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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 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?

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 Many times when I visit with a potential client I am asked so why should I hire you instead of lawyer x?  My answer is I think there are several important factors you should look for when you hire a DWI attorney.  First, is the attorney you are interviewing focused on criminal law and DWI defense or is he or she a "jack of all trades?"  What I mean by that is DWI defense the majority of his/her practice or does the lawyer also do wills, divorces, car wrecks, real estate work etc.  There is nothing wrong with practicing in lots of different areas but in my opinion trying DWI's in Lubbock and west Texas is complicated and takes lots of time to focus on the case.  Personally I could not imagine handling lots of different type of cases outside the area of DWI defense and criminal law because I need the time to focus on your case.

Second, is the lawyer board certified in criminal law by the Texas Board of Legal Specialization?  A Board Certified criminal lawyer practice is focused on criminal law and he or she has certain hours in continuing legal education that are above what the state bar annually requires.  The board certified criminal lawyer has also passed an extensive test showing his or her level of specialization in criminal law.

Recently Rob McKinney a Nashville, TN Criminal lawyer had an excellent article on how to evaluate and what to look for in a criminal/ DWI attorney.  The article was written by DUI lawyer Justin McShane.  I have known Justin for years and have attended many specialized training programs with him.  Here is what Rob and Justin think:

Be sure to ask and demand to see the qualifications of your attorney. Not all attorneys are the same. Therefore, it is up to you and to you alone to be selfish and to become an educated consumer of attorneys. One of the smartest things that you can do is insist on a resume of your attorney. An attorney, who doesn't have a resume of some sort, in terms the extracurricular education that he or she has received, is probably someone that you should steer away from.
Knowledge is evolutionary and at the end of the day it is only the most current attorneys who continue to learn and who continue to keep up on the ever expanding knowledge base in DUI who will help you maximize your chances of getting an acceptable result at the end of the day.

Being charged with any crime is a very stressful situation.  You should take your time and interview several lawyers.  Find your comfort level with each attorney, discuss your case not some one size fits all answer.  Make sure you know the deadlines of when hearing requests need to be filed.  Be educated, be informed and be comfortable with your decision.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 The answer is NO.  However, when last week I was reading a few of the criminal cases that were decided by our Texas Court of Criminal Appeals, the highest court for criminal cases in Texas one case got me thinking about what the police might want to do when a person refuses.  I was especially disturbed by a case that started here in Lubbock and involved some sadistic behavior of several Lubbock police officers.  Several days later the same case caught my attention again when I was reading (yes that is a lot of what we do these days, read) Robert Guest's blog.  I've know Robert for several years and find his blog very informative. As Robert explains the case it goes something like this.

Facts- from the 7th Court of Appeals
One thousand-one, one thousand-two, one thousand-three, one thousand-four, one thousand-five, one thousand-six, one thousand-seven, one thousand-eight, one thousand-nine, one thousand-ten, one thousand-eleven, one thousand-twelve, one thousand-thirteen, one thousand-fourteen, one thousand-fifteen, one thousand-sixteen, one thousand-seventeen, one thousand-eighteen, one thousand-nineteen, one thousand-twenty. That was the amount of time Officer Arp initially tased Anthony G. Hereford, Jr., according to the instrument's log. At the time, appellant was handcuffed and being held down in a hospital emergency room. Arp wanted appellant to spit-out what he had in his mouth. When appellant did not comply after Arp's first foray, the tasings resumed. No one viewed appellant as a threat to others during the episode. Nor had he attacked anyone. Arp simply wanted appellant to comply. When asked if "repeated taser use [was] acceptable" and whether "20 seconds worth of tasering" was "okay," the policeman answered "yes" to both. Arp was not the first to tase appellant, though. Officer Williams had already done so twice at a locale miles away from the hospital. He too wanted appellant to remove the items, which Williams thought to be drugs, from his mouth, and met with no success. So, Williams decided to take appellant to the hospital in effort to gain medical assistance. In continuing where Williams had failed, Arp said he administered all but one of the electrical shocks to Hereford's inner thigh region; others saw them being administered to appellant's "groin area.
Fortunately, the Court of Criminal Appeals agreed that the 4th Amendment prohibits electro shock torture as an evidence gathering tool (Keller dissented).

One name stood out because he has made several DWI arrests of in the past that I have represented.  What stood out more was what this officer did and his behavior started me thinking.  I wonder if a citizen was stopped in Lubbock for a DWI and refused to take any field sobriety tests, would this officer simply pull out his taser and start counting?  What if the citizen refused to take a breath test?  We know the answer when it comes to blood testing and a warrant because they will strap the citizen down and take the blood if the police have a warrant or in certain situations even when they don't have a warrant.  The idea is the ends justify the means.  The problem with that philosophy is where does the state or government stop?  So what do you think, would the police taser a person who refuses to do field sobriety tests?  Most no but a few I'm not so sure about.  Here is a link to the court of appeals case if your interested.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

If you have been arrested for a DWI or drug case in Lubbock the chances are some of that arrest has been videotaped.  It is important, sometimes a matter of your true liberty, that all of the stop and interaction with the police is on video and audio.  One of the problems areas concern is when the police officer either turns off his or her microphone so the audio is not captured or moves you from the view of the camera so the field sobriety tests are not captured on video.

Often times I will review my client's Lubbock DWI arrest video and see that when the officer does one of the field sobriety tests that the arresting officer has moved my client out of the view of the camera. Usually this is done when the officer is doing what is referred to as the HGN.  The HGN is the horizontal gaze nystagmus test, often called the "eye" test.  What the officer is looking for is the "twitching" of your eye.  They have been trained in a three day class to look for if your eye bounces at certain speeds or angles and if so to testify that this means your "intoxicated."    

There are two definitions of "intoxication" in any Lubbock DWI case.  First is that you have consumed so much alcohol that you have lost the normal use of your mental or physical faculties.  Second, that your breath or blood test score is .08 or higher.  As I have discussed before there are absolutely no studies to show any relationship between HGN and the loss of normal use of your mental or physical faculties.  The only issue with HGN is the probability that with certain clues your breath/blood alcohol is over a .08.

One of the problems with using HGN as a "clue" of intoxication is that the officer must conduct the HGN test in a prescribed manor.  The officer must do certain passes of your eye at certain speeds and hold for certain prescribed periods of time.  If the officer does it wrong the test should not be admissible in trial against a person.  So if the officer does not want his paper graded, does not want your Lubbock DWI lawyer to check how the officer conducted the test, the officer will simply move you off camera.  Then he will testify about some reason it was necessary to do so.  

Videotaping all of the field sobriety tests is absolutely critical in any DWI investigation.  Recently in a non DWI case, the city of Brownsville was sued because an officer filed false charges against a defendant.  This defendant actually went to prison and later it was discovered that a video existed to proved the innocence of the accused.  

Here's an actual innocence case out of Brownsville that doesn't exactly fit the DNA exoneration mold, from the Courthouse News Service, which reports the story of George Alvarez, who "spent 4 years in prison based on a Brownsville Police jailer's false assault charge against him, and BPD's concealment of a video that proved his innocence." The Court of Criminal Appeals recently approved his habeas corpus writ based on "actual innocence" grounds, and he's filed a civil rights lawsuit (pdf) in federal court. (Texas has no state civil rights statute of its own comparable to Sec. 1983 in the Civil Rights Act.)

As I have said in the past it should be illegal for the officer to not videotape all of the sobriety tests.  Trust but verify it is absolutely essential in a DWI defense.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 It's that time of year again.  No not the nice spring days, rather that time of the year (actually every other year) that our state legislature meets.  I always track what criminal and DWI bills are proposed.  Recently, a representative from the metroplex has proposed a bill that would require ignition interlocks for first time offenders.  That's right, anybody who is convicted of a DWI would be required to have a device installed in their vehicle that would require a breath sample before the vehicle could be started.  

The current law in Texas is any repeat arrest will require an interlock even as a condition of bond.  If a person's breath or blood alcohol is above a .15 then they have to have the interlock in their vehicle.  If they are under 21 when arrested then you guessed it they have the interlock.  The fact is most first folks convicted of a DWI will never again be arrested for driving while intoxicated.  I wonder what how much money the interlock lobby has spend trying to get this bill passed.

In the same bill the sponsor wants anybody convicted of a second DWI to lose their Texas driver license for life.  Really,let me see if I understand this idea.  Now the law in Texas is the state when charging somebody can look back as far as they want to charge somebody with a DWI. So if a person had a DWI in 1975 and then got arrested again in 2011 and convicted they would lose their driver license for life?  I realize we want to stop the DWI's but the idea that a person would lose their license for life is absurd.  Of course that won't stop folks from driving it will just mean that they won't have insurance so the costs of our policies will increase.  

The bill states that " individuals will still be eligible to obtain an occupational license, which permits them to drive for work-related purposes, educational purposes and for essential household errands. This exemption allows individuals to remain active and productive citizens."  What a joke, the fact is that an essential needs or occupational license allows a person to drive up to 12 hours a day so if everybody can get an essential needs license then why suspend their "regular" license?  You know why so this "tough of crime" type can hold a press conference and say look at me, look at what I have done.

I'll make the honorable representative a deal.  In addition to these type of do nothing bills, file a few that will protect the rights of those who are arrested in Lubbock and throughout Texas for a DWI and are not guilty.   Here are a few-

• Mandatory video taping of all citizens who are stopped by the police
• Mandatory video taping of any and all "field sobriety test"
• Making it illegal for the police to move any citizen accused of a DWI from out of the view of the video in an attempt to do any "investigation" off camera
• Making it illegal for the police to turn off their body microphones at any time during any interaction with an accused citizen
• Mandatory video taping of any chemical test
• Mandatory video taping of all observation periods done by any breath test operator prior to administration of any breath test of a citizen accused
• Requiring the State of Texas to spend about $2 on each breath test to save the sample of breath so an accused can have that sample retested
• Requiring the State of Texas to actually inform a citizen accused of a DWI who does give a breath sample that the law allows that person to obtain an independent blood test to contest the breath test result

I could go on and on but something tells me the representative would not consider these protections necessary.

Everyday I tell folks the penalties and consequences of a DWI are high.  It is not illegal to drink and then operate a motor vehicle in Texas as long as your over 21 and not intoxicated.  I think if these two laws are passed it would encourage more people to try their cases and not plead guilty to a DWI if you were not guilty.  If you or somebody you know have been arrested for driving while intoxicated in Lubbock or west Texas, talk to DWI lawyer and fight your case.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

      It seems that almost every week now someplace either in Texas or another state there is a report or news article questioning the validity of a breath test. Just this week in Ventura, CA the local prosecutor's office sent a memo to local defense attorneys stating that "eight Intoximeter Alco-Sensor V breathalyzers have shown "erratic results" in blood-alcohol tests taken between Jan. 20 and March 31, according to Kevin Drescher, the supervising attorney with the felony unit."

The report gets better. The prosecutor's office indicates they "didn't know how many people charged with DUI were tested with the Alco-Sensor V during that time. I don't have the actual numbers," he said, adding that the office was still looking into the matter. "Obviously, we are trying to do what's right in this situation."   

So how does a problem in CA affect a Lubbock County Texas DWI arrest you ask.  Good question and the answer basically is that a machine is not always accurate.  We all know that.  How many times have you ever had to turn off or restart your computer because the computer froze or had an error?  The problem with breath test machines and the way they work in Lubbock Texas is everything is covered in secrecy.  

• The Texas Department of Public Safety which maintains the machines won't provide the source codes for the units.  Believe it or not the government's "expert" has no knowledge about how the computer program in the machine works.  Basically all they know is that a number comes out when it comes to the software of the machine.
• The Texas Department of Public Safety won't allow a defense expert to inspect the machine. 
• The Department of Public Safety won't require all breath tests to be video taped so we can make sure the testing procedures were followed.
• The Department of Public Safety does not require that the temperate of the simulator solution be video recorded.  This is important because temperature affects the breath test results.
  

When I have a client who is arrested in Lubbock by the Lubbock Police Department, Texas Department of Public Safety or Texas Tech police for a DWI or DUI minor the secrecy of the breath test program is always an issue.  The arrogance of the government that the machine "checked itself" so it must be working correctly must be contested.  Trust me I'm from the government is not necessarily a good thing these days.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link