Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

The Supreme Court decided today a case that is being is widely praised by criminal defense attorneys. The decision in Bullcoming v. New Mexico held that blood test results are not admissible without  the testimony of analyst that conducted the test. Bullcoming was involved in a traffic accident and suspected of being intoxicated. When he refused a breath test, they obtained a warrant and took a blood sample. That sample was tested at the State lab by gas chromatography, and the results used to prosecute him for driving while  intoxicated.

When it came time for trial the State announced that the analyst who did the testing was not available because he had been placed on unpaid leave. A supervisor was allowed to testify in his place. The issue before the court was whether Melendez-Diaz would apply to testimony about such reports. The New Mexico courts  held the report was testimonial, and therefore the confrontation clause applied. However, they held the analyst was nothing more than a "scrivener" who wrote down the results. They also held the supervisor's testimony was sufficient because he testify about the machine and its operation.

A majority of the Court - led by Justice Ginsburg - held the supervisor's testimony was not an adequate substitute for the analyst who actually performed the test. In doing so, they recognized that scientific testing involves more than simply reading the results of a machine. The results are only as good as the data going, and the process followed. That may not be revealed in the raw data.  The court noted several studies that show the majority of errors in testing are the result of human error.

The court definitely got this one right. If the results of a scientific test are going to be used to take away someone's freedom, they need to be scrutinized. That can only be done by competent counsel, who knows the questions to ask and what to look for. A supervisor cannot answer those questions, and cannot ferret out problems simply by looking at the results.

Perhaps the court's decision is based on a recognition that forensic science is not as infallible as the scientists would like to believe. There certainly has been increasing recognition of the problems in this area. As long as forensic science is used in criminal trials it must be subjected to strict scrutiny. This opinion is good step toward that.

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This is my second post on articles from the American Academy of Forensic Sciences Journal. An article that jumped out immediately was "Paradigm Shift for the Alcohol Breath Test" by Michael P. Hlastala. 

Breath testing was developed to determine a person's blood alcohol level. All states define intoxication of terms of the level of alcohol in a person's blood. The best way to test is that is of course to take a  blood sample; however, that takes time; breath testing and easy and quick. Something that can be done by a police officer.

Breath testing is based on the scientific principle that there is an exchange between air and the blood system. You breath in air, which is transferred to your blood system in the lungs. Breath testing is based on the idea that you can estimate a person's blood alcohol content based on the levels in their deep lungs - alveolar air. A mathematical formula is used, which is recognized as being an assumption. The formula is basically an average, which does not apply to everyone.

For any test to be valid, the underlying facts must be valid. According to Dr. Hlastala, the facts supporting breath testing are far from settled. At the beginning of his paper he notes:

In spite of the considerable effort that has gone into the studies attempting to validate the breath test, forensic scientists and toxicologists still have only a basic understanding of the physiological aspects of the the alcohol breath test (ABT) and associated limitations.

The "old paradigm" assumes the amount of alcohol in the breath remains constant as it goes through the lungs. It turns out that is not accurate. In fact, the amount varies - sometimes significantly. The result is that the actual blood alcohol level may be over or under-represented.

The new paradigm recognizes that alcohol is deposited in the airway surfaces during both inspiration and expiration. It also recognizes that the alcohol that comes out in the breath test comes from airway surfaces rather than the alveolar region.

The conclusion reached in the article was:

It is time for forensic scientists to re-examine the ABT to consider the importance of alcohol interaction with the airway tissue during both inspiration and expiration. the result of this interaction is that the breath test is fairer for some subjects than others. Another consequence is that the BrAC continues to increase as the subject continues to exhale. The resulting end-exhaled breath concentration is only partially related to BAC. And, therefore, the ABT exhibits much more variability than previously recognized.

The author recommends decreasing the importance of relying on threshold levels - especially for determining penalties. he also recommends that some margin of error be recognized. Of course, that will never happen, but it something to consider when you have a client that is only slightly over the limit. Based on this research, they may or may not be legally intoxicated.

In Texas, limits are important for not only determining whether someone is guilty or not, but also for determining whether certain conditions are going to be imposed - such as a interlock device. The validity and accuracy of the breath test results is therefore critical.

This article does not break new ground - problems with breath testing have long been recognized. Those problems must be explored - especially in marginal cases. Where someone's future hinges on a machine, the least we can do is make sure the machine is accurate.

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You might think a DWI is a DWI no matter where you get it. To a certain extent that is right, but a post several weeks by Robert Guest started me thinking about  the differences in handling DWI cases among different counties. Robert was talking about DWI cases in Kaufman County, and Imuch of what he said applies to DWI case in McLennan County. Although I don't often travel outside McLennan County, I will occasionally go to Hill County, Falls County or Bosque County. And there are differences in the way DWI cases are handled.

If you get a DWI in McLennan County you can expect that you are going to either have to go trial or accept a plea - usually for probation. I know you can find all sorts of stuff on the internet from lawyers about getting charges reduced or dismissed. Generally that is nothing more than an attempt to get your money. Giving them the benefit of the doubt though, I know there are some counties where that is a realistic possibility. I have seen cases where someone has been able to get a DWI charge reduced - it used to be public intoxication, but the current trend seems to be reckless driving or obstruction. I can tell you that is not going to happen in McLennan County. That doesn't mean it never happens, but it's going to be an extremely unusual situation where that occurs.

The assistant District Attorneys in McLennan are competent, and don't mind trying cases. Most of them are fairly young, and the reason why they went to the DA's office was to get a chance to try cases. The thought that prosecutors don't want to try cases is a myth in most cases - they don't mind trying them, and certainly aren't going to bend over backwards to avoid doing so. Prosecutors in McLennan County try more than a few DWI cases - and they know what they are doing.


The biggest difference btween McLennan county and other counties is in discovery. Most counties now provide copies of the offense reports - and most importantly the video. There are some places that have gone to providing that information online - Tarrant County seems to be at the front on this - they have a system where local bar members can log in and get copies without leaving their office. In McLennan County your attorney has to physically go to the District Attorney's office and review the file and the video. Copies of the video will not be provided, so you  probably have to look at it several times. Because of the inability to obtain discovery many attorneys will request Administrative Law Hearings on the license suspension. DPS will send copies of the reports before the hearing, and a subpoena can be issued for the video. That must be done quickly - the ALR hearing must  be requested within 10 days after you are arrested.

In McLennan County DWI cases are processed like any other cases. They are filed in one of the two County Courts of Law. When you are released on  bond you will be given a date to appear in court. That date is basically an initial appearance. The purpose of the hearing is to find out if you are represented by lawyer, or if you are going to need appointed counsel. If you have hired a lawyer before the hearing date your lawyer will make an appearance for you, and you will not have to show up. You will be given a new court date, which will be approximately 60 days away. Before the next court you should have some idea of what you are going to do on your case - that is, whether you are going to enter a guilty plea or go to trial. If you decide to take the case to trial you will be given another date; this time for a pre-trial hearing. Any motions will be presented at the pre-trial hearing. Those motions could include a motion to suppress either attacking the initial stop or the tests performed.

In addition to hearing pre-trial motions the court will also a trial date. That is the date your case is scheduled for trial. In McLennan County DWI cases are no different from other misdemeanor cases - if you get a trial date your case will probably go. The docket is not so big that you have to wait for your case to move up the list.

Most of the time cases start on Monday. If the court is going to try more than one case you may start on Tuesday. The courts will rarely try more than two cases in a week. Pleas are done on Thursdays so the Court want to have trials finished before then.

The trial of DWI case is McLennan County is not much different than anywhere else. Most of the trials last no more than two days,and many are concluded within a day. As I said before the prosecutors here are competent, and know how to try cases. Since it's not a large county, the officers involved probably have testified before, so they know what to expect.

DWI cases are unique for several reasons. The most significant is that it is the only criminal offense established by an opinion. Whether or not someone is intoxicated is nothing more than an opinion, even when there are breath or blood test results. The second reason is the reliance on scientific evidence. Where a test is done, that is used to try and establish guilt. Other than blood tests though, the tests are not 100% accurate - breath tests rely on a series of assumptions that may or may not apply to the individual. In addition, there are a now a number of other tests whose reliability is questionable. What that all means is that you need a lawyer who understands those things, and can properly evaluate your case.

No matter county you are in, make sure you find a lawyer you can trust before you go into court.

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McLennan County has hopped onto the bandwagon, and will have "no refusal weekend" over memorial day. That means if you are arrested for DWI you won't have the refuse to provide a breath or blood sample. If you do they will get a search warrant and obtain a blood sample. There are so many things wrong with this that I don't even know where to start.

As you would expect, this is being touted as a way to keep drunk drivers off the road. I realize that politicians and law enforcement have a problem with logic, but this goes to the extreme. How does this prevent DWI? You have already arrested the person; they are already off the street. Maybe the argument is that it will deter people from driving while drunk; if so, where is the evidence of that? Other counties have implement this policy - have they seen a drop in DWI arrests? I seriously doubt it. Most people don't rational decisions, especially after they have been drinking. Do you really think someeone is going to not drink, or not drive, because they don't want to give a blood sample? Most people don't think they are going to caught in the first place.

There is another flaw in this argument. and that is that people get off DWI charges because they refuse the tests. That is true in some cases, but who's to say those people wouldn't pass a blood test. The reality is that most people arrested for DWI end up getting a conviction. Maybe this will increase the odds, but probably not by much. The bigger question is whether it is worth it.

I also wonder about what happens while officers are getting warrants, and taking defendants to have their blood drawn? They certainly aren't on the streets. Maybe your chances aren't as great of getting caught, because the officer won't be on the street? If you are going to abandon logic, you can just as easily this will increase the number of drunk drivers on the road.

The biggest problem I have with this is what it says about our criminal justice system. We give all citizens certain rights. Is that a burden to law enforcement - sure it is. It would  be a lot easier to arrest someone, and force them to give a confession - by force if necessary. Our country was founded because we wanted to get away from that. Is forcing you to provide a blood sample that much different. Rights are eroded a little at a time - is this the first step.

The legislature has said you consent to giving a sample if you drive, and if you don't you are penalized. We are now saying that you don't have the right to refuse. I have a problem with that. People always complain about judges making the law; isn't that what they are doing here? If the legislature wants to change the law, they are free to do so - after debate, and subject to getting voted out of office of course. We shouldn't be circumventing the process though, and going through the back door.

No one should drive while you are intoxicated; unfortunately, some do. However, there must be limits to solving crime; I would suggest the limit is when the government has to violate your body. Are the streets really going to be safer this weekend? I seriously doubt.

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The Texas legislature is in session, which generally means an attack on DWI laws. Every session a number of bills are introduced - most of them bad. Fortunately, few ever make it through the process though.

Texas is one of the few states without legislation authorizing roadblocks. That may change - the Senate yesterday passed a bill that would authorize roadblocks in very limited situations. If you are going to have roadblocks, this bill seems like it contains the appropriate limits. For one, it only applies to the 15 most populous counties, which leaves out many cities - like Waco. It also has a number of restrictions. Checkpoints are limited to 4 hours in lenght, and their existence (although not their location) must be publicized. There are also restrictions on where they can be set up. If you are going to have roadblocks, this appears to be as good as a bill as you are going to get; at least from the standpoint of protecting the ordinary citizen.

Another bill moving along is less circumspect. That bill would authorizie the collection of a breath or blood sample, even where the suspect refuses. Bassically, you can be forced to give evidence against yourself. If this bill passes, I wonder why you would even ask anymore. If you do ask, do you have to tell the person that you are going to get a sample even if they refuse?

With all the economic problems we have, you would think there would be better things to spend time on. This session appears to be no different than most though; crime is still a popular topic. Everyone likes to talk about how tough on crime they are. I'm not sure that is as important to voters as it is politicians, but the perception remains. If nothing else, you don't have to address the really important issues.

I'm sure there will be other changes discussed before the session is over. Stay tuned.

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Bell County is hopping on the DWI bandwagon for New Years. According to a press release, if you are suspected of driving while intoxicated and refuse a breath test, they are going to obtain a warrant for your blood. Unfortunately, this is not something they just came up with on their own; many other jurisdictions have already implemented this policy. It may not be publicly announced, but it is becoming more common that a refusal to take the breath test is not going to be accepted.

This is being justified as tactic to get drunk drivers of the streets. If you think about that for even a few seconds, it is clear that is not the reason for doing this. It is nothing more than a tactic to obtain more convictions. The driver is already off the street; he has been arrested, and taken to jail. He/she is also off the streets, because their license is taken, and will be suspended for at least 180 days. The only reason to forcibly draw blood is to get more evidence for a conviction. They already have at least probable cause, or they wouldn't have arrested the person.

There's another problem I see with this proposal, which is how many drunk drivers get away while the police officer is taking someone to the hospital to have their blood drawn. They are off the streets for a longer period of time, during which time there are probably people driving under the influence.

I certainly don't advocate driving while intoxicated. Personally, I don't think you have any business driving after you have had anything to drink, even if you aren't legally intoxicated. I don't drink, so it's not something I'm worried about. But I am worried about forcing people to provide evidence to possibly convict them.

The legislature knew people would be hesitant to submit to breath tests, and tried to provide an incentive to take one; your license won't be suspended for as long. They also recognized that in some cases, such as accidents, blood tests should be mandated. They have never approved blood tests in all cases though - if so, the warnings need to be rewritten - do you want to give a breath test or blood or test - you are getting one of them.

I wonder if the new policy is going to include the warning that they are not going to take no for an answer. It doesn't seem fair to me to let someone refuse a test, make them take a blood test, and then suspend the license for the refusal. Even if the blood test was negative, your license could still be suspended for refusing the breath test. At least you should know what is going to happen if you refuse.

Please drink responsibly - not only during the new year celebrations, but all year. But be aware that if you are arrest, you may not really have the right to refuse to be tested.

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Almost everywhere except Texas the offense of driving while intoxicated is referred to as DUI. If you don't believe me, do a search for DWI attorney and then search for DUI attorney and see how many more hits you get.

If a potential client has done some research before coming in, they often ask what's the difference between DUI and DWI. It's a good question because Texas does have an offense of DUI, or driving while under the influence. That offense applies only to minors, and prevents minors from driving whenever they have had anything to drink, even if they are not under the influence. An adult can be "under the influence" and as long as they are not intoxicated, no crime has been committed.

Some people think DUI applies to someone who is under the influence of drugs, but that is not the case. The DWI statute defines intoxication as "the loss of the normal use of a person's mental or physical faculties" by reason of the introduction of alcohol, drugs, or a combination of the two.

Although the laws in most states are fairly similar, there are important distinctions. While the offense of DUI in one state may be the same as DWI in Texas, there may be important differences, especially in terms of penalties. While its helpful to be educated, there is no substitute for a consulting with a lawyer experienced in handling DWI cases in Texas.

This post published by a Waco DUI lawyer

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The Texas Department of Public Safety has suspended the certification of an independent contractor who improperlly certified breath test results. Not surprisingly, this has generated a number of comments. Grits contains stories from both the Dallas Morning News and Houston Chronicle. Another blog list the agencies that are effected. Unfortunately, this is one more example of an expert who was too lazy to do the work. Fortunately they were caught, but this points out again the problems with blindly accepting expert opinions. It also points the need to scrutinize experts more carefully, and ensure they are qualified, and doing the work they claim they are doing.

This big question is what is going to happen to those cases where this expert testified. For defendants who plead guilty the answer is "it depends". In a writ of habeas corpus you have to establish harm. In this case, the harm would in the failure to actually certify the machine. In a guilty plea, By pleading guilty, you did not challenge the breath test, and therefore you are probably going to have to establish the machine's reading was not accurate. That is impossible to do, since sample are not maintained, and there would be nothing to re-test.

Another way to evaluate guilty plea cases though is whether you would have plead guilty if you knew the machines had not been probably certified. The answer is probably no, since the breath test results would not be admissible. Of course, if the evidence was overwhelming, the answer is probably different. To prevail on this claim, you would have to establish a duty on the State to disclose the evidence. They are charged with knowledge of whatever law enforcement knows, so even if the prosecutor didn't know about the problem, that is not a valid excuse. Generally though you have to make a request for the evidence,  which is usually a Request of Favorable or Exculpatory Evidence. If no request was made, you may not be able to establish the claim.

For defendants who went to trial, they will probably be able to obtain relief. The machines have to be certified if the test results are going to be admissible, and therefore the expert would have committed perjury in testifying that the machine was properly certified.

For any claim, you are going to have to able to establish the machine in your case was not properly certified.  How difficult that is going to be remains to be seen. Hopefully DPS will identify those cases involving improper certifications and notify the defendants and their lawyer.

The effects of this are not going to be fully known. If you think your case may be one effected you should check it out.

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Since I started blogging, I've come across many things I might never have known about - at least not until later. One of the best blogs is Grits for Breakfast, written by Scott Henson. He recently posted on an effort by the Texas Attorney General to re-instate TDPS roadblocks.  In 1994 the Courts held roadblocks were illegal, unless they were conducted pursuant to statewide standards. The court was obviously concerned over the intrusive nature of roadblocks, and wanted to make sure they were conducted only when necessary, and not merely as another tool of law enforcement (i.e. to catch DWI offenders). Since then, there have been no statewide standards, although there are plans to pass legislation in the upcoming session to authorize roadblocks.

In an effort to shortcut the legislative process, the attorney general is proposing to implement guidelines through the Texas Department of Public Safety. The plan is to establish guidelines that would authorize roadblocks by not just TDPS, but also by local police departments. The proposal is currently open for comments, and hopefully they will get a lot.

We have all set through traffic accidents, and know how frustrating that is. We know its unavoidable though, and live with it. How would you like to have to deal that on Friday and Saturday nights, when you are trying to get somewhere. Roadblocks have their place, but they should only be used in those rare occasions when its absolutely necessary. Let's hope common sense prevails, even though we are dealing with politicians.

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