Austin DWI Lawyer
Texas DWI Defense Firm: Austin DWI Lawyers handling DWI & drunk driving cases in Travis County, Texas. Call Dunham & Rogers today to speak with a Austin DWI Lawyer and find out how they can help you.
For an immediate free consultation about your Austin, Texas DWI, call (512) 879-1414 to speak with a lawyer about your Driving While Intoxicated charge or simply fill out the contact form to your left and a DWI attorney will call you. Dunham & Rogers has been handling Texas DWI cases since 1989 and has over 200 years combined legal experience. Many of the criminal defense lawyers are former Assistant District Attorneys with many years of trial experience. But hurry time is important for keeping your Texas Driver's License.
Fill out the form to your left to have Austin DWI Lawyers Dunham & Rogers send you your free arrest report regarding your Travis County, Texas DWI arrest.
Dunham & Rogers handles Texas DWI (Driving While Intoxicated), DUI (Driving Under the Influence) and BWI (Boating While Intoxicated) cases in and around Travis County, Texas. Having Texas Board Certified Criminal Law Specialists* and former prosecutors handling your DWI case can make the difference between winning, going to jail or doing DWI probation. You will find our law firm to be an very knowledgeable about Texas DWI Laws and drunk driving penalties and information.
Finding an Experienced Austin DWI Lawyer, Attorney
When selecting legal representation, realize that your attorney's experience is very important. The way your DWI case is handled will have an influence on the outcome and thus your future. Having Texas Board Certified Criminal Law Specialists* on your side can mean the difference between obtaining a good result and a bad result. At Dunham & Rogers, many of our criminal defense attorneys have previously been Assistant District Attorneys, spending years perfecting their courtroom skills. We know the procedures of the criminal court system and can make that system work for you.
Proven Track Record against DWI's in Travis County
Dunham & Rogers has accumulated a highly successful record of acquittals, dismissals and reductions in DWI defense. Each DWI is different, but note that the criminal defense lawyers at Dunham & Rogers always start with the goal of getting your DWI case dismissed or reduced to a traffic ticket.
Serious Consequences for a Texas DWI
A Texas DWI charge has serious consequences. You may lose your Texas Driver's License, experience a substantial increase in car insurance rates, pay large fines and court costs, suffer a driver's license surcharge ranging from $3,000.00 to $6,000.00, and possibly face jail time.
Don't leave your future to chance. Select a Austin, Texas DWI Lawyer who will fight for you. At Dunham & Rogers we will work for dismissal or reduction of your DWI charge. If we are successful, you may even be able to have your arrest record and fingerprints torn up! Don't let this arrest record affect your job or your future; call us immediately to discuss how we can handle your DWI.
Affordable Fees and Pay Plans
Our legal fees are fair and competitive, especially for Texas Board Certified Criminal Law Specialist. In most cases, we charge a low flat rate and often do not require any money down. The initial consultation is free. When you factor in our legal experience and proven case results, Dunham & Rogers is a good choice for those who want the highest quality of legal representation at a fair and reasonable cost.
A Word of Warning about your Texas Driver's License
You have only 15 days from the date of your DWI arrest in Texas to request a hearing on your Texas Driver's License. If you fail to request a hearing, your Texas Driver's License may be suspended and you face the probability of paying huge fines for several years. It is important that you hire quality legal representation for this hearing to challenge the license suspension. Having legal representation for this license hearing provides an opportunity for your criminal defense attorney to question the arresting police officer. Putting the police officer on the stand helps to establish his or her position, which can be very beneficial to your DWI case.
Texas Driver's License Surcharge (Fines)
Since 2003, the Texas Department of Public Safety has been authorized to levy a surcharge on Texas Driver's Licenses suspended for DWI and alcohol related arrests. This surcharge can range from $1,000.00 to $2,000.00 per year for three years. Depending on your DWI, you could be facing a $6,000.00 fee just to keep your Texas Driver's License. Now you know why it is so important to fight your driver's license suspension.
Speak to a Austin DWI Lawyer today
Call the Austin, Texas DWI Lawyers at Dunham & Rogers today to discuss the ways they can help you keep your Texas Driver's License and try to dismiss or reduce your DWI charge. The attorneys at Dunham & Rogers will take the necessary time to explain the whole process of your Driving While Intoxicated charge that you face.
Saturday, May 24, 2008
Tests: Some People Do Better Than Others
Surfing the blogosphere I run across a post entitled “Examination Blanking Out” by Razeet:
Test anxiety is normal and can even help us function well in testing situations. The problem develops when the level of nervousness is so high that it interferes with what one is there to do.
As a result, with two people taking the exact same test, one might be calm, cool and collected, while the other is a pile of perspiration and blanking out.
Now, his post doesn’t have anything to do with Field Sobriety Tests; more likely he’s talking about studying all semester, and cramming for an exam, and still not doing well.
But DWI lawyers should remember that this phenomenon, that ‘some folks do better than others on tests’, and for a variety of reasons, is a well known fact. Indeed, it should be the theme of most DWI breath test refusal trials: starting in jury selection, bolstered by the arresting officer’s own testimony, and repeated in closing.
A series of questions I use at the ALR hearing to set this defense up goes something like this (answers left out – I don’t really care if the officer disagrees):
Officer, you agree that folks in the general public vary greatly in their ability to perform physical tasks?
Some people are gifted athletes, and some people are super klutzy?
Most people are somewhere in between?
Like most characteristics, there’s probably a bell curve of natural physical abilities?
And you’d never met my client before that night?
And you don’t know where on that bell curve he might fall?
He might be an Olympic athlete, or he might be uncoordinated, you just don’t know?
I say I don’t care what the officer answers, because a jury will know that the truthful answer to all these questions is 'Yes'. If an officer disagrees, or ‘weasels’ on one of these basic truths, you may even be better off. You can certainly argue that he graded too hard in his evaluation of your client.
The basic point is this: everyone knows that ‘some folks do better than others’ on all types of tests…including DWI field sobriety tests.
Surfing the blogosphere I run across a post entitled “Examination Blanking Out” by Razeet:
Test anxiety is normal and can even help us function well in testing situations. The problem develops when the level of nervousness is so high that it interferes with what one is there to do.
As a result, with two people taking the exact same test, one might be calm, cool and collected, while the other is a pile of perspiration and blanking out.
Now, his post doesn’t have anything to do with Field Sobriety Tests; more likely he’s talking about studying all semester, and cramming for an exam, and still not doing well.
But DWI lawyers should remember that this phenomenon, that ‘some folks do better than others on tests’, and for a variety of reasons, is a well known fact. Indeed, it should be the theme of most DWI breath test refusal trials: starting in jury selection, bolstered by the arresting officer’s own testimony, and repeated in closing.
A series of questions I use at the ALR hearing to set this defense up goes something like this (answers left out – I don’t really care if the officer disagrees):
Officer, you agree that folks in the general public vary greatly in their ability to perform physical tasks?
Some people are gifted athletes, and some people are super klutzy?
Most people are somewhere in between?
Like most characteristics, there’s probably a bell curve of natural physical abilities?
And you’d never met my client before that night?
And you don’t know where on that bell curve he might fall?
He might be an Olympic athlete, or he might be uncoordinated, you just don’t know?
I say I don’t care what the officer answers, because a jury will know that the truthful answer to all these questions is 'Yes'. If an officer disagrees, or ‘weasels’ on one of these basic truths, you may even be better off. You can certainly argue that he graded too hard in his evaluation of your client.
The basic point is this: everyone knows that ‘some folks do better than others’ on all types of tests…including DWI field sobriety tests.
Do Field Sobriety Tests Measure Impairment?
Every good DWI lawyer is familiar with the last section in Chapter 8 of the NHTSA DWI Detection and Standardized Field Sobriety Testing Manual that states:
If any one of the standardized Field Sobriety Test elements is changed, the validity is comprised. (***)
Indeed, one of the bedrocks of DWI defense is being able to grade not only the defendant’s performance on the FSTs, but being able to grade the officer’s administration of the tests. In some situations, improper instructions or grading can actually make an individual test or even the entire battery of tests inadmissible.
Unfortunately, for all NHTSA’s efforts to the contrary, there are many problems with these roadside tests – even when administered by the book. They do not, in fact, allow police officers to accurately determine whether someone is over a .08 blood or breath alcohol content.
Furthermore, most of the better trained officers will admit under cross examination that there is no correlation between some of the tests and “impairment” – I know most of the specialized Austin DWI task force officers will testify to that, because I’ve asked them under oath.
To the extent that “science” is involved here at all, the only real measurement is between performance on the tests, and being above or below a certain BAC. Which means there’s an inherent argument for defense lawyers in many DWI breath test refusal cases that the client’s performance on the field sobriety tests is not sufficient proof of intoxication.
(*** Every NHTSA Manual I’ve ever seen actually has this section in ALL CAPS AND BOLD – emphasizing that even NHTSA acknowledges how important this is.)
Every good DWI lawyer is familiar with the last section in Chapter 8 of the NHTSA DWI Detection and Standardized Field Sobriety Testing Manual that states:
If any one of the standardized Field Sobriety Test elements is changed, the validity is comprised. (***)
Indeed, one of the bedrocks of DWI defense is being able to grade not only the defendant’s performance on the FSTs, but being able to grade the officer’s administration of the tests. In some situations, improper instructions or grading can actually make an individual test or even the entire battery of tests inadmissible.
Unfortunately, for all NHTSA’s efforts to the contrary, there are many problems with these roadside tests – even when administered by the book. They do not, in fact, allow police officers to accurately determine whether someone is over a .08 blood or breath alcohol content.
Furthermore, most of the better trained officers will admit under cross examination that there is no correlation between some of the tests and “impairment” – I know most of the specialized Austin DWI task force officers will testify to that, because I’ve asked them under oath.
To the extent that “science” is involved here at all, the only real measurement is between performance on the tests, and being above or below a certain BAC. Which means there’s an inherent argument for defense lawyers in many DWI breath test refusal cases that the client’s performance on the field sobriety tests is not sufficient proof of intoxication.
(*** Every NHTSA Manual I’ve ever seen actually has this section in ALL CAPS AND BOLD – emphasizing that even NHTSA acknowledges how important this is.)
Is refusing the breath test "consciousness of guilt" in a DWI?
In Texas, the answer is a pretty clear “no” (although the prosecutors will argue that it is).
I’ve written before on the legal theory called “consciousness of guilt”, and in some instances, it makes sense. However, when it comes to refusing to provide a breath or blood sample after a DWI arrest, the theory is logically useless.
In Texas, you are only asked to provide that evidence after you have already been arrested. After you have been arrested. And you won’t be let go even if the result is under .08 BAC.
When folks blow “under the legal limit”, the State proceeds on the alternate theory that you had lost the normal use of your mental and/or physical faculties - despite being under the “per se” limit of .08.
So, you’ve been arrested and you will be charged with DWI, no matter your response to “Will you take a breath test?”
If you blow over the per se .08 BAC limit, you have just made it more likely that you will be convicted. If you blow under, you don’t get to go home. You are booked into jail and prosecuted anyway.
When you think about it that way, why would anyone submit (unless they’ve literally had nothing to drink in the last twelve to twenty four hours)?
Given the above scenario, isn’t refusing to take the intoxilyzer actually evidence that you have not lost the normal use of your mental faculties?
In Texas, the answer is a pretty clear “no” (although the prosecutors will argue that it is).
I’ve written before on the legal theory called “consciousness of guilt”, and in some instances, it makes sense. However, when it comes to refusing to provide a breath or blood sample after a DWI arrest, the theory is logically useless.
In Texas, you are only asked to provide that evidence after you have already been arrested. After you have been arrested. And you won’t be let go even if the result is under .08 BAC.
When folks blow “under the legal limit”, the State proceeds on the alternate theory that you had lost the normal use of your mental and/or physical faculties - despite being under the “per se” limit of .08.
So, you’ve been arrested and you will be charged with DWI, no matter your response to “Will you take a breath test?”
If you blow over the per se .08 BAC limit, you have just made it more likely that you will be convicted. If you blow under, you don’t get to go home. You are booked into jail and prosecuted anyway.
When you think about it that way, why would anyone submit (unless they’ve literally had nothing to drink in the last twelve to twenty four hours)?
Given the above scenario, isn’t refusing to take the intoxilyzer actually evidence that you have not lost the normal use of your mental faculties?
On Forced Specimens in DWI Cases
I’ve written before on forced blood draws, and indeed, in Austin, some DWI suspects are being forced to give blood specimens. After an initial refusal to take a breath or blood test, the officer submits a warrant to have the defendant’s blood forcibly drawn.
This is one of the main reasons that the Travis County Jail went to 24 hour magistration. Since most DWI arrests are after midnight – go figure – such a policy didn’t make any sense until they made sure they had a judge to rubber stamp the warrants.
But this news article takes it to a new level:
A lawsuit over the forced catheterization of a man who was arrested for investigation of drunken driving has been settled for $15,000.
The settlement reached Friday with Matthew Clifford Arthur, 37, over his treatment following an arrest in November 2005 did not include any admission of wrongdoing, Assistant Attorney General Gary E. Andrews said Monday. While the settlement covers Cowlitz County and county officials, the state will pay the full cost, he added.
"This turned out to be a better way to go than to spend more money litigating it," Andrews said.
Arthur filed suit last month, accusing two Cowlitz County sheriff's deputies and a state corrections officer of forcing him to undergo catheterization and a blood draw when he refused to provide urine and blood samples at St. John's Medical Center in Longview following a traffic stop.
Arthur was required to undergo screening for intoxicants upon request under a probation agreement at the time, but his lawyer, Kevin G. Blondin, said the procedure was painful, invasive and unnecessary.
"He was held down kicking and screaming while they shoved a catheter into his penis," Blondin said.
Instead, Arthur should have been taken to jail when he refused to give the fluid samples, the lawyer said.
Forced catheterization. A couple of comments.
First, state entities do not, at least typically, settle lawsuits “just to make them go away” or because it will be cheaper. I don’t have any inside facts here, but I think it’s reasonable to guess that ‘they’ decided that a jury wouldn’t like this, and that they stood to lose a lot more if they went to trial. That’s how civil settlements work.
Second, this guy was on probation. So he deserved it right? Even consuming alcohol, whether you are operating a vehicle or not, is a probation violation – at least in Texas. But many times, at least if it’s a DWI probation in Austin, the judge will make “submit to the taking of a breath or blood specimen upon request of police or probation officer” a condition. So if it’s necessary to prove a probation violation, his initial refusal will do the trick.
Third… is this what we’ve come to? Forced catheterization? It barely needs commenting on. If you’re not immediately, viscerally opposed to this, I can’t imagine how my words could change your mind.
I’m not a big fan of slippery slope arguments, but before you start supporting forced blood draws in Texas DWI cases, you really might want to think where this whole thing is going
I’ve written before on forced blood draws, and indeed, in Austin, some DWI suspects are being forced to give blood specimens. After an initial refusal to take a breath or blood test, the officer submits a warrant to have the defendant’s blood forcibly drawn.
This is one of the main reasons that the Travis County Jail went to 24 hour magistration. Since most DWI arrests are after midnight – go figure – such a policy didn’t make any sense until they made sure they had a judge to rubber stamp the warrants.
But this news article takes it to a new level:
A lawsuit over the forced catheterization of a man who was arrested for investigation of drunken driving has been settled for $15,000.
The settlement reached Friday with Matthew Clifford Arthur, 37, over his treatment following an arrest in November 2005 did not include any admission of wrongdoing, Assistant Attorney General Gary E. Andrews said Monday. While the settlement covers Cowlitz County and county officials, the state will pay the full cost, he added.
"This turned out to be a better way to go than to spend more money litigating it," Andrews said.
Arthur filed suit last month, accusing two Cowlitz County sheriff's deputies and a state corrections officer of forcing him to undergo catheterization and a blood draw when he refused to provide urine and blood samples at St. John's Medical Center in Longview following a traffic stop.
Arthur was required to undergo screening for intoxicants upon request under a probation agreement at the time, but his lawyer, Kevin G. Blondin, said the procedure was painful, invasive and unnecessary.
"He was held down kicking and screaming while they shoved a catheter into his penis," Blondin said.
Instead, Arthur should have been taken to jail when he refused to give the fluid samples, the lawyer said.
Forced catheterization. A couple of comments.
First, state entities do not, at least typically, settle lawsuits “just to make them go away” or because it will be cheaper. I don’t have any inside facts here, but I think it’s reasonable to guess that ‘they’ decided that a jury wouldn’t like this, and that they stood to lose a lot more if they went to trial. That’s how civil settlements work.
Second, this guy was on probation. So he deserved it right? Even consuming alcohol, whether you are operating a vehicle or not, is a probation violation – at least in Texas. But many times, at least if it’s a DWI probation in Austin, the judge will make “submit to the taking of a breath or blood specimen upon request of police or probation officer” a condition. So if it’s necessary to prove a probation violation, his initial refusal will do the trick.
Third… is this what we’ve come to? Forced catheterization? It barely needs commenting on. If you’re not immediately, viscerally opposed to this, I can’t imagine how my words could change your mind.
I’m not a big fan of slippery slope arguments, but before you start supporting forced blood draws in Texas DWI cases, you really might want to think where this whole thing is going
Why DWI Lawyers Should Read Blogs
One of the things I love about the criminal defense/DWI blogosophere is that it is a great resource for practicing lawyers. Reading other attorneys’ thoughts often helps me in my day to day practice.
Two quick examples:
From Robert Guest on DWI and Jury Selection:
As part of the jury selection process I often ask potential jurors if they have ever driven after drinking. The vast majority of potential jurors answer yes.
The truth about DWI is that most jurors have committed DWI in their past but did not get arrested. They only difference between them and the defendant is luck.
When I inquire into the reason they chose to drink and drive most will say they were "young and stupid." I often wonder at why jurors are so ready to ruin the lives of defendants who are on trial for DWI, when they have committed the same crime themselves.
I’m not sure I would ask the “why” follow up question in Voir Dire, but that’s a matter of personal style. The point is that by reading Robert’s blog, I’ve added a question to my repertoire.
It’s simple, to the point, and something the DWI lawyer wants and needs to know. I’ve had my own ways (in the past) of inquiring about this subject matter, but because of Robert’s post, I’m going to adopt his way of doing it. It’s better than how I tried to illicit the information, and I’m not afraid to admit it. Read, learn, and get better. (I can even admit that his method is so much simpler and better than mine has been that I’m a little embarrassed.)
One general rule for jury selection is that you shouldn’t be asking “raise your hand if …” type questions, you should be asking questions that force potential jurors to respond substantively, with their own thoughts and ideas. But this is a good example of an exception to the general rule.
Example #2 comes from Mark Bennett, but some background before we get to his specific cross examination question.
I think one of the most difficult tasks for a DWI lawyer is to successfully defend a breath or blood test case where the client’s BAC (Blood or Breath Alcohol content) comes back as over .08. Briefly, there are two basic defenses: (1) the machine is an untrustworthy piece of junk, or (2) the defendant’s BAC at the time of driving was lower than at the time of the test.
The problem for the DWI defense attorney is that both of these are highly technical, i.e. scientific based defenses… and we went to law school. Few of us have graduate degrees in Science. Or undergraduate degrees, for that matter. Personally, I received a Bachelor of ‘Science’ in Psychology, after relatively brief and/or longer stops in the Departments of Computer Science, Theater Arts, and English, in that order. (OK, it took me a while to figure out what I wanted to do – and even then I changed my mind - although you can certainly make the case that my ‘Theater’ training still comes in handy.)
But generally speaking, the person testifying for the State knows more about the Intoxilyzer 5000 than we do. In Texas DWI cases, that person is the “Technical Supervisor’. Their job is essentially to come and testify that defense #1 is out the window, because the Intoxilyzer is God’s gift to machines, and that while defense #2 is theoretically possible, it doesn’t apply in your client’s DWI because blah blah blah (insert mumbo jumbo here, and the reasons seem to change to fit the facts of your particular case).
Here’s what I learned from Mark, in his post on “Dealing with the State’s Expert: One Last Question”:
If you get a chance to talk to the State's expert witness before trial (if you're allowed to, try; the best experts often see themselves as neutral, and will explain their conclusions to you), your last question should be: "What book should I read to learn about this topic myself." Get the book; it'll be a learned treatise that you can mine for cross-examination material.
Yes, it’s not technically cross examination; it’s an informal question most likely asked in whatever room the prosecutors are holed up in, and not in a pretrial or trial setting.
But here’s how it applies to DWI cases: it’s a great question to ask at the ALR driver’s license revocation hearing. This is often held before the criminal case, and it’s an absolute goldmine for defense lawyers.
Why not use your ALR hearing last question to the technical supervisor to ask his question? About books, or magazine articles and the like. Worst case scenario is that the expert limits his knowledge of ‘learned treatises’ on the subject to a bunch of material that only backs up his side of the story.
At the very least, you can show that the State’s expert relies only on material that favors his conclusions. Or, in the alternative, that the DWI technical supervisor relies on scientific publications that help your client.
Either way, you learn more, and your clients (present and future) benefit
One of the things I love about the criminal defense/DWI blogosophere is that it is a great resource for practicing lawyers. Reading other attorneys’ thoughts often helps me in my day to day practice.
Two quick examples:
From Robert Guest on DWI and Jury Selection:
As part of the jury selection process I often ask potential jurors if they have ever driven after drinking. The vast majority of potential jurors answer yes.
The truth about DWI is that most jurors have committed DWI in their past but did not get arrested. They only difference between them and the defendant is luck.
When I inquire into the reason they chose to drink and drive most will say they were "young and stupid." I often wonder at why jurors are so ready to ruin the lives of defendants who are on trial for DWI, when they have committed the same crime themselves.
I’m not sure I would ask the “why” follow up question in Voir Dire, but that’s a matter of personal style. The point is that by reading Robert’s blog, I’ve added a question to my repertoire.
It’s simple, to the point, and something the DWI lawyer wants and needs to know. I’ve had my own ways (in the past) of inquiring about this subject matter, but because of Robert’s post, I’m going to adopt his way of doing it. It’s better than how I tried to illicit the information, and I’m not afraid to admit it. Read, learn, and get better. (I can even admit that his method is so much simpler and better than mine has been that I’m a little embarrassed.)
One general rule for jury selection is that you shouldn’t be asking “raise your hand if …” type questions, you should be asking questions that force potential jurors to respond substantively, with their own thoughts and ideas. But this is a good example of an exception to the general rule.
Example #2 comes from Mark Bennett, but some background before we get to his specific cross examination question.
I think one of the most difficult tasks for a DWI lawyer is to successfully defend a breath or blood test case where the client’s BAC (Blood or Breath Alcohol content) comes back as over .08. Briefly, there are two basic defenses: (1) the machine is an untrustworthy piece of junk, or (2) the defendant’s BAC at the time of driving was lower than at the time of the test.
The problem for the DWI defense attorney is that both of these are highly technical, i.e. scientific based defenses… and we went to law school. Few of us have graduate degrees in Science. Or undergraduate degrees, for that matter. Personally, I received a Bachelor of ‘Science’ in Psychology, after relatively brief and/or longer stops in the Departments of Computer Science, Theater Arts, and English, in that order. (OK, it took me a while to figure out what I wanted to do – and even then I changed my mind - although you can certainly make the case that my ‘Theater’ training still comes in handy.)
But generally speaking, the person testifying for the State knows more about the Intoxilyzer 5000 than we do. In Texas DWI cases, that person is the “Technical Supervisor’. Their job is essentially to come and testify that defense #1 is out the window, because the Intoxilyzer is God’s gift to machines, and that while defense #2 is theoretically possible, it doesn’t apply in your client’s DWI because blah blah blah (insert mumbo jumbo here, and the reasons seem to change to fit the facts of your particular case).
Here’s what I learned from Mark, in his post on “Dealing with the State’s Expert: One Last Question”:
If you get a chance to talk to the State's expert witness before trial (if you're allowed to, try; the best experts often see themselves as neutral, and will explain their conclusions to you), your last question should be: "What book should I read to learn about this topic myself." Get the book; it'll be a learned treatise that you can mine for cross-examination material.
Yes, it’s not technically cross examination; it’s an informal question most likely asked in whatever room the prosecutors are holed up in, and not in a pretrial or trial setting.
But here’s how it applies to DWI cases: it’s a great question to ask at the ALR driver’s license revocation hearing. This is often held before the criminal case, and it’s an absolute goldmine for defense lawyers.
Why not use your ALR hearing last question to the technical supervisor to ask his question? About books, or magazine articles and the like. Worst case scenario is that the expert limits his knowledge of ‘learned treatises’ on the subject to a bunch of material that only backs up his side of the story.
At the very least, you can show that the State’s expert relies only on material that favors his conclusions. Or, in the alternative, that the DWI technical supervisor relies on scientific publications that help your client.
Either way, you learn more, and your clients (present and future) benefit
Incorrect Blood Test Results Lead to 'Reluctant' DWI Dismissal
Lawrence Taylor writes about an interesting dismissal in one of his California DUI cases, although it could have happened in a Texas DWI case just as well.
His client’s blood test results came back from the lab well over the .08 limit, in fact a .15 blood alcohol concentration.
According to the defendant, his body weight, his drinking pattern, his likely stomach contents etc., the blood test had to be wrong. Or, the result had to be wrong for him to be innocent.
So they had the blood sample tested for the presence and amount of preservative and anticoagulant, the absence or low levels of which could cause false high results. Alas, no problems there – the result still looked admissible, and no clear line of attack for the defense.
With the two most likely explanations of false high blood test results out the window, the next most likely explanation (of innocence anyway) became that the blood being tested was not the blood drawn from the client.
[See also Mark Bennett’s blog for a related discussion of the intersection of scientific principle with criminal defense lawyering in Occam’s Razor and Bennett’s Chainsaw. For those that know the second principle, the phrase ‘DWI dismissal’ in the title of the post will be a hint that Mark’s ‘most likely explanation of the evidence’ theory is not in play here.]
Checking the blood type of the sample against the blood type of the DWI defendant is the easiest, or perhaps cheapest method of proving that the State has the wrong blood, although it is not foolproof. In Taylor’s case they checked and… it was the same blood type. It’s not discussed in the post, but as long as we are talking about math and science, it’s worth noting that principles of conditional probability and specifically Bayes’ Theorem tells us this now makes it more likely that it was indeed the client’s blood. But it’s not conclusive by any means. It was Type O, which puts it at the most common blood type, about 40% of the population.
Now, I’ve seen Lawrence speak at various seminars over the years, and I think he is to say the least an impressive DWI lawyer. So the next step in the process doesn’t surprise me:
We decided to try something different, something that, to our knowledge, had not been done before in any DUI case. We had blood taken from our client and, with a portion of the remaining sample from the LAPD lab, shipped to a laboratory in Oklahoma that specialized in DNA testing.
A month or so later the report came in: the blood tested by LAPD was conclusively not that of our client.
It’s a great post. DWI lawyers in Texas and everywhere else should read it. He goes on to talk about chain of custody, gas chromatograph instruments, and how it’s likely that other DUI defendants in the same ‘batch’ as his client also probably had their blood samples misidentified with them. Some of them ended up with lower results than they really had, some higher. (And unfortunately, we all know that most of them couldn’t afford this type of sleuthing for justice.)
So what’s the ending here? Well, this line, really a throwaway line in light of the substance of the post jumped out at me:
The prosecutor in the case initially refused to accept these results. But after we proved that the comparison blood had come from our client and after LAPD checked the blood themselves, he reluctantly dismissed all criminal charges. [Emphasis Added]
Yes. When the State is pressured to convict all who come before it on DWI charges, prosecutors can become downright reluctant to dismiss the case, even in light of these facts. Thankfully in this case, they took their duty as prosecutors seriously.
One last note: I thought about titling this post ‘Incorrect Blood’ Test Results… but then, that would have given away the punchline.
Lawrence Taylor writes about an interesting dismissal in one of his California DUI cases, although it could have happened in a Texas DWI case just as well.
His client’s blood test results came back from the lab well over the .08 limit, in fact a .15 blood alcohol concentration.
According to the defendant, his body weight, his drinking pattern, his likely stomach contents etc., the blood test had to be wrong. Or, the result had to be wrong for him to be innocent.
So they had the blood sample tested for the presence and amount of preservative and anticoagulant, the absence or low levels of which could cause false high results. Alas, no problems there – the result still looked admissible, and no clear line of attack for the defense.
With the two most likely explanations of false high blood test results out the window, the next most likely explanation (of innocence anyway) became that the blood being tested was not the blood drawn from the client.
[See also Mark Bennett’s blog for a related discussion of the intersection of scientific principle with criminal defense lawyering in Occam’s Razor and Bennett’s Chainsaw. For those that know the second principle, the phrase ‘DWI dismissal’ in the title of the post will be a hint that Mark’s ‘most likely explanation of the evidence’ theory is not in play here.]
Checking the blood type of the sample against the blood type of the DWI defendant is the easiest, or perhaps cheapest method of proving that the State has the wrong blood, although it is not foolproof. In Taylor’s case they checked and… it was the same blood type. It’s not discussed in the post, but as long as we are talking about math and science, it’s worth noting that principles of conditional probability and specifically Bayes’ Theorem tells us this now makes it more likely that it was indeed the client’s blood. But it’s not conclusive by any means. It was Type O, which puts it at the most common blood type, about 40% of the population.
Now, I’ve seen Lawrence speak at various seminars over the years, and I think he is to say the least an impressive DWI lawyer. So the next step in the process doesn’t surprise me:
We decided to try something different, something that, to our knowledge, had not been done before in any DUI case. We had blood taken from our client and, with a portion of the remaining sample from the LAPD lab, shipped to a laboratory in Oklahoma that specialized in DNA testing.
A month or so later the report came in: the blood tested by LAPD was conclusively not that of our client.
It’s a great post. DWI lawyers in Texas and everywhere else should read it. He goes on to talk about chain of custody, gas chromatograph instruments, and how it’s likely that other DUI defendants in the same ‘batch’ as his client also probably had their blood samples misidentified with them. Some of them ended up with lower results than they really had, some higher. (And unfortunately, we all know that most of them couldn’t afford this type of sleuthing for justice.)
So what’s the ending here? Well, this line, really a throwaway line in light of the substance of the post jumped out at me:
The prosecutor in the case initially refused to accept these results. But after we proved that the comparison blood had come from our client and after LAPD checked the blood themselves, he reluctantly dismissed all criminal charges. [Emphasis Added]
Yes. When the State is pressured to convict all who come before it on DWI charges, prosecutors can become downright reluctant to dismiss the case, even in light of these facts. Thankfully in this case, they took their duty as prosecutors seriously.
One last note: I thought about titling this post ‘Incorrect Blood’ Test Results… but then, that would have given away the punchline.
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