Mark Ryan Thiessen

Mark Thiessen is a criminal trial lawyer and the Chairman/CEO of the Thiessen Law Firm in Houston, Texas. Mark is Board Certified in (1) Criminal Law by the Texas Board of Legal Specialization; (2) DUI Law by the DUI Defense Lawyers Association; and (3) DUI Defense Law by the National College for DUI Defense through the American Bar Association. Mark earned the American Chemical Society-Chemistry and the Law (ACS-CHAL) Forensic Lawyer-Scientist designation, which is the highest form of scientific recognition available for lawyers. Mark is a frequent legal seminar lecturer, author of numerous published legal articles, and a faculty member for various organizations. Mark is the current DWI Committee co-chair and on the Board of Directors for Texas Criminal Defense Lawyers Association (TCDLA), President and on the Board of Directors for Harris County Criminal Lawyers Association (HCCLA) and a Charter Member and Director for DUI Defense Lawyers Association (DUIDLA). Mark is a 7 time Texas Super Lawyer and in the Top 100 Super Lawyers in Houston (2017-19). In 2019, Mark was the only DWI lawyer to be named to the Top 100 Super Lawyers in all of Texas. Mark has won DWI cases from total refusals up to quadruple intoxication manslaughter. and 832-654-3058.

Cold Texting: The New Wave of Barratry

Recently, Harris County and other counties around that state have increased Personal Recognizance bonds. This bond paperwork then becomes public record. In this paperwork, people are requested to list their cell phone numbers, and some marketing companies and lawyers have started using this information to solicit new clients via text messages.

Rapidly evolving technology coupled with aggressive marketing tactics have created a new minefield for the uninformed lawyer. It’s been well settled that attorneys are not allowed to “cold call” potential new clients, whether it be for personal injury actions, criminal cases, or other legal work.  Often referred to as “ambulance chasing,” which has been rampant in the personal injury world for years, we are faced with a new similar threat in the criminal world. Welcome to the world of cold calling or cold texting clients on their cell based off public information received from the district clerk or bond documents. 

Unsolicited Text Messages Can Be Illegal

Texas Penal Code § 38.12(a) makes it a third-degree felony “if, with the intent to obtain an economic benefit the person…solicits employment, either in person or by telephone, for himself or another.” It is also a third-degree felony if a person “knowingly finances” or “invests funds the person believes are intended to further the commission” of act of barratry. Tex. Pen. Code § 38.12(b)(1-2). The Penal Code further prohibits a lawyer from knowingly accepting “employment within the scope of the person’s license … that results from the solicitation of employment in violation of [the barratry statute].” Tex. Pen. Code § 38.12(b)(3).1

A person convicted of barratry faces severe penalties from the State Bar because a “[f]inal conviction of felony barratry is a serious crime for all purposes and acts, specifically including the State Bar Rules and the Texas Rules of Disciplinary Procedure.” Tex. Pen. Code § 38.12(i). 

Depending on the facts surrounding the particular situation, a creative and aggressive prosecutor could even try to throw in a Money Laundering charge (Tex. Pen. Code § 34.01) for the amount of the fee that the client paid the lawyer who committed barratry.

The Texas Disciplinary Rules of Professional Conduct Frown Upon Unsolicited Text Messages

The Texas Disciplinary Rules of Professional Conduct recognize that “[i]n many situations, in-person, telephone, or other prohibited electronic solicitations by lawyers involve well-known opportunities for abuse of prospective clients.” Tex. Disc. R. of Prof. Cond. 7.03, com. 1. The “principal concerns presented by such contacts are that they can overbear the prospective client’s will, lead to hasty and ill-advised decisions concerning choice of counsel, and be very difficult to police.” Id.

Texas Disciplinary Rule of Professional Conduct 7.03(a) says that a “lawyer shall not by in-person contact, or by regulated telephone contact or other electronic contact…seek professional employment concerning a matter arising out of a particular occurrence or event…from a prospective client or nonclient who has not sought the lawyer’s advice regarding employment…” 

This same rule defines “regulated telephone contact” as “any electronic communication initiated by a lawyer or by any person acting on behalf of the lawyer…that will result in the person contacted communicating in a live, interactive manner with any other person by telephone or other electronic means.” Tex. Disc. R. of Prof. Cond. 7.03(f). Clearly, text messages fall under this definition.

Follow State Bar Rules for Advertisements

From the outset, when in doubt, follow the requirements of the State Bar of Texas Advertising Review Committee.  Submit your advertisement or plan of attack to the Bar and ask for permission.  Note: the Bar will never give a lawyer clearance over the phone. All advertisements must be submitted in writing, and if approved, will be approved by letter with a green stamp on it. Failure to have this written approval subjects the lawyer to defending their marketing tactic before the Bar. Rule of thumb if you have a “clever” new marketing idea: get it formally approved. Texas Disciplinary Rule of Professional Conduct 7.07 lays out the requirements for submitting your marketing idea to the State Bar for approval.

The State Bar has set very specific rules regarding unsolicited direct mail outs. See Tex. Disc. R. of Prof. Cond. 7.05. The font, color, and material must all be pre-approved by the State Bar. This is widely known and has been the case for over 20 years. However, with evolving technology, one could hypothetically reach potential clients faster than mail, by text, or direct phone call. The same rule that governs mail outs also governs electronic or digital solicitations. Id.

We are aware of only a single lawyer who received an approval letter from the State Bar of Texas Advertising Review Committee for the use of sending a text message to potential clients. It is important to note, however, that this opinion expressly stated that “[i]t does not address any unauthorized practice of law or ethics issues that may be present, which are beyond the scope of an advertising opinion.” Therefore, even if you get an approval from the State Bar of Texas Advertising Review Committee, you still face potential ethics issues, as discussed above, and liability issues, which are discussed in more detail below.

It should also be noted that the text message that received this approval stated “*ADVERTISEMENT*” in all capital letters at the top of the message and ended with “PLS DO NOT REPLY TO THIS MESSAGE. REPLIES ARE NOT RECEIVED NOR [sic] RETURNED.” Also, this text message only asks the recipient to call the number listed if the recipient did not already have an attorney. The fact that this was an automated message that lacked the ability for the lawyer to directly start a conversation with the potential client could have been an important factor that distinguishes this kind of message from interactive direct texting.

Be Careful with Lawyer Referral Services

Both the Texas Penal Code and the Texas Disciplinary Rules of Professional Conduct make it clear that a lawyer can get in trouble if that lawyer knowingly uses a lawyer referral service that breaks the rules. These services are regulated by the Texas Occupations Code, which defines a “lawyer referral service” as “a person or the service provided by the person that refers potential clients to lawyers regardless of whether the person uses the term ‘referral service’ to describe the service provided.” Tex. Occ. Code. § 952.003(1).

Many of the people operating lawyer referral services do not realize that a “person may not operate a lawyer referral service in this state unless the person holds a certificate issued” under the Occupations Code. Tex. Occ. Code § 952.101. Also, applicants for these certificates must be operated by a governmental entity, or a nonprofit entity. Tex. Occ. Code § 952.102. 

So, be weary when your email box gets flooded with various lawyer referral services trying to get you to pay them for client referrals. Many of these businesses are not operating legally. If your marketing company directly texts potential clients on your behalf, you are the one who faces the legal consequences.

Unsolicited Text Messages Seeking Clients is Illegal and Subjects the Sender to Civil Liability

There are several civil penalties that exist for directly soliciting clients via text message. Tex. Gov’t Code § 82.0651, for example, creates an aggressive civil penalty for barratry where the offending party must forfeit their attorney’s fees, pay a $10,000 fine, and pay the attorney’s fees of the party bringing an action.

Additionally, the Telephone Consumer protection Agency (TCPA) and Federal Communications Commission (FCC) regulations make it illegal for a company to send a text message unless the person receiving the text message gave consent to receive it, or if the message was sent for emergency purposes. While we all agree that getting new business is important, it falls well short of being an “emergency” under these regulations.

The bottom line is that any lawyer who directly or through a third party sends unsolicited text messages to people charged with a crime to solicit that person’s business risks significant criminal and civil liability. Lawyers should not cold call any number. The first contact, whether directly or through a legitimate lawyer referral service, needs to come from the potential client.

Duty to Report

As attorneys we have an affirmative ethical duty to report barratry. Tex. Disc. R. of Prof. Cond. 8.03.

However, if a text message mimics the requirements established in the Rules, would it be ethical? As of the date of this writing, we have found no ethics opinion or court opinion that authorizes such conduct. Any lawyer who wishes to engage in this unscrupulous tactic should first seek State Bar Advertising Review Committee approval, but even that will not necessarily shield you from ethical consequences or civil or criminal liability. 

While no lawyer wishes to “snitch” on a fellow lawyer, this affects us all and cheapens our profession. If we do not take action against this conduct, then we risk having a criminal bar that goes the way of the personal injury bar – where significant numbers of cases are illegally “run” by the criminal law version of the ambulance chaser in a cheap suit. This illegal and unethical conduct makes all of us look bad in a world where people already have a hard time trusting lawyers. 

Some might suggest that an unsolicited text message is no different from mailouts, which have been approved and have been happening for years. Unsolicited texts messages are distinguished from mailouts for several reasons:

  1. Direct mailouts don’t cost the client anything. The United States Postal Service is a free service for receivers unlike cell phone or even landlines. Many subscribers must pay for call minutes or data used for texting. Many calls or texts are not free to a potential new client. Some clients work extremely hard just to pay to keep their phone on; imagine if that client was then inundated with hundreds of unsolicited calls or texts from lawyers. The fees would become an extreme hardship and they should not have to pay them just because their information was placed on a bond or cross referenced via public data.
  2. As stated above, lawyer marketing must be submitted to the State Bar for approval. If the marketing is approved, the State Bar will then send you a letter with its verification. This is a crucial step that must be taken by any lawyer who wishes to tread in these ethically murky waters.
  3. A person’s cell phone is a greater invasion of privacy than a land line. In the past, municipalities provided phone books which gave specific addresses or names for landline numbers. Cell phone numbers are not freely given for a good reason. Cell phones are also no longer publicly attached to an address. Spam calling, and telemarketing are all allowed to be blocked for the protection of privacy. Attorneys should not be allowed to circumvent this privacy in the hopes of gaining a new client.
  4. There is a delay with mailouts that provides a “cooling off” period for the potential client to avoid making a “hasty and ill-advised decision.” See Tex. Disc. R. of Prof. Cond. 7.03, comm. 1. An unsolicited text message can reach a prospective client literally the minute after they get out of jail when that client is particularly vulnerable.
  5. Citizens are used to junk mail. While it is not unusual to get many pieces of junk mail in your mailbox, it is not as common to get direct calls or text messages. These texts or calls are personal and come with more physical, psychological, and legal pressure than direct mail outs. Calling or texting prospective clients the moment they are released from jail on potentially the most life-changing day of their lives creates alarmism that could cause that person to make rash decisions.  Indeed, the Texas Penal Code creates a 30 day “no solicitation” period for personal injury or wrongful death cases. See Tex. Penal Code § 38.12(d)(2)(A). Shouldn’t people accused of crimes, with all the safeguards afforded by the constitution, be entitled to the same grace period?

No one likes to snitch on friends. However, the practice of unsolicited text messaging is unethical and illegal unless specifically allowed by the State Bar. This article is not intended to encourage grievances, prosecution, or civil lawsuits; rather, it is intended to educate those attorneys who think they or the company they hired found a cutting age way to market for new clients. Technology may be evolving, but the basics of law remain the same. Remember, pigs get fat, hogs get slaughtered. If you have a new way to market, get it approved. The State Bar will not tell your competitors, but this approval will vindicate you when your competitors take offense.

How to Fix a Blood Warrant Scandal

If you haven’t seen the Netflix docuseries How to Fix a Drug Scandal, stop what you are doing.  Go invest four hours of your life.  Prepare to be blown away.  Director, Erin Lee Carr, explores how far government employees (attorneys, judges, and lab personnel) are willing to go to prevent mass decriminalization.  While the cases in the docuseries involved two drug lab analysts compromising drug testing in Massachusetts, a similar battle is raging in Texas involving blood labs and the way blood warrants are written.  Since the Court of Criminal Appeals landmark decision in Martinez, which declared that the seizure of one’s blood and the subsequent testing of one’s blood are two distinct searches under the Fourth Amendment, various Courts of Appeal are trying to distinguish the language to avoid suppressing blood results in Driving While Intoxicated (DWI) related cases and accidents.  The fix is in, and courts seem more concerned with protecting convictions than following the law.  Until our courts force the government to follow basic Fourth Amendment Law, the fix may be in, but the problem remains.

Massachusetts’ Scandal

In 2013, Massachusetts State Police arrested 35-year old Amherst crime lab chemist, Sonja Farak, for tampering with evidence: and that was only the beginning.1  Over time and once Farak had been given immunity, details emerged that Farak had been in fact using the drugs that she was tasked with testing—for nearly a decade.  The scope of Farak’s addiction and the number of people convicted as a result of her drug testing came to light despite repeated efforts to hide the scope of Farak’s wrongdoing.2  The docuseries How to Fix a Drug Scandal examines the lengths to which some actors in the criminal justice system will go to protect convictions, cover up a scandal, and affect 35,000 lives in the process.

Farak was not the only one.  Just six months before Farak’s arrest, another Massachusetts lab chemist, Annie Dookhan, was caught dry labbing her results.3  Dry labbing is simply plucking a result out of thin air and reporting it—without ever testing a sample.  Dookhan’s work affected thousands of cases.  Whereas Farak was literally high for most of her Amherst lab career, she actually tested the samples.  Dookhan, on the other hand, lied about testing every sample.4

Together, Farak and Dookhan were responsible for compromising over 35,000 drug cases which helped land thousands of people in prison.5

But in April 2017, 21,587 cases were dismissed because of Dookhan’s involvement, according to Bustle.6  In 2019, the Boston Globe reported that over 24,000 charges from around 16,000 cases were dismissed due to Farak’s involvement.7

Texas’ Growing Scandal

When analyzing the atrocities that occurred in Massachusetts and the nature of the scandal, one realizes the limitless potential for abuse by lab employees with little or no oversight.8  It starts with the police who are tasked with getting crime off the streets.  Any evidence collected should be analyzed and reported by an independent lab.  An independent lab is critical for accurate, reliable and credible results since it is such powerful evidence.  As we know, all labs make mistakes. However, very few labs or analysts will ever admit making mistakes.9  The accused then hires a criminal defense attorney to essentially audit the lab results and ensure that any search and seizure was in accordance with the Constitution.  Ultimately, the trial judge should then act as “Gate Keeper,” refusing evidence when the testing does not clearly and convincingly show reliable, accurate results.

As Massachusetts showed us, the desire to keep convictions and prevent a scandal far outweigh following the law, being open and honest with juries about all of the issues, and requiring proper policy and procedure checks and balances.  When a mistake is made, Judges should encourage dissemination of all faulty evidence and demand corrective action.  But in reality, Massachusetts fought tooth and nail to keep the public at large—and those affected and on trial—in the dark about the evidence at the heart of the scandal.

These lab issues are not unique to Massachusetts.  Already in Texas, private chemist Amanda Culbertson discovered dry labbing (28 of 32 people in a sample batch run) by Texas Department of Public Safety crime lab El Paso analyst Ana Romero.  Culbertson found Romero had essentially copied and pasted the data from one subject to another.  And those electronic data files were “magically erased.”  In two complaints, Culbertson reported her findings to the Texas Forensic Science Commission (TFSC), which investigated the claim.10  The TFSC found evidence Romero may have dry labbed or may just have been negligent for the lab not to have procedural safeguards in place protect against dry labbing.11

The TFSC abandoned the 28 blood tests and enacted preventative measures but never talked to Romero.12  To date, Romero has not been charged or properly investigated and granted immunity to disclose how far her dry labbing goes back to determine how many cases were truly affected over her tenure in the crime laboratory. 

Just like Massachusetts and any science lab run by human beings, Texas has crime lab evidence issues.  The next wave to fix a blood warrant scandal is making its way through the judiciary—fighting the mass suppression of results and failure to demand narrowly drawn warrants and searches of the “informational dimension” of blood evidence.

Judges Fighting Martinez

Martinez requires the government to obtain an additional search warrant to authorize the testing and analysis of blood separate from seizing the blood for medical purposes.13  After a traffic accident, Martinez was taken to the hospital where medical personnel drew his blood for medical purposes.14  Martinez voluntarily left the hospital after informing nurses he could not afford any tests.15  Subsequently, upon the State’s presentation of a grand jury subpoena, the hospital released Martinez’s blood to a Department of Public Safety agent; the State sent the blood to a crime laboratory for testing.16 Martinez moved to suppress the blood test results, and the trial court granted the motion.17  Affirming the trial court, the Court of Criminal Appeals held “there is a Fourth Amendment privacy interest in blood that has already been drawn for medical purposes.”18  Martinez had a subjective expectation of privacy in his blood drawn for medical purposes, and the State’s warrantless testing of the blood “was a Fourth Amendment search separate and apart from the [initial] seizure of the blood by the State.”19  Because no exception to the warrant requirement applied, the State was require to obtain a warrant before testing Martinez’s blood.20

Some trial courts are properly suppressing blood in accordance with the Fourth Amendment and Martinez—finding that a blood warrant was obtained to draw the subject’s blood (seizure), but a subsequent search warrant for the testing and analysis (searching) was never obtained.21  However, various Courts of Appeal are refusing to follow Martinez and are narrowly construing the facts in order to avoid proper suppression.22  In CriderHyland, and Staton, the courts mistakenly relied on the fact that in Martinez the blood was drawn by a hospital for medical purposes.23

How to Prevent a Scandal

It may seem like a rhetorical question, but how can the Judicial Branch (Judges) and the Executive Branch (State attorneys) remain distinct to prevent this growing scandal?  

  1. Seize the Blood Legally

There are really only three ways that the people of Texas can have their blood drawn legally.  The first is by consent.  But consent to a blood draw must be freely and voluntarily given.24   Or they are unconscious and have deemed to consent via Texas’s Implied Consent statute.25  The second way is that a hospital is allowed to draw someone’s blood for medical purposes and not at the direction of the police.  HIPAA governs and protects the person’s privacy.  But the State may then go get a grand jury subpoena and ask for the person’s records or evidence.26  This is what happened in Martinez—the State used a grand jury subpoena for evidence obtained for medical purposes.27  And third, as is custom around Texas, a Judge signs a blood warrant to draw the blood from the person and authorizes a variety of people to help in that extraction. 

The Court of Criminal Appeals already acknowledged there are two distinct triggering events implicating Fourth Amendment protection: 1) the initial extraction of the blood from the arm, and 2) the subsequent search of the “informational dimension” of the blood.28

Various Courts of Appeal are fighting Martinez and using the hospital draw as the distinguishing factor.  However, no one is arguing that a valid blood draw warrant doesn’t grant the police agency authority to properly seize the blood from the arm. Martinez’s blood was drawn in a valid manner just as a valid blood draw warrant would allow.  What’s missing is the subsequent authority or power to violate a person’s Fourth Amendment privacy concerns and conduct a search on the information contained within the blood.

  1. Search the Blood Legally

Blood draws and warrants really began to be the normal policy and procedure around 12 years ago.  Since that time, many counties are able to get blood warrants 24 hours a day, seven days a week.  And somewhere about 7 years ago, the State began drafting form affidavits for blood warrants and form blood warrants for judges or magistrates to sign.  These forms were undoubtedly written to make the State more efficient and reduce the number of mistakes that could invalidate a warrant.  But, importantly, these pre-Martinez form warrants only authorized an extraction of blood—not subsequent testing. 

Remember, if properly drawn in a grey top tube as required by Texas DPS procedure, these tubes should contain a preservative and an anti-coagulant and be properly refrigerated.  Numerous State analysts testify that the blood was properly drawn, stored and available to the defense to retest at any time.  If that’s the case, what is stopping the State from retesting the blood with a proper search warrant?  

  1. No Common-Sense Exception to the Fourth Amendment

The Crider and Staton courts boldly claim “common sense dictates that blood drawn for a specific purpose will be analyzed for that purpose and no other.”29  But a neutral, detached magistrate’s “common sense” reading all depends on what the affiant-officer is qualified to opine about.  Most blood warrant affidavits are signed by an officer who was certified only in Standard Field Sobriety Tests, which are exclusive to determining intoxication by alcohol.  Most of these affidavits only show signs of alcohol intoxication and ultimately opine only alcohol as the intoxicating substance.  And then, the results come back under the legal limit, or it involves a death or serious injury and the State then tests the blood for drugs or medications.

What if the officer is not a Drug Recognition Expert? What qualifications does he possess even to speculate on what substance the person is intoxicated?  And did he conduct an examination?  The magistrate or judge signing the warrant must first determine the scope of the search based on the facts and qualifications of the officer swearing to the information in the affidavit.

While the Courts of Appeals suggest using “common sense” in order to determine what the State of Texas will want to search for, they obviously underestimate the zeal of the State of Texas and overlook the constitutional purpose behind the Fourth Amendment.  

Our current practice violates the most fundamental tenant of Fourth Amendment law—preventing the government from conducting limitless, general searches.30  Presumptions should be in favor of citizens, not the government.  Drafting warrants to cover these situations is nothing new, and courts should not worry about testing other seized evidence: “Because biological evidence is sui generis, this practice need not be replicated under circumstances when the object of the warrant is nonbiological[.]”31  The State can, moreover, streamline the process by drafting a single warrant properly tailored to authorize both drawing and testing.  Professor LaFave’s treatise explains:

When a magistrate is faced with a petition for a search warrant attempting to seize biological evidence (such as blood) from a criminal suspect, the warrant that issues should explicitly incorporate the scope of testing authorized on that sample. To obviate the general warrant problem, such restrictions need to be narrowly tailored in light of the supporting affidavit of probable cause presented.32

The State routinely searches for alcohol, medication, and/or illegal drugs on their own request all without a warrant specifically allowing the search.  The State must be required to rewrite the pre-Martinez warrants to expressly authorize what the blood is to be searched for, using what type of analysis, and for what length of time, just like a warrant to search a house, which contains less sensitive information than a person’s blood.

Easy Fix to Prevent a Scandal

It’s now in the hands of the Court of Criminal Appeals. Some trial courts have followed Martinez by properly suppressing evidence, but various courts have tried to distinguish or interpret the intentions of the Court of Criminal Appeals in Martinez to avoid suppression.  What if the State of Texas just did it right?  The State has been relying on pre-Martinez forms to get what are now insufficient blood warrants.  First, the State should be required to rewrite all the blood warrant forms to accurately reflect Martinez.  This would require specifically stating the blood is to be tested and analyzed, how it will be analyzed, for what substances and within what period of time.  Second, for all current cases with this outdated paperwork, the State needs to go get a new warrant and retest all of their samples.

Yes, Martinez may require more paperwork.  It is not busy work, though.  Justice favors protecting our Constitutional rights more than potentially suppressing blood, reopening cases, and decriminalizing some people.  Massachusetts learned the hard way by trying to cover up a drug lab scandal.  Texas is in the midst of a blood warrant scandal.  The Courts can remain unbiased and detached and not feel any guilt by trying to cover up the State’s outdated paperwork or desire not to back log the crime labs.  Let’s not trample our Fourth Amendment to prevent suppression of illegally searched evidence.  Get the State to do their job and not aid in covering up this injustice.

* The authors would like to thank Dustin Hoffman, Law Clerk at Westfall Sellers and 2020 Texas A&M School of Law J.D. Candidate, for helping write this paper.

Back to Basics: Attack SFSTs, Not the Officer

In the heat of trial, all trial attorneys fight vigorously for their DWI clients. In that fight, it’s understandable that you want to destroy the officer, destroy the Standard Field Sobriety Tests (SFSTs), and vindicate your client. Oftentimes, however, juries end up feeling sorry for the bumbling police officer and will hold it against the client if the attorney berates or embarrasses the officer. This article will explore a trial-tested, proven method that educates a jury on the complexities and meticulous grading system of the SFSTs rather than attacking the officer. Attack the system, not the officer. In the end, if done properly, the jury will empathize with the client. This empathy will assist the jury in finding the client not guilty—without leaving jurors feeling guilty for voting against law enforcement.

The Officer Is a Human Being

We can all agree there are good and bad officers. Just like attorneys. And contrary to popular belief, even “bad” officers are people too. Just because officers may be “bad” or incompetent at their jobs doesn’t mean they are evil. Somewhere, to someone, they are human with all the emotions, positive attributes, negative attributes, good days, bad days, highs and lows that we all enjoy and suffer. Someone out there loves them. They are someone’s family member. Once upon a time, they took an oath to protect and serve the community we live in. Most of the time, they may still be trying to do their best, but their best is sub-par. Remember this—seriously.

You must think like an average juror. How many clients are shocked that the officer “is bold-faced lying” on the stand? We can’t let our daily experiences jade and warp us. Put yourself in the shoes of your family or friends who have minimal police contact. Most respect police and admire their sacrifice. Growing up we were all probably taught to respect and trust the police. And honestly, most of us still do, for the most part. Hell, even criminal defense lawyers introduce their kids to their police friends and teach their kids to respect and honor the police. Most of our jurors were raised the same and probably raise their own kids this way.

Only in roughly the last seven years did police misconduct and abuse of power really start making the news. In the past couple years, the pendulum has swung—giving jurors cause to be wary or even scared of the police in certain situations. The world is slowly recognizing the magnitude of the problem and the catastrophic consequences when police lie, hide or destroy evidence, collude, or make “honest” mistakes.

To conclude this paean to the humanity of police officers, just try your best to remember the jury starts out thinking they are good cops. Being one of the biggest offenders of the scorched-earth cross-examination, we understand the eye rolls. But it’s not about what we know, it’s how we convey it to the jury. In the famous words of Dalton from “Road House”: “Be nice. I want you to be nice, until it’s time not to be nice.”

Standard Field Sobriety Test Hard Truths

The Standard Field Sobriety tests were developed around 1975 when National Highway Traffic and Safety Administration (NHTSA) performed research with South California Research Institute (SCRI) to determine which roadside field sobriety tests were the most accurate.1 SCRI published three reports:

  1. California 1977 (Lab);
  2. California 1981 (Lab and Field); and
  3. Maryland, D.C., V.A., N.C. 1983 (Field).

SCRI originally travelled around the United States with six tests, but narrowed it to the three tests we know today: Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and the One Leg Stand (OLS).

Twenty years later, three validation tests were undertaken between 1995 and 1998:

  1. Colorado 1995;
  2. Florida 1997;
  3. San Diego 1998.2

Many other articles examine the pitfalls and biases of these validation studies. Concocted in the ’70s and validated in the ’90s, these tests are now 40+ years old and haven’t been revalidated in the last 20 years. SFSTs are not a law of physics or science—meaning they are not indisputable. These are simply coordination exercises created by police and “scientists” in the ’70s.3

How the Officer Is Trained to Administer the SFSTs

Before we dive into the actual SFSTs, it’s important to educate the jury on just how this officer was trained and who trained them. Set the stage to illustrate the difference between how they were graded on their SFST proficiency test and how they now grade people on the SFSTs. “Before we get into the tests, can we just explore how you learned to give these tests?” Officers are usually happy to boast about their training. Start by establishing when the officer was first certified to administer the tests. It’s usually in the academy.4

  • And how long was your course (usually 24–40 hours, around a week)?
  • Who trained you (other officers)?
  • When you were trained, did your teacher tell you how to administer the tests and then just grade you on administering them?
  • No, you were provided a textbook— the SFST manual? You still have it? Did you bring it today?

At this point, if not done prior, establish that the NHTSA student SFST manual is a learned treatise under Texas Rules of Evidence 803(18). Rule 803(18) clearly states that a learned treatise may be read into evidence, but not received as an exhibit.

Be ready for the State’s objections when you begin reading from the manual. Many untrained prosecutors will try to prohibit you from reading a document not in evidence or try to admit the manual. “Your honor, I would love to admit this manual, but unfortunately under TRE 803(18) it’s specifically prohibited.” The prosecutor may also object to defense counsel reading it into evidence and not the officer. Nowhere in 803(18) does it say who is allowed to read the learned treatise. And who do you think puts more inflection and importance in reading the necessary language? The defense attorney should read it and is absolutely allowed to—once it’s established as a learned treatise.

  • Officer, you were trained according to the NHTSA student manual? And you agree it’s authoritative on how to administer these tests? BAM! 803(18)

If the officer gets shifty with what year manual, all of the manuals can be found online and you can find most on the TCDLA app. Prior to trial, it helps to establish either with the State or the officer on which edition of the manual they were trained and on whether they accept that it is authoritative. If the officer is really difficult and wants to use his manual, ask for a continuance so the officer can go get his manual—or send the officer a subpoena duces tecum to bring their SFST manual prior to trial. Most judges are very familiar with the NHTSA SFST manual and will not tolerate the officer’s games.

Back to examining their training:

  • When you were trained, you got to practice administering these tests?
  • You were allowed to study the entire week? You were allowed to practice the entire week?
  • You knew at the end of the week you would be tested?
  • You knew that you would be tested on the clues, the definitions, and administration?
  • And you had to get a 70, 75, 80% grade to pass? (Most don’t know the actual passing percentage.)
  • Now when graded, you got credit for the answers you got right?
  • Just like in school and every test you’ve ever taken?
  • On a 100-question multiple-choice test, you miss 6, what’s your grade (94)?
  • That’s because you get credit for every answer you got right?
  • If your kid came home from school, missed six, and had an F written next to that 94, what would you do? (Most say march down to that school. Agree. And welcome the sidebar objection.)

“Officer, I’m Not Here to Bust Your Chops”

Say it 10 times during your cross. Do not attack the officer—attack the tests. “Officer, I know these aren’t your tests. You didn’t design them. You are just following what you were trained to do. So, I’m not busting your chops.” Repeat this over and over. Let the jury know we are not attacking this officer. We are not complaining about the officer. We don’t hate the player; we hate the game.

“But, Officer, if someone admits to drinking or you think they might be intoxicated, you are going to give them these tests in this same standard way.” Start putting the jurors’ minds in the shoes of the client. Many times, I’ve even gestured around the entire courtroom and stated: “So everyone in this entire courtroom, as long as they are not intoxicated, should be able to pass these tests? Judge, reporter, bailiffs, people in the gallery, everyone in this whole courtroom?”

Purposefully leave out the jurors to avoid any potential objection. Some officers may pause because they know there are certain limitations on the SFSTs. “Well, I mean there are certain people that may have difficulty with these tests naturally, right? Those over 65 years old, 50 pounds or more overweight, leg, back, or neck injuries, head injuries or trauma, and lots of other ailments?”

Remind the jury the officer has no medical training and wasn’t trained by any doctors or nurses. Most officers were told to just take the client’s age, weight, or injuries “into consideration” when determining intoxication. Yeah, right! “But again, officer, I’m not here to bust your chops. Let’s examine these tests so that if anyone wanted to try them out, they could know what to look for and how to grade them.” What’s the officer going to say?

Before examining the SFSTs, it’s helpful for the jury to visually understand the tests and clues. Whether you bring an easel and butcher paper, your tablet on the screen, or even a dry-erase board, make sure it’s a large and colorful demonstration. Imagine a CLE with no PowerPoint versus one with colorful displays. Like us, jurors appreciate, learn better from, and remember colorful presentations.

Horizontal Gaze Nystagmus (HGN)

Most jurors have seen some sort of advertisement or illustration of an officer waiving a pen in front of the eyes. Before getting into the HGN, dive a little deeper into their training. Explore their range of knowledge. “Officer, you know there are many different types of nystagmus—88 actually?” It’s unimportant how many types of nystagmus the officer knows, but he will always agree there are many. Only a few are listed in the NHTSA student manual. Most officers have only read about these other types, or maybe seen them on video. Very few have actually seen them in person or done testing and seen these. It’s important to educate the jury that there are so many different ways the eyes can jerk and for a variety of medical, environmental, or natural conditions. Additionally, the jury needs to know who trained the police officer to distinguish the minute jerks of the eye.

  • Now, officer, I’m not busting your chops, but were you trained by an ophthalmologist?
  • Optometrist?
  • Nurse?
  • Person who worked for Lens Crafters?
  • Anyone wearing a white lab coat?
  • The police officer that trained you, he didn’t show you the other types?
  • Have you ever heard of Bruns, latent, pendular, vestibulo ocular, spasmus, or rebound nystagmus?
  • Has anyone showed you the difference between those and horizontal gaze nystagmus?
  • In your manual, you have optokinetic, rotational, post rotational, caloric, and positional alcohol?
  • Have you ever even seen those?
  • And those look just like horizontal gaze, but for non-intoxicated reasons?

Now start demonstrating the HGN main points for the jury to see. Write HGN in black on the top of the pad on your easel. “How far do the eyes have to jerk in order to be counted as a jerk?” Most officers get confused and hesitate. “If we wanted to put a ruler underneath the human eye, the jerk of the eye is millimeters, right? Maybe a centimeter? Maybe 1/32 of an inch? So how far does the NHTSA manual say the eye must jerk in order to be counted as a jerk? How many millimeters?” If the officer continues to hesitate, rescue him: “Sorry, Officer, I’m not busting your chops. There is no definition, right?” Write: No Def. of How Far Jerk (mm).

“How many times does the NHTSA manual say the eye must jerk in order to be counted as a clue of intoxication?” Write: No Def # of Jerks. Some officers may get cheeky and say it just has to be distinct and sustained. Break it down for the officer, gently. “Distinct means you clearly see it. And sustained means it must be continual. And that’s just for the second pass when you are holding it out for at least four seconds. What about in the first clue—lack of smooth pursuit? How many times does it have to jerk when you are just going side to side? And then in the third clue—onset prior to 45 degrees—how many times does it have to jerk before 45 degrees for you to stop your pen before you get to their shoulder?” Most officers will state just once. If they are still being evasive, refer back to the learned treatise NHTSA manual. “Show me in this manual where it says once, twice, three times a lady that it had to jerk?” Even writing this type of evasive answering makes me want to destroy this officer. Repeat to yourself: This officer is human, he is loved by someone, somewhere. Get back to your center. “Officer, I’m not trying to bust your chops, this is not your test, you did not design these tests. Nowhere in this manual did anyone ever state how far or how many times the eyes had to jerk?”

Most prosecutors have already bored the judge and jury to death with the timing of the HGN. Usually the officer has been properly woodshedded by the state and knows the HGN timing. If he doesn’t, or did it grossly wrong on the video, you may want to show the jury the difference between NHTSA standards and how the officer administered it.

But this article suggests a different tactic in attacking the HGN, one that is not based on breaking down the timing. The HGN is not a divided-attention test like the Walk and Turn (WAT) or the One Leg Stand (OLS). The officer will agree. If not, the NHTSA manual defines the WAT and OLS as divided-attention tests. The manual defines HGN as an involuntary jerking of the eyes as they gaze toward the side. Nothing about HGN or Nystagmus says divided attention. Remember to be careful with your words here: “Nystagmus does not measure mental or physical faculties?” No, it doesn’t. Inexperienced officers will try to argue that it does. To combat this, simply illustrate that nystagmus is an “involuntary” jerking and cannot be controlled by our eye muscles, as much as we may want to. And we cannot make our brains, through the neurons, control this involuntary jerking, as much as we want to. Some persistent officers will continue to argue, at which point you may need to distinguish where the loss of mental or physical faculties comes into the WAT and OLS, and how that’s not possible in the HGN. Nowhere in the NHTSA manual does it say loss of mental or physical faculties for HGN. Depending on the remarks in the video, if the officer just will not agree nystagmus doesn’t measure mental or physical, ask them about the client’s performance, like this:

  • He had no problem following your stimulus?
  • You never had to tell him not to move his head?
  • So, he displayed good mental faculties in following your instructions?
  • He displayed good physical faculties in watching your stimulus and not moving his head?

The jury will be turned off and the officer will damage credibility by continuing to argue.

Under your HGN heading, write: Does Not Measure Mental or Physical Faculties. After this amount of cross, the officer has already established a reputation with the jury. Discuss the findings on the HGN. “You found six out of six clues on my client? That’s all of them, maxed out?” Write: 6/6 on the board in the top left in red. We will come back to this at the end of all the SFSTs.5

“There is no way that I can prove you didn’t see those little jerks? Stimulus is 12–15 inches from their face, your face is about another 12–15 inches from your hand. That’s 24–30 inches from his eye, at night, looking for millimeters of jerks.” The jury gets it.

“You never stated out loud when you saw these clues on camera? You never said lack of smooth pursuit, maximum, onset into your mic while you were doing them? In fact, you wrote down how many clues you saw when writing you report? You wrote your report after you had determined he was intoxicated? After you had arrested him? After you towed his car?”

Some officers may say they are prohibited from stating the clues on the video by law, which is correct under Fischer. “Well you could have said them and then we just would have muted it. But it could serve to remind you which clues you actually saw? But you remembered later, you saw all of them? We just have to trust you?” Write: Trust Me in big red letters on the top right of the board.

“You didn’t arrest him after the HGN test, did you? Even though you got all six out of six clues? The next test you administered was the Walk and Turn?”6

The Walk and Turn (WAT)

The WAT is a divided-attention test meaning that it is supposed to measure your mental and physical faculties. In plain English, they want to see how well you can listen to instructions (mental) and then perform what you just heard (physical). The WAT is a test where the video will actually show us the client’s performance. There is no “trust me” in the WAT. The overall intent in dissecting this test is honestly for the jury to go home, try it, and realize how absolutely ridiculous this test is and how strictly it’s graded. Slowly break down this test to the jury using the officer and the NHTSA manual.

Turn to a new page on your easel and write WAT in big black letters at the top of your display. Then lay out the eight clues of intoxication NHTSA established. Know them by heart; it’s your profession. Start writing them down on the board as you recite them. “The first two clues come in the Instruction Phase, meaning they have to stand like this while you give the instructions and demonstrate. 1. Can’t Maintain Balance; 2. Starts Too Soon. The next six come during the Walking Phase. 3. Steps Off Line. 4. Misses Heel to Toe. 5. Raises Arms. 6. Stops While Walking. 7. Incorrect Number of Steps. 8. Improper Turn.” Now the jury can clearly see what the test is graded on.7

Next, show the jury how the test is really administered. Ask the judge to stand up and demonstrate portions.

  • “Officer, this test has 18 unique instructions? Don’t worry, I’m not quizzing you. Let’s go through them together (count these out on your fingers as you go so that the jury can follow along):
      1. Place your feet on a line
      2. In a heel-to-toe manner
      3. Left foot behind right foot
      4. With arms at sides and give a demonstration, tell subject
      5. Not to begin until instructed to so do and ask if subject understands. Tell subject to take
      6. Nine
      7. Heel-to-toe steps
      8. On the line and demonstrates. Explain and demonstrate the turning procedure:
      9. Lead foot planted
      10. Take a series of small steps
      11. To the left direction. Tell the subject to
      12. Return on the line
      13. Taking nine
      14. Heel-to-toe steps
      15. Count out loud
      16. Look at feet while walking
      17. Don’t raise arms from sides. And
      18. Do not stop once they have started. Do they understand?8

Write: 18 Instructions on the board top left in red. “How many times did you demonstrate the test?” Write: 1x Demo or whatever they say. “How many times did you allow him to practice this test before grading him?” Write: 0 Practice. “Did you tell him the clues you would be grading him on?” Write: 0 Clues Given. “Did you give him credit for all the good stuff he did right?” Some may argue or be confused. Circle back to their training and their testing and how they were given credit for all the answers they got right. Hell, every test anyone has ever taken they got credit for the stuff done right! “You agree age, weight, leg, back, or neck injuries may affect an individual’s performance on this test?” Write: [whatever issue your client has]. “Now tell the jury how many clues equals failure or the decision point?” Write: 2 = Intox.

Next show the jury how meticulous the test is scored. Go through each of the clues and define them. When you get to heel-to-toe, ask the officer to show the jury with his fingers just how far someone has to miss heel-to-toe in order to be counted as a clue of intoxication. And make sure to ask if that half inch is between his fingernails or finger beds, on just one step. Write: the measurements of ½ inch and >6 inches next to heel-to-toe and raises arms. Be sure to put green check marks next to all the clues your client didn’t exhibit. When you get to improper turn, you should slow down and explain to the jury that there are three ways you can get that clue: series of small steps, leave the lead foot planted, and turn to the left. Let the jury see all of the ways there are to get a clue of intoxication.9

Bring it home for the jury. Ask the officer how many clues your client exhibited. Write 4/8 or whatever it was. “So, you’re telling me that every single sober person in here has to get a zero or one on this test? Because two equals intoxication?” Look at the jury after the officer admits this. Share that common ground with them. “So you’re telling me, if someone were to go home and try this test, not that anyone would, but now knowing all of the clues and how it’s graded [optional sidebar: which is something my client didn’t know], they should be able to get a zero or a one on it?” You have to love the zealous officer who will not only agree but add that the tests are easy, or that he sees plenty of people pass them.

Finish off the cross with a final blow. “Officer, is this a normal or abnormal way to walk?” Most officers will never admit it’s “abnormal.” Ask them: “Who else walks like that?” Most either can’t think of it or don’t want to say it—gymnasts on a balance beam (but they get to balance with their arms to the side) and tight rope walkers (but they get that long bar). Write: Abnormal in the top left in red. “Now, I’m not busting your chops, these aren’t your tests, but you’re supposed to judge whether someone has lost the normal use of their mental and physical faculties on an abnormal test? And you still didn’t arrest my client after this test?”

The One Leg Stand (OLS)

Very similar to the WAT, lay out the OLS. Start with the clues: 1. Sways; 2. Hops; 3. Drops; and 4. Raises Arms. Count out the instructions: 1. Stand straight; 2. Place feet together; 3. Hold arms at sides; 4. Tell subject not to begin until instructed to do so and ask if they understand; 5. Raise one leg, either leg; 6. Approximately 6 inches off the ground; 7. Keeping the raised foot parallel to the ground (and give a demonstration), tell subject: 8. Keep both legs straight; and 9. Look at the elevated foot; 10. Count out loud, in the following manner: 11. One thousand and one, one thousand and two, one thousand and three 12. Until told to stop. And give demonstration.

Follow the pattern in the WAT and write: 12 instructions, 1x demo, 0 practice, 0 clues given, 0 credit given, age, weight, back, leg, or neck injuries may affect, 2 = intoxicated.

When examining each clue, be sure to establish there is no distance for sway as defined by NHTSA.10 No definition of how many inches or how long someone must sway. Write: ? You don’t need to save the abnormal surprise; the jury gets it. “Is this a normal or abnormal way to stand? Even the Karate Kid got to raise his arms for balance.” And then bring it home: “So everyone in this room better be able to get a zero or one on this test? And all humans have a natural sway when standing on one leg? So that’s one clue already with no definition of how far or how long one must sway? That means everyone should be able to stand on one leg for 30 seconds without dropping it, and not raise their arms or hop the entire time? Not that anyone would ever try that at home.”

Before you wrap up your cross, come back around to the HGN. “My client got 4/8 on the WAT and 2/4 on the OLS, right? Never maxed out any of these tests as we can clearly see on video. But after you arrested him, towed his car, and got to write your report, you wrote 6/6 on the HGN?” The jury sees where you are going. The officer sees where you are going. It’s a rhetorical question. Let the jury ask and answer it in their heads. “So, we just have to trust you that he failed that miserably, but on the video, he looked good (we probably are not in trial if he doesn’t look good)?”

Lastly, bring the fear home. “Not to bust your chops officer, because these aren’t your tests, but if someone is pulled over on the way home from dinner and smells like alcohol or admits to drinking at dinner, they could have to do these tests? And then if they do these tests, you will have to administer it in the standardized manner only and grade it just like we saw? Zero or one to go home?”

This will resonate with everyone. As you can tell from breaking down these tests, they are next-to impossible. We as defense lawyers know these tests, and on any given day with the weather, nerves, and our conditioning, we couldn’t pass these. To assume regular, everyday people who don’t know these tests are capable of passing . . . Let’s be honest: It’s whether the officer wants to arrest you or not. They are purely subjective.

Conclusion

This article is not suggesting that no tests should be given to suspected drunk drivers. Rather, it breaks down the simple reality of how stringently and subjectively these tests are graded. Unfortunately, many people who “fail” these tests will not have the ability to fight these tests—be it for financial reasons, time constraints, or by hiring an attorney who doesn’t want or care to fight it.

We as trial lawyers must know these tests better than the officers. Only once you truly understand these tests can you simplify their basic elements and effectively communicate their unfairness to a jury. Many times, at the end of a trial, jurors will remark how they are never drinking and driving again because there is no way they can pass these tests. These are normal people, just like our clients. And it’s not about the officer; don’t bust his chops. It’s an unfair testing system. Jurors can feel confident in a not-guilty verdict for standing up for natural human error in coordination exercises. Break the SFSTs down to the basics—make it about the tests, not the officer. Jurors can still respect law enforcement while finding the client not guilty, even after “failing” these unfair “tests.”

2019’s Need-to-Know Changes to DWI Law

1

Together, House Bills 20482 and 35823 refashioned Texas DWI law and punishment—and finally abolished surcharges. Kind of.

Now, a person “finally convicted” of DWI “shall” pay a fine of $3,000 for a first conviction, $4,500 for a second, and $6,000 for all DWI convictions over 0.15. Presumably, a person is not finally convicted if they receive a newly created “deferred ad­judication” on their DWI. The legislature also slightly altered and expanded nondisclosure eligibility. This paper overviews the changes to the new DWI laws.

New Interlock Bond Requirements

For the following DWI accusations, the judge or magistrate shall order both 1) that defendant’s vehicle be equipped with an interlock device, and 2) that defendant not operate any motor vehicle unless equipped with an interlock device:4

Subsequent offenses under

  • 49.04 [Driving While Intoxicated];
  • 49.05 [Flying While Intoxicated]; or
  • 49.06 [Boating While Intoxicated].

Any offense under

  • 49.045 [DWI w/ Child Passenger],
  • 49.07 [Intoxication Assault], or
  • 49.08 [Intoxication Manslaughter].

If ordered, the defendant must have the interlock installed within 30 days.5

If the magistrate finds, however, that an interlock device is not in the best interest of justice, the magistrate “may not” order one installed.6

“Deferred Adjudication”

Dubbed “DINO” (deferred in name only), HB 3582 creates deferred adjudication for qualifying DWIs. Specifically, it amends Article 42A.102(b) of the Code of Criminal Procedure to allow judges to grant deferred adjudication.7

A person is eligible for deferred unless the person:

(1) is charged with an offense under 49.04 or 49.06 [DWI or BWI], and at the time of the offense either:

  • Held a commercial driver’s license or learner’s permit; or
  • The defendant’s alcohol concentration was 0.15 or more;

(2) is charged with an offense under

  • 49.045 [DWI w/ Child Passenger];
  • 49.05 [Flying While Intoxicated];
  • 49.065 [Assembling/Operating Amusement Ride While Intoxicated];
  • 49.07 [Intoxication Assault]; or
  • 49.08 [Intoxication Manslaughter];

(3) is charged with an offense for which punishment may be in­creased under Section 49.09 [Enhancements for Prior Intoxication Convictions]; or

(4) is charged with an offense for which punishment may be increased under Section 481.134(c), (d), (e), or (f) [School Zone Enhancements], Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any one of those subsections[.]

But, like in family violence cases, this is not a true deferred. Now, under Penal Code section 49.09(g), “a person is considered to have been convicted of [DWI or BWI] if the person was placed on deferred adjudication community supervision for the offense[.]” In other words, the deferred may still be used for enhancement purposes.

Under disqualification three above, a person is not eligible for deferred on a DWI second. But—as some on the listserve have noted—if a prosecutor would be willing, a person could potentially obtain a deferred by pleading a second DWI as another DWI-First—i.e., by striking the enhancement language under Tex. Penal Code § 49.09 at the time of the plea.

Deferred Adjudication Interlock Requirements

HB 3582 also amended Article 42A.408, which requires ignition interlock devices as a condition of supervision.8 The new law makes three additions.

First, new subsection (e-1) makes ignition interlock devices a mandatory condition (subject to a financial exception, discussed below) when the judge grants a defendant deferred adjudication community supervision for an offense under 49.04 or 49.06 [DWI or BWI].

  • The device must be “installed on the motor vehicle owned by . . . or . . . most regularly driven by the defendant”; and
  • “the defendant [must] not operate any motor vehicle that is not equipped with that device.”

Second, (e-1) discounts interlock costs to indigent defendants. Upon a proper showing, the judge may find indigence and reduce interlock costs by:

  • waiving the installation fee; and
  • reducing monthly monitoring fees by half.

These discounts do not apply if your client blows hot. Any additional fees incurred if the device detects alcohol on the breath of the person attempting to operate the vehicle will not be reduced.9

Third, (e-2) provides an exception to the mandatory interlock condition. This exception applies if the judge:

  • based on a controlled substance and alcohol evaluation of the defendant,
  • finds and enters in the record,
  • that restricting the defendant to the use of an interlock is not necessary for the safety of the community.

Deferred Adjudication Nondisclosure Eligibility

HB 3582 amended the nondisclosure statutes to make a separate section governing deferred adjudications for certain intoxication offenses.10 The new statute, Government Code § 411.0726, applies exclusively to DWI and BWI deferred adjudications—without an affirmative finding described in Article 42A.105(f).11

Now, to receive a DWI or BWI nondisclosure, a person must

  • receive a discharge and dismissal under Article 42A.111, Code of Criminal Procedure;
  • satisfy the requirements of Section 411.074 [basic qualifications for all nondisclosures];
  • have zero prior convictions or deferred adjudications (except for traffic offenses punishable by fine only);12
  • wait two years from the date of completion of the deferred adjudication community supervision and the discharge and dismissal of the case;13 and
  • not have evidence presented “sufficient to the court demonstrating that the commission of the offense for which the order is sought resulted in a motor vehicle accident involving another person, including a passenger in a motor vehicle operated by the person seeking the order.”14

Mandatory Fines for Those “Finally Convicted”

Described as a “superfine,” HB 2048 adds new § 709.001 to the Transportation Code (Traffic Fine for Conviction of Certain Intoxicated Driver Offenses), which financially disincentivizes people “finally convicted” of an “offense relating to the operating of a motor vehicle while intoxicated”:15

  • $3,000 for the first conviction within a 36-month period;
  • $4,500 for a second or subsequent conviction within a 36-month period; and
  • $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

What “finally convicted” means is less clear. According to the TCDLA Legislative Committee, both TDCLA and TDCAA agree the superfine only applies to final convictions—adjudicated jail sentences only.

But the actual language of the new statute suggests otherwise. Unlike other sentencing enhancements, simply probated—but not deferred—sentences still mean final convictions.16 Your client will still be assessed the fine on a straight probation. In short, if you plead your client guilty or a jury finds your client guilty of DWI, they could be facing a minimum mandatory fine of $3,000—at least until the “finally convicted” issue is settled.

Interestingly, the counties now responsible for enforcing these impressive fines keep only 4% of the money.17

Upon Showing of Indigence, Court Shall Waive Fines and Costs

Upon a finding of indigence, under § 709.001, the court shall waive all these new fines and costs.18 The statute specifically provides that the following documents can support a finding of indigence:19

  • Most recent federal income tax return showing the person’s household income does not exceed 125 percent of the applicable income level established by federal poverty guidelines;
  • Most recent pay stub showing the person’s household income does not exceed 125 percent of the applicable income level established by federal poverty guidelines; or
  • Proof of state, federal, or school assistance, including:
    • Food stamp program;
    • Special supplemental nutrition program for women, infants, and children;
    • Medical assistance program under Tex. Hum. Res. Code ch. 32;
    • Child health plan program under Tex. Health. Saf. Code ch. 62; and
    • National free or reduced lunch program.

Sayonara Surcharges (and Related Suspensions)

HB 2048 deletes the driver responsibility program from the Transportation Code.20 It both forgives all unpaid surcharges and reinstates licenses suspended due to unpaid sur­charges.

  • The repeal by this Act of Chapter 708, Transportation Code, applies to any surcharge pending on the effective date of this Act, regardless of whether the surcharge was imposed before that date.21
  • The Department of Public Safety shall reinstate any driver’s license that is suspended under Section 708.152, Transportation Code, as of the effective date of this Act if the only reason the driver’s license was suspended is a failure to pay a surcharge under Chapter 708, Transportation Code.22

Effective Dates

Both HB 3582 and 2048 took effect on September 1, 2019.23 The punishment amendments apply only to offenses committed on or after that date.24 Because the nondisclosure amendments are silent about their operation, unfortunately they are “presumed to be prospective in operation.”25

Important Takeaways

  • Interlock now required on all felony DWI-related offenses, and subsequent DWIs, but magistrates may not require if not in the interest of justice;
  • Deferred adjudication available only on DWI-first and under 0.15 offenses (plus numerous other disqualifying factors);
  • Changes to nondisclosure eligibility;
  • Mandatory massive fines upon “final convictions” for DWI; and
  • Surcharges and related suspensions are eliminated.

Fear and Loathing in South Texas

The sweet acrid smell of a freshly lit cigarette danced inside his nostrils, seeping into his unconscious brain, waking him. His eyelids twitched and tremored, but did not open. It was an auto somatic response; like a mother drawn to her crying babe. Not something sought out. It was more a keening allure; an impulse impossible to ignore. Vices. Lovely reliable vices.

Every fiber of his being longed for that cigarette.

“Cigarette,” he tried, feebly; his voice sounding like jagged shards of glass across an old middle school blackboard. More eye tremors. Then, suddenly, his right eye snapped open like an old-fashioned roller shade.

Where the hell am I?

A single bloodshot eye probed left and right, up and down. Then the pain came. It started slowly near his bladder, rising like the plume of an atomic bomb, laying waste to everything in its path. This is what Churchill meant when he described “total war.” It traversed his hips and attacked his reluctantly defiant liver and kidney in a pincer move. When the pain breached his cranium, he anticipated Nirvana.

Instead, his left eye opened and he rubbed them both, hard, removing the sleepy crust that effectively shaded him from the reality that it was 3 pm in Marfa, Texas.

Marfa?

He sat up and immediately felt the hunger beneath the pain. His empty stomach grumbled. Strike that. His naked stomach grumbled. Definitely not the Owl Farm. He was naked and in a strange bed—not uncommon. Still, he liked the lumpy and rickety racket box masquerading as a queen-size bed almost as much as he liked Nixon.

“Good morning, Sunshine.”

She was at the window. Her back was against the window frame, left leg dangling. With her right leg bent 90 degrees and wedged atop that old 1920s sill, she looked to him like a beautiful stone nymph guarding a flying buttress. Her skin glistened and she blew a stream of smoke out the window, breathing life into repose.

“I’m hungry,” she said.

Sunlight reflected off her long and untamed blonde hair as she stared out the window, bored. He knew then, he did not matter to her. He looked around, trying to piece it together.

Is this a brothel? Do I owe her money? Who the hell is she?

Thought and confusion jumbled together and disappeared into the misty fugue blanketing his preprandial brain. He stood slowly, uncertainly. His legs and ankles popped and creaked as his body assumed his weight. Damned hip. His knees ached. The soreness in his low back was a painful reminder of the Love Boat’s much earlier departure. Maybe not as good as I once was, but hopefully still as good once as I ever was.

He threw his arms back wide, let out a raspy growl, and staggered on pin-pricks to the bathroom. Too tired to stand, he sat on the toilet, holding his forehead in his hands, trying to piece together the night.

What the hell happened?

He remembered the Aurora Borealis. He had been in a lawn chair atop a Winnebago. Head thrown back and watching the Marfa lights with a baseball glove over his face. Watching the sinuous greens and blues and reds pass through the basket of the mitt like gossamer wisps. He could feel the lacing in the bridge of the mitt and the tiny knots that secured the webbing digging into his forehead. He could smell the oil and beneath it, old leather.

There she is.

He remembered. She had been dancing and twirling on top of the Winnebago, her head ensconced in a blonde corona, smiling and laughing at the night sky. He remembered the joint now, too. Was it laced? On his own breath he thought he could discern the unmistakably metal taste of opium. Or, maybe spinal fluid. Hopefully, opium. It definitely was not the plain Mary Jane. Marijuana was legal in Aspen, for crying out loud. And it did not do this. This was a new and strange trip.

Where was I before the Winnebago and the blonde and the bud? It occurred to him he was still on the can. He smiled again. David the Thinker meets David the Stinker. Suddenly, there it was: I am here for a story.

Fear and Loathing in South Texas.

Two days had passed since he had last checked in with the magazine. Hopefully not another Rumble in the Jungle. According to the rumble in his belly, it had been two days since he had done a lot of things. It seemed the drugs were finally wearing off. The psychoactive effects, anyway. Through prior dealings with both law enforcers and breakers, he had learned a few things to help him self-diagnose after self-administering. He had learned a bit about the half-lives of drugs. The half-life of any drug refers to the span of time during which one can expect to be in its throes. Talk about fun facts. For example, he had learned that the half-life of marijuana was inestimable; it depended largely upon the dosage and personal use history, along with some other variables.1 Drugs like cocaine were more predictable, at least in terms of how long the high might endure: 0.8 ± 0.2 hours.2 Opium’s window was 6 to 25 minutes,3 while mind-benders like acid/LSD were 2.5 to 4 hours;4 methamphetamine or amphetamines were around 12 hours.5 Alcohol usually lasted no more than a half-hour.6 He liked that he knew that. It was like an intellectual escalation matrix for drug-enjoyers.

He remembered landing at the airport in San Antonio. Fortuitous for all parties involved, the magazine had provided the convertible he had demanded: a red Oldsmobile sedan with white leather seats. He frowned.

Where the hell is my attorney?

Oscar Acosta esq. had been with him since the beginning and was an absolute necessity on any trip where things were bound to get weird. As one who eschewed pretense, he had not called the man by his Christian name—maybe ever. Affectionately, he called him Gonzo. Whether it was his bewitching style in the courtroom or their shared iconoclasm that garnered the sobriquet was irrelevant, anymore. He was the only man who could get him out of any pinch. Beatifics and honorariums aside, Gonzo was also the only other man he knew whose tastes matched his own debauched opprobrium.

Gonzo was more than his oldest and most lecherous friend. He was his only friend.

Finally, he remembered the goat. And not just any goat. This goat was the mayor—not euphemistically, either. He had come to Texas and discovered that the mayor of Lajitas was a goat named George.

It is almost too fantastic to believe!

He smiled, remembering the six-pack he had bought from the local Lajitas grocer. He had not picked the grocer for his groceries. He was the only grocery game in town. The only store at all, in fact. The town of Lajitas boasted a population of three, and its mayor was a goat. He remembered smoking a cigarette as he fed the mayor a bottle of Shiner through the fence.

God bless Texas.

“The good Doctor returns,” she said as he padded in and sat on the side of the bed opposite her. He looked askance, glimpsing bare back as she slid into her skinny jeans. He thought of the trip to Ojinaga, Mexico, before the girl.

The top was down and Gonzo was up front, rolling joints and drinking whiskey from the bottle. The Texas/Mexico border marked the mid-point of their afternoon sojourn. There, they left the convertible and made a river crossing. Donkeys were tied to the brush, their leads disappearing into nappy thickets. Beyond them, a small wooden-crate raft was beached ashore. For $5 the local proprietors let them mount their asses to ford the shallow river into Mexico. On the dry side, it was another ten long minutes struggling to steer the mighty beasts before they reached the small town center. He frowned, trying to remember how that place was supposed to have fit into his story.

Now I remember!

Drugs. Lots and lots of drugs. The town sat at the center of a bustling international drug trade. The low river made it easy. It beckoned. They came. Ojinaga was to the drug trade what Mecca was to Muslims. It beckoned. Gonzo and the Doctor came.

He remembered the farmacia and the stooped and leathery “doctor” who asked quite simply, “Que quiere?” He remembered the giddy rush of his response. Word spread quickly throughout the small town that two gringos were buying a large quantity of drugs.

Gonzo preferred the unprescribed medicinals-for-the-soul while the doctor shopped the pharmaceuticals. They each bought decorative Aztec leather pouches to conceal and carry their score. Gonzo bought cocaine, weed, mescaline buttons,7 a sheet of blotter acid/LSD,8 mushrooms,9 ecstasy/MDMA,10 and some tree bark the locals called DMT.11,12 The doctor packed his bag with Adderall, ephedrine, and a gluttonous portion of topical cocaine.13

Christmas in Mexico!

They found a local bar and were belly-up, planning the chronology of their drug discourse. They each ordered a beer with a tequila chaser. As a precaution, the doctor popped an Adderall and splashed it with his chaser. He thought about the long drive back to Marfa.

Through a combination of experimentation, trial, and error, the doctor had come to realize the most basic driving skills are not adversely affected by amphetamine dosages that were within the normal clinical range.14 That last scientific-sounding bit he had scrounged off a Ketamine-addled former doctor who bummed a cigarette from him in Aspen, years back. In fact, he had learned that where alcohol had been shown to have caused some driving impairment, the effects of amphetamine use actually enhanced driving ability.15 He also knew that although there is some evidence amphetamines can result in overconfidence or increased risk acceptance, the effects reported had been neither so strong nor so consistent as to justify much of any apparent concern.16

Giddyup.

Obviously, the doctor was also aware that known amphetamine abusers have been found to be involved in a disproportionate number of highway accidents,17 but he was not abusing it. He just wanted one pill to keep him awake and to counteract the depressant effects of the booze. Two beers and a shot over the course of a couple hours was not illegal. Still, to be safe, he ordered and ate a chicken quesadilla.

Gonzo opted for more bohemian fare. It was like a drug club sandwich: one mescaline button, one mushroom, and one ecstasy tablet all washed down with tequila. For good measure, he tore off a tab of acid and let it melt on his tongue. Gonzo’s idea of temperance did not translate to fewer drugs. Instead, he concentrated only on the root of the word, interpreting it to mean more drugs but with good humor. The doctor looked at his watch.

Ten minutes before that acid kicks in.

They settled up and took their booty in search of their asses. Gonzo barely made it to the car. As he stretched across the length of back seat the sky began to move and change color. Groovy. Doc knew Gonzo was not in any shape to drive. Psychedelics and driving were a poor mix, and definitely illegal.18 Gonzo was a gamer. But, even his mental and physical faculties had taken a backseat to the drugs. Doc fired up the convertible and slammed the gearshift into drive. With a roar of the engine they were back on the road, leaving that small little drug den in a cloud of colitas.

On the road, Doc’s Adderall kicked in, staunching the depressant nature of the alcohol. He felt alert and back to normal. No loss of faculty—mental, physical, or otherwise. If anything, he was more alert than normal, very aware of his surroundings.

As the blacktop unfurled ahead of him, Doc thought about the Adderall. He lapsed into a kind of pharmacological dogmatic trance: Adderall is a member of the amphetamine family, which is classified, pharmacologically, as sympathomimetic amines.19 Amphetamines are a powerful stimulant whose effects include general activation, appetite depression, and euphoria when taken in sufficient dosage.20 The recognized medical uses for amphetamines are largely for treating and controlling narcolepsy, childhood hyperkinesis (ADD/ADHD), and short-term appetite control.21

Despite its common uses, in Doc’s experience most cops still responded to its utterance as though it were the kind of substance concocted in cinderblock rooms over an aluminum-foil-covered metal spoon using a blow torch. Hell, even Doctor A. W. Jones knew that “[t]o convict a person for driving under the influence of a prescription drug, the prosecution ha[d] to prove the driver was impaired by the drugs or that the concentration in blood was higher than expected for normal therapeutic use, implying that the person had taken an overdose or was abusing the medication in question.”22 He shook his head, snapping out of it.

Damn narc.

He tried to focus on Marfa and the task at hand. But, as Gonzo giggled and laughed and shouted down the heavens from the back seat, Doc’s mind began to wander. He thought about Terlingua.

Need to up my ADD dosage.

In Terlingua there lay a gem—a bar hidden from most of the rest of the world. News of the place had reached Doc over the years in the form of whisper and legend. They could be there by nightfall. He looked in the rearview. Joyful tears ran down Gonzo’s cheeks as he traced the clouds with a finger, softly muttering the lyrics to a Grateful Dead song. They could land in Marfa, Terlingua, or on Mars, and it would not make any difference to Gonzo. Doc adjusted his course, heading north on Highway 118.

Viva Terlingua!

In less than an hour he found himself on the threshold of legend. La Kiva was everything he had heard about and more. Gonzo’s tears had dried and he was in the backseat with a fly swatter raving about the pernicious bats in the bat country. Odd. Best to leave him behind.

The misshapen wood door creaked as Doc passed over the threshold, almost hitting his head on one of many stalactites that descended from the ceiling like wicked pointing fingers. La Kiva was a semi-subterranean cave bar. Rock formations and the skulls of dead animals served as decoration. He approached a bar that looked to have been assembled with varnished driftwood. The owner, Glenn Felts,23 wiped his hands on a bar towel and took his order: a can of Pearl and a shot of Jack. Glenn delivered the libations and leaned against the bar proudly regaling Doc with its long and whispered history.

Laughter behind him. Doc turned as a man entered, shaking his head with a smile. He jutted a thumb over his shoulder, “Some crazy man running nekked around the parking lot.”24

Doc stood. “Time to go,” he said.

He shook hands with Glenn and promised not to share the secrets of his hideout with the world. Doc took stock of himself: two drinks in an hour, still not over the legal limit for this 170-pound male. He left to gather Gonzo for their trip back to Marfa.

“I need lunch, baby.”

Terlingua disappeared and he was back in Marfa in a room with the woman. She was dressed and standing in front of the mirror, twisting her hair into a ponytail.

Doc pulled on his shorts and peered out the window, squinting against the sun. Moving better now, he reached for his bucket hat and a pair of yellow shooting aviators. He buttoned his aloha shirt and grabbed his keys and wallet. They were out the door in less than two minutes. He still had not asked the girl her name.

His car was just as he had left it. The decorative pouch was still there on the floorboard behind the driver’s seat. George and Lajitas could learn a thing or two about dissuading the looters from the good folks in Marfa. As he started the car he wondered whether he ought to be driving. He felt fine, but the gaps in his memory left him wondering whether it was all a hallucinogenic illusion. Though the drugs were still technically in his system, he knew they were no longer psychoactive.25 Last night’s joint had been real, but its high had long since gone. Based on his chronic use history, Doc knew traces of the marijuana could linger in his blood and urine for up to five weeks.26 It was strangely comforting.

Doc wondered whether the joint had been laced: opium, LSD, embalming fluid, or PCP? The possibilities were endless. He knew people could soak a joint in just about anything to enhance its high. It was the intersection of ingenuity and degeneracy. He glanced at his passenger, curious.

Doesn’t matter, he decided. The effects of anything he had smoked or ingested last night had worn off. Mentally and physically, he felt normal. He put the car in gear and headed for the highway. Approaching the crossroad at 67 and 90, he saw a state trooper in his prowl car on the right in the parking lot of a Stripes.

When the trooper pulled out of the parking lot and made his none-too-subtle approach, Doc’s stomach dropped. He had not been speeding. It was the first thing he had checked upon seeing the unit. The trooper lit him up with rotating blues and reds and gave a short pop of the siren. Dutifully, Doc signaled a lane-change and pulled off the road into the parking lot of the Food Shark.

As Doc was putting the car in park, panic jogged his memory: the Aztec pouch. Ain’t got no prescriptions for any of that stuff! He looked into his future and saw felony possession—maybe even intent to deliver, based on the amount. They did not know him. They would never believe it was all for personal use and consumption. The blood drained from his face and not for the first time that day, he felt sick.

Be cool. Stay calm. Think.

The trooper did his cop-walk up the driver’s side. Doc watched him through the driver side mirror. He stopped just shy of the door handle.

“Laslo. Highway Patrol.”

“I wondered what that word on your shirt meant,” Doc mused.

“License and registration,” Laslo said, stern.

Doc reached for his wallet without fumbling it and retrieved his license without difficulty. “The car is a rental,” he said, abandoning the shtick. Laslo craned his neck and gave Doc’s passenger the fish eye. “Becky, I thought I warned you not to let me catch you out again?”

Becky.

Becky sat rigid, staring stoically out the passenger side window. She pretended not to hear. Laslo exhaled a frustrated snort and leaned back, eyeing Doc.

“I’ll be right back. Sit tight.”

Now or never. As Laslo returned to his prowl car to radio in the bona fides, Doc turned quickly in his seat, snatching the Aztec pouch. He opened the bag and closed his eyes. “Jesus, Gonzo.” Fortunately, it seemed to Doc that Gonzo must have ingested nearly all of his score. Still, he saw acid, buttons, ecstasy, cocaine, mushrooms, weed, and DMT. A gaggle of felonies just waiting to happen, except the weed, which was still only a misdemeanor in such a small quantity. He did not see another option. He had to act fast. Doc pitched forward, dropped his head low, and started shoveling the drugs into his mouth.

Becky turned and watched him, silently bemused.

The panic propelled his churning arms as he realized felony tampering charges would be added to the already-looming possession charges if Laslo interrupted his impromptu meal. He fought the gag reflex as his body tried to reject the calamitous array of tastes and textures being forced into his maw. He glanced up with his hand over his mouth and the last of the drugs inside. Laslo kicked open his patrol car door. Doc swallowed, figuring he had ten minutes before the roadside show became a shit show. Hell, death might even make a cameo appearance. He tried to calculate his impending doom.

He was not worried about the weed. It needed a heating agent to become psychoactive.27 The LSD was highly absorptive through mucous membranes.28 In about 20 minutes it would kick in like the Kool-Aid Man through a brick wall.29 Oh yeah! The mushrooms had an estimated time of arrival of about 45 minutes.30 The cocaine was already numbing his stomach; hopefully it would do no more than make him excitably sick.31 The natural acids already in his stomach should kill any major reaction to that. He was not worried about the DMT, either, as it needed a monoamine inhibitor (MAOI) to be psychoactive when taken orally.32 Oral ingestion was no worse than wasteful. And, he had eaten mescaline before. He hoped as it began to work it would induce vomiting,33 which would at least rid him of whatever undigested drugs remained. That was his fallback, his hope, anyway. Come on, mescaline! Don’t fail me now.

When Laslo made his return, he approached on the passenger side. He jutted his chin at Doc. “Becky. Who’s the guy?” He pressed on as though she had answered. “What are you doing here?”

Becky kept quiet, ramrod straight, staring ahead.

“Becky, I’m talking to you.” Laslo waved across her field of vision.

Over the boiling tumult in his gut, Doc heard something strangely funny. The back of the car shifted and there was an almost gentle heaving. There was a single, loud thud from inside the trunk, and then silence.

Laslo’s eyes darted to the trunk, back to Becky, back to the trunk, and widened in recognition. The car started moving again and Doc felt his stomach somersault gaily. From inside the trunk a thump, thump, thumping accompanied the sounds of muffled struggle.

“Is someone in the trunk?” Laslo asked, an octave above his prior refrain. He stepped away from the car and edged near the trunk, the heel of his left palm on the butt of his gun.

“That’s ridiculous! It’s a convertible. It’s a beautiful day; the sun’s out. Why would anyone get in the trunk?” Doc winked at Becky, impressed with himself. She rolled her eyes and sighed.

“Open it. Open it right now!” Laslo demanded.

Doc jutted a pontificating finger skyward, “I know my goddamn rights, Laslo, and you do not have my consent to search that trunk!”

There was a loud pop and the trunk swung open, mooting Doc’s point. He frowned his annoyance at the trunk. As it rose a clenched fist at the end of a meaty forearm jammed the lid wide open and Gonzo stood up behind it. He was shirtless and his pants were unzipped and showing more of him than Doc ever wanted to see, and hoped not to remember. Dirt and grime and grease from the spare tire mixed in a frothy mess obscuring Gonzo’s features. He gathered himself and jumped, but his foot caught something on the inside lip of the trunk. He crashed into the dusty, hot parking lot with a grunting thud.

Laslo took another step away from the car, unsnapping his holster as he did. His eyes darted front to back, front to back. “What the . . .”

Gonzo pushed himself up on all fours, looked ahead, and took a deep breath. His gut heaved and he groaned as he pushed himself to his feet. He hitched his pants and pulled up the zipper. Swaying, he reached up and slammed the trunk lid home and left his hand there for balance. “Damn, it’s hot in there.”

Laslo drew his weapon but kept it pointed at the ground. “Somebody better tell me what in hell is going on here.”

Gonzo waved his hand with a face suggesting this were some minor peccadillo. “Officer, I will discuss anything you want. But them,” he nodded at Doc and Becky. “I’m an attorney and they are my clients.”

“Clients,” Laslo repeated.

“Clients,” Gonzo confirmed.

“They had you in the trunk.”

Gonzo looked back at Doc and Becky and said, “Tsk-tsk. The inconvenience will be reflected in their next billing statement.”

He looked back to Laslo. “I appreciate your concern, but all is well here. We will certainly provide you with any identifying information you desire. Beyond that, we would like to remain silent.”

Behind the wheel, Doc lost his grip, the sky began to move, and he fell off the face of the planet. He did not know whether he was experiencing shock or a heart attack. His brain was too gripped to realize it was in the throes of his most heinous trip. The clouds began to race and the sky became a monochrome transition from blue to purple and then red. Watery acrylic rainbows began streaming up the windows. No, no, no, not now.

When Laslo saw the empty and bovine look of childlike wonder followed by anguish followed by wonder, he made a decision. “Everyone out of the car!” He grabbed his shoulder mic and radioed for backup.

Doc bit his lower lip in a desperate attempt to return to reality. He looked in the rearview; his bug eyes were completely dilated.34 He could feel his blood pressure skyrocketing.35 He imagined himself as the SpaceX rocket hurtling skyward, bursting through marshmallow clouds and rainbows made of real Skittles.36 He stuck out his tongue, hoping to taste the rainbow as he flew by.37 A cold sweat began creeping up his spine. He put his tongue back in his mouth. His gorge was rising. No good.

He tried to speak but the words would not come. The darkness—as he liked to think of it—was a creeping inevitability. He had explored the deepest depths of the so-called drug binge many times before. Drug binges were like IKEA.38 There was no getting out. No shortcuts. It had to run its course. All he could do was grin and bear it. He bore down and tried to think only of endurance.

Gonzo eyed Doc uncertainly, took a deep breath, and, approaching Laslo, turned on the 100-watt smile. He rubbed his hands together and, when he realized they were too dirty for that to accomplish much, wiped them on his pants.

“Allow me to introduce myself,” Gonzo said.

Laslo eyed Gonzo’s extended hand, but did not accept it. Quietly, Becky opened her door and stepped out, complying with Laslo’s earlier command. Inside, Doc looked to his right and fought back a scream. She jumped! Then, it occurred to him they had both been ordered to step out of the car. He wanted to get out, but was not sure he could. His limbs felt rubbery and uncontrollable.39 He did not trust them to respond on command. Subtlety probably is not an option.

Doc leaned right, pulling his knee as close to his chest as he could. He let out a short breath and donkey-kicked the door as hard as he could. The door flew open, rebounding as its springs recoiled with a terrible, shrill scream. He was free of the confines of the car but did not get out. When the door swung open his momentum forced him upright. He was still in his seat, left leg outside the car.

Slowly, he slid his right hand into his hip pocket and extracted a cigarette from the pack. With an expert flick he got his Zippo going. He cocked his head and stared at the flame dancing atop the lighter, mesmerized by the colors. He held his cigarette so it would light slowly. He watched the paper ignite and burn down in irregular scallops. He watched the advancing conflagration spark and then shrivel tiny brown-gold shrapnels of tobacco. The reds and oranges were brilliant, almost neon.

A pyrrhic victory, indeed.

He pulled deeply on the cigarette. He felt the smoke as it passed over his tongue and down his esophagus, tunneling its way from his throat to lungs. Slowly, he waved the lighter back and forth, mesmerized, feeling his lungs expand to capacity. He smiled as the lenses of his aviators refracted the tiny dancing light.

Laslo looked at Doc impatiently and then back to Gonzo. “Is he okay?”

Gonzo shrugged with an embarrassed smile. Laslo went around the front end of the car and stood in Doc’s open door, staring down at him. As Laslo loomed, Doc mumbled the words to “One Toke Over the Line,” and watched a sepia recording—like found footage—of the full concert on the inside of his aviator lenses.

“Out of the car,” Laslo said, grabbing Doc’s left arm above the elbow. The movement dislodged the Aztec pouch and it fluttered out of his lap and to the parking lot. “You on something?”

Doc looked up, nearly catatonic. He held Laslo’s menacing glare. He let himself be pulled up and out of the car. Laslo walked him to the front of his patrol car and said, “Sit here.”

Doc sat, thankful for the respite. He felt like the Scarecrow from the Wizard of Oz. He could barely stand, let alone walk. His face was ghostly white and the blood had drained from his lips, leaving them a sickly shade of pink. His left nostril was runny.40

“I felt your arm,” Laslo said to Doc. “No muscle contractions. No rigidity.”41

Do I look like some kind of muscle-bound beefcake, Doc thought, but could not say.

Laslo shook his head and pulled a penlight from his chest pocket. He waved it in Doc’s face. “I want you to watch my pen with your eyes and your eyes only.”

Doc smiled broadly as he watched the neon streamers tracking Laslo’s passing penlight.42 Finished with the horizontal passes, Laslo moved the tip of his penlight closer and closer until it touched the tip of Doc’s nose. “No convergence. None.”43

He looked up at Gonzo and said, “This dude is FUBAR.”

He strode away a few yards and motioned with his finger for Doc to follow, “I’m going to have you do a few more tests for me, okay?”

“I don’t recall you ever explaining a first test to him, Trooper Laslo,” Gonzo offered.

Laslo ignored that and said to Doc, “Understand?”

Doc nodded dumbly and instructed his brain to respond with, “Sure.” Unfortunately, with his slack jaw and gummy mouth the sound that escaped was an indecipherable squawk.44

Laslo pointed at a spot near his feet, “Can you come stand in this spot?”

Again the indecipherable squawk.

Laslo rolled his eyes and began reciting the instructions to a high-stakes balance and performance exam he called the Walk-and-Turn. After giving the instructions he finished with a practiced and polished partial demonstration. Doc remained on the hood of Laslo’s car the entire time, watching a single rogue ant scavenge a scrap of Twinkie from a discarded wrapper.

Laslo said, “Do you understand the instructions?”

Doc chuckled and burped.

“Sir, are you refusing to do the test? If you refuse, I’ll have no choice but to arrest you for DWI.”

Doc breathed slowly through his nose, feeling the little hairs inside quiver. Somehow, he found the strength and hoisted himself to his feet. He could barely see the ground. He thought of Eddie Murphy in “The Golden Child”: There is a ground. You’re making it look like there’s no ground. There’s a ground, Monty!

Doc could swear he remembered Laslo say something about an imaginary line. All he saw were lines. The parking lot had become the racetrack from the movie “Tron.” He looked around for his disc.

Laslo snapped twice to get Doc’s attention.

With an effort, Doc got his weight balanced over his feet and, starting high with his right foot, moved it in a wide looping arc up and forward. His steps were uncoordinated and wild, his arms crooked and akimbo like he was attempting to dance the Funky Chicken. He staggered and stumbled along a crooked line towards the back end of his rented convertible. Not seeing the car, Doc hit the bumper with his shins and tipped forward, fast. His momentum carried him end-over-tea-kettle into the trunk where he disappeared inside.

Inside the trunk, Doc was at first shocked and then calmed by the sudden darkness. He remembered the trooper and his tests. He thought about feigning sleep or trying to hide and could not decide which would be more effective.

Laslo’s face appeared above the open trunk. He did not appear to be amused. Absently, Doc wondered whether he could shape Laslo’s face like putty, and turn that frown upside down. “Damn, Mr. Thompson. There’s one more test.”

Laslo reached in and helped Doc up and out of the trunk, standing him at attention. He told Doc the last test was called the One Leg Stand. He explained its instructions and gave another practiced demonstration.

“I saw that on that movie, Karate Kid,” Gonzo said. “You want him to do the big roundhouse at the end? Or maybe sweep the leg?”

Again, Laslo ignored Gonzo, checked his watch, and nodded to Doc. “You may begin.”

In his mind’s eye Doc was doing an impressive version of the Russian River Dance. Reality was less moving. When he thudded down on the bumper and slid down onto the hot pavement, Laslo terminated the test. He grabbed Doc by the shoulder and helped him roughly to his feet.

“Turn around. Hands behind your back. You’re being detained for suspicion of DWI.” Laslo double-locked the cuffs around Doc’s wrists and led him to the front seat of his patrol car.

Doc plopped down, sitting painfully on his hands. Laslo shut the door and turned his back on Doc. He said something into his shoulder mic and stepped a few yards away from his cruiser and the others. Doc leaned his head back and it lolled atop his shoulders. The mescaline was finally kicking in. Not good. He felt the electric warmth rise quickly from his stomach into his throat. His head shot up and forward as he puked all over Laslo’s dashboard and computer terminal. The first volley triggered an avalanche. The force of the emesis contorted Doc’s body and he turned left, thrusting against the seat belt. When it was over, projectile vomit seeped and covered nearly every surface inside Laslo’s car. Doc spit on the rubber mat, looked up, and smiled for the dash-cam.

Outside, Laslo sub-vocalized a final response into his shoulder mic and returned to Gonzo and Becky. Laslo stopped within inches of Gonzo’s face. Gonzo looked nervously over Laslo’s shoulder, but said nothing.

“What in hell is going on here . . . counselor?”

Gonzo said, “It’s an interesting story, actually. My friend and I are here in Marfa to write a story for a national magazine. We wanted to experience and tell Marfa’s wonderfully compelling story. As you know, the town has garnered national attention as a refuge for relaxation and port-of-call for free spirits.”

“Unh-hunh,” Laslo dripped. “And then you ended up in the trunk.”

“Ah yes, that. Well, you see we were all having a riotous good time last night. I stepped outside for some fresh air. I guess I was outside longer than I thought. When I finally returned I realized I’d been locked out of our room.”

Laslo sneered at Becky and said to Gonzo, “These other two shut it down early, huh?”

Gonzo nodded agreeably. “Right. So, I decided I would just sleep in our rented convertible, here.”

“Lemme guess. You’re a sleep walker. That’s how you ended up in the trunk.”

Gonzo shook his head. “I’m fat and out of shape. Still, it was freezing. I thought the trunk would be warmer. I thought my friends would notice I’d left the lid slightly opened. But . . .” he trailed off.

“But, they didn’t.” Laslo finished for him.

Gonzo shook his head in agreement. “When I woke up we were moving and the trunk was closed.” He shrugged as though the whole thing were some minor misunderstanding.

As Gonzo spun his tale the reality of the previous night came to him in flashes. He saw the colors, the girls, the cactus, and the Marfa lights. That is when the demons had come. He had watched Doc and the girl clamber atop that rusted Winnebago, awaiting his turn. But, as the girl disappeared over the ladder the demons came for him. There had been so many. Like maniacal ghosts with razor teeth sweeping the grounds and swarming. There had been no time to ascend the Winnebago. He ran. He ran for the convertible. In the past, in the midst of a bad acid trip, he had always found refuge inside the trunk of a car. He had always been safe there. So, that is where he went. After he got in he assumed he would simply pass out.

He woke up in the middle of the night holding one of the Aztec pouches. He had hoped his own drugs were inside. Instead, he had Doc’s bag and Doc’s drugs: a bunch of Adderall, amphetamines, and topical cocaine. He preferred his own cache, but knew Doc’s stimulants could keep him alive and awake through the worst of a bad acid trip. He slept in fits and starts. Over the course of the night he emptied Doc’s bag. Now he felt fine, standing there with Laslo and Becky and spinning a yarn more colorful than a winter scarf. He felt fine. A little jittery, borderline invincible, and alert as hell.45

“What happened to your shirt?” Laslo asked, peering inside the trunk. It was empty but for a greasy spare tire and Doc’s empty Aztec-ian speed bag.

Gonzo remembered running his XXL aloha shirt up the flagpole last night. He remembered saluting it and crying as it snapped and fluttered in the wind. He remembered leaning against the pole like one of the hero’s on Iwo Jima. He looked at Laslo, “You sleep in a shirt?”

Laslo shrugged. “You okay to drive?”

Gonzo nodded in the direction of the patrol car. “And my friend? He has no odor of alcohol . . .”

“High as a kite. I’m taking him in for a blood test since he seems to be incapable of speech at the moment. Otherwise, I’d just ask him.”

“I see. Yes, sir, Mr. Trooper. And, to answer your previous question, I am perfectly okay to drive. I’m a little shocked at my friend’s behavior. I understand you have a job to do.”

Laslo nodded and turned to Becky. “You better get your ass in that car, right now. I bet the sheriff is worried sick. Don’t you have school tomorrow?”

“School?” Gonzo asked, worriedly.

“College,” Becky said, defiantly.

“Dammit, Becky. It’s an election year; you know that. We can’t have you running round like this causing trouble.”

Becky stuck out her bottom lip and frowned at Laslo. He jerked a thumb over his shoulder. Slowly, Becky walked back to Laslo’s patrol car. “You can come get him after we get his blood and book him,” Laslo said.

Gonzo said, “You’ll have a warrant, I’m sure.”

Laslo chuckled. “I’m sure that’s just what we’ll do, bother the judge with a warrant for blood on a damn dee-wee.” Laslo turned and headed for his car.

Gonzo hot-footed it to the convertible as soon as Laslo opened his door and was met with the sights and smell of Doc’s perdition. The sound of Laslo’s expletive-laced tirade chased him on the wind as he pulled back onto the highway and sped away.

Fear and Loathing in a South Texas Jail? The sound of that above Doc’s byline did not sound too appealing to Gonzo. Immediately, he began planning his friend’s legal liberation.

And, as luck would have it, fortune would smile upon poor Doc that day. Gonzo recruited a few of his legal friends: a Texas legend with a ranch down near Marfa46 and the Doctor’s old friend/lawyer, Gerry Goldstein. His legal team traipsed through the Marfan courts with their heads raised and their shoulders two ax handles wide. More importantly, they wielded one hell of a big legal stick.

In short order they reduced the State’s evidence to ruin. The acid in Doc’s vomit shorted the dash cam. So, no scene video. And, as Laslo had boldly predicted, Doc’s blood was forcibly drawn without a warrant in violation of Doc’s Fourth Amendment rights as expressed in McNeely,47 and any mention of intoxication by drug without a properly administered 12-step DRE violated Delarue, Delane, and Layton.48 In other words, Laslo’s opinion was little more than a hunch or guess. Gonzo felt sure the poor ADA would awaken from a midnight nightmare with the word “suppress” hot on his lips.

During trial, Gonzo listened along with the jury as the defense team attacked what remained of Laslo’s investigation. Obviously, his preoccupation with Becky and her impact on the polls reflected poorly on any suggestion that his investigation was properly done.

In the end, Marfa got its article and the cops a black eye. What the government called intoxication the defense called food poisoning. And, the jury reasoned, there simply was not enough evidence for them to rule out food poisoning, as the defense had suggested. Hell, there was not enough evidence to rule out neurotic tomfoolery, even. In a chiding tone, the foreman said Doc’s behavior was damned suspicious. But, he said, reasonable doubt carried the day. Doc was acquitted and allowed to return to his fortified compound at Woody Creek. He and Gonzo had survived, surely to ride again.

God Bless South Texas!

Notes

1. http://www.nhtsa.gov/people/injury/research/job185drugs/cannabis.htm. It should be noted that levels of marijuana or metabolite can show in urine for up to five weeks depending on dosage and usage. Id. See also Baselt, Randall C., Disposition of Toxic Drugs and Chemicals in Man, Tenth Edition pp. 1948–52 (2014).

2. http://www.nhtsa.gov/people/injury/research/job185drugs/cocain.htm. Cocaine or its metabolites may be detectable in urine for up to 10 days, depending on us­age, ingestion method, and dosage. Id. See also Baselt, pp. 511–513.

3. Opium is the most active substance in morphine. Both are narcotic analgesics. http://www.nhtsa.gov/people/injury/research/job185drugs/morphine.htm. See also Baselt, pp. 1399–1401.

4. http://www.nhtsa.gov/people/injury/research/job185drugs/lysergic.htm. LSD may be detectable in urine 2–5 days. Id. See also Baselt, pp. 1181–1183.

5. http://www.nhtsa.gov/people/injury/research/job185drugs/methamphetamine.htm. Amphetamines and methamphetamines can be found in the urine up to a week depending on dosage. Id. See also Baselt, pp. 122–125.

6. http://www.toxipedia.org/display/toxipedia/Biological+Properties+of+Alcohol. See also Baselt, pp. 782–784.

7. 3,4,5-trimethoxyphenethylamine.

8. lysergic acid diethylamide.

9. psilocybin.

10. 3,4-methylenedioxymethamphetamine.

11. dimethyltryptamine.

12. For purposes of Drug Recognition Evaluations (DRE): Cocaine is a stimulant, marijuana its own classification, and the rest are all hallucinogens. See NHTSA/USDOT Drug Evaluation and Classification Training Program; The Drug Recognition Expert School manual, p. II-1-3 (January 2007 edition).

13. All of these are DRE-classified as CNS stimulants.

14. Hurst, Paul M., Amphetamines and Driving Behavior, Accid. Anal. & Prev. Vol. 8, p. 9 (1976).

15. Hurst, p. 9.

16. Hurst, p. 9.

17. Hurst, p. 9.

18. Hallucinogens can cause dazed appearance, body tremors, synesthesia, hallucinations, paranoia, loss of coordination, nausea, disorientation, difficulty speaking, perspiring, poor perception of time and distance, memory loss, disorientation, and flashbacks. See NHTSA/USDOT, p. XIV-4-7.

19. Hurst, p. 9.

20. Hurst, p. 9.

21. Hurst, p. 9.

22. Jones, A. W. and Kugelberg, F. C., Concentrations of Scheduled Prescription Drugs in Blood of Impaired Drivers: Considerations for Interpreting the Results, Ther Drug Monit, Wol. 29, No. 2, April 2007.

23. RIP Glenn Felts. You are not forgotten.

24. “Hysterical behavior” may be exhibited by those on LSD. Baselt, p. 1182.

25. The psychoactive effects of marijuana and opium rely heavily on the usage, dosage, and method of ingestion. Additionally, the unique metabolism, history of drug use, rate of consumption, time of consumption, eating pattern, liver and kidney functions, and other unique factors of the individual may affect psychoactive effect and duration.

26. http://www.nhtsa.gov/people/injury/research/job185drugs/cannabis.htm.

27. Raw cannabis contains a lot of THCA, which is not psychoactive (and what’s the fun in that?). When you smoke weed, the THCA molecule loses its carboxylic group (COOH) in the form of water vapor and carbon dioxide and becomes THC. Long story short, THCA becomes THC and your cannabis becomes psychoactive. This process is called decarboxylation or decarbing. http://www.thestonerscookbook.com/how_to_decarboxylate_weed.php.

28. http://www.nhtsa.gov/people/injury/research/job185drugs/lysergic.htm.

29. Following oral ingestion, onset of the first effects maybe be experienced in as little as 20–30 minutes, peaking at 2–4 hours and gradually diminishing over 6–8 hours. Residual effects may last longer. Flashbacks may occur suddenly, often without warning, and may occur within a few days or more than a year after use. http://www.nhtsa.gov/people/injury/research/job185drugs/lysergic.htm. See also NHTSA/USDOT, p. XIV-5, which says 30–45 minutes.

30. http://www.tripproject.ca/trip/?q=node/15; http://www.shroomery.org/forums/showflat.php/Number/6360671.

31. See NHTSA/USDOT, p. X-3. http://www.nhtsa.gov/people/injury/research/job185drugs/cocain.htm.

32. http://www.thepsychonaut.org/entheopedia/dmt/.

33. See NHTSA/USDOT, p. XIV-5; http://www.erowid.org/chemicals/mescaline/mescaline_basics.shtml ; http://en.wikipedia.org/wiki/Mescaline ; http://www.shroomery.org/forums/showflat.php/Number/7391394.

34. Dilated pupils can occur from stimulants, hallucinogens, or sometimes cannabis. See NHTSA/USDOT, p. V-7.

35. Increased blood pressure can be caused by stimulants, hallucinogens, PCP, or inhalants. Dealing with a police officer can also increase one’s blood pressure. See NHTSA/USDOT, p. IV-9, VII-7. See also common sense.

36. Hallucinogens can cause hallucinations, synesthesia (transposing of sensory modes), paranoia, disorientation, poor perception of time and distance, and flashbacks. See NHTSA/USDOT, p. XIV-1-7.

37. Id.

38. It is not recommended to go to IKEA on hallucinogens. It is not recommended to go to IKEA alone, either.

39. A common indicator of hallucinogens is disorientation and uncoordinated movements. See NHTSA/USDOT, p. XIV-1-7.

40. Depending on the stimulant and ingestion technique, some may cause a runny nose. See DRE Summation Chart and lots of ’80s and ’90s movies.

41. Stimulants, hallucinogens, and PCP may all cause muscle rigidity. However, there is no baseline or definition of what flaccid or rigid is for a “normal” person. See NHTSA/USDOT, p. IV-25.

42. Only CNS depressants, PCP, and inhalants will cause Horizontal Gaze Nystagmus. See NHTSA/USDOT, p. IV-12, V-7. There are many drugs that do not cause HGN. Id. Vertical Gaze Nystagmus (VGN) is not produced by CNS stimulants, hallucinogens, cannabis, or narcotic analgesics. Id.

43. Lack of convergence is only caused by CNS depressants, PCP, inhalants, and cannabis. See NHTSA/USDOT, p. IV-14, V-5, V-7. It should be noted that irrespective of drug use, there are many individuals whose eyes are simply unable to converge normally. Id.

44. Hallucinogens can cause difficulty in speech. See NHTSA/USDOT, p. XIV-7. However, stimulants can cause a person to be talkative, euphoric, or have absolute self-confidence. See NHTSA/USDOT, p. X-3, 6.

45. Common indicators of stimulant ingestion are restlessness, euphoria, talkativeness, anxiety, super strength, absolute self-confidence, and increased alertness. See NHTSA/USDOT, p. X-3,6.

46. He shall remain nameless to protect his privacy. Those who need to know, know.

47. Missouri v. McNeely, 133 S.Ct. 1552 (2013); State v. Villarreal, __ S.W.3d __, 13-13-00253-CR, 2014 Tex.App. LEXIS 645 (Tex. App.—Corpus Christi, January 23, 2014), affirmed, State v. Villarreal, __ S.W.3d __, PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. 2014, reh. granted).

48. DeLarue v. State, 102 S.W.3d 388 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); Delane v. State, 369 S.W.3d 412 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d.); Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009).

Intoxilyzer™ 9000 in Texas

CMI Inc.’s newest Driving While Intoxicated (DWI) conviction machine is coming to Texas: the Intoxilyzer™ 9000 (hereinafter referred to as the “9000”). Texas began breath alcohol testing on a statewide level in 1968 using the Breathalyzer.2 In 1980, Texas began using the Intoxilyzer 4011ASA, and in 1988 the Intoxilyzer 5000 was introduced.3 Currently, the Intoxilyzer

500068 EN (hereinafter referred to as the “5000”) is exclusively used in Texas for forensic breath alcohol testing.4 However, Texas is currently transitioning to the Intoxilyzer 9000 and training breath test operators through local technical supervisors. Implementation of the Intoxilyzer 9000 was scheduled for Summer 2015, but due to software issues and bugs, the 9000 has not been approved for evidential use. While we can only speculate on the actual software that will eventually be approved, much is already known about the Intoxilyzer 9000 from use in other states. Georgia, Colorado, and parts of New York State use the Intoxilyzer 9000 for forensic evidential purposes.

By understanding the information and studies from other states regarding inherent shortcomings, a Texas criminal defense lawyer can prepare to attack the Intoxilyzer 9000 regardless of the final software.5 This article will equip the DWI trial attorney with the science of infrared spectroscopy and an intimate knowledge of the Intoxilyzer 9000 needed to effectively represent clients.

How Breath Contains Alcohol

All humans must breathe to stay alive. Breathing involves the absorption of oxygen from the environment and the elimination of carbon dioxide from the bloodstream.6 We breathe through our mouth or nose and the air is transported by the trachea or windpipe into the lungs.7 In the lungs, the trachea branches into smaller air tubes called bronchi, which continue to branch and eventually terminate in small air sacs called alveoli.8 These alveoli are surrounded by capillaries that are elastic in nature.9 It is in these pulmonary alveoli that blood is able, by diffusion, to release carbon dioxide and absorb oxygen for use throughout the body.10 If alcohol is present in the blood, it will also diffuse across the alveolar membrane into the breath in a fixed proportion to the alveolar blood alcohol concentration and the core body temperature.11

The chemical principle that governs the diffusion of gases between the blood and the breath in the pulmonary alveoli is Henry’s Law.12 Henry’s Law states that the concentration of a material in the gaseous state above a liquid containing the dissolved material will be proportional to the concentration of the material in the liquid state.13 Henry’s Law applies to alcohol vapor (gas) in the lung in contact with blood (liquid) containing alcohol.14 Alcohol continuously diffuses across the one-cell-thick semi-permeable membrane of the capillaries into the air of the lung in proportion to its concentration in the blood.15 Ultimately, if given enough time, the breath alcohol concentration (BrAC) will reach a defined balance with the blood alcohol concentration (BAC) in accordance with Henry’s Law.16 This balance is called equilibrium.17 At equilibrium, the relationship between the concentration of alcohol in the blood and the breath can be described by the blood:breath ethanol partition ratio.18 At 34 degrees Celsius, the alleged average temperature of human breath, this blood:air ethanol partition ratio has been experimentally determined to be approximately 2100:1.19 Theoretically, at 34 degrees Celsius there is the same amount of alcohol in 100 mL of blood as there is in 210 L of air in contact with that blood in a closed container.20 This assumes that the air within the container has had sufficient time to reach equilibrium with the liquid state.21 Thus, it is necessary to try to obtain an air sam­ple from a defendant that has reached sufficient equilibrium between the air in the lungs and the pulmonary blood to satisfy accuracy and reliability.22

Infrared Spectroscopy

Before attacking the specific problems with the Intoxilyzer 9000, a brief overview of Infrared Spectroscopy (IR) is needed. Depending on their atomic and electronic structure, molecules absorb energy (light) of well-defined wavelengths.23 For molecules, the relative intensity of infrared light absorption at different wavelengths functions as a molecular “fingerprint” specific to a given molecule.24 Thus, by evaluating the relative intensity of absorption at specific wavelengths of infrared light, one can spe­cifically identify ethyl alcohol and hopefully differentiate its infrared response from that of other volatile compounds.25 Additionally, by measuring the amount of infrared light absorption at specific wavelengths, one can use a standard differential absorption technique to determine the amount of a given molecule in a sample.26 The Beer-Lambert Law dictates that the quantity of light absorbed will always be proportional to the concentration of the molecule in the solution.27 This is the physical principle the Intoxilyzer 9000 uses to determine the amount of alcohol in a breath sample.28

The Intoxilyzer™ 9000

The heart of the Intoxilyzer 9000 is its optical or analytical bench (see diagram on page following).29 At one end of the bench (left side), an infrared source generates light in the infrared region of the spectrum, which is pulsed through the sample chamber at a defined frequency (10 Hz).30 In the sample chamber, the infrared light is allowed to interact with a breath sample.31 If the breath is alcohol free, the infrared light should pass through the sample chamber freely; however, if alcohol is present, specific frequencies or wavelengths of infrared light will be absorbed.32 At the opposite end of the sample chamber (right side), a lens fo­cuses the energy (light) onto a (light) detector, made up of four crystalline detectors that generate electrical signals proportional to the incident radiation.33 Prior to it reaching the detector, the infrared light is filtered by four single wavelength filters that are integrated into the detector unit.34 Once the light passes through the filter and strikes the detector, the detector generates an electric signal proportional to the amount of light striking it.35 This signal is then transmitted to a processing unit that interprets the electrical signal.36

Functional Schematic of the 5000 (top) and 9000 (bottom— illustrative only).37

Prior to the delivery of a breath sample, the instrument allegedly establishes a zero reference point by measuring the amount of energy (light) striking the detector when the sample chamber is filled with ambient/room air.38 During a breath test, as the amount of alcohol vapor in the sample chamber rises, the amount of infrared energy (light) reaching the detector falls relative to the zero point measurement.39 By determining the difference in the amount of energy (light) striking the detector between the two measurements, the instrument is able to mathematically calculate the breath alcohol concentration in the test sample.40 The instrument then analyzes the relative response at each of the four detectors to confirm the identity of ethyl alcohol to the exclusion of other substances, if possible.41

In summary, the Intoxilyzer 9000 looks for the presence and amount of alcohol in a breath sample.42 It uses infrared light to both identify and quantify ethyl alcohol because ethyl alcohol absorbs infrared light in a unique way.43 The pattern of absorption is used to identify alcohol, and the amount of absorption is used to quantify alcohol in a breath sample.44 The Intoxilyzer 9000 then prints the analytical result in grams of alcohol per 210 liters of breath, as required by Texas law.45

Inherent Problems in the Intoxilyzer 9000

  1. Nonspecificity for Alcohol. The main difference between the Intoxilyzer 5000-EN and 9000 is the ethanol “fingerprint.” Where the 5000 measured the carbon-hydrogen (C-H) bond vibrations in the 3 micron region of ethanol’s molecular fingerprint, the 9000 is measuring the carbon-oxygen (C-O) vibration in the 8–9 micron region.46 The problem exists that other molecules are commonly found in the human body with this same C-O stretching. Specifically, other organic molecules, which can potentially contaminate breath samples, also absorb IR radiation at 9 microns.47 These include other alcohol, esters, and ethers that contain both the methyl group and carbon-oxygen bonds in their molecular structures.48 Dimethyl sulfoxide (DMSO) exhibits IR absorption in both the 3.4 and 9.4 micron regions.49 DMSO is a common solvent for organic compounds and is also used in the treatment of interstitial cystitis (aka painful bladder syndrome) and scleroderma, with rapid absorption occurring through the skin and mucous membranes.50
     Additionally, diethyl ether has been found to produce false ethanol readings at 3.4 and 9.5 microns, the latter over­lapping absorption at 9.4 microns.51 Diethyl ether is widely used as a solvent for waxes, fats, oils, perfumes, alka­loids, and gums.52 Exposure to ether vapor is highly problematic because of its high tissue solubility and its low partition ratio in humans.53 Among the numerous esters that can contaminate breath samples, ethyl formate, methyl butanoate, propyl acetate, and pentyl acetate are noteworthy because they are synthetic flavoring agents that allow many products—including ice cream, soft drinks, candy, and other foods—to taste natural in flavor.54 Furthermore, the GBI cited problems with the lack of sensitivity to compounds other than alcohol when evaluating the 9000.55 The 9000 actually scored the lowest of any competitor on the GBI survey to a list supplied by CMI to rate the specificity/selectivity for ethanol.56 Clearly breath-alcohol analysis via IR at 3.4 and 9.4 microns is not entirely ethanol specific, and any subject’s employment, medical, or eating history can and should be ascertained through appropriate evaluation of the subjects and the compounds.57
     Similarly, acetone may be found on the breath of individuals in a state of ketosis from untreated diabetes, prolonged fast, or a low-carb diet.58 Acetone impairment may resemble alcohol intoxication.59 However, the Intoxilyzer 9000 does not subtract the effect of acetone from the results.60 Texas rec­ognizes the need to evaluate whether acetone testing will need to be a necessary part of official inspection in the future.61
  2. Texas Won’t Produce the Histogram. The 9000 produces a graphical representation of the breath flow, breath volume, blow duration, and breath alcohol concentration for every subject test.62 Georgia and Colorado both produce variations of the histogram/graph. From this graph, the skilled defense attorney or expert witnesses can find answers to critical, potentially exonerating, questions: Was the breath flow continual or spiked? Did the breath sample achieve sufficient slope to be considered a valid test? Was the slope indicative of mouth alcohol? Was the exhalation time sufficient to create a level slope? Likewise, the histogram would reveal what the breath alcohol concentration was at any given point during the exhalation.63 Texas Department of Public Safety (DPS) has chosen not to save or include the histogram next to the sample result.64 Why wouldn’t Texas DPS provide all the information possible? The 9000 is absolutely capable and does produce a histogram with every breath test, but the software determines what is printed.65 In fact, the entire report format of the breath test results is configurable by CMI technical personnel per customer requirements.66
     In an email dated April 28, 2014, from Scott Brown with Texas DPS Tyler to Larry Smith, Regional Manager of North Texas Breath BAL, Mr. Brown states that by providing more information on an Analytical Report/Breath Test slip would just give “most jurors ‘rope and a tree’ with this extra information in a closed jury room.”67 Additionally, Mr. Brown notes that jurors “are not even allowed to have calculators in there. Why would we want them trying to subtract and add tolerances and temperatures without some kind of guidance (i.e., not the defense attorney suggesting they ‘do the Math!’).”68 Furthermore, Mr. Brown does “not like the actual temperatures printed on any of the Reports . . . [O]ur testimony should be ‘within tolerance, or notified otherwise’ . . . It is already confusing enough when we tell a jury that the instruments do not ‘care’ about breath temperature. I believe printed simulator temperature information will cloud the issue even more on the stand.”69 Apparently, Mr. Brown failed to read Fox and Hayward, who found that there is an 8.62% increase in breath-alcohol concentration over blood-alcohol concentration for each degree Centigrade in­crease in core body temperature.70 However, Mr. Brown and DPS have chosen to only include basic information in the Analytical Report/Breath Slip so jurors can’t hang themselves with reasonable doubt.
  3. DPS Refuses to Produce Even More Information. According to the Texas 9000 breath test slip obtained by the author, Texas will also not produce the following information:

    a. the observation period start time;
    b. when the observation period ended;
    c. the last instrument calibration date;
    d. whether the observation period was conducted by a cer­tified Breath Test Operator (BTO);
    e. the last BTO certification date;
    f. if the BTO had the subject remove any foreign material from the mouth cavity;
    g. if the subject was deprived access to foreign material dur­ing the observation period;
    h. that the subject did not belch, regurgitate, or intake any foreign material into the mouth during the observation period; and
    i. the uncertainty measurement for the result.

    All of this information is readily accessible and capable of being produced if Texas wanted it to be.71 The skilled trial lawyer will bring this to the jury’s attention and ask them to demand more open and honest forensic science. If there is nothing to hide, then why not provide all of the information possible?

  4. Four Filters with No Zero Set. The original 5000 used a tungsten filament light source that provided continuous IR and visible radiation to a five-filter chopper/filter wheel that rotated in front of the detector.72 The 9000 uses a grey body infrared light that pulses the energy through the sample chamber to a stationary detector that contains four filters, each for a specific wavelength of IR radiation.73 Where the 5000 had a blank or a zero filter in the wheel, the 9000 does not have a detector for a true zero. Instead, the machine assumes or is programmed to read zero if the filters do not detect other samples besides alcohol.74 Additionally, the Intoxilyzer 9000 “masks” all results less than 0.007 and instead reports it as 0.000.75 How can the machine be sure that it didn’t miss one of the contaminants listed above? If the detector has never been programmed or tested with the contaminants listed above, how can it truly be a zero? The answer is that it assumes that it is a zero. That’s not good enough for forensics.
  5. Common Problems Between the 5000 and 9000. Luckily for the defense attorney, the 9000 still maintains several similar problems that juries have been responsive to (1). Both Colorado and Georgia still use a 20-minute deprivation or observation period.76 Presumably, this is because CMI suggests this, but until CMI publishes its own operator manual, we will not actually know for sure. Texas still only requires a 15-minute waiting period.77 Further, Texas Breath Alcohol Testing Regulations are in the process of being changed to: “An Operator shall remain in the continuous presence of the subject at least 15 minutes immediately before the test and should exercise reasonable care to ensure that the subject does not place any substances in the mouth.”78 And while Texas recognizes that direct observation is not necessary, Texas addresses increased scrutiny of the continuity requirement by stating that “clearly the ‘best practice’ is for the Waiting Period to be conducted entirely at the testing site”79 (2). The CMI warranty is only valid for one year from the date of invoice to the initial purchaser.80 The warranty extends only to the original purchaser and does not include abuse, misuse, cables, switches, or use of the product for other than its intended purpose.81 Additionally, the warranty does not apply if the product is in any way tampered with or modified without express written permission from CMI, Inc.82 CMI sells an extension of the warranty for one year for $125.83 The warranty argument will come into play after the first year from purchase, which should be soon with the delayed implementation in Texas (3). CMI still won’t sell the new source code or COBRA V5 software to the 9000 without a protective order and non-disclosure agreement.84 Any viewing of the source code must be done at CMI and may not be sent outside for independent analysis85 (4). CMI still won’t sell private citizens their machine86 (5). The breath tests must still be within 0.02 of each other87 (6). There is still no ToxTrap requirement or way to save the breath sample for independent testing using gas chromatography (7). For the 9000, although capable of running a dry gas simulator, Texas has chosen a wet bath–compatible option like the 5000 simulator sample.88 As with any preparation of a simulator solution, human error is always a factor.
  6. New 9000 Issues. First, as discussed above, the optical bench is the heart of the 9000. The optical bench is shielded by a metal case that allegedly protects it from ambient electromagnetic radiation.89 However, it also has a radio frequency detection circuit that will still cause it to read radio frequency interference detected if a source is sufficiently strong and in the vicinity during the breath test.90 Why have the antenna and prompt if the optical bench is absolutely protected by the metal case? Second, the new software has so many bugs and issues that the machines have been delayed for implementation until they can be “solved.” Third, the sample chamber in the 9000 is only approximately 6 inches long, where the 5000’s was 10 inches long.91 This is a lot less room and a smaller sample being analyzed; therefore, any mistake will have a conversely larger effect in the measurement. And lastly, regarding the valves that control the source of tested air: The 5000’s three-way mac valve has been replaced by a valve of least resistance in the 9000 that can actually go back and forth.92 Arguably, any valve that can go back and forth could allow contamination in from previous samples, ambient air, or even the simulator solution.
  7. Why Is Texas Still with CMI? In a comprehensive analysis of the Intoxilyzer 9000, the Swedish-made Evidenzer 240 Mobile, and the Datamaster, the Intoxilyzer scored last in the diagnostic criteria where each machine was tested to determine whether it possessed all necessary diagnostic elements to ensure accurate and reliable testing.93 Additionally, the evaluation clearly showed the users ranked the 9000 lowest in the specificity/selectivity of the machine to be completely specific for ethanol.94 Does Texas have some sort of exclusivity contract with CMI? Did Texas conduct its own evaluation against other machines? Can we see that report?

Despite many remaining issues and questions, DPS chose the Intoxilyzer 9000, which will eventually make its way into the hands of Texas breath test operators. It’s not a good sign that the machine already has software issues that delayed implementation. However, the DWI trial attorney must be ready for the inevitable implementation. Like any machine, it is not perfect. It will not behave perfectly. The Intoxilyzer has certain inherent scientific issues that are ripe for cross-examination. Just as the State will always strive to bring out the best in forensic science, we as defense attorneys must always remind the State about the flaws in its method and instrumentation. And we must educate the public and juries about the limitations, unreliability, and inaccuracies in the State’s forensic testing. Only through these checks and balances will the citizens charged with DWI actually receive reliable and accurate forensic chemical testing.

Notes

1. Thank you to Frank Sellers and Matthew Malhiot for their editing. Also, thank you to Matthew Malhiot Forensic Alcohol Consulting & Training, LLC, 1353 Riverstone Parkway, Suite 120-382, Canton, GA 30114, http://www.forensicalcoholconsulting.com, and Rhidian Orr, Galleria Office Towers, 720 S. Colorado Blvd #1110n, Denver, CO 80246, http://www.orrlaw.com, for their tutelage.

2. See Texas Breath Alcohol Testing Program Operator Manual, p. 4 (2001).

3. Id.

4. See Texas Breath Alcohol Testing Program Operator Manual, p. 10 (2001).

5. The Georgia Bureau of Investigation Division of Forensic Sciences (GBI) Operator Transition Training Manual 2014 Revision; GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000; GBI Intoxilyzer 9000 Georgia Operator’s Transition Training Manual 2013 Revision; Colorado Department of Public Health and Environment Intoxilyzer 9000 Operator Guide for Law Enforcement from May and September 2013.

6. GBI Operator Transition Training Manual 2015 Revision, p. 14.

7. Id.

8. Id.

9. Id.

10. Id.

11. Id.

12. Id.

13. Id.

14. Id.

15. Id.

16. Id.

17. Id.

18. Id.

19. Id.

20. Id.

21. Id.

22. Id.

23. GBI Operator Transition Training Manual 2015 Revision, p. 16.

24. Id.

25. Id.

26. Id.

27. Id.

28. Id.

29. Id.

30. Id.

31. Id.

32. Id.

33. GBI Operator Transition Training Manual 2015 Revision, pp. 15 & 16.

34. Id.

35. GBI Operator Transition Training Manual 2015 Revision, p. 16.

36. Id.

37. GBI Operator Transition Training Manual 2015 Revision, p. 15.

38. GBI Operator Transition Training Manual 2015 Revision, p. 16.

39. Id.

40. Id.

41. Id.

42. Id.

43. Id.

44. Id.

45. Texas Penal Code § 49.01(1)(a) (West 2001); GBI Operator Transition Training Manual 2015 Revision, p. 16.

46. GBI Intoxilyzer 9000 Operator Transition Training Manual 2014 Revision, p. 5; GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, pp. 6, 39, and 77 (September 2012).

47. See Labianca, Dominick, “Breath-alcohol analysis: a commentary on ethanol specificity in the 3 micron and 9 micron regions of the IR spectrum,” Journal of Forensic Toxicology v. 24, p. 92 (2006).

48. Id.

49. Id.

50. Id.

51. See Labianca, Dominick “Breath-alcohol analysis: a commentary on ethanol specificity in the 3 micron and 9 micron regions of the IR spectrum,” Journal of Forensic Toxicology v. 24, p. 93 (2006).

52. Id.

53. Id.

54. See Labianca, Dominick, “Breath-alcohol analysis: a commentary on ethanol specificity in the 3 micron and 9 micron regions of the IR spectrum,” Journal of Forensic Toxicology v. 24, p. 94 (2006) citing Hill JW, Kolb DK, Chemistry for changing times, 10th edition, pp. 262–263 (2004).

55. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, p. 65 (September 2012).Compounds that were analyzed by the 9000 for specificity included acetone, acetaldehyde, methanol, 2-propanol, toluene, ethyl acetate, 2-butanone, 2-butanol, 1-propanol, acetonitrile, methylene chloride, and 2-methyl propanol. Id. at 93.

56. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, p. 64 (September 2012).

57. See Labianca, Dominick, “Breath-alcohol analysis: a commentary on ethanol specificity in the 3 micron and 9 micron regions of the IR spectrum,” Journal of Forensic Toxicology v. 24, p. 94 (2006).

58. See “The Effect of Acetone on the Intoxilyzer 9000,” PowerPoint presentation by Janeen Kubilus, Forensic Scientist, Breath Alcohol Laboratory, Law Enforcement Support-Crime Laboratory Service (432)386-0353, slide 6. Ms. Kubilus stopped replying to my emails after I sent her a copy of her presentation and I asked her for clarification of her research and findings.

59. Id.

60. See “The Effect of Acetone on the Intoxilyzer 9000,” PowerPoint presentation by Janeen Kubilus, Forensic Scientist, Breath Alcohol Laboratory, Law Enforcement Support-Crime Laboratory Service (432)386-0353, slide 23. See also Breath Alcohol (BAL Advisory Board Meeting Minutes, p. 3 (05/2014); email from Heather Greco, Quality Assurance Specialist with Texas DPS to Larry Smith, et al., on May 26, 2014.

61. See Breath Alcohol (BAL Advisory Board Meeting Minutes, p. 3 (05/2014); email from Heather Greco, Quality Assurance Specialist with Texas DPS to Larry Smith, et al., on May 26, 2014.

62. GBI Intoxilyzer 9000 Operator Transition Training Manual 2014 Revision, p. 22; GBI Operator Transition Training Manual 2015 Revision, p. 35.

63. GBI Intoxilyzer 9000 Operator Transition Training Manual 2014 Revision, pp. 22–23; GBI Operator Transition Training Manual 2015 Revision, p. 40.

64. See attached Texas Intoxilyzer 9000 breath test slip versus Colorado breath slip.

65. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, pp. 54 and 56 (September 2012).

66. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, p. 54 (September 2012).

67. See email dates Monday, April 28, 2014, 1:48 pm, Subject: FW, Attachments: Brown AB Comments on Analytical Report.

68. Id.

69. Id.

70. See Fox, Glyn R., and Hayward, John S., “Effect of Hyperthermia on Breath-Alcohol Analysis,” Journal of Forensic Sciences, Vol. 34, No. 4, pp. 836–841, July 1989.

71. See Colorado Intoxilyzer 9000 slip; GBI Intoxilyzer 9000 Operator Transition Training Manual 2014 Revision; Colorado Department of Public Health and Environment Intoxilyzer 9000 Operator Guide for Law Enforcement from May and September 2013.

72. GBI Intoxilyzer 9000 Operator Transition Training Manual 2014 Revision, pp. 5–6.

73. Id.

74. GBI Operator Transition Training Manual 2015 Revision, p. 16.

75. See “The Effect of Acetone on the Intoxilyzer 9000,” PowerPoint presentation by Janeen Kubilus, Forensic Scientist, Breath Alcohol Laboratory, Law Enforcement Support-Crime Laboratory Service (432)386-0353, slide 10.

76. Colorado Department of Public Health and Environment Intoxilyzer 9000 Operator Guide for Law Enforcement from May and September 2013, p. 4; GBI Intoxilyzer 9000 Operator Transition Training Manual 2014 Revision, p. 9.

77. See Texas Administrative Code, Title 37, Part 1, Chapter 19, Subchapter A, Rule 19.3(a)(1). Training Schedule PowerPoint by James Tedder, Deputy Scientific Director, Breath Alcohol Laboratory, Texas DPS emailed on July 7, 2014, to Alvin Finkley, et al., Subject: 9000 Supplemental Power Point, slides 10–13, 15–17.

78. See An Overview of the Training and Implementation of the Intoxilyzer 9000, pp. 3 and 6; emailed from Larry Smith, Regional Manager North Texas BAL to Kristina Aguirre on July 14, 2014.

79. See An Overview of the Training and Implementation of the Intoxilyzer 9000, p. 7; emailed from Larry Smith, Regional Manager North Texas BAL to Kristina Aguirre on July 14, 2014. See also Texas Depart of Public Safety Interoffice Memorandum from Randall Beaty, Deputy Scientific Director to Luis Gonzalez, Assistant Director THP on February 24, 2014.

80. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, p. 73 (September 2012).

81. Id.

82. Id.

83. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, p. 80 (September 2012).

84. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, pp. 55, 76, and 80 (September 2012).

85. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, p. 55 (September 2012).

86. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, p. 70 (September 2012). Although no written policy exists on who can purchase or receive training, this author was denied the ability to purchase a machine when he submitted a request as a private citizen and not an attorney.

87. See An Overview of the Training and Implementation of the Intoxilyzer 9000, p. 6; emailed from Larry Smith, Regional Manager North Texas BAL to Kristina Aguirre on July 14, 2014.

88. GBI Intoxilyzer 9000 Operator Transition Training Manual 2014 Revision, p. 5.

89. GBI Operator Transition Training Manual 2015 Revision, p. 42.

90. Id.

91. CMI Manual, also according to Mathew Malhiot..

92. CMI Manual, also accoridng to Mathew Malhiot.

93. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, pp. 11–12 (September 2012).

94. GBI Evaluation of Breath Alcohol Testing Instruments to Replace the Intoxilyzer 5000, pp. 64–65 (September 2012).

Not Guilty v. Goliath: Conquering Giant Blood Tests Using the Disconnect Defense

Finally the day has come: Written on the face of the State’s file, in big red letters, is the blood test result. Most attorneys cringe when the lab result reveals a blood alcohol concentration over a 0.15. Now, the district attorney may legally enhance the original Class B misdemeanor Driving While Intoxicated 1st (“DWI”) to a Class A DWI, thereby increasing the punishment range to $4,000 and one year in jail.2 Additionally, jurisdictions that have a pretrial intervention program (“PTI”)3 may refuse to allow clients with over a 0.15 to participate in the program. And psychologically, most attorneys think that defending a blood test DWI case, let alone a high blood test case, is impossible.

The gravity of a high blood test result is a tremendous weight the jury must overlook. A high blood test result is an immense burden for the defense attorney to overcome. However, human common sense can relieve this massive burden, thus turning the defense attorney and jurors into modern-day heroes who together can courageously slay the giant blood test result. Using the disconnect defense (“DD”), the skilled trial lawyer will be able to empower jurors to trust their common sense and not blindly accept science or the gas chromatograph (“GC”). This article will encourage and enlighten the modern day “David” to conquer giant blood test cases and save the innocent.

Choose the Battleground

The story of David versus Goliath begins as Saul and the Israelites face the Philistines near the Valley of Elah.4

In present day, defense lawyers do not usually choose where to battle the Giant; it’s always in the courtroom. In rare cases, a trial lawyer may change the courtroom, judge, or prosecutor based on bias, past history, or other legal argument. Some territory is friendly and some hostile: You must be knowledgeable of actual particularities and rules of the Court. Additionally, know the personalities, strengths, and weaknesses of the jurisdiction, court, judge, and prosecutor. Texas Criminal Defense Lawyers Association, county listserves, mentors, and elder attorneys with stories of battles fought long ago are extremely valuable resources. In order for the DD to succeed, the battle must occur on reasonably fair ground. In the case of extremely hostile territory, the battered trial attorney may still prevail with jury nullification sympathy.

Choose the Fighter

Twice a day for 40 days, Goliath, the champion of the Philistines, comes out between the lines and challenges the Israelites to send out a champion of their own to decide the outcome in single combat, but Saul and all the Israelites are afraid. David, bringing food for his elder brothers, hears that Saul has promised to reward any man who defeats Goliath, and accepts the challenge.5

Similar to the Philistines, the State proudly presents and struts a high blood test result around, daring any defense lawyer to challenge this giant result. The defense bar, like the Israelites, must wait for the right fighter/case to challenge the State. The knowledgeable trial attorney knows that not every giant can be conquered.

The patient trial attorney waits for the right case: where the client is physically and mentally “normal” and any loss of faculty may be rationally explained. Examples of items useful in explaining a loss of physical faculties are (1) medical rec­ords of back, leg injury, inner ear problems, vertigo for poor performance on the One Leg Stand (“OLS) or Walk and Turn (“WAT”);6 (2) a height and weight chart to determine if they are 50 pounds or more overweight;7 (3) a demonstration of the client’s boots or heels in court;8 (4) a diagram of the angle of the ground;9 or (5) evidence of brain tumor, brain damage, or natural nystagmus for the Horizontal Gaze Nystagmus (“HGN”).10 The DWI trial attorney needs to show the jury how easy the Standardized Field Sobriety Tests (“SFSTs”) are to fail and how normal the client’s test results were.11 In the event the client chose to invoke his rights and refused all the SFSTs, educate through voir dire and cross-examination that invoking a constitutional right is not illegal. Additionally, help the jury recognize that any refusal was clear and coherent, and the client stood still and stable the entire time. The right DD case is one where the reasonable suspicion and probable cause for the arrest are non-egregious and rationally explainable. Make the case rest solely on the reliability and accuracy of the giant blood test.

Weapons and Armor

“Don’t worry about this Philistine,” David told Saul. “I’ll go fight him!” Saul reluctantly agrees and offers his armor, which David declines, taking only a staff, his sling and five stones from a brook.12

Notice that David was not only willing to fight, but also knew that he had better aim without excessive armor. The courageous trial lawyer not only protects the innocent through battle, but also trains for battle and is a master of legal and scientific weaponry. Any trial attorneys who want to or may want to fight DWI blood test cases should enroll in blood CLEs; enroll in DWI CLEs; educate themselves through reading articles and transcripts; and observe and assist other trial attorneys in battle.13

The educated, blood DWI trial lawyer knows gas chromatography, infrared spectroscopy, and mass spectrometry. In an effort to provide a brief generalization of headspace gas chromatography flame ionization detection (HSGC-FID), it is important to start with the actual blood draw site. The physician, qualified technician, chemist, registered professional nurse, emergency medical technician, or licensed vocational nurse14 must use a sterile solution, not ethanol, to cleanse the site/arm in concentric circles.15 Usually the drawer uses iodine, betadine, or povidone-iodine. The drawer then inserts a needle in the vein of the arm and blood is drawn into a pressurized test tube called a Vacutainer.16 The Vacutainer is usually grey topped and may contain a variety of chemical components, so it is important to research the manufacturer of the Vacutainer and the additives.

Most grey-topped BD Vacutainers contain an anti-coagulant (Potassium Oxalate) and preservative (Sodium Fluoride)17 and must be properly inverted 8–10 times.18 Arguably, if these steps are not strictly followed then the third prong of Kelly is violated.19 Most jurisdictions draw blood into two Vacutainers, which are then packaged and transported to a laboratory. The chain of custody is critical to determine how the blood was transported and ultimately delivered—i.e., whether it takes days to get to the lab, sits in the trunk of a car, sits in an unsecure location, is shaken, is contaminated, etc. Once at the lab, the lab’s chain of custody should list every time the Vacutainer is moved or analyzed.

Next, an analyst will prepare the client’s blood for testing by adding the client’s blood to N-Propanol and a salt in a smaller vial. N-Propanol is called the standard since it should never exist in a living person’s blood. Note that the analyst programmed the GC/computer before the test is even run to know exactly how much N-Propanol is being analyzed. The client’s mixture is then capped and heated. According to Henry’s Law, “At a constant temperature, the amount of a given gas that dissolves in a given type and volume of liquid is directly proportional to the partial pressure of that gas in equilibrium with that liquid.”20 Or in plain language, the blood alcohol concentration should be the same in the gas above the liquid at equilibrium. The vial is then placed in an autosampler, and the autosampler then withdraws an amount of headspace gas (HS) with an automated needle and injects the gas into the injector port of the GC. The carrier gas, usually either helium or nitrogen, helps push the sample through the column(s). Inside the column(s), ethanol and N-Propanol are separated from each other due to their unique attractiveness (retention time) to the walls of the column. Then, ethanol and N-Propanol will come out (elute) at a particular time and order based on their unique retention times. The compounds will then travel through a flame ionization detector (FID).

The FID is connected to a computer that registers the burst in flame and transmits that detection into a graph (chromatogram). The source code in the computer then measures the area under each peak on the chromatogram. The computer measures the area underneath the N-Propanol peak and has been programmed to relate that particular area with the amount of N-Propanol added by the analyst. The computer then uses that calculation as the benchmark to measure the amount of ethanol present in the sample.21 In the end, the GC does not directly measure the amount of ethanol in the sample, but rather indirectly measures the amount of ethanol in relation to an alleged known, exact amount of N-Propanol.22

There are many intelligent lawyers and scientists, but their intelligence may confuse juries. Real experts must be able to teach basic GC to the average Texan. The trial lawyer knows that a case is not won by making the expert, judge, or prosecutor look uneducated. The skilled trial lawyer is able to teach this complex science and measurement in a way the everyday juror can understand. Although the burden rests with the State to prove the blood result is reliable and accurate, most often the defense counsel must actually simplify the science in order to make any problems with the analysis understandable.

Strike Swiftly, Accurately, and Without Mercy

David and Goliath confront each other, Goliath with his armor and shield, David with his staff and sling. David hurls a stone from his sling with all his might and hits Goliath in the center of the forehead.23

Like David, the trial attorney knows the power of the DD. In order to throw a rock from a sling, you must first place the rock in the sling, then twirl the sling very fast, and ultimately release the rock at the precise moment with precision and accuracy.

a. Getting the Sling Ready

The preparation of the sling comes in voir dire. The trial lawyer needs to sow the seeds of doubt in the jurors’ minds. Incorporate a discussion about what people may look like at high alcohol concentrations. Most jurors will agree that they could not determine if a stranger was a 0.08. Take them one step further: What about a 0.16, twice the legal limit? About half of the jury will say they could tell if a stranger was twice the legal limit because that person will be stumbling, slurring his speech, and obviously drunk. Then, ask how many jurors could tell if someone was 0.24—three times or more over the legal limit? It may be easier to ask if any juror could not tell if someone was that intoxicated. When questioned about signs of intoxication at three times over the legal limit, jurors often say vomiting, passing out, or absolutely belligerent or wasted behavior.

Be wary of the juror who submits tolerance as an excuse for looking normal. Explain that tolerance only masks ordinary actions one does while intoxicated. So in the case of SFSTs—abnormal exercises—tolerance will not mask the effects of alcohol.24 Help the jury realize that people exhibit tolerance by being able to walk and talk normally while intoxicated, and that these are things they “practice” when they are intoxicated. Unless the client is practicing SFSTs while intoxicated, tolerance cannot mask the effects of alcohol on abnormal exercises such as the SFSTs. Additionally, ask the jury this: What if you went to dinner, had a couple glasses of wine, were pulled over and passed the SFSTs, do you go home, or does the State get to say you have a tolerance? Tolerance is eating your cake and having it too. Make the jury scared and skeptical of the State arguing tolerance.

Since we are not allowed to discuss the facts in voir dire, relate the information the jury just gave you about extreme alcohol results with a common household machine—i.e., stopwatch, thermometer, or a bathroom scale. Next, show them a simple picture of an obese man, a child grinning and playing outside, or a very skinny person. Then ask: What if I told you this. Right now, this obese person ran a 4.5-second 40-yard dash according to my stopwatch; the child has a 114-degree temperature; or the skinny person weighed 350 pounds on my bathroom scale. What would you say to me? Most say: No way!

Now, relate dire consequences with this measurement: What if we bet $10,000 or jail time that the measurement is right, and I am telling you, “Trust me, it is accurate and reliable.” Ask the juror: What do you want to happen? Most jurors will shout out: Prove it! In any DWI case, the State will argue the blood result of intoxication is per se at 0.08, but the State must prove the result is accurate and reliable beyond a reasonable doubt. Let the jury recognize the need for proof over blind acceptance of a machine’s reading.

Next, relate the common everyday machine example to problems with blood testing. Go down the row of jurors relating blood testing issues one by one and ask them how it makes them feel. For example with the stopwatch: What if I told you I was paid by the parents of this student to time how fast he ran the 40-yard dash in hopes of getting a track scholarship to a Division I school? I have timed tens of thousands of students and never been wrong. Only I would ever know if I was wrong. I use my stopwatch and I line up all the kids I’m timing, then I time them all and get a printout at the end. I know the order of the kids, so based on that order I can tell you what the student ran. The order does not printout the student’s name, but actually a unique identifier that I supplied them. Also, my stopwatch does not actually time the student, rather it measures their speed in relation to how fast an NFL running back ran the 40, and I program that speed to be 4.5 because I know that running back ran that fast, absolutely. Also, I have no idea whether the student even looks like a Division I track star. Lastly, when my fellow employee checks my work he just reviews my numbers and is not physically present during the timing. Break down these statements by asking a juror one statement at a time: Would that make you feel more or less comfortable with my procedure? In the end, after all the statements are exposed, ask the jurors this: Would you trust my result or do you want that student to prove it?

b. Twirl the Sling With Everything You’ve Got

Eighty to ninety percent of jurors make up their mind after opening statement.25 In opening, tell the jury what really happened, tell them how normal the client looks and where they can clearly see normal mental and physical faculties. Freely disclose that the case is all about the accuracy and reliability of the blood test result. Tell the jury that the blood test result is an indisputable conflict with the tangible evidence. This indisputable conflict of a ridiculously high number versus the client’s normal mental and physical faculties defies logic and common sense.

Use cross-examination of the officers to minimize any alleged loss of the client’s mental and physical faculties. Again, show the jury how unfair the SFSTs are by educating the jury on how the tests are actually administered. Expose that the officer took a 40-hour course to be certified by the National Highway Traffic Safety Administration (“NHTSA”) to administer SFSTs. Additionally, the officer was only graded at the end of the course. The officer was not graded on the first day after just learning how to administer the test only one time. And, if the officer missed 3 questions on the certification test, he did not fail. In fact, the officer received credit for every correct answer. Moreover, the officer has never taken a test where he did not receive credit for correct answers. If you have a 100-question test and miss 3, what is your score? Would you ever take a test where you did not get credit for the answers you got right? Most seasoned officers will volunteer that NHTSA requires this type of grading, and “scientists” developed the grading system. A good jury will recognize the unfairness of the NHTSA grading method.

The jury should also truly understand these tests in case they wanted to try them, after the trial is over. Start with either test and walk through the exact instructions and break down how many specific instructions are given in each test (15 for walk and turn, 13 for one leg stand).26 How many times did the officer give the client the instructions? How many times does the officer demonstrate the test for the client? Does the officer allow the client to practice before being graded? Was the client allowed to practice for over 40 hours before he was graded on his administration of these tests, like the officer was allowed to do? Is the client told the clues the officer is looking for? Did the officer tell the client it only takes 2 clues to indicate intoxication? Did the officer tell the client that injuries, age, or weight may affect the results? Make sure to write these answers on your display board for each test. Next, walk through each clue and show the jury how meticulous and subjective the clues really are.

Furthermore, attack the Horizontal Gaze Nystagmus (HGN) test by educating the jury that the officer did not state any clues on the video and only wrote down these clues once the client was arrested for DWI. Additionally, NHTSA does not define how far the eye must jerk in order to be counted as a clue, or how many times the eye must jerk. Another issue, the client usually gets every single clue on the HGN, but rarely triggers all clues on the Walk and Turn or the One Leg Stand—tests where the jury can see the clues with their own eyes. In fact, the jury must “trust” that the officer saw all of the clues on the HGN. Most jurors will appreciate the defense attorney revealing just how easy these tests are . . . to fail.

And lastly, ask each witness whether the client urinated themselves or asked to use the restroom. The existence of a high blood alcohol concentration generally means large volume of alcohol consumed. Every experienced drinker knows that it is only a matter of time until you have to urinate frequently because your body cannot physically retain all of the liquid.27

Now the case is all about the reliability and accuracy of the blood test . . .

c. Deadly Strikes

1. The Blood Drawer

David hit Goliath only once in the forehead, which caused the giant to fall. Cross-examination of the blood drawer should revolve around proper site preparation and handling of the Vacutainers. Remember a physician, qualified technician, chemist, registered professional nurse, emergency medical technician, or licensed vocational nurse28 may draw the blood. This area of questioning is ripe for Kelly challenges that the proper forensic procedure was not correctly performed in this case. However, if the drawer did proper inversions or cleansing technique, do not be afraid to admit and congratulate them. Not only does it show knowledge of phlebotomy on your part, but also shows that you are not attacking every witness and just “throwing spaghetti at the walls,” as the State likes to argue.

A real and valid problem with improper cleansing of the site is the chance of candida albicans affecting the blood result. C. albicans is a yeast that can cause falsely elevated ethanol levels in blood.29 It is absolutely necessary that the drawer properly cleanse all of the dirt, bacteria, yeast, or fungus from the site of needle insertion. C. albicans contamination is a hotly contested defense with literature existing from both the State and defense point of view. Bottom line, the analyst never tested for C. albicans and assumes that: (1) the nurse properly cleansed the site; (2) no C. albicans was introduced externally into the sample; and (3) no C. albicans resides inside the client.

Whether the Vacutainers were properly inverted can affect the blood results as well. The preservative and anticoagulant must be mixed homogeneously throughout the blood. If not, then the blood can coagulate (clot) or ferment. The definition of ethanol concentration in blood is based on grams of ethanol per 100 milliliters of whole blood, not serum or plasma.30 If the blood clots, then serum will begin to form.31 Since ethanol is hydrophilic, it will stay in the serum and produce a falsely elevated ethanol result (18–59% high) when the serum is tested, and not whole blood.32 Whoever inverts the Vacutainer is responsible for proper inversion technique: two full 180-degree turns is one inversion.33 If the inverter of the tubes plays games about the ease of mixing liquid and powder, ask how many times they need to stir the cocoa, Tang, or baby formula into the liquid before it is homogeneous.

The blood analyst assumes proper cleansing technique and inversions are performed on the Vacutainers. The blood drawer and person who inverted the tubes are prime targets for blood suppression based on the third prong of Kelly. Additionally, the drawer very rarely remembers the client and should not have any opinion of intoxication. Lastly, this witness will likely agree the client never asked to use the restroom.

2. The Analyst

The Analyst is the smartest and most dangerous witness of a blood test trial. The State proudly displays the analyst as the smartest person in the room, knowing far more about science than everyone else. In fact, some analysts may even refer to themselves as “scientists.” The trial attorney should read the résumé and classes taken by the analyst and politely educate the jury on the true foundation of their knowledge. For example, a certain Harris County analyst attended the following classes: “How to Be a Good Expert Witness,” “Expert Testimony Training for the Prosecutor and Scientist—Part 1,” “Expert testimony Training for the Prosecutor and Scientist—Part 2,” and “Law and Forensic Science.” Additionally, this same analyst has prepared tens of thousands of vials and currently testifies that she has never made a mistake. Furthermore, this same analyst only testifies on behalf of the State and has never testified that the result is inaccurate or that the State has ever made a mistake. The jury needs to recognize that this analyst is not an independent “scientist” who works for an independent lab. Rather, this is the State’s puppet.

After exposing an analyst’s bias, begin the cross-examination with basic science every juror learned. Begin with the Scientific Method and write it on a butcher pad for all the jurors to see:

(1) Develop a question;
(2) Conduct background research;
(3) Develop a hypothesis;
(4) Test the hypothesis through experimentation;
(5) Analyze the data;
(6) Draw a conclusion; and
(7) Report the results or retest.34

Commit the analyst that there is no “Trust Me” step.35 In fact, if conducting true science, the analyst should adequately document the entire test so that it can be reproduced and the exact same results achieved. There is no “trust me” in science.

Once the Scientific Method is established, walk the jury through the blood testing procedure. Make sure to point out that the analyst assumes the blood draw was done properly and the proper inversions occurred. Discuss the issue of C. albicans and reveal that the analyst never tested for C. albicans. Next, move through the process of gas chromatography while simplifying it for the jury. After the jury, the Court, and State understand gas chromatography, begin revealing the problems with the individual GC/machine. It is absolutely necessary that all discovery materials are reviewed by a defense expert.36 The defense expert will often times find problems with the State’s lab, but may ultimately conclude that any problems would not affect the result in the case. The skilled DWI trial attorney knows how to develop those simple problems into big reasonable doubt. The DD does not require a defense expert.

One of the biggest fears of any analyst or laboratory is switching samples. Unlike breath testing, blood is not tested one sample at a time. Blood samples are loaded on to a tray and numerous subjects are placed into an autosampler, which feeds into the GC. This differs from breath testing where the officer administers the breath test to one subject at a time and the result comes out immediately. What if 35 people blew and a printout of the results in the order received was produced? Better hope no one messed up that order.

Ask the analyst if the technical reviewer who is on the blood test result physically observed the order and double-checked the order. Usually, just one analyst makes all 70–90 vials at a time and places them in the machine. Most analysts—when asked “How do we know you didn’t mess up the order?”—will simply say, “Trust me,” or, “I don’t make mistakes.” Obviously, this is a moment to refer back to the basic scientific method and remind the analyst there is no “trust me” in science. Furthermore, most analysts do not even write the client’s name on the vial in the autosampler; most write only the case number or some other numerical identifier.

Examine the entire batch/run that includes the client’s sam­ple. Look for similar numbers, look for possible switches with 0.000s or under 0.08, and look at the samples just before and after the client’s. Blood testing procedure has a tremendous possibility for human error in switching vials. Ask the analyst how many blood sample vials they have prepared versus how many times they have testified at trial. What is the likelihood that anyone would ever question or confront them about a mistake? Who would know if they switched vials? The only way to get caught would require the right defense lawyer willing to try a DWI blood case and an innocent client professing innocence in order to even challenge whether a mistake was made.

If defense counsel knows the science and assumptions of retrograde extrapolation, retrograde the result as high as possible with as many drinks possible to have occurred at the time of driving. Afterwards, cross-reference the result with Dubowski’s table on common characteristics at that level.37 Challenge these characteristics with actual tangible evidence in the case: the video and offense report. Ask the analyst if the client looks like that ridiculous number on the video. Most, if not all, never watch the video. The trial lawyer should pause and look at the jury. The jury should understand that the puppet is willing to testify to intoxication without even watching the video. And then finally ask the analyst: “If the result does not match the evidence, what is prohibiting the analyst from retesting the blood for C. albicans and the client’s DNA?”

Finish the Fight

Then David ran over and pulled Goliath’s sword from its sheath. David used it to kill him and cut off his head.38

Exhausted from battle, the closing argument is time to finish off the giant blood test. The jury requires courage and righteous indignation to send the client home. Who is really the villain? Is it the high blood test? No. It is the government, working together with law enforcement, accepting bad science from a law enforcement lab, and convicting the innocent on biased science. The ridiculously high blood test result that does not match the tangible evidence defies common sense. The trial lawyer should remind the jury that it was revealed in opening statement that an indisputable conflict between the blood test result and what jurors would hear and see would exist, and yet the State still has no excuse. An indisputable conflict in the evidence equals rea­sonable doubt. The fact a person can be that intoxicated, yet look that normal, and never have to use the bathroom defies common sense and science. Either the client’s body defies the laws of science and they are an alien, or the result is wrong.

Texans need independent labs for forensic science—a lab willing to acknowledge a mistake without fear of losing jobs or incurring enmity from a police agency and district attorney’s office. Scientists and labs make mistakes, but only independent scientists admit mistakes. Real science is not expected to be per­fect. Empower the jury to stand up for the people of Texas. The defense lawyer cross-examined every witness, fought the DA, and dealt with the judge without ever asking for help. Now is the time to ask the jury for help. Ask the jury to help you stand up for your client and the people of Texas. Remind the jury that when this case is over, they will remember their verdict for the rest of their lives. Remind the jury that when they go home and their friends and family ask about the case and if there was anything wrong with the blood, if they sit silent, they know deep down they are not telling the whole truth. The jury can and should be proud of a “not guilty” verdict. Ask them to stand proud and remember the day they stood up for the people of Texas against the giant government. A “not guilty” verdict is a giant cry for better forensic science in Texas.

Endnotes

1. Thank you to my associates, Mark Metzger and Shelby Burns, for their editing.

2. Texas Penal Code Section 49.04(d) states, “If it is shown on the trial of an offense under this section that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.”

3. Harris County.

4. Holy Bible, 1 Samuel 17:2–3.

5, Holy Bible, 1 Samuel 17:8–27.

6. “The original research indicated that certain individuals over 65 years of age, back, leg or inner ear problems, or people who are overweight by 50 or more pounds had difficulty performing this test.” National Highway Traffic Safety Administration (“NHTSA”) Student Manual, Section VIII, p. 14.

7. Id.

8. “Individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes.” Id.

9. Requires a reasonably dry, hard, level, and non-slippery surface. Id. at 13.

10. Nystagmus may also be caused by certain pathological disorders. They include brain tumor and other brain damage or some diseases of the inner ear. Id. at 4.

11. See “11 Essential DWI Trial Tactics,” Mark Thiessen, HCCLA The Defender, Winter 2013, pg. 26. See also TCDLA Voice for the Defense, May 2014.

12. Holy Bible 1 Samuel 17:32–40.

13. Author recommends American Chemical Society (ACS) programs at Axion Laboratories; National College for DUI Defense (NCDD) Harvard Summer session; NCDD/TCDLA Mastering Scientific Evidence; TCDLA DWI seminars. Mark Thiessen cell is 832-654-3058; call me anytime for transcripts or articles ().

14. Tex. Transp. Code § 724.017 (West 2011). House Bill 434 (Effective September 1, 2013) http://www.legis.state.tx.us/tlodocs/83R/billtext/html/HB00434S.htm.

15. Concentric Circles—start from center of site and counterclockwise in ever-widening for 2–3 inches in diameter. Ruth E. McCall, Phlebotomy Essentials, IV:11 pgs. 280, 408 (4th ed. 2008).

16. http://www.bd.com/vacutainer/.

17 http://www.bd.com/vacutainer/pdfs/plus_plastic_tubes_wallchart_tubeguide_VS5229.pdf

18. http://www.bd.com/vacutainer/pdfs/plus_plastic_tubes_wallchart_orderofdraw_VS5729.pdf

19. Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992).

20. http://chemwiki.ucdavis.edu/Physical_Chemistry/Physical_Properties_of_Matter/Solutions_and_Mixtures/Ideal_Solutions/Dissolving_Gases_In_Liquids%2C_Henry%27s_Law

21. A huge thank you to Axion Analytical Laboratories in Chicago, IL., Professor Harold McNair, Dr. Lee Polite, Justin McShane, Josh Lee, Katy Kennedy, the staff at Axion, Deandra Grant, Grant Scheiner, J. Gary Trichter, Troy McKinney, Doug Murphy, Glenn Neely, NCDD, and TCDLA for helping me understand gas chromatography.

22. Thanks to Justin McShane for everything.

23. Holy Bible 1, Samuel 17:48–50.

24. http://www.ncbi.nlm.nih.gov/pubmed/15704354.

25. Johnson, James, “Jury Argument—Winning Techniques,” Michigan Bar Journal, Vol. 90, No. 3, p. 36 (March 2011); http://vinsoncompany.com/pdf/How_to_Persuade_Jurors.pdf.

26. See NHTSA Standardized Field Sobriety Testing Student Manual, August 2006, pp. X-3–5.

27. Except this one time where a lawyer, who shall remain nameless, proved me wrong, kind of.

28. Tex. Transp. Code § 724.017 (West 2011). House Bill 434 (Effective September 1, 2013) http://www.legis.state.tx.us/tlodocs/83R/billtext/html/HB00434S.htm.

29. Chang, J. and Kollman, S. E., “The effect of temperature on the formation of ethanol by candida albicans in blood,” Journal of Forensic Sciences, Vol. 34, No.1, pp. 105–109 (January 1989); Blume, P. and Lakuta, D. J., “The effect of microbial contamination of the blood sample on the determination of ethanol levels in serum,” American Journal of Clinical Pathology, Vol. 60, No. 5, pp. 700–702 (November 1973).

30. Texas Penal Code § 49.01.

31. http://en.wikipedia.org/wiki/Serum.

32 Edward F. Fitzgerald, Intoxication Test Evidence, § 4:11.1, at 136 (1993); Edward F. Fitzgerald, Intoxication Test Evidence, § 19:13, at 9-12-13 (2d ed. 1995).

33. http://www.bd.com/vacutainer/pdfs/plus_plastic_tubes_wallchart_orderofdraw_VS5729.pdf.

34. http://www.sciencebuddies.org/science-fair-projects/project_scientific_method.shtml?gclid=CPX8zdHOi74CFeZDMgodz2gALA#overviewofthescientificmethod.

35. Thanks to Justin McShane for this approach.

36. Amanda Culberston, Gary Wimbish, or Janine Arivascu.

37. See Dubowski, Kurt M., “Alcohol Determination in the Clinical Laboratory,” Am. J. Clin. Pathol. 74: 747–750 (1980).

38. Holy Bible, 1 Samuel 17:50–51.

Eleven Essential DWI Trial Tactics

“We, the Jury, find the defendant not guilty.” Makes your hair stand on end, drops the weight from your shoulders, and weakens your knees. No sweeter words are ever heard by criminal defense attorneys standing shoulder to shoulder with their clients. Not guilty verdicts are difficult to attain in Driving While Intoxicated (DWI) cases due to anti-DWI propaganda, tragic DWI consequences, and a cultural bias against alcoholism and DWI. This article shares eleven effective trial tactics for a variety of DWI cases.

1. Be Real, Be You

As Gerry Spence says, “If you’re trying a case on the facts, you’ll lose every time.” Remember, the State chooses which cases they want to try because they think they can and should win. If the facts were on the client’s side and the client should win the case, the State will dismiss or reduce the case. Every case that goes to trial, the State believes the facts are so overwhelmingly in their favor that they can prove the case beyond a reasonable doubt. So, what do we as defense lawyers have? We have passion, we represent a human being, we have a heart, and people like us.

Imagine the jury, you, and the State are lost in the desert.1 The State stands up and says: “I was a Boy Scout, the sun rises in the East and sets in the West, home is this way, follow me.” And then you stand up and say: “I was Boy Scout too, and I also know that as well. My son’s name is Baron and my wife is Kendra. I love them both dearly and I will see them again. And when I do, I am going to wrap them both up and hug and kiss them.” Who are you going to follow out of that desert?

“Voir dire” is derived from Latin and means “to tell the truth.”2 Voir dire is an opportunity to really and truly know who your jurors are and how they feel about certain issues. By the time the defense attorney gets to speak, the judge and the State have already told them about the laws they must follow and that this case is a DWI. The defense attorney needs to know some very personal information in order to effectively make strikes for cause—i.e., each juror’s own drinking pattern, who has been affected by alcoholism, whether anyone lost a loved one or friend to DWI, any good or bad experiences with police officers, any biases, etc. Before jurors will open up and share their true feelings, they need to trust you.

How can that happen instantly? Show them yours, and they will show you theirs.3 Be vulnerable. Be genuine with the jury. Tell the juror something true about yourself. Tell them about you before you start asking about them. What should you share? You can start by sharing: (1) the worst thing going on in your life at the moment; and (2) the best thing. Also, promise the jury that you won’t ask them any questions that you won’t also answer. Tell the jury your personal drinking pattern, whether you have been affected by alcoholism or DWI, and any fears or biases you may have in the case. This allows the juror to feel comfortable sharing with you since you are sharing with them, being exposed and vulnerable. If you tell me, I’ll tell you; show me yours, I’ll show you mine. In the end, it’s only fair.

2. Presumption of Innocence

“Innocent until proven guilty” is a phrase every American knows by heart, but do humans truly understand the presumption of innocence? Jurors are often asked: “How many of y’all wonder what [s]he did to get here? Where there’s smoke there’s fire…” Every juror wonders. It’s unnatural not to. So, the skilled trial attorney needs to educate the jury on the strength of the presumption of innocence.

There is only one presumption in a criminal case: innocence.4 If there is only one presumption and that’s innocence, can the jury presume the police performed the tests correctly? Can the jury presume the breath or blood test is credible or reliable? Can the jury presume that the client can perform any of the standard field sobriety tests better than he did? NO. The jury may not presume anything other than that the client is innocent. The presumption of innocence is so powerful the State must prove their case beyond a reasonable doubt. And if just a doubt remains, the presumption of innocence prevails.

Think of the presumption of innocence as a compass. Give each juror an imaginary compass to keep with them throughout the entirety of trial. If the juror is ever lost, doesn’t know what to believe, doesn’t know who is telling the truth—the compass will point them home: not guilty. America errs on the side of freedom. The jury must never convict a human being when a doubt/question/hesitation exists. When in doubt, when confused, the compass points you home: not guilty.

3. Beyond a Reasonable Doubt

The legislature refuses to define beyond a reasonable doubt.5 However, the legislature allows counsel to compare that burden against other burdens of proof.6 Trial lawyers effectively demonstrate that beyond a reasonable doubt is the highest burden in the land and the top of any stair chart.7 The skilled trial lawyer will not only educate a jury on how high the burden is, but also simplify this cold legal phrase.

While the legislature may not provide a definition of beyond a reasonable doubt, the skilled trial attorney may provide an “example” of a similar phrase.8 Break the phrase down to the words and what those words actually mean. What’s a synonym of each word? Write the synonym next to each word of “beyond a reasonable doubt” on your display board. Start with your first juror and go down the row. If needed, help the jury discover the synonym. For example: If you went beyond your exit, where did you go? If you have a pineapple, how many pineapples do you have? Stress the “A”; it’s the shortest but most powerful word in the phrase. How much is less than A? If my wife is acting reasonable, how is she behaving? If you doubt there is water in a pool, what are you going to do at the edge before you run and jump in?

Finally, ask the jury: If you have just A reasonable doubt at the end of this case, what must your verdict be? Prepare for objections from the State by clearly stating this is not a definition and just an example. Plan on revisiting this example in closing when stressing the enormity of the State’s burden. Couple beyond a reasonable doubt with the presumption of innocence for an overwhelming case the State must prove. In the end, the jury should follow the law and return a verdict of “not guilty” because the State could not prove the case beyond a reasonable doubt.

4. The Rest of the Story

Eighty to ninety percent of jurors make up their mind after opening statement.9 After a compelling and real voir dire, the jurors are anxiously waiting to hear the client’s version. Opening statement is when the lawyer gets to tell the jury what they anticipate the evidence will show. It is not evidence. Most routine trial lawyers start their opening off : “May it please the court, your Honor, opposing counsel. The evidence will show…” You’ve just lost the jury. Unless the Court is formal and requires this, don’t do it. It is an unnecessary safety blanket better left for law school mock trial competitions. Rather, stand up and tell them your theory of the case, followed by every good quality about your client, and tell them the rest of the client’s story that the State conveniently left out.10 However, do not tell the jury anything that is untrue or that you cannot prove. Credibility with the jury must never falter.

How the defense attorney delivers an opening is just as important as what is said. A crafty trial attorney may attempt to deliver opening by “crawling in the skin”11 of his client and giving the jury a first-hand account of the rest of the story. Be prepared for objections, and let the judge and jury know that you anticipate “the evidence will show” all of this to be true. Lastly, since whether the client testifies is a last-minute decision after analyzing the need at the close of the State’s case, all of the client’s relevant background (military history, family, injuries, religion, awards, etc.) can and should be disclosed in opening statement. The jury must absolutely recognize how wonderful your client is and why they need to fight for his freedom. Hopefully, 80 to 90 percent just made up their mind for “not guilty.” Now the jury is ready to listen, see, and determine what weight to give all the evidence.

5. The First Cross-Examination Question

The jury just listened to hours of monotonous, form-read direct examination. Finally, the witness is yours. Don’t start out: “Good afternoon, Officer. How are you?” or “This is the first time we’ve ever had the chance to speak about this case.” Hit him with a power question, grab everyone’s attention.12 “Officer, if my client would have blown a 0.000 would you have let him go home?” Now the officer has two possible answers, each terrible.

“No.” Look at the jury and recognize this answer. Even if everyday citizens are wrongfully arrested and blow a 0.000, they do not get to go home. Hope is lost. There is no way out of the web. Let the State attempt to explain the charging process. If the State or officer attempts to go into drugs, the quick attorney must capitalize by objecting or spinning this in the defense’s favor. “So you mean, if we as citizens prove no alcohol in our system, you automatically think drugs?” Align yourself with the jury and help them realize there is no way out.

“Yes.” Make sure you repeat the answer, so the jury remembers it. Revisit this answer at the end of your cross. In the end, after the officer has stated he chose to arrest based on a “totality of the circumstances,” remind him of that first question and answer. Ask the officer how, if he truly saw a loss of mental or physical faculties, could he let them go? Stop there. Don’t ask that final question. Save it for closing argument and empower the jury to deliver the conclusion: The mental and physical were normal enough to let the client go had they blown a 0.000.

After your power question, proceed with cross examination as usual.

6. Standardized Field Sobriety Tests Are Easy… to Fail

No doubt the State will argue and the trained officer will testify about the simplicity of the Standardized Field Sobriety Tests (SFSTs). The trained officer almost always testifies that these tests are developed by “scientists” for every person and are very easy to pass. That same well-trained officer will also testify that people routinely pass the SFSTs and are allowed to go home. Sure.

It’s important to note how the officer was trained and how “easy” the tests actually are. Make the officer commit to the facts: He took a 40-hour course to be certified by the National Highway Traffic Safety Administration (NHTSA) to administer SFSTs. Additionally, the NHTSA student manual is authoritative on the administration of these tests. The officer was only graded at the end of this course. The officer was not graded on the first day after hearing how to administer the test only one time. And, if the officer missed three questions on the certification test, he didn’t fail. He got credit for every correct answer. In fact, the officer has never taken a test where he didn’t get credit for correct answers. If you have a 100-question test and miss 3, what’s your score? Would you ever take a test where you didn’t get credit for the answers you got right? Most seasoned officers will volunteer that NHTSA requires this type of grading and “scientists” developed the grading system. The jury should still realize the unfairness of the unique NHTSA grading method.

The jury should also truly understand these tests in case they wanted to try them, after the trial is over. Start with either test and walk through the exact instructions and break down how many actual instructions each test requires (15 for walk and turn, 13 for one leg stand).13 How many times did the officer give the client the instructions? How many times does the officer demonstrate the test for the client? Does the officer allow the client to practice before being graded? Was the officer allowed to practice for 40 hours and then some before he was graded on his administration of these tests? Is the client told the clues the officer is looking for? Did the officer tell the client it only takes two clues to indicate intoxication? Did the officer tell the client that injuries, age, or weight may affect the results? Make sure to write these answers on your display board for each test. Next, walk through each clue and show the jury the meticulousness and subjectivity of each clue. Most jurors will appreciate the defense attorney showing them just how easy these tests are… to fail.

7. Breath Test—Fifteen-Minute Violation

The third prong of Kelly states that the technique applying the theory must have been properly applied on the occasion in question.14 In order for a breath test to be valid, the officer must ob­serve the client for at least 15 minutes prior to the breath test.15 The Department of Public Safety produced what is known as the “21 Minute Video.”16 The video shows examples of invalid 15-minute waiting periods.17 The first example is when the officer parks his car at the station and opens his door to get out and retrieve the suspect in the back seat.18 The Department of Public Safety clearly recognizes that the officer cannot see through the roof of his car and temporarily loses line of site with the suspect as the officer gets out to remove the suspect. Always request the dispatch records and mobile data terminal (MDT) records to ascertain the precise time the officer arrived at the station and possibly started the 15-minute observation period after getting the client out of the back of the car. Many times officers just rush the client right in to the station to provide a sample. The well-prepared defense attorney may have indisputable evidence that a proper 15-minute waiting period was not observed. Couple this violation with Kelly and Texas Code of Criminal Procedure § 38.23 to suppress the breath test.

8. Breath Test—Walking Down the Number

No machine is infallible. The Intoxilyzer 5000EN and Texas Breath Testing have certain acceptable ranges of error. Depending on the particular facts, the skilled DWI defense attorney may walk down the client’s breath test result using the machine’s own acceptable ranges of error. First, the client’s first breath sample must read within 0.02 of his second breath sample.19 Hypothetically, if a client blows a 0.09 on the first sample, his next breath sample must measure between 0.07 and 0.11 in order to be valid. Additionally, Texas Department of Public Safety uses the lower number of the two breath samples in order to give the benefit of the doubt to the client. Second, the reference sample must measure within 0.0120 of the reference predicted, which is usually 0.08. Third, the third digit of the breath result is completely random and should be truncated.21 This means that the machine could read 0.00 as anything up to a 0.009 acceptable range of error.22 Fourth, the client’s temperature can affect the results of the breath test.23 For every one degree Celsius the client’s body is above 98.6 degrees Fahrenheit or 37 degrees Celsius, the breath test is 8.62% high.24 And the temperature of the simulator solution is already allowed to be plus or minus 0.2 degrees from 34 degrees Celsius.25 Breath test scores of 0.13 and below should be vigorously scrutinized due to the inherent unreliabilities in the Intoxilyzer 5000EN and the Texas Breath Alcohol Testing Program.

9. Blood Test—McNeely and Bullcoming

In April 2013, the Supreme Court effectively established “no-refusal” weekends every day of the year.26 McNeely recognized the ease in obtaining a blood search warrant in most metropolitan areas—henceforth, barring warrantless blood draws without an exigent circumstance.27 The State has fought back by declaring year-round “no refusal.”28 However, in the case where no warrant exists, the totality of circumstances of the particular case is necessary to determine whether exigent circumstances existed making the obtaining of a blood warrant impractical. The State must show the impracticability of obtaining the search warrant justifying the exigency exception to the warrant requirement.29 Here, any argument made by a prosecutor regarding the inconvenience or impracticability of obtaining a search warrant prior to an involuntary blood draw should be attacked with Clay.30 In Clay, the arresting officer swore to a blood warrant probable cause affidavit over the telephone and then faxed the signed affidavit to the judge.31 Arguably, it doesn’t get much easier to obtain a blood search warrant.

Additionally, any phlebotomist must be properly qualified as a “qualified technician” for warrantless blood draws.32 In all blood cases, remember that Bullcoming is still good law, requiring the actual analyst to testify before the blood results may be admissible, regardless of warrant issues.33

10. Disconnect Defense

Whether dealing with a blood or breath test, all high tests (0.16 and higher) are ripe for the Disconnect Defense (“DD”). The disconnect lies in the science not adding up to the machine results. The foundation of the DD is sobriety evidence or common­sense reasons for mistaken intoxicated behavior. In most cases where the DD is applicable, the client’s video is exculpatory for the client. Additionally, obtain the client’s medical records or other evidence needed to demonstrate normality for the client and not intoxication.

In breath test cases, you can highlight Intoxilyzer deficiencies by analogizing it to hypothetical or other measuring de­vices—i.e., thermometer, Taxalyzer 5000EN, Doppler 5000. Whatever machine you invent for jury use, use it to demonstrate the obvious error the machine made when contrasted with what you see, i.e., common sense. For example, the importance of embracing common sense by relating it to a dire consequence of being wrong—i.e., brain surgery if a thermometer reads 110°F, jail time for failing to pay taxes, or a natural disaster. Analogize your hypothetical machine with deficiencies in the Intoxilyzer: (1) 20% acceptable range of error; (2) self-checking for accuracy; (3) no warranty for merchantability or accuracy; (4) recalled in multiple states; (5) newer model available; (6) citizen cannot purchase from manufacturer; (7) manufacturer refuses to pro­vide source code; (8) not available for independent scientific test­ing; (9) destroys the only direct evidence of sobriety/intoxication when the State had the ability to save that evidence; (10) operator has no idea how the machine works; (11) “scientist” who checks it rarely does it in person; (12) any inconsistencies or strange occurrences found in test records; etc.

In blood test cases, make sure to walk the jury from cleaning the client’s blood draw site through the chromatogram. Depending on the laboratory and people involved you may find: (1) contamination in the blood draw room; (2) expired materials; (3) improper site cleansing; (4) improper blood draw technique; (5) mishandling of the evidence; (6) break in the chain of custody; (7) human error in the laboratory; (8) pipette problems; (9) sample expiration, contamination, or other problems; (10) contamination in the injector port, y-splitter, columns, flame ionization detector; (11) source code issue; (12) sloppy chromatography; etc. Each step of the way, educate the jury on possibilities of contamination, carry over, or switching vials. Inspect all the chromatograms in the run to further validate your theory.

Regardless whether dealing with a blood or breath test, each is susceptible to the DD. The skilled attorney must sew the DD through the entire case, from voir dire to closing. The verdict should be an obvious decision that the machine or those running the machine made a crucial mistake, rather than your client’s body defying the laws of science. Use the totality of the circumstances against the State by arguing the totality of sober circumstances. Intelligent human beings believe what they know with their own senses to be true instead of blindly relying on a machine result that defies common sense.

11. Storytelling Closing Argument

Closing argument gives the skilled trial attorney the opportunity to seal the case and the client’s acquittal or one last chance to steal the case from the grasps of a dry prosecutor. By closing, the jury has been sitting quietly for days, listening to the State continue ad nauseam about the facts. The last thing the jury wants to hear is a recap of all the facts. After all, the jury is human. They want Atticus Finch, Vincent “Vinny” Gambini, Erin Brockovich, Lt. Daniel Kaffee, Franklin and Bash, Denny Crain, or the Lincoln Lawyer. Tell them a story. Put on a show in closing. Sit and think about the theory of the case and how you can relate that theory into an experience that elicits the desired human reaction from the jury. Whatever story you relate to the case, make sure it’s genuine. The jury can tell when you are lying, or if you don’t believe your own argument. Again, like in voir dire, be vulnerable, show them yours.34 Whatever you choose, the closing should be so raw and powerful that you give the jury the righteous indignation to find your client “not guilty.”

DWI consequences include prison, loss of driver’s license, fines, and foreign travel restrictions. Accordingly, DWI trials are prevalent in every courthouse. All criminal lawyers will represent DWI clients at one point in their careers. DWI cases are numerous throughout the State. Mothers Against Drunk Driving (MADD) lobbies vigorously against DWI cases. We as defense lawyers must break through the bias and hatred for DWI and hu­man­ize our clients and their stories. The jury should return a “not guilty” verdict because they are following the law and making the State prove their case beyond A reasonable doubt.

Endnotes

1. Thanks to the one and only Gerry Spence for this example.

2. https://en.wikipedia.org/wiki/Voir_dire.

3. Thank you, Gerry Spence.

4. Thanks to J. Gary Trichter and his wonderful tutelage on the presumption of innocence.

5. Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App. 1991).

6. Contreras v. State, 2012 WL 5285917 (Tex. App.—Waco, Oct. 25, 2012); Fuller v. State, 363 S.W.3d 583 (Tex.Crim.App. 2012).

7. Stair chart from the National College of DUI Defense: http://ncdd.com/ncddstore.php?type=Trial-Graphics.

8. Thanks to trial warrior Steve Gonzalez for this example.

9. Johnson, James, “Jury Arguments, Winning Techniques,” Michigan Bar Journal, page 36 (March 2011); http://vinsoncompany.com/pdf/How_to_Persuade_Jurors.pdf.

10. Thanks to my officemate and trial warrior Jed Silverman.

11. See Gerry Spence and the Trial Lawyer’s College.

12. Thanks to the amazing Kent Schaffer for his cross-examination techniques.

13. See NHTSA Standardized Field Sobriety Testing Student Manual, August 2006, pg. X-3–5.

14. Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992).

15. See Texas Breath Alcohol Testing Program Operator Manual, pg. 49, and Texas Administrative Code Section 19.3(a) and (c)(1).

16. See Department of Public Safety 21 Minute Video. Call me for a copy.

17. Id.

18. Id.

19. See Texas Breath Alcohol Testing Program Operator Manual, pg. 13.

20. See Texas Breath Alcohol Testing Program Operator Manual, pg. 13

21. See Gullberg, R. G., Statistical Evaluation of Truncated Breath-Alcohol Test Measurements, Journal of Forensic Sciences, JFSCA, Vol. 33, No. 22, March 1988, pp 507–510; Gullberg, R. G., Distribution of Third Digit in Breath Alcohol Analysis, Journal of Forensic Sciences, Letters to Editor, Date and Volume Unknown, pp. 976–978.

22. Id.

23. See Fox, G. R. and Hayward, J. S., Effect of Hyperthermia on Breath-Alcohol Analysis, Journal of Forensic Sciences, JFSCA, Vol. 34, No. 4, July 1989, pp. 836–841.

24. Id.

25. See Texas Breath Alcohol Testing Program Operator Manual, pg. 9.

26. Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552, 1555 (2013).

27. Id.

28. http://abclocal.go.com/ktrk/story?section=news/local&id=9176628.

29. McNeely, 133 S.Ct. at 1557–60.

30. Clay v. State, 382 S.W.3d 465 (Tex.App.—Waco 2012), review granted, (June 27, 2012).

31. Id. at 465–466.

32. Cavazos v. State, 969 S.W.2d 454, 456–57 (Tex.App.—Corpus Christi 1998, pet. ref’d); Tex. Transp. Code § 724.017(a); see also Cordero v. State, 2009 WL 3231504 (Tex.App.—El Paso Oct. 7, 2009).

33. Bullcoming v. New Mexico, __ U.S. __, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011).

34. Gerry Spence.

Drawing the Blood Test From a DWI Case

The era of the total-refusal DWI case is quickly coming to a close in Texas. Gone are the days of refusing a breath test without concern for something more invasive. DWI blood test trials are the future for the criminal trial attorney. On April 17, 2013, the United States Supreme Court recognized the ease of obtaining a blood search warrant in most metropolitan areas, thereby barring warrantless blood draws without an exigent circumstance—other than the metabolizing or natural dissipation of alcohol in the body.1 Prosecutors in metropolitan areas are already responding by having police document any possible exigent circumstance and demanding blood warrants for every refusal.2 The trickle-down ramification is that “no-refusal” weekends are now every day of the year.3

Regardless, the best defense to winning a DWI blood case may sometimes reveal itself before even attacking the procedures of the blood draw or the analysis of the sample. Every DWI attorney needs to be able to navigate Texas’ blood laws. In doing so, a skilled DWI attorney may discover the perfect angle of attack before trial by systematically analyzing the case and asking the following questions:

Was the client under arrest at the time of the draw?

NO. If the client is not under arrest, then anyone can draw the client’s blood. Implied consent laws only apply if the client is under arrest.

For example, if the client goes to the hospital voluntarily after an accident, the hospital staff may draw his blood for medical reasons with his consent. It is up to the client at that point whether he cares or wants to determine if the blood drawer is a phlebotomist, doctor, nurse, etc. A client may also have blood drawn for general health reasons. In either scenario, the client may give consent to whomever to have his blood drawn—and wherever.

Another example may be when the client comes into a hos­pi­tal unconscious and is left to the expertise of the hospital staff in performing the necessary course of care. If the client is not un­der arrest, it doesn’t mean that a charge may not arise later, but it would require a Health Insurance Portability and Accountability Act (HIPAA) Grand Jury subpoena for the State to obtain the hospital records. Recently, an intoxication manslaughter client was taken to the hospital before police arrived; however, the police took a DPS blood kit to the hospital and demanded the client’s blood, wondering if the client was intoxicated. The client was unconscious, but not under arrest. Accordingly, the implied consent statute is not triggered until sufficient probable cause exists and a person is placed under arrest for DWI.4 So then, the Court must analyze whether any exigent circumstances existed to circumvent the warrant requirement, which will be discussed later.

YES. If the individual is under arrest, then figure out who is asking to draw the blood.

Was the draw done at the request of the police?

NO. If the client is under arrest, yet a police officer is not requesting the blood be drawn and tested, then anyone can draw the client’s blood, depending on the scenario.

For example, if your client submitted to a breath test, but doesn’t trust the Intoxilyzer result, the client may then make arrangements for his blood to be drawn and analyzed.5 This also assumes the police are cooperative in this request; however, if they are not, then that refusal to allow the client to submit a second sample may be admissible in trial.6 The client can have his blood drawn by “a physician, qualified technician, chemist, or registered professional nurse” within two hours of the arrest.7 This is a rare or unlikely scenario where the client is under arrest but the police are not asking for the blood to be drawn or tested and the client is willing to submit to a blood draw.

A second possibility may occur when the client is under arrest and taken to a hospital for medical treatment, but the police do not obtain a warrant and do not ask for the blood at the time it is drawn. Here, the hospital may need to test the client’s blood before administering certain medication or for other medical reasons. The prosecutor typically sends a grand jury subpoena to the hospital for the client’s medical records, including any blood alcohol results, at a later date. In this situation, however, the hospital will most likely use enzymatic assay testing for medical treatment rather than forensically accepted gas chromatography. Hospital enzymatic assay test results should not be forensically acceptable in a subsequent DWI prosecution.8

YES. If a police officer or other law enforcement official is asking for the blood to be drawn, is it with the client’s consent?

Did the client consent to the blood draw?

YES. If the client is arrested, a police officer asks for blood under our Implied Consent statute, and the client consents, then Texas Transportation Code § 724.017 governs who may draw the blood. Section 724.017 states:

(a) Only a physician, qualified technician, chemist, registered pro­fessional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer under this chapter. The blood specimen must be taken in a sanitary place.
(b) The person who takes the blood specimen under this chapter, or the hospital where the blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter if the blood specimen was taken according to recognized medical procedures. This subsection does not re­lieve a person from liability for negligence in the taking of a blood specimen.
(c) In this section, “qualified technician” does not include emergency medical services personnel.9

Additionally, Cavazos requires any phlebotomist that draws the blood, without a warrant and pursuant to 724.017, must be proven up as a “qualified technician” since a phle­bot­o­mist is not specifically included in the job titles defined under 724.017.10 It is the client’s duty, however, to allege the statutory violation before the burden shifts to the State to combat a Section 38.23 suppression issue.11 It’s important to note that emergency medical services personnel (EMS/EMT/ambulance driver/paramedic) may not draw blood based on their title alone.12 However, an EMT or paramedic may be proven up as a qualified technician based on training, education, and skills.13 Additionally, beginning September 1, 2013, House Bill 434 will allow a licensed or certified EMT or paramedic to draw blood under 724.017 so long as they comply with specifications laid out in 724.017(c) as follows:

(c) A licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic may take a blood specimen only if authorized by the medical director for the entity that employs the technician-intermediate or technician-paramedic. The specimen must be taken according to a protocol developed by the medical director that provides direction to the technician-intermediate or technician-paramedic for the taking of a blood specimen at the request or order of a peace officer. In this subsection, “medical director” means a licensed physician who supervises the provision of emergency medical services by a public or private entity that:

(1) provides those services; and
(2) employs one or more licensed or certified emergency medical technician-intermediates or emergency medical technician-paramedics

(c-1) A protocol developed under Subsection (c) may address whether an emergency medical technician-intermediate or emergency medical technician-paramedic engaged in the performance of official duties is entitled to refuse to:

(1) go to the location of a person from whom a peace officer requests or orders the taking of a blood specimen solely for the purpose of taking that blood specimen;
(2) take a blood specimen if the technician-intermediate or technician-paramedic reasonably believes that complying with the peace officer’s request or order to take the specimen would impair or interfere with the provision of patient care or the performance of other official duties; or
(3) provide the equipment or supplies necessary to take a blood specimen.

(c-2) If a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic takes a blood specimen at the request or order of a peace of­fi­cer, a peace officer must:

(1) observe the taking of the specimen; and
(2) immediately take possession of the specimen for purposes of establishing a chain of custody.14

Of course, as in any other search, consent, assuming it is truly voluntary, is always going to trump your defense challenges to the blood draw. Remember, though, the State must prove voluntary consent by clear and convincing evidence or the results may be suppressed.15 Voluntariness must be examined before any exigent circumstances to the warrant requirement.

NO. If the client is under arrest, police request a blood sample and the client does not consent, then the blood may only be drawn pursuant to a warrant absent exigent circumstances.

Did the police obtain a blood search warrant?

YES. Just because your client declined a voluntary blood draw and the police obtained a sample with a search warrant doesn’t mean that the state will automatically get to use that evi­dence. The Fourth Amendment protects your client against all unreasonable searches and seizures, and any warrant must be supported by probable cause.16

In analyzing a warrant, the lawyer is limited to the “four corners” of the document.17 The warrant should specifically state what is to be taken, by what means, and by whom.18 Analyze every warrant with strict and meticulous scrutiny. Make sure the dates, times, and signatures are all in order. Read the reasonable suspicion for the stop and the probable cause for the search. If you recognize any statements as intentional deception or reckless disregard for the facts, you will need to request a Franks hearing on the validity of the warrant. Before any Franks hearing, however, make sure you have read and understood necessary case law.19

Section 724.017 dictates who may draw blood under the Transportation Code, but it is not an exclusive list. That being said, a judge could allow anyone to draw the blood; but judges, like police, are constrained by the Fourth Amendment, and the terms of a warrant must be reasonable. A judge could allow an EMT or phlebotomist to draw the blood by specifically including those job titles in the warrant, so long as it is reasonable under the circumstances.

That being said, even if a warrant appears sufficient on its face, ask yourself (and your client), was the warrant reasonably executed? Under what conditions was the blood drawn? Did the police use force against your client? Especially in Texas, there are basic standards to be met before the results of your client’s blood draw can be admitted into evidence. The Court of Criminal Appeals has held that the drawer of the blood must inquire into the medical history of the client before piercing the skin.20 Additionally, the police may not use excessive force by assaulting the client in an effort to hold him down for a blood draw.21

Did the police draw blood without a warrant?

YES. On April 17, 2013, the United States Supreme Court handed down Missouri v. McNeely, holding the government’s general interest in combatting drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.22 The Court did not define what factors would establish exigency generally, but left that issue open for a case-by-case analysis based on the “totality of the circumstances.”23

Post-McNeely, the State is now scrambling to prove-up exigency and fight the suppression of involuntary blood draws. Here, any argument made by a prosecutor regarding the inconvenience or impracticability of obtaining a search warrant prior to an involuntary blood draw should be attacked with Clay.24 In Clay, the arresting officer swore to a blood warrant probable-cause affidavit over the telephone and then faxed the signed affidavit to the judge.25 Arguably, it doesn’t get much easier to obtain a blood search warrant. Regardless of technology, however, if the state is arguing that a warrantless blood draw was done pur­suant to the exigency exception to the warrant requirement, you must know your adversary and the resources available to each county prior to litigating the issue.

It is the state’s burden to prove exigency in a particular case after Defendant proves, or the State stipulates, that a warrantless blood draw occurred.26 In doing so, you should anticipate that the arresting officer will testify he could not obtain a warrant in a reasonable amount of time. To effectively rebut this testimony, you will need to present evidence to the contrary. While every case is different, our esteemed colleague and Dean Emeritus of the National College for DUI Defense, Troy McKinney, has suggested that you should know and be able to prove the following, at a minimum, if you want any chance of overcoming an adverse ruling:

1. How many prosecutors were on duty during the relevant time frame;
2. How many magistrates were on duty during the relevant time frame and their locations relative to your officer;
3. Your minimum and maximum relevant time frames. Minimum relevant time frame being from the time of arrest to the time of the blood draw, and maximum relevant time frame being from the time of the arrest to the time of delay or circumstance that justifies the alleged exigency (which may require an expert);
4. Whether your specific officer has ever obtained a warrant in prior cases;
5. What, if any, forms were available for the warrant affidavit;
6. Whether there were other experienced officers on duty and available to obtain a warrant; and
7. Evidence of how long it would have taken to obtain a warrant based upon how long it typically takes in other cases.

Under McNeeley, if a warrant can be objectively reasonably obtained between the time of arrest and the time of the involuntary blood draw, then no exigency exists.27 If, on the other hand, the State alleges circumstances surrounding the arrest of your client created an exigent need to draw blood without a warrant, you will need to be able to rebut the argument and show why your specific facts do not rise to the level of exigency.

Notwithstanding, if the State manages to get around McNeely by proving-up exigent circumstances, then remember, at least for now, that any phlebotomist must be qualified as a “qualified technician” in order for the results of the blood test to be admitted into evidence. An EMT/paramedic may not draw blood on their title alone until September 1, 2013; and even then, the draw must occur in a sanitary place.28

What type of record is the state relying upon?

Knowing what type of records the State intends to introduce or rely upon will dictate the course of action you should take in evaluating the strengths and weaknesses of the State’s case. Most DWI cases involve a blood sample that is analyzed at a police or state-owned forensic laboratory utilizing gas chromatography. The reports produced in such testing are called chromatograms, and they are used by State witnesses in an attempt to prove-up the validity of the analysis and the purported test results from your client’s blood. Alternatively, if your prosecutor attempts to introduce a medical record, make sure the State has properly complied with Texas Rules of Evidence 803(6), the business record exception, and 902(10), requiring an affidavit or custodian of record. Additionally, if your client’s case involves a hospital enzymatic assay test, be sure the prosecutor produces a witness that can satisfy the first prong of Kelly: i.e., “the underlying scientific theory must be valid.”29

In every case, whether by State lab or by hospital test, before a prosecutor reveals the results of your client’s test, or seeks to offer a chromatogram or any opinion of the result of the blood test, make sure that the state has complied with Bullcoming, and that the actual analyst who prepared the sample for testing is available for confrontation and cross-examination.30 Never acquiesce or allow a prosecutor to substitute testimony from any­one other than the actual analyst who prepared the client’s sample for testing. The procedures for proper site preparation, execution of the blood draw, preparation for analysis, maintenance of the instrument/machine, analysis of the sample, and interpretation of the results are each complex areas of attack, and are not addressed in this article.

Without even analyzing how the blood was drawn and tested, an informed trial attorney may sometimes attack and sup­press a client’s blood test long before a jury is present. Texas blood tests are ripe for such challenges. The key is in knowing how to systematically navigate through the quickly developing body of law. As you evaluate each case and ask the few simple questions highlighted in this article, remember to maintain your course and keep the judge up to speed and on course as well. Let your prosecutors know that any attempt to redirect your efforts will be met with knowledge of the law and firm insistence on justice, fairness, and the presumption of innocence.

Notes

1. Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552, 1555 (2013).

2. http://www.tdcaa.com/journal/what-do-about-missouri-v-mcneely.

3. http://www.myfoxhouston.com/story/22859770/2013/07/17/year-round-no-refusal.

4. The first line of Texas Statutory Warning DIC-24 specifically states that the client is “under arrest for an offense arising out of acts alleged to have been committed while you were operating a motor vehicle in a public place, or water craft while intoxicated or an offense arising under Section 106.041, Alcoholic Beverage Code.”

5. Tex. Transp. Code § 724.019.

6. Tex. Transp. Code § 724.062.

7. Tex. Transp. Code § 724.019(a).

8. See Thiessen, M. “Falsely Elevated Ethanol Results Using Hospital Enzymatic Assay Blood Testing,” TCDLA Voice for the Defense, Vol. 41, No. 3 (April 2012).

9. Tex. Transp. Code § 724.017 (West 2011).

10. Cavazos v. State, 969 S.W.2d 454, 456–57 (Tex.App.—Corpus Christi 1998, pet. ref’d); Tex. Transp. Code § 724.017(a); see also Cordero v. State, 2009 WL 3231504 (Tex.App.—El Paso Oct. 7, 2009).

11. State v. Robinson, 334 S.W.3d 776 (Tex.Crim.App. 2011); Tex. Code of Crim. Proc. § 38.23 (West 2011).

12. See Krause v. State, 368 S.W.3d 863 (Tex.App.—Houston [14th Dist.] 2012)(EMT); State v. Laird, 38 S.W.3d 707 (Tex.Crim.App. 2000)(paramedic) (emphasis added).

13. Krause v. State, 2013 WL 1890731 (Tex.Crim. App. 2013)(reversing Court of Appeals and allowing EMT to be proven up as qualified technician).

14. House Bill 434 (Effective September 1, 2013) http://www.legis.state.tx.us/tlodocs/83R/billtext/html/HB00434S.htm.

15. State v. Ibarra, 953 S.W.2d 242, 243 (Tex.Crim.App. 1997). citing Paprskar v. State, 484 S.W.2d 731, 737 (Tex.Crim.App. 1972).

16. Hughes v. State, 843 S.W.2d 591, 593 (Tex.Crim.App. 1992); Keen v. State, 626 S.W.2d 309, 312 (Tex.Crim.App. 1981); Davis v. State, 27 S.W.3d 664, 667 (Tex.App.—Waco 2000, pet. ref’d).

17. Jones v. State, 833 S.W.2d 118, 123 (Tex.Crim.App. 1992); Oubre v. State, 542 S.W.2d 875, 877 (Tex.Crim.App. 1976); Mayfield v. State, 800 S.W.2d 932, 934 (Tex.App.—San Antonio 1990, no pet.).

18. Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

19. Harris v. State, 227 S.W.3d 83 (Tex.Crim.App. 2007); Dancy v. State, 728 S.W.2d 772 (Tex.Crim.App. 1987); Cates v. State, 120 S.W.3d 352 (Tex.Crim. App. 2003); Jones v. State, 907 S.W.2d 850 (Tex.App.—Houston [1st Dist.] 1995).

20. State v. Johnston, 336 S.W.3d 649 (Tex.Crim.App. 2011), cert. denied, 132 S.Ct. 212 (2011).

21. Hereford v. State, 302 S.W.3d 903 (Tex.App.—Amarillo 2009, aff’d.).

22. Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. at 1555–56 (2013).

23. Id.

24. Clay v. State, 382 S.W.3d 465 (Tex.App.—Waco 2012), review granted (June 27, 2012).

25. Id. at 465–466.

26. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App. 1986)(citing Mattei v. State, 455 S.W.2d 761, 765–66 (Tex.Crim.App. 1970)).

27. McNeely, 133 S.Ct. at 1557–60.

28. State v. Johnston, 336 S.W.3d 649 (Tex.Crim.App. 2011), cert. denied, 132 S.Ct. 212 (2011)(sanitary); Jackson v. State, 2009 WL 1552890 (Tex.App.—El Paso 2009); State v. Laird, 38 S.W.3d 707 (Tex.Crim.App. 2000)(paramedic); Krause v. State, 368 S.W.3d 863 (Tex.App.—Houston [14th Dist.] 2012)(EMT); Krause v. State, 2013 WL 1890731 (Tex.Crim.App. 2013); House Bill 434 (Effective September 1, 2013).

29. Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992).

30. Bullcoming v. New Mexico, __U.S__, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011); cf Williams v. Illinois, __U.S.__, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012).

Undermining the Breath Test: Building the Disconnect Defense

I. Introduction

Many inexperienced DWI lawyers cringe when they see high Intoxilyzer results—for example, 0.235—but the experienced DWI lawyer embraces the high number because it might create a good defense. An exculpatory video performance by a client can create an indisputable conflict between an inculpatory breath test score and a juror’s ingrained belief that they can trust their eyes and common sense, e.g. a “disconnect.” A high breath alcohol concentration (“BAC”) provides skilled DWI lawyers a logical story to provide their jury with reasonable doubt to carry home and tell their family and friends about the inherent unreliability of the Intoxilyzer. This article is about how to tell the disconnect story from voir dire to closing.

II. Collecting the Corner Stones

The foundation of the Disconnect Defense (“DD”) is sobriety evidence. In most cases where the DD is applicable, client’s video is exculpatory for the client. An explainable bobble here and there or some erratic driving does not mean that you should throw in the towel where there is a legitimate, common-sense explanation. The good lawyer will provide innocent explanations for signs mistakenly noted as indicators of intoxication. This is done by obtaining medical records of foot, leg, back, neck, or head injuries to explain away clues on the Standard Field Sobriety Tests (“SFSTs”). Further, elicit testimony that impeaches the officers’ comments concerning red eyes caused by intoxication where the evidence shows the client was in a smoked-filled room, was a smoker, had allergies, was wearing contacts, or was fatigued. Such evidence can be bolstered by receipts for the purchase of eye drops, allergy medication, or cigarettes.

Additionally, the well-read lawyer knows that drowsy driving is responsible for more accidents than drunk driving. Phone use, text messaging, medical records, or testimony of sleep deprivation can be used to explain erratic or sloppy driving. Time in the library can also be effective for the lawyer, used to collect scien­tific treatises to counter the State’s attempt to discredit the DD with the excuse of tolerance.

III. Pouring the Foundation

As learned trial lawyers say, “The case is won or lost in voir dire.” Look to juror professions to identify persons who can act as temporary witnesses during voir dire. Use these jurors to further your DD by having them share their own personal experiences that bolster your defense. Pay special attention to engineers, mechanics, machinists, and computer people because they can help you create the DD. As a personal preference, I generally do not like engineers or IT persons on the jury, but they can be useful for short, powerful pieces of DD information during voir dire. To illustrate, they will admit that machines/computers do not work perfectly all the time, and that they do break down, freeze, malfunction, and act not as warranted. Remember, the Intoxilyzer is a government-bought machine and was probably the low-bid device at the time of purchase.

You can highlight Intoxilyzer deficiencies by analogizing it to hypothetical or other measuring devices—e.g., thermometer, Taxalyzer 5000EN,1 Doppler 5000. Whatever machine you invent for jury use, use it to demonstrate the obvious error the machine made when contrasted with what you see—i.e., common sense. The importance of embracing common sense can be related to a dire consequence of being wrong, for example, brain surgery when a thermometer reads 110°F, jail time for failing to pay taxes, or a natural disaster. Further, analogize each unreliability example in the breath test machine with your hypothetical machine: 20% acceptable range of error; self checking for accuracy; no warranty for merchantability or accuracy; recalled in multiple states; newer model available; citizen cannot purchase from manufacturer; manufacturer refuses to provide source code; not available for independent scientific testing; destroys the only direct evidence of sobriety/intoxication (when the State had the ability to save that evidence); operator has no idea how the machine works; “scientist,” who does, rarely checks it in person; any inconsistencies or strange occurrences found in test records; and so forth.

Begin with the first juror and the first unreliability example and ask how that makes the juror feel about the hypothetical machine. “Why would you trust this machine?” or “Why would you submit to this type of testing?” Go through the jurors and expose as many problems as possible as they relate to your machine. Your jury will remember, relate, and recognize the relation of deficiencies common to the hypothetical machine and the Intoxilyzer. Prepare yourself for the State’s objection to an improper commitment question and be prepared to argue that these examples are to be likened to witnesses who jurors can have pre-existing bias/prejudice, and they will aid you in the exercising of preemptory challenges and the proper framing of challenges for cause based on their answers.2

IV. Framing the Structure

The DD begins by establishing contradictions between the reported and actual reasonable suspicion and probable cause by effectively cross-examining each police officer/witness. The State will attempt to establish the requisite loss of mental and/or physical faculties by eliciting testimony to establish that intoxication caused the poor driving and SFST results. Erratic driving can be neutralized through explanations using common driving errors or through the client’s or passenger’s testimony regarding specific reasons for the erratic driving or traffic violation.

Knowing the SFST manual better than the police officer provides the defense lawyer an immeasurable advantage. The skilled lawyer leads the officer and the jury to the conclusion that the validity of each SFST was compromised and/or that the video demonstrates no indication of intoxication. Remember, the State’s own science teaches us that impairment affects mental faculties before physical faculties.3 Build the disconnect stronger by emphasizing the client’s mental faculties—i.e., he was polite, cooperative, and coherent through all the testing and contact with the officer. In the end, the accomplished lawyer may be able to lead the officer into admitting that he observed no loss of mental faculties. Henceforth, according to the science, any loss of physical faculties cannot be the result of intoxication and must be the result of something normal, such as fatigue, inexperience, injury, or nervousness.

Most importantly, establish with each witness that the client did not urinate on themselves and never asked to go to the bathroom. Later, in closing, contrast this testimony with the number of drinks consumed required to support the Intoxilyzer result: 0.235 equals 12 beers equals 144 ounces of fluid in the system at the time of the breath test.

By neutralizing the State’s evidence concerning loss of mental or physical faculties, the jury is then compelled to decide the intoxication element on the reliability of the Intoxilyzer result. Make the State’s case rely solely on the number.

V. Roofing

The Breath Test Operator (“BTO”) rarely has any significant ex­posure with the client; however, their testimony can easily destroy the State’s case. Many large metropolitan BTOs usually operate the Intoxilyzer all night, running suspected DWI clients through the intox room like cattle. Some BTOs put personal notes on their reports. Here, remember that these notes are, in effect, small police reports and inadmissible hearsay as per Texas Rule of Evidence 803(8)(b).

The State will attempt to make the BTO look credible. Yet you can enlighten the jury by examining his alcohol and Intoxilyzer experience. As per Texas Rule of Evidence 803(18), establish that the Texas Breath Alcohol Testing Program Operator Manual is authoritative so that you can cross-examine the BTO with this learned treatise. Ask the BTO about the Intoxilyzer and his knowledge of the inner dynamics of the machine. Most will admit they know very little about Henry’s Law, Infrared Spectroscopy, the simulator solution, or the checking and maintainenance of the machine. Establish that the BTO only pushes buttons and the machine checks itself. Here, remember the “self-check” function of the Intoxilyzer does not check all of the systems.

Through effective cross-examination, the BTO may admit indisputable error regarding the simulator solution temperature and/or the 15-minute presence period. This may be a ripe area for suppression of a breath test result if the BTO does not accurately remember the temperature requirement. Ask the BTO what the temperature was, what it is required to be, and what the government-accepted deviation is for the simulator solution. All you need is one mistake! If you get one, the Technical Supervisor (“TS”) must admit the results could be compromised—e.g., if the temperature was off or outside the allowable deviation.4

Another suppression area exists for failure to properly adhere to the 15-minute presence period; that is, the arresting officer brings the client to the BTO who immediately runs an Intoxilyzer test. Accordingly, be familiar with what the testifying TS considers is acceptable for compliance of “in the presence” requirement—i.e., line of sight, single or multiple officers for the duration, or within hearing range. Ask the BTO where the client was observed. Was there a video? Whose choice was it not to record the observation? Did the client burp or belch during the period? How would they know if they did? Did the client put anything in his mouth? Did he think it would have been useful for the jury to be able to see all this for themselves?

Based on the TS’ requirements, try establishing a conflict with the BTO’s observation period. If truthful, the TS must admit that a violation in breath test procedure for failure to properly conduct the 15-minute observation period compromises the validity of the result.5 Of course, the trial lawyer couples any violation with Article 38.23 of the Texas Code of Criminal Procedure, which is our statutory exclusionary rule.

VI. Putting Up the Walls

The TS is the State’s paid “expert” in the field of breath alcohol testing. Most likely the TS will be recognized by the court as an expert in breath testing, so be prepared to converse in science lay terms for the benefit of the jury. Only the skilled lawyer—with a firm working knowledge of breath testing science, the Intoxilyzer, and in possession of multiple studies authoritative in the field of breath testing for 803(18) purposes—should cross-examine a TS.

Most TSs will acknowledge the following breath testing authorities: Dr. Kurt M. Dubowski, Dr. A.W. Jones, and Professor Dr. E. M. P. Widmark. The prepared DWI defense lawyer will have articles by these noted authorities and use them readily as learned treatises for cross-examination. Texas Rules of Evidence 803(18).

With a good video performance or exculpatory testimony that demonstrates little or no loss of normal mental or physical faculties, Dr. Dubowski’s table of the Stages of Acute Alcoholic Influence/Intoxication for a high BAC can be used to exemplify the disconnect between the client’s faculties and the scientifically expected faculties. For example, Dubowski states a person’s characteristics at a 0.235 are disorientation, mental confusion, dizziness, impaired balance, muscular incoordination, staggering gait, etc.6 The TS may disagree and attempt to explain, but Dubowski is far more authoritative than the TS. Remember, being a TS does not automatically equate to being an expert in chemistry, toxicology, physiology, anatomy, pharmacology, and the like. Prevent the TS from testifying about tolerance, drug or medication effects, or any medical conditions or injuries by challenging their qualifications using Rules 702 and 703.

Additionally, remember that an Intoxilyzer test administered during the absorption period (14 to 138 minutes) yields an erroneously high result.7

Another ripe area is that the Intoxilyzer breath specimens are not saved though they could be. Rather, the State destroys them by failing to preserve them, and they are discharged out the back of the machine. There is a device called the “ToxTrap” that can be utilized with the Intoxilyzer to preserve breath specimens.8 The TS is the only witness who will know about the ToxTrap and destroying the breath specimen. Compare the destroyed breath specimen to a written statement by a defendant that the police destroy because it is inconvenient/costly to keep it.

Remember that the jury was primed to distrust the hypothetical machine in voir dire based on certain unreliability issues. Establish each comparative issue with the breath test machine through the TS or the BTO—i.e., the breath test score must come within 0.02 of the first reading, which equals 20% acceptable range of error on either side of the Intoxilyzer score, or a 40% swing of acceptable error. Furthermore, subpoena the TS to bring a copy of the Statement of Warranty for that particular machine. This document fails to state the Intoxilyzer is warranted for merchantability or fitness for a particular purpose. As a precaution, bring your copy provided in discovery as well. If the TS refuses to admit the issues, cross-examine as a statement rather than a question regarding the other issues, thereby allowing the jury to judge the TS’ credibility.

The State will certainly attempt to explain the high BAC through the TS using tolerance. Object to this testimony. If sustained, you do not need to deal with the issue. Remember, being a TS does not equate to being a tolerance expert. However, have a compilation of as many articles on tolerance as possible. Then, cross the TS on exactly which type of tolerance the State is relying upon and ask the difference between the other types of tolerance. Additionally, ask the TS the basis of his knowledge. Flip through the compilation of articles as you inquire: What’s the name of the article? The author? The country of origin? Why would a TS who knew they were testifying on a high BAC case not bring any authorities to support their position? A skilled attorney can use tolerance against the State by making the TS appear uncredible, unprepared, and prejudiced.

Last off, impeach the TS by showing he failed to even watch the video (they rarely do). “So, all of your testimony that my client is highly intoxicated is based solely on that Intoxilyzer score and not on any actual loss of mental or physical faculties?”

VII. Making It Pretty

If the client can afford it, you may consider hiring an expert. Make sure to investigate your expert for possible impeachment statements. Spend time reviewing anticipated testimony to prevent anything damaging. Make sure your expert is familiar with and knowledgeable about all the relied-upon authorities and has viewed all of the evidence, including the video. And last, prepare your clients before they meet with the expert.

VIII. Selling It

Your closing argument should consolidate the many disconnects into a defense and make logical deductions from the evidence. Depending on your personal style, choose a few effective demonstrations to illustrate the indisputable conflict between the tangible evidence (the client’s video performance and mug shot) and the high BAC result.

The hypothetical machine discussed in voir dire should be revisited to remind jurors that the breath test machine contains the same unreliabilities. Empower the jury to acknowledge that they wouldn’t trust the hypothetical machine and should likewise mistrust the breath test machine.

In closing argument, all demonstrative aids should stimulate attention and present the DD theory concisely and logically. Personally, I like to use a piece of green paper that says no loss of mental faculties, another green piece that says no loss of physical faculties, and a red piece that says “machine X.” Remind the jurors that as exclusive judges, they decide which evidence to trust. Crumble up that red piece of paper and throw it in the trash. Additionally, I like to use pictures of ordinary people with written statements involving unrealistic numbers—i.e., skinny person who can bench-press 500 pounds, heavy fellow who can run a 4.5 40-yard dash, or a little cowboy that wears a men’s size 12 boots. Similarly, the State is asking the jury to convict based on an outrageous number unsupported by common sense and the tangible, physical evidence: good video, good mug shot, never urinated, no loss of mental or physical faculties. And finally, don’t forget how many alcoholic drinks the TS testified the client contained in their system at the time of testing. If you can, smuggle in that many beers to demonstrate and conclude the impossibility of actual consumption by the client without urinating. Either the machine is wrong, or the client’s body defies the laws of science and common sense.

Each disconnect weaves the defense stronger. Remind the jury of the presumption of innocence, that any doubt in the evidence always reflects “Not Guilty.” Use the totality of the circumstances against the State by arguing the totality of sober circumstances. These indisputable conflicts create reasonable doubt. Now, the jurors have a constitutional duty to follow the law and find the client not guilty. The higher the test, the stronger your defense.9

Notes

1. Thanks to Doug Murphy of Trichter & Murphy, PC, for this example.

2. See Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001).

3. See Texas Breath Alcohol Testing Program Operator Manual (2001), pg. 44.

4. See Texas Breath Alcohol Testing Program Operator Manual, pg. 35.

5. See Texas Breath Alcohol Testing Program Operator Manual, pg. 49, and Texas Administrative Code Section 19.3(a) and (c)(1).

6. See Dubowski, Kurt M., Alcohol Determination in the Clinical Laboratory, Am. J. Clin. Pathol. 74: 747, 749 (1980).

7. See Dubowski, Kurt M., Absorption, Distribution, and Elimination of Alcohol: Highway Safety Aspects, J. Stud. Alc. Suppl. No. 10: 98, 99 and 106 (1985); Widmark, E. M. P., Principles and Applications of Medicolegal Alcohol Determination, Biomedical Publications, pg. 99, Davis, CA (1981).

8. See Bergh, Arne, “Observations on ToxTrap Silica Gel Breath Capture Tubes for Alcohol Analysis,” J. of Forensic Sciences 30: 186–193 (1985).

9. Additional thanks to J. Gary Trichter of Trichter & Murphy, PC, for help in contributing and editing.