Lubbock DWI Field Sobriety tests are a FRAUD

Posted on October 23, 2009 by Stephen Hamilton

Pretty aggressive statement right?  The truth is that the field sobriety tests used to arrest folks in Lubbock and all over Texas for driving while intoxicated have major flaws.  Many articles have been written to show all or lots of the problems with the balancing tests.  One area of major concern with the balance exercises is that there were NO pier review studies done of the standardized field sobriety tests before they were used widespread.  Now pier review articles reviewing the "standardized field sobriety tests" are being conducted and the results should scare everybody.

Much of the new research shows the lack of validity in the Walk and Turn, One Leg Stand and Horizontal Gaze Nystagmus.   

A scientific study (144(3) Science and Justice 133-139) has investigated the scientific validity of the nystagmus test: The Horizontal Gaze Nystagmus (HGN) test was conceived, developed and promulgated as a simple procedure for the determination of the blood alcohol concentration of drivers suspected of driving while intoxicated (DWI). Bypassing the usual scientific review process and
touted through the good offices of the federal agency responsible for traffic safety, it was rushed into use as a law enforcement procedure, and was soon adopted and protected from scientific criticism by courts  throughout the United States. In fact, research findings, training manuals and other relevant documents were often held as secrets by the state. Still, the protective certification of its practitioners and the immunity afforded by judicial notice failed to silence all the critics of this deeply flawed procedure….

In 1998 the integrity of the statistical evaluation of the original research upon which the validity of the tests rested was unfavorably reviewed [5]. In 2001 new research indicated that the Horizontal Gaze Nystagmus (HGN), the cornerstone of the test battery was fundamentally flawed and that the HGN test was improperly conducted by more than 95% of the police officers who used it to examine drivers suspected of driving while intoxicated (DWI) [6]. This summary critique demonstrates that it is scientifically meretricious and that the United States Department of Transportation indulged in deliberate fraud in order to mislead the law enforcement and legal communities into believing the test was scientifically meritorious and overvaluing its worth in the context of criminal evidence….

As Lawrence Taylor, a DUI attorney in California puts it, "Deliberate fraud.  Pretty strong language for a scientific journal. After reviewing the flawed and deceptive justifications for using nystagmus in DUI investigations, the researchers concluded that the test was essentially without scientific validity."  

Every DWI trial I have, I try my best to explain to the jury that the fact that a person can't balance perfectly does not mean that my client is intoxicated.

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Arrested for a Lubbock DWI? Stop posting on facebook and myspace

Posted on October 19, 2009 by Stephen Hamilton

These days many of us have social media accounts.  We use facebook or myspace to communicate with old classmates and new business relationships.  We post pictures of our children for grandparents to see and enjoy.

There is nothing wrong with using facebook or other social media sites.  However, if you are arrested for a crime, any crime but especially a driving while intoxicated charge in Lubbock or west Texas, PLEASE do not post information about the arrest on your account.  It is very possible that the district attorney who will be working your case will also be reviewing your facebook account.  Think I'm joking, recently a posting on a myspace account helped convict a person of murder.

“I was reckless. I was irresponsible. I was an a***hole . . .but I’m not an intentional killer. . . .There’s no attempt to hide the crime. I didn’t clean up anything. I didn’t change clothes.”

In other words, Clark asserted that he had only a reckless, not criminal, state of mind, according to the opinion. The court held that it was proper to permit the prosecution to confront Clark with his own seemingly prideful declarations that rebutted his defense. “Clark’s MySpace declarations shared much with his boast to the police after he killed Samantha: `It’s only a C Felony. I can beat this.’”

Bottom line is if you have your charged with a DWI take a look at your facebook account and make sure your not posting any type of pictures or entries that talk about your guilt or any post arrest drinking.  Imagine some day if your at trial and your defense is you have learned your lesson, think the DA would like to show that you are still drinking after being arrested for DWI?  You bet they would.

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When I'm arrested for a DWI, is my license suspended?

Posted on October 18, 2009 by Stephen Hamilton

Several times a week a talk to good folks who have been arrested for driving while intoxicated in Lubbock, TX or someplace else in west Texas.  Almost always the issue of whether their license is valid after being arrested is a question they have.  

The real confusion comes from the language the Texas Department of Public Safety uses and the multiple reasons or options a driver license can be lost.  So here are some basic points to keep in mind.  

ISSUE #1 SUSPENSION 

  • If you are arrested for a DWI or a minor DUI in Texas and either refuse to give a breath or blood sample or if your over .08 on a breath test, the officer will confiscate your license.
  • If you blow under .08 and are over 21 then the officer should not confiscate your license.  However. lots of officers do so anyway.
  • If the arresting officer does take your Texas license he/she should give you a "Notice of Suspension, Temporary Driver Permit.
  • If your license was valid at the time of your Lubbock DWI arrest then you are legal to drive on the permit for a limited period of time.
  • The permit is good for 40 days IF you do nothing.  
  • THE MOST IMPORTANT PART OF THE PERMIT IS THE SMALL PRINT AT THE BOTTOM OF THE PAPER THAT INFORMS THE PERSON THAT THEY HAVE 15 DAYS FROM THE DAY OF THEIR ARREST TO REQUEST A HEARING ON THE SUSPENSION.
  • If a hearing is requested within the 15 day time period then the temporary permit is good until the hearing which will be long after the 40 day period.

Simple so far right?  

ISSUE #2 CANCELLATION 

Now let's say that when the person was arrested as a condition of bond the court or magistrate required an interlock device to be installed.  Texas law allows the court to do this if the person has been previously CONVICTED of a DWI.  Side note, if you plead to an offense that was not a DWI in the past make sure you tell your lawyer so he or she can get the interlock order removed.  

  • If you are ordered to have an interlock and that order is sent to DPS then DPS will CANCEL your Texas license and require you to pay $10.00 and provide proof that you have the interlock in the vehicle.
  • This is a type of "restricted license" that you can operate a vehicle so long as the interlock is in the vehicle.

The confusion lies in the canceled verse suspended language.  Bottom line is that if you are required to have the interlock and you have the notice of suspension paper then you can drive on the paper license so long as you also have the interlock in the vehicle and have complied with the restricted license provisions such as paying the $10.00 fee.

One last note, when the court allows the removal of the interlock, DPS must receive an order in order to remove the requirement from your license.

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Texas DWI Breath Tests, can they be trusted?

Posted on October 11, 2009 by Stephen Hamilton

Recently a Texas Breath testing supervisor for the State of Texas was sentenced to a year in prison for faking thousands of Texas DWI breath tests.  

One of the real problems with the breath testing program in Texas is the secrecy of its work.   

From 2002 until she was arrested in October 2008, Wallace handled DPS instruments that were used to determine alcohol concentration in DWI cases for at least seven police departments — League City, Friends wood, Webster, Seabrook, Galveston, Clute and South Houston.

In court documents, Wallace told investigators that she had falsified inspection records for both the South Houston and Clute police department Intoxilyzers.

Some of the police departments owned the Intoxilyzers under Wallace's supervision, while others borrowed or leased the devices from her.

Buess said Wallace manipulated the machines instead of changing the reference sample every month, and pocketed $146,000.

Think about it, the government says you are guilty because you blow into a machine and the result that the machine prints out is over a .08, that is, pretty simple from the government's view.

Now look at the rest of the story.  Your arrested on the side of the road in Lubbock for Driving While Intoxicated.  The arresting officer asks if you want to take a breath test.  You know you are under the legal limit and want to prove it so you agree.  

 You wait at the scene of your arrest for thirty minutes to an hour before you are taken to the jail to take the breath test.  

  • In Lubbock if the Lubbock Police Department arrested you then the breath test is at the Lubbock City jail.  If DPS, Texas Tech Police Department, Slaton PD or any other agency arrested you, the breath test is at the Lubbock County jail.

Issue #1  The DWI Law in Texas is driving WHILE intoxicated.  The state must prove your blood or breath (more on this issue in another post) at the time of driving.  So let's says when you got to the station and took the breath test you blew .11.

Again from the government's position pretty simple, .11 is over .08.  

The problem is this simple understanding does not follow scientific principles.  Because there was a delay in the breath test of 30 minutes from the time your were stopped for suspicion of driving while intoxicated in Lubbock to an hour from the arrest, we don't know the alcohol concentration at the time of driving.  

Add to that the fact that from the time of the stop to the time of the arrest is probably another thirty minutes that means the alcohol in your blood or breath could have been rising from the time All of a sudden something as simple as a breath test result is not so simple. The Houston example maybe abnormal or not but without access to the Texas Breath Testing program how do we know?

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Under-21 DWI could mean a one-year license suspension

Posted on September 24, 2009 by Stephen Hamilton

A new law starting this month eliminates the distinction between being under-21 at the time of a DWI arrest and over-21 when convicted of a DWI no longer exists. The law recently changed to make clear that if a person is under-21 when arrested for a DWI and over-21 when they convicted, their driver license is still subject to a one year suspension.

This new law means that if a person is arrested and convicted of a DWI, then his or her driver's license will be suspended for a year from the date of conviction or for 90 days but that the person would then have to install an interlock device on their vehicle to drive.  

Yet another reason to fight any under-21 DWI conviction.

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Are DWI suspects' rights being violated by new mandatory blood law?

Posted on September 24, 2009 by Stephen Hamilton

September 1st of every odd year many new laws go into effect in Texas.

This is because our legislature meets every odd year and many laws passed by the session start of September 1st of that year.  In 2009, the legislature passed a law that allows for a "mandatory" blood test of any one suspected of driving while intoxicated (PDF) IF certain conditions are met. One of the requirements is that the arresting officer have "a reasonable belief" that the suspect has two prior DWI convictions.  

According to the release,

Senate Bill 328 allows authorities to draw blood without warrants for the following additional offenses: driving while intoxicated-3rd offense; driving while intoxicated with a child passenger; driving while intoxicated, where the officer 'reasonably believes an individual other than the suspect suffered bodily injury and was transported to a hospital or similar facility'; driving while intoxicated with a previous conviction of DWI with a child passenger, intoxication assault or intoxication manslaughter.

I'm intrigued to see how law enforcement attempts to use the law. Specifically, I'm curious:

  • How far can an officer go in his reasonable belief?  
  • What if the officer is wrong?  
  • What if the prior case against a citizen accused was dismissed or rejected?  
  • What if there was a finding of not guilty by a court or jury?  

I believe this law is unconstitutional and overreaching by the government. But what else is new these days. The government wants to take away many rights. The bigger question here is what will happen to this law, will it be upheld? I have my ideas, but as they say, time will tell.

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To be guilty of a DWI, you have to be the DRIVER

Posted on September 19, 2009 by Stephen Hamilton

Interestingly enough most DWI cases involve, whether or not the state can show beyond a reasonable doubt, that the citizen is intoxicated when they were stopped. In Lubbock, and all of Texas, the definition of intoxication means that either the person was at or above a .08 at the time of driving or that the citizen had lost the "normal" use of mental or physical faculties.

A few weeks ago I tried a DWI case that involved the issue of whether the state could prove my client was driving the vehicle.  It was clear from the video, the witnesses and the officer that my client was certainly intoxicated. What was not clear was whether my client was driving the vehicle.  After an accident, the Lubbock Police Department showed up and arrested my client, in Lubbock, for driving while intoxicated.

I presented evidence to a jury of six that showed my client could not have been driving because she received injuries that were consistent of her being a passenger. The jury agreed and acquitted my client. A few weeks later, a Lubbock Court signed an order removing the arrest from my client's record.

The bottom line is Texas DWI defense is not "cookie cutter" law. Every case has different fact and different issues.  My job as the attorney is to find those facts and those issues that will help my client.

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