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. 

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.

Over the years, the machine used to guess at a person’s blood alcohol concentration has changed. Breath testing is simply trying to guess what a person’s blood alcohol concentration is at the time the test is administered. The current guesser is called the Intoxilyzer 5000. The state has updated this machine several times. When the 5000 first came out it was the 5000 64. Then it was “updated” to the new and improved 5000 68 series. Currently most of Texas uses the Intox 5000 EN. Again and new and improved guesser. Some of the counties that we practice in around West-Texas still use the 5000 68 series. As the state gets the money they are changing these units out for the EN unit. The Intoxilyzer 5000 whatever series however is not the newest technology from the manufacture. Believe it or not, the same company that makes the 5000 no produces an Intoxilyzer 8000. It advertises the 8000 as the newest cutting edge technology. Lots of other states use the 8000 but not Texas. I wonder why that is? If you or a loved one were arrested for dwi in Lubbock or West-Texas wouldn’t you want the government to have the best available “guesser” for you? Makes you wonder just what is important is it the truth or just close enough for government work?

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.   

Several people have asked me to talk about how the breath test machine works in Texas. What I think we can do is to do several posts about the breath test program in general and then get more specific to how the machine Texas has works and well as the flaws in breath testing. So far it is not against the law in Texas to refuse to take a breath test at the station. There have been several bills over the past few legislative sessions to change that law and make the refusal of a breath test a separate criminal offense. So if a person is arrested and refuses to take a breath test in Texas that person will not be charged with an additional crime. One of the most important things to remember about breath tests is that they do no show whether or not the citizen accused is intoxicated at the time of driving. That is right, under our law in Texas the issue is whether the state can prove beyond a reasonable doubt that a person is intoxicated at the time of driving.  The breath test is given at the station after an arrest.  What evidence is that of what a person’s blood alcohol concentration is at the time of driving?  Something to think about.  I’ll post more in the next few weeks about the specifics of the Texas Breath Test program.