Low Blood Alcohol Tests
In felony cases, the DA’s are accepting more cases with blood and breath results below .08. They are relying on a person’s performance on field sobriety tests and other video evidence; admission to drinking; drugs or prescription medication found in the car; admissions to use of drug or prescription medications; or therapeutic levels of prescription medications in the blood tests.
Although it may not be a recent trend, prosecutors are either lazy or misinformed about the law regarding judgments. This is a problem because a lot of judges tend to rely upon the prosecutors’ evaluation of the facts and the law regarding the prior convictions, and they let the prosecutors do whatever they want. Prosecutors can create felonies by alleging prior convictions with a void or invalid judgments. It is up to the defense lawyer to point these things out to the judge. If a trial judge finds a judgment that is invalid, the case may then be only a misdemeanor. The use of invalid judgments is becoming more frequent because a lot of jurisdictions have begun digitizing copies of the judgments and storing the PDFs on their computers. In some older cases, the clerks may destroy all the other information in the clerk’s file, including indictments. This practice began in about 1995, but the situation exists far back in time as well. Convictions from this era and before should be scrutinized carefully. In many instances, copies of the judgments may be obtained online. It is “ineffective assistance of counsel” (similar to malpractice) as a matter of law for a lawyer to plead someone guilty a felony if a void judgment is alleged in the indictment.
The Department of Public Safety has purchased and put in place a new breath test machine called the Intoxilyzer 9000. This machine is made by the same manufacturer that made the old intoxilyzer. Although the new machine has the capability to intercept and store a large amount of information about each breath test, Texas DPS has had Texas’s software on the machine programmed to store only the minimum information that will enable law enforcement to use it to obtain convictions in court. The new machine is programmed to operate the same as the old machine, but it will enable better remote maintenance of the machine over the internet. Thus, the supervisors can make fewer visits to the testing sites to maintain the machines. Less maintenance is not necessarily better maintenance, and for repair or recalibration, it can take longer for the supervisor to get to the machine. Thus, some invalid tests may be obtained once the electronic records display errors in the data. The data from each machine is kept in the DPS computers for every test on every machine in the State of Texas, and it is helpful to review it in many instances.
In blood draw cases the recent Supreme Court case of Missouri v. McNeely creates a powerful remedy of suppression of the blood draw based upon a denial of the Fourth Amendment right to be free from unreasonable warrantless searches and seizures. The case is particularly helpful in felony cases where the evidence of a blood test is most damaging to the defendant. In some of the felony cases, the police may not obtain search warrants. The McNeely case is applicable in populous areas as well as rural areas because the case involved a rural area.
Since the decision by the Court of Criminal Appeals of Texas in Hartman v. State, scientific evidence such as blood and breath testing and drug intoxication evaluation have elevated standards for admission into evidence. Scientific evidence is very powerful to juries, and before it is admitted the party offering it must show by clear and convincing evidence that it is reliable science that was applied correctly on the occasion in question. In modern DWI defense, scientific evidence for breath testing and blood testing are usually the standard type of evidence used in the trial. DWI defense is not simply legal. It is scientific as well. Today’s DWI lawyers must be trained in the science of DWI.
Having been a high school English teacher, I have found that the best way to learn something is to be able to teach it to someone else. Consequently, I co-founded Education Forensics, LLC with Dr. Thomas Pittman AS, Ph.D.. Education Forensics is a continuing legal education lab for lawyers. The CLE lab is no longer in operation. However, during the years of operation, we use state-of-the-art equipment to teach good scientific techniques that should be used in blood testing. I helped to train lawyers on the use of the very equipment that the prosecution’s labs use to test blood alcohol concentrations for court. It is important for a lawyer to know the science and the testing equipment in order to know what information to ask the lab to give you in order to evaluate their results. Only then will the lawyer know the correct questions to ask of the analyst in court. This knowledge is now essential to represent an individual in a DWI case where there is a blood test result.
I am very confident about my knowledge of the law and science that are involved in DWI cases. I have been able to keep blood test and breath test results out of court for reasons that are specific to the science involved. Not every breath test or blood test is bad, but a lot of them are. In fact, both the Bexar County Forensic Toxicology Lab and the Texas Department or Public Safety Forensic Toxicology Lab have some serious problems with their testing processes of both drugs and alcohol.
The importance of these efforts to get rid of a blood or breath test result is that if there is no BAC number in your case or if there is no drug identification, it changes the character of the case for purposes of trial and plea bargaining. It makes it harder for the State to win the case.
Blood testing for drugs and alcohol can be a fairly complex type of analytical chemistry. I have had some specific training in this science. I can read data that is supplied to me by a blood-testing lab, and I can evaluate it for errors or incompetence. I can also detect good work by a lab, and I know that when I see it. In particular, some labs do not use “controls” properly, or their equipment or their software malfunctions.