Lubbock DWI & Criminal Law Blog : Texas DWI & Criminal Lawyer & Attorney : Stephen Hamilton Law Firm : TX Driving While Intoxicated, Field Sobriety Tests : Amarillo, Odessa

 If your stopped by the Lubbock Police or another police agency in Texas and the officer believes your intoxicated he or she will most likely conduct a "field sobriety test" or series of such tests.  The three tests used the most are called the HGN (Horizontal Gaze Nystagmus), Walk and Turn and One Leg Stand.  What do these tests evaluate?  Can an officer tell if the person has lost the normal use of his or her mental faculties from these tests?  In today's question I discuss some of the problems commonly associated with these balance and dexterity tests.

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 In a recent post we discussed the time periods or deadlines after a Lubbock or South Plains DWI arrest to request a hearing on your driver license "automatic" suspension.  What if instead of a breath test or a refusal to give a breath or blood test you instead agreed to give a blood test?  The time frame for blood is different because at the time the nurse draws the blood the officer does not have the test results.  

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 If you are arrested for a DWI or DUIM (driving under the influence by a minor) in Texas then if you either gave a breath sample and it was over .08 (.04 if in a commercial vehicle or a detectable amount if a minor) or refused to give a sample, you have 15 days, working DPS days, to request a hearing on your license.  If you gave a voluntary blood you will get a letter of the results from DPS and if over .08 you will have 20 days to request a hearing.  It is important if you were arrested for a DWI that you contact an attorney immediately to discuss these deadlines and why you want to always contest your automatic driver license suspension.

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 Every week when I visit with good people who have been arrested for a DWI in Lubbock or the South Plains one question I am often asked is if I get convicted what is going to happen?  I tell folks each case is different but in general you can expect certain things. In today's DWI video question I cover some general answers. 

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 If you or someone you love has been arrested for a DWI in Lubbock or west Texas, most likely the arresting officer read them what is called the statutory warning.  This piece of paper is about 6 paragraphs long and basically tells the person arrested for a DWI about the breath or blood test request.  Today's video tip covers the Implied Consent Law in Texas.

 There are several potential defenses to a "refusal" case.  It is important the arresting officer actually read the statutory warning to you.  It is important he or she does not add anything to or leave out anything on the warnings.

If you have any questions about the statutory warnings and a DWI, please call me, Stephen Hamilton.  As a Board Certified Criminal Defense Attorney my goal is to help you with your case.

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 This week there was an interesting article regarding courts setting time limits of trials.  

To expedite trials and control lawyer excesses, judges have sometimes imposed limits. Some judges restrict the lawyer's ability to make objections or motions, limit counsel's argument to the jury, stop the lawyer's excessive interrogation of witnesses, deny requests for a recess, or restrict a lawyer's communication with her client. Some of these restrictions have been upheld as appropriate methods to administer a trial; others, by contrast, have been struck down as arbitrary impediments to the client's ability to obtain a fair trial. When they are struck down, the appellate decision, whether a civil or criminal trial, usually does not accuse the judge of being overbearing, although in some cases that would accurately describe the judge's conduct.

This already really exists in most courts in some areas of trial.  In jury selection for a Lubbock DWI trial the state and the defense usually get around an hour each to do "voir dire" or talk with the jury.  I've said for a long time that really an hour is too long.  Voir dire is not a time to try and tell the jury about the facts in the case.  Often now I see a prosecutor try and go over every part of their case and get the folks on the panel to agree that the parts they go over are bad and therefore ...you get the picture.  I think what the prosecutor wants to do is take each part of the Lubbock DWI case that the they believe the defendant did not do well with and try and get the jury to commit (without actually asking them to "commit") that if the jury sees this they will convict the defendant.

On a misdemeanor DWI trial in Lubbock the jury consists of 6 people.  The two courts that try these DWI's usually request 18-20 people and we select 6.  I think that 30 minutes is plenty of time to visit with folks about the areas I what to know about.  I also think that these trials should go much faster than they currently do.   I'll talk more about other areas soon.

As the article says the real ability of a good trial lawyer is to be prepared and put the information on in a complete but fluid pace.  

As a Lubbock DWI trial attorney I enjoy trying cases and providing information and true science to a jury.  I'm not trying to hide things from the jury, I believe if the jury hears the true science rather than government junk science my client has a better chance to be found Not Guilty.  If you or a loved one have questions about a Lubbock or west Texas DWI call me, Stephen Hamilton DWI Trial Attorney at 806 794 0394.

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 A Lubbock Police officer (or DPS, Texas Tech police or any other law enforcement officer) in trial on a driving while intoxicated case in Lubbock typically testifies that the three "standardized field sobriety tests" are divided attention tests.  I often hear the following:

"These tests are designed to divide a person's attention just like driving a car"

"These tests help me (the officer) determine if the driver is intoxicated"

The problem with these answers is simply they are not true as to whether a person can safely operate a motor vehicle.  The fact is that if driving is a divided attention test then the grade should not be from some abnormal tests that nobody ever does when trying to get their driver license.  Has anybody ever had to put their arms down to their side, raise one leg off the ground 6 inches, point their foot out, look at their foot and count out loud, one thousand one, one thousand two, etc till the officer says stop in order to get a driver license?  Answer: ABSOLUTELY NOBODY!!  

The fact is these balance tests show little when it comes to whether a person can operate a vehicle in a safe manor.  I'm Stephen Hamilton, Board Certified Criminal Law by the Texas Board of Legal Specialization and I fight these worthless, government propaganda stupid human tricks every day.

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 Today's Lubbock DWI video tip focuses on what do do after you have been arrested in Lubbock or the South Plains for a DWI.  I know that your worried and not really sure what to do next.  Your concerned about your job, record, about the possibility of going to jail and your driver license.  If you or a loved one has been arrested in Lubbock or West Texas for a DWI, this video tip touches on a few things you should know.

My name is Stephen Hamilton and I am Board Certified in Criminal law by the Texas Board of Legal Specialization. I focus my practice in the area of DWI defense and criminal law.  If you or a loved one has questions about a driving while intoxicated charge, call my office at 806 794 0394.

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 Lubbock Texas Department of Public safety crime lab tests hundreds of samples of blood yearly from driver suspected of driving while intoxicated offenses.   If you're arrested in Lubbock or the South Plains for a DWI offense, the chances are your blood was tested by the Lubbock lab. What happens if you went to dinner and you had two drinks over say 2 hours.  You know your not intoxicated, you feel no affect of the alcohol at all.   You get in your vehicle and drive home and someplace along the way the police officer stops you for speeding.  He smelled alcohol and after a few balance tests arrested you for DWI.  You gave a blood sample because you knew you were not guilty and you were shocked when the blood test came back above the legal limit.  How could that be?  Well maybe the lab tested the wrong blood or mixed up your blood sample with another suspect.  

That is exactly what happened in California recently.  

 A young client had been arrested for drunk driving by the Los Angeles Police Department and had a blood sample drawn from his arm. He swore to us that he was innocent, and we believed him. Problem: the blood alcohol content of the sample was .15% — almost twice the drunk driving limit.

Now what?

We obtained a portion of the sample from the LAPD crime lab and sent it to a private lab that we use for reanalyzing the blood samples of all our DUI clients. The lab reported the blood alcohol level to be .13% — lower, but a long way from being under .08%. As we requested, the lab also tested for preservative and anticoagulent (either fermentation or coagulation can raise the alcohol level in the sample), but everything appeared in order.

Our client still insisted he was not driving under the influence of alcohol. The only other possibility was a faulty chain of custody. In other words, the LAPD lab (the same one that botched the O.J. Simpson case) got the vial of our client’s blood mixed up and tested someone else’s blood.

So we had the sample blood-typed to see if it was that of another arrestee. Result: type O — the same as our client’s. But, then, that’s the most common type of blood.

Next we had blood taken from our client and, along with a portion of the remaining sample from the LAPD lab, shipped to a laboratory in Oklahoma that specialized in DNA testing.

A month or so later the report came back: the blood tested by LAPD was conclusively not that of our client.

With hundreds if not thousands of blood tests going thru the Lubbock lab every year for folks arrested for Lubbock DWI's I wonder how many tests would show that the sample reported was for a different person.  If only these state labs ran a DNA verification test on each we would know.  But of course why do that mistakes like that can never happen, right?  Every DWI case I have I always talk to my client about obtaining an independent blood test to check for contamination.  Now we better add a DNA test to that as well.

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Today's video topic is the Intoxilyzer 5000 and how it relates to a Lubbock Texas DWI arrest.  If you were arrested in Lubbock or the South Plains for a DWI and gave a breath test at the police station, you did so on what is known as the Intoxilyzer 5000.  It is the breath test machine's result that can be admitted into evidence against you in court.  In other words, it is the breath test that counts.  It is the machine that prints out the result that the prosecutor will use to try and show you were intoxicated because your breath or blood alcohol concentration was over the legal limit.  Here is an overview of how the machine used in Lubbock DWI breath test cases operates.

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As a Lubbock DWI attorney I have always tried to increase my scientific education to help better defend my clients. I enjoy the scientific aspect of DWI defense.  I certainly enjoy being able to use science, true science, to show that much of what the government "sells" the public as science has no or little backing in the scientific community.   

I'm excited to say that today I have been accepted into the University of Florida Master of Science in Forensic Toxicology program.  Don't worry I won't be leaving Lubbock as most of the classes are thru the distance learning program.  Thus I can continue to do what I love to do, defend citizens accused of a crime but I can also continue to increase my education and scientific foundation.  

The Forensic Toxicology focuses on general and advanced principles of toxicology, forensic toxicology and drug metabolism providing a strong foundation in analytical techniques, pharmacokinetics, drug elimination and toxicology. Modules in forensic pharmacology, doping control, postmortem toxicology, expert testimony and QA/QC procedures are also featured.

Some of the areas of study will include:

Drug Biotransformation & Molecular Mechanisms of Toxicity; Forensic Toxicology I and II;General Toxicology; Laboratory QA/QC; and Scientific Evidence and Statistics.

DWI defense has really become a defense, attack and understanding of science.  I have had courts tell me that DWI trial are the most complicated because of the scientific issues involved.  True DWI defense at least in Lubbock and the area of my practice is not always where it should be.  I am not trying to pick on lawyers but some lawyers who handle DWI's don't understand or bother to try and understand the science involved.  If your case involves so called "field sobriety tests" then your lawyer should have taken the same classes the police officer did so he or she knows how to administer the tests and how to grade the officer to see if the officer did them correctly.  If you took a breath test, your lawyer should understand the breath test machine, have taken training classes in the science behind the breath test machine and maybe even own a breath test machine.  If you took a blood test, don't you want somebody who has been thru a gas chromatography class and who has some basic understanding of the science behind the blood test?

I can't wait for the Summer session to start, as they say knowledge is power.

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 If you or somebody you love has been arrested for a DWI in Lubbock Texas and gave a breath sample at the Lubbock Police Department or the Lubbock County Detention Center you did so on the machine called an Intoxilyzer (better known as the intoxaliar, or assumptionizer) 5000.  

For the past few years DWI lawyers in other states and Texas have attacked the breath test machine.  As we learn more of the lack of science behind the machine the more areas of attack become apparent.  Chuck Ramsay, a DWI attorney in Minnesota has been litigating the reliability of the Intoxilyzer 5000 for several years.  Recently in Minnesota a Court has held that the machine cannot be used to prove that a person refused to give a sample.  The idea of the machine is that a person must blow a certain amount of air thru the machine for a certain length of time.  If not, the machine classifies the non sample as a "deficient" sample.  

Few people realize that Judge Abrams did not find that all test results are admissible. He actually highlighted the fatal errors in the source code that wrongly reject perfectly valid samples, stating that, “In cases in which the Intoxilyzer 5000EN … reported a ‘Deficient Sample,’ the Source Code of the instrument does impact the reliability, solely, of this result. Evidence in such cases of a ‘Deficient Sample’ test report should not be allowed ….”

In the order’s Conclusion, the court indicates the machine reports a deficient sample even when the sample is not actually deficient.

There is one limited situation, as discussed earlier, in which the labeling of a sample as “deficient” arises from multiple causes. At least one of these causes is a consequence of the Source Code's instructions to the microprocessors and has little, if anything, to do with whether the sample is actually deficient.

Under my cross examination, BCA experts were forced to openly admit that the current version of the source code has more than three times the number of deficient samples as the prior version. According to the BCA’s own data, hundreds of drivers each year who provide a sample greater than 1.1 liters are deemed to have provided a deficient sample!

Unlike Minnesota, it is not currently an offense to refuse to give a breath sample in Texas.  Usually when the machine classifies the breath test sample as deficient the arresting officer will mark the case as a refusal.  The consequence of a "refusal" is a longer potential driver license suspension.  There are medical reasons a person cannot blow 1.1 liters of their breath thru the machine.  If you had problems giving a sample and the arresting officer said you refused that does not mean the government can prove that you refused to give a breath test.  If you or a loved one were arrested in Lubbock or West-Texas for a DWI wouldn’t you want the government to have the best available “guesser” for you? Is  just close enough for government work acceptable for your loved one?

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 We always talk about what to do when your arrested.  There are certain things that if you do these actions can have a positive affect on your case.  In today's video help clip we talk about what not to do if you have been arrested for a DWI in Lubbock Texas.

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 Well May is almost here already and soon the 82nd session of the Texas legislature will come to an end.  We still have no real answers as of today on the 27 billion dollar budget shortfall.  We are seeing proposed massive (some say 8 billion) cuts to public education and college tuition is set to increase potentially at historic levels to account for state cuts to public universities.  However one thing back on the legislature's agenda is the ability of the government to set up roadblocks to harass the citizens of Lubbock and all Texans.  

Over a dozen years ago, the Court of Criminal Appeals ruled the Texas roadblock statute unconstitutional, some in the legislature have pushed forward on new legislation to legalize roadblocks for DWI in Texas.  As it stands now nobody knows if the roadblock bill will pass this time.  The fact is roadblocks won't fix the problem of folks who drive while intoxicated in Lubbock.  What they will do is cause more folks who have had a drink but are not intoxicated to be arrested.

"A little over one percent of the cars pulled over for checkpoints get arrested for DWI. They arrest them for a lot of other things, but if the goal is to stop drunk drivers, the dangerous and deadly drunk drivers, the roadblock is not the answer," 

Imagine that you have a drink or two at dinner.  After a few hours you head home.  On the side street there is a roadblock and your stopped.  Of course your not intoxicated but as the officer asks for your license, he says have you been drinking tonight?  You say yes I had two drinks and the Lubbock Police Officer asks you to get out of your vehicle.  What faith would you have in doing any field sobriety tests at this point?  Would you trust the government?

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