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.

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.

Here is an interesting article from Time that implies that the immediate confiscation of a person’s driver license upon arrest for a dwi may reduce dwi’s. The article is titled Revoking licenses deters drunk drivers. The author of the study states that says “that the reason revoking a drunk driver’s license right away works better than waiting until after a conviction, which can take up to a year in some states, is simple timing: if you do something wrong, you should suffer the consequences immediately. It’s a basic behavior-curbing tenet called negative reinforcement that works on rats in the lab, and on humans just as well. “The speed with which the punishment is applied is very important, and in our society we’ve had a long-standing focus on the severity of the punishment,” says Wagenaar. “The punishment does not have to be draconian to have an effect in shaping the behavior that we want to deter, in this case drunk driving. A driving-license suspension for a couple of months is a modest penalty, but when it’s applied immediately it’s effective.”

Several points need to be made regarding this study. First, in Texas we have both an administrative hearing as well as a criminal case when somebody is arrested for a dwi. See our previous post regarding the Texas ALR hearings. One of the main problems with the study is the fact that most of the “administrative” hearings simply do not provide much protection for a citizen who has been wrongly accused of dwi. The Texas statutes do allow for witnesses to be brought to the hearing and we can even subpoena arresting officer. However, the burden is so low on the Department of Public Safety that the deck starts stacked against the citizen accused. However, I will say that in Texas we are allowed to cross examine the arresting officer as well as any breath test operator and the breath test supervisor in the case. This can provide very valuable information for the criminal trial. Other states are not no lucky. A good friend of mine, Glen Neeley, practices in Utah and they are not even allowed to cross the arresting officer. Judge, jury and executioner, what a great country this is becoming.

Once convicted, the Department of Public Safety will notify you by mail at your last known address that DPS has assessed a surcharge on your driver’s license.  In the letter from DPS, you will be given the option to enter into a payment plan.  DPS will also allow you to pay the surcharge in full one year at a time.  The way the payment plan works is that whatever amount you initially send to DPS, you will continue to send equal monthly installments thereafter until the surcharge for that year is paid in full.  If you fail to make a payment or if your payment is late, then whatever amount is due for that year will be due in full.  DPS at this point will not allow you to enter into a new payment arrangement.  The message sent by DPS is clear- if you want to legally drive then make sure your payments are not only made, but that they are made on time and kept current.  Let an experienced West Texas DWI attorney help you with your DWI.

Upon a conviction for a DWI there are assessments made on your driver’s license.  The assessment made on your driver’s license can range anywhere from $1,000.00 to $2,000.00 per year for three years.  Surcharge amounts are based upon your breath test results and whether you have been convicted of a DWI within a three year period.  If you did not blow a .16 or above and have not been convicted of a DWI within the last three years, you will pay $1,000.00 per year for three years.  If you have been convicted of a DWI within three years, then you will pay $1,500.00 per year for three years.  If you blow a .16 or above, then you will pay $2,000.00 per year for three years.  In the event you fail to pay the surcharge, your driver’s license will be suspended until either a payment plan has been entered into or the surcharge has been paid.  Just another reason to hire an experienced Lubbock DWI trial attorney.  Continue to look for other postings pertaining to surcharges.