Think long and hard about that second drink

Beginning yesterday, the State of Utah has enacted the strictest drunk driving laws in the country. From this day forward, anyone who causes the death of another by operating their car in a negligent manner with a blood alcohol concentration of .05 or higher will be charged with felony vehicular manslaughter.

Now I'm not going to sit here and tell you that it's okay to get drunk and go driving around town. I think that is something that we can all agree is a bad thing to do. But I do think we need to think of the consequences of lowering BAC levels and ramping up punishments.

If we look at things in a vacuum then we know that someone with any alcohol in their system is going to be impaired to one degree or another. But then we need to look at some other factors. What about the person talking on their cell phone or texting or tweeting or fiddling with the radio or talking with a passenger? What about that driver who is driving on very little sleep and is having trouble keeping their eyes open?

Distracted driving is far more prevalent that drunk driving in this country. And we see it every day on the highway or on the streets.

An alcohol concentration of .05 can be achieved by as little as two glasses or wine or two drinks with dinner. For most folks that's not even enough to get a buzz. Do you really want to move toward lowering the legal limit to that range?

Think of the number of folks you see running red lights, driving too fast, moving in and out of lanes, swerving and driving the wrong way during daylight hours. Do you really believe that each and every one of those folks are intoxicated?  But if those folks cause a fatality accident, they won't be subject to nearly the harsh punishment that a person who had two glasses of wine in his system would be.

And that just isn't right. It's an example of politicians picking the low-hanging fruit while looking for an issue to run on. Not everyone lives in a major city with public transportation options or Uber or the like. Not everyone reacts to alcohol in the same manner. We all know folks who are done for the evening after their second drink. But should everyone be judged on the same scale?

Finally, do we really need to look for new ways to charge folks with felony offenses? Are we trying to put more folks under government supervision?

The current batch of pseudo-scientific roadside exercises were devised back when the per se limit in most states was .10. NHTSA then declared - without conducting new research that the tests were good at predicting who had a BAC of greater than .08. What's the game now, Utah? If someone passes the tests are you then going to require a test to determine if their BAC is .05 or greater? If so, why even bother using the roadside exercises in the first place?

Yes, there are horrific accidents every day across this country caused by drivers who are well above the legal limit. Those are the cases that appear on the news. It's important to remember, however, that the vast majority of DWI arrests are based on speeding, failing to signal a lane change, weaving and other minor traffic offenses.

Utah's new DWI law is but the latest example of a solution searching for a problem.

Merry Christmas

As you listen to this, just remember that the best way to avoid a drunk driving conviction is not to drive if you' ve been drinking. So, if you're out having a good time over the next week, use a designated driver, use Uber, call a cab or call a friend.

Drugged driving in Tornado Alley

I saw a tweet on Twitter yesterday about a six-state initiative to cut down on drugged driving. This weekend in Arkansas, Kansas, Iowa, Missouri and Oklahoma, police will be "cracking" down on drugged driving in an initiative cleverly titled Driving High? Kiss Your License Goodbye.

There's just one little problem. While alcohol mixes with the blood in the lungs which allows the use of a breath test to estimate the amount of alcohol in a person's body, drugs don't.

With alcohol we can trace a curve showing the accumulation of alcohol in a person's body and we can calculate (or, as I prefer, guesstimate) the length of time it will take that person to eliminate the alcohol. We can't do that with drugs. Since marijuana is illegal, there has been no testing to determine accumulation or elimination rates.

Furthermore, with alcohol we can pick a concentration that demarcates the line between being intoxicated and not being intoxicated. We can quibble over the number but there is testing data available that shows the effect of higher levels of alcohol over time. No such luck with drugs.

I think I can visualize how this initiative is going to work. The police will conduct a traffic stop on anyone committing a minor traffic (or equipment) violation after hours. If the person has the odor of an alcoholic beverage on their breath it will become a DWI stop, complete with roadside sobriety tests and breath or blood tests at the scene or at the station. If the person doesn't have the odor of an alcoholic beverage on their breath it will become a drugged driving stop since there can't possibly be any other reason a motorist might be speeding, not using a turn signal or driving with a burned out tail light.

Those accused and arrested for drugged driving will have to wait weeks for the results of blood tests to come back. Prosecutors will then argue that the presence of inactive metabolites for any number of drugs are evidence that the motorist was under the influence of drugs at the time of driving. Little thought or consideration will be given to the fact that the inactive metabolites of many drugs find their ways to the body's fatty tissues where they stay, not bothering anyone or anything, for anywhere from three days to a month.

Prosecutors will also argue that the presence of prescription medications indicates the motorist was driving under the influence of drugs, too. Little consideration will be given to the actual concentration of the drug in the body or whether or not that concentration is lesser or greater than a therapeutic dosage. Prosecutors will argue that the presence of alcohol and any prescription medication is a clear sign of intoxication without regard for the actual chemistry of the substances involved.

But, hey, with strong Fourth Amendment protections and judges who take seriously their gatekeeper role when it comes to scientific evidence, there's nothing to worry about this weekend in Tornado Alley, is there?

h/t Marine Glisovic and Shane Ethridge

Calls to lower the legal limit to .05

In the latest step in the never-ending quest to criminalize everything, the National Academies of Science, Engineering and Medicine have called to lower the legal limit for alcohol from .08 to .05. According to the Academy, impairment is present at a much lower level than the law accounts for.

The Academy also calls for mandatory ignition interlocks for all offenders for a period of at least 2 years. It also calls for limits on alcohol advertising and availability. The report calls for stricter measures to prevent people under the age of 21 from purchasing alcohol. The report also calls for more DWI courts and, seemingly as a throwaway, sobriety checkpoints.

For years the legal limit in most states in the US was .10. That was reduced to the current .08 during the Reagan years (so much for federalism). When the National Highway Traffic Safety Administration codified the modern standardized field sobriety tests, the science said that .10 was impaired and the battery of tests could help an officer to decide whether or not he thought a driver was over the limit or not.

When the limit was reduced in the 1980's the testing protocol remained the same because there was no new science to back up the new limit. Now we were told that this battery of tests could help an officer determine if a driver's alcohol concentration was above .08. The reduction in the limit amounted to roughly one drink.

Now, I'm not going to argue that drunk driving isn't a problem. I have always told clients, and prospective clients, that the best way to avoid a DWI arrest is not to drink and drive. Roughly a third of accident fatalities are the victims of a drunk driver. However, as anyone who practices criminal law knows, the vast majority of DWI arrests aren't the result of an accident. Most drivers arrested for DWI were speeding, failed to signal a lane change, swerved momentarily into another lane or had some equipment violation such as a burned out taillight or an expired registration sticker.

Lowering the limit from .08 to .05 is the equivalent of two drinks. This means that that third glass of wine could be the difference between sleeping in your own bed and staying at the Grey Bar Hilton on a Friday night.

The current battery of standardized field sobriety tests can't determine the difference between .05 and .08. Are we going to reduce probable cause for a DWI arrest to the smell of alcohol on a driver's breath?

The most troubling recommendation in the report is for the increased use of sobriety checkpoints. I guess the members of the Academy are unfamiliar with the 4th Amendment. Now I realize that the courts in some states have ignored the 4th Amendment and decided that there wasn't any need for probable cause for a search and seizure but thankfully that hasn't happened (yet) in Texas.

Sobriety checkpoints are a direct assault upon the right of the people to be free from unreasonable search and seizure. For every other criminal act, the police must have probable cause (or the nebulous reasonable suspicion) to stop a person. Sobriety checkpoints allow the police to stop folks who haven't done anything to warrant suspicion and arrest them.

And how are they going to function? Does every driver blow into a portable breath tester? Only the ones who have the odor of alcohol on their breath?  And what happens when a driver refuses to blow into the PBT? The results of a PBT aren't admissible in Texas, if someone blows over a certain amount are they immediately cuffed and taken to a testing facility? Are they asked to perform roadside sobriety tests on the spot?

This proposal would only increase the number of folks caught up in our criminal (in)justice system. That means more people being arrested, having to post bond, hiring attorneys and paying assorted legal fees and court costs. It also means more folks having criminal records. And all of this for behavior which is perfectly legal right now.

Reducing the number of drunk drivers on the roadways is a worthy goal. However, before we criminalize behavior that is now legal and subject many more drivers our criminal (in)justice system, there needs to be some science behind the proposal.

And the hits just keep coming

Well, that certainly didn't take long.

Already ankle deep in an evidence destruction scheme in Precinct 4, Harris County DA Devon Anderson has a new mess on her hands. And this time it has to do with drunk driving.

Dr. Fessessework Guale works at the Harris County Institute for Forensic Sciences, until very recently she was one of the managers in the toxicology department.

Dr. Guale was always a favorite expert witness for the state. She would take the stand and tell the jury how accurate and reliable blood alcohol testing was. She would then take out pen and paper and mystify the jury as she calculated what the defendant's blood alcohol concentration would have been at the time of driving. Nevermind that no one had ever bothered to test the defendant's metabolism or measure the time it takes alcohol to be absorbed into his or her system. Forget that the patron saint of blood alcohol testing, Dr. Kurt Dubowski, wrote that so-called retrograde extrapolation (guesstimation) was notoriously unreliable. Nope, nothing was going to stop Dr. Guale from getting on that stand and telling the jury that the defendant - beyond any doubt - was clearly intoxicated at the time of driving. Hell, she didn't even need to view the scene video or offense report - she just knew.

She also knew about killing cats in the name of science. She studied veterinary science back home in Ethiopia and did some serious experimentation on cats. Of the four published articles which she claims, only one has to do with toxicology. The others all have to do with animals.

But one field she might not have know quite so much about was toxicology. For years she took the stand and, under oath, told juries that she had a master's degree in toxicology. Now for some of the folks who ended up sitting on a jury, that was all they needed. If she has a post-graduate degree in toxicology then she probably knows what's she talking about, right?

Um, not so fast.

It turns out that Dr. Guale's master's degree from Oklahoma State is in some field called physiological sciences. On her statement of qualifications (which is submitted to the accreditation agency) she states she has a Masters of Science in Toxicology (just take a look below). Ooops. She claims toxicology is a sub-discipline of physiological science but that's debatable coming from her mouth.

"My training is in toxicology but the degree says physiological sciences, which is a big area which toxicology is a sub part of it. It's called a sub discipline." 
-- Dr. Fessessework Guale

Unfortunately that's not what the Oklahoma State University website says when you look up "physiological sciences." It appears that department is part of the school's Center for Veterinary Health Sciences.

The Department of Physiological Sciences at Oklahoma State University contributes substantially to the teaching, research and service components of the Center for Veterinary Health Sciences.

-- Oklahoma State University website

I believe that makes Dr. Guale a perjurer. Just how many cases over the years did she take the stand and lie about her educational background? Just how many times did she lie on her curriculum vitae about her educational background? Just how many times was her falsified CV sent to defense attorneys during discovery?

And if she was so willing to lie about her educational background, what else has she lied about? And since we now know she is a liar, can we, should we, believe anything she has said on the witness stand? For you see, it's not a question of counting up the lies to determine whether or not someone is trustworthy; it's a question of whether or not someone who has lied can ever be believed.

And now Devon Anderson says she's getting to bottom of it. And I'm sure she's in a hurry to do so. Apparently the DA's office has decided they will no longer use Dr. Guale as an expert witness. But will she remain employed with HCIFS? Even though she has lied continually about her academic qualifications, will she or the lab suffer any repercussions?

Every case in which Dr. Guale testified as to retrograde guesstimation needs to be re-examined. Every attorney who handled one of those cases should be notified. And, should we find out that anyone in the DA's office knew about Dr. Guale's lies before now, any convictions which relied on her testimony about blood alcohol concentration should be vacated. In fact, any case in which a defendant was convicted and Dr. Guale testified should be brought into question - particularly since the verdict form does not indicate under which theory of intoxication the jury convicted the accused.

Devon Anderson has shown herself to be largely incompetent in running the Harris County DA's Office. She is certainly not to be trusted. But what should we expect from a person who took charge of the office not through an election but through an appointment after her husband (who failed to disclose his medical condition during his campaign) died less than a year into his term?

  Dr. Fessessework Guale Statement of Qualifications by Paul B. Kennedy on Scribd

More breath test shenanigans

If you have been a long time follower of this blog the name Dee Wallace should ring a bell. She was the technical supervisor in charge of breath test machines in the Houston area who faked test and calibration data.

Now there's a new name to add to the Forensic Hall of Shame. Let's say hello to Marianela Martinez, late of the League City Police Department. It seems that Ms. Martinez had a contract to oversee the breath test programs in League City and several other small towns in southern Harris County and in Galveston County. It would also appear that Ms. Martinez also participated in creative maintenance of breath test machines.

Ms. Martinez was fired last month for unsatisfactory job performance. In a detailed write-up, the Chief of Police for League City, Michael Kramm, set forth a laundry list of problems with Ms. Martinez' job performance over the years. Interestingly enough, Ms. Martinez received excellent mark-ups in her annual job evaluations - even though she was doing piss poor when it came to audits of her work from the State of Texas.

According to Mr. Kramm

"Documentation from State auditors and regional supervisory staff demonstrated lengthy down time for instruments under the care and control of Martinez. Audit documentation demonstrated a pattern of poor time management, last minute inspections, poor record keeping, missing maintenance records and deficient hardware/technical knowledge on behalf of Martinez."

Ms. Martinez was afforded a great deal of latitude with respect to running the breath test program in League City. No one looked closely at DPS audits when it came time to reviewing her job performance. It wasn't until someone higher up the chain of command began looking into problems pointed out by the audits that anyone gave her performance a second thought.

In addition to her failure to maintain the breath test machines under her control, Ms. Martinez also failed to calibrate and prepare the new Intoxilyzer 9000 machines that were to be put into service in her area.

Keep in mind that the estimations from these machines were used in drunk driving prosecutions. We have no way of knowing whether any of the machines used to test those breath samples were in proper operating condition. We have no way of knowing whether they were properly maintained. And but for Ms. Martinez' bumbling inepitude with the roll out of the Intoxilyzer 9000, we might never have found out she wasn't doing the job she was supposed to be doing.

This is the problem with breath testing. These machines are placed under the control of persons who are rarely held accountable for what goes on under their watch. It's only years after a problem was discovered that we find out what went on behind the curtain.

This is the primary problem in leaving these forensic "tools" in the hands of the people who are doing the arresting. There is no accountability - until it's too late. There is a built in bias on the part of the folks who maintain these machines since they get their paychecks from the same agency that arrested the test subject in the first place.

Sleeping is not necessarily operating

In every DWI case a defense attorney must assess two issues - first, was the client intoxicated and second, was the client operating a motor vehicle. Most trials involve the issue of intoxication as the motorist was stopped by a police officer after that officer had seen the motorist violate some provision of the transportation code.

During voir dire, prosecutors attempt to lower their standard of proof by convincing prospective jurors that being intoxicated is more akin to having a buzz than it is to being drunk.

Rare is the case that turns on whether or not the accused was operating a motor vehicle. We've all seen news accounts of the man arrested for driving a recliner (with a motor) down the street while drunk and of the man arrested for being drunk while riding his lawnmower down the road. There was even an unfortunate guy out in Austin was arrested for DWI because he was drunk while riding his horse down the street.

Then there's the instance in which someone is sleeping behind the wheel of a car with the engine on. Sometimes the car is in a parking lot or on the side of road. Sometimes the car is sitting at an intersection. Sometimes the transmission is engaged and the driver has his foot on the brake.

Chad Murray was sleeping in the front seat of his truck with the engine running and the transmission in park. He was parked in a private drive with the wheels on one side sitting on the shoulder - no part of his truck was on the actual road. There were no cans or bottles of alcohol in or near the truck but Mr. Murray was apparently intoxicated (though that was not an issue on appeal).

When questioned by police Mr. Murray did not admit to driving.

A Hill County jury was convinced that Mr. Murray had been operating his truck and they found him guilty of driving while intoxicated. Mr. Murray then appealed his conviction to the Amarillo Court of Appeals arguing that the evidence was insufficient to support the conviction, namely that there was no evidence that he was operating a motor vehicle.

In Murray v. State, No. 07-13-00356-CR (Tex.App.--Amarillo 2014), the Appeals Court found in favor of Mr. Murray, reversed his conviction and rendered a judgment of acquittal. The Court did agree that it was reasonable to infer that at some point Mr. Murray had been operating his truck - but the Court pointed out that there was no evidence that he was intoxicated when doing so.

Happy Fourth (or not)

Yesterday the Harris County Criminal Lawyers Association carried on a tradition born four years ago with the annual reading of the Declaration of Independence outside the Harris County Criminal (In)justice Center.

At the same time as the reading in Houston, there were readings at 73 other courthouses in Texas.

The reading is a powerful reminder of what the Fourth of July is all about and why we do what we do. It's an event that pulls us together and gives us a little kick in the ass to motivate us. It's also a stark reminder of how different things were 239 years ago.

Of course I would be remiss if I didn't point out that it was a roomful of wealthy, white landowners who signed the document and their promises of life, liberty and the pursuit of happiness didn't apply to women, the poor or those held in bondage.

A special shout out goes to John Raley who worked for years - for free - to obtain the release of Michael Morton. There is no higher reward in this profession than seeing an innocent man walk out of prison.

HCCLA President Carmen Roe opens the ceremony.

Robb Fickman delivers the keynote address.

But it's not all fun and games for down here in Houston we are in the midst of (yet) another No Refusal Weekend. The other day Mayor Annise Parker and the police got in front of the media and explained why we just need to pretend that the Fourth Amendment doesn't exist on Fourth of July weekend.

The anecdotes are horrific. There is nothing amusing or fun about folks dying in a car accident because someone was intoxicated. But there is also nothing to celebrate about making a mockery of what this holiday is all about. The Founding Fathers put their lives on the line by signing a document that laid out the abuses committed by the British government. Our own elected officials pat themselves on the back for conspiring to violate the Bill of Rights.

An interesting side note to all of this was former Harris County prosecutor (and current Montgomery County prosecutor) Warren Diepraam's appearing on KUHF's Houston Matters yesterday in which he told the radio audience that there was nothing wrong with having a drink or two with dinner and then getting in the car and driving home. I would like to hear Mr. Diepraam square that statement with the fact that once an officer smells alcohol on a driver's breath - and once that driver admits to having had a "couple" of drinks - that the investigation is over and someone's going to jail.

The other day while I was watching the US play Belgium (and apparently forget that the object of the game is to score a goal), I met a police officer from New Zealand who was here on vacation. He was amazed at how different the rules under which the police operate are. In New Zealand, for instance, an officer can pull any motorist over at any time to test them to see if they are legally intoxicated. No reasonable suspicion, no probable cause. No nothing. Get in your car to leave the bar and you just might be the unlucky soul who gets picked to be tested.

That's not a system under which I wish to live. But that's where we are headed with drunk driving laws. When we demonize one crime, we make it that much easier to take away the rights of folks accused of other crimes. Is that how we want to celebrate Independence Day?

McNeely strikes again

The State urges that we balance the public and private interests that are implicated in serious DWI cases and find that Texas’s mandatory blood draw statute, section 724.012(b), is a reasonable substitute for the Fourth Amendment’s warrant requirement. -- Weems v. State, No. 04-13-00366-CR, (Tex.App.--San Antonio 2014)

That is a scary argument found in the San Antonio Court of Appeals decision in Weems v. State. The Fourth Amendment is quite clear in its meaning - warrants shall be required to conduct a search. But, even though the language is absolute, our courts have, over the years, whittled away at the edges to such a degree that the Founders wouldn't even recognize what has happened to their Bill of Rights.

And, leading the charge to chip away at the meaning of the Fourth Amendment is the old balancing test. If you don't already realize whenever the Supremes break out the scales in a criminal case, the outcome is not going to be favorable for either the defendant nor the Constitution.

One of the seminal cases in DWI law is Schmerber v. California, 384 US 757 (1966) which made an end run around the Fourth Amendment by finding that a warrantless search may very well be reasonable depending on the totality of the circumstances. The most popular of these circumstances turned out to be exigency. Prosecutors argued for generations that warrantless blood draws were reasonable because alcohol tended to dissipate out of the bloodstream and, if the blood weren't drawn quickly enough, there would be no evidence left to test.

The development of better, more efficient gas chromatographs and the newfound popularity of retrograde guesstimation made exigency less and less of a factor. Meanwhile, states like Texas began enacting so-called implied consent laws as another way to get around the warrant requirement. Texas also enacted a law that made the taking of a blood specimen mandatory when a person died in an alcohol-related crash, when a person was seriously injured in an alcohol-related crash of if the driver suspected of being intoxicated had two or more prior DWI convictions.

And this is where things stood at the time of McNeely.

Then everything changed. As a refresher, in McNeely, the Supreme Court held that the dissipation of blood by itself was insufficient to justify a warrantless blood draw. The Court pointed out that with the advent of No Refusal Weekends and with the decision that affidavits for warrants could be transmitted to the judge via fax, phone or e-mail, it was relatively easy to find a compliant magistrate who would sign on the dotted line and authorize the blood draw.

Texas then began to argue that the implied consent law was its end run around the warrant requirement. Since, in the eyes of the state, every motorist had given their consent to submit to a breath or blood test merely by getting on the road, then the police had a built-in exception to the warrant requirement - consent.

That bit of intellectual dishonesty crashed to earth when the Supreme Court overturned a conviction in Aviles v. State and sent the case back down to Texas for a new trial in line with the holding in McNeely.

In Weems, the defendant was driving after he had been drinking with a friend. He managed to flip his car on the way home. His friend was injured and taken to the hospital. Mr. Weems fled from the scene but was found a short time later. No sobriety tests were performed because Mr. Weems needed medical attention. After Mr. Weems declined to provide a blood specimen, the arresting officer took him to the hospital where a forcible blood draw was conducted. The result showed that, at the time of the accident, Mr. Weems was about three times the legal limit. He was subsequently convicted of driving while intoxicated.

The San Antonio Court of Appeals then proceeded to reverse Mr. Weems' conviction and held that neither the implied consent law, the mandatory blood draw provision of the Transportation Code nor the dissipation of alcohol justified a warrantless blood draw without a showing that an established exception to the warrant requirement existed.

SCOTUS has one more for the road

Lorenzo and Jose Navarette were minding their own business driving a truck down the highway with 30 pounds of marijuana in the bed of the truck. At some point an anonymous driver called 911 and reported that the Navarette's truck had almost run her off the road. The 911  message was relayed to sheriff's deputies in Humboldt County who stopped the truck - after following it for some five minutes without observing any suspicious driving behavior.

The officers, naturally suspecting that Mr. Navarette was driving while intoxicated in the middle of the afternoon detained the brothers so they could conduct a DWI investigation. During the course of the investigation they came across the stash of weed in the back of the truck. The stop quickly changed course from a DWI investigation into a felony dope investigation.

At trial the court denied the Navarette's motion to suppress the marijuana and the brothers pled guilty and received 90 days in jail plus three years probation.

Now let's make certain we have a couple of the pertinent facts straight. First, the motorist who called 911 never left her name. Second, the anonymous driver never said she thought Mr. Navarette was intoxicated - only that he almost ran his or her car off the road.

On appeal the appellate court determined that there was sufficient corroboration in the fact that the police located the truck near the area the anonymous caller told them it was and that the anonymous caller got the license plate number correct. The appellate court then made the leap of logic that the driving behavior described by the unidentified 911 caller rose to the level of reasonable suspicion.

Of course we know what really drove the appellate court's decision-making process: the defendants had dark skin, funny names and a whole lot of weed in the truck. It was yet another example of courts making rulings based on the outcome and not the process.

Yesterday the US Supreme Court handed down its opinion in Navarette v. California, 572 US _____ (2014). And, not surprisingly, held that the stop met constitutional muster because the information provided by a caller who remains nameless was somehow corroborated when the officer saw the truck on the highway and because the driving behavior just screamed out that Mr. Navarette was intoxicated.

The Court went on to say that the fact that the call was made so near the time of the alleged driving behavior (according to the unnamed motorist) indicated that our Friend With No Name hadn't had sufficient time to make up the story. It just had to be true.

The decision is yet another broadside blow to what remains of the Fourth Amendment. It is also part of a line of cases that make a mockery out of a defendant's right to confront the witnesses against him. When was Mr. Navarette permitted to cross-examine the nameless caller? When was he allowed to probe for reasons the driver might make up, or exaggerate, an incident on the road? The officer certainly couldn't testify as to what driving behavior he witnessed that made it apparent that Mr. Navarette was intoxicated.

Justice Antonin Scalia summed it up best in his vigorous dissent:

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunken­ness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point hisword is as good as his victim’s. 

Let's play cowboys and vampires

March is a busy time in the Houston area. First there's the Livestock Show and Rodeo that opened this past weekend with the World Championship BBQ Cookoff followed by three weeks of shows, music and carnival rides. There's also Mardi Gras down on the island and St. Patrick's Day (when we reduce all of Irish culture to a glass of green beer). Finally it's Spring Break time and folks will be flocking to the beach.

It's also time, once again, for the Harris County District Attorney's Office, local law enforcement and the black-robed members of the DA's Office to conspire to make a mockery of the Fourth Amendment with a No Refusal Month.

For those not familiar with this little game, the DA's Office recruits judges to volunteer to sign search warrants authorizing forcible blood draws for people arrested for DWI who decide not to give a breath or blood sample voluntarily. Note that I didn't say they would review the warrants. Nope. That's not part of the game.

If these judges actually performed their duty the whole No Refusal program would find itself on the ash heap of history. The only way to ensure that blood is drawn is for the judges to be compliant and ignore the shortcomings of the cookie cutter search warrant affidavits that are faxed to them.

Few of the affidavits contain anything more than boilerplate language and conclusory statements that are supposed to pass as articulable facts. But have no fear, there's no random assignment of judges during the No Refusal period, the judges that sign the warrants volunteered to be part of the program. They are advertised as being part of the team.

The DA's Office is quite clear about the purpose of No Refusal - they want to obtain as much evidence as they can to force a defendant to wave the white flag and plead guilty. But what is the judge's role in this farce?

The judge should have no interest in whether a motorist submits to a breath or blood test. Whether there is a test or not if none of the judge's concern. The judge is just supposed to be a neutral and detached arbiter - not a participant in the prosecution.

And finally, just to clear up any confusion that may exist out there, in order for a breath or blood test result to be admissible in court, the suspect must have been under arrest before the officer requested the sample. In other words, the breath or blood test has nothing to do with an officer's decision to arrest a motorist for driving while intoxicated - the officer has already made up his mind before he even asks the motorist to blow.

Just be careful out there.

Passing along the costs of blood testing

As if the costs associated with a DWI arrest aren't high enough, prosecutors with the Harris County District Attorney's Office are working on a plan to charge defendants with the cost of drawing, storing and analyzing their blood samples. As the number of blood tests in DWI cases has skyrocketed in the past few years, area crime labs are being overwhelmed with the kits.

Prosecutors seem to think that the answer to short-handed labs is to transfer the cost of hiring and training new analysts to the motorists accused of driving while intoxicated. The Code of Criminal Procedure would seem to allow the government to do so.

But why are there so many blood tests?

If you guessed "No Refusal Weekends" you are correct.

In an ongoing attempt to coerce motorists into agreeing to give up evidence to help the government's case, local prosecutors, law enforcement agencies and compliant judges have all teamed up to force motorists to submit to breath or blood tests. The reason why is quite obvious - too many motorists were challenging their arrests in court and (in the eyes of prosecutors and judges) too many juries were giving them the benefit of the doubt at trial.

The government, never shy about violating the rights of the accused when it serves their purpose, decided that the best way to obtain convictions was to pressure drivers into submitting to breath tests - even though it isn't against the law to decline the invitation to give the state more evidence. Nevermind the fact that prosecutors have been obtaining convictions in DWI cases for years without the benefit of breath tests or even NHTSA's roadside exercises on film.

Just like the casinos, prosecutors and law enforcement decided to improve the house's odds in a DWI prosecution. The courts played along by allowing officers to fax affidavits to judges and to allow officers to be sworn over the telephone.

Now we have a backlog of blood samples from simple Class B misdemeanors (one step removed from a traffic ticket) because the government decided it needed more evidence to rig the game. The motorist stopped for speeding or not signalling a lane change after leaving a restaurant or bar certainly didn't decide to contribute to the backlog. The decision was made by the officers involved in the stop, local prosecutors and judges who want to appear tough on crime.

No one forced prosecutors and local law enforcement agencies to have nurses on duty to draw blood. No one forced them to provide equipment to judges so they could make their "reasoned legal decisions" from the comfort of their own homes.

If the cost of testing all the blood that's drawn in DWI cases is prohibitive then maybe the government should think twice about pursuing these policies. Passing along the cost doesn't solve the problem. Taxing the citizen accused because prosecutors don't want to have to try breath test refusal cases isn't equitable. The cost should be borne by the parties who insist on coercing motorists to consent to chemical tests.

Blood tests aren't necessary in most DWI cases. The facts regarding the traffic stop, the officers observations at the scene and the motorist's performance on roadside exercises is enough for most juries to decide whether or not the state proved up its case. If prosecutors don't like losing DWI trials then perhaps that might want consider just what the presumption of innocence means. They might also want to consider why our nation's founders made the burden of proof for arresting someone a whole lot less than for convicting that same person.

H/T Grits for Breakfast

Invalidating the Fourth Amendment, Texas style

In Missouri v. McNeely, the US Supreme Court held that the natural dissipation of alcohol in blood is not in and of itself an exigent circumstance that does away with the need for a search warrant to draw blood. The Court did say, however, that it could be one of the factors considered when trying to determine whether there were exigent circumstances that could justify a warrantless blood draw.

In Texas if a person is arrested for driving while intoxicated and has two prior DWI convictions, the Transportation Code provides that the police may take a sample of his blood without a warrant.

And that's exactly what happened to Clayton Reeder in September of 2012. He swerved to avoid hitting a deer that had run out into the road and ended up in a ditch. A state trooper arrived on the scene to investigate the accident and decided that Mr. Reeder was intoxicated. Mr. Reeder was arrested and, since he had two prior DWI convictions, he was charged with a felony DWI.

He declined the offer to provide a blood sample at the hospital so, based on Section 724.012(b)(3)(B) of the Texas Transportation Code, the officer obtained a blood sample anyway. Naturally the alcohol concentration was above the legal limit.

At trial Mr. Reeder asked the court to suppress the results of the blood test on the grounds that the mandatory blood draw violated his Fourth Amendment protection against unreasonable search and seizure. The trial court wasn't so moved and denied his motion. Mr. Reeder was later convicted and sentenced to six years in prison.

On appeal to the Sixth Court of Appeals in Texarkana, in Reeder v. State, the question was whether or not the mandatory blood draw provision of the law violated the Fourth Amendment by requiring warrantless blood draws in all felony DWI cases regardless of whether exigent circumstances did or did not exist.

The court, however, had a different idea. Sidestepping completely the issue of whether or not there were exigent circumstances present in Mr. Reader's case, the judges decided that the Implied Consent law in Texas trumped any need for a warrant. The court reasoned that a search was constitutional if it was conducted with the consent of the suspect. Since Texas law states that all motorists are considered to have given their implied consent to providing a sample of their breath or blood if the officer had either reasonable suspicion to stop or probable cause to arrest for DWI, then the forced blood draw was "consensual."

In other words, a statute that threatens a motorist with legal sanctions for not voluntarily giving up evidence to be used against her, trumps a constitutional protection. The decision is yet another example of a court bending over backwards to affirm a conviction regardless of the rationale.

To claim that a statutory provision of the Transportation Code that is not explained to anyone applying for a driver's license trumps a constitutional protection against unreasonable search and seizure is either laughable on its face or deeply disturbing in its application. Either way it is yet another hole punched through the Fourth Amendment.

When driving the speed limit is breaking the law

If, on a highway having more than one lane with vehicles traveling in the same direction, the Texas Department of Transportation or a local authority places a sign that directs slower traffic to travel in a lane other than the farthest left lane, the sign must read "left lane for passing only." - Texas Transportation Code Sec. 544.011 

An operator of a vehicle on a roadway moving more slowly than the normal speed of other vehicles at the time and place under the existing conditions shall drive in the right-hand lane available for vehicles, or as close as practicable to the right-hand curb or edge of the roadway, unless the operator is: (1) passing another vehicle; or (2) preparing for a left turn at an intersection or into a private road or driveway. -- Texas Transportation Code Sec.  545.051(b) 

What better way to create an excuse for pulling motorists over to see who might have been drinking but to enforce a little known, and little observed, traffic statute.

We all know that the left lane is the fast lane. We're all taught to pass to the left. I have been known to drive my car at a speed quite a bit above the one posted on the roadside traveling back and forth to the Dallas area for seminars - but even I move to the right when someone's coming up behind me at warp speed.

So, yes, there are plenty of motorists out there who think for some yet unknown reason that they are more than justified to plod along in the left lane at the speed limit. These tend to be the same people who count the number of items someone takes out of their basket in the express lane and who tattled on their younger siblings when they were growing up.

And, as much as I hate getting behind that person on the freeway, I have a hard time supporting anything that gives the police yet another excuse to pull someone over who isn't doing anything wrong. But, up in Montgomery County (the land the Constitution forgot) and out in Fort Bend County, if you're cruising along in the left lane not passing anyone - you risk getting pulled over and either being issued a warning or being ticketed. And, should you be coming home from a night out with friends after consuming an adult beverage or two, you could find yourself being arrested for driving while intoxicated.

Why else would Warren Diepraam and the Montgomery County District Attorney's Office get themselves involved in such an initiative? Hell, if you can't pull 'em over for doing anything illegal - you might as well pull them over for driving the speed limit.

So, as annoying as it may be to be driving behind the guy who thinks he needs to police speeds on the highway, the last thing we need to do is give the police yet another excuse to pull someone over. It's bad enough that we allow DWI stops based on behaviors that during the day wouldn't get a second glance from a police officer. But to allow a DWI stop when the only sin being committed is driving the speed limit in the wrong lane is hardly a good idea.

And what about officers who want to have it both ways? Are the police not going to ticket anyone for speeding if they are passing slower moving vehicles to the left? At the rate things are going, pretty soon up in Montgomery County driving on the highway alone will amount to reasonable suspicion that someone is breaking the law.

Everything you need to know about DWI

I'm waiting for the special "No Refusal" edition that includes a rubber hose, needle and syringe for conducting forcible blood draws.

H/T Gary Trichter

Neutral and detached? Whatever

Sign belonging to Judge Bill Harmon sitting just outside the courtroom in the entrance way from chambers.

If you examine the photo of the sign you will see there's no cite for the assertion made. Like much of the state's literature on drunk driving, there is a lack of authorities cited for the propositions made.

No refusal isn't just for weekends anymore

No longer must we wait for holidays and three-day weekends to celebrate the evisceration of the Fourth Amendment. Now, in Harris County, we can celebrate it every day. That's because the Harris County District Attorney's Office has decided to make every day a No Refusal Day.

Going forward anytime a motorist is stopped and arrested on suspicion of driving while intoxicated and refuses to consent to a breath test, police will obtain a warrant to strap that motorist down and stick a needle in their arm. The expansion of No Refusal Weekends was announced by the Harris County District Attorney's Office but no one from the county judiciary had anything to say (publicly) about the plan.

It strikes me as quite interesting that the DA's office would announce a program expanding the use of search warrants to conduct forcible blood draws while the people who would actually sign the warrants said nothing. There just isn't any question that men and women wearing black polyester robes will take the warrant application from their fax machine and sign it unconditionally.

No Refusal Weekends only work when judges are compliant and willing to cast aside any shred of impartiality and join "the team." There is no random wheel that assigns judges to sit and wait for search warrant applications to come across the telephone lines. Judges are recruited to blindly sign search warrants authorizing forcible blood draws at the drop of a hat.

This willingness to sign warrants without scrutiny is a blatant violation of the oaths they took when they took they position on the bench. The name of the game isn't teaming up to rid the streets of drunk drivers - the name of the game is to ensure that the constitutional rights of the accused are protected. Judges who are worried about looking soft on crime are doing us all a great disservice by sitting on the bench in judgment of others.

More problems with breath tests up in Conroe

Earlier this month I posted an article about how the Montgomery County DA's Office and the Texas DPS were trying to paper over a colossal screw up in the maintenance of their breath test machines.

While the technical supervisor in charge of the machines failed to perform acetone tests on machines taken out of service in one location and placed into service in another location in violation of the DPS regulations regarding the moving of machines, the DPS contends that it was no big deal because the tests were performed as part of the monthly maintenance routine after the machines were placed back into service.

The problem with that analysis is we're talking about so-called scientific evidence and if breath test evidence is to be admitted at trial, any tests must be performed in accordance with the DPS regulations. As the machines were not properly tested before being placed back into service, according to the DPS regulations, the machines were never placed back into service. Therefore any breath test result from any one of those machines should be inadmissible since the machine wasn't in service at the time of the test.

Prosecutors just love scientific evidence because it gives them a short cut to obtaining convictions. Once a jury buys that the evidence is "scientific," they can choose to hang their hats on it and call it a day early. But, if you want to play with that sword, it's two-edged and that second edge is that the evidence is inadmissible if the tests weren't done right.

Of course that still relies on a judge to make the proper ruling when he knows the test result is over the per se limit of .08.  That's when you find out whether that judge is more interested in results or process.

But that's not all as the DPS has suspended Technical Supervisor Glenn Merkord for 30 days for improperly renewing the certification of breath test operators who failed to meet the qualifications for recertification. This now raises the question of who those breath test operators were and whether they administered breath tests during the time they were wrongfully certified.

According to Warren Diepraam of the Montgomery County District Attorney's Office, the officers in question are a sheriff's deputy named Buckner and a Magnolia police officer named Salmassi. 

If a test was administered by someone other than a certified breath test operator, then the results of that test are inadmissible. Now we need to know when the DPS learned of Mr. Merkord's actions and what, if anything, has been done to correct the problem.

  DPS Letter to Glen Merkord

Feds seeking to lower legal limit to .05

The National Transportation Safety Board has decided that the per se limit for drunk driving should be lowered to .05. Such a move would lower the current legal limit by more than 33% - a staggering number.

The rationale is that there are too many folks dying on our roadways every year. The NTSB keeps saying there are more than 30,000 fatalities that are alcohol-related annually. The number is misleading because all it takes is for one person involved in the accident - regardless of whether that person is driving or at fault for the accident - to have alcohol in their system to qualify the accident as alcohol-related.

A study from the Insurance Institute of America projects highway deaths could be reduced by a little over 7,000 a year if the legal limit were reduced to .05. Now let's crunch some numbers. According to the IIA, traffic deaths would be reduced by less than 25% by reducing the legal limit by more than 33%. That, my friends, doesn't compute. What is shows is the diminishing utility of making DWI laws more severe. Their numbers make a poor case for lowering the limit in that you will be punishing far more people for a very modest reduction in lives lost.

If we are going to accept the premise that lowering the permissible alcohol concentration will reduce the number of deaths on the roads, then why not go all the way and institute a zero-tolerance policy? If a .08 concentration is bad then why stop at .05? If we are going to make the assumption that someone is "under the influence" at .05, won't they still be "under the influence" at .02?

Interestingly enough, both MADD and NHTSA have expressed their opposition to the proposed change. It's probably fair to infer that MADD is betting the public would turn against it if the laws were tightened further. Their focus now seems to be getting repeat offenders off the roads.

Are we looking at another push by the federal government to thumb its nose at the 10th Amendment and force the states to lower their per se limits or find their highway funds cut? Or will the states find themselves pressured to create a new offense of driving while impaired (or DWI Lite)?

There are already far too many traps for motorists. We need to be looking at ways to reduce the number of people who filter through the criminal (in)justice system. We don't need more folks under supervision or behind bars. We don't need more folks with convictions on their records.

What will become of the roadside DWI calisthenics? Will NHTSA authorize another pseudo-scientific attempt to "validate" these exercises for alcohol concentrations of below .08?

The problem with a per se limit is that it's a fiction. There are folks out there who lose the normal use of their mental or physical faculties after just one drink. There are others who can drink much more before the debilitating effects of alcohol take hold.

Now make no mistake about this, I want to keep drunk drivers off the roads. But I don't want to see more people cuffed and stuffed into the backs of police cars when they have done nothing wrong. I sure as hell don't want to see more forced blood draws -- though with the current backlogs we are experiencing, any more blood draws would come damn close to flooding the system.

The NTSB idea is a bad one - but that never stopped a legislator from picking up the ball and running with it. Now is the time to nip it in the bud.

Something's rotten up in Conroe

Texas DPS Standard Operating Guidelines for Technical Supervisors 

1.1 An official inspection by a Technical Supervisor can only be conducted at the evidential testing location. Each part of the inspection shall occur at the testing location and includes not only the instrument, but the associated equipment and the testing environment as a whole. 

     1.1.1 The capability of the instrument to detect and subtract the effect of acetone shall be tested. 

1.2 A complete inspection (1.1) shall be performed by a Technical Supervisor each time an instrument is placed into or returned to service at a testing location.

According to Chapter 37 of the Texas Administrative Code, for a breath test result to be admissible it must be conducted per the rules set out by the Texas Department of Public Safety. Should these procedures not be followed, the results of breath tests can be thrown out and machines can be taken out of service.

The DPS rules state that anytime a technical supervisor inspects a breath test machine, he or she must conduct a test to determine whether the machine is capable of detecting acetone. The rules state further that an inspection must be conducted every time a breath test machine is placed into service.

Well, up in Montgomery County, someone forgot to read the rules. According to a memo sent out to the local defense bar by the District Attorney's Office, acetone checks were not performed on breath test machines that were taken out of service and moved to another location.

Here is the text of Warren Diepraam's memo regarding the failure of technical supervisors to follow proper protocols:

It has recently been brought to our attention that the Intoxilyzer instruments in Montgomery County did not receive acetone checks when the devices were taken out of service and transferred to another location. This appears to be contrary to DPS guidelines. DPS informs us that because all instruments received acetone checks when placed back into service at the new location and also received the standard acetone checks each month, they do not believe the testing has been affected. However, DPS is conducting an analysis to determine whether or not any test may have been affected. 

At this time, we have no reason to suspect that the tests in any cases were affected. However, should DPS find any irregularities, we will immediately contact you. Should you have any cases that you feel were affected by this SOP issue, please contact the relevant Bureau Chief or the First Assistant.

Well of course the DPS doesn't feel that any tests were affected by the failure of their technical supervisors to follow their own rules. The cover is that acetone tests were run during routine inspections and no problems were indicated.

But that's not the issue here. The issue is whether or not the results of those tests are admissible due to the state's failure to conduct the proper tests when called for in the DPS operating guidelines.

Just remember that the state puts forward the results of breath tests as scientific evidence. As such these tests must be conducted in a certain manner and if they aren't, the results are compromised and not admissible. In order to talk about a test score, the state must present evidence that the machine was in service and functioning properly as well as evidence that the breath test was conducted according to the DPS rules.

If the machines weren't properly tested when they were taken out of service then they should never have been considered back in service after they were transferred to new locations. If that's the case then no breath test score from any of the machines in question should be admissible until the proper procedures are followed for removing a machine from service and transferring it to another location.

The Montgomery County District Attorney's Office and the DPS have an obligation to provide the local defense bars with the serial numbers and locations of each machine that was compromised by the failure to follow the SOG's. It should not be up to prosecutors or the DPS to determine whether tests were affected or not - they have an inherent conflict of interest.

The DA doesn't want to have to dismiss cases and agree to post-conviction writs in the cases in question. The DPS doesn't want to open up a can of worms regarding its breath testing program. Allowing them to determine whether all is well or not is akin to letting the fox guard the henhouse.