DWI Driving While Intoxicated Blood Draw DPS Consent for Blood Draw
Started doing this about 14 years ago and hat’s when they didn’t do blood draws and if you didn’t blow there was no BAC but things have changed a little bit and now we see a lot of blood draw cases and they are defending them the majority of the times out practices dedicated you know exclusively to DWI Defense and it seems like about 80 % of our cases are blood draw cases, how about you guys out there and I don’t know about every jurisdiction, is it that blood draws are happening predominantly in every jurisdiction? Raise your hand if you are? Is there anybody who doesn’t see blood draws? So like every day of the week, someone can get a blood draw and take it to Hospital? No? What County are you in? Interesting, alright, well it sounds like its sweeping Texas and we need to know more about it. So, I’ve got a couple of interesting videos. If you’re offended they told me to tell you if you’re offended by needles then, cover your eyes unlike well this is what we are all dealing with so nobody should be squeamish when we are saying what actually happens at the police station and a couple of videos have some foul language. I’ll try to alert you with that. So if you refuse a breath test, we know that they can get a warrant and draw your blood, unfortunately there is no way to talk your way out of it or buy your way out of it. I thought I’d start off with a little humor here, little video clip from an actual case, just listen to what this young lady says. She grew up living somewhat of a privileged lifestyle as evidenced by her comments on this video.
She said if you resist it’s going to be another charge and she said “How much?” He said “No ma’am you don’t understand it’s another charge against you”. She thought that she could just, how much and come on let me pay for my way out of this.
So I’d like to start off by showing you an actual Blow Draw. We’re going to do a real blow draw up here and I’ve done this before in a couple of presentations but it was a little bit hard to get everybody to come from Houston so we videoed. We did 2 Blood Draws for this presentation, one wrong and one right. When you’re watching videos I know probably everybody has seen a blood draw video before at the station. We don’t usually get the hospital videos of the blood draws and you can watch a blood draw video and you know what? After it’s over you can think “it looks perfectly fine, I don’t see any problems with that”. I want to show you something here and see if you see any problems and when you’re done its about 6 minutes I’ll ask you to tell me the things that you noticed that you might think are wrong or maybe this is the one that is perfectly correct.
All right close your eyes if you’re scared of needles.
No Problems. Everything looks perfect right? Average Blood Draw you would see on any police video. Now what did you see?
Audience: The stuff that it has alcohol in it, she is grabbing this cotton swab and transfers it there which she rubs out at his arm and before that could even dry she also I think swabbed his hand with tiny alcohol pad.
So you are saying that the hand sanitizer and didn’t used gloves and touched the venipuncture area after using the hand sanitizer, just used one swab with—what appeared to be a Isopropyl swab. Anything?
Audience: Yeah and she—if you think of it as like you are trying to prevent germs, if the sanitizer was a germ, she is transferring it to everything she is touching and she is touching him with it and I know that is a minute amount of stuff but when they do a breath test [inaudible]
Sure, it is [inaudible] contamination even with small amounts of alcohol being transferred to the tip of the needle to the stopper in the vials. Anybody else?
Audience: She shook one vial too hard and didn’t shake the other one at all.
Yeah she shook one too vigorously which you should not do because that can cause hemolysis which is the breakdown of red blood cells. So that’s why they talk about gentle inversions not vigorous shaking and then the other vial wasn’t touched I mean she touched it but did not inverted at all. There were different color vials which indicate different additives one of them was vial top but it’s probably hard to see that. Anything else?
Audience: Tattoo, there is tattoo on his arm.
You’re not supposed to draw from a tattoo side and we’ll talk about that as well. Back there?
Audience: So she pulled the needle out without pulling the vacuum steel tube out [inaudible] alter the oxygen blueprint.
Yeah you guys know a lot. I don’t even need to be up here telling you about proper blood draw procedures. That’s right. That’s really important because that happens a lot, probably about 50 percent of the times. Here’s 11 things that I intentionally asked the blood drawers to do wrong. But on that point that’s really good, most of you probably know the mechanism of the blood draw the evacuated tube, the suction in the tube will draw the blood out and if you take the needle out with the vial still attached, its’ going to keep sucking air in from the environment. You want to guard against that because you don’t know what’s there it’s a potential source of contamination but proper blood draw procedure is you remove the vial from the vacutainer you know, stuck in it and then you remove the needle, that way when you remove the vial the seal should close and prevent anything else from going in the vial. You never want the whole needle to come out with the vial still attached. So she used hand sanitizer which is 70% Ethyl Alcohol, the actual type of alcohol that is being tested for in blood analysis. She didn’t use gloves, I think it’s okay to clean your hands and use gloves I don’t think hand sanitizer should be anywhere around a blood drawing environment. There’s other ways, you can use soap and water to clean your hands. It’s just too much risk of small amounts like we were talking about that substance to come into contact with other equipment is being in the blood draw. She didn’t check the vials for the expiration date or even to see that there was any powder in the vials. Everybody just assumes well it’s a great top tube, I know it’s got Sodium Fluoride and potassium oxalate in it. Why do I need to check it ?But you need to check it because sometimes they don’t come from a kit or sometimes humans make mistakes and they might forget to put the additives in there. I know certain Agencies; they don’t even get blood draw kits. I know In Houston for a while they were—all the supplies were just being given to the blood draw room and people individually like individual tubes so there were no kits. But the person drawing the blood needs to check to make sure that the expiration date is good and that there’s actually the additives in the vial. Alcohol swab was improper even though an alcohol swab is Isopropyl alcohol and a gas chromatography can distinguish between Ethyl and isopropyl. It’s still common knowledge that you’re not supposed to use an alcohol swab and it’s just bad practice. Most blood drawers will tell you that you know they’ve been trained not to use an alcohol swab if you’re doing blood draws where they’re going to be testing for alcohol and just one swipe is not sufficient, you have to cleanse the venipuncture area.
There’s different ways to do that you can scrub back and forth but you know a concentric swab starting from the inside and going out is usually the preferred method and then it’s important to let it dry so Betadine has a much longer drawing time than isopropyl Alcohol but when you have a nurse in a hospital environment and the officer comes in with a warrant says “here I need a blood draw” they switch to Betadine, they wouldn’t probably normally use Betadine because alcohol swab is much quicker drying. So when they use Betadine, they’ll just let it dry the same amount of time as they used to letting the alcohol swab dry it’s like 10 seconds. There is some literature that states that you should scrub the Betadine, actually scrub for 30 seconds and let it and then let it dry for 30 seconds. I’ve seen in paper that the drying time is 2 minutes for Betadine. Well if it’s not drying it’s not doing its job in cleansing the area so there’s a potential for contamination the tourniquet was on way too long, you are supposed to leave it on for at most 1 minute. Once the blood flow begins release the tourniquet. I’ve seen blood draws with a use of gloves I don’t think it’s necessarily a terrible practice but you need to make sure there’s no latex sensitivity and ask about latex some allergies. You’re not supposed to touch the venipuncture site at once its cleansed then you re-contaminate it, she did that. Did not identify the subject, that’s important drew from a tattooed site, removed the needle with the vial attached and we talked about shaking the vial and correctly did not invert the other vial and then didn’t label any of the vials. Raise your hand if you’ve had a case where the labels have been I mean the vials have been completely unlabeled. Like blank, no name, no date, nothing. It happens I see it sometimes and it’s kind of shocking. So here’s just a couple of slides about umm Blood draw steps if you’re doing this type of work this is a great book for of Phlebotomy Essentials By Ruth McCall. It’s a rigid go to guide if you need to know just Phlebotomy techniques umm this is kind of like a hospital environment. Approach, identify, prepare the patient, verify their diet, ask about any allergy latex sensitivity, position them, clean and air dry the site, prepare the equipment, put on gloves that’s for the the subject’s safety as well as the blood drawers, re-apply tourniquet and uncap the certain needle ask patient to remake fist you don’t want to keep pumping your fist throughout the entire time because that can cause the blood to go into the vial umm at a higher speed and if it goes in too fast that can also cause hemolysis and cause the blood cells to burst, the red blood cells. So establish blood flow, release the tourniquet, fill remove and mix tubes in order of draw, put gauze or band aid on it, discard the sharps and then obviously label the tubes and put the time initials of the blood drawer the officer, date and time. And then pay attention to the handling instruction if it amazes me sometimes there’s troopers that are about 30 miles away from their crime lab, they’ll mail blood through the mail instead of hand delivering it. There are federal requirements on bio hazard markings if you’re going to mail biological samples through the US postal service. Check patient’s arm, thank them that doesn’t really happen in the criminal environment but and then transport the blood to the lab. So this is a an example of a blood draw with draw form from Houston that the officers can rely on I don’t see that much anymore but it’s important that it says read the DIC24 first, that’s important because there are some judges still I think that don’t realize that you can’t just go straight to getting a warrant and getting a blood draw 524015 requires that before any sample is requested that the statutory through warnings be read, that’s the requirement the DIC24 must be read before any sample is requested.
So the mechanics of drawing blood we talked about it being in a evacuated tube system. Whenever you have these cases see if you can go doing a motion to inspect and examine the equipment that they have retained. Everything has an expiration date even a swab, so it’s a good practice for them to save the swab package and you can see the lot #, look for recalls on the FDA site, check out expiration dates of everything just whatever is available it’s good to lay your eyes on it.
So here’s an example of a really bad blood draw procedure and I have never seen one like this but it also demonstrates the evacuated tube mechanism this guy was not cooperating as you can see he’s got his elbow bent back but watch what she does with the needle. Oops. That’s not my client screaming like that.
[Video plays 00:16:28-00:17:33) So they’re actually using a syringe to pull out the blood. You don’t see that very often. That’s not using the evacuated tube system. She is actually pulling the plunger but then watch out she transfers it into the grey top tube. Bad language alert, sorry a little late on that one.
So she sticks the needle into the top of the gray top and see its pulling the plunger down on its own, that’s how much vacuum force there is in that tube. It’s crazy that this is a bad procedure because when she took the needle out of his arm there’s nothing to seal that syringe so that needle is still open. Anything could have gone in there, a potential for contamination, nothing was sealed off the whole time she was transferring it over and sticking it in the vial. So here’s what the grey top tube looks like, you can see the expiration date on them and the potassium oxalate and sodium fluoride is down at the bottom. It’s not very much, tell you it’s real hard for them to get that mix even with the 8-10 recommended gentle inversions. We’ve done this several times so I’ve had my paralegal volunteer to get her blood drawn and we’ve done it exactly as you know as you are supposed to and we look in you still see the additives at the bottom that did not mix.
So it’s actually pretty difficult to get them to thoroughly mixed, if they don’t thoroughly mixed they can cause clotting and the preservatives don’t mix adequately. Site identification you want to use the antecubital vein there’s like it makes like kind of a H shape on the crux of the elbow pit area. You want to use an artery, so never tell a person that it won’t hurt, that was out of Phlebotomy Essentials. Don’t ever draw from a standing patient as just there’s a risk of them fainting. You don’t always have to draw from the antecubital vein, we’ve seen from the top of the hand but there’s real sensitive nerves in other areas that you want to avoid like under the wrist, you should never draw from under the wrist.
Other sites to avoid, where mastectomy was performed on that side of the body there’s Lymph node issues that can come into play if you draw blood from that side of the body. Women should always be asked if they had a mastectomy and avoid that site of the body. If there’s any edema, hardened veins, tattooed areas, tattooed areas you know there’s ink in there that can contaminate, that can go into the vial, there’s other issues with drawing from those spots. So you’re supposed to avoid tattooed areas. I’ve been hearing above IV. This is kind of important because if you have an accident and EMT is already arrived or the person was transferred to the hospital an IV is probably already administered and fluids have been administered through the IV. You’re not sure what fluids have been administered yet. But you don’t want to draw blood for forensic testing from the IV because there are other chemicals that are going to be mixed with whatever comes out and you don’t ever draw above the IV location because whatever is going in that IV into that vein you’re going to get from the blood that’s moving in that direction. So you want to draw below an IV spot. We’ve had a few cases where that’s come into play and they have drawn from above the IV location.
Right so palm, under side of wrists, because of nerves, I’ll show you an example this is my paralegal has a little bit of ink. She likes tattoos, this is one of her—she has two twins and she got her twins’ initials one on each wrist, the white writing is—it is a white tattoo but this was a few days ago and the same nurse we had drew her blood on many occasions drew from this area and she hit a she burst a blood vein and 3 days later she had this huge bruise on her arm so it’s difficult even for a person who has a lot of experience doing it there can still be problem you can hit veins you can burst vessels if you don’t go into the right angle you might go through the vein or not into the vein far enough that typically supposed to be about a 30 degree inversion.
The tourniquet technique 3-4 inches above venipuncture site and don’t leave on for more than a minute, and the reason again is that can cause matter concentration you don’t want the blood going into the container too rapid at a rate or else it’ll slam against the container and it can cause it to burst releasing all of the contents of the red blood cells. You want to avoid that. Swabbing, we’re supposed to ask people if they have allergies to betadine, if they do its even okay to use soap and water. I think that’s acceptable in the field and then obviously let it dry, people—these blood drawers are notorious for swabbing and immediately doing the venipuncture without letting the cleansing agent do its job. So here’s just a picture of an alcohol swab. The colors of the tubes everybody knows that means is different additives in them use different color tubes for different things grey tops are used for blood draws and blood ethanol analysis and if you’re at a hospital, they are going to draw different color tubes. There’s an order that you need to follow grey tops should be last.
You can go online to bdvacutainer and print out one of these color charts, it’s real helpful it shows you what they’re used for what all the additives are what they mean. I see a lot of times people drawing out of order and I told-I wanted them to do that wrong way where they drew the purple top first and then the grey top I mean the grey top and then the purple but they didn’t get that wrong enough but here’s an example of one versus evidence 1.1 grey top 1.2 redtop 1.3 grey top. So they drew red top in the middle of two, that’s not really the proper order.
This is what some hospital vials may look like. You’ll see all kinds of different things. These two at the top they are kind of clear tops and we really didn’t know what those were. I hadn’t seen those before and sometimes you’ll see pediatric tubes from a hospital and they are like 4 mil, real small and you need to always look and see what the amounts of the additives are because it matters in order to preserve to specimen properly but you’ll see all kinds of things from hospital draws and we talked about this 15 – 30 degrees down no more than 2 sticks umm Phlebotomy essentials and everything I’ve read sometimes the inserts in the boxes will say don’t stick a subject more than two times period. If you can’t draw blood after two different sticks don’t draw blood from them go get a supervisor do something else but don’t draw blood. No body follows that. I’ve seen people trying 3 times, many times. You definitely don’t want to use the same needle to stick a person twice can you imagine somebody taking out a needle where they couldn’t get blood and then taking that same needle and sticking it somewhere else.
Does somebody think that’s an okay practice? That seems like a terrible practice and nurses and blood drawers we’ve asked to do this forensically they say I would never ever stick a person with a same needle that I just removed from their arm you throw it away you get a new one they’re not that expensive and there’s too much risk of infection and contamination. Watch this one though.
The guy gets stuck 3
times with the same exact needle. We did try this case and we actually called as a witness for us one of the other blood drawers that the police department uses that this person knows and I said “hey what do you think about what this person did” she said that’s terrible practice and I would never do that and so a person that normally would’ve been called as a state witnessed did a blood draw and a DWI and we called her to testify for us she said “yeah I watched it and I completely disagree with the procedure, you should never do that”.
It still ended up in a guilty verdict. What’s that? Were the blood results admitted?
I think we got them suppressed but there were some other really bad facts about the case. We didn’t get it suppressed on this improper blood draw procedure though and on the third time the guy just, in pain. But you see there’s no replacement of the equipment, same needle. She’s going to go for a third stick. So that’s a good example of a very bad blood draw procedure so we’ve got a couple of minutes left and I need to want to show a few more things.
Obviously proper labeling is important, proper inversion shaking too hard can cause hemolysis. You need to immediately mix them because blood can start clotting right away if you set them down on the table and you leave them for a couple of minutes while you’re finishing the blood draw, clotting can already occur so it’s a good idea for them to be inverted once you know as soon as possible. Here’s a good example of good labeling, you see a lot of information on there. Here’s an example of bad labeling because there’s nothing on there. We went to try one case like this and I think we got not guilty but the jury had a real problem that the labels weren’t vials I mean the vials weren’t labeled and they sat at the lab for about a year where they can do DNA testing and said would you ever do anything to prove that that blood was from this person and they said the answer’s what did it said we’re not concerned with that, we just test what we receive. Well the jury was kind of concerned with that. But it’s hard to prove you know if a person’s blood if you don’t have any markings any markings on it at all and this is she did what respect of to that set of vials saying blood tube not labeled sometimes you’ll see that so Texas transportation Code 724017 still is relevant has to be proved out of the opinion that it’s got to be proved in a consent and a warrant situation and its interesting because 724015 is where DIC24 languages and it says the language “if you refuse to consent, the officer can apply for a warrant” well then there’s 724016 and then the very next provision 724017, which states that it has to be by qualified person and a insanitary place. So it makes sense that the intent was if it’s two sections after the officer can apply for a warrant, then why is it not relevant in a warrant situation. Why do you deserve less protection if you refuse and if you consent, it doesn’t really make a logical sense but this is the sanitary place and it has probably been cleaned up a little bit since then but in the beginning we went and checked it out and there’s kind of mold on the air conditioner and caution tape hanging as the ceiling fan switch. There’s a regular trash can right next to where the person’s arm is and then like food and drinks were thrown in there this. It just kind of makes you wonder you know how sanitary this is here’s an interesting issue. If you ever see something like this for where it says that the blood was homogenized, you see they on the condition they could’ve checked normal thick or clotted, they didn’t check anything. They’re not telling you the whole story there to because it was clotted but they didn’t tell you that because they tried to homogenize it to put it back to the way that it was before but they wouldn’t had to homogenize it if it wasn’t clotted but they didn’t tell you that.
So if you don’t know what homogenize means umm you would never know that there was a problem to begin with but in this case there was a problem, it was clotted, they didn’t tell you about it but they homogenized it initialed that date that they did it. They had to go back and fix a problem so be on the lookout for anytime you see something it says homogenized this is where we tried to invert the vials properly 8-10 times and you can see the additives still stuck there at the end of the tube.
Expiration dates are on the vials there’s a lot of retesting going on because lab people are leaving and so blood is being retested, check out those expiration dates because the retest the vials may have expired by that time. Here is a lady using the heck outta that hand sanitizer right before she starts handling this equipment, 70 % Ethyl alcohol. Second to last line and I’m done, I won’t be able to show you the—I have a video showing a proper blood draw procedure but we’ve discussed what not to do so I think you have a good idea. There was a—when I got to the hotel yesterday there was a great panel discussion about bready going on.
I just wanted to show you that because this probably the best bready notice I’ve ever received and I was happy to receive it we were in trail we knew that the state cannot extrapolate based on the facts that we had and we weren’t really sure why we were going to trail on it and during the trial, the state figured it out. They were looking at one of the times wrong and so we got to know and I think it might be from one of the prosecutors in this room but saying you know well just [Inaudible] that lower was the analyst she says possibly absorbing and under point 0.8 and then bready and Presceny. We got that right during cross examination we stopped the trial and the case was dismissed but that’s from Harris County, Devon Anderson was here speaking about how they disclosed bready. This was during trail they just figured it out they gave it to this on a sticky note. I thought that was pretty classic and it was nice to see that but anyway that’s all I have time for.
Thank you very much!
[Clapping]
[I’ll discuss it in a minute but if you want a copy of it, write my email down david@dwidb.com and I’ll send you a copy of the PowerPoint. As we progress through this. 1903 cross examination; I know we have a lot of lawyers if tried a lot law the cases. I’m looking across the room and each of you has your own style but as we progress through this, I want you to maybe pick something out to add to your style or correct in your style. I’ve tried a lot of cases over the years and been with a lot of good lawyers. When I was at law school of Baylor, I read a book “the Cross Examination” “The Art of Cross Examination” by Francis Wellman.
Well if you haven’t read this—how many of have read this book somewhere, okay, wonderful! you read it in law school typically and its interesting its informative and its about 350 pages but it doesn’t soak in it’s like reading a good novel. When you’re young maybe 20, 22, 25 not that you’re not intelligent but you don’t have life experience. We read the same novel when you’re 40, 45 it means so much to you because you understand things you didn’t see before.
If you have trail experience, re-read this book it was written in 1903. That’s right 1903, it was by a person he researched the most prominent lawyers of the time and he came up with a strategy that these prominent access for lawyers that in 1903 used. I know we all have egos and all like to think we created the wheel but we didn’t and we don’t and if you study from people who’ve been in this situation. I think you’ll learn a lot put in all together and then you add it to your cross examination, nobody can tell you how to perform a cross examination but you have to know your style and you have to be yourself the only caviar I would say to that is if you keep losing being yourself you might think about being somebody else. But that is just I study, learn and I’ll go through these techniques when you see the DVD these are points I think I stress. We will go back to that in a second.
Strategy, Okay I can break this into 6 sections, the manner of your cross, the missing evidence, What not to ask, What not to do, The war of experts , Learn how to take a hit and essential links. So these are the break downs and then we’ll talk about each one separately.
The manner of your cross; which to many of you will say well that this is elementary, this is the simplest thing to do in the court room. This is the hardest thing to do in a court room. When you’re in the court room you’re fired up hopefully, you’re fired up and your emotions take over and even the most experienced lawyer, they lose control. I don’t say lose control and look foolish but they in a like we’re all calm cool collected today this isn’t a court room atmosphere. How many prosecutors I have here today? Oh goodness about half to a third, third to a half. My speech is geared toward defense attorneys but it’s also applies to prosecution too so… Awareness of your demeanor is the core fundamental of cross examination. This is what I believe okay. The first lesson of our art and it is an art is to control our manner toward the witness under the most trying circumstances. Now do you think I wrote that statement? That is a statement as you can tell from the language, it was written in 1903, the prominent lawyer of the time. The first lesson of our art is to control our manner towards the witness and I have to think about that it sounds simple. This is the most difficult thing in the court room the manner of your cross. Is your manner Strategic? Planned to meet an objective? Does it demonstrate emotional self-control and self-awareness? Now self-awareness word is the key to being a trail lawyer this is what I think. Is your manner an unconscious reaction are you not aware of your surroundings? You expose the lack of self-control or you exposing a defensive position. Exposing lack of self-awareness; Folks the juries, they don’t get to talk, right?
What do they do? They’re just observing probably the first time in their life, they’ve never said a word, they’ve had to observe what’s going on and they’re observing you, they’re observing the way you moving your chair react with you client and react to questions. Is your manner of your cross—I just put these up here only say when you are in trial you got to be able to say what’s going on with me, with me? Am I aggressive or am I assertive? Hopefully you’re assertive, am I sarcastic or am I neutral? See when those adrenaline kicks in, a little sarcasm kicks in okay and that’s not good. Are you surly or are you pleasant? Not I mean roll over pleasant but I mean under control.
Hostile versus amiable, imperialistic; talking down to people vs. humble. Roaring in the court room loud, are you calm and collected I know you’re saying who am I what do I do in the courtroom, that’s what you’ve got to be able to say and here’s something I want you to understand. If you’re mad, you are what folks? You are losing. Think about that “I am going to show I am mad and that means I really care about the case” When’s the last time you were mad and you were winning the case? Did you realize this? The jury realizes this, your mad and you are over there your blood pressure’s going up, you’re mad.
You’re losing if you’re mad, Okay? The Jury; Is your manner impressing or alienating? I had an attorney tell me “I totally destroyed the witness” came out the hallway, “I tore him up, I destroyed him” We’ve all heard that by all the other lawyers, we might have said it ourselves. The Hysterical lawyer, these are the things that exist in the lawyer’s mind Okay? I didn’t write that. It was written in 1903.
What you think maybe totally different and often is what the Jury thinks by you destroying a witness. I could go into war stores but I’m not going to I have to bite my tongue not going to war stores. It is in the mind of the Jury that you’re addressing, even though the question is to the witness. I used to slam my chair with so slightly to the Jury to remind me of this. One Judge told me, I won’t say which county. He said “look at the witness” he knew it what I was doing it, I was trying to remind myself that it’s the Jury that I’m talking to. I might have slammed my chair too much but anyway slam it ever so slightly or put a note on a desk, “it’s the Jury, it’s the Jury” Okay, what’s the jury? you’ve heard this case 10,15, 20 times, 1st time for the Jury. I didn’t say this. It was said in 1903 it’s the book the second fundamental is to control your manner towards the Judge. Maybe I should be towards the judge, as you can see I wrote that okay. Be aware of the Judge. If I go across the state, I really find a judge that I dislike and there are some judge who are experts at reprimanding you and they know how to do it. There are some judge—but that’s not the question. The question is you always respect within the courtroom you don’t let the opportunity arise. Now how would it arise? Here’s the number one way it arises.
Allow the witness to answer the question, the number one way a judge can hurt your credibility whether your prosecutor or defense attorney. Counsel—first off if you hear that word “Counsel” you know you’re in trouble okay. Nothing good comes out after counsel when a judge talks. Counsel; you need to allow the witness to finish the answer. This sounds simplistic, this destroys your credibility in front of the Jury, makes you feel like the Jury think you don’t know what you’re doing. Let the witness discord. Counsel; The court reported cannot take down two of you talking, you say well that never happened, this happens every trail you’ve got to be aware of this and not let it happen it makes you look like an amateur.
Okay. Stand for all objections. I was in the court room watching a good lawyer, he sat at the table and made an objection. I’m not talking about a young lawyer, this is what we heard. Counsel, that word again, you need to stand when addressing the court and now the Jury says “this is an amateur we’re dealing with” you have to be aware of these things. Don’t ask the judge to instruct the witness to answer the question. These are the responses you will get. “I believe he did answer, move along” don’t be an amateur, if you’ve asked the judge to instruct the witness to answer the question your question is probably too long, too involved, too complicated, break it down and leave out the sarcasm.
The third fundamental is to control your manner toward the prosecutor. I know we’ve got a third prosecutor and this is meant for defense attorneys and as a prosecutor you got to control your manner toward the defendant I mean the defense attorney maybe the defendant Hah! One time a prosecutor—we had a transcript issue going. I said “Judge I’ve never seen this transcript” and so the prosecutor comes over and slams the transcript on my desk, I got finished with mine, I went and slammed it back on his desk. Now how foolish was that, you think about these things for the rest of your career. You got to control your manner towards the prosecutor and why do I say this? I don’t say that the prosecutors run over or defense attorneys run over the prosecution. Awareness, your fight is not with the prosecutor if you’re a prosecutor your fight is not with the defense attorney. Be pleasant, even when you feel a personal attack. Who we’re dealing with? We’re dealing with the Jury. I don’t mean let people run over you but I’m just saying don’t start a war you don’t need to be involved with, okay.
Let’s get to a different subject.
“The Missing Evidence”; Okay, this is core, this is critical. So many cases come alive because of missing evidence. Your cross exam questions are not in the police report. Okay. You’ve got to know what you’re dealing with. You got to know your subject matter but you’ve got to know the police officers write down everything they see bad or wrong. When I look at the police report I’ve got about a 100 things I’m looking for and if they didn’t mention them I assume my client did them correctly not of that I’m looking at the DVD also. When you ask a question, you got to block the retreat of an officer to cure the problem.
Here’s how you block the retreat. Officer you have made stops or you would ask the driver if they were on the phone, or texting or distracted, you say you blocked the officer from saying he hasn’t done it before. If your client was weaving, you would say “did you investigate whether my client was doing one of these things?” “Did you asked my client why he was weaving?” In the past you have. I often say in other reports you have written you see, “yes I have” “in other reports you have written that people had a problem walking and now the reports you’ve written this this this this and now the reports, I’ve got a hundred things about prefaced with in other reports” and then I say “in this case, it didn’t have that problem” What not to ask what not to do different subject.
Avoid exponential damage; don’t rehash the direct, please don’t rehash the direct, prosecutors they’re experts at this, not at rehashing directs, they’re experts at putting on a case, that prevail sells the deal before we get to talk, that also testifies, that is great, then they play the DVD, that takes about an hour, then they go over it all again. So three times the juries heard which you’re about to cross examine on and then the normal ineffectual lawyer come in and just chronologically go through the DVD again so that’s the 4rth time they’ve heard the same evidence. Please don’t do that. Go through the missing evidence.
Randy Taylor in Dallas was a legend and he had manual, yellow pages but I sat through trails with him and one interesting thing he would do, he wouldn’t do a chronological cross and he would not have any order to his cross. What do I mean? He had his pages, he flipped though his pages, he starts at the bottom not the top and go up and then he flipped to different page and then he moved around from page to page. Okay? So that’s how you cross. You don’t let the witness know exactly where you’re going with your next question. If you do nothing else start the bottom of the page rather than the top to cut out that chronology.
Evidence hurts more when it is rehashed during your cross. If you don’t think that’s true you haven’t tried a case. A futile attempt only strengthens the witness with the jury. Saying nothing will frequently have a better result in hours of questioning, 1903. Now think about that, there’s a risk award analysis for cross examination. We all know that I teach that you should know it, there’s a risk reward for every question that you ask. Professional self-restraint enables a lawyer to pass by all opportunities which may give a witness a chance for successful fencing. Well that’s the language of 1903 isn’t it? We’re sure it is but don’t give the witness a chance to cure the case. More cross examination is suicidal than homicidal. Let that rest in your lap after the conference, your cross examination, you’re killing yourself, you’ve got to be careful. I didn’t say that, it was a joke made back in 1903 and it is still true today. I’m looking at some judges here and then it is in their heads. You see these things, you got to accept them. A fact that came to light, now this is critical here, “A fact that came to light during cross examination instead of direct multiplies its importance” so if a negative fact comes to light during cross examination, you’ve hurt yourself exponentially, that’s why you have to be careful with every question, that was 1903 that wasn’t today. “Success is knowing when to stop” Don’t give away your final argument. Now I know we have case, lawyers are trying cases across the board. You know how many questions are my normal cross examination of an officer in a DWI case? I have an average of 40 trials a year, 40 jury trials, 15 questions, 15 questions is my cross examination of an officer, a very rarely more than 20.
Sometimes 5, “Success is knowing when to stop” don’t give away your final argument. I can argue better than I can cross exam. That’s what I tell myself. All I need is a little ammunition for my final argument. If perchance you obtain a really favorable answer. Leave it and pass quietly to some other inquiry, 1903. Leave it, you see during cross examination I have a separate piece of paper over here FA not FU, FA on this side right over here. Final argument and I’m noting that right there, okay. Prosecutors often pick up on that I think but don’t wait till the end of the case to develop the final argument, you’ll forget, make a quick note, you don’t write out of page, just a quick note. “The inexperienced examiner in all probability will repeat the question with the idea of impressing the admission upon the hearers instead of reserving it for the summing up”, 1903. The inexperienced lawyers will give away their final argument is what they’re saying. You’ll give away your case, folks don’t think that witnesses are not intelligent don’t think the prosecutors are not intelligent the defense attorneys are not. They can clear up issues. If you’ve got a good issue leave it and hope they don’t clear it up, hope they forget about it.
The inexperienced examiner in all probability repeat the question with the idea of impressing, If I say it twice it means more right? They are listing more. And will attribute it to bad luck that the witness corrects his answer or modifies it in some way so the point is lost. The point is lost and the final argument is lost. Don’t open the door, we are switching into a different subject. Criminal law 101, trial law 101, don’t open the door. What have you excluded? What is not admissible? Now your cross examination officer can open the door to all of this. Prosecutors are on full alert for this, okay. If you kept by the test score, if you kept PBT, if your kept out statements and you can open the door on your cross examination. Often less is more, you can lose your case on cross, that’s what we’re talking about. Questions that you asked give the prosecution opportunity, remember the prosecution is an intelligent group. They’ve tried more cases than you have folks, as defense attorneys; they’re in the court room every week. Opportunity to insert overlooks points. To reply “Oh yeah I’m glad you brought that up, I forgot this”. Replay negative testimony, rebuild the officer’s credibility, and neutralize your final argument. Now let us switch over as a defense attorney or prosecutor. Did they open the door for you? Is there’s some that you want in that the judge says is not admissible that they’ve opened the door to. If that happens you have to preface your question with in response to the statement or in response to the answer. You got to let the judge know that they’ve opened the door.
Regarding great advocates; “Each know the precise points upon which to seize, each watch every accident that might arise in the progress of the case” 1903. Criminal law, Criminal trials, a lot of them looks bad when we get started as defense attorneys and things fall into your lap, if you’re listening, if you are listening. “What the devil did you mean taking a note? Why don’t you watch the case?” 1903. This was what the expert was teaching back then, sure you’ve got to make notes to remind yourself but don’t be so concentrated on the notes so that you’re not listening to the case. Stop on a strong point, end on a positive, even if it means giving up some of your questions. I tried a case with one of the best lawyers, he had destroyed the witness but he gone on for about 5 minutes but I kind of tapped him and “I said you don’t need to go any further, this is over” if you didn’t hear what I said I told him I said you don’t need to go further this is over. He looked at his book, I got 5 more pages of questions, I said don’t do it. He did it. He was guilty, stopped on a strong point. What? If you got 5 pages who cares? Well here’s who cares. Cross to satisfy your clients. This is the problem folks. We all deal with this as defense attorneys, not so much as prosecutors.
When your client is smarter than you, well I think they are, when the expectations of you client control the trail. Well this is a tough issue. Some clients want a dog, they want a show. You have to balance that out on your own and I can’t answer that question for you. I can say if your client wants this and they demand it, you better do it you need agreements or tell your clients that you disagree. “There must be cross examination if you are to satisfy your client. So the defendant’s advocate asks…” Isn’t that interesting? You thought that was a new problem 2015. This was a problem in 1903, as a Counsel you have to listen to your client, it’s a tough issue. Awareness; did you get an answer, this is a different subject. Did you get an answer? You want to know about answers? You read transcripts, just read a couple, who does a pallet work in the room here? How many times do you read the record, the question was asked and the answer had nothing to do with the question. As a defense attorney you got to say “was the question answered?” You know, the problem the lawyer was focused on the next question and did not ask a direct answer and did not listen to get a direct answer to the question asked. Just about being a trial lawyer, just about winning cases about picking up on things, if you don’t want to answer the question then that’s when my flares start going off for me, okay let’s skip to the second expert. What do we got here? 6 minutes okay.
“The war of experts” now here we are in 2015, is the police officer an expert witness? Well, you better believe he is, to what degree? You don’t know. Mainly in DWI cases, they are experts, many of them have tests 100s of times they’ve test more than you’ve had trails. Many times prosecutors just put some on witness stand, put that automatic button on and it’s over. Now that’s not talking down to anybody that’s to say these people are smart, efficient, effective. The more experience to witness, the fewer the questions. That’s my response. If you don’t think these expert witnesses can destroy you, you are wrong. When you ask a question to a police officer that you know is a highly efficient, intelligent and I’m not saying that they are all. You better know what you’re asking. You’re opening the door. More frequently however, it only affords an opportunity and we’re talking about when you’re asking the police officer questions and this is different “It only affords an opportunity for the witness to enlarge upon the testimony he has already given and to explain what might otherwise have been misunderstood”. Now we just heard the best lawyers in the state talk about blood cross examination. Do you think you as a defense attorney can cross examine a blood expert? Think about it…Do you think they cannot explain every question that you got?
If you got to question to that blood expert, you better have it nailed down. These are not easy cases, we’re switching over to blood. In 1903 they said this, “Many lawyers undertake to cope with an expert on his own ground in some rare instances this works”. 1903. Assume that an expert witness whether it’s a police officer, Phlebotomist nurse or whatever called against you has come prepared to do you all harm he/she can and will avail himself every opportunity to do so which you may inadvertently give him or her” Inadvertent that’s why I’m talking out, Inadvertent; don’t assume these people are going to be your friend on the witness stand, it says if Jacqueline, they are very nice in the hallway, they get on the witness stand, they will destroy you given the opportunity, 1903.
How do you rebut it? You have your own witness; you have your own witness. Now the state has a great disadvantage here. I mean the state has a great advantage. We as defense, have the disadvantage why? These experts are not cheap, what I’m running into across the state is the experts who want $1250 to review a case, they went $2500-$5000 to fly in and testify. Now I’m representing the top age of the clients. Very few people can afford this, so what do we do? We’re stuck with asking question that they cannot wiggle out of or damage you with. You see, It’s nice to have your own experts if you can but most clients can’t afford it.
“It maybe that you have on your side so many witnesses, it’s not worth while a hazard the risks of cross examination” What does that mean? What if your client can afford the expert? Well then don’t give their witness a chance to hurt you. You ask to use you own witness, 1903.
Learn to take-a-hit; now that’s a different subject. In the course of a trial, you are always going to get a bad answer. Don’t believe in it. It’s like when you’re picking the Jury and you get the bad Jury, don’t stay on that Juror, you shift to another Juror. Blindsided reaction when you get a bad answer, you get mad, you get defensive, you strike back with sarcasm, you are condescending well those are all going into the wrong directions.
You got to be prepared, you got be prepared for bad answers.
“In the trail of cases he was alert and resourceful, never became disturbed” I think that’s a good word or confused “even when the unexpected settling took place”, 1903. How do I deal with it? When you get a bad answer, don’t belabor it, don’t react emotionally to a bad answer. Flip to a different subject. Now if you’re married, you’re probably good at shifting, Okay we’ll talk about it in the end, the art of shifting, shift subjects. I have these questions and if I get a bad answer I just shift to another subject, as if it didn’t happen as it I didn’t hear the last question. These are questions that the officer has only one response to. “Would it be accurate to say that you have performed the One leg stand and walked the line walk and turn hundreds of times”. Whoop. “Does the law state that a person has to perform the sobriety tests when stopped by the police?” No. “Did you inform the defendant they did not have to perform the field sobriety tests?” No, I’m going to go through by 10 of these question just so that you know that you get a bad answer be prepared to jump to a different subject. “Can you determine how much a person has had to drink from the smell of their breath?” No, would you agree that the law in Texas is that a person is intoxicated if they do not have their normal mental physical faculties” “Training your talk that a 150 pound male eliminates about one beer per hour?” 12 ounce kind of beer has same alcohol as a 6 ounce glass of wine or 80 proof liquor once ounce? Would you agree that drinking coffee does not sober a person? Exercise does not sober a person? Shower does not sober a person? I’m going through these quickly but these are the things you have at your disposal. Would you agree that at the scene, you questioned the defendant before you read him as Miranda Rights? You are not going to arrest him because of his driving? That’s an automatic folks.
Once you have made your decision to arrest, can you question them about “what they had to drink?” You see? They are asking those question they haven’t arrested your client yet. When you stopped your police car, did you pull about 3 feet to the left? When you approached your client’s car you point your flash light in his vehicle? We’re talking about would you agree your police flashlight has a halogen bulb, were you aware of this the halogen bulbs are very intense and these flashlights are not what you get at home depot folks, they blind people. Take down lights on a car. Explain what a take-down light is. Your car is equipped with driver side spot light, so we got to take down light a spot light, these are high beam, intense beams that blinds people. When they get out of the car, they sit with them probably get out of the car well sure they did you’re blinding my client. Was the driver side door spot light on? It normally is. Where did you point that spot light? Right at the door. Would you agree that the intensity of the spot light is equal to that of the high beam of the car? The operator of a vehicle must dim the light 500 feet before approaching traffic my client was about 25 feet you blinded it. Now folks sometimes during testing these take down lights are still on, keep aware of that, “is driving a simple or complicated test? I only answer this question if the driving look good. Complete a complicated test.
“Can you determine how much a person has had to drink from the smell of the breath” Okay now those questions, those are just standard, open up the can, every DWI case and then you have to adjust to your own case.
Essential Links; The Judge discussed a non-biased Jury. What does biased mean to you? Sometimes I’ll ask a Jury that question. What does this have to do with cross examination? You had to set up your cross examination during void dire. Is anyone in a position at work where you evaluate other person’s performance? Mean you’ll get 2 or 3 and then I’ll say “Do you evaluate both what a person does right as well as what they do wrong?” “Sure we do”. Now what am I doing here, I’m setting up a fact that the police officer only writes down what the officer does wrong and then you save that for the final argument and you put the pieces of the puzzle together at the end. When you discuss this case with your fellow Jurors, you’ll evaluate both sides. You may perhaps discuss why the officer chose only to write a report regarding what my client did wrong?
This is final argument which you set up during void dire. I’m going to end with this.
“In your face versus a suggestion” This is about a trial; whatever strikes the mind of a Juror as a result of his own observation and discovery, always makes the strongest impression upon him and the Juror holds onto his own discovery with a greatest tenacity and after come, possibly to be the exclusion of any other fact in the case. This is about a trial, you lay the facts out there, and you eliminate the damage and give the Jury credit for being smarter than you think they are, okay? Thank you very much!
[Clapping]
Law from this last year and then some legislation as well and I’ll try to get you back on schedule if I can. Defense council will cease placing air quotes around these references to the justice system. So if you’re doing that and your trials don’t do that anymore.
Alright let’s talk about some search and seizure cases. Have any of you had a chance to use Heien v. North Carolina yet? North Carolina had a statute about tail lamps and the officer thought it said lamps and it said lamp. So there were some confusion about whether you had to have both tail lamps or one and the actual statute was interpreter by the court to say “one”. But they said that was a legal error, it was objectively reasonable because of the way the statute was written. This officer was reasonably well trained. No court had ever interpreted the statute before, so they said in this case ignorance of the law was okay and they uphill the stock even though the defendant did have 1 tail lamp left.
So Ignorance of the law is no excuse, then the guy says,” I didn’t know that either”, so we’re still working on that. So here comes United states v. Alvarado Zarza and they say he is pulled over for failing a signal a 100 feet in advance of the turn and the defendant said that, “I wasn’t turning, I was just changing lanes”, and they tried to argue, “Oh! that’s ambiguous we aren’t sure about that, so he should get the same benefit of ignorance of the law that they gave in Heien” and the 5th Court said “No because Texas law’s real clear between difference requirements of changing a lane and making a turn” so the officer’s mistake if you look at the statute when you read the statute wasn’t objectively reasonable, it was just a mistake. So they didn’t give him the benefit of that mistake.
So I think the only time we’re going to see Heien is when you really do have an ambiguous statute that hasn’t been interpreted by the courts yet. So some people saw this as this is going to be a big area of the law, I think it may be a little narrower than what we expected.
Alright one of the biggest cases we have this year was on warrantless blood draws because we know that McNeily came out last year from the U.S Supreme Court and everybody was scrambling to see whether our state mandatory blood draw statute was going to be able to survive McNeily or not. Well when the reality came out it appeared that it would not. It was a 50 page paper. Went through all the possible exceptions that could save this warrant less blood draw and then determine that it wasn’t able to be saved, it was unreasonable and they said a warrantless nonconsensual blood draw is unreasonable under the 4thamendment unless there is some recognized exception to that and they found no recognized exception IN [INAUDIBLE] so I very carefully went through that 50 page opinion and I rode on it and I studied it and I was like, “Well good we finally have an answer” and then they granted motion for rehearing. So it was submitted in March, we still don’t have any answer. The makeup of the court has changed drastically, we have 3 judges retiring and going off and we have 3 new judges, so I don’t know we don’t know what’s going to happen on this. There were some new arguments made in the motion for rehearing and we’ll just have to wait and see what they come out to be in [inaudible] they’ve taken their summer break so we’re going to have to wait and see what happens later on.
But let’s look at what the Texas of pellet courts has done so far and they are just a myriad of opinion on warrantless blood draws. Many have had PDR granted on them and my understanding from the court is they’re just kind of lumping all those together and when they re-decide the [inaudible] those cases will also be taken care of in that.
So the 6th court of Appeals in Texarkana did, Reeder v. State almost all of the court of appeals have now fallen under the same ruling as [inaudible] they have said a statutorily imposed implied consent is inadequate, so just because we have an implied consent statute, that’s not going to save a warrantless blood draw and the rational that they give in [inaudible] makes sense when you have a refusal that is a withdrawal of any consent so there’s not implied consent left once you make a refusal. So Texarkana says “that implied consent is not going to save it”. 6th Court of Appeal also did Sutherland v. State, again they found that implied consent wasn’t going to be enough and they also went a little bit further in this case and they analyzed the case on a specific fact basis and said “there are not enough facts in this case to show any kind of exigent circumstances” because we know that’s an exception but in this case they found the facts insufficient to establish exigent circumstances, so that didn’t save it either.
They also did Holiday v. State absence of a warrant or exigent circumstances, got to have one or the other. So 6th court is pretty clear. 4th court McNeil v. State; warrantless blood draw based on a mandatory statute that says “if you have reason to believe that they have 2 priors isn’t going to make it” It violates the 4th amendment and they did the same analysis as they did in Sutherland they also decided another case called Weems v. State in pretty much found the same way the first court same thing, unless you’ve got some kind of recognized exception there has to be a warrant for a blood draw, just because the statute—and the court of criminal appeals was very careful in [inaudible] they did not say that the mandatory blood statute is unconstitutional, what they said was the statute doesn’t say whether to get a warrant or not. It just says you shall get a blood specimen, so they found a way around actually declaring the statute unconstitutional and just said “It doesn’t say but we’re saying that you got to have a warrant.
14th Court looked at facts specific in the case, just like McNeily said “you are required to do” and said “that there weren’t Exigent circumstances according to the facts of that case” because McNeily didn’t say all the time a warrantless blood draw is going to be unconstitutional, what they said was you have to look at each case in a very specific fact basis and determine in each case according to the circumstances whether there is any exigent circumstances. In other words just the dissipation of alcohol they were unwilling to say that exigent circumstances all by itself. They said you have to look at the facts of each case.
This was an interesting one they were going on exigent circumstances in the 4th court of appeals and the officer said it just would have been impossible for me to get a search warrant because it was after hours and we just don’t have any procedures in place to do that. Well is there any reason you couldn’t have tried to go get a warranty. Well it was kind of one of those “we don’t do it that way” and the Court said “that’s not exigent circumstances” so I’ve had some judges who say I’m the only judge in the County I don’t really want to be on call 24/7 365 so I’m just going to tell them don’t call me in the middle of the night. Well is that exigent circumstance I don’t know if that is going to fly with the courts. First court of appeals; this was an interesting theory very broadly worded objection pretty much “the state has not properly followed the law and the statutory and constitutional law and case law regarding withdrawal of blood” that’s my objection your Honor and the question was is that is it specific enough to preserve it on appeal and the first court of appeal said “yes that’s good enough”. I would try to be a little more accurate and specific than that when you make your objections but if you’re caught kind of unaware then you do the best you can.
The 6th court of appeals said “Just swerving in the lane which you know is one of the favorite reasons for stopping somebody” when there’s no other traffic present. That’s not sufficient to say “Gee there’s something wrong with that guy maybe he needs my help I’m going to pull him over as a community care taking function” and the court said “that’s very sweet of you but that’s not enough to get around some kind of reasonable suspicion”. The first court of appeals, and this is the case I think I did end up putting it in the paper maybe and I think I spelled it drumgoogle instead of dromgoole but this was an interesting case on a blood draw. She complained that her medical circumstances weren’t communicated to the magistrate who signed the blood warrant.
They issued an opinion and then withdrew that opinion and substituted a new opinion on July 25th that’s about 41 pages and is a really good opinion if you’ve got the battle of the experts going on, you can see how the court analyze that and the fact that the trial judge made a finding of credibility of the expert witnesses who testified that that weighed very heavily with them. So that just came out on 7:25, didn’t change the result but they did withdraw their opinion and substitute a new opinion. You might want to check that opinion out.
What about double jeopardy? This was interesting case, you had somebody charged with intoxication assault and felony DWI. They argued that that was double jeopardy, the court and criminal appeal said “no, we looked at it we did all the proper analysis and you can charged and convicted of both those offenses” so you might want to look at that case, kind of of an interesting one.
What about the cases involving the elements of the DWI. Well we know one of the challenges for prosecutors and one of the opportunities for defense attorneys is always trying to wheel the defendant, putting the defendant behind the wheel. This is one of those types of cases. Defendant’s in the vehicle and the vehicle’s running, he in the driver’s seat, he’s the only one in the vehicle, he’s the only one in the vicinity, there are no alcoholic beverages in the car or maybe right outside door, around the vehicle. And the Court said “that’s enough to make a reasonable inference that that person was driving, that he consumed alcoholic beverage somewhere else, drove to the location where he was found reclined in the driver’s seat and asleep”. And I’m saying “Hey at least he wasn’t in the water burger drive through lane, so I think he should get some credit for pulling over and going to sleep” but they found that this was sufficient to charge the defendant with DWI.
This is another new case that is not in the paper, there’s been a motion for rehearing filed on it but this is the one you might want to watch because this question has come up to me many times and I see different jurisdictions handling it different ways and that is “what do you do with the allegation that the defendant had a BAC of 0.15 or above? Is that an enhancement so does it only come out during punishment? Is it an element of the offense which means that then the Jury has to make a finding on it, how is that supposed to be handled?” well in this case interestingly, the court said “that allegation of being greater than 0.15 is an element of the offense and it has to be decided by the Jury in the guilt innocence phase of the trail” so how do you handle that on a charge? Do you find him guilty of DWI and then you say “if you answered this question yes, go to question 2, now do you find that the blood alcohol level was 0.5 or greater” that’s the way until this case—till I see what happens with this case. I sat in Bear County couple of weeks ago and that’s the way we charge the Jury on it. Before this case came out I was always of the opinion that this is just an enhancement and it should be handled in punishment but the court here said “because it actually changes the offense from a class B misdemeanor to a Class A misdemeanor, it is not simply an enhancement, it is an element of the offense.
So you can look and see what’s happening in the jurisdictions you try cases in but this is an interesting question as to how do you charge the Jury properly on the Class A misdemeanor DWIs and they also looked at what does the word blood mean? And should we be giving the Jurors a definition and they said “in this case blood means whole blood, it doesn’t mean plasma or any other component of blood” that they’re talking about whole blood and that was the issue in this case. So two interesting holdings in this case motion for rehearing has been filed as far as I know nothing else has happened on it since then but that might be one that you want to get on your radar and kind of follow and see what happens with that.
Those were the main cases that came out and mind you that I’m limiting that to this year because otherwise the paper and everything can go on forever. And If I said something in 1903 you might think I was there and I don’t want you to get that impression, so that’s a limited time snap look at what the Texas courts have done in cases that involve DWI. So now let’s look and see what some of the things happen in the Legislature. Always a fun to look back, now this maybe an urban legend but I heard that when they excavate it to do that capital extension, they found some early bones of a legislator buried there. So if you’re a legislator “it’s all in good fun, it’s all in good fun. Remember our pay raise maybe next time”.
Alright let’s look what they did with DWI luckily there are some new crimes to chores so they kind of let up on DWI a little bit. The One disappointing thing is—one thing we’ve been trying to do since ages and ages was to get deferred back and it makes sense and you can get deferred for all kinds of felony offenses that you ought to be able to get referred for a DWI, not this session but last we had everybody on board even MAD and it had a negative fiscal note because of the damn search arches, so it didn’t go through.
This time there were bills that I cheered asking to repeal the surcharge system, those do not go through either. So unless we find some other way to fund the trauma centers, I have a feeling that the surcharge system is here to stay. Sorry we tried. So this is a big one “How many of you do occupational driver’s licenses?” Good lord is there anything more complicated in the world? You’ve have to have every code book that has ever been produced by WEST in order to figure out when your client’s eligible for a license? What’s the waiting period? How many contacts did they had? How close together are the contacts? This position that I hold now unfortunately I seem to have become the occupational Guru for the Judges. If I could’ve picked one area this would not have been it.
So I love 22 46 and that now, your client if they get an ignition interlock and they have a suspension for any intoxication offense, they can get an occupational. Halleluiah! There’s no 90 day waiting period, no 180 day waiting period, no 1 year waiting period. We‘re following the trend nationally and that is they finally figured out. Guess what? If you suspend somebody’s license for a year, they drive anyway, Yeah! So they’ve decided maybe it’s better to have them have an inner lock equipped vehicle and drive then it is to just send them out there and not look as they drive up but to probation and counseling and all the other places we tell them they have to be able to go. So now they will be able to get occupational license immediately. If they have an ignition interlock installed and it’s supposed to be installed before they come before the judge and ask for the occupational. Has to be on each vehicle owned or operated by applicant, that is fun. “Hi Honey! From now on when you drive your community property car, you can have to blow into this machine; come on it’ll be fun”. That might be unconstitutional punishment, I’m not sure and then the other great thing is if you get an inner lock occupational, no time restrictions, no geographical restrictions, you don’t even need to prove essential needs. We don’t really care while you’re driving as long as you’re having the inner lock.
So that’s effective September 1st and I’m so hoping that it will make the questions that flow frequently about “can I give this person an occupational? What are the restrictions I have to have on it?” This is going to make it I think a lot easier for everyone. Your client can basically drive as long as they are willing to pay the inner lock expense with no restrictions on time, geography and all kind of stuff.
Question?
[Question asked by the audience]
That’s a good question! The inner lock must remain on the vehicle for the term of the suspension—formally when you get a regular inner lock and you’re on probation and it was for at least for the half the term of probation but this language is for the term of the suspension.
[Question asked by the audience]
That’s a good question! I don’t think it really addresses that, it just says its effective Sept 1st; it should be worth a try. Other Questions? Yes sir?
Audience: Does this only apply to suspensions resulting from a conviction and not for ALR suspension?
Speaker: It does apply to ALR suspension for intoxication offenses. So if you’ve got marijuana suspension, this isn’t going to help you. Because of course the ignition inter lock is not going to do much to detect that. So it is for intoxication offenses. Yes sir?
Audience: Like after a conviction and a jail time, their license has been suspended, who is going to monitor the interlock [inaudible].
Speaker: Asked like a Judge! that’s always been the issue—is put this order out there and then who pays attention to whether or not my orders are being followed or not. There is a government code section that allows you to send them to the probation department for monitoring and they can charge up to a $60 a month monitoring fee. I can tell you that probation doesn’t want to do that, they were opposed to this bill. They hate ignition interlocks. But there is law available that would allow them to be supervised. Any other questions on 2246? In the back of the room.
[Question asked by the audience]
Speaker: I can’t hear you very well. Why don’t you come—just walk down here because I’m old. I haven’t seen any case law on that. There was a statute—we are going to talk about the fact that they approved some low level THC distribution for cancer patients. That bill did pass but I don’t know what’s that going to do. Haven’t seen anything yet. The Jurisdictions that have legalized marijuana are having a real hard time saying, “When are you impaired?” So that’s going to be an issue for all the States sooner or later. This bill is not in your paper; House bill 441. You know how hard it is for them, for DPS to timely get your client their occupational license and then go back to the Judge and say Judge “judge can you extend this for another 30 days?” well, I think they wanted like 90 days and they split the baby and now that original Judge’s order is good for 45 days. So I don’t know if that’s going to be enough to cure the problem but it’s extra 15 days, so we’ll see if that helps at all.
House Bill 3791; you can get copies of videos showing the stop, the arrest, the conduct of the person stopped during any interaction with the officer and this actually is straight from the recording entity. So I guess you can like you can a get a police report, you can go get the video which should be interesting because getting the video has always been such a problem. “It’s out there we know, we’re looking for it, we don’t know where it is, so and so has it, Oh I already gave it to you, no you didn’t”. Videos are pain in the butt, now guess this is one way they thought it would help that situation or a procedure in which the specimen of a person’s breath or blood. So you saw those videos, if they take a video of your client getting their blood draw and you’re entitled to have that but notice that it’s effective 9/1/15 only for offenses occurring after that date.
So you’re not going to be able to go back to get the videos, it is just going forward. 1070 this makes sense; If they are in a residential treatment facility and they take something that is equivalent to DWI or drug offender program then the Judge can wave that requirement, in other words they don’t have to take it twice. That makes sense, what? A law that makes sense? How did that come in here?
1264; places have years of blood evidence, stored up because nobody seemed to have the authority to destroy it. So now this makes it clear, they have to retain a blood or urine specimen for 2 years or whenever the statute of limitations runs depending on what the offense is. Or if the term of supervision that the person gets it over with and they’re off supervision, can be destroyed or I guess if it’s dismissed, they got to hold on it till the statute runs. But it gives agencies that have been holding on this blood evidence forever a chance to clean out their file cabinets I guess.
Alright what did they do with the alcohol? They’ve added a drug offender program to what can be required of offenders under the age of 18 who engage in conduct constituting a drug related offense. That makes sense, before the only thing that was in the statute was an Alcohol education program, so now they have broadened that a little bit. Other drugs? Man that’s Synthetic stuff. Just there always, there is some little chemist with his head down on the table figuring out “I’m going to change this molecule next! Oh they defined that one, I’m going to change this one!” so synthetic Marijuana has been a huge problem, they continue to change it as they add to it, so they’ve changed some definitions, they also allow some definite, some things to be added when the legislator is not in session, so it doesn’t has to be done by the legislator, it can be done by the Commissioner of Health.
So they are trying to get ahead of synthetic marijuana problems. They’ve increased some penalties in that area as well. This is the one I was talking about SP 339, allow—well this is for epilepsy actually, allows THC Cannabis for intractable epilepsy. So they’ve made it to where dispensaries can have license to dispense this to patients who are suffering from that condition. You know that the legislator reacts to stories and to people who come in and show them, “this how I am being hurt by this” so this was a reaction to that. They had a lot of people come and testify about children who could really be helped with this low THC Cannabis and they did pass that. There were a lot Marijuana laws that were filed this time. This is one of the only ones that actually passed. There was everything from making small amounts, a civil penalty to doing away with all the marijuana statutes and none of them got very far. But you’ll continue to see those getting traction and you’ll see them again in next legislation session as well. What about driver’s licenses?
1888; they are concerned about people driving a commercial vehicle without a CDL, so they’ve increased a penalty for that. It’s still a Class C but you can go up to a $1000 and then if you’ve got a previous conviction within the same year, then it actually becomes a Class B misdemeanor. So let’s see how that helps. So I don’t want you all to go out there and drink and drive. I have—I believe I’ve gotten you back on schedule, so have a wonderful break and thank you for having me!
He’s not the only one that says it about my email address. My victim say it “everybody says it” so usually I say “Hey give me yours, I’ll send you an email”. So, Jim has asked me to talk to you guys about intoxication manslaughter and kind of the hot topics. Intoxication manslaughter is the hot topic.
When you look at DWIs, usually DWI is 1 step away from someone dead because of a drunk driver and that becomes a hot topic. So I’m going to try to touch on a bunch of different things that we do in our office working closely with the defense lawyers that we have on our cases. In these cases to try to help you guys out so that we all have a better case as a whole, but if I’m talking about something and you guys have a question, just shout out at me, “Hey Alison ask me about it” I’m happy to answer it, okay. So the first thing that we see a lot is from our victims and the defendant and the defense lawyers because a lot of times these cases are new to defense lawyers that pick them up, they are always used to their dope cases and the aggravated robberies and somebody walks in and says “I made a really bad mistake, I was driving drunk, somebody’s dead, I don’t know what to do” Lawyers are like, “Oh I’ll handle it” and they call the prosecutor and they’re like, “Hey what’s going on? What you got? I don’t know what to do”. So the case gets filed and you look at everybody you know like “what do I get?”
The short answer is that you get everything. All the time you never stop, until the case is disposed, you are always looking for something. Outside the box, inside the box, around the box the evidence is everywhere. So as a defense lawyer, as a prosecutor we’re looking for everything all the time on these cases, for punishment, for guilt, for innocence, everything everywhere, like really it never ever stops, I really mean it, okay and a lot of times with cases like aggravated robberies, murders even, dope cases, they’re inside the box thinkers, officers are inside the box thinkers. Sometimes as a lawyer you begin to think inside the box. So these cases require outside the box thinking a lot of times. So we all kind of have to open up our minds and look for evidence outside the box.
So it’s easier to kind of compartmentalize that, alright, I say things outside the box and then I say, use the boxes, sorry! But if you do that it’s easier to think about cases. It’s kind of like at least 4 crime scenes, right? So First you have your actual roadway evidence that you’re looking at, then you’re going to look at the cars themselves, like at the witness’s and at the suspect’s. As least those 4 areas are going to lead you to all kinds of extra evidence outside of those 4 boxes. So if you’re able compartmentalize that case into those 4 areas, it’s going to lead into other places to look for the evidence that you need, for a punishment, mitigation and playing on proving the case, or trying on dis-prove it. I think Just like David was talking earlier that he usually focuses on his defense friends. Naturally my language comes out as a prosecutor. So I try really hard as a neutral and try talk as a defense lawyer sometimes but it’s hard, okay? but I try. So if we try to look at these 4 scenes, you guys can think about the large amount of evidence that comes out of just those 4 places. Right, not to mention the before, during and the after, in all 4 of those locations. So when you’re looking at all 4 of those locations, I tell everybody the officers, the witnesses, the families, the defense lawyers, nothing is too small. Right, if the defense lawyer bringing me the mitigation package because all of those defendant, our first offenders, they want probation and my family thinks that that guy should get the death penalty and I have to explain to them that why that is not possible. I have to give them that mitigation evidence. So I need every single detail, likewise I need the officers to give me every single detail to give that guy prison time. So why not get every single picture? Hundreds and thousands of pictures of every single thing because you just don’t know what is going to be important at what stage of the trial or the case. You just don’t know when you are out there and all that and all that evidence goes away almost immediately, not like some of the other cases like it will be around forever as soon as those car start going on the roadway again, the evidence is gone. So you need it, you want it, so you get it then.
So this is Michael Morton, right, that’s our question, why not turn it all over, right, prosecutors at least aren’t supposed to hide the evidence or changing the facts. I can’t tell you how many times and the guys that are here that work with me in my office, that all I say is “the case is what it is”, I can’t change it. I’m just there to show the facts to the jury what the facts of the case are. Just like I am there to give it to the defense lawyers and the defense lawyers hopefully is there to show the defendant what the facts are. Nobody can change them, what happened happened and we’re just there to show everybody the truth. The other important people in these cases are the people that are involved. Right, the witnesses, the absence of witnesses, the people in the cars, ask them what they see or what they heard. Because that is important right? Sometimes even more important is the order in which those things happen, whether they see something first or hear something first. That makes a difference on how their mind processes the information that they know. So the detail with which the evidence is gathered is important either as a prosecutor or as a defense lawyer. And then the end when you’re doing the investigation on the front end and you too much information, one has had ever been hurtful to anybody? It is never because in the end if you get it and it end up being irrelevant later, at least you got it. Right? And then I tell my prosecutors if we are able to go and find—like with blood right, if you think that there is exigency, you talk to that officer and they did a terminus exigency. They pull that blood without a warrant, at least you got it. You fight for it in the court later but at least you have it because if you don’t have it you cannot fight for it and if it is irrelevant then you find that out later but at least you have it. Because you don’t have that fight in court later on either side. Well you didn’t get it and then we are looking at defense lawyers going “you are saying that this guy is a good guy but I don’t see it because you didn’t bring it”
Alright, the evidence of the damage is in the details, right? So the more photographs either the defense lawyer or his experts bring us or our experts brings to the defense is helpful. Looking at the photograph we can help wield the driver just based on the photograph. So what if I told you that in this case you have 2 people in that car, you have one person that has a nice injury to his forehead and you have another person who has a really bad gash in the back of his head in the right side. Based on this evidence you are able to wield the driver and those two people with those injuries right? Yeah? Who is the driver?
You are wrong but why? Why do you say that?
[Answer from the audience]
So I don’t know if you can see it all the way back there but there is a large dent in the B pillar of that car. It dents the B pillar all the way into the front passenger seat. So if there is human in that front passenger seat you would expect them to have an injury on this side of their head right? Towards the back probably, since the back of your head lines up with the B pillar normally.
Can you guys see that from there? If the owner has changed front passenger or restrained front seat passenger when the car rotates, their head is going to hit the windshield.
Can you guys see that from there? It might be bad from there and you can tell from the front of the damage the direction of the car travelled after impact because the Indies damage pulls to the left and you tell the color of what car was that it hit, right? Brown, tan, gold, anything like that, school bus color, yellow maybe. Alright, equally as important is this for the officers to get you interior pictures of the vehicle. Defense lawyers, if you don’t get those, probably a good idea to go ask them to go look at the car right before they get rid of it, if they don’t keep them. Because a lot of time police agencies—over our objection okay, we are not asking them to destroy them. It was up to me I will keep every single vehicle and every single crash until the case got disposed. It is just not economically feasible, that is what they tell me but get some pictures into your year. Because we can look at all kinds of stuff, I know this picture is bad but this is the only one we had, okay. You can open containers that might be helpful for you, you can take pictures of the airbags hopefully before they get cut out for DNA purposes because sometimes you have circular airbags, square airbags which will help with injuries on your people that are in the car. If there is blood or damage to other internal components, the steering wheel got knocked up which might show different injuries on the people in the car to help place them in the vehicle, where the bodies were, will help you with how the car rotated, where people and up, people who were moved by the EMS, if they were restrained or not. Other debris that were in the car, we see people’s purses, identifications and stuff like that, hopefully that is not other people’s identification because that might be another crime but those other pieces of information—if those witnesses leave, those are other witnesses that we are all going to want to talk to and we will have their information in the car.
Seat settings; right if you have somebody like my height and somebody is like 6.4 in the car and that seat is pushed all the way back but that 6.4 foot driver who is wasted and drunk and said “hey she was driving” “well, she is not going to be able to touch the pedals” the same with the mirror and wheel settings, If you have a car that is nice enough, the defense lawyer—okay I will talk to you—you guys owe cars nice enough you can move the pedals up and down and move wheel back and forth, mine doesn’t do that, paid by the state but you all probably do, right. They all kind of move automatically when you put your key in, you got the nice Mercedes and stuff. I drive a Ford, okay, they all come in nice and neat. They set to your setting. So that is helpful to know too. Alright, we actually had it happen in a case and I thought it was super cool. Right, some guy gets out of the car, same wheeling issue right, a lot of times you have—somebody saying “I’m not the driver, or I am the driver or she was the driver” they do this. Or if you have a soft sole shoe on and you are pushing on your brake or your gas pedal hard enough sometimes it will depress it on to the sole of the shoe, which is nice. Anyways, pushing on the brake, I’m sure that the defense lawyers can figure out a nice, mitigating, argument to makeup a closing arguments, so they try to get away and they have invasive action for the crash. That picture’s helpful to you too.
Car recalls; we just had another set of hundreds and thousands of recalls come up. This is something that always should be checked. We tell all of our police agencies in our jurisdiction to check recall all the time because this comes up every single time; we check them multiple times throughout the duration of the case because they come up all the time. Defendants will come to lawyers “Hey there is a new recall on my car, this is why I am not guilty” it is usually because the windshield wiper didn’t work and it had nothing to do with the crash but you still check them. Always check them, recheck them, triple check them, our reconstructionist now check them without us asking which is nice, but I would check them, defense lawyers I would have your experts check them too, just because you want to be able to say “yes we checked the recall, this is what they were, they didn’t have any bearing on the crash” or they did, maybe they did. Yeah we had a case several years back when the prosecutor tried a hear a Toyota, that Toyota had a recalls; some of the recall could have played a role in that crash. A big Toyota recall with the accelerator and the floor mat and all that stuff, and nice thing about it was, that defendant was an idiot. He said he knew about the recalls and chose not to get his car fixed. We were also be able to prove that the recalls didn’t really have any bearing on the case but at least we checked them because it could have been a really huge problem in that case if we didn’t check them, check them. You know sometimes there are issues that will warrant us to dismiss the case, reduce the case, change our offer on the case but bring that information to your prosecutors and make sure that your prosecutors are checking them too because it can be a really big problem on the complainants car too, on all the cars if there is a 3rd car was involved because that will change all that information too can change the way that the crash happens completely.
Okay, here is the first one, think outside the box.
[Audio recording plays]
“AAA: We are going to go ahead and do [inaudible] so we can get a quicker response and we got a flat tire, did you have a spare.
Mr. Mindehall: Yeah you know I am wondering about that because last time I got a flat tire, I cannot remember whether umm…you know [distortion]
AAA: Mr. Mindenhall? Mr. Mindenhall? Hello Mr. Mindenhall? Mr. Mindenhall? Mr. Mindenhall? Mr. Mindenhall can you hear me?”
Alright, that was a AAA phone call that had that case gone to a Jury, the jury would have heard, the complainant died, because that is what you guys just heard, you heard the crash occur and then afterwards you heard the tire rubbing. The defendant’s car got connected, he were ins our complainant who had pulled over on a double shoulder, shoulder is 14 feet wide and was on his way home from quire practice with his church and he had a flat tire so he calls AAA. You heard in the beginning of the phone call, they go on and she upgrades the call prior to that clip you heard because he is on a freeway but that shoulder is wide enough for 2 cars to sit on its side by side and you hear the crash and then you can hear the tires rubbing because the defendant is attempting to detach his car and flee. He is unsuccessful so he flees on foot, Canines were able to find him, he had arrested charge and convicted of intoxicated man slaughter. The defendant in that case wanted to go to trial until his defense lawyers heard that tape, he pled guilty to the judge; he is doing 10 years in the Penn.
Now that defendant—we have gotten that tape because prosecutors Hanon in that case who is now a judge. On a whim, sent a grand jury subpoena for a AAA. Maybe they have recorded it or maybe they don’t. We don’t know but the deputies in that case saw that his wallet was open; he had his AAA card out, hey probably a good idea to pick it up right? I don’t know why it was out; he was on a side of the road, who knows? Who knows why he was there but then you get really good evidence, you find out a whole lot of information about it, not good for the defense lawyers but there might be situations where it is, I mean you can also get good insurance information and stuff like that on both sides because insurance stuff is always recorded. The AAA caller on that case also became a very good punishment when it is for the prosecution in that case because she testified in the punishment hearing about she never worked in other case after that. Never, she left the state, she would not drive down the freeway, she now does work—that doesn’t involve any potential victim at all. All from the deputy who thought it was a good idea to pick up a AAA card. Good investigation right?
Same can be true of defense work as long as the evidence is there. That is why I always say getting it all, all the time.
Here is the second one, now this is a funny one, that one was sad. This is funny
[Video clip plays] [Drop tight, right leg still moving, right leg still moving, right left still moving, I can still move my right leg, she is rubbing my love handles up top, up top, left leg still moving, left hand, left hand, left hand, left hand, left leg, right leg, right leg not strapped tight, she is sticking it in me in my left hand, she is sticking me in my left hand, she is telling me not to move but I am still moving it, I am still moving it, She is saying “Sir”, right left still moving, right leg, right leg, I am still feeling my right hand”
Alright so funny, right? Okay? This guy was on PCP and irritated everyone by narrating his blood draw. The video started before and actually goes on after, he narrates whole thing “she is strapping my right hand, she is strapping my leg” well sir if you actually watch it as a prosecutor in this case did very detailed, many times she switches his right with his left, she is doing things with one hand but it is really the other hand, one leg is moving but it is the other leg that he talks about, showing many different way that he has lost his mental faculties.
It is also helpful to us because in this situation the blood draw was actually very close in time to his driving so we were able to go out and argue that “this guy was on the road, maybe narrating what he was doing in his car, possibly incorrectly” but he is not somebody you want on the road, anybody, even the defense lawyers probably don’t want that guy behind them on the road. He did 100 something days in the jail on his DWI but if we didn’t have this, you didn’t go through it with your officer, didn’t show it to your defense lawyers, that would have been really bad because that guy didn’t remember nothing. Oh it is fine, it wasn’t impaired right? It is something good for the defense lawyers to be like “Hey dude. Excuse me! Are you really sure you were not impaired” so it was just really good to have, we try to video tape every single one of our blood draws even in the hospital, even on fatalities. So we have all the information to give to defense lawyers when they are talking to their clients about exactly what happened. This blood room has 2 cameras in it, one facing the defendant and one overhead that you saw in some of the Tyler sides but it is helpful and it is not there just to show what is happening and make fun of what is going on with the defendants but it is there to help the defense lawyers in evaluating their cases, it is there for the officer’s safety and the defendant’s safety and it shows the jury what happens. So to be able to have that information prior to the trial or go through it all with the officers and the prosecutors. The defendant and his lawyer—it usually ends up in the most appropriate disposition of these cases so we are not wasting anybody’s money.
Alright, another good area that we deal with a lot in our intoxication manslaughter cases is looking up the defendant’s wear about before, during and after the crash. Because a lot of times these guys are offenders, or so they seem on paper when they come in off their bond. Because they bond out very quickly, So we have to look at who he really is? Because when you get into trail, the defense lawyer is, “I’ll give you this, You did a really good job with them, Okay, they look real nice, you cleaned them up, take shower usually send them to AA”, they’ve written letters of apology, they do all this fun stuff while they’re waiting for a child for 18 months. But if we capture this stuff really quickly, sometimes that changes right, So the Media, they usually get their phones ceased right? Their phones come with them during their search incident of their arrest, their phone gets ceased, we do search warrant (1:59:40) them. Very interesting stuff comes off of those. The thing that’s usually missing is a phone call to 911 after the crash. So that’s not helpful for them. Because, Alright, So they’re going to come to the Court and they’re going to say, “I’m so sorry”, Oh Sorry, “I’m so sorry, this is so terrible, I feel so bad, this is the hugest mistake of my life” and you know, “really buddy? When you were there and you probably could’ve helped that guy, you didn’t call 911. You didn’t go help those people, look at all that free stuff you’re get out to me”. I’m Sorry You’ll get some more I promise. Like this guy; (2:00:08) with the recalls on the Toyota, that guy. His name is Michael Peddy. Michael Peddy killed two people in the middle of the day during lunch hour, who were on the lunch hour, Michael Peddy likes to abuse his anti-seizure medication. He didn’t have seizures; I take the same medications for my migraines. He takes like, I don’t know, 10 times a dose I take. Filled it the night before, many many dose were missing. This is a picture of him couple of days before the crash at the emergency room, claiming he had migraines. Then he took on his phone, and then we got off of his phone from a search warrant. Does he look to anyone of you? That he’s having a migraine? Oh No. 2:01:05-10, he got 20 on both cases, the Judge stacked him, he was not a nice individual. This is Kevin Greene, Kevin Greene killed a nurse on her way to her nursing school graduation. Kevin Greene was a Gang Member, That’s off his Facebook page, as this is at the day before the crash, he was also on bond for a Dope case when he picked up his intoxicated manslaughter. So these people a lot of times, they don’t realize what they’re going to do. It’s not an intentional crime so their, Facebook pages, their Instagram, their Twitter, their Snapchat, all that other stuff they use it regularly because they don’t anticipate that what they’re going to do. The murder people, the aggraded people they know that they’re going to do so that’s stuff still on there. So doesn’t really matter. But that stuff is on there all the time which is why the defense lawyer, as soon as they get hired they say, “Shut it down, Wipe it off”, We try to get before It happens, We file preservation letters, we search warrants because a lot of it is still there, or their friends have it. It’s still there. But that’s the kind of thing that we try to show the Jury that, that’s the real person, Right, not this nice guy, dressed up in a suit, who says really really sorry. This is the kind of guy that we met out on the road when the crash happened. This is Kevin Wallis. Kevin Well died from a drunk driver on Memorial Day weekend in 2011. That drunk driver busted into a barricade, almost 90 mph and hit Officer Wallis as he was walking back from his Patrol car, interviewing a witness. That’s a captured still image from Officer Wallis’s own Patrol car, as he was walking back seconds before his death. Pretty powerful image right? So, had we not send out this opinion to get all the images off of all the dash cams that were involved in that crash. The image would’ve been lost. If you look pass that, but its everything, But if you look pass that that’s what we used for but if you look passed it, you can also see some of the other witnesses that are there, there is another crash, another fatality, who is investigating but there is other witnesses there, other officers that are there, the images were able to be hand to the license plates to find some more additional witnesses to get information to what they saw, so there more than just that, one piece of information on an image, so you have to be able to look beyond that to find it. I talked a little bit about Social media before but I can’t stress it enough for everybody, Right, as a defendant inaudible 2:03:52, as a prosecutor for complaining and for punishment evidence, its everywhere. The defendants can’t stay out fit, the complainants can’t stay out fit, we get innovative information from our families all the time, “I saw this on Social media, I saw this”. The Media, these cases are media heavy so the media posts about them, they link it to other things, it’s incredible just like they were talking about earlier, yesterday I think, about Twitter, everything else, I think she gets opinions from both sides. All the time. Because you never know what’s going to be there. For example, take a moment. Oh sorry! You didn’t get it! Oh Man! I always do that when I’m presenting. Thinking that there’s the next slide and there’s a slide in between, Sorry. When you’re talking about social media. You always want to make sure to disclose it, just like everything else. Even before Michael Morton, on these cases in particular, we were always have a file in Harris County even before Michael Morton, but with these cases especially because they are so expert heavy, I make a complete copy of my file of everything and give it to the lawyer. Because it is what it is, I can’t change it, I don’t want to change it, I shouldn’t change it, I wouldn’t be doing my job if I did change it. And you guys should be able to see what I see and If there’s additional work you want us to do on a case, I don’t have a problem doing it, or requesting it or helping you in figuring out a way to do it. Just ask me. And I would venture to assume and hope that most of the persecutors and other Jurisdictions the same way. We help the other prosecutors a lot on these cases, because we have prosecutors that have extra training to do it. But these are special kind of cases which is why they have a full track dedicated to it. Just ask nicely. Defense Lawyers, sometimes we fight okay? I bet you, if you ask you persecutor nicely, you’ll get it quicker. I’m going to skip this one. You guys just heard all about this law. The Bond conditions. You guys know all about these Bond conditions. The only one that I really want to talk about on these cases is usually the defendants because they make bonds too quickly. They get intimidated with bond conditions Right? Rightfully so, because they’re back out on the streets and we don’t want another fatality to occur. We have a new device in Harris County called Radar. Do you guys have radar in your Jurisdictions? It’s similar to kind of a BPT but its enhanced cause its actually reliable and it’s got GPS monitor in it. Which is really helpful to us along with these drug patches which we use for marijuana? But you can use them for other things. We are seeing somewhat of increase in violations on our bond conditions on these manslaughter cases. But we try right? Cause in the end if somebody’s were be on bond probation, we want them to succeed, the punishment ranges in these cases are 2-20 you guys all know that, but I think the biggest fight in these cases is the difference between when your complainants come in like I said before, asking for life that they can’t get and the defendant. Who is the defender-I probation? So we all have to work together, to make sure that the right outcome in these cases occurs and sometimes the best way to do that is with a jury or a judge. Because we can’t do it Cause your guy’s not going to prison. We want him to go to prison and probation says, this is not an option. And every case is different, Right, every single case is different, so we have to look at the case just like any other kind of crime, Case-Specific. We have to look at the cases, we have to look at the defendant, we have to look at the complainant and decide what is most appropriate in that particular case, and in order to do that, we have to all work together, We have to look at all of the evidence and all of the medicated and aggravated circumstances in order to work that out to make our community safe, to make your defendant better so that doesn’t happen again cause otherwise, it just going to keep increasing. it’s just going to keep increasing and we’re going to be holding the title of being the deadliest county in the nation forever and nobody wants that not even like the defendant. Okay this is my favorite, inaudible 2:08:24, good for us, it totally shot down every punisher when the defense will call, Bad idea! We currently have an intoxicated manslaughter with a twitter page which is very similar to this, anyhow, on twitter you can like additive and describe you under the picture, one of hers’ is murderer. Thank you Ma’am! So, All I have to say, if you guys have any questions you can always email me, If you do, because I’m happy to help. Thanks!
…County attorney in Hood County, so I deal with a lot of misdemeanors but I previously was an assistant district attorney.
Dealing with intoxicated drivers who are intoxicated on drugs is a completely different animal from dealing with drivers who are intoxicated on alcohol and I’m going to play a couple of 911 calls. I had 4 911 calls come in on the same driver and you’re going to hear me emphasize the importance of what I call other evidence in these drug driving cases. So let’s play the first 911 call.
[Rep: Hood County 911, what is your emergency.
Duncan: This is Duncan Kenny from the transfers, sir go ahead.
Caller: I am traveling South Dade on highway 377. I’m not sure if I’m still in the Crafton area But I’ve got an old gentleman in a Champaign colored Z71 Chevrolet pickup truck travelling on the wrong side of the road which crossed over the medium, and he is probably going 40 miles an hour.
Rep: Okay and so you don’t know exactly where are you right now?
Caller: No I’m trying to figure that out. I’m at Ridgeline road right now and have seemed to have lost him.
Rep: okay and you were coming towards Gram Berry.
Caller: Yes ma’am.
Rep: And which direction is he going, towards Forth worth?
Caller: No he is travelling south side as well he is traveling on the wrong side.
Rep: Okay on the other side.
Caller: I don’t know if he is wrecked or he’s back on the right road and I have lost him, I don’t know we have passed through that cut out and I don’t know if he is wrecked or back on the right road.
Rep: Goodness okay, Well we do have somebody else on the side of the road and I think that they have an eye on him so I’m going to go let you go then.
Caller: Alright thank you.
Rep: Alright thank you very much.
Caller: No problem.
Rep: Alright Bye.]
And now this is the fourth call that we got on him.
[Rep: Hood County 911, where is your emergency.
Caller: Hi I’m on Acton Road and looks like a guy is behind the Acton road going to south and this guy is in a Chevy truck and he’s an older gentleman and kind of bump over the wheel and the truck is going down the highway. He’s coming up and Oh! He’s gone off side.
Rep: Okay I’m getting another call too. You said ion fall creek highway or temple hall?
Caller: Yeah Fall Creek Highway stop coming right here to Acton now, this guy is all over the place, He’s this he’s going to, Oh my God.
Rep: Coming into Acton and did you say that it looks like a medical issue.
Caller: He bumped over the wheel and I don’t think he knows where’s he at.
Rep: Where’s he passing right now?
Caller: We’re at 4 and 167, he stopped.
Rep: He stopped at the light?
Caller: Yes.
Rep: Okay let me get your name.
Caller: David Loyd.
Rep: I don’t suppose you can get his attention could you?
Caller: I am trying to right now
Rep: you are trying to right now?
Caller: Yeah
Rep: Okay, let me know if you…
Caller: Turn your truck off buddy, turn it off, put in park thank you! put it in park. Step on the brake and put it in park, there you go, now turn it off.
Rep: are you pulling on to the shoulder or?
Caller: No, he is right here, he is right here in the middle of the highway, there is a highway patrol right here.
Rep: There is highway patrol right here?
Caller: yeah, yeah.
Rep: Is he stopping?
Caller: No no, turn your car off okay. Turn your car off, I just asked you, they are going to help you. No, no don’t don’t do it, no, no, hey buddy don’t, stay here.
Rep: is there a trooper there with you.
Caller: yeah he is here.
Rep: okay then I’m going to let you go here. Okay.
Caller: okay
Rep: Thank you.]
We’ll book in this at the end with a jail phone call as a little reward for you all putting up with 4 days of this conference. I have the best jail phone call that happened about an hour and a half after that 911. So we’re talking about people driving high. How many of you think the numbers are increasing? Show your hands. How about decreasing? Staying the Same? Don’t know?
All of you are right and the reason for that is because the statistics we have on people driving under the influence of drugs are what I call spotty or nonexistent and I’ll explain that. Here are the reporting codes that we have for drivers who were arrested and convicted for driving while intoxicated in Texas. So what’s the problem with these reporting codes? There’s nothing in the reporting code that tells us as prosecutors, defense attorneys, legislators, what types of intoxicants a person is on when they are arrested for or convicted for driving while intoxicated and because of that we don’t really know how many people are driving under the influence of drugs because our offense codes don’t indicate the manner of intoxication, now if we did we would probably have a 100 offense codes for DWI and I’m not sure that that’s going to be workable either. So I don’t know the answer to getting a handle on the numbers.
We do some statics that come from reports. And like I said there are no statics that are available for how many people are driving under the influence of drugs. There are some statics for the number of people who are involved in fatalities and crashes. And I put a little star by that as caviar because “yes” does that necessarily mean it does. In fatalities, it simply means that drugs were found in the Driver’s system. Nothing about causation, just that they were found in the system and that’s according to the FARs reporting system. In crashes, the drugs were a contributing factor in the crash according to the law enforcement officer. So we’ve even got in our statics we’ve got two different standards going on, on top of that, only about 50% of drivers who are in crashes or fatalities or even tested for drugs, so we’re leaving out at least 50% of the population in fatalities and crashes.
For example, in Texas we had over 2000 fatally injured drivers but only 58% of them were tested for drugs and 23% of them were positive for legal or illegal drugs. Again nothing about the quantity and whether or not that was a contributing factor in the crash or the fatality. In the crash statics we had have had a decrease in Alcohol involved crashes. Again, only testing 50% and we’ve had an increase in drug involved crashes. The other way that we get numbers on this is from surveys and of course those are inherently—I am not going to say flawed for those of you are statisticians but they require self-reporting so a person has to say “yes I use drugs and drive my car when I shouldn’t be”. We first of all have the national survey on Drug use and I talk about this a lot in my paper, they classified drugs as Illicit and of course the ones that you would expect they also include inhalants and they also include prescription drugs used non-medically and I would say in my experience, prescription drugs medically and non-medically are probably one of my biggest problems right now.
So in the National Survey the use of illicit drugs is up, according to the people who self-report but the people who report driving under the influence is actually gone down slightly. So more people are using and fewer people are driving. I don’t believe that. The top three intoxicants; Alcohol and Marijuana and prescription drugs. So if you seeing a lot of prescription drug cases then you’re right in line with the national survey. However, alcohol is still far out numbers in the National survey, The illicit drugs, 28.7 million v. 9.9 million. Then we have a secondary school survey, as a former teacher it’s important to me. For the first time ever, in 2012 which is the last survey that we have data for the number of seniors reporting driving under the influence of drugs exceeds the number driving under the influence of alcohol. Trying these cases is challenging, especially when you’re dealing with a prescription drug case where somebody’s taking the prescription as the Doctor orders.
Jim contacted me about doing this program because I had an article published in the Texas prosecutor Magazine about a case that you’re going to see some information from in this presentation, it’s also available online, this was a prescription case. My experience in trying all of the drug DWI cases is that expert witnesses are very important. I’d love to have a DRE on every one of my cases because they are the only ones who can testify us the drugs being psychoactive, which drugs are psychoactive in the defendant’s system at the time that they were driving or at the time that they were being tested. That DRE either has to be either on the scene or they have to be at the jail and the number of times that that has happened in my cases has been twice. Some of the case law and that is in my paper, says that “you can use a forensic toxicologist or a pharmacist to testify about the effects of particular drugs”. But that dependent on that person’s, when you have a hearing, you’re Kelly Dobert hearing. It’s dependent on the types of background that those people have. Not all forensic toxicologist of Pharmacist are going to be qualified.
So I mentioned the importance of other evidence, how important are those 2 911 calls. A guy is driving on the wrong side of the road at 40 mph/hour and then that 4th call that came in he has slumped over the wheel, the guy thinks he’s had a heart attack, “the Caller” and you heard how difficult it was for him to communicate with that Driver stopped at the stop light for some unknown reason. To turn off his truck, he had to ask him repeatedly, “Put your foot No you have to put your foot on the brake first”, I mean that is really important evidence. You know and it’s funny because in the old days before we had search warrants for blood. I had to rely on this evidence almost exclusively because almost all of my cases I tried at the misdemeanor level were breath test refusals, so I had no scientific evidence and then for a long time now we’ve had such good blood results we have not had to have really focus on that evidence but in these drug cases, you do. If you’ve got a guy who is taking all of his prescriptions according to the Doctor’s orders and he is intoxicated, you’re going to have to show some bad driving, he’s going to have to look drunk or intoxicated on your video. If you’ve got somebody under the influence of K2, you’re probably not going to have a blood test that’s going to show K2. Because most of the blood test we have won’t pick up all the new formulas of that, so all of these things are really really important.
The case that I wrote about in the Texas prosecutor, if you play this—I just want you to listen to. This is after he’s been arrested and he’s in the car, I want you to listen to the speech.
[Video plays 02:22:23 – 02:23:07]
Okay, that goes on and on, I used that in closing. That was about the worst slurred speech I’ve ever heard. In fact you could barely understand anything that he had said on there. When he got out of the car and I said this to the Jury and I got a lot of head nods when I was asking them to go back and review the video. I said, “What was your first impression when you saw him get out of that car?” Mine was, “Man that guy is drunk”. Because that is exactly what he looked like when was stumbling out of the car. When you listen to his speech, it sounds like the worst slurred speech that you’ve ever heard and like said I got a lot of head nods on that and this was all a prescription drug case.
Which leads me to this, I know Judge Walton is sitting back there and this voice exemplar case happened in his court, so if you want to ask him some details about it. In the trial, well let me tell you this first of all, a voice exemplar depending upon what your circumstances are, the defense attorney could be very beneficial in your case. The Court of Criminal Appeals says that a “voice exemplar does not a testimonial” it does not waive your defendant’s 5th amendment rights. So if you have a defendant who has some sort of speech impediment that would make him or her have a slurred speech then a voice exemplar would be proper and that defendant could read a paragraph would read something out of a book, or out of a Jury charge or out of a law book and the Jury could have an idea of what his or her speech sounds like on a normal basis. In this case, quite a surprise to me, the defense asked me for a voice exemplar and I had never even heard of William V. State. Thank goodness we were on a lunch break, I didn’t get lunch that day, I was reading case law. When I got back from lunch I objected to the voice exemplar to the voice exemplar and I’m going to tell you if you are looking at Williams V. State and no offense to The Court of Criminal appeals but they don’t make as thorough recitation of the facts as they do in the lower Court. So I actually pulled the lower Court opinion because my confusion with William was that what exactly was his problem and I discovered this.
In Williams, Williams had bad teeth, he had a bunch of missing teeth and that caused his strange speech. So a voice exemplar would be absolutely probative in that case, well in my case, I had evidence and I left one of these out that he took Valium, Soma, Restroil, Hydrocodone, Vicodin and Ambien every day, I left out Xanax. This guy took all of these prescriptions every day. I had a pharmacist and a Doctor testify for the defense that this was his normal amusing air quotes here. So if every day he takes these then my contention was every day he is intoxicated and if he’s intoxicated today and he’s intoxicated then, what does a voice exemplar prove? So the Judge bought my argument and he said that a voice exemplar would not be probative unless we knew whether or not the defendant was intoxicated in the Court. Well I already watched him for 3 days or 2 days during void dire and during the trial and he looked like he was intoxicated again. I could tell that by looking at him. So I argued to the Judge that in order for a voice exemplar to be probative that he should undergo an HGN outside the presence of the Jury so that my officer could test him.
Now this will only work if your guy is intoxicated on central nervous system depressants which mine was because HGN will not pick up marijuana or a lot of other drugs. But I happen to know and the Doctors testified that he was under a lot of CNS depressants. So the Judge said he would allow the voice exemplar if the defendant was not intoxicated and the defendant refused to take the HGN and so we had no voice exemplar in this case. Now interesting enough, the defendant testified on punishment and I could tell during the trial he was in a lot of pain. This was a chronic pain patient, he kept getting up from the defense table, which is unusual, he kept trying to adjust himself, I knew he had some back pain and then he got up on the stand and he was testifying about you know not having money, being on disability and when I got to cross him, I said, “Mr. Massey, you’re in a lot of pain aren’t you?” and he said, “yes”. And I said, “and you’re speech is better than it was the day of that you got arrested”. I said, “you haven’t taken all of you medications today have you?” And he said, “No ma’am I stopped taking my Soma, Which is a muscle relaxant. I stopped my Soma for the trial”. So apparently that was the one that put him over the top. So I don’t know whether or not we would have ever gotten. I think he’s still got the HGN because he had a bunch of central nervous system depressants.
I’ve developed this I call this the Kasper Two-Part test you can steal it or call it whatever test you want for your test for yourself. But proving intoxication when you don’t have a 0.08% limit for alcohol is that definition for intoxication, I think is little bit tough for Jury to understand, they get kind of get mixed up. So I broke it down into two parts. I said first of all what you have to answer is Yes of No, has this defendant lost the normal use? Not there. If you read the definition, the normal use of his mental of physical abilities. Then you have to determine, is that loss due to some substance? Okay?
I’ve heard defense attorneys argue before about, you know they have diabetes, or they have whatever. Well this definition works for alcohol or drugs, “have they lost the normal use?” Just answer “Yes” or “No”, now what was it caused by? You got to have 2 yeses in order to get intoxication.
So as an example, I have 2 artificial knees, I wobble when I walk, have I lost the normal use of a mental or physical ability? “Absolutely”. Is it because of drugs? “Not today”. I’m not intoxicated. Maybe at the hospital when Jim called me, absolutely although I wasn’t driving I was only operating a walker down the hall so…my mother has dementia. She can’t focus or attention, solve problems or remember things. Has she lost the normal use of her mental or physical ability? “Absolutely” Is it because of a substance that’s introduced in her body? “No”. So, see how it works? Not intoxicated.
Alright, here is a kicker for you. I have a kicker for you. I have hay fever. I take Benadryl. Benadryl causes me to get light-headed and dizzy, I have trouble focusing my thoughts. Have I lost the normal use of a mental or physical ability? Yes. Is it because of a substance? Yes. What does that mean? Two yeses? I’m intoxicated. Wow!
Little side trip; the active ingredient in Benadryl, Diphenhydramine, significantly impairs driving. It’s in my paper, NITSA says so according to studies. That’s also the ingredient in the Tylenol PM, there’s a reason to that, it’s significantly impairs. Taking diphenhydramine before driving can be worse than drinking.
I talk to Jurors about this because you know when I’m asking them, “Can you be intoxicated on drugs?” “yes” and they’re thinking about Marijuana, Cocaine. “How about prescription drugs? How about Benadryl? How many people who take Benadryl who make them loopy?” and that’s the way I put it and then that is intoxicating! You shouldn’t be driving.
Alright, I am going to give you a few minutes back on this, I am going to talk to you little bit more about this case that was the two 911 calls that we heard at beginning. That, when that trooper got up to the car and that nice citizen had gotten him to turn his car off, he saw flakes of K2 all over guy’s shirt around his mouth, I don’t know if he was eating it or what? That was half empty of package of K2 in the car and there has been pipe that had been smoked. What he had done, he had bought the K2 out of smoke shop in Whisky Flats, which is about 20 mi away from Granbury. He had smoked it in the car and he is on his way to Granbury by the time he got to Hood County, he is on the wrong side of the road and then eventually slumped of the wheel looking like he had a heart attack or something.
Now what’s remarkable about this, this jail phone call is about hour and half later. He did have a DRE evaluation at the jail. So, I’d say about an hour and half after the time of the stop by the time he booked into jail and he is calling his mother. Now, this guy is about in his fifty’s. This is his second DWI with K2 and his second possession case in two months. His first one was still pending and after the second one that we had he got two more in Parker County, so if you’re from Parker County, this is your same guy that you are dealing with. But I want you to listen for not only the entertainment value and I’ll give a disclaimer that there is lot of cursing in this. Now, on the part of defendant, on part of his mother, so it has entertainment value but also I want you to listen to the difference and listen to how coherent he sounds on this phone call and hour and a half after he was completely slumped over the wheel, that’s how K2 goes. K2 acts very quickly and then also disappears quickly. In fact, by the time you got to the jail the trooper said he was much more sober then he was when he was when he saw him in the car, he was almost back to normal. Also, I want you to listen for his incriminating statements that he makes, alright so I’ll leave you with this the jail phone call. It’s about 10 min long and I am playing two minutes.
[Phone call:
Caller 1: Hello
Caller 2: Mama I’m in trouble again.
Caller 1: Craig, what in the hell?
Caller 2: Mom I’m in trouble again, I’m in Hood County jail. I need you to write down a phone number, okay?
Caller 1: of what? I can’t come get you.
Caller 2: I know you are going to call Wanda.
Caller 1: Who is Wanda?
Caller 2: Wanda Moors, [inaudible]. Ok just write this number down.
Caller 1: Ok now wait a minute, O Jesus! Jesus! O my God, I can’t believe this, I can’t believe this. I can’t believe this.
Caller 2: Calm down Mom
Caller 1: I can’t calm down, what the hell did you do?
Caller 2: Same thing I always do.
Caller 1: What?
Caller 2: I got caught smoking that funny stuff, DWI
Caller 1: Oh you Son of a Bitch! you Son of a Bitch!
Caller 2: Calm down!
Caller 1: Calm down my ass!
Caller 2: Mom, you have to call this number for me, my mailbox man!
Caller 1: Wow! I can’t even find a pen, O sweet Jesus!
Caller 2: Go out to the kitchen and get a pen.
Caller 1: Here is one right here, Oh God damn Son of a Bitch! This is the end, this is the end.
Caller 2: Calm down Mom, you have to call Wanda Moore and get me out; I almost killed myself. I was going the wrong way on 377. Trooper Nelson saved me, so everything is alright.]
Like I said that goes on for about 10 minutes and it doesn’t get any better from there for him but you noticed, aside from being entertaining notice that how loosened he seems. I mean he is telling her to get a pen, he sounds like he is perfectly normal. You would not see that in DWI case involved alcohol at all. So, that’s just one of the strange things about K2 cases and actually when his blood came back that didn’t come back with showing K2. I talk about this in my paper; you know that the testing for the substance itself is lags behind with the chemists are doing with it. But the testing for the substance itself also lags behind the testing of the blood. I mean we just can’t possibly keep up with that and that’s why all of that other evidence is so important in this because I mean he had K2 in the car we knew. We knew that he was smoking it. He tells his mother, “I was smoking that funny stuff in the car”, but yeah the blood test came back with nothing that was a controlled substance that they could measure. So, I’m available outside if you want to talk later. I am always available by email that’s probably the best way to get me so if you have any questions or concerns about driving while drugged, I’d be happy to answer them but thanks a lot.
[Clapping]
What an enviable position to be in here the last speaker of this whole thing. So I’ll you know keep your attention no doubt. One of things I do want to say is I didn’t know Allison-I was going to be here and I didn’t know she was going to play that audio and when she did I tell you what. There was some memories came flooding back and she is right, that was a total whim! I was looking at photographs of the inside of the car and AAA card was lying on the floor board of the passenger side and when I looked through what was inventory. The AAA card was inventory and on way I said, “maybe he had called AAA”, and that evidence when we got that audio recording, it was one of those things where you call everybody and “You got to hear what we found, you will never believe this” and that call is about fifteen twenty minutes long. You hear the first part him talking to the operator but then what you do hear also, you hear all of the—one of the skid marks that guy tried to get back out, it helped the reconstruction guys because they had no idea how those skid marks all went together. But the other amazing part was you hear all these good Samaritans who are banging on the window trying to get him to wake and trying to find out something to break the window open to get him out. It was a heart wrenching phone call.
Ok, what I am going to talk about? The last thing we are going to dig in to the law, the best we can and when I was asked to do this back in December, a lot of this has changed and lot of it has been in flux. So we are going to talk about McNeely, villareal. We’re going to start with Schmerber. Everybody here raise your hands if you know who Schmerber is, you’ve heard of Schmerber? If you do DWI, you should know Schmerber. Schmerber is, it’s the US Supreme Court Case about blood draws and totalities of the circumstances, I have this nice fancy photo of Justice Brandon, he wrote the majority opinion 54. This is considered one of the water-shed land mark decisions of US Supreme Court when it comes to fourth amendment and sorted of as a side note fifth amendment. Harlan talks a lot about Fifth Amendment in the context of Schmerber, in his opinion in this case. What it says that the officer might reasonably have believed that he has confronted with an emergency in which the delay was necessary to obtain the warrant under the circumstances that threaten to destruction of evidence. This is from 1966. He had shown signs of intoxication and at trial he objected under the 4th, 5th, 6th and 14th amendments. That took him to hospital that did a blood drawl on him because he was not very cooperative and that was upheld and this was good law and what’s interesting is there is two cases that leads to up to Schmerber that really people don’t talk about it, they are pretty interesting and in the 1950’s there were two cases about being intrusive in to the body and those two cases the names are hard to pronounce and they are not that important and if you look them up you can find them.
But one was gentleman who the pumped to stomach. When they go to arrest him he shoved lot of narcotics in his mouth. He won’t open his mouth for the Police. Police take him to hospital and pumped the stomach and you have justices, Hugo Black Douglas, I believe even Brandon they right held up just how offensive this is. How it offends the intrusion into the body. Very colorful language and adjectives. Then there is similar case where guy has passed out and they draw his blood and the Supreme Court does not have nearly much objection to that. I mean than kind of like, “he passed out”. So this is sort of Water-Shed Case, and if you are like me started at DA office cut your teeth or no test no accident cases. You are lucky enough to get some blood once in a while, you get to learn Schmerber and Schmerber was good law, basically the case up until about two years ago but it still is and we talk about why it still is good law. But first before we get there, talking about Transportation Code. This is our Texas implied consent law 724021 and the pertinent part that we are going to talk about is B. If you look this up on Wes Law its red flag because of McNeely, alright. This part of our section of the code is what details out. What an officer is to do in the process through which they go if they want to draw a DWI suspect’s blood without a search warrant. This was codified in like I said, it was codified 1995 initially by the legislature and it’s been expanded overtime. It was first held up in 1998 in the first district. There was an interesting case called a “Mosley”. If you want to read this and talks about laws of normal use and actually goes under very good discussion about what the transportation code says and doesn’t say about pulling a defendant’s blood because in the PC of the totality of the stop the officer still has to tailgate the loss of normal use. So you just can’t have the red blood shot eyes and the slurred speech and go and he smelled like alcohol therefore we are going to pull his blood. You know in the report, in the summary when all the evidence is submitted there is still has to be that element to finish off the probable cause. Now let me tell you about what 724 has done. Overtime it started with death and serious bodily injury then they added other components and as its stands right now you can do a mandatory blood drawl without a warrant just forget about villareal but as this law was up until an year and half ago. What could you pull defendants blood for without a warrant?
Death serious, battle injury what else? Felony? So DWI with the child passenger or third what else? Someone other than the defendant is transported to hospital with any sort of bodily or injury. Okay? So the before I was on bench for 3 years the sharp DWI officer making for somebody got in to the box and went to the hospital. And side note too, there is a law, I don’t believe this, this discover today. I each for 326 is effective September 1stbecause if we go back to 724, since, it is red flag, no one is using it really now. There is lot of cases folding old cases out there. But everybody for the most part is pulling warrants. So, we’ll talk about the warrant and a second. But one of new wrinkles under 1801, which is how we get our warrants is, the legislature has not codified that, “A magistrate, a judge can take an affidavit over the phone or other reliable electronic means. That has not actually been codified the way it is now”.
If you want to read HP326, it is very lengthy and surprisingly it’s the bill that only deals with one subject matter and it’s just this. So starting September there will now be subsection, B1 of 1801, and it lays out, ”How a magistrate can take an affidavit or even add to an affidavit through electronic means”, and they are very detailed, it’s very strict and that phone call has to be recorded, it has to be taken or can be taken down by a court reporter. There are requirements on the magistrate, to keep a copy of one has been copied or faxed to him or her. And to those very detailed requirements to be entering to see how this actually works. I am kind of tech geek and what I do when I am on call there is 22 felony district court judges here in county and we rotate them on call. When I am on call I keep my iPad with me and if I get a call from the DA’s office in take and they need a search warrant and we have 24 of our magistrates who do our PC Court making sign under 1801, they can sign as well but when they need district court judge they can’t, the magistrate is busy in a docket. They will send me those swore to someone else who can take the oath like a Police officer can. And I’ll read and I can sign it with my finger and send it back to them and government code allows that electronic document to be an original. When anything, anybody from here Mac users here? I can’t use pc’s I love my Mac. If you ever use the program “preview” which is a MAC’s version of like Adobe, PDF Viewer there is a function in there, if you take a piece of paper and write out your signature and you hold it up to the camera. You can actually put your signature in the preview and if you have a PDF document you need to drop your signature in to there is a little pull down menu in there so I’ve done with my signature I’ve done it with my court seal, so that, I can seal documents at home and that is original under the government code, that electronic original. So, I can be home and I live out in the Barbs and so, officers don’t have to drive from DA’s office to me they can just scan it, send it to me and take care of that way.
Alright let’s talk about McNeely now, switch gears. This is a very narrow holding but it has very broad implications. McNeely, as we learned after—at least I learned after the fact, this was a test case, this was a setup case. The facts of case were Mr. McNeely was pulled over by a state trooper in Cape, drawdown Missouri, and on the way he kind of says, “Yeah! I’ll give a sample, I’ll blow”, and on the way to the station he tells the officer in the back of car, “I’m not giving you anything”. The officer diverts to hospital and under Missouri’s Implied Consent Law, they pulled his blood. As it goes up to the court system the Missouri asks only one question. They defend only one part of the law and that is: Whether or not the per say your liver metabolizing the alcohol is that enough? Is that an exigent circumstance for a warrantless blood draw? The Missouri Supreme Court opinion actually to me, in my opinion is actually more interesting than the US SC opinion. The Missouri SC initially said the patrolman here, however, was not faced with the special facts of Schmerber.
Now, the special facts of Schmerber, really don’t seems special other then there is sort of reasoning and ruling of the totality of the circumstances. So the Missouri SC says there wasn’t anything. The officer just didn’t get a warrant. If you dig into the case little bit deeper. You will see that the, I believe he was a State trooper. he testifies basically yeah we have a system, we can go get a warrant and they just didn’t do it. And it wasn’t a felony DWI, there was no one injured, I think it was a one car, a single driver type case if I remember it correctly. Now here is what SC says: It was interesting 5, 4 opinions, the 5 or Somdoyore, Kegan, Celia, Ginsburg and Kennedy. “Because the state sought a per se rule here, it did not argue their exigent circumstances in this particular case”. The very narrow holding of McNeely is this; “There is no parse exigency with just the body metabolizing the alcohol in the system to pull blood”, that’s all it held. I was on bench when McNeely came down. It was panic, “Oh we can’t do anything about it”, it’s very narrow but it’s had this very broad implications the way it is been interpreted and, sitting up on the bench I certainly have the different view of it now since, I was a prosecutor. I used to work with Allison in the vehicle crimes division. I was call out prosecutor for 3 years, so I’ve spent my time staying over dead bodies or beside the road, I’m done with that. What else we have? But then that leads in to Villareal. Now this is where it gets kind of interesting. There is the site for it. Villareal was handed down at the end of last year. We had an election. We have 3 new Judges, on the court of criminal appeals. 3 of those new Judges replaced three of the judges that were in the five four majority. Villareal was as a—for the CCA of fairly rear split opinion. Its five four, it is very lengthy as we’ve mentioned before and I’ve read it multiple times. It is a long opinion. The descents are incredibly short. If you go through and read this, the descents in Villareal, you will sense that there is a whole lot of attention and lot of disagreement of where this opinion should have gone. And read into that whatever you want. It was granted rehearing in February, it’s been on submission since March 18th. This could come down every day. My understanding, this was mentioned before what is most likely going to happened it’s in my paper. There are tons of court of appeals cases out there. That have all been either decided based on McNeely or reheard under Villarreal. There might be all clumps together; you might have to just massive ten headed hydro-opinion about that DWI case law that comes from CCA at some point. But I’m not holding my breath when that does going to happen.
Blood draw per the code it was a felony DWI blood draw, it was the guy’s third DWI. It’s an as applied constitutional challenge; the facts of the case are not disputed. The officer faithfully followed the no refusal statutory framework that has been inactive by legislator. So the CCA, all the record is clear. The officer did everything he was asked and supposed to do in this situation but this is an as applied constitutional challenge in light of McNeely, is our framework in Texas, does it violates the 4th amendment? and they said “yes”, so where is this going?
Here’s what I try to do when I prepare for today, my first thought was I am going to look around all the courts appeals and start seeing how they had begun to interpret their cases in light of this decision, that was exhausting and by the time we got closer to this, the courts of appeals sort of fleshed out most of their cases, there is handful of that is still on rehearing waiting for submission but lot of them had been heard and they are either have been granted PDR or they waiting PDR to the CCA. They are listed in my paper, they have been covered before. They are doubts, they are whims, and there is whole bunch of cases. So where could this be going? So these are just sort of mine educated guesses.
Two things can happen: 1. the holding does not change or does change. So, three years as a judge is what I’ve learned? The laws are either going to change or not change. Ok but why? Well because there are three of the five judges in the majority have retired. We got three new judges, they may simply look at this differently and they are reasoning might be just because. Who knows! Sort of a wild card but that’s legally why this change could? This is mentioned earlier this is the hind case of North Carolina. This was mentioned to me few days ago and I really wasn’t aware of this case and I really wasn’t aware of this case, this was from Supreme Court from 2013, it was an 8 to 1 decision. The officer had a mistaken impression of the law regarding tail lamps. Is the judge mentioned earlier, the statue of North Carolina was tailed lamp, not tail lamps and forever no one ever bothered to litigate that issue. The officer was actually going to write the driver a warning and when he approached the vehicle, smelled some stuff, saw some shady movements, some furtive movements that sorts of stuff, found a bunch of drugs. In the US SC basically says, “hey we are good with that. Reasonable suspicion arises from the combination of an officer’s understanding of the facts and his understanding of relevant law”. So Villarreal that’s a case where the officer was relying on the law as it was under reasonable standards. The court could find this sort of framework here. This certainly is the search and seizure type of case and they mention this reasonably well trained officer idea. Okay! That’s come up the reason well trained officer, I am quite sure what that is or what he or she looks like buts it’s in the opinion, thank your supreme court. But there is even more it’s because police lawyers and judges would like a brighter line rule. And this is where, here is the saying, “the descents of today become the majority opinions of tomorrow”. I don’t think if you are familiar with McNeely, I don’t think Thomas is descent that is going to become the majority of the opinion. But Kennedy’s concurrence if you are into this sort of stuff read Kennedy Concurrence in McNeely. What is interesting to me for me just sort of SC following, nerd sort of look at this. The opinion is written by Sorto Mayore she is former prosecutor, she has a background in criminal law, unlike most of the other members of the U.S SC. Yet Kennedy is the one who says “wait a min, majority’s opinions while I get it and I am ok with the holding, the reasoning makes no sense and we need to provide police, prosecutors, and lawyers. We need to give them more direction because this opinion is so narrow and it’s so much in the abstract that no one is going to know what to do with it and that’s basically what is happening for last two years”. Kennedy says “a police officer reading this court’s opinion would have no idea, what the 4th amendment requires of him and I think we are seeing this in the opinions the way they are and I think what the default has been on the appellate side is most courts have said, “well, McNeely no blood, it’s not coming in and now we are seeing this and because of foot note 9”. Foot note 9 is in majority of opinion. Sorto Mayore takes the pains to list out the implied consent of blood raw statue of every state in the US and there is sentence before foot note 9 says and there are many states that have a structure and rule in place in certain situations like serious bodily injury, like felony situation that there is a there is a community care aspect to this. There is the safe public safety sort of idea and then in this foot note, list every statute and makes no other comment on it. So, is the SC, no one knows what that means? Why do you go to the pains of listing every states implied consent law and then giving no indication where these are good laws? Bad laws? Is the SC going to make, because Kennedy makes this point in his concurrence. There are exceptions to 4th amendment warrantless searches all over the place. The SC has made it very clear that there are all sorts of situations where the police can go in and conduct a search whether it’s in someone’s body, whether it’s in someone’s home, whether it’s in someone’s car without a warrant. They make exceptions all the time. Some are case by case and some are very broad.
Because of Huff the 4th court of appeal, said “the officer’s testimony there. The officer said there was no procedure in place now this is the felony DWI”, that’s the felony murder case out of San Antonio. The officer said, “There was no procedure in plate to get a late night warrant”, that wasn’t enough. That even a serious crash with horrific injuries that led to a fatality. Chief Justice Robert he writes in his opinion he wants a modified per se rule, so Huff is sort of a spinoff of that. Is there going to be this sort of modified per se rule in the 4thCOA says no but what’s interesting is someone raise your hand earlier so which who have come from Jurisdictions where they have a pretty well set up warrant blood drawl system in place. There is judges on call, there is Phlebotomists, hospitals nearby, just show hands who does? Okay, who does not, let me put that way? Who does not? Okay, my guess is you probably from rural areas maybe there is fairly populous counties that just don’t do this. I mean Harris County is 24/7 no refusal operation now. When I was a prosecutor, I was on the first prosecutor, who worked on you know before magistrates could signs the warrants try to get judges to work with us on the weekends. Getting all the towered showed, there is pictures, I think is painted since then, some of those pictures of blood draw room but I was in the ground for helping sort of get that of the ground and try to get that started and I don’t know. May be an exigent circumstances going to be one trooper in the middle of nowhere Texas, he’s got to crash, he’s got to deal with a body or someone who is seriously injured he’s got to deal with defendant. He’s got nowhere to go, he’s got no one to call may be the only judge in his county, who can signed a warrant, he knows his hunt in South Texas, what you’d do in that situation? Those might be very fact specific. Because there is going to be case eventually that meets both Schmerber and McNeely. McNeely did not overrule Schmerber. That’s a big misconception, I hear being argued back to me sitting on the bench. Schmerber is still good law. This totality of circumstances still exists. McNeely is very narrow, and this kind of what Kennedy is getting at. And I’d like you to read if you want to know what a totality of the circumstance case might be. It is People v. Ackerman Colorado. So what I started to do was I went through state SC surrounds the country to see what they are doing. Is there a case out there that is going to meet McNeely and Schmerber and this is the case I found and here are the facts of Ackerman; There is a fatality crash, an officer is sitting on defendant at the hospital, he is severely injured, they have fatality I believe, it was a passenger killed. The police are at the police station working on the PC affidavit for the blood warrant. They are actively typing the warrant, while they are working on that the officer who is sitting on the guy at hospital calls and says, “hey Sergeant! The nurse just told me they are about to pump this guy full sedatives, as he is flopping around. They are going to stick him in a CAT scan machine and he is going to right in surgery”, and the sergeant goes, “pull the blood now”. Initially the appeal courts inner may be, I believe, I don’t know if it was a trial. If there is trial or intermediate court and Colorado said that’s not good enough. “The fact that this was a procedural break down. This was not a exigent circumstance in” and the Colorado SC said, “No, this has nothing to do with procedure, the officers were doing everything in their power to had a system setup to get a warrant to send it to magistrate to get the blood drawn”, and why did they do blood draws there by reading it is there we are going to ask them two blood drawls in the warrant, one hour apart. I think they ended up four blood draws in this case. This blood draw at the hospital, I think they had a residual hospital blood and then the two bloods draws later and I believe one them was thrown out because it happened so much later after the warrant was signed. The guy was in the surgery for so long.
But Ackerman is a very detailed case that really goes through what could be a situation and I asked bunch of defense attorney’s this sort of scenarios and I said ok. If you had to attack this blood what would your argument be? And most of them said, I think actually everyone I asked said “I believe this is the case if we had in Texas, I think this is the type of case where this is an exigent circumstance and blood is probably going to come in.” I’d look to see I have been Scottis blog, I’ve looked around I have no idea this case is going to be a, everybody is going to be applied for, anybody knows let me know. But this is a definitely a case to keep your eye on, if this ends up at the US SC.
Another case that ran, I am almost done, give me some time back so you all can get on road and head home. Is a Villas and that’s a case out of San Antonio which was sort of working its way through court of the same time Villarreal was and that was a case where San Antonio Court of Appeals, they ruled CCA did not take the case away and it went directly up to the US SC. And US SC said “factors of McNeely we send it back to San Antonio to rule and then under McNeely that blood was kept out so you got that case as well floating around. If you look in the paper, like I said I went through and listed a bunch of these cases as well. So last thing I will you with this, what are some other state are doing? You’ve got Idaho, you’ve got New Jersey, multiple states have all listed have all found there SC have found under McNeely that there is no idea of implied consent any more. That there laws don’t meet—that there is going to be something at some point that ends up back at the US SC whether it’s this term or next term, but there is going to be something and it’s either going be a case like Ackerman out of Colorado where I think most reasonable people are believed, that’s a pretty severe situation. The police had no control over that situation, the record is clear, the facts are really are not disputed, he was going in for medical treatment that had nothing to do with police officers. So, maybe that’s a case where the court says “alright we’ll give you a rule or something if the CCA reverses course on Villarreal” and says “wait a minute, McNeely talks about the per se rule of this dissipation of alcohol in the blood stream”. But hey there is foot note 9 and it mentions our law here in Texas, this was a felony stop, and this is a felony DWI. We pulled his blood pursuant to our rule. Let’s check that out, so there are whole lot of options so if you do follow this, if you do a lot of DWI work, keep your eyes glued to these cases because when we are back here next year talking about this again, I guarantee you this all going to be different and that’s all I have. Thank you all very very much!
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