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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So on the eve of Thanksgiving Day 2008, I decided to write something personal.  Not knowing for sure if this is something that someone will want to read, as it is not directly "law related," which is the general focus of  my blog, but it does give insight into who I am.  Briefly, I will discuss what is contained on my resume in the "About Me" section of my website, but here, I can reflect a bit more on why I took the path I took and how those pathways affected me.

I started working at the Travis County Attorney's Office as a "baby prosecutor," which is slang for someone directly out of law school.  While there, I learned a lot and met a number of really professional, helpful people.   I did not stay there too long though as I had a lot going on in my personal life and being 25/26 years old, I thought I "had to make more money", so I took an opportunity at a civil defense law firm in Austin.  

While working in private practice, I really missed criminal law, as I had developed friendships with multiple criminal defense attorneys, some officers, and other prosecutors while at the County Attorney's Office.  I missed the personal interaction that showed up through the resolution of those cases.  In general, it has been my experience that the criminal bar to the legal profession is far more friendly and accepting than the civil side... yet, I cannot answer why that is to this day.

I tried to get the firm to allow me to develop a criminal defense practice within the firm, truly believing that it was something missing.  However, the partners in charge did not want to take the firm in that direction.  I truly believed this was something I had to do, so I began to ponder how to make it happen.

I viewed myself as a young attorney with a lot of potential but also as someone with a lot of uncertainty (in how to develop a criminal defense practice) ... due to all the expenses and issues surrounding owning your own business (I'll leave it at that for now).

So, I elected to get into law enforcement and found myself working at the Williamson County Sheriff's Office.  Having made some friends in officers and gone on ride-outs, I knew it would be fascinating and thought that I would make a great officer.  Granted, I knew at the outset that I would be less strict about "small issues" (the wonderful exercise of discretion) than some, but I thought that would be my way of contributing balance to the profession, which is too often overrun by literalists and officers are are just too strict (sometimes to the point of being hypocritical).

When I was asked during the oral boards / interview process where I would be in five years, I truly believed that I may be in the same department, doing what, I did not know.  I never entered into this fully intending to leave or as a spy as some departments had suggested... nor, had I entered into it knowing that I was going to open my own office, remember, I had my insecurities and worries about that. 

But, as the years ticked by and I saw how law enforcement really functioned, not just at my department but at conferences and in blogs and even foreign exchange programs (yes, I was fortunate enough to travel to Germany for three weeks), I began to realize that I did not fit in this profession either.  And, I finally developed the courage and the opportunity arose that made taking that logical step into my own practice a must.

So, in June, 2008, I opened The Law Office of Dax Garvin.  I have never been happier or more content with this decision and thus want to share my gratitude.  And, on the eve of Thanksgiving, I could not think of a more appropriate time to do this.  I feel that I have more to be thankful for this year than in years past, as I am not sure I would have taken this step without walking down the unconventional pathways that I did.  It was my time in each of the three prior offices that shaped who I am today and made it possible for me to open my own office. 

So to every single person out there who I have met that contributed in some way to me taking this step, I must say, "Thank you." No matter how small or how large of a contribution you had in my decision or in what way you contributed, be it moral support, mentoring, the lending of forms, or the sharing of space, or just being a friend, I am truly thankful for your assitance and having known you.

And in sum, I believe it is this attitude of sharing that shapes who we are as a society and the pathways life takes us down all do lead to a focal point at some time in our lives.  You may not know when it will happen or what it will be, but when you get there, you'll know you have arrived.

So again, I want to say "thanks" to everyone who had a hand in getting me to where I am, and I look forward to being able to repay that favor by being a similar influece on others pathways.  So, I hope that this blog is a step in that direction.

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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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Robert Guest wrote about a series of cases he has defended of late where the result was a reduction by the state to Obstructing a Highway for a plea instead of taking a DWI to trial....

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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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This happened some time ago, as to the significance of "blogging" but I re-read Scheffler's posting on the Texas District and County Attorney Associations website and was again intrigued at the personal investment that he put into this matter, which comes across in so many of his DWI videos.

I completely acknowledge that the place he posted this statement was legitmate and valid and to the extent Trooper Scheffler is seeking advice and opinions on the matter, he is well within his right to do so.  And, to the extent that he hopes to bring to light an issue that he deems a problem, I applaud him.  But, I strongly disagree with the manner in which he broached the subject because it seems as if it was written while he was angry (presumed from the tone of his article) at the judge who denied his blood search warrant.

Simply put, the tired answer but accurate method for getting blood search warrants for circumstances like this is to lobby the legislature to see about getting the law changed... where judges "shall" on probable cause issue....It's just like anything else, if you want the law changed, the Leg. is the best place for that to happen.

For now, that is not the law, and as such, I do not believe the judge was outside of the boundaries when the search warrant was denied, simply because the legislature did not intend to grant the power to take blood from a person suspected of a routine DWI, which I define as one in which there was not a death or serious bodily injury.

Setting aside my personal bias on this topic, another point that Scheffler raised in his entry jumps out at me:

... his refusal to cooperate with SFST's leave (sic) me with no choice but to place him under arrest for DWI. He refused to respond so I gave him a pair of pretty silver bracelets.

Having been in this very position when I was a deputy, we all have choices.  Whether you choose to arrest someone or to exercise discretion is up to the given officer. The fact that Scheffler refers to arresting someone as "[giving] him a pair of pretty silver bracelets" shows that he takes this matter personally and may not have been exercising the best professional judgment in the matter.  The point that I think is important is that Scheffler did his job... he may have prevented an accident. He may have kept the person arrested from hurting someone else.  Whatever happens to the case is of little importance for Scheffler, post arrest.  And no, I am not representing this client.

I would love to know what if anything came of the complaint, assuming one was filed.  Does anyone know... Scheffler?

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While reviewing news today, I was stunned to learn of an officer in Pennsylvania who was arrested while on duty for Driving while Intoxicated... that's right, DWI.  An officer had a collision with a wall and subsequent investigation led to the determination that he was under the influence of alcohol.  The complete story is available here for anyone who wants to read more about it.

Now, as a criminal defense attorney in Austin, Texas, who routinely defends persons accused of Driving while Intoxicated, I was very interested in reading this story because the officer, who knows the "tricks of the trade" better than the average citizen he has probably stopped on countless occasions submitted to testing.

What I do not know is whether he submitted to testing as a condition of his employment with the police department or whether he submitted to testing as a personal choice, which merely gives evidence that could be used against him in a subsequent prosecution... the subtext here, when asked to provide a breath or blood specimen, at least in Texas, it is this lawyer and former cop's opinion that you should absolutely refuse.

While you may lose your driver's license for a bit longer period of time, there is no reason to provide evidence to be used against you. 

In sum, I'm glad to see that at least in this one instance, the Thin Blue Line was actually thinner and the case was filed against this officer... I hope this is one that I can follow through to resolution.  If anyone else has information on this story, I hope you post it to this blog.

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