September 2007

I was waiting in Travis County Court #7 this morning to talk to the judge about a post conviction occupational driver’s license. Meanwhile, a pretrial motion to suppress had already started.

From what I could gather, the officer had seen a car pulled off on the side of the road. The defense attorney was doing a good job pointing out through cross examination that no traffic violations had been witnessed.

Apparently, the State was attempting to justify the initial detention through the ‘community caretaking’ exception. Community caretaking is shorthand for the legal concept in Texas that the police can legally detain you ‘for your own good’. Of course, since it’s only litigated in the criminal context, that means they ended up arresting you for one thing or another, so how much good it ended up doing you is questionable at best.

So the officer had pulled over ‘to investigate,’ I suppose, but I had missed that part of the testimony, when this little gem came up:

  • Defense attorney: Was there anything unsafe about stopping in that neighborhood?
  • Officer: Well, any area in Austin can be unsafe.
  • Defense attorney: Do you consider that to be a high crime area?
  • Officer: All areas in Austin can be ‘high crime’.

Exactly! There’s no place in Austin, in Texas, or really in the world that an officer can’t characterize as “could be a high crime neighborhood’.

So, when an arresting officer testifies that “part of the reason I detained him was to investigate due to it being a high crime area,’ appellate courts need to stop pretending that adds any logical or legal basis for a stop or a detention. Is this really how low we want our standards to sink?

Like most of the affronts to our constitution, no one cares about this sort of erosion of civil rights… until they are arrested for DWI…

Kevin Smith of Wichita, Kansas writes about his ‘Matlock Moment’ in a recent DWI jury trial.

His client’s situation was familiar to DWI lawyers everywhere. The defendant looked fine when walking, talking, and interacting with the officer except… when it came to doing those Field Sobriety Tests.

To win a DWI case, the defense lawyer must often come up with a plausible explanation of why the client does poorly on the agility tests, other than intoxication or impairment. In Kevin’s case, his female client was wearing 2 inch high heel shoes.

Kevin’s description of the key moment in trial:

The "not guilty" verdict came down to a question.

Before I reveal the question it will help to picture the officer first. He’s about 6’4", roughly 250 lbs. (with a sizable belly to boot), bald, and very tough looking.

So here’s the question: "You probably would have done as bad on the field tests had you also been wearing two-inch high heels, wouldn’t you?"

He responded, "Maybe, but I can’t tell you for sure since I’ve never worn high heels."

Excellent example of distilling the defense case down for the jurors to ‘get it’. 

And, it’s an example of that rare type of cross examination question: you don’t know the answer, but you don’t care how the officer responds. He can either – as in this case – answer truthfully, which helps your client; or he can hem and haw and sound unreasonable. I’d almost prefer to hear the officer’s explanation of why high heels wouldn’t affect his performance on the FSTs. The jury will still get the point.

Kevin doesn’t say whether he had the officer read this portion of the NHTSA DWI Manual to the jury:

The original research indicated that individuals over 65 years of age, back, leg or inner ear problems had difficulty performing this test. Individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes. [DWI Detection and Standardized Field Sobriety Testing, 2006 NHTSA Manual, VIII-11. Emphasis Mine]

Doesn’t sound like this officer offered Kevin’s client the opportunity to take off her shoes, and that can be an important point to put in front of the jury.

Of course, when you get an answer as good for the defense as Kevin got, it may not be necessary.

Public Defender Dude on “Larry Craig and Police Officer Opinion Testimony”:

One of the areas that has held public fascination in the Larry Craig situation is the vagueness of the charges and allegations against him. Put simply – what did he actually do wrong – tapping a foot and reaching with his hand? He clearly did not break any established and obvious laws by those actions… So what he did had to be interpreted by a police officer as being illegal, because it is not illegal on its face.

This brings up an area that I’ve so often railed against – police officer opinion testimony (or, as I like to put it, "my opinion is that you’re guilty."). I think that this opinion testimony, whether in the context of gangs (giving an opinion that any sundry crime was committed for the benefit of a street gang so as to make minor crimes strikes, or average crimes life sentences), or drugs (giving the opinion that whatever amount of drugs that someone possessed was obviously possessed for purposes of sale), or any other area.

Prosecutors love this stuff. It’s like 2 closing arguments in their case. They get a police officer who gets to get up on the stand and essentially say "I’ve investigated thousands of cases, and in my opinion this person is guilty, because his case falls in with all these other ones in this manner."

It is highly prejudicial, and in many cases, highly meaningless.

It struck me when I read his post that PD Dude is also accurately describing so many officers’ testimony in DWI cases, as it relates to the defendant’s performance on the Field Sobriety Tests.

“In my opinion, he should have done better on these agility tests, and because he didn’t, in my opinion he’s guilty of DWI.”

DWI lawyers must point out that the officer’s opinion doesn’t factor in

  • Initial nervousness for being pulled over for a traffic violation
  • Increased nervousness now that you know you’re being investigated for DWI
  • You might be non-athletic, or perhaps even a klutz
  • Or that Field Sobriety Tests don’t measure a person’s normal abilities to do anything

As PD Dude says, you may just be able to show that the police officer’s opinion is “highly meaningless”.

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.

If a get a temporary suspension of my driver’s license in Texas can I get a permit for school? [from a recent Google query]

I’m not 100% sure what is meant by ‘a temporary suspension’ but let me piece this together if I can.

Sounds like the question may refer to being arrested for DWI in Texas, having your driver’s license confiscated (not returned after your release from jail) and being issued a piece of paper that says ‘Notice of Suspension’ and ‘Temporary Driver’s License’. 

The answer to the question, in that case is this: if you qualify for an occupational driver’s license, then your DWI lawyer should include in the petition that you be allowed to drive not only ‘to and from work’ (i.e., your occupation) but also ‘to and from school’. You will probably need to provide your attorney with some form of proof that you are in school, such as an official list of the classes that you are in this semester.

Your lawyer will then also need to know the hours that you will need to drive for classes, studying at the library, etc. The default amount of time to drive per day is usually 4 hours, but it’s not unusual to get an extension of that up to 12 hours a day, which is the statutory maximum.

DWI lawyers tend to refer to ‘occupational licenses’ and that is indeed their official name. But I prefer to call it an ‘essential needs’ license, because you can be granted the right to drive to work, school, church, groceries, etc. Everywhere you need to go. Just not everywhere you want to go 24/7.

Decatur Texas defense attorney Barry Green left a comment on a post sometime back, and I meant to publish it, as soon as I got around to correcting my error. Done – although, it took a reminder from his blog for me to finally get around to doing it.

In his comment he politely points out that my knee-jerk reaction to a reader’s question (“Should he plead not guilty or try for deferred adjudication?”) was “a bit unclear” because she was talking about a Felony DWI with Child Passenger charge, not a plain old ordinary first time DWI. Turns out Barry was being kind in his comment.

Love your blog but I think something was a bit unclear here. Unless I’m wrong, CCP 42.12 Sec.5 still has the loophole to allow for deferred adjudication for the offense of DWI w/ Child. (Certainly, that option will be legislatively abolished one of these days.) But, for now, I can still get that offer on occasion up here in North Texas.

Since the question dealt specifically with State Jail Felony charge of DWI with Child Passenger, my answer was flat wrong. The specific question in the post was:

Should he plead not guilty or try for deferred adjudication?

My original answer:

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.

You can indeed get deferred adjudication for that charge, although I’m sure it was a legislative mistake. The section prohibiting deferreds for DWI charges is in the Code of Criminal Procedure, while the ‘new’ section for State Jail DWI is in the Penal Code. When they added the new offense, they forgot to go back and prohibit deferreds in the appropriate section, so it is indeed possible.

Part of my error is that when I hear that question (“Plead Not Guilty or Go For Deferred?”) in other non-DWI contexts, and I usually explain that there are other options besides (a) going to full blown jury trial and (b) ‘settling’ for deferred adjudication.

One day, I’ll write a post about why it’s good there’s no deferred adjudication for DWI. (Short version: deferred’s not always that good of an option, so it encourages trying cases.)

In the meantime, thanks for the complements Barry, you sent quite a few readers this way; over 100 in fact, and everyone else out there, please feel free to tell me when I get something wrong.