a separate blog for DWI issues and questions which can now be found over at the Austin DWI Lawyer Blog.

Topics covered: Texas DWI laws, traffic stops, field sobriety tests, license suspensions and ALR hearings, occupational driver’s licenses, pretrial motions and trial issues.

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Even the Police Oppose a Police State Mentality

I will soon launch a new DWI blog, where I talk specifically about issues surrounding Texas DWI laws, and more specifically, how they affect folks arrested in Austin, Texas for DWI.

Still days (weeks?) away from officially going online, I have some ideas swimming around in my head for topics. One that jumps out is MADD’s new campaign to eventually have ignition interlock devices put in all cars…yes, that means you, even if you’ve never even gotten a speeding ticket.

I refrained from commenting on this issue, due to its increased relevance for my soon-to-be blog, when I ran across this post, from The LawDog Files, titled "MADD Loses Their Ever-Loving Minds":

Well, Mothers Against Drunk Drivers is about to lose support from this Peace Officer.

In a desperate attempt to prove that Nietzsche was correct, Mothers Against Drunk Drivers has issued the outline of their National Campaign to Eliminate Drunk Driving.

In pursuit of this goal this, they have stated Four Points.

The first of which is increased DWI Checkpoints -- a moot point for me, since Sobriety Checkpoints are currently unconstitutional in the State of Texas. As it should be.

Kudos, by the way (and off topic) for the officer recognizing checkpoints for what they are: an infringement on everybody’s liberty. He continues:

It's the third tick on the MADD wish list that really sets the cat amongst the pigeons. Allow me to quote it here:

"Exploration of advanced vehicle technologies through the establishment of a Blue Ribbon panel of international safety experts to assess the feasibility of a range of technologies that would prevent drunk driving. These technologies must be moderately priced, absolutely reliable, set at the legal BAC limit and unobtrusive to the sober driver;"

Allow me translate that for the Gentle Reader: MADD wants technology developed to be installed in every car that will prevent intoxicated drivers from starting the car.

Well, if that’s not a police state, tell me what is. More from the LawDog:

Believe me when I say that I hate drunk drivers at least as much as anyone at MADD -- if not more so.

Nevertheless, you can not -- you CAN NOT -- trample on the rights of everyone else in your crusade to end drunk driving.

I am not a drunk. I am not a drunk driver. I do not want a piece of equipment with the "good enough" reliability of a cell phone or a computer operating system determining whether I should be allowed to start my car or not.

I do not want to install a gadget on my car to decide if I may start it because you're afraid that someone else in this country might be drunk.

"Quis custodiet ipsos custodes?"…that Latin phrase from high school asking “Who will guard the guards?” Apparently the “guards” themselves are balking at some of the draconian, no, Orwellian methods proposed in the DWI wars…

DWI License Suspension Periods Heading Up

Grant Griffiths’ post about pending legislation upping the Driver’s License Suspensions in Kansas for DUI got me thinking:

Under the proposal, a first-time DUI offender would receive twice the standard license suspension if his BAC was .16 or greater. Three offenses at the higher level would result in permanent revocation of driving privileges.

Here in the capital of Austin, Texas (where we call it DWI), the legislature meets every two years, and this subject come up every session. Increasing the DL suspensions for DWI convictions is a popular political maneuver, for legislators that want to be known as “tough on crime”.

Unfortunately, it’s one of those things that probably increases rather than decreases “crime”. Driving has become a necessary part of life these days. And most of my DWI clients are, by far, first time offenders. Considering all the counseling, fines and community service a first time DWI offender receives, why subject them to arrest for Driving While License Suspended?

Grant also mentions that these license suspensions apply in Kansas, even if the defendant is never convicted of the offense. The same is true in Texas.

License revocations should be limited to repeat DWI offenders.  And “DWI offender” should mean those actually convicted of the offense.

New Travis County Court Proposed To Help With DWI Backlog

News8 Austin had a recent segment on how the increasing number of DWI arrests in Austin has caused the current County Court judges to ask for another court:

Each month Travis County court-at-law judges handle thousands of criminal cases. Judges say their average monthly caseload has increased 60 percent since 2002… Each county court currently has an average of 3,200 cases pending… In the last decade, the number of DWI cases has risen 135 percent.

DWI cases can backlog a system faster than any other type of misdemeanor, precisely because of the way we (as a society) handle them. Austin Police Department has, for all intents and purposes, moved towards an “arrest anyone with the odor of an alcoholic beverage on their breath” standard. The more questionable DWI arrests that are made, the more the innocent civilian decides he wants to take a case to trial – which causes the backlog.

The criminal justice system depends on plea bargaining most cases, or it will grind to a standstill. Practicing in these courts everyday, I can vouch for the need of at least one new court.

Average DWI Arrests in Austin: 1994 - 2005

Austin DWI Arrests Monthly Averages

Austin Police Department's DWI Enforcement Unit (Task Force) was created in 1998.  Since then, DWI arrests in Austin, Texas have more than doubled.

Around the Blogs (DWI and DUI)

A Lawrence Taylor post on how body temperature can distort Intoxilyzer results.

DUI Rob reminds us that Radio Frequency Interference can effect the Intoxilyzer 5000.

George Creal posts an article from the Arizona Daily Star on “inconsistent” police testimony in DWI cases.

St. Louis DWI Lawyer writes about some of the factors NHTSA trains officers to look for in a DWI.

And Tiffany Sanders reminds us DWI arrests sometimes happen, even if you’re not on a street or highway.

Qualifying a Marijuana Expert for the Defense

I enjoyed Cliff Hutchison’s post at the ScienceEvidence Blog (cleverly titled Don’t Bogart That Expert) about the qualifications of a marijuana defendant’s expert witness. 

The case discussed involved a former criminal defense lawyer who was an opponent of the drug war, who had been qualified in 100 marijuana cases to testify as an expert witness, always for the defense. The court eventually ruled that the defense had not properly established his qualifications as an expert in the field.

However, they rejected the Government’s theory that his testimony was more prejudicial than probative, simply on the basis of his bias against our current system of prohibition and incarceration.  Cliff questioned that part of the finding:

Query, though, if the government wasn’t correct in arguing that an advocate witness has no business offering Rule 702 testimony? Logan claimed to have testified in over one hundred marijuana cases, and if his testimony was consistently an argument favoring marijuana defendants, how can it be considered reliable? The testimony becomes simply bolstering, in the guise of expert opinion, hence not helpful to the fact finder.

I have to jump in and disagree here. Let me make my point by using some obvious and common examples from the prosecution. Would this mean that the Austin Police Department’s DWI Task Force officers, who are qualified as experts in the standard field sobriety tests based on their NHTSA training, would be disallowed if it turned out they always testified for the prosecution? (I assume it’s self evident that they do.)  If I could just get them disqualified, I'd probably win every case...

Intoxilyzer 5000 Source Code: It's a State Secret

Cobb County DUI lawyer Rob Leonard posts an update over at the Georgia DUI Blog about CMI being ordered by a Georgia Judge to turn over the source code for its Intoxilyzer 5000. The State of Georgia is appealing this ruling.

Well…what’s the “source code” mean anyway? It’s basically the software that tells the machine how to interpret the physical data it receives from the defendant’s breath, and how to convert it to BAC. The number it spits out (.041, .086, .119) is then compared to the so called “legal limit” of .08, to see whether the defendant is per se guilty of DUI. 

Defendants often want to be able to see how the machine analyzed their breath. CMI has fought and fought in courts all over the U.S. to keep this information secret. Apparently, we are supposed to take the manufacturer’s word that the machine is perfect.

Austin Police Department Starts Targeting Certain Bars Again

KXAN NBC reports that the Austin Police Department is keeping a list of the bars that last served DWI suspects. They get the information during the questioning of the suspect on scene and prior to the arrest.

"We try to get these officers to ask them, 'Where have you been drinking?' If it's a business establishment. To give us an idea of are there any violations at those businesses that are already serving to people intoxicated?" APD Lt. Craig Cannon said.

APD then hands over the information to TABC. At first blush, this may not sound unreasonable. The problem lies in the method of collecting the data. Once certain bars are targeted by a police department, that becomes the area that DWI task force officers patrol. More officers in a certain area means more detentions, more arrests, and more arrests for DWI. Then more DWI suspects report their last drink came from one of the bars on the list.

As soon as a list is first established, and without using a random or statistically significant sample size, it becomes a self-fulfilling prophecy. The current top five on the list are Cedar Street, Rain, Club Carnaval, Blind Pig and Oilcan Harry’s.

Sleep Apnea and Driving While Intoxicated (DWI)

Washington, D.C. personal injury lawyers Regan Zambri and Long write a post about a study in the American Journal of Respiratory and Critical Care Medicine regarding patterns of sleep apnea in truck drivers. Criminal Defense practitioners should take note of this study as well:

When the participants took driving tests, those who suffered from sleep apnea had motor skills impairments consistent with drunk driving. Of the truckers with sleep apnea, one-third of them also experienced attention lapses comparable to intoxication.

Oftentimes, when police find someone who has “passed out behind the wheel”, they jump to the conclusion of intoxication. DWI defense lawyers need to be aware of all the possible reasons someone may seem intoxicated, when in fact they are not.