Discovery Tools DWI Defense Attorneys Can Use

Many Police Officers who aggressively enforce DWI or Drunk Driving Laws are aggressive in other aspects of their job. Aggressive officers generate more than their share of citizen complaints and ensuing internal investigations. This makes for fertile ground in discovery for a defense attorney IF they know where to look. This bulletin is designed to instruct a defense attorney where to look for buried skeletons concerning their arresting officer. It is imperative that you know how to ask for information, what to ask for, and where to look within a police organization.

HOW & WHERE TO ASK:

Your success will depend on how thorough and effective you are in seeking this information. "Give them ONLY what they ask for..." is what legal counsel for police agencies will tell record custodians in responding for requests for documents buried deeply within the bowels of a police organization. So the FIRST thing you need to know is to be careful how you craft your requests. For example: A requests for information reading as follows: "All citizen complaints, etc...wherein Officer Jones...received departmental discipline..." will yield ONLY the complaints where a citizen’s complaint was supported with enough evidence that the officer was disciplined. More often than not, officers are NOT disciplined in citizen complaints where it is the officer's word against the citizen's. So a requests crafted in this fashion will likely not reveal all the citizen complaints where the officer has lied his way out of it. Remember, cops aren't stupid! They're generally not going to screw up when they know independent witness or a video-camera is present. You have to use the magic-words in your request!

WHAT TO ASK FOR:
(The "personnel records" game.)

A request for an officer's "personnel file" will usually yield butt-kiss! (Unless you find mundane city personnel forms interesting reading.) Know that nearly all law enforcement agencies effectively hide their internal matters concerning officer's conduct in locations other than the officer's personnel file. You still need to ask for that because there will likely be valuable information concerning the officer's training, but don't stop there. In larger agencies that have an Internal Affairs Division, here is where you will usually find the Mother-Load of information! But don't limit it to that division. Craft your requests to include "all departmental internal investigations involving citizen, officer or supervisor complaints..." Also know that most internal affairs divisions keep a form of a rap-sheet, so to speak, on each officer. This will have a chronology of all matters investigated on this particular officer. Ask for that as well to be sure you got everything. Also, most internal affairs divisions maintain a master-log of all matters investigated including the personnel involved. This can be fertile ground for an attorney that does a lot of litigation with officers from one particular agency. Also, many police officers are rogues, traveling from agency to agency as their misdeeds catch up with them. Be especially wary of officers from small departments where their officers are paid hourly and there is a high turnover. A rookie starting out is one thing, but a seasoned and experienced officer? There a problem somewhere! In the "personnel file" you'll find their two-page city application that nobody looked at. This is worthless compared to their "Personal History Statement." These are basically a book the officer filled out in applying for their job where they were told to spill-their-guts about everything they've ever done wrong and they would likely be polygraphed on their responses. Also ask for performance appraisals/evaluations and reprimands/counseling/coaching reports.

ARREST SPECIFIC INFORMATION

Most agencies have a mother-load of information concerning your client's arrest that will not be reflected in the arrests report. The technology is there, the information is there, you just need to ask for it and ask for it quickly because so much of this data is periodically purged every 60-90 days.

Dispatch Information:

Computer Aided Dispatch Data: This is the screen the dispatcher was looking at and completed when she received that 911 call from a motorist, or a radio call from the officer stopping your client. That printout will contain the information the police learned, and when they learned it. It will also show the names of every officer that responded, when they arrived, and when they left. Here's a good example of how this can be helpful: I had a case in Keller, Texas, small town in northern Tarrant County. The dispatcher dispatched an intoxicated driver call. No license plate information and a very general description of the vehicle. By looking at the CAD Data, it was established there was no way my client's vehicle could have been the one the police were seeking, given the time and location of the call, direction or travel, etc. It also reflected another officer was stopping another vehicle of the same general description on the other side of town, which would have been more correctly the vehicle. In this case, the officer developed no reasonable suspicion of his own before stopping my client, the 911 caller was not identified, and this case will likely result in all evidence being suppressed. You won't find ANY of this information in the arrests report!

Jail Information:

In booking there is a medical screening of your client. I cannot begin to guess the number of times a jailer has check the "No" box where it ask if the prisoner is under the influence of alcohol or drugs. Want to bet he makes your witness lists for trial?

Field Training Officer Notes and Mobile Data Terminals:

If your arresting officer was a rookie with a partner, that partner was likely a training officer. Subpoena his notes and FTO daily critiques. There, he has likely made a record of everything that officer did incorrectly with your client. You won't find THAT in the arrests report either! Also, never, never, never fail to ask for the mobile data terminal transmissions. This is essentially e-mail from car-to-car, and car-to-station. These officers will yuck-it-up about your client before, during, and after the arrest. Ask for ALL MDT transmissions sent and received by your arresting officer (and any other officer that was at the scene) for the entire shift. Here you will often glean valuable information from discussion among the officers. Here's an example of a dialogue between two officers at the scene of a DWI arrest:

P-215 Dis [sic] he blow?
J-417 Yea...
P-215 Do I win?
J-417 Nope. .11
P-215 [Expletive omitted] ...I never thought he'd have blown that high, must be an Asian thing.
J-417 Didn’t [sic] mention eatin rice in the interview LOL

This case was reduced to an obstructing and the officer making the racial remarks was disciplined. Again, you won't find stuff like this in an arrests report!

I hope this blog has given defense attorneys some food for thought. If any of you need any help with any particular situation, don't hesitate to contact me at: http://www.sloanelaw.com

Jury Deadlocked for Three Days in this Case Defended by David Sloane

Copied from: nbc5i.com

Teens Remember Friend Killed In Racing Crash
Hurst Teen Died In Street Racing Accident, Police Say

HURST, Texas -- Friends of a Hurst teenager killed in a street racing accident over the weekend think little will change following the death of their friend. The deadly crash that killed Corey Fournier happened in Fort Worth business parking lot on Saturday when Fournier's boyfriend, 18-year-old Earl O'Gorman, lost control of his vehicle and crashed into a parked trailer.
Witness John Potts doesn't think Fournier's death will stop the teens from continuing to race. "I think they will still be out here next Saturday night," Potts said.
The area off the 700 block of Railhead Avenue is known for street racing and car stunts.
O'Gorman reportedly tried to jump a hill in his sport utility vehicle at speeds of 60 to 70 mph, police said. After jumping the hill, Potts estimated that the SUV was 7-8 feet off of the ground.
He landed and lost control, hitting a trailer, police said.
Fournier's best friend, Rachel Barton, was stunned and said she felt like her friend was still around. "I can't believe it was her. I wish it was me ... I can't believe she's gone," said Barton.
O'Gorman was jailed on charges of criminally negligent homicide, and was released on $25,000 bond.
His attorney, David Sloane, told NBC 5 that a blood test administered to O'Gorman immediately after the accident showed that the teen had no alcohol or drugs in his system.

http://www.sloanelaw.com

More on Keller Police's DWI Tactics

Even the cops know not to take so-called "Field Sobriety Tests!"

Fort Worth officer is found not guilty of DWI
By MELISSA VARGAS
STAR-TELEGRAM STAFF WRITER

FORT WORTH -- Chiding Keller police for acting unfairly, a Tarrant County judge Thursday found a Fort Worth police officer not guilty of driving while intoxicated in Keller last July.
Judge Daryl Coffey said he believes that Keller police treated Amy Rodriguez more harshly because she was an officer. He questioned whether she would have been arrested otherwise.
Keller Police Chief Mark Hafner said Thursday afternoon that he stands by the actions of the arresting officer and maintained that Rodriguez was arrested with probable cause.
The officer "did what he believed was prudent at the time, but people are innocent until proven guilty and we respect that," Hafner said. "The district attorney's office also accepted the case and believed the evidence would lead a reasonable person to believe the operator was under the influence."
Rodriguez, 31, was stopped for speeding shortly after 10:30 p.m. July 29 at Keller Parkway and Davis Boulevard. The officer said that Rodriguez's breath smelled of alcohol and that Rodriguez told him that she had had hardly anything to drink, court records show.
Rodriguez was interviewed, but police released her to members of the Fort Worth police's internal affairs department, Coffey said.
An arrest warrant was issued for Rodriguez a few days later, and she surrendered to authorities Aug. 22. She was released after posting $1,000 bail.
During a bench trial Thursday morning, the Keller officer who stopped Rodriguez testified that Rodriguez refused a Breathalyzer. The officer did not perform a field sobriety test and she "refused to cooperate," court records show.
Refusing to take the Breathalyzer, however, did not indicate that she was guilty and trying to avoid jail, Coffey said. Even if Rodriguez had consented to the Breathalyzer and the results had shown her to be under the legal limit, she could have been arrested anyway, Coffey said.

http://www.sloanelaw.com

Study Shows Inherent Unreliability of Accuracy of Intoxilzer 5000

Stefan Rose, M.D. and Kenneth G. Furton, Ph.D. with Department of Chemistry and International Forensic Research Institute, Florida International University have published a groudbreaking article telling us what we already knew: That Intoxilyzers are inherently unreliable to yield accurate results of a person's true level of blood alcohol concentration simply by measuring their breath!
All Criminal Defense attorneys actively engaged in the defense of individuals charged with DWI/DUI need to know and understand the contents of this article inside and out! I believe it would be legal malpractice for an attorney to undertake and defend a breath-tests failure case without being armed with this knowledge! Furthermore, this article can serve as a VERY effective blueprint for cross-examining a state's breath-testing expert. The Introductory paragraph reads as follows::

"Breath testing instruments have been used extensively for the determination of ethanol in medicolegal investigations due to the simplicity in their operation, the relative portability of the instruments and the immediately available results. Unfortunately, breath alcohol instruments universally are prone to false positives(i.e. instrument reports ethanol is present when in fact it is responding to a different chemical) and falsely elevated breath values when ethanol is present
(due to a variety of factors). The Intoxilyzer 5000 breath alcohol instrument is no exception and numerous studies have documented some of the sources of the errors with this instrument. The major types of variables discussed in this chapter include physiological (biological) variables and analytical (instrumental) variables with overlap between the two. The uncertainty in evidential breath-analyzer readings for a random subjects in the post-absorptive state has been determined to be as much as ±27% with over 90% of this uncertainty due to biological variables of the subject and at least 23% of subjects having their actual blood-alcohol concentration overestimated..."

To view and download the entire article along with demonstrative tables in PDF format go to:

http://www.hudson-law.net/Variable_Affecting_Accuracy_Precision_of_Breath_Alcohol_Instruments_Including_Intoxilyzer_5000.pdf

Also, my hat is off to Tom Hudson, a Florida Attorney for making this information available to us on the web. If anyone in Key West/Sarasota, FL. needs a top-notched DUI/DWI Defense Attorney, this is the guy to go see!

Dave

http://www.sloanelaw.com

DWI - What to do

What to Do if Stopped for DWI

Most people arrested for DWI in the Fort Worth area play right into the arresting officer’s hands when stopped. They do so by being cooperative and giving the officer all kinds of evidence to convict them and suspend their driver’s license that the officer would not have otherwise had. The most common and damaging mistakes include submitting to a variety of coordination tests and answering a variety of damming questions while believing if they’re cooperative with the officer the officer might let them go. Not so! By the time an officer asks a driver to step from their car for sobriety testing their belief is that the person is likely impaired and their intent is to take them to jail. If a driver is the least bit impaired they’re not going to “pass” these tests. These tests are designed for failure. The best thing to do is simply refuse to submit to all testing and refuse to answer any questions until an attorney is present. Remember, these police encounters are likely being videotaped with audio and video recordings (via a dash mounted camera in the patrol car and wireless microphone concealed on the officer.) So the best thing to do is say as little as possible, do as little as possible, and to be as polite as possible. Yes, they’re probably going to jail, but they were going to jail anyway! Better to beat the rap overall than to loose it badly by making a foolish attempt trying to beat the ride. By submitting to testing the driver gives the officer all kinds of things to talk about when he gets on the stand, which in turn, gives them the ability to make someone appear to be much more impaired than they actually were. By reading this, one should conclude the deck is clearly stacked against them if they have had ANYTHING containing alcohol to drink and are stopped for suspicion of DWI. People arrested for DWI , DUI and DUID in the Fort Worth area need to retain an experienced criminal trial attorney immediately. Pleadings to preserve their driving privilege need to be filed within 15 days of their arrest.

Field Sobriety Testing

“Failing” a field sobriety tests is much easier than one thinks! Indeed, most sober people cannot “pass” these tests. The results are very subjective and have little to do with whether someone can “complete” the tests. The officer is not looking for that. He or she is looking for “clues” of impairment rather than trying to see if the person can complete the test. There are basically three tests officers in the Dallas and Fort Worth area use:

Nystagmus Gaze Test:

This is where the officer asks a driver suspected of driving while impaired to hold their head still and follow the movement of an object (usually a pen) with their eyes as they move it both horizontally and vertically across the driver’s field of vision. What they’re looking for is a jerking movement in the eyes, which occurs in everyone after consuming any amount of alcohol, as well as other reasons. They look for jerking when the eye follows the object, or is angled at 45 degrees. This jerking will also occur if the tests are performed too long by fatiguing the muscles that control the eye. The jerking that occurs in the eyes when fatigued is no different than the jerking that occurs with other muscles in the body when tired or strained. So even if Nystagmus is not apparent when an officer first begins the tests, if he or she does it long enough, Nystagmus will occur. Additionally, anyone who has had anything to drink at all will usually demonstrate all clues in this test. Conducted long enough, those who haven’t been drinking at all will demonstrate the same clues. Rarely does an officer who has conducted a Nystagmus test say there weren’t “clues.” Anyone who agrees to take this test for an officer should plan on failing it.

One Leg Stand:

Few people sober or not, can perform these tests without practice without showing “clues” of intoxication. In these tests, an officer will ask the driver to lift one foot off the ground at least six inches, for 30 seconds. They’re to do this while looking down at their toe, and counting out loud, one-one thousand, two-one thousand, three-one thousand, and so on. By having the driver perform these two tasks at once, it splits their attention, making both much more difficult. Even if the driver is able to perform this tasks, they’ll likely fail the tests, because in this test the “clues” the officer is looking for are very subtle and includes swaying; using arms to balance, (or even slightly moving the hands or arms) loosing count, or putting the foot down and picking it back up during the tests (even though during instructions the officer implies that is okay.) Most people without practice cannot perform these tasks as perfectly as expected without having anything to drink, let alone with a few beers on board. The problem can be worse if the person is overweight, has inner ear problems or has problems with their feet or legs. This test is only supposed to be performed for 30 seconds. More and more officers are ignoring their training and requiring the tests be performed for longer periods till the driver eventually becomes fatigued and messes up. The driver has just failed that one! Rarely does anyone take this test without the officer noting at least two or three “clues.”

Walk and Turn:

Few people sober or not, can perform these tests without practice without showing “clues” of intoxication. In this test, the officer will ask a driver while looking down and his arms at his side to take nine heel-to-toe steps in a straight line, turn using a series of small steps, and take nine heel-to-toe steps back to the starting point. During instructions for this test the officer will ask the driver to stand with his heel to toe, and arms down at his side while facing the camera. The “clues” they arelooking for actually begin while they’re giving instructions, so the test actually begins long before the driver believes. The “clues” in this test include again swaying or moving or using the arms to balance. Other clues include beginning the tests before the officer says; not clearly touching heel to toe with each step; turning without using a series of small steps (which nearly everyone messes up); not counting out loud, etc. Again, without practice this is difficult for someone who hasn’t been drinking to do as perfectly as is required not to demonstrate “clues” of intoxication.

After reading this, one should reasonable conclude it’s just best not to play a game they cannot win. Any of these “clues” coupled with a smell of alcohol is about all that’s needed for a jury to convict someone of DWI. People arrested for DWI, DUI and DUID need to retain an experienced criminal trial attorney who is aware of and can effectively educate a jury and expose these ploys used by the police to make someone appear much more impaired than they actually are.

Breath and Blood Test:

Breath testing devices employed by the police are inherently inaccurate. Even their manufacturers will not guarantee their accuracy. They all operate on the flawed assumptions that all people metabolize at the same rate(and release through their breath) the alcohol they have consumed. If everyone had identical metabolisms; eaten the same thing; drank the same thing, and the tests were administered identically, perhaps this device could give an accurate measurement of someone’s blood alcohol. It cannot. Also, few safeguards are taken to insure the sample is not contaminated by residual alcohol found in the throat or esophagus of the accused at the time these test are administered. A subtle hiccup or burp that goes unnoticed by the accused can produce artificially high tests results. A breath alcohol reading above .08 in Texas is ALL that is required to convict a driver of drunk driving, no matter how sober they appear outwardly. Most drivers correctly refuse to submit to any breath testing due to the inaccuracy of these tests and the devastating stigma that would form in the minds of a jury with an artificially high result. Blood testing, produces a much more accurate result. But the results are typically higher than those obtained by a non-contaminated breath test. Anyone who believes they may have had more than few drinks or beers should refuse to participate in all chemical testing. A driver has the absolute right to refuse to submit too breath of blood testing. There can be circumstances where the police are allowed to take a blood sample without a driver’s consent. However, this consent should never be given by a driver who has been drinking.

WAYS TO AVOID DWI:

Clearly, the deck is stacked against a driver who has a few beers on board. The best time to plan for being stopped is in the beginning of the evening, and not when a driver sees those lights in their rear-view mirror.

• Staying home to drink, designating a driver, or eagerly surrendering the keys to someone else if they’re offering to drive is by far the safest way to avoid a DWI.

• If a driver is alone, and after an evening out doesn’t feel safe to drive, they should call someone to come get them, or without placing the keys in the ignition sleep a few hours before attempting to drive. If the police find them asleep in their car they may still arrest them for public intoxication, but that’s far better than a DWI . Again, they should not put the keys in the ignition! The law prohibits operating a motor vehicle while impaired. Starting the car, running the heater or air conditioning and playing the radio have been considered “operating” the vehicle by some courts.

• Frequent partiers should just leave a gym bag in their car containing essential toiletries and a change of clothes. That way they’re prepared to stay wherever they are when their lifestyle has rendered them unsafe to drive. They should make a habit of just staying put. There are a few unlucky ones that get caught their first time, but the vast majority of people accused of DWI, DUI or DUID are those who routinely drive after consuming intoxicants.

• If someone drinking knows they’re going to have to drive, they should develop an accounting method that is simple to keep up with how much they’ve had to drink. It is very easy for someone to loose count on the number of alcoholic beverages they have had over the evening. For most, a token system works best. They should decide on a token to collect with each drink, and stick it in their pocket. Some ways to gather token includes collecting a match book every time they go to the bar, or licking the stir stick clean from each drink they’ve had and sticking it in their pocket. Or for beer, doing the same thing with the tab easily broken off the beer can, etc. At the end of the evening they can count their tokens and determine exactly how many drinks they have had, and from that make a more informed decision whether they should be driving; and what to do if they are stopped. (NOTE: They should NOT keep paper bar tabs or receipts in their car or on their person as an accounting method, especially if they have been buying drinks for others. The police often zealously search for these documents in drunken driving arrests and give them to prosecutors to use as evidence!) For the average person it takes four beers, glasses of wine, or single-shot mixed drinks to bring them to the legal blood-alcohol limit. If their accounting yields they have 4 or more alcoholic beverages they would be wise not to drive. If they do and get stopped, they would be wise NOT to submit to ANY sobriety testing. They should politely refuse and request an attorney before answering any questions.

• Most police officers will try to tell a driver they are not entitled to have an attorney before answering questions of deciding whether or not to submit to testing when stopped for suspected DWI. Every citizen needs to understand they have an absolute right not to answer police questions if they are being detained. Also many police officers will tell a driver they will be arrested if they do not perform sobriety tests. What they don’t tell them at this point is they are probably getting arrested regardless. Every driver has an absolute right to refuse to participate in ALL sobriety testing. At trial, the burden will be on the state to prove the person was impaired. It is not up to the person accused to prove they weren’t. The driver who has been drinking who takes these tests will likely loose the rap and endure high fines, driver’s license suspensions, and perhaps a jail term trying to beat the ride and minor inconvenience of being arrested and having to bond out of jail.

• Also parents should also take a realistic approach when imposing rules on their teen drivers. Many teenagers have landed in jail or the morgue by driving when they shouldn’t have been, and/or faster than they should have been for fear of missing a curfew. Most parents don’t want their kids out drinking, but kids make mistakes. Parents should open a dialogue on the topic of drinking and driving, and structure the rules so that a youthful inebriated driver is not forced onto the highway just to avoid certain punishment over a curfew. They need to understand that a late night call with an honest disclosure from their teen that is reluctant to drive is highly preferred over that call from jail; or knock at the door by a police officer or medical examiner.

SEARCH WARRANTS:

The latest craze in Fort Worth is for the police to procure a search warrant to compel blood testing of someone arrested for DWI. In this case a judge orders an officer to search an accused for evidence of their guilt, in this case, alcohol in their blood. To obtain a search warrant they need “probable cause” or reasonable grounds to believe a person was driving while impaired. The police will have very limited facts to support this reasonable belief for a warrant and the warrant may be more successfully challenged if the driver refuses to submit to any sobriety testing at the outset.Of course collecting blood with a warrant requires the police to employ medically approved methods to accomplish this. They don’t seek search warrants in every case, but the frequency of use of search warrants in DWIs, DUIs and DUIDs is on the rise. Short of physically refusing, an arrested driver should verbally politely refuse all sobriety testing. Period! This includes granting permission to take a blood sample. They should NEVER just submit thinking the police are going to get a warrant anyway.The more time that passes between arrest and collecting their sample, assuming the police are able to get a warrant at all, the less credible the results will be in court. Also, even with a warrant, most hospital emergency rooms will attempt to get an arrested driver to sign a “Release” or “Authorization for Treatment” before drawing blood. Nothing in the law says a driver must waive their right to sue for malpractice should they become infected by that needle, or waive their right to outright refuse medical treatment just because they’re under arrest. Most hospitals will not touch a conscious potential “patient” if they or a relative have not given them written permission to do so. How they'll respond when they have an officer with a warrant and a patient saying they don't want to be touched will likely vary greatly. The hospital employee may refuse to perform the procedure of drawing blood, opting to follow their procedures rather than the court's order. But the search cannot be challenged later in court if the driver just agrees to allow it.

Other Things to Know

Many people aren’t behind the wheel, but are merely in close proximity to a recently driven vehicle when they are arrested for DWI. The police must find a way to place that driver behind the wheel. They ask. And the driver tells them.Things a driver says to the police during an initial encounter can be used in court, and usually are with a great deal of officer’s elaboration. By the time it makes the arrest report a simple statement like “I’m changing a flat” will be recalled as “I was driving this car upon this public roadway a few minutes ago and had a blowout…” Again, a driver who has been drinking should say as little as possible, do as little as possible, and be as polite as possible. The jury will be watching! People arrested for DWI, DUI and DUID in the Fort Worth area need to retain an experienced criminal trial attorney immediately. Pleadings to preserve their driving privilege need to be filed within 15 days of their arrest.

http://www.sloanelaw.com