March 2007

Dennis Paxinos, the chief prosecutor for Yellowstone County, Montana, wrote a Guest Opinion column in the Billings Gazette this week entitled “Scientific Test would disprove DUI myth of ‘few drinks’.”

Outraged by the suggestion of legislators in his area that a “few drinks” might accidently put them over the legal limit of .08, he issues a challenge to any two legislators to have drinks and dinner with him with these conditions:

• We all agree to take a breath test on a Portable Breath Test Instrument (PBT) first to make sure we are all starting with a 0.00 BAC.

• The lawmakers, myself and a member of the press will order dinner and drinks and we chat as we would normally for an hour and a half.

• I would then ask everyone to estimate their BAC as well as the BAC of their dining companions.

• We would then be given a preliminary breath test from an officer on stand-by. And, to demonstrate how accurate the PBT tests are, we would then all be driven to the DUI processing center to have our breath analyzed on the Intoxilizer 5000. [sic]

He finishes his challenge by insisting that since the breath test machine will inevitably show them to be “under .08”, they will have to make a statement on the floor of the House or Senate that “having a couple of drinks with dinner is perfectly legal”. (Presumably, he means driving after a few drinks at dinner is legal.)

Ignoring for now his implication that being under .08 would automatically make someone not guilty, let’s analyze what’s wrong with his so called scientific challenge…

He assumes that the Intoxilyzer 5000 gives an accurate result. (Of course, the PBT that he offers first is so unscientific, that it doesn’t even meet the low threshold for admissibility.) If the machine is so “scientific”, why doesn’t CMI, the manufacturer, allow independent (read: non law enforcement) folks to buy the machine and test it out?

The basis of modern science is peer review; and yet CMI refuses to let their machine be independently tested? Does that sound like science to you?

One last point about his op-ed piece. Paxinos writes:

…having a couple of drinks with dinner is perfectly legal. However, consuming a lot of drinks with or without dinner coupled with driving is against the law and should not be condoned or accepted by anyone.

Thanks for highlighting the problem with DWI/DUI legislation everywhere. Something is fishy when even the prosecutor can’t enunciate a clear cut rule for “how much is too much”. 

If you’re going to write an article mocking the idea that folks don’t always know when they’ve exceeded a .079 breath alcohol content, shouldn’t you yourself be able to define it better than “more than a few drinks, but less than a lot”? Science indeed.

My boyfriend was recently charged with DWI with a Child Passenger in Midland, TX. When he was pulled over, he performed several field sobriety tests and submitted to a breath test.

The arresting officer didn’t state whether he passed or failed and stated he "refused to blow" in his final report. And, an additional breath test was not administered at the jail.

He’s in the process of retaining a lawyer referred to him by (someone he knows). The lawyer isn’t a DWI lawyer and I’ve researched him to find most of his cases are trial cases. Is this the lawyer to have?

Actually, I would look for a lawyer that does have trial experience. Prosecutors know which lawyers will and won’t try cases, and, all other things being equal, probably offer better plea bargains to lawyers who they know can try a case well. Also, I think personal referrals are always a good source for finding a lawyer.

Criminal defense is very different from civil law practice however. You will want to know how much criminal defense, and DWI work any lawyer you hire has under his belt.

Does the state have a case?

This is the basic question everyone wants to know, of course, when they first come to see me as well. Unfortunately, there’s no pat answer to the question. If he did reasonably well on the FSTs, and didn’t provide a breath or blood specimen over the limit, then there’s always room for a valid defense.

Does he, my boyfriend, need to prove he complied with the breath test?

Based on your scenario, he probably took a portable breath test at the scene. For ALR driver’s license suspension purposes, refusing a request to take an Intoxilyzer test at the police station counts as a refusal, whether or not he took a PBT on scene. (And, of course, he doesn’t have to prove he took a breath test – they have to prove he was properly offered a test after the arrest, and that then he refused.)

Should he plead not guilty or try for deferred adjudication?

Unfortunately, there’s no deferred adjudication for DWI in Texas. There are, of course, other negotiable non-DWI options however, even for State Jail Felony DWI arrests.  [CORRECTION]

The lawyer has also told him he may be able to keep this off his record. Is this truthful?

If the case is dismissed, or he is acquitted at a bench or jury trial, he can seek to expunge the arrest from his record.

[From an email I received; names deleted, and my answers in bold.]

DWI lawyers know that most times their defense will be “the State can’t prove my client was intoxicated”. This usually comes up in breath or blood test refusal cases, where the defendant does well enough (not perfectly, just well enough) on the field sobriety tests.

Sometimes, the defense is that the State can’t prove that my client drove or operated a motor vehicle. This might involve the police arriving on scene after a collision, or after the driver is pulled over on the side of the road.

But the least common DWI defense is what I call the “while defense”. Yes, the state can prove my client was legally intoxicated (at some point). And yes, they can prove he was operating a motor vehicle. But they can’t put both of them together at the same time, and therefore, he wasn’t Driving While Intoxicated.

This defense is realistically possible when the defendant provides a breath or blood specimen where the analysis shows that the alcohol concentration is over .08, but is for example, under .10.

Of course, the defendant didn’t actually provide that specimen while driving, but instead, some time after the fact. I’d estimate that in most Austin DWI cases, my client’s breath or blood sample is taken somewhere between 30 minutes to 2 hours after the arrest. 

Why so long?

Well, there’s sometimes a delay while the original stopping officer waits for an Austin Police Department DWI task force officer to arrive on the scene. That officer then conducts an interview, and administers field sobriety tests. The officer might conduct an inventory of the vehicle, and will certainly read the DIC Statutory Warning to the defendant, asking for a specimen of breath.

Then there’s the trip to the police station, where there may be an additional wait. (The recent addition of the BAT-Mobile, or Breath Alcohol Testing Mobile Unit has cut down that wait – but that’s fodder for another post.) And depending on where in Austin the client was stopped, the trip to the station or the DWI mobile unit can take quite some time as well.

The point is that having a BAC of .085, for example, 30 to 45 minutes after the driving, does not in and of itself prove that the defendant was driving while intoxicated. Depending on various factors, primarily the particular drinking pattern that night and the stomach contents, it is possible for the Defendant’s BAC to be higher at the time of the test, than it is at the time of driving. It is also effected by variations in human physiology as well.

This is most likely in scenarios where the defendant’s last drink was very near the time of driving; which given what happens at closing time, is not an unlikely scenario at all.

This isn’t just some crazy DWI defense lawyer theory here either – it’s both basic common sense, and basic science. So basic, that even the CMI manual for the Intoxilyzer 500 (used for breath tests here in Austin) admits that the defendant’s actual breath alcohol content at the time of the test may be “higher than, lower than or the same as” the BAC at time of driving.

[Last Note: in explaining this over the years, I really have come to label this the “while defense”, because it seems to make sense when I explain it in this context. I should note, however, that the more formal term for it is the “rising BAC defense”, meaning that if the defendant’s BAC was still rising at the time the vehicle was pulled over, then it’s likely that it was below the test measurement at the time of driving.]

Texas Penal Code § 49.04 DWI carries a special penalty provision, which on its face seems to carry a higher penalty than normal for a Class B Misdemeanor:

…an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours…

Indeed, “regular” Class B misdemeanors have a punishment range of 0 to 180 days, not 72 hours to 180 days. And I often get asked by potential clients, who have done some DWI research online before coming to see me, doesn’t this mean there’s at least some mandatory jail time for a first offense DWI in Texas, even if the defendant is granted probation?

But the answer is still no. The quickest explanation here is that the statute is referring to the minimum amount of time that can be probated by a judge; but as we will see, that is virtually meaningless.

When someone is convicted of any offense in Texas, and then placed on probation, they have a jail sentence “hanging over their head” as a possible penalty in case they violate their probation. (Think of it as the carrot and the stick.)

And in a DWI probation situation, it’s true that the statute requires the judge to sentence the defendant to 72 hours, or 3 days, as a minimum term of the probated sentence.

Now, in theory, a judge could sentence someone to 2 days in jail, but suspend the sentence, and not require it to be served unless the defendant violated the terms and conditions of their probation, for a regular non-DWI Class B offense. But no sane judge would ever do that. Why?

Well, we’re back to the carrot and the stick. If a defendant were sentenced to 2 days in jail probated for any length of time, they would actually have an incentive to violate their probation. Their “penalty” for violating would entail being taken off probation, and sentenced to a maximum of 2 days.

But they would, by statute, be credited with at least one day for the night they were arrested. And, at least in Austin, they would be given 2 for 1 towards their sentence (the Travis County Jail, like most county jails in Texas, gives 2 days credit for every day actually served). In other words, they would be off probation, and given back time for the time they had already served. That’s not exactly a punishment for violating their probation.

The practical truth is this: whether it’s a shoplifting, possession of marijuana, DWI, or any other Class B misdemeanor, a judge is likely to “sentence” the defendant to something on the higher range of the punishment ladder (like 120 to 180 days) when probating a sentence. This is to ensure that the judge actually has a stick, when they grant that carrot of probation.

(One final quick lawyer caveat as I re-read my entry before posting: I am not saying that probation is mandatory in the first place. Simply that folks shouldn’t read the statute to mean that they are definitely going back to jail, if they end up convicted for DWI.)

In my last post, “Ambien, Sleep Driving and DWI,” I commented on the FDA’s push to label various sleep medications with warnings about the potential dangers of “sleep driving”. I also mentioned that this lent some validity to the recent spate of sleep driving defense claims we have heard on DWI cases.

But wait, in Texas, intent is not an element of DWI. Section 49.11 says there is no mental state necessary for the State to convict on DWI charges. And Section 49.10 precludes the defense of entitlement to use a drug, whether prescription, over the counter or alcohol. (That means that even though a physician prescribed you the medication, if you knowingly took it and then unintentionally became intoxicated, you have no defense.)

So how is it that the use of Ambien, or any other sedative-hypnotic, could provide a defense to DWI under Texas Law?

After all, the reason there is no intent required for a DWI conviction becomes clear upon reflection… If folks charged with DWI were allowed to, they could argue they had no intent to drive while intoxicated. And in fact, there proof might lie in their very intoxication itself.

(Testimony from the person arrested for DWI: Yes, I drove to the bar. And yes, I knowingly ordered the drinks and consumed them. But after I became intoxicated, I lost the normal use of my mental faculties [the very definition of intoxication for DWI], and plum forgot my original plan to take a cab ride home.)

But the Ambien sleep driving defense does not assert a lack of intent as its basis…but a lack of voluntariness instead. Here’s the difference:

Assault can be loosely defined in Texas as bodily contact that causes the slightest amount of pain to another individual. Yes, pushing and shoving, when someone says ouch, can technically meet the definition of Assault. But the defendant need not intend the harm, only the pushing and shoving.

But say for example someone takes some medication, and has a bad reaction to it, perhaps violently flailing their arms around in some sort of an epileptic like fit. Perhaps they come into contact with someone else, who is injured by this. The reason (in my admittedly unlikely hypothetical) that they would not be guilty of assault is that they did not voluntarily cause the contact in the first place.

Well, that’s also the basis for the sleep driving defense. The new warning labels being required by the FDA on sleeping pills, show us that taking the drug can make a person involuntarily drive their vehicle. 

And while the State need not prove a person intentionally or knowingly became intoxicated, they still must show that the act of operating the motor vehicle in a public place was voluntary.

The Food and Drug Administration announced today that it was requesting drug companies to include new warnings on some sleeping pill bottles about “complex sleep-related behaviors, which may include sleep-driving. Sleep driving is defined as driving while not fully awake after ingestion of a sedative-hypnotic product, with no memory of the event.” (FDA press release here.)

You may have noticed the recent advertising blitz trumpeting the various benefits of certain sleeping pills, all to help you induce or maintain a good night’s sleep.

You probably also remember last year’s news about Congressman Patrick Kennedy’s low speed car accident, where he claimed…

…that he was apparently disoriented at the time of the crash after taking the prescribed amounts of a sleep aid and an anti-nausea drug.

"I am deeply concerned about my reaction to the medication and my lack of knowledge of the accident that evening." he said.

As Anderson Cooper on CNN noted the next day:

Some people are probably skeptical that a popular drug like Ambien can trigger the kind of behavior attributed to Patrick Kennedy.

What behavior was that?

The report said when the officer approached Kennedy he noticed his "eyes were red and watery, speech was slightly slurred, and upon exiting his vehicle, his balance was unsure."

Those are the classic signs of DWI, found in almost every police report.

And now we find out that it’s not just anecdotal. There is so much scientific evidence now that this can and actually does happen that the FDA wants drug manufacturers to provide warnings for consumers to that effect. 

The drugs include Ambien, Halcion, Lunestra, Seconal and Sonata as well as the lesser known Butisol Sodium, Carbrital , Dalmane, Doral, Placidyl, Prosom, Restoril, and Rozerem.

Every good DWI lawyer is familiar with the last section in Chapter 8 of the NHTSA DWI Detection and Standardized Field Sobriety Testing Manual that states:

If any one of the standardized Field Sobriety Test elements is changed, the validity is comprised. (***)

Indeed, one of the bedrocks of DWI defense is being able to grade not only the defendant’s performance on the FSTs, but being able to grade the officer’s administration of the tests. In some situations, improper instructions or grading can actually make an individual test or even the entire battery of tests inadmissible.

Unfortunately, for all NHTSA’s efforts to the contrary, there are many problems with these roadside tests – even when administered by the book.   They do not, in fact, allow police officers to accurately determine whether someone is over a .08 blood or breath alcohol content.

Furthermore, most of the better trained officers will admit under cross examination that there is no correlation between some of the tests and “impairment” – I know most of the specialized Austin DWI task force officers will testify to that, because I’ve asked them under oath. 

To the extent that “science” is involved here at all, the only real measurement is between performance on the tests, and being above or below a certain BAC.  Which means there’s an inherent argument for defense lawyers in many DWI breath test refusal cases that the client’s performance on the field sobriety tests is not sufficient proof of intoxication.

(*** Every NHTSA Manual I’ve ever seen actually has this section in ALL CAPS AND BOLD – emphasizing that even NHTSA acknowledges how important this is.)

Practicing DWI defense in Austin, Texas, I concern myself primarily with the accuracy of the Intoxilyzer 5000, the machine Austin Police Department uses, not the Breathalyzer or Alcotest machines. But I ran across this article about pending litigation in New Jersey regarding use of the Alcotest 7110 in DWI cases, and wondered if anyone else had a similar reaction to the first paragraph:

Police departments in dozens of North Jersey communities could soon begin using a new machine to determine drunkenness among drivers, following a judge’s recommendation Wednesday that the device — although not entirely accurate — is fairly reliable.

“Fairly Reliable” – is that the standard now? 

I’m trying to see if I can track down the 268 page report that the retired judge submitted to the New Jersey Supreme Court. If and when I find it, I’ll have more later on this subject.

But from what I can tell from the newspaper reports, there appears to be at least an acknowledgment in the report that false high readings can be caused by variables in body temperature. This is also a known problem in some Intoxilyzer breath test results as well.

Grits for Breakfast comments on a new bill recently filed in the Texas Legislature that would increase the punishment for Intoxication Manslaughter from a second degree felony to a first degree felony, if the victim was an on duty police officer or firefighter.

In layperson terms, that means the maximum punishment would increase from 20 years in prison, to 99 years or life, again, if the victim was a police officer or firefighter.

The punishment for Intoxication Assault would increase from a third degree felony (max 10 years) to a second degree felony (20 years). Intoxication Assault means committing a DWI and causing serious bodily injury, but not death. Again, the increased penalty is for police and firefighters. From Grits’ piece:

If you think a police officer’s life is more important than every other citizen and want to exact maximum vengeance, which is all this bill accomplishes, fine … say so.

But to claim boosting sentences in these rare cases will reduce drunk driving is a politically motivated lie, plain and simple. It will do no such thing.

Some of the proof is in the bill itself. Why is it limited to on-duty police officers and firefighters? Is their life “worth less” when they take off the uniform?

One of the aggravating factors that can increase murder to a capital offense is the victim being an on duty fireman or police officer, but even that requires an element of intent. From Section 19.03 of the Texas Penal Code:

the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;

So “plain” murder becomes capital murder, when it is shown that the Defendant knew the victim was a police officer or fireman.

And that illustrates exactly what is wrong with this new piece of legislation. The Texas DWI statutes in Chapter 49 of the Penal Code specifically do away with the typical requirement in criminal cases that there be any intent. Section 49.11(a):

§ 49.11. Proof of Mental State Unnecessary.

(a) Notwithstanding Section 6.02(b), proof of a culpable mental state is not required for conviction of an offense under this chapter.

So we explicitly acknowledge that DWI and related offenses are crimes without intent…so what is the increased penalty for? The random chance that the victim is an on-duty police officer or fireman.

And how can it logically be argued that increasing the penalty for some categories of victims will reduce the rate of DWI, when there is no underlying intent to commit the crime in the first place?

Ran across a new blog for lawyers that I’m really looking forward to reading from now on. It’s published by Charles Perez and subtitled “Preparation and Presentation of Visual Exhibits at Trial or in Pre-Litigation”.

Having used Power Point in DWI trials before, I was interested in his post on “The (All Too Common) Power Point Presentation”, as well as his observation in another post that when it comes to technology in the courtroom, often less is more.

If you are an attorney practicing DWI defense on a regular basis then this blog should be added to your RSS. I know that here in Austin, the prosecutors have definitely stepped up the quality of their presentations to juries in DWI cases over the last several years.

DWI defense lawyers need to (at least) keep up with the competition.