21st Annual Top Gun DWI

2 1 ST A N N U A L

DWI

Available In Person, Livestream, & On-Demand At Your Own Pace For Up to a Year

P: 512.478.2514 • F: 512.469.9107 • www.tcdla.com • 6808 Hill Meadow Dr, Austin, TX 78736

TOP GUN DWI XXI SEMINAR INFORMATION Date Location Course Directors Total CLE Hours

August 11, 2023 The Whitehall, 1700 Smith Street, Houston, Texas 77002 Doug Murphy and Mark Thiessen 7.25 Ethics: 1.0

Friday, August 11, 2023 Time

7:45 am

CLE

8:15 am

Daily CLE Hours: 7.25

Topic

Speaker

Opening Remarks

Doug Murphy and Mark Thiessen

Registration and Continental Breakfast

8:30 am

.75

Voir Dire: Sorting Out the Right Jurors

Julio Vela

9:15 am

.5

Opening & Closing Arguments: Starting & Ending With Your Theme

Jed Silverman

9:45 am

.5

10 Silver Bullet Trial Tactics in a DWI Case

Todd Overstreet

10:15 am

Ethics: 1.0

Break

10:30 am

.5

Strategies in Suppressing Evidence

W. Troy McKinney

11:00 am

1.0 ETHICS

Landing the Client (on the Flight Deck): Ethical Client Intake

W. Troy McKinney & Brent Mayr

11:00 am

Ethical Advertising

Brent Mayr

11:30 am

Ethical Fees & Agreements

W. Troy McKinney

12:00 pm

Lunch Provided

1:00 pm

1.0

Understanding Blood Testing from the Vein to the Lab

Amanda Culbertson

2:00 pm

.5

Challenging Hospital Blood Testing

Christopher McKinney

2:30 pm

.5

Cross Examination of Arresting Officer

Steve Gonzalez

3:00 pm

Break

3:15 pm

.5

Understanding Police Tools of SFSTS and DRE

Sgt. Don Egdorf

3:45 pm

.25

Demonstration of Cross Examination

Steve Gonzalez & Sgt. Don Egdorf

4:00 pm

.5

Intoxication Manslaughter: Understanding the Government’s Investigation Before You Were Hired

Sean Teare

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

TOP GUN DWI XXI SEMINAR INFORMATION Date Location Course Directors Total CLE Hours

August 11, 2023 The Whitehall, 1700 Smith Street, Houston, Texas 77002 Doug Murphy and Mark Thiessen 7.25 Ethics: 1.0

4:30 pm

Crossing the Blood Analyst: Turning the Analyst into Your Expert

5:15 pm

.75

Joe St. Louis (Tucson, AZ)

Adjourn

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

Texas Criminal Defense Lawyers Association

21st Annual Top Gun DWI Table of Contents speakers Julio Vela Jed Silverman

Todd Overstreet Brent Mayr Troy McKinney Christopher McKinney

Sgt. Don Egdorf Joe St. Louis

topic Voir Dire: Sorting Out the Right Jurors Opening & Closing Arguments: Starting & Ending With Your Theme

10 Silver Bullet Trial Tactics in a DWI Case Ethical Advertising Ethical Fees & Agreements Challenging Hospital Blood Testing

Understanding Police Tools of SFSTs and DRE Crossing the Blood Analyst: Turning the Analyst into Your Expert

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

Texas Criminal Defense Lawyers Association

21st Annual Top Gun DWI August 11, 2023 The Whitehall Houston, Texas

Voir Dire: Sorting Out the Right Jurors Speaker:

Julio Vela

1217 Prairie 1st Floor Houston, TX 77002 713.890.2555 Phone 832.201.8331Fax attorneyjvela@gmail.com email www.attorneyjvela.com website

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

7/26/2023

J. Julio Vela Attorney 713-890-2555 VELA.LAW

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PART 1: GET THEM WHILE THEY ARE HOT • PRESUMPTION – “BIAS” IN FAVOR OF THE DEFENDANT • VARIETY OF REASONS • SITTING HERE THINKING ABOUT IT • MAN VS WOMAN • PERSONAL • NEED TO PROVE SOMETHING

• MAGIC LANGUANGE • “OUR LAW PROVIDES….”

• “JUDGE WILL INSTRUCT…”

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PART 2: INTRODUCTION, MIMIC, PERSPECTIVE • HUMANIZE • MIMIC AND FAVORS • BEYOND A REASONABLE ………….. “DOUBT” • PRESUMPTION OF……”INNOCENCE” • BIG, FAT…… “LIAR”

• THEMES • LETS TALK ABOUT IT FROM THE STANDPOINT OF SOMEONE WHO IS INNOCENT ---• Rush to judgment; tired; work; crisis

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PART 3: ROAD MAP – LETS GET STARTED • GIVE THEM DIRECTION AND ROAD MAP OF WHAT IS ABOUT TO HAPPEN • SCALED QUESTIONS – “I DIDN’T WRITE THEM…PEOPLE MUCH SMARTER THAN ME” • QUESTIONS ON GETTING TO KNOW YOU • HAVE SOME FUN AND TALK ABOUT SOME STORIES • THEN WE HAVE BENCH CONFERENCE • THEN THE 6/12 WILL BE SEATED

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PART 4: SCALED QUESTIONS • “PEOPLE SMARTER THAN ME” • DIRECTIONS

• ASK FOR PARTICIPATION • “PICK #3 IF YOU ARE NOT WANTING TO PARTICIPATE OR IN THE MIDDLE BECAUSE THAT’S WHAT IM GOING TO GIVE YOU ANYWAY”

• METHOD

• CALL JUROR NUMBER AND THEY RESPOND • HAVE THEM ANNOUNCE JUROR NUMBER AND THEY RESPOND • SAY IT 3 TIMES • 1-5 OR 1-4?

• TIE YOUR SCALED QUESTION TO A THEME, CONSTITUTIONAL IDEA, ECT

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Out of 100 people brought to trial, at least 75 are guilty of the crime with which they are charged.

Agree Strongly

Disagree Strongly

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A defendant should be found guilty if 11 out of 12 jurors vote guilty.

Agree Strongly

Disagree Strongly

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A person accused should be required to take the witness stand.

Agree Strongly

Disagree Strongly

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It’s better to let a guilty person go free than to convict an innocent person.

AGREE DISAGREE

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In my spare time, I would watch… #1 – America’s Got Talent #2 – Tucker Carlson #3 – Nancy Grace

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I could not convict the accused based on the testimony of one witness, even if I believed that witness beyond a reasonable doubt

1. Strongly Agree 2. Somewhat Agree 3. Somewhat Disagree 4. Strongly Disagree

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A defendant should be found guilty if 11 out of 12 jurors vote guilty.

Out of every 100 people brought to trial, at least 75 are guilty of the crime with which they are charged.

No one should be convicted of a crime on the basis of circumstantial evidence, no matter how strong such evidence is.

Defendants in a criminal case should be required to take the witness stand.

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Upstanding citizens have nothing to fear from the police.

Generally, the police make an arrest only when they are sure about who committed the crime.

If the grand jury recommends that a person be brought to trial, then he probably committed the crime.

Police should be allowed to arrest and question suspicious looking persons to determine whether they have been up to something illegal

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PART 5: IDENTIFY JURORS • • • • • • • • • •

LAWYERS COPS ADVOCATES VICTIMS WRONGFULLY ACCUSED - DON’T STRIKE THEM FOREPERSON - 2 PART (WANT TO BE, AND WOULD IF HAD TO) MAN VS. WOMAN CONFLICTS LANGUAGE PRIVATE

PRO TIP - “INFLUENCE YOU IN FINDING A VERDICT” • IDENTIFY JURORS AS A GROUP; THEN FOLLOW UP WITH CAUSE QUESTION • VICTIMS • COPS • ECT

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PART 6: THEME TIME AND VISUALS • ANECDOTE AND STORY – RELATE TO CASE • LET THE JURY GIVE YOU THE ANSWER • WHY DO SOME COPS RUSH TO JUDGMENT • WHY WOULDN’T SOMEONE COMPLY? • ”WHAT HAPPENS WHEN POLICE DO INCOMPLETE INVESTIGATIONS

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PART 7 – GETTING MORE STRIKES AND MORE TIME • Art. 35.16. REASONS FOR CHALLENGE FOR CAUSE • USE YOUR STRIKES ON THOSE THAT HAVE IDENTIFIED THEMSELVES AS HAVING BIAS BUT ALSO THOSE WHO HAVE BEEN REHABED

• Caldwell v. State, 818 S.W.2d 790 (Tex. Crim. App. 1991) – GET MORE TIME • HAVE THROW DOWN BACK UP QUESTIONS WRITTEN DOWN

• REQUEST FOR MORE STRIKES • USE YOUR STRIKES ON JURORS DENIED ON YOUR CAUSE MOTION • APPROACH, REQUEST FOR MORE STRIKES • OBJECT TO JURY – SPECIFY JURORS

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PART 8: ANALYZE THE DATA • ADD UP ALL THE SCORES – ELIMINATE THE HIGHEST • LOW SCORES RULE THE DAY

• WATCH THE “DISAGREES” • IDENTIFY • VICITMS • COPS • WRONGFULLY ACCUSED • FOREPERSON

• CREATE JURY PROFILE

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IMPORTANT PRESENTATION TIPS • PROPS • STAGE, POSITIONING, AND TEAM WORK • CLOTHES • DIRECTION • CLIENT POSITIONING • BODY LANGUAGE • DIRECTION • END WITH MOMENTUM • IDENTIFY THOSE SIMILAR TO YOUR CLIENT

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PRO TIPS • LOOP THEORY - MARK BENNET • BRD – Empower • INSTANT RAPPORT by Michael Brooks • Audial • Visual • Olfactory • Emotional

• CROSS EXAMINATION

• WHAT YOU DON’T KNOW • WHAT YOU DIDN’T SEE • WHAT YOU DIDN’T HEAR

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J. Julio Vela Attorney 713-890-2555 VELA.LAW

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Texas Criminal Defense Lawyers Association

21st Annual Top Gun DWI August 11, 2023 The Whitehall Houston, Texas

Opening & Closing Arguments: Starting & Ending with Your Theme

Speaker:

Jed Silverman

The Law Offices of Jed Silverman 1221 Studewood St Houston, TX 77008 713.226.8800 phone 713.222.7424 fax jed@jedsilverman.com email https://www.jedsilverman.com/ website

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

7/18/2023

Opening Statements

By Jed Silverman, Esq.

Format • Opening paragraph.

• Summary based on theme.

• Summarize to reinforce theme.

• Conclusion.

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Themes • The jury should know what your theme early on.

• It should contain words or phrases easy to remember.

• Start and end with it.

• If possible, use witness statements: EX: DWI – Officer states on body cam “He looks tired.”

Concept of Primacy and Recency • Primacy suggests what is heard first is likely to be believed.

• Recency suggests what is heard last is easiest to remember.

• Use these concepts to deliver important introductory and final remarks.

• Utilize the points from this in your theme.

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Avoid the following in the opening: • Do not waste the important few minutes on thanking the jurors for their service or making lengthy introductions.

• Do not say you will be brief. That is subjective. If you are not brief you will lose credibility.

• Do not address the panel with “ladies and gentlemen”. In these times pronouns are an issue. Do not alienate jury members.

• Do not label your client’s position as “a story”.

• Do not remind the jury what you are saying is not evidence.

Do not argue law • United States v. Anthony, 345 F. App’x 459, 464 (11th Cir. 2009) (citing United States v. Freeman, 514 F.2d 1184, 1192 (10th Cir. 1975) (“An opening statement gives counsel the opportunity to state what evidence will be presented in order to make it easier for the jurors to understand what is to follow, and is not an occasion for argument. . . . )

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Opening Paragraph • Jurors pay special attention to the start of an opening.

• Briefly introduce the client to put a face to your story.

• The first paragraph should catch their attention.

• The jury should understand what the case is about by the end of it.

• Mueller case opening sentence: “What the prosecution asks you to believe, is that Fred Mueller went from this, to a Homicidal Maniac, within seconds.”

• Remind panel of burden of proof.

Summary • Opening should order important facts to support the theme.

• Describe logically what happened.

• Chronological order is easier to follow – make the story linear.

• Only reference witnesses and evidence which are vital and that stand out.

• Do not reference more than 3 witnesses or pieces of evidence.

• After the theme, tie it in to present case favorable to client.

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Bad Facts • Don’t hide from them. Be strategic in addressing them.

• Explain them in one or two sentences. Give logical context to them.

• Consider State’s perspective when addressing the bad facts.

• This will aid in your credibility.

Summary to Reinforce Theme • Summarize the points you made.

• Not necessary to replay bad facts.

• This is a shorter version of the summary but keeps your theme.

• Ex: Accident DWI but client was on his phone.

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Conclusion • Remind jury of case’s theme.

• Remind panel of burden of proof.

• Tell the jury what is expected when the case concludes.

Behavior • Make eye contact.

• Show that you believe in the case without being overly dramatic.

• Speak directly and persuasively.

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Texas Criminal Defense Lawyers Association

21st Annual Top Gun DWI August 11, 2023 The Whitehall Houston, Texas

10 Silver Bullet Trial Tactics in a DWI Case

Speaker:

Todd Overstreet

The Law Office of Todd Overstreet, P.C. 5300 Memorial Dr Ste 750 Houston, TX 77007 713.222.0600 phone 713.222.0647 fax ctolawyer@sbcglobal.net email https://www.toddoverstreetlaw.com/home website

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

10 Silver Bullet Trial Tactics in a DWI Case The Art of Legal War

Todd Overstreet Lawyer Top Gun Seminar: August 11th, 2023

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Sun Tzu, in his well known military treatise The Art of War, cautioned against repeating battle strategies, even if they worked in the past. He warned and advised, “Do not repeat the tactics which have gained you one victory, but let your methods be regulated by the in inite variety of circumstances.” Written roughly around the 5th century BC, it appears to be an early and valuable proclamation of what we know all too well as lawyers…EVERY CASE AND/OR CLIENT IS DIFFERENT! That said, there are some ‘tried-and-true’ trial tactics that myself and other trial lawyers have developed, borrowed or out right stolen, and then used against the State and their witnesses to get ‘Not Guilty’ verdicts. So let’s get started…

BULLET ONE: MOTIONS IN LIMINE I will not and cannot say the name of the elected District Attorney or the County, but when I irst left the United States Attorney’s O ice and teamed up with Gary Trichter and Doug Murphy, I iled a slew of motions from Gary’s CRAMAZING ‘motions bank’ for an upcoming trial. I admittedly went a little overboard, but iling motions was a foreign concept for me as a former State and Federal Prosecutor.

This was back during the time you had to print your Motions out, sign and get notarized (i.e., client a idavits for Motions to Suppress), and then head up to the courthouse and wait in line to ile them with the Clerk. For this particular case, my motions looked more like I had photocopied two entire volumes of South Western Reporters and turned them into the Court, as I’m pretty sure I was charged by the pound. About a week before the trial, I called the DA’s O ice to talk to the assigned prosecutor and was told the case was dismissed. Given some of the bad facts with the case - airline pilot client involved in car crash who was an absolute jerk to the DPS Trooper - I was more than shocked and asked, “Why?” The prosecutor, with very little hesitancy or regret said, “I got your Motions and it was too much to read.”

And so it began…

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It goes without saying, every e ective lawyer will (or should) ile motions to suppress physical evidence or statements harmful to their clients. But in DWI cases speci ically, I always ile Motions in Limine against the State and/or their witnesses to be heard either before jury selection or the State’s case-in-chief. Even if I don’t prevail in restricting them from asking certain questions or keep out potentially harmful testimony, it ALWAYS lushes them out! I learn more about what’s to come and how to adapt than at any other ‘Pre-Trial’ phase of the case.

Always follow the current law and PLEASE be creative, but here are a few of my favorites: *Motion in Limine to Prevent the State during Voir Dire from Inaccurately Stating the Applicability of Chapter(s) 524 & 724 of the Texas Transportation Code;

*Motion in Limine to Prevent the State from the Improper use of Commitment Questions during Voir Dire (regarding Per se Intoxication / lack of breath or blood test evidence / etc.);

*Motion in Limine to Prevent the State’s Witness(es) from Improper Correlation of Field Testing with BAC.

BULLET TWO: Standefer COMMITMENT QUESTIONS We’ve all heard and were taught that ‘knowledge is power,’ but I like the concept authored by Warlord - Samurai Takeda Shingen a lot better, “Knowledge is not power, it is only potential. Applying that knowledge is power. Understanding why and when to apply that knowledge is wisdom!” From watching and participating in countless criminal ‘voir dire(s)’, I think this is particularly true with

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the use of PROPER commitment questions, as well as understanding when they are improper.

Perhaps the most referenced and cited case on the propriety of commitment questions is Standefer v. State, 59 S.W.3d 177 (2001). Read it, re-read it and keep a copy handy for trial, along with it’s subsequent analysis history. The main thing to remember about commitment questions, though, are that a proper use of them gets the jury talking and can make the di erence on getting the right jury for your client’s case. For example, in Tijerina v. State, 202 S.W.3d 299 (206), the Defendant was a convicted felon and likely wanted to testify. Defense Counsel, in order to ascertain upfront whether his client would get proper and ‘unbiased’ consideration by the jury during the trial, asked the panel the following question: "Is there anybody here who feels that you would automatically disbelieve somebody simply because they are a convicted felon, be they a witness, a police o icer, a defendant, anybody?”

The Court of Appeals concluded that the question was a commitment question, properly asked and used to determine if any of the jurors had an ‘automatic predisposition’ to disbelieve a witness (his client) who was a convicted felon. Point is, knowing this area of the law better than the State or Court, and then applying it to the potential problems with your case during jury selection, will get the jurors talking and will allow you to obtain the wisdom needed to pick a good jury.

BULLET THREE: ATTITUDE Yes, ‘Attitude’ is a Silver Bullet! Obviously you need to be prepared for your trial and research and analyze all possible strengths and witnesses, but like it or not you are being judged and measured by the jury the irst moment they walk into the

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room…similar to your client(s). So what are you doing behind the scenes to mentally prepare yourself to exude an ‘attitude’ of con idence, control of the courtroom and trustworthiness? I’m not the best at asking for advice or assistance, but I do love to read. So here are a few books that I recommend that have helped me address personal and professional self-con idence concerns, bene iting my ‘attitude’ during trial and connection with jurors: *Presence: Bringing Your Boldest Self to Your Biggest Challenges, by Amy Cuddy; *You are a Badass: How to Stop Doubting Your Greatness and Start Living an Awesome Life, by Jen Sincero; and *The Con idence Gap: A Guide to Overcoming Fear and Self-Doubt, by Russ Harris.

Speaking of books, ‘attitude’ and connecting with juries… I always bring a book I’m reading (purportedly) and put it near my stu on the table for the jury to see. The e ects of this subtlety were accidental, but profound. While trying a case in Rusk, Texas, I was actually reading a book about Ronald Reagan. The judge was incredibly confrontational towards me and equally ine icient, so we took lots of breaks. During one of the longer breaks I started reading my book, and when the judge brought the jury out to ask if they wanted to continue or pick back up the following day, the book was on the table right in front of jury. You may laugh, but up to that point I was a pariah. When they saw that book near my trial ile their entire ‘attitude’ towards me changed. After the trial, the irst words the foreman said to me were, “I’m reading that same book…and we love Ronald Reagan (around here).” I’ve had a ‘place and topic’ appropriate book near me at trial ever since.

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BULLET FOUR: 38. 23 VOIR DIRE “I never assume…it only makes an ASS out of U and ME.” So, in the abundance of caution that the reader is unfamiliar with Article 38.23 of the Texas Code of Criminal Procedure, here’s what it states: “No evidence obtained by an o icer 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.”

It’s a mouthful, sure… But given the fact that nearly every DWI trial involves litigation over the stop, the admissibly of certain statements and test results, questions regarding the exclusionary aspects of Art. 38.23 can be a good tactic for eliminating “State’s Juror(s)” and/or developing a rapport with venire members you may want to keep. Here’s an example: “Juror No. 7, based upon your response to the Prosecutor’s questions about breath and blood testing, it appears to me that’s the type of evidence that would carry a lot of weight with you…is that correct?

What if the evidence at trial raised an issue that the blood sample which was later tested - was obtained by the O icer illegally?…What e ect, if any, would that have on the weight you would give it?”

“Juror No. 8, If you believed that the evidence (blood sample) was obtained illegally, could you follow the law and the Judge’s instructions to disregard it?

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BULLET FIVE: DISCONNECT I started using this tactic early on in my defense practice, as it just made sense. The theory of ‘Disconnect’ is based upon the principal that most people place more faith in what they see, versus what they hear and are told to believe. As applied to DWI cases, this would be situations wherein the jury sees a Defendant who looks and/or sounds normal (not intoxicated), but has a high BAC. The juror(s) suspicions are then compounded when the State’s Expert testi ies that this same Defendant would have to have consumed some ‘crazy amount’ of alcohol - like 8 to 10 drinks - to achieve the sample result. If set up during Voir Dire, and then hammered home during cross-examination of the State’s witnesses, it can be an incredibly successfully DWI Defense tactic.

I ran track in college, so during Voir Dire I like to use examples wherein it would have been physically impossible for a particular individual to have run some absurdly fast time or distance, though we are being told otherwise. For instance: “Juror No. 10, Are you aware that the fastest time in the 100m dash and Men’s World Record is 9.58 seconds?” I will then show them a photo of some celebrity like Hal Smith, who played Otis Campbell on The Andy Gri ith Show, and gauge their reaction.

These are not ‘cause questions’ and are used solely to set the stage to later attack the State’s absurd position that their BAC results are infallible, so use your time during Voir Dire valuably. Also, you need to make sure you have your follow up cross-examination questions prepared to create the record that you can ultimately use in closing. Lastly, make sure you a well-read and versed on the various scienti ic studies and articles discussing the documented e ects of alcohol on the human body, as this is a unique opportunity to use their own science against them (I.e., Garriott’s Medico-Legal Aspects of Alcohol (5th or 6th edition).

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BULLET SIX: OPENING ARGUMENTS / STATEMENT Why do I feel like whenever I hear a Defense lawyer stand up and tell the Judge, and thus the Jury, that they want to wait to give an opening statement during their case-in-chief that it really just means they aren’t prepared? That has to be the only logical conclusion, given that it is the only time during the trial that the Defense gets to take it’s irst shot and have the last word. I’m not going to cover how to do one, but rather strongly suggest you incorporate a strong opening as a Defense tactic. That said, one of the constants in my openings are references to favorable discussions with the jury during Voir Dire. For example: “One of the things we talked about, and you agreed with during Voir Dire, is the value of reliable and credible records kept by police o icers. The evidence will show that O icer Smith iled a police report the day after Mr. Jones was arrested. O icer Smith will admit that there in no documented evidence that Mr. Jones displayed slurred speech during their initial conversation, nor did he display any signs of physical loss prior to the road tests.”

This tactic not only begins the dialogue of exposing an ine ectual investigation and improper arrest, but hopefully solidi ies that connection they have with you and your client.

BULLET SEVEN: WITNESS CONTROL If the irst shot in the battle is your opening, then being prepared to control the State’s witnesses has to be your next move and tactic. In order to do this, you need to know your opponent and increase your knowledge and e ective use of the rules of evidence.

Let’s start with witnesses, which are mostly police o icers. For better or worse, gone are the days when roughly half of the o icers showed up at ALR Hearings,

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giving you an opportunity to question them and learn how they testify. Now I dare say it’s 10% of the time. But you can still get a pretty good idea about how an o icer is going to be on the stand by reading their reports and watching their body-cams. If they are condescending to your client, then good chance they are going to act like that when testifying. If they are bumbling and fumbling with basic investigative tools, then it’s more likely than not that they will be just as ill-prepared and weak at trial. Additionally, if they are including in their reports the ‘word for word’ language from NHTSA regarding how they administered the ield tests, then watch out, you’re certain to have a ‘know-it-all’ at trial that is going to attempt to run way past the question(s) asked. So, take these cues, study their methods and be prepared to use the Rules of Evidence to control them. I know most lawyers don’t want to be viewed as the jerk who is constantly standing up and objecting and disrupting the low, but if you don’t get ahold of it early it will kill your client in the end. Now to the rules…

I will admit, I too don’t spend as much time as I should re-familiarizing myself with the Rules of Evidence. I mean, I’ve tried a lot of cases and I know them…right?

Wrong! Trials are happening every day all over this city, county, State, and country.

Witnesses are testifying and lawyers are making objections…or not. Even more importantly, Courts are rendering legal opinions regarding the Rules of Evidence and their applicability during trials, often to the great detriment of criminal defendants. So, let’s all make a more concerted e ort to study these incredibly valuable trial tools. Here are a few: *401-402 / Relevance *403 / Exclusionary *404 / Character *608 / Character for Truthfulness *609 / Impeachment

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*611 / Mode of Examining Witnesses *801-803 / Hearsay *901 / Authentication of Evidence.

BULLET EIGHT: TIME MANAGEMENT Yes, just like ‘Attitude’, how you “manage the clock” is a valuable trial tactic! If you don’t believe me, then wait until a Judge excoriates you in front of the Jury for wasting time. It can be a death blow. Remember, as a Criminal Lawyer, you too are often being judged and tried along with your client. From my experience, it’s typically during cross-examination where the anxiety to “wrap it up” increases.

The best way to fend this o and rise above the pressure is to know exactly what you MUST HAVE out of each witness. This applies to direct and crossexamination. Though sometimes you may not achieve the goal, the precision of your methods and questions will make sense to the Judge and Jury. I do this by asking myself during trial preparation the simple questions of “How can I win this case?”…and then if it appears we should win or are winning, “How can I lose?” For example, let’s say I have a case with a really bad video. I do not need to waste time on the o icer’s knowledge of the overall testing protocol and NHTSA, as any laymen / non-o icer can see that something is not normal with my client. Rather, I need to hone in and focus my questions on the areas and moments wherein my client performed well, or the problems with the testing area, or the e ects of other factors like fatigue, physical limitations of the client and/or nervousness. If it don’t stick to these possible ‘win’ answers, then I’m just wasting time and, worse, potentially losing credibility with the Jury. Same is true for cases wherein the facts and evidence are in your favor. In those instances, do you really need to waste time pressing the o icer to say your client “passed” the test? The jury can clearly see this is the case. Plus, you run the risk of coming across as a pompous jerk and

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losing trustworthiness. Lastly, and I know this may sound sacrilege given the current cost of law school, but there are times when you don’t need to ask a single question. I, too, know the story of the famous lawyer who crossed the Records Custodian for 3 days…but please resist the temptation if they cannot hurt you!!!.

BULLET NINE: 15 MINUTE OBSERVATION PERIOD Since more and more cases involve the admission of breath and blood test results, I would be remiss in not adding the ’15 Minute Observation Period’ on the list of DWI Defense tactics. Here’s the basics…

DPS Testing Regulations (Operators Manual), as well as the Texas Administrative Code, require that the operator remain in the “continuous presence of the subject at least 15 minutes” before the test is conducted. This is to ensure nothing is placed in the subject’s mouth and/or that nothing happens that could compromise the accuracy of the results (i.e., residual mouth alcohol). Though ‘direct observation’ is not required, proof of compliance with this protocol is still a precondition to admissibility pursuant to testing regulations and Texas case law, and thus subject to attack upon a showing of non-compliance (See above, Art. 38.23). The failure to comply could also give rise to an attack under Kelly - 3rd Prong - as a violation of the requirement that the technique applying the (scienti ic) theory must have been properly applied on the occasion in question.

Obviously, then, your cross-examination questions need to be narrowly tailored to lock down the time of your client’s actual observation period, versus the time testi ied by the o icer. This is done by using the police and/or accident report(s), video(s), dispatch records, mobile data terminal (MDT) records, and the breath testing records. If a ‘gap’ or inaccuracy is established, then the results can be suppressed or provide the basis for a ’38.23’ charge. Note, there are quite a few cases on this topic, so read them before the trial if you are going to rely on this

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tactic. They will provide incredible assistance in fashioning your questions to get the answers you need, as well as help you preserve the record for a future appeal [See, Alvarez v. State, 571 S.W.3d 435 (2019)].

BULLET TEN: “GIVE ME BACK MY SON!” Mel Gibson may have said this best in his 1996 ilm, Ransom. “Give me back my son!” Isn’t that what we are really asking? Think of how long it takes to get to trial these days. Add that time to the cost of an Attorney, courthouse parking, and the absurd costs incurred by our clients with bond conditions. In fact, the most common phrase I hear from clients - whether their cases are triable or not - is that they, “just want this over with.” The emotional and inancial toll on DWI Defendants these days is REAL. So, use this to your advantage during closing! The State will stand up there with a straight face and talk about the need for crime prevention and sending a message to the community, but is that really even applicable to a Defendant who has waited almost 2 years or more for his/her trial and has paid an interlock company over $60 a month for service and fees? Hell no!

Craft your own way(s) of doing this, but do not shy away from the tactic of highlighting the e ect the case has had on your client. Remember, they haven’t been running from anything, as the State always seems to intimate. They have been accountable and ‘not guilty’ since the moment they were pulled over, arrested, and made bond. Frankly, one could and should argue that they have been waiting for this moment the ENTIRE time! If done correctly and with emotion, I believe this plea empowers the jury to do the very things they wore sworn to accomplish: Uphold the constitutional requirement of Presumption of Innocence, stand against the State to ensure Proof beyond all Reasonable Doubt, and render a True verdict!

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God Speed and Courage!

Todd Overstreet

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Texas Criminal Defense Lawyers Association

21st Annual Top Gun DWI August 11, 2023 The Whitehall Houston, Texas

Ethical Advertising

Speaker:

Brent Mayr

Mayr Law, P.C. 5300 Memorial Dr Ste 750 Houston, TX 77007-8228 713.808.9613 Phone 713.808.9991 Fax bmayr@mayr-law.com Email www.mayr-law.com Website

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

Changes to the Advertising Rules and What Criminal Defense Lawyers Need to Know

By Brent Mayr “Dallas DWI Defense, P.L.L.C.” No problem.

Want to give a gift card to your accountant for referring you a client and not worry about the State Bar coming after you? No sweat.

Thinking about posting a video to your social media page reminding viewers they can “politely” invoke their right to remain silent but wondering if you have to submit it to the State Bar for approval? Worry no longer.

These are just a few of the changes that were made to the Texas Disciplinary Rules of Professional Conduct that, although made over a year ago, many criminal defense lawyers are still unaware of. Even more concerning is that some criminal defense lawyers, especially those new to the practice of law, are entirely unaware of the ethical limitations on what they can do and say to promote themselves and let others know about the services they offer.

Now is the time to sit down, earn yourself a quarter hour of self-study ethics credit (one of your three required ethics hours can be self-study), and read up on the new and entirely revised rules on Lawyer Advertising and Solicitation of Business found in Part VII of the Rules. The new and improved rules are meant to simplify, modernize, and clarify the rules, moving us from the old days of Yellow Book advertising to the present and future use of websites, social media, and other new technology used to communicate with one another. More importantly, they set out important rules that all criminal defense lawyers need to be aware of in how they promote themselves and bring clients into their offices — virtual or otherwise.

From the outset, one of the biggest changes to recognize comes from the decision to make a distinction between ordinary communications, “advertisements,” and “solicitation communications.” The latter two are, by definition, “substantially motivated by pecuniary gain” and thus subject to multiple rules and requirements. In the past, there was concern and confusion about something as simple as a new office announcement being subject to those requirements.

There were also concerns about lawyers who promoted various forms of non-profit legal services, such as legal aid for the poor. By making the new distinction, lawyers who, for instance, post a comment to social media or promote services not seeking “pecuniary gain,” no longer must worry about complying with disclosure and filing requirements that are applicable to advertisements and solicitation communications.

What remains the same — and is still the most important of the rules — is that any communication about a lawyer’s services cannot be false or misleading or contain any statement that is false or misleading.

This rule, which is rooted in Supreme Court precedent protecting First Amendment rights, is what ultimately gave way to another big change involving law firm names. While in the past, lawyers could only use their name or the names of lawyers who practiced in a firm together as part of their advertised name, with the recent amendments, Texas became the last state in the country to prohibit the use of trade names. Hence, if a lawyer in Dallas whose practice focus is

on DWI cases wanted to rename their firm, “Dallas DWI Defense, P.L.L.C.,” such a name is now permissible. Like with everything else, the name cannot be false or misleading.

As for advertisements themselves, they get their own, new rule: Rule 7.02. While most of the requirements of the rule come from the previous rule dealing with advertisements (old Rule 7.04), it is still worth taking a look at the new rule. What most criminal defense lawyers will immediately recognize is that the rule appears to be geared primarily toward the area of the law where advertising plays a prominent role — personal injury law. The rule nevertheless applies to all areas of the law and any criminal defense lawyer producing an advertisement or solicitation communication needs to make sure it complies with this new rule.

One part of the rule that criminal defense lawyers need to pay particular attention to are the limitations of promoting oneself as a criminal defense lawyer in advertisements or solicitation communication. Like before, the new rule allows lawyers to communicate that they practice in a particular area, however, it continues to mandate that a lawyer may “not include a statement that the lawyer has been certified or designated by an organization as possessing special competence or a statement that the lawyer is a member of an organization the name of which implies that its members possess special competence.” The only exceptions for this under the rule are for lawyers that are board certified by the Texas Board of Legal Specialization or members of an organization that has been accredited by the Texas Board of Legal Specialization. Presently, the only organization that meets that criteria relevant to criminal defense lawyers is the National College of DUI Defense, Inc. So what about the host of other lists and organizations that constantly solicit lawyers to be added to their ranks like Super Lawyers, Best Lawyers in America, and countless others? While Texas has not taken on this issue, other states that have considered this issue have issued various, partly inconsistent opinions.1 The American Bar Association attempted to weigh in on the topic but decided that doing so was not necessary and could raise other practical and ethical issues.2 While there is no clear answer on the topic, criminal defense lawyers should be mindful of a few things.

First, the most important of the rules still apply: the statement or inclusion on a list or as part of an organization or receipt of an award should not be false and misleading. For instance, one can state they were selected to “Super Lawyers” but cannot promote themselves as a “Super Lawyer.” Second, one should consider the overall validity of the ranking or rating entity. For instance, if the organization appears to make some inquiry into an lawyer’s qualifications or fitness and includes a plain language description of the standard or methodology for the ranking or rating, that might pass muster as opposed to another organization that simply solicits a fee to be included on their “list.” In short, criminal defense lawyers should exercise caution about referencing these entities and the award they offer. After the rule amendments went into effect, the Federal Trade Commission weighed in to warn consumers about lawyers’ inclusion on lists

See Roy Simon, “ABA Studies ‘Super,’ ‘Best,’ and Other Lawyer Rankings (Part II),” NEW YORK PROFESSIONAL RESPONSIBILITY REPORT, October 2011 (available at http://www.newyorklegalethics.com/aba-studies-super-bestand-other-lawyer-rankings-part-ii/) (discussing survey of ethics opinions from around the country).

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See American Bar Assoc. Commission on Ethics 20/20, Informational Report to the House of Delegates at 14–15 (available at https://www.americanbar.org/content/dam/aba/administrative/ethics_2020/rankings_2011_hod_annual_ meeting_informational_report.pdf).

or as having received certain awards or recognitions that promote themselves as among the best in their field.3 Moving to solicitation and other prohibited communications, the new rule, Rule 7.03, still prohibits in-person solicitation of new clients but also now prohibits “telephone, social media, or electronic communication initiated by a lawyer that involves communication in a live or electronically interactive manner.”

The rule, however, allows communications with “(1) another lawyer; (2) a person who has a family, close personal, or prior business or professional relationship with the lawyer; or (3) a person who is known by the lawyer to be an experienced user of the type of legal services involved for business matters” to solicit business. And, while the rule continues to prohibit paying or giving anything of value to another person for soliciting or referring prospective clients, an exception was added for “nominal gifts given as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.”

The final major rule change involves the filing requirements for advertisements and solicitation communications. While most advertisements and solicitation communications still must be submitted to the State Bar for approval, the new rule creates a number of exemptions. The most noteworthy change for criminal defense lawyers applies to websites. Under the new rule, “information and links posted on a law firm website, except the contents of the website homepage,” are exempt from the filing requirements of Rule 7.04, as well as “an announcement card stating new or changed associations, new offices, or similar changes relating to a lawyer or law firm, or a business card.” As for posting on social media and other sources, also exempt from filing is a communication “which does not expressly offer legal services, and that: (1) is primarily informational, educational, political, or artistic in nature, or made for entertainment purposes; or (2) consists primarily of the type of information commonly found on the professional resumes of lawyers.”

Whether your practice is as simple as putting your name on an office door and having a simple website, or as complex as spending thousands of dollars of month to drive in web traffic and phone calls, all criminal defense lawyers should familiarize themselves with these rules and make sure that they and anyone producing any sort of communication promoting their legal services are familiar with them.

Brent Mayr is the managing shareholder of Mayr Law, P.C. based in Houston. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization, a former briefing attorney to Judge Barbara Hervey on the Texas Court of Criminal Appeals, and a former Assistant District Attorney for the Harris County District Attorney’s Office. He is presently co-chair of the TCDLA Ethics Committee and a member of the Board of Directors of the Harris County Criminal Lawyers Association. And, yes, he has been named to the Texas Super Lawyers list in Criminal Defense every year since 2014.

Emily Wu, “Look beyond the award when you hire a lawyer,” Federal Trade Commission, Consumer Alert, Dec. 16, 2021 (available at https://consumer.ftc.gov/consumer-alerts/2021/12/look-beyond-award-when-you-hirelawyer).

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VII. INFORMATION ABOUT LEGAL SERVICES Rule 7.01. Communications Concerning a Lawyer’s Services (a) A lawyer shall not make or sponsor a false or misleading communication about the qualifications or services of a lawyer or law firm. Information about legal services must be truthful and nondeceptive. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. A statement is misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation, or if the statement is substantially likely to create unjustified expectations about the results the lawyer can achieve. (b) This Rule governs all communications about a lawyer’s services, including advertisements and solicitation communications. For purposes of Rules 7.01 to 7.06: (1) An “advertisement” is a communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to members of the public in general, which offers or promotes legal services under circumstances where the lawyer neither knows nor reasonably should know that the recipients need legal services in particular matters.

(2) A “solicitation communication” is a communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to a specific person who has not sought the lawyer’s advice or services, which reasonably can be understood as offering to provide legal services that the lawyer knows or reasonably should know the person needs in a particular matter. (c) Lawyers may practice law under a trade name that is not false or misleading. A law firm name may include the names of current members of the firm and of deceased or retired members of the firm, or of a predecessor firm, if there has been a succession in the firm identity. The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm. A law firm with an office in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. (d) A statement or disclaimer required by these Rules shall be sufficiently clear that it can reasonably be understood by an ordinary person and made in each language used in the communication. A statement that a language is spoken or understood does not require a statement or disclaimer in that language. (e) A lawyer shall not state or imply that the lawyer can achieve results in the representation by unlawful use of violence or means that violate these Rules or other law. (f) A lawyer may state or imply that the lawyer practices in a partnership or other business entity only when that is accurate. (g) If a lawyer who advertises the amount of a verdict secured on behalf of a client knows that the verdict was later reduced or reversed, or that the case was settled for a lesser amount, the lawyer must state in each advertisement of the verdict, with equal or greater prominence, the amount of money that was ultimately received by the client.

Comment: 1. This Rule governs all communications about a lawyer’s services, including firm names, letterhead, and professional designations. Whatever means are used to make known a lawyer’s services, statements about them must be truthful and not misleading. As subsequent provisions make clear, some rules apply only to “advertisements” or “solicitation communications.” A statement about a lawyer’s services falls within those categories only if it was “substantially motivated by pecuniary gain,” which means that pecuniary gain was a substantial factor in the making of the statement.

Misleading Truthful Statements 2. Misleading truthful statements are prohibited by this Rule. For example, a truthful statement is misleading if presented in a way that creates a substantial likelihood that a reasonable person would believe the lawyer’s communication requires that person to take further action when, in fact, no action is required.

Use of Actors 3. The use of an actor to portray a lawyer in a commercial is misleading if there is a substantial likelihood that a reasonable person will conclude that the actor is the lawyer who is offering to provide legal services. Whether a disclaimer—such as a statement that the depiction is a “dramatization” or shows an “actor portraying a lawyer”—is sufficient to make the use of an actor not misleading depends on a careful assessment of the relevant facts and circumstances, including whether the disclaimer is conspicuous and clear. Similar issues arise with respect to actors portraying clients in commercials. Such a communication is misleading if there is a substantial likelihood that a reasonable person will reach erroneous conclusions based on the dramatization.

Intent to Refer Prospective Clients to Another Firm 4. A communication offering legal services is misleading if, at the time a lawyer makes the communication, the lawyer knows or reasonably should know, but fails to disclose, that a prospective client responding to the communication is likely to be referred to a lawyer in another firm.

Unjustified Expectations 5. A communication is misleading if there is a substantial likelihood that it will create unjustified expectations on the part of prospective clients about the results that can be achieved. A communication that truthfully reports results obtained by a lawyer on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case. Depending on the facts and circumstances, the inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to mislead the public.

Required Statements and Disclaimers 6. A statement or disclaimer required by these Rules must be presented clearly and conspicuously such that it is likely to be noticed and reasonably understood by an ordinary person. In radio, television, and Internet advertisements, verbal statements must be spoken in a manner that their content is easily intelligible, and written statements must appear in a size and font, and for a sufficient length of time, that a viewer can easily see and read the statements.

Unsubstantiated Claims and Comparisons 7. An unsubstantiated claim about a lawyer’s or law firm’s services or fees, or an unsubstantiated comparison of the lawyer’s or law firm’s services or fees with those of other lawyers or law firms, may be misleading if presented with such specificity as to lead a reasonable person to conclude that the comparison or claim can be substantiated.

Public Education Activities 8. As used in these Rules, the terms “advertisement” and “solicitation communication” do not include statements made by a lawyer that are not substantially motivated by pecuniary gain.

Thus, communications which merely inform members of the public about their legal rights and about legal services that are available from public or charitable legal-service organizations, or similar non-profit entities, are permissible, provided they are not misleading.

These types of statements may be made in a variety of ways, including community legal education sessions, know-your-rights brochures, public service announcements on television and radio, billboards, information posted on organizational social media sites, and outreach to low-income groups in the community, such as in migrant labor housing camps, domestic violence shelters, disaster resource centers, and dilapidated apartment complexes.

Web Presence 9. A lawyer or law firm may be designated by a distinctive website address, e-mail address, social media username or comparable professional designation that is not misleading and does not otherwise violate these Rules.

Past Success and Results 10. A communication about legal services may be misleading because it omits an important fact or tells only part of the truth. A lawyer who knows that an advertised verdict was later reduced or reversed, or never collected, or that the case was settled for a lesser amount, must disclose the amount actually received by the client with equal or greater prominence to avoid creating unjustified expectations on the part of potential clients. A lawyer may claim credit for a prior judgement or settlement only if the lawyer played a substantial role in obtaining that result. This standard is satisfied if the lawyer served as lead counsel or was primarily responsible for the settlement. In other cases, whether the standard is met depends on the facts. A lawyer who did not play a substantial role in obtaining an advertised judgment or settlement is subject to discipline for misrepresenting the lawyer’s experience and, in some cases, for creating unjustified expectations about the results the lawyer can achieve.

Related Rules 11. It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.04(a)(3); see also Rule 8.04(a)(5) (prohibiting communications stating or implying an ability to improperly influence a government agency or official).

Rule 7.02. Advertisements (a) An advertisement of legal services shall publish the name of a lawyer who is responsible for the content of the advertisement and identify the lawyer’s primary practice location. (b) A lawyer who advertises may communicate that the lawyer does or does not practice in particular fields of law, but shall not include a statement that the lawyer has been certified or designated by an organization as possessing special competence or a statement that the lawyer is a member of an organization the name of which implies that its members possess special competence, except that: (1) a lawyer who has been awarded a Certificate of Special Competence by the Texas Board of Legal Specialization in the area so advertised, may state with respect to each such area, “Board Certified, area of specialization -- Texas Board of Legal Specialization”; and (2) a lawyer who is a member of an organization the name of which implies that its members possess special competence, or who has been certified or designated by an organization as possessing special competence in a field of practice, may include a factually accurate, non-misleading statement of such membership or certification, but only if that organization has been accredited by the Texas Board of Legal Specialization as a bona fide organization that admits to membership or grants certification only on the basis of published criteria which the Texas Board of Legal Specialization has established as required for such certification. (c) If an advertisement by a lawyer discloses a willingness to render services on a contingent fee basis, the advertisement must state whether the client will be obligated to pay for other expenses, such as the costs of litigation. (d) A lawyer who advertises a specific fee or range of fees for an identified service shall conform to the advertised fee or range of fees for the period during which the advertisement is reasonably expected to be in circulation or otherwise expected to be effective in attracting clients, unless the advertisement specifies a shorter period. However, a lawyer is not bound to conform to the advertised fee or range of fees for a period of more than one year after the date of publication, unless the lawyer has expressly promised to do so.

Comment: 1. These Rules permit the dissemination of information that is not false or misleading about a lawyer’s or law firm’s name, address, e-mail address, website, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language abilities; names of references and, with their consent, names of clients regularly represented; and other similar information that might invite the attention of those seeking legal assistance.

Communications about Fields of Practice 2. Lawyers often benefit from associating with other lawyers for the development of practice areas. Thus, practitioners have established associations, organizations, institutes, councils, and practice groups to promote, discuss, and develop areas of the law, and to advance continuing education and skills development. While such activities are generally encouraged, participating lawyers must refrain from creating or using designations, titles, or certifications which are false or misleading. A lawyer shall not advertise that the lawyer is a member of an organization whose name implies that members possess special competence, unless the organization meets the standards of Rule 7.02(b). Merely stating a designated class of membership, such as Associate, Master, Barrister, Diplomate, or Advocate, does not, in itself, imply special competence violative of these Rules.

3. Paragraph (b) of this Rule permits a lawyer to communicate that the lawyer practices, focuses, or concentrates in particular areas of law. Such communications are subject to the “false and misleading” standard applied by Rule 7.01 to communications concerning a lawyer’s services and must be objectively based on the lawyer’s experience, specialized training, or education in the area of practice.

4. The Patent and Trademark Office has a long-established policy of designating lawyers practicing before the Office. The designation of Admiralty practice also has a long historical tradition associated with maritime commerce and the federal courts. A lawyer’s communications about these practice areas are not prohibited by this Rule.

Certified Specialist 5. This Rule permits a lawyer to state that the lawyer is certified as a specialist in a field of law if such certification is granted by the Texas Board of Legal Specialization or by an organization that applies standards of experience, knowledge and proficiency to ensure that a lawyer’s recognition as a specialist is meaningful and reliable, if the organization is accredited by the Texas Board of Legal Specialization. To ensure that consumers can obtain access to useful information about an organization granting certification, the name of the certifying organization must be included in any communication regarding the certification.

Rule 7.03. Solicitation and Other Prohibited Communications (a) The following definitions apply to this Rule: (1) “Regulated telephone, social media, or other electronic contact” means telephone, social media, or electronic communication initiated by a lawyer, or by a person acting on behalf of a lawyer, that involves communication in a live or electronically interactive manner.

(2) A lawyer “solicits” employment by making a “solicitation communication,” as that term is defined in Rule 7.01(b)(2).

(b) A lawyer shall not solicit through in-person contact, or through regulated telephone, social media, or other electronic contact, professional employment from a non-client, unless the target of the solicitation is: (1) another lawyer; (2) a person who has a family, close personal, or prior business or professional relationship with the lawyer; or (3) a person who is known by the lawyer to be an experienced user of the type of legal services involved for business matters. (c) A lawyer shall not send, deliver, or transmit, or knowingly permit or cause another person to send, deliver, or transmit, a communication that involves coercion, duress, overreaching, intimidation, or undue influence. (d) A lawyer shall not send, deliver, or transmit, or knowingly permit or cause another person to send, deliver, or transmit, a solicitation communication to a prospective client, if: (1) the communication is misleadingly designed to resemble a legal pleading or other legal document; or (2) the communication is not plainly marked or clearly designated an “ADVERTISEMENT” unless the target of the communication is: (i) another lawyer; (ii) a person who has a family, close personal, or prior business or professional relationship with the lawyer; or (iii) a person who is known by the lawyer to be an experienced user of the type of legal services involved for business matters. (e) A lawyer shall not pay, give, or offer to pay or give anything of value to a person not licensed to practice law for soliciting or referring prospective clients for professional employment, except nominal gifts given as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.

(1) This Rule does not prohibit a lawyer from paying reasonable fees for advertising and public relations services or the usual charges of a lawyer referral service that meets the requirements of Texas law.

(2) A lawyer may refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if: (i) the reciprocal referral agreement is not exclusive; (ii) clients are informed of the existence and nature of the agreement; and (iii) the lawyer exercises independent professional judgment in making referrals.

(f) A lawyer shall not, for the purpose of securing employment, pay, give, advance, or offer to pay, give, or advance anything of value to a prospective client, other than actual litigation expenses and other financial assistance permitted by Rule 1.08(d), or ordinary social hospitality of nominal value. (g) This Rule does not prohibit communications authorized by law, such as notice to members of a class in class action litigation.

Comment: Solicitation by Public and Charitable Legal Services Organizations 1. Rule 7.01 provides that a “‘solicitation communication’ is a communication substantially motivated by pecuniary gain.” Therefore, the ban on solicitation imposed by paragraph (b) of this Rule does not apply to the activities of lawyers working for public or charitable legal services organizations.

Communications Directed to the Public or Requested 2. A lawyer’s communication is not a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is made in response to a request for information, including an electronic search for information. The terms “advertisement” and “solicitation communication” are defined in Rule 7.01(b).

The Risk of Overreaching 3. A potential for overreaching exists when a lawyer, seeking pecuniary gain, solicits a person known to be in need of legal services via in-person or regulated telephone, social media, or other electronic contact. These forms of contact subject a person to the private importuning of the trained advocate in a direct interpersonal encounter. The person, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult to fully evaluate all available alternatives with reasoned judgment and appropriate self‑interest in the face of the lawyer’s presence and insistence upon an immediate response.

The situation is fraught with the possibility of undue influence, intimidation, and overreaching.

4. The potential for overreaching that is inherent in in-person or regulated telephone, social media, or other electronic contact justifies their prohibition, since lawyers have alternative means of conveying necessary information. In particular, communications can be sent by regular mail or e-mail, or by other means that do not involve communication in a live or electronically interactive manner. These forms of communications make it possible for the public to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, with minimal risk of overwhelming a person’s judgment.

5. The contents of live person-to-person contact can be disputed and may not be subject to third‑party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.

Targeted Mail Solicitation 6. Regular mail or e-mail targeted to a person that offers to provide legal services that the lawyer knows or reasonably should know the person needs in a particular matter is a solicitation communication within the meaning of Rule 7.01(b)(2), but is not prohibited by subsection (b) of this Rule. Unlike in-person and electronically interactive communication by “regulated telephone, social media, or other electronic contact,” regular mail and e-mail can easily be ignored, set aside, or reconsidered. There is a diminished likelihood of overreaching because no lawyer is physically present and there is evidence in tangible or electronic form of what was communicated. See Shapero v. Kentucky B. Ass’n, 486 U.S. 466 (1988).

Personal, Family, Business, and Professional Relationships 7. There is a substantially reduced likelihood that a lawyer would engage in overreaching against a former client, a person with whom the lawyer has a close personal, family, business or professional relationship, or in situations in which the lawyer is motivated by considerations other than pecuniary gain. Nor is there a serious potential for overreaching when the person contacted is a lawyer or is known to routinely use the type of legal services involved for business purposes. Examples include persons who routinely hire outside counsel to represent an entity; entrepreneurs who regularly engage business, employment law, or intellectual property lawyers; small business proprietors who routinely hire lawyers for lease or contract issues; and other people who routinely retain lawyers for business transactions or formations.

Constitutionally Protected Activities 8. Paragraph (b) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal-service organizations or bona fide political, social, civic, fraternal, employee, or trade organizations whose purposes include providing or recommending legal services to their members or beneficiaries. See In re Primus, 436 U.S. 412 (1978).

Group and Prepaid Legal Services Plans 9. This Rule does not prohibit a lawyer from contacting representatives of organizations or entities that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries, or other third parties. Such communications may provide information about the availability and terms of a plan which the lawyer or lawyer’s firm is willing to offer.

This form of communication is not directed to persons who are seeking legal services for themselves. Rather, it is usually addressed to a fiduciary seeking a supplier of legal services for others, who may, if they choose, become prospective clients of the lawyer. Under these circumstances, the information transmitted is functionally similar to the types of advertisements permitted by these Rules.

Designation as an Advertisement 10. For purposes of paragraph (d)(2) of this Rule, a communication is rebuttably presumed to be “plainly marked or clearly designated an ‘ADVERTISEMENT’” if: (a) in the case of a letter transmitted in an envelope, both the outside of the envelope and the first page of the letter state the word “ADVERTISEMENT” in bold face all-capital letters that are 3/8” high on a uncluttered background; (b) in the case of an e-mail message, the first word in the subject line is “ADVERTISEMENT” in all capital letters; and (c) in the case of a text message or message on social media, the first word in the message is “ADVERTISEMENT” in all capital letters.

Paying Others to Recommend a Lawyer 11. This Rule allows a lawyer to pay for advertising and communications, including the usual costs of printed or online directory listings or advertisements, television and radio airtime, domain-name registrations, sponsorship fees, and group advertising. A lawyer may compensate employees, agents, and vendors who are engaged to provide marketing or client development services, such as publicists, public-relations personnel, business-development staff, television and radio station employees or spokespersons, and website designers.

12. This Rule permits lawyers to give nominal gifts as an expression of appreciation to a person for recommending the lawyer’s services or referring a prospective client. The gift may not be more than a token item as might be given for holidays, or other ordinary social hospitality. A gift is prohibited if offered or given in consideration of any promise, agreement, or understanding that such a gift would be forthcoming or that referrals would be made or encouraged in the future.

13. A lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rule 5.04(a) (division of fees with nonlawyers) and Rule 5.04(c) (nonlawyer interference with the professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.01 (communications concerning a lawyer’s services). To comply with Rule 7.01, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral. See also Rule 5.03 (duties of lawyers and law firms with respect to the conduct of nonlawyers); Rule 8.04(a)(1) (duty to avoid violating the Rules through the acts of another).

Charges of and Referrals by a Legal Services Plan or Lawyer Referral Service 14. A lawyer may pay the usual charges of a legal services plan or a not-for-profit or qualified lawyer referral service. A legal service plan is a prepaid or group legal service plan or a similar delivery system that assists people who seek to secure legal representation. A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service. Qualified referral services are consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements.

15. A lawyer who accepts assignments or referrals from a legal service plan or referrals from a lawyer referral service must act reasonably to assure that the activities of the plan or service are compatible with the lawyer’s professional obligations. Legal service plans and lawyer referral services may communicate with the public, but such communication must be in conformity with these Rules. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead the public to think that it was a lawyer referral service sponsored by a state agency or bar association.

Reciprocal Referral Arrangements 16. A lawyer does not violate paragraph (e) of this Rule by agreeing to refer clients to another lawyer or nonlawyer professional, so long as the reciprocal referral agreement is not exclusive, the client is informed of the referral agreement, and the lawyer exercises independent professional judgment in making the referral. Reciprocal referral agreements should not be of indefinite duration and should be reviewed periodically to determine whether they comply with these Rules. A lawyer should not enter into a reciprocal referral agreement with another lawyer that includes a division of fees without determining that the agreement complies with Rule 1.04(f).

Meals or Entertainment for Prospective Clients 17. This Rule does not prohibit a lawyer from paying for a meal or entertainment for a prospective client that has a nominal value or amounts to ordinary social hospitality.

Rule 7.04. Filing Requirements for Advertisements and Solicitation Communications (a) Except as exempt under Rule 7.05, a lawyer shall file with the Advertising Review Committee, State Bar of Texas, no later than ten (10) days after the date of dissemination of an advertisement of legal services, or ten (10) days after the date of a solicitation communication sent by any means: (1) a copy of the advertisement or solicitation communication (including packaging if applicable) in the form in which it appeared or will appear upon dissemination; (2) a completed lawyer advertising and solicitation communication application; and (3) payment to the State Bar of Texas of a fee authorized by the Board of Directors. (b) If requested by the Advertising Review Committee, a lawyer shall promptly submit information to substantiate statements or representations made or implied in an advertisement or solicitation communication. (c) A lawyer who desires to secure pre-approval of an advertisement or solicitation communication may submit to the Advertising Review Committee, not fewer than thirty (30) days prior to the date of first dissemination, the material specified in paragraph (a), except that in the case of an advertisement or solicitation communication that has not yet been produced, the documentation will consist of a proposed text, production script, or other description, including details about the illustrations, actions, events, scenes, and background sounds that will be depicted. A finding of noncompliance by the Advertising Review Committee is not binding in a disciplinary proceeding or action, but a finding of compliance is binding in favor of the submitting lawyer as to all materials submitted for pre-approval if the lawyer fairly and accurately described the advertisement or solicitation communication that was later produced.

A finding of compliance is admissible evidence if offered by a party.

Comment: 1. The Advertising Review Committee shall report to the appropriate disciplinary authority any lawyer whom, based on filings with the Committee, it reasonably believes disseminated a communication that violates Rules 7.01, 7.02, or 7.03, or otherwise engaged in conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. See Rule 8.03(a).

Multiple Solicitation Communications 2. Paragraph (a) does not require that a lawyer submit a copy of each written solicitation letter a lawyer sends. If the same form letter is sent to several persons, only a representative sample of each form letter, along with a representative sample of the envelopes used to mail the letters, need be filed.

Requests for Additional Information 3. Paragraph (b) does not empower the Advertising Review Committee to seek information from a lawyer to substantiate statements or representations made or implied in communications about legal services that were not substantially motivated by pecuniary gain.

Rule 7.05. Communications Exempt from Filing Requirements The following communications are exempt from the filing requirements of Rule 7.04 unless they fail to comply with Rules 7.01, 7.02, and 7.03: (a) any communication of a bona fide nonprofit legal aid organization that is used to educate members of the public about the law or to promote the availability of free or reduced-fee legal services; (b) information and links posted on a law firm website, except the contents of the website homepage, unless that information is otherwise exempt from filing; (c) a listing or entry in a regularly published law list; (d) an announcement card stating new or changed associations, new offices, or similar changes relating to a lawyer or law firm, or a business card; (e) a professional newsletter in any media that it is sent, delivered, or transmitted only to: (1) existing or former clients; (2) other lawyers or professionals; (3) persons known by the lawyer to be experienced users of the type of legal services involved for business matters; (4) members of a nonprofit organization which has requested that members receive the newsletter; or (5) persons who have asked to receive the newsletter; (f) a solicitation communication directed by a lawyer to: (1) another lawyer; (2) a person who has a family, close personal, or prior business or professional relationship with the lawyer; or (3) a person who is known by the lawyer to be an experienced user of the type of legal services involved for business matters;

(g) a communication in social media or other media, which does not expressly offer legal services, and that: (1) is primarily informational, educational, political, or artistic in nature, or made for entertainment purposes; or (2) consists primarily of the type of information commonly found on the professional resumes of lawyers; (h) an advertisement that: (1) identifies a lawyer or a firm as a contributor or sponsor of a charitable, community, or public interest program, activity, or event; and (2) contains no information about the lawyers or firm other than names of the lawyers or firm or both, location of the law offices, contact information, and the fact of the contribution or sponsorship; (i) communications that contain only the following types of information: (1) the name of the law firm and any lawyer in the law firm, office addresses, electronic addresses, social media names and addresses, telephone numbers, office and telephone service hours, telecopier numbers, and a designation of the profession, such as “attorney,” “lawyer,” “law office,” or “firm;” (2) the areas of law in which lawyers in the firm practice, concentrate, specialize, or intend to practice; (3) the admission of a lawyer in the law firm to the State Bar of Texas or the bar of any court or jurisdiction; (4) the educational background of the lawyer; (5) technical and professional licenses granted by this state and other recognized licensing authorities; (6) foreign language abilities; (7) areas of law in which a lawyer is certified by the Texas Board of Legal Specialization or by an organization that is accredited by the Texas Board of Legal Specialization; (8) identification of prepaid or group legal service plans in which the lawyer participates; (9) the acceptance or nonacceptance of credit cards; (10) fees charged for an initial consultation or routine legal services; (11) identification of a lawyer or a law firm as a contributor or sponsor of a charitable, community, or public interest program, activity or event; (12) any disclosure or statement required by these Rules; and

(13) any other information specified in orders promulgated by the Supreme Court of Texas.

Comment: 1. This Rule exempts certain types of communications from the filing requirements of Rule 7.04. Communications that were not substantially motivated by pecuniary gain do not need to be filed.

Website-Related Filings 2. While the entire website of a lawyer or law firm must be compliant with Rules 7.01 and 7.02, the only material on the website that may need to be filed pursuant to this Rule is the contents of the homepage. However, even a homepage does not need to be filed if the contents of the homepage are exempt from filing under the provisions of this Rule. Under Rule 7.04(c), a lawyer may voluntarily seek pre-approval of any material that is part of the lawyer’s website.

Rule 7.06. Prohibited Employment (a) A lawyer shall not accept or continue employment in a matter when that employment was procured by conduct prohibited by Rules 7.01 through 7.03, 8.04(a)(2), or 8.04(a)(9), engaged in by that lawyer personally or by another person whom the lawyer ordered, encouraged, or knowingly permitted to engage in such conduct. (b) A lawyer shall not accept or continue employment in a matter when the lawyer knows or reasonably should know that employment was procured by conduct prohibited by Rules 7.01 through 7.03, 8.04(a)(2), or 8.04(a)(9), engaged in by another person or entity that is a shareholder, partner, or member of, an associate in, or of counsel to that lawyer’s firm; or by any other person whom the foregoing persons or entities ordered, encouraged, or knowingly permitted to engage in such conduct. (c) A lawyer who has not violated paragraph (a) or (b) in accepting employment in a matter shall not continue employment in that matter once the lawyer knows or reasonably should know that the person procuring the lawyer’s employment in the matter engaged in, or ordered, encouraged, or knowingly permitted another to engage in, conduct prohibited by Rules 7.01 through 7.03, 8.04(a)(2), or 8.04(a)(9) in connection with the matter unless nothing of value is given thereafter in return for that employment.

Comment: 1. This Rule deals with three different situations: personal disqualification, imputed disqualification, and referral-related payments.

Personal Disqualification 2. Paragraph (a) addresses situations where the lawyer in question has violated the specified advertising rules or other provisions dealing with serious crimes and barratry. The Rule makes clear that the offending lawyer cannot accept or continue to provide representation. This prohibition also applies if the lawyer ordered, encouraged, or knowingly permitted another to violate the Rules in question.

Imputed Disqualification 3. Second, paragraph (b) addresses whether other lawyers in a firm can provide representation if a person or entity in the firm has violated the specified advertising rules or other provisions dealing with serious crimes and barratry, or has ordered, encouraged, or knowingly permitted another to engage in such conduct. The Rule clearly indicates that the other lawyers cannot provide representation if they knew or reasonably should have known that the employment was procured by conduct prohibited by the stated Rules. This effectively means that, in such cases, the disqualification that arises from a violation of the advertising rules and other specified provisions is imputed to other members of the firm.

Restriction on Referral-Related Payments 4. Paragraph (c) deals with situations where a lawyer knows or reasonably should know that a case referred to the lawyer or the lawyer’s law firm was procured by violation of the advertising rules or other specified provisions. The Rule makes clear that, even if the lawyer’s conduct did not violate paragraph (a) or (b), the lawyer can continue to provide representation only if the lawyer does not pay anything of value, such as a referral fee, to the person making the referral.

Texas Criminal Defense Lawyers Association

21st Annual Top Gun DWI August 11, 2023 The Whitehall Houston, Texas

Ethical Fees & Agreements Speaker:

Author:

Troy McKinney

Schneider & McKinney, P.C. 5300 Memorial Drive Houston, TX 77007 713.951.9994 phone wtmhousto2@aol.com email https://texascriminaldefenselawyers.com/ website

The Professional Ethics Committee for the State Bar of Texas

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

THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS Opinion No. 611 September 2011

QUESTION PRESENTED Is it permissible under the Texas Disciplinary Rules of Professional Conduct for a lawyer to include in an employment contract an agreement that the amount initially paid by a client with respect to a matter is a “non-refundable retainer” that includes payment for all the lawyer’s services on the matter up to the time of trial?

STATEMENT OF FACTS A lawyer proposes to enter into an employment agreement with a client providing that the client will pay at the outset an amount denominated a “non-refundable retainer” that will cover all services of the lawyer on the matter up to the time of any trial in the matter. The proposed agreement also states that, if a trial is necessary in the matter, the client will be required to pay additional legal fees for services at and after trial. The lawyer proposes to deposit the client’s initial payment in the lawyer’s operating account.

DISCUSSION Rule 1.04(a) of the Texas Disciplinary Rules of Professional Conduct provides that a lawyer shall not enter an arrangement for an illegal or unconscionable fee and that a fee is unconscionable “if a competent lawyer could not form a reasonable belief that the fee is reasonable.” Rule 1.04(b) sets forth certain factors that may be considered, along with any other relevant factors not specifically listed, in determining the reasonableness of a fee for legal services. In the case of a non-refundable retainer, the factor specified in Rule 1.04(b)(2) is of particular relevance: “the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer . . . .”

Rule 1.14 deals in part with a lawyer’s handling of funds belonging in whole or in part to the client and requires that such funds when held by a lawyer be kept in a “trust” or “escrow” account separate from the lawyer’s operating account.

Two prior opinions of this Committee have addressed the relationship between the rules now embodied in Rules 1.04 and 1.14.

In Professional Ethics Committee Opinion 391 (February 1978), this Committee concluded that an advance fee denominated a “non-refundable retainer” belongs entirely -1-

to the lawyer at the time it is received because the fee is earned at the time the fee is received and therefore the non-refundable retainer may be placed in the lawyer’s operating account. Opinion 391 also concluded that an advance fee that represents payment for services not yet rendered and that is therefore refundable belongs at least in part to the client at the time the funds come into the possession of the lawyer and, therefore, the amount paid must be deposited into a separate trust account to comply with the requirements of what is now Rule 1.14(a). Opinion 391 concluded further that, when a client provides to a lawyer one check that represents both a non-refundable retainer and a refundable advance payment, the entire check should be deposited into a trust account and the funds that represent the non-refundable retainer may then be transferred immediately into the lawyer’s operating account.

This Committee addressed non-refundable retainers again in Opinion 431 (June 1986). Opinion 431 concluded that Opinion 391 remained viable and that non-refundable retainers are not inherently unethical “but must be utilized with caution.” Opinion 431 additionally concluded that Opinion 391 was overruled “to the extent that it states that every retainer designated as non-refundable is earned at the time it is received.” Opinion 431 described a non-refundable retainer (sometimes referred to in Opinion 431 as a “true retainer”) in the following terms: “A true [non-refundable] retainer, however, is not a payment for services. It is an advance fee to secure a lawyer's services, and remunerate him for loss of the opportunity to accept other employment. . . . . If the lawyer can substantiate that other employment will probably be lost by obligating himself to represent the client, then the retainer fee should be deemed earned at the moment it is received. If, however, the client discharges the attorney for cause before any opportunities have been lost, or if the attorney withdraws voluntarily, then the attorney should refund an equitable portion of the retainer.”

Thus a non-refundable retainer (as that term is used in this opinion) is not a payment for services but is rather a payment to secure a lawyer’s services and to compensate him for the loss of opportunities for other employment. See also Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736 (Tex. App.-Austin 2007, no pet.).

It is important to note that the Texas Disciplinary Rules of Professional Conduct do not prohibit a lawyer from entering into an agreement with a client that requires the payment of a fixed fee at the beginning of the representation. The Committee also notes that the term “non-refundable retainer,” as commonly used to refer, as in this opinion, to an initial payment solely to secure a lawyer's availability for future services, may be misleading in some circumstances. Opinion 431 recognized in the excerpt quoted above that a retainer solely to secure a lawyer’s future availability, which is fully earned at the time received, would nonetheless have to be refunded at least in part if the lawyer were discharged for cause after receiving the retainer but before he had lost opportunities for other employment or if the lawyer withdrew voluntarily. However, the fact that an amount received by a lawyer as a true non-refundable retainer may later in certain -2-

unusual circumstances have to be at least partially refunded does not negate the fact that such amount has been earned and under the Texas Disciplinary Rules may be deposited in the lawyer’s operating account rather than being subject to a requirement that the amount must be held in a trust or escrow account.

In view of Opinions 391 and 431, the result in this case is clear. A legal fee relating to future services is a non-refundable retainer at the time received only if the fee in its entirety is a reasonable fee to secure the availability of a lawyer’s future services and compensate the lawyer for the preclusion of other employment that results from the acceptance of employment for the client. A non-refundable retainer meeting this standard and agreed to by the client is earned at the time it is received and may be deposited in the lawyer’s operating account. However, any payment for services not yet completed does not meet the strict requirements for a non-refundable retainer (as that term is used in this opinion) and must be deposited in the lawyer’s trust or escrow account. Consequently, it is a violation of the Texas Disciplinary Rules of Professional Conduct for a lawyer to agree with a client that a fee is non-refundable upon receipt, whether or not it is designated a “non-refundable retainer,” if that fee is not in its entirety a reasonable fee solely for the lawyer’s agreement to accept employment in the matter. A lawyer is not permitted to enter into an agreement with a client for a payment that is denominated a “non-refundable retainer” but that includes payment for the provision of future legal services rather than solely for the availability of future services. Such a fee arrangement would not be reasonable under Rule 1.04(a) and (b), and placing the entire payment, which has not been fully earned, in a lawyer’s operating account would violate the requirements of Rule 1.14 to keep funds in a separate trust or escrow account when funds have been received from a client but have not yet been earned.

When considering these issues it is important to keep in mind the purposes behind Rule 1.14. Segregating a client’s funds into a trust or escrow account rather than placing the funds in a lawyer’s operating account will not protect a client from a lawyer who for whatever reason determines intentionally to misuse a client’s funds. Segregating the client’s funds in a trust or escrow account may however protect the client’s funds from the lawyer’s creditors in situations where the lawyer’s assets are less than his liabilities and the lawyer’s assets must be liquidated to attempt to satisfy the lawyer’s liabilities. In those situations, client funds in an escrow or trust account may be protected from the reach of the lawyer’s creditors.

Accordingly, if a lawyer proposes to enter into an agreement with a client to receive an appropriate non-refundable retainer meeting the requirements for such a retainer and also to receive an advance payment for future services (regardless of whether the amount for future services is determined on a time basis, a fixed fee basis, or some other basis appropriate in the circumstances), the non-refundable retainer must be treated separately from the advance payment for services. Only the payment meeting the requirements for a true non-refundable retainer may be so denominated in the agreement with the client and deposited in the lawyer’s operating account. Any advance payment amount not meeting the requirements for a non-refundable retainer must be deposited in a

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trust or escrow account from which amounts may be transferred to the lawyer’s operating account only when earned under the terms of the agreement with the client.

CONCLUSION It is not permissible under the Texas Disciplinary Rules of Professional Conduct for a lawyer to include in an employment contract an agreement that the amount paid by a client with respect to a matter is a “non-refundable retainer” if that amount includes payment for the lawyer’s services on the matter up to the time of trial.

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THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS OPINION NO. 679 September 2018

QUESTION PRESENTED May a lawyer renegotiate his fixed, flat fee for representing a client in litigation after the litigation is underway if the matter turns out to be greater in scope and complexity than the lawyer and client contemplated?

STATEMENT OF FACTS A Texas lawyer and his client agree in writing to a fixed, flat fee for the lawyer to represent the client in litigation. During the representation, the complexity and scope of the matter increase significantly beyond what the lawyer and client contemplated at the start of the engagement. The lawyer now wishes to renegotiate the fee arrangement.

DISCUSSION Rule 1.04 of the Texas Disciplinary Rules of Professional Conduct governs fees.

Flat-fee agreements are not uncommon and are contemplated in the Rule. See Comment 3 to Rule 1.04 (“Historically lawyers have determined what fees to charge by a variety of methods. Commonly employed are percentage fees and contingent fees (which may vary in accordance with the amount at stake or recovered), hourly rates, and flat fee arrangements, or combinations thereof.”).

Rule 1.04 and its comments do not expressly address the propriety of a lawyer’s renegotiating fee agreements after representation has commenced. Texas courts, however, have done so.

In Jampole v. Matthews, 1997 WL 414637 (Tex. App.—Houston [1st Dist.] 1997, no writ), the court summarized Texas law as follows: “An attorney and client may modify the fee agreement during the existence of the attorney-client relationship. However[,] a presumption of unfairness arises, and the attorney has the burden to show the fee modification is fair under the circumstances.” Id. at *10 (discussing Archer v. Griffith, 390 S.W.2d 735, 739 (Tex. 1964) and Robinson v. Garcia, 804 S.W.2d 238, 248 (Tex. 1

App.—Corpus Christi 1991), writ denied per curiam, 817 S.W.2d 59 (Tex. 1991)). This special scrutiny is required because the client is at a disadvantage: Changing lawyers during the representation is burdensome and “[a] client might hesitate to resist or even to suggest changes in new terms proposed by the lawyer, fearing the lawyer’s resentment or believing that the proposals are meant to promote the client’s good.” Restatement (Third) of the Law Governing Lawyers § 18, comment e (2000). Moreover, a lawyer “usually has no justification for failing to reach a contract at the inception of the relationship or pressing need to modify an existing contract during it. The lawyer often has both the opportunity and the sophistication to propose appropriate terms before accepting a matter.” Id. Whether modification of an existing fee agreement is “fair under the circumstances” will depend on several factors. In negotiating an initial fee agreement, Comment 2 to Rule 1.04 discusses the relevance of the length of the relationship between the attorney and client: “When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee. If, however, the basis or rate of fee being charged to a regularly represented client differs from the understanding that has evolved, the lawyer should so advise the client. In a new client-lawyer relationship, an understanding as to the fee should be promptly established. It is not necessary to recite all the factors that underlie the basis of the fee, but only those that are directly involved in its computation. It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed amount or an estimated amount, in order to identify the factors that may be taken into account in finally fixing the fee.”

Similarly, the Committee concludes that longstanding client relationships should be distinguished from new lawyer-client relationships when considering whether the renegotiation of a flat-fee agreement would be “fair under the circumstances.”

Consider, for example, a lawyer who represents a lender. The lawyer and the client have a flat-fee agreement under which the lawyer represents the lender in pursuing collection of delinquent promissory notes. The matters are either resolved by settlement or litigation that usually results in a summary judgment against the borrower. In one matter, however, a borrower and her lawyer file a counterclaim, asserting a class action against the lender for usury and other illegal conduct. The counterclaim alleges a class of hundreds of borrowers, the amount in controversy is enormous, and discovery in the case is expected to include numerous depositions, the exchange of thousands of documents, and require years to complete. In such a situation, neither the lawyer nor the client could 2

reasonably anticipate that the scope of work to be included in the flat-fee agreement would be so grossly underestimated.

Furthermore, based upon the history of their relationship, neither the lawyer nor the client expected that the lawyer’s flat fee would include any work except pursuing delinquent accounts. Renegotiating the fee would therefore be “fair under the circumstances.”

On the other hand, modifying a fee agreement would likely be inappropriate in a situation like this: A lawyer agrees to represent a new client who was terminated from her employment and then went to work for her former employer’s competitor. Based upon the facts disclosed by and discussed with the client, the lawyer concludes that the client has a basis for pursuing a claim for wrongful termination. The lawyer agrees to represent the client in bringing such claim for a fixed, flat fee. After filing suit on the client’s behalf, the employer counterclaims, alleging that the client, during her employment, breached her non-disclosure agreement and her fiduciary duties by sharing the employer’s trade secrets with her new employer.

In this situation, the lawyer and client do not have a longstanding relationship that forms the basis for their expectations about the fee. Their expectations are instead based upon the existing fee agreement alone. From the client’s perspective, her agreement with her lawyer was for representation concerning all aspects of her relationship with her former employer. Under the circumstances, renegotiating the fee agreement would likely not be fair to the client. Additionally, a lawyer, after making a reasonable investigation, should have anticipated that the former employer might bring such counterclaims against the client.

The fundamental nature of a flat or fixed fee is that there is risk to the lawyer that the legal work and time required may exceed what the lawyer might have earned if the lawyer instead billed by the hour. The client knows with certainty that the total fee charged, no matter how much lawyer time or effort is involved, will not exceed the fixed amount. The client’s risk in a flat or fixed fee agreement is the possibility of paying more than the client would have paid under an hourly billing agreement if the lawyer is able to complete the representation is less time than originally expected. Because the lawyer is better able to anticipate the time and legal work required, the lawyer should be mindful that he knowingly assumed this risk—and should not unreasonably seek to change the fee agreement simply because the lawyer agreed to a fixed fee that, in hindsight, is no longer adequate.

The client’s level of sophistication is another factor that the Committee concludes is relevant to considering whether renegotiating a fee agreement is “fair under the 3

circumstances.” As the above examples illustrate, an institutional client such as a lender is likely to have experience regarding litigation matters routinely involved in its business.

An experienced client is therefore better informed about the costs associated with litigation and the fees charged for representation. By contrast, a client with little or no experience as a litigant has no such point of reference and is unlikely to know much about the potential scope of litigation or its expected costs.

This Committee previously expressed the view that Rule 1.08(a), regarding business transactions between lawyer and client, does not apply to the transaction of establishing the lawyer-client relationship. See Professional Ethics Committee Opinion 586 (Oct. 2008) (concluding that a lawyer may include a binding arbitration clause in a fee agreement). Likewise, the Committee concludes here that Rule 1.08(a) does not apply to renegotiating a fee agreement. Nevertheless, as the Committee also noted in Opinion 586, “[a]s a general principle, all transactions between client and lawyer should be fair and reasonable to the client.” Comment 2 to Rule 1.08. Thus, any renegotiation of an existing fee agreement, although not a “business transaction with a client” within the meaning of Rule 1.08(a), must still be on terms that are fair and reasonable for the client.

A modified fee agreement is, of course, subject to Rule 1.04’s prohibition against illegal or unconscionable fees. Additionally, the lawyer must be mindful, both during efforts to renegotiate a fee agreement and after renegotiation of a fee agreement, of the possibility of not being able to continue to represent the client if, under Rule 1.06(b), the representation of the client “reasonably appears to be or become adversely limited by … the lawyer’s or law firm’s own interests.”

CONCLUSION A lawyer may renegotiate his fixed, flat fee for representing a client in a litigation matter after the litigation is underway if modification of the fee agreement is fair under the circumstances. The burden of proving fairness is the lawyer’s and will depend upon factors such as the length of the lawyer-client relationship, whether the reason for the renegotiation could have been anticipated at the outset of the representation, and the client’s level of sophistication. Before seeking to renegotiate a fixed fee, the lawyer should be mindful of the risks that the lawyer voluntarily assumed when proposing or agreeing to that fee—including the possibility that the fixed fee might not be adequate to compensate the lawyer when compared to other fee arrangements.

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Texas Criminal Defense Lawyers Association

21st Annual Top Gun DWI August 11, 2023 The Whitehall Houston, Texas

Challenging Hospital Blood Testing Speaker:

Christopher McKinney Board Certified in Criminal Law Doug Murphy Law Firm 902 Heights Blvd Houston, TX 77008 713.229.8333 phone 713.583.0205 fax chris@dougmurphylaw.com email https://www.dougmurphylaw.com/

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

Texas Criminal Defense Lawyers Association 21st Annual Top Gun DWI Houston, Texas August 11, 2023

Attacking the Hospital Blood Test

Christopher M. McKinney Doug Murphy Law Firm 902 Heights Blvd.

Houston, Texas 77008 713-229-8333 chris@dougmurphylaw.com

1

Introduction In a time where we are conditioned as a population to trust scientists, doctors, and other healthcare professionals, fighting a hospital blood test can be challenging.

Prosecutors trying serious bodily injury and death DUI/DWI cases regularly rely on fallacies to support their position that the hospital’s blood test is a reliable indictor of your client’s intoxication—if it’s good enough for doctors and nurses to make life-and-death treatment decisions in the emergency room, then we should be able to trust it in the confines of the courtroom.

And while this appeal to authority seems agreeable to

uninformed jurors, it’s just plain wrong, as hospital plasma/serum is not reliable for forensic purposes.

Hospital blood testing methods may be great for a quick and dirty estimate of ethanol concentrations in order to provide an immediate medical screening tool for a patient, but it lacks the precision, quality, and reliability expected of forensic laboratories conducting confirmation ethanol determinations for guilt-innocence proceedings. Those imprecisions stem from the underlying science and how it is applied in the hospital setting as well as the conversion of the ethanol value generated by the hospital’s machine back into a “legal” blood result. Hospital blood testing through enzymatic assay is imprecise and unreliable because of the lack of testing specificity to ethanol.

These testing

methods, especially in the context of DWI cases involving catastrophic car accidents, give a high probability for false positive ethanol results. Then, assuming that the hospital’s method accurately measured your client’s serum/plasma ethanol concentration, there is no reliable consensus among the scientific community as to how to convert the plasma/serum number into a whole blood result that complies with state statutes.

2

Sure, hospital plasma/serum testing through enzymatic assays is a good screening tool to provide a “best guess” to move forward with medical treatment, but it fails as a confirmatory test that passes forensic muster. That’s what gas chromatography is for— the “gold standard” because of its specificity to alcohol and its precision. If hospital enzymatic serum/plasma testing isn’t the gold standard, what is it and how is it being used as the basis to take away your client’s liberty? The goal of this paper is to give you a boiled-down understanding of the science and potential attacks on the hospital blood test, so your client is not the victim of a second-best or “good enough” testing method.

Hospital Blood: Why Can’t We Just Say “Blood?”

“Blood” and “hospital blood” are not the same thing. Blood typically refers to “whole blood” and is typically the substance that is tested to obtain an alcohol result that complies with state statutes.1

Hospital blood refers to a plasma or serum test.

Biological

specimens analyzed at hospital laboratories are typically serum or plasma, while whole blood is the primary specimen in forensic toxicology laboratories.2 The differences in whole blood and plasma/serum are stark due to, among other things, water concentrations.

Blood, as you can imagine, is a big deal in the body. In fact, the volume of blood in an adult is approximately 5-8% of body weight, which corresponds to 3.5-5.6 liters for a person weighing 70 kg or 154 lbs.3 Whole blood isn’t a simple, unitary thing either, but a combination of “stuff.” Blood, as we see it, is the usually red fluid that circulates through

1

See Navarro v. State, 469 S.W.3d 687 (Tex. App—Houston [14th Dist.] 2015, pet. ref’d).

M.T. Barnhill, Jr., D. Herbert, and D.J. Wells, Jr. Comparison of hospital laboratory serum alcohol levels obtained by an enzymatic method with whole blood levels forensically determined by gas chromatography.

J. Anal. Toxicol. 31: 23-30 (2007).

3 Jones. Impact of Trauma, Massive Blood Loss and Administration of Resuscitation Fluids on a Person’s Blood-Alcohol Concentration and Rate of Ethanol Metabolism. Acad Forensic Pathol. 2016 6(1):77-88.

2

3

the heart, arteries and veins. 4 The more precise medical definition is that blood consists of a faintly yellow fluid, the plasma or liquor sanguinis, in which are suspended numerous minute particles, and the blood corpuscles, the majority of which are colored and give to the blood its red tint.”5 Simply put, blood is composed of plasma (liquid), red blood cells (erythrocytes), white blood cells (leukocytes), and platelets.

Plasma represents

approximately 55 percent of the volume of a whole blood sample while red blood cells represent approximately 45 percent of volume. White blood cells and platelets make up less than one percent of the total volume.

The primary difference between whole blood and plasma is the higher concentration of water present in plasma. Plasma is the liquid portion of blood and is approximately 90 percent water.

Its main role is to transport proteins, nutrients,

antibodies, and hormones, among other things across the body. When separated from the rest of the blood, plasma is a light-yellow liquid. This separation can be achieved through centrifugation. Centrifugation is a process that uses a centrifuge to separate particles in a solution according to their size, shape, density, etc.

To obtain plasma from whole blood, whole blood is drawn from the patient into blood tubes (vacutainers) that have an anticoagulant, e.g. EDTA-treated or citratetreated. The blood tube containing an anticoagulant is placed on a centrifuge. The centrifuge spins the whole blood (solution) tube, causing and the heavier red blood cells, white blood cells, and platelets (particles) to accumulate towards the bottom of the tube.

4

Webster’s New World College Dictionary 150 (3d ed. 1996).

Drake. R.L., Vogl, W., Mitchell, A.W.M., & Gray, H. (2005). Gray’s anatomy for students. Philadelphia: Elsevier/Churchill Livingstone.

5

4

The resulting light-yellow liquid that sits on top of the red and white blood cells and platelets is plasma.

To obtain serum from whole blood, whole blood is drawn from the patient into blood tubes that do not have an anticoagulant. The blood in the tube is allowed to clot, then placed on the centrifuge, and spun, causing two distinct substances—a liquid portion, which is the serum, and a blood clot. The serum, which now does not have the fibrinogen clotting factor, is then removed from the tube and separated from the clot.

Hospital enzymatic testing machines typically can use either plasma or serum in their ethanol determinations, and sometimes even whole blood. An easy way to know what kind of sample was tested is to look at the tube top color that was used to collect your client’s blood. Different tubes are used for different reasons within the hospital laboratory.

Our main concern is whether the hospital tested whole blood or

plasma/serum. Do not assume that because the hospital reported a result in the medical records that it was based on a plasma/serum test. In fact, a 2003 College of American Pathology survey of testing methods indicated that out of 3,170 participants, 2.6% used gas chromatography (GC), 18.1% used a dry film enzyme oxidation technology, 74% used various other enzyme oxidation methods, and 5.3% used other unspecified methods.6 Ethanol Determination in Serum/Plasma: Must be Something in the Water When you analyze a whole blood sample and a plasma/serum sample from the same individual, the results will not be the same. This is due to the differing water content of the samples. Plasma and serum, for our purposes, however, are essentially equivalent

6

AL2-C AAAC/CAP serum alcohol/volatiles participant survey. W.R. Markus, Chair. College of American Pathologists, Northfield, IL, 2003.

5

in terms of ethanol determination in the hospital enzymatic testing process.7 And because state laws require a report to be reported as a whole blood value, the hospital’s plasma/serum value must be converted into a whole blood value. The conversion of a hospital blood result to whole blood is not a simple or clear calculation. In fact, the scientific community cannot seem to agree on the proper calculation.8 Alcohol, as we are aware, is a small, water soluble molecule that is distributed throughout the body and absorbed. Alcohol distribution throughout the body’s fluids occurs in proportion to the water content.9 Therefore, because plasma/serum has a higher water concentration relative to whole blood, more ethanol will be present in the plasma/serum and a higher result will be reported. This plasma/serum value has to be converted into a whole blood number by taking into account the different water contents.

Which ratio to use to convert plasma/serum into whole blood is where the disagreement in the scientific community begins. Plasma/serum and whole blood are not related by a simple conversion factor.10 This is because the alcohol content of whole blood is the weighted average of the alcohol concentrations in plasma, erythrocytes, leukocytes, and platelets.11 The exact ratio of plasma/serum alcohol to whole-blood alcohol is variable and can depend on several factors, including hematocrit, erythrocyte water content, and plasma water content.12

7

P.M. Rainey. Relation between serum and whole-blood ethanol concentrations. Clin. Chem. 39: 2288-92 (1993).

8 A.W. Jones, R.G.Hahn, and H.P. Stalberg. Distribution of ethanol and water between plasma and whole blood; inter- and intra-venous infusion. Scand. J. Clinb. Lab Invest. 50:775-80 (1990).

9 R. Charlebois, M. Corbett, and J. Wigmore. Comparison of Ethanol Concentrations in Blood, Serum, and Blood Cells for Forensic Application. J. Anal. Toxicology. 20:171-178 (1996).

10 Rainey at 2288.

11 Id. 12 Id.

6

As we know from other aspects of challenging DWI blood results, no two persons are going to be the same and to use one ratio or conversion factor for everyone simply isn’t scientifically acceptable. In fact, the use of an average ratio to convert a serum alcohol measurement to a whole-blood alcohol value is inappropriate for most individuals, who will have ratios that differ from the average.13 And while the median (middle data point, not average of the set) concentration is most useful in civil proceedings, we need to know the range of possible whole blood concentrations that may correspond to a given serum concentration, as it is of greatest utility in criminal proceedings and the higher burden of proof.14 Multiple studies have been conducted to determine a ratio for converting a serum/plasma hospital result to a whole blood value, but the ranges vary significantly as is seen in the following chart.

13 14

See Rainey.

Id. at 2289-90.

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Plasma / Serum to Whole Blood Ratios Research

Ratio Range

Wells and Barnhill Jr.15

0.75 to 1.29

Rainey16

0.88 – 1.59 or 0.90 – 1.49 for central 99% of population

A.W. Jones17

1.03 to 1.16

Charlebois18

1.04 to 1.26

Winek and Carfagna19

1.09 to 1.18

Payne20

1.10 to 1.35

These ratios can be used to convert the serum/plasma result to a whole blood value and the math is simple. Serum/plasma values are often reported as weight / volume (mg/dL – milligrams per deciliter). For example, a hospital blood test that reports a serum/plasma value of 143 mg/dL has to be converted into legal units (g/dL – grams per deciliter or g/100mL – grams per 100 milliliters) and then converted from a serum/plasma to a whole blood value using a conversion ratio. Here’s how it works: 15

D.J. Wells and T.B. Barnhill, Jr. Comparison of hospital laboratory serum alcohol obtained by an enzymatic method with whole blood values determined by gas chromatography. Presented at the join Congress of The International Association of Forensic Toxicologists (TIAFT) and the Society of Forensic Toxicologists (SOFT) on November 3, 1994 in Tampa, Florida by D.J. Wells.

16 P.M. Rainey. Relation between serum and whole-blood ethanol concentrations. Clin. Chem. 39: 228892 (1993).

17 A.W. Jones, R.G. Hahn, and H.P. Stalberg. Distribution of ethanol and water between plasma and whole blood; inter- and intra- individual variations after administration of ethanol by intravenous infusion. Scand.

J. Clin. Lab. Invert. 50:775-80 (1990).

18 R. Charlebois, M. Corbett, and J. Wigmore. Comparison of Ethanol Concentrations in Blood, Serum, and Blood Cells for Forensic Application. J. Anal. Toxicology. 20:171-178 (1996).

19 Winek CL, Carfagna M. Comparison of plasma, serum, and whole blood ethanol concentrations. J. Analyt. Toxicol. 1987; 11: 267-8.

20 Payne JP, Hill DW, Wood DGL. Distribution of ethanol: plasma to whole blood ratios. Can. Soc. Forens.

Sci. J. 1985; 18: 73-7.

8

1.) Hospital Serum Result = 143 mg/dL 2.) Convert to legal units a. 1000 milligrams = 1 gram or 1 milligram = 0.001 grams b. 100 milliliters = 1 deciliter c. Divide 143 mg by 1000 milligrams (easier—move the decimal three places to the left) to get result in terms of grams d. 0.143 g/dL or 0.143 g/100mL 3.) Convert serum/plasma to whole blood a. *Assume the serum/plasma result is correct* b. Divide serum/plasma result by conversion ratio i. 0.143 g/dL serum result divided by 1.49 (Rainey’s conversion ratio for central 99% of population) ii. 0.095 g/dL or 0.095 g/100mL whole blood result Obviously, converting the serum/plasma result to whole blood using Rainey’s ratio takes what appears from hospital records as a case, that is nearly double the legal limit for alcohol to a case that barely crosses the threshold.

The prosecution’s expert,

however, must give their own ratio and be prepared to defend the scientific validity.

Typically, the State’s ratio will be near 1.18 for plasma/serum to whole blood conversion and is in line with the Charlebois study, which states that 1.18 can provide a significant advantage to the accused while retaining acceptable analytical accuracy.”21 This ratio, however, ignores the range of ratios compiled in the study and the range of ratios due to subject-to-subject differences as noted in other studies.22

21 22

Charlebois at 176.

See Barnhill at 23.

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In fact,

“prudence demands that an opinion [on converting serum/plasma alcohol to whole blood results] should not be proffered without a complete review of all relevant medical records, not merely the alcohol results.23 The accuracy of this conversion from serum/plasma to whole blood cannot be viewed in a vacuum, it is based upon the assumption that the hospital correctly collected, transported, and tested your client’s blood sample. All of these areas, just as in a blood alcohol concentration through forensic testing, are ripe for cross-examination.

Enzymatic Testing: Wait, They’re Not Even Testing the Blood?

At the hospital, every second matters in the treatment of critically injured patients.

The tests performed on patients must be done quickly so that doctors and nurses can make a decision as to the best course of treatment. Basic metabolic panels that record sodium, potassium, chloride levels can be completed in four minutes.24 Reaction times in enzymatic testing machines can take anywhere between 1 and 32 minutes depending on the assay.25 Manufacturers like Siemens market their machines to hospitals and promise that they will “improve workflow efficiency with the ability to load any tube, any place, any time, and only 5 minutes of scheduled maintenance per day.”26

These

machines are built for speed, not accuracy. Hospital enzymatic testing has been called a “one-shot analysis” because samples are not re-run to verify accuracy.27 This is a stark contrast to forensic laboratories that use gas chromatography, a reference method that is too costly and time consuming to be used as a primary screening assay.28 23

Id. at 28.

Siemens. (2020). Dimension EXL with LM Integrated Chemistry System: Technical Specification.

Siemens Healthcare Diagnostics Inc. 25 Id. 26 Id. 27 Barnhill at 24.

28 Nine at 192.

24

10

Enzymatic testing of hospital plasma/serum is a rapid indirect method of testing.

The amount of ethanol contained within a sample is never measured. Instead, the machine introduces an enzyme and a co-enzyme to react with what the hospital is measuring (the analyte). The resulting reaction is actually what is measured by the machine, not the analyte (ethyl alcohol) itself.

In practice, here’s how a machine like the Dade Dimension RXL Analyzer is supposed to work, without all the nitty-gritty science: 1.) Blood sample is placed on the machine’s analyzer 2.) Centrifuge spins the blood and separates blood serum 3.) Serum goes into an analyzer and mixes with a reagent, causing an enzymatic reaction 4.) Absorbents of final product are read by the machine using two filters 5.) Machine uses an automatic filter that reads absorbent-matter levels by using the machine’s photometer a. Photometer is like a lens that reads matter at two different levels to verify the accuracy of the enzymatic reaction 6.) If the patient has any toxins, the presence of such absorbent matter will be read by the machine’s photometer 7.) Machine then registers an automatic reading and the machine will give a final result that has a reference range to be verified against the hospital’s information system.29 What is actually being directly measured is the amount of NADH produced by the reaction. The testing process involves adding the enzyme alcohol dehydrogenase (ADH) and a co-enzyme, nicotinamide adenine dinucleotide (NAD). Alcohol is then oxidized to acetaldehyde by ADH using the co-enzyme NAD. NAD is subsequently converted to

29

Wooten v. State, 267 S.W.3d 289, 299-300 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).

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NADH in the process.30 The change from NAD to NADH is followed by an increase in the light absorbed at the wavelength 340 nm (nanometers).31 This increase is proportional to the ethanol concentration of the hospital sample, which still has not been directly measured.32

ADH ethyl alcohol + NAD+

Û

acetaldehyde + NADH + H+

Again, this result should not be the end-all of the inquiry into your client’s alleged intoxication level. Even the manufacturer’s instructions caution that the results of the hospital’s enzymatic testing should always be interpreted in conjunction with the patient’s medical history, clinical presentation, and other findings.33 Interferents: Elements of Falsely Elevated Hospital Results Indirect testing methods such as a hospital’s enzymatic assay for ethanol determination has the potential to falsely report ethanol where there is none or to falsely elevate reported values. Since the hospital’s machine is only looking for NADH, any other enzymatic reactions that use NAD as a coenzyme and generate NADH could interfere in the ethanol assay.34 Hospital enzymatic testing is non-specific to ethanol. Common interferents in the hospital setting, especially in cases of accidents involving serious bodily

30

J.S. Nine, M. Moraca, M.A. Virji, and K.N. Rao. Serum-ethanol determination: comparison of lactate and lactate dehydrogenase interference in three enzymatic assays. J. Anal. Toxicol. 19:192-196 (1995).

31 Id. 32 Id. 33 Siemens. (2008). Dimension clinical chemistry system: Flex reagent cartridge. Newark: Siemens Healthcare Diagnostics Inc. 34 Nine at 192.

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injury or death to one party could include isopropyl alcohol, which could react with the enzyme35, or the presence of elevated lactate and lactate dehydrogenase (LDH).

Elevated lactate and LDH are logical products of car accidents and potentially legitimate challenges to the validity of an enzymatically based ethanol assay may be raised upon the presence of both.36 However, neither the mere presence of lactate or LDH alone provides an adequate basis to suggest interference with typical ADH-based assays.37 As a reference in determining whether a lactate level is high, lactate (also known as lactic acid) is present in blood at a level of 0.9—1.7 mmol/L.38 Lactate levels, however, may be elevated after the tissue becomes hypoxic—that is, there is a lack of oxygen to the muscle due to trauma, especially liver injury (from a car accident or even exercise)—or after treatment from EMS or hospital personnel in the form of Lactated Ringer’s solution.39 Careful attention should also be paid to which arm the fluids were administered and which arm the hospital blood samples were drawn.

Lactate

dehydrogenase is an enzyme that can also be released as a function of trauma.40 Just as ADH breaks down alcohol into acetaldehyde, LDH breaks down lactate into pyruvate.41 When the co-enzyme NAD is present, the reaction will also generate its own NADH.42 This extra NADH would be interpreted as ethanol oxidation and therefore register as “false” ethanol.43 The machine simply does not know (or care) where the extra

35

R.F. Shaw. Methods for Fluid Analysis. In Medicolegal Aspects of Alcohol, 4th ed., J.C. Garriott, Ed. Lawyers & Judges, Tucson, AAZ, 1996, p 213.

36 Powers at 563.

37 Id. 38 J.B. Henry. Clinical Diagnosis and Management by Laboratory Methods, 19th ed. W.B. Saunders, Philadelphia, PA, 1996, p 207.

39 Powers at 561.

40 Id. 41 Id. 42 Id. 43 Id.

13

NADH came from, but registers it against your client nevertheless and it is impossible to say by how much.

LDH Lactate + NAD+

Û

pyruvate + NADH + H+

Conclusion Hospital blood testing through enzymatic assays is not something scientists hang their hats on, and it is not something a jury should either. It’s a situation “fraught with peril.”44 The quick, non-specific, easily confused test simply does not pass scientific muster and should be challenged over its lack of reliability as a testing method, especially when compared to gas chromatography, as well as the reliability of the methods used to convert a plasma/serum number to a legal whole blood number.

We’re thankful for the life-saving efforts the doctors and nurses made on the day our client went to the hospital after a horrible accident. But good enough for doctors is not good enough for the courtroom. Simply because hospital measures, including the tests run on your client, at the hospital maybe saved her life, doesn’t mean those same tests should be used to take it away.

44

Barnhill at 28.

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Texas Criminal Defense Lawyers Association

21st Annual Top Gun DWI August 11, 2023 The Whitehall Houston, Texas

Understanding Police Tools of SFST and DRE

Speaker:

Sgt. Don Egdorf Houston Police Department “That DWI Guy” don@thatdwiguy.com email

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

Understanding Police Tools of SFST and DRE Sgt. Don Egdorf, Houston Police Department “That DWI Guy” To many people, seeing an officer perform SFST seems like it might be roadside gymnastics, others it’s just a bunch of made-up tests that don’t make any sense. The reality thought is that these tests are valuable tools that police officers can use to help make the right decision to arrest or not attest – when they are done correctly.

Prior to the development of Standardized Field Sobriety Testing, officers would actually make up their own tests to decide if they were going to make a DWI arrest or not. There was no science, no regulation, no standardization and very little oversite to make sure the right thing happened on these cases. That’s where training, proper training, comes into the picture. I am sure that everyone has seen videos of officers doing SFST and wondered exactly what they were doing, and other videos where the officer follows the training and procedures, and then makes the proper arrest / no arrest decision.

Police instructors, supervisors and field training officers have an obligation to make sure that the training is done correctly and is standardized. Anything outside of those standards needs to be addressed and corrected as soon as possible to prevent some of these training issues from becoming habit and making us question an officer’s work product.

The 24-hour SFST class was designed to not only teach officers the proper way to administer the tests, but also to teach the history of the tests, how they were developed, validated and how to even get to the point of making the decision to administer the tests.

Benefits of Proper Training – (from the 2023 SFST Manual Administrators Guide) Participants will learn to: • Recognize driving behaviors and other indicators commonly exhibited by impaired drivers • Become better detectors and better describers by improving their knowledge, attitudes, and skills in detecting the impaired driver and articulating their observations • Develop a better understanding of the tasks and decisions involved in the DWI detection process • Recognize the magnitude and scope of DWI-related crashes, injuries, deaths, property loss, and other social aspects of the DWI problem • Understand the deterrent effects of DWI enforcement • Have a better understanding of the legal environment relevant to DWI enforcement and use of the three SFSTs • Know and recognize typical clues of alcohol impairment that may be detected during face-to-face contact with DWI suspects • Know and perform the appropriate administrative procedures for the divided attention psychophysical tests • Know and perform appropriate administrative procedures for the HGN test

• •

Know and recognize typical clues of alcohol impairment that may be seen during administration of the SFSTs Understand the DWI prosecution requirements and their relevance to DWI arrest reporting

The DWI process itself is broken down into three phases: (Session IV – 2023 SFST manual) Detection Phase I - Vehicle in Motion • In Phase One: Your first task is to observe the vehicle in operation. Based on this observation, you must decide whether there is sufficient cause to command the driver to stop. Your second task is to observe the stopping sequence.

Detection Phase II – Personal Contact • In Phase Two: Your first task is to observe and interview the driver face to face.

Based on this observation, you must decide whether there is sufficient cause to instruct the driver to step from the vehicle for further investigation. Your second task is to observe the driver's exit and walk from the vehicle.

Detection Phase III – Pre-arrest screening • In Phase Three: Your first task is to administer structured, formal psychophysical tests. Based on these tests, you must decide whether there is sufficient probable cause to arrest the driver for DWI. Your second task is then to arrange for (or administer) a PBT. Each of these phases comes with questions that need to be answered by the officer BEFORE proceeding to the next phase.

Phase I – Do I have grounds to stop this vehicle?

Phase II – Do I have grounds to have the driver do any SFST? Phase III – Do I have grounds to arrest?

While each of these may seem simple enough on their own, the arrest / no arrest decision must be based on all of the observations, or the “totality of the circumstances”. That term is tossed around quite a bit, and there are many times officers cannot explain what it really means, but it is an important part of any DWI case. Bloodshot and glassy eyes alone is not a good enough reason to do SFST, much less make an arrest. Good officers will take all of the facts and then determine if there is probable cause for an arrest.

When used properly, the SFST are a great tool. My goal as an instructor in the police academy was always to make sure that the cadets are familiar with the NHTSA manual, were somewhat comfortable with the tests, and to make sure that every cadet had a chance to perform the tests on multiple drinking subjects to make a proper arrest/no arrest decision through the use of “wet labs”. We always invited the newer attorneys from the District Attorneys office to participate in the “wet labs” to show them was people really look like at different BAC’s. For many people, it’s eye opening and it is not as easy to get to 0.08 as some people believed. After cadet training, it is the field training officers that have a

responsibility to make sure that all new officers are able to complete a proper DWI investigation. The cases are not always easy and can be very stressful for both the rookie officer and the trainer, but if they aren’t done during training, most officers will never be able to do a DWI properly without being completely re-trained. It is also recommended that all officers receive update training every two to three years to stay current on any changes to the program, case law or procedures for administering the SFST. When we talk about Drug Recognition Experts (DRE) we move to an entirely different level. DRE’s are typically officers that are more experienced in conducting DWI investigations and DRE’s must be proficient in performing and interpreting the SFST. Part of what a DRE needs to do during each evaluation is to conduct an interview of the arresting officer. This is an important step in helping determine impairment. Unless the DRE actually makes the arrest, it can be quite a while before the DRE will arrive and begin an evaluation.

The backbone of the DRE program, along with the SFST, is that the entire process is Systematic and Standardized. The 12-step evaluation should be conducted in order to be able to come to the proper decision about the category, or categories, of drugs that the subject is under the influence of at the time. Officers go through a 152-hour course and must pass a Certification Knowledge Exam to become certified. After becoming certified, DRE’s must recertify every two years. During the recertification process DRE’s must complete the SFST proficiency test, compete the small matrix from memory, conduct a mock evaluation in front of a DRE instructor, complete a written test and turn in at least four evaluations that were completed during the two-year period. The certification and recertification process are what keeps many officers from becoming DRE’s and from recertifying.

DRE is a tool that is extremely underused by officers everywhere. Since the introduction of 24/7 no refusal, officers have relied less and less on DRE’s. The real issue that comes up with this is that alcohol is the only drug that has a per se limit, so how do we prove that someone is DWI when all we have is a blood test? Well, we can’t.

The blood test alone might tell us what drugs or medications someone has in their system at the time, but it cannot tell us if someone is impaired. There are some exceptions when it comes to drugs like PCP, but for the most part we need that evaluation to be completed and it must be done properly.

DRE’s cannot be done on the street, or in a hospital, it must be done in a controlled environment like the Joint Processing Center. An officer will take a subject’s pulse, blood pressure, body temperature and check pupil sizes in different lighting conditions.

Additional field sobriety tests will also be done.

Questions that typically come up about the DRE program, typically because officers choose not to follow all of the protocols and procedures. There are certainly times when parts of the 12-step process cannot be completed and there are valid reasons for this to happen. The important thing when this happens is that the evaluator must document why something was

done out of order, or why a step was skipped. When a suspect is high on PCP and is exhibiting cyclic behavior, there is no way that an officer can, or should, go into a closed room and turn the lights off to administer dark room exams.

Most of these cases never go to trial for various reasons which means that even some of the most experienced DRE officers, have never testified on a true DRE case. Personally, I have had quite a few but they have mostly been fatality crash cases. Luckily, the DRE process has held up both in trial and on appeal.

I have continued to be, and will always be, an advocate for the SFST and DRE programs, when it is done correctly. There is no room for shortcuts, half-steps or doing things a “different way”.

Texas Criminal Defense Lawyers Association

21st Annual Top Gun DWI August 11, 2023 The Whitehall Houston, Texas

Crossing the Blood Analyst: Turning the Analyst into Your Expert

Speaker:

Joseph P. St. Louis

Certified Specialist in Criminal Law and DUI Defense Nesci & St. Louis 216 N Main Ave Tucson, AZ 85701 520.622.1222 phone 520.624.7817 fax JoeStLouis@azdefense.com email https://www.azdefense.com/ website

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

An Introduction to Blood Alcohol Testing: Issues in Collection, Testing and Software Joseph P. St. Louis Nesci & St. Louis Tucson, Arizona 85701 (520) 622-1222 joestlouis@azdefense.com Introduction: Criminal defense practitioners have known for some time that there are a number of issues that occur during both the collection of blood samples and the testing of blood samples that result in incorrect and artificially high blood alcohol concentrations being reported by crime laboratories. In recent years, we have learned that many forensic laboratories throughout the country have been having significant issues with the software that creates the printouts of the test results.

This is a significant issue because these printed results are almost exclusively the sole source used by crime laboratory analysts to determine the accuracy of blood test results. These laboratory software issues have lead to printed test results with the wrong names, the wrong vial numbers and all of the information from one sample being attributed to another sample. You simply cannot accept at face value that printed test results actually show the results of a test they appear to be reporting.

1

This article attempts to walk the defense practitioner through the issues that occur during blood collection, testing and the creation of the printed results.

Throughout the article the blood testing machine, the gas chromatograph, is referred to alternatively as a “GC”. Additionally, drinking alcohol is referred to as both ethyl alcohol and ethanol. These terms mean the same thing. “BAC” is also used to as an abbreviation for blood alcohol concentration.

I.

Blood Collection Issues When blood is collected for a blood alcohol test, the law enforcement

agency typically provides a blood kit containing two gray-topped tubes. (See example below). Gray-topped tubes are not designed for alcohol testing, however.

In fact, even though there are many different types of blood collection tubes designed for many different purposes (all differentiated by the color of the tube top), there are no tubes that are designed for blood alcohol testing. Gray-topped tubes are designed for collecting blood samples for glucose testing, where the amount of sugar in the blood needs to be stabilized after the sample has been collected, so that it may be accurately tested.

Gray-topped tubes are used for collecting samples for blood alcohol testing because they contain two chemicals used to maintain the stability of the blood sample:

potassium oxalate, an anti-coagulant, to keep the blood liquid and

2

prevent it from clotting; and sodium fluoride, a preservative, to keep the blood in the same condition as when it was drawn.

Phlebotomists and other individuals who draw blood are trained to wipe the site that the blood is being drawn from with an alcohol-free disinfectant pad. The area must be cleaned by starting in the center of the draw site, then working out from the center in concentric circles, pushing any bacteria present out and away from the draw site. If the site is cleaned incorrectly, for example by someone wiping the pad back and forth across the draw site, bacteria can actually be brought into the draw site after it has been “cleaned.” By contaminating the draw site in

3

this manner, the blood sample can be contaminated with bacteria. As explained below, if a blood sample is contaminated with bacteria, it may artificially increase the alcohol concentration of the blood in the tube.

The manufacturer instructs individuals collecting the blood sample to invert the tubes (slowly rotate them 360 degrees) 8-10 times to mix the chemicals into the blood, once the tubes have been filled. Shaking the tubes to mix in the chemicals may “lyse” - tear open – the blood cells, changing the composition of the materials inside the tube. The anticoagulant and preservative should be white in color. If they are pink or yellow, they have lost their potency due to age.

Although some crime laboratory analysts testify that a preservative will maintain the concentration of alcohol in the blood sample that has been collected indefinitely, this is not true. A preservative will slow down microbial growth, but it won’t stop it. If you buy a loaf of bread from a health food store with no preservatives, it will turn green quickly. If you buy a loaf of Wonder Bread, it will stay white much longer, but will eventually turn green as well.

Many gray-topped tubes contain 1% sodium fluoride (when the tube is full, 1% of the contents will be sodium fluoride). According to some researchers, this is actually half the concentration of sodium fluoride needed to preserve the alcohol concentration in a blood sample. See Dick and Stone, Alcohol Loss Arising from

4

Microbial Contamination of Drivers’ Blood Specimens, 34 Forensic Science International 17 (1987).

A preservative is necessary because after the sample has been drawn, the amount of alcohol in the tube can change. It can break down (usually turning into acetaldehyde), lowering the alcohol concentration.

However, there are some

bacteria that grow in blood that will eat the sugar present and produce alcohol. If this occurs, the blood sample in the tube will have a higher alcohol concentration than the person it was drawn from.

One common bacteria in this category is candida albicans, a yeast infection that affects men and women, that can be present in the mouth or on the skin of the person who has it. If a blood sample contains candida albicans, the bacteria will eat the sugars in the blood and produce alcohol, increasing the alcohol concentration in the blood, unless the collection tubes contains a sufficient concentration of a preservative, and unless the preservative has been properly mixed in. Having an insufficient amount of preservative in the sample, or failing to properly mix in the preservative, will not stop the growth of bacteria in the sample, which may artificially increase the alcohol concentration of the blood sample.

5

Blood collection tubes do not have air inside. Instead, all air has been removed, and they contain a vacuum. The rubber stopper on top of the tube is designed to prevent air or liquid from getting into the tube. (See example below).

The blood collection kit contains a two-sided needle. The needle on one side goes into the suspect’s arm. The needle on the other side is covered with a plastic guide, called a “hub,” into which a blood collection tube can be inserted.

(See example below)

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After the needle is inserted into the arm, a blood tube is inserted into the hub. (See example below).

When the stopper on the tube is pierced with a needle, it will draw in blood from the suspect’s arm. If the vacuum is intact when the needle pierces the septum, it will draw in up to 10 milliliters of blood. The tubes are warrantied to draw in over 9 milliliters of blood.

All blood collection tubes have an expiration date. It is not the expiration date of the chemicals in the tubes - it is the last date on which the blood tubes are guaranteed to hold their vacuum. If the vacuum is lost, air enters into the tube, and whatever is in the air gets into the tube. If there is alcohol in the air when the tube loses vacuum, there will be alcohol in the blood tube.

This is a problem if blood kits lose vacuum while being transported or stored in a vehicle, such as the trunk of a police car, where gasoline fumes may be present.

At least part of the year, gasoline contains ethanol. (See example below)

7

When blood collection tubes lose vacuum, they do not always lose all of their vacuum; sometimes tubes lose part of their vacuum. When this happens, air, and whatever is in the air is still drawn into the tube to replace the vacuum that was lost. However, under these circumstances, there is still some vacuum in the tube, so it will still draw in blood - It just won’t fill the tube all the way. You can determine that a tube has lost part of its vacuum when the tube will not draw in at least 9 milliliters of blood.

The Indian Journal of Clinical Biochemistry did a study on how often blood collection tubes fail to fill all the way when used in hospitals. Influence of Blood Specimen Collection Method on Various Preanalytical Sample Quality Indicators, Tester F Ashavaid, Sucheta P Dandekar, Bhamini Keny and Vishaal R Bhambhwani, Indian Journal of Clinical Biochemistry, 2008 / 23 (2) 144-149.

8

They found that blood collection tubes don’t fill up all the way far less than 1% of the time – in only “18 per 10,000 cases.”

All individuals qualified to draw blood are trained to fill blood tubes completely, until the tubes will not draw in any more blood. This means that in any case where you have less than 9 milliliters of blood in the tube, we would expect that it is underfilled because it lost part of its vacuum. If the gray-topped tubes have less than 9 ml of blood as a result of the tube having lost vacuum, and alcohol was present in the air drawn into the tube when it lost vacuum, there will be alcohol in the blood tube that did not come from your client. When the blood sample is tested in the crime laboratory, there will be no way for the analyst to know that the alcohol in the blood tube came from the loss of vacuum, and the test result being reported will be higher then your client’s actual blood alcohol concentration.

Finally, when blood is collected the chain of custody must be maintained.

The state must demonstrate that the blood kit that the laboratory believes contains your client’s blood actually does. There are many places on the blood kit where the arresting officer is required to input information. Always double-check to ensure that there are no discrepancies between the information the officer claims to have put on your client’s blood kit, and the sample actually tested by the crime laboratory.

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II.

Blood Testing Issues The reliability and accuracy of any blood alcohol concentration estimate is

entirely dependent on the actions taken by the individual analyzing the blood when she creates the sample that is tested. Errors affecting the accuracy of blood test results can be introduced (intentionally or through carelessness) in every step of the process.1 Crime laboratories attempt to measure blood alcohol concentrations using batch processing, a type of assembly line production. In a typical blood alcohol analysis, a full blood run may contain up to 110 samples.

At some point, days, weeks or even months after they have been collected, the analyst will receive up to 40 blood kits, each of which generally contains two gray-topped tubes of blood that were purportedly collected from an arrestee. The blood kits are transported to the analyst’s “hood” - a desk with an air filtration system designed to remove airborne pathogens released into the air when blood samples are opened. As she opens each sample, the analyst will take notes (an example is pictured below) regarding the contents of each blood kit, attempting to accurately transcribe the information documented by the arresting law enforcement agency, and describing the contents of the box. Typically, there is no “double

1 Bullcoming v. New Mexico, 131 S. Ct. at 2711 (“Several steps are involved in the gas chromatograph process, and human error can occur at each step.”)

10

check” by a different person, to ensure that the testing analyst has entered the correct information for the correct sample.

As she processes the samples, the analyst prepares a “run sheet,” in which she attempts to correctly enter information into the computer as to which samples will be placed into which slots on the loading tray – called a “carousel” – which has up to 110 slots to hold samples. Typically, the run sheet is prepared in numerical order, from the lowest law enforcement agency or laboratory case number to the highest.

Most labs make two vials of blood for each person being tested. When this

11

occurs, they will prepare two samples from one of the tubes of your client’s blood.

A number of other types of samples, described below, must be included in a blood run. As a result, there is only room available to test approximately 40 people (40 people, having two samples each, takes up 80 out of the 110 available slots), in any one blood run. Typically, forensic laboratories will use calibrators, controls, a mixed standard, blanks and verifiers in every blood run. Each of these items is described below.

The analyst will usually prepare samples of everything that is going to be included in the blood run, in the order in which they are going to be run.

Typically, the first samples prepared are calibrators.

Calibrators are samples of a known value that are introduced at the beginning of a blood run to “teach” the GC the size and voltage associated with different alcohol levels. The GC is put into calibration mode – meaning it is programmed to use the measurements it makes of the calibrators as the ruler against which it measures the other blood samples.

Typically four or five

calibrators with different alcohol concentrations are used to calibrate the GC. A typical blood run might include a .025 calibrator, a .050 calibrator, a .100 calibrator, a .200 calibrator, and a .400 calibrator. The GC then plots these points in a line, called a “calibration curve.” (pictured below) The BAC values given to unknown subject samples are assigned by where they fall on the calibration curve.

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Controls are samples with a know value that are tested at different times in the blood run to make sure that GC is obtaining accurate results. There are two types of controls: Whole blood controls (blood and alcohol, in a known concentration); and, Aqueous controls (water and alcohol in a known concentration).

Controls can either be made in the crime laboratory, or purchased from a manufacturer. Good science requires controls have a value traceable to NIST. This means that the lab must be able to establish, through an unbroken chain of comparisons to a national standard, that when the sample is represented as a .08

13

BAC, it really is a .08.

Note that most whole blood controls commercially

available in the United States have a wide range of expected values; the mean value may be a .079, but any result between a .070 and a .087 is considered to be an accurate and reliable test result. (See example below - this is expressed in different values than we see in blood alcohol cases – the 79.2 is a .0792; the 70.7 87.6 range is a range of .0707 - .0876).

To properly check the accuracy of the test results being obtained, at least two controls with different values should be used in the run – usually a low control (BAC in the .05 - .10 range) and high control (BAC in the .150 - .250 range).

It is easier to get the correct answer when you test water and alcohol than

14

when you test blood and alcohol. If you are testing blood, then your controls should be the same composition – the same “matrix.”

Mixed Standards are samples containing a number of substances that are chemically similar to alcohol, typically six. Headspace gas chromatography is a separation science. To give us accurate results, the GC must be able to separate ethyl alcohol from other chemically similar substances. We must be able to show that alcohol burns in the GC at a different time than other substances. To show that we can separate ethyl alcohol from other substances, we test several chemically similar substances in one sample, to show that they all burn at different times. (See the example below).

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Blanks. What we call blanks are really negative controls – because they aren’t blank. The analyst creates a sample with only the internal standard (usually n-propanol) in it. Blanks are used to ensure that unknown substances (contaminants) have not been accidentally introduced into blood samples during the testing process. If the blank contains only internal standard, we have some assurance that no contaminants have been introduced into the blood samples at that point in the testing process. (See example below).

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Blood alcohol testing involves the use of many types or organic chemicals, however, and contaminants can be accidentally introduced into the testing process at any point.

For this reason, labs doing testing for the Department of

Transportation run blanks after every subject sample – so if there were 40 subjects being tested, they would use 80 blanks. By comparison, most crime laboratories use one or two blanks in a run with 110 samples.

Verifiers. At the end of the run, many labs test a series of samples to ensure that the calibration stayed constant throughout the blood run. For example, they may run samples of all of the solutions they used to calibrate the GC, this time measuring the samples to determine the result obtained. This is done to show that calibration remained consistent throughout the blood run, and that the results are therefore accurate. However, telling a GC to measure a sample as .10 at the beginning of a run, then measuring a sample of that same solution at the end of the run to see if it reads .10, doesn’t tell you that the result is accurate. If the wrong value was used during calibration, reading the sample as that wrong value at the end doesn’t mean that any of the test results you obtained were accurate.

Preparing Test Samples.

For each arrestee being tested, the analyst opens one of the gray-topped

17

tubes from the blood kit, and pours a portion of the blood into a plastic cup or cuvette. From this cuvette, she will prepare the samples that will actually be tested for their alcohol concentration. The analyst must measure out the correct amount of blood into a second vial, called a headspace vial (pictured below), which is the vial actually being tested.

When preparing the headspace vials, the analyst also must dispense the correct measure of a second liquid, an internal standard, used in every sample tested, into the headspace vial. Typically, the internal standard is n-propanol, an alcohol with a different molecular structure than ethanol, or drinking alcohol.

As explained below, the test results are obtained by burning a sample of a gas composed of both the defendant’s blood and the internal standard. When the

18

gas goes through a flame detector, the voltage is measured, and peaks are produced for both substances.

The defendant’s reported blood alcohol concentration is

determined by comparing the area of the ethanol peak to the area of the internal standard peak. A small amount of blood, usually 100 microliters (2 drops) or 250 microliters (5 drops) is used. Frequently laboratories add approximately 10 times as much internal standard to the sample. Most crime laboratories use a pipette to measure and dispense the liquid into the headspace vials. A pipette is simply a fancy eyedropper – it measures an amount of liquid, then transfers it from one location to another. (See example below).

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If the amount of blood dispensed into the headspace vial is incorrect, or the amount of internal standard dispensed into the headspace vial is incorrect, the alcohol concentration reported will be incorrect. See Bullcoming v. New Mexico, 131 S. Ct. 2711, n. 1 (citations omitted). (In “Colorado, a single forensic laboratory produced at least 206 flawed blood-alcohol readings over a three-year span…[by using] improper amounts of the internal standard, causing the chromatograph machine systematically to inflate BAC measurements. The analyst’s error, a supervisor said, was “fairly complex.”).

Whether the headspace vials tested in a particular defendant’s case contained the correct amounts of both liquids cannot be ascertained by reviewing the paper records from a single blood run after the fact. Perhaps this explains why the errors in the Colorado laboratory were not discovered until three years after the fact, when two of the analysts failed proficiency tests, by testing samples prepared by an outside agency.2 When preparing the headspace vials for testing, the analyst typically handwrites a portion of the arresting law enforcement agency’s case number (or perhaps the entire case number), onto the side of the glass headspace vial with a sharpie. This is the only indication of which blood sample is actually in which vial on the carousel. Once all of the headspace vials have been prepared, the analyst

2 Id. (http://www.gazette.com/articles/report–97354–police–discuss.html ).

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must place them into the correct slots in the carousel (pictured below) designated on the run sheet.

Very often no second individual double-checks the placement of the vials to ensure that they were placed in the correct slots. If the samples are not in the correct slots, we cannot tell that by looking at the paperwork after the fact. Below is an illustration where the analyst claimed he was able to determine that he had placed the samples into the wrong slots on the carousel, because he knew what the correct answer was supposed to be for one of the samples.

The analyst believed that he had placed a defendant’s blood sample

21

294784

n-Propanol containing alcohol into slot 83 and a blank into slot 85 of the carousel. When he reviewed the results, he discovered that the result from the vial slot 83, which was

Vial#: 85

------_.

Seq File: File: C:ITCWlDataI23_B085,rsl

Acquired: 081231201319:53:05

, _.., \

,0-,-

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supposed to be from an individual with alcohol in his system, contained only

1.8 ""

the result of the vial in slot 'j',' internal standard, 'i;""",',with.'" no alcohol. He also noted '1' that"i;'

Area

'"

',',"",1'

85, which Peakwas supposed to be a blank, contained alcohol. From these results, he

33211 Ethanol concluded that he had lost count when placing the vials into the slots on the 252071 n-Propanol carousel, and had been placing samples two slots off from where he believed them to be. Note that if he had not known what the correct answer was supposed to be for slot 85, which should have been a blank with only internal standard in it, there

22

would be no way to tell from the printed results that the analyst had mixed up where he was placing samples in the carousel.

Once the headspace vials have all been loaded into the carousel, the analyst will begin the blood run. Each headspace vial in turn will be removed from the carousel by an electronic “autosampler,” and transported to the gas chromatograph. The headspace vial is heated, and a gas forms in the air above the liquid – the “headspace.” The top of the rubber septum on the headspace vial is pierced by what is essentially a syringe, and a sample of the headspace gas is drawn out and injected into the GC. When it functions correctly, the autosampler will transport samples from the carousel to the gas chromatograph for injection in sequential order.

The injection process is automated because testing all of the samples in a blood run may take up to 12 hours. The analyst does not observe the equipment during the testing; in fact, no one does, as blood runs typically end well after all employees have left the crime lab.

Typically, crime laboratories use dual column analysis. When this is used, the sample of gas injected into the GC is split in half, and each half of the gas travels through one of two separate tubes, called “columns.” Columns are extremely long glass tubes with an opening about the width of a human hair that are coiled up inside the gas chromatograph. At the end of each column is a flame

23

ionization detector, which burns the gas coming through the column. When organic solvents (such as, e.g., ethyl alcohol, isopropanol or toluene) burn in the flame ionization detector, the computer system attached to the gas chromatograph records the time that the solvent burned, and measures the voltage produced.

[Autosampler] Injection Port

Detector Capillary Column

Computer Data System

Carrier Gas

Oven

Gas Chromatograph

Picture of a column

Column

24

Dual Columns

Flame Ionization Detector

25

The information collected when the sample passes through the flame detector is processed by the software program that runs the gas chromatograph, such as “TotalChrom.” A computer software program, such as “JusticeTrax” is then used to format the results into a graph with additional information that the laboratory chooses to add, such as the case number associated with the test sample.

The laboratory chooses how the results are formatted, perhaps printing the graphs for both columns on a single sheet of paper. As the results are obtained for each sample tested, the graph produced, called a “chromatogram” is printed out. (See example below).

The gas chromatograph is an oven controlled by a computer. The settings can be changed, changing the results, before the test is run.

The flow rate,

temperature, and virtually every other function of the GC can be changed by the

26

analyst to improve the quality of the test results. The whole premise of headspace gas chromatography is that we know how long it takes ethyl alcohol to reach the flame detector after we have injected a sample into the GC. Because so many different facets of the gas chromatograph can be changed, the time at which alcohol is expected to pass through the flame detector will be different for every lab that you encounter. Here is an example of a lab that labels anything in the top column that passes through the flame at 1.350 minutes after the sample has been injected into the GC as ethanol. The lab would say that alcohol has a retention time of 1.350 minutes on the top column of this GC.

The first peak is ethanol

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It doesn’t matter what comes through the flame detector at 1.350 minutes – it will be labeled as alcohol. However, it cannot be said that anything that burns 1.350 after injection must be alcohol. Other substances can and will pass through the detector 1.350 minutes after a sample is injected. This is the reason a second column is used. It is a “confirmation” column. The confirmation column is set up (e.g., by using a different type of column or by changing the length of the column) so that alcohol will pass through the flame detector at a different time than it does in the first column. In our example above, the confirmation column is set up so that ethanol has a retention time of 2.004 minutes. The theory behind dual column analysis is that we might have something coming out at the same time as ethanol in one of the columns, but we won’t have anything except ethanol coming out at the same time as ethanol in both columns.

Many labs, however, don’t measure the alcohol concentration in both columns. You will often see a numerical result produced only for the measuring column, with none for the confirmation column. The explanation given by crime laboratory analysts is that the purpose of the confirmation column is to verify that the substance being reported is ethanol, so there is no need to measure it in the second column. However, if there is a second substance co-eluting with alcohol – passing through the flame detector at the same time as ethanol – in the measuring column, the two substances will be added together and read by the GC as being

28

only alcohol, and the BAC reported will be artificially inflated, as demonstrated below. If a sample produces a peak at the retention times for ethanol in both columns, then we know that there is ethanol in the sample. Without measuring the alcohol concentration of the second column, we just can’t say there is only alcohol in the sample, or that the result obtained is the actual alcohol concentration of the defendant.

The analyst comes back into the lab the next business day after the blood run has completed, and there are a stack of chromatograms on the printer. The headspace vials, with the information written on their sides indicating which sample is contained in which slot of the carousel, are discarded, often without a second individual double checking that the vials were placed in the slots that the analyst believes they were placed into.

The analyst often looks only at the printed chromatograms, not the electronic data, to determine the accuracy of the blood run results. If the software program has printed incorrect information, there is no way of knowing without comparing the electronic data to the printed chromatograms.

Most laboratories have a second analyst perform an analytical review – checking that the chromatograms demonstrate that the analyst followed the laboratory’s procedures, that the results of the blood controls are within the laboratory’s accepted range, and that duplicate samples agree within a specified

29

percentage.3 Typically they also have an analyst who did not perform the testing conduct a technical review of the paperwork – making sure that the names and numbers on the BAC reports match the paperwork requesting the blood test submitted by the arresting law enforcement agency. When errors are found in the paperwork, it is often communicated by attaching a sticky note with the correction on it to the original chromatogram.

The analyst can then go back into the

laboratory’s Laboratory Information Management System (LIMS) and change the information and reprint the chromatogram. If the correction is made in this fashion, there may not be any document demonstrating that any change was made to the original blood test report.

Co-elution If the gas chromatograph is not set up in a manner where it actually separates one substance from another, two substances can co-elute. A substance “elutes” when it passes through the flame detector. In our earlier example, ethanol elutes out of the top column at 1.350 minutes. A problem occurs when two substances pass through the detector at the same time, or “co-elute.” The GC does not know that it is measuring the voltage of two different substances passing through the flame detector at the same time. If they both pass through at 1.350

3 It is unclear how much time is actually spent reviewing the chromatograms, or the level of detail employed during analytical reviews. The Arizona Department of Public Safety’s Central Regional Laboratory recently announced that it had discovered that its analysts had missed the fact that incorrect calibration levels were used at all 4 levels on a gas chromatograph 61 times in a row over a course of 7 months.

30

minutes, it will add the voltage from the two substances together, and label the result as ethanol.

An example is set out below of a laboratory in which acetone and acetonitrile co-elute in one column.

In the column on the left, there is a large acetone peak, completely separate from the acetonitrile peak, which is one of the smaller peaks. In the column on the right, acetone elutes out at a time so close to the retention time of acetonitrile that the GC reads them both as one substance, acetonitrile. Note that when the two

31

substances are combined and added together, the acetonitrile peak on the right increases dramatically in size.

If a second substance is co-eluting with alcohol, at the retention time of ethanol, the GC will combine the voltage of the two substances together and overstate the amount alcohol present in the sample. This issue is completely avoidable by simply changing to a different brand of column, by changing the temperature of the GC or by changing the length of the column. Yet, forensic laboratories continue to have problems with co-elution and the separation of samples.

Contamination Issues A recurring issue in all forms of chemistry is the appearance of unexpected and unknown substances in the test results. Forensic blood testing seems to be particularly susceptible to contamination. Sometimes we know what the substance is that is contaminating a sample. Set out below is an example of a calibration solution identified by the GC as tolulene (a substance used to clean carburetors that is all found in the blood of individuals who “huff” solvents).

32

Other times the contaminant is complete unidentified by the GC. Below is an example of an unknown contaminant appearing in a calibration solution.

Whether the contaminant is identified or not, when unexpected substances

33

appear in blood test result, the quality assurance and quality control measures have failed.

When asked about these test results, crime laboratory analysts will

consistently respond that they don’t know what the substance is, and they don’t know where it comes from, but you can clearly see that it is not ethanol. It is not interfering with the ethanol reading in any way, they claim, and therefore it doesn’t matter what it is or where it comes from.

Blood tests are scientific tests, and from a scientific perspective,4 to claim that a test result accurately measures ethanol, and only ethanol, good scientific practices and procedures must have been followed. This means that when an unknown substance appears in a blood run, we must be able to identify what it is, where it came from, and we must be able to determine that it is the only unknown substance in the run. If we can’t reach these conclusions, then there is no basis for concluding that what we see is the only unknown substance in the blood run. If we can’t rule out other unknown substances in the blood run, then we can’t rule out the possibility that there is a substance eluting out with alcohol artificially elevating the ethanol reading.

When an unknown substance appears in a blood run, the analyst should document what has occurred. A root cause analysis should then be performed – an

4A scientific perspective as opposed to a legal perspective. State’s analysts often respond that they are not legally required to perform certain actions when there is an issue in their lab. But this misses the point: scientifically valid results depend on good scientific practices and procedures being followed in a laboratory, regardless of what the non-scientists in the state legislature have determined is required for results to be admissible in court.

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investigation to determine what the unknown substance is, where it came from, and how it got into the blood run. Once the scope of the problem has been determined and corrective action taken, the entire event and investigation should be documented so that if the situation is ever encountered again, another analyst will have a ready reference as to what the problem is and how to solve it.

In fact, however, these actions are rarely taken. As mentioned at the onset of this article, blood testing in a forensic laboratory is mass-produced assembly line work. Shutting down the system to determine the scope of a problem and fix it will delay cases and make managers and prosecutors unhappy. Documenting issues means giving fodder for cross-examination to defense attorneys. Nor is taking action to ensure that good scientific practices are being followed rewarded, financially or through job promotion. Analysts who insist on getting to the bottom of contamination issues are more likely to be ostracized than lauded for their efforts.

Data Manipulation Never forget that a gas chromatograph is an oven hooked up to a computer.

Blood test results, like any other computer results, can be changed after the fact by the user. If an analyst does not like the way a chromatogram looks, she can go into the computer and reset the parameters – change the baseline, making it higher or lower to hide contamination peaks, or change the area of the peak being measured.

35

Below is an example where the GC was measuring the area of the peak from a spike below the baseline.

The analyst went into the computer and reset the

parameters, changing the GC’s measurement of the peak size. We know this occurred only because the analyst was honest and included both chromatograms in the information disclosed.

While it is impossible to say how often blood test results are changed without the

36

analyst documenting that it has occurred, experience teaches us that it certainly does occur in some cases.

III.

Software Issues It was not until the past few years that it has come to light that forensic

laboratories throughout the Country have been experiencing serious issues with the software that measures the voltage of the test sample and creates the chromatograms that are produced. Once again, it is worth noting that the vast majority of the time, analysts make decisions about the accuracy of blood test results by reviewing the printed test results without viewing the electronic blood testing data.

In the past few years we have discovered that gas chromatograms sometimes fail to analyze samples and/or produce testing data. One example, set out below is when the GC stops collecting data and/or stops displaying data for samples being tested at the beginning of the test of a sample.

Note that the GC, according to the analyst, mislabeled the problem sample as vial 68 when it was really vial 69. Recall that all blood test results reported are based on the analyst’s belief as to what sample was contained in that particular slot of the carousel.

37

Other times the GC stops collecting/reporting information at the end of the test of a sample, as shown in the example below.

Note that the baseline stops before the end of the sample being processed,

38

resulting in only one peak being displayed in the bottom column.

Other issues with software include the chromatograms attributing wrong names to the samples being tested, as in the example below.

Other times, the GC prints out the wrong vial numbers for the samples, including printing out the printing out the same wrong number for every vial, as in the example below.

39

Finally, there are times when the software will attribute all of the information form one test sample to another sample.

When this occurs the

chromatogram will adopt all of the information from one sample and attribute it to another sample – the wrong vial number, the wrong date and time, the wrong information about what is being tested. In the sample below, the GC stopped collecting data when it was testing vial 64. When this malfunction occurred, it attributed all of the information from vial 1 to vial 64. The real vial 1 is displayed on the left. Fake vial 1 (actually vial 64) is on the right.

40

If we cannot look at the printed blood test results and determine what was actually tested and when it was actually tested, the whole basis of headspace gas chromatography has been destroyed. The analyst cannot view the printouts of test results and determine what was tested or when it was tested, let alone opine that a printed test results is an accurate and reliable measurement of a defendant’s blood alcohol concentration.

Similarly, there is no way to read a printout from the laboratory’s software and independently determine that a particular chromatogram reflects the alcohol concentration of a particular person. The only way to reach this conclusion is to

41

take it on faith that the analyst correctly labeled the vials that were tested, and placed them into the carousel in the correct sequence – that the contents of vials 52 and 53, really do contain Ms. Client’s blood. No one possesses the ability to look at what was printed out by the computer and determine that the unknown samples were placed where they were supposed to be placed, or which vials (if any) contained Ms. Client’ blood.

In the end, there are many viable challenges to the accuracy and reliability of blood test results, especially when the analyst relies on the paper chromatograms to make decisions about the blood test results. As hopefully has been made clear, no one can review the printed chromatograms and determine that the blood samples being tested were correctly created, placed in the correct sequence, or that the results were accurately reported by the lab’s software system.

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Crossing the Blood Analyst

By Joe St. Louis Nesci & St. Louis 216 N. Main Avenue Tucson, Arizona 85701 (520) 622-1222 joestlouis@azdefense.com Most criminal defense attorneys are uncomfortable challenging science in court. In particular, we find the prospect of cross-examining the state’s expert daunting - somewhere between stressful and terrifying. As defense attorneys, we are good at writing, at constructing an argument, and at persuading judges and juries. Give us a police officer to cross, and we can rip them to shreds without even breaking a sweat, because they are playing on our turf.1 We know the facts, we know what the weaknesses in the state’s case are, and we are not only comfortable cross-examining them, we look forward to it. But when it comes the state’s analyst, we are outside of our comfort zone. When it comes to science, the analyst has the home field advantage. There are ways to become comfortable with cross-examining blood analysts, and even to look forward to the cross-examination of the blood analyst as much as the cross of the arresting officer. We will discuss how to do that, but first let’s talk about what we are up against, and why we are the ones who have to explain science to the jury.

1

Although, as set out below, there are good reasons not to tear a witness to shreds, even if you can do so easily.

1

The History of DNA Evidence: Why We Have to Explain Science to Juries, Not the State When DNA testing was first being introduced as evidence in court, prosecutors were worried that jurors would reject this “new” science as being unreliable. As a result, they worked hard to establish that the science of DNA produced accurate results that the jury could rely on. They would walk the jury through the process of how a DNA sample is created, tested and evaluated in depth, one step at a time. During this lengthy presentation, they would draw the sting by discussing potential errors that occur during the testing process, and how the lab tried to ensure that they didn’t occur in the case on trial. Having the evidence presented to the jury in this manner was helpful to the defense – the state had identified their weak areas, and the jury had heard about these problem areas from the state’s own witness – so the defense could simply focus their cross on the issues that affected the reliability of the test results.

But then the prosecution realized that jurors, and the public at large, had seen so many reports about the reliability of DNA as a science – prisoners exonerated through DNA testing, cold case DNA hits resulting in arrests in rape cases - that DNA had become accepted as a reliable science by the public at large, for the most part. And then the presentation of DNA testing in court changed dramatically.

Instead of a lengthy and detailed explanation of how DNA works and a description of the issues that commonly arise during testing, the introduction of DNA results became short and oversimplified: How did you create this sample? Is that the way you always do it? Is that a scientifically reliable way to create DNA evidence? Did anything unusual

2

happen during the DNA testing? Do you have confidence in the results? Move for the admission of the test results.

This manner of introducing evidence has two distinct disadvantages for the defense.

First, the judge hasn’t heard about any issues that might prevent the test result from being admitted, because they haven’t heard anything about laboratory or testing issues that might give them pause.2 If you ask to voir dire the witness to challenge the foundation for the admission of the evidence, after a few questions you will invariably be told that you can cover this during cross-examination, and the evidence will be admitted over your objection.

The second issue is that in order to explain what can go wrong, and why the results are unreliable, you have to explain how the testing process works. Instead of the state having to trudge through the science to establish why the results are reliable, you have to be the one to explain to the jury how the science works in order to show what can go wrong, how that occurred in your case, and why that makes the results unreliable.3 The same is true with blood alcohol testing. There are many things that can go wrong with blood testing – improperly-collected samples, analyst errors and equipment errors are all common. But to understand how these errors impact the test results, the jury first has to

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This assumes that you have a judge capable of understanding the issues with scientific testing, and willing to pull the trigger and exclude evidence if it is unreliable. In the author’s experience, many judges have no background in science, and appear to have no desire to learn what issues make a test result unreliable. Fewer still seem interested in excluding unreliable evidence when they can simply rule that any issue with the testing, no matter how serious, is a matter of weight for the jury to consider, rather than making the result inadmissible.

3 Nothing warms the heart a defense attorney more than being called to the bench halfway through a defense expert explaining the testing process to a jury, to have the judge ask “This is all interesting counsel, but what is the relevance to this case?,” and after you explain that there are issues with the testing laboratory, and that you have to explain the testing process to the jury so they can understand how those issues make the results in this case unreliable, having the judge respond “I’ll give you 10 more minutes.”

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understand how blood testing works - and you are going to have to be the one to explain that to them.

Explaining Blood Testing to Juries In order to explain blood testing to juries, you have to understand the testing process, and what can go wrong that affects the results. Anyone can learn the process of how blood testing works, but it does require commitment. Personally, I got sick of lab experts not answering the questions I asked and taking me off on tangents with their non-answers. I could tell that they weren’t answering my questions, but I didn’t know enough about blood testing to be able to stop that from happening, and to make them answer the questions I was actually asking. I would get twisted up on the terminology or a scientific concept I didn’t understand fully, and they would slide off the hook. It made me angry enough that I dug in and learned how blood testing works. I genuinely have no background in science, so if I can do it, so can you.

To understand how blood testing works you have to attend lectures that explain and walk you through the blood-testing process in depth. Most of us will be exposed to scientific concepts that are unfamiliar, and that we don’t understand the first time we hear them – metrology, salting out - which can feel overwhelming. So, we have to attend lectures explaining the process multiple times before these concepts sink in. While there really is no substitute for attending lectures, seminars and courses that explain blood testing, I have provided a separate article that gives an overview of the issues that commonly occur in

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blood testing, entitled An Introduction to Blood Alcohol Testing: Issues in Collection, Testing and Software, which may be of help.4 Beyond that, it is important that you learn the terminology, as set out in the article described above. Never undercut your authority with the jurors by saying the equivalent of “Gosh, I really don’t understand all this scientific mumbo-jumbo.” Rather than creating a bonding moment with jurors over your shared lack of understanding of science, they will roll their eyes at the prospect of having to endure a cross-examination by someone who doesn’t understand the issues they are asking questions about, and will not look to you as an authority. It is okay to put yourself on an equal footing with the jury – “We are all going to learn about this together” – but not to admit that you know less about the subject than the witness.

When you are explaining blood testing to a judge or jury, use pictures. The state doesn’t use them because they don’t need the jury to understand how blood testing works.

They don’t want the jury to understand that each and every blood sample the state’s analyst prepares has an equal opportunity to produce an artificially-elevated result, even if the results of every control and calibrator are spot on. By demystifying the blood testing process through showing the jury what the equipment looks like and how it works, you will help them understand how easy it is to make a mistake that affects the test result, and to accept that reasonable doubt exists in your client’s case.

4

The author recommends the National College for DUI Defense’s Serious Science courses in blood alcohol and blood drug testing, examples of what Indiana University’s website for the Borkenstein Courses describes as one of NCDD’s “excellent training programs” (https://bcahs.indiana.edu/). However, he has been an instructor at that course since 2016, so understand that he is biased.

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Telling a Story and Making the Jury the Heroes of that Story.

When you are trying a case, you are telling a story. The story may be that there is an over-anxious police officer who thought your client’s perfectly innocent actions showed impairment – your client drove over a line divider because they were changing the radio station, they made counting errors during field sobriety testing because they were nervous.

It may be that the arresting officer is a jerk who made your female client urinate in the bushes in front of a closed business rather than driving her half a block to a convenience store to use the restroom. In truth, most DUI cases are won through the cross of the arresting officer. If the jury thinks that your client shouldn’t have been arrested, or dislikes the arresting officer or their actions, all you have to do is give them a reason to reject the blood test evidence. But you have to give the jury a role in the story, and their role is always the same: They are the heroes of the story – the only ones who can fix the problem by rendering a not guilty verdict.

I say this from experience. I had a case where there were a multitude of issues with the blood test. The results from the gas chromatograph perpetually had a peak that the lab determined wasn’t coming from the blood samples being tested. The lab couldn’t get rid of this peak, even after they rebuilt the machine from scratch. After they rebuilt it from scratch, they input the wrong calibrator values, and no one noticed – for sixty-six blood runs in a row. After they tested my client’s blood the refrigerator went out, and the blood cooked at over ninety degrees over a long holiday weekend, so there was no reliable blood sample left for retesting. Great case, right?

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At trial I sliced and diced the analyst on the stand. I ripped him over every failing of the crime lab. I made him look foolish. And the jury convicted my client on all counts.

After the trial the jurors stayed and talked with me. The foreperson told me “Someone should really do something about that lab,” and the other jurors nodded in agreement. I wanted to shout at them that they had just had a chance to do something about it, but had given the lab a pass, but I kept my mouth shut and tried to figure out what had happened.

What I didn’t realize at that time was that by destroying the analyst through my cross, I had taken away the need for the jury to fix the problem. The analyst had been punished for all of his lab’s failings by being publicly humiliated; there was nothing left for the jury to do, so they could convict my client with a clear conscious, and even commiserate with me on how badly screwed up the lab was after the fact. They were spectators watching a story play out to its conclusion, with no role to play in the story.

Now when I cross-examine an analyst, my goal is to make it clear that there is a problem that makes the blood results unreliable, and that the problem can only be fixed by the jury, through a not guilty verdict. I tell them that directly in closing: “The state wants you to sign off on this. To say it’s close enough for government work. But the only way this gets fixed is if you say it needs to change, through a not guilty verdict.” You want the jury to come to you afterwards and tell you that you weren’t nearly hard enough on the analyst or the lab, that they really deserved to called out for the problems in the lab, because when a jury tells you that it means that you showed them that there was a real issue in the lab, and that you didn’t fix the problem through your cross, so they had to do it through their verdict.

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Choosing the Villain of the Story You are going to trial and there is an issue with your client’s blood test. It doesn’t matter what the issue is. Malfunctioning blood testing equipment, contamination in the blood run, whatever. The story is that the blood test result is unreliable because of this issue. You need to decide who the villain of the story is, and that may depend on who your analyst is.

Generally speaking, there are two types of analysts. Young, inexperienced analysts (puppies) who believe the experienced analysts in their lab who tell them that the issues in the blood run don’t affect the results and aren’t a problem. The puppies testify to this because they believe it – they trust what the experienced analysts are telling them, because they don’t know any better. The second kind of analysts are experienced lab analysts who know better – they know that contamination in a blood run is a real problem and that the results shouldn’t be reported until a root cause analysis is performed and the issue is resolved - but they just don’t care. So, they testify that, sure, there’s something unexpected in the blood run, but it isn’t ethanol and it doesn’t affect the BAC result.

It’s not hard to understand how analysts get jaded. You are a lab analyst. You had an interest in science which is why you got a degree in chemistry in college in the first place. Then you got hired at a crime laboratory, and your job is now to make samples all day, then go to court and get beat up by defense attorneys. Contamination is showing up in your blood runs. You have a choice. You can shut down the equipment, perform a root cause analysis and not allow any testing to be conducted until the issue has been fully resolved. Your boss will be unhappy that no testing is being performed. The prosecutors 8

will be unhappy. The judges will be unhappy. But, you will have the satisfaction of knowing you did the right thing, the lab is following good scientific procedures to produce accurate and reliable results - and, of course, you will be paid your salary.

Your other choice is to not do anything to fix the problem, and instead go to court and testify that, sure, there is something unexpected in the blood run, but it isn’t alcohol, so the result is still reliable – whatever is on there isn’t affecting the blood alcohol result.

Your boss will not be unhappy. The prosecutors will not be unhappy. The judges will not be unhappy. And, of course, you will still be paid your salary. It’s easy to see how many analysts end up taking the easy way out, and why they do it.

So, who is the villain of your story? Is the analyst who doesn’t care enough to do the job right? Or is it the lab who won’t give the analyst the resources they need to fix the problems in the lab and perform scientifically valid testing that produces accurate and reliable test results? It is, of course, always easier to attack the lab, rather than the witness on the stand. If you go after the analyst, and the jury sees them as someone who is just doing their job, just doing the best they can, you will lose, because the jury won’t see them as a villain creating a problem that they need to fix.

Putting it All Together You have discovered an issue with the blood testing in your case. It is the hook you are going to use to convince the jury that the blood test results are unreliable, and that they need to make sure that this doesn’t happen in the future. You have some decisions to make about who the villain is in your story that will affect how you will cross-examine the analyst.

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If you know the analyst, you may want to use them to bring out favorable facts on cross. There is one analyst that I cross-examine regularly who used to teach chemistry. He loves to get up on his feet, draw on the board and explain things to the jury (which, oddly, the state never asks him to do). If there are parts of the case that are favorable to me – my client’s reported drinking history would put them below .08 – I get him on his feet explaining how we calculate a BAC based on gender and weight, and have him write out the calculations showing that my client would have never been over the legal limit. I don’t even ask leading questions during this portion of the cross, since he, the state’s witness, is the one explaining the science that helps my client. (A favorite trial moment of mine was when we were going through this exercise on cross in one trial and I asked some question after which the prosecutor jumped to his feet and objected: “Leading.” The judge looked at him, genuinely puzzled, and said, “This is cross.” The prosecutor responded sheepishly: “Oh. Withdrawn.”).

But, realize that by crossing the analyst in this manner I have humanized the state’s witness and given him credibility. You can’t do that if you are going to make the analyst the villain in your story. This lab has many problems with its blood testing equipment, so the majority of the time the lab is the villain in my cases – not allowing the analysts the resources to perform scientifically valid testing, allowing unreliable blood test evidence to be presented in court. The analyst on the stand is just being loyal to his employer, not throwing them under the bus, not wanting to make them look bad. So, you cross-examine him gently on the issues with the equipment and show the jury it is a real problem because it can produce artificially-inflated results. Then, during your closing argument, you give 10

the jury your call to action – you explain that they are the only ones who can fix this problem, and ask them to do so.

Finally, I use a defense expert in the vast majority of my cases. I use the state’s expert to explain how the testing should be performed, and what the issues are in the blood run, or in their lab. I don’t try to get them to concede that these issues make the test results unreliable – because, frankly, they never will. I use my expert to explain why the issues are a real problem to the jury. In the rare instance in which I don’t use an expert, I explain this to the jury myself during closing argument. You can only get so far using the other side’s witness. But if you use your cross to walk them through the problems in their lab or in your client’s blood test, and explain what good science requires that they are not doing in their lab, you can lay out for the jury that there is a problem that needs to be fixed – and show them that they are the only ones who can do it.

I hope this article was useful to you. My information is included at the start of the article. If I can be of help, please reach out.

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