Statistical reasoning

I came across an interesting article in Cognitive Daily this afternoon about reasoning with statistics. The article described three studies conducted to determine how well people understood statistics and observable data.

In the first study people were asked which hospital would be more likely to have a day in which 60% of the babies born were boys: a hospital with 15 births a day or a hospital with 45 births a day. Most of the respondents said the percentages should be the same; very few respondents understood that the smaller a test sample, the more likely there are to be large variations day to day.

In another study respondents were asked to imagine they were on a remote South Pacific island and that they discovered a new species of bird as well as an obese native. The respondents were then asked to estimate the portion of the new bird species that were blue and the portion of the native population that was obese. Most respondents believed that the blue bird was very representative of the new species, regardless of whether they saw one blue bird, three blue birds or twenty of them. They also believed that one obese native was not necessarily representative of all natives, but, the more obese natives they observed, the higher percentage they attached to them.

The final study looked at a high school senior trying to decide where to go to college: Ivy College or Liberal College. Our senior had friends at both schools. His friends at Ivy had many complaints about the college, the atmosphere, the social scene, etc. His friends at Liberal were very content. He then went on a visit of both schools: he loved Ivy but was not so hot about Liberal afterwards.

A vast majority (74%) of the respondents said he should go to Ivy based on his friends' comments and his visit.

Researchers then ran a second test using the same scenario: only this time our senior made a list of classes, sites and activities from both colleges and picked several at random before making his visit. Once this detail was added the number of respondents picking Ivy dropped to 56%. The researchers concluded that when the respondents were told about the list they decided to look at the problem from more of a statistical viewpoint -- his friends at the schools had a better sampling of the environment than he did on his one visit.

The lesson to be learned is that the sample size will affect the reliability of the statistics generated from it. So, when confronted with statistical evidence, from DNA samples to field sobriety tests to breath-alcohol tests, focus on the sample size. The larger the sample size, the more reliable the numbers generated.

On field sobriety testing, point out the relative small sample sizes used in the "validation studies." Look at everything from the location of the tests, the ages and sexes of the participants, the level of intoxication of participants in lab testing, the time of day and the number of officers who took part in the study.  

As far as the breath test result -- just how accurate do you really think two breath samples taken two minutes apart are? 

Some enlightened thinking on the swine flu pandemic

As the World Health Organization prepares to issue a warning about a possible global outbreak of swine flu, a Houston city councilwoman, upset that the child who died from complications from swine flu was admitted into a Houston hospital, provided us with this gem of wisdom:

"The child was not a United States citizen," said Councilwoman Toni Lawrence, who hinted that the city should be involved in deciding whether a patient with an infectious disease would be cleared for transport here.

"I'm very concerned about this disease, I'm very concerned someone died from it and I'm very concerned council wasn't told about this. We need to be aware of this and continue to do things for Houston and not for anybody else."

Do you really want people like this making health care decisions and dictating how a car company must operate?

More from Survivorman

While watching Survivorman the other day I caught a few more words of wisdom from Les Stroud: sometimes the best thing you can do when lost is to slow down and stop. Sometimes that means continuing the path you were taking, sometimes that means charting a new path and sometimes it means going backwards.

The same analogy can be applied to trial preparation. You may have developed a wonderful theme for your case along with an insightful story to tell -- but sometimes the facts take you in a different direction and the best thing to do is to stop and start anew.

Officers administer field sobriety tests incorrectly 97% of the time

Recently Lance Platt, a certified NHTSA SFST practitioner, instructor and trainer, published a paper in the DWI Journal: Law & Science that examined the differences between the manner in which officer are trained to perform field sobriety tests and the manner in which they actually administer them.

For the Horizontal Gaze Nystagmus test, Mr. Platt recognized 16 elements that make up the test. After examining 360 recorded evaluations, he found only 24 were performed correctly per the NHTSA Manual. Those 24 represent only 7% of the tests administered, meaning that officers administered the test incorrectly 93% of the time.

HGN Test Elements

• Place feet together
  
• Place hands to your sides
  
• Maintain the position
  
• Look at the stimulus
  
• Follow the stimulus with your eyes only
  
• Do not move your head
  
• Continue to follow the stimulus until the test is complete
  
• Do you understand?
  
• Officer positions stimulus correctly
  
• Officer checks for equal tracking
  
• Officer checks for equal pupil size
  
• Lack of smoot pursuit (timing element)
  
• Distinct & sustained nystagmus at maximum deviation (timing element)
  
• Onset of nystagmus prior to 45 degrees (timing element)
  
• Vertical gaze nystagmus
  
• Possible optokinetic (environmental issue)
  

For the Walk and Turn test, Mr. Platt recognized 21 elements that make up the test. Of the 360 recorded evaluations, he found that only 67 were administered correctly per NHTSA. In other words, officers administered the test incorrectly 81% of the time.

Walk and Turn Elements

• Imagine a line
  
• Place your left foot on the line
  
• Place your right foot in front of your left
  
• Touch the heel of your right foot to the toe of your left
  
• Keep you arms to your sides
  
• Remain in this position and do not start walking until told
  
• Do you understand?
  
• Take nine heel-to-toe steps up the line
  
• Turn by leaving the lead foot on the line and taking a series of small steps
  
• Take nine heel-to-toe steps back down the line
  
• Officer demonstrates walking phse
  
• Officer demonstrates turn
  
• Look at your feet
  
• Count your steps out loud
  
• Keep arms at your side while walking
  
• Do not stop walking
  
• Do you understand?
  
• Begin walking and count your first step forward from the heel-to-toe position as step number one
  
• Poor testing surface
  
• Issues with shoes
  
• Weather
  

For the One Leg Stand test, Mr. Platt recognized 16 elements that make up the test. Of the 360 recorded evaluations, he found that officers administered the test correctly only 50% of the time.

One Leg Stand Elements

• Place feet together side by side
  
• Keep your arms to your sides
  
• Remain in this position and do not start until told
  
• Do you understand?
  
• Keep both legs straight
  
• Keep your arms by your sides
  
• Lift the leg of your choice
  
• Approximately 6 inches off the ground
  
• Point the toe of the elevated foot parallel to the ground
  
• Look down at the raised foot
  
• Count out loud by 1000's until told to stop
  
• Do you understand?
  
• Officer demonstrates balance and counting
  
• Poor testing surface
  
• Issues with shoes
  
• Weather

When he evaluated in how many of the 360 test sequences all three tests were administered correctly, he found that only occurred ten (10) times, meaning that officers administered at least one test wrong 97% of the time.

Unfortunately in Texas judges routinely hold that the incorrect administration of these tests goes to the weight, not the admissibility, of the evidence. This despite the warning in the NHTSA Manual that "if any of the standardized field sobriety test elements is changed, the validity is compromised."

Open for business

These are the conditions that the people "running" the Harris County Criminal (In)justice Center thought people should brave in order to be in the pews for a 9:00 a.m. docket call.  This, despite local schools closing for the day due to the weather.

Springtime in Houston

I woke up this morning to the sounds of a thunderstorm that had been parked over the city for some 12 hours. Realizing I wasn't going out for a run I rolled over and slept for a few minutes more. Knowing that I had to be in court this morning and that my wife would be leaving for work by 7:00 am, I went downstairs, grabbed the paper and made my breakfast. I needed to eat pretty quickly so I could shower and get dressed before making breakfast for the girls.

Imagine my dismay when midway through my meal I heard my youngest calling "daddy" and coming down the stairs. I went and brought her to the kitchen and started making breakfast for her and her older sister. After serving her some Cream of Wheat, sliced strawberries and oranges and green beans (her favorite), I went back upstairs to see if my wife could watch her while she ate.

My wife had gone back to bed. As the schools were closed she wasn't teaching today - which was a good thing since her parents weren't coming over to watch the kids due to the flooding. After my wife came downstairs I headed up to get ready for work - when my phone rang.

A client on today's docket called to tell me he couldn't make it out of his neighborhood. Luckily his case was set for dismissal, if he had proof of insurance, so I knew I had to contact the court coordinator before docket call to reset the case. Then another client called with the same story. His case was also set for dismissal - and I had the proof of payment I needed - so I told him to stay put. My other setting was for a petition for nondisclosure that had been reset because the judge wanted additional items.

Of all my clients, Mr. Nondisclosure was the only one to show up in court -- but, of course, the judge called in sick. Arghhh!

Now, instead of a crowded morning rush and then an appointment with a real estate broker, I sit here in the attorney ready room at the Harris County Criminal (In)justice Center killing time before my appointment.

Ah, springtime in Houston.

Flying by the seat of your pants

I saw a fascinating show on the Discovery Channel last night about the US Airways jet that crash-landed in the Hudson River. There was audio from the plane to the tower and from the tower to rescue vehicles as well as actual footage of the plane going down.

Flight 1549, flying to Charlotte, NC out of La Guardia, took off around 3:30 p.m. Three minutes later Captain Chesley Sullenberger reported that a double bird strike took out both engines. Knowing he couldn't make it back to La Guardia and not certain he could make it to an alternate airport in New Jersey, Captain Sullenberger landed the plane in the icy Hudson River, missing the George Washington Bridge by less than 1,000 feet.

Immediately after the bird strike, the co-pilot, Jeff Skiles, began the three-page sequence to refire the engines (that's right, three pages). All the while the captain made the necessary adjustments on the fly to ensure that the plane cleared the bridge and hit the water at the right angle and speed to prevent it from breaking apart.

According to the show, he had to hit the river at an 11 degree angle at 150 mph to avert disaster. That meant putting the nose of the plane down in order to maintain speed but pulling up in time to avoid the engines hitting the river before the rear of the plane.

What Captain Sullenberger did was simply astounding. He had a gameplan for an uneventful flight to Charlotte, but, when confronted with occurences he had no idea were coming, he was able to maintain his calm and plot a new strategy -- and then change that strategy the instant it appeared it would not work.

It's easy to script out a cross-examination or voir dire or closing argument. It's easy to keep your head glued to your notes when questioning a witness. It's all too easy to be rigid in the preparation of a case. To be successful you must be flexible, you must be willing to change directions in an instant and you must be able to adjust your case strategy on the fly. Just like a pilot never knows when disaster may befall him, you never really know what a witness will say until he gets up on that stand.

Same song, different verse

Stop me if this sounds all-to familiar... a man, after spending decades in prison, based on forensic evidence examined and evaluated by the Houston Police Department Crime Lab, is eliminated as a suspect by independent forensic testing.

"This is yet another reason why we need an independent crime lab. How many more reasons will it take?" -- Pat Lykos, Harris County District Attorney

Gary Alvin Richard was convicted of rape and robbery in 1987 based, in large part, on testimony from James Bolding, a supervisor in the HPD Crime Lab. Ironically enough, an analyst named Christy Kim performed the lab tests. Ms. Kim was also the analyst who tested samples in the Josiah Sutton case (Mr. Sutton has since been exonerated). It turns out that the crime lab withheld exculpatory evidence that could have led to Mr. Richard's acquittal.

The victim identified Mr. Richard some seven months after the attack took place. Lab tests apparently came back with differing conclusions but only test results that confirmed Mr. Richard as the attacker were reported.

Mr. Richard's attorney, Bob Wickoff, is leading an investigation into 160 cases an independent investigator flagged as problematic.

This case, as well as other exonerations, points out what can go wrong when an investigation is tailored to prove a certain person committed an act. Of course it's always more efficient to start with your conclusion and cherry-pick the facts that lead you to it. However, it's much more intellectually honest to test the evidence and follow the trail to where it leads you.

More on the truth (or lack thereof)

The court reporter in Harris County Criminal Court at Law No. 1 was indicted on charges on tampering with a government record. He is expected to surrender to authorities.  The county criminal courts handle Class A and B misdemeanor offenses for which the punishment is no more than one year in the county jail and a fine not to exceed $4,000.

The reporter is represented by two former Harris County (Criminal) District Court judges in a wonderful bit of irony. Apparently they have undergone a conversion and now believe that a citizen brought before the court is innocent unless proven guilty.

Seems that not that long ago...

Ye shall know the truth and yada yada yada

President Obama has rejected the idea of creating a truth commission to look into interrogation techniques used during the Bush administration's war on terror. In a press briefing on Wednesday, White House Press Secretary Robert Gibbs said that President Obama was not interested in prosecuting officers who tortured detainees if they worked "within the four corners" of the any legal advice they were given.

Q    Two unrelated things.  First, what's the latest thinking here on whether the White House would support some sort of independent commission to look at the interrogations during the Bush era?  And then I want to follow up with a credit card question, if I could.

MR. GIBBS:  Sure.  Well, I don't -- I don't know that I have a lot to add on the first question other than what the President discussed earlier in the week and what I talked about on the plane yesterday. 

And obviously there's been news reports of a discussion about such a commission here that the President decided I think the last few days might well be evidence of why something like this would likely just become a political back and forth.

Q    So is that an indication that you don't want to see an independent commission?  I'm trying to understand.

MR. GIBBS:  By dint, an independent commission would probably not be something that I would weigh in on if Congress were to create one of those.  I think that -- from the larger perspective, the President believes, as both of us have said, that the release of the memos are not a time for a retribution but to reflect on what happens and that we're all best suited looking forward.

...

Q    Robert, does the President believe someone ought to be punished for allowing waterboarding?  He changed the policy, but does he believe somebody ought to be punished?

MR. GIBBS:  Well, I think that determination is going to be left up to, as I've said for any number of days looking backward on this now, that that's going to be made by a legal official.

Q    And that legal official is the Attorney General?

MR. GIBBS:  In our Constitution it is.

Q    And what about this idea of the Attorney General appointing a special prosecutor?

MR. GIBBS:  Well, I addressed this --

Q    Is that his -- is that the Attorney General's decision or is that ultimately the President's decision?

MR. GIBBS:  I'd have to look up, honestly, the legal statute to determine that.  I don't -- I don't think the -- I don't believe that there's -- I think the Justice Department is fully capable of weighing the law.

Q    You don't think a special prosecutor is necessary?

MR. GIBBS:  I don't -- I don't think anybody has presented a compelling case why the Justice Department couldn't do this.

I think it's much more likely that the president doesn't want to push an investigation as a professional courtesy to his predecessor. He either doesn't want to close the door on using a variation of such tactics later on or he doesn't want his people to be subject to investigation and possible prosecution by the next administration.

The U.S. once again plays by its own rules and deigns not to investigate atrocities committed by American intelligence officers that would bring a swift condemnation if committed by another nation. The American people deserve to know the truth about what was done in their name.

The truth of the matter

"There are two sides to every story... and then there's the truth."

-- Patti Stanger, The Millionaire Matchmaker

It's an essential truth in our line of work that no one ever really knows the truth. Thanks to rules of evidence and procedure, our Constitutional protections and the reality that memories fade over time, that jury sitting in the box will never hear the entire truth about what happened on "the night in question."

The jury will hear the prosecutor's story and then the citizen accused's story. Then they will be asked to decide among themselves what they think is the truth.

I had occasion one morning to sit down and talk to Wharton County Justice of the Peace (Precinct 4) Dennis Korenek and he told me that most folks just want to come into his court and tell their side of the story. I believe that. I also believe that can be a very dangerous attitude to have when you're up against The State of Texas.

Wearing two hats

I must preface my remarks by saying that I know plenty of good attorneys that also write bonds - it's common practice for attorneys who handle a high volume of traffic tickets.

My question is whether there is an inherent conflict in both writing the bond and representing the citizen accused?

As a criminal defense attorney, my job is to keep my clients out of jail as long as possible. That means stretching out a case if necessary. However, the bondsman's interest is ensuring that client shows up in court for every scheduled appearance - and, the longer a case draws out, the more risk the client won't appear or will end up in more trouble.

If you're the attorney and the potential bondsman, do you argue for a personal bond?

What happens if a client doesn't appear? Do you ask the judge to give your client one more chance or do you cut your losses and surrender the bond?

And the true dilemma - if your client skips, do you do nothing or do you track him down and hand him over to the police?

Do y'all think there's an ethical dilemma at play?

Proposed legislation would protect teachers' criminal history information

A bill before the Texas House of Representatives would prevent a public school employee's criminal record from being made public.  Senate Bill 9, enacted in 2007, required school districts to release the criminal histories of their employees if that information were combined in a document with non-confidential information.

State Rep. Jessica Farrar (D.-Austin) introduced H.B. 4302 in response to allegations that false information was being released about public school employees.

According to the bill analysis:

These criminal history background checks often yield results that are inaccurate or incomplete. The records may include investigations or arrests based on false or erroneous information and even charges that were dismissed for lack of merit. Some records reflect activities from decades ago that are entirely irrelevant to an employee's fitness for the employee's current work. 

If the bill passes, school districts would not be required to release any confidential criminal history information on district employees to any entity to whom the Texas Department of Public Safety or Federal Bureau of Investigation was not required to release the information.

Alejandra Martin (Association of School Personnel Administrators), Ted Melina (Texas AFT) and Martha Owen (Texas AFT) testified in favor of the bill. No witnesses testified against the proposal.

Several newspapers and broadcasters have come out against Rep. Farrar's proposed legislation on the grounds that the public has a right to know. Now, while I generally fall into that camp, in this instance there are some good reasons for this information to be restricted. 

A citizen accused of a crime can receive deferred adjudication probation which would result in a dismissal of the charge upon completion of the probation. In addition, the citizen accused could then seek an order of nondisclosure which would prevent law enforcement agencies from releasing any information about the arrest, charge or disposition to anyone outside law enforcement - with a few exceptions.

One of those exceptions is that the criminal background information is made available to the Texas State Board of Educator Certification and to local school districts. There is a sound public policy argument in favor of that exception. However, without the protections of H.B. 4302, that same information could be released to anyone else upon request -- which would defeat the entire purpose of deferred adjudication.

Where's John Galt?

The Houston City Council decided to award tax breaks to a developer to build a new downtown hotel near Discovery Green (even though Mayor White is asking the heads of city departments to cut their budgets). Now, if it were profitable for a private developer to build and operate a hotel in that location there would be no need for government handouts. If the developer will only go forward if he's getting a handout from the city, then the city is subsidizing an unprofitable enterprise.

As an aside, the city still hasn't found a buyer for the downtown Hilton that the city bankrolled.

Where's the logic?

Twelve year-old charged with capital murder

Harris County prosecutors have charged a 12 year old boy with capital murder in the death of a 10 month-old baby who was left unattended by adults last month.

The baby died (two days later) as a result of blunt force trauma to the head on March 12, 2009. According to CPS officials, the baby's mother and the mother of the 12 year-old left five children unattended while they went out.

The police informed the boy's mother that he confessed when questioned - of course there is no mention made of whether the boy was advised of his Miranda rights or whether he made an intelligent waiver of those rights.  There is also no mention of whether his parents were notified the police were questioning him.

According to the Texas Penal Code:

A person commits an offense (murder) if he:

(1) intentionally or knowlingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or

(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in the immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

Additionally, a person commits capital murder if he murders someone under the age of six.

Now aside from the obvious questions of whether a 12 year-old can really grasp the concept of murder or develop the actual intent to kill someone, I want to know why the adults involved haven't been charged with any criminal act. The mothers knowingly left five children unattended while they went on about their business. The mothers knew exactly what they were doing and they knew it wasn't a very good idea.

Now, because of their decision, a 12 year-old boy is facing no future and the possibility of 40 years behind bars. Losing one child is tragic, losing two is inexcusable.

Supreme Court rejects Belton

The Supreme Court, by a 5-4 vote, today rejected the broad reading of New York v. Belton, 453 US 454 (1981) in ruling that a search of an arrestee's car after he was in custody following a traffic stop, was a violation of the 4th Amendment, in Arizona v. Gant, 556 US ___ (2009). 

Mr. Rodney Gant was arrested for driving on a suspended license then handcuffed and placed in the back of a patrol car. Once he was secured, officers searched his car and found cocaine in the pocket of a jacket. The Arizona trial court denied Mr. Gant's motion to suppress stating that the evidence was found during a search incident to an arrest.  Mr. Gant was sentenced to three years in prison.

The Arizona Supreme Court, however, reversed the trial court's decision and distinguished this case from Belton on the grounds that the police no longer had an interest in officer safety or in securing the scene as Mr. Gant was handcuffed in the back of a police car.

"Stare decisis does not require adherence to a broad reading of Belton. The experience of the 28 years since Belton has shown that the generalization and underpinning the broad reading of that decision is unfounded, and blind adherence to its faulty assumption would authorize myriad unconstitutional searches." -- Justice Stevens (Arizona v. Gant)

The U.S. Supreme Court reiterated its holding that warrantless searches are per se unreasonable with few exceptions.

The Court held that police may only search the passenger compartment of a car if they have a reasonable belief that the suspect may access the car at the time of the search or if the car contains evidence of the offense for which the suspect was arrested. In Mr. Gant's case, the Court held that neither exception applied. The Court specifically rejected the state's broad reading of Belton and did not agree that the interests of privacy and law enforcement were balanced with the broader reading.

Justice Stevens was joined by Justices Scalia, Souter, Thomas and Ginsburg.

The new and improved Intoxiliar

While stumbling around the internet I happened upon the website for CMI, the manufacturer of the Intoxilyzer. Always being on the lookout for material to use to impeach the little black box, and loving the irony of using someone's words against them, I downloaded brochures touting both the Intoxilyzer 5000EN and the (new) Intoxilyzer 8000. I was not disappointed.

The promotional materials for the Intoxilyzer 5000EN contained these gems:

• Breath sampling: Instrument automatically senses end expiratory air (alveolar) using the technique of slope detection in conjunction with a minimum volume and minimum time requirement.
• Calibration: The instrument is factory-calibrated and does not require periodic calibration adjustments as do fuel cell-equipped instruments.
• Breath Volume Measurement: A flow sensor allows breath volume information to be calculated and printed during each test.
• Simulator Temperature Monitor: This allows the instrument, through software and hardware, to monitor the simulator solution temperature.
• Warranty: One year, parts and labor. Two- and three-year are optional.
  

Now I have a few questions remaining:

If the breath test machine's slope detector is such a wonderful device, why is an observation period still recommended prior to the actual breath test?

If the breath test machine does not require periodic calibration, what do the technical supervisors do when they check the machine? And why do maintenance records reveal the replacement and cleaning of internal parts?

If the breath test machine can measure and print out breath volume on a test slip, why don't the test slips in Texas contain that information?

If the breath test machine can monitor the temperature of the alcohol jar, why isn't that information printed out on the test slip?

According to the spec sheet, the sample chamber is 11.4" long (28.9 cm) with a volume of 81.4 cc (that's about 2.75 oz).  Instead of measuring the alcohol concentration in 210 liters of breath, as per the Texas DWI Statute, the breath test machine only measures the concentration in the last 81.4 cc of breath. 

But the best was yet to come for, like the promo materials for any other products on the market, the manufacturer always wants to point out that the latest model is new and improved. CMI is no 

different when it comes to pumping up the Intoxilyzer 8000.

According to CMI:

The tradition of case law-approved infrared spectrometry alcohol analysis is taken to a new level by the Intoxilyzer 8000. The Intoxilyzer 8000 combines both 3 and 9 [micron] measurements to deliver unparalleled accuracy and reliability.

The brochure also states that the Intoxilyzer 8000 is "emerging as the industry standard for evidential DUI enforcement."

What do these statements mean as far as the accuracy and reliability of the Intoxilyzer 5000? More importantly, what do they mean in regards to the accuracy and reliability of the breath tests being used against our fellow Texans?

The rational actor and criminal justice

New Mexico criminal defense attorney Trace Rabern, one of the more interesting people I follow on Twitter, made a comment the other day that made me think.

Crim justice system set up on "rational actor" model--fails on every level with psychiatric disturbance.

The model, however, fails in almost all cases. The system of positive and negative incentivism that most of our penal codes follow assumes that we are all rational actors. In other words, the premise behind our criminal justice system is that we will all balance the benefits of a certain action with the potential costs of that action and that we will make our decision based on whether the behavior provides a net benefit or a net loss.

If the benefits of a certain act outweigh the costs, then we act in that manner. On the other hand, should the costs outweigh the benefit, then we do something else. Applied to the criminal law, if the benefit a person can obtain by committing a criminal act outweighs the possible consequences of getting caught, then our rational actor commits the criminal act. Conversely, if the consequences of getting caught in the act outweigh the potential benefit, a criminal act is averted.

Sound familiar? If you said neo-classical economic theory, you win a prize!

The problem with this rational actor model is that most of us act in the heat of the moment and focus only on the benefits of a particular action. We tend to ignore the possible consequences of our actions. Just look at the number of people buying candy bars and big gulps at the convenience store or how easily Bernie Madoff and Alan Stanford parted fools from their money.

In order to make a rational analysis before acting, one must look at the big picture. If you can step back and see where a particular action takes you (before you commit to it) then you can make a rational analysis of the situation and act in a way that maximizes the benefit to you. If, however, you are incapable of seeing beyond the end of your block, you will never be able to make a rational decision because you are incapable of estimating the consequences.

The rational actor model also fails to take into account the intoxicating effects of alcohol, drugs and sex have on our fellow man. Just take a look at your local newspaper's crime beat and see how many people killed someone they knew over a bet, a girl or a beer.

For further proof, look and see how many of our fellow citizens sitting behind bars are there for drug offenses.

Harris County Jail fails inspection (again)

Inspectors from the State Commission on Jail Standards flunked the Harris County Jail for the fourth time in its last six inspections. During the one week review, commission members found broken intercoms, too many broken toilets and courthouse holdover cells packed beyond capacity.

"An inmate should be able to press the intercom and communicate with the officer controlling the floor. When an officer cannot hear an inmate in need that is a life safety issue." -- Adam Munoz, executive director, Commission on Jail Standards

New Harris County Sheriff Adrian Garcia placed the blame on his department's lack of authority over maintenance crews working on the facilities. The county now has 30 days to submit a plan to fix the problems in a "reasonable" time.

Harris County currently houses over 10,000 inmates at the jail.

Into the belly of the beast

Here's a link to Richard Alpert's DWI Case Law on the Texas District and County Attorneys Association website.

I found two cases summaries to be quite interesting as they relate to an officer's developing probable cause to arrest a motorist for driving while intoxicated.

Maxwell v. State, 253 S.W.3d 309 (Tex.App.—Fort Worth, 2008, pet. ref’d).

Officer may consider defendant’s refusal to do Field Sobriety Tests when determining the issue of probable cause to arrest.

Texas Dept. Of Public Safety v. Nielsen, 102 S.W. 3d 313 (Tex.App.—Beaumont, 2003, no pet.).

Substantial evidence existed of probable cause for driver’s arrest for driving while intoxicated (DWI) where police officer noticed several signs of intoxication including alcoholic odor coming from vehicle, driver’s refusal to make eye contact with officer, driver’s refusal to roll down window, driver’s response that he had consumed two to four beers when asked if he had been drinking, and driver’s refusal to take field sobriety tests. The totality of the circumstances is substantial evidence of probable cause for Nielsen’s arrest.

These cases seem to say that an officer may arrest a motorist for DWI absent field sobriety tests when that arrest decision is made after the motorist declined to perform the tests. Thus questioning an officer about when he made up his mind that he had probable cause to arrest a motorist for DWI becomes very important in determining if there was, indeed, probable cause for the arrest.

Based on these cases, the odor of an alcoholic beverage by itself, or in conjunction with bloodshot eyes or slurred speech, don't give rise to probable cause to arrest for DWI absent more evidence of intoxication.

Time for a history lesson, Rick

Is Rick Perry preaching to the choir or does he really believe the claptrap that comes out of his own mouth?

The blow-dried Texas governor, who at times makes W. look like a Mensa candidate, stepped in it when he spoke at a Tea Party rally on Tax Day in Austin. Gov. Perry seems to think that Texas has the right to secede from the United States.

Um, Rick, might I point out to you that there was this war that was fought about 145 years ago that pretty much settled that question. Once Lee surrendered at Appomattox Courthouse, the issue of whether the individual states had the right to leave the Union at their whim was pretty much settled. I believe the answer was a resounding "No."

What Texas does have the right to do, thanks to the 1845 treaty annexing Texas into the United States, is divide itself into five separate states.

Perry has railed against the Obama administration's stimulus plan and the bailout of Wall Street (that his ol' boss rammed through Congress) Yet, despite his protests that Texas would not take any of the stimulus money, Perry has already budgeted some $16.5 billion - including $101 million for law enforcement. Perry's opposition to the stimulus plan seems to center on $555 million in unemployment insurance that would require the state to change its unemployment laws.

See also:

• The Business Insider: Clusterstock
  
• Video from MSNBC's Countdown
  
• Dallas Morning News
  

Implied consent: a one-act drama

Somewhere in Texas at a Department of Public Safety driver's license office...

CLERK: Next.

APPLICANT: I'm here to get a driver's license.

CLERK: Let me see the paperwork.

APPLICANT: Here you go (handing application to the clerk).

CLERK: Now I need you to stand perfectly still while I wave this pen in front of your face. Just a second while I turn on the camera.

APPLICANT: (looks puzzled)

CLERK: Hold that head perfectly still. Here we go (waving a pen back and forth in front of applicant's face). Okay, that was good. Now I need for you to stand on one leg with your arms at your side. Whatever you do, don't put your foot down.

APPLICANT: (looks very puzzled while she struggles to keep from falling over). Can I ask you what this is all about?

CLERK: You can ask, but I can't answer that question just yet. Now I need for you to walk heel-to-toe up and back along that black line with your arms at your side. Take nine steps each way, please.

APPLICANT: You've got to be kidding.

CLERK: Do I look like I'm kidding (glaring at applicant in that way only a civil servant can)? Walk up and back along that line. Now!

APPLICANT: (with resignation) Fine. Here I go.

After the applicant finishes walking along the line she walks back up to the counter.

CLERK: Now you need to pay the fee and sign this form and then you'll be a legally licensed driver in Texas.

APPLICANT: (looking at a blank piece of paper with a signature blank) There's nothing on this paper. What am I signing?

CLERK: Do you want your license or not? You need to pay the fee and sign that piece of paper. We haven't got all day.

APPLICANT: (looking down at her watch stops herself from commenting) Here's your money. Do you have a pen?

CLERK: (looking incredibly put upon) Here.

The applicant signs the blank paper and hands it back, along with the pen, to the clerk.

APPLICANT: What was that paper all about? Was that just for my signature on my license?

CLERK: No. That paper was a waiver of your constitutional rights to remain silent and or speak to an attorney. You also waived your protection from self-incrimination and unreasonable search and seizure. Finally, and most importantly, you are now guilty until proven innocent. Have a good day. Next!

APPLICANT: (looking very disturbed) Wait just a minute. What are you talking about? What do you mean I waived my constitutional rights and protections?

CLERK: Well, anytime a police officer gets it into his head that you might be driving while intoxicated - you know, smells alcohol on your breath, for instance, you agree to blow into the state's breath test machine - but don't ask anyone how it works. If you ignore your obligation to provide evidence against yourself then we'll take your license away from you for 6 months and make you beg a judge to let you drive your car. Oh, and if the officer decides to arrest you and you, if you didn't blow into the machine, that's an indication that you were driving while intoxicated. Here's your license. Next!

APPLICANT: (looking down at her license in complete disbelief) What the...?

Maybe he has Ben Matlock on speed dial

Perry Mason was arrested in Houston earlier this week for allegedly soliciting clients for an attorney. Mr. Mason was charged with barratry, a third degree felony.

Hamilton Burger was unavailable for comment.

Debtor's prison, redux

Even though federal debtor's prisons were outlawed in 1833 and the Texas Constitution forbade them in the Lone Star State in 1836, they are making a comeback today.

County officials around the state are looking at ways to collect court-ordered fines and fees from parolees who have been released from prison.  Some parole officers are filing motions to revoke parole for those who are behind in their payments -- in other words, threatening to put them in prison because they don't have any money.

As a way of raising revenue, the Texas Department of Public Safety thought instituting surcharges on license renewals would be an excellent deterrent (punishment) for driving while intoxicated, without insurance or with too heavy a lead foot. The effect of the surcharge program, however, has been to create criminals out of those who can't afford to pay the king's ransom for the privilege to drive in Texas.

The DPS will hit you with a $1,000 a year surcharge for three years on your first conviction for driving while intoxicated - or else your license is suspended. If you are convicted of driving without insurance, you'll owe the DPS $250 a year for three years. Should you accumulate too many speeding tickets in a three-year period, be prepared to pony up at least $100. And if you can't afford these surcharges and you get caught driving on a suspended license (suspended for non-payment of surcharges) -- open up that wallet because you are on the hook for $250 a year for three years. You are also subject to being arrested and taken to jail for driving on that suspended license.

Worse yet, these surcharges don't even take into account the reinstatement fees for which you are responsible.

In addition to motorists arrested and jailed for not paying their surcharges, the State of Texas can also jail for you not paying your court-ordered child support. In the IV-D courts (child support enforcement courts), if you're behind you could get hit with a contempt order and be subject to jail time for not obeying the court's order. Of course since you're not making any money while in the cooler you're falling further and further behind and digging a hole from which you may very well never find your way out.

And, if that's not bad enough, piss someone off enough and you could find yourself facing a state jail felony for criminal nonsupport. At least there you have the defense that you couldn't afford the payments.

The suspension of the Great Writ

On this day in 1865, just days after (Confederate) Gen. Robert E. Lee surrendered at Appomattox Courthouse, the 16th President of the United States, Abraham Lincoln, was assassinated at the Ford Theatre in Washington, D.C. at the hand of John Wilkes Booth.

On September 24, 1862, President Lincoln imposed martial law on those in rebellion, supporting the rebellion, resisting the military draft or encouraging others to resist the draft. The same proclamation also suspended the Writ of Habeas Corpus for anyone held by military authority during the war.

It was because of King John's suspension of the Great Writ, that the Magna Carta, the inspiration for the Declaration of Indpendence, was signed at Runnymede in 1215. Thanks to the Anti-terrorism and Effective Death Penalty Act, federal inmates have seen their right to file writs of habeas corpus restricted -- all in the name of national security.

Here is the text of President Lincoln's proclamation:

Proclamation Suspending the Writ of Habeas Corpus

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA:

A PROCLAMATION

Whereas, it has become necessary to call into service not only volunteers but also portions of the militia of the States by draft in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure and from giving aid and comfort in various ways to the insurrection;

Now, therefore, be it ordered, first, that during the existing insurrection and as a necessary measure for suppressing the same, all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission:

Second. That the Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority of by the sentence of any Court Martial or Military Commission.

In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed.

Done at the City of Washington this twenty fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the 87th.

ABRAHAM LINCOLN

By the President:

WILLIAM H. SEWARD, Secretary of State.

A neverending circle

I came across an interesting e-mail today about the surcharges the Texas Department of Public Safety impose upon Texas motorists. The author spoke of the hole a client of his was in due to over $11,000 in surcharges: surcharges for DWI, no insurance tickets and tickets for driving on a suspended license.

The client couldn't pay the surcharges because he couldn't get a job because the DPS would not renew his license because of the excessive surcharges owed. In his case, the only thing the DPS has accomplished is guaranteeing he will be breaking the law everyday.

Spector convicted of second degree murder

Phil Spector, the creator of the "Wall of Sound" in the 1960's saw his world crash down on him when the jury in his second murder trial voted to convict the music producer of second degree murder.  Spector faces a sentence of 15 years to life in prison and was remanded to the custody of the sheriff to await sentencing.

Unlike the near-circus atmosphere of his first trial in 2007, the re-trial managed to come in below the radar screen and played to a sparsely-populated courtroom.

After nearly six months of testimony, the jury deliberated for about 30 hours before announcing their verdict.

For California prosecutors, it was a rare victory over a celebrity defendant. Spector's attorneys said they may appeal the judge's decision to allow five women to testify that Mr. Spector had threatened them in the past.

Of course I think that hair-do warrants a conviction by itself.

Twitter and worms

Over the weekend the popular micro-blogging site Twitter was infested with a worm that took users to another site, updated their status and set them to follow @onedegrees.

Michael Mooney (mickeyy), a 17 year-old living in Winnfield, Louisiana, the creator of the website StalkDaily, admitted to being the creator of the StalkDaily worm and spoke to Scott Campbell of Net News Daily about his "creation."

In the interview, Mr. Mooney said he noticed a vulnerability in Twitter and decided to "fiddle" with it. When asked if he was concerned about how his actions affected others, Mr. Mooney refused to acknowledge that he had inconvenienced anyone. Instead, Mr. Mooney claimed he was doing Twitter a public service by exposing the vulnerability of the site.

When asked if he would be "releasing" any more worms, Mr. Mooney said: "I'm not sure, it depends on if Twitter sanitizes their fields."

Mr. Campbell then asked Mr. Mooney if he realized he could be arrested for what he had done. His response? "Yes, I'm aware. I'm not worried though. I know it could land me in jail."

His casual attitude toward the matter is similar to the attitudes I see in some of my younger clients - they aren't mature enough to look at what the consequences of today's actions might be down the road.

See also:

• Dwight Silverman's TechBlog "Twitter plays whack-a-worm over the weekend"
  
• PCMag.com "Twitter worm causes uncontrolled tweeting"
  
• The Twitter Blog
  

Economic woes and jury selection

I came across this interesting article in the Connecticut Law Journal this afternoon on the challenges of picking a jury in the current economic climate (special thanks to Mr. Ernest Svenson, also known as @ernieattorney on Twitter). It seems that Connecticut is having a problem seating jurors due to concerns over personal economic issues.

Many Connecticut trial lawyers say prospective jurors are begging off jury duty more than often than ever because they're hesitant to spend time away from their jobs or job searches. The longer the trial is expected to be, the greater the reluctance to serve. -- "The Reluctant Juror" 

The concern is that these jurors would be unable to devote their full attention to the case at hand due to their preoccupation with their own situation.

Kathleen Nastri, a Connecticut trial attorney, said that as soon as a potential juror states they are concerned about keeping a job, they are excused from service.

The current economic environment gives us another potential challenge for cause in Texas if the juror admits that he or she cannot give the matter at hand his or her full attention because the juror is concerned about his or her economic welfare. 

Ask panelists if they feel they can't devote their full attention to your client's matter because they are concerned about losing their job or paying the mortgage. If they tell you they can't, challenge that juror for cause. In the event the judge overrules your challenge, ask for an additional pre-emptory strike. If you don't get it, object to the composition of the jurybefore they are sworn in and note on the record who you would have struck from the panel had you not had to use a pre-emptory strike on the juror in question.

Judge shoots down DPS driver's license plan

Over the last few months, the Texas Department of Public Safety has been working on implementing a plan by which only people who could prove they were citizens or here legally could acquire a Texas driver's license. In addition, the department sought to issue a different license to non-citizens. The DPS also proposed setting up driver's license checkpoints around the state.

On Thursday, Travis County District Judge Orlinda L. Naranjo shot down the DPS plan when she ruled the department had exceeded its authority in forcing applicants to prove they were in the country legally.

"DPS has created havoc by attempting to inject its political agenda into the lawmaking process and improperly giving second-class to individuals who in every way have complied with the laws of the land regarding their presence in the United States and Texas." -- David Hinojosa, MALDEF

Gov. Rick Perry and the department had boasted that the new policy would help protect the United States and Texas from foreign threats. Far from "protecting" Texas, the proposed policy would only guarantee more drivers on Texas roads without state-required liability insurance.

The plan to issue non-citizens a different license could have subjected holders to racial-profiling, suggested Mr. Hinojosa. It could certainly have led to disparate treatment on traffic violations for citizens and non-citizens.

In issuing a temporary injunction, Judge Naranjo said: "This case is not about illegal immigrants obtaining driver licenses, it is about legal residents who have been denied or have been threatened a denial of a driver license."

Withholding exculpatory evidence

"We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." -- Justice Douglas, Brady v. Maryland, 373 US 83 (1963)

"The prosecutor in a criminal case shall...make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal..." Texas Disciplinary Rules of Professional Conduct, Rule 3.09(d)

Perhaps Donna Hawkins of the Harris County District Attorney's Office should rethink her position that exculpatory material will only be turned over to attorneys and citizens accused upon request.

Not a good career move

This past Friday night, Harris County Sheriff's Deputy Murray Campbell was stopped by an off-duty DPS trooper in Montgomery County (Texas) and arrested for driving while intoxicated. Deputy Campbell, still in uniform, was seen driving at a high rate of speed and swerving in his patrol car just a few blocks from his home.

Campbell declined to perform police coordination exercises at the scene and later declined  to provide a breath specimen. The Montgomery County District Attorney's Office then sought, and got, a search warrant to for a forcible blood draw.

If the blood test indicates that Campbell had an alcohol concentration of .08 or greater, he will face termination. Campbell has been with the department for 17 years.

Breath test operator under investigation

Last October, Dee Wallace, at the time a technical supervisor for the Texas Department of Public Safety in charge of maintaining breath test machines, was fired after it was disclosed she had filed false maintenance records on the machines under her supervision. Now it's Officer Michael Wick of the Houston Police Department on the hot seat as a result of a case in which he falsely accused a passenger in a vehicle of intoxication manslaughter.

On January 12, 2007, Officer Wick was involved in the investigation of a fatality accident in which he charged a passenger with intoxication manslaughter. That case was dismissed and the actual driver pled guilty last week and was sentenced to three years in state jail (not quite as good as the deal the daughter of a juvenile court judge received for causing the death of her boyfriend).

"I don't think...people are going out of their way to make cases for productivity reasons." -- Gary Blankinship, president, Houston Police Officer's Union

Wick has been with HPD since 1984 and has been involved in hundreds of DWI investigations. As a certified breath test operator, Officer Wick must provide a statutory warning to anyone arrested for driving while intoxicated before he can administer a breath test. His testimony that he provided the warning and that the driver refused the breath test can be used by the state to infer guilt at trial. That same testimony at a license suspension hearing can bring about a 180 day (or longer) suspension based on the driver's decision not to blow into the machine.

Harris County prosecutors were notified on January 28, 2009 that there may be Brady material (evidence in the state's possession that might tend to cast doubt on the citizen accused's guilt). Donna Hawkins of the Harris County District Attorney's Office said that the material would be turned over to any defense attorney or citizen accused upon request (another reason to file those discovery motions and get rulings prior to trial).

Just how out of control is the state's breath testing program? Are these just "isolated incidents" or are they just the tip of the iceberg?

Federal judge orders criminal investigation of prosecutors

If the prosecutors from the Harris County District Attorney's Office who were disciplined for a Batson violation think their punishment was severe, they should be thankful that they weren't prosecuting former U.S. Senator Ted Stevens (R-Alaska).

After dismissing the Senator's conviction, U.S. District Judge Emmitt Sullivan ordered a criminal investigation into the prosecutors who withheld Brady material.

I always find it amusing when the law and order set comes to the conclusion that our criminal justice system doesn't always work the way it should.

"Until recently my faith in the criminal justice system, particularly the judicial system, was unwavering. But what some members of the prosecution team did nearly destroyed my faith. Their conduct had consequences for me that they will never realize and can never be reversed." - Sen. Ted Stevens.

Prosecutors failed to disclose to the defense that a key prosecution witness had changed his story. The witness testified that a mutual friend told him not to expect payment for the renovations he made to Sen. Stevens' house. In an earlier, undisclosed meeting with prosecutors, the witness said he didn't recall that conversation -- and he valued his work at less than prosecutors alleged.

"I was sick to my stomach...How could they abandon their responsibilities." -- defense attorney Brendan Sullivan.

It would be naive to believe that what happened in Sen. Stevens' trial was an isolated incident. The prosecutors' conduct is emblematic of a "win at any cost" mentality that affects too many attorneys who argue on behalf of The State.

A prosecutor's job is to see that justice is done, not to build a resume on the lives and reputations of citizens accused of criminal activities.

Play ball!

There are few things in life better than the lead-up to Opening Day of the baseball season. Every year fans are overwhelmed with a sense of optimism about the prospects for the local nine. This year was no exception. 

My daughter and I thought the past week would never end as we waited for the Astros' season opener on Monday night against the (evil incarnate) Chicago Cubs. We walked hand-in-hand up the street to the ballpark and sat outside in the afternoon sun crushing a bag of peanuts before heading into the 'yard. 

We ate our hotdogs and listened to Lyle Lovett sing the National Anthem before the Astros took the field for the long-awaited first pitch of the 2009 campaign.

The optimism lasted until Alfonso Soriano crushed Roy Oswalt's second pitch over the left-center field fence. Only 161 games to go...

What happens at a DWI roadblock?

"If you don't want to provide any tests, we're going to assume you're drunk."

Think DWI checkpoints are a good idea? Listen to this audio from a checkpoint stop in California and see if it changes your mind.

"This has nothing to do with your rights...we're detaining you pending a DUI investigation."

A special thanks to the California DUI Lawyers Association for providing a link to the audioclip.

Faulty logic in the DA's office

Seems that Harris County District Attorney Pat Lykos' reasoning behind her decision not to offer probation for people in this country illegally is based on two premises: (1) the person is violating US law by being in the country without permission and (2) the person is violating the law by working in this country.

She is right on her first premise but woefully off target with her second. There is nothing illegal about an undocumented person working in the United States -- it is a crime, however, for the employer to hire an undocumented worker.

The only effect of Ms. Lykos' policy will be to worsen the present overcrowding at the Harris County Jail.

Dr. King's dream...deferred

Forty-one years ago today, a sniper's bullet took the life of Dr. Martin Luther King, Jr. in Memphis, Tennessee. 'Twas the beginning of our summer of discontent.

In many ways Mr. King's dream has been fulfilled. On the spring evening in 1968, who would have believed that 40 years later an African-American would be elected President of the United States? Who would have believed that Houston would have elected a black mayor and that Harris County would have elected a woman as its district attorney?

I feel confident that as my daughters get older, these events that we find significant and almost unthinkable will be the norm.

However, despite the strides we have made to erase the color and gender barriers of the past, we still see an incredibly disproportionate number of blacks under restraint of our criminal justice system. We still see disparate sentencing depending on one's socio-economic position and we still must be ever vigilant to attempts by the state to exclude African-Americans from jury panels in criminal cases.

The day is brighter and the horizon wider, but we still have much to do.

County Judge gets off easy on DWI

Montgomery County (Texas) Judge Alan Sadler pled guilty to driving while intoxicated today. Mr. Sadler was arrested on suspicion of DWI after rear-ending a car as he left the parking lot of a restaurant in Conroe. Mr. Sadler declined the police officer's request for a breath sample, but after a judge signed a warrant authorizing a forced blood draw, Mr. Sadler blew into the intoxilyzer -- and "passed." Unfortunately for Mr. Sadler, the results of the blood test showed prescription medications along with alcohol -- enough said Montgomery County District Attorney Brett Ligon to indicate he was intoxicated by the synergistic effect of the drugs and alcohol.

Mr. Sadler was ordered to pay a $1000 fine and his driver's license was suspended for 90 days -- quite a bit less than the standard one-year suspension meted out for straight (no probation) pleas.

Interestingly enough, Mr. Sadler wasn't even ticketed for causing the accident -- he was issued a written warning for following too closely.

Dissent in the ranks

There seems to be more than a little dissent in the ranks over on the 6th Floor at 1201 Franklin according to this piece in the Houston Chronicle.

Now whether the four senior district attorneys are opposed to Ms. Lykos' plan to prevent defendants in the country illegally from receiving probation or deferred adjudication because it would clog the courts with more trial cases or due to equal protection issues (I'm sure that's it), remains to be seen.

Whatever the reason, there is a schism developing in the Harris County District Attorney's Office with senior prosecutors coming out against Ms. Lykos' proposal in this instance and with grumblings in the ranks after the Batson incident last month.

See also:

• "Yet another bad idea" (March 30, 2009)
  
• "ICE: Policy's effect on immigration would be minimal" (Defending People; April 1, 2009)
  
• "Another brilliant idea from Lykos and company" (Defending People; March 30, 2009)
  

More on DWI checkpoints

Here are a few of the hidden gems in S.B. 289 which would authorize law enforcement agencies in Texas to set up temporary DWI checkpoints:

65.04(d) The criteria for selecting the location for a sobriety checkpoint must include the number of traffic accidents in the vicinity of the location in which the use of alcohol was a factor and that occurred in the preceding 12 months and the number of arrests for intoxication-related offenses in that vicinity in the preceding 12 months. The selection of the checkpoint must be made without regard to the ethnic or socioeconomic characteristics of the area in which the checkpoint is located.

First, I love the Orwellian phrase sobriety checkpoint. How does one go about determining whether another person is sober? What is sober? How do you prove a negative - I am not intoxicated?

I also want to know how law enforcement determines whether alcohol was a factor in an accident. Does that mean that the driver at fault was intoxicated? Does that mean that either driver was intoxicated? Does that mean that the driver at fault consumed an alcoholic beverage? Does that mean that either driver consumed an alcoholic beverage?

65.04(h) ...a peace officer may not request a person operating a motor vehicle at the sobriety checkpoint to display the person's driver's license or concealed handgun license or to furnish evidence of financial responsibility unless the officr has reasonable suspicion or probable cause to believe that the person has committed or is committing an offense...

Obviously the handgun lobby was involved in the final markup of this bill. And what would constitute reasonable suspicion that someone was driving without insurance? 

65.04(i) A peace officer at the sobriety checkpoint may not require a motor vehicle operator to perform a sobriety test unless the officer has reasonable suspicion or probable cause to believe that the operator is in violation of Section 49.04 or 49.045, Penal Code. A peace officer who requires or requests an operator to provide a specimen of breath, blood or urine must comply with Section 724,Transportation Code.

Reasonable suspicion or probable cause for what? If you've got no moving or equipment violation, you've got no basis to stop the motorist. As it's not against the law to have a drink and drive - so long as you haven't lost the normal use of your mental or physical faculties - the smell of an alcoholic beverage on one's breath doesn't give rise to an inference that a law has been broken.

65.04(c) The procedures for the operation of a sobriety checkpoint must ensure that the selection of motor vehicles to be stopped is reasonably predictable and nonarbitrary.

If you enjoy playing the lottery then you'll love being caught up in one of these DWI checkpoints. But this does beg the question, again, of what constitutes reasonable suspicion or probable cause in the context of a DWI checkpoint.

There is no other crime on the books in Texas for which the police can line people up against a wall without any articulable reason and look for a reason to arrest them. Such a procedure would violate the very notion of due process. But, we are talking about driving while intoxicated, for gosh sakes.