Using an "expert" in sobriety to help defend your DWI charge

 If you are stopped and arrested for a DWI in Lubbock or West-Texas, one of the first things we will discuss with you is were there any witnesses who might be able to help your case.  Sometimes witnesses might be friends or other people who were around you when you were drinking who might be able to help show that you were not intoxicated.  

One of the most valuable witnesses that might exist in your case is actually the person who served you any alcoholic beverages. If your arrested for a DWI, interviewing your server can be very helpful.  One thing we often do is send our investigator to the place you were before you got stopped to talk to your server.  As I discuss below, each server must be TABC (Texas Alcohol Beverage Code) certified.  A server cannot legally serve an intoxicated person.  One of the best witnesses in your case maybe the person who served you alcohol. 

Stopped for a Lubbock DWI? What qualifies the officer who arrested you as an expert?

 Tonight I was reading a national news website.  One of the stories on this website caught my attention.  What stopped me as I scanned the bullets?  How about this headline--

No forensic background? No problem--

The article begins with this quote

This is how I -- a journalism graduate student with no background in forensics -- became certified as a "Forensic Consultant" by one of the field's largest professional groups.
One afternoon early last year, I punched in my credit card information, paid $495 to the American College of Forensic Examiners International Inc. and registered for an on-line course.
After about 90 minutes of video instruction, I took an exam on the institute's web site, answering 100 multiple choice questions, aided by several ACFEI study packets.
As soon as I finished the test, a screen popped up saying that I had passed, earning me an impressive-sounding credential that could help establish my qualifications to be an expert witness in criminal and civil trials.

Maybe the most telling part of the article is the area of the National Academy of Sciences 2009 report.

In its 2009 report, the National Academy of Sciences called for several measures to address systemic flaws involving forensic examiners and expert testimony.
Certification should be mandatory for forensics professionals and should be overseen by a centralized credentialing agency, the report said.
One of the report's primary authors, Harry T. Edwards -- a federal appeals court judge for the District of Columbia – said these changes were critical to imposing rigorous standards on the field.
"There are certifiers, but it's not what you and I are talking about -- that is, real certification programs that train, give serious tests and will revoke your license and affect your job and ability to testify in the event that you do something wrong or fail," Edwards said in an interview. "That doesn't exist now."

Reports like these should shock us all.  Those of us who try a lot of cases are all to familiar with the pay to get your qualifications of many of the government/ state witnesses.  Compare this to Lubbock Police officers, DPS troopers or any other law enforcement person who gets to claim they are an "expert" in filed sobriety testing by simply taking a 24 hour class.  When I say 24 hour class, I'm not talking about 24 college hours I'm talking about a 3 day class.  No place else would this person be allowed to testify as an expert.  Not in a civil case, not in a family law case.  But accuse somebody of being a Lubbock DWI driver and yep the hey I'm not a doctor but I stayed at the Holiday Inn last night state "expert" gets to testify.  True scientists must be turning over in their grave.



Using Bad Science in Trials, What You Don't Know Can Hurt You!

 Often times in a criminal case, science is used in the courtroom.  In DWI's there are "scientific" issues of blood or breath testing.  These areas are often considered "hard science" meaning they should be well established, pier reviewed, and reliable.  Field Sobriety tests are "soft science" meaning they are left to more of a subjective interpretation.  

The problem with using or attempting to use "science" in a courtroom, in a trial, is that the results should not be skewed to obtain a desired result.  Flaws in science exist.  True science has no "dog in the fight" in a courtroom. True science does not care about who is charged or who is convicted.  When flaws exist, when errors are found these areas should be discussed freely and openly.  If a jury in a Lubbock DWI case knows that for example the breath test result they are being provided has a potential error rate of over 100% they might be more skeptical of that result.

So when there are errors or mistakes in the science what should be done?  Should a citizen accused, his or her lawyers be informed of those errors?  What about after a conviction, does it still matter? The Washington Post just this week has another article about bad science and the failure to disclose the same to defense attorneys.  

Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people nationwide, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.

If your charged with a crime in Lubbock Texas or the south plains the chances are in some way science will be involved.  It might be a Lubbock DWI case that involves Breath or Blood Testing.  The case might involve field sobriety testing done by the Lubbock Police Department.  Even in a Lubbock DWI case areas of eye witness testimony might be involved as well as the science behind that testimony.  When things like this matter make sure your attorney has as much knowledge about these areas as possible.  No attorney will be an expert in all the areas but the key as an attorney is to have enough knowledge to be able to recognize the issues, review them and determine how to attack the areas.

Another reason Lubbock Field Sobriety Tests are not reliable

 Recently Science Daily published an article that discusses the ability or inability of individuals to drive at night.  Here is a quote from the article.

Just because a driver has passed the motor vehicle administration's vision test may not mean he or she is safe to drive. A recent study found that the frequency and distance at which drivers with moderate levels of blurred vision and cataracts recognize pedestrians at night was severely reduced, even when the drivers have passed the required vision test.

What this article is saying is that some folks "normal" ability is not very good when it comes to night driving.  Of course most Lubbock DWI arrests happen at night.  So when the police officer pulls a person over for "bad driving" and simply assumes that because he person admits to having a beer that the "bad driving" is drunk driving, you can see how that is often times not correct.  

Although the prosecutor trying to convict a person of a Lubbock DWI does not have to prove what "normal" is for the particular driver, the accused ability or inability to drive well at night, without alcohol in his or her system certainly is something that we will make known.  Most police assume bad driving equals drunk driving, articles like these help level the playing field and show what happens when the police assume guilt.

Continue Reading...

Lubbock DWI Lawyer on Gorilla Law

A few weeks ago I had the pleasure of appearing on the Gorilla Law show in Lubbock.  The show features Lubbock attorney Davis Smith and host Wendy Baldwin.  The show discusses various areas of law from Family to Personal injury.  Davis and Wendy invited me to answer questions on the areas of drinking and driving in Lubbock Texas and the south plains.  I was honored that they invited me and humbled when they told the audience to not drink and drive but if they did to call me.   

These days with "no refusal" weekends,  more mandatory blood tests, and the new "extreme" DWI charge it is important to know your rights.  I believe in responsible social drinking and that is why I enjoy talking with folks like Gorilla Law to explain what rights we have and how to best exercise those rights.  


I got a Minor in Possession ticket in Lubbock, what are my options?

 In Lubbock, TX if you got a Minor in Possession (MIP) or Minor in Consumption (MIC) ticket what are your options?  This is a question I am often asked throughout the school year.  It seems every year minors attending Texas Tech, South Plains and other schools in Lubbock are often the target of these types of tickets.  If you get a ticket for MIP/MIC here is what you need to know.

What is a MIP/MIC?  Any person under the age of 21 with certain exceptions who is caught either with alcohol in their system (MIC) or in their possession (MIP) can get a ticket for those offenses.  The first question that you should ask for an MIP is what is "Possession?"  To be guilty of the offense of MIP, you have to be under 21 and in "possession" of alcohol.  A minor can be in possession and consume alcohol if they are in the direct presence of their parents.  Possession means care, custody and control. One thing I see every year are these "party patrol" tickets issued typically from the Lubbock Police Department.  Basically what happens is the LPD responds to a party and when they find lots of young folks there they simply issue MIP tickets to every person under 21.  To be guilty of the MIP the prosecutor must prove that you actually possessed the alcohol. Simply being in the same room as the alcohol without more is not enough for possession.

The next issue with a Lubbock  MIP/MIC is what options are there with the ticket?  If you are convicted of the offense (and for the MIP/MIC statute, a deferred is a conviction) and you do not get another alcohol related offense as a minor then you can seek to have that MIP/MIC expunged from your record.  If you get more than one MIP/MIC you cannot expunge it under the minor expunction statute.  It is important at if you have already had one MIP/MIC that you challenge the new ticket as if it is dismissed then you could still be eligible for the expunction.  

Bottom line is that if you get an ticket involving alcohol in Lubbock as a minor you should talk to a Lubbock lawyer that is familiar with the minor alcohol offenses, expunction options and ticket trial options.  


Lubbock DWI-Why Field Sobriety Tests are Unreliable

 If your stopped by the Lubbock Police or another police agency in Texas and the officer believes your intoxicated he or she will most likely conduct a "field sobriety test" or series of such tests.  The three tests used the most are called the HGN (Horizontal Gaze Nystagmus), Walk and Turn and One Leg Stand.  What do these tests evaluate?  Can an officer tell if the person has lost the normal use of his or her mental faculties from these tests?  In today's question I discuss some of the problems commonly associated with these balance and dexterity tests.


Lubbock DWI Arrest and Blood Test-what are the time frames for requesting a driver license hearing?

 In a recent post we discussed the time periods or deadlines after a Lubbock or South Plains DWI arrest to request a hearing on your driver license "automatic" suspension.  What if instead of a breath test or a refusal to give a breath or blood test you instead agreed to give a blood test?  The time frame for blood is different because at the time the nurse draws the blood the officer does not have the test results.  

After a DWI Arrest You Only Have a Set Time Period To Request A Driver License Hearing

 If you are arrested for a DWI or DUIM (driving under the influence by a minor) in Texas then if you either gave a breath sample and it was over .08 (.04 if in a commercial vehicle or a detectable amount if a minor) or refused to give a sample, you have 15 days, working DPS days, to request a hearing on your license.  If you gave a voluntary blood you will get a letter of the results from DPS and if over .08 you will have 20 days to request a hearing.  It is important if you were arrested for a DWI that you contact an attorney immediately to discuss these deadlines and why you want to always contest your automatic driver license suspension.

What are the consequences of a Lubbock DWI conviction

 Every week when I visit with good people who have been arrested for a DWI in Lubbock or the South Plains one question I am often asked is if I get convicted what is going to happen?  I tell folks each case is different but in general you can expect certain things. In today's DWI video question I cover some general answers. 


What does "Implied Consent" to give a breath or blood test for a Lubbock DWI mean?

 If you or someone you love has been arrested for a DWI in Lubbock or west Texas, most likely the arresting officer read them what is called the statutory warning.  This piece of paper is about 6 paragraphs long and basically tells the person arrested for a DWI about the breath or blood test request.  Today's video tip covers the Implied Consent Law in Texas.

 There are several potential defenses to a "refusal" case.  It is important the arresting officer actually read the statutory warning to you.  It is important he or she does not add anything to or leave out anything on the warnings.

If you have any questions about the statutory warnings and a DWI, please call me, Stephen Hamilton.  As a Board Certified Criminal Defense Attorney my goal is to help you with your case.


Stop watch trials, coming soon to a courtroom near you?

 This week there was an interesting article regarding courts setting time limits of trials.  

To expedite trials and control lawyer excesses, judges have sometimes imposed limits. Some judges restrict the lawyer's ability to make objections or motions, limit counsel's argument to the jury, stop the lawyer's excessive interrogation of witnesses, deny requests for a recess, or restrict a lawyer's communication with her client. Some of these restrictions have been upheld as appropriate methods to administer a trial; others, by contrast, have been struck down as arbitrary impediments to the client's ability to obtain a fair trial. When they are struck down, the appellate decision, whether a civil or criminal trial, usually does not accuse the judge of being overbearing, although in some cases that would accurately describe the judge's conduct.

This already really exists in most courts in some areas of trial.  In jury selection for a Lubbock DWI trial the state and the defense usually get around an hour each to do "voir dire" or talk with the jury.  I've said for a long time that really an hour is too long.  Voir dire is not a time to try and tell the jury about the facts in the case.  Often now I see a prosecutor try and go over every part of their case and get the folks on the panel to agree that the parts they go over are bad and therefore get the picture.  I think what the prosecutor wants to do is take each part of the Lubbock DWI case that the they believe the defendant did not do well with and try and get the jury to commit (without actually asking them to "commit") that if the jury sees this they will convict the defendant.

On a misdemeanor DWI trial in Lubbock the jury consists of 6 people.  The two courts that try these DWI's usually request 18-20 people and we select 6.  I think that 30 minutes is plenty of time to visit with folks about the areas I what to know about.  I also think that these trials should go much faster than they currently do.   I'll talk more about other areas soon.

As the article says the real ability of a good trial lawyer is to be prepared and put the information on in a complete but fluid pace.  

As a Lubbock DWI trial attorney I enjoy trying cases and providing information and true science to a jury.  I'm not trying to hide things from the jury, I believe if the jury hears the true science rather than government junk science my client has a better chance to be found Not Guilty.  If you or a loved one have questions about a Lubbock or west Texas DWI call me, Stephen Hamilton DWI Trial Attorney at 806 794 0394.

True or False--Field Sobriety Tests are the only Divided Attention Tests in a DWI Investigation

 A Lubbock Police officer (or DPS, Texas Tech police or any other law enforcement officer) in trial on a driving while intoxicated case in Lubbock typically testifies that the three "standardized field sobriety tests" are divided attention tests.  I often hear the following:

"These tests are designed to divide a person's attention just like driving a car"

"These tests help me (the officer) determine if the driver is intoxicated"

The problem with these answers is simply they are not true as to whether a person can safely operate a motor vehicle.  The fact is that if driving is a divided attention test then the grade should not be from some abnormal tests that nobody ever does when trying to get their driver license.  Has anybody ever had to put their arms down to their side, raise one leg off the ground 6 inches, point their foot out, look at their foot and count out loud, one thousand one, one thousand two, etc till the officer says stop in order to get a driver license?  Answer: ABSOLUTELY NOBODY!!  

The fact is these balance tests show little when it comes to whether a person can operate a vehicle in a safe manor.  I'm Stephen Hamilton, Board Certified Criminal Law by the Texas Board of Legal Specialization and I fight these worthless, government propaganda stupid human tricks every day.


Arrested for a Lubbock DWI? What do you do now?

 Today's Lubbock DWI video tip focuses on what do do after you have been arrested in Lubbock or the South Plains for a DWI.  I know that your worried and not really sure what to do next.  Your concerned about your job, record, about the possibility of going to jail and your driver license.  If you or a loved one has been arrested in Lubbock or West Texas for a DWI, this video tip touches on a few things you should know.

My name is Stephen Hamilton and I am Board Certified in Criminal law by the Texas Board of Legal Specialization. I focus my practice in the area of DWI defense and criminal law.  If you or a loved one has questions about a driving while intoxicated charge, call my office at 806 794 0394.



More Errors in State DWI Blood Testing, Oops Wrong Guy

 Lubbock Texas Department of Public safety crime lab tests hundreds of samples of blood yearly from driver suspected of driving while intoxicated offenses.   If you're arrested in Lubbock or the South Plains for a DWI offense, the chances are your blood was tested by the Lubbock lab. What happens if you went to dinner and you had two drinks over say 2 hours.  You know your not intoxicated, you feel no affect of the alcohol at all.   You get in your vehicle and drive home and someplace along the way the police officer stops you for speeding.  He smelled alcohol and after a few balance tests arrested you for DWI.  You gave a blood sample because you knew you were not guilty and you were shocked when the blood test came back above the legal limit.  How could that be?  Well maybe the lab tested the wrong blood or mixed up your blood sample with another suspect.  

That is exactly what happened in California recently.  

 A young client had been arrested for drunk driving by the Los Angeles Police Department and had a blood sample drawn from his arm. He swore to us that he was innocent, and we believed him. Problem: the blood alcohol content of the sample was .15% — almost twice the drunk driving limit.

Now what?

We obtained a portion of the sample from the LAPD crime lab and sent it to a private lab that we use for reanalyzing the blood samples of all our DUI clients. The lab reported the blood alcohol level to be .13% — lower, but a long way from being under .08%. As we requested, the lab also tested for preservative and anticoagulent (either fermentation or coagulation can raise the alcohol level in the sample), but everything appeared in order.

Our client still insisted he was not driving under the influence of alcohol. The only other possibility was a faulty chain of custody. In other words, the LAPD lab (the same one that botched the O.J. Simpson case) got the vial of our client’s blood mixed up and tested someone else’s blood.

So we had the sample blood-typed to see if it was that of another arrestee. Result: type O — the same as our client’s. But, then, that’s the most common type of blood.

Next we had blood taken from our client and, along with a portion of the remaining sample from the LAPD lab, shipped to a laboratory in Oklahoma that specialized in DNA testing.

A month or so later the report came back: the blood tested by LAPD was conclusively not that of our client.

With hundreds if not thousands of blood tests going thru the Lubbock lab every year for folks arrested for Lubbock DWI's I wonder how many tests would show that the sample reported was for a different person.  If only these state labs ran a DNA verification test on each we would know.  But of course why do that mistakes like that can never happen, right?  Every DWI case I have I always talk to my client about obtaining an independent blood test to check for contamination.  Now we better add a DNA test to that as well.