DWI Updates

man drinking alcohol with car keys on table

Bexar County DWI Updates

STANDARD DISCOVERY ORDERS IN BLOOD DRAW CASES – A HISTORY
There is now a Standard Discovery Order for the judge to sign in every DWI case involving a blood test. Make certain that your lawyer gets that order signed and that he receives the DVD’s from the Department of Public Safety Forensic Lab.

The most important information in any DWI blood draw case, aside from the officer’s reports of investigation, is the laboratory documentation concerning the analysis of the blood. The Bexar County Medical Examiner’s Forensic Toxicology Laboratory has not been as cooperative as it could be in producing the information for defense counsel. The same has been true with other district attorneys in the State. In Comal County, the District Attorney sued the trial judge by mandamus to prevent him from ordering disclosure of the laboratory information to defense counsel (this office). On appeal, the Third Court of Appeals of Texas sided with defense counsel (this office), and It ordered production of the documents.

These documents are the actual chromatographs from the analysis with all other supporting documentation along with the same information for all other specimens tested in that “batch” of tests. We ask for lab accreditation certificate along with audit information acquired during recertification which may demonstrate the lab’s failure to comply with its certification requirements. Validation studies of the techniques used by the lab in testing; copies of refrigeration logs, the source and quality control of all reagents, controls and mixtures or standards in the batch are also requested. The defense lawyer should want to obtain proficiency testing results for any person within the chain of custody of the sample tested; quality controls concerning the balance instruments, pipettes, and other lab equipment. There are many other relevant pieces of information which are necessary for a forensic analysis of the testing in a case.

In Bexar County, the District Attorney attempted to contest a standard discovery request by defense counsel (this office). The trial judge made the case an example for purposes of obtaining a standing discovery order for Bexar County. The District Attorney fought virtually every discovery request. For example, the assistant District Attorney alleged that court-ordered disclosure of lab audits by the accrediting agency was so onerous that, if ordered, the discovery task alone would effectively prohibit them from prosecuting DWI’s in this county. The assistant District Attorney fought the discovery of the documents of other individuals tested in the same batch as the defendant. It was later shown that the lab analyst in a case, because of a calibration error on a particular sample, was unable to analyze the sample. Additionally, the sample itself was marked “unsuitable for analysis.” The analyst, nevertheless, reported a result. The error in the calibration was not disclosed to the other defendants whose sample was affected by the calibration error. Therefore, batch data is required in fairness to the defense. The State’s argument against disclosure was, of course, hyperbole since most of the items requested are stored electronically. In the end, the trial court followed the Third Court of Appeals and ordered the production of all documents, ensuring fair trials for all defendants in Bexar County DWI’s.

However, in the course of the hearing defense counsel obtained (this office) rather dramatic disclosures of inefficiency or lack of record-keeping on the part of the Bexar County Lab. For example, the lab does not have any policy, protocol, or procedure concerning sample selection criteria in a case. The lab does not keep evaluation forms nor does it evaluate the quality of the work of the laboratory employees. The lab does not keep quality control records or charts for balances, pipettes or other equipment used in relation to the case. The lab represented that it does not keep employees training records, curriculum vitae or resumes for lab employees. The lab has no program for quality action or retraining in the event of a lab analyst’s mistakes or malfeasance. The lab does not report any underlying uncertainty measurement for the ultimate reported result, leaving the incorrect impression that the lafb makes no mistakes. The main lab analyst had not heard of “T Zero,” a fundamental chromatographic concept used to demonstrate the efficiency of the testing process. The main lab analyst alleged that the lab cannot reproduce a list of potential substances detected by mass spectroscopy because they only print the one substance from the list which they wish to be reported.

This office will continue to fight for the production of information which would enable a defendant to properly defend himself in court in a blood draw case, including independent lab testing of the sample, photographic tours of the State’s laboratory and photographic tours of the jail infirmary and refrigeration and storage units.

Digital Data

Both the Intoxilyzer and gas chromatograph are operated with the use of computers. The machines contain memory or metadata that records every task performed by or with the machine. Often the printed reports concerning the machines’ operation contain information that is at odds with the metadata. Sometimes the machine is programmed not to include certain data that could be helpful to the defendant. For example, with the breath test, there may have been machine errors or machine maintenance defects which are not reported, or in extreme cases, the technical supervisors may destroy or falsify data. With the gas chromatographs, the laboratories may choose not to report certain data in order to prevent perceived inconsistencies in the test results.

In each circumstance, the digital data will contain this information, and the lawyer may recover it and display it with the right software. In some instances, the data is so significant to the case that it is worth paying an expert witness to do this task and testify about it in court. The remedy would be to suppress the blood or breath test, a valuable tool in any DWI case.

Aggravated DWI

Effective September 1, 2011 the Texas Legislature amended Penal Code Section 49.04 to include a new offense of driving while intoxicated with an alcohol concentration of .15 or greater after arrest. Even though this is a first DWI it is a Class A misdemeanor with a punishment range of 1 year in jail and a $4000 fine because of the high breath or blood test results. This is offense not an enhancement to punishment such as a prior conviction for DWI. Not many of these cases have been tried. In most instances in Bexar County where blood was taken after the arrest, the District Attorney’s office is pleading this offense as an enhancement rather than a new offense. This occurs because the blood test results are not available for several weeks. The DA then tacks the results on to the original offense of DWI class B. As in any case, the plea bargaining process may be a way to avoid the aggravating factor.

License Suspension Hearings

Because of the “no refusal” policy license suspension hearings (ALR) are being confused regarding whether breath tests are coerced, blood draws are voluntary or coerced, or whether a breath test was given or attempted prior to the blood draw warrant being obtained. In the event that these circumstances arise, the blood or breath test may be inadmissible at trial. You should inform your lawyer if these things happen to you.

No Refusal

“No refusal” blood draws are done on each misdemeanor DWI in San Antonio and Bexar County. If an individual refuses to give a breath test, the officers will obtain a search warrant for blood. Under these circumstances, the individual will be required to give blood without his or her permission. Although in some instances in other counties blood draws are not done. That fact is probably the result of a temporary manpower shortage.

If an individual’s “consent” to a blood or breath test is obtained by reason of threats of violence by the officer (such as threats of strapping him to a chair or tazing him), or if he is threatened by the officer with an involuntary blood draw by virtue of a search warrant, the consent is not voluntary. It may be challenged under the Erdman decision.

New In-home Breath Alcohol Monitoring

Many companies provide in-home alcohol monitoring devices. However, SmartStart® now has a device that is smaller than a deck of cards that uses an APP on your cell phone to take your picture when you blow into the device. It may be purchased from them for $99 (November, 2019) and there is a monthly monitoring fee. On the APP you may list the persons who you wish to have copies of your test results.

In-home breath alcohol monitoring devices may be used in lieu of an ignition interlock. However, in cases of DWI second offense and felony DWI, courts in Bexar County require that the defendant file an affidavit that he/she does not own or drive a vehicle. In some courts the judges will allow a substitution of this device for an ignition interlock. It is about the same cost, but it requires a dedicated phone line.

In DWI second offenses and felony cases it is a statutory condition of bail that the individual have an ignition interlock (the blow to start device) on his car while the case is pending. For many persons this device is not only inconvenient, but it also may create problems for those who use a car in their employment. Many employers consider this device a hazard and an invitation to liability should the employee be involved in any accident. Most insurance carriers for businesses will not insure an employee who has this device in the company car or a car used in the course of business for the company it insures. Therefore, some ignition interlock companies such as SmartStart have introduced a new device known as the In-Home SmartStart. The in home device has a camera which takes a picture of the individual as he blows into it. The person who has this in home device must blow into it three times per day. It costs approximately $100 per month. Please contact your purveyor of the device for terms and conditions.

Administrative License Hearings:

The procedural rules of the hearings change by reason of case law or adoption of new standards by the agency. A recent and important change now requires the defendant to subpoena the breath testing officer if you wish to examine him on the issues concerning the breath test in the case. The defendant may no longer rely upon the Department to bring this witness in to the hearing when the BTO is also the arresting officer.

Take Responsibility Plea:

The Bexar County the District Attorney’s office is allowing its misdemeanor prosecutors to plea bargain. However, the “plea bargain” is very limited, and it is called the “take responsibility plea.” To accept the plea bargain you may be able to plead to the offense of “obstruction of a highway with intoxication.” There is no such offense in the penal code. Nevertheless, you must waive any and all rights concerning your case, including the right to challenge that offense. You must agree to the admission of all the evidence in your DWI case in any subsequent trial should you be arrested again. As your punishment, you must perform all the conditions of a DWI probation with no early termination, and you must have an ignition interlock device in your car for half the term of the probation. Defendants who had an accident, no matter how slight, during the original DWI will not be allowed to participate in this plea offer. Defendants who are not cooperative with the police or who are disrespectful, resistant or rude will not be allowed to participate. As a result of the plea bargain, the defendant will not be convicted of DWI, and he will not face an administrative financial penalty in order to keep his license with the Department of Public Safety. Expunction of the arrest for DWI and conviction for obstruction of a highway will NOT be allowed.

The “obstruction of a highway” plea is fairly limited now because the Legislature created a new sentencing option is first offender DWIs where the blood alcohol level is below .15. In these cases the person is given “deferred adjudication” instead of probation. It means that the person is NOT found guilty by the court at the plea hearing. The supervision conditions and period of supervision is the same as probation, but after one year the case is dismissed. There is no driver license suspension or administrative penalty.

DPS Administrative Penalties:

As of September 1, 2019 there are no longer any administrative penalties for DWI – even if those penalties were actually assessed on you by the Department prior to that date. DON’T PAY THEM!

Pre-trial Procedures:

Pursuant to the Ford case the courts in Bexar County may no longer require the State to bring the officer(s) into the hearing. If the officer is not present, the judge will allow the prosecutor to introduce the police report in support of its probable cause. Ford hearings must be agreed by the parties to be heard without live testimony. Additionally, there appears to be no reason why the defense may not bring its own countervailing affidavits into the Ford hearing.

Therefore, similar to the ALR hearing, it is incumbent upon the defense to file a motion to suppress and subpoena the officer(s) to the motion to suppress hearing if he wishes to have live testimony for review of the facts surrounding the arrest.

Expunctions

The law concerning expunctions has been interpreted by the Supreme Court to require that, even in misdemeanor cases, the individual must wait for the 2-year statute of limitations to pass before he may petition for an expunction. The Legislature attempted to amend the statute to allow a defendant to seek expunction right away in a misdemeanor case. The language was agreed upon by legislators after a full review by the defense and prosecutor bars. Nevertheless, Governor Rick Perry inexplicably vetoed this legislation at the last minute. Therefore, the unjustly accused must now wait two years for justice to be granted in his misdemeanor case. However, if you have been acquitted by a jury verdict of “not guilty” you are entitled to a free expunction within 30 days of the verdict.