Average DWI Arrests in Austin: 1994 - 2005
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:
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.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.
How Much Should You Tell The Prosecutor?
Blonde Justice has a recent post where she, in effect, asks the question “How much should I tell the Prosecutor about my case?”. Her answer: it depends on the Prosecutor. I agree with her. Read her post for her example, but here’s mine:
Let's say hypothetically speaking that I have a DWI case where the officer on scene is evaluating whether or not my client was intoxicated. At one point, before arresting my client, the officers says something that helps my client’s case immensely. Also, it's nothing so outrageous as "I'm not sure this guy is intoxicated"; it's just something that helps my case.
My dilemma is this: do I point out to the prosecutor what it is that the officer says, and explain how that helps my case? If I do that, and they refuse to dismiss the DWI, I have no doubt that they will bring up that portion of the videotape and show it the officer before he testifies.
If the officer knows beforehand what I’m going to ask him about his statement, I’m sure I’ll hear a different explanation than if I set him up correctly on cross examination, and bring it out for the first time in front of the jury.
If I felt confident that the prosecutor would fairly evaluate the entire videotape of my client on the scene, taking intop consideration the officer's statement, then I would have no hesitation in using that as a bargaining chip. As Blonde Justice said, it all depends on your relationship with that particluar prosecutor.
Definition of Intoxication for DWI - Texas Penal Code
§ 49.01. DEFINITIONS. In this chapter:
(2) "Intoxicated" means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.
