Prosecutors seem to be interested in becoming creative. Recently, especially in felony cases, the DA's are accepting more cases with blood and breath results below .08. They are relying on 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. Legally, these things are rarely relevant, but for some reason the prosecutors are unaware of the case law or they are ignoring it. Sadly, many attorneys, even experienced ones, are not aware of the case law on this point, and they fail to address it in their trials. Thus, the DA's are encouraged to try to slip by the lawyers with this type of evidence.
Although it may not be a recent trend, prosecutors are either lazy or misinformed about the law regarding judgments. This situation exists because a lot of judges don't really care about the law or don't know it either, and they let the prosecutors do whatever they want. Prosecutors create felonies by alleging prior convictions with void or invalid judgments. Once the trial court finds a judgment invalid, the case becomes a misdemeanor. Use of invalid judgments is becoming more frequent because a lot of jurisdictions have begun digitizing the judgments, and destroying all the other information in the clerk's file. 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 as a matter of law for a lawyer to plead someone guilty of a felony if a void judgment is alleged.
In breath test cases there is an emerging area of defense using the "Black Mamba" database of the intoxilyzers in this State. The database exposes many mechanical and maintenance errors in these machines. It also exposes a great deal of what is termed "Brady" information which, if disclosed, will assist the defense in cross examination or actually demonstrate innocence. If you are interested, for now the database is public at DWI-FISS.com. Access requires a small membership fee.
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 most of the felony cases, the police do not obtain search warrants. This case is applicable in populous areas as well as rural areas because the McNeely 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 which was applied correctly on the occasion in question. In modern DWI defense scientific evidence for breath testing a 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, with Dr. Thomas Pittman, PhD I co-founded Education Forensics, LLC. Education Forensics is a training lab for lawyers. We use state-of-the-art equipment to teach good scientific techniques which should be used in blood testing. We train lawyers on the use of the very equipment that the prosecution's labs use to test blood alcohol concentrations for court. It is also important 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.
Changes from the Supreme Court could make it legal for Texas police to force you to take a breathalyzer test without a warrant. While current law allows for Texans to decline a breath test, this new Supreme Court ruling gives Texas the legislative right to make refusal of a breath test a crime.As of right now, nothing has changed but the San Antonio police department says they are examining if they plan to change their department’s policy.
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. Additionally, some breath test machines have never been calibrated, and I have had a number of breath test results thrown out. 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 which 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. Lately, most of what I see is not good work because these laboratories are not using proper techniques, and they are using “unvalidated methods.” You can Google that phrase, and it will give you an idea what I am talking about. In particular, the DPS lab does not use “controls” properly, and they use a “theoretical calibration curve.” If they are giving a specific number about you which they say is true, why are they “theorizing” in their measurement of it? That process makes no sense to me, and I object to it.
For most people, the plea bargain process is a better way to resolve the case than with a jury trial. Most people do not want to have a jury trial. I try a lot of jury trials, but I will plea bargain the case when it is to your benefit in order to help you avoid the stress and embarrassment of a jury trial. Believe me, I am not here to make your life more difficult. I am here to help you and to make you feel as safe and at ease as I can under the circumstances.