The theme continues… Just last week and yesterday I wrote on the very scary idea that the ends justify the means.  This theme is very common in Lubbock DWI cases (as it is in Texas and across the country).  Now we see first hand this problem with the ends justifying the means.  I have said for a long time this philosophy is simply a slippery slope.  In other words, once an officer or department adopts the idea of the ends justifies the means, any ends can and do justify any means. 

This semester has seen a war on Texas Tech college students by the Lubbock Police Department.  The LPD is attempting to curb underage drinking.  As long as it is illegal to drink when you are under 21 then stopping or reducing the violations is a GOOD IDEA.  The problem is what the police have done to try to stop the illegal activity.  The have targeted the masses.  The are writing hundreds of tickets for minor in possession even when the individual does not possess the alcohol.  I have had students tell me that when LPD arrives at a party they simply have those over 21 line up on one side of the room and those under 21 are moved to the other side of the room.  If you are over 21, you get a “noise violation”  and if under 21 you get a MIP.  Problem is that is not the law, to get a minor in possession you have to POSSESS the alcohol.  Simply being around it is not against the law, as Judge Doty points out in a interview with the Lubbock AJ. 

“In the meantime, Doty said underage students shouldn’t have to be afraid of being at a party where there is alcohol if they are not drinking.

“Mere presence where alcohol is, and you are underage, does not constitute possession.”

But sometimes it doesn’t work out that way, Doty said.”

Reading between the lines it is pretty clear what Judge Doty is saying, he knows that the police are using the ends justifies the means philosophy to arrest and ticket everybody.  Another scary thought is the police response to these questions.  I’ll write more on that later this week.

Jamie Spencer, an attorney from Austin, leads us to an interesting blog that initially seems out of place in a dwi context. The blog is actually from a public defender writing about the Larry Craig case. I’m sure you remember the Craig case, he is the U.S. Senator that was arrested earlier this year for allegedly initiating sex in a bathroom with an undercover cop. As I read Jamie’s article, I realized Jamie is exactly right about these assumptions being made by police everywhere. The basic concept is that as a police officer I have arrested many people in the past who have had certain clues, because you had these “clues” you are also guilty.

“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.” Here is Jamie’s complete posting.

Lawrence Taylor, a dui trial attorney in California writes about a Wyoming state trooper a who was recently fired for making false reports to Wyoming’s dial a drunk reporting center. It appears that the cops had some type of tip that a vehicle on the roadway was carrying a large amount of cash. Mind you if the police had reliable sources they could have simply gone to the courts and tried to get a warrant to stop and search the vehicle. But they did not. Instead it appears that the officer simply made up a story, lied, about the vehicle being a drunk driver. In Wyoming and other states, including Texas, the governments have set up 1-800 numbers so any person can simply call and report somebody. In theory it might be good but the problem is these are annanomous calls so there is no way to check the credibility of the caller. I already see these lies from police officers in Lubbock dealing with drugs. The mentality is find or make up any reason to stop somebody and when you do then search to see if they have drugs. Finally I wonder why no charges have been filed against this officer. In Texas it is against the law to make a false report, isn’t this exactly what the officer did? Oh well, again the ends justify the means right.

Coming soon to a city near you. In Arizona if you are stopped for driving while intoxicated your face could be posted on a billboard showing your mug shot when you were arrested. The article does not clearly define if they put information up after a conviction or if after arrest but you get the point. Driving while intoxicated is the new scarlet S offense in America. Often times I see people who have been arrested for driving while intoxicated in Lubbock, Texas or other areas of West-Texas who are certainly not intoxicated. Yet that will not stop the gastpo and MADD Mothers from trying to shame a person. In fact in the last session certain elected officials tried to pass a bill in Texas that if a person is convicted of a DWI in Lubbock or anyplace else in Texas they will have to get a special license plate that would be marked with a “distinctive symbol” that would identify that driver to all as a person who has been convicted of a dwi. No other convictions carry this requirement for a license plate, not even a sex offender.

Fellow Texas DWI trial attorney Jamie Spencer recently wrote an excellent blog on     the overconfident police officer testifying at trial.  Jamie starts the post with a cite to a very interesting study done at Berkeley that ‘debunk[ed] conventional wisdom on trial witnesses’:

The researchers concluded that self-assured witnesses who make a mistake - even on issues of little importance - undermine their credibility by raising doubts about their competency, their ability to judge their own abilities and their motivations.

“People giving testimony, or advice, or opinions should therefore be careful to express appropriate degrees of confidence in their assertions,” the researchers write in a summary of their report in the January issue of the journal Psychological Science. “Otherwise, the 13th stroke of the clock will cast the other 12 in doubt.”

Jamie argues and I fully agree that often times an officer will try to testify that any person who is not intoxicated can do the field sobriety tests perfectly. As Jamie writes:

“When it comes to evaluating a defendant’s performance on the field sobriety tests, yes, NHTSA has their ‘standards’, but even the manual doesn’t attempt to suggest that everyone will do perfectly. Or even that all defendants who exhibit X number of clues on the [HGN, Walk and Turn, One Leg Stand, etc.] are intoxicated.

Consequently, when asked in cross examination whether my particular client could have exhibited the clues on videotape, but not be intoxicated, the officer has two choices:

(1) He can admit it’s possible that things other than intoxication could have caused my client’s ‘errors’ on the test.

(2) He can express with 100% confidence and certitude that the only reason for my client’s foot coming off the imaginary line is absolute proof of intoxication.”

Either answer will work for me, if the officer testifies there are other reasons that a person can make errors it shows that these “tests” are not 100% valid. If on the other hand he testifies that any mistake is because of intoxication you will be amazed at how many mistakes the officer’s report contains, not to mention his trial testimony. For those of you interested here is Jamie’s full blog.

While doing a little reading I ran across an interesting story about a deputy in Nevada who stopped a vehicle for an investigation of a driving while intoxicated concern.  The interesting thing is that the driver was the deputy’s wife.  Makes you wonder if it could happen in Lubbock. 

“An Elko County Sheriff’s deputy was arrested — after being pulled over by her husband — Saturday on charges of driving under the influence of alcohol.

Charlotte Moore, 36 of Spring Creek was arrested at Sixth and Douglas streets at 11:41 p.m. She was released at 1:47 a.m. Sunday by order of the undersheriff.

Moore, a jail deputy, is an 11-year veteran of the sheriff’s office, Undersheriff Rocky Gonzalez said. She was placed on paid administrative leave Saturday night.”

 For those who want to read the full article, here you go.

     Is that the ultimate question?  Should the legislature in Texas make it illegal for an adult ( at the age of 21) to have a beer or glass of wine at dinner and then drive home?  That is not the law now, in fact a person to be arrested for driving while intoxicated in Lubbock or any part of Texas, assuming they are 21, can legally consume alcohol and then drive so long as they are not intoxicated.  However, I’m not sure that is the actual standard that the police are using the legal standard.  I have numerous dwi videos where the officer actually says to the accused you have been drinking and driving so words similar to that. 

     Recently I ran across a good article dealing with police really trying to arrest people for having some alcohol in their system but not being intoxicated.  In fact, the founder of MADD, who is no longer associated with the organization, talks about certain problems like this and indicates that MADD has lost its focus. 

 Founder’s Remorse
Although alcohol nannies generally support zero tolerance, one dissenting voice doesn’t. “I thought the emphasis on .08 laws was not where the emphasis should have been placed,” Candace Lightner told the Los Angeles Times in 2002. “The majority of crashes occur with high blood-alcohol levels, the .15, .18 and .25 drinkers. Lowering the blood-alcohol concentration was not a solution to the alcohol problem.”

Lightner’s views can’t be easily dismissed by anti-alcohol activists. In 1980 her 12-year-old daughter, Cari, was killed by a hit-and-run driver on a suburban street in Southern California. When the perpetrator was apprehended, he was drunk. It turned out he had been convicted of driving while intoxicated four previous times-once just days before he killed Lightner’s daughter. Even after his fifth, fatal offense, he received just a two-year sentence and avoided prison by serving time in a work camp and a halfway house.

Here is the full article if you are interested 

Over the last few weeks we have been talking a lot about the breath test machine used in Lubbock and all other areas of Texas when somebody is arrested and charged with driving while intoxicated.  A few days ago I posted about the source code litigation that is going on throughout the country regarding the breath guessers.  Gleen Neeley in Utah writes about this same source code issue.  As Glen states, ”makes you wonder what are they hiding.  Is their multi-million dollar company going to be exposed as convicting innocent people?”

The manufacture of the breath test guesser, CMI has been ordered by a Florida Court to furnish the source codes for the Intoxilyzer 8000.   The 8000 is the new and improved model that Texas does not use.  We have the older model known as the Intoxilyzer 5000. 

In the Florida case, CMI has refused to show up to court and provide the source code or object to the Court’s order.  Why?  I mean if this machine really has no problems why refuse to obey a court’s order?  Many times a person arrested for a dwi will tell me they only had a small amount of drinks yet the breath test guesser shows a high over the legal limit result.  This is exactly why we want the source codes to have them examined by independent experts to see if there are any problems. 

In science are not all results subject to pier review?  Of course and if we are going to use a “guesser” to try and convict people shouldn’t they also prove to everyone that the guesser isn’t hiding anything.  Breath Test Manufacture CMI held in contempt order.

Over the last few months I have been writing on the “breath test guesser.” We have talked about just a few of the areas of real concern when it comes to the breath test machine used in Texas. Another area of real concern is the source code within the machine. You ask what are source codes? Well basically the company that makes the Intoxilyzer 5000, the  breath test machine that the Texas Department of Public Safety uses makes the base model. The unit takes a sample of a person’s breath and then via a computer program converts that sample into a blood alcohol concentration.

The most amazing thing about this concept about the unit is that NOBODY WITHIN THE TEXAS BREATH TEST PROGRAM HAS ANY IDEA OF HOW THE SOFTWARE WORKS TO ACTUALLY CONVERT THE BREATH TO A NUMERICAL READIN !!! Can you believe that, I mean not one person, including the Scientific Director of the Texas Breath Testing Program knows how and more importantly if the software accurately converts the breath to a numerical reading. The source codes are the key to the conversion. It is the source codes that send people to jail.

The good news is that more and more folks are challenging the states and CMI to give access to these source codes. Only after a citizen accused gets access to these codes will we know if the conversion is truly accurate. Litigation is taking place in many states.
You can bet that all of my DWI cases in Lubbock and West-Texas will continue to include a request from any court for access to all source codes.

When is a prior dwi not an enhancement?  This question was asked of me today from another Lubbock dwi attorney.  The answer is it just depends.  I always tell young attorneys that the first thing you must do when a client is charged with a subsequent dwi is pull any case file that the district or county attorney lists when trying to enhance that client.  The general rules are that a current dwi can be enhanced by a prior DWI conviction.  Often times believe it or not when I look at the alleged prior conviction the charge that the client was convicted of was not a DWI.  If the case was reduced to a reckless driving or any other non-dwi then that conviction cannot be used to enhance a pending dwi.  For a Lubbock dwi case we simply go to the courthouse and pull all of the prior cases.  If the priors are from other counties, I tell young lawyers order every judgment.  Just last week I was working on a felony dwi case that had a bad judgment as part of his allegations.  This judgment cannot be used to enhance him.  Believe it or not these things happen all the time so make sure that if you are charged with any enhanced dwi your dwi attorney checks each and every prior conviction.