The Will Of The People

Here’s the text of the resolution, along with my running commentary , on last week’s City Council agenda regarding the possibility of Austin police officers - instead of registered nurses or otherwise medically qualified and trained personnel - collecting blood specimens from DWI suspects:

WHEREAS, the State of Texas allows peace officers to collect breath and blood specimens as evidence for prosecuting people suspected of operating a motor vehicle while intoxicated through Texas Transportation Code §724.012, and Texas Code of Criminal Procedure Article 18.01; and

Since there’s already an implied consent statute, and a law governing search warrants…

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Austin, Texas and the DWI / No Refusal Weekend

Several folks – prosecutors and defense lawyers – that I see on a regular basis in the Travis County Courthouse have asked me why I didn’t blog about the No Refusal Weekend that started on Halloween. (Short version: Austin Police Chief Art Acevedo announced that anyone who was arrested for DWI and refused to take a breath test would be forced to take a blood test.)

I have written frequently about blood test DWI cases and the increasingly used police tactic – both in Texas and across the U.S. - of forcibly taking blood from suspects who refuse a breath sample.

But posting “advice” in advance of an announced “No Refusal” weekend isn’t – how do I say this? – it just isn’t my style.

First, I wouldn’t know how to do it without sounding like I was giving advice on “how to get away with DWI”. That would be (a) unethical – a DWI lawyer is still an officer of the court, and (b) utterly useless to boot – I doubt people read my blog right before deciding to go to Sixth Street.

 

I was interviewed by an Austin TV station for a story about the “No Refusal Weekend” and was asked the obligatory “What would you advise someone who was arrested this weekend? Should they take the breath test?” They chose to air my comment on a different aspect of the story rather than my standard “Get a Cab” response to that question. (Off topic here, but that fifteen second clip convinced me that the camera adds more than ten pounds, but I digress…)

 

Second, there’s not a one-size-fits-all answer to this question. Sure the gut-instinct response of any DWI lawyer is going to be “Never take the Breath Test!” – but if you’ve really (and I mean really really) only had one beer or glass of wine four or five hours ago… is that necessarily the best advice? Couldn’t you potentially save your license and win the DWI in that situation by taking the test? It’s rare – well under 10% of the time in breath test cases - but I certainly have represented many people who blew under .08.

 

Third, there’s a difference between writing about the legally and medically dubious policy of seeking warrants to forcibly remove blood from DWI suspects and broadcasting a specific warning that law enforcement is literally out for blood tonight. If I wrote a RICO blog I wouldn’t use it to broadcast warnings to either Tony Soprano or mafiosos in general that the DEA and FBI were raiding Satriale’s Pork Store tonight.

 

Frankly I think that APD is using these highly publicized “No Refusal” weekends in part to encourage people to think about taking cabs and using designated drivers on a regular basis – and from a purely public policy standpoint I understand why they consider that to be part of their job. It’s just not part of mine.

Texas Judge Rules on Police Blood Draws in DWI Cases

Even as Austin Police Chief Art Acevedo prepares to ‘train’ his officers to forcibly take blood from Travis County DWI suspects, a judge in Tarrant County has ruled that prosecutors may not use blood results from forcible blood draws done by improperly trained cops.

And, as of now, that appears to be all police officers. 

In my previous post, I predicted that Acevedo’s attempts to ‘train’ his police officers to take blood from DWI suspects that refuse a breath test would run into some legal problems: primarily that they wouldn’t meet the legal standards laid out in Texas Transportation Code Section 724.017 and would therefore be subject to a motion to suppress the test results.

As Robert Guest points out:

These cops had some EMT training. However, the law states that EMTs aren't qualified.

Police should not be drawing blood.

First, they have a vested interest in convicting the defendant, not attending to medical needs.

Second, if the cop actually kills or injures someone they have near complete immunity.

Finally, State law includes breath, blood, and urine for evidence of intoxication. What if the police start getting breath/urine warrants?

Ok. So the last one is not likely (yet). However, we don't want police playing nurse anymore than we want nurses driving the SWAT tank.

In the comments to the local Austin story about “No Refusal Weekends” many local citizens complained that the police would open themselves to civil liability if Acevedo’s plan was implemented. Actually, I think Guest is right: it would be difficult to mount a successful civil lawsuit.

But while I love the nurses & SWAT tanks line, I’m not as confident as he is that forced urine tests are so impossible. Painful? Orwellian? Perhaps.

But then again, they could be coming to a city near you

Austin Reacts To Forced Blood Draws In DWI Cases

Austin is the only Austin in Texas. Or, as the saying goes, “When you leave Austin, you enter Texas”.

And Austin has reacted – albeit in a non-statistically significant way – to the news that our Police Chief announced that he intends to stick it to every DWI arrestee that refuses a breath sample. As in stick a needle in their arm and draw blood.

And furthermore, he’s going to have police officers doing the sticking. Yes, again, with the needle. They’ll be trained though. They’re not trained now – but he’ll get ‘em up to speed.

KXAN ran a story on it, and included a link in their webpage. The type of webpage that allows comments. And Austin commented.

At last count, there were over 50 commenters, and here’s how the pros and cons ran:

4 folks thought it was a great idea.

1 person I categorized as ‘neutral’ although, that’s generous because what he said was:

Don't see a problem, except Officers should not be drawing the blood. The nurse at the jail can do it. Taking blood is a risky thing, and only a trained professional should do it. This not what cops should be doing.

Mr. Neutral didn’t read the story fully, because the story is about cops sticking the needle in. At any rate, I counted him as neutral because on some level he didn’t ‘see a problem’ with it.

The overwhelming majority said it was a bad idea. 46 commenters – out of 51 total – were against it.

A smattering of the con comments?

  1. This guy [Acevedo] has got to go.
  2. Maybe the cops will also perform surgery on accident victims. That would save a lot of money on doctors.
  3. We all know government agencies want an inch but take 100 miles. APD's intentions may seem like a good idea, but eventually leads to more government control and less individual rights. Are we are all guilty until proven innocent?
  4. What's next body cavity searches at a traffic stop?
  5. What happened to the Bill of Rights?
  6. This is the exact thing that our forefathers sought to protect us from.
  7. This is insane. This kind of precedent can lead to a very scary future.

My personal favorite? It’s a tie:

  1. I dont drink, but I don’t care for this idea. I hate blood tests more than I hate beets.
  2. Nothing scarier than a redneck cop with a mouth full of Copenhagen and a needle.

On a more serious note, KXAN has picked up on this ‘vibe’ with their story today about ‘Groups react to APD’s proposal’ and will be broadcasting a follow up story in less than 45 minutes. Looking forward to it.

Forced Blood Draws Coming To Austin in DWI Cases

KXAN ran a story tonight about Austin Chief of Police Art Acevedo’s plan to do away with breath test refusals in Austin DWI cases:

"My intent in the future is to make it so there is no such thing as a refusal. You can refuse all you want, but we are going to aggressively seek search warrants," said Acevedo.
           
The search warrant would give an officer the right to stick a needle in your arm to get a blood alcohol level, replacing the job of a jail nurse.
           
"It's about saving money for the taxpayer. If I have an officer that's already involved in a case, they're already going to be going to court. Come to find out, the defense attorneys around here are telling people not to give them a test," said Acevedo.

Ouch – literally.  My friend and fellow Austin DWI lawyer Ken Gibson is quoted in the story as well:

"Folks that are exercising their right shouldn't be afraid, that by doing so, 'Bubba Police Officer' may stick them in the arm," said Austin DWI attorney Ken Gibson.
           
Gibson said police officers shouldn't play nurse as well.
           
"The officer's going to have a liability if they don't do it right. The city's going to have a liability if they don't do it right. In today's times of AIDS and hepatitis and everything else, police officers don't want to be out sticking needles in people," said Gibson.

Kenny’s got a point.

First, there’s no way that APD is going to be able to train police officers to be physicians, chemists, registered professional nurses or licensed vocational nurses. So that means Acevedo is going to have to find a way to train them to be ‘qualified technicians’ – the only other category of person allowed to take blood in a DWI case by statute. (See Texas Transportation Code 724.017.)

The law specifically says that emergency medical personnel do not meet the definition of ‘qualified technicians’ so who knows what training Acevedo thinks he can put his officers through to get them to meet the requirements of the statute. Guess we’ll have to wait and see.

Second, take a look at the last line of 724.017 (b):

This subsection does not relieve a person from liability for negligence in the taking of a blood specimen.

Acevedo knows a thing or two about civil lawsuits against police departments, so he might want to make sure he knows what he’s getting into on this one.

[I guess it could be worse…]

Update: Below the Fold

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On Forced Specimens in DWI Cases

I’ve written before on forced blood draws, and indeed, in Austin, some DWI suspects are being forced to give blood specimens. After an initial refusal to take a breath or blood test, the officer submits a warrant to have the defendant’s blood forcibly drawn. 

This is one of the main reasons that the Travis County Jail went to 24 hour magistration. Since most DWI arrests are after midnight – go figure – such a policy didn’t make any sense until they made sure they had a judge to rubber stamp the warrants.

But this news article takes it to a new level:

A lawsuit over the forced catheterization of a man who was arrested for investigation of drunken driving has been settled for $15,000.

The settlement reached Friday with Matthew Clifford Arthur, 37, over his treatment following an arrest in November 2005 did not include any admission of wrongdoing, Assistant Attorney General Gary E. Andrews said Monday. While the settlement covers Cowlitz County and county officials, the state will pay the full cost, he added.

"This turned out to be a better way to go than to spend more money litigating it," Andrews said.

Arthur filed suit last month, accusing two Cowlitz County sheriff's deputies and a state corrections officer of forcing him to undergo catheterization and a blood draw when he refused to provide urine and blood samples at St. John's Medical Center in Longview following a traffic stop.

Arthur was required to undergo screening for intoxicants upon request under a probation agreement at the time, but his lawyer, Kevin G. Blondin, said the procedure was painful, invasive and unnecessary.

"He was held down kicking and screaming while they shoved a catheter into his penis," Blondin said.

Instead, Arthur should have been taken to jail when he refused to give the fluid samples, the lawyer said.

Forced catheterization. A couple of comments.

First, state entities do not, at least typically, settle lawsuits “just to make them go away” or because it will be cheaper. I don’t have any inside facts here, but I think it’s reasonable to guess that ‘they’ decided that a jury wouldn’t like this, and that they stood to lose a lot more if they went to trial. That’s how civil settlements work.

Second, this guy was on probation. So he deserved it right? Even consuming alcohol, whether you are operating a vehicle or not, is a probation violation – at least in Texas. But many times, at least if it’s a DWI probation in Austin, the judge will make “submit to the taking of a breath or blood specimen upon request of police or probation officer” a condition. So if it’s necessary to prove a probation violation, his initial refusal will do the trick.

Third… is this what we’ve come to? Forced catheterization? It barely needs commenting on. If you’re not immediately, viscerally opposed to this, I can’t imagine how my words could change your mind.

I’m not a big fan of slippery slope arguments, but before you start supporting forced blood draws in Texas DWI cases, you really might want to think where this whole thing is going.

Why DWI Lawyers Should Read Blogs

One of the things I love about the criminal defense/DWI blogosophere is that it is a great resource for practicing lawyers. Reading other attorneys’ thoughts often helps me in my day to day practice.

Two quick examples:

From Robert Guest on DWI and Jury Selection:

As part of the jury selection process I often ask potential jurors if they have ever driven after drinking. The vast majority of potential jurors answer yes.

The truth about DWI is that most jurors have committed DWI in their past but did not get arrested. They only difference between them and the defendant is luck.

When I inquire into the reason they chose to drink and drive most will say they were "young and stupid." I often wonder at why jurors are so ready to ruin the lives of defendants who are on trial for DWI, when they have committed the same crime themselves.

I’m not sure I would ask the “why” follow up question in Voir Dire, but that’s a matter of personal style. The point is that by reading Robert’s blog, I’ve added a question to my repertoire.

It’s simple, to the point, and something the DWI lawyer wants and needs to know. I’ve had my own ways (in the past) of inquiring about this subject matter, but because of Robert’s post, I’m going to adopt his way of doing it. It’s better than how I tried to illicit the information, and I’m not afraid to admit it. Read, learn, and get better. (I can even admit that his method is so much simpler and better than mine has been that I’m a little embarrassed.)

One general rule for jury selection is that you shouldn’t be asking “raise your hand if …” type questions, you should be asking questions that force potential jurors to respond substantively, with their own thoughts and ideas. But this is a good example of an exception to the general rule.

Example #2 comes from Mark Bennett, but some background before we get to his specific cross examination question. 

I think one of the most difficult tasks for a DWI lawyer is to successfully defend a breath or blood test case where the client’s BAC (Blood or Breath Alcohol content) comes back as over .08. Briefly, there are two basic defenses: (1) the machine is an untrustworthy piece of junk, or (2) the defendant’s BAC at the time of driving was lower than at the time of the test

The problem for the DWI defense attorney is that both of these are highly technical, i.e. scientific based defenses… and we went to law school. Few of us have graduate degrees in Science. Or undergraduate degrees, for that matter. Personally, I received a Bachelor of ‘Science’ in Psychology, after relatively brief and/or longer stops in the Departments of Computer Science, Theater Arts, and English, in that order. (OK, it took me a while to figure out what I wanted to do – and even then I changed my mind - although you can certainly make the case that my ‘Theater’ training still comes in handy.)

But generally speaking, the person testifying for the State knows more about the Intoxilyzer 5000 than we do. In Texas DWI cases, that person is the “Technical Supervisor’. Their job is essentially to come and testify that defense #1 is out the window, because the Intoxilyzer is God’s gift to machines, and that while defense #2 is theoretically possible, it doesn’t apply in your client’s DWI because blah blah blah (insert mumbo jumbo here, and the reasons seem to change to fit the facts of your particular case).

Here’s what I learned from Mark, in his post on “Dealing with the State’s Expert: One Last Question”:

If you get a chance to talk to the State's expert witness before trial (if you're allowed to, try; the best experts often see themselves as neutral, and will explain their conclusions to you), your last question should be: "What book should I read to learn about this topic myself." Get the book; it'll be a learned treatise that you can mine for cross-examination material.

Yes, it’s not technically cross examination; it’s an informal question most likely asked in whatever room the prosecutors are holed up in, and not in a pretrial or trial setting.

But here’s how it applies to DWI cases: it’s a great question to ask at the ALR driver’s license revocation hearing. This is often held before the criminal case, and it’s an absolute goldmine for defense lawyers. 

Why not use your ALR hearing last question to the technical supervisor to ask his question? About books, or magazine articles and the like. Worst case scenario is that the expert limits his knowledge of ‘learned treatises’ on the subject to a bunch of material that only backs up his side of the story.

At the very least, you can show that the State’s expert relies only on material that favors his conclusions. Or, in the alternative, that the DWI technical supervisor relies on scientific publications that help your client.

Either way, you learn more, and your clients (present and future) benefit.

Incorrect Blood Test Results Lead to 'Reluctant' DWI Dismissal

Lawrence Taylor writes about an interesting dismissal in one of his California DUI cases, although it could have happened in a Texas DWI case just as well.

His client’s blood test results came back from the lab well over the .08 limit, in fact a .15 blood alcohol concentration.

According to the defendant, his body weight, his drinking pattern, his likely stomach contents etc., the blood test had to be wrong. Or, the result had to be wrong for him to be innocent.

So they had the blood sample tested for the presence and amount of preservative and anticoagulant, the absence or low levels of which could cause false high results. Alas, no problems there – the result still looked admissible, and no clear line of attack for the defense.

With the two most likely explanations of false high blood test results out the window, the next most likely explanation (of innocence anyway) became that the blood being tested was not the blood drawn from the client

[See also Mark Bennett’s blog for a related discussion of the intersection of scientific principle with criminal defense lawyering in Occam’s Razor and Bennett’s Chainsaw. For those that know the second principle, the phrase ‘DWI dismissal’ in the title of the post will be a hint that Mark’s ‘most likely explanation of the evidence’ theory is not in play here.]

Checking the blood type of the sample against the blood type of the DWI defendant is the easiest, or perhaps cheapest method of proving that the State has the wrong blood, although it is not foolproof. In Taylor’s case they checked and… it was the same blood type. It’s not discussed in the post, but as long as we are talking about math and science, it’s worth noting that principles of conditional probability and specifically Bayes’ Theorem tells us this now makes it more likely that it was indeed the client’s blood. But it’s not conclusive by any means. It was Type O, which puts it at the most common blood type, about 40% of the population.

Now, I’ve seen Lawrence speak at various seminars over the years, and I think he is to say the least an impressive DWI lawyer. So the next step in the process doesn’t surprise me:

We decided to try something different, something that, to our knowledge, had not been done before in any DUI case. We had blood taken from our client and, with a portion of the remaining sample from the LAPD lab, shipped to a laboratory in Oklahoma that specialized in DNA testing.

A month or so later the report came in: the blood tested by LAPD was conclusively not that of our client.

It’s a great post. DWI lawyers in Texas and everywhere else should read it. He goes on to talk about chain of custody, gas chromatograph instruments, and how it’s likely that other DUI defendants in the same ‘batch’ as his client also probably had their blood samples misidentified with them. Some of them ended up with lower results than they really had, some higher. (And unfortunately, we all know that most of them couldn’t afford this type of sleuthing for justice.)

So what’s the ending here? Well, this line, really a throwaway line in light of the substance of the post jumped out at me:

The prosecutor in the case initially refused to accept these results. But after we proved that the comparison blood had come from our client and after LAPD checked the blood themselves, he reluctantly dismissed all criminal charges. [Emphasis Added]

Yes. When the State is pressured to convict all who come before it on DWI charges, prosecutors can become downright reluctant to dismiss the case, even in light of these facts. Thankfully in this case, they took their duty as prosecutors seriously.

One last note: I thought about titling this post ‘Incorrect Blood’ Test Results… but then, that would have given away the punchline.

Presumption of Innocence? Not For Some Texas Legislators...

From today’s Austin American Statesman article about an unsuccessful attempt to reverse the presumption of innocence for DWI cases in Texas:

A third proposal would have simplified the method used for determining a person's blood-alcohol content at the time he or she was driving.

The proposal, House Bill 915, by Rep. Jimmie Don Aycock, R-Killeen, would have specified that if a driver's blood-alcohol content is higher than the legal limit of 0.08 within 90 minutes of being pulled over, the driver would be considered intoxicated.

"Right now, the problem is you have to prove they were intoxicated while driving," Aycock said. [Emphasis Mine]

So it’s a problem that the State has to meet their burden of proving guilt beyond all reasonable doubt? A problem that can be fixed with some legislation?

Fortunately, this bill was voted down by the House Law Enforcement Committee. I’ve written previously about the “Rising BAC defense” that is available to some DWI defendants in Texas. Being over .08 at the time of the breath test does not necessarily mean you were over .08 at the time of driving.

But some lawmakers objected to “forcing” the State to prove their case, so they attempted to create a presumption that any breath test within 90 minutes of driving would automatically do the trick.

David Gonzalez, counsel for TCDLA and also a local Austin DWI lawyer hit the nail on the head when he…

…said the bill would create a presumption of guilt.

"What that really means is, we need to make it easy for convictions, and when science and other things get in the way, let's disregard them," Gonzalez said.

Politicians can’t change the science of breath or blood alcohol testing…and Texans should continue to object to illogical manipulations of DWI statutes.

DWI and the "While Defense"

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.]

Forced Blood Draws in Austin DWI Cases

Today’s Austin American-Statesman article “Warrants for blood tests in DWI cases increasing” focuses on a growing trend in Travis County Driving While Intoxicated cases.

From small Texas towns to big cities such as Austin and Fort Worth, the practice of using search warrants — traditionally reserved for entering homes and businesses or seizing private property — to obtain the blood of drunken driving suspects is sweeping the state.

In recent months, some law enforcement agencies have begun taking blood in cases in which a suspect is thought to have caused an accident and refused to take a Breathalyzer exam. Others have started doing it when drivers have previous DWI convictions.

Austin Police Department started this practice sometime in the middle of last year:

Austin police Lt. Craig Cannon said officials in the department's highway enforcement division began looking into the practice last year and started using it a couple of weeks later in certain drunken driving cases.

The handful of officers at the department who primarily handle DWI enforcement might seek search warrants for cases in which drivers are suspected of felony drunken driving, which would include driving with children in the car or instances in which a person has been convicted of DWI in the past five years and when drivers caused an accident. Supervisors must sign off on the warrants.

Suspects' blood is drawn by a nurse at the Travis County Jail and taken to the Austin police forensic center, where it is tested. Results are quickly sent back to the DWI team and included in information sent to prosecutors.

I have to agree with David Frank, a fellow Austin DWI lawyer who is quoted as saying:

It seems like an overly invasive procedure to obtain evidence. The invasion into the body is a much more significant invasion than what we usually think of in terms of searching for evidence.

Since this warrant procedure for forcing blood draws from DWI suspects who choose to exercise their right to refuse a breath test is fairly new, I think it’s fair to say that we will be seeing more and more of these cases litigated in the appellate courts in the near future.