Anyone watch ESPN’s NFL Monday Night Countdown? Have you seen the segment “c’mon man?” The main cast criticizes boneheaded plays that occurred in sports the previous days.
If there was a “C’mon Man” for forensic science, DPS would receive plenty of air time. It’s the usual song and dance with DPS; ignore fundamental principles of forensic testing while simultaneously claiming DWI results aren’t impacted.
1) Breath Test Inspections? We don’t need those.
In a letter dated April 2, 2020, DPS made the decision to suspend monthly onsite inspections of breath test machines. This decision is contrary to their own standard operating procedures and has left breath test results largely unchecked since the aforementioned letter. No inspections, no solution changes, no cleaning, no thank you!
2) Refrigerator Down
Biological evidence, like food, like milk needs to be stored properly. For blood, that means refrigerated at 4 degrees celsius. However, on the weekend of 05/30/20 to 06/01/20 a DPS employee arrived to learn that a refrigerator was down impacting 800+ blood kits. DPS fails to provide an actual temperature, but goes on to state the results are still valid.
Huh? If you made chicken salad on Friday, put it into the refrigerator, left for the weekend and returned to find out your refrigerator was no longer working would you serve your family the chicken salad? Of course you wouldn’t. You’d toss it out. Just as these blood vials should be.
DWI jury trials can’t start up soon enough!
The day has not gone as planned and you or someone you know has found themselves arrested. Cramped in the back seat of a police vehicle, hands behind their (or your) back held together by the relentless grip of steel handcuffs. Now you need to know what to do to get them (or yourself) out of this. What follows is a comprehensive explanation of everything you need to know to successfully navigate the criminal justice system from the beginning of the arrest to finding the best criminal defense lawyer to getting the best possible outcome.
The Beginning: The Arrest
What NOT To Do When You are Arrested
1. Don’t talk about what happened.
If you are approached by the police or pulled over by an officer and the officer believes you were or may be engaged in criminal activity they will begin their investigation. Anything you answer, anything you say will be used against you.
A common misconception is if the police did not read you your miranda rights, it doesn’t matter what you say. This is not true. Your miranda rights only attach once you have been formally arrested. Even then, any information you volunteer can still be used against you.
If you are asked any questions, you may simply reply “I’d be happy to cooperate with my attorney present.” Rinse and repeat.
2. Don’t make a run for it.
If you make a run for it, best case you catch an evading charge on top of the original charge. Worst case, you end up with a bullet. Don’t take the chance. Live for your day in court.
3. Don’t resist the arrest.
Like evading, there is an entirely separate charge for resisting arrest. On top of that, your legal fees will be higher, the officers involved will remember you and put in that extra effort in preparing their offense report. Prosecutors as well aren’t big fans of people who resist arrest and are less likely to be reasonable when discussing offers on your case. If you resist you won’t when the battle and it makes it more difficult to when the war.
4. Don’t consent to a search of your car.
We all have rights, but we can waive those rights. The quickest and easiest way to waive your Constitutional rights is by replying “yes” to an officer’s request to search your vehicle. Don’t let them. Even if you have nothing to hide. It will give your criminal defense attorney another bullet in fighting your case down the road.
5. Don’t consent to a breath or blood test if you have been arrested for a DWI or DUI.
A typical DWI or DUI investigation begins with the officer asking you “If you have had anything to drink” and ends with a request for either a breath or blood specimen. You can and should refuse both the breath and blood specimen and can even refuse to do the field sobriety exercises (we like to call them what they really are coordination exercises). Don’t worry about consequences with your driver’s license, the truth is your driver’s license may never get suspended. Let your DWI lawyer worry about the your driver’s license. When you refuse the police may or may not get a warrant to draw you blood. Make them do it. You’d be surprised how often this process gets messed up, resulting in any blood alcohol level getting suppressed (i.e. can’t be used against you).
Pro-Tip: You can also refuse to do the field sobriety exercises.
6. Don’t believe the police.
Police can lie under the Texas law and do lie under Texas law. They are trained to know the elements of a crime and will get you to incriminate yourself, if you allow them. Remember, “I’d be happy to cooperate, with my attorney present.”
7. Don’t talk about who you know.
Maybe you know the District Attorney, maybe your uncle is a police officer. Regardless, the cop arresting you does not care and will allow you to carry on in the back seat of the police car while recording it all on video.
8. Remember, you are on video.
When you are on the street, the officer likely not only has body cam recording what you do and say, but also dash-cam in his or her police vehicle. When you are in the back of the police car this police video tools are still rolling. The best thing to do is to zip the lips.
9. If you are with someone else, have them video.
Under Texas law a passenger in your car or a witness at the scene is legally allowed to record the police encounter as long as they are not interfering with the investigation. Police don’t like bystanders recording, however it is perfectly legal to do so and can often be helpful to the criminal defense attorney you hire to fight your case.
10. If the police come to your home, do not let them in unless they show a warrant.
Again we all have rights. The police are not allowed into your home absent a warrant to search your house. If they ask to come inside, respond with “Do you have a warrant?” If they say yes, make them show it to you. If they have a search warrant, there isn’t much you can do, but let them in. If they don’t however, know your rights, and stand strong.
In the end, do your best to stay calm. This arrest will pass and if you play your cards right, your criminal defense lawyer may pull a rabbit out the hat and get all your charges dropped. Every day across the United States people are arrested. Often for crimes they didn’t commit. Know you are not alone (chart).
At the Jail: Processing and Setting Bond.
Your police escort has arrived at the police station (county jail). In bigger counties, like Harris County (Houston), you may first be brought to a smaller substation before transportation to the larger main hub station.
Once you are brought into the station, you will begin processing; and processing is S-L-O-W. You can expect to be sitting around for at least eight hours (likely more) before the outside air hits your lungs again.
After some general housekeeping, you will go in front of a magistrate or judge. This person will listen to probable cause (read by a prosecutor), determine if probable cause exists, and set an appropriate bond for the criminal accusation/s. It is important that you do not talk about your case or become argumentative during this routine criminal procedure as the procedure is recorded. Chances are you will disagree with the probable cause summary the arresting officer typed for the prosecutor to read. Don’t worry, your criminal defense attorney will have an opportunity down the road to present your side of the story.
Bonding Out of Jail or Posting Bond.
There are 3 Types of Bonds in a Criminal Case:
- Cash Bond: A cash bond is where you post the entire amount of the bond yourself. If the bond is $1000, you pay $1000. No bonding company is needed or used here. You (a relative or friend) are putting up the money guaranteeing your appearance in court. If you fail to appear for court your money will be forfeited. If you make all your required court appearances the money will be returned to once your case is complete (i.e. disposed of).
- Surety Bond: This is the most common method with the least amount of upfront hassle. Here you contact and pay an approved bonding company or attorney to post the bond. Bonding companies generally charge between 10-15% of the total bond amount. For example if your bond is $10,000, then you will pay the bonding company 10% or $1000. Unlike a cash bond, you will not get your money back once your case is disposed. Beware: Not all bonding companies are created equal. Some require not only more money or collateral up front, but more bond conditions (i.e. call ins, check ins, etc.) as well. Call a couple bonding companies or call a criminal lawyer who should know a reputable bonding company (if your lawyer doesn’t know a reputable bonding company, then they probably aren’t doing a ton of criminal defense work). As an example, I can name three off the top of my head.
- Personal Recognizance (PR) Bond: A personal recognizance bond or “PR” bond is based on a person’s promise to appear in court with no security (i.e. money) needed. PR bonds are becoming more and more common in State court as long as a person does not have a lengthy rap sheet or is not charged with a serious, violent crime.
Once You Have Been Released from Jail.
Have a friend or relative ready to pick you up, with the understanding it could very well be in the middle of the night. When you are released you will receive all your personal belongings back, along with your bonding papers. Your bonding papers will tell you when, where and what time your first court date is. This is important because if you are late or miss your first court date, the judge can revoke your bond, issue an arrest warrant, and put you back in custody
As a sidenote, if you were arrested for DWI or DUI you will also receive a temporary driver’s license (because the officers should have confiscated your Texas driver’s license). This temporary license is on the a form known as the DIC – 25. One of those forms, the DIC-25, states this is your temporary driver’s license. Keep the form with you for the time being and your DWI lawyer can explain more upon meeting with him or her.
If you were arrested for an assault type offense, the judge will sign a protective order as part of your bond conditions prohibiting you from going near the alleged victim.
Top 5 Things to Look For in Hiring a Good Criminal Defense Lawyer.
You’ve are now out on bond and have an upcoming court date. Time to find the right criminal defense attorney for your case.
1. Your Criminal Defense Lawyer, should be a Criminal Defense Lawyer.
That is, your criminal defense lawyer should primarily practice criminal defense. You would not see an orthopedic surgeon if you were having heart problems, and you shouldn’t see a family lawyer or civil lawyer with your life, liberty, and freedom on the line.
2. Your Criminal Defense Lawyer should come with board certification.
The Texas Board of Legal Specialization was established by the State bar of Texas and certifies twenty-one select areas of law. Of the nearly 100,000 attorneys in Texas, only 7,000 are board certified. This recognized specialization exists to acknowledge the most qualified attorneys in their respective area of law.
3. Your Criminal Defense Attorney should be active in relevant defense organizations.
Any lawyer who is serious about their occupation and in turn serious about the results achieved will be active in organizations related to their craft. In Houston there is the Harris County Criminal Lawyers Association. In Texas there is the Texas Criminal Defense Lawyers Association. Nationally there is the National Criminal Defense Lawyers Association. All of the above organizations provide guidance, assistance and support to criminal defense lawyers seeking to obtain the best possible results.
4. Your criminal defense attorney should be able to show you results.
It’s easy to talk a big game, but in this industry, it is the results that matter. Ask if the attorney has handled similar cases. Ask if the attorney can show you results from similar cases. A good criminal defense lawyer will be able to back up his or her results. How long has the firm been in business? A good criminal law firm will have continued business because their clients walk away satisfied, and subsequently refer new clients.
5. How much is the legal fee?
The all important question and unfortunately all too often the leading reason a person hires a particular lawyer. Understand lawyers, like cars, come in all different shapes, sizes, abilities and price. While you should seek the best criminal lawyer you can afford, you should not seek the cheapest. You get what you pay for! Think about it, an attorney’s fee reflects the confidence in that attorney’s ability. If they are cheap then they probably don’t place much value in their time, effort, or ability. If they are more expensive, the opposite holds true. While you may not be able to afford the most expensive attorney in town, you should expect to hire the most expensive criminal lawyer you can afford. You will thank yourself in the end.
Criminal Lawyer Fee Arrangements.
Legal fees for your criminal attorney vary depending on many factors such as the nature and seriousness of the charge/s, the number of charges, the county the charges are pending, the stage of the charges, any prior criminal charges or convictions, and more.
The Non-Trial Criminal Attorney Fee
In a typical situation a person contacts a criminal lawyer because they have a warrant out for their arrest or they have been arrested and now out on bond. In these instances, most attorneys will charge a flat non-trial fee. Because of the stakes, and unlike divorce lawyers (hourly legal fee) or civil plaintiff lawyers (contingent fee), criminal law firms choose flat fees because they typically know not only how much work is necessary to get the required result, but also understand the client and the client’s family have enough to worry about other than how much a phone call to their attorney is going to cost them. Flat fees eliminate grey area and has proven to be the best criminal lawyer fee structure.
While it will vary from criminal lawyer to criminal lawyer, non-trial flat fees typically cover court appearances, client meetings, discussions and plea bargaining with the prosecutors, and pre-trial motions.
The Attorney Trial Fee
Should the case eventually get to where the prosecutor is not willing to dismiss the case and you do not want to accept the deal the prosecutor is offering, the case will be set for trial. At this time, most criminal lawyers will require additional legal fees or what is commonly referred to as a trial fee. Prior to hiring your criminal lawyer you should discuss the anticipated cost should the case have to go to trial.
Other Legal Fee Factors to Know
- While most criminal attorneys break their fees down into non-trial and trial-fees, we are aware of some defense attorneys who do not do so, choosing instead to combine both the pre-trial and trial fee into one lump sum.
- Watch out for attorneys who charge by the court appearance (e.g. $250 per court appearance). No reputable criminal attorney we are aware of structures their legal fees this way.
- Depending on the type of case there can also be additional legal fees in the form of investigation fees. expert witness fees, record sealing or record erasing fees, bond violation fees, pretrial intervention violation, deferred adjudication violations, or probation violation fees, etc.
- Lastly, if you have not been arrested, but have been contacted by a police officer and are concerned, a criminal lawyer may charge an investigation fee to act as a buffer between you and the officer. Often, if you retain a criminal attorney to contact the officer he or she may be able to keep charges from being filed or to convince the investigating officer to file less serious charges. While it does not mean your case is doomed if you have already spoken with the police, it is best to never speak to the police if you are under investigation or if you believe you may be under investigation. If you are caught off guard, it is best to tell the police “you’d be happy to cooperate with your attoney present.” You need not say anymore or less and you need to stick to your guns. Police are legally allowed to lie to try and get you to talk. Know your constitutionally protected rights and engage those rights.
If you have been charged with a crime, your life, your liberty, and your freedom is on the line. You should exhaust all resources to get the best criminal defense attorney you can afford. Whether you like it or not, whether you are willing to accept it or not, the truth about the criminal justice system is that it is a money system. Those that can gather the finances are able to deploy more lawyers, more resources, and more tools to defeat the criminal charges.
The Middle: Appearing in Criminal Court
Get to Court Early
Depending on the county and the location of the courthouse, parking can be difficult to find; security lines can get backed up; and elevators can move slowly. Make sure to give yourself plenty of time to be in court on time. Arriving late can lead to the judge revoking your bond and putting you back in custody.
How to Dress for Criminal Court
The Judge, the prosecutors and the court staff all take note of the people in the courtroom. As such, you should dress appropriately for court. For men, that means, at the very least, slacks or pants and a collared shirt tucked in. For woman, that means pants and a blouse or a conservative dress. Think about what you would wear if you went to church.
What to Expect at Your First Criminal Court Appearance
On your first court appearance, expect things to move slowly. Parking can be a problem. Security lines can be a problem. Elevators can be a problem. Make sure to give yourself plenty of time to be in a courtroom seat by the time the Judge calls the docket.
Your criminal lawyer will likely meet you in the courtroom either prior to or after docket call. Sometimes your attorney will have other courts he or she needs to be in before appearing for your court. Be patient. Your criminal defense attorney has not forgotten you.
Once your criminal attorney arrives, he or she will take a glance at the file, fill out an attorney of record (if it hasn’t been done already), talk to the prosecutors and then reset your criminal case for about four week.
The reason the case will be reset is so the attorneys can gather and evaluate the evidence. The burden is on the prosecutors and they need to see if they have enough evidence to actually prosecute.
Unless your case is going to be dismissed, DO NOT accept a plea bargain on your first court date. If your attorney suggests this, find another one.
What to Expect in Subsequent Criminal Court Appearances.
As the case continues and you continue to make appearances in criminal court, your attorney will be receiving more and more evidence for evaluation. This process, like many others in the criminal justice system, can be slow and to be honest, this is a good thing. Parties involved cool down, witnesses move, police officers get in trouble, lab analysts quit, a number of things can happen that can improve the chance of your case being dismissed. Be patient and trust the process. Your focus should be on 1) not getting in any additional trouble and 2) abiding by any bond conditions, such as appearing for court on time.
Eventually the judge is going to want to know the status of the case. At this point most of the evidence has likely been received. Your criminal lawyer should be pushing for a dismissal. If the prosecutor agrees the case should be dismissed. If so, congratulations your case is over. If the prosecutor disagrees, they will make an offer. You will then have the option of deciding whether you want to accept their offer or push the case for trial.
Accepting the Offer:
There is a lot more that goes into it, but in a nutshell, if you accept the offer you will:
- Go over the offer with your attorney;
- Review and complete the necessary paperwork with you attorney;
- If you are receiving something along the lines of anger management class and dismiss or drug and alcohol class and dismiss, you will be given time to complete the requirement and the case will be dismissed.
- If you are receiving pretrial intervention, deferred adjudication, or probation you will have to fill out additional paperwork with the Community Liaison Officer (CLO).
- Once the paperwork is complete and sworn to with the court clerk, you will then go in front of the judge to enter your plea.
- The judge has the power to accept or reject the plea, because of that be honest and be respectful. Don’t speak more than is asked or necessary.
- If there is jail time attached to the offer, you may be given time to turn yourself in at a later date
Rejecting the Offer:
You may decide it is in your best interest to decline the offer. Understand, that even if you decline the offer, it does not mean your case still can’t be dismissed. In fact, our criminal defense lawyers have received many dismissals a week, a couple days before, or even the day of a trial. This happens because the prosecution may have problems finding a witness, a witness may not show up, the prosecutor realizes they can’t prove their case beyond a reasonable doubt, etc.
Sealing Your Criminal Record After the Case is Complete
Maybe your case is dismissed, maybe you go all the way to trial and are found not guilty, whatever the final result, you may be interested in cleaning up your record.
A nondisclosure order blocks your record from the general public (most employers included). District Attorneys, Law Enforcement, & Certain Texas Licensing Agencies still retain access.
For years a nondisclosure was reserved for those who received deferred adjudication. That is, those who entered a plea of guilty, but the judge withheld a finding of guilt and instead deferred that finding on the condition that certain provisions were met (i.e. community supervision). Once completed, a person was eligible for a nondisclosure, immediately for most misdemeanors and after a certain time period for felonies.
Today, not only can a person receive a nondisclosure after successfully completing deferred adjudication, but also after certain convictions, including Driving While Intoxicated, provided the person has no other criminal history. So if for example you received time served on a DWI (i.e. you get jail credit for the night you were arrested) and pay a fine, and have no prior criminal history, you could get that DWI conviction blocked from the public.
An expunction erases your record as if the arrest or accusation never happened. An expunction is typically reserved for dismissals and not guilty’s. So if you case was dismissed or if you went to trial and were found not guilty you can demolish any record of the arrest.
The Messed Up Truth of DWI & DUI in Houston
Let’s get this straight:
- A Houston police officer assumes you may be DWI (officers get bonuses for DWI arrests).
- They have you perform balancing exercises (you’re not told what is correct or incorrect in doing these exercises).
- After failing the exercises and being told you are under arrest (you’re not going home now), they ask for a breath or blood test.
- Then they send the blood to these folks. . .
You think Dr. Peter Stout and his employees at the Harris Forensic Science Center (HFSC) are trained to disagree with the officer’s decision to arrest for DWI? This folks, is garbage. This is junk. Junk-science.
How many drinks to get drunk?
What is Intoxication in Texas
In Texas, you are considered intoxicated (there is not a legal definition for drunk) if you have either loss the normal use of your mental and/or physical faculties OR have a blood alcohol level 0.08 or higher at the time of operating a motor vehicle.
So how many drinks does it take to get to 0.08 or higher?
Calculating your blood alcohol content (BAC)
For an old school way of calculating your blood alcohol level, keep reading. For the new school way of doing it, you can type “blood alcohol calculator” into Google and find a number of online calculators.
Widmark Formula – the OG of Blood Alcohol Calculations
The most widely known formula for calculating blood alcohol content is the Widmark formula, named for Swedish Scientist, Erik M.P. Widmark (1889-1954) who was considered a pioneer in forensic toxicology.
The Widmark formula focuses on how alcohol behaves in the body from the time it is consumed to the time it is eliminated.
Blood Alcohol Content = [alcohol consumed in grams / (body weight in grams x r)] x 100
(“r” refers to the distribution of water in the body and is a constant number of 0.55 for females and 0.68 for males)
A standard drink = one 12 oz beer, one 5 oz glass of wine, or one 1 ½ oz shot of liquor.
A standard drink is 14 grams.
Beginning the calculation of your blood alcohol level:
1) Alcohol consumed in grams (i.e. how much have you had to drink):
- Standard drinks consumed x 14 = alcohol consumed in grams.
2) Body weight in grams:
- Body weight in pounds x 454 = body weight in grams
3) Body weight in grams x “r”
- Body weight in grams x (0.55 for females or 0.68 for males)
4) Blood Alcohol Content (BAC)
- Plug in the numbers and multiply by 100 = Blood Alcohol Content
5) How long have you been drinking?
- Blood Alcohol Content – (Number of hours since drinking started x 0.015) = Approximate Blood Alcohol Content
0.015 refers our the rate our bodies metabolize alcohol per every hour.
This formula and any other online blood alcohol content calculator is an approximation at best. Because two people are not alike, there are many factors that impact the way a person’s body metabolizes alcohol. Also, Blood alcohol concentration is a percentage of ethanol/alcohol in the blood. For example a 0.08 means there are 0.08 grams of alcohol for every 100 mL of blood.
See below a chart that approximates your blood alcohol level based on number of drinks, number of hours spent drinking and body weight.
In calculating your blood alcohol level over a period of time you would subtract 0.015 for every hour spent drinking. For example, if you were a 200 lb. male who had 8 drinks you would find 0.15 on the chart above. If you had those 8 drinks over 3 hours you would subtract 0.045 (0.015 * 3 hours) from 0.15. Thus, your approximate BAC would be 0.10 (o.15 – 0.045).
DWI Texas Interlock and Breathalyzer Scams
Don’t take the bait. This letter is a scam, aimed at taking advantage of and profiting from persons accused of DWI.
Texas Interlock Scam 1: “SECOND notice”
Truth: This letter has ZERO implications for both your pending DWI case and your Texas driver’s license. Ignore it.
Texas Interlock Scam 2: “regain your driver’s license”
Truth: While it is true your license MAY be suspended after a DWI arrest, it also MAY NOT. You have fifteen (15) days from the date of your arrest to request a hearing on your license. Most Houston and Texas DWI Attorneys will do this for you. If you win this hearing your license will never be suspended, regardless of providing or refusing a breath/blood specimen or refused.
For more about the connection between DWI arrests and Texas Driver Licenses click here.
Texas Interlock Scam 3: “ARREST SEAL PROGRAM . . .”
Truth: Effective September 1, those who are convicted of a DWI MAY be eligible down the road to block the arrest record. Having a Texas interlock or breathalyzer can expedite that process. The problem with this letter, in this instance it was sent prior to a single court appearance and prior to any disposition (final result). In other words, there is no conviction and no court-ordered requirement for the letter’s recipient to install a Texas interlock.
Texas Interlocks and breathalyzers are big business. This letter, filled with scary words like “jail”, “probation”, and “suspensions” is a shady attempt by a company looking to make a quick buck off persons accused of DWI. Ignore it. Don’t take the bait.
DWIs or DUIs are some of the most litigated cases in the criminal justice system. They are very fact-dependent cases, where strategy can change in a heartbeat depending on how the facts play out.
With Tiger it is easy to assume the worst, however, under the law, the only assumption must be that of innocence. In fact, Tiger is guaranteed it. If he chooses a jury trial, he is guaranteed the right to a fair and impartial jury strong enough to hold the State in check; willing to require each and every element of the alleged offense be proved beyond a reasonable doubt. In other words assume the best, even if it is Tiger.
In part one of this two-part series, we broke down the element of operating. In part two we’ll look at intoxication or impairment.
To start, the legal definition of DUI or DWI in Florida is similar to Texas, providing in order to convict a person for DWI or DUI the State must prove beyond a reasonable doubt that:
The person is intoxicated while operating a motor vehicle in a public place.
The State must prove the person was intoxicated at the time of driving.
Intoxication must be proved by showing a person has lost the use of their normal mental and physical faculties through alcohol or drugs, or a person has a blood alcohol level that is 0.08 or higher at the time of operating/driving. In this case and because there is no per se level of intoxication for drugs, the latter method of proving intoxication is inapplicable.
How the State will try to get there:
Prosecutors will attempt to show Tiger had lost the use of his normal mental and physical faculties at the time of driving through the introduction of drugs. To do so, they will use a combination of the alleged bad driving facts, officer’s observations, Tiger’s statements (including his post-arrest statement), the field sobriety exercises, the Drug Recognition Expert’s (DRE) Evaluation, the urine sample, and a toxicologist’s interpretation of the urine sample results.
How the Defense can Prevent the State from getting there:
- Officer’s observation: Tiger was confused.
Of course he was. He had just woken up. Greeted by Jupiter’s finest. If someone is found sleeping in their car, you can bet they were at the very least tired. A recent MIT study compared impairment vs. sleep deprivation and found if one sleeps only 6 hours it is comparable to 2-3 beers; 4 hours is comparable to 5-6 beers; 2 hours is comparable to 7-8 beers, and no sleep is the same as drinking 10-11 beers. We know it was early in the morning, but we don’t know what Tiger had done that day or how long he had been up. Under the law and under the presumption of innocence we are required to presume exhaustion and sleep deprivation were the cause of Tiger’s demeanor unless the State proves otherwise beyond a reasonable doubt
We also know there was damage to Tiger’s car. Both of Tiger’s driver side tires were flat, with damage to the rims, front bumper, rear bumper and rear tail light. There was an accident of some kind. The severity we don’t quite know, nor do we know how and where the damage occurred or how the accident impacted Tiger’s mental and physical faculties (although we get a good idea from the video). Symptoms of intoxication mirror symptoms associated with head injuries and concussion. It is why officers are taught as part of their investigation to ask about any possible head injuries. Head injuries cause slow and slurred speech and head injuries cause confusion. We can lawfully presume the cause of Tiger’s demeanor was the result of a head injury.
- Tiger’s statement he took several prescriptions.
“Soloxex” is likely a misspelling of soloxine (levothyroxine sodium), a drug meant to treat dogs with hypothyroidism, a condition in which the thyroid doesn’t produce enough thyroid hormone. In January of 2016 the FDA issued a warning letter to the drug’s manufacturer, Virbac, for producing the drug without FDA approval. The dog pill would unlikely cause impairment.
“Torix” is likely a misspelling of Etorix or Turox. This drug is used to treat joint pain and is currently not approved in the United States. Side effects are limited to rare instances of skin rashes. Again, this pill alone would unlikely cause impairment.
Of the drugs listed, “Vicodin” could cause signs of impairment, including drowsiness and confusion, especially at high doses. Vicodin, a brand name for hydrocodone, is an opioid painkiller and a schedule II substance under the Controlled Substance Act. However, a statement that you are prescribed Vicodin is not enough. To prove their case beyond a reasonable doubt the State needs more. The urine tests could help, if a quantitative analysis (how much) is accompanied with it. However, urine tests are often presumptive indicating only if a drug is present. Additionally, urine tests must be gathered, collected, and stored properly or risk contamination. Another issue with drugs, unlike alcohol, is they cannot be extrapolated back to the time of driving. This is because of the way they are processed through the body, referred to as first-order kinetics. A fancy way of saying from person-to-person we don’t really know how long it will take the drugs to absorb, distribute, metabolize, and exit. All of this makes drug impairment at the time of driving difficult to prove beyond a reasonable doubt.
- Was there an odor of alcohol or not?
The odor of alcohol is a classic sign of intoxication. Typically you will see words such as “strong odor of alcohol”, despite the fact that alcohol doesn’t have an odor and officers are unable to tell how much someone had to drink based on that odor. After going back to write his report, Officer Fandrey notes “none” for odor. However, on video released, we here the following exchange:
- Officer Fandrey: Have you had anything to drink?
- TW: No.
- Officer Fandrey: Are you sure about that . . . because there is some odor coming from you.
We know later Tiger submits to a breath alcohol test that reads 0.00.
So did Tiger have an odor of alcohol or not? Did Officer Fandrey conveniently change his opinion after seeing the breath alcohol results? Jupiter PD for the win.
- The Standardized Field Sobriety Tests:
Tiger should have never been given these tests.
Officers are trained to administer field sobriety tests in accordance with procedures and standards set out by the National Highway Traffic and Safety Administration (NHTSA). The three recognized and standardized tests are the Horizontal Gaze Nystagmus (the pen or eye test), the Walk & Turn (walk the line) and the One Leg Stand (stand on one foot). While the tests are used as indicators of impairment, they are really nothing more than glorified coordination exercises designed for you to fail. Both sober and impaired persons equally struggle with the exercises. That is why scientific studies, in charge of developing the exercises, resulted in a high % of false arrests. Additionally, these tests have specific procedures and protocol that need to be followed, though they rarely are. The NHTSA manual itself states, “If any one of the Standardized Field Sobriety Elements is changed, the validity is compromised.”
Tiger should have never been given these tests. Officers are taught to screen subjects prior to administering the tests. Of importance is whether a person has any back, leg, or ear problems. In his report, Officer Fandrey says,
- “I asked Woods if he had any injuries that would stop him from standing on one foot or walking in a straight line to which he replied no . . . “
How about 10+ surgeries since 1994, including 4 back surgeries, two ACL surgeries and a ruptured Achilles? His most recent back surgery was just last month. You just asked someone, fresh off back surgery, to walk a line heel-to-toe? Jupiter PD for the win again!
- Linking drugs to impairment.
We are still waiting on the urine analysis, but tucked away somewhere is the DRE evaluation. Urine analysis coupled with DRE evaluations are used to bolster the State’s case that drugs were the cause of impairment. It is a 12 step program backed by NHTSA and others that allow an officer to give an “expert” opinion that not only were drugs the cause of impairment but what kind of drug. DRE programs came about in the 1970s after officers arrested people for intoxication, noting things like odor of alcohol, but then reading 0.00 across breath testing machines (sound familiar). The police reports say an Officer Borrows completed the DRE evaluation, but it is MIA. All we’ve seen thus far are tests associated with arresting someone for an alcohol-related offense.
With more information being given daily, we’ll have to see how this plays out. For now, if you consider yourself law abiding, Tiger deserves we presume him innocent.
DWIs or DUIs are some of the most litigated cases in the criminal justice system. They are fact-dependent cases, where strategy can change in a heartbeat as new information is revealed.
With Tiger it is easy to assume the worst, however, under the law the only assumption must be that of innocence. In fact, Tiger is guaranteed it. If he chooses a jury trial, he is guaranteed the right to a fair and impartial jury strong enough to hold the State in check; willing to require each and every element of the alleged offense be proved beyond a reasonable doubt. In other words assume the best, even if it is Tiger.
In part one of this two-part series, we’ll look primarily at the element of operating. In part two we’ll break down intoxication.
To start in order to convict a person for DWI or DUI the State must prove beyond a reasonable doubt that:
A person is intoxicated while operating a motor vehicle in a public place.
Because we know Tiger was found in his car on a public road, we’ll look past the elements of a person, motor vehicle, and public place.
But what about “operating”?
Skimming through available police and incident reports the issue of operating is in play and here is why.
Date: May 29, 2017
Time of Stop: 2:03 AM
Time of Arrest: 2:49 AM
Time of Breath Test: 4:22 AM
Time of Urine Test: Shortly after 4:35 AM
Officer Palladino was the first officer on the scene at approximately 0203 hours. In regard to operation, his report states:
- “ . . .dark colored sedan was not moving.”
- “The vehicle’s rear brake lights and right turn signal were still active.”
- “The vehicle was stopped in the right lane and its passenger side tires were partially blocking the bicycle lane . . . “
- “ . . . running vehicle . . .”
- “I advised the male to place the vehicle in park and turn the vehicle off. While speaking with the male Sergeant Hennessy arrived on scene . . .”
- “I again asked the male to put the vehicle in park and turn it off.”
- “Officer Imperiale arrived . . . and stood with Woods in the vehicle.”
Contrast with Sergeant Hennessy’s Report: “Officer Palladino . . . had located a disabled vehicle.”
See also Officer Imperiale’s Report: “Officer Palladino observed . . . a disabled vehicle . . .”
Why It Matters: While most people may believe driving while intoxicated means actually driving, courts have held proof of movement is not needed to meet the element of operating. For example, in Dornbusch v. State the court found sufficient evidence to establish the driver was operating a motor vehicle where officers found him passed out in the driver’s seat with the car running, in drive, headlights on, music playing and the curb being the only thing keeping the vehicle from moving. 262 S.W.3d 432, 433, 437-38 (Tex.App.-Fort Worth 2008, no pet.). On the other hand in Texas Department of Public Safety vs. Allocca the court found the motorist was not “operating” his vehicle while intoxicated after being found sleeping in the car with the front seat reclined, the car in park, the lights off, and the engine running. 301 S.W.3d 364 (Tex.App.-Austin 2009). The question becomes whether the State can prove the person “ . . .took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.” Denton v. State, 911 S.W.2d 388, 390 (Tex.Crim.App.1995).
So can the State prove Operating?
Maybe. Maybe not. We need to see more. While Officer Palladino’s report states Mr. Woods was asleep behind the wheel with the car running, in drive, and lights on, Sergeant Hennessey’s report, who was on the scene prior to Mr. Woods placing his car in park and turning the car off only refers to the car as “disabled.” Officer Imperiale’s report mirrors Sergeant Hennessey’s, calling the car “disabled.” Look up the definition of disabled and you will find “out of action”, in other words not on.
We know per Officer Palladino’s report his dashcam video was turned on when he pulled up behind Tiger’s car.
- “I pulled behind the stopped vehicle blocking the right-hand southbound lane activating my overhead lights and Dashcam video.”
That video should show if the car was running, in drive, with the brake lights on or if the car was “out of action.” If the video or portion of the video goes MIA, then the State will have bigger problems.
Another question that needs to be answered surrounds the car’s damage. Per the police reports:
Officer Fandrey’s Report: The later investigation revealed fresh damage to the vehicle. Both driver’s`side tires were flat along with minor damage to both respective rims. There was also minor damage to the front driver`s side bumper and rear bumper, and the passenger rear tail light appeared to be out.
Officer Imperiale’s Report: The damage that was noted is as follows: driver’s side front and rear rims were damaged and their respective tires were flat, the front bumper on the driver’s side was damaged, and there were some white scrapes and scuff marks on the rear bumper, and the passenger side tail light appeared to be out.
Where did this damage occur? How? When? Are there any witnesses? Did Tiger call anyone? Text anyone? Was Tiger driving? Was he with someone else? There have been reports Tiger may not have been alone. Although the person of interest, Instagram model Laci Kay Sommers denies being with Tiger that night/morning.
If you had been in an accident or had two flat tires, wouldn’t you pull off to the side? Would you put your car in park? Would you turn the car off? It it was 2 AM, fresh off major surgery, would you fall asleep?
Before we assume the worst, before sponsors jump ship, before we publicly convict, we need to know much more.
Texas DWI Bail, Diversion, and Probation Conditions: Interlock and SCRAM
If you are arrested or convicted of driving while intoxicated you may have to come to grips with an interlock or SCRAM (Secure Continuous Remote Alcohol Monitor). The following are examples of Texas DWI conditions of bail, intervention programs, and probation that may require you to install an interlock or SCRAM, including a description of each and costs associated.
Interlock or SCRAM as a Condition of DWI Bail
Depending on the Texas county you are arrested in and the criminal court you are assigned, if this is your first intoxication offense, you may be required to install an interlock device as a condition of your DWI. In Harris County some judges require the interlock device as a condition of pre-trial release, others require it only if your blood alcohol level comes back at 0.15 or higher, and others do not require it at all. If you have previously been convicted of an intoxication offense Tex. Code of Crim. Proc. Art. 17.441 requires the installation of an interlock if the installation is in the best interest of justice.
Texas DWI Lawyer Practice Tip: courts generally find installation of the device is in the best interest of justice.
Interlock or SCRAM as a Condition of DWI Pre-Trial Intervention
Many counties offer pre-trial intervention or diversion programs for first time DWI offenders. Once upon a time staying out of trouble was all it took to complete the diversion program and have your case dismissed. Today, diversion programs resemble probation with the interlock, SCRAM or both conditions of the program.
Interlock or SCRAM as a Condition of DWI Probation
If the court finds you guilty, sentences you, but suspends your sentence and places you on DWI probation your conditions will include the interlock, SCRAM, or both. The difference in the aforementioned pre-trial intervention and probation is probation acts as a final conviction that cannot be expunged.
Texas DWI Lawyer Practice Tip: if you fail to successfully complete the terms of your probation, a motion to revoke probation may be filed and the court can sentence you up to the maximum punishment range for the charged offense.
Texas DWI Lawyer Practice Tip: Clients often ask if deferred adjudication is an option for DWI. Deferred adjudication is not a lawful option for intoxication offenses in Texas. Deferred adjudication falls between pre-trial diversion and probation in that the court finds you guilty, but defers the finding of guilt. A deferred adjudication cannot be expunged but can be blocked from the public through what is known as a non-disclosure.
Interlock or SCRAM as a Conditon of an Administrative License Suspension (ALR)
In Texas if you apply for a driver’s license you consent (implied) to provide a specimen of your breath or blood if you suspected of driving while intoxicated. A refusal to provide a specimen may result in your license being suspended by the Texas Department of Public Safety. If suspended, you may be eligible for an occupational license. Interlock devices are often required before the court will grant such a license.
What is the Interlock?
The interlock is a portable breathalyzer that attaches to your vehicle under the dash. At one end is a blow tube and at the other end is a cord that runs under your dash. The device is installed into the ignition system of your car. In order for your car to start, you are required to provide a breath sample. Every 5 to 30 minutes you may be asked to give an additional breath sample. Hence the term “blow and go.” Most devices now have cameras attached to confirm you are the person blowing into the tube. The data from the device is pulled when you have the device calibrated at a scheduled time and location.
What is the SCRAM?
The SCRAM is an ankle bracelet that communicates through a modem connected to a monitoring station. Hourly the apparatus tests for the presence of alcohol through the person’s perspiration. If alcohol is detected the SCRAM device will test every thrity minutes. Additionally the SCRAM has a sensor designed to report any tampering with the device.
Both the Interlock and SCRAM are not without issues of their own, having mistaken many everyday household products as drinking alcohol.
What is the cost for an Interlock or SCRAM device?
The monthly cost for each device is
Interlock = $59-$90 a month
SCRAM = $435 a month (yes, $435 a month)
Interlock providers include EZ Interlock, Intoxalock, Smart Start, and LifeSaver. As expected the reviews for the providers are relatively low, with EZ being the highest per Google at 3 out of 5 stars.
If you are required to obtain an interlock or SCRAM it is important you pay close attention to the instructions and do not use alcohol or even alcohol based products such as mouth wash that can cause false positives. Doing so can result in your bond being revoked, your probation being revoked, or your pre-trial diversion being terminated.
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.
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…”