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Off the Back

Off the Back: How to Use Stories to Distinguish Yourself From the Competition – By Stephen Gustitis

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Stories are the vehicle through which criminal defense lawyers typically communicate with juries. Since the jury decides whether a defense case is persuasive or not, it must be built from their point of view. And since juries are people oriented, rather than law oriented, they use their feelings and emotions to make decisions more often than logic. That’s why the story is such an effective way to communicate with them. Juries determine how plausible a case is by placing the story next to their own ideas about how the world works. Consequently, criminal defense attorneys are usually great storytellers. That being the case, what other ways could defense lawyers use stories in their law practices to help them be more successful? Put another way, how could you use stories to address the essential needs of a potential new client and distinguish yourself from the competition at the same time?

When you interview prospective clients who just bonded out of county jail, they are scared and worried about an uncertain future. In that case, they have an inherent need to be comforted. What if, for example, during the intake interview with a potential client you used stories, based on your experience, to show the client you’ve handled their kind of case before and were able to achieve results they may be hoping for? Telling them about the history of your firm, about your aggressive courtroom capabilities, or telling them how many jury trials you’ve litigated neither comforts them nor does it distinguish you from your competitors. Almost everyone could say those things about their law practice. The marketplace is replete with claims of tough, top-tier, former prosecutors claiming to be experienced and aggressive criminal defense lawyers. These types of credibility statements are becoming cliché. Furthermore, if you focus only on your skills, rather than results, you’ll never address the client’s bigger underlying need for comfort. Instead, use stories to highlight your firm’s track record of accomplishing favorable results for other clients who faced similar problems.

Utilizing stories of past success is not the same as guaranteeing future results. The Texas Disciplinary Rules of Professional Conduct provide guidance in this matter. Rule 7.02(a)(2) states: “A lawyer shall not make a false or misleading communication about the qualifications or the services of any lawyer or firm. A communication is false or misleading if it: . . . (2) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate these rules or other law. Tex. Disciplinary Rules Prof’l Conduct R. 7.02(a)(2). Therefore, to avoid running afoul of the disciplinary rules, make sure your account of past success is accompanied by appropriate qualifications or disclaimers to guard against the prospective client believing that similar results will be obtained for them without reference to their specific factual and legal circumstances. In other words, use your story like a client referral. Use it to affirm your experience with similar cases, to affirm your capabilities, and to affirm your record of success.

Furthermore, when done appropriately, recounting stories of past outcomes does not violate client confidentiality nor does it label you as a bragger. Rather, a good story about a former client in a similar situation may help the prospective client to reason that “depending upon the circumstances of my case, if this lawyer can get those kinds of results for other people, maybe he can do it for me, too.” You could highlight a story from a former client with the same criminal charges and relate some compelling facts that share similarities with the prospect’s case. In fact, you could create a list of 2–3 stories related to the particular kind of case the prospect has now and know them inside out. At the same time you’re comforting them with accounts of your past favorable outcomes, you can use the stories to distinguish yourself from your competition since no list of trial skills on your resume is as convincing as a factual success story based on your professional experience helping others with similar problems.

But what if you are young or just beginning your criminal law practice? What if you lack the breadth of experience from which these factual success stories come? Don’t worry. With some ingenuity, patience, and sacrifice you can begin to amass a varied and impressive story-base of your own. Accepting court appointments is always the best place to start. The leading defense lawyers I know all started their careers accepting court-appointed cases. Court appointments come in all shapes and sizes. There’s no better place to obtain experience in handling forensic evidence and cross-examination. And whether they are misdemeanors or felonies, defending court-appointed cases not only hones your defense lawyer skills, it develops a base of experience from which your success stories will flow. Another way to get experience is to offer your time to colleagues defending criminal cases. The more difficult and complicated the case, the better. Your story about sitting second chair will be just as compelling as any other. Beyond this, you’ll build a reputation among your professional peers for being determined and hard-working.

Using stories to showcase your past successes can help comfort potential new clients. When you talk to them about tangible benefits and potential results you could achieve for them, you provide the peace-of-mind every worried client desires. Furthermore, these success stories help distinguish you from the competition as you contend with other lawyers for the same business. And when done appropriately, you are not guaranteeing future results. Rather, you are affirming your experience and capabilities solving similar problems. So, since criminal defense lawyers are such great storytellers, why not leverage past successes into concrete benefits for both you and a potential new client?

Off the Back: Challenging a Warrantless Search by Police in a Constitutionally Protected Space – By Stephen Gustitis

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Last month six defendants litigated a group suppression hearing that raised the issue of a warrantless search of a constitutionally protected space. The warrantless search resulted in the police observing contraband in plain view. A search warrant was subsequently secured alleging that plain view contraband created probable cause to search the space. Below is a summary of our collective research. It may give defense lawyers a place to begin when challenging their own warrantless entry/search cases. Further, I cannot take full credit for this research. In large part it was a group effort. Each defense attorney involved helped piece together this labyrinth of legal doctrine. As a result, we created a bullet-point list of legal au­thority the police may rely upon when entering constitutionally protected space without a warrant.

Standing

Before one can challenge a warrantless search, they must establish standing. Defendants with the burden of demonstrating a legitimate expectation of privacy can do so by establishing they had a subjective expectation of privacy in the place invaded that society was prepared to recognize as reasonable. Several factors are relevant when determining whether a given claim of privacy is objectionably reasonable: (1) whether the defendant had a property or pos­sessory interest in the place invaded; (2) whether the defendant was legitimately in the place invaded; (3) whether the defendant had complete dominion or control and had the right to exclude others; (4) whether, prior to the intrusion, the defendant took normal precautions customary taken by those seeking privacy; (5) whether the defendant put the place to some private use; and (6) whether their claim of privacy is consistent with historical notions of privacy. These factors are not exhaustive and none is dispositive of a particular assertion of privacy. Rather, the circumstances surrounding the search are examined in their totality. Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002). Once meeting the burden of proof on standing, one can now challenge the circumstances under which the police entered a protected place without a warrant.

Consent

Consent was not an issue in our suppression hearing but is routinely the starting point in any research. Searches that occur following voluntary consent are an exception to the warrant re­quirement. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Valtierra v. State, 310 S.W.3d 442 (Tex. Crim. App. 2010). Under Texas law, a consent search must be established by clear and convincing evidence. Id. This burden requires the prosecution to show the consent was positive, unequivocal, and without duress or coercion. Juarez v. State, 758 S.W.2d 772 (Tex. Crim. App. 1988). A third party can also consent to a search, against the privacy interest of another, if the third party had actual authority over the place to be searched. The third party may give valid consent when they, and the non-consenting person, share common authority over the premises or property. Common authority is shown by the mutual use of the property by people having joint access or control for most purposes. In this situation, the non-consenting person assumes the risk that someone with common authority might permit the common place to be searched. See Hubert v. State, 312 S.W.3d 554, 560–61 (Tex. Crim. App. 2010); also Welch v. State, 93 S.W.3d 50, 52–53 (Tex. Crim. App. 2002). If the third person consenting does not have actual authority, the police may still rely upon the third party’s “apparent” authority to consent. When an officer reasonably (though erroneously) believed a third party had actual authority to consent to a search of a place or property, apparent authority existed making the search reasonable. See Hubert at 561.

Protective Searches

A protective sweep is a quick and limited search of premises con­ducted to protect the safety of police officers or others. Maryland v. Buie, 494 U.S. 325 (1990); Reasor v. State, 12 S.W.3d 813 (Tex. Crim. App. 2000). It is generally conducted incident to an arrest, but the absence of an arrest does not preclude a pro­tective sweep, even one within a person’s home. See United States v. Gould, 364 F.3d 578 (5th Cir. 2004). For a protective sweep to be valid, the police must not have entered or remained in the space illegally, and their presence in the space must be for a valid law enforcement purpose. Id.  at 587. A legitimate protective sweep must be supported “‘by a reasonable, articulable suspicion . . . that the area to be swept harbors an individual posing a danger to’” those on the scene, and may be no more than a “cursory inspection of those spaces where a person may be found.” Id.

Exigent Circumstances

The exigent circumstances doctrine authorizes entry into a constitutionally protected place, without a warrant, if the police have probable cause and the police have articulable facts leading to a reasonable belief that exigent circumstances exist making a warrant impracticable (typically the belief that evidence is in im­mediate danger of destruction). See Turrubiate v. State, 399 S.W.3d 147, 151 (Tex. Crim. App. 2013); McNairy v. State, 835 S.W.2d 101 (Tex. Crim. App. 1991); see also Kentucky v. King, 563 U.S. 452 (2011)(exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment). This doctrine applies when the police act in their “crime-fighting” role, rather than their “community care-taking” role. Laney v. State, 117 S.W.3d 854, 861 (Tex. Crim. App. 2003).

Emergency Aid

The emergency aid doctrine authorizes entry into a constitutionally protected space, without a warrant, if the police have an “immediate reasonable belief that [they] must act to protect or preserve life or avoid serious injury.” Laney at 863 (also Mincey v. Arizona, 437 U.S. 385 (1978)). It requires that police officers be “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. at 860. The emergency aid doctrine uses an objective standard, taking into account the facts known to the police at the time of the search. Id. at 862. The doctrine also requires the warrantless entry be circumscribed by the exigencies justifying the entry. In other words, “we do not intend our holding today to be interpreted to necessarily allow police officers to make warrantless entries and searches every time there is a need to protect or preserve life or prevent serious injury.” Id. at 863.

Cady Doctrine

The Cady doctrine applies, like the emergency doctrine, when the police are not acting in their “crime-fighting” role, but rather in their limited community care-taking function to “protect or preserve life or avoid serious injury.” Laney at 863 (citing Mincey and Welsh v. Wisconsin, 466 U.S. 740, 750 (1984)). The Cady doctrine has most often been applied to warrantless searches of automobiles. Significantly, the doctrine does not necessarily require exigency, rather it requires the police be motivated by the need for general public assistance as opposed to “crime-fighting.” Id. (citing Cady v. Dombrowski, 413 U.S. 433 (1973)). It requires a reasonable belief that a concern for the general public exists who might be endangered if the warrantless search is not conducted. Cady at 447.

Inventory Doctrine

Although this doctrine was not an issue in our suppression hearing, it still deserves a place on our list of legal authority the police may rely upon when entering constitutionally protected space without a warrant. The inventory doctrine was first conceived in Cady, but later expanded upon in South Dakota v. Opperman, 428 U.S. 364 (1976). In Opperman, the Supreme Court held that automobile inventory searches conducted pursuant to standard police procedures are reasonable under the Fourth Amendment. See also Robertson v. State, 541 S.W.2d 608 (Tex. Crim. App. 1976)(inventories following standard police procedures are reasonable).

So, the next time you face a warrantless search by police in a constitutionally protected space, consider these points when attacking the search and any seizure. You can even challenge the validity of a search warrant affidavit containing evidence derived from such a warrantless entry and search. And don’t forget standing and consent. Both can sneak up on you if you’re not careful. Good luck.

Off the Back: Staring Down the Wrath of Hurricane Harvey – By Stephen Gustitis

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I was fortunate to have survived much of Harvey’s rage. But an attorney colleague of mine was not so lucky. Listening to her story, I was struck not only by the terror of nature’s fury, but by her steely coolness under pressure—in the midst of a crisis beyond her control. This is how she stared down the wrath of Hurricane Harvey.

Ruth lived alone in the country on 5 acres of beautifully wooded land. It was also the simple rural home you might have expected. One-story, white brick, three bedrooms. A screened-in front porch allowed her to enjoy mild summer evenings. A wooden deck out back was great for entertaining a friend or neighbor. The small barn on the property quartered supplies needed to manage her livestock. Ruth enjoyed living the country life. It reminded her of a childhood lived on the edge of nowhere. Her family, 5 children, were mostly grown now. And when not practicing law, her time was devoted to loving a 125-lb. Great Pyrenees named Ranger and two house cats—Ash and Benjamin.

The rain started in earnest on Saturday morning. It rained all day and all night and again into Sunday. Remarkably, well into Sunday evening she had no flooding problems at all. Even though the house rested in the local flood plain, a nearby reservoir seemed capable of absorbing the continuous downpour. Around 5 pm, though, the power went out. Her telephone service was affected and, consequently, her ability to communicate with others was now limited. But still, no flooding.

The water began its invasion just after dark. First, it was only a couple inches deep in the living room. Using a flashlight to see, Ruth began to stack furniture and other belongings off the floor to protect them from damage. What else could she do? As hours passed the water continued to rise. Eventually, her furniture began to float. Around 11:00 pm she was startled by the crashing sounds of pots and pans in the kitchen. The deepening water had lifted them from the shelves and they battered against one another in the darkness. Ash and Benjamin wanted nothing to do with the confusion. After midnight the water was mid-calf and Ranger was getting increasingly upset. But now, out of the darkness, came the alarming sound of rushing water. The front door had been forced ajar from the surge outside. A torrent now poured in over the threshold. Thankfully, Ruth was able to get the front door shut—but the water kept coming, relentlessly.

It was still dark, with no power, and no phone. Now she began to think of an escape plan. What would she do if the water got too deep? How would she get herself and her animals to safety? Ruth decided she’d opened a window, kick out the screen, and survey the outside with her flashlight to consider her escape. But what she saw was dreadful. The narrow beam illuminated a violent, deep, and powerful rush of whitewater. Then, unexpectedly and with no warning, Ranger leaped through the window opening and out into the deluge. He was young and he was strong . . . but not that strong. Ruth watched helplessly as Ranger struggled to swim back to her through the torrent, but the power of the water was too much. He was swept away into the blackness. Now, there was nothing she could do except pray for the dawn and the light.

By the time the sun came up on Monday morning, more than 20 inches had fallen. The water in her home was now over her knees. Ranger was gone—it was time to leave. Opening the window again, Ash jumped out first without any encouragement. Somehow he made it to the back deck railing where he found refuge from the current. Ruth threw Benjamin outside and she followed close behind. Now in chest-deep water, she struggled toward higher ground on the property where her truck was parked and sheltered from the flooding. Animals from neighboring property also found sanctuary there. Ruth gathered the cats into the truck and was able to drive to the neighbor’s house for help and comfort. Since 5:00 pm the previous day she had been alone and without power. At the neighbor’s house she was able to call and let her family know she was safe.

Remarkably, Ruth had not experienced fear during her ordeal, but rather determination. The determination to survive. Now, with her house and belongings in ruin, it took only a short while before the blessing of that Monday morning finally revealed itself. Sitting in the kitchen with her neighbor, far out in the distance, something familiar was moving about. Both women ran outside and called to him. It was Ranger . . . safe and sound and none the worse for wear. I was never so happy to see him, Ruth told me. You can lose your house, she remarked, but you just can’t lose your dog!

Like so many victims of the flood, Ruth will slowly rebuild. I thank her for giving me permission to tell her story, a story of loss and determination, but ultimately of blessing. We all pray the victims of the flood will experience their own blessings somewhere along their road to recovery.

Off the Back: Will H.B. 3016 Change the Way We Defend DWI Cases? – By Stephen Gustitis

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Deciding to litigate a DWI first offense has historically been a no-brainer. Unless the prosecutor was willing to reduce charges and offer deferred adjudication on obstructing a highway, for instance, teeing-up a jury trial was almost automatic. What did the client have to lose when the best offer was a DWI conviction? Expunging or sealing the records of a conviction was impossible, anyway. But if deferred adjudication for obstructing was on the table, the calculus was much different. Upon successful completion of the deferred the client could apply for a non-disclosure order following the applicable waiting period. Here in Brazos County, neither prosecutors, nor DPS, would object to sealing both the successfully completed deferred and the related DWI arrest records. But the law has now changed regarding the non-disclosure of convictions for certain nonviolent misdemeanors and DWIs. As a result, will the new non-disclosure law that permits the sealing of a DWI first conviction, passed in H.B. 3016 and codified in Chapter 411 of the Texas Government Code, change the calculus about trying DWI first cases? I think the answer is negligibly. First, though, let’s look at some details about the new Government Code provisions.

The Texas Government Code has not provided for the non-disclosure of DWI offenses under any scenario. However, on June 15, 2017, the Governor signed H.B. 3016, becoming effective, retroactively, on September 1, 2017. H.B. 3016 authorized a person convicted of a first-time DWI offense, with a BAC less than 0.15, to petition the court for an order of non-disclosure of criminal history related to that offense. The criteria the petitioner must meet are as follows: (1) they never were convicted or placed on deferred for another offense, except traffic offenses punishable by fine only; (2) they successfully completed any community supervision imposed and any term of confinement; (3) they paid all their fines, costs, and restitution and; (4) the appropriate waiting period has elapsed. The new law does not apply to 2nd or 3rd DWI offenses. Nor does it apply to boating or flying while intoxicated or a DWI involving an accident involving another person (including the passenger of the defendant). Certainly, H.B. 3016 made it easier for a person with a low-level nonviolent offense, like a DWI first, to obtain employment and become a productive member of society. Under these new circumstances, then, should we be accepting more pleas for DWI and trying fewer jury trials? Put another way, does the client risk losing a non-disclosure opportunity because they decided to litigate their guilt? Again, I think the answer is no. In fact, the new rules may even encourage more jury trials.

H.B. 3016 provided for non-disclosure after either successfully completing a term of community supervision (Tex. Gov’t Code Sec. 411.0731) or after completing a sentence, including any term of confinement imposed (Tex. Gov’t Code Sec. 411.0736). The waiting period following a successful probation was 2 years or 5 years, depending upon whether interlock was ordered as part of the sentence. The waiting period following a completed term of confinement was 3 years or 5 years, again depending upon whether interlock was ordered as a condition of the sentence. So it seems, if a client decided to try their DWI first offense, the worst consequence may be a variation in the waiting period after completion of their sentence, if any. What if conviction looks inevitable and the client’s goal is to seal their arrest records as quickly as possible? Then a plea bargain for probation with at least 6 months of interlock would help achieve that goal. On the other hand, if the goal was to roll the dice on a jury trial, and even shoot for a light jail sentence if convicted, then what does the client lose on a non-disclosure? Not much, it appears. Certainly, not enough to compel them to buckle under to a plea bargain for a DWI conviction.

So, even with the advent of non-disclosure for DWI first convictions, criminal defense lawyers can still push forward and encourage their clients to litigate a DWI first without fear of eliminating non-disclosure opportunity. Regardless of the punishment outcome, a client would eventually become eligible to seal their arrest records, everything else being equal. The bottom line, then, is to not deter a client from saying no to a plea bargain, even if it means getting their arrest records sealed later, rather than sooner.

Off the Back: Summoning Courage to Try Something New – By Stephen Gustitis

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My inspiration for this piece was our colleague and friend, John Gioffredi.1 John’s approach to DWI defense has changed the way I try cases. His approach is not fancy, nor terribly difficult. In fact, it uses tools of our trade that we all possess. But in one important way, John’s approach is different. Trying cases like John Gioffredi takes some courage. It compels one to shoulder additional risk. It causes us to work harder. It compels us to learn new things . . . things that may be unproven in our personal experience. Moreover, it necessitates our clients burden additional uncertainty, as well. But his system has borne fruit for many. I’ve simply become a better lawyer for it and my clients have reaped rewards, as well. The point being, thanks to John’s encouragement, I summoned the courage to try something new. Is it time for you to do the same?

Lawyers are, in many ways, risk averse. Whether it’s utilizing a new trial tactic, marketing a law practice differently, investing money for retirement, starting an exercise program, running for public office, or simply interacting with one’s spouse in a new way . . . we lawyers are resistant to new things. We are human. But maybe it’s time to summon the courage to try something new. Albert Einstein was widely credited with saying, “The definition of insanity is doing the same thing over and over again, but expecting different results.” In other words, if you want different results than what you’re getting, you have to try something new. But trying something new doesn’t guarantee it will work, does it? And that’s the catch. It’s fear of the unknown that holds us back, that imprisons our efforts to try. Though the fix is easy, so many cannot get past the fear of failure.

Where does the courage come from to try something new? How do we lure our pluck out into the open? Simply put, we decide ahead of time that unexpected results will be okay. It’s deciding that “failure” is part of the process. Consider breaking up your goals into smaller or more manageable pieces. Modest successes will fuel confidence. But even so, if we try and miss the mark, then so be it! Nothing ventured, nothing gained. Certainly, though, the risks we take should be well-calculated beforehand. We should avoid taking foolish or unnecessary gambles. But if we desire different results in our practice (or life, in general), how can we expect to get them by doing the same old stuff? Our real failure is our failure to try.

That being the case, decide what you want. Decide to accept undesired results. Then decide to persist. Maybe you’ve been toying with the idea of making capital investments into your law practice. Maybe you want to expand your areas of practice or become board certified. Maybe you want to try DWI cases like John Gioffredi. Maybe you simply want to lose some extra weight. Whatever you desire, decide to try something new. Especially, if your efforts to date haven’t produced the results you want. Thank you, John, for the encouragement to try new things. Thanks for helping me lure my own courage out into the open.

Note

1. John Gioffredi can be reached at (214)739-4515. His address is 4131 N. Central Expressway #680, Dallas, TX 75204. His email is .

Off the Back: Evaluating Anonymous Tips – By Stephen Gustitis

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I dropped by a suppression hearing recently and listened to a prosecutor argue the merits of an anonymous tip, which they claimed justified an investigatory detention. I was puzzled. The State asserted their anonymous tip was “reliable” and, therefore, justified the stop and subsequent arrest of the defendant. Though recent case law had expanded the realm of situations in which anonymous tips may justify a detention, I soon realized the prosecutor was arguing only half the story. Evaluating a stop based upon an anonymous tip was actually a two-step process. First, was the tipster’s information reliable? If yes, was the information contained in the tip sufficient to establish reasonable suspicion to detain the suspect for further criminal investigation?

A few facts from the hearing may help clarify the approach to challenging an anonymous tip. A bicycle cop and his partner were patrolling a bar district late one night, several hours before closing time. One officer observed an unidentified person leaving a nearby parking lot driving a pickup truck. The truck drove past the officer and reported that “some occupants in a tan Silverado just knocked into our doors getting into their vehicle . . . you should check on them.” The anonymous tipster then sped away, never to be seen or heard of again. The bike cop then peddled over to a tan Silverado, which was attempting to leave the parking lot. He detained the driver and two passengers and subsequently developed probable cause to arrest the driver for driving while intoxicated. The cop testified the driver of the Silverado may have been intoxicated based on the time of day, the sizable number of bars in the area, and the fact intoxicated persons were often careless when opening their car doors in close proximity to other vehicles.

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In the anonymous tip context, Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), developed the idea that both the quantity and quality of information possessed by the police were important in evaluating an investigatory detention. In White, police received an anonymous telephone tip that Ms. White would be leaving a particular apartment, at a particular time, in a particular vehicle going to a particular motel, and that she would be in possession of cocaine. When evaluating law enforcement’s detention of Ms. White, the Court stated: “Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the ‘totality of the circumstances—the whole picture’ [citations omitted]—must be taken into account when evaluating whether there is reasonable suspicion.” White, 496 U.S. at 330.

Tip Reliability

Case law interpreting the reliability of anonymous tips is extensive and should be examined for each situation. But in a recent Supreme Court opinion regarding the reliability of such tips, Navarette v. California, __ U.S. __, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), Justice Thomas wrote for the majority and held that under appropriate circumstances an anonymous tip could demonstrate “sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop” by accurately predicting future behavior. Navarette, 134 S.Ct. at 1688. (citing Alabama v. White, 496 U.S. 325, 327 (1990)). The Court noted their anonymous caller necessarily claimed to have eyewitness knowledge of alleged dangerous driving and that it was reported contemporaneously with observations made by the caller. Further, the Court believed the caller’s use of the 911 system somewhat eliminated the possibility of making a false, yet anonymous report since these calls could be traced and were routinely tape recorded. Significantly, Justice Scalia dissented and claimed the majority opinion was a departure from the Court’s Fourth Amendment requirement that anonymous tips must be corroborated. He further cautioned that Navarette would be interpreted by police as a rule allowing stops based upon anonymous tips without any corroboration. 134 S.Ct. at 1692 (Scalia, J., dissenting).

Following Navarette, the Texas Court of Criminal Appeals decided Matthews v. State, 431 S.W.3d 596 (Tex. Crim. App. 2014), another anonymous tip case. In Matthews, an unnamed tipster reported a black male called Neal Matthews, wearing a white muscle shirt and dark pants, was selling crack cocaine out of a white van parked in front of a particular store, a high-crime area known for weapons and drug arrests. The Court noted Navarette and stated an anonymous tip containing adequate indicia of reliability could support reasonable suspicion enough to justify an investigatory detention by police. The Court went on to hold that Mr. Matthews’ detention was supported by reasonable suspicion because the caller’s tip contained enough specific facts, corroborated by police, giving the tip its necessary reliability.

Tip Content

Even if reliable, though, an anonymous tip may still not provide enough quality content to provide law enforcement justification to detain someone for further investigation. In Stewart v. State, 22 S.W.3d 646 (Tex. App.—Austin 2000, reh’g denied), the court considered whether an anonymous tip was reliable enough in its assertion of illegality. The detention was based on anonymous information asserting a green Camaro was parked by the gas pumps at a local convenience store. The caller further stated it was occupied by a passenger and Caucasian driver who was observed falling down “a couple times” trying to get into the vehicle and appeared “highly intoxicated.” Stewart, 22 S.W.3d at 648. The responding officer did not observe anything independently to support reasonable suspicion or to corroborate the anonymous report. The Austin Court of Appeals ruled the stop was illegal. “We are mindful of the public danger posed by intoxicated drivers. But we are also mindful of our obligation to follow established Fourth Amendment precedent. Under that prece­dent, the anonymous caller’s tip, which was uncorroborated in its assertion of possible illegality, did not objectively support a reasonable suspicion that appellant was driving while intoxicated.” 22 S.W.3d at 650.

Another applicable case was State v. Griffey, 241 S.W.3d 700 (Tex. App.—Austin 2007, no pet.). There an unnamed Whataburger store manager reported a person was “passed out behind the wheel in the drive-through.” Griffey, 241 S.W.3d at 702. When the responding officer arrived an unidentified employee pointed to Mr. Griffey’s car. Griffey was detained by police and, ultimately, arrested for driving while intoxicated. The Austin Court ruled the stop was illegal. It held the manager’s tip did not support reasonable suspicion because the information provided to the police did not allege any criminal activity. The court also effectively distinguished Griffey’s facts from other cases in which informants had allegedly observed and reported specific behavior consistent with the commission of crimes.

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As I observed, the defense attorney respond to the State’s lop-sided argument, and I noticed there were facts cutting both ways concerning the reliability of the anonymous report from the pickup driver. On the one hand, the anonymous information seemed to be contemporaneously communicated to the of­ficer and was purportedly based upon an eyewitness account. Cutting against reliability was the tipster’s quick exit from the scene after briefly talking to the officer, making their identity unknowable. But what struck me was the quantity of information the State attempted to use to establish reasonable suspicion. Was “knocking doors” in a crowded parking lot, in a bar area of town, enough to establish reasonable suspicion the driver of the Silverado may be intoxicated? The tipster had not reported they seemed drunk or that any illegal activity was afoot. Moreover, there was zero information whether the Silverado’s driver was perpetrating the door knocking themselves. Interestingly, the county court at law judge (a former prosecutor herself) did not immediately rule but took the matter under advisement. Maybe that portended a successful outcome for the defense.

Off the Back: More Women Criminal Defense Lawyers Wanted – By Stephen Gustitis

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From my perspective the criminal law defense profession continues to be a man’s world. Based on 25 years of observation, the number of women defense lawyers at the county courthouse continues to be a minority. It should not be so, however. There should be more of them in our courtrooms fighting for the rights of the citizen accused.

Granted, I’m no expert in women. But those I’ve seen, those having the fortitude to manage the strain of a courtroom law practice, have added much to the profession. These women were tough and insightful. They’ve added invaluable insight into client management, case evaluation, and above all, jury selection. These women were great multi-taskers, too. So much better than I. And oftentimes they just seemed to do a better job. I’d like to see more women fighting for the rights of citizens all across our Texas criminal courtrooms.

A 2013 article in the ABA Journal chronicled the careers of several leading women in the profession.1 Although the article focused on women in civil practice, one could easily discern the crossover application to criminal defense. The take-away from the article were traits common among the most successful women attorneys. First, these leading ladies worked long hours. Regardless of gender, unfortunately, there was always a price to pay for success. That price was time, and lots of it. Further, these high-fliers fought hard to develop opportunities within their firms. They worked the big cases and made the big deals. And this sacrifice gave them opportunity to spotlight their unique talents. Moreover, these women were better at networking, and building friendships and business relationships, compared to their male counterparts. Indeed, these women leaders learned to pull their own weight. Pulling their weight meant becoming consistent producers. They learned to generate revenue, develop business relationships, and attract paying clients to their firms. Most importantly, they all earned first-rate reputations for making their firms profitable. Regardless of gender, being a good lawyer was just not enough. Being business savvy was the difference between remaining an associate or becoming a profit-sharing partner.

Granted, I’m no expert in women. But I have learned about the unique challenges facing the female criminal defense attorney. Like most male practitioners, the women were challenged by the same unpredictable work hours and the same unpredictable income. But unlike their male counterparts, women sometimes failed to get the family support they needed to make a go of it when working those long, unpredictable hours. This was especially true when it came time to raise a family and tend to the needs of children. And, of course, there remained the lingering problem of sexism in the profession.

Unfortunately, I don’t know the answers to the problems facing women criminal defense attorneys. But whatever their unique challenges, I’d love to see more of them at the county court­house trying cases. I appreciate their intuition and I appreciate their world views. And maybe I’m being a little selfish saying that, oftentimes, women are just more fun to have around.

Note

1. Zahorsky, R. M. (2013, June 1). Meet 6 law firm leaders, each with a different story, each at the top of her game. Retrieved March 16, 2017, from http://www.abajournal.com/magazine/article/women_in_charge_at_the_top_of_their_game/.

Off the Back: How Might Criminal Defendants Fare With a Justice Neil M. Gorsuch? – By Stephen Gustitis

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If confirmed by the United States Senate, Judge Neil M. Gorsuch would fill the SCOTUS vacancy left by Antonin Scalia. During his 30 years on the Court, Justice Scalia moved the law dramatically favoring criminal defendants in several areas. One example was Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.Ed. 2d 177 (2004), which held that live witness testimony was constitutionally required in criminal trials for all “testimonial” out-of-court statements. Another was Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), which decided that police needed a search warrant to point a thermal-imaging camera at the side of a house to see if “hot spots” might indicate indoor grow lights. Scalia also delivered Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), holding that every defendant had the right to insist the government prove to a jury all the facts legally essential to punishment in federal prosecutions. He further equipped the defense with United States v. Jones, __U.S.__, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), which held the police needed a warrant to place a GPS tracker on the bottom of suspect vehicles. Conversely, Scalia provided some unwelcomed gratuities to the criminally accused. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)(pretext stops legal provided probable cause existed for any traffic offense), and Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006)(exclusionary rule only applies where its deterrence benefits outweigh its substantial social costs), were standout examples. But this article is about Neil Gorsuch. How might criminal defendants fare with Gorsuch on the Court? Admittedly, we can fashion only educated guesses. Even so, by examining some of his 10th Circuit Court writings and public remarks, we may get a line on issues important to him.

Gorsuch was willing to construe mens rea narrowly, even when it did not favor the prosecution, in United States v. Games-Perez, 695 F.3d 1104 (10th Cir. 2012). There the defendant had been charged with possessing a firearm, after being convicted of a felony, in violation of 18 U.S.C. sec. 922(g)(1). Under 10th Circuit precedent, the government need only prove the accused knowingly possessed a firearm—not that he also knew he was a convicted felon. See United States v. Capps, 77 F.3d 350, 352 (10th Cir. 1996)(knowledge required for a sec. 922(g) conviction is only that the instrument possessed was a firearm). After the 10th Circuit denied Games-Perez’ petition for rehearing en banc, Judge Gorsuch asserted in his dissent that the federal statute was unambiguous and clearly required the accused to knowingly possess a fire­arm and to knowingly be a convicted felon. Gorsuch brutally criticized the way the mens rea element had been interpreted in the case, adding: “People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime.” Games-Perez, 695 F.3d at 1116–17 (Gorsuch, J., dissenting).

Judge Gorsuch made his concern with over-criminalization known during a November 15, 2013, Barbara K. Olson Memorial Lecture at the Federalist Society’s National Lawyers Convention in Washington, D.C. During his remarks, Gorsuch observed:

[T]oday we have about 5,000 federal criminal statutes on the books, most of them added in the last few decades, and the spigot keeps pouring, with literally hundreds of new statutory crimes inked every single year. Neither does that begin to count the thousands of additional regulatory crimes buried in the federal register. There are so many crimes cowled in the numbing fine print of those pages that scholars have given up counting and are now debating their number . . . Whether because of public choice problems or otherwise, there appears to be a ratchet, relentlessly clicking away, always in the direction of more, never fewer, federal criminal laws. Some reply that the growing number of federal crimes isn’t out of proportion to our population and its growth. Others suggest that the proliferation of federal criminal laws can be mitigated by allowing the mistake of law defense to be more widely asserted. But isn’t there a trou­bled irony lurking here in any event? Without written laws, we lack fair notice of the rules we as citizens have to obey. But with too many written laws, don’t we invite a new kind of fair notice problem? And what happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”1

In A.M. ex rel. F.M. v. Holmes, 14-2066 (10th Cir. 2016), Gorsuch’s dissent revealed a humorous and gentle wit. That case involved a New Mexico seventh grader arrested by school police for disrupting the education process and suspended from school for generating several “fake burps.” The boy’s mother sued school officials (and the police officer) claiming her son had been subject to an unlawful arrest and excessive force. The 10th Circuit upheld the district court’s decision in support of the officials. Gorsuch, the lone dissenter, insightfully expounded:

If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen-year-old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded . . . Often enough the law can be “a ass — a idiot,” [citation omitted]2 and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands—and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass (sic) as they do. I respectfully dissent.”

Holmes, at 95–98 (Gorsuch, J., dissenting).

In contrast, Judge Gorsuch demonstrated he may overvalue proceduralism relative to a defendant’s substantive rights. For in­stance, in Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011), he wrote for the majority denying habeas corpus relief. This was Prost’s second habeas petition. He asserted his guilty plea and con­viction should be overturned based on a new interpretation of the statute under which he was convicted. See United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008). In an opinion balancing the competing considerations of fairness and judicial administration, Gorsuch wrote that Prost’s chal­lenge should be denied since the petitioner had failed to pur­sue a statutory interpretation argument in the trial court, on appeal, or in his initial collateral challenge to his conviction. Though some argued the decision overvalued proceduralism at the expense of substantive rights, the opinion was well written and clearly reasoned.

Neil Gorsuch is a great admirer of Justice Antonin Scalia. In a speech to Case Western Reserve University School of Law shortly after Scalia’s death, he praised Scalia for his unyielding textualism by saying: “Judges should instead strive, if humanly and so imperfectly, to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”3 If confirmed, Neil Gorsuch will have about 30 years to forge his own judicial identity. Most likely, he will not be another Antonin Scalia on criminal law. But that’s okay since only Scalia could be another Scalia. Rather, from what we know, Gorsuch appears concerned with the plight of the ordinary man and woman. He is balanced, witty, and possesses an enjoyable sense of humor. The man seems to have common sense, and he’s got the typical pedigree of a Supreme Court Justice with degrees from Columbia, Harvard, and Oxford. His writing is typically clear and precise. But trying to predict a Justice Neil Gorsuch is a difficult task, at best a guess, as he will have years to mold his judicial legacy. Gorsuch will certainly be no Scalia. But that’s okay since what we really want is Neil Gorsuch to be himself.

Notes

1. Gorsuch, N. M., Hon. (2017, February 8). 13th Annual Bar­bara K. Olson Memorial Lecture. Lecture presented at 2013 Na­tional Lawyers Convention in Mayflower Hotel, Washington, DC. Retrieved from http://www.fed-soc.org/multimedia/detail/13th-annual-barbara-k-olson-memorial-lecture-event-audiovideo.

2. Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838).

3. Gorsuch, N. M., Hon. (2017, February 9). 2016 Sumner Carnary Memorial Lecture: Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. Res. L. Rev. 905, 906 (2016). Retrieved from http://scholarlycommons.law.case.edu/caselrev/vol66/iss4/3/.

Off the Back: Preserving Error in Retrograde Extrapolation Cases – By Stephen Gustitis

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Last month we introduced the toxicological aspects of cross-examining the retrograde extrapolation expert in DWI trials. Now, an understanding of toxicology will promote our error preservation before the State’s expert attempts to bamboozle the jury with opinions about the client’s driving time BAC. As a bonus, this process will also assist the defense lawyer develop meaningful cannon fodder for cross-examination if the trial court rules the extrapolation evidence admissible.

Our most powerful weapon in error preservation is Tex. R. Evid. 705(b). Rule 705(b) permits us to voir dire an expert outside the jury’s presence regarding their opinions and the factual basis for those opinions. Equally important, before scientific evidence is admissible a trial court must conduct a hearing to determine whether the proponent of the evidence has established its reliability using Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992). Also see Jackson v. State, 17 S.W.3d 664 (Tex.Crim.App. 2000); Tex. R. Evid. 702. One way to obtain a 705(b) hearing is by filing a motion in limine prior to trial requesting a hearing if the State intends to elicit retrograde extrapolation evidence. Get a ruling to assure the prosecutor is on notice and to avoid an ambush. Otherwise, approach the bench once the State’s expert takes the stand and inform the court you want a 705(b) hearing if extrapolation evidence becomes an issue. And remember this . . . sometimes a prosecutor will not ask their expert about extrapolation on direct examination. Crafty prosecutors may wait. If you open the door on cross-examination, then you’ve waived error and you are screwed on re-direct. So be careful!

Once the jury retires, ask for an offer of proof regarding the expert’s opinion and the facts they intend to use to support it. The prosecutor may simply propound a hypothetical to the expert using facts developed from the trial. They then ask for an opinion about your client’s BAC at the time of driving. After the offer of proof you may take the expert on voir dire. Tie them down to every fact and circumstance used to support their opinion. Use Mata v. State, 122 S.W.3d 813 (Tex.Crim.App. 2003) as a guide to bullet-point the salient facts required before proffering a retrograde extrapolation opinion. In addition to aiding your objections, this voir dire can help you develop material for cross-examination once the jury returns.

Further, before extrapolation evidence is admissible it must meet three reliability criteria. First, the underlying scientific theory must be valid. Next, the technique applying the theory must be valid. And lastly, the technique must have been properly applied on the occasion in question. Kelly, supra. The burden is on the proponent to prove admissibility by clear and convincing evidence. Fuller v. State, 827 S.W.2d 919 (Tex.Crim.App. 1992). Moreover, seven factors should be considered by the trial court in deciding whether the reliability criteria have been satisfied: (1) the extent to which the underlying theory and technique were accepted as valid by the relevant scientific community; (2) the qualifications of the expert testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error in the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person applying the technique. Kelly at 573.

During your 705(b) hearing, ask the expert about each of these factors and determine their depth of knowledge. If the expert refers to studies, ask to see them. I have yet to read a study I cannot distinguish from the facts of my case. If they don’t have the studies on hand, consider creating an impression with your jury the expert was bolstering their opinions without providing you a fair opportunity to question them. Again, this voir dire process can provide excellent material for cross-examination if the trial court rules the extrapolation opinion is admissible.

Once you’ve extracted everything possible from the expert, object to their extrapolation testimony as follows: (1) Object under Kelly and Mata that the State failed to prove by clear and convincing evidence the underlying theory of retrograde ex­trapolation was valid, that the technique applying the theory was valid, and that the technique was properly applied in your case. GET AN ADVERSE RULING; (2) include objections to the lack of qualifications of the expert, the lack of clarity with which the expert explained the technique and theory, and the lack of skill and experience of the expert. GET AN ADVERSE RULING; (3) object to the relevance of the opinion under Tex. R. Evid. 401 and 402. GET AN ADVERSE RULING; (4) then object under Tex. R. Evid. 403. GET AN ADVERSE RULING. Furthermore, ask the court to articulate their Rule 403 balancing test on the record. Lastly, be prepared to articulate harm if the court admits the testimony. This is not necessary to preserve error but may help the lawyer on appeal if a conviction results.

You are now fully armed to attack retrograde extrapolation and preserve error in your next DWI trial. Regularly study the toxicology as those principles give you the best opportunity to challenge the expert’s opinion. Don’t open the door to retrograde extrapolation and waive error. Use Rule 705(b) as an indispen­sable tool for extracting information from the expert using Kelly and Mata to develop material for your cross-examination. Get adverse rulings. And above all . . . have fun and good luck!

Off the Back: A Toxicological Guide to Retrograde Extrapolation Cross-Examination – By Stephen Gustitis

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Prosecutors like to use it. Occasionally, we may like it, too. Retrograde extrapolation is the method by which one estimates a person’s BAC at the time of driving based upon a chemical test result later in time. Swedish physician Erik M. P. Widmark first calculated absorption and elimination rates of alcohol in the body. Widmark created what we know today as the “blood alcohol curve,” which represented the rise and fall of a person’s BAC as their body absorbs and eliminates alcohol.1 The rate of absorption, distribution, and elimination varies greatly between individuals and can have a substantial effect on someone’s intoxication and chemical test results. Prosecutors may use retrograde extrapolation to argue a person’s BAC at the time of driving exceeded the .08 legal limit based on a test minutes (or hours) after the stop.

Conversely, the defense may posit an alternative explanation of the chemical test evidence. By using retrograde extrapolation, they may endeavor to create reasonable doubt about whether the person’s BAC was under .08 at the time of driving. This is efficacious when the person looked sober on the video and the prosector’s “loss of normal use” theory is weak. Regardless of the objective, each retrograde extrapolation cross-examination requires an understanding of important toxicological principles to execute the examination with best effect. Today we undertake to develop a simple guide to these principles to help the planning of your next retrograde extrapolation cross-examination. The guide is intended as a starting point for those interested in becoming proficient in this area of trial practice. And like any area of trial advocacy, proficiency takes work, much time, and detailed independent study.

An essential library resource for the DWI trial attorney is a learned treatise from which to study these principles. My favorite is Garriott’s Medicolegal Aspects of Alcohol, now in its sixth edition.2 Garriott’s is a multi-chaptered book authored by leaders in the field of forensic toxicology and alcohol pharmacology. Even more importantly, many of the State’s chemists and technical supervisors are familiar with Garriott’s and willingly concede it’s an authoritative treatise in their area of expertise. Further, they also concede many of the contributing authors are experts in their respective fields. This helps when you venture outside Garriott’s for authoritative sources published by a contributing author.

If we aspire to suppress the State’s use of retrograde extrapolation evidence, then preserving error is the first step in developing an effective cross-examination. However, we’ll delay a discussion of error preservation until next month’s article since our toxicological guide will help use better understand the error preservation process. To put it briefly, preserving error may involve attacking the scientific theory of retrograde extrapolation, the technique applying the theory, and the theory’s application to our client’s case in particular. We also have opportunity to attack the expert witnesses themselves by challenging their ability to effectively communicate the science, the technique, its problems and pitfalls. Key cases for preserving error are Mata v. State, 122 S.W.3d 813 (Tex. Crim. App. 2003), Hartman v. State, 946 S.W.2d 60 (Tex. Crim. App. 1997), and Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). Rules of Evidence 401, 402, 403, 702, and 705 are instrumental, as well. Lastly, if you utilize retrograde extrapolation as exculpatory evidence, then be prepared to respond to similar prosecution objections.

The position of a person’s BAC curve at the time of driving and at the time of chemical testing is critical, as this will determine whether BAC increases, remains unchanged, or decreases after the actual driving incident.3 Consequently, the first question to consider in retrograde extrapolation is this: When did the person’s BAC peak? The time of peak BAC is important since any extrapolation depends upon whether the person was still ab­sorbing alcohol into their system, at their peak, or were in the elimination phase at the time of the chemical test. Most DWI prosecutions involve a single breath or blood test result. Since a single test cannot determine when a person reached peak BAC, the time to peak BAC can only be inferred by knowledge of other critical facts. These facts may not be known by the State’s expert. Peak BAC and the time to peak after drinking stops depends on the rate of alcohol absorption. The general considerations are: (a) how much (and what) alcohol the person consumed; (b) over what time period the person drank (first and last drink times); and (c) gastric emptying.4

More specifically, the time to peak BAC depends on facts particular to the person on the day in question and include: (1) the presence and type of food in the stomach; (2) when the food was consumed; (3) the quantity of alcohol consumed; (4) the type of alcohol consumed; (5) the duration of drinking; and (6) time of the last drink; (7) the person’s mental state; (8) gender; (9) weight; (10) their typical drinking pattern; and (11) tolerance to alcohol.5 Generally, faster (and higher) peaks occur when moderate amounts of alcohol are consumed over a short period of time on an empty stomach (the chug-a-lug scenario). Conversely, slower (and lower) peaks occur when drinking is spread out over a longer period of time and food is contemporaneously consumed (the typical social drinking pattern).6

When the State’s expert is challenged on cross-examination, they should admit how important the time of peak BAC is to their retrograde extrapolation. Use leading questions to establish this point. Further, every conscientious expert should admit that a single test result cannot determine where on the BAC curve your client was at test time. Consequently, they should also admit that without multiple tests results, specific individual characteristics about your client must be known to estimate the time of peak BAC. Depending upon the efficacy of the police investigation, the expert often knows only the time of the stop, the time of the test, your client’s weight, and your client’s gender. They should also admit that the fewer individual characteristics known to them, the more speculative their retrograde extrapolation will be.

Moreover, experts should also admit the longer the time between driving time and chemical test time, the less reliable their extrapolation opinion. However, be aware that many State experts will opine that peak BAC occurs within one (1) hour of the last drink. However, the studies show the contrary. In fact, Dr. A. W. Jones has stated that “[m]ost subjects reach peak BAC within 60 minutes after the end of drinking but some required 120 minutes or more.7 The variable length of time to peak BAC is another factor casting doubt upon when your client reached maximum alcohol absorption. Once you’ve muddied the waters about the time to peak BAC, the next attack follows.

If your client was still absorbing alcohol at the time of the chemical test, then retrograde extrapolation would show their BAC at driving time was lower. How much lower is, obviously, the key unknown. Retrograde extrapolation results, when testing during the absorption phase, depend on the absorption rate. Absorption rates are extremely variable and are rarely quoted in the research literature due to this variability. In brief, the rate is dependent upon the many individual characteristics about your client we examined above. Because of the many factors affecting absorption there are no “standard” rates. Again, the rate depends on the presence and type of food in the stomach since alcohol is absorbed from the stomach and small intestine by diffusion.

Food in the stomach generally delays absorption as the alcohol remains in the stomach and is absorbed much more slowly. After passing into the small intestine, absorption occurs quickly due to the intestine’s large surface area and rich blood supply. Generally, faster absorption rates occur when moderate amounts of alcohol are consumed on an empty stomach.8 In that scenario, the retrograde extrapolation would subtract a larger alcohol number (g/dL/hr) from the test time result. Slower rates occur when drinking is spread out over longer periods of time.9 There, the retrograde extrapolation would subtract a smaller alcohol number (g/dL/hr) from the test time result. Since the State’s expert rarely knows how fast (or slow) your client was absorbing alcohol, the extrapolation numbers they use are speculative. But intuitively, we’d want the largest number possible subtracted from test time BAC.

If your client had reached peak BAC and was now eliminating alcohol at test time, then retrograde extrapolation would show their driving time BAC was higher. The expert would attempt to show this using “standard” elimination rates. In other words, they would add alcohol (g/dL/hr) to the test time result to obtain a driving time BAC (it’s also possible that test time BAC might be the same as driving time BAC if the peak occurred between driving time and test time).

A common elimination rate used by State experts is .15 g/dL/hr. However, the studies show elimination rates can vary anywhere between 0.08 g/dL/hr and 0.35 g/dL/hr.10 The most trustworthy method to determine your client’s elimination rate would be to follow their entire post-peak phase by taking repeated test samples and then performing a linear regression to determine the elimination rate. This, of course, is never done. Consequently, the expert should admit that elimination rates vary depending upon individual factors unknown to them. Don’t let them get away with using “average” rates of elimination (unless it helps you) since the expert has no idea whether your client is average or not. Confront them with Garriott’s, or another treatise or study they consider authoritative on the subject, to show that research has proven that elimination rates can vary widely.

Measurement uncertainty is inherent in every scientific process. Although not directly applicable to retrograde extrapolation, it presents an interesting challenge to any extrapolation opinion. Measurement uncertainty relates to the range of values attributed to a single measured quantity. It’s important because no measurement can ever tell us what a quantity’s true value is. At best, the measuring system provides a range of values that has a known probability of containing the quantity’s value. Without stating measurement uncertainty, any conclusion based upon a measured result is speculation since there’s no way to understand what the result actually represents (e.g., the Austin Crime Laboratory policy for reporting blood alcohol concentrations is with a 99.7% confidence level, and the BAC is reported 69.4%). Consequently, consider committing the State’s expert to expressing their extrapolation result in terms of a measurement confidence interval—for instance 99.7%. I doubt they will, though they may commit to “more likely than not.” If you had discussed the differences in burdens of proof at voir dire, the jury would be empowered to conclude just how speculative retrograde extrapolation really is.

Dr. Jones wrote that “requests to back extrapolate a person’s BAC from sample time to driving time is a dubious practice because of the many variables and unknowns involved.”11 He further stated that “[i]n a DWI trial, only a single measurement of BAC is usually available, making it very difficult to engage in retrograde calculations with sufficient certainly for criminal prosecution.”12 But I liked Judge Johnson’s point in Mata the best: “Extrapolation back from the BAC at the time of testing to the BAC at the time of driving is an endeavor fraught with the danger of inappropriately bamboozling the jury into thinking that such an extrapolation can be anything close to accurate.” Mata v. State, 122 S.W.3d 813, 932 (Tex. Crim. App. 2003)(Johnson, J., concurring). Don’t let the prosecutor’s retrograde extrapolation bamboozle your next jury!

Notes

1. Widmark, E.M.P., Principles and applications of medicolegal alcohol determination, Biomedical Publications, Davis, 1981, pp. 1–163.

2. Garriott’s Medicolegal Aspects of Alcohol, 6th edition. Y. H. Caplan and B. A. Goldberger, eds; Lawyers and Judges Publishing Company, Tucson, AZ, 2015.

3. Jones, A. W., Biochemical and Physiological Research on the Disposition and Fate of Ethanol in the Body, Garriott’s Medicolegal Aspects of Alcohol, p. 103 (James Garriott ed., 2008, 5th edition).

4. Id. at p. 94.

5. Id. at pp. 85–105. See also Mata v. State, 122 S.W.3d 813, 908–09 (Tex. Crim. App. 2003).

6. Id. at pp. 97–98.

7. Id. at p. 103. See also Dubowski, K. M., Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, Journal of Studies on Alcohol, Supplement No. 10, July 1985, p. 99.

8. Id. at p. 97.

9. Ibid.

10. Id. at p. 88, Table 3.7.

11. Id. at p. 127.

12. Ibid.

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