In order of most to least common, the 3 basic defenses to DWI in Texas would be:

• Not Intoxicated
• Not Driving
• Not Driving While Intoxicated

I might be wrong about “Not Driving” being a more frequently viable defense than “Not While” but the third is still probably the least known to laypersons. The short version of the defense goes like this: Maybe there’s an accurate breath test over .08, but it’s barely over, and since the defendant’s BAC could have been rising between the time of the stop and the time of the Intoxilyzer results… reasonable doubt exists as to whether he was under .08 at the time of driving.

From an earlier post, DWI and the "While" Defense:

The point is that having a BAC of .085, for example, 30 to 45 minutes after the driving, does not in and of itself prove that the defendant was driving while intoxicated.

Depending on various factors, primarily the particular drinking pattern that night and the stomach contents, it is possible for the Defendant’s BAC to be higher at the time of the test, than it is at the time of driving. It is also affected by variations in human physiology as well.

This is most likely in scenarios where the defendant’s last drink was very near the time of driving; which - given what often happens at closing time - is not an unlikely scenario at all.

This isn’t just some crazy DWI defense lawyer theory here either – it’s both basic common sense, and basic science. So basic, that even the CMI manual for the Intoxilyzer 500 (used for breath tests here in Austin) admits that the defendant’s actual breath alcohol content at the time of the test may be “higher than, lower than or the same as” the BAC at time of driving.

So what’s the State to do when confronted with common sense and basic science telling them that “over .08” is sometimes “less than .08”? Change the rules, that’s what.

Proposed House Bill 170 attempts to ruin two of my favorite statutes (Code of Criminal Procedure 38.22 and 38.23) by following them up with a new section 38.24:

Article 38.24 Evidence of Alcohol Concentration

(a) In this article, “offense relating to the operating of a motor vehicle while intoxicated” and “offense of operating a watercraft while intoxicated” have the meanings assigned by Section 49.09, Penal code.

(b) For purposes of the prosecution of an offense relating to the operating of a motor vehicle or watercraft while intoxicated, it is presumed that the person had an alcohol concentration equal to or higher than 0.08 at the time of the offense if that level of alcohol concentration is shown by an analysis of the specimen of the person’s breath, blood, or urine taken from the person not later than 90 minutes after the time of the person’s arrest.

Retrograde extrapolation is the mathematical/scientific process by which an estimated BAC range for the time of driving is deduced/guessed by taking the BAC at the time of the test, the time since driving and other factors. These factors include when the suspect drank his last beer, .eg., to his last meal, and other considerations.

These are ultimately unknown factors no matter what the pre field sobriety test interview question and answers reveal from the defendant. And therefore, there’s room for some of that old reasonable doubt defense attorneys like to try and raise.

Since this is potentially a problem for the prosecution, they want to write into the law an unscientific instruction that allows them to argue that any test over .08 given within an hour and a half of driving automatically gives them a presumption of guilt. Since it’s unconstitutional to have an irrebuttable presumption in favor of the State in criminal cases, this proposed legislation can’t eliminate all tricks from the DWI lawyer’s bag, but it’s a start in the wrong direction.

After all, are they going to change the title of the offense to “Being Intoxicated After Driving”?

[Hat Tip: Houston DWI lawyer Mark "I like to call it DUI" Bennett]

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Austin is the only Austin in Texas. Or, as the saying goes, “When you leave Austin, you enter Texas”.

And Austin has reacted – albeit in a non-statistically significant way – to the news that our Police Chief announced that he intends to stick it to every DWI arrestee that refuses a breath sample. As in stick a needle in their arm and draw blood.

And furthermore, he’s going to have police officers doing the sticking. Yes, again, with the needle. They’ll be trained though. They’re not trained now – but he’ll get ‘em up to speed.

KXAN ran a story on it, and included a link in their webpage. The type of webpage that allows comments. And Austin commented.

At last count, there were over 50 commenters, and here’s how the pros and cons ran:

4 folks thought it was a great idea.

1 person I categorized as ‘neutral’ although, that’s generous because what he said was:

Don't see a problem, except Officers should not be drawing the blood. The nurse at the jail can do it. Taking blood is a risky thing, and only a trained professional should do it. This not what cops should be doing.

Mr. Neutral didn’t read the story fully, because the story is about cops sticking the needle in. At any rate, I counted him as neutral because on some level he didn’t ‘see a problem’ with it.

The overwhelming majority said it was a bad idea. 46 commenters – out of 51 total – were against it.

A smattering of the con comments?

1. This guy [Acevedo] has got to go.
2. Maybe the cops will also perform surgery on accident victims. That would save a lot of money on doctors.
3. We all know government agencies want an inch but take 100 miles. APD's intentions may seem like a good idea, but eventually leads to more government control and less individual rights. Are we are all guilty until proven innocent?
4. What's next body cavity searches at a traffic stop?
5. What happened to the Bill of Rights?
6. This is the exact thing that our forefathers sought to protect us from.
7. This is insane. This kind of precedent can lead to a very scary future.

My personal favorite? It’s a tie:

1. I dont drink, but I don’t care for this idea. I hate blood tests more than I hate beets.
2. Nothing scarier than a redneck cop with a mouth full of Copenhagen and a needle.

On a more serious note, KXAN has picked up on this ‘vibe’ with their story today about ‘Groups react to APD’s proposal’ and will be broadcasting a follow up story in less than 45 minutes. Looking forward to it.

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I’m at the Rusty Duncan seminar in San Antonio, and news comes by way of the Austin Criminal Defense Lawyer’s Association listserv that Austin DWI lawyer Bill Mange just got a Not Guilty verdict on a .12 breath test trial back in Travis County. I heard the jury came back in just under an hour.

Congrats Bill.

I knew you were on to something when I walked into County Court Number 7 yesterday and saw an Intoxilyzer sitting in the middle of the courtroom with a “Defendant’s Exhibit #6” sticker on it.

I assume you’ll be getting that back, eh?

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One of the things I love about the criminal defense/DWI blogosophere is that it is a great resource for practicing lawyers. Reading other attorneys’ thoughts often helps me in my day to day practice.

Two quick examples:

From Robert Guest on DWI and Jury Selection:

As part of the jury selection process I often ask potential jurors if they have ever driven after drinking. The vast majority of potential jurors answer yes.

The truth about DWI is that most jurors have committed DWI in their past but did not get arrested. They only difference between them and the defendant is luck.

When I inquire into the reason they chose to drink and drive most will say they were "young and stupid." I often wonder at why jurors are so ready to ruin the lives of defendants who are on trial for DWI, when they have committed the same crime themselves.

I’m not sure I would ask the “why” follow up question in Voir Dire, but that’s a matter of personal style. The point is that by reading Robert’s blog, I’ve added a question to my repertoire.

It’s simple, to the point, and something the DWI lawyer wants and needs to know. I’ve had my own ways (in the past) of inquiring about this subject matter, but because of Robert’s post, I’m going to adopt his way of doing it. It’s better than how I tried to illicit the information, and I’m not afraid to admit it. Read, learn, and get better. (I can even admit that his method is so much simpler and better than mine has been that I’m a little embarrassed.)

One general rule for jury selection is that you shouldn’t be asking “raise your hand if …” type questions, you should be asking questions that force potential jurors to respond substantively, with their own thoughts and ideas. But this is a good example of an exception to the general rule.

Example #2 comes from Mark Bennett, but some background before we get to his specific cross examination question.

I think one of the most difficult tasks for a DWI lawyer is to successfully defend a breath or blood test case where the client’s BAC (Blood or Breath Alcohol content) comes back as over .08. Briefly, there are two basic defenses: (1) the machine is an untrustworthy piece of junk, or (2) the defendant’s BAC at the time of driving was lower than at the time of the test.

The problem for the DWI defense attorney is that both of these are highly technical, i.e. scientific based defenses… and we went to law school. Few of us have graduate degrees in Science. Or undergraduate degrees, for that matter. Personally, I received a Bachelor of ‘Science’ in Psychology, after relatively brief and/or longer stops in the Departments of Computer Science, Theater Arts, and English, in that order. (OK, it took me a while to figure out what I wanted to do – and even then I changed my mind - although you can certainly make the case that my ‘Theater’ training still comes in handy.)

But generally speaking, the person testifying for the State knows more about the Intoxilyzer 5000 than we do. In Texas DWI cases, that person is the “Technical Supervisor’. Their job is essentially to come and testify that defense #1 is out the window, because the Intoxilyzer is God’s gift to machines, and that while defense #2 is theoretically possible, it doesn’t apply in your client’s DWI because blah blah blah (insert mumbo jumbo here, and the reasons seem to change to fit the facts of your particular case).

Here’s what I learned from Mark, in his post on “Dealing with the State’s Expert: One Last Question”:

If you get a chance to talk to the State's expert witness before trial (if you're allowed to, try; the best experts often see themselves as neutral, and will explain their conclusions to you), your last question should be: "What book should I read to learn about this topic myself." Get the book; it'll be a learned treatise that you can mine for cross-examination material.

Yes, it’s not technically cross examination; it’s an informal question most likely asked in whatever room the prosecutors are holed up in, and not in a pretrial or trial setting.

But here’s how it applies to DWI cases: it’s a great question to ask at the ALR driver’s license revocation hearing. This is often held before the criminal case, and it’s an absolute goldmine for defense lawyers.

Why not use your ALR hearing last question to the technical supervisor to ask his question? About books, or magazine articles and the like. Worst case scenario is that the expert limits his knowledge of ‘learned treatises’ on the subject to a bunch of material that only backs up his side of the story.

At the very least, you can show that the State’s expert relies only on material that favors his conclusions. Or, in the alternative, that the DWI technical supervisor relies on scientific publications that help your client.

Either way, you learn more, and your clients (present and future) benefit.

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No, they don’t object to testing you for breath alcohol when they pull you over for going 5 miles over the speed limit on I-35. (Example taken from a recent Austin DWI arrest.)

They object to being breath tested themselves.

After they shoot somebody.

The New York City Police Department is moving to require officers to take breath tests for alcohol if they shoot someone…

Four of the five officers involved in the shooting are detectives, and the union that represents them criticized the breath test recommendation, saying such a measure — which would apply to all police officers — was subject to collective bargaining...

Requiring that police officers take breath tests after shootings — whether the officers are on duty or off — is a significant change…

So, if a police officer asks you to take a breath test, should you exercise your right to refuse, or should you do what the police union would have their members do?

Oh wait… either way, you would end up refusing the breath test. And after all, you didn’t even shoot anyone.

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Or perhaps… in my corner of the blogosphere, “Why Lawyers Should Read Lawyer Blogs”. (Because they can always improve their skills.)

One of the great things about law blogging is that done correctly, it requires that you read other law blogs. I’ll get to how that potentially helps me as a practicing DWI lawyer in Austin, Texas in a moment, but let me start with the first point.

How do you learn to write a blog? By reading other blogs. Plain and simple, end of story.

This is simply a subset of the well known axiom that the best way to learn to write is to read. And read. And then read some more.

Copyblogger’s Brian Clark recently posted his “10 Steps to Becoming a Better Writer,” suggesting the answer was to write, write, write.

The comments section of the post is the most interesting though, because several responders (who understood his basic point) exhorted others to read as well as write.

Blogs are written differently than novels, short stories, biographies, historical fiction, technical writing, etc. Blogs are written differently than anything else. So the best way to learn to blog is to read blogs.

But there’s more to it than that. At least for lawyers. Blogs provide the perfect medium for an exchange of ideas about, say, criminal defense.

Professionals can learn from others in their field, and those whose egos won’t let them become versed in new techniques and fresh ideas are bound to stagnate and lose their edge.

For example, I recently ran across the Lubbock DWI blog, written by DWI lawyers Stephen Hamilton and Nicky Boatwright.

They posted about inaccuracies and problems with the Breath Test Machine used in Texas, and started their post with:

Over the years, the machine used to guess at a person’s blood alcohol concentration has changed.

Breath testing is simply trying to guess what a person’s blood alcohol concentration is at the time the test is administered. The current guesser is called the Intoxilyzer 5000.

I’ve practiced DWI defense in Austin for over ten years, so I’m well aware of the potential for disputing breath test results. But I learned something from the post, not about blogging, but about DWI defense, and a new way of arguing a case to a jury:

…the machine used to guess at a person’s blood alcohol concentration…

Beautiful turn of phrase. One that accurately describes the Intoxilyzer 5000. And a quick and easy way to accurately describe the machine to a jury, if necessary.

So, to recap: reading blogs is the way to learn to write them. But even if you just want to become a better [fill-in-the-blank], don’t be afraid to soak up ideas from other people, and use them in your practice.

One last point: I could have titled this post “Why Lawyers Should Read Other Law Blogs,” or even more generically, “Why Bloggers Should Read Other Blogs”… because the basic point is the same, no matter what section or niche of the blogosphere you inhabit, want to blog? Start by reading other blogs.

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From today’s Austin American Statesman article about an unsuccessful attempt to reverse the presumption of innocence for DWI cases in Texas:

A third proposal would have simplified the method used for determining a person's blood-alcohol content at the time he or she was driving.

The proposal, House Bill 915, by Rep. Jimmie Don Aycock, R-Killeen, would have specified that if a driver's blood-alcohol content is higher than the legal limit of 0.08 within 90 minutes of being pulled over, the driver would be considered intoxicated.

"Right now, the problem is you have to prove they were intoxicated while driving," Aycock said. [Emphasis Mine]

So it’s a problem that the State has to meet their burden of proving guilt beyond all reasonable doubt? A problem that can be fixed with some legislation?

Fortunately, this bill was voted down by the House Law Enforcement Committee. I’ve written previously about the “Rising BAC defense” that is available to some DWI defendants in Texas. Being over .08 at the time of the breath test does not necessarily mean you were over .08 at the time of driving.

But some lawmakers objected to “forcing” the State to prove their case, so they attempted to create a presumption that any breath test within 90 minutes of driving would automatically do the trick.

David Gonzalez, counsel for TCDLA and also a local Austin DWI lawyer hit the nail on the head when he…

…said the bill would create a presumption of guilt.

"What that really means is, we need to make it easy for convictions, and when science and other things get in the way, let's disregard them," Gonzalez said.

Politicians can’t change the science of breath or blood alcohol testing…and Texans should continue to object to illogical manipulations of DWI statutes.

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I was arrested for the first time ever last weekend for DWI. The police officer stated I didn't come to a complete stop at a stop sign and that's why he pulled me over. I thought I did OK on the field sobriety tests but was arrested. Scared and nervous, but I did about as well as I could have on the tests.

At the police station I blew a 0.09. Just a fraction over the limit. I personally knew I was OK to drive the two miles home, but the law is the law.

I cooperated with the officer and did what he asked.

I have two questions: First, the officer did not put on my seat belt after I was placed in the cruiser; second, I was never read my rights. Could these two issues help me in my case?

By the way, I have never been in trouble in my life - ever, and I have clean driving record. I am also 44 yrs old. Any thoughts?

I have several thoughts; let me address some of the un-asked questions first.

I recently posted about the “Rising BAC” defense, and it’s possible it could apply in your case. As you acknowledge, barely over the limit is still over the limit…but the State must prove either (a) loss of the normal use of your mental and/or physical faculties, i.e. impairment or (b) having a breath or blood alcohol concentration of .08 or higher at the time of driving.

Depending on how long it was from the time of the stop until the time of the breath test, it may be arguable that you were under .08 at the time of driving (or, as the law phrases it: “while operating a motor vehicle in a public place”).

Polite and cooperative is always a good fact as well. Most police officers will acknowledge that “some people you have arrested for DWI become quite belligerent and rude”. I like to phrase it as “some people” on cross examination, because frankly, that’s probably the best you can get out of the officer, and anyway, a jury will know that not all who are “drunk” will be impolite.

As I said in the previous post, doing reasonable well on the field sobriety tests is a prerequisite to getting a dismissal, reduction of charges, or not guilty on an “over .08 breath test DWI” case. Sounds like you may have done well on them – obviously, will have to wait to see the video of the tests to know for sure.

The video will also show whether the officer asked questions about when your first and last drink were consumed, when your last meal was, and other questions potentially necessary for the State to prove “over .08 at time of driving”.

As for your actual questions, I don’t think either of those will provide you with a defense. Not seat-belting you in properly sounds like a bad idea; perhaps it’s an indication that he might be a rookie, maybe it shows that he’s sloppy, and that sloppiness might carry over into his grading of your performance on the FSTs. But that’s (1) a bit of stretch, and (2) definitely not the kind of technicality that would make a judge grant a Motion to Suppress the Evidence, or throw your case out.

I’ll post later about DWI officers not reading Miranda warnings to those arrested for DWI (it deserves a post of its own). But suffice it to say here that most officers don’t read DWI defendant’s their rights, nor do they need to.

Statements made by a defendant in response to questioning from an officer after they have been placed under arrest for any offense, without the Miranda warnings are potentially suppressible. But, in most DWI cases, all the evidence gathered against you is taken in the “investigation phase” (most of what you told the officer was before he even administered the tests to you – never mind cuffed you and stuck you in the back of his car).

Thus, the Miranda warnings do not usually apply in DWI cases.

As for never being in trouble before? The prosecutors don’t so much give you credit for lack of a prior record, as they give you grief (and enhanced penalties, fines, jail time, etc.) for it being the second time around.

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Dennis Paxinos, the chief prosecutor for Yellowstone County, Montana, wrote a Guest Opinion column in the Billings Gazette this week entitled “Scientific Test would disprove DUI myth of ‘few drinks’.”

Outraged by the suggestion of legislators in his area that a “few drinks” might accidently put them over the legal limit of .08, he issues a challenge to any two legislators to have drinks and dinner with him with these conditions:

• We all agree to take a breath test on a Portable Breath Test Instrument (PBT) first to make sure we are all starting with a 0.00 BAC.

• The lawmakers, myself and a member of the press will order dinner and drinks and we chat as we would normally for an hour and a half.

• I would then ask everyone to estimate their BAC as well as the BAC of their dining companions.

• We would then be given a preliminary breath test from an officer on stand-by. And, to demonstrate how accurate the PBT tests are, we would then all be driven to the DUI processing center to have our breath analyzed on the Intoxilizer 5000. [sic]

He finishes his challenge by insisting that since the breath test machine will inevitably show them to be “under .08”, they will have to make a statement on the floor of the House or Senate that “having a couple of drinks with dinner is perfectly legal”. (Presumably, he means driving after a few drinks at dinner is legal.)

Ignoring for now his implication that being under .08 would automatically make someone not guilty, let’s analyze what’s wrong with his so called scientific challenge…

He assumes that the Intoxilyzer 5000 gives an accurate result. (Of course, the PBT that he offers first is so unscientific, that it doesn’t even meet the low threshold for admissibility.) If the machine is so “scientific”, why doesn’t CMI, the manufacturer, allow independent (read: non law enforcement) folks to buy the machine and test it out?

The basis of modern science is peer review; and yet CMI refuses to let their machine be independently tested? Does that sound like science to you?

One last point about his op-ed piece. Paxinos writes:

…having a couple of drinks with dinner is perfectly legal. However, consuming a lot of drinks with or without dinner coupled with driving is against the law and should not be condoned or accepted by anyone.

Thanks for highlighting the problem with DWI/DUI legislation everywhere. Something is fishy when even the prosecutor can’t enunciate a clear cut rule for “how much is too much”.

If you’re going to write an article mocking the idea that folks don’t always know when they’ve exceeded a .079 breath alcohol content, shouldn’t you yourself be able to define it better than “more than a few drinks, but less than a lot”? Science indeed.

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DWI lawyers know that most times their defense will be “the State can’t prove my client was intoxicated”. This usually comes up in breath or blood test refusal cases, where the defendant does well enough (not perfectly, just well enough) on the field sobriety tests.

Sometimes, the defense is that the State can’t prove that my client drove or operated a motor vehicle. This might involve the police arriving on scene after a collision, or after the driver is pulled over on the side of the road.

But the least common DWI defense is what I call the “while defense”. Yes, the state can prove my client was legally intoxicated (at some point). And yes, they can prove he was operating a motor vehicle. But they can’t put both of them together at the same time, and therefore, he wasn’t Driving While Intoxicated.

This defense is realistically possible when the defendant provides a breath or blood specimen where the analysis shows that the alcohol concentration is over .08, but is for example, under .10.

Of course, the defendant didn’t actually provide that specimen while driving, but instead, some time after the fact. I’d estimate that in most Austin DWI cases, my client’s breath or blood sample is taken somewhere between 30 minutes to 2 hours after the arrest.

Why so long?

Well, there’s sometimes a delay while the original stopping officer waits for an Austin Police Department DWI task force officer to arrive on the scene. That officer then conducts an interview, and administers field sobriety tests. The officer might conduct an inventory of the vehicle, and will certainly read the DIC Statutory Warning to the defendant, asking for a specimen of breath.

Then there’s the trip to the police station, where there may be an additional wait. (The recent addition of the BAT-Mobile, or Breath Alcohol Testing Mobile Unit has cut down that wait – but that’s fodder for another post.) And depending on where in Austin the client was stopped, the trip to the station or the DWI mobile unit can take quite some time as well.

The point is that having a BAC of .085, for example, 30 to 45 minutes after the driving, does not in and of itself prove that the defendant was driving while intoxicated. Depending on various factors, primarily the particular drinking pattern that night and the stomach contents, it is possible for the Defendant’s BAC to be higher at the time of the test, than it is at the time of driving. It is also effected by variations in human physiology as well.

This is most likely in scenarios where the defendant’s last drink was very near the time of driving; which given what happens at closing time, is not an unlikely scenario at all.

This isn’t just some crazy DWI defense lawyer theory here either – it’s both basic common sense, and basic science. So basic, that even the CMI manual for the Intoxilyzer 500 (used for breath tests here in Austin) admits that the defendant’s actual breath alcohol content at the time of the test may be “higher than, lower than or the same as” the BAC at time of driving.

[Last Note: in explaining this over the years, I really have come to label this the “while defense”, because it seems to make sense when I explain it in this context. I should note, however, that the more formal term for it is the “rising BAC defense”, meaning that if the defendant’s BAC was still rising at the time the vehicle was pulled over, then it’s likely that it was below the test measurement at the time of driving.]

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Practicing DWI defense in Austin, Texas, I concern myself primarily with the accuracy of the Intoxilyzer 5000, the machine Austin Police Department uses, not the Breathalyzer or Alcotest machines. But I ran across this article about pending litigation in New Jersey regarding use of the Alcotest 7110 in DWI cases, and wondered if anyone else had a similar reaction to the first paragraph:

Police departments in dozens of North Jersey communities could soon begin using a new machine to determine drunkenness among drivers, following a judge's recommendation Wednesday that the device -- although not entirely accurate -- is fairly reliable.

“Fairly Reliable” – is that the standard now?

I’m trying to see if I can track down the 268 page report that the retired judge submitted to the New Jersey Supreme Court. If and when I find it, I’ll have more later on this subject.

But from what I can tell from the newspaper reports, there appears to be at least an acknowledgment in the report that false high readings can be caused by variables in body temperature. This is also a known problem in some Intoxilyzer breath test results as well.

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The law in Texas does not say that it’s legal to drive with a breath or blood alcohol concentration of under .08.

There are two alternate definitions of intoxication in Texas when it comes to DWI. The first, everyone is somewhat familiar with: the .08 BAC per se limit.

The second however, is the alternate definition of intoxication: not having the normal use of your mental and/or physical faculties due to the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.

The second definition is what the State uses as their theory every time they prosecute someone in Texas without a breath, blood or urine sample. Or, when the person provides a specimen and it’s under .08.

The law does not say that it is legal to drive if your BAC is under .08; it only gives the State more ways to attempt to prove your guilt if you provide a sample over .08.

Think of it this way: A sixteen year old, weighing about 120 pounds, drinks 2 beers, never having consumed alcohol before. Depending on several factors (size of beer, alcohol content of beer, stomach contents, etc.) it’s very likely that our hypothetical teenager is not over “the legal limit” of .08.

However, since this is his (or her) first time having a beer, he (or she) may indeed be impaired, which is essentially the alternate definition of intoxication for DWI.