by Houston Criminal Defense AttorneyC’mon Man . . .
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!
by Houston Criminal Defense AttorneyUpdate: New DWI Laws after the 86th Legislative Session
Deferred Adjudication for DWI Offenses: It’s a Trap!
What is Deferred Adjudication?
Deferred adjudication involves the accused pleading guilty to the charged offense, the judge finding that person guilty, but withholding that finding upon the completion of deferred adjudication and the conditions attached. Upon a successful completion of the deferred adjudication the case is dismissed and the arrest record can be blocked (i.e. nondisclosure).
If I have been charged with DWI am I eligible for deferred adjudication.
For persons accused of DWI on or after September 1, 2019 the answer is yes, if:
- The person is not accused of an intoxication offense under 49.045, 49.05, 49.065, 49.07, or 49.08; or
- The person was not driving with a commercial driver’s license or permit;
- A blood alcohol concentration of 0.15 or more;
- 49.09
Will I have to have an interlock on my car?
For the most part, yes. A condition of the deferred adjudication will be the requirement of an interlock, unless the court finds, after a controlled substance and alcohol evaluation, the interlock is not necessary for the safety of the community.
What is the difference between DWI pretrial intervention (PTI) and DWI deferred adjudication (DADJ)?
Some counties, Harris County included, offer DWI PTI programs if specific requirements are met. DWI PTI is an agreement between the district attorney’s office and the accused where the accused agrees to a number of conditions in exchange for a dismissal at the conclusion of the program (typically one year). With a DWI PTI the accused DOES NOT enter a plea of guilty.
A DWI DADJ means a person pleads guilty to the DWI offense, but the court withholds a finding of guilt and places the person on deferred adjudication for a specific time period. At the conclusion of the deferred adjudication, the accused is discharged and the case is dismissed.
There are two key differences between DWI PTI and DWI DADJ. DWI PTI can be erased or expunged and cannot be used against the accused as an enhancement should the person be accused of DWI again. DWI DADJ, on the other hand, can only be blocked by a nondisclosure. District attorneys, police and other state agencies and licensing boards may still have access to the records. Additionally, DWI DADJ can be used as an enhancement should a person be arrested again for DWI.
What is the difference between DWI probation and DWI deferred adjudication?
DWI probation is where a person pleads guilty, the court finds that person guilty and orders a sentence, but suspends the sentence and places the person on a probationary term. DWI probation, like deferred can be used as an enhancement against a person should they be accused again of DWI and can not be erased or expunged (but can be blocked if the accused has never been arrested before).
DWI Lawyer Conclusion on DWI Deferred Adjudication
In reality DWI DADJ is not much different than DWI Probation and there are better options. DWI PTI explained above is a better option. Setting the case for trial is another. Even time served (person receives credit for the time spent in jail and pays a fine) would be a better option for most than DWI DADJ. Beware, It’s a trap!
Texas DWI & DUI Surcharge & Fines
The DWI surcharge repeal will eliminate all pending and unpaid surcharges imposed before it becomes effective on 09-01-19 and allow for any person’s license suspended as a result of unpaid surcharges to be reinstated. This is the good.
The bad is beginning 09-01-19 there will now be “state fines,” in addition to any other statutory fines (e.g. up to $2000 for a first offense, Class B DWI) ranging from $3000 – $6000.
Houston DWI Lawyer’s Conclusion on the New DWI Fines
These fines will take on greater significance in plea bargaining, as the nature of the plea will effect the quantity of the fine that may be imposed. DWI, already a cash cow for Texas, just became a lot more expensive.
by Houston Criminal Defense AttorneyState vs. Michael Phelps – DWI Defense
On October 1, 2014 at 1:40 a.m., Michael Phelps was arrested for Driving While Intoxicated. Media outlets, sponsors, and high ranking swimming officials have been quick to assume intoxication, but was he? What follows is an explanation of the events we know occurred, included an explanation of the breath test machine.
The National Highway Traffic and Safety Administration (NHTSA) is the “go-to” authority in detecting possibly impaired drivers. They developed the Standardized Field Sobriety exercises to assist and coordinate police conduct during DWI stops and investigations. NHTSA provides a 24 hour (three-day) course that teaches the background, administration and scoring for standardized field sobriety exercises. The goal is to aid police officers to know when to stop drivers who may be intoxicated and conduct an investigation to confirm or deny their suspicions. The problem is the police officers may have only taken this class once, often years ago, and often fail to follow the proper procedures and protocol taught by NHTSA.
NHTSA breaks the DWI investigation into three stages:
1) Vehicle in Motion; 2) Personal Contact; 3) Pre-Arrest Screening
The following is based on the FACTS we know thus far.
Phase One Vehicle in Motion:
Phelps was allegedly clocked going “84 in a 45” and “drifting out of his lane”. Pending evidence the radar was calibrated and used correctly the stop will likely be held lawful.
Speeding is a lawful reason for an officer to stop a citizen. Speeding is not however, an indication of intoxication. Common sense would tell you people speed every day, whether or not they have alcohol in their system. NHTSA lists a number of visible cues to identify intoxicated drivers and speeding is not one of them. Drifting is considered a cue of intoxication, but reading the reports literally one may conclude this was merely a single drift. If he was traveling 84 mph, in a range rover, a drift would be expected and normal. The highest criminal court in Texas, the Court of Criminal Appeals has said this much, stating “driving in and of itself is controlled weaving”.
At this stage it is unknown whether or not a video from the police vehicle exists. If a video exists it may clear up some of the above. If a video does not exist, it can be inferred it was favorable to Mr. Phelps.
Phase Two: Personal Contact:
Personal contact encompasses the face-to-face encounter with the officer and the subject (Mr. Phelps). During this phase the officer should be making the decision whether or not he will have the subject perform the field sobriety exercises. The officer is using his sense of sight, sense of hearing, and sense of smell sight in making the decision.
Sight: The officer noted Red/Bloodshot Eyes;
Sound: The officer noted “mushed speech” and “admission to drinking”
Smell: officer noted “smelled alcohol”
(other clues the officer could have noted but did not are soiled clothing, fumbling fingers, alcohol container, drugs or drug paraphernalia, bruises, bumps, or scratches, unusual actions, inconsistent responses, abusive language, unusual statements, “cover up” odors, etc.)
Red/Bloodshot eyes: The officer is taught there are a number of things other than alcohol that can cause red/bloodshot eyes. Fatigue is one. We know Phelps came from a casino; It was almost 2 a.m.; he had been staring at cards and dice for hours; there may have been cigarrete smoke in close proximity. I have been to a Casino or two in my day. I have played cards. I have never left a casino floor without red/bloodshot eyes. Red/Bloodshot eyes in Phelps’ situation is normal.
Smelled Alcohol/Admission to Drinking: Phelps said he had “3-4 beers”. Despite what prominent Texas billboards may say it is not against the law to drink and drive. Admitting to “3-4 beers” and smelling like alcohol is normal.
Mushed Speech”: Did the officer mean slurred speech? A scene video would help explain “mushed speech”. It would also be interesting to compare interviews Phelps has done over the years vs. how he sounds on the police video. Mushed speech is not recognized by NHTSA as a sign of intoxication.
Phase Three: Pre-Arrest Screening (the field sobriety exercises):
a) Horizontal Gaze Nystagmus (HGN or “pen” test)
During the HGN test the officer has the suspect follow the motion of a small stimulus (i.e. pen) with their eyes only. The officer is looking for involuntary jerking or bouncing of the eyes as they move toward the side. Each eye is examined for three specific clues (6 total clues).
While I have yet to find a report indicating whether or not Phelps failed this test, my experience in how officers grade this test tells me he did. I once had an officer fail an individual (6 clues) with only one eye (the other eye was a glass eye). There are a number of factors that can effect the results of the HGN test. For example, the test must be administered properly (happens less often than you would think); Additionally, there are multiple types of nystagmus unrelated and indecipherable from alcohol related nystagums.
A scene video would be the best indication to whether the test was administered properly.
b) Walk and Turn (walk the line)
We are told Phelps broke-heel-to toe stance; counted out loud; had difficulty with balance while walking; and had difficulty with balance while turning.
The clues the officer is trained to look for are: cannot balance during instructions (i.e. breaking heel-to-toe during the instruction phase); starts too soon; stops while walking; does not touch heel-to-toe (i.e. 1/2+ space between heel and toe an any step); Steps off line; Uses arms for balance (i.e. raising arms for balance more than 6″); Improper Turn; and incorrect number of steps. If the officer notes 2/8 clues, you fail. In fact, you can fail this test before you have taken a single step (see cannot balance during instructions and starts too soon). In Phelps’ case the only standardized clue noted is broke heel-to-toe stance or cannot balance during instructions. That would be 1/8 clues and a passing grade. Without seeing the report, I’m assuming the officer added uses arms for balance and improper turn. Giving Phelps 3/8 clues and meaning he did more things right than wrong. Counting out loud is not a clue and the officer actually instructs the subject to count out loud during this exercise.
c) One Leg Stand
Here the officer is taught the four standardized clues are: sways while balancing; uses arms for balance; hops; puts foot down. 2/4 clues is an indication of impairment.
From what we know, Phelps “swayed slightly” and “didn’t look at elevated foot”. I won’t address not looking at the elevated foot because that is not a standardized clue. Subtracting that we are left with “swayed slightly”. Again, a video would assist to see just how much sway there was, but even if Phelps did sway (remember he is on one leg), that would only be 1/4 clues and a passing grade on the one leg stand.
THE BREATH TEST = 0.14 –
Note: the breath test is being examined under the machine used in Texas (Intox5000EN)
The breath test machine currently in use in Texas is the Intoxilyzer 5000EN, manufactured by CMI, Inc. CMI continues to service Texas’ machines, but the machine itself has been replaced at CMI by the Intoxilyzer 8000 and now the Intoxilyzer 9000. Needless to say the Intoxilyzer500EN is outdated. In fact it uses the same micro processing chip as ATARI. Remember pong?
http://youtu.be/5uuxFhUc8tg
In Texas, intoxication must be proved at the time of driving, not the time of the test. The time of the breath test is certainly important. If the test was a few hours later the State will be unable to prove Michael Phelps was over 0.08 at the time he was driving.
Additionally, in order for there to be a valid test, and to protect against “residual mouth alcohol” (think a burp, belch, regurgitate, etc.), a certified breath test operator MUST administer a 15 minute waiting or observation period. If this is not done correctly, the test is not considered scientifically reliable and is inadmissible as evidence.
Speaking of science, the 0.14 could be walked down to below a 0.8 taking into consideration:
– The machine’s recognized tolerance of +/- 0.02 (i.e. 0.12)
– The machines recognized potential error of +/- 0.01 (i.e. 0.11)
– The machines partition ratio. The partition ration is the assumption the concentration of alcohol in the person’s blood is 2100 time the concentration of alcohol in the person’s breath or 2100/1. Why does this matter? The partition ration can affect the overall result and studies have shown the ratio can vary from 1000/1 to 3005/1. Taking the 0.11, and using a partition ratio of 1000/1 would put Mr. Phelps at (0.11/2100 * 1000 = ) at 0.05, well below the illegal 0.08.
– Breath Temperature, Interferents, Acid Reflux Disease, Breathing Patterns, etc. are all things that can influence a false high on the machine.
In conclusion, after seeing Mr. Phelps’ video and assuming he looks normal, his case is certainly defendable. People trust their eyes. If he looks good on video, if he doesn’t look intoxicated, jurors will trust what they see over the mysterious machine that should have been retired long ago with ATARI. A machine the manufacturer, CMI, refuses to warrant “fit for its intended purpose”. While the media is quick to assume Mr. Phelps was intoxicated, the FACTS seem to weave a different story.
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