What is a MIP/MIC?  Any person under the age of 21 with certain exceptions who is caught either with alcohol in their system (MIC) or in their possession (MIP) can get a ticket for those offenses.  The first question that you should ask for an MIP is what is "Possession?"  To be guilty of the offense of MIP, you have to be under 21 and in "possession" of alcohol.  A minor can be in possession and consume alcohol if they are in the direct presence of their parents.  Possession means care, custody and control. One thing I see every year are these "party patrol" tickets issued typically from the Lubbock Police Department.  Basically what happens is the LPD responds to a party and when they find lots of young folks there they simply issue MIP tickets to every person under 21.  To be guilty of the MIP the prosecutor must prove that you actually possessed the alcohol. Simply being in the same room as the alcohol without more is not enough for possession.

The next issue with a Lubbock  MIP/MIC is what options are there with the ticket?  If you are convicted of the offense (and for the MIP/MIC statute, a deferred is a conviction) and you do not get another alcohol related offense as a minor then you can seek to have that MIP/MIC expunged from your record.  If you get more than one MIP/MIC you cannot expunge it under the minor expunction statute.  It is important at if you have already had one MIP/MIC that you challenge the new ticket as if it is dismissed then you could still be eligible for the expunction.  

Bottom line is that if you get an ticket involving alcohol in Lubbock as a minor you should talk to a Lubbock lawyer that is familiar with the minor alcohol offenses, expunction options and ticket trial options.  

 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.

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.

"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.

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.

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.

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.

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?

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?

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.

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.

Here is what we do know: 

• none of the field sobriety tests were designed to determine if somebody can safely operate a motor vehicle
• none of the field sobriety tests can test whether somebody is "intoxicated" because they have lost the normal use of their mental or physical faculties
• the initial "validation" studies for the field sobriety tests were done in a lab not out on the street and the success rate at determining whether a person's blood alcohol concentration was over a .10 (legal limit at the time) was in the 60 and 70% mark
• the three field "validation" studies did not contain any independent evaluators to watch the police officers and provide independent analysis
• the field tests, whatever minimal validation there exists, cannot compensation or be adjusted for errors in the testing by the police officer
• the latest study actually changed the scoring procedure on one test to allow the officer to count as intoxicated individuals who's blood alcohol was .03 to .06 which is below the legal limit and not intoxicated under state law
• The same study shows if the officer does the test wrong his percentage of intoxicated arrests goes up because subjects who are not intoxicated still show the clues he is counting as intoxicated
• Most importantly we know that the scientific community overwhelmingly believes these balance dexterity tests have no validity and no place in science
  

Now we also know that

No, you really can't focus on the road while you're yakking away on your cell phone -- and a new study explains why.

This new research builds on the well-known "Gorillas in Our Midst" experiment, a staple of Psych 101 courses. Researchers say they can now explain why many people fail to see a "gorilla" who unexpectedly appears in a video when their attention is focused on another task -- it's because they have lower "working memory capacity," a measure of the ability to keep your brain tuned into many things at once.

In the study, 197 psychology students (ages 18 to 35) watched a 24-second video of six people playing basketball. They were asked to count the number of bounce passes and aerial passes made by the black-shirted team. Twelve seconds into the video, an actor dressed in a gorilla suit walks into the hoops game, pounds his chest, then leaves. The "gorilla" appears on screen for eight seconds.

After viewing the segment, researchers asked participants for the two different pass counts and whether they noticed anything unusual in the clip. Slightly more than half the participants, or 58 percent, noticed the ape but 42 percent did not.

Amazing isn't it that driving isn't a divided attention task after all and yet everyday officers who make an arrest for a Lubbock DWI always testify that these balance and dexterity tests mimic what we do daily in a car.  

As the old saying goes, "garbage in, garbage out."

The legal definition of intoxication for a DWI offense in Texas is that either a person had consumed so much alcohol (drugs, dangerous drugs or other substances) that they had lost the normal use of their mental or physical faculties, or that their breath or blood alcohol concentration was the above 8.08 at the time that they were operating a motor vehicle.  

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.