Austin Criminal Law Journal : Austin Criminal Defense Lawyer & Attorney : Dax Garvin : Texas, Travis County, Georgetown, Round Rock, Cedar Park

So another Bill has surfaced that would attempt to take away the constitutional rights of Texans and anyone else driving through this State.  This piece of proposed legislation would arguably remove the "innocent until proven guilty" presumption and replace it with a presumption that the State could use to argue the driver was intoxicated if he or she was stopped, arrested, and provided a blood or breath sample greater than .08 within one and one-half hours of that arrest.

House Bill 170 is another piece of legislation aimed at making the State's job of convicting its citizens easier and shifting the burden to the Defendant to prove that he or she is in fact not guilty.  I for one can say that I am not interested in living in a place where there is no presumption of innocence and where the burden is on me to prove that I'm not guilty of a crime.  In relevant part, House Bill 170 reads as follows:

Article 38.24 Evidence of Alcohol Concentration

(a)    In this article, “offense relating to the operating of a motor vehicle while intoxicated” and “offense of operating a watercraft while intoxicated” have the meanings assigned by Section 49.09, Penal code.

(b)   For purposes of the prosecution of an offense relating to the operating of a motor vehicle or watercraft while intoxicated, it is presumed that the person had an alcohol concentration equal to or higher than 0.08 at the time of the offense if that level of alcohol concentration is shown by an analysis of the specimen of the person’s breath, blood, or urine taken from the person not later than 90 minutes after the time of the person’s arrest.

To be clear, this section is not currently in the Texas Code of Criminal Procedure and is only proposed legislation, but we all need to hope that it does not pass, unless of course you are interested in giving up more of your constitutional rights and protections.

For others like me who are interested in tracking the life of House Bill 170, this website shows when it was introduced, and how activity on it compares to those of other pieces of proposed legislation.

In general, a presumption is a fact assumed to be true under the law and they are typically used to relieve a party from having to prove the truth of the fact being presumed.  As Jamie Spencer pointed out regarding retrograde extrapolation:

 

Retrograde extrapolation is the mathematical/scientific process by which an estimated BAC range for the time of driving is deduced/guessed by taking the BAC at the time of the test, the time since driving and other factors. These factors include when the suspect drank his last beer, .eg., to his last meal, and other considerations.

 

These are ultimately unknown factors no matter what the pre field sobriety test interview question and answers reveal from the defendant. And therefore, there’s room for some of that old reasonable doubt defense attorneys like to try and raise.

 

Since this is potentially a problem for the prosecution, they want to write into the law an unscientific instruction that allows them to argue that any test over .08 given within an hour and a half of driving automatically gives them a presumption of guilt.

To conclude, this is another piece of legislation being propelled forward by those who would favor arresting everyone and shifting the burden of proof to them to show their innocence.  As I have requested in the past, if you are interested in demonstrating involvement in your government, asking your State Representative and Senator to vote no on this legislation is a good start.

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While I was surfing the internet to catch up on news, I found a link that naturally caught my eye, as it offered an opportunity to go on a ride-along with a "top DWI cop" to see what a DWI stop, investigation, and arrest involves.  While I understand that the video was not designed to show every detail of such a stop, I found it to be substantially misleading, and I'll go into those reasons soon.  However, as a former Texas officer who made DWI arrests and worked collisions, I am certainly left wondering why this sort of video would be the one used to give "the feel" of what this officer deals with on a regular basis.  So, watch the video and decide for yourself.  I welcome any comments but especially those of other officers and/or prosecutors.

This DWI video shows a very different situation from those of most cases.

Let's talk about a few points in this video that seem very unrealistic to me, and I will be the first to admit that there are some very cooperative people who are detained and even arrested for DWI, but I have never in six years of being an Austin-area attorney or a cop seen anyone that was as polite and cooperative as the lady shown in the video at the above link.

• No crying, complaining, or excuses offered by the suspect;
• Blowing snow and high winds did not impact the SFST performance;
• Suspect wearing high-heel shoes during the Walk and Turn test (option to remove shoes is usually given in Texas and frozen Minnesota ground probably caused her to keep them on);
• Suspect provides a breath sample into a portable breathalyzer device on the roadside (always a bad idea -- NEVER do this if asked by an officer);
• After being arrested, suspect was still fully dressed in scarf and incredibly polite and cooperative (still no tears, angry looks, or expletives);
• Much of the video was edited (but this removed the real feel of what happens on these stops).

My purpose in writing this entry is not to criticize the officer or the videographer who filmed the video, however, I do not want people to be misled and believe that these stops are this smooth or that the evidence is this clear.  It usually is not.

DWI is a serious offense as the consequences may end an innocent third-party's life; however, boundaries must be in place to ensure that people do not lose their rights to the State.  In Austin, Texas, political forces have become so influential that often dealing with even the most basic DWI case becomes difficult for fear of political fallout from these entities, like M.A.D.D.

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Senate Bill 261 as proposed is available for review and must not pass as it is written!

This bill must not pass as it takes away constitutional rights of every motorist in Texas.  It would require that blood draws SHALL be taken after an injury accident.  It reduces the amount of injury currently required from serious bodily injury to simply bodily injury.  Further, and even more egregiously cops could have blood taken if anyone other than the suspect is transported for "medical treatment" or if they have been arrested for DWI in the past.

Currently, serious bodily injury is defined as follows:

Texas Penal Code 1.07(a)(46):  "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or any protracted loss or impairment of the function of any bodily member or organ."

vs

Texas Penal Code 1.07(a)(8) which defines bodily injury "as physical pain, illness, or any impairment of physical condition."

Further, the proposed bill would allow someone arrested for a DWI or similar offense in another state to be subjected to having blood taken, regardless of what happened to that case.  So, if the case was dismissed... blood  is drawn.  If the case was reduced, blood is drawn.  And most outrageous of all, if the person was found not guilty ... blood is drawn.

If one cannot see the absurdity of this proposed law in Texas and the great number of constitutional rights that are given up, then that person must be asleep or so apathetic that they should not be allowed to participate in organized society.  Yes, I realize that is a strong statement, but this proposed law is outrageous and must not pass the Texas Legislature as written.  Even a substantially similar form of the bill would be threatening.

There are so many undefined terms in this proposed piece of legislation that it should terrify anyone reading this and every citizen of Texas, who does not want their DNA and other medical information smeared into State files should start a letter writing campaign immediately to their State Representatives urging that they Stop Senate Bill 261.

To make that easier, CLICK HERE TO FIND OUT WHO REPRESENTS YOU and urge him or her to VOTE NO on this legislation.

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The combining of DWI investigations and driving while intoxicated (DWI ) investigations is rather common, especially for smaller municipalities that lack much of the funding or training for its officers about how to handle these matters.  In fact, health care professionals are not required to test for intoxication during treatment and even if they do, they are not required to report it to law enforcement.  Usually, what happens, is if officers suspect that alcohol was involved in a collision that sent someone to the hospital, it gets noted in a report and the prosecutor's office will subpoena the record medical record. 

Emergency room physicians are not required by law to report drunk drivers, and sometimes they rely on a financial reason not to test for intoxication:  they do not want the claim for their services denied by the health insurance provider.  This is a federal law that has been around for over half-a-century. 

So, what happens when a hospital draws blood and there is an associated DWI? Well, if the State handles the matter correctly, they will probably have access to that record, which will show the measure of alcohol in the blood.  However, if the records are not properly ordered, that is one set of testing that will likely not become part of a State's file.

In a world of ever-increasing pressure for "mandatory blood draws" like the one put on by the Austin Police Department over the Halloween, 2008, weekend, it should not come as a surprise that State officials may try to get these records, which is legal.  However, it is not legal for them to circumvent the search warrant requirement of the 4th Amendment to the US Constitution and related provisions under State law to have hospitals draw the blood, as part of an active investigation, without a warrant.  To do so would be to indirectly seize that which they legally cannot to begin with.  Proving this may be rather difficult, especially if you have a health care provider that is in collusion, but for now, I'm going to hope that is uncommon at most.

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To begin, I must say that I have not seen the video and cannot provide concrete evidence that the decision by Williamson County Attorney Jana Duty to dismiss the DWI charge against State Representative Mike Krusee was in error or showed bias, but it sure raises the question because I cannot recall a single time that a DWI for one of my clients or any other defense attorneys that I know were just outright dismissed.  Legally, the charges could be refiled, but will they, most likely not....

Now, it has happened that cases have been dismissed "with counseling up front" but the far more common practice is to reduce the charge to some other misdemeanor, usually Obstructing a Highway or sometimes Reckless Driving....

So, KVUE news has an excerpt of the DWI video showing Krusee's arrest.  But this alone is not enough to make a decision of whether or not the case should go forward.

Obviously, Corporal Michael Scheffler saw enough to develop probable cause to arrest the State Representative...

If anyone else knows more about what is going on, please let me know.  I'm really curious to see how good this video must have been to allow a DWI defendant to obtain an outright dismissal!

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According to the website for the Sunset Advisory Commission, the agency was created to identify and eliminate waste, duplication, and inefficiency in government agencies. Here is a brief summary from that same website as to the agency's purpose:

The Commission questions the need for each agency, looks for potential duplication of other public services or programs, and considers new and innovative changes to improve each agency's operations and activities. The Commission seeks public input through hearings on every agency under Sunset review and recommends actions on each agency to the full Legislature. In most cases, agencies under Sunset review are automatically abolished unless legislation is enacted to continue them.

One of the agenices currently being targeted for reform is the State Office of Administrative Hearings (SOAH).  This is the agency responsible for managing the driver's license suspension hearings that must be requested within fifteen (15) days of a person's arrest for Driving while Intoxicated (DWI).

I wanted to directly quote some of the text from the most recent issue dated in October, 2008, however, it is protected and does not allow that function.  Thus, I have re-created the information below as a quotation, however a PDF of the Report is available:

The Administrative Hearing Process for Suspending Drivers' Licenses of Individuals Arrested for DWI Wastes Government Resources.

1. Require hearings to be held by telephone and allow witnesses to testify by telephone, unless the Judge finds that the fair administration of justice requires an in-person hearing.
2. Require affidavits of breath test operators and supervisors to be admissible without the witnesses' appearance unless the judge finds that justice requires their presence.
3. Require the defense to subpoena breath test operators and supervisors rather than merely "requesting" them.

Reading through this article, you will find that the Sunset Commission believes it further wastes government resources because of the overtime and expense the officers incur as a result of their presence.  However, there is no monetary expense to the officers as they are given a check that pays for their mileage to and from the hearing location.  Yes, there may be overtime that the officers are paid but that is justified by the additional work they are putting in.  While the Sunset report suggests that this is taking officers away from the street that is really no different than when they are summoned to court to provide testimony in cases that they filed.

As to the recommendation about having hearings by telephone, that troubles me for a number of reasons:

1. Possible technical difficulties that could lead to an automatic suspension;
2. Uncertainty of the person testifying (anyone could substitute, even if forbidden); and
3. Inability to observe body language and other non-verbal communications that could lead to additional questions regarding the matter (possibly relating to bias, etc.).

Lastly, the Sunset Commision acknowledged that telephone conferencing costs would increase but they did not provide any numbers in that realm.  Who knows, this may overshadow the costs of having live, in-person hearings, especially since the Defense reimburses officers for their travel expense.

And of course, the easiest way to reduce the number of ALR hearings and save money is to properly train officers such that only "good arrests" are made.  According to information in the Sunset report, 8% of the cases did not receive a license suspension because of insufficient evidence.  Another 18% were dismissed.  And, 74% resulted in license suspensions... so the overall goal of the ALR process as set out in the report is being attained in almost 3/4 of all cases!

Again, this is just another example of allowing the rights of those accused of crimes to errode and to be diminished if the Texas Legislature adopts these changes.  If this attitude and methodology are not reduced soon, the only rights remaining will be to do exactly what a cop says, when a cop says, and how a cop says... and then we might as well toss out the Constitution because it seems to mean less and less.

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It has been done by other agencies in central Texas and around the country over the past couple of years:  obtaining search warrants for a sample of someone's blood that an officer has probable cause to believe is intoxicated, but this Halloween, Austin PD will employ a vampire to take blood from those officers believe are intoxicated and driving....

KVUE reported this story and included a video just a few days ago.

This is not a "new concept" in itself, but it is new for the Austin Police Department.  And, it is one that I hope does not become routine, especially on a first offense Driving While Intoxicated charge.  While driving while intoxicated is a high risk offense that endangers others and therefore is definitely an offense that should be prosecuted, taking a suspect's blood is extreme.

As the law on DWI is currently written, a first offense is a Class B misdemeanor, the 2nd is a Class A misdemeanor, and a 3rd or more is a 3rd degree felony.  I am not going into all the pitfalls of a DWI conviction in this entry: surcharges, driver's license suspensions, etc.

Typically, to conduct a constitutional search, an officer will obtain enough evidence to demonstrate probable cause that an offense is being committed, has been committed, or is about to be committed, present that information to a judge, and swear that the contents of the affidavit being presented to the judge is true and correct and obtain a search warrant.  Only in the past 1-2 years has it become the vogue thing to apply for search warrants for blood.

The Texas legislature already allows the taking of blood, against the will of the person, if their is a fatal collision or one involving serious bodily injury.  In this case, I have much less objection to the practice and actually approve this method because it went through the proper channels by having the elected officials of Texas pass the law for that change.

What is happening on Halloween weekend 2008 is the police will be taking the law into their own hands and seeking search warrants for anyone who does not consent to the giving of a breath or blood specimen.  The only person(s) standing between the person arrested and a needle will be a judge, who will determine if probable cause exists to take the blood.

This is quite a low standard of proof and is much less than that amount required to obtain a conviction, so most of the time, judges will approve the warrant application.  But, I hope that the judge(s) working this weekend look closely at the affidavits and really hold APD and any other officers doing this accountable to doing a thorough investigation.  

Afterall, if this is what the Legislature had intended, wouldn't they have put this practice into law in one of the past sessions.  There's always a chance that it will happen in the future and Mothers Against Drunk Driving (MADD) would probably lobby to get it passed, but as a public, we need to let lawmakers know that this is not what we want to have happen.

Slowly and methodically in the name of "justice", people are allowing their rights to erode and be taken from them.  We all must be wary of our rights and protect them, else we lose them.  As an Austin Criminal Defense Attorney, who defends those accused of DWI's and other offense, this practice is simply appalling.

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Even though I practice criminal defense and have several years of combined experience in both prosecuting and defending Driving while Intoxicated (DWI cases) in Texas, I am constantly having to look in the Transportation Code to see what suspensions apply and for how long.  There are multiple events that may suspend a person's driving privilege in Texas, but this first entry is focused on suspensions of a driver who is 21 years of age or older (driver's who are not minors).  My intention is to make this information more accessible and easily understandable for anyone who consults it; however, my caveat is that this was only current at the time it was written and the statute should be consulted if you need to be certain of the current status of ALR suspensions in Texas.

* "Alcohol-related or drug-related enforcement contact" means a driver's license suspension, disqualification, or prohibition order under the laws of this state or another state resulting from (1) a conviction for driving while intoxicated, (2) a refusal to submit to the taking of a breath or blood specimen following an arrest for driving while intoxicated, or (3) having an alcohol concentration of 0.08 or more following an arrest for driving while intoxicated.  See, Texas Transportation Code Sec. 524.001 and Penal Code Sec. 49.01.

This chart only governs suspensions for the actual ALR (civil) portion of the case and should not be construed as the only suspension that a person may receive.

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Mother's Against Drunk Driving (MADD) told the Dallas Morning News in this article what they are pushing for in the 2009 legistlative session, and the two most prominent points are as follows:

• Sobriety checkpoints
• Mandatory Ignition Interlock devices on all vehicles, even for first time offenders.

I am not the only person to comment on this.  In fact, one of the blogs I regularly read and subscribe to Grits for Breakfast wrote about this matter already and summed it up with an opinion that I agree with when he wrote:

As for setting up roadblocks, I've always disliked this idea at more of a gut level than an intellectual one. Back in the days of the Cold War this was an easier argument to make because totalitarianism had a face so we knew what to compare ourselves to. "Can I see your papers, comrade" used to be a joke Americans made about Russian authoritarianism. MADD would have us turn it into the American way of life.

Simply put, to me an attempt to sweep the whole population (or everyone in a given area, like a road, a neighborhood, or the YFZ Ranch) for criminal offenses is repugnant to democratic values and the notion of liberty, no matter how many states have passed the law. I like the idea, a LOT, that the state must have reasonable suspicion before I can be detained.

I'd support a budget item for the state to pay for ignitition interlocks for repeat offenders when judges think they're warranted. I think that approach makes sense without breaking the bank. But I don't approve of MADD's agenda as they've laid it out here and think they'd do more to reduce DWI by expanding use of strong probation like we're seeing done in drug courts.

While roadblocks have not been used for years in Texas the possibilities for abuse are extreme.  Just imagine, a vehicle is stopped under the guise of looking for intoxicated driver's ... that person and the passengers could be subject to questioning and a search of the vehicle.  What happens when the Driver tells the officer, no, I do not consent to a search of the car (which is what I always recommend).  This is smothered in potentials for abuse. 

In a country that prides itself for providing freedoms for its citizens, the United States is rapidly becoming a police state.  Setting aside my feelings about the "Patriot Act" and other non-sense, if citizens support these changes, we are merely setting ourselves up to give away more rights.  This is the famous "slippery slope" argument, yes.  But, when we have cops out there who are given a second to snoop around in someone's vehicle, that over-zealous attitude often kicks in and someone is going to jail for something that was otherwise harmless.

Let's focus on the real problems here and not give the State more power.  Already, a first conviction for DWI in Texas carries penalties far harsher than those of comparable misdemeanors.  Consider this:

• Surcharges ($1000-2000 for that first conviction) paid annually for 3 years (Thank you MADD) -- and this has not curbed the number of DWIs (but MADD said it would);
• Driver's License suspensions of varying lengths
• Community Service
• Fines up to $2000
• Defense attorney costs
• Fees for filing occupational licenses
• Texas Department of Public Safety fees (reinstatement fees etc)

Be vocal. Be heard.  Take a moment to write your legislature and tell them to vote AGAINST these proposed changes.  Sure, there are compelling stories that MADD can tell to "justify" their desire to get laws passed and stricter penalties in place, but we must always ask, "At what Cost?"

MADD's agenda will not work, just like it has not worked in the past.  As penalties have increased the numbers for DWIs really have not gone down, and this Austin criminal defense attorney is appalled at the very idea of going forward with more restrictions and  limitations on our freedoms.

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