10th Annual Lone Star DWI

January 20, 2023 HILTON AUSTIN AIRPORT

Course Directors: DEANDRA GRANT & AMBER VAZQUEZ

10TH ANNUAL LONE STAR DWI SEMINAR INFORMATION Date Location Course Directors Total CLE Hours

January 20, 2023 Hilton Austin, Airport 9515 Hotel Dr. Austin, TX 78719 Deandra Grant & Amber Vazquez 6.75

Ethics: 0

Friday, January 20, 2023 Time

CLE

Daily CLE Hours: 6.75 Topic

Ethics: 0

Speaker

7:45 am

Registration and Continental Breakfast

8:30 am

Opening Remarks

Deandra Grant

8:45 am

.75

Trying Blood Cases: Cowtown-Style

Dean Miyazono

9:30 am

.75

Evaluating Your DWI Cases: A Systematic Approach

Sorsha Huff

10:15 am 10:30 am

Break 1.0

11:30 am

The Latest on SFST’s from NHTSA

Lance Platt, PhD

Lunch Line

11:45 am

1.0

Lunch Presentation: Suppression & Motions Practice in DWI Cases

Amber Vazquez

12:45 pm

.75

Case Law Update & Recusing Judges

Mark Lassiter

1:30 pm

.75

Blood Discovery: What You Must Have & Why

Steven Wright

2:15 pm

Break

2:30 pm

1.0

Marijuana Identification & DWI MJ Defense

Megan Roper

3:30 pm

.75

Drugged Driving: The Latest

Deandra Grant

4:15 pm

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

10th Annual Lone Star DWI Table of Contents speakers Sorsha Huff

topic Evaluating Your DWI Cases: A Systematic Approach

Lance Platt, PhD

The Latest on SFST’s from NHTSA

Amber Vazquez

Suppression & Motions Practice in DWI Cases

Mark Lassiter

Case Law Update

Steven Wright

Blood Discovery: What You Must Have & Why

Megan Roper

Marijuana Identification & DWI MJ Defense

Deandra Grant

Drugged Driving: The Latest

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

10th Annual Lone Star DWI January 20, 2023 Hilton Austin Airport Austin, Texas

Topic: Evaluating Your DWI Cases: A Systematic Approach Speaker:

Sorsha Huff Deandra Grant Law 330 Oak Lawn, Ste 700 Dallas, TX 75219 972.808.7254 ext. 121 phone sorsha@defenseisready.com email www.texasdwisite.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

EVALUATING YOUR DWI CASES: A SYSTEMATIC APPROACH I.

II.

INTAKE a. License i. DL Number, State ii. CDL? iii. Have they requested their own ALR hearing? b. Need to travel to Canada? c. Citizenship i. U.S. Citizen? ii. What country were they born in? d. Criminal information i. County of arrest ii. Date arrested iii. Charge iv. Arresting agency v. Accident involving someone else? vi. Prior DWI? vii. Prior non-DWI charges? viii. Pending cases? ix. Active warrants? x. Probation/parole? xi. Bond amount, bail bondsman xii. Current retained or appointed attorney? e. Military service CONSULTATION a. License i. Breath or blood? ii. Consent or warrant? iii. Was their license confiscated? iv. Is there license out-of-state? v. Do they have a CDL? vi. Have they requested their own ALR? 1. Determine if there’s a need to request the ALR and, if so, the timing of the deadline.

2. Discuss the ALR, expenses, and ODL. b. Need to travel to Canada i. Of course, if there is no need, this is generally a less important priority for clients. But if there is a need, this will become extremely important in your case evaluation. ii. This question can provide a good segue to the next subject of citizenship. c. Citizenship i. U.S. citizen?

1. If “yes,” be sure to ask what country they were born in.

a. U.S.A. → U.S. citizen b. Anywhere else → Ask: When did they become a U.S. citizen? (Anything other than a direct answer of a specific year means you need to press further. For example, are they really just a legal permanent resident / green card holder?)

2. If “no,” you will need to connect them with an immigration attorney and/or find out their immigration background information. d. Criminal history i. Prior DWI’s?

1. When?

2. Where?

3. Disposition? ii. Prior non-DWI’s?

1. What charge?

2. When?

3. Where?

4. Disposition?

(Don’t forget about tickets!) iii. Prior pen trips?

1. How many? → Potential for enhancement paragraphs! iv. Pending cases?

1. What charge?

2. When?

3. Where?

4. Potential for bond violation?

5. Active warrants?

(Don’t forget about tickets!) v. Probation? Parole?

1. For what charge?

2. When?

3. Where?

4. Potential for probation/parole violation? vi. For DWI’s, always make sure you establish whether there was an accident involving at least one other person (including passengers and minor accidents). e. Military i. When did they serve? ii. What branch? f. Other questions: i. Hot button issues? ii. Biggest concern?

1. Record?

2. Immigration?

III.

3. Professional license?

4. Driver’s license?

5. Alcohol-monitoring machine? iii. Sleep the night before iv. Meals and water during the day v. Time of first and last drink vi. Type of drink, strength of drink (heavy pour, etc.) vii. Time of driving viii. Reason for stop ix. SFST’s x. Admissions to drinking, overall interaction with police xi. Medical issues 1. Mental illnesses/medication?

2. Physical illnesses/injuries/medication?

3. Counseling or therapy?

This is especially important for military cases, where there may be a connection between their service, a physical or mental illness/medication, and their DWI. Pertinent for DWI Court and/or overall mitigation.

EVALUATION a. Lab results → Over 0.15? → Ineligible for nondisclosure, if not stricken. i. Breath ii. Blood b. Video overview i. Watch the videos before you read the paper discovery. ii. Watch all of the video. iii. Watch every video. iv. Keep track of time stamps. v. Highlight and bold specific parts. c. Offense report i. Read the paper discovery only after watching the videos. ii. Check every officer name against whatever BOLO list you have, or request Brady checks on them all. iii. If you are in an included jurisdiction, go to PlainViewProject.org to see if your officers have problematic social media posts. d. Lab discovery i. Breath: Find your breath records online. ii. Blood: Subpoena/request your blood records. e. Relevant medical issues i. Take notes based on the videos, police reports. ii. Refer to intake and consultation notes. iii. Ask your client for their medical/hospital records.

IV.

f. State’s offer i. Specific offer ii. General conditions of probation g. Overall opinion i. Summarize case ii. Give overall likelihood of acquittal h. DL Implications: Same warnings for every client!

• If you are under 21 years old at the time of the DWI offense, your driver’s license will be suspended if you are convicted of DWI. • If you are over 21 and are convicted of a 1st DWI your DL will be suspended if you are sentenced to jail instead of probation.

• If you are convicted of a DWI 2nd or felony (or have ever had a DL suspension from a DWI in the past) then your DL can be suspended by DPS for up to two (2) years.

• If you do not take the required classes your DL will be suspended and will stay in suspension until you complete the classes.

• You will be required to have an SR-22 policy for up to two (2) years and if you fail to obtain it or cancel it, your DL will be suspended.

• If your DL is suspended you will have to pay a reinstatement fee even if you previously paid a reinstatement fee.

• If you do not have a Texas DL, the state that issued your license may take actions similar to those listed above.

• If you have a CDL, your CDL will be suspended for 1 year if you lose the ALR hearing. There is a separate 1-year suspension if you are convicted of the DWI. • Your lawyer cannot prevent DPS from taking the above actions.

DISPOSITION a. Plea; b. Trial; or c. One-week follow up.

The disposition meeting should be relatively mechanical. At this point, you should have all the information you need to accurately compare your client’s interests with the realities of their case and other legal circumstances (record, immigration status, etc.). By analyzing their license and driving concerns, overall professional licensing needs, travel needs (especially if they pertain to Canada), immigration status, and criminal history, then the choice between a plea and trial is more logical. Ask: What do they really have to lose by going to trial? Alternatively, what consequences do they face by accepting a plea? Of course, the metric will change with more serious charges. But in most misdemeanor DWI cases, these main considerations can provide a helpful arithmetic to guide clients toward the best decision for them.

V.

TRIAL “Either we win, or everyone loses.” – Douglas Huff

Texas Criminal Defense Lawyers Association

10th Annual Lone Star DWI January 20, 2023 Hilton Austin Airport Austin, Texas

Topic: The Latest on SFST’s from NHTSA Speaker:

Lance A. Platt, Ph.D. Platt and Associates, Impaired Driving Consulting 4343 Carter Creek Parkway, Ste. 120 Bryan, TX 77802 979.846.3950 phone lance@impaireddrivingexpert.com email www.impaireddrivingexpert.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

12/21/2022

THE LATEST ON SFST’S FROM NHTSA Lance A. Platt, Ph.D. Platt and Associates Impaired Driving Consulting Texas Criminal Defense Lawyers Association 10th Annual Lone Star DWI January 20, 2023 Austin, Texas

WHAT’S NEW AT NHTSA? • 2023 NHTSA manual release (SFST,DRE,ARIDE) • Robustness study retraction (March 27, 2018) • Do slight variations matter in NHTSA standardized testing?

• SFSTs and drugs other than alcohol • SFSTs and intoxication • Correct and Incorrect arrest decision percentages

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NEW NHTSA MANUAL’S • A new version of the NHTSA SFST manual (DRE/ARIDE) is being field tested to be released in February of 2023 (maybe) • What can they change?

• Crash statistics • Arrest numbers • Case Law • Administration of the SFSTs were standardized in previous SFST studies (1977) • Percentages are based upon that data

STANDARDIZED TESTING • NHTSA 2018 SFST Student Manual • Session 8 page 17 of 95 • • • • •

It is necessary to emphasize this validation applies only when: The tests are administered in the prescribed, standardized manner The standardized clues are used to assess the suspect’s performance The standardized criteria are employed to interpret that performance If any one of the SFST elements is changed, the validity may be (is compromised from 1984 to 2013) compromised (2015 and 2018)

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WHAT IS A SLIGHT VARIATION? • Slight – Something that is very small in degree or quantity • Variation – Is a change or slight difference in a level, amount, or quantity • Do slight variations matter in NHTSA standardized testing?

• A standardized test is administered and scored in a consistent, or “standard” manner and interpretations are consistent and are administered and scored in a predetermined standard manner

SLIGHT VARIATION V HGN (CASE LAW) • Maupin v State (2010) – The court held that variance was comparable to the leeway the courts have previously afforded officers to reflect the fact that this is a field test (head movement) • Leverett v State (2007) – Small variations in the test did not render it inadmissible, the Court pointed out that small variations in the administration of the test do not render the HGN test inadmissible or unreliable but may affect the weight given to the testimony • After 2007 Robustness of HGN study release

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THE ROBUSTNESS OF THE HORIZONTAL GAZE NYSTAGMUS TEST • Southern California Research Institute • U.S. Department of Transportation • National Highway Traffic Safety Administration • Contract No. DTNH22-98-D-55079 • September 2007 release • Removed in 2018 from NHTSA impaired driving curriculums • Still used by prosecutors • Still on TDCAA website as a resource

WHAT IS NORMAL EYE MOVEMENT? • Virtually all normal individuals can make smooth pursuit eye movements to track targets up to 30 deg/sec • If a target moves too quickly for the smooth pursuit system to track accurately, brief catch up saccades will be interposed during the eye movement and the eyes will be seen to jerk as they follow the target • Maupin • Leverett • Taylor • Compton • Many normal, sober individuals will show one or two beats of small amplitude nystagmus when the eyes are moved to extreme lateral gaze positions • See above Nystagmus Testing in Intoxicated Individuals (NHTSA publication 2003)

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CONCLUSION OF NHTSA ROBUSTNESS STUDY • “In conclusion, HGN as used by law enforcement is a robust procedure. The study findings provide no basis for concluding that the validity of HGN is compromised by minor procedural variations.”

NHTSA final report p. 35 • It is concluded that HGN is a robust phenomenon.

RESULTS FROM AAFS PAPER (2013) • According to the study data tables the HGN test was administered 285 times on 151 of those tests 4 or more HGN test clues were observed below .08 • NHTSA SFST 4 clues = .08 • Robustness Study 4 clues = .06 • 52.2% of the time the clues did not comply with the NHTSA standards taught to law enforcement nationwide • The NHTSA HGN test is compromised by minor procedural variations

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ROBUSTNESS OF THE HGN TEST RESEARCH STUDY • DRE Technical Advisory Panel Mid-Year Meeting • March 27, 2018 in Denver, Colorado (11 years later) • Report on vote conducted in January to remove the references to the HGN Robustness Study paper from the SFST, ARIDE and DRE curriculum • The proposal resulted from concern that part of the study was conducted in a manner that substantially deviated from the normal protocol for administering and interpreting HGN • This concern was reviewed and confirmed by Dr. Karl Citek and Dr. Jack Richman

ROBUSTNESS OF THE HGN TEST RESEARCH STUDY • Due to this issue, it was recommended that references to the study be removed from the three curricula, and that TAP issue a formal retraction of the study • An electronic vote was taken of the TAP members pertaining only to removing the references from the 2028 SFST, ARIDE and DRE curricula • The vote was 18 in favor and one non-vote • As a result of the vote, the Curriculum Working Group removed all references to the study in the 2018 SFST, ARIDE and DRE curriculum

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DUANE’S OPHTHALMOLOGY • Chapter 11 Nystagmus and Saccadic Intrusions and Oscillations • Horizontal Gaze Evoked Nystagmus • Unfortunately, that alcohol can produce horizontal gaze evoked nystagmus has led to a “roadside sobriety” test conducted by law enforcement officers.

• Nystagmus as an indicator of alcohol intoxication is fraught with extraordinary pitfalls, many ordinary individuals have physiologic end-point nystagmus

DUANE’S OPHTHALMOLOGY • Small doses of tranquilizers that wouldn’t interfere with driving ability can also produce nystagmus • Medication • It is unreasonable to have cursorily trained law officers using the test, no matter how intelligent, perceptive, and well meaning they might be

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WALK AND TURN • Recent field validation studies have indicated varying environmental conditions have not affected a subject’s ability to perform this test • Standardizing this test for every type of road condition is unrealistic • The environment and its effects on the WAT (mental and physical) was NOT a research question • The varying environmental conditions do NOT exclude the officer from giving the correct instructions and demonstrating the test correctly • Officers should consider ALL factors when conducting SFSTs • NHTSA SFST 2018 student manual session 8 page 62 of 95

WALK AND TURN TEST CLUES (SLIGHT VARIATIONS) • Slightly stepping out of heel to toe position in the W&T instructional position • Slightly starting too soon (1 or 2 steps) • Slightly stepping off an imaginary line • Arms 6.1 inches away from sides (instead of 6.0 inches) • Misses heel to toe by 1 inch (instead of ½ inch) • Turns by taking 2 or 4 steps instead of 3 (a series) steps • Takes 8 or 10 steps instead of 9

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ONE LEG STAND • OLS requires a reasonably dry, hard, level, and non slippery surface.

Subject’s safety should be considered at all times • Standardizing this test for every type of road condition is unrealistic • However, recent field validation studies have indicated that varying environmental conditions have not affected a subject’s ability to perform this test • The environment and its effects on the OLS (mental and physical) was NOT a research question • The varying environmental conditions do NOT exclude the officer from giving the correct instructions and demonstrating the test correctly

ONE LEG STAND TEST CLUES (SLIGHT VARIATIONS) • Slight sway • Arms 6.1 inches away from sides (instead of 6.0 inches) • Completes test in 29 seconds, 28 seconds, 27 seconds 9instead of 30 seconds) • Puts foot down once, twice …

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OTHER DRUGS AND SFSTS • There are three SFSTs, namely Horizontal Gaze Nystagmus, Walk and Turn, and One Leg Stand. Based on a series of controlled laboratory studies, scientifically validated clues of alcohol impairment have been identified for each of these three tests. They are the only Standardized Field Sobriety Tests for which validated clues have been identified.

• DWI Detection and Standardized Field Sobriety Testing student manual Revised 02/2018

WHAT DOES NHTSA SAY? • 2017. Marijuana Impaired Driving A Report To Congress • NHTSA DOT HS 182 440

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NHTSA • The report describes the absorption, distribution and elimination of Delta 9 THC in the body • It contrasts this process with absorption, distribution and elimination of alcohol in the body, as they are a very different process • The poor correlation of THC concentrations in the blood with impairment is discussed along with the implication that setting a per se level is not meaningful

NHTSA • The pharmacokinetics (absorption, distribution and elimination) and pharmacodynamics (how a drug effects the physiological process and behaviors) for alcohol and marijuana differ • ETOH is a relatively simple drug whose behavioral and cognitive effects are well documented • ETOH is a CNS Depressant • Marijuana is not • Few studies have examined the relationship between THC blood levels and degrees of impairment

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NHTSA • Currently, there is no impairment standard for drivers under the influence of marijuana • Delta 9 THC does not correlate well with impairment • By an hour after smoking peak THC levels have declined 80-90% • Available research does not support the development of such a psychomotor, behavioral or cognitive test that would be practical and feasible for law enforcement use at this time

CAN SFSTS OR THE DRE PROTOCOL BE USED TO MEASURE IMPAIRMENT BY MARIJUANA? • The conclusion of the study was that “there is no evidence from the data collected, particularly from the subjects assessed through the DRE exam, that any objective threshold exists that establish impairment base on THC concentrations in suspects placed under arrest for impaired driving (Compton page 29 emphasis added)

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SFSTS AND INTOXICATION • Do the NHTSA SFSTs predict/quantify alcohol intoxication?

• Do the NHTSA SFSTs predict/quantify drug intoxication?

SFSTS AND INTOXICATION • Do the NHTSA SFSTs predict alcohol intoxication?

• The original research question in the 1977 study was can the officer’s using the SFSTs predict a BAC above or below .10 • 101 total arrests decisions 47 were below .10 • 1977 study overall 76% arrest release decision rate above or below .10 • Error rate of 47%

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SFSTS AND INTOXICATION • Do the NHTSA SFSTs predict drug (other than alcohol) intoxication?

• No, based on all available research

SFSTS AND INTOXICATION • Effects from any given BAC’s are predictable • Exceptions • Underlying brain disease • Other CNS Active Drugs Present • Chronic Active Alcoholic • Effects from any given drug dose or drug level depend on many clinical variables • Medications are taken every day • Medications treat medical conditions

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WHAT IS THE CORRECT ARREST/RELEASE DECISION BASED ON THE SFSTS? • 1977 – 76% at .10 (47% error rate) • Colorado 86% correct arrest/release decision based on three SFSTs (.08) • Florida 95% correct arrest decision based on three SFSTs (.08) • San Diego 91% correct arrest decision using three SFSTs (.08) • Is this true and accurate?

• 1977 Laboratory only • No three phases of detection prior to testing

WHAT IS THE CORRECT ARREST/RELEASE DECISION BASED ON THE SFSTS? • Colorado – Three phases of detection prior to arrest decision (.05/.08) • Florida – Three phases of detection prior to arrest (male data only) • San Diego – Three phases of detection prior to arrest (no direct observation and PBTs) • Totality of the circumstances?

• Arrests were not made based solely on the SFSTS

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ALCOHOL AND DRUG PREVALENCE AMONG SERIOUSLY OR FATALLY INJURED ROAD USERS • DOT HS 813 399 • December 2022 • NHTSA sponsoring agency • The study examined drug prevalence among a sample of 7,279 seriously injured roadway users • 55.8% of the injured or killed roadway users tested positive for one or more drugs (including alcohol) on this study’s toxicological panel • The most prevalent drug category detected was Cannabinoids (active THC) with 25.1% positive • Alcohol was 23.1% positive

ALCOHOL AND DRUG PREVALENCE AMONG SERIOUSLY OR FATALLY INJURED ROAD USERS • Stimulants 10.8% • Opioids 9.3% • Overall 19.9% of the roadway users tested positive for two or more of the categories of drugs • Study included over the counter drugs including antihistamines and cough suppressants • More research is needed on the cannabis and driving topic to better understand how this drug could be affecting traffic safety given the prevalence levels observed here • No inferences can be made regarding the applicability of the study findings beyond the populations served by these trauma centers and ME.

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ALCOHOL AND DRUG PREVALENCE AMONG SERIOUSLY OR FATALLY INJURED ROAD USERS • In theory, the additional preservative found in the lavender-top tube could have affected the detection of drugs • Study staff closely monitored the patterns of results after the change in procedures and concluded the impact on study results was likely minimal if there was any impact at all • More laboratory research is needed to determine the degree to which such procedures could affect the toxicological findings • Without a matched control group or other basis for comparison to similar, non-injured, non-crash involved roadway users, it is not possible to determine if any of the drugs studied here are associated with an increased risk of being seriously injured or killed in a motor vehicle crash • This study results should not be used to imply impairment or increased risk associated with drug presence

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ALCOHOL AND DRUG PREVALENCE AMONG SERIOUSLY OR FATALLY INJURED ROAD USERS • 73.9 % of all road user cases came from Maryland • The study operated under the assumption that on site research staff at the trauma centers and Mes checked the criteria for inclusion for each participant • This study had to change its specimen collection and processing approach at the trauma centers during the public health emergency in order to provide viable specimens to NIH for COVID-19 antibody testing • The change first involved collecting specimens in a lavender-top tube and then splitting the sample into a gray-top for toxicological testing with the remainder in the lavender top processed for plasma

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Texas Criminal Defense Lawyers Association

10th Annual Lone Star DWI January 20, 2023 Hilton Austin Airport Austin, Texas

Topic: Suppressions Issues in DWI Cases Speaker:

Amber Vazquez Vazquez Law Firm, PLLC 608 W 12th St Austin, TX 78701 512.220.8507 phone 215.480.0670 fax amver@criminallawaustin.com email www.criminallawaustin.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

SUPPRESSIONS ISSUES IN DWI CASES

A. Observations of non-law enforcement witnesses

I. INTRODUCTION

Often, law enforcement will stop your client based entirely on the things they observe (erratic driving, traffic offenses, etc.).

However, just as often, the officer will be relying on information from a 911 caller to make a traffic stop. In these situation, you should carefully review the information provided by the citizen caller or informant.

Strong motion practice in DWI cases is essential to providing an effective defense for your client. From the very first moment law enforcement becomes aware of your client – or her vehicle – through the very end of the DWI investigation, there are a myriad of issues that could come up, giving you the ammunition you need to whittle away at the State’s evidence. This paper outlines just a few of the issues that frequently occur in DWI cases that you should be aware of when preparing your defense.

II. BASIS FOR STOP AND ARREST “An officer is permitted to make a temporary investigative detention of a defendant if the officer has a reasonable suspicion that some activity out of the ordinary is or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication that the activity is related to crime.” Stone v.

State, 703 S.W.2d 652, 655 (Tex. Crim. App. 1986). “The reasonable suspicion required does not rise to the level of probable cause such as is required to justify a warrantless arrest or search.” Id. The amount of reasonable suspicion necessary to justify a stop is dependent on (1) the content of the information passed along to the officer and (2) its reliability and must take into account “the totality of the circumstances.” Navarette v. California, 572 U.S. 393, 397 (2014).

Reasonable suspicion must be “particularized and objective.” Id. at 396. In other words, more than a hunch. Id. at 397.

Information From 911 Call Sufficient In Navarette, a California Highway Patrol officer received the following information from 911 dispatch: “Showing southbound Highway 1 at mile marker 88, Silver Ford 150 pickup. Plate of 8-David-94925. Ran the reporting party off the roadway and was last seen approximately five [minutes] ago.”

Navarette, 572 U.S. at 395. The CHP officer drove to the area, located a truck that matched this description, and initiated a traffic stop.

Id. The Supreme Court held that the 911 caller was sufficiently reliable to justify the officer’s reliance on the information because the caller’s report indicated she had been an eyewitness to the alleged dangerous driving and was able to describe the vehicle. Id. at 399. Moreover, officers were able to confirm the caller’s information was accurate when they drove to the location and found a vehicle matching the description. Id. at 399-400.

Finally, the Court held that the officers’ knowledge of a reliable report of reckless driving was specific, rather than conclusory, and that this conduct “bears a great resemblance to paradigmatic manifestations of drunk driving.” Id. at 403. Thus, the officers had reasonable suspicion to stop the vehicle.

Information from 911 Call Insufficient In Martinez v. State, a 911 caller reported that a blue Ford pickup truck stopped at an intersection, put two bicycles in the back of his truck, and left the area. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). Given the time of day (nearly 11 pm), this activity was suspicious. Id. at 925.

However, when the officer drove to the location, he saw a green – not a blue – Ford pickup. Id. at 922. The officer followed the truck for four blocks and observed no traffic violations. Id. The officer then initiated a traffic stop. Id. Upon approaching the driver, the officer smelled alcohol and performed a DWI investigation. Id. The Court of Criminal Appeals held that, although the information provided by the 911 caller indicated suspicious activity in the area, the “specific, articulable, corroborated facts known by the officer at the time of the stop were minimal.”

Id. at 925 (emphasis added). The officer did see two bicycles in the bed of the truck after he had already made the traffic stop and approached the vehicle. Id. at 922. However, “reasonable suspicion cannot be obtained retroactively.” Id. at 924. Thus, the officer’s stop of the vehicle was not supported by reasonable suspicion. Id. at 925.

PRACTICE TIP Remember that only facts known to the officer prior to the stop can form the basis of an officer’s reasonable suspicion. Be wary of attempts to justify a stop based on facts not known until after the stop was made.

Identified Citizens Report In Hime v. State, a citizen called police after observing a green Mustang with a white convertible top swerving towards other cars as it passed. Hime v. State, 998 S.W.2d 893, 895

(Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). The citizen provided her name and noted that the Mustang had also stopped at her location.

Id. The 14th Court of Appeals held that this was sufficient basis for the stop, noting that an identified citizen who calls in to report criminal activity is inherently credible and reliable.

Identified Caller Tip In Pospisil v. State, the Texarkana Court of Appeals held that the report of an off-duty firefighter was reliable and credible and was sufficiently corroborated by the officer to justify reasonable suspicion of the stop.

Pospisil v. State, No. 06-08-00101-CR, 2008 WL 4443092 (Tex. App.—Texarkana 2008, no pet.). In that case, the off-duty firefighter called 911 to report a reckless driver. Based on that call, the officer located and stopped the suspect’s vehicle in a short period of time.

The Court found three factors to be dispositive: (1) The report was not anonymous; (2) the caller was a firefighter, making him one of the types of people that are generally trustworthy and reliable; and (3) the officer responded quickly, allowing him to corroborate the vehicle’s description.

Collective Knowledge Known to All Officers Considered Even if the officer who actually conducts the traffic stop may not have sufficient information to justify a stop – the totality of the information known to all officers involved, including the 911 dispatcher, will be taken into consideration when determining whether reasonable suspicion exists. For example, in Derichsweiler v. State, a couple called 911 to report that while they were waiting in a McDonald’s drive-thru, a man drove up beside them and stared and grinned at them for a prolonged period of time.

Derichsweiler v. State, 348 S.W.3d 906, 909 (Tex. Crim. App. 2011). This behavior

frightened the couple. Id. Later, the man left the McDonald’s and drove to the adjoining Wal-Mart parking lot, where the couple saw the man engaging in similar behavior with other vehicles. Id. The 911 dispatcher only relayed to the officer that a suspicious vehicle was circling the parking lot and gave the officer a description of the vehicle. Id. at 910.

The officer then initiated a traffic stop of the vehicle. Id. The Court of Criminal Appeals held that, even if the stopping officer did not have sufficient information to form reasonable suspicion of criminal activity, the totality of the information known to all officers involved, including the 911 dispatcher, was sufficient to justify the stop.

Id. at 914-15.

B. Transportation Code Violations A Transportation Code violation can be an easy way for the State to justify a stop. In those situations, you may be faced with a situation where you and the State dispute whether a traffic violation even occurred.

Section 545.058 – Driving on Improved Shoulder Merely touching the fog line is not the equivalent of driving on the improved shoulder. State v. Cortez, 543 S.W.3d 198 (Tex. Crim. App. 2018).

Section 545.060 – Failure to Maintain a Single Lane In 2016, the Court of Criminal Appeals, in a plurality decision, rejected a long-standing interpretation of TTC 545.060(a) by holding that it creates two separate actionable offenses: (1) failing to remain entirely within a marked lane of traffic so long as it remains practical to do so and (2) changing marked lanes when it is unsafe to do so. Leming v.

State, 493 S.W.3d 552 (Tex. Crim. App. 2016).

However, subsequent cases out of the Court of Criminal Appeals have called the survival of Leming into question. First, in State v.

Bernard, 512 S.W.3d 351 (Tex. Crim. App. 2017) (per curiam), the Court held – in a brief per curiam decision – that the Fourteenth Court of Appeals did not err in holding that there was no reasonable suspicion that the defendant violated TTC 545.060(a) because there was no evidence he was driving in an unsafe manner.

Then, in 2022, in an unpublished opinion, the Court seemingly rejected the Leming Court’s interpretation of TTC 545.060(a) entirely, stating that “any unsafe weaving out of the lane violates the statute but weaving out of the lane without creating a safety risk does not violate the statute…” State v. Hardin, PD-0799-19, 2022 Tex. Crim. App. LEXIS 757 at *10 (November 2, 2022).

PRACTICE TIP If your client committed a Transportation Code violation in view of the officer, the stop will almost certainly be upheld by the courts.

However, always make sure to carefully read the Transportation Code section your client is alleged to have violated.

C. Valid Arrest Warrant If the stop of your client is not supported by reasonable suspicion, all evidence obtained as a result of that stop and subsequent arrest of your client is inadmissible. However, if during the unconstitutional stop, law enforcement discovers a valid arrest warrant, law enforcement will be justified in making the arrest, and all evidence obtained during a search incident to that arrest will be admissible. Such was the case in Utah v.

Strieff, 579 U.S. 232 (2016). In that case, the Supreme Court relied on the attenuation doctrine to hold that intervening circumstances – here, the discovery of a valid, pre-existing, and untainted arrest warrant – was sufficient to “break the causal chain” between the unlawful stop and the fruits of a search incident to the suspect’s arrest. Strieff, 579 U.S. at 239.

III. FRANKS MOTIONS Under the authority of Franks v. Delaware, 483 U.S. 154 (1978), a defendant is entitled to go behind the four corners of the warrant affidavit where he can show that it contains information that was knowingly false and that information goes to the determination of probable cause. A defendant in a Franks hearing is requesting that he be permitted to present evidence beyond the affidavit. Thus, a Franks suppression involves two prongs: (1) proving the affiant knowingly included false information in the affidavit and (2) suppressing the evidence resulting from the affidavit.

IV. SUPPRESSING PORTIONS OF VIDEO AND AUDIO Proper Authentication Texas Rule of Evidence 901 governs the authentication of video evidence. See Leos v.

State, 883 S.W.2d 209 (Tex. Crim. App. 1994) (holding that voice identification is a condition precedent to admissibility of video).

Defendant’s Invocation of Right to Counsel A jury should not be allowed to hear the defendant’s invocation of their right to counsel. Hardie v. State, 807 S.W.2d 319 (Tex. Crim. App. 1991). See also Kalisz v.

State, 32 S.W.3d 718 (Tex. App.—Houston

[14th Dist.] 2000, pet. ref’d) (a video tape showing the defendant invoking his right to counsel and terminating the interview with police after being given his Miranda warnings was inadmissible); Dumas v. State, 812 S.W.2d 611 (Tex. App.—Dallas 1991, pet. ref’d) (simply removing the audio after the officer gave the defendant his Miranda warnings was insufficient because it left the jury with the “inescapable conclusion” that the defendant had invoked his right to remain silent).

But see Griffith v. State, 55 S.W.3d 598 (Tex. Crim. App. 2001), where the defendant invoked his right to counsel in the context of being asked to submit to a breath test. Id. at 600. Instead of answering, the defendant asked if he could consult with an attorney before making the decision. Id. After several inquiries, the defendant maintained that he was not refusing, but would not make the decision until he could speak with his lawyer.

Id. Officers treated this as a refusal. Id. The Court held that, although the defendant’s invocation of his right to counsel was independently irrelevant, it was “cloaked around his refusal to take the blood-alcohol test, which has statutorily-mandated probative value” and was admissible. Id. at 601-02.

Extraneous Offenses Extraneous offenses mentioned by the defendant or law enforcement are inadmissible. TEX. R. EVID. 404. However, if you fail to object at the time the evidence is offered, the error is waived. Johnson v. State, 747 S.W.2d 45 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d).

PRACTICE TIP

VI. FIELD SOBRIEBTY TESTS

Apart from constitutional issues, there are a myriad of evidentiary objections that can be made in any video or audio recording. Filing a written motion that includes time stamps and specific objections will ensure that your issues are ruled on by the trial court and properly preserved in the event of an appeal.

Remember – a motion in limine will ensure evidence is not admitted until the court has a chance to rule on your objections but is not sufficient to preserve the issue for appeal. For that, you need a written or oral objection that has been ruled on by the court. Have a redacted copy of the video prepared when you make your objection and enter the redacted video under a Bill of Exceptions if your objection is overruled.

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” TEX. R. EVID. 702. Expert testimony must be both relevant and reliable to be admissible. Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim.

App. 1992). To be reliable, (1) the underlying scientific theory must be valid, (2) the technique applying the theory must be valid, and (3) the technique must have been properly applied on the occasion in question.

Id.

Admissible Evidence

The Horizontal Gaze Nystagmus test – or HGN test – requires expert testimony and must satisfy the three Kelly prongs. Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994). In Emerson, the Court of Criminal Appeals held that the theory and technique of administering HGN tests are valid, satisfying the first two prongs. Id. at 769-70. Thus, in any case where the State wants to introduce HGN testimony, it has the burden to prove that the technique was applied correctly by the officer during the incident in question. Id. at 770.

The following have been held by the courts to be admissible evidence: a. Refusal to perform field sobriety tests.

Barraza v. State, 733 S.W.2d 379 (Tex. App. Corpus Christi 1987), aff’d 790 S.W.2d 654 (Tex. Crim. App. 1990). b. Video, even if accompanying audio is suppressed. Fierro v. State, 969 S.W.2d 51 (Tex. App.—Austin 1998, no pet.). c. Refusal to submit to the intoxilyzer test with a request to consult with an attorney. Griffith v. State, 55 S.W.3d 598 (Tex. Crim. App. 2001). d. Video, even when there is no audio recording. Atkins v. State, No. 14-0600545-CR (Tex. Crim. App.—14th [Dist.] 2007).

HGN Tests

Although law enforcement offices will be allowed to testify regarding their administration of the HGN test (assuming they performed it correctly), they are not permitted to correlate the defendant’s performance on the test with a particular BAC. Smith v. State, 65 S.W.3d 332 (Tex. App.—Waco 2001, no pet.); Webster v. State, 26 S.W.3d 17 (Tex. App.—Waco 2000, pet. ref’d).

Vertical Gaze Nystagmus Inadmissible Unlike HGN, Vertical Gaze Nystagmus (VGN) has not been recognized by the Court of Criminal Appeals to be admissible. Thus, without first establishing all three Kelly prongs of reliability, VGN evidence is inadmissible. See Stovall v. State, 140 S.W.3d 712 (Tex. App.—Tyler 2004, no pet.); Quinney v. State, 99 S.W.3d 853 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

VII. BREATH TESTS The predicate for the admissibility of a breath test is: (1) the use of properly compounded chemicals, (2) the existence of periodic supervision of the machine and operation by one who understands the scientific theory of the machine, and (3) proof of the result of the test by a witness or witness qualified to translate and interpret such result so as to eliminate hearsay. Harrell v. State, 725 S.W.2d 208, 209 (Tex. Crim. App. 1986).

VIII. BLOOD TESTS Blood Draws A warrantless search of a person for the purpose of gathering evidence in a criminal investigation can be justified only if it falls within a recognized exception to the warrant requirement. Missouri v. McNeely, 569 U.S. 141, 148 (2013). This principle applies to compulsory blood-specimen collection during a DWI investigation. Id. at 149. The natural dissipation of alcohol does not constitute a per se exigency. Id. at 156.

Exigent circumstances must be determined by a careful case-by-case assessment of exigency. Id; see also State v. Villarreal, 475 S.W.3d 784 (Tex. Crim. App. 2014) (holding that a nonconsensual search of a DWI suspect’s blood pursuant to the impliedconsent provisions in the Transportation

Code in the absence of a warrant violates the Fourth Amendment).

Probable Cause for Blood Test In Martinez v. State, 570 S.W.3d 278 (Tex. Crim. App. 2019), the Court of Criminal Appeals held that the chemical testing of blood constitutes a separate and discrete invasion of privacy for Fourth Amendment purposes from the physical extraction of blood. Id. at 290. In 2020, the Court of Criminal Appeals clarified that in a DWI case where the State relies on the warrant to draw blood to also conduct testing of the blood sample for the presence of alcohol does not violate the Fourth Amendment. Crider v.

State, 607 S.W.3d 305, 307.

Justice Newell, in a concurring opinion, wrote, “Because I can envision scenarios in which the probable cause to seize an item would not necessarily provide probable cause to conduct a second search of that item, I believe it is better to say that the probablecause determination that justified the seizure of blood, at least in this case, necessarily constituted a determination of probable cause to also search it.” Id. at 310 (Newell, J., concurring).

So where does that leave us? Between Martinez and Crider, there are two scenarios where a motion to suppress blood results should be filed.

Scenario One: Martinez Facts In Martinez, the defendant had his blood drawn at a hospital after a vehicle accident.

Martinez, 570 S.W.3d at 282. Afterwards, the State obtained a Grand Jury Subpoena for the blood samples, and the hospital released four vials of blood to the Texas Department of Public Safety. Id. The Court held that testing the blood samples in this manner – without a

warrant – violated the defendant’s Fourth Amendment right and that the lab results were inadmissible. Id. at 292.

Scenario Two: Warrant Affidavit Does Not Support Probable Cause of the Specific Test Judge Newell’s concurrence in Crider leaves open a second scenario where a motion to suppress should be filed: when the affidavit for arrest supports only probably cause for alcohol intoxication and the lab test shows toxicology results (or vice versa).

IX. GIVE IT TO THE JURY No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

TEX. CODE CRIM. PROC. art. 38.23.

If there is a factual dispute regarding the facts relevant to your suppression issue, then you can request a jury charge instruction under TEX. CODE CRIM. PROC. art. 38.23 giving the jury the power to suppress the evidence.

There must be a genuine fact issue; if both the defense and the State agree on the facts, the defendant is not entitled to a 38.23 instruction. Doyle v. State, No. 01-06-01103CR, 2008 WL 597450 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).

X. CONCLUSION These are just a sample of the most common suppression issues that could arise in your DWI case. Understanding – and aggressively attacking – the constitutional and evidentiary issues before trial is the best way to achieve the best resolution possible for your client.

Texas Criminal Defense Lawyers Association

10th Annual Lone Star DWI January 20, 2023 Hilton Austin Airport Austin, Texas

Topic: Case Law Update January 2023

Speaker:

Mark Lassiter Lassiter Criminal Defense 3300 Oak Lawn Avenue, Ste. 700 Dallas, TX 75219 214.845.7007 phone 214.845.7006 fax mark@lomtl.com email www.lomtl.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CASE LAW UPDATE JANUARY 2023 By: Mark Lassiter Lassiter Criminal Defense VOLUNTARY ENCOUNTER The State of Tex., Appellant v. Samuel Martinez, Appellee, No. 03-19-00133-CR, 2022 WL 17684034, at *7–8 (Tex. App.—Austin Dec. 15, 2022, no pet. h.)

Det. Kimbrell arrived at Martinez's residence around 5:30 p.m. and parked his squad car behind Martinez's truck, blocking it in; a second vehicle in the driveway was unobstructed.

Det. Kimbrell did not activate his overhead lights or siren. As he approached Martinez's front door, Det. Kimbrell unholstered his pistol, which he held by his side until Martinez came to the door. Over a period of approximately four minutes, Det. Kimbrell—standing to the side of the door—knocked six times, announced himself as a police officer, and called for Martinez to open the door. Det. Kimbrell added that Martinez needed to be seen by medics or EMS to make sure that he was okay. After approximately four-and-a-half minutes, Martinez answered the door holding a cloth to his ear and took a step onto the porch. Det. Kimbrell gestured to the porch and stated, “Come step outside.” The trial court found that there was no evidence that Martinez saw Det. Kimbrell's pistol, which he holstered after seeing that Martinez was unarmed. Det. Kimbrell testified that he did not display the gun to Martinez. Martinez subsequently told Det. Kimbrell that he had not come to the door sooner because he had been in the restroom. Under the totality of the circumstances, Det. Kimbrell's words and actions were not such that a reasonable individual would have been coerced into complying or felt that Det. Kimbrell's requests could not have been ignored, avoided, or declined. ● Basically, an officer can block your car in, command you to come out of your home, with a gun, under false pretenses and it’s a voluntary encounter State v. Lamb, No. 03-20-00552-CR, 2022 WL 869800, at *3 (Tex. App.—Austin Mar. 24, 2022, no pet.)

The State argues that a detention did not occur when the officers approached Lamb, contending that her car “was not ‘boxed-in’ and unable to leave” and characterizing “the maneuver” that Lamb would have needed to make to leave as “at most, an inconvenience.” The State also argues that the officers did not seize her by walking up to her parked car, that Officer Duckworth's “simple request” for Lamb to show her hands “was not an exertion of government authority sufficient to suggest a seizure,” and that no other common circumstances existed to support a finding that a detention occurred.

The video recordings show that the officers were in uniform; they parked the patrol car close to and directly facing the front of Lamb's car, which was parked parallel to the curb; and although it is not entirely clear from the recordings, Officer Morenz's service weapon appears to be visible. Further, although Officer Morenz testified that she “truly did not have any other place to go” and that it was “not practical” “to try to drive behind [Lamb's] vehicle,” the recordings show that the officers could have parked in a different location in the parking lot, including on the other side of the driveway from where Lamb's car was parked. The video recording from Officer Duckworth's body camera also shows the patrol car's headlights and overhead lights shining on Lamb's car, and the officers shining their flashlights on Lamb as they approached. ● Courts of appeal will typically side with the judge determining if it was an encounter or not. These same facts if decided the other way would likely have been held to be an encounter.

TIMELINE FOR STATE APPEALS State v. Bennett, No. 01-22-00868-CR, 2022 WL 17490991, at *1 (Tex. App.—Houston [1st Dist.] Dec. 8, 2022, no pet. h.)

Where the appellant is the State, the notice of appeal must also comply with the requirements of Texas Code of Criminal Procedure article 44.01, which provides that the State may appeal certain adverse trial court rulings, including a trial court order “grant[ing] a motion to suppress evidence.” See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5); Tex. R. App. P. 25.2(a). However, the State is required to file its notice of appeal from such an order within twenty days of the date the order is entered by the trial court. See Tex. Code Crim. Proc. Ann. art. 44.01(d); see also Tex. R. App. P. 26.2(b). Absent a timely filed notice of appeal, this Court cannot exercise jurisdiction over an appeal. See Tex. R. App. P. 26.2(b); Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012); Olivo, 918 S.W.2d at 522; Lair v. State, 321 S.W.3d 158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). However, the time for filing a notice of appeal can be extended if, within fifteen days of the deadline for filing the notice of appeal, a party files a notice of appeal in the trial court and a motion for extension of time that complies with Texas Rule of Appellate Procedure 10.5(b) in the appellate court. See Tex. R. App. P. 10.5(b). ● If the State wants to appeal your pretrial motion win, it has 20 days, and possibly up to 35 if it files the notice with a motion to extend

SPEEDY TRIAL Huynh v. State, No. 05-21-00991-CR, 2022 WL 17261155, at *3 (Tex. App.—Dallas Nov. 29, 2022, no pet. h.)

To determine whether the right to a speedy trial has been denied to an accused, a reviewing court balances factors described in Barker v. Wingo. See Hopper v. State, 520 S.W.3d 915, 924 (Tex. Crim. App. 2017). These Barker factors include the: (1) length of delay, (2) reasons for the delay, (3) defendant's assertion of his speedy trial right, 4 and (4) prejudice, if any, suffered by the defendant due to the delay. Barker, 407 U.S. at 530.

All four of these factors are related, and no factor alone is dispositive.

Although appellant was not taken into custody on the night of the alleged offense, he was effectively arrested for DWI at that time because the officer read him the DIC-24 statutory warnings.

When the full Barker analysis is triggered, the State has the burden to justify the delay.

The defendant, in turn, has the burden to prove his diligent assertion of his right to a speedy trial and to show prejudice. Id. The defendant's burden on the latter two factors varies inversely with the State's culpability for the delay; the greater the bad faith or official negligence on the part of the State, the less a defendant must show assertion of the right or prejudice.

The State blamed the delay on restrictions in court proceedings during the COVID-19 pandemic. But even in a pandemic, the Constitution cannot be put away and forgotten. Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020).

As Justice Gorsuch noted in his concurrence in the Roman Catholic Diocese case, even if the Constitution has taken a holiday during the pandemic, it cannot become a sabbatical. Id. at 70 (Gorsuch, J., concurring). Thus, a state of disaster alone cannot indefinitely pretermit the speedy trial right, and given the facts in this case, the State is not excused for the entire delay from the initial trial setting to the plea hearing. See Ex parte Sheffield, 611 S.W.3d 630, 635 (Tex. App.—Amarillo 2020, pet. granted). ● Claiming COVID is no longer going to work for the State Black v. State, No. 02-21-00057-CR, 2022 WL 3464563, at *12–13 (Tex. App.—Fort Worth Aug. 18, 2022, no pet.)

Although the length of the delay and the reason for the delay weigh slightly against the State, and although Black filed repeated assertions of her right to a speedy trial, Black's

assertions lacked force, she sought dismissal of her case rather than a trial, the period of delay was not excessively long or deliberately caused, and Black did not suffer serious prejudice beyond that which she would have ordinarily experienced from a second DWI charge. See, e.g., Cantu, 253 S.W.3d at 286–87 (holding no speedy trial violation when police department's negligence caused 16-month delay in charging DWI, trial court doubted defendant's alleged assertions of the right via counsel's calls to the district attorney's office, defendant moved for dismissal rather than trial, and defendant's anxiety did not rise to the level of “substantial” prejudice); Ussery, 596 S.W.3d at 291 (holding no speedy trial violation when delay extended more than three years and defendant asserted his rights multiple times, but the assertions were “undermined” by other factors, the State did not deliberately delay, defendant filed dismissal motion, and there was no serious prejudice). The evidence in this case thus supports the trial judge's ruling; Black was not denied her Sixth Amendment right to a speedy trial. See U.S. Const. amends. VI, XIV. We overrule Black's sole issue. ● It doesn’t matter if the State causes the delay, has no justification for it, and the defense demanded a speedy trial 4 times. The Court apparently gets to assume the defendant really didn’t want a trial and the Supreme Court holding the State has the BURDEN to show there is not prejudice doesn’t matter ● The Huynh case cited above is directly opposite of this opinion. Use that case.

State v. Elizondo, No. 04-21-00489-CR, 2022 WL 3047103, at *4 (Tex. App.—San Antonio Aug. 3, 2022, no pet.)

Because Elizondo has not made the threshold showing that the seven-month-and-oneday delay from his arrest until dismissal was “presumptively prejudicial,” the trial court erred by dismissing the DWI charge against him. ● 7 months is not long enough to get a speedy trial dismissal ● Kudo’s to the attorney that got the judge to grant that motion Fields v. State, No. 09-21-00046-CR, 2022 WL 2231194, at *4 (Tex. App.—Beaumont June 22, 2022, no pet.)

We have determined that all four Barker factors favor Appellant, we therefore need not consider to what degree they favor Appellant. We likewise need not consider whether factors hypothetically favoring the State outweigh any factors favoring Appellant. ● This is important because it stands for the proposition that the “balancing test” is not to what degree things weigh in favor of one side or the other. For example,

Courts are not to look at the “prejudice” factor, if it is neutral as overpowering the other factors if they are in favor of the Defendant State v. Conatser, 645 S.W.3d 925, 931 (Tex. App.—Dallas 2022, no pet.)

We have determined that the length and reasons for the delay weigh slightly against the State. Conatser's failure to assert his right to a speedy trial weighs against him and in favor of the State. And finally, Conatser's failure to identify any significant prejudice incurred by delay weighs heavily against him. We conclude that Conatser has failed to carry his burden to establish both that he adequately asserted his right and that the State's delay caused him prejudice. ● Don’t just file a motion to dismiss, make a demand for speedy trial first FAILURE TO MAINTAIN A SINGLE LANE State v. Hardin, No. PD-0799-19, 2022 WL 16635303, at *6 (Tex. Crim. App. Nov. 2, 2022), reh'g denied (Dec. 7, 2022) Reading the two statutory subsections as interconnected and dependent on each other is the only way to give effect to not only the statute at issue but also the statute's place within the legislative scheme. Consequently, we hold that a person only violates Transportation Code § 545.060(a) if the person fails to maintain a single marked lane of traffic in an unsafe manner.

In this case, we are only concerned with whether there was reasonable suspicion for Officer Alfaro to stop Appellee for violating § 545.060(a). The trial court found that Appellee's tires crossed over the striped lines marking the center lane without Appellee signaling a lane change. This finding is supported by the record, including a video of Appellee's driving before the stop, which shows the right rear wheel of Appellee's U-Haul driving on and slightly over the lane divider for a few seconds. But the trial court also found that there were no other vehicles in the vicinity at the time or any other circumstances that would suggest that Appellee's movement was unsafe. This finding is also supported by the record, and the State does not challenge it on appeal. Given these findings, we agree with the court of appeals that the trial court did not err in granting Appellee's motion to suppress because without any evidence suggesting that this movement was unsafe, Officer Alfaro lacked reasonable suspicion to stop her vehicle. At most, the record shows that Appellee drove “as nearly as practical” entirely within a single lane, which is not a traffic violation.

● Failing to maintain a single lane has two parts: driving as nearly as practical inside the lane AND cannot move outside the lane unless the movement can be made safely. The State must show both for reasonable suspicion to detain.

EXPUNCTIONS Ex parte N.R.L., 654 S.W.3d 605, 613 (Tex. App.—Dallas 2022, no pet. h.)

An offense resulting in acquittal cannot constitute part of a criminal episode, we conclude that the Department failed to establish all vital facts in support of the Article 55.01(c) exception. ● You can expunge an acquittal on DWI 2nd and so on offenses SUFFICIENCY OF EVIDENCE WITH NO EXPERT Timiney v. State, No. 05-21-00684-CR, 2022 WL 5113162, at *3 (Tex. App.—Dallas Oct. 5, 2022, no pet. h.)

Appellant admitted she had taken several medications, including Ambien at 4 a.m. on the day of the accident. Her toxicology report indicated she had ingested several drugs. To the extent she contends the evidence is insufficient because the State failed to call an expert to explain the toxicology report, appellant ignores the well-established case law that the State need not prove the type of intoxicant. See Gray, 152 S.W.3d at 132; see also Lacy v. State, No. 12-17-00379-CR, 2019 WL 210838, at *2–3 (Tex. App.—Tyler Jan. 16, 2019, no pet.) (mem. op., not designated for publication) (rejecting appellant's legal sufficiency challenge when blood draw was negative for eight intoxicating substances but other circumstantial evidence, including officer's testimony, supported DWI conviction). While an expert explaining the report certainly would have strengthened the State's evidence of intoxication, its failure to do so does not weaken the evidence presented to the jury. ● Apparently, the State does not need an expert to explain how Ambien or other drugs make a person not normal mentally or physically. They can rely on video and testimonial evidence.

CONSENT FOR TESTING Walker v. State, No. 02-21-00138-CR, 2022 WL 3097285, at *2 (Tex. App.—Fort Worth Aug. 4, 2022, no pet.)

The validity of an alleged consent is a question of fact, and the State must prove voluntary consent by clear and convincing evidence. Id. at 333. A driver's consent to a breath or blood test must be free and voluntary—i.e., free from physical or psychological pressure from law enforcement. Id. Critical to a consent analysis is that the factfinder must consider the totality of the circumstances to determine whether consent was given voluntarily.

Meekins, 340 S.W.3d at 459–60, 460 n.26 (stating that trial courts may consider “numerous factors” to determine the totality of the circumstances, including: physical mistreatment, use of violence, threats, threats of violence, promises or inducements, deception or trickery, and the physical and mental condition and capacity of the defendant). “Accordingly, it follows that, because the [factfinder] must consider all of the evidence presented, no one statement or action should automatically amount to coercion such that consent is involuntary—it must be considered in the totality.” Fienen, 390 S.W.3d at 333. ● If the officer is trying to get clarification of a decision, saying no at first then changing your mind is not un-consensual COLLECTIVE KNOWLEDGE OF OFFICERS State v. Hartley, No. 03-21-00230-CR, 2022 WL 2251659, at *5 (Tex. App.—Austin June 23, 2022, no pet.)

The detaining officer need not be personally aware of every fact that objectively supports a reasonable suspicion to detain; rather, ‘the cumulative information known to the cooperating officers at the time of the stop is to be considered in determining whether reasonable suspicion exists.’ ” Derichsweiler, 348 S.W.3d at 914 (quoting Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987)). Stated another way, “under this ‘collective knowledge’ doctrine, when several officers are cooperating, their cumulative information may be considered in assessing reasonable suspicion or probable cause.”

“A 911 police dispatcher is ordinarily regarded as a ‘cooperating officer’ for purposes of” determining whether the collective-knowledge doctrine applies.

“We hold that evidence of communication between officers is not always a necessary requirement to apply the collective knowledge doctrine. Under the facts of this case, the sum of the information known to the cooperating officers—their cumulative information— should be considered in assessing probable cause.”

● The attorney should have objected using the confrontation clause. “[A]lthough the Sixth Amendment right to confront is a trial right, it also applies to suppression hearings.” United States v. Daniels, 930 F.3d 393, 405 (5th Cir. 2019).

RESTITUTION Gutierrez v. State, No. 04-21-00248-CR, 2022 WL 2135540, at *6 (Tex. App.—San Antonio June 15, 2022, no pet.) “[T]he legislature has also recognized limits on the right to restitution: the amount of restitution must be just; it must have a factual basis in the record; and it may be ordered only to a victim of an offense for which the defendant is charged.” Id. “To obtain restitution, the State must prove that appellant's intoxicated driving was the ‘but for’ and proximate cause of the damage.” Id. at 98 (concluding that, “[a]lthough the State was given ample opportunity to offer evidence that it was appellant's intoxicated driving that caused the accident, there was no such proof in this case.”).

“The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the prosecuting attorney.” Tex. Code Crim. Proc. art. 42.037(k). During the sentencing hearing, the State put on no evidence about the identity of the victim, the type of injury, the amount of the loss sustained, or that Gutierrez's intoxicated driving was the “but for” and proximate cause of the damage. Because the restitution imposed here has no factual basis in the record, we must reverse that part of the judgment ordering the payment of restitution. ● If the States wants restitution in a DWI case, they must prove intoxication caused the accident and establish sufficient facts to support that amount ordered STRIKING A CURB; VIDEO FOOTAGE OF INCIDENT Martinez v. State, 649 S.W.3d 782, 786 (Tex. App.—Houston [1st Dist.] 2022, pet. ref’d) Did the two curb strikes, when considered in the context of the circumstances as a whole, give Smiers cause to reasonably suspect Martinez might be drunk? On this record, we answer yes.

When an officer sees a driver strike the curb on a public roadway more than once in a short distance or time without apparent explanation, the officer may reasonably suspect the driver could be intoxicated.

A driver's contact with a curb, standing alone, might not be enough to give rise to reasonable suspicion of intoxication in the absence of other suspect circumstances. See Graham v. State, No. 08-03-00315-CR, 2005 WL 182691, at *1–2 (Tex. App.—El Paso Jan. 27, 2005, no pet.) (not designated for publication) (reversing trial court's denial of motion to *788 suppress when officer testified without elaboration that he stopped defendant because she struck curb once for about two seconds and record lacked additional evidence that defendant may have been intoxicated).

When, as here, a recording neither corroborates nor contradicts a witness's testimony as to what he saw, the footage does not constitute indisputable visual evidence on the subject. See Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2012) (indicating appellate court may disregard trial court's factual finding when recording conclusively disproves testimony of officer on which trial court relied in making finding). ● Hitting the curb once may not be enough without other evidence indicating intoxication, twice will be ● If footage is being used to show an event is different than the testimony, a trial courts findings will control unless the footage is indisputable SEARCHING A HOME FOR DWI PURPOSES State v. Jones, No. 13-21-00019-CR, 2022 WL 1669150, at *7 (Tex. App.—Corpus Christi–Edinburg May 26, 2022, no pet.)

The mere existence of a gated community does not extend an individual's Fourth Amendment rights to the entryway of the said community.

In physically intruding upon Jones's curtilage to gather evidence, the officers here—as in Collins—engaged in a search within the meaning of the Fourth Amendment, and such conduct was presumptively unreasonable without a warrant.

Tex. Code Crim. Proc. Ann. art. 14.05 requires exigent circumstances be present or consented entry into a residence be shown for a warrantless arrest in a residence to be lawful.

It cannot be said that a “knock-and-talk” occurred where officers unlawfully searched the curtilage, continued to trespass, then knocked at the front door, and proceeded to treat the interaction and entry as if Fourth Amendment protections did not exist.

● If officers want to speak with someone they believe drove while intoxicated and the person is already in their home, absent consent, they must get a warrant to search NURSE EXPERTS AND HEARSAY Williams v. State, No. 05-20-00631-CR, 2022 WL 1536749, at *1 (Tex. App.—Dallas May 16, 2022, no pet.).

The photo was offered to prove how the officer recognized the vials as the same ones he took from Rico, not for the truth of any writing upon them. …The relevance of the writing was to place the vials in the chain of custody that would end with the chemical analysis performed by a later witness. Indeed, as the trial judge suggested during the discussion of the exhibit, “[T]hey could have put a big X on it, and he could say, I recognize it that way.” We conclude the State's exhibit 5 was not offered for the truth of any writing that appeared within it; the exhibit did not contain inadmissible hearsay. ● Nothing is offered for the truth of the matter asserted, even if the only purpose in offering the writing is to prove the tube tested belonged to the Defendant In addressing the “means and procedures employed,” we ask (a) whether the test chosen was reasonable, and (b) whether the test was performed in a reasonable manner.

Appellant contends there is no evidence to establish that the blood was drawn by a qualified individual or that it was drawn according to accepted medical practices. ● If someone says they are a “medical assistant,” that is sufficient to establish the person is qualified to draw blood ● There doesn’t need to be any testimony the blood was drawn reasonably from a person with knowledge Appellant objected at trial to admission of the Toxicology Analysis Test Report on the ground that forensic toxicologist Terry Robinson, who prepared the report, could not testify that “proper medical procedures” were observed during the blood draw. Appellant argues that blood draw procedures should be subjected to the scrutiny afforded novel scientific evidence presented by expert witnesses, i.e., before the evidence could be admitted, the State “must persuade the trial court, by clear and convincing evidence, that the evidence is reliable and therefore relevant.” with respect to blood tests, the expert who must satisfy the criteria [of rule 702] in any particular case is the analyst who tests the blood sample, not the nurse who performs the blood draw.”); see also Russell v. State, No. 14-15-00036-CR, 2016 WL 1402943, at *7

(Tex. App.—Houston [14th Dist.] Apr. 7, 2016, pet. ref'd) (mem. op., not designated for publication); Hall v. State, No. 02-13-00597-CR, 2015 WL 4380765, at *3 (Tex. App.— Fort Worth July 16, 2015, no pet.) (mem. op., not designated for publication). In addition, at least one of our sister courts has stated directly that a witness testifying to blood draw procedures is a fact witness, not an expert whose testimony is subject to Kelly or rule 702. ● Nurses are not experts under 702 ● A blood analyst can testify to the quality of the blood drawn without knowledge of how it was drawn OFFICER UNAVAILABLE Schroeder v. State, No. 02-20-00031-CR, 2022 WL 1496548, at *5 (Tex. App.—Fort Worth May 12, 2022, no pet.)

Because the evidence showed that Officer Rodriguez was unavailable, because the testimony of Officer Rodriguez admitted at trial was limited to his testimony offered in opposition to Appellant's pre-trial motion to suppress the original detention, and because Appellant had full opportunity to confront and cross-examine Officer Rodriguez regarding that testimony and full opportunity to challenge the admission of that testimony at the pretrial suppression hearing, we hold that the trial court committed no error in allowing Officer Rodriguez's pre-trial testimony to be read into evidence before the jury. ● If an officer testifies in a pretrial hearing with cross examination, and is not available for trial, a transcript of the hearing will be allowed for the issues discussed in the pretrial hearing LINK BETWEEN INTOX AND DRIVING WATCH OUT PET GRANTED SO MAY NOT BE GOOD LAW SOON State v. Espinosa, 650 S.W.3d 849, 856 (Tex. App.—Houston [14th Dist.] 2022, pet. granted) For the evidence to be sufficient to support a conviction for DWI, a “temporal link” must exist between the defendant's intoxication and his driving. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). This temporal link may be established by circumstantial evidence.

Appellee did not admit to drinking, there were no positive breathalyzer results or failed field sobriety tests to suggest if, when, and how much, if any, alcohol was consumed, none of the witnesses knew how long appellee's vehicle was in the location where she was observed, no one saw appellee drive or operate her vehicle, and the testimony indicates appellee did not express an intent to drive or operate her vehicle. ● Most of the time the Courts will use just about anything as adequate circumstantial evidence. The CCA will likely do exactly the same thing here in time.

PUBLIC PLACE, PARKING LOTS State v. Vaughn, No. 03-21-00300-CR, 2022 WL 1008800, at *4 (Tex. App.—Austin Apr. 5, 2022, pet. ref’d) Parking lots of apartment complexes are public places. Even if there may be some circumstances in which an apartment parking garage is not a public place, under the circumstances of this case—regardless of whether we term it a “garage” or “lot”—the Bowie's parking structure is a “common area” of an apartment house and therefore falls under the definition of “public place” “to which the public or a substantial group of the public has access” BLOOD DRAW, MORE PROBATIVE THAN PREJUDICIAL Hube v. State, No. 05-21-00984-CR, 2022 WL 17335684, at *4 (Tex. App.—Dallas Nov. 30, 2022, no pet. h.)

Appellant also complains about the length of time between the traffic stop and the blood draw, arguing his blood was drawn two hours and nineteen minutes after he was pulled over by Officer Yanez. But notwithstanding the fact that a little over two hours passed between the traffic stop and the blood draw, the results showing appellant had a BAC of 0.122 indicated he had consumed alcohol—a fact highly probative of impairment intoxication. ● A blood draw 2 hours after the stop has more probative value than prejudicial effect if there is no retrograde extrapolation

Texas Criminal Defense Lawyers Association

10th Annual Lone Star DWI January 20, 2023 Hilton Austin Airport Austin, Texas

Topic: Blood Discovery: Obtaining it, Evaluating it, and Using it at Trial Speaker:

Steven Wright Steven Wright Law 2000 N. Central Expy Suite 200 Plano, TX 75704 469.562.4000 phone 469.562.4463 fax steven@stevenwrightlaw.com email www.stevenwrightlaw.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Blood Discovery: Obtaining it, Evaluating it, and Using it at Trial Steven Wright Steven Wright Law steven@stevenwrightlaw.com 469-562-4000 • Getting Blood Discovery o Make sure that the first thing you do is subpoena ALL the blood discovery. o If you don’t have a copy of the subpoena and all of the things you need, email me and I will send you a copy of it. o Do not use a motion and order (unless you are in a County like Harris Co. where they have a standing order for blood).

▪ Most Judges have no idea what this stuff is and will think a lot of what we are requesting is unnecessary.

▪ They will scratch a lot of things out if given the opportunity. o Different labs will have different procedures on obtaining their blood. o You always want to serve the subpoena on the analyst who tested your blood. o Some labs will require that you pay for the records.

▪ If it isn’t excessive I will usually pay for it.

▪ If it is not, I just tell them that this is a criminal case and not a civil case and I am entitled to the discovery. If they don’t want to give it to me then they can bring all the documents to court with them on the next court date. o Most labs will get you the documents within 30-60 days.

▪ Make sure you follow-up with the lab a week or so after the subpoena has been served.

• Evaluating the Blood and Key Documents to Review o Chain of Custody ▪ How long did it take for the blood to get from the police department to the Tox lab?

▪ I have never seen someone from evidence at the police station show up to trial to testify to how the blood was stored or handled.

• So if the blood took a while to get to the lab make sure you bring up that no one is there to testify how it was stored or handled and that could greatly impact the blood.

▪ If it took more than a few days to get to the lab then this is a major issue. Even with the preservatives in the blood vial if the blood is not stored in a fridge alcohol can form in the blood because of Candida Albicans.

• Candida Albicans is a yeast that is literally everywhere and on pretty much everything. It can, and more likely than not, got into the vial even with all precautionary measures taken.

• Get the Article “The Effects of temperature on the Formation of Ethanol by Candida Albicans in Blood”. By Joyce Chang from the Journal of Forensic Science Jan 1989.

• This article shows that even with preservatives in the blood, after 5 days of the blood not being refridgerated properly, candida albicans can cause a BAC between .01-.07!

▪ Check and see how if the blood was shipped via FedEx or UPS.

• They don’t refrigerate or handle the boxes with the proper care.

• Mishandling the blood cause also cause an inaccurate BAC score.

• Check the DPS website if this is a DPS blood case. o Go to dps.texas.gov ▪ Click Crime Labs at the top ▪ Scroll down to the bottom of that page and click on “Quality Incidents” ▪ Check your lab and see if there is anything that happened that might cause concern around the time your blood was tested.

▪ Make sure youre looking at the incidents that end in “BA”. These are the incidents for Blood Alcohol.

• Always Inspect the Blood o You can file a motion and order to have a judge sign off on this, but if you ask the State to just schedule a time for you and them to go out to the Police Department they will usually make it happen. o They will probably be confused because no one does this, but I suggest doing it. o You will never know how full the vials are, what the conditions of the blood is, or if it appears to be tampered with unless you go and inspect the blood with your own eyes.

• Required Books o Garriott’s Medicolegal Aspects of Alcohol ▪ This is one of the most helpful books you can use in a blood draw case.

▪ It lays out how blood should be handled, transported, etc.

▪ This is also a book that is a required reading for most tox analysts during their training so they will acknowledge it as a learned treaties so you can read sections into the record. o Phlebotomy Essentials ▪ I use this for Nurses and some Toxicologist. It lays out how if blood is not handled properly it can invalidate the results.

▪ This isn’t known by everyone, but if they don’t know it I just make them feel stupid until they pretend to know it so I can read it into the record. o Under Texas Rules of Evidence 803(18) after it has been acknowledged as a learned treatises it can be read into the record. o DPS Lab Manuals

Texas Criminal Defense Lawyers Association

10th Annual Lone Star DWI January 20, 2023 Hilton Austin Airport Austin, Texas

Topic: Marijuana Identification and DWI MJ Defense Speaker:

Megan Roper Vazquez Law Firm 608 W 12th Austin, TX 78701 541.220.8507 phone megan@criminallawaustin.com email www.criminallawaustin.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

MARIJUANA IDENTIFICATION AND DWI MJ DEFENSE I. INTRODUCTION With the passage of HB 1325 in 2019, the landscape surrounding possession of marijuana prosecutions was thrown in disarray. While marijuana is still illegal, many agencies are choosing to decline to prosecute misdemeanor possession offenses.

Felony level marijuana and THC offenses, however, are still being prosecuted.

Moreover, THC Driving While Intoxicated cases, while not as common as alcohol DWI cases, are on the rise. Understanding the unique challenges these cases present is key to a successful DWI practice.

II. MARIJUANA IDENTIFICATION Hemp v. Marijuana Chapter 112 of the Agriculture Code defines hemp as “the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” TEX. AGRIC. CODE § 112.001.

Chapter 481 of the Texas Health and Safety Code defines marijuana as “the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds.” TEX. HEALTH & SAFETY CODE § 481.002(26).

Marijuana and hemp are often visibly indistinguishable.

Legally, the only difference between the two is that marijuana

has a THC concentration of more than 0.3 percent per dry weight.

What’s legal?

House Bill 1325 made it legal to possess, buy, or sell hemp in 2019. Thus, shops across the state began selling substances such as cannabidiol (CBD) and delta-8 THC. The passage of this code section has irrevocably changed what the state is required to prove in marijuana and THC controlled substance cases. In marijuana the cases, the state must now prove the THC content of the plant matter, and in THC controlled substance cases, the state must now prove where the THC molecules originated, as THC in hemp has been exempted from the definition of a controlled substance.

However, the manufacturing and processing of smokable hemp is still illegal. See Tex. Dep’t of State Health Services, et al. v.

Crown Distributing, LLC, et al., 647 S.W.3d 648 (Tex. 2022).

Lab Testing Because the only difference between marijuana and hemp is the concentration of THC, a lab test is needed to distinguish the two. The methodology employed by DPS is High Performance Liquid Chromatography (HPLC). Although a theoretically sound methodology, HPLC testing cannot be accomplished on large batches. Moreover, cannabinoid concentrations vary greatly throughout the plant, presenting reliability issues ripe for suppression motions.

There are currently no field tests that are capable of quantifying the concentration of THC in a substance. Thus, such a test is unhelpful in determining whether a substance is legal hemp or illegal marijuana.

PRACTICE TIP If your client is facing a possession of marijuana charge – no matter the amount – the State must prove the THC concentration of the substance. If no lab test was obtained, the case should be set for trial.

Additionally, lab results should be carefully scrutinized to ensure their reliability. Always request the raw data supporting the lab results, the standard operating procedures for the lab that performed the testing, and any maintenance records of the machines used to perform the tests. Never rely solely on a lab report.

III. PENALTIES AND ENFORCEMNET The penalty for possession of marijuana depends on the weight: Weight < 2 oz Btw 2 oz and 4 oz Btw 4 oz and 5 lbs Btw 5 lbs and 50 lbs Btw 50 and 2,000 lbs More than 2,000 lbs

Classification Class B misd.

Class A misd.

State jail felony Third-degree felony Second-degree felony First-degree felony

Enforcement Shortly after the passage of HB 1325, the Texas Department of Public Safety acknowledged in an inter-office

memorandum that their crime labs lacked the capacity to measure THC concentration levels and directed state personnel to cite and release for any misdemeanor amount of marijuana. This policy continued after the rollout of DPS’s new lab methodology for testing THC, as the lab only accepts felony cases. Similarly, many prosecutors around the state have stopped accepting misdemeanor marijuana cases.

No Retroactive Application Several appellate courts have now held that the passage of HB 1325, which reclassifies any substance with less than 0.3 percent concentration of THC by dry weight as legal hemp, rather than illegal marijuana, is not retroactive. See Trevino v. State, No. 04-210085-CR, 2022 Tex. App. LEXIS 8012 (San Antonio, October 31, 2022, no pet.) and cases cited therein.

IV. ODOR OF MARIJUNA PROBABLE CAUSE

AND

Prior to the passage of HB 1325, Texas courts have consistently held that the odor of marijuana emanating from a person or vehicle provides probable cause for a search of that person or vehicle. See Deleon v. State, 530 S.W.2d 207, 211 (Tex. App.—Eastland 2017, pet. ref’d); Marsh v. State, 684 S.W.2d 676, 679 (Tex. Crim. App. 1984). If hemp and marijuana are indistinguishable by sight and smell, then the continued validity of these decisions is in doubt. Decisions from other states that have legalized medical marijuana are instructive. See, e.g., Commonwealth v. Cruz, 945 N.E.2d 899, 910 (Mass. 2011) (“Given our conclusion that [MASS. GEN. LAWS ch. 94C §§ 32L-32N (2019)] has changed the status of possessing one ounce or less of marijuana from a crime

to a civil violation, without at least some other additional fact to bolster a reasonable suspicion of criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity.”). In a similar vein, the use of drug dogs trained to alert to the scent of marijuana faces similar problems. See People v. McKnight, 446 P.3d 397, 414 (Colo. 2019) (holding that a drug dog that alerts on a vehicle no longer gives law enforcement probable cause because marijuana is legal in Colorado).

However, law enforcement is authorized by the new law to detain any hemp in transit and request documentation required under TEX. ARGIC. CODE § 122.356 (which requires a person transporting hemp to “furnish the documentation required by this section to the department or any peace officer on request”).

Hemp must be properly documented at all times, cannot be transported with non-hemp products, and cannot be manufactured for the purposes of smoking or vaping. See TEX. ARGIC. CODE §§ 122.055, 122.301(b), 122.356(a)(2), (b)(1), 122.359, 122.360.

Thus, in addition to the odor of marijuana, Cannabis plant material found without documentation or in a form meant for smoking may provide additional facts necessary to establish probable cause or reasonable suspicion.

PRACTICE TIP Be wary of probable cause affidavits that rely solely on the odor of marijuana. If there are no other facts to support probable cause, file a motion to suppress. While additional facts may support a probable cause determination, such as the lack of appropriate packaging or the presence of drug paraphernalia, remember that only those facts known at the

time of the search or seizure can be used to form the basis of probable cause.

V. DWI BY THC INTOXICATION

–

PROVING

There is no per se THC blood concentration level for intoxication and no reliable scientific study to support a correlation between the presence of delta-9 THC in a person’s blood system and intoxication.

According to a 2017 report by the National Highway Traffic Safety Administration, “While fewer studies have examined the relationship between THC and blood levels and the degree of impairment, in those studies that have been conducted the consistent finding is that the level of THC in the blood and the degree of impairment do not appear to be closely related.” See National Highway Traffic Safety Administration, Marijuana-Impaired Driving: A Report to Congress, July 2017, available at https://www.nhtsa.gov/sites/nhtsa.gov/files/ documents/812440-marijuana-impaireddriving-report-to-congress.pdf.

Moreover, THC is known to be detectible in blood and urine for up to four or five weeks after it has been consumed, making it difficult – if not nearly impossible – to determine whether the driver is actually impaired at any given time. This is because THC is fat soluble (unlike alcohol, which is water soluble) and is stored in fatty tissues in the body and released over a long period of time.

The Standardized Field Sobriety Tests (SFSTs) used in typical DWI investigations have not been validated by NHSTA for cannabis intoxication. In addition to SFSTs, some law enforcement officers have taken a

course established by the International Association of Chiefs of Police to become qualified as “Drug Recognition Experts.”

The “DRE” process is a12-step method that purports to determine whether a suspect is impaired by drugs. The DRE process has not been scientifically proven to be reliable or accurate in predicting impairment by drugs.

VI. CONCLUSION Marijuana cases, whether the allegation is possession or intoxication, are difficult to prove, particularly in the light of the growing public support for cannabis law reform. It is the State’s burden to prove that alleged contraband is what the State claims it is – and to do so with reliable evidence. A successful marijuana defense starts with requesting all discovery – including raw data from the lab, if a test was done. Aggressively defending all of these cases, no matter how minor, will result in more favorable resolutions for your clients.

Texas Criminal Defense Lawyers Association

10th Annual Lone Star DWI January 20, 2023 Hilton Austin Airport Austin, Texas

Topic: Drugged Driving Cases: Trial Considerations Speaker:

Deandra Grant, JD, GC, MS Deandra Grant Law 3300 Oak Lawn Ave Ste 700 Dallas, TX 75219 972.943.8500 phone 972.432.7547 fax TexasDWIGal@gmail.com email http://www.texasdwisite.com/ website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

12/28/2022

DRUGGED DRIVING CASES: TRIAL CONSIDERATIONS 10TH ANNUAL LONE STAR DWI SEMINAR JANUARY 20, 2023 AUSTIN, TEXAS DEANDRA GRANT, JD, GC, MS

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SOME REALITY CHECKS FOR OFFICERS • Jurors are not that impressed with SFST’s • No, they are not “easy” and not “everyone” can do them • Convincing jurors that someone was “intoxicated” on a substance is harder than the State thinks it is – especially a Rx • Most of the jurors took some medicine that morning (and the judge may have, too)

BORKENSTEIN DRUG 2021 & 2022 REVIEW AAA DRE Emphasis on oral fluid Studies on MJ and driving Trying to study impairment from CBD Emphasis on studying other metabolites that might prove how long ago THC was ingested (related to driving) • “Tremendous efforts around the world to develop breath cannabis tests” • • • • • •

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Drug concentration may not correlate with therapeutic effect 21

MEC for toxic response

Drug Effect

Peak effect Onset of effect Intensity of Action

Therapeutic Window MEC for desired response

Duration of Action

Time Adapted from Figure 1-6, Goodman & Gilman 10th Edition 2001, p. 25 MEC = Minimum Effective Concentration

Dr. Jimmie L. Valentine - Copyright 2019

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NHTSA Working Definition of “Drug”: Any substance which, when taken into the human body, can impair the ability of the person to operate a vehicle safely.

NHTSA 2010 Drug Recognition Expert Manual session II-1

SYSTEMS EXAMINED DURING THE DRE EVALUATION • • • • •

Central Nervous System The Eyes Blood Pressure and Pulse Body Temperature Balance and Coordination

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SEVEN DRUG CATEGORIES • CNS Depressants • CNS Stimulants • Hallucinogens • Dissociative Anesthetics (PCP) • Narcotic Analgesics • Inhalants • Cannabis

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Bigelow, G.E., Bickel, W.K., Roache, J.D., Liebson, I.A. & Nowowieski, P., Identifying Drug Intoxication: Laboratory Evaluation of a Subject-Examination Procedure. NHTSA, 1985 (DOT HS 806 753).

The subjects in this study were 80 adult males with no history of significant drug use other than marijuana. The dosages of drugs given to the subjects were well above therapeutic levels. The officers were able to interview the test subjects prior to performing their evaluations. Also, the test subjects were evaluated on more than one occasion by the same officers.

This is commonly referred to as the “Johns Hopkins study” though it was never peerreviewed. It is merely a report. Here are some of the key points regarding this study: • • • • • • • • • •

Participants dosed with drugs were not chronic users.

It was a double-blind study.

Three categories of drugs were evaluated: marijuana, depressants, and stimulants.

The study did not evaluate hallucinogens, PCP, inhalants, or narcotic analgesics.

DREs were told what types of drugs were used.

Large amount of drugs were given to people who normally do not take that particular drug.

Failed the DRE evaluation: 144 dosed with a drug and 13 given no drugs.

Passed the DRE evaluation: 125 dosed with a drug and 38 given no drugs.

Forty-six percent of those given the drug passed the DRE. Twenty-five percent of those not drugged failed DRE (false positive).

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Heishman, S., Singleton, E. & Crouch, D., “Laboratory Validation Study of Drug Evaluation and Classification Program: Ethanol, Cocaine, and Marijuana,” Journal of Analytical Toxicology, Vol. 20 (Oct 1996) Prior to evaluating a test subject, the DRE officers were told that the subjects might have been given alcohol, marijuana, a depressant, a narcotic, a stimulant, PCP, a combination, or nothing at all. No pre-test interview was given.

The study had a very high false positive rate. Forty-one percent of the subjects who were given a placebo were found to be impaired by the DRE. With regards to cocaine, the DREs did a terrible job at predicting impairment. Thirty-six subjects were dosed with cocaine. The DREs identified 31 of them as unimpaired by a stimulant. Eighteen were given a placebo. Three of them were incorrectly identified as being impaired by a stimulant.

The results were not any better when it came to predicting impairment by marijuana.

Thirty-six subjects were dosed with marijuana. The DREs predicted no marijuana in 17 of them. Of the 18 given a placebo, six were incorrectly classified as impaired by marijuana.

This study was peer reviewed and published. It was funded by NHTSA.

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“Laboratory Validation Study of Drug Evaluation and Classification Program: Alprazolam, d-Amphetamine, Codeine and Marijuana,” Heishman, S., Singleton, E. & Crouch, D., Journal of Analytical Toxicology, Vol. 20 (Oct 1998) This study sought to examine the ability of DREs to identify and distinguish impairment from four classes of drugs: CNS depressant, stimulant, narcotic, and marijuana. As in the previous study, the DREs were told that test subjects could be dosed with alcohol, any of the four noted drug classes, a combination, or nothing at all.

Dosed subject examinations totaled 187. Of those, 102 were predicted to be unimpaired.

27 subjects given placebos were incorrectly classified as impaired.

•

Alprazolam: 46 doses administered. Alprazolam not predicted in 11. Of the 24 placebos administered, 9 were incorrectly classified as impaired on alprazolam.

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Amphetamine: 48 doses administered. Amphetamine was not predicted in 34. Of the 24 placebos administered, 5 were incorrectly classified as impaired on amphetamine.

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Codeine: 47 doses administered. Codeine was not predicted in 33. Of the 23 placebos administered, 4 were incorrectly classified as impaired on codeine.

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Marijuana: 46 doses administered. Marijuana was not predicted in 24. Of the 22 placebos administered, 9 were incorrectly classified as impaired on marijuana.

This study was peer reviewed and published. It was funded by NHTSA.

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Shinar, D. & Schechtman, E., “Drug Identification Performance On the Basis of Observable Signs and Symptoms,” Accident Analysis and Prevention 37 (2005) 843-851 Double-blind study conducted to evaluate how well police officers were able to detect drug impairment and identify the drugs they believed responsible for the impairment.

The officers were only able to observe signs and symptoms, and they could not interview the test subjects. Key points: • • • • • • • • •

54 participated, but not all completed the study with no explanation why they dropped out.

300 observations made—either codeine, Xanax, amphetamine, or THC. No information is provided on how many observations of each.

39 officers participated; no information is provided on who did what.

Placebo: officers determined 44 were unimpaired and 58 were impaired.

Dosed: officers determined 55 were unimpaired and 143 were impaired.

Overall rate of false positives was 72%.

Overall rate of false negatives was 28%.

Ability to identify unimpaired subjects correctly was 43%.

Percentages of subjects who were correctly identified as having been given a particular drug were: THC, 30%; depressant, 43%; narcotic, 36.7%; stimulant, 8.8%; placebo, 43%.

Overall, the study found high false positive rates and a poor record of identifying impairment and specifying an impairing substance.

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Other DRE Studies: Compton, R. Field Evaluation of the Los Angeles Police Department Drug Detection Program. Washington, DC: National Highway Traffic Safety Administration, 1986.

This is often referred to as the “LAPD study” or the “173 study.” It really was not a study. All suspects who were unimpaired were excluded from the reported data.

Hence, there is no way to calculate the number of true negatives or false positives.

This study was not peer reviewed or published.

Hardin, GG, et al. Minnesota Corroboration Study: A Comparison of DRE Opinions in Toxicology Findings. 1993.

In this “study,” the police compared toxicology reports with DRE opinions. However, they did not collect samples from those deemed unimpaired or those who refused chemical tests. Like the LAPD study, there is no way to calculate true negatives or false positives because that data was not reported.

This study was not peer reviewed or published.

Adler, Eugene & Burns, Marcelline. Drug Recognition Expert (DRE) Validation Study: Final Report to Governor’s Office of Highway Safety.

State of Arizona, 1994.

This “study” involved the review of 500 DRE assessment sheets. No information was included regarding those subjects who were deemed unimpaired. Forty-two percent of those who failed the DRE exam—i.e., were deemed to be under the influence of a drug—had no drug present in their urine.

This study was not peer reviewed or published.

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Results of the 2013-2014 National Roadside Survey of Alcohol and Drug Use

by Drivers (commonly referred to as the Virginia Beach Study), NHTSA, Feb. 2015, DOT HS 812 118, pg 4 “Most psychoactive drugs are chemically complex molecules, whose absorption, action, and elimination from the body are difficult to predict, and considerable differences exist between individuals with regard to the rates with which these processes occur. Alcohol, in comparison, is more predictable. A strong relationship between alcohol concentration and impairment has been established, as has the correlation between alcohol concentration and crash risk…. At the current time, specific drug concentration levels can- not be reliably equated with a specific degree of driver impairment.”

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Factors that make similar prediction difficult for most other psychoactive drugs include: • •

• •

• •

Large number of different drugs that would need to be tested: extensive testing of alcohol has been undertaken over many decades, whereas relatively little similar testing has occurred for most other drugs.

Poor correlation between the effects on psychomotor, behavioral, and/or executive functions and blood or plasma drug concentrations (peak psychomotor, behavioral, and executive function effects do not necessarily correspond to peak blood levels; detectable blood levels may persist beyond the impairing effects or the impairing effects may be measurable when the drug cannot be detected in the blood).

Sensitivity and tolerance Individual differences in absorption, distribution, action, and metabolism (some individuals will show evidence of impairment at drug concentrations that are not associated with impairment in others; wide ranges of drug concentrations in different individuals have been associated with equivalent levels of impairment).

Accumulation (blood levels of some drugs or their metabolites may accumulate with repeated administrations if the time-course of elimination is insufficient to reduce or remove the drug or metabolite before the next dose is administered).

Acute versus chronic administration (it is not unusual to observe greater impairment during initial administrations of drugs than is observed when the drug is administered over a long period of time).

At the current time, specific drug concentration levels cannot be reliably equated with a specific degree of driver impairment.

Marijuana-Impaired Driving: A Report to Congress, NHTSA, July 2017, DOT HS 812 440, pg 27-28 “As the previous sections of this report have indicated, the poor correlation of THC level in the blood or oral fluid with impairment precludes using THC blood or oral fluid levels as an indicator of driver impairment. The use of BAC or BrAC as an indicator of driving impairment has assisted law enforcement and prosecutors in being able to show that an alcohol-impaired driver has a BAC that has been demonstrated to increase crash risk. The use of THC level cannot serve this same role for marijuana-impaired driving (Dupont, Voas, Walsh, Shea, Talpins, & Neil, 2012)….Toxicologists are not able to provide expert testimony that a specific amount of THC present in a suspect’s blood (or other specimen) is definitively associated with being impaired by marijuana and render the driver unable to drive safely.

A number of States have set a THC limit in their laws indicating that if a suspect’s THC concentration is above that level (typically 5 ng/ml of blood), then the suspect is to be considered impaired. This per se limit appears to have been based on something other than scientific evidence. Some recent studies demonstrate that such per se limits are not evidence-based. “

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Residual Cannabis Levels in Blood, Urine and Oral Fluid Following Heavy Cannabis Use, Forensic Science International 249 (2015) 173-180 “It is possible that high blood THC levels are merely a reflection of saturation of body stores of THC and not necessarily correlated with psychoactive effects. The implications for forensic practitioners who have to interpret THC toxicology from the witness box are challenging. THC kinetics in heavy users appears to be highly variable and there is no easy interpretation which will allow a useful estimation of time of use from a single measurement. “

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DWI – Adderall and Klonopin Roy was diagnosed with obsessive compulsive disorder (OCD), ADHD, severe anxiety disorder and panic attacks. He was on a regimen of Adderall and a small amount of Klonopin at 6 am and 2 pm each day. These 2 drugs operate on different portions of the brain and are metabolized by different enzymes in the liver. A simple Google search reveals that these medications are sometimes prescribed to individuals such as Roy. The Adderall helps with focus and concentration while the Klonopin helps ease anxiety and the chance of a panic attack.

Roy was in a fender-bender around 4 pm on the day of his arrest. He rear-ended another car and he and the other driver exchanged insurance information. There were also photos of both cars on Roy’s phone.

Roy was pulled over around 1:30am by a police officer who claimed he was “weaving”.

Roy reacted immediately and pulled into a parking lot. His reactions to the officer seemed unusual. The officer thought he might be high on drugs. He had him get out of the car and perform SFST’s despite the fact that he smelled no alcohol and the SFST’s are only validated for alcohol intoxication. Roy’s balance was not great and he was arrested for DWI despite scoring 0 clues on the HGN. He had told the officer that he took his medicine at 6 am and 2 pm as prescribed. He even tried to explain that he was having trouble with his car alignment due to the accident and showed the officer photos of both cars. The officer was still convinced he was intoxicated.

Roy declined a blood test so a warrant was obtained and his blood was drawn. The results showed no ethanol, a small amount of amphetamine and a very small amount of clonazepam. Both medications were in a very low therapeutic level.

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At trial the State called two analysts from DPS Austin. One testified she performed the analysis for amphetamine and reported the result. The level was in the low therapeutic range, matched up to Roy’s story about what meds he took and when and she could not testify that the amount in his blood would have impaired him.

The second analyst, who has a bachelor’s in biochemistry, did the analysis for clonazepam. Once again, the amount was in the low therapeutic range. An attempt was made by the State to have this highly unqualified individual with no formal training in pharmacology make some sort of argument that there was a synergistic effect when you take a CNS depressant and a stimulant. His lack of knowledge about these two specific drugs was easy to impeach, as well as his lack of preparation for trial. He had done no research on Adderall and Klonopin and had not even bothered to watch the video.

Roy’s diagnosing psychologist testified about his various conditions. He had watched the video and went step by step through it pointing out behavior that is consistent with individuals suffering from Roy’s mental health issues.

Defense Expert testified that Roy’s behavior on the video, combined with the very low levels of therapeutic medicines remaining in his system, revealed something going on outside the field of toxicology.

We argued that Roy’s behavior was based on his medications wearing off as opposed to impairing him.

The jury was back in 12 minutes with a Not Guilty verdict.

DWI – Cocaine & Marijuana Tom had worked a full day and was taking a friend home that evening when he was pulled over for his tail-light not working properly. The short video of Tom driving before the stop showed no traffic violations. Tom used his turn signals and stopped safely. However, the police officer stated he had a suspicion that Tom was driving impaired possibly from the introduction of drugs, alcohol, or a combination thereof.

The officer stated he did not smell marijuana or alcohol. However, the officer stated his reactions to his questions implied he was impaired. Tom was asked to exit the vehicle and perform Standard Field Sobriety Tests (SFST) despite the fact that the SFSTs are only validated for alcohol intoxication. The officer stated that he saw no intoxication clues from the Horizontal Gaze Nystagmus (HGN) test. Tom was unable to complete the SFSTs of the Walk and Turn (WAT) and the One Leg Stand (OLS) successfully and was arrested. High winds were heard and seen on the video recording of the SFSTs. Tom attempted to explain he was tired from working all day and he admitted to smoking marijuana, but much earlier in the day. The officer was still convinced Tom was intoxicated and placed him under arrest.

After the arrest a blood draw was taken. The results showed active THC and the THC metabolite in Tom’s system. Additionally, the cocaine metabolite was also present in the blood draw analysis.

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State called two analysts from DPS Austin. Both analysts were asked from the results of the blood test if the they could tell the jury that Tom was intoxicated at the time of driving. They could not. Also, they were asked if the metabolites had any effect on the human body and the both stated they had no effect. Additionally, the analysts were asked about recent studies on marijuana use, driving and crash risks. Both analysts stated that recent studies did not show a significant increase in crash risks.

Weather reports were shown that gusts of winds during the SFSTs were up to 35mph.

We argued that it was clear that Tom’s use of marijuana had not impacted his ability to drive and that he was not intoxicated at the time of driving. Additionally, it was argued that the metabolites of marijuana and cocaine did not have any effect on the human body. Lastly, it was argued that the environmental conditions of high winds and Tom being tired from the long workday were the reasons he was unable to complete the SFSTs successfully.

The jury was back in 45 minutes with a Not Guilty verdict.

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References: Winek’s Drug & Chemical Blood-Level Data 2001

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SFST TRAINING

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Lance Platt, PhD – Platt & Associates – DRE & SFST https://impaireddrivingexpert.com

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ACS LAWYER SCIENTIST PROGRAM

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