Driverless While Intoxicated: The Future of DWI
Jake Dunn proudly exited the heavy iron doors of the swanky upscale restaurant. His jaw aching from the photographs. His hand raw from the autographs. Earlier that day he had inked a multi-million dollar contract, making him one of the highest-paid athletes in the world. Sliding his hand deep into the left pant pocket, he felt the keys his agent had delivered just hours ago. With a click, his six-figure fully-autonomous car was on its way.
In near silence, the car’s electric engine turned on. Snow white LED headlights illuminated the black pavement as the nineteen-inch wheels slowly rotated toward the car’s owner. The future of the auto industry willing and able to transport the future of the sport.
The driverless car approached the curb’s edge, and the Lamborghini doors swung open. The entourage piled in with their “lottery ticket” taking his place in the roomy back seat. The plan was to finish the celebration at an old city park. A place the longtime friends had spent hours on as kids dreaming of this very moment.
Office Kyle White’s car sat next to an empty park. It was 1:45 am Friday, and the adjacent street was about to dump fresh bait. The location was perfect. One bar after another lined the historic district. A known hot-spot for “thousand-aires” to boast about their latest deal, while emptying their wallets on cheap booze. Alcohol meant DWIs and the veteran officer was a paid assassin. Part of the DWI task force division trained and expected to make DWI arrests.
Gliding toward the park the driverless car switched lanes and changed speeds with ease. Champagne was poured without a drop hitting the suede interior. There was not a smoother ride on the road. Approaching the legendary playground, the vehicle’s automated system warned the passengers the park was closed. The advisory was unnecessary. The invincible crew knew the park’s hours and had always ignored them. Unassisted the car drifted into its selected parking spot. The doors opened and the entourage piled out. Before his size seventeens could touch the pavement, the star athlete heard the sound of squealing tires. Directly behind, red and blue lights flashed. A loud, authoritative voice came over the hip-hop music from the Bang & Olufsen speakers, “DO NOT MOVE!”
The officer was aware of autonomous cars. He vaguely recalled a three-hour course his department held on them not long ago. He couldn’t remember if he attended or not. He didn’t care. He never expected to come into contact with a self-driving car. The car’s ridiculous price tag meant one had a better chance of passing his field sobriety tests.
He wiggled his broad shoulders out from the driver side seat and exited the car. His walk exemplified confidence as he approached the “defendants.” The odor of alcohol dancing in his head. He didn’t know what type of car he stopped. It didn’t matter. From the looks of it, the driver had money, and he preferred wealthy defendants. Money meant jury trials. Jury trials meant time and a half.
“Whose vehicle is this?”
Jake mumbled, “It is mine, sir.”
“You been doing a little drinking tonight?”
The athlete’s stomach sank. But I wasn’t even driving?
At 5:30 am, sitting in his home office, Clyde Hatcher could hear one of his two cell phones buzzing. A prominent criminal defense attorney in town, he knew the meaning of an early morning phone call. He had a long list of high-profile clients and Alex Wright, the slick agent on the other line, was one of his best referral sources.
Before he put the phone to his ear, the defense attorney heard a frantic voice on the other line, “Our man got arrested for DWI.”
Clyde turned to the computer he had planned to replace for weeks. He slowly pulled up Texas Penal Code Section 49.04(a).
“A person commits an offense [DWI] if the person is intoxicated while operating a motor vehicle in a public place.”
He scrolled further and Denton v. State appeared.
“A person operates a vehicle when the totality of circumstances demonstrate the person took action to affect the functioning of the vehicle that would enable the vehicle’s use.” 911 S.W.2d 388, 390 (Tex. Crim. App. 1995).
The law was clear in Texas; you could be arrested for DWI without the car ever moving.
There wasn’t much order to the court. The mad judge counting down the days to retirement had a tendency to show up well after docket-call. Criminal defense attorneys and prosecutors shuffled from one side to the other of the dated courtroom leaving stacks of files scattered in their wake. For months, Clyde believed the law was on his side. Texas DWI statutes had yet to catch up with technology and the state was unable to prove the element of “operating.” On top of that, there were multiple people in the car, how could the prosecution prove his client was the one “operating?”
Clyde had pushed hard for a dismissal, but the young assistant district attorneys disagreed and refused to budge.
An old-school criminal lawyer, Clyde knew the district attorneys had no choice. Political contributions and pressure ensured DWIs were treated differently. DWIs were a cash cow and this highly-publicized decision was coming down from above.
The case was going to trial.
The jury was ready. After six hours of deliberation, that followed two days of trial, including 16 hours of testimony from 7 witnesses, a thorough explanation of autonomous cars, after endless objections, rulings, sidebar gestures, and attorney arguments, the jury was ready. Determined to uphold their civic duty and follow the law each juror scribbled their name on the verdict form. The foreperson, Ms. Parker notified the court a verdict had been reached. The bailiff walked through the courtroom’s side door and into the hall to answer the jury’s call.
“That’s great. I’ll let the judge know.”
Of course, the bailiff already knew the jury’s verdict; he had his ear to the deliberation room for the last hour.
The lawyers expecting a “rush-hour verdict” were already sitting in the courtroom.
“All rise.”
The judge entered.
“Bring in the jury.”
Led by their foreperson one-by-one, the jurors shuffled in. Clyde was confident, but as usual avoided eye contact with the jurors. His experience taught him jurors were impossible to read, and he knew he would hear their answer soon enough.
“Have you reached a verdict?”, the mad judge asked.
“Yes, we have,” the foreperson replied.
The bailiff handed an envelope to the clerk, who passed it on to the judge. Opening the envelope the judge gazed down at the verdict form and read, “We the jury find the defendant, Jake Dunn…”
DWI Standardized Field Sobriety Tests
DWI Field Sobriety Tests (SFSTs) have 99 Problems . . .
. . . but, courtroom admissibility ain’t one.
Despite many issues with outdated field sobriety exerices, they continue to form the basis for DWI arrests and subsequent prosecutions.
- Hired Guns: Many DWIs involve special DWI tasks force. Hired guns looking for and expecting to make DWI arrests.
- Officer Street Bias: (see 1) It’s 3 a.m., you knicked a curb. Officer’s are looking for DWIs. You gotta be DWI.
- Time & 1/2 : the officer receives time & a ½ to come testify in court. Aggressive DWI lawyers routinely contest the officer’s opinion you were intoxicated. DWI trials = officer bonuses.
- Subjective: The decision to arrest a person for DWI is based on the subjective opinion & bias of the officer.
- Political Influence: The day Mothers Against Drunk Driving was formed, is the day DWI laws changed forever. A DWI arrest alone can result in driver’s license suspensions, interlock devices, random urine tests, etc.
- Probable Cause: All that is needed for an officer to make an arrest. A crime may have been committed. It is a low burden. Significantly lower than proof beyond a reasonable doubt.
- Presumption of Guilt: trained officers have made an arrest, so they must be guilty???
- Exercises designed to make arrests, not to prove intoxication. The Standardized Field Sobriety Tests were implemented to assist in arrests, not to prove DWI beyond a reasonable doubt.
- Coordination Exercises designed to fail: you are not told what signs of intoxication the officer is looking for on the field sobriety tests and do not get credit for the things you do well.
- Exercises place a person in abnormal situations. How often do you stand with your one foot directly in front of the other? How often are you balancing on one foot?
- “You don’t know me, man”: The officer is meeting you for the first time: Under the law, the definition of intoxication includes not having the normal use of your mental or physical faculties. The problem is the officer has no idea what is normal for you.
- What is Normal? Normal for you, is not normal for me. Normal for Lebron James is not normal for me (or I wouldn’t be writing this).
- Isn’t an abnormal reaction to an abnormal situation normal? (see 10)
- Sleep Deprivation: can mimic signs of intoxication.
- Diabetes: can mimic signs of intoxication.
- Head injuries: can mimic signs of intoxication.
- Officer’s often fail to inquire into a person’s medical history (despite their training and instructions)
- Nervousness can mimic signs of intoxication. Ever seen a professional golfer miss a 1 ft. putt? A gymnast miss the landing? Routines they have perfected and practiced thousands of times. Why? Nerves.
- 1977 “Psychophysical Tests for DWI Arrest”: used in the development of field sobriety exercises. Narrowed 6 tests down to 3 (tAlcohol Gaze Nystagmus, Walk & Turn & One Leg Stand) while noting the tests “yield more precise results . . . in the station.”This study had a 47% false arrest error rate: Officer’s were wrong nearly ½ the time…in controlled environments.
- 1981 “Development and Field Test of Psychophysical Test For DWI Arrests”: Expanded on the 3 field sobriety exercises and recommended an 18-month field evaluation.
- The 18-month field evaluation was never completed.
- But a 3-month field evaluation was in the 1983 study “Field Evaluation of a Behavioral Test Battery for DWI.” This evaluation required officers to administer field sobriety exercises to any person they suspected of DWI. This study was based on the Honor system, without researchers riding along to see if the tests were being administered correctly.
- Zero of these “studies” have been submitted for peer review.
- Zero of these “studies” have ever been published in any scientific journals.
- No control group existed to evaluate a non-drinker or sober person’s performance on the exercises.
- Shouldn’t the expert officer know the studies, the instructions, and the clues like the back of their hand? In court testimony often reveals just the opposite.
- The Colorado Study: 1 out of every 8 participants failed the Horizontal Gaze Nystamus test although having a BAC under 0.05.
- The Florida Study: 67% of all incorrect arrests had maximum clues on the Horizontal Gaze Nystagmus Test; 70% of subjects under 0.08 failed the Walk & Turn.
- The San Diego Study: subjects under 0.08 were wrongfully arrested at a rate 6Xs more than those with a BAC over 0.08; 37% of subjects under 0.08 failed the HGN; 52% of subjects under 0.08 failed the walk and turn; and, 41% of subjects under 0.08 failed the one leg stand.
- The Robustness Study: This study looked at minor deviations on the Horizontal Gaze Nystagmus (HGN) and the impact on determining impairment. An average false positive rate of 66.7% (76.9%, 54.1%, 69.2%) was reported.
- Jim Booker’s peer-reviewed study, End Position Indicator of Ethanol Intoxication (Science and Justice 2001; 41: 113-116) finding alarming problems with the Nystagmus test, including:
- 19% of subjects had nystagmus before consuming any alcohol;
- 62% had nystagmus after reaching 0.00;
- 56% had nystagmus an hour after reaching 0.00;
- 37% people during absorption had nystagmus between 0.01 – 0.05;
- During elimination, 68% had nystagmus between 0.01 – 0.05.
- Not-Standardized? Non-standardized tests are often administered by the officer, like the Rhomberg test, also used to detect venereal disease.
- Science? The National Highway and Safety Administration thinks so, many disagree.
- Or Junk-Science: try to balance on one leg for 30 seconds and see how you do.
- Show me the evidence? What happen to the on-scene video?
- Mic Check? There is a video, but where did the sound go? Why does the officer turn his mic on and off?
- Horizontal Gaze Nystagmus: Flashing Lights can cause nystagmus
- Head Injuries can cause nystagmus
- Medical Conditions can cause nystagmus
- Eye Injuries can cause nystagmus
- Nicotine can cause nystagmus
- Caffeine can cause nystagmus
- Natural Nystagmus & Resting Nystagmus: some (unknowingly) have natural nystagmus.
- There are all types of Nystagmus
- And the officer can’t tell the difference.
- Test is Depressant specific, not alcohol specific: there are a lot of depressants other than alcohol.
- Equal Tracking? Did the officer check to see if the eyes tracked equally?
- Equal Pupil Size? Did the officer check the subject’s pupil size?
- Dust can interfere with the test
- Wind can interfere with the test
- Officer holds stimulus too high – test invalid
- Officer holds stiumulus too low – test invalid
- Officer takes stimulus out too far – test invalid
- Officer moves stimulus too slow – test invalid
- Officer moves stimulus too fast – test invalid
- Stimulus held out too long – test invalid
- Stimulus held out not long enough – test invalid
- Incorrect # of passes – test invalid
- 82 seconds should be the minimum time it takes for the officer to perform the HGN.
- Rubber Stamp: rarely do the officers not “find” 6 of 6 clues (or a strong odor of alcohol on your breath and red, blood shot glassy eyes).
- What do the eyes look like? The officer can see the nystagmus (bouncing of the eyes), but no one else can.
- Vertical GazeNystagmus: inadmissible and not standardized.
- Walk and Turn and One Leg Stand: Incorrect Instructions – test invalid.
- Officer distractions on the Walk & Turn and One Leg Stand can impact the subject’s performance. The officer should be quiet. The officer should be still.
- Passing traffic can impact the subject’s performance.
- The Walk and Turn Test and the One Leg Stand should not be conducted on a slippery, wet, or un-level surfaces.
- Failing before you even start: the first two signs of intoxication on the Walk and Turn test are starts too soon and can’t balance during instructions. Two strikes and you’re out, meaning you can fail this test before you ever walk the line.
- C = F: if you get 6 of 8 clues correct (75%) on the walk and turn you still fail.
- What you don’t know will kill you: the officer doesn’t tell you what signs of intoxication or clues he is looking for.
- Uses arms for balance is a clue. This means raising both arms more than 6”. You are not told this.
- Steps off-line is a clue. This means one foot comes entirely off the line. You are not told this.
- Heel-to-toe is a clue. You get a 1/2″. You are not told this.
- Improper Turn is a clue. If you remove your front foot from the line while turning, you get docked.
- Stops while walking is a clue. This should only be marked if you pause for several seconds.
- During the One Leg Stand officer’s often tell subjects to pick their foot up if they put it down. That is not an instruction. Officer’s often tell subjects to point their toes, this is not an instruction.
- Test too long or too short? Officer should discontinue the One Leg Stand at 30 seconds
- Failing: 4 total clues. 2 strikes and you’re out.
- Using arms for Balance is a clue (6+”). Aren’t we taught to balance with our arms out as kids?
- Swaying back and forth or side to side is a clue. Who wouldn’t sway on one foot?
- Age can impact performance.
- Back & Leg Injuries can impact performance.
- Inner ear problems can impact performance.
- Your shoes can impact performance and you should be allowed an opportunity to remove them.
- Inadequate Training: one week course is all it takes to become an expert.
- Signs of Sobriety? They often outweigh the signs of intoxication.
- Consistently Inconsistent: When a person does well on the tests, officer’s say their decision to arrest for DWI was based on the “totality of the circumstances.”
- Form Police/Offense Reports: district attorney offices provide easy fill in the blank forms which feed the necessary signs of intoxication and field sobriety clues.
- Accused 1st time: The subject doesn’t know what to expect on the test.
- Officer’s 100th+ time demonstrating the test. Practice makes perfect.
- Refuse and be arrested: Your refusal will be taken as a sign of hiding intoxication.
- Perform and be arrested: the officer’s mind was made up at “have you been drinking.”
- Mi—randa? The officer will say you were not under arrest, so Miranda doesn’t apply. What you say will be used against you.
- The Calvary: other officers (a.k.a. friends, colleagues, supervisors) on the scene will bolster each other’s opinion and testimony as to your intoxication.
- Validity Compromised: Despite the officer’s training manual stating, “if any one of the standardized field sobriety test elements is changed, the validity is compromised”, Texas courts continue to find creative ways to allow improperly administered field sobriety exericises into evidence. The Texas Court of Appeals in Compton v. State concluded “slight variations” do not render the tests inadmissible. As such the DWI criminal lawyer must highlight all the normal and sober signs their client exhibited, while pointing out the inherent bias of these unforgiving and outdated exercises and trusting the jury to follow the law in reaching their final vedict.
Chipping away at the 4th Amendment
The United States Supreme Court in Utah v. Strieff held an unlawful stop may be legitimized by the later discovery of a traffic warrant. A disturbing finding that only strengthens the Texas Court of Criminal Appeals similar position in Mazuca v. State. 375 S.W.3d 294 (Tex. Crim. App. 2012). As we enter the latter half of this decade, our highest courts seem all to willing to bend over backwards and uphold unlawful arrests.
Avatar Lawyer
Created by and marketed as the world’s first artificially intelligent attorney. The AI machine, powered by IBM’s Watson technology, will serve as a legal researcher for the firm, BakerHostetler.
BakerHostetler emphasized ROSS is not out to replace attorneys, but only to be used as a supplemental tool to “reduce human error, move faster, and move more efficiently.”
The same reasoning cited by Cyberdyne Systems in creating Skynet, a self-aware, artificial intelligence system that initiated mass genocide in the blockbuster movie franchise Terminator. Unfortunately for those waiting, attorney genocide seems unlikely and this article is not about ROSS, BakerHostetler, or Arnold Schwarzenegger.
This article incorporates a different idea with the potential to terminate or at least diminish a trial attorney’s courtroom presence. Walking in ROSS’ red-carpet shadow is Adam Benforado, an accomplished professor of Drexel University Law School and author of Unfair: The New Science of Criminal Injustice, who has proposed virtual courtrooms. That’s right, lawyer avatars. His goal aims at fixing the criminal “injustice” system. A system where verdicts are rendered not on facts, but on cultural cognitions – gut feelings, prejudices, stereotypes, personal likes, or dislikes, sympathies, and generalizations. A system where incorrect Verdicts send innocent people to prison far too often.
How Good People, with Good Intentions, Get Things Terribly Wrong.
Simply put, we don’t understand how the human brain works. While we are aware humans suffer from a long litany of biases, everyday courtrooms across the country attempt the impossible. They try to control uncontrollable biases.
Any trial attorney can give you a voir dire example where an otherwise disqualified juror is rehabilitated by the court. After explicitly revealing a bias, the court instructs the juror, “you can put your feelings aside and follow the law?”. To which the perspective juror reluctantly replies, “I guess, yes.” This exchange by the judge and juror actively promotes a false notion that biases can be suppressed and controlled.
The very purpose of voir dire is to ferret out biases. Sanchez v. State, 165 S.W.3d 707 (Tex. Crim. App. 2005). While the fear of a person concealing explicit biases to remain on the jury exists, it is the hidden, implicit biases lawyers should fear most.
Explicit bias is an attitude and stereotype consciously accessible and endorsed as appropriate. Consider a person’s bias towards vaccinations. This person has a negative attitude (i.e. prejudice) toward vaccinations and also believes vaccinations are bad for your health (i.e. stereotype). In believing vaccinations should be avoided, this person is aware of the attitude and stereotype and endorses them as appropriate. Implicit bias, on the other hand, is an attitude and stereotype not consciously accessible. Consider another person who just recently developed a bias against vaccines. However, this person has a history of receiving vaccinations and has remained in good health. Based on past experiences this person may still have a positive attitude towards vaccines. Translating these biases to the courtroom, a juror with an explicit bias should recognize their prejudice against a certain class of people and reveal it. A juror with an implicit bias may perceive themselves as objective, but unknowingly hold a negative stereotype about a particular class of people. Jurors may say they will give equal weight to both a police officer’s testimony and a non-police officer’s testimony, but subconsciously they may associate an officer being more trustworthy and credible.
Check out this video from What Would You Do? and see an example of these biases at work.
Like many in the video, it is those who perceive themselves as objective who present the greatest challenge. Research has shown when a person believes himself to be objective; such belief licenses him or her to act on their biases. Eric Luis Uhlmann & Geoffrey L. Coher, “It Think It, Therefore It’s True.”: Effects of Self-Perceived Objectivity on Hiring Discrimination, (2007). Police officers, lawyers, jurors, and judges all harbor these hidden biases. In a judicial poll, 97% of judges ranked themselves in the top half in their ability to “avoid racial prejudice decision making.” Jeffrey J. Rachlinski, Does Unconscious Racial Bias Affect Trial Judges?, 84 NOTRE DAME L. REV. 1195, 1225 (2009). Not only is that figure mathematically impossible, but it is inaccurate. Implicit Association Tests (IAT’s), used to measure hidden attitudes and beliefs, revealed these “impartial” judges had concealed biases on defendants of the opposite race. Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, The Failed Promise of Batson, and Proposed Solutions, 4 HARV.L. & POL’Y REV. 149, 150 (2010). It is the need to counter these biases that stand as the foundation for the lawyer avatar.
The Lawyer Avatar.
In the first part of the two-part proposal, Benforado suggests substituting “live” jury trials with previously recorded trials. Trials that have been edited to eliminate inadmissible material, improper questions, sidebar remarks, objections, and the court’s rulings on those objections. This approach protects jurors from unlawful evidence with the potential to negatively influence their decision-making process. In essence, what jurors don’t know, won’t harm them. In part two of the proposal, he suggests an animated courtroom where lawyers and witnesses are replaced by avatars. In substituting courtroom faces with generic avatars, he believes juries will focus more on the facts of the case as opposed to cultural cognitions bolstered by implicit biases. A witness avatar would hide the physical characteristics of the person testifying (e.g. race, dress, attractiveness, etc.). The judge avatar would hide such things as facial expressions while ruling on evidentiary matters. Supporters believe virtual courtrooms would bury unwanted explicit and implicit biases.
The Lawyer Avatar’s Legal Hurdles
We can assume our founding fathers failed to take into account virtual courtrooms when writing the Constitution. In order to accommodate this idea grounded Constiutional pillars would need to be bent. The 5th Amendment provides, “No person shall . . . be deprived of life, liberty, or property without due process of law.” U.S. Const. Amend. V; See also Tex. Const. art. 1 § 13 & 19. The 6th Amendment grants the “accused the right to be . . . confronted with the witnesses against him. U.S. Const. Amend. VI; See Tex. Const. art. 1 § 10; See also Crawford v. Washington, 541 U.S. 36 (2004); Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010). Incorporated in both is the right to a fair and impartial jury that is the exclusive judge of the facts and determines the credibility of witnesses and the weight given to their testimony. Tex. Code. Crim. Proc. Art. 36.13. The central purpose of these constitutional principles is to ensure the reliability of evidence against an accused by subjecting it to rigorous testing that includes: physical presence, oath, cross-examination, and observation of demeanor by the trier of fact. Maryland v. Craig, 497 U.S. 836 (1990). Proponents could argue courts have held that although face-to-face confrontation forms the core of these clauses values, it is not an indispensable element, particularly where the testimony’s reliability is assured and public policy is advanced. Id at 837. Adapting the criminal justice system to protect innocent persons from spending years in prison, certainly seems like a valid public interest. On the flip side, appellate courts are careful not to “invade the province of the jury” when reviewing cases. This is due in part because the black robes were not present at trial. It is the jury’s role, not appellate judges, to determine the credibility of the witnesses and the weight evidence should be given. Although one could argue the current legal system shows jurors are deciding cases on things unrelated to the facts of the case, these clauses exist to protect the accused. An adverse witness hiding behind an avatar not only deprives the jury the ability to get a complete picture of the witnesses demeanor but also deprives the accused of truly testing the witness’ story. The witness will feel more comfortable and more confident without having the eyes of the courtroom on him or her, an essential element of confrontation.
Attorney Genocide?
Who knows if virtual courtrooms will ever take a seat in the American justice system or if avatars will help fix a broken system. In the meantime using prior wrongful conviction as lawyer avatar case studies could yield compelling information. Also, judges, lawyers, officers, and jurors should become aware and educate themselves of these biases and courts should take measures to ensure a fair and impartial jury is seated. United States District Court Judge Mark W. Bennet, for example, spends twenty-five minutes with jury panels during voir dire discussing implicit biases. He shows jurors the above video and has a plaque in the jury deliberation room that reads:
I pledge: I will not decide this case based on biases. This includes gut feelings, prejudices, stereotypes, personal likes or dislikes, sympathies, or generalizations.
We must lay to rest this notion we are infallible and objective. Failure to do so is a vote of injustice. An endorsement that it is okay to send innocent people to prison. As we continue to search for a just system, as we continue to live in a nation where anything is possible, who knows, maybe a lawyer’s courtroom presence will slowly become…terminated.
Freedom Fit: Modern Criminal Defense & Wearable Tracking Devices
You’ve seen the commercials.
Go Fit.
Push Fit.
Pull Fit.
Whooooaaaa Fit.
Stay Fit.
If not, here it is.
Endless Fits. “All the fits” are more than healthy-living tracking devices, they are slowly evolving into persuasive tools for courtroom advocates and criminal defense attorneys should take note. Defense Fit.
Unintended Use of Fitbits:
Recently a 44-year-old woman in Pennsylvania was charged with reporting a false alarm, tampering with physical evidence, and making a false report after data pulled from her Fitbit wristband contradicted her original sexual assault claims.
The affidavit states:
The information collected from the fit bit device showed that [defendant] was awake and walking around the entire night prior to the incident and did not go to bed as reported. The Fitbit shows activity up until the time of the call and then again only when it is collected by your Affiant. That based on the above and additional evidence your Affiant believes that the [defendant] was not raped as reported and fabricated the entire incident.
Over the last few years, civil attorneys have presented Fitbit tracker information in court to either bolster or discredit physical activity in personal injury lawsuits.
Women have even learned they are pregnant when their Fitbit data became erratic. An example of the diverse information discoverable from these devices.
What is a Fitbit?
Fitbit devices were created to provide real-time feedback on personal fitness goals. By wirelessly syncing and automatically recording data to your smartphone or computer, Fitbits provide up to the minute tracking of your activity, food, weight, exercise, location, etc. Below are recent Fitbit products and features.
- Zip: tracks steps, distance, calories burned, & active minutes;
- One: Zip’s features plus sleep tracker (i.e. how long & how well you slept);
- Flex: One’s features plus hourly activity tracker & stationary time tracker;
- Charge: Flex’s features plus floors climbed tracker & caller identification;
- Alta: Charge’s features plus call, text, & calendar alerts and an auto-record workout feature;
- Charge HR: includes an up to the second heart rate data.
- The Blaze & Surge: touchscreen watches that include heart rate data & GPS location.
Discovering Fitbit Data:
A criminal defense attorneys pursuit for exoneration never ceases. Knowing whether your client owned a wearable device should be a question in every initial consultation. Valuable information at the time of the alleged incident such as heart rate, location, texts received, and calls received can be learned from the wearable device. The Fitbit user can pull the information themselves or provide you with their username and password. The data can then be downloaded straight from the Fitbit website. The very tactic used by police in the above Pennsylvania, sexual assault case.
If the Fitbit user is an adverse party, unwilling to grant access, then you’ll have to lean on the old school approach of subpoenas and court orders. In fact, Fitbit’s privacy policy states, “it will release data necessary to comply with law, regulation, or valid legal process.” 1
Fitbit Data & Law Enforcement:
Legislatures have struggled to chase technological advances. By the time lawmakers enact a new statute, the next, best device hits the market. Recently the American public has learned of government attempts to obtain a master-key to unlock cell phones & the warrantless use of skimming devices to gather personal information. Fortunately, courts are recognizing the need for warrants when intruding into one’s “handheld privacies.”
The United States and Texas courts require law enforcement to obtain a warrant before searching confiscated cell phones. 2 This warrant requirement has yet to extend to location data as officers routinely track individuals by obtaining information from cell phone companies without the person’s knowledge. While wearable devices contain location data, they have a closer resemblance to cell phones. Thus, a warrant should be obtained before searching any Fitbit (or similar) device. Bolstering this opinion is the Riley court’s statement that, “obtaining location information through a cell phone is a search and requires a warrant”. 3 That being said, laws relevant to technology are in constant flux, and a person can always waive their rights by consenting.
Even though the legal landscape surrounding wearable devices is somewhat chaotic, data recovered can be a powerful criminal defense tool to use, especially in pretrial negotiations. Every defense lawyer should know whether or not their client has or was wearing a wearable tracking device on the night of the alleged incident; know how to recover the necessary data; know how to interpret and apply it. Defense Fit.
Notes:
- Whether or not the release of wearable, personal, health-related information is in violation of the Health Insurance Portability and Accountability Act (HIPPA) will be left up to appellate courts to decide. ↩
- Riley v. California, 573 U.S.___, 134 S. Ct. 2473, 189 L. Ed.2d 430 (2014); State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014). ↩
- Riley, supra. ↩
Recent Criminal Defense Case Results (April 2016)
Texas Criminal Lawyer Case Results (April 2016)
➤Prostitution – Dismissed
Client was arrested and charged with the criminal offense of Prostitution. After an investigation revealed issues with the police officer’s sworn report, the district attorney agreed to dismiss the case in exchange for a sex education class.
➤Aggravated Assault with a Deadly Weapon – Dismissed
Client was facing a serious felony with the potential for a lengthy punishment range. Our client was adamant that he did not commit the crime and we agreed. The state was unwilling to dismiss the case, and the case was set for trial. On the day of trial, with a jury panel in the hall, the case was dismissed.
➤Motion to Adjudicate – Dismissed
Our client faced potential prison time after alleged violations surfaced while on probation. The state filed a motion to revoke the probation and we set out to find the truth. After a lengthy investigation revealed credibility issues with the State’s witness the motion to adjudicate was dismissed and client was placed back on his original probationary terms.
➤Felony Possession of a Controlled Substance – Dismissed
The officer’s basis for the search was unlawful. Unlawful evidence is inadmissible and without it, the State could not prove their case beyond a reasonable doubt. We presented case law directly on point that showed the problems with the officer’s actions. Case dismissed!
Breaking: Immigration Consequences from a DWI Arrest
Immigration Consequences from a DWI Arrest
The Department of State has started revoking visas of foreign nationals legally in the United States after a DWI or DUI arrest. Collateral Immigration Consequences from a DWI arrest of the harshest kind. Merely an arrest, not a conviction triggers the potential revocation. Given the subjective nature of DWIs and potential for abuse, this new policy is frightening.
Currently the foreign national remains in lawful status after revocation, but is unable to apply for future admission to the United States. There are cases of immigration consequences from a DWI arrest within weeks of the arrest.
Not only may your visa be revoked, but your ability to travel abroad may be in jeopardy. Recent reports suggest visa holders traveling abroad are finding it difficult to re-enter the United States. Those most affected are students with J-1 visas.
These immigration consequences from a DWI arrest were implemented Nov. 5, 2015 and the department has wasted little time putting their new tool to work. Responding to critics, the Department said, “It is both a public safety issue and evidence of possible visa ineligibility.”
Previous DWI immigration consequences surrounded convictions. Consular officials have been required since 2007 to refer visa applicants with a DUI or DWI conviction in the a) past five years or b) two or more in the past 10 years to a physician. The physician is then charged with determining whether the applicant should be ineligible for a visa under a provision barring applicants classified as having a “mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety or welfare of the alien or others.”
In light of recent trends, it is clear the State Department is taking not only DWI & DUI convictions seriously, but arrests as well. If you are a foreign national and arrested for DWI or DUI you need to not only have an immigration lawyer, but a qualified DWI lawyer on board to fight the government’s accusations. Given these recent, harsh DWI arrest immigration consequences, Uber never looked so good.
Adamo & Adamo Law Firm Attorney Named 2016 Top Houston Lawyer
Sam Adamo Jr., a criminal defense attorney at the Houston based Adamo & Adamo Law Firm, was recently tabbed as one of Houston’s best criminal lawyers for 2016 by H-Texas Magazine.
Veteran Criminal Defense Attorneys – Eliminate the Threat
Recently media outlets reported the Navy Seal responsible for shooting and eliminating Osama bin Laden was charged with DUI. Now, this special-ops veteran, willing to sacrifice his life to protect the United States, its people, and the government finds himself being prosecuted by that very same institution.
While the majority of veterans return home stronger and wiser from their service, many others bring their war home. Silently suffering from invisible injuries like Post-Traumatic Stress Syndrome (PTSD) and Traumatic-Brain-Injury (TBI). Feeling as if their native land is enemy territory, post-combat veterans may become confused and threatened. Trained to eliminate the threat, veterans fall victim to alcohol and substance abuse. As time progresses these symptoms worsen. When self-destructive, reckless and violent behavior turn to criminal behavior, should we be all that surprised?
Eliminate the Threat:
Early on and as part of a soldier’s training, the United States government employs an intensive psychological conditioning program encouraging violent reactions to threats. Fortunately for civilization, the vast population is not wired to kill and doing such is unnatural. In order to simulate warfare, combat-training focuses on turning that unnatural act into a natural one. Doing so not only enhances the likelihood of survival, but success and victory as well. Soldiers minds are shaped to reactively eliminate all threats. The end product yields an instinctive killing machine. However, once service concludes, they are not adequately deprogrammed. When such unnatural training joins forces with psychological trauma, violent and criminal acts are a real possibility.
A Veteran’s War at Home:
Psychological trauma has long been a recognized consequence of veteran combat. Service related illnesses such as post-traumatic-stress-disorder (PTSD) and traumatic brain injury (TBI) have been associated with struggling veterans re-entering society post-tour. Veterans trying to cope with the battlefield horrors and families and communities unable to understand make American returns especially difficult. These invisible-injuries are often unreported and untreated, leading veterans to self-medicate with alcohol and drugs. Over time these substances exacerbate symptoms before the troubled veteran spirals downward into self-destructive, reckless, violent or criminal behavior. Even treated, medical professionals have linked anti-depressants to manic-like reactions, aggressiveness, suicide, loss of impulse control and violence. 1 It has been a reported there are 22 veteran suicides a day. That’s 22 a day!
While recorded history dating back to early wars suggest psychological trauma may manifest into criminal behavior, only recently has this been studied. 2
The National Science Institute of Medicine (IOM) in 2012 released a report finding, “PTSD is commonly associated with substance abuse, unregulated anger, aggressive behavior, and hazardous use of alcohol, all of which are, themselves, associated with legal problems and incarceration.” 3
Prior to that report, in 2009, following a highly publicized wave of homicides and other violent crimes committed by returning soldiers, the Army commissioned a study known as the Epidemiological Consultation, or EPICON. 4 EPICON attributed two major factors to post-deployment violent behavior: (1) repeated deployments and (2) the intensity of combat in those deployments. The more soldiers were exposed to combat, the more they showed effects. This study is especially troubling in light of America’s most recent war and the number of multiple combat tours troops have served. Reports show a large number served at least two tours, with special-ops serving over twelve tours. 5 In contrast during World War II and Vietnam the majority of troops served only one combat tour. 6 The above mentioned IOM report listed over 500,000 PTSD diagnosed veterans from Iraq and Afghanistan and expects that number to climb. [see Comm. on the Assessment of Ongoing Efforts in the Treatment of Post-traumatic Stress Disorder, Inst. of Med. of the Nat’l Academies, Treatment for Post-traumatic Stress Disorder in Military and Veteran Populations: Initial Assessment at 322. [/ref] That number does not include the many veterans who are self-medicating and yet to be medically diagnosed. The evidence clearly supports there is a high number of post-combat veterans in America wrestling their inner-demons.
The State of the Criminal Justice System and Veterans:
In the past, post-combat trauma turning into criminal behavior had been discarded by the criminal justice system. Veterans were sentenced to prisons, asylums, or chronic homelessness. In fact, a 2004 report by the Bureau of Justice Statistics found, despite having shorter criminal records, veterans reported longer prison sentences than nonveterans (on average 22 months longer). 7 The justice system viewed soldiers as a threat, instead of focusing on the actual threat, their mental health.
Fortunately progress is being made. The federal government, for example, under Section 5H1.11 of the U.S. Sentencing Guidelines illustrates the need to distinguish the veteran defendant from other defendants via service and experiences. Similarly the United States Supreme Court in Porter v. McCollum (2009) highlighted failure of defense counsel to present the veteran’s combat service and resulting trauma at sentencing was sufficient grounds to support a claim of IAC.
State courts have followed suit implementing a number of veteran courts specifically designed to treat as opposed to sweeping soldier’s internal issues under the rug. Low-level offenses often end in dismissal under these programs, allowing veterans the opportunity to expunge or erase the incident entirely. Houston courts have initiated such programs for veterans.
Growing sympathy for veterans from the prosecutorial side has even shown to be significant. A study polled 35 prosecutors from various states and found “overall, prosecutors view veterans as less-blameworthy for low-level offenses than nonveterans.” It was also shown veterans were offered heavy treatment programs as opposed to jail or probation like the counterpart nonveteran defendants. 8 Jennifer Kelly Wilson, et al., Prosecutor Pretrial Attitudes and Plea-Bargaining Behavior Toward Veterans With Post-Traumatic Stress Disorder, 8 Psychol. Services 319, 322. 326 (2011). From a practice standpoint, I have found prosecutors eagerly willing to listen and accept documents supporting a veterans criminal case.
Defending the Veteran:
Similarly, defense counsel for veterans have become more aware of mental illnesses a veteran may be struggling with. Using such things as VA medical records, service records, honorable discharges, honors and awards, etc., criminal defense attorneys are able to paint a complete picture to the trier of fact. This picture provides an outlet for the decision maker – whether it be the dismissal of charges, a not guilty verdict, or a mitigating sentence.
One cannot predict who will and will not suffer from these silent and invisible injuries. I know and have spoken with veterans who have come back and been able to channel their inner-struggles into something positive. Strong community ties and supports systems assist them greatly. Unfortunately, not everyone is able to shake what they have endured and witnessed. I have great admiration and respect for all veterans. For those still at war with themselves we must continue providing healing environments. We must eliminate the threat.
Notes:
- Exploring the Relationship Between Medication and Veteran Suicide: Hearing Before the House Comm. on Veterans Affairs, 111th Cong. (2010) (statement of Dr. Peter Breggin, Psychologist), available at http://democrats.veterans.house.gov/hearings/Testimony.aspx?TID=65592&Newsid=525. ↩
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A Revolutionary War veteran, describing conditions in South Carolina after the war, wrote, “Highway robbery was a common occurrence, and horse-stealing so frequent that the legislature made it a crime punishable with death.” Allan Nevins, The American States During and After the Revolution, 1775-1789, 454 (1924). Additionally, after the Civil War, a great wave in crime and disorder was documented. Historian and attorney Eric T. Dean, Jr., noted: The Civil War “let the genie out of the bottle,” as the violence of the war years spilled over into civilian life in the post-war era. During the war, soldiers had been trained to kill and thereby threw off the restraints of civil society and accepted a life of violence; there was no immediate way to put an end to the habit of violence and reintroduce all of these men to the industrious and peaceful vocations of life. In both the North and the South a period of turmoil followed the end of the war. Eric T. Dean, Jr., Shook Over Hell: Post-Traumatic Stress, Vietnam, and the Civil War, 98 (1997). ↩
- Comm. on the Assessment of Ongoing Efforts in the Treatment of Post-traumatic Stress Disorder, Inst. of Med. of the Nat’l Academies, Treatment for Post-traumatic Stress Disorder in Military and Veteran Populations: Initial Assessment, 322 (2012). ↩
- U.S. Army Center For Health Promotion and Preventive Medicine, Epidemiologic Consultation No. 14-Hk-Ob1u-09: Investigation of Homicides at Fort Carson, Colorado November, 2008–May 2009, ES-1 (2009). ↩
- Mark Owen & Kevin Maurer, No Easy Day: The Firsthand Account of the Mission That Killed Osama Bin Laden (2012) (author, a Navy SEAL who participated in the mission to kill Osama Bin Laden, notes that he participated in 13 combat deployments to Iraq and Afghanistan). ↩
- Jeremy Schwartz, As Soldiers Leave War Behind and Return to Fort Hood, What Comes Next?, Austin American-Statesman (Nov. 5, 2011, 8:23 PM), http://www.statesman.com/news/news/local/as-soldiers-leave-war-behind-and-return-to-fort—1/nRgxg/. ↩
- Bureau of Justice Statistics Special Report, Margaret Noonan & Christopher Mumola, Veterans in State and Federal Prison, 1 (2004). ↩
Recognizing Evidence Tampering in Criminal Cases
Criminal lawyers often receive evidence in the form of photographs, audio recordings, and video recordings.
In order to be admissible in court the image or recording must be authentic. Today, easy-access to software allows even the unskilled computer user to create a new reality in minutes.
Image-audio-video tampering is the addition, removal, or relocation of content in a previously authentic recording. Contrasting resolutions within an image, audio interruptions, and additional video components (e.g. picture-in-picture) can call the evidentiary authenticity into question. Science permits different methods to review whether evidence has been tampered with.
Photo Response Non Uniformity (PRNU)
PRNU is the unique noise profile imprinted by a recording device onto the produced file. The PRNU can be extracted from the recording and compared with the devices known PRNU. Unmatched profiles can indicate the evidence has been altered.
Electric Network Frequency (ENF)
By measuring the underlying frequencies from a recording, ENF allows the analyst to determine where and when a recording was created. This assists in finding if the recording was created where and when it was purported to be.
File Name Extensions
File name extensions are unique to the equipment manufacturer and if an image or recording has been altered the new file name extension may reveal bad faith.
Metadata
Metadata (e.g. GPS coordinates) can reveal facts about the recorder’s model number, user settings, physical location, and more. These values can then be compared by the attorney’s known case facts. A useful tool for criminal defense.
Light Test
Light travels in a straight line, until an object throws off it’s intended path. For an image the light test involves drawing a straight line that touches upon an object and it’s corresponding point on the shadow. This is repeated for each point on all objects casting a visible shadow from the light source. All the lines should intersect at the same point. If any line does not intersect at the light source, then the object touching this line may have been added.
Ear Test
With audio recordings, incomplete words, sudden audio background changes, vocal fluctuations, pauses, clicking sounds and repeated phrases may all indicate edit points and tampering.
Eye Test
Is the resolution of an image or recording consistent with the recording device? Video-dvd’s created via post recording leave open the possibility of altercation. Also, the appearance of title screens, picture-in-picture (PIP), zooming and speed changes on a video can be proof of the video has been altered.
Error Level Analysis (ELA) and Video Error Analysis (VELA)
This test recompresses image and video files to identify affected areas. Postproduction changes will be disproportionally affected greater. The results can also identify which editing software was used.
The testing methods above provide reliable tactics if authenticity of an image-audio-video is at issue. Even if the evidence has not been altered, information obtained can provide powerful tools for a trial lawyer to use in defending the case.