J. Gary Trichter

J. Gary Trichter is the senior lawyer with the law firm Trichter & LeGrand, P.C. Known as “The Cowboy Pilot Lawyer,” he has been in practice for approximately 40 years. He is a former president of TCDLA. He is a board-certified DWI specialist and is also a certified flight instructor, including CFI, CFII (Instrument) and MEI (Multi Engine) certifications. He can be reached at 713-524-1010 and at .

Getting Your Wings Back: How Pilots Charged with DWI Can Get Back to Flying

The job of the Aviation Medical Examiner (AME) in the aviator “Fitness for Flight” medical examination process is to coordinate the flow of information to the Federal Aviation Agency (FAA) so it may make an informed and safe decision regarding the aviator’s flying status. When an aviator has their flight physical, and there is a Driving While Intoxicated (DWI) charge or conviction noted in the history section of the medical application (Form 8700-2; Question 18), the AME will ask the applicant questions about that event. Regardless of the level of alcohol at the time of the event, the AME cannot certify the applicant and must defer that decision to FAA.  A DWI type charge can have many different names such as DUI (Driving Under the Influence), OWI (Operating While Intoxicated), and OUI (Operating Under the Influence, but for FAA purposes, they are all treated the same and mean that a driver was charged with or convicted of being intoxicated or impaired while driving. If there is a driving type intoxication offense noted, the FAA does not distinguish between intoxication or impairment that is caused by alcohol, a legal or illegal drug, a controlled substance (even if prescribed by a physician), or a combination thereof.

Here, it must be acknowledged that the FAA is not known for its rapid speed decision-making process. Knowing that, how can the AME accelerate this process for the aviator? First, he or she can make sure that the aviator has timely notified the FAA Security and Hazardous Materials Safety Office (SHMSO) in Oklahoma City, Oklahoma, of the DWI conviction and/or license suspension event, as the aviator has 60 days after the event to notify the SHMSO. Should that 60-day window be missed, it is still better to report the event late then not at all. Normally, if late but still reported, the FAA response is to keep a memo in your file about the failure to report, and thereafter expunge it.  Second, the AME will remind the aviator to request their driving record from their Department of Motor Vehicles. The AME will further request the aviator to obtain from his DWI lawyer all records from the DWI and license suspension cases so that they, too, can be given to the AME for review. By doing so, the AME can make a judgment about how serious the event was and inform the FAA of that opinion. Indeed, the AME may pre-furnish those documents to the FAA to try to speed the medical application along.  Here, in rare circumstances, the end result may be that the AME, having pre-furnished the documents to the FAA, may be able to receive telephone approval for the issuance of the medical certificate without a deferment. However, this is rare, but it has happened, and it is certainly worth trying.

A Senior AME, and especially a Human Interventional Motivational Study (HIMS) qualified AME (These AME’s have additional training and certification relating to a study that clinically and scientifically showed that aviators were very motivated to return to flying and could remain abstinent from drugs and/or alcohol.  Such aviators will not let the matter rest with mere submission of the flight physical exam.) These AMEs will contact the FAA and try to determine what the FAA’s decisions are regarding the specific applicant and what will be the rehabilitation requirements to get the pilot back flying. That conversation will likely be with the FAA’s HIMS qualified AME.

Regarding proving sobriety to fly, the aviator should prepare themselves for frequent and random drug/alcohol tests, and, at least quarterly visits to their AME of record. Here, it is presumed that the aviator will hire the AME to represent and guide through this FAA reapplication process. Of course, the aviator should be sure they have a comfortable and trusting working relationship with their AME because the process will likely take at least one year or more. Note, this process is fluid, and there are no guarantees that it will be successful. Accordingly, it is often the case that the aviator will become frustrated with the process.  Notwithstanding, with unceasing dedication and hard work by the aviator and the AME, success may be achieved.

Focusing on whether there will be a medical deferment because of a DWI arrest, it does not matter what BAC level resulted from a breath test or blood test, a deferment is the default FAA position.  Moreover, any result at, or above 0.15%, is a red flag presumption to the FAA that the aviator has a substance abuse and/or addiction problem.  Understanding this, the aviator can expect that the FAA will want, in addition to the above, evaluations showing that there is no dependence on drugs and/or alcohol.  In this instance, the aviator will be counseled that the cause would be better served if a licensed professional counselor (LPC) is hired to make that determination. Better yet the hiring of a psychiatrist or an addiction medicine specialist will make the aviator’s case to get back flying more persuasive.  If money is not an object, or if the aviator wants to increase the chances of success, the aviator can create a team by hiring the licensed professional counselor, a psychiatrist, an addiction medicine specialist, and an attorney who is very experienced in FAA matters. From the FAA’s view, the more qualified the medical evaluators are, the more weight will be given to their opinions.  Also, in almost all cases, the FAA will require that the aviator participate an out-patient sobriety program such as Alcoholics Anonymous (AA) meetings.  Here, it is important that the aviator have a log which can be signed by the individual running each meeting to prove their attendance.  Also, it is a good idea for the aviator to keep a journal of what was discussed and learned at each meeting so both the log and the journal can be produced to the FAA as part of its evaluation.  It is here, by gathering, organizing, and assembling your sobriety and low risk to aviation safety proof, that the experienced aviation lawyer can be of great assistance.

Turning now to the type of medical application sought, if the aviator is a applying for a First or Second Class Medical Certificate, and the applicant is flying for an airline that has its own HIMS Program (generally these are national or international airlines that have their own regulations and specifications that have been HIMS approved. (https://himsprogram.com/Pilot-Referrals/). Nevertheless, all First or Second Class Medical Certificates are certified in Washington DC. History has shown that in some cases the process takes 14-16 months just to make the initial decision.  That being the case, if the aviator is not flying for one of these large commercial airlines or not flying commercially, many Senior AMEs will recommend that the aviator apply only for a Third Class Medical Certificate because that decision will not be made in Washington DC, but rather, the FAA in Oklahoma City makes that “okay to return to flying” decision and does so with much less delay—about a year or more.  Here, it must be remembered that a deferment only means that the pilot can no longer act as pilot in command.  The pilot can still fly with a certified flight instructor. 

So, what advice do Senior AMEs give to their pilot applicants?  To be blunt, never drink and drive.  Being charged with a DWI, even if you are innocent, is not worth the risk of losing your flying privileges, and from a commercial pilot’s perspective, your career, and your future. While it is legal in some states to drink and drive while not intoxicated, it is far safer to use a designated driver, ride-share vendor or taxi.  If none are available show good judgment, and simply don’t drive after drinking or don’t drink if you must drive. Thinking in terms of a defense team, it is important to remember that the FAA Medical Certification Division decision-makers will only speak to physicians. To be clear, we are not talking about the enforcement process where your lawyer would be speaking to the FAA, but medical fitness, which is solely the jurisdiction of the Medical Certification Division.

Here are just two examples of the collateral dangers of drinking and driving to the aviator. In the first example, there was an aviator who was erratically driving in a church parking lot and was arrested for DWI.  It took five years of sobriety proof for that aviator to be returned to a flying status. The second example involved an aviator who was speeding to escape the threat of a sexual assault and was arrested for DWI. Her reinstatement took over a year of sobriety proof before she could be returned to flying status. These two examples hopefully clearly show that an aviator should not drink and drive no matter what the reason.  Incidentally, even where the aviator is found to be not guilty of a DWI, the FAA still takes a presumptive guilt position until there is substantial proof of continued sobriety.

From an aviation medical perspective, the AME is critical in knowing where the aviator’s case stands with the FAA.  Having this knowledge, allows the AME to guide you and your sobriety team to the best path to have your flying privileges reinstated. In closing, the best defense against losing your flying privileges is by pre-deciding to NEVER drink and drive.  However, if you do, the best medicine to overcome a medical deferment is to hire both an AME who is experienced and cares, and, a lawyer experienced in FAA matters!

Expediting Production of DWI Audio/Video Recordings Even Where Charges Have Not Been Filed

We have all been there. Your new DWI client gets arrested in a county where the prosecutor steadfastly declines to provide any discovery, including audio/video electronic recordings, until formal charges are filed. The prosecutor cites the recent decision in In re the State of Texas ex rel. Michael Munk, __ S.W.3d ___, 2015 WL 6121390 (Tex.App.—Eastland 2015)(not yet released for publication)(standing for the limited proposition that district courts lack jurisdiction to compel discovery production until the case has been indicted). Of course, that filing process can take months, but you would like to get ready now because you are that kind of lawyer. You have also requested an ALR and would like to get ready for that, too. Regrettably, you know that ALR hearing will likely happen before formal charges are filed by the criminal prosecutor, and as such, you will not have the benefit of preparing your cross-examination by reviewing the arresting officer’s audio/video electronic recording. Feeling frustrated and defeated that the criminal prosecutor is not going to do the right thing and allow you access to the electronic recording, you feel boxed in and accept the fact. Accordingly, you accept that you are not going to have the benefit of the video to get ready to defend either the ALR or DWI until formal charges are filed and temporarily close your file.

Do you know that it doesn’t have to be that way? For good lawyers who think out of the box, it doesn’t have to be that way at all! In fact, for the good lawyers, the video is there for the asking, and it doesn’t matter whether it is before or after formal criminal charges have been filed. In fact, it doesn’t matter even if your client was not arrested. All that does matter is that the client was stopped and an electronic recording was made. What follows is what you need to know.

II.  DISCOVERY METHODS

A. MICHAEL MORTON ACT (“MMA”)

The Michael Morton Act (MMA), Art. 39.14(a), Texas Code of Criminal Procedure, requires the State to produce discovery “as soon as practicable after receiving a timely request from the defendant.” Because Article 39.14(a) provides the directory language “the State shall produce,” its production duty is not discretionary nor can it be limited by any prosecutor “policy.” Applying the Code Construction Act, Tex.Gov’t.Code, we know that “[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage.” Tex.Gov’t.Code Sec. 311.011(a). We also know that when words or phrases have a technical meaning, whether by the legislature or otherwise, those words shall be “construed accordingly.” Tex.Gov’t.Code. Sec. 311.011(b). Finally, we know that “unless a different construction is expressly provided by statute . . . ‘shall’ imposes a duty.” Tex.Gov’t.Code 311.016(2).

Recently, one appellate court took a unique approach to the MMA when it issued the controversial opinion In re the State of Texas ex rel. Michael Munk, __ S.W.3d ___, 2015 WL 6121390 (Tex.App.—Eastland 2015)(not yet released for publication). Simply put, this is a horrible decision based on a limited reading of the MMA that runs completely contrary to the spirit of that act and shows a failure to read and properly interpret the Code Construction Act.

Munk was a murder case where the trial judge granted the defendant’s MMA motion to compel discovery. The State filed a writ of mandamus, where it asserted that the trial court did not have jurisdiction to issue an order compelling the pre-indictment production of discovery.1 The Eastland Court of Appeals agreed with the state, and said “[i]n the absence of express language in Article 39.14(a) authorizing the trial court to issue an order compelling the State to produce discovery prior to indictment, we conclude that the statute does not alter the well-settled requirement that an indictment is essential to the district court’s jurisdiction in a criminal case.” The court went on to note that the judge, therefore, did not have jurisdiction to compel the state to comply with 39.14. Interestingly and curiously, the opinion never even addresses the MMA language stating “as soon as practicable after receiving a timely request from the defendant that state shall produce . . .” Tex. Code Crim. P. Art. 39.14(a). This failure to discuss MMA’s “as soon as practicable” makes the opinion appear as if it were result oriented.2

So, does Munk control? We think not, and here is why. There are several distinguishing factors in Munk. First, the Munk Eastland Court of Appeals opinion is not published, and as such, has no precedent value and is not binding. It also has no weight or force outside that district. Second, the Munk Court did not rule that the discovery could not be compelled. Rather, it simply said that the district court lacked pre-indictment jurisdiction to compel the State to produce the discovery. Its theory was that the district court was merely acting in its capacity as a magistrate until there was an indictment, and that the magistrate could not compel the discovery. Clearly such a holding violates both the spirit of the MMA and legislative intent.3 If the State cannot be compelled to produce discovery, then the MMA has no teeth, making its promise to promote justice hollow. Here, it is beyond peradventure that this was not the legislative intent that went into drafting one of the most widely praised criminal discovery bills in history. Third, nothing in the opinion addresses misdemeanor cases involving county courts or misdemeanor cases where the case will proceed to trial without indictment.

B. APPLICATION OF THE CODE CONSTRUCTION ACT TO THE MMA

When the MMA is read under the microscope of the Code Construction Act (“CCA”), codified under Section 311 of the Texas Government Code, focusing on “as soon as practicable, after receiving a timely request” and applying the CCA’s directives, it is not debatable that the State has a pre-indictment duty to produce discovery to the defendant. Looking back, the facts that gave rise to the MMA’s passage, are instructive that MMA discovery is amazingly broad and includes DWI audio/video electronic recordings.

C. TEXAS CODE OF CRIMINAL PROCEDURE ART 2.139

What could be better for discovery than the MMA? For DWI defendants, the answer is, like icing on the MMA cake, Article 2.139 Tex.Crim.Pro., which became effective September 1, 2015. It provides that:

a person stopped or arrested on suspicion of an offense under Section 49.04 (Driving While Intoxicated), 49.045 (Driving While Intoxicated with a Child Passenger), 49.07 (Intoxication Assault), or 49.08 (Intoxication Manslaughter), Penal Code, is entitled to [an electronic video recording if the person was stopped and a recoding was made].

Interestingly, Article 2.139’s 2015 legislative history is instructive that audio/video electronic recordings must be produced even before the filing of formal charges, and that the duty to produce is not dependent on the filing of criminal charges.4 In crafting the production duty, the legislature recognized a previous production problem, and noted that “persons arrested for certain intoxication offenses under the Penal Code [were] not en­titled to a copy of all video recordings of the arrest.” House Committee Report, HB 3791(HB), Engrossed. Recognizing the problem and wanting to remedy it, the legislature asserted “that a person [stopped or] arrested for certain intoxication offenses should be entitled to a copy of all video recordings made during the arrest.” House Committee Report, HB 3791 [emphasis added].

Tex.Code Crim. P. Art. 2.139 [emphasis added] now provides:

A person stopped or arrested on suspicion of an offense under Section 49.04, 49.045, 49.07,or 49.08, Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that con­tains footage of:
(1) the stop;
(2) the arrest;
(3) the conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test; or
(4) a procedure in which a specimen of the person’s breath or blood is taken.

To understand the mandatory production nature and broad­ness of 2.139, the reader must focus on the phrase “is entitled,” as defined by Tex.Gov’t.Code Sec. 311.016(4). It leaves no doubt in the language: “Is entitled to” creates or recognizes a right. Thus, the plain meaning of Art. 2.139 is that a person who is arrested or stopped for Driving While Intoxicated, Driving While Intoxicated Child Passenger, Intoxication Assault, or Intoxication Manslaughter has a right to any video recording of the stop, the arrest, conduct of the person during any interaction with the officer (including but not limited to the administration of the standardized field sobriety tests) and any procedure in which a specimen of that person’s blood or breath is taken. Clearly, since the statute provides the alternative “or stopped,” it was designed to mandate production upon request even for individuals who were not arrested but only stopped.5

To yet further illustrate the mandatory nature of this production requirement, we need only to look at the Texas Attorney General’s 2016 Public Information Handbook. There, it is clearly stated that its transparency purpose is to “promote an open and inclusive system of government in Texas that benefits all of our citizens.” The Handbook provides detailed analysis regarding information that the government must disclose, may disclose, and must not disclose. Importantly, Art. 2.139 is specifically referenced in the handbook, and its language reprinted there in its entirety. This section of the Handbook has little commentary on Art. 2.139 other than noting the statute’s effective date and noting that there is no current case law or formal opinions regarding the statute. Of even greater import there is the fact that there is no commentary suggesting that under any circumstances, these video records not be produced. This is to be contrasted with other sections in the Handbook where the Attorney General has offered clear commentary on items that the government does not have to produce. Such commentary was not offered on Art. 2.139 because the answer is clear—a copy of any video relating to a stop or arrest for an intoxication offense must be given to the person who was the subject of that stop or arrest. Again, there is no condition precedent that formal charges are filed in order for the State’s mandatory production duty to arise.

Where a police agency refuses to provide a copy of the rele­vant video recordings upon request, or where it attempts to create undue delay by requesting an attorney general decision on the issue, the Texas Public Information Act (“TPIA”) provides a remedy to compel immediate production. Specifically, TPIA provides for a suit under a Writ of Mandamus to compel the wrongfully resistant governmental agency to release the requested information. Tex. Gov’t. Code Sec. 552.321; Thomas v. Cornyn, 71 S.W.3d 473, 483 (Tex.App.—Austin 2002, no pet.)(“A requestor may bring a mandamus action regardless of whether an attorney general’s opinion has been requested or despite the issuance of an adverse attorney general’s opinion that favors the withholding of the information.”) This mandamus action is statutorily created, and is different from the “traditional” mandamus that applies to decisions made by trial courts. A mandamus under the TPIA is filed in a district court of the county in which the main offices of the governmental body (in this situation, the police agency) are located. Further, in certain situations in which a suit for a writ of mandamus is needed to compel the agency to comply with the law, the TPIA allows for recovery of attorney’s fees by the party who brought the action. See Tex. Gov’t. Code sec. 552.323.

III.  PUTTING IT ALL TOGETHER: DEMAND LETTER TO THE ARRESTING AGENCY AND MOTION TO COMPEL PRODUCTION AND REQUEST FOR SANCTIONS

A. THE DEMAND

So now we know the law, and here is how we suggest defense practitioners use it. First, a demand letter should be sent to the head of the law enforcement agency responsible for the stop or arrest of your client, and it should be done in a way that shows timely receipt of it. A fax receipt, hand delivery, or registered mail with a return receipt are appropriate and can be used as future evidence of timely receipt. A suggested demand letter follows:

[CHIEF OF POLICE ] [POLICE DEPARTMENT ADDRESS]

RE:  Video Recording of Arrest for Intoxication Offense: [CLIENT]

Dear Chief [   ]:
        I have been retained to represent [CLIENT] as a result of an arrest for an Intoxication Offense, as that term is used in Texas Code of Criminal Procedure 2.139. As you are likely aware, the Eighty-fourth Legislature passed House Bill 3791, which became effective on September 1, 2015, amends Article 2.139 of the Code of Criminal Procedure and provides as follows:

        A person stopped or arrested on suspicion of an offense under Section 49.04, 49.045, 49.07, or 49.08, Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that contains footage of:

(1) the stop;
(2) the arrest;
(3) he conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test; or
(4) a procedure in which a specimen of the person’s breath or blood is taken.

This letter is specifically referencing the second Art. 2.139. As per this second article 2.139, this is an invocation of the entitled right noted therein for all electronic digital video/audio recordings by the officers in regard to the stop, arrest, and all interactions with the officers with [CLIENT]. Note, this demand also includes, any video/audio electronic recording of the procedure by which [CLIENT’S BREATH/BLOOD] was taken as per 2.139. In addition, I have attached to the original of this letter a blank DVD and a self-addressed stamped envelope so that DVD could be returned to me at no cost to your agency. Importantly, you are noticed that the Texas Attorney General has already spoken on this issue in its 2016 Texas Public Information Handbook, where it clearly approvingly stated that the transparent purpose of the act is to “promote an open and inclusive system of government in Texas that benefits all of our citizens”.

        In closing, please note that as per Article 2.139, this re­quest establishes an absolute right by [CLIENT] to have this electronic recording at this time. The statute does not allow a law enforcement agency to treat this invocation of an entitled right as discretionary production. Rather, the statute makes it a mandatory production. Please be aware that if this electronic recording is not produced, we will have no choice but to bring law suit pursuant to Tex. Gov’t. Code sec. 552.321, and that this would allow our client to recover attorney’s fees from your agency. That said, I thank you in advance for your professionalism and courtesy in promptly addressing invocation, and for following the law

                                               Sincerely,

B. SO WHAT HAPPENS IF THE LAW ENFORCEMENT AGENCY REFUSES?

In the event that the stopping/arresting agency fails to produce the electronic recording, the next step is to file a Motion to Compel Production and Request for Sanctions with the court where the DWI will or might be pending. In jurisdictions where a court is not yet assigned, then a Writ of Mandamus can be filed in a district court. See Tex. Gov’t. Code sec. 552.321. Our suggested motion to compel is as follows:

IV.  GO GET ’EM!

So now your liberty arsenal just got stronger! Constitutionally speaking, there is no question that our constitutional calling requires we defenders to do our absolute best in any case we have. The answers to some cases come easy while others come with great difficulty. Good lawyers don’t take “no” from the government; rather, they push to get things done. Great lawyers don’t just push, but take! Moreover, because you are great lawyers and think out of the box, what we have for you here is absolutely out of the box. We provide these tools to you both as aids to help you better protect your client’s rights and as food for thought to be a true champion of liberty. And so, we invite you to take these suggestions, run with them, improve them, and most importantly ask that you share your suggestions, improvements and experiences with all of us so that we might also benefit from them. Happy viewing!

Notes

1. It is worth noting that the State’s theory presented in Munk is not shared by all district attorney’s offices in the State. The Harris County District Attorney’s Office, for example, takes the position that “as soon as practicable” does not mean post indictment. Indeed, their routine practice is to provide a copy of the offense report and video once they receive it. Likewise, the Tarrant County District Attorney’s Office makes items available to defense counsel through their “tech share” system as soon as they receive it. While the production of discovery in these counties may still be unduly delayed, it is not because of this renegade interpretation of the MMA. In fact, the Texas District and County Attorney’s Association recently published an article entitled “Just Disclose It,” where it discusses the ethical implications of not producing discovery to the defense, and it concludes that “if there is any conceivable way in which information or evidence could be considered favorable to the defense for exculpation, impeachment, or mitigation purposes, don’t stop to wonder whether the evidence is material and admissible. Just disclose it.” http://www.tdcaa.com/print/13384. Further, you may want to remind the prosecutor of the opinion in Schultz v. The Board of Disciplinary Appeals, No. 55649 (Tex. Dec. 17, 2015), http://www.txboda.org/sites/default/files/Schultz55649%20Opinion.pdf, where failure to produce mitigating discovery was held to be a violation of Texas Disciplinary Rules of Professional Conduct 3.09(d) and 3.04(a), which is broader that the prosecutor’s legal, constitutional duty of disclosure imposed by Brady v. Maryland.

2. The “as soon as practicable” language was recently addressed by Justice Alcala in a concurring opinion of the Texas Court of Criminal Appeals in In re Castillo, 2015 WL 4776080 (not designated for publication)(Tex.Crim.App. 2015). This was a murder case where the prosecutors refused to comply with the MMA until after indictment, and the defendant filed petition for writ of mandamus to force the state to provide the discovery as required by the MMA. Justice Alcala wrote that “the Legislature’s broad use of the phrase ‘any matter involved in the action’ cannot reasonably be interpreted as applying only to those actions for which a formal indictment has been filed because that phrase plainly contains no such limitation.” Id. at 2 [emphasis added]. Justice Alcala went on to say that “by delaying a defendant’s access to discovery until after grand-jury proceedings and indictment, the district attorney has effectively read an additional provision into the statute that changes the ‘as soon as practicable’ language into ‘as soon as practicable after return of indictment by the grand jury.’” Id. Ultimately, the Texas Court of Criminal Appeals denied the Defendant’s petition for a writ of mandamus because of the limited reason that the Defendant failed to show that “he lacks any adequate remedy at law.” Id. at 3. In discussing other potential remedies, Justice Alcala suggests that the Defendant “may seek to challenge the State’s failure to comply with Article 39.14 in the trial court by filing a motion to exclude evidence at the appropriate time,” and that the Defendant “may challenge the State’s failure to comply with discovery requirements during the course of his direct appeal.” Id. Based on Justice Alcala’s opinion, we suggest that you ask the court to exclude any evidence derived from material that was not timely produced pursuant to the MMA.

3. Indeed, such a reading likely also violates the Texas Rules of Professional Conduct. The Professional Ethics Committee of the State Bar of Texas has said that the MMA requires an “open file policy,” and that “prosecutors would violate [Texas Rule of Professional Conduct] 8.04(a)(12) if they attempted to impose conditions not found in [the MMA] before making the required disclosures.” Tex.Comm. on Prof’l Ethics, Op. 646 (2014).

4. Of import here, on a Motion to Compel Production, is that a failure to timely produce, as measured by the “as soon as practicable” standard, will result in the prosecutor being a volunteer witness to be cross-examined as to why it was not practicable to produce the requested discovery.

5. Texas Code of Criminal Procedure 2.139 already existed before this Bill was passed. Due to an oversight, the duplicate Article number was not corrected, so there are two Articles 2.139 until this error is corrected in the next legislative session. Note that even though there are two Articles 2.139, because these Articles are not irreconcilable, both articles have full effect of law. See Tex.Gov’t.Code Sec. 311.025.

PBTs for Drugs: Oral Fluid Collection Devices

Historically, impaired driving was most often linked to alcohol impairment. As such, governments and researchers devised roadside portable breath test (PBT) tools for police to use to identify intoxicated drivers. No such roadside test was possible or necessary for drivers suspected of drug impaired driving—at least until now. The reason for the push for roadside point of contact testing for drugs in 2014 is that drug-impaired driving has become a worldwide safety issue. The use of potentially impairing medication is widespread. Indeed, many drivers operate their vehicles while accidentally under the influence of legally prescribed medication. Recognizing the need for better enforcement, police agencies everywhere are looking for new tools to combat drug-impaired driving. One such experimental tool is Oral Fluid Collection (OFC). It is a means for law enforcement to perform roadside testing of a suspected driver’s mixed saliva for drug impairment with an OFC device (OFCD). The United Kingdom was the first to sanction this type of testing on its driving population.

OFC is said to be able to identify the possible presence of a drug, whether legally prescribed or illegal. The roadside test may also be followed up with a confirmatory technique such as gas chromatography with mass spectrometry (GC-MS). And so, it is the purpose of this article to introduce OFC devices to the reader and describe how they work. We will then explain why we believe OFC devices will be coming to a roadside near you. Finally, we will discuss the application of Frye or Daubert challenges to the admissibility of OFC evidence.

What Is Oral Fluid Collection?

In the world of forensic science, Oral Fluid Collection (OFC) is technically referred to as Mixed Saliva Sampling (MSS). In the non-law enforcement world, however, it is known as Point of Collection Testing (POCT). POCT has been a feature of worksite testing for some time. Police proponents of this testing technique proclaim that it is faster, cheaper, just as accurate as blood or urine but less invasive. Notwithstanding these claims, as we will see with this promising technology, it is not wholly validated or acceptable for judicial use at this time.

How OF-POCT Works

Not all OFCDs work the same way. Each is unique depending on its manufacturer. There are, however, some similarities between the devices—one of which is that they will be used on the roadside just like PBTs are now used. For example, a citizen would have some automobile traffic contact with a law enforcement officer wherein there was some evidence of drug impairment observed and no evidence of alcohol consumption. It would be at this point that the officer would ask the suspect driver to consent to a short OFCD test on a device similar to the one above. However, it is crucial to note that just like the roadside PBTs, the OF-POCT requires a deprivation period. In its instructions and user guide, Drager says that operators must wait 10 minutes before using it.

Whatever device is used by the officer, it usually consists of a collector and a portable reader. The collection OFCD has some sort of tube consisting of an absorbent material at the end to collect saliva from the suspect. Depending on the device, a 1mL sample can be taken from the tongue, gums, inside the cheek, etc., and then placed in the oral screening device. Once the screening process is started, it takes from 2 to 10 minutes to develop a result. After the sample is analyzed, the reader displays whether or not the sample contains any of the drugs it was designed to detect.1 Some readers even have the ability to print out the results of the test for later use; others produce a number indicating the concentration of drugs found, similar to BrAC results; and others simply are displayed on the screen with no method of memorialization. If the results are positive, the suspect might be arrested for drugged driving. We believe that this initial result will likely be treated as presumptive test—as it certainly should, if scientific principles are followed. Later, the motorist would be asked to provide another saliva sample to be used for an evidentiary test. The sampling container would be then transferred to a laboratory where the OF/MSS would be extracted and subjected to either GC-MS or Liquid Chromatography with Mass Spectrometry (LC-MS) analysis, depending upon the laboratory’s analytical abilities.

Example of Analysis Done by One of These Machines

Although there are numerous devices on the market,2 each device uses a slightly different analysis. The Dräger DrugTest® 5000 is already in use in Los Angeles and seems poised to become one of the prevalent devices within the United States. Therefore, in order to gain a better understanding of the device and ways to challenge the use of the device, a description of how the Dräger DrugTest® 5000 works is necessary.3 Currently, the Dräger DrugTest® 5000 is the only device to gain federal approval through NHTSA.

The analytical method used by the DrugTest® 5000 is immunoassay. This analytical tool has been in use for over 30 years.*

Immunoassays begin with injecting a target analyte** into an animal such as a goat. The immune system of the animal will create an antibody to this foreign substance. These antibodies are then harvested from the animal and used in the creation of immunoassay tests. It is only after these antibodies are acquired that the test can be designed and performed.

The antibodies are designed to target the analyte and cause the analyte to bind to the antibody. Think of this like a jigsaw puzzle, where the antibody is the puzzle that has a hole in it for a puzzle piece to fit, and the analyte is that piece of the puzzle. When the puzzle piece (the analyte) finds a spot in the puzzle (antibody) where it can fit perfectly, it will snap into place in (bind with) the puzzle.

Let’s take this one step further and be more specific to the DrugTest® 5000. The immunoassay technique used is a competitive immunoassay. An antibody is added to the test kit as well as a drug conjugate that has been manufactured by the company. The antibody is labeled so that when it binds with something it gives off a detectable color.

Inside the test collection device are strips of absorbent material. Both the antibody and the drug conjugate are placed on this test strip. The labeled antibody is placed towards one end of the strip. In the middle of the test strip the drug conjugate is embedded. This area, where the drug conjugate is embedded, is the detection zone and is where the color change is watched for and measured. The oral fluid sample is placed on the far end of the strip next to where the labeled antibody is.

Now it becomes a competition where any drug that may be present in the sample competes with the drug conjugate to bind with the antibody. Because the oral fluid sample will come into contact with the labeled antibody before the drug conjugate can, then any drug present in the sample will “win” the competition it is having with the drug conjugate and bind with the antibody first. If there is no drug present in the sample, then the labeled antibody cannot bind until it reaches the detection zone and binds with the drug conjugate. When the labeled antibody binds with the drug conjugate, it creates a detectable red line in the detection zone that is then measured with a LED light source and detector.

The detector will measure the amount of color given off by the reaction of the labeled antibody binding with the drug conjugate. The greater the response the more drug conjugate has bound with the antibody, meaning that there was lesser amount of drug, or no drug, in the sample. When a drug is in the sample, then there will be fewer antibodies available to bind with the drug conjugate in the detection zone (because most of the antibodies have already bound with the drug in the sample), and therefore there will be less detectable color. Therefore, the signal amount identified by the detector is inversely proportional to the amount of drug present in the sample: more drug equals less signal, less drug equals more signal (as depicted in Figure 3).

Problems arise with this technique when a substance that is NOT the analyte of interest has a structure similar enough to the antibody that this other substance can bind with it just as the analyte of interest does. When this occurs the immunoassay test will show a positive result for presence of the target analyte even though the target analyte is not in the sample. This is a false-positive result known as cross reactivity.

It is very important to understand that this type of testing is presumptive and subject to many false positives from cross-reactivity. Any results obtained from immunoassay testing must be confirmed by a confirmatory test such as Gas Chromatography Mass Spectrometry.

Why Is Oral Fluid Collection Coming to a Road Near You?

Well, it’s simple: As of January 2014, for 14 states it is already here. OF/MSS is specifically authorized by statute, and some states already have regulations that allow for it.4 In fact, Los Angeles made POCT part of its New Year’s Eve checkpoint effort. Along with PBTs, the officers were authorized to ask drivers if they would consent to a voluntary portable oral fluid test.5 After consent is obtained, the OF is placed into a portable machine; the machine being used was the Dräger DrugTest® 5000,6 which gives immediate results without the need for a blood test.7 Addressing the media and the use of this technology, Los Angeles City Attorney Mike Feuer stated: “Traditionally, our office has focused on drunken driving cases. We’re expanding drug collection and aggressively enforcing all impaired-driving laws.”8

Further illustrating the point, the federal government is stepping up focus on drugged driving and the use of POCT. The Office of National Drug Control Policy, along with the White House, the Department of Transportation, and other Federal Agencies, have taken steps to address drugged driving,9 and several studies have been published on the perceived problem. For example, The National Roadside Survey of Alcohol and Drug Use by Drivers found that in 2007, approximately one in eight weekend nighttime drivers tested positive for illicit drugs.10 Drug Testing and Drug-involved Driving of Fatally Injured Drivers in the United States: 2005–2009, found that roughly one in four of fatally injured drivers who tested positive for drugs were under the age of 25.11 In 2009, narcotics and cannabinoids accounted for almost half of all positive results.12 In that same year, 18 percent of all fatally injured drivers nationwide tested positive for drugs at the time of the crash.13 Finally, the Institute for Behavior and Health published Drugged Driving Research: A White Paper. That paper concluded that drugged driving was a significant domestic and international problem.14 Also, there are many drugs with potential impairing effects being prescribed at a rate higher than we have seen in the history of this country.15 Accordingly, drug-impaired driving has been thrust into the spotlight of law enforcement, media, awareness groups, and lobbyists.

Moreover, federal agencies under the name “National Drug Control Strategy”16 announced their goal not only to reduce drugged driving by ten percent by the year 2015, but also to put the prevention of drugged driving on par with drunk driving prevention.17 Included in their strategy was to “[d]evelop standard screening methodologies for drug-testing labs to use in detecting the presence of drugs.”18

The authors believe that although the strategy calls for standard methodology in laboratories, it is not an inconceivable leap to standardized methodology for testing roadside. These federal agencies have money to fund research. Here, it must be noted that scientific meetings, such as the American Academy of Forensic Sciences as well as the American Chemical Society, are now including presentations and a considerable amount of discussion about this OFCD technology. Government money is pushing research which in turn is pushing innovation. Seizing the opportunity, various for-profit companies such as Dräger, National Medical Services, Cozart Bioscience Ltd., Varian, Branan Medical Corporation, and Innovacon have entered the market and already have viable devices in use. OFC tests that produce rapid and cheap results that can be read onsite by law enforcement officers who have little to no training seem to be an ideal product for supporters of the technology.

Is OFCD Technology Ready for Court?

Regrettably, all of these roadside devices have significant limitations—notably initial costs, limited scope, lack of sensitivity, and non-validation of the method used vis-à-vis unacceptably high rates of false positives.19 Clearly, these limitations underlie the need for improved technology and research.20 The White Paper concluded:

[t]he US lags significantly behind Europe and Australia in its investment in drugged driving research and in applying lesson learned to saving lives and reducing injuries. The evidence that drugged driving is a serious public health and safety problem in the US is strong, as is the evidence that current efforts to combat it are grossly inadequate . . . Improved testing technology also is needed with more sensitive rapid onsite oral fluid tests. . . .”21

The Office of National Drug Control Policy commitment to improving awareness, education, and fighting the ever-growing problem of drugged driving, plus its reliance on the reports discussed above, are evidence of our government’s renewed efforts to combat drugged driving. This will come, as the White Paper encourages, from OFCDs. The criminal defense bar needs to be prepared for these OFCDs. In this regard, it is not a matter of “if we see them” but “when will we see them?” Remember, for most of us, OFCDs will come, but for 14 states, they are already here.

How to Prepare Frye and Daubert Challenges to OFCD Evidence

In order to prepare to defend clients accused of drugged driving and testing by OFCDs, the primary scientific attack should be by Daubert or Frye challenges. We cannot allow the assumption of valid science to enter our courtrooms unchallenged, lest we have more revelations such as those that surround lead bullet analysis, fire science, pattern recognition, and hair and fiber analysis.

Although Daubert superseded Frye in federal courts, there are still several states that continue to follow the Frye standard for scientific evidence.22 The Frye standard is well known:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular filed in which it belongs.23

A Frye challenge to OFCD roadside evidence is proper at this point in time because as the White Paper stated, the United States lags significantly behind Europe in terms of drugged driving enforcement. Several European countries have addressed their concerns with drugged driving by approving and commissioning several studies regarding OFC. The below studies show that current OFC technology is not ready for widespread use and is certainly not generally accepted within its field.

From 2006–2008 Driving Under the Influence of Drugs, Alcohol, and Medicines commissioned a study entitled Analytical Evaluation of Oral Fluid Screening Devices and Preceding Selection Procedures.24 This European project focused on the improvement of road safety related to the problem of alcohol, drugs, and medicines. The objective was to give scientific support to the European Union’s transport policy by providing a basis to generate harmonized regulations for driving under the influence of alcohol, drugs, and medicine.

This study looked at eight devices: BIOSENS® Dynamic; Cozart® DDS 806; Drugwipe® 5+; Dräger DrugTest® 5000; OraLab6; OrAlert; Oratect® III; and Rapid STAT®. All of the devices were tested with substance classes: amphetamines, methamphetamines, MDMA or Ecstasy, cannabis, cocaine, opiates, benzodiazepines, and PCP. The study revealed that OF screening tests have only been used in a few countries, but an increasing number are planning to introduce them in the coming years. It acknowledged the benefits that recent drug use is better detected in OFC and it is less invasive than many of the other tests currently on the market. The report, however, acknowledged that there were several issues with the devices. First, none of the tests reached the target value of 80 percent for sensitivity, specificity, and accuracy. The sensitivities for cannabis and cocaine were quite low in all the tests. This problem was further compounded as these two particular drugs are most prevalent in individuals suspected of drugged driving. The study concluded, “the time consuming process of onsite oral fluid screening, in combination with the quite high cost of the devices and the relatively low sensitive for cannabis, which in many countries is the most frequently used illegal drug, will probably prevent large scale testing in practice.”25

Washington’s 2004–2006 ROSITA II Project26 was a study commissioned to roadside-test OFCDs. It tested two devices, the SalivaScreen 5 and the DrugWipe 5, and concluded that the SalivaScreen 5 was not suitable for roadside use as it suffered a large number of failures and was not sensitive or accurate enough to detect marijuana.27 Rosetta II found that DrugWipe 5 fared better, stating that it made interpretation of the results easier and more reliable, that it was easier to use, and that it did not fail. Noticeably absent, however, was any mention of the sensitivity or accuracy to detect marijuana. A chief complaint in the report was the high cut-off rate for marijuana. The officers argued the cut-off rate has to be lower, as other than alcohol, marijuana is the most prevalent drug for DUI-D arrests. Ostensibly, higher sensitivity was not possible for the device.

Finally, the National Highway Traffic and Safety Administration conducted a study entitled State of Knowledge of Drug-Impaired Driving.28 That study discussed OFC testing and its problems. Some issues preclude meaningful use in the field. For example, some drugs inhibit salivary secretions (e.g., MDMA, opiates, and methamphetamine). Without sufficient sample size, the portable machines cannot achieve a valid result. Further complicating this problem, there appears little commutability among devices, with some reporting false positives or false negatives with the same sample. Another problem is that there is no consensus on cut-off levels for the operable portable devices. Almost universally and pandemic across the OFCDs is that their results are not accurate, reliable, or valid for cannabis. Further, there are no nationally established standard methods for oral fluid testing; nor are there any certification programs available.29 In addition to these problems, recent evaluations of available point of collection testing devices indicate that like the European and Washington studies, the specificity, sensitivity, and predictive values for drugs have been poor.30

Additionally, the “cut-off” levels for the kits are set too low for many substances and will absolutely cause the false arrest of non-impaired drivers. For example, consider the oral fluid kit for the Drager device pictured following:

With an amphetamine cut-off level of 50 ng (AMP 50), a lot of people who are properly using therapeutic drugs such as Adderall will be caught by this unnecessary wide net.

Drugs that are taken orally, such as cannabis, or that get into the oral cavity can provide inaccurate results upon confirmatory testing, much like residual mouth alcohol can provide inaccurate BrAC results at roadside with a portable breath test. These over-reported results, based upon contamination, can totally skew the extrapolation of the OFC sample quantitative result by GC-MS to a pharmacodynamic effect. Finally, there are limited studies of insufficient value that translate the quantitative results of OF POCT to traditional blood levels in plasma, making opining as to pharmacodynamic effect nearly impossible.

These and other studies reach similar conclusions—i.e.,31 that the OFCD evidence should not survive a Frye challenge by competent and prepared defense attorneys with good experts.

Here, it must be remembered that these devices are not generally accepted within the scientific community. Although they do have their benefits, such as being less invasive than blood testing and cheaper in terms of collection costs, what they DO NOT have is the ability to give reliable, accurate, and valid results that are generally accepted within the relevant global scientific community.

What if you live in a Daubert state? The Daubert standard replaced the Frye standard in 1992 when the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals. This “new” test abandoned the “generally accepted” standard and instead employed a variety of factors to determine whether scientific evidence is reliable. The factors that were considered:

(1) is the theory, technique, methodology, etc., testable and has it been tested;
(2) has it been subject to peer review and publication;
(3) what is its known error rate;
(4) are there standards and controls maintained for the technique and methodology; and
(5) has the theory, technique, methodology, etc., been generally accepted.

These factors, however, are not all inclusive, and subsequently courts have employed a number of other factors. Using the Daubert Court’s factors, a successful challenge can also be made against the OF POCT. The technique has been tested. This article discusses two of them, and the endnotes reference several more. It has been subject to peer review and publication. The results of those tests, however, can be described as inconclusive at best, and at worst, demonstrate that the technique and the methodology used is not scientifically reliable for all of the reasons stated above. This is not only true for the roadside portable testing, but also in the confirmatory GC-MS and LC-MS testing due to the contamination. Of import here is that the error rate in these devices has been shown to be high. In fact, in the Washington study, the testing device was completely abandoned because of a constant error rate. The simple truth of the matter is that these devices are not yet ready to be used in everyday policing or prosecution. Although they show promise from a scientific and policing point of view, they are neither reliable nor scientifically proven to be scientifically acceptable.

Conclusion

Drugged driving enforcement is on the increase and will soon be on par with drunk driving. Law enforcement will be using OFCDs to combat it—even though the technology is not up to the task yet. That said, it is our job as constitutional defenders to constantly hold the government scientifically and legally accountable. To do so, we are obligated to learn and understand both the science and the law, meaning their processes, weaknesses, and strengths. Most importantly, we must always do so with dedication, honor and courage.

Notes

1. Interestingly, several of the devices look similar to an over-the-counter pregnancy test. For example, the Oratect® III test shows a blue line to indicate there is an adequate sample, and then a red line appears to indicate the presence of any drugs in the OF.

2. Examples of some of the most common and prevalent devices on the market include: Drugwipe® by Securetec (Ottobrunn, Germany); ORALscreen™ by Avitar (Canton, MA); Cozart RapiScan Oral Fluid; Drug Testing System by Cozart Bioscience, Ltd. (Oxfordshire, U.K.); BIOSENS® Dynamic by Biosensor Applications (Solna, Stockholm); Oratect® III by Branan Medical Corporation (Irvine, CA); and SalivaScreen 5™ by Medimpex United Inc. (Bensalem, PA). This is by no means an exhaustive list but is intended to just give an example of the variety of devices available to the public.

3. For those readers who wish to see a video sample of how the devices work, please visit the Dräger DrugTest® 5000’s YouTube page http://www.youtube.com/watch?v=SJ4tm6PCwF0.

4. Fourteen States currently have laws or regulations allowing for onsite oral fluid testing: Alabama, Arizona, Colorado, Indiana, Kansas, Louisiana, Missouri, New York, North Carolina, North Dakota, Ohio, Oregon, South Dakota, and Utah. See StopDUID, http://www.stopduid.org/ (last visited July 9, 2013) (“Our goal is to provide the most recent information on drugged driving policies in the United States. This website tracks research and legislative activity to strengthen DUID laws in all 50 states.”).

5. LAPD deploys drug-detection swab tests at sobriety checkpoints, http://rt.com/usa/portable-drug-test-lapd-902/ (Dec. 28, 2013).

6. Phil Rennick, “New Tools for the Detection and Prosecution of the Drugged Driver,” http://www.draeger.com/sites/assets/PublishingImages/Segments/Law%20Enforcement/US/Drugtest%20Cali.pdf (July 2013) (“The Dräger DT5000 is currently being used at sobriety checkpoints in the City of Los Angeles.”).

7. Dave Paresh, Portable drug test a new addition at New Year’s DUI checkpoints, http://www.latimes.com/local/lanow/la-me-ln-new-years-dui-checkpoints-20131227,0,3004417.story#axzz2pq68IpDT (Dec. 27, 2013).

8. Id.

9. Drugged Driving, supra note 2 (“Americans are all too familiar with the terrible consequences of drunk driving. Working with the Department of Transportation and other Federal agencies, the Office of National Drug Control Policy is taking steps to highlight the growing problem of drugged driving.”).

10. Id.

11. Drug Testing and Drug-involved Driving of Fatally Injured Drivers in the United States: 2005–2009, http://www.whitehouse.gov/sites/default/files/ondcp/issues-content/fars_report_october_2011.pdf (last accessed July 3, 2013).

12. Id.

13. Id.

14. Robert L. DuPont, Drugged Driving Research: A White Paper 4 (2011).

15. Id.

16. Id.

17. Id.

18. Id. at 7 (the strategy also calls for encouraging states to adopt per se drug impairment laws; collecting further data on drugged driving; enhancing prevention of drugged driving by education communities and professionals; and providing increased training for law enforcement on identifying drugged drivers).

19. Id. at 18.

20. Id. at 24.

21. Id. at 48.

22. The Frye standard is still followed in: California, Illinois, Kansas, Maryland, Minnesota, New Jersey, New York, Pennsylvania, and Washington.

23. Frye v. United States, 293 F. 1013, 1014 (App. D.C. 1923).

24. Tom Blencowe et. al., eds., Analytical Evaluation of Oral Fluid Screening Devices and Preceding Selection Procedures, Druid-Project (March 30, 2010), http://www.druidproject.eu/cln_031/nn_107534/sid_4898EF86AF78D3E23BAC0B35BC878CD5/nsc_true/Druid/EN/Dissemination/downloads__and__links/Final__Report.html.

25. Id.

26. Jayne E. Thatcher, ROSITA II Project: Evaluation of On-Site Saliva Drug Testing Devices in Washington State, rosita.org (2007), http://www.icadts2007.org/print/80rosita_salivascreen.pdf.

27. There is also a study done in Missouri. The Missouri study looked exclusively at the Dräger DrugTest® 5000. The results of that study are available at http://www.ucmo.edu/safetycenter/documents/DragerStudy.pdf.

28. R. K. Jones et. al., State of Knowledge of Drug-Impaired Driving, The National Highway Traffic Safety Administration (August 2003), http://www.nhtsa.gov/people/injury/research/stateofknwlegedrugs/stateofknwlegedrugs/pages/TRD.html.

29. Id.

30. Id.

31. See Olaf H. Drummer, Drug Testing in Oral Fluid, 27 Clinical Biochemist Rev. 147 (2006) (concluding “More research is needed to further the detection of drugs present in [OF] which should allow improved reliability of detection of drugs. Similarly, future technological developments of on-site devices should allow more sensitive and reliable detection of a number of drugs.”); K. Wolff et. al., Driving Under the Influence of Drugs: Report from the Expert Panel on Drug Driving, Gov.uk (March 2013), https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/167971/drug-driving-expert-panel-report.pdf (“Currently, oral fluid tests cannot be used to give a precise prediction of the concentration of a drug in blood (or plasma or serum) for confirmation testing and therefore prediction of possible drug effects.”); Wendy M. Bosker & Marilyn A. Huestis, Oral Fluid Testing for Drugs of Abuse, 55 Clinical Chemistry 1910 (2009) (“The promise of worldwide OF testing spurred commercial research and development of POCT devices, and commercial devices were rushed to market before much of the basic science of drug excretion into OF was known . . . The major problems with early generation OF POCT included inadequate limits of detection, specificity, and efficiency.” Additional research has led to some improved products. However, “additional research is critically needed to characterize potential problems with OF collection devices and immunological and chromatographic assays.”); Marilyn A. Huestis, Oral Fluid Testing: Promises and Pitfalls, 57 Clinical Chemistry 805 (2011) (OF limitations include difficulty of collection following recent drug use and the potential for passive contamination; the following technical issues with OF must be resolved: inconsistent oral fluid and elution buffer volume, variable drug recoveries, inadequate oral fluid immunoassay sensitivity and specificity, and lack of homogeneous immunoassays for automated analyzers; there could be inadequate specimen for multiple drug confirmations); F. M. Wylie et. al., Drugs in Oral Fluid: Part II Investigation of Drugs in Drivers, 150 Forensic Sci. Int’l 199 (2005) (At present, no OF device has the sensitivity or specificity to successfully detect an extensive range of drugs).


Footnotes:

*Dräger DrugTest® 5000 is a registered trademark of Drager Safety AD & CO. KGAA Corporation.

*Enzyme Immunoassay (EIA)/Enzyme-Linked Immunosorbent Assay (ELISA) Rudolf M. Lequin Clinical Chemistry http://www.clinchem.org/content/51/12/2415.full.

**Analyte—The substance being analyzed in an analytical procedure. In this case it would be a drug such as marijuana, a benzodiazepine, cocaine, etc.

Antibody—Proteins in the body that are designed to target and attack foreign substances that are harmful to the body, substances such as bacteria or viruses.

President’s Message: My Last President’s Column: The Real Story Behind the Star Spangled Banner – By J. Gary Trichter

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As I reflect on the events of the last two years, I must say first what a privilege it has been to be your President. I have not been humbled by the the honor, but rather, inspired by it. The Presidency and Providence have taught me much about others and about being human. My term has been no more and no less of a success than those that preceded me—we all build on the accomplishments of those who came first just as those who follow will build on what we have done.

On the plus side, the Association and I were blessed with an outstanding Executive Director and Assistant Executive Director, Joseph Martinez and Melissa Schank, as well as an outstanding home office staff. The Association and I also had the wisdom of an excellent Executive Committee: Lydia Clay-Jackson, Bobby Mims, Emmett Harris, Sam Bassett, John Convery, Scrappy Holmes, Stan Schneider, John Ackerman, Troy McKinney, George Scharmen, Mike McCollum, and Greg Westfall. In regard to the coming years, I attest to you that all that your officers are righteous people who I know to have your best interest at heart, and that I have no fear of passing on power to them. That said, however, they can not run this Association without your consent, trust, confidence, and participation—please step up and give it to them! Lydia will be a great President if you will help her help you!

Another plus for me was working with Court of Criminal Appeals Judge Barbara Hervey on our grant issues and State Bar President Buck Files on State Bar issues. Both of these good people deserve our thanks and support for their volunteer efforts to enhance our educational opportunities. Together, they have silently added a great measure of professional advancement to TCDLA.

On the negative side, I have but one disappointment, and that is simply that the one-year President’s term flew by. Notwithstanding, the year was filled with lots of activity and accomplishment. One such accomplishment was the initiation of inspirational readers at the beginning of our board meetings. Some moved us to tears while others taught us about courage we could immediately bring into the courtroom. As a lover of our American History, I strongly believe that “We the People,” as a Nation, can find more that binds us together than that which separates us if we simply do not forget our history. To this end, our reading of the Declaration of Independence ought be embraced by you all this July 3rd and a special thanks given to board member Robb Fickman for his leadership in this good will patriotic endeavor.

Let me now end with what I hope will be an inspirational story about “The Star Spangled Banner”—maybe one that will motivate you all to sing its words the next time you hear it or to have more courage in court. I have always been bothered that so many don’t sing our national anthem, and surmised that even though the words tell a story of a battle, that more needs to be told of September 12–14, 1814, in Chesapeake Bay. And so:

The War of 1812, sometimes called “the Second War of Independence,” was the only one where the United States was invaded by a foreign power. We declared war against Great Britain because it regularly kidnapped American sailors and disrupted American trade by blockade. In April 1814, England’s war with France ended at Waterloo with Lord Wellington’s crack troops, led by Major General Robert Ross, decisively defeating Napoleon. This resulted in those same crack troops, “Wellington’s Invincibles,” and General Ross being redeployed against our country. It came at a bad time because we were loosing the war; Chicago, Detroit, and much of the states of Maine and New York were under British control while the Indians, supplied with British arms, were waging war on the Western frontiers. Massachusetts was even sponsoring a plan to secede from the United States so it could pursue a separate peace with England.

Landing near the capital, the British not only marched on Washington, D.C., but also sacked and burned it after defeating an American army twice its size. President James Madison, “the Father of our Bill of Rights,” barely escaped with his wife, Dolly. It was Dolly who refused to leave until she could rescue priceless historical treasures—e.g., a portrait of President Washington.

Notwithstanding that our Capitol had been taken, it was not a military target of any real consequence. That honor fell to nearby Baltimore, Maryland, which was the third-largest city. This was a great seaport because of Chesapeake Bay; it was a large center of commerce of the young nation. Take Baltimore and the United States might fall, so thought the British!

Accordingly, the British plan was to attack and capture Baltimore, which had openly declared itself hostile to England. It was also to punish the city, nicknamed a “nest of pirates” because its schooners had retaliated against the British by seizing its ships and cargoes. Indeed, the Baltimore fleet was responsible for 30 percent of all British ships captured. The plan was to do so by land and by sea. Here, the invading navy, commanded by Admiral Alexander Cochrane, was composed of troop transports, supply ships, and 16 warships, including bomb-ketches: ships that fired mortars. These were superior weapons that allowed the dropping of 11-inch and 13-inch bombshells on targets two miles away with near perfect precision. The bombs were launched with one-pound bags of powder. Interestingly, each bomb had a timing fuse that, depending on its length, would explode the instant it hit its target (if perfect length), after hitting the target (if too long), or would burst in air (if too short). The British rockets had a range of one and three quarters mile.

On the other hand, the Baltimore city fathers, anticipating a possible attack, in the summer of 1813 readied an existing military emplacement that guarded both the city and the port. A large entrenchment was dug along the city outskirts, gunboat barges were built, the militia drilled, and improvements were made to brick star-shaped Fort McHenry: mounting a battery of 32-pound cannons with a range of a mile and and a half at the bay edge, cannon at Patapsco River, making hot-shot furnaces, and quartering a force of 1000 soldiers commanded by Major George Armistead.

It was during this same period, Major Armistead commissioned Mary Pickersgill to make two flags for the fort—a garrison flag 30 x 42 feet and a flag for inclement weather, a storm flag, 17 x 25 feet. Each flag was to have 15 stars and 15 broad stripes. The flag task was completed in seven weeks at a cost of $405.90 for the large flag and $168.54 for the smaller one, a sum that was more than most Baltimoreans made in a year.

On the morning of September 12, the British landed 5,000-plus troops at North Point and marched to attack the city. Arriving at Hampstead Hill, they found their path blocked by 12,000 determined American Militia. This was not an unexpected find for the invaders because it had been planned for their navy to subdue Fort McHenry, then to sail into the harbor and commence firing on Baltimore, causing panic and, hopefully, a retreat of the American forces. Accordingly, the invading army just waited on their navy to fulfill their plan. Regrettably for General Ross, while awaiting the bombardment, an American sharpshooter shot him right off his white horse, causing a great loss of morale.

With the first light of the 13th, about 6:30 a.m., the British fleet opened fire on Fort McHenry. The battle commenced in a heavy rainstorm, which caused the fort to fly its smaller bad-weather flag. Armistead’s cannon, being too light to reach the warships anchored two miles away, were useless and rendered the garrison totally defenseless, absent the ships moving closer. For the next 25 hours, warships continuously rained rockets, shells, and bombs on the fort—some 1,800 rockets were launched at Armistead and his 1,000 brave defenders—which is over one bomb, shell, or rocket per minute. Hour after hour, the American force took shelter and watched and waited. Many took shelter at the outside back walls of the fort as 186-pound bombs and rockets fell into the walls. At night, the rockets and exploding bombs lit up the sky and smoke obscured the fort in a dark cloud. Rockets whisked through air and burst into flames on impact.The sound was deafening and never stopped during the attack, and yet, the defensive force endured and endured. This was all happening while under the waving storm flag—sometimes visible and sometimes not.

Weeks before, as the British were leaving Washington in flames, they seized Dr. William Beanes as it was charged he was responsible for the arrests of British soldiers leaving the capital. He was imprisoned on a British warship. This doctor was important enough that President Madison sent a 35-year-old lawyer and poet, Frances Scott Key, and Col. John S. Skinner to negotiate a prisoner of war release. The two sailed out to the British fleet on September 3rd and were successful in obtaining Dr. Beanes’ release—except, because of what they saw and heard about the British war plans, all three Americans were detained on board an enemy sloop, at least until after the city had fallen.

Hour after hour during the day the three Americans watched in frustration as they witnessed the power of the British fleet assaulting their homeland. All night, they watched the mortars lob in bombs, their lit fuses leaving a trail of sparks. They also saw rockets and explosions light up the sky—and on occasion, when the smoke was thinned by the wind, they saw the fort’s storm flag defiantly flying above the defenders. The cannon, mortar, and rocket fire noise made it impossible to sleep.

And then, at 7:30 a.m. on September 14, the bombardment stopped. Key, Skinner, and Beanes knew of the British plan to attack Baltimore by land, too, and feared the worst—they had no way of knowing the truth. They had no way of knowing that the British fleet had run out of ammunition, that Ross had been killed, and that the British army advance had stalled. And then during the misty and drizzly dawn, they saw it! No, they did not see the storm flag; they saw the much larger garrison flag waving defiantly as the British fleet readied to sail off. Armistead had ordered it raised when he realized the battle had been won. His troops celebrated the victory by firing guns and playing “Yankee Doodle Dandy.” Proudly waving, the large stars and bars were visible from eight miles away—visible to the three Americans, Key, Skinner, and Beanes, who were overcome with joy.

Of course, seeing the star spangled banner and knowing the British had lost, Key was irresistibly inspired to write down what he felt and he did so on an envelope. Armistead lost only 4 defenders and had 24 wounded. The British only had one ship hit and only one sailor was wounded.

Key wrote a four-stanza poem telling the story of the battle, which told of the pride of a brave, free, and God-loving people that call this country home. In it he told a story of the pride of a country whose motto is “In God is our trust,” and of a people who would not only unite to fight for freedom, but also to keep it. Key called the poem “The Defence of Fort McHenry.” Put to the British melody of “Anacreon in Heaven,” the poem became our national anthem in 1931. Many of us know the words of the first stanza because it is the one we regularly hear, but the other three complete the battle as witnessed by Key.

The garrison flag is now on display at the Smithsonian Institution’s National Museum of American History. Sadly, the fate of the storm flag is not known.

As Americans, we have had many inspirational documents, events, and leaders to excite our patriotic spirit: the Declaration of Independence, the Gettysburg Address, and Thomas Jefferson just to name a few. An inspired person is a stronger person. An inspired association is a powerful association. An inspired association of lawyers is battle weapon for freedom and justice. TCDLA is that weapon! Together, we police the police. Together, we are the check and the balance on the conscious of the our country. Together, we are guardians of our Bill of Rights! That said, I have been inspired by so many of you. Ours is an Association of heroes. It has been my blessing to be your leader during my terms of office. For this, I thank you!

J. Gary Trichter
Your President

Oh, say can you see by the dawn’s early light
What so proudly we hailed at the twilight’s last gleaming?
Whose broad stripes and bright stars thru the perilous fight,
O’er the ramparts we watched were so gallantly streaming?
And the rocket’s red glare, the bombs bursting in air,
Gave proof through the night that our flag was still there.
Oh, say does that star-spangled banner yet wave
O’er the land of the free and the home of the brave?

On the shore, dimly seen through the mists of the deep,
Where the foe’s haughty host in dread silence reposes,
What is that which the breeze, o’er the towering steep,
As it fitfully blows, half conceals, half discloses?
Now it catches the gleam of the morning’s first beam,
In full glory reflected now shines in the stream:
’Tis the star-spangled banner! Oh long may it wave
O’er the land of the free and the home of the brave!

And where is that band who so vauntingly swore
That the havoc of war and the battle’s confusion,
A home and a country should leave us no more!
Their blood has washed out their foul footsteps’ pollution.
No refuge could save the hireling and slave
From the terror of flight, or the gloom of the grave:
And the star-spangled banner in triumph doth wave
O’er the land of the free and the home of the brave!

Oh! thus be it ever, when freemen shall stand
Between their loved home and the war’s desolation!
Blest with victory and peace, may the heav’n rescued land
Praise the Power that hath made and preserved us a nation.
Then conquer we must, when our cause it is just,
And this be our motto: “In God is our trust.”
And the star-spangled banner in triumph shall wave

O’er the land of the free and the home of the brave!

President’s Message: The 58: Being a Board Member Is a Lot More Than Just Showing Up at Meetings! – By J. Gary Trichter

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SCRAPPYISM from the recent Napa seminar: “TCDLA was built on relationships between friends who were also fine lawyers. Those relationships were forged by those who understood that it was the time together that was the most important component in building a strong association. Indeed, time together after the seminar was just as important as time spent in the seminar—maybe more important in the grand scheme of things! Time spent on trips together transcended those fine lawyers into brothers and sisters.”

As per bylaw Article VII, Sec. 1, (a) the board of directors has the responsibility “to manage the business and affairs” of our Association. Our board consists “of the elected officers of the Association, the past presidents of the Association, the editor of the Voice for the Defense, forty-two (42) directors, and sixteen (16) associate directors. Each past president of the Association is a member of the Board of Directors. . . .” Past presidents, the editor of the Voice, and officers aside, the remaining board is made up of the 42 board members and 16 associate members (the 58). Any officer or director, as per Sec. 6 of Article VII, can be removed for failure to attend two consecutive meetings.

The above brings into question: “What exactly is the 58’s responsibility beyond that of showing up for at least two consecutive meetings absent a good-cause excuse”? “Yes,” it is taken for granted that the responsibility includes “to manage the business and affairs” of our Association, but that raises a second question: “How?”

As your president, I assure you that it is not my intention to ruffle anyone’s feathers with my remarks herein. Rather, my purpose is to invite the 58 to further participation by trying to better define a director’s role. I also offer this column to those who aspire to serve on the board as a means by which they will know what responsibilities they are committing themselves to in being an elected or appointed board member. And so, I offer the following for your consideration. In my mind, I believe being a board member:

1.  is having an ongoing positive attitude, commitment, and desire to be involved in the business and affairs of TCDLA, and to be informed as to what that business is and what those affairs are;

2.  is reviewing online minutes of the last board meeting prior to attending the next meeting;

3.  is reviewing the online board agenda and being ready to discuss those topics before the next meeting;

4.  is writing and submitting a quality article for publication consideration in the Voice;

5.  is volunteering to speak at our TCDLA/CDLP seminars;

6.  is volunteering to be a course director for our TCDLA/CDLP seminars;

7.  is attending and supporting TCDLA /CDLP seminars (of course, only if time and finances permit);

8.  is volunteering to participate on committees and actually contribute in a meaningful way to them;

9.  is supporting your officers and executive committee and getting to know them better;

10.  is supporting your Voice editors (Greg Westfall and Jani Maselli, and SDR editors Kathleen Nacozy, Tim Crooks, and Chris Cheatham) and getting to know them better;

11.  is supporting our senior lobbyist Allen Place and lobbyists Kristin Etter and David Gonzalez and getting to know them better;

12.  is representing our members in your district and trying to help them or in alerting the home office or strike force of their need to get involved;

13.  is interacting with and supporting our TCDLA affiliate or­ganizations;

14.  is taking time to think about ideas that, if implemented, may improve our Association and submitting those ideas to your executive committee and/or home staff. It is also understanding that your officers and staff do think that your ideas are important even though they might not be adopted;

15.  is soliciting non-member lawyers to join our Association;

16.  is participating not only on our board listserve, but also on our membership listserve. Offering online help to our membership is an easy way to serve them;

17.  is reading, reviewing, and responding to information sent you by the home office—i.e., surveys and informed voting requests;

18.  is having a working knowledge of our bylaws;

19.  is supporting TCDLEI in its mission to help TCDLA;

20.  is being a credit to TCDLA and a leader in the criminal jus­tice system;

21.  is making FRIENDS within TCDLA and helping our Association to be a strong voice for freedom and liberty; and,

22. is remembering the Texas Criminal Trial College motto, “Friends don’t let friends try their case alone”—and trying to be available if asked for help.

Of course, the above is not an all-inclusive list of a director’s responsibilities but only a sampling. Some of you may be wondering why your president dedicated his column to this topic, and that would be a fair question. Part of the answer lies in recently requested board evaluation of our executive director. In this regard, recall that every two years the board is requested to complete a questionnaire that asks how our executive director and staff have been doing their jobs. Here, it is noteworthy that even though the evaluations received were a near unanimous vote of glowing confidence in our executive director and our staff, only about a third of the 92-member board responded.

Another part of the answer comes from the fact that our CLE members trip to Napa, California, was not very well supported—even though the trip was outstanding and reasonably priced. Those who did attend rated the CLE and activities exceedingly high, had fun with old and new friends, and learned a lot about the practice of law.

Another part of the answer comes from the fact that even though every board member received three free TCDLA memberships to give out, we did not get new members from each board member. The answer also comes from the fact that the Voice has not received articles from a majority of the board. Of course, the reasons could go on and on, but they are not necessary as the point has been made.

Accordingly, I ask you 58, as well as those of you who want to join their honorable ranks, to compare the suggested responsibilities above to the contributions you have made. If in doing so, you conclude you have done a pretty good job, then I thank you on behalf of our membership. If, however, that is not the case, then I ask you to consider the immortal words of the late President of the United States, John F. Kennedy: “Ask not what your country can do for you. Ask what you can do for your country?”

For the 58, your country is TCDLA and it needs your commitment, participation, and loyalty to remain productive and strong! As your president, I not only pledge my commitment to you and the membership to do our best to make TCDLA productive and strong, but also that your officers, executive director, and staff also make that same pledge! In closing, remember that the business and affairs of your Association are a constant, and that they are YOUR business and affairs. Let’s help each other better serve one another. Be involved, get involved, stay involved!

J. Gary Trichter
Your President and proud to serve you

President’s Message: TCDLA Is There for Us All – By J. Gary Trichter

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We criminal defense lawyers are citizen soldiers who have been sworn to uphold the Constitutions of Texas and the United States. Our oath and duty demand that we render both ethical and professional assistance of counsel. It is not enough that we provide competent help, but rather, we must provide effective help. Further, it is not enough that we provide effective assistance of counsel in most of our cases because our oath promise compels us to be effective in every case—no exceptions!

My 31 years of defense work have taught me that effectiveness only comes from putting in the necessary hours to learn the facts, law, science, and skills before you go to an evidentiary hearing or trial. In cowboy vernacular, it takes a lot of wet blankets if you want to ride a horse right!

Recently, at one of our seminars, I observed that many defenders there were unaware of the applicable DWI law and science relating to breath and blood testing cases. Indeed, it appeared that important and basic subjects—such as the DPS “Standard Operating Guidelines for Technical Supervisors” ( revised 4/18/2011); the repeal of Section 221.9, Texas Administrative Code (7/14/2011, relating to proficiency certification for Standardized Field Sobriety Testing) ; the scientific meaning of the phrase “uncertainty of measurement” (see Voice for the Defense, 5/2011); and ISO 17025 ( International Organization for Standardization guidelines/rules relating to general Requirements for the Competence of testing and calibration laboratories)—were not known). Also, it was noted that many were not up to speed on devices regularly used in blood testing prosecutions such as a pipette, an auto diluter, and the gas chromatograph. Understanding and acknowledging their deficiencies, these defenders rallied to gain the necessary education to make them effective—they made me proud of their thirst for knowledge and their desire to ride right.

Every time a defense lawyer enters a courtroom, that defender engages in a battle for justice not just for that particular client, but also for all defendants everywhere. Of import is the fact that there can be no promise of justice absent the defense lawyer. Our forefathers understood that having only a judge and prosecutor were insufficient measures to ensure fundamental freedom. Indeed, it was recognition of this truth that the guarantee of assistance of counsel was affirmatively written into the Sixth Amendment as a reserved freedom.

That said, every time a defense lawyer enters a courtroom, that defender must carry the responsibility and resolve that the sacrifices made by our military in protecting our freedom and liberty were not made in vain. We constitutional defense warriors have the privilege and honor to carry on their unfinished business of protecting rights and to dedicate our work to those brave service heroes who gave their all that we might remain a free people. We must have the same courage on our battlefields as they had in theirs if we are to hold true to our mission and oath.

We cannot accomplish this goal without first obtaining the necessary educational ammunition. Enter TCDLA! Your Association is a force and tool for freedom. It is your force and your tool! As an Association, it benefits each of you by multiplying your voice by more than three thousand times. As an Association, we promise each other that we need not stand alone, just as we promise our clients that they need not stand alone. As a tool, TCDLA is there to make available the very best legal education for you. Part of your duty is to seize upon that educational opportunity and to support TCDLA as it supports you.

There is a great task remaining before us, and its completion requires an ongoing alliance between each of us and our Association. That task is to promote and defend fundamental notions of fairness and justice. And so, let us strive together to remind the judges, prosecutors, and, most importantly, the citizens that ours is and must be a government of the people, by the people, and for the people! In Proverbs 18:21, NIV, it is written that “[t]he tongue has the power of life and death. . . .” We must be that tongue, that voice, that spirit of freedom and loudly declare that we, individually and collectively, will not falter in our duty! I am blessed to be amongst you!

J. Gary Trichter
Your President

President’s Message: Seminars Do Not Grow on Trees – By J. Gary Trichter

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The days of being a generalist in criminal law are long gone. Today, to be effective and professional, the criminal defense practitioner must at least know immigration law, many aspects of forensic science and appellate law. Keeping up with case and statutory law, we lawyers have a never ending ethical duty to stay current. Enter TCDLA!

Your Association’s primary duties have been and are to make it easier for you to not only keep up with the law, but also to improve trial skills and techniques. By the end of 2011, TCDLA and CDLP will have put on 46 seminars, totaling 63,119 CLE hours, having taught approximately 5,756 lawyers. Indeed, our Association is the third-busiest CLE provider in Texas with only the State Bar (#1) and the University of Texas (#2) doing more. It is my belief that we are the number one provider in criminal law.

The time and effort the home staff, your brother and sister VOLUNTEER course directors and speakers put in to making our seminars successes is, in terms of dollars, invaluable. Think of the many and varied CLE programs that have been available to you. Our CLE ranges from Capital Murder, to voir dire, to trial skills, to DWI, to forensics, to federal law, to immigration, to eyewitness identification, to innocence, to appellate law, etc.? For me, as a DWI specialist, I have to keep up on physics, spectrometry, chromatography, physiology, anatomy, optomology, nuerology, pharmacology, toxicology, chemistry, biology, and statistics. I also need to have a thorough knowledge of Doppler Radar and Lidar, breath testing devices, and the gas chromatograph. Fortunately, our Association provides our DWI practitioners all of the above practice areas in very cost-effective seminars at numerous convenient locations. Equal quality convenient seminars are available to our other criminal law disciplines, too.

Our seminar aim is to identify needed and new educational topics and then to bring them to you. We also strive to do this in our Voice, both in the magazine and online. Your TCDLA is always looking for motivated VOLUNTEERS to help us help you. That said, if you have a desire to present on a topic at one of our seminars , then I invite you to contact Joseph Martinez, our executive director, and tell him of your interest. He will put you in touch with one of our course directors for you to further explore your interest. Further, if you have an interest in writing an article, a column, or a blog for the Voice, then I encourage you to contact our editor, Greg Westfall.

As your president, I ask you to consider being more involved in TCDLA—after all, it is YOUR ASSOCIATION. Consider speaking or writing for us. On the flip side, I ask that you make a special effort to thank and appreciate YOUR VOLUNTEER course directors, speakers, and writers for their past and continuing contributions and generosity. On the topic of recognizing good work and VOLUNTEERS, our SDR editors, Kathleen Nacozy, Tim Crooks, and Chris Cheatham, also need to be thanked for their regular case updates. Note, too, their user-friendly change (or soon to be changed) SDR format.

In closing, please remember that our seminars do not grow on trees. Absent our highly professional home staff and the generosity of your brother and sister VOLUNTEERS, your TCDLA cannot continue to provide you with the quality products you need. And so, take a minute to say “thank you!” They will appreciate more than you know.

J. Gary Trichter
Your President

President’s Message: Our TCDLA Minutemen and Minutewomen – By J. Gary Trichter

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It was on April 19, 1775, at places called Lexington and Concord, a shot was heard around the world that changed it forever. It was then and there that ordinary citizens, but not so ordinary men, chose to openly defy an unjust government by standing in defense of others. Having been forewarned by Paul Revere and Billy Dawes of the British Army’s plan to seize their arms and munitions, select members of the colonial partisan militia immediately responded as a strike force to stop the Red Coat advance. These patriots, who were both highly mobile and quick to deploy, were the “minutemen.”

TCDLA has its minutemen and minutewomen, too. They are our volunteer Strike Force, and just like the colonial minutemen, they have and will unselfishly interrupt their personal lives and promptly come to the aid of a TCDLA member in just need. Your TCDLA Force members have pre-committed to respond to an unjust threat to any of our membership.

Recently, our minutemen and minutewomen responded to requests for help against government threats to members in Beaumont and San Antonio. Our Strike Force leader, Mike Heiskell, authorized Houston committee members Joanne Musick and Robb Fickman to make Amicus appearances in Beaumont Municipal Court, where prosecutors were wrongly demanding contempt sanctions against one of our own. Joanne and Robb rearranged their schedules so they could be present at the scheduled contempt hearing. Being great lawyers, they spent many hours doing legal and factual research and in writing a brief in opposition to the government’s position. In the end, our Beaumont member’s request to have TCDLA stand with him was not only answered “yes”; but also the Strike Force carried the day as the court denied the government’s request for sanctions.

The San Antonio Strike Force matter was a more serious abuse of governmental power. There, the district attorney’s office offended both justice and our member. The short story is that the State executed a search warrant for records in a white-collar prosecution and seized boxes and boxes of documents. It also left and/or abandoned boxes and boxes of records deemed of no value to the prosecution. Our member retained the discarded records and very effectively utilized them in cross-examination of the government’s witnesses during the jury trial. Indeed, so effective was the impeachment that the prosecutors there asked the trial judge to order defense counsel to give them the records—that court denied the request. Not dismayed, the State then presented a disingenuous search warrant affidavit to another judge and received authorization to seize our lawyer’s trial file. The affiant alleged our member was a co-conspirator in the very case being tried, and was not forthcoming about the trial court judge’s previous denial of their records request. Shockingly, the State executed the warrant during the jury trial and took our member’s file.

Again, a request for Strike Force assistance was made and granted. This time your minutewomen was Cynthia Orr, another great lawyer and past president of both TCDLA and NACDL. She immediately began her factual and legal investigation and put together an outstanding Amicus brief. Along with legendary Gerry Goldstein, also past president of TCDLA and NACDL and who was Amicus for NACDL, Cynthia assembled a dream team of defense experts (past president of the National District Attorney’s Association, law professor, nationally noted lawyers). Another of our members, Michael Gross, was there as Amicus for the San Antonio Criminal Defense Lawyers Association (SACDLA). Interestingly, the motion for mistrial/new trial hearing was not a short one but went on for days. Indeed, it was continued and not yet scheduled when this article needed to be sent in to our editor for publication. That said, having watched part of the hearing and knowing the sand that these minutemen and minutewoman have, I predict that the great wrong done by the government will be corrected.

And so, our Strike Force members, like the original colonial minutemen, are real life HEROES! They are our HEROES! They have already volunteered to be ready in a minute to stop their work to help you! Do you know who they all are? Take a minute to look them up in the Voice or on line so you can thank them for their generosity and dedication to you—and to justice. Let them know you appreciate them! Remember, our STRIKE FORCE means you will never have to stand alone!

J. Gary Trichter
Your President

President’s Message: Being a Defense Lawyer: Taking the Constitutional High Road—Winning Is Not Everything – By J. Gary Trichter

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“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

With these words, John Adams, Dr. Benjamin Franklin, Roger Livingston, Roger Sherman, Robert R. Livingston, and Thomas Jefferson set the stage in our Declaration of Independence for the Bill of Rights and our job as criminal defense lawyers. Two of those inalienable Rights, and maybe the two most important in the Bill of Rights, are the Sixth Amendment’s rights to “an impartial jury . . . and to have the Assistance of Counsel for his defense.” Of the two, it is the right to counsel that is arguably the most important because it is that one which protects all of the others.

The role of defense counsel was best summed up in Justice White’s concurring opinion, joined by Justices Harlan and Stewart, in the landmark 1967 case of United States v. Wade. There, the concurring Justices said:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe, but more often than not, defense counsel will cross examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which, in many instances, has little, if any, relation to the search for the truth.

Interestingly and importantly, the defense lawyer has no ethical obligation to win the client’s case. Absent having an innocent client, the good, or even great, defense lawyer knows not to put winning the case as the exclusive priority. Rather, the lawyer’s ethical and constitutional focus must be on protecting the client’s right to a fair trial. Like it is said in sports, it’s not whether you win or lose, but how you play the game. For the defense lawyer, it must not be all about winning, but how the justice system played—was the trial fair?

My 31 years as a criminal defense lawyer have taught me that far too many prosecutors and defense lawyers (and judges) unthinkingly get caught up in the competiveness of our adversary system. Sadly, they are of the wrong mindset: “It is all about the win.” Such thinking does a grave disservice to our justice system and to lawyers and judges who perpetuate it because the mindset ought to be “it is all about system working correctly and being fair.”

With an innocent client, it is morally just and expected that the defense lawyer would want the client to be exonerated. With the guilty client, however, is it right to have the same want? There is no black-and-white answer to this question for all situations or clients. For example, in some circumstances, a conviction’s label, punishment and/or collateral consequences can yield too great an injustice for it to be just. In other circumstances, the client may already be truly repentant and rehabilitated so that justice does not require a conviction. But yet, in other circumstances, where a client is actually guilty and then found guilty, if there was a fair trial, defense counsel ought to be satisfied and proud that justice was done. In this last example, if the trial was fair, then both the criminal justice system and defense counsel win. Indeed, when this happens, society and America wins. Clearly, there is no glory in freeing the guilty but there is great honor in standing up and defending that person’s right to a fair trial.

I am a diehard history buff. Our American History has been and is important to me. In my view, the 2.5 million U.S. Soldiers who died or were wounded protecting our country since its birth ought to have an everlasting value that can and should be related to what we do. I believe these honored military men and women have consecrated our rights with their blood, making those rights sacred and in need of unceasing protection. Being a good defense lawyer is hard and demanding work. It takes a special vision, a lot of courage, and heightened constitutional understanding to properly do our job. The responsibility of protecting the rights of another is awesome. Without a doubt, done right and for the right reasons, being a defense lawyer is a most honorable profession. Like the soldier, our mission is pure and patriotic when we battle for others, and not for ourselves.

And so, I say to you as your president that your fundamental duty is not to the truth, nor is to win a “not guilty” for your client, but rather, it is to police the government to make sure constitutional rights are honored, respected, and protected – as much for the guilty as for the innocent. I am proud to be part of this Association because the members of this group are the true spirit and champions of fairness and justice. Absent you constitutional fighters, there would be no constitution! Thank you for your courage and patriotism.

—J. Gary Trichter
Your TCDLA President

President’s Message: What’s It Like to Be the TCDLA President? – By J. Gary Trichter

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I am the 41st President of TCDLA. As your president, I have both an awesome responsibility and a great honor. The presidential responsibility I speak of is not only to the membership, but also to the presidents that preceded me.

Like me, all the previous presidents have been volunteers. Like me, all previous presidents have had a desire to leave the Association at the end of their term in a better position than they found it. Notwithstanding, the work of the president today is far more time consuming, and different, then it was 40, 30, 20, 10, or 5 years ago. We are now an Association of near 3200 members and have a full-time home staff of 10.

Being president, it is not uncommon for me to spend 15–20 hours per week on TCDLA business. Every day there are emails, letters, and phone calls to receive and to make. Frequent interaction with Joseph Martinez, our Executive Director, and Melissa Schank, our Assistant Executive Director, is also challenging. Topics range from staffing issues, various committee matters, CDLP, NACDL, NCDD, other affiliates, multiple TCDLA seminar topics, numerous budgets, tax documents, grant administration, judicial complaints, the Voice, TCDLEI, strike force help requests, and the weekly fire or two that we did not see coming.

Moreover, in addition to the working with our staff, I regularly speak with State Bar President-Elect Buck Files on State Bar matters, with the Honorable Judge Barbara Hervey of the Texas Court of Criminal Appeals (or with her staff) on grant issues, and with your other officers, the Executive Committee (all volunteers), and numerous committee representatives (all volunteers).

Here, as an aside, I want to note that your officers today are much more proactive than those of the past. Specifically, each officer actually shares in the volunteer workload of running this Association. For example, all serve on the other committees and all have accepted delegated responsibility from me. Your President-Elect, Lydia Clay-Jackson, is in the loop in almost every decision I make. This is a teaching process that Stan Schneider initiated with Bill Harris and that Bill carried on with me. Bobby Mims, our 1st Vice President, has been very active with grant matters and affiliates. Emmett Harris, 2nd Vice President, and Sam Bassett, Treasurer, have been working on budget reviews, and John Convery, on corresponding and going green.

And so, having a real-life everyday appreciation of the work, effort, and time it takes to be your president, I ask you to remember the 40 trailblazers that preceded me, your other officers, committee chairs, and seminar course directors, and to honor them. Please join me in thanking them for their great personal sacrifice and for their devotion to TCDLA. Absent their efforts, TCDLA would not be the best state criminal defense bar or association in the country. That said, I thank you for your trust and confidence in allowing me to be your president. I will do my best and always “cowboy up” for you!

—J. Gary Trichter
Your President