19th Annual Stuart Kinard DWI

19th Annual

Stuart Kinard AdvanceD DWI Seminar

November 2-3, 2023 Menger Hotel • San Antonio, TX

Course Directors Bobby Barrera, Adam Kobs, Ashley Morgan, & Gary Trichter P: 512.478.2514 • F: 512.469.9107 • www.tcdla.com • 6808 Hill Meadow Dr, Austin TX 78736

19TH ANNUAL STUART KINARD ADVANCED DWI SEMINAR INFORMATION Date Location Course Directors Total CLE Hours

November 2-3, 2023 Menger Hotel 204 Alamo Plaza, San Antonio, TX 78205 Bobby Barrera, Adam Kobs, Ashley Morgan, & Gary Trichter 12.75

Ethics: 1.0

Thursday, November 2, 2023 Time

CLE

Daily CLE Hours: 7.0 Ethics: 0

Topic

Speaker

7:30 am

Registration & Continental Breakfast

8:10 am

Opening Remarks

Course Directors

How to Use Experts Effectively

Don Flanary

8:15 am

.75

9:00 am

Break

9:15 am

.75

Probation Conditions Misdemeanor and Felony

Stephanie Stevens

10:00 am

1.0

Voir Dire

David Burrows

11:00 am

Lunch On Your Own

12:15 pm

1.5

Finding Reasonable Doubt in the Blood Data Pre and PostAnalytical Errors

Dr. Kevin Schug

1:45 pm

.75

Application of Blood Data and the Roadmap for Criminal Defense Cases

Ashley Morgan

2:30 pm

Break

2:45 pm

1.0

Breath Testing Cases

Jarrod Smith & Brad Vinson

3:45 pm

1.25

Closing Arguments

Michelle Behan

5:00 pm

Adjourn

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

19TH ANNUAL STUART KINARD ADVANCED DWI SEMINAR INFORMATION Date Location Course Directors Total CLE Hours

November 2-3, 2023 Menger Hotel 204 Alamo Plaza, San Antonio, TX 78205 Bobby Barrera, Adam Kobs, Ashley Morgan, & Gary Trichter 12.75

Ethics: 1.0

Friday, November 3, 2023 Time

CLE

Daily CLE Hours: 5.75 Ethics: 1.0

Topic

Speaker

7:45 am

Registration & Continental Breakfast

8:10 am

Opening Remarks

Course Directors

8:15 am

.75

Using the ALR Hearing to Prepare to Cross the Arresting Officer

Adam Kobs

9:00 am

1.0

Using the Defense Expert to Undo the SFSTs

Lisa Martin

10:00 am 10:15 am

Break 1.0

11:15 am

Successfully Attacking Blood Search Warrants

Gary Trichter

Lunch On Your Own

12:30 pm

1.0

DWI Motions

Amber Vazquez

1:30 pm

1.0 ETHICS

Ethics

Betty Blackwell

2:30 pm 2:45 pm 3:45 pm

Break 1.0

Collateral Consequences

George Scharmen

Adjourn

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

Texas Criminal Defense Lawyers Association

Rusty Duncan Table of Contents Thursday, November 2, 2023 speakers Stephanie Stevens

topic Probation Conditions Misdemeanor and Felony

Dr. Kevin Schug

Forensic Blog Articles

Ashley Morgan

Gas Chromatography – The Lawyer’s Roadmap to Success

Jarrod Smith & Brad Vinson Michelle Behan

Breath Testing – 2023 Update Boats to Build: Sealing the Deal in Closing Arguments

Friday, November 3, 2023 speakers

topic

Adam Kobs

Using the ALR Hearing to Prepare to Cross the Arresting Officer

Lisa Martin

Using the Defense Expert to Undo the SFSTs

Gary Trichter Betty Blackwell George Scharmen

Blood Search Warrant Affidavits and Oaths: Avoiding Ineffectiveness!

ETHICS – Dos and Don’ts with Clients Collateral Consequences for Driving While Intoxicated

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

Texas Criminal Defense Lawyers Association

19th Annual Stuart Kinard Advanced DWI November 2-3, 2023 The Menger Hotel San Antonio, Texas

DWI Conditions of Probation

Speaker:

Stephanie Stevens 2507 NW 36th St San Antonio, TX 78228-3918 210.431.5710 phone 210.431.5750 fax sstevens@stmarytx.edu email

Co-Author: Betty Blackwell

Law Office of Betty Blackwell 1306 Nueces St Austin, TX 78701 512.479.0149 Phone 512.320.8743 Fax bettyblackwell@bettyblackwell.com Email www.bettyblackwell.com website

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

19TH ANNUAL

STUART KINARD ADVANCED DWI SEMINAR NOVEMBER 2-3, 2023 DWI CONDITIONS OF PROBATION

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DWI PROBATION CONDITIONS BY STEPHANIE L. STEVENS ATTORNEY AT LAW BOARD CERTIFIED CRIMINAL LAW 2507 NW 36TH STREET SAN ANTONIO, TEXAS 78228 210-431-5710 sstevens@stmarytx.edu AND BETTY BLACKWELL ATTORNEY AT LAW BOARD CERTIFIED CRIMINAL LAW 1306 NUECES STREET AUSTIN, TEXAS 78701 512-479-0149 bettyblackwell@bettyblackwell.com

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DWI PROBATION CONDITIONS Driver’s License Suspension and Jail As a Condition of Probation DWI 1st offense is a Class B misdemeanor which if probated does not result any driver’s license suspension, as long as the defendant completes the DWI education course within 6 months of being placed on probation. Article 42A.406 CCP. Starting 9/1/2019 the defendant arrested on or after that date is eligible for deferred adjudication with an interlock device as long as the defendant did not have a commercial driver’s license. The Transportation Code only refers to “convictions” and “final convictions” under Article 49 being subject to driver’s licenses suspension, so that a deferred adjudication should not result in any additional license suspension.

If the sentence is probation, on a 1st offense, the trial court is without authority to order a corresponding license suspension as long as the condition of probation includes the required alcohol education course. Love v. State, 702 S.W.2d 319 (Tex. App. Austin 1986). However, beware of Burg v. State, 592 S.W.3d 444 (Tex. Crim. App. 2020) which held this issue could not be raised for the 1st time on appeal as an illegal sentence. The Court held that the license suspension is not part of the sentence or probation terms, and thus did not affect the legality of the sentence. The objection to suspending the license of a 1st time probated DWI, with the education course required, must be raised at the trial court to appeal any adverse decision.

If the sentence is a jail sentence, the license is automatically suspended under Transportation Code §521.341 from 90 days up to one year per Transportation Code §521.344. The code states that the court shall grant the defendant credit against the suspension for the Administrative License Revocation suspension for failure of a breath or blood test or refusal to provide a specimen [referred to as ALR credit] against this mandatory suspension and the suspension may begin no later than the 30th day after the conviction as set by the court. See §521.344(c) Transportation Code for credit for refusal ALR suspension and §524.023(b)Transportation Code for credit for failure ALR suspension. Credit can only be applied to a 1st offense

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DWI. Even if the DWI 2nd is reduced to a DWI-1st conviction, DPS will not honor a request for credit for the ALR suspension as the Transportation Code states the credit cannot be extended to a person who has been previously convicted for an offense under §49.04. DPS has in the past interpreted “has been convicted” to exclude cases in which the person received deferred adjudication. Thus, it remains to be seen if a person has completed deferred adjudication for a DWI case and is subsequently convicted in a subsequent DWI case, whether the court can award credit for the ALR suspension that DPS will honor.

DWI with .15 or higher is a Class A misdemeanor with no mandatory jail time, but if probation is granted, an ignition interlock device is required for half the term of probation. §521.344 (d)(2) of the Transportation Code provides that DPS may not suspend the driver’s license for someone placed on community supervision who is required to not operate a motor vehicle unless the vehicle is equipped with an interlock device. There is no driver’s license suspension as long as the person receives community supervision and is required to complete an education course, within 6 months of being placed on probation.

DWI-1st offense under 21 years of age is either a Class B misdemeanor or a Class A misdemeanor if the alcohol concentration is .15 or higher. If the person is younger than 21 years of age at the time of the offense, the judge who places the defendant on community supervision must suspend the driver’s license for 90 days beginning on the date of the community supervision. Article 42A.407 (f)C.C.P. The judge must order as a condition of community supervision, that the defendant not operate any motor vehicle unless it is equipped with an ignition interlock device. Article 42A.408(e)C.C.P. If the sentence is a jail sentence and not community supervision, then the license suspension is for one year. See §521. 343 Transportation Code. There is no ALR credit available to someone under 21 years of age at the time of the DWI offense. §521. 344 (c)(2) Transportation Code.

DWI-2nd offense’s range of punishment is from 30 days up to one year in jail and/or up to a $4000.00 fine. The jail time can be probated, but 42A requires at least 72 hours of continuous confinement. Article 42A.401(a)(1) C.C.P. The jail time on a 2nd offense probation is up to a maximum of 30 days as a condition of probation. The license suspension is from 180 days up to two years. However if the prior DWI offense date is within 5 years of the conviction date, then the minimum license suspension 4

is one year and the minimum jail time as a condition of probation is 5 days.

See Article 49.09(h) Penal Code. The trial court does not have to give the defendant credit for time already served against the mandatory 72 hours of confinement. Martinez v. State, 427 S.W.3d 496 (Tex. App. San Antonio 2014) An open plea could not be set aside based on a claim of involuntariness, even though the defendant believed that she would not receive jail time. She had pled unnegotiated to a DWI-2nd offense, which the appellate court noted required jail time as a condition of probation. Cortez v. State, 971 S.W2d 100 (Tex. App. Ft Worth 1998) This analysis would be the same, if the defendant pled guilty believing the driver’s license would not be suspended, but was notified by DPS that it was in fact suspended due to the conviction.

The driver’s license suspension for a 2nd offense is mandatory and no ALR credit can be given toward this suspension. Article 42A.407(b) C.C.P. starts out with the words “Notwithstanding Section 521.344(d-i), Transportation Code” which means that the Transportation Code provisions about not suspending the license if an educational course are required as a condition of probation, do not apply to convictions for 2nd and 3rd DWI offenses. The Texas Department of Public Safety will impose a one year suspension if they receive notice the defendant is required to attend a subsequent educational program, even if the charge is reduced to a DWI-1st offense, if the driving record reflects that the defendant has previously been required to attend an educational program, or it has been waived. See Article 42A.407 C.C.P. Felony DWI: The driver’s license suspension is from 180 days up to two years, with no credit for any ALR suspension. If the prior conviction is within 5 years, under Section 49.09(h), the driver’s license suspension must be for a minimum of one year, up to two years. Probation including an interlock device, and required educational course will not prevent DPS from suspending the license, if the trial court fails to impose a suspension. See Article 42A.407(c)C.C.P. Driving While Intoxicated with child passenger younger than 15 year of age, is a state jail felony. Section 521.344 of the Transportation Code, states that anyone convicted under §49.045 is subject to a driver’s license suspension of not less than 90 days or more than one year. However, §521.344 (d) provides that DPS may not suspend the license if the person is required to complete an educational program during a period of probation.

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Article 42A.407 C.C.P. and §521.344 (d)(1) provide that the defendant may request that the jury make a recommendation about whether the driver’s license should be suspended, if the jury recommends community supervision.

If the jury recommends against a suspension, none shall be entered by DPS. Intoxication assault that does not involve injury to a specified person listed in §49.09(b-1) Penal Code, [firefighter, EMS, police officer or judge], it is a 3rd degree felony requiring a minimum of 30 days in jail, if the sentence is probated. If the person caused another to suffer a traumatic brain injury that results in a persistent vegetative state, it is a 2nd degree felony under §49.09(b4) Penal Code. If a jury recommends community supervision, it may also recommend that the driver’s license not be suspended. Otherwise, Section 521.344 Transportation Code provides that driver’s license can be suspended from 90 days up to one year.

Intoxication Manslaughter that does not involve the death of a specified person in §49.09(b-1) is a 2nd degree felony requiring a minimum of 120 days of confinement, if the sentence is probated. It is a 1st degree felony if the victim is a firefighter, EMS, peace officer or judge. If a jury recommends community supervision, they may also recommend that the driver’s license not be suspended. Section 521.344 Transportation Code provides that the license may be suspended by the Court for not less than 180 days or more than two years.

Deferred Adjudication Effective September 1, 2019 Article 42A.102(b) allows deferred adjudication for 1st DWI & BWI occuring on or after 9/1/2019 unless the defendant held a commerical driver’s license, or had an alcohol concentration of 0.15 or more. The court shall require as a condition of the community supervision that the defendant have an ignition interlock device installed and that the defendant not drive a motor vehicle without that device. The judge may waive the interlock requirement, if based on a controlled substance and alcohol evaluation of the defendant, the judge determines and enters in the record that the interlock is not necessary for the safety of the community.

Article 49.09(g) Penal Code is amended to provide that for the purposes of this section, deferred adjudication can be used for enhancement for a subsequent DWI charge.

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The issue is whether DPS will interpret a deferred adjudication as a conviction for driver’s license issues. Under the Transportation Code and Code of Criminal Procedure, driver’s licenses are only suspended for those under 21 upon conviction of a DWI. If deferred adjudication is not a conviction for those sections of the law, then DPS could honor a court order not to suspend the license of a person under 21. A phone call to DPS Enforcement and Compliance division resulted in a manager stating that the DIC-17 is not sent to DPS on any deferred adjudication, and this was confirmed with our local county clerk’s office so that no license suspension should result.

Deferred adjudication and the use of prior probations in DWI cases Beginning in 1979, the Legislature amended Article 42.12 CCP, now Section 42A.102, to delineate that DWI offenses were not eligible for deferred adjudication. The Legislature, effective September 1, 1997, created a new class C offense of Driving with a Detectable Amount of Alcohol by one who was under 21 years of age. DUI minor cases are eligible for deferred disposition which has caused confusion by many with deferred adjudication.

Starting January 1, 1984, a sentence on a DWI was considered a final conviction for enhancement purposes regardless of whether it was probated or not. See §49.09(d) Penal Code. Though this section refers to a date of September 1, 1994, case law makes it clear that the prior law which allows probation to be used for enhancement, is still in effect for all offenses committed after January 1, 1984. Ex parte Serrato, 3 S.W.3d 41 (Tex. Crim.

App. 1999). The legislature eliminated the remoteness rule, effective September 1, 2005. Previously, DWI convictions from more than 10 years prior to the new arrest date could not be used for enhancement purposes. The date of the probation is important because probated sentences prior to January 1, 1984, including prior deferred adjudications, can not be used for enhancement purposes. State v. Wilson, 324 S.W.3d 595 (Tex. Crim. App. 2010) The finality of probation did not originally apply to intoxication assault and manslaughter cases. Probation in those cases became final convictions on or after September 1, 1994. Ex parte Roemer, 215 S.W.3d 887 (Tex. Crim.

App. 2007). Use of a completed deferred adjudication on an offense committed before 1979, for enhancement would violate the Ex Post Facto provisions of the Texas Constitution. See Scott v. State, 55 S.W.3d 593 (Tex. Crim. App. 2001)

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The 2005 DWI enhancement provision removing all time limitations on the use of prior DWI convictions was held to not violate the prohibition against ex post facto laws. Englebrecht v. State, 294 S.W.3d 864 (Tex. App. Beaumont 2009) However, both the conviction date and the offense date must occur after January 1, 1984, in order for the conviction to be used for enhancement. Nixon v. State, 153 S.W.3d 550 (Tex. App. Amarillo 2004).

The issue that has arisen involves a probation that has been completed, and whether a completed felony probation on a DWI can be used to raise the next felony DWI from a 3rd degree felony to a 2nd degree felony. Article 49.09(d) treats probation as a final conviction only “for purposes of this section”. Chapter 12 Penal Code, sets out the enhancements provision of a 3rd degree felony based on the defendant having been finally convicted of a felony other than a state jail felony. Section 49.09(g) states that a conviction can be used for enhancement under Chapter 49 of the Penal Code or Chapter 12 of the Penal Code, but not both. Rivera v. State, 957 S.W.2d 636 (Tex. App.Corpus Christi 1997).

The prior completed felony probation will prohibit the person from receiving community supervision on a subsequent felony DWI conviction as the prior is a conviction which makes the defendant ineligible for a subsequent probation from a jury.

The Court of Criminal Appeals has held that even in cases where the trial court has granted judicial clemency, the defendant is still ineligible for probation from a jury. Yazdchi v. State, 428 S.W.3d 831 (Tex. Crim. App. 2014) Surcharges/Fines In 2019, Chapter 708, Transportation Code was repealed. As of September 1, 2019, DWI surcharges are no longer allowed. Additionally, DPS shall reinstate any driver’s license that it suspended under Section 708.152, if the only reason the driver’s license is suspended is failure to pay a surcharge under chapter 708.

However, a new Chapter 709 was created to add a new “fine” to convictions for DWI. On a final conviction the person shall pay a fine of: (1) $3000.00 for the first conviction within a 36 month period; (2) $4500 for a second or subsequent conviction within a 36 month period; and

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(3) $6000.00 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

If the court makes a finding that the person is indigent, the court shall waive all fines and costs imposed under this section. This money is paid to the county and they may retain four percent of the money collected. Failure to pay does not result in the suspension of the driver’s license.

Texas District and Count Attorney’s Association has published in their 2019 Legislative Update their opinion that this new “fine” only applies to DWI jail sentences because the legislation does not define final conviction to include probated sentences as did the previous Section 708 of the Transportation Code. It would not apply to any of the new deferred adjudication sentences. They also stated that to avoid ex post facto and retroactive law prohibitions of the U.S. and Texas constitutions, the new “fine” will only apply to offenses after September 1st, 2019.

Final convictions without probation Credit for an ALR suspension can only be applied to suspension for convictions of 1st offense DWI cases, over 21 year of age at the time of the offense. It is possible to be sentenced to 3 days in jail with a 90 day license suspension with credit for the 90 day license suspension imposed at the Administration License Revocation and court costs. The prosecutor must agree that the suspension be set at 90 days, as it is up to a maximum of one year suspension, but the Transportation Code mandates credit for the ALR suspension. The new “fine” will still be assessed unless the person is indigent and the court makes that finding.

Many defendants consider the possibility of taking a final conviction (jail sentence) on misdemeanor DWI cases to avoid all the conditions of probation and the interlock device. However, if the license is suspended for potentially up to two years, the defendant will still be required to obtain the interlock device if they apply for an occupational license under §521.246 of the Transportation Code.

Occupational Driver’s licenses §521.242 Transportation Code provides that an application for an occupational license must be filed in the court in which the person was convicted if that conviction automatically suspended their driver’s license.

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Over the years the legislature would add restrictions to this section, including that the person could not have been issued more than one occupational license in the 10 years preceding the petition, after a conviction. The state was entitled to receive notice of the application if the license was suspended for an offense under Sections 49.04-49.08 or Section 19.05 of the Penal Code or Section 521.342 Transportation Code. §521.245 of the Transportation Code was added to require alcohol counseling for an ALR suspension.

This section requires a showing of essential need and §521.248 Transportation Code restricts the driving to 4 hours in a 24 hour period or 12 hours if a necessity is shown and it requires the court to set the days of the week and the areas or routes of travel permitted and the reasons for the driving.

In 2001 the Legislature added §521.251to the Transportation Code to provide for blackout periods where a person was ineligible to apply for an occupational license based on their history of suspensions, the longest of which was a one year prohibition based on a subsequent conviction suspension within 5 years.

Finally, the Legislature realized that the better practice was to allow individuals to apply for and receive an occupational license, but to require the installation of an interlock device. Starting in 2015, the Legislature added §521.246 to the Transportation Code to require the installation of an ignition interlock device for an occupational license based on a conviction for an offense under section 49-04-49.0, Penal Code. §521.246(e) allows the person to drive a work vehicle without an interlock device but with some strict requirements, including notifying the employer.

Most importantly, the Legislature removed any requirement of showing an essential need to drive (§521.244(e) Transportation Code), and they removed any restriction for time of travel, reasons for travel, or location of travel, if the occupational license restricts their driving to a motor vehicle equipped with an ignition interlock device (§521.248 (d) Transportation Code).§521.251 of the Transportation Code was amended to add section (d1) which removed the blackout periods for occupational licenses based on the previous suspension for an “alcohol related contact”, if the person submits proof that they have an ignition interlock device installed on each motor vehicle owned or operated by the person. The person must still obtain SR-22 insurance.

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Another improvement to the occupational license law, was permitting the justice of the peace to issue occupational licenses for non-DWI conviction suspensions. This means that all ALR suspensions can apply in JP court where the court costs are a fraction of the costs in county and district court.

Monitors Ignition Interlock Device All second and subsequent DWI offenses are required to obtain an ignition interlock device as a condition of community supervision for at least half the term of probation. A condition of probation shall require that the defendant not operate any motor vehicle that is not equipped with the device.

A DWI with a finding of .15 or higher at trial of the offense, is also required to obtain the ignition interlock device. Article 42A.408 (c)(1)Code of Criminal Procedure. Ignition interlock devices can be avoided, if the prior conviction was more than 10 years before the instant offense and the person has not been convicted of a DWI within the 10 year period. However, Article 42A.408(b) of the Code of Criminal Procedure states that a judge “may” order the device on any DWI probated sentence.

The ignition interlock requirement is not required, if the employer has been notified of the driving restriction and proof of the notification is with the vehicle. The employment exemption does not apply to vehicles owned by a the defendant’s personal business.

Article 49.09(h) Penal Code mandates the court to enter an order requiring the ignition interlock device on all cases of conviction of second or subsequent offense within five years of the date on which the most recent offense was committed regardless of whether the person is granted community supervision. This section further requires the restriction to continue until the first anniversary of the ending date of the license suspension under Section 521.344, Transportation Code. The Court retains jurisdiction over the defendant until the device is no longer required, failure to comply is punishable by contempt, and Article 49.09(h) Penal Code controls over Article 42A, Code of Criminal Procedure.

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Scram: Mathis v. State, 424 S.W.3d 89 (Tex. Crim. App. 2014) held that the trial court had the authority to order that the defendant be fitted with a secure continuous remote alcohol monitor (SCRAM) device. This is an ankle monitor that detects consumption of alcohol. The case was remanded to determine whether the defendant would be able to pay, without undue hardship, for the device. The trial court must consider the defendant’s financial ability in deciding whether to order the defendant to pay for the device. But the case makes it clear that the trial court had the authority to order the use of the monitor, particularly if the county paid for it.

Monitors as a condition of bond: Article 17.441(a) C.C.P. states that a defendant charged with a subsequent offense under Section 49.04-49.08, Penal Code shall be required to install and ignition interlock device and not operate a vehicle unless it is equipped with the device. The magistrate may not require the installation, if they find that to require the device would not be in the best interest of justice.

Many counties require the defendant to obtain a portable alcohol monitor or a Scram ankle monitor, if they are not driving. It is, therefore, a condition of bond to not consume alcohol at all during the pendency of the case.

Court Costs Costs of the police responding to an accident which resulted in a DWI conviction can be included in the court costs. On all DWI cases there is an insurance surcharge for 3 years. See Texas Insurance Code 5.03-1 Section 1.

Salinas v. State, 523 S.W.3d 103 (Tex. Crim. App. 2017) held the statute allowing court costs in a criminal case for rehabilitation and abused children counseling, violated the separation of powers prohibition of the Texas Constitution, and held that the application of this would be prospective only. Thus began an attack on numerous other court costs attached to convictions. Penright v.

State, 537 S.W.3d 916 (Tex. Crim. App. 2017) applied Salinas, as the case was on appeal when Salinas was decided. In Casas v. State, 524 S.W.3d 921 (Tex. App. Ft. Worth 2017), the court that in DWI cases, the $100.00 court cost assessed for the emergency services was facially unconstitutional as it was a tax since it did not direct that the funds be used for a legitimate criminal justice purpose. The court may collect fees if the statute provides that the fees are to be expended for a legitimate criminal justice purpose.

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ABILITY TO PAY 2021 Legislation: Article 42A.655 of the Code of Criminal Procedure was amended by the 87 Legislature, effective September 1, 2021, to change the way the court considers a defendant’s ability to pay before ordering payments as a condition of probation. Restitution is excluded for any consideration of ability to pay.

Monthly probation fees cannot be reduced or waived for indigent clients unless all additional payments owed are waived first and the court determines the defendant still cannot pay. The Defendant can periodically ask the court to reduce or waive or impose alternative means of satisfying payments and the court on its own motion or at the prosecutor’s request may reconsider a reduction or waiver of a payment after providing written notice to the defendant and an opportunity to be heard. th

COMMUNITY SERVICE Community service is generally required as a condition of community supervision. There are possible waivers for this requirement if: 1) The defendant is physically or mentally incapable of participating in the project; 2) Participating in the project will cause a hardship to the defendant or the defendant’s dependents; 3) The defendant is to be confined in a substance abuse felony punishment facility as a condition of community supervision; or 4) There is other good cause shown.

Tex. Code Crim. Proc. 42A.304 Community service cannot exceed the following: 1000 hours for a 1st degree felony 800 hours for a 2nd degree felony 600 hours for a 3rd degree felony 400 hours for a state jail felony 200 hours for a class A misdemeanor 100 hours for a class B misdemeanor.

Alternatively, a judge can order a defendant to make a specified donation to a nonprofit food bank or other charitable organization, including ones designed to help veterans.

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Evaluations and Educational Programs CCP Art. 42A.402 requires a drug or alcohol dependence evaluation for anyone granted community supervision under Chapter 49 of the Penal Code. The purpose of the evaluation is to prescribe and carry out necessary drug or alcohol rehabilitation. The defendant can be ordered to pay for any rehabilitation ordered, but the judge can credit this cost against the fine imposed. To determine whether the defendant can afford rehabilitation, the court can consider whether the defendant has insurance coverage for such rehabilitation. Furthermore, a judge can, based on the evaluation, require a defendant to see a doctor to determine whether the defendant would benefit from medication-assisted treatment.

Within the first 180 days of probation, the defendant is required to attend an educational program designed to rehabilitate persons who have driven intoxicated.

This course allows a defendant to keep his/her driver’s license. If a jury recommends that the license be suspended, then the defendant does not have to take this course. For good cause, the judge may consider an extension of time to complete the course.

No Early Release on Community Supervision Pursuant to CCP Art. 42A.701, a defendant on community supervision for DWI cannot terminate the probation early. However, the defendant may be allowed to transition to “non-reporting” status.

Other Standard Conditions Other conditions for DWI probation may include donations to M.A.D.D.; Victim Impact Panel, no alcohol usage; monthly reporting; permit home and work inspections by the probation officer; permission required to leave the county or state; and submit to rand drug tests. CCP Art. 42A.301.

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Texas Criminal Defense Lawyers Association

19th Annual Stuart Kinard Advanced DWI November 2-3, 2023 The Menger Hotel San Antonio, Texas

Forensic Blog Articles

Speaker:

Kevin A. Schug, Ph. D.

Professor, Department of Chemistry & Biochemistry, The University of Texas Arlington Partner, Medusa Analytical, LLC 817.272.3541 phone kschug@uta.edu email

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

Forensic Blog articles by Dr. Kevin A. Schug: Schug, K.A.; Hildenbrand, Z.L. The LCGC Blog: Forensics Laboratories Underassess Uncertainty in Blood Alcohol Determinations. The LCGC Blog. May 2, 2023. https://www.chromatographyonline.com/view/the-lcgc-blog-forensics-laboratoriesunderassess-uncertainty-in-blood-alcohol-determinations Forensics Laboratories Underassess Uncertainty in Blood Alcohol Determinations Kevin A. Schug and Zacariah Hildenbrand Over the last two years, our consulting firm has had the opportunity to review and assess more than 150 litigation discovery packets from a multitude of forensic testing laboratories. We have written previously lamenting the overall lack of sufficient method validation and quality control in the cases that we have reviewed, the majority of which have been for blood alcohol determinations. 1,2,3 We have argued these deficiencies and others in the courtroom in several instances. It is disheartening to see forensics analysts from crime labs cling to outdated standard operating procedures, which do not conform to consensus standards propagated by nationally-recognized organizations, such as the American Academy of Forensic Science. 4, 5 As analytical chemists who are regularly involved in the development of new methods, be it for environmental, pharmaceutical, or forensic science, we rely on consensus standards to define the steps and procedures needed to prove that a method and the measurements made are reliable. When these steps are not followed, the method and measurements may be subject to uncertainties and inaccuracies that have not been properly assessed.

In the scientific publication process, studies lacking appropriate validation and quality control are regularly rejected during peer review. Similarly, in forensics, measurements that have not been supported by widely accepted criteria for validation and quality control should not be relied upon in litigation, especially considering that someone’s civil liberties may be at stake.

The uncertainty (or error) associated with a reported value is an important criterion to assess the reliability of a measurement. Accuracy can quickly be called into judgement when Schug, K.A.; Hildenbrand, Z.L. Accredited Forensics Laboratories Are Not Properly Validating and Controlling Their Blood Alcohol Determination Methods. LCGC North America 2022 (August), 40, 370-371. https://www.chromatographyonline.com/view/accredited-forensics-laboratories-are-not-properly-validating-andcontrolling-their-blood-alcohol-determination-methods 2 Schug, K.A. Fundamentals: Full Method Validation is Still a Glaring Deficiency in Many Forensics Laboratories.

LCGC North America 2021, 39, 200.

3 Schug, K.A. Forensics, Lawyers, and Method Validation—Surprising Knowledge Gaps. The LCGC Blog. June 8, 2015. http://www.chromatographyonline.com/lcgc-blog-forensics-lawyers-and-method-validation-surprisingknowledge-gaps 4 ANSI/ASB Standard 036, First Edition 2019. Standard Practices for Method Validation in Forensics Toxicology. https://www.aafs.org/sites/default/files/media/documents/036_Std_e1.pdf 5 ANSI/ASB Standard 054, First Edition 2021. Standard for a Quality Control Program in Forensic Toxicology Laboratories. https://www.aafs.org/sites/default/files/media/documents/054_Std_e1.pdf 1

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uncertainty becomes elevated. Uncertainty should also be assessed regularly, during the course of routine measurement of samples, because instrument performance does not remain constant over time. Instruments have to be regularly maintained and repaired, because their performance will eventually deteriorate with use.

Uncertainty should also be comprehensively assessed on the instrument in question.

Performance results obtained from one instrument should not be used to indicate the performance of a different instrument. This statement is obvious to the readership of LCGC, but such assessments – using results from one instrument to validate performance of another – has been commonly encountered in our review of forensic lab documentation.

When a blood alcohol concentration is reported, it is usually accompanied by a value for uncertainty at the 99.7% confidence interval. In a large collection of cases we have reviewed, this level of uncertainty has been declared to be 4.3% (e.g. 0.188 ± 0.008 g/dL). This assertion claims that the “true” result for this example blood alcohol determination has a 99.7% chance of being between 0.180 and 0.196 g/dL, and only a 0.3% chance of being outside that range.

When you look in these cases to see from where the 4.3% uncertainty value is derived, you find that it has been assessed solely based on a) the repeated analysis of calibration and control standards in neat aqueous solution with internal standardization, and b) the manufacturer’s indicated uncertainty in the certified reference ethanol standards that they are provided. In the end, they ascribe more than 70% of the assessed total variability in a reported blood alcohol determination to be due to that coming from the repeat analysis of pure standards, with the remainder being attributable to the variability in the concentration of the certified reference materials, as assessed by the manufacturer.

In our opinion, this is a gross underassessment of uncertainty, especially for a method that is intended to measure a chemical substance from a biological fluid. Additionally, this uncertainty evaluation is only performed semi-annually, and the assessed uncertainty determined (4.3% at the 99.7% confidence interval) is applied across all instruments in, and results from, laboratories in the forensic lab system for blood alcohol determinations. Such a level of uncertainty can hardly be expected to be consistent for every instrument and operator in a large system of forensics laboratories, nor does it contain an assessment of uncertainty arising from biological matrices.

In the documentation for uncertainty evaluation for this collection of cases, the laboratories claim that blood matrix effects are negligible and do not need to be assessed, because they were evaluated on a couple of instruments in one of the crime laboratories in 2016.

To be clear, they contend that blood matrix interferences are absent in all the instruments across the forensic laboratory system because a set of tests were performed on one set of instruments at a single crime lab, seven years ago. Additionally, not all the headspace gas chromatography instruments across the system are from the same manufacturer. The instruments used to perform the blood matrix interference studies in 2016 were from Perkin-Elmer, whereas many of the other laboratories in the system use Shimadzu gas chromatographs. Some laboratories use pressure-loop headspace systems and some used rail-based syringe autosamplers. They assume that all of the instruments behave identically, which cannot be true.

Total error in an analysis method can be determined by assessing error propagation. Total error propagates as the square root of the sum of the squares of the errors from different error sources. Detector noise is a source of error, but this is usually very minor compared to other 2

sources of error. Gas chromatographs are high precision instruments, and with internal standardization, they can provide very precise data, especially for pure standards. When the samples become more complex, such as moving from analysis of ethanol in water to analysis of ethanol in whole blood, greater variability will be imparted and must be assessed. Most analytical chemists will agree that the primary source of error in an overall method is sample preparation.

Though sample preparation for blood alcohol determination is straightforward and generally involves a series of pipetting steps, it is not unreasonable to point out that pipettes can perform differently when transferring water versus whole blood, just based on viscoscity alone. This variability can also depend heavily on the pipetting technique used by the analyst.

There are other sources of uncertainty that are often unaccounted. As mentioned, matrix effects can develop over time as instruments are used. If blank and ethanol-fortified whole blood controls are not regularly analyzed as part of quality control in a batch sequence, to verify absence of matrix effects and maintenance of accuracy, respectively, the forensic lab has no way to know whether their data is subject to additional uncertainties. The magnitude of the effects that these can exert on results is also difficult to conjecture. Besides neglecting matrix effects, enormous variability can be introduced through improper sample handling and storage. This particular issue is a topic that deserves its own subsequent blog post.

Overall, the level of uncertainty provided by most forensic labs for reported blood alcohol results has been woefully underassessed. The methodology that has been used to estimate uncertainty does not capture changing variability amongst different instruments and instrument types, as they are used over time. It does not capture variability associated with the preparation and measurement of complex biological samples, and it definitely does not capture variability in sample handling and storage. When these sources of error are not adequately assessed, then they can only be accounted by assuming reasonable levels of the variability possible for each. When those errors are propagated together with the limited assessment of variability from the forensic lab, then the window of “true” values represented by a reported measurement becomes much wider, such that the accuracy of the measurement, especially relative to some threshold (e.g. 0.08 g/dL) becomes very debatable. Without proper assessment of the uncertainty of a method, the accuracy of the result it provides cannot be reliably established. In many of the cases we reviewed, forensics labs need to revise their procedures for uncertainty assessment, to be more realistic.

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Schug, K.A.; Hildenbrand, Z.L. Laboratory Accreditation is Not a Cloak of Infallibility. The LCGC Blog. January 6, 2022. https://www.chromatographyonline.com/view/the-lcgc-blog-laboratoryaccreditation-is-not-a-cloak-of-infallibility Laboratory Accreditation is Not a Cloak of Infallibility Zacariah L. Hildenbrand and Kevin A. Schug Those working in a technical field are always trying to innovate and increase operational efficiency to produce the most value out of any given project. This requires making data-driven decisions to identify patterns and to forecast the potential implications of specific strategic moves. As with anything, these decisions are only as good as the information that they are predicated upon, and the data are only as good as the people and processes that generate them.

If your decision making relies on analytical chemistry, then you want to be confident that the measurements are an accurate representation of the matrix that is being analyzed, and that they are of “publication” quality. This is a major feather in one’s cap, especially when litigation is involved, because the state and federal court systems regard peer-reviewed data as the gold standard.

But how can you know for sure if the analytical laboratory that you’ve selected is producing reliable data? Often, we are quick to assume that analytical data is sound and accurate based on an accreditation or certification held by the laboratory in question. These sorts of credentials are meant to indicate reliable data production, because a series of compliance training, proficiency testing, and validations is generally required to achieve such qualifications. Even so, they are not the broad-scale cloak of infallibility that many might think they are. In other words, just because a given laboratory carries a certain accreditation does not mean that the data that they generate can be trusted, without performing a deeper dive into their quality assurance and quality control protocols (QA/QC).

From our experience in the energy, environmental, agricultural, and forensic sectors, one must take accreditations at face value and ask a bounty of questions about control and surrogate retention measurements, calibrations, validations, and instrumental upkeep. Fortunately, the majority of this information is made available in a good laboratory’s QA/QC reports. Below are some suggestions regarding what to look for in QA/QC reports, so that you can secure confidence in the laboratory’s work and the data that it produces.

Control and surrogate measurements: The use of surrogate, “spiked,” or control measurements are a standard practice whereby laboratory operators use samples of known concentration to assess the accuracy and precision of the response of their instruments. For many inorganic constituents, such as arsenic, an accuracy threshold window of 85–115% of the known concentration is an acceptable range. For organic constituents, such as certain volatile organic 4

compounds (VOCs), this range can be a bit broader; however, one should evaluate this quite closely in a given laboratory’s QA/QC to insure consistency and conformity to standards.

As an example, we recently participated in an environmental assessment of an alleged case of surface-water contamination where the detection of several VOC contaminants was being evaluated within the context of federal drinking-water standards. In this particular case, the concentrations of benzene in several samples collected from the water body of interest were elevated above the Environmental Protection Agency’s 5 parts-per-billion Safe Drinking Water Act standard. However, the QA/QC report of the accredited laboratory that performed the analyses reported accuracy ranges between 50–200% as acceptable. This means that their instruments that performed the VOC analysis could yield data that is artificially low or high by a very significant amount, and that this is supposed to be acceptable for some seemingly arbitrary reason. From our perspective, this was absolutely incomprehensible when we considered the potential legal and financial implications of the reported data in this particularly litigious matter.

Calibrations: Accurate instrumental calibration may singlehandedly be the most important aspect of reliable data generation in analytical chemistry. Proper calibration allows the operator of a given instrument to interpolate the concentration of a particular constituent based on the instrumental response to samples of known concentrations. This requires that one’s calibration standards and certified reference materials (CRMs) are dependable and haven’t expired, and that their serial dilution, for the preparation of a multipoint calibration curve, is performed accurately. If performed correctly, a multipoint calibration curve of five to seven points should yield a linear correlation value (r-value) >0.99. The incorporation of an internal standard is nearly always a best practice.

It’s important to keep in mind that an instrumental measurement is only reliable if the sample response signal falls within the range of the calibration curve. Attempting to quantify the concentration of given analyte when extrapolating beyond the range of the calibration curve can lead to inaccurate measurements and unreliable data.

We’ve seen this phenomenon plague commercial laboratories in the cannabis/hemp sector, particularly with the analysis of concentrates and oil products. Depending on the state, laboratories operating in this space may not yet be guided by a specific set of analytical recommendations to guide their QA/QC practices. A problem arises when analysts may only run three calibration standards to create their calibration curve, which can then represent an artificially high (or low) calibration range. As a result, the analysis of a concentrated sample can then present a signal that is beyond the calibration range. The software then does its best to extrapolate the concentration of the constituent of interest, and you end up with an inaccurate measurement.

A particularly egregious example of this was presented on LinkedIn. A cannabis business owner was so proud to present their new concentrate product that had a delta-9tetrahydrocannabinol (THC) concentration of 1,045 mg/g. That’s right, it was 104.5% pure – a 5

reality-defying innovation. We attempted to shine light on this inaccuracy by inquiring about the QA/QC with the laboratory in question, but we all know how “collegial” discourse goes on the internet. Long story short, it turned out to be a calibration issue that wasn’t caught during data processing and reporting.

Furthermore, it is important to ask your laboratory of interest how frequently they calibrate their instruments. Instruments can fall out of calibration for a number of reasons, and it is important that these changes in performance are accounted for as they arise. Ideally, calibration should be performed on the same day that real samples are analyzed for their determination.

Validations: Laboratories performing quantitative and qualitative analyses need to follow certain protocols for method validation. These are generally industry-specific but are similar in the types of the measures they prescribe in order to demonstrate that a method is fit for use and can be expected to provide reliable results. In forensics chemical analysis, we often see this lacking—it appears that much of the standard method validation guidance was provided some years after the establishment of many forensics measurements, and that the industry has been slow to conform. This lack of conformity creates a great deal of uncertainty in measurement results.

As just one example, the Texas Department of Public Safety currently asserts that all of their headspace gas chromatograph instruments operated across the state are free of matrix effects during blood alcohol measurements, because this was evaluated on a couple of instruments in Austin. Many of these instruments are also from different manufacturers than those in Austin and have different headspace sampling configurations. That is akin to assuming that your Honda Civic runs well because your friend’s Ford Fiesta is running well. This is not a reliable practice. Every instrument must be individually fully validated using the prescribed procedures in order to prove that they provide reliable results.

Instrumental upkeep: Analytical instruments need routine maintenance and often require major repairs after a significant amount of use. Laboratories should keep regular maintenance logs to document instrumental upkeep. Additionally, major alterations, such as the installation of new columns, require re-validation of the method according to guidelines. There should be documented re-validation of the instrument performance following major maintenance efforts.

Collectively, reviewing these QA/QC-related items can reveal a considerable amount about the veracity of the data being generated by a given laboratory. The technical fidelity of a laboratory’s QA/QC report is far more insightful than a simple recitation of standardized accreditations and certifications that may be held, which as we’ve mentioned, should be taken with a grain of salt. All of this feeds back into the simple truth that the only thing worse than no data is bad data. Given our evolving world where correlations, projections, and ultimately, datadriven decision making are the standard, it is paramount that the information that we are reliant upon, is generated from a trustworthy source that exercises proper QA/QC procedures.

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Schug, K.A. Full Method Validation is Still a Glaring Deficiency in Many Forensics Laboratories.

The LCGC Blog. August 30, 2021. https://www.chromatographyonline.com/view/the-lcgc-blogfull-method-validation-is-still-a-glaring-deficiency-in-many-forensics-laboratories Full Method Validation is Still a Glaring Deficiency in Many Forensics Labs Kevin A. Schug, Ph.D. I am flummoxed at the number of times I have encountered documentation of measurements made by public and private forensics labs for blood alcohol or drugs of abuse that does not include proper method validation. Over the years, I have been doing some consulting, reviewing what are called discovery documents associated with myriad different cases along these lines. I have also written previously, now more than six years ago, about an apparent lack of understanding of the importance of method validation by lawyers and judges involved in litigation involving forensics measurements.i With each case I have worked on, it becomes apparent, there are common deficiencies regularly encountered in forensics analysis. Rarely, have I been asked to review a case where I felt a comprehensive and completely reliable job had been performed. Of course, I am sure there are forensics labs out there that ‘do it right’, but somehow, records from those cases do not often cross my desk.

The deficiency in method validation for forensics labs regularly manifests itself in two steps. The first step is where the forensics lab does not even provide any indication of method validation when delivering documentation of the case. The second step comes when the documentation made available indicates a lack of rigor in method validation.

The most complete guidance for forensics method validation is the recently published ANSI/ASB Standard 036. ii Standard 036 replaces previous comprehensive guidance documentation from the Scientific Working Group for Forensic Toxicology (SWGTOX) and provides all of the necessary steps for full and partial method validations pursuant to ISO 17025 performance criteria. ISO 17025 is more of a catch all guidance of best practices and provides less specific detail about how to accomplish forensic method validation than Standard 036.

Overall, method validation is a series of documented steps that demonstrate that the chemical analysis method on a particular instrument is fit for purpose – that, with proper calibration and quality control, the method can provide a reliable result. Any chemical analysis method, be it widely used or not, must be fully validated on the instrument where it will be performed.

Analytical instruments are exceedingly high precision measuring devices; ultimately, each is manufactured separately (there are also many different manufacturers) and may perform differently to some degree.

Forensics labs should be able to provide details regarding instrument installation, that the system met manufacturer specifications for performance once installed. Following that, full method validation should have been performed and been well documented prior to the analysis of any case samples. Full or partial validation should also be performed following major instrument changes or maintenance. For example, replacing or changing an analytical 7

separation column can have a major impact on method performance; the method performance needs to be rechecked using method validation procedures and redocumented.

Those of you in the analytical science community are likely well familiar with the concept of method validation. If you have developed a new quantitative method, it is almost impossible to publish it without extensive validation information. Whether using guidance from Standard 036, or some other guidance from, for example, the Food and Drug Administration or the Environmental Protection Agency, method validation will regularly involve determining the accuracy, precision, limits of detection and quantification, specificity, potential for carry-over, and other figures of merit for the method. Processes to determine these are given using specific blank, fortified (in other words, spiked), and real samples, run multiples of times and data treated to provide each measure. The extensiveness of validation can be somewhat dictated by the complexities of the method. For example, sample preparation procedures, which contain multiple steps, should be evaluated for their efficiencies and recoveries, to help ensure an accurate result is rendered.

A problem I regularly encounter is the lack of adequate evaluation of matrix-matched samples during method validation. A variety of steps should involve the analysis of blank or fortified matrix-matched samples in order to evaluate the specificity of the method and its subjectivity to matrix effects, or changes in the analysis exerted by the presence of interferences in the sample. Chemicals other than those of primary interest for the determination in a sample (in other words, the sample matrix) can alter the final signal of the target analyte in many different ways.

Blood drug determination by liquid chromatography – mass spectrometry is famously prone to matrix effects associated with ionization efficiency. That is why deuterated internal standards are a must for those determinations. Yet, matrix components for many types of chemical instrumental measurements can exert effects throughout the process from sample preparation, through chemical separation, to final detection of signals. The method validation steps involving measurement of fortified matrix samples are key for establishing lack of interferences (in other words, specificity).

Here is another example. It is often desirable to routinely use neat solutions of target analytes to prepare calibration curves for quantitation of a chemical in a biological fluid sample.

In such a case, it needs to be shown during method validation that equivalent calibration results can be obtained from neat solution vs. from biological fluid; the absence of matrix effects needs to be demonstrated. This is not an onerous task, but without this information, you would not know if results were subject to some bias.

Sometimes, matrix effects can be subtle. Five years ago, I wrote about a case where matrix effects yielded statistically significant differences in the response of an n-propanol internal standard, when measured from neat solutions compared to when it was analyzed from real blood samples, for blood alcohol measurements. iii This matrix effect appeared to, on average, cause all blood alcohol determinations on that instrument to be reported 20% higher than they likely were. The lab in question never used fortified matrix samples in their validation; thus, they had no knowledge of this bias. The sad thing is that I have encountered this instrument again a couple of years ago. I was able to show the same matrix effect and bias in the data I had seen years prior. That instrument has likely been reporting high biased blood alcohol results since its initial routine use in 2011.

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Another common problem with the lack of evaluating blank or fortified matrix-matched samples during blood alcohol measurement validation and routine use, is that specificity can often not be demonstrated. Most forensics labs use flame ionization detection (FID) for their gas chromatograph. An FID responds to anything carbon-containing that elutes from the column. Often one observes extra so-called “ghost peak” signals present in around the chromatogram near the ethanol peak and the internal standard peak when real samples are analyzed. These may be present or absent in various neat samples, but if a blank fortified matrix sample was never analyzed to show there are no background signals present at the retention times of ethanol and the internal standard, then there is no way to guarantee the accuracy of the result. Small or large coelutions of interferences with ethanol or the internal standard can have a marked and very unpredictable effect on the final calculated result of the measurement. Standard 036 specifies that blank matrix samples from a minimum of ten different sources be evaluated during method validation to establish the specificity, or the lack of interferences, for the method. I think I have seen that documented in forensics discovery documents only once or twice.

I could continue this discussion with other such examples. However, the point I want to make is that the steps for proper method validation are well spelled out. Many forensics labs appear to obtain various accreditations without apparently being able to show they have performed and documented performance of these specific steps. I see poorly validated analyses from accredited forensics labs all the time.

The steps to proper method validation are not difficult measurements to make, but they are critical for establishing the reliability of the method. I do not understand why these deficiencies are so common, and I do not understand why they persist. As a result, I have started a business called Medusa Analytical, LLC (www.medusaanalytical.com) that will, for a nominal fee, evaluate the veracity of discovery documentation. We return a checklist to the lawyers after a preliminary review of the discovery documents to indicate what things are missing or deficient. We hope this will help provide a broader capability to help ensure that only quality forensic measurements are being considered in litigation.

Forensics chemical measurement methods are generally pretty straightforward and should be reliable. There are well prescribed and straightforward ways to show the method is reliable vis-à-vis Standard 036 guidance. It just seems wrong that measurement results shown deficient in some aspect of method validation should be allowed to stand; especially, if they are called into question based on some aspect of a particular case sample, like the presence of ghost peaks. If the appropriate steps were not taken to ensure specificity of the method, then specificity should be doubted and the reliability of the result should be doubted.

In the end, it always seems like a game about how much deficiency in the forensics chemical analysis process will a court or jury tolerate. Why should there be any tolerance for deficiency when a person’s livelihood is at stake? In my opinion, the chemical analysis should be one of the most reliable pieces of evidence in the case; it is a shame to see that it often is not, because a forensics lab apparently decided to cut some corners.

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Schug, K.A. Forensic Drug Analysis: GC–MS versus LC–MS. The LCGC Blog. July 5, 2018. http://www.chromatographyonline.com/lcgc-blog-forensic-drug-analysis-gc-ms-versus-lc-ms Forensic Drug Analysis: GC–MS versus LC–MS Kevin A. Schug, Ph.D. If given the need to determine drug A or its metabolite in blood, 99% of the time I would choose to start with liquid chromatography–mass spectrometry (LC–MS). When I asked a couple of former students who work in a forensics crime lab, they said they were split about 50/50 on the methods they use for drugs of abuse that feature LC–MS versus gas chromatography–mass spectrometry (GC–MS). It was actually a relief to hear that there was only a 50% skew toward GC–MS. For the past two years, my group has run a blood drug analysis course at UT-Arlington for defense lawyers through the National College for DUI Defense (NCDD). During the courses, I gave an introduction to LC–MS. Last year, not a single lawyer attending the course had previously come across LC–MS forensics analysis in the courtroom. In fact, the vast majority had not heard of liquid chromatography before. This year, two out of 24 lawyers in the course indicated they had heard about LC–MS, but they had still not faced such evidence in a case.

Anecdotally, it sounds like there is not a lot of variation in forensic drug analysis across the country. My students in their crime lab appear to be in the minority (and ahead of the curve). One lawyer in our course indicated that in the state they practice, their labs use GC– flame ionization detection (GC–FID) for blood drug analysis. If that does not make you worry, then it should. I am so flabbergasted by this, I don’t even want to mention the state – luckily, it is not a heavily populated one.

GC–FID is much less sensitive and specific compared to GC–MS. In combination with headspace sampling, GC–FID is still used to a great degree for blood alcohol content (BAC) determinations.

BAC measurements do not require a great deal of sensitivity, and there are very few volatile interferences in blood. Even so, GC–MS would still be preferred. GC–FID can only identify a compound based on its retention time, whereas GC–MS also provides mass spectral information for each peak. When you get to the trace levels of drugs and metabolites in biological fluids, you need sensitivity and specificity; these are readily provided by an MS detector.

In our short course, I asserted to the lawyers that the use of LC–MS for drug analysis is on its way. Eventually, it will show up in the courtroom—but why is it taking so long to get there? It is obvious that GC–MS is a more established technique in forensics labs. It also appears that forensics labs are generally resistant to change. Why should they change if the way they are currently generating data is acceptable to the courts? I could easily argue that the courts do not, in general, know any better, but maybe it is instructive to make a little comparison.

Table I provides some points for comparison of GC–MS, for an electron ionization (EI) source and a single-quadrupole mass analyzer, with LC–MS, using electrospray ionization (ESI) and tandem mass spectrometry (MS/MS) on a triple-quadrupole instrument.

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Table I. Comparison of GC-MS and LC-MS for trace analysis of drugs in biological fluids Aspect GC–EI-MS LC–ESI-MS/MS General application Volatile, thermally stable Nonvolatile, polar and ionic molecules (low- to midmolecules (mid- to highpolarity); low-volatility polarity) compounds need to be derivatized Cost ~$100k ~$200k Available? Established?

Yes, yes Yes, yes Sample preparation for Liquid–liquid extraction; Dilute-and-inject (urine); biological fluids solid-phase extraction; Protein precipitation; liquid– derivatization (to make polar liquid extraction; solid-phase compounds more volatile); extraction; finish in polar finish in volatile solvent solvent (water ideal) -9 Limits of detection and Nanogram (10 g) to Picogram to femtogram (1015 g) quantification picogram (10-12 g) Specificity?

Yes, via EI mass spectrum Yes, via MS/MS; monitor (library matching; abundant specific fragments of desired diagnostic fragment ions molecular ion using triple from EI); lack of molecular quadrupole; no universal ion is a problem library matching Matrix effects?

Minimal Yes, require stable isotopically labeled internal standards for each analyte Without diving in too deeply, there are a few aspects that make LC–MS better amenable for determination of drugs in biological fluids. First and foremost, LC–MS is ideal for applications involving drugs, which generally are polar and nonvolatile molecules. Efficient separation and ion generation can be accomplished using LC–MS without derivatizing the analyte. For GC–MS, derivatization is necessary to chemically modify the drug and make it more GC-amenable (that is, more volatile). Underivatized drugs analyzed by GC–MS will generally exhibit poor peak shapes (reduced resolution) and reduced sensitivity. A derivatization step also can add significant uncertainty. In general, sample preparation steps are more prone to error than other parts of an analytical method. More sample preparation steps equate to increased error in determinations, and chemical derivatization is an intensive process that can be prone to uncertainties such as the quality and age of reagent, presence of interferences in the sample, variability in lab conditions, and so on. LC–MS generally requires less sample preparation. For a urine analysis, one can often just dilute with water and inject the sample.

With LC–MS, using ESI, an intact molecular ion is generated and enters the mass spectrometer. Using GC–EI-MS, the signal for a molecular ion may not be readily apparent because of the extensive fragmentation generated by the 70-eV ionization energy. Even so, EI generates a nicely diagnostic mass spectrum that can be reproduced across different 11

instruments, and only requires a single quadrupole mass analyzer. GC–MS is generally cheaper because it uses a less sophisticated detector. For LC–MS, one gains specificity with the use of a triple-quadrupole mass analyzer. In the triple quadrupole, the initial ion of interest is isolated, then fragmented in a collision cell, and then unique ion fragments are interest are used to quantify the compound and confirm identity.

In this MS/MS operation, signal-to-noise levels are increased dramatically by reduction of noise. As a result, LC–MS determinations usually exhibit lower limits of quantification (LOQs) than GC–MS determinations (although this may be application specific). These lower LOQs are important for forensics drug analysis, because one does not want to be operating very close to the LOQ if it can be avoided. First, determinations made closer to the LOQ are usually subject to higher error. Second, when one operates close to the LOQ, it is possible to lose some of the specificity of the determination. Confirmation of the target can be made based on the presence of three or four ions (and a consistent intensity ratio between them); this statement is true for both GC–EI-MS and LC–MS/MS. Because LC–MS is more sensitive, there is a better chance for those ion ratios to be preserved when the compound is present at low levels, especially levels close to the LOQ for GC–MS, where some lower abundant ion fragments would not be observed.

To be fair, a place where LC–MS has problems relative to GC–MS is with matrix effects.

The matrix is everything else in the sample besides the analyte. In biological fluids, there are ample species in the matrix that can interfere with an analyte measurement. Matrix effects can cause unwanted changes in analyte response; they will compromise the accuracy of the determination if they are not properly accounted. For this reason, it is necessary to use stable isotopically labeled internal standards (SIL-IS) for each analyte of interest. This means that for each analyte, a pure isotopically labeled internal standard (a deuterated, 13C-labeled, or 15Nlabeled version of the analyte) must be used to normalize matrix effects. This internal standard will be eluted with the analyte, buts its signal will be differentiable from the analyte because it has a different mass, and it will yield different fragment ions. These compounds are expensive, but without their use, LC–MS determinations of drugs from biological fluids will be subject to significant error and largely considered unreliable.

This topic could be discussed a great deal more. I expect to address it more in the future. The interface between the forensic and legal communities is one where getting the analysis right is more important than ever. People go to jail or pay massive fines for illegal actions involving drugs. It should be the responsibility of the crime labs to use the best technology for their analysis, to avoid error in their case assessments. If you are still wondering whether the evidence is strong enough favoring LC–MS over GC–MS for drug analysis from biological fluids, go to any clinical lab and count the relative number of GC–MS and LC–MS instruments they have. GC–MS will lose. GC–MS simply cannot provide adequate performance across the large and growing range of illegal substances desired to be detected. On the contrary, one would not need to look far for demonstrations of LC–MS methodologies that can handle virtually all drug compounds of interest, using a single method with minimal sample preparation (1). LC-MS instrumentation and processes may be more complicated than GC-MS, and there might be a couple of different controls to have in place, but LC–MS should be the future of forensic drug analysis.

1. S. Lupo, Restek Corporation. https://www.restek.com/pdfs/CFAR2309-UNV.pdf 12

Schug, K.A. An Indisputable Case of Matrix Effects in Blood Alcohol Determinations. The LCGC Blog. Sept. 7, 2016. http://www.chromatographyonline.com/lcgc-blog-indisputable-casematrix-effects-blood-alcohol-determinations An Indisputable Case of Matrix Effects in Blood Alcohol Determinations Kevin A. Schug, Ph.D. In a recent review of blood alcohol casework performed by a forensics laboratory associated with a major metropolitan police force, I was again (1) disheartened to find major deficiencies in method validation protocols. In this case, the analysts failed to check whether aqueous solutions for calibration and quality control were reliable surrogates for real blood samples. What I describe here is the definite possibility that matrix effects have caused this laboratory to overreport blood alcohol concentrations (BACs) determined on one of their headspace gas chromatography (HS-GC) systems since 2011. The fact of the matter is that this forensics laboratory would never be able to dispute this claim, because they lack the protocols and data that would be necessary to check for such an effect. Importantly, best practices and trusted guidelines say they should have checked for this effect as part of a comprehensive ongoing method validation and revalidation plan, but they have failed to do so.

An internal standard HS-GC method was used to measure BAC. As is generally the case, n-propanol was used for the internal standard, since it is unlikely to be found naturally in human blood samples, it has similar properties to the target analyte, ethanol, and it produces a distinct signal for measurement (that is, a separate peak). n-Propanol is added in a consistent quantity to every calibration standard, quality control, and real case sample. It is then measured along with the ethanol during each analysis. This measurement is done to normalize ethanol responses and reduce systematic and random errors associated with sample preparation, injection, chromatographic separation, and detection. A key point is that the internal standard should behave essentially identically to the analyte throughout these steps, so that any losses or gains experienced by the analyte would be also experienced by the internal standard, and therefore corrected in the final unknown determination.

In the case (or cases) in question, data indicated it is plausible that a matrix effect altered the response of the internal standard. Matrix effects are known to systematically alter reported results, if they are not accounted for and corrected. They can be sample dependent, analyte dependent, and concentration dependent. A good analytical scientist will always seek to either use a matrix for calibration that is essentially equivalent to the samples tested (that is, prepare spiked standards into a blood matrix), or conduct validation measurements to check whether calibration in a surrogate matrix (that is, an aqueous solution) is valid for determinations in samples of a different matrix. Neither of these steps were performed by the forensics lab.

The laboratory’s analysis was performed using a graphical internal standard calibration.

A series of calibration solutions was prepared in aqueous solution (a sodium chloride–fortified water solution) in which the solutions contained varying amounts of ethanol and a consistent amount of n-propanol. Each of the standards were analyzed by HS-GC, and the relative responses (response of ethanol/response of n-propanol) of the standard solutions were plotted 13

against the relative amounts (amount of ethanol/amount of n-propanol) to create a calibration curve. Over a relevant range of ethanol levels, a linear equation can be generated for use in determination of unknowns. The unknown solution (blood matrix) was prepared to contain an equivalent amount of internal standard as in the calibration standards. When the sample was analyzed, the relative responses of ethanol and n-propanol, along with the known amount of npropanol added, allowed the analyst to determine the unknown ethanol concentration using the previously established linear equation. A problem could arise when the components of interest (the ethanol and n-propanol from the aqueous matrix and the ethanol and n-propanol from the blood matrix) are not equivalently transferred from the sample into the chromatographic system.

In this case, it was evident that the transfer efficiency of the n-propanol internal standard into the headspace was disproportionately lowered during the analysis of the real samples, compared to the analysis of standard aqueous samples. Overall, peak areas for the internal standard response were consistently in excess of 20% lower when analyzed from blood samples, compared to when they were measured from standard aqueous samples. From the data I evaluated, this is a trend that appears to be consistent on this particular instrument since 2011. From the data alone, it is hard to surmise the exact mechanism of this matrix effect – whether it is chemical or instrumental in nature.

What is an absolute travesty is that no measurements were ever performed to check whether ethanol responses were similarly or differently affected by the matrix. Well, I suppose the analysts never recognized the systematically low response of the n-propanol, but the main point is that such checks should be built into a reliable method validation plan.

So, if we assume that the matrix only had a response lowering effect on the internal standard and not on the analyte—which is an absolutely possible situation and is indisputable based on the lack of data to show otherwise—then all of the reported ethanol values from blood samples would be high, perhaps more than 20% high. In other words, a lower internal standard response caused by matrix effect, with a consistent ethanol analyte response, would increase the calculated relative response used to determine the unknown concentration. The result would be an artificially high value reported for the unknown analyte based on calibrations performed in an aqueous matrix.

Based on a 20% bias, someone with an actual 0.07-g/dL BAC (below the legal limit) could register a 0.084-g/dL BAC (above the legal limit) according to the assay. And that is just a conservative average. One could imagine, on a per sample basis, much more extreme biases occurring. Again, the point is that the apparent bias was never noticed and evaluated.

There are more nuances to this case, including the use of only a four-point calibration, failure to comprehensively check bias, precision, and carry-over, and lack of revalidation following instrument maintenance. I have been employed as a consultant to review this and other cases. In some cases (based on data from other forensics labs), I find nothing much of note to report. However, this is a case where well accepted and published best practices for method validation have not been followed. As a result, there could be some significant injustice. Rather than addressing these on a case-by-case basis for various defendants, it would seem more efficient to work together with forensics laboratories to ensure their method validation is up to par. However, anecdotally, I am told that the likelihood of such a thing happening is very small, because they are too set in their ways. That is a shame. Rulings of guilt 14

associated with blood alcohol cases and driving under the influence are truly life crippling.

Where justified, these decisions should be rendered, but this seems a setting where the laboratory really has to have the analytical science correct. In the case I described above, I believe they do not.

Reference 1. K.A. Schug, The LCGC Blog, June 8, 2015. http://www.chromatographyonline.com/lcgc-blogforensics-lawyers-and-method-validation-surprising-knowledge-gaps

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Schug, K.A. Forensics, Lawyers, and Method Validation—Surprising Knowledge Gaps. The LCGC Blog. June 8, 2015. http://www.chromatographyonline.com/lcgc-blog-forensics-lawyers-andmethod-validation-surprising-knowledge-gaps Forensics, Lawyers, and Method Validation—Surprising Knowledge Gaps Kevin A. Schug, Ph.D. Recently I served as an expert witness in a case involving the detection of a cocaine metabolite, benzoylecgonine, in a defendant’s urine using gas chromatography–mass spectrometry (GC–MS). This test was performed at a forensics laboratory following a reported positive test using a preceding immunoassay screen for drug metabolites. I will not relay any more details than this, because the problem in question dealt with an apparent lack of GC–MS method validation. For the analytical community, method validation in some form or another is a natural extension of best practice in the analytical laboratory. However, the notion of method validation, and many aspects of detailed forensics analysis, are not well understood by most lawyers and judges. I suppose that this might not be surprising to most, but it does present a serious knowledge gap that must be bridged in cases involving substance or alcohol abuse, if the associated case is to be properly litigated. In this particular case, I was called to testify on the basics of GC–MS, its complexities in analytical method development, and the necessity of method validation and verification. As part of my testimony, I was asked to write a very basic account on the importance of method validation. Below is the bulk of the text that I submitted for this purpose. I thought it might be interesting to relay in the LCGC Blog forum to raise awareness for others that such a knowledge gap does widely exist, and that it is vitally important for analytical scientists to be able to convey such concepts to the public community in fairly simple terms. At the end, I give a bit more about the problem associated with the case in question, which itself is fairly surprising.

Method validation, the comprehensive performance and documentation of measurements to verify a method is reliable and fit for purpose, is an essential component of any analytical chemical measurement. The failure to appropriately validate and document a method makes it is impossible to prove the validity of the scientific test performed by that method. Such a result would be scientifically unacceptable.

There exist many degrees of rigor for method validation that depend on the value and use of an analytical measurement. On the one hand, simple “quick and dirty” feasibility measurements at the outset of a research project may only require simple system suitability requirements are met, and that a result can be reproduced. These may only be recorded in one’s lab notebook and alone would not be appropriate for broad dissemination. On the other hand, unequivocal verification of drug purity for a marketed pharmaceutical, determination of the presence or absence of substances in a biological sample for the purpose of legal action, or dissemination of a new method in peer-reviewed literature require the highest degree of rigor in method validation to ensure the validity of the result. There are many aspects to the validation process, and there is a great deal of guidance available to ensure that proper steps are taken throughout the experimental design and performance of work (1–3).

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The components of method validation depend on the desired output of the method. At the outset, a method validation plan, which sets the parameters to be measured and the desired performance metrics, should be devised and documented. The parameters may vary generally depending on whether the method is meant to be quantitative (to determine the amount of a chemical compound in a sample) or qualitative (to identify or verify the presence of specific chemical compounds in a sample). There are metrics associated with each manipulation of the sample from acquisition through preparation and chemical analysis.

When a new instrument is installed in the laboratory, it must first meet manufacturer specifications for proper operation. It must be validated to provide the appropriate information for its intended purpose. The proper operation of the instrumentation must also be verified on the day it will be used to measure real samples (for example, casework samples), as well as when regular maintenance is performed. All of these activities should be carefully documented and verified correct by a laboratory manager. For some chemical analyses, the sample must first be treated in some way to remove interferences (for example, solid-phase extraction or liquid–liquid extraction are common sample preparation procedures) or to better prepare the analytes for chemical analysis (for example, derivatization of analytes to improve chromatographic separation or MS detection). Each step in a chemical analysis adds variance, or error, to the method. The sum of variance for each step in a method equals the total variance of the method, and some steps are more prone to error than others. Therefore, each step must be carefully validated to understand and document its contribution to total error of the method, so that the overall reliability of the end result can be judged.

Quantitative analysis requires the documented validation of multiple figures of merit (1,2). Required parameters include establishing the accuracy, precision, limit of detection, limit of quantification, and specificity of the method. A reliable calibration model (a correlation between analyte concentration and instrument response) must be established. The potential for interferences (from the sample matrix as well as from carryover) must be assessed.

Throughout the analytical method, instances of sample loss must be evaluated. In some cases, where deemed necessary, stability of samples and robustness of the method should also be determined. The definition and precise procedure associated with each of the above parameters varies depending on the laboratory setting, the types of samples measured, the techniques used, and the intended use of the measured results. When a method is first established on a new instrument, all of these parameters should be performed and documented with the utmost rigor. As the method is used, the performance must be periodically verified (on a regular basis, in conjunction with instrumentation maintenance, and when real samples are analyzed) using appropriate subsets of the full validation procedures. All documentation should be curated, maintained, and made available when it is necessary to verify that these procedures have been properly implemented and that reliable performance has been proven.

In some cases, only qualitative verification of the presence of a substance in a chemical sample is desired (for example, by mass spectrometry). Such an analysis may be triggered if a decision point from a previous measurement (for example, by immunoassay) was positive and needs to be verified. Several of the validation parameters mentioned above should still be determined and documented to ensure a reliable qualitative analysis (2). This is most important when an analyte in a highly complex biological sample is to be scrutinized. Biological matrices 17

contain many small and large molecules with variable chemical character that can interfere with different measurements. Thus, specificity must be ensured by assessing potential interferences from exogenous constituents that may be in the sample and that may respond similarly to the analyte of interest. Additionally, multiple samples of the biological fluid of interest from different sources should be measured to ensure that endogenous components, which might vary from sample to sample, do not interfere with the intended measurement.

Many of today’s instruments are exceedingly sensitive. It is important to assess the limit of detection of an instrument for a given analyte, even as part of a qualitative analysis, as well as to determine carryover. Many instruments can measure into the parts-per-billion concentration range. If any residue of the analyte remains in the instrument or in a sample introduction device, then a false positive reading could result. It is important to verify that the level of the measured analyte is consistent with the decision point that prompted the qualitative analysis in question. Ideally, the qualitative confirmation by the complementary technique would also involve a quantitative analysis. This is often not mandated, but it would improve the reliability of the determination. That said, to reiterate, at a minimum, the qualitative analysis requires validation of specificity (interference and carryover determination) and the limit of detection of the method. Some guidance documents also suggest determination of precision in these cases (3).

Many of the specifics associated with the recommended actions for validation can be significantly detailed in terms of procedures and expected performance levels when a particular analytical method is in question. It is important to remember that all steps of sampling handling and analyte determination require validation to ensure reproducible results. Similarly, validations and verifications are best carried out by the analyst who will also handle the real samples, and the documents generated should be approved by a laboratory manager. Overall, clear documentation is critical for all aspects of validation, verification, maintenance, methodological changes, and other factors that might influence a final reported result. Such information provides the confidence necessary to make decisions and draw conclusions about situations that are important for safety and well-being.

For the case in question, the qualitative determination of benzoylecgonine in urine, the forensic laboratory had never performed a method validation. In 2007 when new GC–MS instruments were installed, they had simply made one injection of a benzoylecgonine standard to visually confirm an appropriate electron ionization spectrum was recorded. There were no attempts made to assess specificity in urine, limit of detection, carryover, or precision— throughout an approximately 7–8 year period. While my task was to explain why this was a problem to the prosecutors and judge, and to bridge the knowledge gap, I was most surprised that the forensic laboratory had not performed due diligence. Guidance on such method validations in this case was to come from ISO 17025, which clearly conveys recommended procedures for validation in this and other determinations. According to the information I was given, not only did the laboratory fail to follow these recommendations, the associated laboratory accrediting body charged to verify compliance and good laboratory practice failed to notice this inconsistency. I fear that this type of situation might be more widespread than we know. I do believe that many forensics laboratories operate at the highest standard of performance and validation. Yet, there are many forensics laboratories and the compliance and competence surely vary among them. If you couple the knowledge gap in communicating 18

science to some lawyers and judges with a potential lack of quality lab results in some cases, it is a little scary to think of the number of decisions that may have been incorrectly rendered.

Perhaps this is another justification that all citizens should be scientifically literate—an extra set of eyes to locate these potential inconsistencies would seem to be a good idea, especially if someone’s money and livelihood are at stake. I think most people would agree that the system needs to be meticulously authenticated so that those who are guilty are found guilty, and those that are not, are not.

References (1) U.S. Department of Health and Human Services, Food and Drug Administration, Center for Drug Evaluation Research, Guidance for industry: Bioanalytical Method Validation, Fed. Reg. 64, 1–20 (2001).

(2) Scientific Working Group for Forensic Toxicology (SWGTOX) Standard Practices for Method Validation in Forensic Toxicology, SWGTOX Doc 003 (Rev. 1), 2013, pp. 1–52.

(3) United Nations Office on Drugs and Crime, Guidance for the Validation of Analytical Methodology and Calibration of Equipment Used for Testing of Illicit Drugs in Seized Materials and Biological Specimens, New York, 2009, pp. 1–67.

Schug, K.A. Forensics, Lawyers, and Method Validation—Surprising Knowledge Gaps. The LCGC Blog. June 8, 2015. http://www.chromatographyonline.com/lcgc-blog-forensics-lawyers-and-method-validation-surprisingknowledge-gaps ii ANSI/ASB Standard 036, First Edition 2019. Standard Practices for Method Validation in Forensics Toxicology.

Microsoft Word - 036_Std_e1 (asbstandardsboard.org) (Accessed August 16, 2021). iii Schug, K.A. An Indisputable Case of Matrix Effects in Blood Alcohol Determinations. The LCGC Blog. Sept. 7, 2016. http://www.chromatographyonline.com/lcgc-blog-indisputable-case-matrix-effects-blood-alcohol-determinations i

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Texas Criminal Defense Lawyers Association

19th Annual Stuart Kinard Advanced DWI November 2-3, 2023 The Menger Hotel San Antonio, Texas

Gas Chromatography The Lawyer’s Roadmap to Success Speaker:

Ashley Morgan

Soyars & Morgan Law 924 McCullough Ave San Antonio, TX 78215 210.858.8972 phone 210.858.5181 fax ashley@soyarsmorganlaw.com email https://soyarsmorganlaw.com website

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

Gas Chromatography- The Lawyer’s Roadmap to Success What is Gas Chromatography? You must first separate before you quantitate.

It is important to know the basics of gas chromatography in order to defend a blood case in a driving while intoxicated charge. Don’t be intimidated by the State’s expert. Study gas chromatography and be prepared.

Gas chromatography is a technique used to separate and analyze the components of a mixture based on their volatility and interactions with a stationary phase. It involves the passage of a gaseous sample mixture through a column packed with a stationary phase, which is often a coated solid or a liquid on a solid support. The column is maintained at a specific temperature, and an inert carrier gas (such as helium or nitrogen) carries the sample through the column.

As the sample passes through the column, different components interact with the stationary phase to varying degrees. Components that have a stronger affinity for the stationary phase will take longer to elute from the column, while those with weaker interactions will elute faster. This separation process allows the components of the mixture to be separated and detected individually.

At the end of the column, the separated components are detected by a detector, such as a flame ionization detector (FID) or a mass spectrometer (MS). The detector generates a signal proportional to the concentration of each component, which can be used to identify and quantify the components in the mixture.

Gas chromatography is widely used in various fields, including pharmaceuticals, environmental analysis, forensics, food and beverage industry, and petrochemical industry, among others. It is a powerful analytical technique that provides high resolution and sensitivity for the analysis of complex mixtures.

A gas chromatograph, commonly referred to as a gas chromatography (GC) machine, is an analytical instrument used to separate, identify, and quantify the components of a gas mixture.

The basic working principle of a gas chromatograph involves the sample being injected into a heated inlet, where it is vaporized and carried by an inert gas (called the carrier gas) into a long, narrow column. The column is packed with a stationary phase, which can be a solid material or a liquid coated on a solid support.

As the sample travels through the column, various components in the gas mixture interact differently with the stationary phase. This differential interaction leads to separation of the components based on their physical and chemical properties, such as boiling points, polarity, or 1

molecular size. The separated components elute from the column at different times, creating distinct peaks on the graph.

The separated components then pass through a detector, which measures the concentration of each component. Common detectors used in gas chromatography include flame ionization detectors (FID), thermal conductivity detectors (TCD), electron capture detectors (ECD), and mass spectrometry detectors (MSD). The choice of detector depends on the specific application and the nature of the components being analyzed.

The output of the gas chromatograph is typically displayed as a graph, known as a chromatogram. The x-axis represents time, while the y-axis represents the detector response or concentration of the separated components. Each peak on the chromatogram corresponds to a specific component present in the gas mixture, and its area or height is proportional to the concentration of that component.

What is a column?

In gas chromatography, the type of tube used is called a chromatographic column. The column is typically a long, narrow tube made of glass or metal. There are different types of chromatographic columns, including packed columns and capillary columns.

Packed columns contain a solid support material, such as silica or polymer, coated onto an inert support material, such as glass beads or metal wire. The sample mixture is injected into the column, and the components interact with the stationary phase as they move through the packed 2

material. Packed columns are commonly used for certain applications, such as analyzing volatile organic compounds.

Capillary columns, also known as open tubular columns, are made of a fused silica or metal capillary with a very narrow inner diameter, typically in the range of 0.1 to 0.53 mm. These columns have a stationary phase coated onto the inner walls of the capillary or bonded to the surface. Capillary columns provide higher resolution and efficiency compared to packed columns, making them suitable for the analysis of complex mixtures.

The choice of column type depends on the specific application, the analytes of interest, and the separation requirements. In blood alcohol analysis a column made of copper is typically used.

What is Headspace gas chromatography?

Headspace gas chromatography (HS-GC) is a specialized technique used to analyze volatile compounds present in the gas phase above a liquid or solid sample. It is particularly useful for analyzing volatile organic compounds (VOCs) that can easily evaporate from a sample into the surrounding headspace.

The headspace refers to the space above a sample in a sealed container, such as a vial or bottle.

In headspace gas chromatography, a small portion of the headspace is withdrawn using a syringe and injected into the gas chromatograph for analysis. This technique allows for the separation and quantification of volatile compounds without directly introducing the entire sample into the instrument.

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The process of headspace gas chromatography involves several steps: 1. Sample Preparation: The sample is placed in a sealed vial or container, ensuring that it is in equilibrium with its headspace. The sample can be a liquid, solid, or even a gas. If necessary, the sample may be heated or agitated to facilitate the release of volatile compounds into the headspace.

2. Equilibration: The sealed sample is then heated to a specific temperature, which promotes the transfer of volatile compounds from the sample matrix into the headspace. The temperature is carefully controlled to maintain the integrity of the sample and to prevent the formation of artifacts.

3. Sample Injection: After equilibration, a syringe needle is inserted through the vial septum to withdraw a small portion of the headspace. The syringe is then connected to the gas chromatograph, and the headspace sample is injected into the instrument.

4. Gas Chromatographic Separation: The headspace sample enters the gas chromatograph, which typically consists of a separation column and a detector. The volatile compounds present in the headspace are separated based on their unique retention times, similar to conventional gas chromatography. The detector measures the concentration of each compound.

5. Data Analysis: The output data from the detector is converted into a chromatogram, which shows the peaks corresponding to the different volatile compounds present in the headspace. The area of each peak can be used to calculate the concentration of the compounds in the original sample.

Preparing the Sample HS-GC, AKA The Recipe Preparing a blood specimen for headspace gas chromatography involves several steps. Here is a general procedure that a lab technician might follow: 1. Collection: The blood specimen is collected from the patient using standard venipuncture techniques. It is important to ensure proper collection and handling to avoid contamination or degradation of volatile compounds.

2. Sample Handling: The blood sample is transferred to a suitable collection tube, such as a glass vial with a rubber septum cap. The tube should be properly labeled with patient information and any relevant details.

3. Equilibration: The blood sample is allowed to equilibrate at a specific temperature to promote the release of volatile compounds into the headspace. The equilibration temperature can vary depending on the specific analytes of interest.

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4. Sealing: Once equilibrated, the vial is carefully sealed with a screw cap or a crimp cap to create a gas-tight seal. The septum cap should be securely placed to prevent any leakage.

5. Incubation: The sealed blood sample is incubated at the predetermined equilibration temperature for a specific period, allowing the volatile compounds to accumulate in the headspace.

6. Headspacing: After the incubation period, a lab technician withdraws a portion of the headspace using a syringe with a needle that penetrates the septum. The syringe is carefully inserted through the septum, and a small volume of the headspace gas is withdrawn.

7. Injection: The syringe containing the headspace sample is connected to the injection port of the gas chromatograph. The sample is injected into the instrument, which then performs the separation and analysis of the volatile compounds.

It is important to note that the specific temperatures, equilibration times, and other parameters may vary depending on the analytes of interest and the specific equipment being used.

Additionally, proper documentation and adherence to laboratory protocols are crucial throughout the entire process to ensure accurate and reliable results.

Defenses to Blood Analysis in Driving While Intoxicated Cases There can be issues at the police station with the blood draw and issues at the lab with the analysis. Pick your defense based on the facts of your case. Don’t try use every defense available.

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Blood Kit issues The Expiration date on the blood test tube is important to the validity of the analysis of the sample. The expiration date should always be checked. The tubes should be a grey-topped tube with a volume of 10mL. While the preservative and anti-coagulant don’t necessarily lose potency when the tube expires, the seal on the tube couple be compromised. The seal on the tube is not guaranteed after the expiration date on the blood kit. This means that room air or other contaminants could be introduced not the tube.

Gray Top Tube in Evidentiary Blood Draws Why is a gray top tube important? For blood alcohol analysis using gas chromatography, the most common type of blood tube used is the gray-top tube, also known as a sodium fluoride (NaF) and potassium oxalate (K2Ox) tube.

The gray-top tube is specifically designed for the collection of blood samples for alcohol analysis. It contains a mixture of sodium fluoride (NaF) and potassium oxalate (K2Ox) as an anticoagulant and preservative. Sodium fluoride inhibits the action of alcohol dehydrogenase, an enzyme that can convert ethanol to acetaldehyde, thereby preventing any further alcohol metabolism in the sample. Potassium oxalate helps to preserve the stability of the sample and prevent clotting.

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This type of tube helps to maintain the integrity of the blood alcohol concentration (BAC) by inhibiting alcohol degradation and preserving the sample until it can be analyzed using gas chromatography. The gray top tube indicates both a preservative and anticoagulant has been to the tube. Gray top tube w/ 100 mg of Sodium Fluoride- Prevents additional glycolysis (sugar production) which in turn prevents fermentation, i.e. production of new alcohol. Studies have shown that 20 mg of potassium oxylate prevents coagulation. However, not all tubes contain the same amount of anticoagulant or preservative. Each brand has its own added components.

Cheaper tube brands will have a lower percentage of preservative.

Yeast Defense- Alcohol is produced inside the tube post blood draw What does the preservative do? The preservative is meant to prevent the endogenous formation of alcohol, i.e. the formation of alcohol from inside the tube. There are two important studies, one by Blume and Lakatua and the other by Chang and Kolman that dconfirm the production of alcohol inside the tube after the blood is drawn. These studies have shown that sodium fluoride is ineffective at preventing alcohol production by candida albican, People have yeast or candida albican in their blood and on their bodies. If a blood sample is not preserved properly it can decompose. So if people have yeast on their body or in their blood, and that yeast is introduced into the blood vial the fermentation can occur. Fermentation basically means that yeast is combined with sugar which forms alcohol. The state claims there are three protections to prevent fermentation of the blood sample: 1) sterilizing the equipment; 2) preservatives in the tube preserving the sample; 3) refrigeration..

Taking a step back, remember how alcohol is made. The production of ethanol is based upon fermentation, which is the natural process of the decomposition of organic materials containing carbohydrates. It occurs in nature whenever carbohydrate or simple sugar and yeast are available.

Yeast is combined with sugar which forms alcohol.

The subject’s arm must be properly cleaned and sterilized first. The cleaning agent could be expired. The vacuum seal could be expired. There is an expiration date on the seal. If the vacuum seal is expired the vial may not draw the blood into the vial, but there could be a partial vacuum into the contaminated tube.

Refrigeration of the blood sample is necessary to slow down the decomposition of the sample.

However, refrigeration only slows down the decomposition. It does not stop decomposition completely. Usually, the blood samples are transported without refrigeration. The blood needs to be analyzed quickly post draw for the most accurate results.

Hemolysis Whole blood is supposed to be tested. Whole blood is blood drawn directly from the body. None of the components of the blood has been removed. Blood serum is also a type of blood, but it has a higher percentage of alcohol then whole blood. If serum is tested instead of whole blood, this will invalidate the test. Hemolysis is the destruction of red blood cells. It is the rupture or breakage of the red blood cell membrane. When the red blood cell is broken hemoglobin and 7

other cellular components are released into the surrounding fluid. There are many ways hemolysis can occur.

• • • • • • •

Wrong venipuncture site Tourniquet tied too long or too tight.

Fishing of the vein- moving the needle around in search of the vein once it’s in the skin Shaking or inverting the tube too vigorously.

Drawing the blood from a bruise Pulling back the plunger too quickly.

Improper transport to the lab

If hemolysis has occurred inside the tube, then it can result in serum or plamsa being tested rather than whole blood. If the collection of the sample is damaged due to the blood tube being mishandle or shaken too vigorously the resulting analysis will be of blood serum which will be reported as a higher alcohol concentration then what is in the whole blood.

Defenses to the Lab Analysis Chain of Custody It is important to look at both the arresting agencies chain of custody and the laboratories chain of custody. These will be different documents, but both will be included in your discovery.

Paperwork tracking the sample needs to be looked at closely

Sample preparation Once the toxicologist finds time to analyze your client’s blood, the blood tube will be taken from the refrigerator and allowed to come to room temperature. Remember that there are two blood tubes in the kit, but only one should be prepared and analyzed. The second tube should be repackaged and stored back in the refrigerator. Some labs place the tube in a rocker that will gently mix the sample to ensure a good mix of the blood. It is unknown what constitutes room temperature. Some lab technicians will let the blood sit for a couple hours. Some technicians keep their labs cooler.

Once the blood is at room temperature the top should be removed from the blood. Care should be used in removing the top so that the blood does not splatter out of the tube. The technician should be working under a ventilated hood to ensure that air borne contaminants are not introduced into the vial once the top is removed.

Blood is them removed from the gray top tubed by pipette. How it is removed is important to consider. If the pipette is introduced into the vial by the technician, there could be contaminants introduced into the vial before the analysis even starts. The blood should be poured into a clean container that the pipette is then inserted into.

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The pipette used can also introduce errors into the analysis. An electronic pipette is more accurate as opposed to a manual pipette. There are maintenance and calibration records that should be disclosed to you. Pipettes need be checked for accuracy.

The blood removed by pipeete is transferred to a new headspace vial. The pipette should be cleaned with deionized water in between each sample. If the pipette is not cleaned thoroughly there can be cross contamination between each sample.

An internal standard is then introduced into the vial also by pipette. The headspace vials are placed on an autosampler or a stationary rack. An autosampler is an automated rack that will move each vial into place for sampling. The Stationary rack holds the vials in place while a robotic arm picks up each vial and delivers them to the injection port for testing.

Prepared headspace vial

Auto sampler tray

The auto sampler tray allows the analyst to set the machine to run samples without the analyst being present to inject each sample. The autosampler will also gently shake and heat the headspace vial as it moves each one under the syringe. The syringe then moves downward and punctures the crimped seal at the top of the headspace vial. It sucks a small amount of the gas out of the vial and injects it into a transfer tube. While the headspace gas is being drawn out of the vial, an inert carrier gas, usually helium is also introduced into headspace gas.

As the carrier gas and the headspace gas travel through the transfer tube half of the mixture flows through one column and half travels through a second column. As the sample travels through the column, its components interact differently with the stationary phase. Substances that have a stronger affinity for the stationary phase will spend more time interacting with it and move through the column at a slower rate. On the other hand, substances that have a weaker affinity for the stationary phase will spend less time interacting with it and move through the column at a 9

faster rate.

This differential interaction between the sample components and the stationary phase leads to the separation of the substances. The separated components exit the column at different times, and they are detected by a detector located at the end of the column.

The detector can be a flame ionization detector (FID), a thermal conductivity detector (TCD), or a mass spectrometer (MS), among others. The detector measures the concentration or the mass of the separated components and generates a chromatogram, which is a graphical representation of the separation process.

By analyzing the peaks in the chromatogram, it is possible to identify and quantify the individual substances present in the sample. The retention time, which is the time it takes for a substance to elute from the column, can be used for identification purposes, while the peak area or peak height can be used for quantification.

How is a Gas Chromatogram Analyzed?

To analyze or read a gas chromatogram, you need to interpret the peaks and other features present in the chromatogram. Here are the key steps involved in analyzing a gas chromatography: 1. Identify the peaks: Peaks represent the separated substances in the sample. Each peak corresponds to a specific component. Start by identifying the tallest peak, which is usually the most abundant component. Then, analyze the subsequent peaks in order of decreasing height.

2. Determine retention time: Retention time is the time it takes for a substance to elute from the column. It is usually measured from the injection point to the apex of the peak. Each substance has a characteristic retention time, which can be used for identification purposes. Compare the retention times of the peaks with reference standards or known retention times to identify the components.

3. Measure peak area or height: The area or height of a peak represents the amount of the corresponding component in the sample. It can be used for quantification purposes. The larger the area or height, the higher the concentration of the component in the sample.

4. Analyze peak shape: The shape of a peak can provide information about the efficiency of the separation and the potential presence of impurities. A symmetric and well-defined peak indicates a good separation, while a broad or tailing peak may suggest chromatographic issues or impurities in the sample.

5. Compare with control or reference chromatograms: If available, compare the obtained gas chromatogram with a control chromatogram or a reference standard. This can help in identification and verification of the separated components.

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6. Consider the detector response: Different detectors have different responses to various components. For example, a flame ionization detector (FID) responds to organic compounds, while a thermal conductivity detector (TCD) responds to changes in thermal conductivity.

Understanding the detector response can aid in the interpretation of the chromatogram.

7. Interpret additional features: Apart from the peaks, there may be other features in the chromatogram, such as baseline noise, spikes, or shoulder peaks. These features can provide additional information about the quality of the analysis or the presence of contaminants.

It is important to note that analyzing a gas chromatogram requires expertise and experience.

Proper training and understanding of the specific analytical method being used are crucial for accurate interpretation and reliable results.

What to do with Discovery from the State.

1. If it’s the first time you are getting discovery from this particular lab review their policies, procedures, and instructions. a. Read through the policies and procedures to familiarize yourself with the requirements. b. Make notes of what you believe to be most important. Take not of statements that say the lab “must” or “shall” do something. These can be very useful in trial when the analyst says they don’t have to perform up to a certain standard or use a certain material, when in fact the protocols say that they must.

2. Review their expert’s CV and credentials.

3. Find your laboratory number assigned to your client’s case. It will be on the lab result with your client’s BAC. Make a note of it as you will be reviewing the discovery to look for information about the analysis.

4. Look for a batch sheet or solution log to show what was run and in what order. There is also something called a toxicology case worklist that is important. The worklist will show you all samples analyzed with your clients. The analyst will also note the condition of the blood and how many milliliters of blood was collected from your client.

5. Look for the Main Case Report. Note the date and time of all important sample events.

Such as: blood draw, storage, transport to lab, receipt at lab, and all testing events. This is important to match up to refrigerator logs to show storage temps, or lack of temperaturecontrolled storage.

6. Look at the Chain of Custody. Review the evidence notes. Do the math on how long the analyst has possession of your clients blood out of the fridge while he’s working with it.

7. Look at the gas chromatograms of your client’s analysis. Are there an unidentified peaks?

Why are they unidentified? a. Remember you are looking for tall, skinny peaks that are symmetrical, separated and start and end at the baseline.

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Texas Criminal Defense Lawyers Association

19th Annual Stuart Kinard Advanced DWI November 2-3, 2023 The Menger Hotel San Antonio, Texas

Breath Testing 2023 Update Speaker:

Jarrod Smith

Speaker:

Brad Vinson

Co-Author:

Elise Smith, M.S., J.D.

Smith & Vinson Law Firm 1411 West Ave Ste 100 Austin, TX 78701 512.368.9044 Phone 615.347.3205 Fax jarrod@smithandvinson.com Email www.smithandvinson.com Website

Smith & Vinson Law Firm 1411 West Avenue # 100 Austin, TX 78701 615.347.3205 Phone 615.347.3205 Fax jvinson29@gmail.com Email www.smithandvinson.com Website

Smith & Vinson Law Firm

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

BREATH TESTING 2023 UPDATE JARROD SMITH J.D. BRAD VINSON, J.D. ELISE SMITH, M.S., J.D. ——————————————————————————————————————— TWO THEORIES OF INTOXICATION If one doesn’t work, the other one will The State will attempt to prove one or both of the alleged means by which a person committed the offense of Driving While Intoxicated: 1. 0.08 Per Se Intoxication Theory 2. Subjective/ Impairment Theory 1. The 0.08 BAC Per Se Law The 0.08 blood alcohol concentration (BAC) per se laws is one of the most fiercely debated areas of alcohol policy in the United States. In October of 2000, President Clinton signed federal legislation (the 0.08 Blood Alcohol Concentration Bill) requiring states to set 0.08 BAC as the legal limit while driving. The state of Texas introduced a 0.08 BAC law in 1999. At the time Texas ranked among the highest in alcohol-related traffic fatalities. Alcohol and Alcoholism, Volume 41, Issue 2, March/April 2006, Pages 193–199 and National Highway Traffic Safety Administration, 1999.

2. Subjective/ Impairment Theory This theory is based on the loss of mental and/or physical faculties due to the introduction of alcohol to the system. This is a catch-all theory which allows the jury to make a finding of guilt without much evidence or scientific foundation. If the jury can’t find the client guilty under the per se theory, they will probably be able to

under the impairment theory. Even if the test result is under the legal limit, a jury could still make a finding of guilty based on this theory.

——————————————————————————————————————— Suppress and Weaken the State’s Evidence ——————————————————————————————————————— SUPPRESS THE RETROGRADE EXTRAPOLATION EVIDENCE/ TESTIMONY Hold the State’s “Expert” to the Mata Factors and Relevant Caselaw The State routinely calls the breath test technical supervisor to testify as an expert about the Intoxilyzer test. Please do not refer to the technical supervisor as an expert. Refer to the technical supervisor as a supervisor. Not only are they not experts in the scientific field most of the time, they are also not experts in the sense that they do not have expert knowledge concerning your client. Each DWI case is extremely unique and specific to the client. The supervisor can usually only speak in general about average rates of absorption and elimination and how this affects an average person of an average weight and age, not how alcohol affects your client specifically.

The supervisor will explain the scientific principles underlying the breath test and testify about the measures taken to ensure accurate test results. Most times, over defense objection, the court will rule that the results of the Intoxilyzer test are admissible. Results showing that BAC was at or greater than 0.08 are damaging to the defense’s case on their own and especially in addition to retrograde extrapolation evidence/ testimony. This is because retrograde extrapolation allows the jury to find your client guilty based on the per se intoxication theory of 0.08 and above.

Don’t let the State’s expert intimidate with pseudo-scientific generalizations about how alcohol affects an average person. No such average person exists. The technical supervisor may have impeccable qualifications, including extensive personal observations of the alcohol absorption and elimination process. What this “expert” will not be able to determine with certainty is whether your client is in the

absorption phase or the elimination phase at the time of the breath test without an extensive knowledge of your client’s individual variables and characteristics.

In Mata, the technical supervisor George McDougall, PhD., explained that a person’s BAC is reflected by an alcohol concentration curve. The low point of the curve represents when there is no alcohol in the person’s blood, and the rise in the curve represents when alcohol is absorbed into the bloodstream until it reaches the peak (maximum alcohol concentration). When the alcohol begins to dissipate from the bloodstream, the curve falls to the low point until no alcohol is present in the blood.

McDougall testified that he would need more than a couple of reference points to draw a curve for an individual. He stated he would need “a lot of them.” McDougall conceded that, although Mata blew into the breathalyzer twice, the readings were only two minutes apart and, for purposes of drawing an alcohol concentration curve, these two readings really only constituted a single reading. That single reading did not give McDougall enough information to determine whether Mata was in the absorption phase or the elimination phase at the time of the breath test. Mata v.

State, 46 S.W.3d 902, 904–05 (Tex. Crim. App. 2001).

Obviously, this is a problem. If the State only provides two breath test results, and they are obtained one right after the other, then the “expert” hailed in Mata exposes the logical fallacy the State wishes to hide from the defense. First, McDougall stated he needed more than two results to draw an alcohol concentration curve for an individual. He stated he needed a lot of results to draw the curve. Second, McDougall conceded that all of the calculations he made concerning Mata were speculative. Mata v. State, 46 S.W.3d 902, 915 (Tex. Crim. App. 2001).

Speculation is not science. Speculation is a guess. The supervisor should first admit the limitations, difficulties and inherent risks in any attempt to extrapolate.

Only then will the jury become aware of the guesswork nature of retrograde extrapolation.

The supervisor can provide information about average absorption and elimination rates. What the supervisor cannot do is apply that general information

to your client because the supervisor does not know your client’s individual and unique absorption and elimination rates.

In Mata, McDougall testified that, while elimination rates tend to be constant, but absorption rates vary in an individual based on a number of factors, rendering any attempt to define an “average” absorption rate meaningless. Even worse, when a single breath test is used to measure alcohol concentration, the supervisor cannot determine whether the individual is in the absorption phase (alcohol concentration is increasing) or in the elimination phase (alcohol concentration is decreasing) at the time of testing. Therefore, without knowing a great deal of information about the individual and the circumstances of his or her drinking, it would not be possible to accurately extrapolate alcohol concentration based on a single breath test.

Nonetheless, the supervisor may try to overgeneralize and state that based on the Goldberg study, 90 to 95 percent of drivers stopped on suspicion of driving while intoxicated were in the elimination phase. This will help the State tremendously if only it were true because then the supervisor can say that elimination rates are constant and predictable concerning your client specifically (since every human being on earth is the same?). Essentially, the supervisor ignores the existence of the other 10% of people in the Goldberg study, which is not standard practice in the sciences, and concludes that your client is clearly in the elimination phase based on no facts at all. Then the State proceeds with the retrograde extrapolation, operating exclusively on imagination. Don’t let this happen.

The expert's testimony in Mata was unreliable in part because the expert did not know a single personal characteristic of Mata from which to calculate blood alcohol content. The expert was unaware of Mata's weight, what he had eaten or the time of his last drink.

Don’t let the supervisor/ expert apply hypotheticals to your client: The use of hypotheticals unrelated to the facts negates the probative value of retrograde extrapolation testimony. The State’s expert/ supervisor NEEDS to tie the science to the facts of the case. Testimony cannot be merely speculative and thus

unreliable and irrelevant. An expert testifying to the effects of alcohol on a given individual must know more a lot about the individual. If the expert/ supervisor does not know the effects of alcohol on a given unique individual, then anything he/she says about how alcohol works in the average person is irrelevant to your client specifically.

Don’t allow the supervisor to guess or estimate what the effect of alcohol would be hypothetically on an average person. It needs to be admitted on the record that without knowledge of the facts of the case, the supervisor is unable to extrapolate, because that would violate the foundational principles of science. If the supervisor does not know any of the particular facts of the case nor the individual variables and characteristics of the client, then the probative value of the supervisor’s testimony is outweighed by the unfair prejudice and it should be suppressed.

Absorption and Elimination Phases – The less the supervisor knows, the less accurate the extrapolation: Absorption and burn-off rates are highly variable, even in a single individual.

The generally accepted rate of burn-off is about one beer per hour, based on the “average man.” However, the “average man,” like the “average family” with 2.4 children, doesn't exist; the only rates which have relevance are the rates of the person on trial. Absorption and elimination rates are affected by a myriad of factors, including most commonly, weight, gender, physical condition, metabolic rate, time of day, when, what, and how much the defendant last ate, when, what, and how much and how the defendant drank, medications taken or not taken, point in a woman's menstrual cycle, emotional state, and whether the defendant is an alcoholic. Experts can attempt to extrapolate with each known factor, but prediction becomes more complicated each time another factor is added to the equation. Very quickly, accurate extrapolation becomes impossible. The impossibility is highlighted when the values of only a few of these many variables are known to the extrapolator. See generally, Edward F. Fitzgerald, Intoxication Text Evidence 2– 14 (2d ed.2000)

First ask where on the absorption/elimination curve the BAC sample falls.

This can almost NEVER be accurately answered as a result of police procedure and policy. Determination by law enforcement of BAC via breath is usually the result of a single sample. At least two, and preferably three, samples taken over time are absolutely necessary. Id. at 4–11—19. After drinking begins, the BAC will rise to some peak value, then decrease until all alcohol has been metabolized. If, at the time of testing, a person is in the absorption phase, in which the BAC is increasing, the BAC at time of driving would be lower than the tested value. The opposite is true if at the time of testing the person is in the elimination phase, in which the BAC is decreasing. Without knowing even the sample's general location on the BAC curve, all other calculations are inaccurate, unfounded and unreliable. Even if the position on the BAC curve at the time of testing could be determined, the task of determining BAC at the time of driving is not necessarily determinable.

The Mata Factors: In Mata, The Texas Court of Criminal Appeals held that expert extrapolation testimony is admissible ONLY if certain factors are known, such as “the length of the drinking spree, the time of the last drink, and the person's weight.” Mata v.

State, 46 S.W.3d 902 (Tex. Crim. App. 2001).

Retrograde extrapolation testimony is scientifically unreliable unless the expert witness knows a vast amount of personal information about the driver including: 1. The presence and type of food in the stomach; 2. The person's gender; 3. The person's weight; 4. The person's age; 5. The person's mental state; 6. The drinking pattern; 7. The type of beverage consumed; 8. The amount consumed; and 9. The time period of alcohol consumption

Mata v. State, 46 S.W.3d 902, 909 (Tex. Crim. App. 2001).

This is all information within the defendant's personal knowledge, but under the Fifth Amendment, the State cannot compel the defendant to disclose this information. State v. Taylor, 132 N.H. at 319–20, 566 A.2d at 175–76.

Mata held that retrograde extrapolation evidence that fails to account for individual variables is inadmissible. Conversely, in Stewart v. State, the Court of Criminal Appeals held that results of breath tests administered 80 minutes after defendant was pulled over were relevant even without retrograde extrapolation evidence. Stewart v. State, 129 S.W.3d 93 (Tex. Crim. App. 2004).

Stewart demonstrates that a BAC test result, taken eighty minutes after the defendant was arrested, still had some probative value without retrograde extrapolation evidence, and thus was relevant under Rule 401. All relevant evidence, even evidence with a low probative value, is admissible under Rule 402 unless excluded under some other statute or rule, such as Rule 403.

Suppression of retrograde extrapolation does not mean BAC gets suppressed too: Mata only addressed the admissibility of expert testimony, not the admissibility of the test results. State v. Mechler, 153 S.W.3d 435, 438 (Tex. Crim.

App. 2005). In Mechler, the BAC results were admissible even without extrapolation testimony because (1) “they tend to make it more probable that the defendant was intoxicated at the time of driving under both the per se and impairment definitions of intoxication” and (2) their probative value outweighed the risk of unfair prejudice under Rule 403. Therefore, it was held that the prejudice of admitting evidence of breath testing machine results taken one and a half hours after defendant's arrest did not outweigh its probative value, and thus, results were admissible. Id at 435.

In addition, it was noted that the relative probative value of the test depends primarily upon (1) How much the test result exceeds the legal limit of 0.08% and (2)

The amount of time elapsed between driving and the taking of the test. The higher the test result and the shorter the time between driving and testing, the more likely the logical inference is that the defendant had a BAC level at or above 0.08% at the time of driving. This suggests that the lower the test result and the longer the time between driving and testing, the LESS likely the logical inference is that the defendant had a BAC at or above 0.08% at the time of driving.

In Gigliobianco v. State, the Court of Criminal Appeals reiterated that the 0.09 and 0.092 BAC results of two breath tests taken 75 minutes after driving had considerable probative value in proving both per se and impairment intoxication at the time of driving. Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006).

Balancing Test: Admitting breath test results without extrapolation testimony: Under Rule 403, there are four major factors that Texas courts use to balance probative value and prejudicial effect (referred to as the Montgomery Factors). The most important factor is the inherent probative value of the test result. The relative probative value of the test depends primarily upon two variables: (1) The degree to which the test result exceeds the legal limit of 0.08%; and (2) The amount of time elapsed between driving and the taking of the test. The higher the test result and the shorter the time between driving and testing, the more likely the logical inference is that the defendant had a BAC level at or above 0.08% at the time of driving. The stronger the inference of a BAC of 0.08% or greater at the time of driving, the less significant is the necessity for expert retrograde extrapolation testimony. Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1990).

The first factor is extremely important because it illustrates the necessity of retrograde extrapolation evidence/ testimony for cases in which the time between driving and taking the breath/ blood test was lengthy and the test result was at or below the legal limit. If the retrograde extrapolation evidence/ testimony can be suppressed due to absence of knowledge by the State’s expert of the individual client’s variations as shown in Mata, then under these circumstances, the court may suppress the test results as well. The court’s reasoning is based on the logic that

without retrograde extrapolation evidence, the inference that the client had a 0.08% BAC at the time of driving is insubstantial. Therefore, the test result should be suppressed in these cases since the danger of unfair prejudice outweighs the probative value. The test results are irrelevant without retrograde extrapolation because there is no evidence to show that the client was intoxicated at the time of driving.

The second factor asks whether the evidence has the potential to impress the jury in an irrational way. The focus is on whether the evidence is unfairly prejudicial and whether it has a tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged. Mechler, 153 S.W.3d at 440.

When a trial court suppresses retrograde extrapolation, but admits breath/ blood test results, the argument is that this encourages the jury to conduct its own retrograde extrapolation and to decide the case based on facts not in evidence. This substantially affects the client’s rights.

The Texas Court of Criminal Appeals issued its opinion of this argument, and not to the defense attorney’s benefit. The Court states that the admission of the breath test results “did not necessarily encourage the jury to engage in its own crude retrograde extrapolation” because the jury did not need to establish the exact blood alcohol concentration at the time of driving. On discretionary review, it was held that results of breath tests administered 80 minutes after defendant was pulled over were relevant even without retrograde extrapolation evidence. Stewart v. State, 129 S.W.3d 93 (Tex. Crim. App. 2004).

The jury only needs to believe beyond a reasonable doubt that either the BAC was at or above the legal limit OR that the client failed to have the normal use of mental or physical faculties by reason of introduction of alcohol into the body, at the time of driving. Therefore, under the facts of Stewart, The Texas Court of Criminal Appeals showed the Court of Appeals erred in finding that the trial court encouraged the jury to engage in its own retrograde extrapolation and to decide the case based on facts not in evidence. Stewart is therefore similar to Mechler. Stewart shows that test results of 0.160 and 0.154 obtained 80 minutes (1 hr 20 min) after

time of driving is relevant and admissible without retrograde extrapolation evidence. Mechler shows that a test result of 0.165 obtained nearly an hour and a half later after time of driving is relevant and admissible, without retrograde extrapolation evidence. The Court of Criminal Appeals generally holds that the sum of the Montgomery Factors weigh in favor of admitting the test result when the result is above the legal limit and the time between driving and the test ranges from an hour to an hour and a half.

The third factor “looks to the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense.” Mechler, 153 S.W.3d at 441. Because the time needed to introduce the blood test results is relatively short and because the results “relate directly to the charged offense,” this factor too weights in favor of admissibility. Id. The fourth and final factor in the Rule 403 analysis looks at the proponent's need for the evidence and “encompasses the issues of whether the proponent has other evidence establishing this fact.” Id. If the State has other probative evidence to establish the client’s intoxication such as officer testimony that he/she smelled a strong odor of alcohol on the breath, the client was swaying, the client told the officer he/she drank alcohol; the results of the field sobriety tests, on which the client may show signs of impairment; a videotape of the client at the scene, on which he/she states he/she had been drinking beer before an accident; and possibly the results of the portable breath test taken at the scene an hour after the accident.

In light of this other evidence probative of intoxication, the State does not have a great need for the blood test results. Therefore, the sum of the Rule 403 factors could favor exclusion of the test results. See generally State v. Franco, 180 S.W.3d 219, 225–26 (Tex. App. 2005).

Suppress the test when the inference is weak: Conversely, the weaker the inference of guilt, the more vital is the necessity for evidence that relates an accused's BAC test result back to the time of driving.

When a test is obtained long after the arrest and the result is at or below the legal

limit, the logical inference that the person had a 0.08% BAC at the time of driving may be so tenuous that a trial judge appropriately exercises his discretion by excluding that specific test result under Rule 403 absent expert testimony that extrapolates the test result back to the time of driving.

Experts admit that the process of alcohol absorption is “highly variable” and the limitations and pitfalls associated with retrograde extrapolation are often not appreciated by laymen and the courts. Richard Watkins & Eugene Adler, The Effect of Food on Alcohol Absorption and Elimination Patterns, 38 J. OF FORENSIC SCIENCE 285, 288 (1993)).

Much like I.Q. test results are not an exact measurement of a person's intelligence level, the standard/ average extrapolation of BAC-test results back to the time of driving is not exact unless numerous variables are accounted for. Like IQ tests, BAC-test results be probative of an ultimate fact such as intoxication at the time of driving, while not a precise measure of that fact.

BAC test result is not enough to prove intoxication at the time of driving: If retrograde extrapolation evidence is suppressed, this may call into question the ability of the jury to make a finding of guilty on the per se intoxication theory, because no scientific evidence exists in the record to support the factual finding that the BAC test result was at or above 0.08 at the time of driving. BAC-test results, even absent expert retrograde extrapolation testimony, are often highly probative to prove both per se and impairment intoxication. However, a BAC-test result, by itself, is not sufficient to prove intoxication at the time of driving. There must be other evidence in the record that would support an inference that the defendant was intoxicated at the time of driving as well as at the time of taking the test. Kirsch v.

State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010).

The Court of Criminal Appeals explained previously that if the State is going to rely on the per se intoxication theory, then the proof of that theory normally appears in the form of a chemical test showing the alcohol concentration in the client’s body near the time of driving. Still, a conviction is not guaranteed after the

test results are admitted. The jury must be convinced beyond a reasonable doubt that the chemical test provides trustworthy evidence of alcohol concentration in the client’s breath/ blood. Then the jury must be convinced beyond a reasonable doubt that an inference can be made from the results of the chemical test that the defendant had a BAC at or above 0.08 at the time of driving.

Evidence of the client’s BAC at the time of testing is not necessarily inadmissible if it is unaccompanied by expert retrograde extrapolation testimony indicating the defendant's blood alcohol level at the legally determinative time. § 14:88. Retrograde extrapolation testimony—Necessity for such testimony, 40 Tex. Prac., Criminal Practice And Procedure § 14:88 (3d ed.).

Intoxilyzer results offered in a prosecution for driving while intoxicated without such expert testimony, State v. Mechler held, are not inherently inadmissible under Evidence Rule 403 because their probative value is substantially outweighed by the danger of unfair prejudice. As four concurring members of the court noted, Mechler did not appear to indicate that intoxilyzer results are always admissible without regard to whether the State will supplement that evidence with retrograde extrapolation testimony. Rather, the court simply disapproved an absolute and universal requirement of such supplemental testimony. Id. In State v. Mechler, the trial court was held to have acted within its discretion in first holding retrograde extrapolation testimony inadmissible and then excluding the test results. State v. Franco, 180 S.W.3d 219 (Tex. App.—San Antonio 2005, pet. ref'd). Compare Read v. State, 2007 WL 941676 (Tex. App.—Fort Worth 2007, pet. ref'd) (not designated for publication) (no error in admitting test results because “[t]he trial court was in the best position to determine that the probative value of the breath test results, absent retrograde extrapolation, was not substantially outweighed by undue prejudice”. State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005).

Lag Time between Offense and Test – BrAC/ BAC Test Results Admissible: Texas courts have determined that unextrapolated breath-test results, even though obtained after a lag time between driving and administration of the test, are probative evidence for the trier of fact to consider and weigh. See Forte v. State, S.W.2d 89, 94–95 (Tex.Crim.App.1986). The Court of Criminal Appeals has recognized that, when the State relies on the per se definition of intoxication to prosecute a person for drunk driving, its proof will usually be in the form of a chemical test showing the defendant's alcohol concentration “near the time of the offense.” Id. at 94–95.

However, a conviction will not necessarily follow from the breath-test evidence.

The jury must still be convinced beyond a reasonable doubt that an inference can be drawn from the test results that the person's alcohol concentration exceeded the statutory threshold when the offense occurred. Further, there is nothing to prevent a claim that the person's alcohol concentration increased between the arrest and the test. See id. at 95. In Owen v. State, the court, in considering the sufficiency of the evidence to support a drunk driving conviction, held that the jury could have, without other evidence, inferred from the results of the intoxilyzer tests given just over an hour later that Owen had an alcohol concentration at or above the legal limit at the time of the accident. 905 S.W.2d 434, 437–39 (Tex.App.—Waco 1995, pet. ref'd). See generally Mireles v. Texas Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999).

Long lag time between offense + test = BAC results admitted Texas courts are allowing test results in even when the time between driving and the test is 2 hours apart.

Garcia v. State Defendant was convicted of intoxication manslaughter, and he appealed. The Court of Appeals held that blood test results conducted on blood drawn from defendant two hours after accident were reliable, and thus admissible and the State's failure to extrapolate defendant's blood alcohol content (BAC) at time of his accident by taking into account what he ate and drank prior to driving did not render

inadmissible results of blood tests conducted on blood drawn from defendant. Garcia v. State, 112 S.W.3d 839 (Tex. App. 2003).

———————————————————————————————————————

State Arguments and Defense Responses ——————————————————————————————————————— State’s Argument #: The Intoxilyzer 9000 is the GOLD STANDARD for breath testing.

Defense’s Response #: The Intoxilyzer 9000 is a glorified light box using unknown proprietary code algorithms on a Microsoft Windows operating system with up to a 10% error margin. Only physicists, engineers and chemists at the Masters/ PhD level could adequately describe what goes on in this black box, not police officers (operators) and technical supervisors who lack these credentials and expertise. In addition, there are a plethora of assumptions one must make to arrive at the breath test result. These assumptions are based on high-level mathematical, chemistry and physics-based technical science and engineering. It’s beyond the comprehension of most of the State’s “experts”.

Where to begin: The Intoxilyzer 9000 CMI, the maker of the Intoxilyzer 9000, states on its website that evidential breath testing instruments are tested to very high standards before being approved by the Department of Transportation. CMI touts itself among the top manufacturers of breath alcohol testing instruments in the U.S., Canada, and around the world, and that it is a leader in breath alcohol testing technology. CMI also says that its breath alcohol testers are known for reliability and accuracy. It’s important to note that CMI makes the statement that they are “known” for

reliability and accuracy”, not that they guarantee it. Also, CMI does not provide any study or data on its website to support these astonishing claims.

No one knows, and the State wants to keep it that way: Access to CMI’s Intoxilyzer technologies or any scientifically conducted studies about them are stringently controlled by both the manufacturers and the police and government agencies that control them. State agencies are reluctant to publish the results of their official assessments and analyses of the devices. The Georgia Bureau of Investigation (Division of Forensic Sciences) released their assessment on the Intoxilyzer 9000 in 2012, and that was the first and last time ever for any state.

No scientifically reliable peer-reviewed studies on the Intoxilyzer 9000: Searching the the National Institutes of Health/ PubMed database using the term “Intoxilyzer 9000” will yield ZERO RESULTS. This means no peer-reviewed scientific studies exist concerning the accuracy or reliability of the Intoxilyzer 9000.

PubMed is one of the world’s leading biomedical databases, and it is known for the high caliber of its scientific publications. Searching the web, only one study is found specifically concerning the Intoxilyzer 9000. Since this article was not found in the PubMed database, scientists and researchers are not likely to read or rely on it due to the risk of the low quality, amateurish, and often unethical academic publishing in a journal not registered with PubMed. In fact it’s almost not worth mentioning because it only tested 10 drinking subjects, which is more of an anecdotal inquiry rather than a scientific analysis. Bugyra, B. Cahill & T. L. Martin (2023) Evaluation of the Intoxilyzer® 9000 evidential breath alcohol testing instrument, Canadian Society of Forensic Science Journal, DOI: 10.1080/00085030.2023.2230012.

Of course, the finding was a strong positive correlation between BrAC and BAC, with the conclusion stated as: “The validation of the Intoxilyzer® 9000 according to the standards of the Alcohol Test Committee of the Canadian Society of Forensic Science demonstrates the instrument to be an accurate and reliable means of determining breath alcohol concentrations over a range of forensically relevant BACs. The “accurate and reliable” language of this research article is strikingly

similar to the language found on CMI’s website, where the manufacturer states that the Intoxilyzer 9000 is “known for reliability and accuracy”. Finally, in 2023, after 8 years of testing the general public without any studies, there is one single article in an obscure journal that involved 10 test subjects to prove that the Intoxilyzer 9000 is accurate and reliable.

Unfortunately for the government, numerous scientific and peer-reviewed articles exist that demonstrate the scientific community’s doubts about breath alcohol analyzers due to their inaccuracy and unreliability. There exists inherent uncertainty in the analytical methods implemented in breath tests, and this can make the difference between punishment or acquittal. Jones AW. Medicolegal Alcohol Determination - Blood- or Breath-Alcohol Concentration? Forensic Sci Rev. 2000 Jan;12(1-2):23-47. PMID: 26256024. Watch out for Jones, AW, as an author, though. He has a long-standing history of reporting studies with a bias toward police department breath testing. He is affiliated with the Department of Forensic Toxicology in Sweden and has a copyright for his articles with the Central Police University. However, even he admits that uncertainty in the methods relied upon for breath testing could lead to an inaccurate or unreliable result, potentially leading to a wrongful conviction.

In fact, it was found that exhaled alcohol concentration is not an accurate indicator of alveolar alcohol concentration. Airway exchange of alcohol leads to a bias against certain individuals depending on the anatomic and physiologic characteristics. Important physiologic factors are not measured to adjust BrAC for their effects on measured breath alcohol. The lack of making these measurements leads to an increase the uncertainty (biological) of the measured BrAC. This study states definitively that “all blood-to-breath alcohol comparisons using venous blood are technically flawed”. Hlastala MP, Anderson JC. Alcohol breath test: gas exchange issues. J Appl Physiol (1985). 2016 Aug 1;121(2):367-75. doi: 10.1152/japplphysiol.00548.2015. Epub 2016 May 19. PMID: 27197859. Therefore, the assumption that the correlation between BrAC and BAC creates the foundation for a conviction may need to be rethought.

The Partition Ratio: The blood-breath ratio (BBR) of alcohol is important, because it relates the measurement of the blood-alcohol concentration (BAC) to the co-existing breathalcohol concentration (BrAC). Essentially, the BrAC is converted through a formula to obtain a correlation to BAC. The BBR is also used to establish the statutory BrAC limit for driving from the existing statutory BAC limits. The problem is that the BBR – also known as the partition ratio, is an assumed number based on results from an outdated study.

If you search “partition ratio 2100:1” or any variation thereof on PubMed, there are zero results. It’s because this number was not calculated using biological, chemical or physics-based understanding. It was a number the government decided on.

In 1975, a report was issued on "Periodic Requalification and Continued Education and Training of Personnel Engaged in the Performance of chemical Tests for Alcoholic Influence". This was part of the NSC-NHTSA contract and the draft revision of the Highway Safety Program Manual, Volume 8, "Alcohol in Relation to Highway Safety". The Committee approved a new definition of alcohol concentration: Alcohol concentration shall mean: (1) grams of alcohol per 100 milliliters of blood (2) grams of alcohol per 210 liters of breath.

No Toxtrap for 50 years, despite scientifically proven reliability and accuracy: The Committee also approved the following statement: "Some issues have been raised in the California Supreme Court's decision in People vs. Hitch and allied cases in which the court held that chemicals and ampoules used in breath test cases must be preserved for possible pre-trial examination and analysis by defendants should they so demand it. A review of the scientific merits of this position has been made. It is concluded that at the present time, a scientifically valid procedure is not known to be available for the reexamination of a Breathalyzer ampoule that has been used in the breath test for ethanol, in order to confirm the accuracy and reliability of the original breath analysis."

Nearly 50 years ago, the government concluded that a scientifically valid procedure was NOT available for the defense to retest a breath test ampoule. Now that this highly affordable technology is made by Toxtrap, Texas still doesn’t save a breath sample for the defense to test on its own. Studies have shown that the Toxtrap technology is reliable in that the collection tubes using silica gel showed no substantial variability in retaining ethanol during storage and releasing ethanol for analysis. If there are numerous peer-reviewed scientific studies that show the reliability of this technology, the very same argument the government uses to justify the use of the Intoxilyzer 9000 (which does not have peer-reviewed studies) becomes absurd. If we can show them the reliability and accuracy of a well-studied technology and justify its use for the benefit of the defense, and have the request for that technology rejected by the government, this tells us all we need to know.

Conversely, if the defense complains about the lack of scientific peer-reviewed studies concerning the Intoxilyzer 9000, the government still adheres to its mantra that it is accurate and reliable, without scientific proof.

Henry’s Law: Henry’s Law states that the quantity of gas that dissolves in a liquid at standard temperature and pressure is directly proportional to the partial pressure of that gas in the gas phase. This makes it possible to quantify the relationship between the breath alcohol content and the blood alcohol content as the apparent blood / breath ratio. This ratio describes the relationship between the alcohol content of breath and the alcohol content of blood at a given point in time. It defines the quantity of breath that would contain the same amount of alcohol as a given quantity of blood.

Research demonstrates that 2,100 milliliters of deep lung air contain about the same amount of alcohol as one milliliter of arterial blood. Therefore, breath alcohol testers calculate the amount of ethanol per 210 liters of air. https://www.alcoholtest.com/alcohol-testing/(CMI official website). CMI fails to cite any research studies that support this conclusion on its website.

Assumptions that must be accepted to obtain a breath test result using the Intoxilyzer 9000: An analytical test is only as accurate as the assumptions its methodology is based on. Would a jury feel comfortable convicting someone based on an agreed number decided by the government and administrative committees who push for DWI convictions? When the test parameters of an analytic test are decided upon with a desired outcome in mind, that outcome will almost always be achieved.

Consider the following assumptions and scientific principles we must take for granted without understanding the exceptionally complicated mathematical and scientific calculations behind them: 1. Henry’s Law 2. Beer’s Law 3. Beer-Lambert Law 4. Infrared Spectroscopy 5. The government’s definition of partition ratio is 2100:1 a. Other studies do not confirm this one and only number b. Other studies show a range both below and above this number i. Meaning each person has a variable partition ratio, and a person could have less alcohol in their system than the Intoxilyzer 9000 erroneously calculates, based on the 2100:1 assumption c. Each country uses a different partition ratio 6. The partition ratio is the same for every person in the world a. No – The blood-breath ratio varies for a particular person over time.

The BBR is a moving target, and the notion of a constant value for all people under all conditions is imaginary. Jones AW, Andersson L. Variability of the blood/breath alcohol ratio in drinking drivers. J Forensic Sci. 1996 Nov;41(6):916-21. PMID: 8914280.

7. There are 210 liters of breath in every single person’s body

8. The partition ratio is constant over time (even during absorption and elimination) 9. The theoretical closed system required by Henry’s law to order to obtain an accurate and reliable result, exactly mimics the human body’s open system 10. No mouth alcohol is introduced into the machine 11. No contaminates or interferences are present in the breath sample 12. The machine was maintained, calibrated and complied with all regulatory requirements 13. The software is functioning 14. No radio frequency interference 15. Temperature is 34o C and constant a. Hot breath is bad. When the breath temperature exceeds 34o C, the result is an inflated and incorrect correlative BAC test result. For example, a person with a 0.075 BAC will test at a 0.081 BAC if breath temperature is 35o C. 16. The uncertainty of test results is not concerning, just a part of life a. All measuring devices have some error. The Intoxilyzer 9000 has a 10% margin of error. If 1,000 tests are run, 44.5% of the test results will be above the true BrAC value, and only 11% of the test results would be accurate. Coffey, M., Nesci, J. and R., B.I.D. (2018) Texas DWI defense: The law and practice.

The list could go on, but in viewing this already long list of complex concepts we must blindly accept without fully understanding their significance, doubt arises whether this should lead to someone’s conviction.

How can a jury know it’s true if they can’t understand the complexity of the science and math?

The jury cannot actually know whether the breath test result is accurate or reliable based on all the variables, assumptions, calculations, deviations, unknowns,

uncertainties, and inherent analytic errors present in the Intoxilyzer 9000. When biology meets technology, there is no guarantee of an accurate/ true outcome. What medical device or medicine can anyone name that has operated or worked perfectly without any error, side effects or uncertainty? None exists. That’s what civil lawsuits are for.

Have any of the jurors ever had an issue with a medical device or a pharmaceutical that underwent extensive testing and was approved by the FDA? If these things are fallible and cause harm, then the Intoxilyzer 9000 is fallible too, and even more so due to the lack of science to support it. At least with medical devices and pharmaceutical we have peer-reviewed studies. Who could really trust the Intoxilyzer 9000 knowing it is not even approved by the FDA as a diagnostic device? It’s only approved as an evidential breath alcohol measurement device by the Department of Transportation. If your doctor informed you that your diagnostic test results for a serious health concern were being sent to the Department of Transportation for analysis, would you be skeptical? If it’s unthinkable to trust the Department of Transportation with the task of diagnosing you with a serious illness, imagine if your freedom depended it.

--------------------------------------------------------------------------------------------------------------------15-MINUTE WAITING PERIOD: State’s Argument: The breath test result is reliable, valid, and therefore the accurate measurement of the client’s BAC. Defense’s Response: The 15-Minute Observation Period was NOT performed as required by 37 Tex. Admin. Code § 19.4.

When someone takes a drink of alcohol, some alcohol remains in the mouth (residual mouth-alcohol). When that person blows into a breath test device, it detects the residual mouth-alcohol in addition to lung-alcohol. The result is a higher than true BAC, and therefore an inaccurate result.

Police Officers/ operators must make sure that the client has not ingested any alcohol or other fluids, vomited, eaten, smoked, or placed any object in the mouth for at least 15 minutes immediately preceding the first sample. The operator is required to remain in the “continuous presence” of the client for at least 15 minutes before the test. Direct observation is NOT necessary to ensure the accuracy of the result. Coffey, M., Nesci, J. and R., B.I.D. (2018) Texas DWI defense: The law and practice. Tucson, AZ: Lawyers & Judges Publishing Company, Inc. The purpose of the 15-minute observation period is to allow mouth-alcohol to dissipate so it does not interfere with the breath test and cause an unreliable result.

If the 15-minute observation period is not complied with, the breath test result may be inaccurate due to the presence of mouth-alcohol or other interfering chemicals.

The issue is what it means to remain in the “continuous presence of” and what it means to not have “direct observation” of. Many officers write their reports while being in the continuous presence of the client. This mainly fits the definition of an acceptable 15-min observation. Of those observations, how many clients burped, inadvertently regurgitated, or did something unknowingly that would artificially increase the breath test result? Probably a few since the officer is under no obligation to inform clients that they should not do these things if they want to get an accurate result. If clients knew they should not burp or put something in their mouth, they might not. They could also inform the officer if they did do something to mistakenly increase the breath test result. Then the remedy would be to restart the 15-minute observation period to gain a more accurate result.

--------------------------------------------------------------------------------------------------------------------DISCONNECT DEFENSE: State’s Argument #: Your client is an alcoholic because the only thing to explain normal looking behavior while intoxicated is tolerance.

Defense’s Response #: The technical supervisor/ expert does not know anything about our client. The supervisor needs to create an explanation for a breath result that does not fit the facts of the case that damages the defense and helps the State.

It’s possible for a person to have a high breath test result and look good on video. The technical supervisor will punish your client for looking good by accusing him/ her of being an alcoholic with tolerance to explain why he/ she hasn’t blacked out yet. It’s a logical fallacy and very insulting. Not all people who drink alcohol are alcoholics. However, all alcoholics drink alcohol to a degree that interferes with their everyday lives. It’s a clinical definition, and only a medical doctor can diagnose a person with alcoholism. What people erroneously call an alcoholic, the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) correctly refers to them as a person who suffers from alcohol use disorder (AUD) with mild, moderate and severe sub-classifications.

Unless the technical supervisor is a medical doctor and an expert in Mental Disorders, tolerance should not be mentioned. The State’s expert cannot testify to subjects on which they are not an expert. Ask the technical supervisor where they went to medical school, if they specialize in alcoholism, and the last time they picked up the fifth edition of the DSM. --------------------------------------------------------------------------------------------------------------------THE OPERATOR DOESN’T KNOW, BUT THE TECHNICAL SUPERVISOR DOES: State’s Argument: The operator is a trained scientific analyst and tested the samples perfectly, therefore the breath test results are valid.

Defense’s Response: The operator is a police officer, not a scientist or laboratory technician. The operator knows what buttons to push, but does not know what the buttons do. The operator lacks the sufficient scientific knowledge to understand how the Intoxilyzer 9000 works. Therefore, the operator does not know whether the sample is valid or invalid, because the operator does not know if any deviations from the approved methods occurred due to machine error or human error. In order to recognize an issue, the operator should need to know how the machine works.

Operators aren’t required to know the science or technology underlying the machine: The Texas Court of Criminal Appeals held in Reynolds v. State that it is NOT a part of the predicate for the admissibility of breath alcohol test results in a DWI prosecution that the operator of the breath testing apparatus himself understand the scientific and technological principles behind the apparatus; as long the operator is properly certified under the statute to operate it, knows the protocol involved in administering the test, and can testify that he followed it on the occasion in question, he need not demonstrate any familiarity with the underlying science and technology. Reynolds v. State, 204 S.W.3d 386 (Tex. Crim. App. 2006).

The good news is that by showing the operator’s lack of knowledge concerning the science and technology behind the Intoxilyzer 9000, the credibility of the operator declines. The jury can still determine how much weight they will place on the operator’s dubious assurances that the test was perfect, even though the operator has no clue why the test was perfect.

Operators should follow protocol and be knowledgeable on the Operator Manual: The operator may not need to know the science behind the Intoxilyzer 9000, but the operator is REQUIRED to follow the standard operating procedures of the Intoxilyzer 9000. The operator must be knowledgeable on the Texas Breath Alcohol Program Operator Manual in order to operate the Intoxilyzer 9000. If asked questions directly from the Operator Manual, how likely is it the operator will correctly answer? The operator’s job is to operate the machine, but how can this be done correctly to yield a valid test result if the operator is not familiar with the Operator Manual?

If the defense is knowledgeable enough on the contents of the Operator Manual, and the operator answers a defense question concerning information in the Manual incorrectly or does not know, the defense could show the jury that the operator lacks the basic knowledge to run the samples. If the operator lacks the necessary knowledge to test the samples, how can an accurate test result be

achieved? It’s concerning that we are told to blindly rely on this operator. The operator may know how to push the buttons and know the sequence of the breath test procedure, but the fact that the operator does not know what the buttons do should give everyone pause.

How the Texas Criminal Court of Appeals “solved” this issue: It was obvious to the Court that it was a problem to have a non-scientist routinely performing scientific tests. Logically and lawfully, no jury could convict based on test results obtained by police officers alone, without expert scientific help.

For example, we all drive cars. Most people do not know how cars work and cannot explain the technology behind them, but they can still drive a car. People can press buttons and not know what the buttons do. The problem that arises with this line of reasoning is that a driver is not being asked to testify to the validity of a test result that could lead to someone being convicted of a crime, based on the driver’s buttonpushing knowledge.

So, while the Texas Criminal Court of Appeals has concluded that the operator does not need to understand the scientific and technological principles underlying the Intoxilyzer 9000, the Court still requires the operator to be under the supervision of one who has an understanding of the scientific theory of the machine, the technical supervisor. Reynolds v. State, 204 S.W.3d 386, 387 (Tex. Crim. App. 2006). To remedy the situation, operators must now be periodically supervised by an expert. How helpful can this supervision be if it is not truly periodic or regular?

The Periodic Supervision Requirement: In Hill v. State, the trial court admitted evidence of the officer who gave the breath test upon a showing that Dr. Beerstecher, a Ph.D. in biochemistry had trained the officer and maintained a periodic supervision over his work, the operation of the machine, and the chemicals that were used in making the test. The State’s expert, Dr. Beerstecher himself, stated that even with qualified operators, it

is recommended by scientists that there be checks run on these operators to make sure that there is not a mental lapse or a variance in the manner of giving these tests, in order that the precise and meticulous mathematical standard, which is required, be adhered to. Without precise mathematical standard, the whole calculation can be thrown out of line. Hill v. State, 158 Tex. Crim. 313, 318, 256 S.W.2d 93, 96 (1953).

If the operator does not give the test properly, if he varies in it, then everything is out of kelter. The answers that might be indicated are worthless unless there has been exact accuracy in all of the procedure necessary to endeavor to reach a conclusion that would be shown by the machine. Id. At 96.

In Hill, the Texas Court of Criminal Appeals held that for the results of a breath test to be admissible, the State need only demonstrate that the breath test operator and his apparatus must be “under the supervision of one who has an understanding of the scientific theory of the machine.” The Court showed that in order for the test results to be admitted, there must be proof that the operator and the machine were under the periodic supervision of one who has an understanding of the scientific theory of the machine. Id. What is Sufficient Supervision? Does it affect admissibility or only go the weight?

The Texas Court of Criminal Appeals stated in Hill that the type of supervision shown in McKay v State was abundantly sufficient and is convinced that some type of scientific supervision should be shown in order to make the results of the test admissible in evidence. Upon review of McKay, no factors or guidelines were found to help define “abundantly sufficient supervision”. The only allusion to a standard for sufficient supervision is found at the end of the case: “The witness who testified to the results of the meter, who was an expert in biology, merely based his testimony on the effect of the amount found on appellant's breath by the use of the meter, which merely confirmed the statements of the officers relative to appellant's condition at the time of his arrest. One line of witnesses smells the breath and another measures it, and both arrive at the same conclusion.

Therefore, we see no error in such proceedings. McKay v. State, 155 Tex. Crim. 416, 423, 235 S.W.2d 173, 176 (1950).

Since a clear standard or definition of “sufficient supervision” and “periodic supervision” is lacking, this could be a way to object to the admissibility and/or lessen the weight of the evidence of the BAC test results.

Show the jury there is a lack of periodic supervision – this is not the same as training. Training occurs regularly by persons other than the technical supervisor, but the Texas Court of Criminal Appeals set the standard that the technical supervisor should perform periodic supervision over the operator.

Cross-Examination Questions for the Operator: 1. How often do you see your technical supervisor? a. Does the operator understand who this is when asked? If not, can reference the Intoxilyzer 9000 machine and what the supervisor does.

2. Have you met the technical supervisor responsible for the maintenance of the Intoxilyzer 9000 located at your police station/ in your region? a. If no, ask if the operator knows who the technical supervisor is.

3. Do you know his/her name? (ask for first and last if both are not given) 4. Does this person have a PhD? Masters? Bachelor’s in what?

5. Do you know where your technical supervisor works?

6. Do you know who your technical supervisor works for?

7. Do you know your technical supervisor’s phone number? Email?

8. Has there ever been an issue with the machine? a. This is important to ask for the purpose of establishing that no machine is perfect or fool-proof – of course there have been issues and/ or a need to maintenance.

9. When is the last time you saw the supervisor?

10. Why was the supervisor there?

a. The goal is to get the operator to admit that the technical supervisor really only comes to the police station to maintenance the Intoxilyzer 9000 machine – don’t give them any hint where you’re going with this.

11. Was the supervisor there to see you? a. If operator answers yes, ask why.

12. What was the supervisor there for on the day you saw him/ her?

13. Did the supervisor maintenance the machine on the day you saw him/her?

14. So the supervisor did not come to see you specifically?

15. Did you meet and speak with the supervisor?

16. What did you talk about?

17. Was there an issue with the machine?

18. Did the supervisor express any concerns about your performance of the test or operation of the machine? a. The operator will probably need to say NO to this question, and this opens up the opportunity to show that the operator is NOT being supervised, let alone periodically or sufficiently supervised by the technical supervisor.

19. Does the technical supervisor ever contact you (call/email) and ask if there are any issues with the machine? How often?

20. Does the technical supervisor ever contact you (call/email) and ask if there are any issues with your performance of running tests on the machine?

How often?

21. How often have you seen the technical supervisor maintenance the machine?

22. Who do you directly report to?

23. So, you don’t report to the technical supervisor?

24. Who do you contact if there is an issue with the machine?

25. So, you directly report to _________, who is a different person than the technical supervisor, and you do not report directly to the technical supervisor? a. If the operator tries to get out of this, ask who the operator’s boss is.

That should clear it up – that the technical supervisor is NOT the operator’s boss, and that false theory of supervision vanishes.

26. Would you say that you see or talk to the technical supervisor if there is an issue with the machine?

27. Have you ever contacted the technical supervisor concerning your performance of the breath test on the machine? For what specifically?

When? How often? a. The operator will probably not want to answer this question because it could shed negative light on his/ her performance, putting test result validity at risk.

28. So, based on everything you said about the few times you have interacted (or not) with the technical supervisor, it sounds like the supervisor mainly (or only) comes to maintenance/ address issues with the machine and not to address your operation or performance of the machine?

Determine from the operator how many times he/she has seen or spoken to the technical supervisor. Calculate how often it was over a time period and ask yourself if that seems to fit any definition of periodic/ regular/ consistent supervision. Under the requirements of Hill and McKay, it is not enough that the technical supervisor supervises the machine, the technical supervisor is also required, just as importantly, to periodically supervise the operator who operates the machine. The supervision of both is necessary for the correct operation of the machine. The machine must work correctly in order for it to produce valid test results.

Let the jury know that police officers/ operators are required to be periodically supervised by a scientific expert/ technical supervisor, and that the

failure to periodically/ regularly supervise renders the test results worthless.

Establishing the lack of periodic supervision may result in suppression of the BAC test results since the scientific expert/ technical supervisor cannot verify whether the police officer/ operator is consistently operating the machine correctly. If the scientific expert/ technical supervisor is not supervising the operator, how can anyone be certain that the machine is being operated properly each time and that the test results are valid every time?

——————————————————————————————————————— Demonstrate the serious deficiencies in the State's case to the jury. Make the jury question whether they themselves would accept being convicted under arbitrary principles and assumptions a normal person could never comprehend, and where those in charge of testing samples are not scientifically trained or educated but happen to be the people who want a criminal conviction.

———————————————————————————————————————

Texas Criminal Defense Lawyers Association

19th Annual Stuart Kinard Advanced DWI November 2-3, 2023 The Menger Hotel San Antonio, Texas

Boats to Build: Sealing the Deal in Closing Arguments Speaker:

Michelle Behan

The Behan Law Group, P.L.L.C. 945 North Stone Avenue Tucson, AZ 85705 520.308.7994 phone michelle.behan@missduiarizona.com email www.missduiarizona.com website

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

Michelle L. Behan

Closing Arguments TCDLA 2023

Nov. 2, 2023

BOATS TO BUILD: SEALING THE DEAL IN CLOSING ARGUMENTS BY MICHELLE L. BEHAN OWNER AND PRESIDENT THE BEHAN LAW GROUP, PLLC 945 NORTH STONE AVENUE TUCSON, AZ 85705 WWW.MISSDUIARIZONA.COM WWW.LAWYERSLOUNGE.COM WWW.TUCSONGUNLAWS.COM

TCDLA DWI NOV. 2 – 3, 2023 SAN ANTONIO, TX -1Copyright © Michelle L. Behan, The Behan Law Group All Rights Reserved – Use With Permission Only

Michelle L. Behan

I. II.

III.

IV.

Closing Arguments TCDLA 2023

Nov. 2, 2023

INTRODUCTION COUNSEL HAS WIDE LATITUDE IN CLOSING ARGUMENT… a. SUMMARIZE EVIDENCE b. ARGUE REASONABLE INFERENCES c. ASK THE JURY TO DRAW CONCLUSIONS d. DISCUSS LEGAL STANDARD BUT NOT CARTE BLANCHE… a. NO VOUCHING b. NO PERSONAL OPINIONS c. NO APPEALS TO THE EMOTIONS OF THE JURY d. NO ARGUING ABOUT EVIDENCE COUNSEL HAS PRECLUDED THE CLOSING ARGUMENT CHECKLIST a. DANGER POINTS: THESE ARE THE ELEMENTS OF THE CASE THAT MAKE THE CASE PROBLEMATIC. IN A DUI TRIAL, THEY ARE USUALLY IN ONE OF FIVE CATEGORIES: i. DRIVING ii. SIGNS AND SYMPTOMS iii. FSTS iv. STATEMENTS v. CHEMICAL TEST RESULT b. THE ONE QUESTION i. WHAT IS THE ONE QUESTION YOU DON’T WANT THE JURY TO BE ASKING EACH OTHER IN THE DELIBERATION ROOM? 1. EX: CAN THE MACHINE BE SO WRONG? 2. EX: IF HE DIDN’T DRIVE, HOW DID HE GET THERE? 3. EX: WHAT TYPE OF MOTHER WOULD PICK UP HER KIDS AFTER SHE HAD BEEN DRINKING? ii. CAN BE ANSWERED INDIRECTLY THROUGH TESTIMONY THEN c.

ARGUED IN CLOSING CLOSING STARTS WITH VOIR DIRE i. USE YOUR ONE QUESTION TO FORM YOUR VOIR DIRE QUESTIONS. ii. EX: ONE QUESTION = EXPLAIN THE NUMBER.

-2Copyright © Michelle L. Behan, The Behan Law Group All Rights Reserved – Use With Permission Only

Michelle L. Behan

Closing Arguments TCDLA 2023

Nov. 2, 2023

1. V/D QUESTION: HOW IMPORTANT IS IT TO YOU AS A JUROR THAT THE GOVERNMENT PROVE TO YOU THE MACHINE IS RELIABLE? 2. V/D QUESTION: WOULD YOU SIMPLY ACCEPT THE NUMBER ON A PIECE OF PAPER THE GOVERNMENT GAVE YOU OR WOULD YOU REQUIRE SOME PROOF AS TO HOW IT GOT THERE? d. THINK LIKE A JUROR – INSIGHTS FROM THE FOCUS GROUP i. BE CONSISTENT – OPENING AND CLOSING BETTER MATCH, OR YOU NEED TO ADDRESS IT ii. THEME V. TESTIMONY – IF YOU ARE GOING TO USE A THEME, IT NEEDS TO MATCH THE TESTIMONY. 1. EX: “NO, NO, NO.” 2. EX: “IT’S NOT RIGHT, WHAT YOU ARE DOING.” iii. DON’T WASTE TIME TALKING ABOUT TESTIMONY THAT WAS A WASTE OF TIME. iv. IF YOU WERE GOING TO CONVICT, WHAT DO YOU WANT TO SEE? 1. A DRUNK GUY a. WITH FEW EXCEPTIONS, IF THE STATE CAN’T SHOW THIS, THEY DON’T CARE ABOUT THE NUMBER. b. THEY WILL BE REALLY SURPRISED IF THERE IS NO VIDEO. 2. WHO DROVE A VEHICLE 3. A PROHIBITED BAC a. THEY DON’T UNDERSTAND THE NUMBER AND WILL TAKE IT AS IT IS WRITTEN b. THUS IT IS UP TO YOU TO ANSWER THE ONE QUESTION: HOW CAN THE NUMBER BE WRONG 4. A THOROUGH INVESTIGATION a. BUT IT IS UP TO YOU TO SHOW HOW THE INVESTIGATION IS SHODDY b. WHAT THE OFFICER COULD HAVE DONE, BUT DID NOT DO v. IF YOU WERE GOING TO ACQUIT, WHAT DO YOU WANT TO SEE? 1. AN EXPLANATION FOR THE BAD FACTS 2. CANNOT RELY ON PRESUMPTION OF INNOCENCE ALONE a. YOU DO SO AT YOUR PERIL 3. DON’T BE NITPICKY (APPLIES TO THE POLICE, TOO)

-3Copyright © Michelle L. Behan, The Behan Law Group All Rights Reserved – Use With Permission Only

Michelle L. Behan

V.

Closing Arguments TCDLA 2023

Nov. 2, 2023

a. MINOR MISTAKES ARE NOT GOING TO MAKE A DIFFERENCE. b. BUT THEY HATE WHEN THE POLICE DO IT TOO. JUROR BIAS AND DECISION-MAKING FALLACIES a. TEN TYPES OF BIASES AND EFFECTS ON JURORS i. AFFINITY OR SIMILARITY BIAS: MAKING DECISIONS THAT REFLECT OUR TENDENCY TO LIKE PEOPLE WHO ARE LIKE US ii. CONFIRMATION BIAS: DISTORTING THE EVIDENCE TO MATCH AN OUTCOME THAT REFLECTS THEIR PERSONAL PERSPECTIVE iii. ANCHORING BIAS: MAKING A DECISION BASED ON AN INITIAL PIECE OF EVIDENCE (THE “ANCHOR”) iv. AVAILABILITY BIAS: ALSO KNOWN AS RETRIEVABILITY BIAS, MAKING A DECISION BASED ON THE MOST READILY AVAILABLE INFORMATION v. HINDSIGHT BIAS: “I KNEW IT ALL ALONG.” vi. OVERCONFIDENCE BIAS: MAKING DECISIONS BASED ON THE BELIEF THAT THE INDIVIDUAL’S EXPERIENCE MATTERS MORE THAN OTHERS. vii. SUNK COST BIAS: MAKING DECISIONS TO JUSTIFY PAST OPINIONS EVEN IF THOSE OPINIONS NO LONGER SEEM VALID viii. SNOWBALL EFFECT: ANY OF THESE BIASES CAN BECOME ENHANCED THROUGH ISSUES IN PERCEPTION, MEMORY, OR RATIONALIZATION ix. BANDWAGON EFFECT: GOING ALONG WITH THE CROWD x. HAWTHORNE EFFECT: DOING THINGS DIFFERENTLY BECAUSE SOMEONE IS WATCHING YOU DO IT xi. HORNS OR HALOS EFFECT: HAVING A NEGATIVE OR POSITIVE IMPRESSION OF SOMEONE BASED ON A PARTICULAR CHARACTER TRAIT b. DECISION MAKING FALLACIES i. A LOGICAL FALLACY IS AN INCORRECT ARGUMENT THAT CONTAINS A FATAL FLAW WHICH UNDERMINES ITS SOUNDNESS AND POTENTIALLY LEADS TO AN ERRONEOUS CONCLUSION ii. HASTY GENERALIZATION: NEGLECTING TO PERFORM DUE DILIGENCE BEFORE MAKING A DECISION iii. AD HOMINEM: IGNORING THE ARGUMENT AND ATTACKING THE SPEAKER

-4Copyright © Michelle L. Behan, The Behan Law Group All Rights Reserved – Use With Permission Only

Michelle L. Behan

Closing Arguments TCDLA 2023

Nov. 2, 2023

iv. APPEAL TO AUTHORITY: MAKING DECISIONS BASED ON

VI.

ARGUMENT FROM GOVERNMENT OR OTHER AUTHORITY v. RED HERRING: AN IRRELEVANT PIECE OF INFORMATION USED TO DEFLECT ATTENTION FROM THE ARGUMENT vi. POST HOC ERGO PROPTER HOC: LATIN FOR “AFTER IT, THEREFORE BECAUSE OF IT.” RARELY TRUE. THE STANDARD OF PROOF STAIRCASE AND OTHER ESSENTIALS a. POWERFUL – PROVIDES THE JURY WITH A LAYMAN’S EXPLANATION FOR PROOF BRD. b. “THE STAIRCASE OF THE IMPOSSIBLE BURDEN” i. HOW MUCH REASONABLE DOUBT IS THE JURY ALLOWED TO HAVE? c. “YOU CANNOT CONVICT WHEN…” i. THE MAIN POLICE OFFICER FOR THE STATE…. ii. THE MAIN CRIME LAB WITNESS FOR THE STATE… iii. THE STATE TRIED TO HIDE OR MANIPULATE EVIDENCE…. iv. THE STATE DID NOT GIVE YOU WHAT YOU ASKED FOR… d. WHY VOTE NOT GUILTY? i. GOVERNMENT’S EVIDENCE FALLS SHORT ii. UNANSWERED QUESTIONS iii. WRONGFUL CONVICTION IN HERE IS AN INJUSTICE EVERYWHERE

-5Copyright © Michelle L. Behan, The Behan Law Group All Rights Reserved – Use With Permission Only

Texas Criminal Defense Lawyers Association

19th Annual Stuart Kinard Advanced DWI November 2-3, 2023 The Menger Hotel San Antonio, Texas

Using the ALR Hearing to Prepare to Cross the Arresting Officer

Speaker:

Adam Kobs

Law Office of Adam Kobs 310 S Saint Mary’s St., Ste 1920 San Antonio, TX 78205-3154 210.223.4177 phone 210.223.4188 fax akobs@hotmail.com email www.adamkobslaw.com website

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

ADAM KOBS, J.D. ATTORNEY AT LAW 310 SOUTH ST. MARY’S STREET, SUITE 1920 SAN ANTONIO, TEXAS 78205 210.223.4177  FAX 210.223.4188 DATE: 11.1.23 PLEASE DELIVER TO: DPS DIC ALR FAX NO.: 512.424.2650 PHONE NO.: TOTAL PAGES BEING SENT INCLUDING COVER SHEET: 2 FROM: ADAM KOBS RE: John Doe’s request for ALR hearing, DOB 1.23.1945, TXDL 12345678 MESSAGE:

CONFIDENTIALITY NOTICE The information contained in this facsimile message is legally privileged and confidential information intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, they are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us by telephone and return the original message to us at the above address through the United States Postal Service.

Texas Department of Public Safety Driver Improvement and Control P.O. Box 4040 Austin, TX. 78765-4040 November 1, 2023 Fax 512.424.2650 RE:

D.P.S. v.

D.O.B.: DL: Address: DOA: Arresting Agency: Test:

Jane Doe 01.23.1945 12345678 123 Anywhere, San Antonio, TX. 78201; (M) 210.123.4567 11.01.23, Bexar County San Antonio Police Department Refusal

Greetings: The above listed person is requesting an in person hearing to contest the suspension, cancellation or revocation of their license.

Should you have any questions please feel free to call me at 210.223.4177 Sincerely:

Adam Kobs

ADAM KOBS, J.D. ATTORNEY AT LAW 310 SOUTH ST. MARY’S STREET, SUITE 1920 SAN ANTONIO, TEXAS 78205 210.223.4177  FAX 210.223.4188 DATE: 11.1.23 PLEASE DELIVER TO: DPS Director of Hearings, ALR Program FAX NO.: 512.424.7171 PHONE NO.: TOTAL PAGES BEING SENT INCLUDING COVER SHEET: 8 FROM: Adam Kobs RE: John Doe’s Request for Production, 405-23-01234 MESSAGE:

CONFIDENTIALITY NOTICE The information contained in this facsimile message is legally privileged and confidential information intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, they are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us by telephone and return the original message to us at the above address through the United States Postal Service.

November 1, 2023 Texas Department of Public Safety Director of Hearings-ALR Program P.O. Box 15327 Austin, TX. 78761-5327 FAX TRANSMISSION # 512.424.7171 Re:

D.P.S. v. John Doe; DL 12345678; Case #405-23-01234

Dear Director of Hearings--ALR Program Enclosed is Defendant’s First Request for Production of Documents. Please notify me of any copying charges.

Should you have any questions please feel free to contact me.

Sincerely:

Adam Kobs CC:

SOAH Attn: Case # 405-23-01234

Docket No. 405-23-01234 DEPARTMENT OF PUBLIC SAFETY Petitioner v.

JOHN DOE Defendant

§ § § § § § §

THE STATE OFFICE OF ADMINISTRATIVE HEARINGS SAN ANTONIO DIVISION

DEFENDANT’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS To:

Director of Hearings-ALR Program, P.O. Box 15327, Austin, Texas 78761-5327.

COMES NOW the Defendant, in the above styled and numbered cause, pursuant to 1 T.A.C. §159.13, Government Code §§2001.091-2001.093, and the Texas Rules of Civil Procedure, Rules 166b and 167, and hereby requests that the Defendant be allowed to review, inspect and obtain copies of the documents listed in Exhibit A, which are in the possession, custody and control of Petitioner.

Petitioner seeks to suspend, cancel or revoke the Defendant’s driver’s license.

The documents requested concern information relevant to this license suspension proceeding.

Respectfully submitted: _______________________ Adam Kobs 310 S. St. Mary’s, Suite 1920 San Antonio, TX. 78205 Telephone 210.223.4177 Telecopier 210.223.4188 State Bar Number 24000991 Attorney for Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been delivered to the Director of Hearings-ALR Program, Texas D.P.S., P.O. Box 15327, Austin, Texas 78761-5327, Facsimile 512.424.7171, on this the 1st day of November, 2023. _______________________ Adam Kobs

EXHIBIT "A" Instructions As used herein, the terms "document" or "documents" are defined to include any and all papers, books, accounts, drawings, graphs, charts, photographs, records, computer generated and/or stored information, electronic or videotaped recordings, and any other data compilation from which information can be obtained and, if necessary, translated by Petitioner into a reasonably usable form, to the full extent allowed by Chapter 2001 of the Government Code, the Texas Rules of Civil Procedure, and 1 T.A.C. Chapter 159.

In producing documents pursuant to this request, Petitioner shall produce them as they are kept in the usual course of business so that, whenever possible, the Defendant can ascertain who maintains the documents and where the documents may be located. In addition, Petitioner shall organize and label the documents to correspond with the number of the request under the "Documents to be Produced" section.

If any document requested has been previously produced, that fact should be so indicated, and the document described.

Any document responsive to this request that nonetheless is not produced by reason of a claim of privilege, work product, or for any other reason shall be identified by (1) date of document; (2) recipients of document; (3) general subject matter of document; (4) identity of persons to whom the contents of the document have already been revealed; (5) the identity of the persons or entity now in possession or control of the document or copies thereof, and (6) the legal basis for withholding the document.

If any document responsive to this request was, but no longer is in Petitioner's possession, or was but no longer is in existence, state whether it: (1) is missing or lost; (2) has been destroyed; (3) has been transferred voluntarily or involuntarily to others; (4) has been otherwise disposed of, and (5) the manner of disposal. In each instance, explain the circumstances surrounding the authorization of such disposition and state the date or approximate date thereof.

Petitioner is required to produce documents or tangible things that are within Petitioner's possession, custody, or control. Possession, custody or control includes constructive possession such that the person need not have actual physical possession.

As long as Petitioner has a superior right to compel the production from a third party (including an agency, authority or representative), the person has possession, custody or control.

Definitions In connection with this Request for Production of Documents, the defined terms shall bear the meanings set out below, unless the context in which they appear requires otherwise.

1.

The terms "document" or "documents" mean writing of every kind, audio or video tapes or tape recordings or other forms of mechanical recordings not reduced to writing, microfilm, photographs, computerized data compilation and every other manner of preserving information, in your actual or constructive possession, custody, or control wherever located. The terms include copies of writings if the originals are unavailable, drafts of originals, copies bearing notations or containing information in addition to that contained on the originals, and all attachments, appendices or exhibits to originals, drafts and non-identical copies.

2.

"And" as well as "or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of this Request documents that might otherwise be constructed to be outside its scope; and, as used herein, the singular shall include the plural and the plural shall include the singular, except as the context may otherwise require.

3.

If any objection is made on the grounds of privilege or work product doctrine, for each objection state the following: a. b. c.

A description of the allegedly privileged or protected document; the exact privilege or protection being claimed; and all facts relied upon to support the claim or privilege or protection.

Documents to be Produced

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

All notices of suspension served personally on the Defendant.

All documents showing the date on which the arresting officer served notice of suspension personally on the Defendant.

All documents showing that the arresting officer attempted to serve notice of suspension personally on the Defendant but was unable to do so.

All notices of suspension mailed to the Defendant.

All documents showing that Petitioner mailed any notice of suspension to the Defendant by certified mail.

All documents showing if and when the Defendant received any notice of suspension mailed by the Petitioner.

All documents, other than notices of suspension, that Petitioner mailed to the Defendant in connection with this license suspension proceeding.

All receipts (green cards) for documents that Petitioner mailed to the Defendant by certified mail, return receipt requested.

All DIC-24 forms, "Police Officer DWI Statutory Warning," that were read to the Defendant.

Copies of all DIC-24 forms, "Police Officer DWI Statutory Warning," that were given to the Defendant.

All documents relating to whether the "Police Officer DWI Statutory Warning" was given to the Defendant orally and in writing before the Defendant was requested to provide a specimen of breath or blood.

All documents showing the date on which the arresting officer first sent Petitioner the arresting officer's ALR report, including but not limited to the following: (a) for reports sent by mail the postmarked envelope in which the arresting officer mailed the ALR report to Petitioner; and (b) for reports sent by facsimile, the facsimile transmission cover sheet and any pages on which the date of transmission is printed.

All documents showing the date on which Petitioner received the arresting officer's ALR report.

All documents showing the date on which the arresting officer sent Petitioner any supplemental ALR report or any part thereof, including but not limited to the following: (a) for reports sent by mail, the postmarked envelope in which the arresting officer mailed the ALR report to Petitioner; and (b) for reports sent by facsimile, the facsimile transmission cover sheet and any pages on which the date of transmission is printed.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

All documents showing the date on which Petitioner received any supplemental ALR report or any part thereof.

Any notice of suspension and any arresting officer sent to Petitioner before the end of the fifth business day after the date of arrest.

Any notice of suspension and any ALR report that the arresting officer sent to Petitioner after the end of the fifth business day after the arrest.

All documents in which Petitioner addresses law enforcement officers or others concerning the manner of preparing ALR reports.

All documents in which Petitioner addresses law enforcement others concerning the manner of sending ALR reports to Petitioner.

All documents in which Petitioner addresses law enforcement officers or others concerning the manner of documenting the date on which ALR reports are sent.

If the officer detained or arrested the Defendant pursuant to a warrant, the warrant and the supporting affidavit.

All documents identifying the Defendant as the arrested person.

Any audio or video recording made in connection with the Defendant's arrest or during the investigation of the Defendant.

All DIC-23 ALR forms, "Probable Cause Affidavit," that Petitioner received concerning the Defendant.

All documents that were included with, attached to, or incorporated into any DIC- 23 ALR form, "Probable Cause Affidavit," that Petitioner received concerning the Defendant.

Any incident report, offense report, or accident report prepared in connection with the Defendant's arrest.

All documents that contain information concerning the Defendant's performance on field sobriety tests.

All documents concerning whether reasonable suspicion existed to stop the Defendant, whether probable cause existed to arrest the Defendant, and whether the Defendant had an alcohol concentration of 0.08 or greater while driving or in actual physical control of a motor vehicle in a public place.

All documents containing statements by the arresting officer or by any other law enforcement officer concerning whether the Defendant committed an offense under Chapter 49 of the Texas Penal Code.

All documents giving an analysis of any breath or blood specimen provided by the Defendant.

A copy of the criminal complaint filed in the case.

Any affidavit or statement prepared for this license suspension proceeding by the arresting officer, the breath test technical supervisor, the breath test operator, or any other law enforcement officer.

All documents containing the identity of any potential witness, including but not limited to the identities of the arresting officer, the breath test operator, the breath test technical supervisor, any "civilian rider," and any other person, whether or not a law enforcement officer, who was present during the investigation, arrest or breath and/or blood testing of the Defendant.

All documents containing the home address, home telephone number, work address, work telephone number, or pager number for the arresting officer, the breath test operator, the breath test technical supervisor, or any other law enforcement officer or other person, including any "civilian rider," who was present during the investigation, arrest, or breath and/or blood testing of the Defendant.

35.

36.

37.

38.

39.

40.

41.

42.

43.

44.

45.

46.

47.

The Defendant's driving record for at least the 10 year period immediately preceding the date of the Defendant's arrest, All documents that Petitioner may introduce to show any prior conviction or alcohol related or drug related enforcement contact for the purpose of. (a) increasing the period of license suspension; or (b) showing ineligibility for a stay pending appeal.

For any breath test instrument used to test a specimen of the Defendant, and for the 30 days before and after any such tests, all documents showing any maintenance or repairs performed on the instrument. These documents shall include, but are not limited to, any document showing the date and time of any maintenance or repair, the reason the maintenance or repair was required, the precise nature of the maintenance or repair, and the name and qualifications of the individual performing the maintenance or repair.

For any breath test instrument used to test a specimen of the Defendant, and for the 30 days before and after any such tests, all documents showing any tests performed during this period that did not produce a result considered valid.

These documents shall and are not limited to, any document showing the date and time of the test, the name of the operator, and any recorded notations concerning the test.

For any breath test instrument used to test a specimen of the Defendant, and for the 30 days before and after any such tests, all documents showing breath tests performed during this period that produced a result considered valid.

These documents shall include, but are not limited to, any document showing the date and time of the test, the name of the operator, and any recorded notations concerning the test.

For any breath test instrument used to test a specimen of the Defendant, and for the 30 days before and after any such tests, all documents showing any operator errors recorded by this instrument. These documents shall include, but are not limited to, any document showing the date and time of the test, the name of the operator, the nature of the error, and any recorded notations concerning the test.

For any breath test instrument used to test a specimen of the Defendant, and for the 30 days before and after any such tests, all handwritten records relating to breath testing of that particular breath test instrument.

All documents by the Scientific Director that approve an alternative method for establishing the quantity of breath analyzed, other than the method or methods approved by 37 T.A.C. § 19.1 (b) (1).

The current list of approved breath testing instruments certified by brand and/or model for use in Texas by Petitioner's Office of the Scientific Director, Alcohol Testing Program (hereinafter referred to as "Scientific Director").

All documents showing that the breath test instrument used to test the Defendant was a certified instrument when the Defendant was tested.

The Scientific Director's current list of approved reference sample devices by type, brand, and/or model for use in Texas.

All documents showing that the reference sample device used with the breath test instrument that tested the Defendant was approved for use by the Scientific Director.

All documents showing that the Scientific Director issued certification, to the breath alcohol testing program of the law enforcement agency that tested the Defendant and that the agency's program was certified when the Defendant was tested.

48.

49.

50.

51.

52.

53.

54.

55.

56.

57.

58.

All documents showing that the Scientific Director or a designated representative made an on-site inspection before approving the application of and issuing certification to any agency or laboratory that administered a breath test to the Defendant.

All documents showing that the Scientific Director issued certification to the breath test operator who tested the Defendant and that the operator was certified when the Defendant was tested.

For any breath test operator who tested the Defendant, all documents relating to any denial of operator-certification renewal.

For any breath test operator who tested the Defendant, all documents relating to the dates and results of any operator-proficiency test.

All documents showing that the Scientific Director issued certification to the breath test technical supervisor who is responsible for maintaining the instrument on which Defendant was tested and that the technical supervisor was certified when the Defendant was tested.

For the technical supervisor who is responsible for maintaining the instrument on which Defendant was tested, all documents showing that the technical supervisor possesses a baccalaureate degree from an accredited college or university with: (a) a major in chemistry; (b) a major in another scientific field with successful completion of the equivalent of a minimum of 18 semester hours of chemistry; or (c) a major in another scientific field with alternative qualifications as determined by the Scientific Director, with documentation showing that the Scientific Director approved the alternative qualifications, Concerning areas in which 37 T.A.C. §§ 19.1, 19.2, and 19.3 give the Scientific Director discretion to modify or supplement those regulations, all documents modifying or supplementing those regulations.

The form Petitioner currently uses for certifying documents to be introduced into evidence at hearings.

Any other documents, not covered by the above requests, Petitioner may offer into evidence at the hearing.

A list of Petitioner’s witnesses who will testify in person at the hearing.

A list of Petitioner’s witnesses who will testify by affidavit at the hearing.

CAUSE NO. 405-23-01234 TEXAS DEPARTMENT OF PUBLIC SAFETY, v.

JOHN DOE

§ § § § § § §

IN AND BEFORE THE STATE OFFICE OF ADMIN. HEARINGS

DEFENDANT’S REQUEST TO SUBSTITUTE AS COUNSEL COMES NOW Adam Kobs, and files this Request to Substitute as Counsel for Mr. Doe and in support of said request respectfully shows: 1) A live hearing is set for the 1st of October, 2023, at 1:00 p.m.

2) Mr. Lawyer is currently listed as attorney of record. Mr. Lawyer has in the past on numerous occasions retained me for his client’s ALR hearings. He has retained me for Mr. Doe’s hearing. Mr. Lawyer has no objection to me substituting in as Mr. Doe’s attorney of record.

3) Defense counsel requests that he be allowed to substitute as attorney.

Respectfully Submitted: __________________________ Adam Kobs 310 South St. Mary’s, Suite 1920 San Antonio, TX. 78205 210.223.4177 Telephone 210.223.4188 Facsimile CERTIFICATE OF SERVICE A true and correct copy of the foregoing document has been electronically filed and sent to an Attorney for D.P.S., on this the 1st day of November, 2023. _____________________ Adam Kobs

CAUSE NO. 405-23-01234 TEXAS DEPARTMENT OF PUBLIC SAFETY, v.

JOHN DOE

§ § § § § § §

IN AND BEFORE THE STATE OFFICE OF ADMIN. HEARINGS

DEFENDANT’S REQUEST FOR CHANGE OF VENUE COMES NOW JOHN DOE, and files this their Request for Change of Venue and in support of said request respectfully shows: 1) A telephonic hearing is set for the 24th of November, 2023, at 11:00 a.m.

2) Defendant’s counsel is requesting this matter be changed to a live San Antonio venue.

Defendant requests this Honorable Court to reset the hearing to a date of either December 14, 2019 at 9:00am or 1:00pm or December 21, 2019, at 1:00pm.

Respectfully Submitted: __________________________ Adam Kobs 310 South St. Mary’s, Suite 1920 San Antonio, TX. 78205 210.223.4177 Telephone 210.223.4188 Facsimile CERTIFICATE OF SERVICE A true and correct copy of the foregoing document has been electronically filed and sent to an Attorney for D.P.S., on this the 1st day of November, 2023. _____________________ Adam Kobs

CAUSE NO. 405-23-01234 TEXAS DEPARTMENT OF PUBLIC SAFETY, v.

JOHN DOE

§ § § § § § §

IN AND BEFORE THE STATE OFFICE OF ADMIN. HEARINGS

DEFENDANT’S FIRST REQUEST FOR CONTINUANCE COMES NOW JOHN DOE, and files this their First Request for Continuance and in support of said request respectfully shows: 1) A live hearing is set for the 24th of November, 2023 at 1:00 p.m.

2) Defendant’s counsel has been informed by his process server, that he has been unable to serve the subpoena officer despite several attempts. Defense counsel informed DPS counsel Jane Doe of his intention to move for a continuance.

3) Defense counsel requests this continuance not for delay but to allow adequate time to prepare.

Defendant requests this Honorable Court to reset the hearing to either November 28th at 1:00pm, December 5th at 9:00am or December 12th at 1:00pm.

Respectfully Submitted: __________________________ Adam Kobs 310 South St. Mary’s, Suite 1920 San Antonio, TX. 78205 210.223.4177 Telephone 210.223.4188 Facsimile CERTIFICATE OF SERVICE A true and correct copy of the foregoing document has been electronically filed to an Attorney for D.P.S., on this the 1st day of October, 2023. _____________________ Adam Kobs

STATE OFFICE OF ADMINISTRATIVE HEARINGS

TEXAS DEPARTMENT OF PUBLIC SAFETY VS. JANE DOE

§ § § §

SUBPOENA

§

DOCKET NO. 405-23-01234

THE STATE OF TEXAS TO:

Any Sheriff; Constable; or Person not less than 18 years old and not a Party:

YOU ARE COMMANDED to serve this Subpoena forthwith by delivery to the following person: Witness: San Antonio Police Officer John Doe #1234 Address: 315 South Santa Rosa Ave., San Antonio, Texas 78207 GREETINGS, YOU ARE COMMANDED to appear to testify in the above-named proceeding at the following place and time: DO NOT APPEAR IN PERSON AS YOU WILL BE APPEARING VIA ZOOM! INSTRUCTIONS ATTACHED! PLEASE READ! Address:

State Office of Administrative Hearings 10010 San Pedro, Suite 365 San Antonio, Texas 78216

Date and Time: November 1, 2023, at 1:00pm YOU ARE COMMANDED TO BRING with you the following document(s) and object(s) related to Defendant’s arrest if they are in your actual possession: □ None □ DIC 23 □ Video or Digital Recording

□ DIC 24 □ Offense Report □ Any other report you prepared

□ Probable Cause Affidavit

If you have any questions regarding this subpoena, please call the nearest office of the Department of Public Safety at: Austin 512.424.5193, Garland 972.203.6254, Tyler 903.939.6016, Waco 254.759.7172, Houston 713.219.4170, San Antonio 210.804.5700, Corpus Christi 361.698.5522, Bryan 979.776.3148, Forth Worth 817.882.8263, McAllen 956.984.5715, Lubbock 806.472.2819, Midland 432.498.2195, Amarillo 806.468.1419, El Paso 915.834.7628 Subpoena issued on the request of: JANE DOE

Adam Kobs, Attorney at Law 310 South St. Mary’s Street, Suite 1920 San Antonio, Texas 78205, (210)223.4177

This subpoena shall remain in effect until you are relieved by the Administrative Law Judge. Witness fees will be paid to you upon your appearance. _________________ Date:

_________________________________ Attorney at Law

RETURN TO THE STATE OFFICE OF ADMINISTRATIVE HEARINGS Defendant Name: JANE DOE Date of Hearing: November 1, 2023, at 1:00pm

SOAH Docket No.: 405-23-01234

CERTIFICATE OF SERVICE I received this subpoena for service on_______________________ at __________ (a.m.)(p.m.)

I executed this subpoena by delivering a copy to_______________________ in person at ________________________ on ________________________ at _______ (a.m.)(p.m.)

Any and all fees and costs incurred for service of this subpoena were submitted to the requesting Party for payment.

I declare the foregoing is true and correct.

Date:______________________________ Signed:____________________________

Name: __________________________ Address:________________________________________

Copies to:

(1) Texas Department of Public Safety (2) Defendant or Attorney

ACCEPTANCE OF SERVICE I acknowledge that I received and accepted service of this Subpoena at______________________ ________________ on ___________________ at __________ (a.m.)(p.m.). I further understand my legal obligation to appear at the said hearing. ______________________ Date

__________________________ Witness

Texas Criminal Defense Lawyers Association

19th Annual Stuart Kinard Advanced DWI November 2-3, 2023 The Menger Hotel San Antonio, Texas

Using the Defense Expert to Undo the SFSTs Speaker:

Lisa Martin

Texas DWI Expert 5909 Santa Fe Dr Arlington, TX 76017 940.390.5913 phone lisamartin@texasdwiexpert.com email www.texasdwiexpert.com website

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

Horizontal Gaze Nystagmus (HGN)

1. Instructions a. Look at the tip of my stimulus (position: 12”-15” from face and slightly above eye level) b. Follow it with your eyes only c. Do not move your head d. Do you understand?

2. Begin by checking the subject’s eyes for resting nystagmus equal tracking and pupil size a. Remember this is not a clue. It just determines the person is a candidate for the HGN. b. Do 2 passes c. Always start with the subject’s left eye 3. Check for lack of smooth pursuit: Clue One a. 2 passes, starting with the subject’s left eye b. Make sure you are moving your stimulus smoothly c. 2 possible clues can be observed 4. Check for distinct and sustained nystagmus at maximum deviation: Clue Two a. 2 passes, again starting with the subjects left eye b. Make sure to hold the stimulus for AT LEAST 4 seconds at maximum deviation c. Maximum deviation is when there is no more white showing in the corner of the eye d. 2 possible clues can be observed 5. Check for onset of nystagmus prior to 45 degrees: Clue Three a. 2 passes, again start with the subjects left eye b. Make sure you are moving the stimulus slowly so you can observe when the onset happens c. When onset is first observed, STOP the stimulus and look at the nystagmus. d. Proceed back across the face to check the other eye e. There will still be white showing in the corner of the subject’s eye if you are observing onset PRIOR to 45 degrees 6. Check for vertical gaze nystagmus (VGN): A non-standardized FST a. Move stimulus up from the nose to the maximum height the subject can follow b. Do 2 passes c. This is not part of the HGN. Its only purpose is to say if it was observed. If it was that means the person has a high concentration for THAT person.

A total of 6 clues are possible on the HGN, the decision point is 4 2 clues if you observe lack of smooth pursuit 2 clues if you observe distinct and sustained nystagmus at maximum deviation 2 clues if you observe onset of nystagmus prior to 45 degrees

One Leg Stand: A divided attention test There are 2 stages: 1. The instructions stage a. Please stand with your feet together and your arms at your sides b. Do not start until I tell you to do so c. Do you understand?

2. The balancing and counting stage a. When I tell you to start raise one leg, either leg, approximately 6 inches off the ground.

Keep your raised foot parallel to the ground b. Keep both legs straight and your arms at your sides c. In that position count out loud one thousand one, one thousand two, one thousand three until I tell you to stop d. Keep your arms at your sides at all times and keep your eye on your elevated foot e. Do you understand?

The test goes for 30 seconds which must be timed REMEMBER THE OFFICER MUST DEMONSTRATE THE EVALUATION Standardized clues: 1. Sways while balancing a. Side to side or front to back 2. Uses arms for balance a. Must raise arms more than 6 inches from their sides 3. Hopping 4. Puts foot down

Note: If suspect can’t do the test, record the observed clues and document the reason for not completing the test

4 possible clues, decision point is 2

Website: TexasDWIexpert.com Email: LisaMartin@texasdwiexpert.com Phone: 940-390-5913

Walk and Turn: A divided attention test

There are 2 stages: 1. The instructions stage: a. Stand with your right foot in front of your left foot touching heel to toe b. Keep your arms at your sides c. Stay in that position until I finish the instructions d. Do you understand?

2. The walking stage: a. When I tell you to start, you will need to take 9 heel to toe steps straight down the line b. Once you get to nine, leave your front foot planted and turn around taking a series of small steps c. Return 9 steps d. While you are walking remember to keep your arms at your sides, watch your feet and count your steps out loud e. Once you start walking, do not stop until you have completed the test f. Do you understand?

REMEMBER: THE OFFICER MUST DEMONSTRATE THE EVALUATION

Standardized clues: 1. Cannot keep balance while listening to instructions a. Feet must break apart 2. Starts before instructions are finished 3. Stops while walking 4. Does not touch heel to toe a. Must be more than ½ inch 5. Steps off the line 6. Uses arms for balance a. Arms must be raised more than 6 inches from their sides 7. Improper turn a. Suspect spins or pivots 8. Incorrect number of steps 8 possible clues decision point is 2

NOTE: If the suspect can’t do the test record the observed clues and document the reason for not completing the test.

Texas Criminal Defense Lawyers Association

19th Annual Stuart Kinard Advanced DWI November 2-3, 2023 The Menger Hotel San Antonio, Texas

Blood Search Warrant Affidavits and Oaths: Avoiding Ineffectiveness!

Speaker:

J. Gary Trichter

Trichter, Le Grand, Houlton & White, P.C. 420 Heights Blvd.

Houston, TX 77007 713.524.1010 phone 713.524.7080 fax gary@texasdwilaw.com email www.texasdwilaw.com website

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

BLOOD SEARCH WARRANT AFFIDAVITS & OATHS: AVOIDING INEFFECTIVENESS!

By J. Gary Trichter

STATE V. MARK HODGES, 595 S.W.3D 303 (2020)

Texas Code of Criminal Procedure 18.01 b (b) No search warrant shall issue for any purpose in this state

unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance. A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested.

in Clay v. State, 391 S.W.3d 94 (Tex. Crim.

App. 2013), “before a written statement in support of a search warrant will constitute a ‘sworn affidavit,’

the necessary oath must be administered ‘before’ a magistrate or other qualified officer.” Id. at 99. Such has been true “for the better part of a hundred years.” Id.

Implicit in the words “must be administered” is the requirement that someone administer an oath before the writing becomes a valid “sworn affidavit.”

MOTION TO SUPPRESS ALL DERIVATIVE BLOOD SEARCH WARRANT EVIDENCE BECAUSE OF A DEFECTIVE AFFIANT OATH

Simply providing a statement that says sworn and subscribed to is not administering an oath/ simply signing it is not an oath

Simply having the judge point out where you sign, and you sign, is not administering an oath or taking one

Simply calling judge that you are e-mailing an affidavit is not taking an oath. Even where the affidavit says subscribed and sworn to.

Vaughn v. State, 146 Tex. Crim. 586, 177 S.W.2d 59 (1943)

What is an acceptable oath:

1. Any form of attestation signifying the

affiant is bound in conscience to perform an act faithfully and truthfully.

Vaughn v. State, 146 Tex. Crim. 586, 177 S.W.2d 59 (1943)

What is an acceptable oath:

2. That the words comprising the alleged oath suffice if a charge of perjury might be predicated on them if false statements appeared in the affidavit.

Vaughn v. State, 146 Tex. Crim. 586, 177 S.W.2d 59 (1943)

What is an acceptable oath:

3. The administering authority orally asks the affiant about the oath, for example, if the facts set forth in the affidavit were true and the witness replied the facts were true, and also that the witness understood he was actually taking an oath at that time.

MOTION TO SUPPRESS EVIDENCE FROM A SEARCH WARRANT BASED UPON AN AFFIDAVIT FOR SEARCH WARRANT WHICH IS DEFICIENT OF PROBABLE CAUSE, BASED ON FALSE FACTS AND ON STATEMENTS THAT WERE MADE IN A RECKLESS DISREGARD FOR THE TRUTH

Blood Search Warrant Affidavit

Not a Refusal – Not even close

DISCOVRY RULE: LEAVE NO ROCK UNTURNED

MOTION TO SUPPRESS STATUTORY WARNING REFUSAL BECAUSE OF DUE PROCESS/DUE COURSE OF LAW VIOLATIONS BY THE REQUESTING OFFICER AND TO SUPPRESS ALL BLOOD EVIDENCE BECAUSE OF A VIOLATION OF §18.01(J)(2), TEX. CODE CRIM. PRO.

Tex. Code Crim. Pro. Art. 18.01(J)(2)

JAMAIL V. STATE, 731 S.W.2D 708 ST (TEX.APP.-HOUSTON [1 DIST.] 1987)

Sec. 724.015: Information Provided By Officer Before Requesting Specimen; Statement of Consent

(a)Before requesting a person to submit to the taking of a specimen, the officer shall inform the person orally and in writing that:

Appellant also asserts that, under what the appellant calls the Commingled [sic] Miranda Doctrine or the Confusion Doctrine, appellant was misled or confused by the police officer's Miranda warning, which is not applicable to a breath test request.

In McCambridge II, the Court of Criminal Appeals noted that its holding did not imply “that a remedy will never be available to a suspect who is confused when faced with Miranda warnings and a breath testing decision without the benefit of requested counsel.” 712 S.W.2d at 507, n. 18.

However, no testimony was presented at the suppression hearing that appellant was confused or misled by the police officers.

Jessup v. State, 935 S.W.2d 508 (Tex.App.-Houston [14th Dist.] 1996) Rowland v. State, 983 S.W.2d 58 (Tex.App.-Houston [1st Dist.] 1998)

MOTION TO SUPPRESS STATUTORY WARNING REFUSAL BECAUSE OF DUE PROCESS/DUE COURSE OF LAW VIOLATIONS BY THE REQUESTING OFFICER

I.

FINDINGS OF FACT

II. CONCLUSIONS OF LAW

III. ORDER

Video Example of post statutory warning consent, Miranda, and Refusal

MOTION TO SUPPRESS SPECIMAN TEST REFUSAL EVIDENCE FOR VIOLATION OF SECTION 724.015, TEX.TRANS.CODE

Texas Code of Criminal Procedure Article 38.23 - Evidence Not to Be Used Art. 38.23. EVIDENCE NOT TO BE USED. (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

MOTION TO SUPPRESS IMPLIED CONSENT REFUSAL BECAUSE IT WAS TIMELY RETRACTED AND CONSENT WAS GIVEN FOR TESTING

THE CONFLICT 18.01(j)(2) v.

18.02(a)(10)

Art. 18.01. SEARCH WARRANT. (j) Any magistrate who is an attorney licensed by this state may issue a search warrant under Article 18.02(a)(10) to collect a blood specimen from a person who: (2) refuses to submit to a breath or blood alcohol test.

Art. 18.02. GROUNDS FOR ISSUANCE.

a) A search warrant may be issued to search for and seize: (10) property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense;

Sec. 311.026. SPECIAL OR LOCAL PROVISION PREVAILS OVER GENERAL. (a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both. (b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment, and the manifest intent is that the general provision prevail.

Acts 1985, 69th Leg., ch. 479, Sec. 1, eff. Sept. 1, 1985.

Sec. 311.025. IRRECONCILABLE STATUTES AND AMENDMENTS. (a) Except as provided by Section 311.031(d), if statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of enactment prevails. (b) Except as provided by Section 311.031(d), if amendments to the same statute are enacted at the same session of the legislature, one amendment without reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each. If the amendments are irreconcilable, the latest in date of enactment prevails. (emphasis added)

NEVER GIVE UP ON DISCOVERY

There are two kinds of judges in Texas.

1. Lawyer Judges 2. Non- Lawyer Judges 3. Both types are subject to limitations

MOTION FOR ONSITE INSPECTION OF THE INTOXILYZER 9000 ROOM AND ADJACENT ROOMS TO EXAMINE RFI SOURCES AND RECORD AND COPY RFI DATA

Video Clip: “Is your radio on?”

Video Clip: “Machines are very sensitive- that’s why we keep radios off.”

Video Clip: You can’t put the cart before the horse

DEFENDANT’S MOTION TO SUPPRESS FISCHER STATEMENTS AND REDACT AUDIO PORTIONS FROM THE VIDEOTAPE

MOTION FOR SANCTIONS FOR FAILURE TO PRODUCE MICHAEL MORTON ACT DISCOVERABLE EVIDENCE

Michael Morton Act Request for Ethanol

Michael Morton Act Request for Audio/Video Electronic Recordings Re: State of Texas v. Jose Cuervo; Cause No. 659751 / Request for general discovery and inspection of records related to the audio/video electronic recordings concerning both of the providing of the DIC 24 Statutory Warning and the presentation and application of the blood search warrant affidavit in this case and supplemental discovery request To the Prosecutor Assigned to this Case: This letter is our discovery request under the authority of the Michael Morton Act and Article 39.14 Texas Code of Criminal Procedure. Our request for production is as follows:

1. All audio/video electronic evidence of the providing of the DIC 24 Statutory Warning;

2. All audio/video electronic evidence of the presentation for swearing of the blood Search warrant affidavit and presentation of the sworn affidavit to the magistrate for oath administration and review; and,

3. All written documentation that concerns both a request and/or approval for an audio/video recording not to be made of the two events referenced above.

2.1396 Tex. Code. Crim. Pro. Video Statute & Attorney General’s Opinion

Sec. 1701.661 Texas Occ. Code Release of Information Recorded by Body Worn Camera (a)A member of the public is required to provide the following information when submitting a written request to a law enforcement agency for information recorded by a body worn camera: (1) the date and approximate time of the recording; (2)the specific location where the recording occurred; and (3) the name of one or more persons known to be a subject of the recording.

Cross Examination Tip:

1LS or “Sway Test”

Longley Motion to Suppress Transcript & Messerli ALR Transcript

Killer Rules of Evidence that first have to be set up Rule 612. Writing Used to Refresh a Witness’s Memory (c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or— if justice so requires—declare a mistrial.

Killer Rules of Evidence that first have to be set up Rule 615. Producing a Witness’s Statement in Criminal Cases (e) Sanction for Failure to Produce or Deliver a

Statement. If the party who called the witness disobeys an order to produce or deliver a statement, the court must strike the witness’s testimony from the record. If an attorney for the state disobeys the order, the court must declare a mistrial if justice so require

Texas Criminal Defense Lawyers Association

19th Annual Stuart Kinard Advanced DWI November 2-3, 2023 The Menger Hotel San Antonio, Texas

ETHICS Dos and Dont’s with Clients

Speaker:

Betty Blackwell

Law Office of Betty Blackwell 1306 Nueces St Austin, TX 78701 512.479.0149 Phone 512.320.8743 Fax bettyblackwell@bettyblackwell.com Email www.bettyblackwell.com website

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

ETHICS DOS AND DONT’S WITH CLIENTS BETTY BLACKWELL

Attorney at Law Board Certified in Criminal Law 1306 Nueces Street Austin, Texas 78701 512-479-0149 bettyblackwell@bettyblackwell.com

TABLE OF CONTENTS PAGE The Basics. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 3 Use a written contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Neglect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Malpractice and ineffective assistance of counsel . . . . . . . . . . . .. . . . . . . . 6 Failure to Communicate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Who can File a grievance? New Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Fee Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Non-refundable retainers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Trust Account Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Duty on Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Perjury by Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Advising Subpoenaed and Potential Witnesses . . . . . . . . . . . . . . . . . . . .18 Conflict of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Ethics Opinion 690 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Compulsory Discipline upon Conviction . . . . . . . . . . . . . . . . . . . . .. . . . . . 22 Rule changes as of 2021 . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Grievance System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 Investigaion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Investigatory Panels. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 2

Just Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 Grievance Committee .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Grievance Referral Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Important State Bar Phone numbers . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 28

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LIST OF AUTHORITIES

PAGE

Butterfield v. State, 992 S.W.2d 448 (Tex. Crim. App. 1999). . . . . . . . . . 16 Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736 (Tex. App. Austin 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 Ex Parte Wilson, 724 S.W.2d 72 (Tex. Crim. App. 1987) . . . . . . . . . . . . . .8 Helton v. State, 670 S.W2d 644 (Tex. Crim. App. 1984) . . . . . . . . . . . . . 15 Henderson v. State, 962 S.W.2d 544 (Tex. Crim. App. 1997) Hines v. Commission for Lawyer Discipline, 2003 WL 21710589 (Tex. App. Hous 14th ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013). . . . . . . . . . . . . . 13 In re Lock, 54 S.W.3d 305 (Tex. S.Ct. 2001) . . . . . . . . . . . . . . . . . . . . .. . 19 Lafler v. Cooper, 132 S.Ct. 1376 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Missouri v. Frye, 132 S.Ct. 1399 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Nix v. Whiteside, 106 S.Ct. 988 (1986) . . . . . . . . . . . . . . . . . . . . . . . .. . . .15 Padilla v.Kentucky, 130 S.Ct. 1473, (2010. . . . . . . . . . . . . . . . . . . . . . . . . 7 Santos v, Commission for Lawyer Discipline, 140 S.W.3d 397 (Tex. App. Hous 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 Strickland v. Washington, 462 U.S. 1105 (1984) . . . . . . . . . . . . . . . . . . . . 5 Walter v. Commission for Lawyer Discipline, 2005 WL 1039970 (Tex. App. Dallas) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 4

Weiss v. CFLD. 981 S.W.2d 8 (Tex. App.- San Antonio 1998) . . . . . . . . .12 Wiggins v. Smith 539 U.S. 510, 123 Sct. 527 (2003) . . . . . . . . . . . . . . . . .5 Willie v. CFLD, 2014WL586226, (Tex. App.-Houston 1st Dist. 2014). . . . .11

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DOS AND DON’TS WITH CLIENTS VIOLATIONS OF THE ETHICAL RULES All lawyers licensed in Texas are required to abide by the Texas Disciplinary Rules of Professional Conduct. A violation of any of the disciplinary rules can result in a lawyer being sanctioned by the State Bar of Texas’s office of the chief disciplinary counsel. Sanctions can range from private reprimands up to disbarment.

Last year (through May 2023) the State Bar of Texas received 8472 complaints about lawyer misconduct. 5562 were dismissed because the complaint does not describe or allege a violation of the Texas Disciplinary Rules of Professional Conduct. 2520 were sustained complaints which proceeded as a grievance against the attorney. After an investigation,1654 cases were submitted to the summary disposition grievance panel for a dismissal. The following is a discussion of the most common complaints that result in a sanction by the State Bar of Texas and how to avoid them.

The Basics: 1. Have a written contract 2. Return phones calls if only to say that there is nothing new to report 3. Communicate with clients in writing to document 4. Return files upon termination of employment 5. Keep the attorney’s address current with the State Bar at all times 6. Return unearned fees 7. Do not advise anyone to avoid a subpoena or advise them to ignore a subpoena 8. Have a trust account for all fees that are prepaid or advance fees paid for services in the future 9. Answer any State Bar grievance 10. Do not have sex with your clients USING A WRITTEN CONTRACT: Rule 1.04 Texas Disciplinary Rules of Professional Conduct (c)when the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.

A written contract will spell out exactly what work the lawyer has agreed to 6

undertake and at what fee. Many complaints to the State Bar arise between the lawyer and the client about exactly what the lawyer had agreed to do. Rule 1.02(b) states that a lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation. However, without a written contract it is a swearing match as to what was said and the grievance can go forward if the State Bar disciplinary counsel has just cause to believe that a rule violation has occurred. Since it is a civil case, the burden to prove the allegations is by a preponderance of the evidence.

Limiting the extent of the representation is one of the most useful aspects of a written contract. Most clients believe that the fee for representation includes the appeal of an adverse decision. However, most lawyers do not intend to include the appeal in the original fee structure.

Explaining whether expert witnesses and other costs of the litigation are the client’s responsibility to pay for or the lawyer’s, is another area of common confusion. In criminal law, explaining that the expunction process is a separate civil proceeding that will not occur without additional fees being paid, is almost always an area of frustration on the part of the client.

Recently malpractice carriers have asked that attorneys include in their written contract exactly the length of time the lawyer will retain the client’s file and that the file will be destroyed unless the client takes possession of the file.

Rule 1.14(a) requires that trust account records be kept for five years, so it is recommended that the time period of retaining a file be at least five years. A grievance must be filed within four years so that keeping the file at least five years will insure the records are available to defend any grievance.

Rule 1.04 (d) requires that a contingent fee agreement be in writing and that it must state the method by which the fee is to be determined. It also requires an accounting at the end of the case.

HISTORICALLY THE MOST COMMON GRIEVANCE: Neglect Neglect has been traditionally the number one most common complaint filed by former clients against their attorneys and it is the most likely rule violation to result in an attorney being sanctioned by the State Bar. Rule 1.01(b)(1) A Lawyer shall not neglect a legal matter entrusted to him or frequently fail to carry out completely the obligations that the lawyer owes the client.

7

Santos v, Commission for Lawyer Discipline, 140 S.W.3d 397 (Tex. App. Hous 2004). The lawyer was sanction for the conscious disregard of a legal matter. He had been paid for an immigration matter and though told of the court date, the lawyer failed to appear. In contrast to the result in Santos, a simple calendaring mistake usually will not cause a lawyer to be sanctioned by the Bar as the comments to Rule 1.01 say “A lawyer who acts in good faith is not subject to discipline, under this provision for isolated inadvertent or unskilled act or omission, tactical error, or error of judgment”.

Malpractice is not always a violation of the Rule of Ethics and ineffective assistant is not necessarily a violation of the Rule of Ethics. An example of malpractice maybe telling a defendant that deferred adjudication will not show up on their record. But this probably doesn’t rise to the level of neglect, only incompetence. Malpractice can occur when a lawyer gives bad legal advice.

However, that does not meet the definition of neglect to cause the lawyer to be sanctioned by the State Bar. The duty to investigate, is part of the effectiveness standard. A lawyer must make a reasonable effort to investigate the case or after discussions with the client, make a reasonable determination that investigation is not necessary.

Strickland v. Washington, 462 U.S. 1105 (1984). Wiggins v. Smith 539 U.S. 510, 123 Sct. 527 (2003). Failure to investigate a case may not rise to the level of neglecting a case in violation of the Disciplinary Rules of Professional Conduct.

Failure to convey the plea offer to the defendant can be neglect and cause a writ to be field. Failure to advise the client of the consequences of a plea offer is ineffective assistance and may also rise to the level of neglect or failure to properly communication with a client as discussed in the next section, under the rules of Professional Conduct.

For example some of the most common criminal cases: Any plea to a DWI case can result in substantial non-criminal consequences for the person convicted. There are many areas of employment that prohibit a conviction for DWI, including Police Officers, Firefighters, and emergency medical technicians. Many employers have there own employment guidelines which can include dismissal for a DWI. School district often fire teachers if they are convicted of DWI. Canada will not allow anyone to enter the country if they have a DWI conviction.

In POM cases, a jail sentence results in a driver’s license suspension of up to 180 days. A jail sentence is a final conviction and can not be expunged nor can it be sealed if it occurred before September 1, 2015. Drugs cases are eligible for deferred adjudication, which can be eventually sealed, but not expunged. A regular probation stays on the person record for the rest of their 8

life. Many employers will not hire someone with a drug conviction. Many scholarships to colleges prevent people from applying who have drug convictions. Drug convictions can result in severe immigration consequences as do violation of gun laws. Many apartment complexes will not rent to individuals who have drug convictions on their record.

These are just a few of the collateral consequences and many clients will file grievances upon their lawyer if they feel that the lawyer failed to properly advise them of the consequence of their plea.

The most common allegation of neglect in a civil case, is the failure to file a lawsuit within the statute of limitations. Though clearly this is malpractice and the lawyer can be sued, the defense to the grievance is that it was an isolated inadvertent act or omission or a calendaring mistake. But the comments to Rule 1.01 caution that delays can cause the client anxiety and the lawyer has a duty to communicate reasonbly with the client, suggesting that a grievance might be upheld for failure to communicate.

MALPRACTICE Malpractice refers to negligence or misconduct that fails to meet a standard of care that is recognized in the profession and that results in harm to the client.

In Texas it is very hard to sue a criminal defense lawyer for malpractice. The Supreme Court of Texas has decided that only innocent clients have a viable malpractice cause of action against their criminal defense attorney.

INEFFECTIVE ASSISTANCE OF COUNSEL Strickland v. Washington, 104 S.Ct. 2052 (1984) set out a two part test.

First the counsel’s representation must be deficient and secondly, that deficient performance must have prejudiced the defendant. The bench mark for judging any claim of ineffective assistance of counsel must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Under the 6th amendment, the defendant must show a reasonable probability that but for the counsel’s errors, the outcome would have been different.

Three important Supreme Court cases have reviewed the performance of criminal defense counsel to determine whether the client should be afforded a new trial. 1. Padilla v.Kentucky, 130 S.Ct. 1473, (2010) held that it was ineffective assistance of counsel to fail to advise a defendant that his plea of guilty to a drug distribution charge would make him subject to automatic deportation. However, Padilla is not retroactive to cases already final. 2. Failure to inform the defendant of a plea offer is ineffective assistance of counsel.

Missouri v. Frye, 132 S.Ct. 1399 (2012) 3. In Lafler v. Cooper, 132 S.Ct. 1376 9

(2012), the defendant was prejudiced by counsel’s advise to reject the plea offer and proceed to trial. The trial counsel’s opinion that the evidence was legally insufficient to convict the defendant, was not sound advice. The defendant was entitled to effective assistance of counsel during the plea negotiations.

When deciding to accept a case, a lawyer should be aware of Rule 1.01(a) which states that a lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence. The only exceptions are if the attorney associates another competent attorney on the matter with client consent, or it is an emergency situation. If in doubt, don’t take the case.

Immigration issues have been a focus of the Chief Disciplinary Counsel’s office. In their annual report for 2020, they stated that they received 19 immigration complaints, imposed 11 sanctions and referred 5 to the Grievance Referral Program.

Failure to communicate.

This is the second most common grievance filed and it is usually filed in addition to the allegation of neglect.

Rule 1.03 (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. Rule 1.03 (b) states that a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make an informed decision.

In reference to a criminal case the Rules require a lawyer shall promptly inform the client of the substance of any proffered plea bargain. Failure to do so has been held to be ineffective assistance of counsel. Ex Parte Wilson, 724 S.W.2d 72 (Tex. Crim. App. 1987). Failure to communicate a settlement offer in a civil case would be the same misconduct. Under the Rules, the lawyer is allowed to withhold information if believes the clients would react imprudently or if the client is under a disability.

Failure to communicate is alleged in close to half of all grievances filed.

The duty is an affirmative obligation and it not dependent on a client’s request for information. Failing to advise a client of an adverse development in a case would be a violation. A lawyer must respond to reasonable requests for information.

Failure to provide adequate information for the defendant to make a decision about whether to have a jury trial or whether to accept a plea offer or a settlement offer can result in an attorney being sanctioned by the State Bar. 10

Lawyers must be aware of immigration consequences, employment consequences, and licensing consequences, as discussed under the section on Neglect.

Lawyers are not required by the rules to communicate with family members or loved ones. However, an effective lawyer knows that the family and loved ones are a vital part of the representation and may have important information that can only be obtained through their help. Many family members are also helpful in resolving the case. Failure to speak to a family member about a defendant’s mental health issues or background, or educational issues, such as whether the defendant was ever treated for an intellectual disability, could certainly be seen as neglect of the case.

WHO CAN FILE A GRIEVANCE? Old law: Up until September 1, 2023 complaints with the State Bar may be filed by anyone and relevant case law made it clear that there does not have to be an attorney client relationship for the person to file a complaint with the State Bar. Hines v. Commission for Lawyer Discipline, 2003 WL 21710589 (Tex. App. Hous 14th ) The Father of the client filed the complaint and the respondent attorney’s theory was that there could be no sanction because he represented the son.

The Court points out that under the old rules anyone could bring to the attention of the bar a rule violation. In addition, any alleged misconduct does not have to be in the course of an attorney client relationship for the State Bar to prosecute a violation under Rule 804(a)(3) which states that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

Walter v. Commission for Lawyer Discipline, 2005 WL 1039970 (Tex. App. Dallas). For example, a lawyer can be disciplined for actions taken as the executor of an estate, even though the lawyer may have no attorney client relationship with the beneficiaries of the will.

New law: The Legislature, in 2023 passed HB 5010 which amended the Government Code on who could submit a complaint to the State Bar. Starting 9/1/2023 it must be submitted by: (a) A family member of a ward in a guardianship proceeding that is the subject of the grievance. (b) A family member of a decedent in a probate matter that is the subject of the grievance. (c) A trustee of a trust or an executor of an estate if the matter that is the subject of the grievance relates to the trust or estate.

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(d)

The judge, prosecuting attorney, defense attorney, court staff member, or juror in the legal matter that is the subject of the grievance. (e) A trust in a bankruptcy that is the subject of the grievance; or (f) Any other person who has a cognizable individual interest in or connection to the legal matter or facts alleged in the grievance.

If it is filed by anyone else, it will be dismissed.

Rule 803 (a) requires a lawyer having knowledge that another lawyer has committed professional misconduct that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer, to inform the Chief Disciplinary Counsel’s office (CDC). The only exception is for mental illness or chemical impairment in which the lawyer can report the conduct to the Lawyer Assistant Program or the information is protected by confidentiality under Rule 1.05 or is obtained through counseling programs. Rule 1.05, Confidential Information, includes both privileged information and unprivileged client information which a lawyer shall not reveal except if provided by the rules.

Texas Lawyers Assistance Program’s phone number is 1-800-204-2222 ext. 1460. Conversations are confidential and referrals are available for help with mental illness, substance abuse or impairment by physical illness. The goal is to rehabilitate lawyers and help them resume practicing law.

Fee disputes Fee disputes constitute a large number of complaints. Those complaints are first referred to the client attorney assistant program (CAAP) and to the local fee dispute committees of local bar associations. CAAP’s stated purpose is to try and work out a settlement so that the case does not proceed to a grievance.

Their number is 1-800-204-2222 ext. 1777. If a reasonable settlement can not be obtained, the case is referred by the Chief Disciplinary Counsel’s office to be filed as a grievance. Returning a phone call from CAAP at 1-800-204-2222 ext.

1777 could save a trip to the grievance committee.

Rule 1.04 (a) A lawyer shall not charge or collect an illegal or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable.

Consider:

1. Time and labor required including difficulty 2. preclude other employment 3. fee charged 12

4. time limitations imposed by client 5. amount involved and results 6. nature of the relationship with client 7. experience and ability of the lawyer 8. whether fee is fixed or contingent.

A lawyer may not charge a contingent fee in a criminal case. Rule 1.04 (e).

Rule 1.04(c) When the lawyer has not regularly represented the client, the basis or the rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. The Rule strongly recommends that a lawyer use a written contract of employment, effective March 1, 2005 which is the most recent change to the Rules, as the other Rules were adopted January 1, 1990.

Non-refundable retainers: Many lawyers put in their contracts that the fee is a non-refundable retainer fee. The thought is that this would prevent the client for asking for a refund and prevent the client from being able to pursue a grievance if no refund was made. These types of contracts and employment agreements are not recommended by the State Bar of Texas. One problem is the appearance of overreaching. The court decisions have made it clear this is not an arms length transaction and the client it at a particular disadvantage in the contract negotiation process.

What is a true retainer fee?

A true retainer 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.

Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736 (Tex. App. Austin 2007) made it clear that simply calling a fee non-refundable does not make it so.

Calling the fee a retainer fee does not change an advance fee into a retainer fee. In that case there was a fee of $15,000.00 that the lawyer then 13

billed against. By billing an hourly rate against the fee collected, the lawyer was demonstrating that in fact it was an advanced fee, not a retainer. Because it was an advance fee for services in the future and it had not been earned at the time of the payment, the fee was required to be placed into a trust. Because the lawyer did not place the money into a trust account, the sanction imposed by the State Bar was appropriate.

In Willie v. CFLD, 2014WL586226, (Tex. App.-Houston 1st Dist. 2014) the Court of Appeals affirmed the Cluck decision stating that a fee is not earned simply because the contract stated that it was non-refundable. Because the fee was to be billed against, it was an advance fee that must be deposited into a trust account.

Trust Account Violations Rule 1.14(a): A lawyer shall hold funds and other property belonging in whole or in part to clients or third persons that are in the lawyer’s possession in connection with a representation separate from the lawyer’s own property. Such funds shall be kept in a separate account, designated as a trust or escrow account. Complete records of such account funds shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

Unearned fees must be placed into a trust account.

Ethics Rule 611 further complicated the issue of non-refundable retainers deposited into an operating account by stating that the Rules of Professional Conduct prohibit such arrangements if the fee charged includes payment for the lawyer’s services on the matter up to the time of trial. The Professional Ethics Committee for the State Bar of Texas decided that such an agreement would be a payment for future services, and as such, an advanced fee which must be deposited into a trust account. The fee can only transferred to the operating account when earned under the terms of the agreement with the client. See State Bar Journal November 2011 p. 944 The Ethics opinions are not binding on the Supreme Court, but they are used by the State Bar as presuasive arguments in grievance matters. According to Larry Boyd’s paper written for the State Bar “Mythology of Nonrefundable flat fees” in which he presents an excellent analysis of Ethics Opinion 611, he writes that the opinion creates an “absolute prohibition of non-refundable flat fees”.

Duty upon termination and Duty to Return the file 14

Rule 1.15(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a clients’ interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation.

The Texas Rule is that the file belongs to the client. Upon request and/or termination, the file must be returned to the client. If the lawyer wishes to make a copy and retain one for himself, he is responsible for making the copy. This section also results in a lot of sustained grievances against lawyers who mistakenly believe that they can hold the file hostage for payment of attorney’s fees. Ethics Opinion 610 says that it is not proper to include in the employment contract a statement that there will be a lien on the file for attorney’s fees as rule 1.08 (h) prohibits a lawyer from acquiring a proprietary interest in the cause of action.

However, in order to prove an ethical violation, there must be evidence that the retained file prejudiced the client in the subject matter of the representation. Weiss v. CFLD. 981 S.W.2d 8 (Tex. App.- San Antonio 1998).

Many questions have arisen about the effect of the Michael Morton Act, that amended Article 39.14 Code of Criminal Procedure, effective January 1, 2014. Section (f) specifically states that the attorney representing the defendant “may not allow that person to have copies of the information provided...”

The issue has been raised about whether an attorney could face disciplinary action from the State Bar for refusing to turn over an offense report to a defendant, after the defendant requested his file. It is clear that state law prohibits the attorney from making copies of information obtained from the prosecutor’s office. Subsection (g) states that this can not be interpreted to limit an attorney’s ability to communicate with their client within the Texas Disciplinary rules of Professional Conduct, except for information identifying any victim or witness.

Ethics Opinion 570 from 2006 states that the attorney must turn over all notes unless there is a right to withhold a document pursuant to a legal right or the lawyer is required to withhold the document by court order. This opinion would cover any attorney who refuses to turn over discovery to their client as a part of the request for the file. It states that work product and notes of the attorney must be produced, but the attorney can rely on Article 39.14 C.C.P. in refusing to turn over witness statements and offense reports provided to the attorney. This would comport with Section (d) of Article 39.14 C.C.P. which sets 15

out that when a defendant is pro se the State is not required to provide copies as required when an attorney requests discovery. The argument to be made is that this is not “papers and property to which the client is entitled” as the rule sets out, but the last line of the rule is problematic because these documents will be needed by the client.

In 2014 the Professional Ethics Committee of the State Bar of Texas issued Opinion 646. The question presented was whether as a condition for allowing criminal defense lawyers to obtain information in the prosecutor’s file, a prosecutor may require defense lawyers to agree not to show or provide copies of the information to their clients and agree to waive court-ordered discovery in all of the lawyer’s cases. The opinion specifically stated that under the Michael Morton Act, the prosecutor’s office can not demand such conditions for obtaining discovery. The opinion says that the Texas Disciplinary Rules of Professional Conduct require that the prosecutors comply with the Morton Act including making disclosures required by the Act. Unfortunately, the opinion confuses the issue by also stating that a prosecutor is prohibited from requiring the lawyer to not provide copies to their client. In the sentence preceding this statement, the opinion says that Texas now has an “open file” policy and prosecutors can not require lawyers to agree to any restrictions except those provided by the Act. Opinion 646 does not give lawyers the right to turn over copies to the defendant, in violation of Article 39.14, Code of Criminal Procedure.

Another interesting issue came up when the client expressly refused to allow his trial attorney to turn over his file to his appellate/habeas attorney. In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013) issued a mandamus to prohibit a trial court from finding the attorney in contempt and to reverse the trial court’s order that the lawyer turn over the file. The Court recognized that since 1918 the Supreme Court of Texas has held that the file belongs to the client and without the client’s consent, the lawyer could not turn over the file. The work product belongs to the client because the lawyer is considered the agent of the client.

Perjury Rule 3.03(a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act; (3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged 16

fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision; (4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (5) offer or use evidence that the lawyer knows to be false.

A lawyer must refuse to offer evidence that he knows to be false. If it comes from the client, the lawyer is justified in seeking to withdraw from the case. If the lawyer does not withdraw or is not allowed to withdraw, he must advise the client that he can not offer the false evidence and he must advise the client of the steps the lawyer will take if the false evidence is offered. If the lawyer discovers the false evidence after its use, the lawyer must seek to persuade the client to correct the false testimony and if that is ineffective, the lawyer is allowed to reveal confidential information under Rule 1.05 (f) which states a lawyer shall reveal confidential information when required to do so by Rule 3.03 (a)(2), 3.03(b) or by Rule 4.01(b).

Perjury by the criminal defendant Dealing with the possibility of perjury by a criminal defendant is complicated by a number of legal issues. The defendant has a due process right guaranteed in the 5th amendment of the U.S. Constitution to present his defense and he has the absolute right to testify, if he chooses. The rules recognize that these rights are attached to the criminal defendant in Rule 1.02(a) (3) which states in a criminal case, the lawyer shall abide by a client’s decision as to a plea to be entered, whether to waive jury trial and whether the client will testify. If the lawyer learns of the proposed perjury prior to trial, and he is unable to dissuade the client from doing so, the lawyer must withdraw from the representation. Rule 1.15.

However, Rule 1.15(c) overrides the ability to withdraw in many criminal cases. It states when ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

Three possible resolutions have been recognized in the United States. The first would allow the defendant to testify by narrative without any guidance from the lawyer. The second proposal would excuse the lawyer completely from any duty to reveal perjury if the perjury is that of the client. Texas has specifically rejected this option.

The rules in Texas require that the lawyer take reasonable remedial measures which can include disclosing the perjury. A defendant has the right to 17

assistance of counsel, the right to testify and the right of confidential communication. However, the client does not have the right to assistance of counsel in committing perjury. The lawyer is to try and dissuade the client from committing perjury or if it has already occurred, the lawyer must try to get the client to correct the false testimony. This needs to be done in the present of another attorney to document the lawyer’s efforts.

Then the lawyer must file a motion to withdraw under Rule 1.15 (a) (1) alleging the representation will result in the violation of the rules of professional conduct or other law. In the motion, the lawyer should quote the language in either Rule 1.15(b) (2) that the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes may be criminal or fraudulent or as in Rule 1.15(b)(3) that the client has used the lawyer’s services to perpetrate a crime or fraud or Rule 1.15(b)(7) other good cause for withdrawal exists, including vague ethical considerations.

If the motion to withdraw is denied, the lawyer is permitted to reveal the perjury. 3.03(b) if the efforts are unsuccessful, the lawyer shall take the steps to remedy including disclosing the true facts. This should be done to the tribunal and then the lawyer must abide by the decision of the court. Helton v. State, 670 S.W2d 644 (Tex. Crim. App. 1984) ruled that the lawyer was excused from the rules of confidentiality and he could reveal potential perjury to the court in order to prevent a fraud on the court.

Nix v. Whiteside, 106 S.Ct. 988 (1986) involved a murder defendant who complained that his lawyer threatened to withdraw and inform the court, if he took the stand and committed perjury. On appeal he alleged ineffective assistance of counsel and a denial of his 6th amendment right to counsel. The Supreme Court held that the attorney had acted properly in threatening both to withdraw and to disclose the perjury, as the right to testify does not include the right to testify falsely and the right to counsel does not include the assistance of counseling committing perjury. The Court specifically found that there was no breach of the lawyer’s professional responsibility.

Perjury is such an obvious and flagrant affront to the judicial proceedings, that the Court of Criminal Appeals has held in Butterfield v. State, 992 S.W.2d 448 (Tex. Crim. App. 1999) that a defendant could be compelled to testify, violating his 5th Amendment rights, and then prosecuted for perjury if he lied. His statements made in violation of his 5th Amendment rights could be admitted at his perjury trial.

Advising a Witness to Avoid a Subpoena 18

A lawyer can not advise a lawfully subpoenaed witness to not appear in court. Rule 3.04 states that a lawyer shall not: (a) unlawfully obstruct another party’s access to evidence....or counsel or assist another to do any such act. (b) falsify evidence, counsel or assist a witness to testify falsely..... (e) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person’s interest will not be adversely affected by refraining from giving such information.

Rule 3.04(c)(5) states that in representing a client before a tribunal the lawyer shall not engage in conduct intended to disrupt the proceedings. §36.05 of the Texas Penal Code, Tampering with a witness: A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding or coerces a witness or prospective witness in an official proceeding: (1) to testify falsely; (2) to withhold any testimony, information, document or thing, (3) to elude legal process summoning him to testify or supply evidence; (4) to absent himself from an official proceeding to which he has been legally summoned; or (5) to abstain from, discontinue, or delay the prosecution of another.

Article 24.04 of the Code of Criminal Procedure sets out how a subpoena can be served: (1) reading the subpoena in the hearing of the witness; (2) delivering a copy of the subpoena to the witness; (3) electronically transmitting a copy of the subpoena, acknowledgment of receipt requested, to the last known electronic address of the witness; or (4) mailing a copy of the subpoena by certified mail, return receipt requested, to the last known address of the witness.

It is both unethical and under the above circumstances illegal for an attorney to advise a subpoenaed witness not to appear in court. Rule 8.04(a) A lawyer shall not (4) engage in conduct constituting obstruction of justice.

The comments to the Rules of Disciplinary Procedures discuss that fair competition in the adversary system is secured by prohibitions against improperly influencing witnesses.

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Conflicts of Interest Rule 1.06 Conflict of Interest: General Rule (a) A lawyer shall not represent opposing parties to the same litigation. (b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person: (1) involves a substantially related matter in which that person’s interest are materially and directly adverse to the interest of another client of the lawyer or the lawyer’s firm; or (2) reasonably appears to be or become adversely limited by the lawyers or law firm’s responsibilities to another client or to a third person or by the lawyers or law firm’s own interest. (c)A lawyer may represent a client in the circumstances described in (b) if: (1) the lawyer reasonably believes the representation of each client will not be materially affected; and (2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any. (e) If a lawyer has accepted representation in violation of this Rule, or if multiple representation properly accepted becomes improper under this Rule, the lawyer shall promptly withdraw from one or more representations to the extent necessary for any remaining representation not to be in violation of these Rules.

Comment 2 to Rule 1.06 gives guidance as to the meaning of conflict of interest. The term opposing parties as used in this Rule contemplates a situation where a judgment favorable to one of the parties will directly impact unfavorably upon the other party. Moreover, as a general proposition loyalty to a client prohibits undertaking representation directly adverse to the representation of that client in a substantially related matter unless the client’s fully informed consent is obtained and unless the lawyer reasonably believes that the lawyer’s representation will be reasonably protective of that client’s interest.

Comment 3 recommends that ordinarily a lawyer should decline to represent multiple defendants in a criminal case due to the grave potential for conflict of interest. Comment 8 on fully informed consent recommends that the disclosure of the conflict of interest and the consent be in writing, though it is not 20

required. It would be prudent, the rules states, for the lawyer to provide potential dual clients with at least a written summary of the considerations disclosed.

Most believe that having sex with clients is an automatic conflict of interest.Though technically difficult fit under this Rule, this behavior will cause the State Bar to take a heightened view of any Rule violation however minor.

Comment 4 to the Conflict Rules discusses the conflict that may occur with a client and the lawyer’s own interests (insert sexual interest at this point) and how it can cause a lawyer to not be able to consider, recommend or carry out the appropriate cause of action for one client because of his/her own interests. This results, for example, in a client alleging a lawyer did not conclude the representation in a timely manner in order to continue the sexual relationship.

This would be a violation of Rule 1.06(b)(2).

Sometimes the clients who have engaged in sexual relationship with their attorney will claim a violation of Rule 1.08(h). A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for the client… {with some exceptions that do not apply here}. The scenario that the aggrieved client can allege is that the attorney proposed marriage, thereby potentially giving the attorney an interest in the cause of action. All of which forces the State Bar’s Office of Disciplinary Counsel to investigate the private life of the attorney.

After years of debate, planning and discussion that began in 2003, the Bar recommended in 2010 to attorneys that the Rules be amended to specifically prohibit sex with clients, to bring Texas in to conformity with almost every other state. On February 17th, 2011, the lawyers of the State of Texas voted to reject the proposal, so there is still no specific Rule prohibiting sexual relations with clients, other than common sense.

New Rule 6.05 approved in 2021, makes it clear that if an attorney engages in representation on a limited pro bono basis, or for a nonprofit, there is no imputed conflict of interest and Rules 1.06, 1.07 and 1.09 do not prohibit the representation.

Ethics Committee Opinion NO. 690 A prosecutor requested an ethics opinion from the State Bar’s Professional Ethics committee on whether a defense lawyer violated the Rules of Professional Conduct by failing to turn over tangible evidence from the lawyer’s client, when requested. The prosecutor alleged that the Rule 3.04(a) requires the lawyer to not obstruct another party’s access to evidence and rule 8.04(a)(4) prohibits a lawyer from engaging in conduct constituting obstruction of justice.

The facts were that the lawyer went to jail to visit his client and the client gave him several letters written to the client from the victim in the case containing 21

relevant information. The prosecutor asked to inspect the letters and the lawyer refused, only allowing inspection after being ordered to do so by the court after a hearing.

The Committee correctly notes that there is no authority holding that it is a crime for a lawyer to accept and retain ordinary tangible evidence from a client accused of a crime, so that this would not violate Rule 8.04. They also note that there is no discovery process in Texas that allows the State to obtain evidence from a criminal defendant, so that maintaining custody of ordinary evidence would not be unlawful and therefore not violate Rule 3.04(a).

The Committee recognizes that there are types of special criminal evidence that the lawyer has a self-executing obligation to turn over. Generally this type of evidence includes contraband, the instrumentalities of a crime, or the fruits of a crime. Examples are illegal narcotics, a murder weapon, and stolen property. The rationals for such duty are that (1) possession by anyone is illegal, (2) prepare the client’s defense does not reuqire the lawyer to possess the evidence and (3) any evanescent evidence (such as fingerprints) could degrade while in the lawyer’s possession.

Henderson v. State, 962 S.W.2d 544 (Tex. Crim. App. 1997) held that the trial court properly compelled the defense lawyer to turn over maps of the location of the kidnapped child received from the client when the child might possibly still be alive, but the Court noted that neither the client’s communication to the attorney nor the attorney’s communications to law enforcement could be admitted at trial.

The Committee comes to correct conclusion that the lawyer did not violate any of the Rules of Professional Conduct. The lawyer had no obligation to turn over this ordinary tangible evidence to the prosecuting attorney. The Committee goes on to state that the lawyer also had no obligation to accept custody of the evidence, and assuming that the lawyer knows the client won’t destroy the evidence, the Committee’s view is that the prudent course is for the lawyer to decline the client’s request to accept custody of the evidence relate to an alleged crime.

LAWYERS CONVICTED OF CRIMES/COMPULSORY DISCIPLINE 8.01 of the Rules of Disciplinary Procedure: When an attorney licensed to practice law in Texas has been convicted of an Intentional Crime or has been placed on probation for an Intentional Crime with or without an adjudication of guilt, the CDC shall initiate a disciplinary action seeking compulsory discipline pursuant to this part. Proceedings are not exclusive in that an attorney may be disciplined as a result of the underlying facts as well as being disciplined upon the conviction or probation through 22

deferred adjudication.

Intentional crime means (1) any serious crime that requires proof of knowledge or intent as an essential element or (2) any crime involving misapplication of money or other property held as a fiduciary.

Rules. Rule 8.04(a)(2) A lawyer shall not commit a serious crime or commit any other criminal act that reflect adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects. Serious crime is defined as barratry; any felony involving moral turpitude; any misdemeanor involving theft, embezzlement or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy or solicitation of another to commit any of the foregoing crimes. Possession of cocaine, is not a serious crime for which a lawyer can receive a compulsory discipline based upon the sentence alone of probation, deferred adjudication, or a final conviction. In re Lock, 54 S.W.3d 305 (Tex. S.Ct. 2001).

During compulsory discipline proceedings, the Board of Disciplinary Appeals decides if a lawyer has been convicted or placed on deferred adjudication for an intentional crime, which is defined as a serious crime in 8.04(b). The Board shall disbar the lawyer unless the Board suspends the license during the term of probation. Rule 8.05 and 8.06 of the Texas Rules of Disciplinary Procedure.

8.05 Disbarment: When an attorney has been convicted of an Intentional Crime, and that conviction has become final, or the attorney has accepted probation with or without an adjudication of guilt for an Intentional crime, the attorney shall be disbarred unless the Board of Disciplinary Appeals, suspends his or her license to practice law.

8.06 Suspension: If an attorney’s sentence upon conviction of a serious crime is fully probated, or if an attorney receives probation through deferred adjudication in connection with a serious crime, the attorney’s license to practice law shall be suspended during the term of probation. If the probation is revoked, the attorney shall be disbarred.

Duty to report: 8.03 was amended in 2018 to require that an attorney convicted of or placed on deferred adjudication by any court for barratry, any felony, or for a misdemeanor involving theft, embezzlement,or fraud, or reckless 23

misappropriation of money, or property, including a conviction or sentence of probation for attempt, conspiracy, or solicitation, must report the conviction or deferred adjudication to the State Bar of Texas. The lawyer must also notify the CDC when the lawyer has been disciplined by an attorney regulatory agency of another jurisdiction. Notice must be given within 30 days. New rule 8.03(f) approved in 2021 requires notice of any sanction imposed on the lawyer in federal court or by a federal agency, except a letter of warning or admonishment.

Rule changes adopted 2021: Rule 1.16 in reference to diminished capacity was amended at the proposal of the probate lawyers. It allows a lawyer to consult with family members, other providers concerning the mental health of a client, and if the lawyer chooses to do so, there is no confidentiality violation. If a lawyer has a reasonable belief that a client maybe suicidal, the lawyer may, but is not required to, seek treatment, or outside help without the lawyer violating any confidences of the client.

The advertising rules were substantially re-written to allow Tradenames to be used and to address probono programs, and social media. Rule 7.01 was amended to address constitutional distinctions of those substantially motivated by puncuniary interests, so that non-profits are not covered.

What to do if a grievance is filed THE GRIEVANCE SYSTEM The Supreme Court of Texas has the power to regulate the practice of law as set out in the Texas Constitution. The statutory authority to regulate the practice of law is established in the State Bar Act which directs the State Bar to establish disciplinary and disability procedures. The Supreme Court has adopted the Texas Disciplinary Rules of Professional Conduct (TDRPC) which are the substantive ethics rules.

The Texas Rules of Disciplinary Procedure (TRDP) sets out the procedural grievance process. The Commission for Lawyer Discipline (CFLD) is a permanent committee of the State Bar comprised of 12 members, 6 attorneys and 6 public members. The CFLD is the client for all complaints not dismissed by a summary disposition panel. The Commission reviews the structure, function and effectiveness of the discipline system and reports to the Supreme Court and the Board of Directors.

CFLD monitors and evaluates the Chief Disciplinary Counsel (CDC).

The CDC administers the attorney disciplinary system. The CDC reviews and 24

screens all information relating to misconduct. It rejects all inquiries and investigates all complaints to determine just cause. CDC recommends dismissal of complaints to the Summary Disposition Panels. CDC is accountable only to the Commission for Lawyer Discipline.

The District Grievance Committees are divided into state geographic disciplinary districts. They act through panels of 2/3 attorneys and 1/3 public members. The local grievance committees conduct summary disposition dockets, investigatory and evidentiary hearings.

INVESTIGATION If the grievance is determined to be a Complaint, the Respondent (attorney) shall be provided a copy of the complaint with notice to respond in writing to the allegations. The Respondent shall deliver the response to both the CDC and the Complainant within thirty days of the receipt of the notice.

No more than sixty days after the date by which the Respondent must file a written response to the Complaint, the chief Disciplinary Counsel shall investigate the complaint and determine whether there is Just Cause. Rule 2.12 TRDP. A Just Cause finding is made if a reasonably intelligent and prudent person would believe that an attorney has committed one or more acts of professional misconduct requiring that a sanction be imposed. If the CDC determines that Just Cause does not exist, they shall place the complaint on a Summary Disposition Panel docket. This is presented to the local grievance committee without the appearance of the Respondent (attorney) or the Complainant. If they fail to dismiss the complaint, it shall be placed on a hearing docket.

Either party may now appeal the classification of a grievance to the Board of Disciplinary Appeals. This is a change as of September 1, 2023, where previously only the complainant could appeal the classification of no just cause.

At this stage of the investigation the CDC may issue subpoenas in accordance with Rule 21a of the Texas Rules of Civil Procedure. The Respondent, attorney or witness must present any objection to the chair of the Investigatory Panel, if one is set, or to the Committee Chair. The CDC may seek enforcement through district court.

INVESTIGATORY PANELS The Chief Disciplinary Counsel may set a complaint for an investigatory hearing. It is a nonadversarial proceeding that may be conducted by teleconference. The chair of the Investigatory Panel may administer oaths and 25

may set forth procedures for eliciting evidence, including witness testimony.

Witness examination may be conducted by the Chief Disciplinary Counsel, the Respondent, or the Panel. An investigatory hearing is strictly confidential and any record may be released only for use in a disciplinary matter. An investigatory hearing may result in a Sanction negotiated with the Respondent or in the Chief Disciplinary Counsel’s dismissing the Complaint or finding Just Cause. The terms of a negotiated Sanction must be in a written judgment with findings of fact and conclusions of law. The judgment must be entered into the record by the chair of the Investigatory Panel and signed by the Chief Disciplinary Counsel and the Respondent. In 2023, after an investigatory hearing 335 grievances were resolved, with 189 agreed sanctions being entered.

JUST CAUSE If the investigatory panel hearing does not resolve the complaint and the CDC or the investigatory panel has determined Just Cause exists, they shall give the Respondent written notice of the acts and/or omissions engaged in by the Respondent and the Rule of Professional Conduct that the CDC contends has been violated.

RESPONDENT=S ELECTION A Respondent who has been given notice of the allegations and Rule violations complained of must serve the CDC with his Election of District Court or an Evidentiary Panel of the Grievance Committee. The Election must be in writing and it must be served upon the CDC no later than twenty days after the receipt of the notice of the allegations. Failure to timely elect shall conclusively be deemed as an election to proceed before the evidentiary panel of the local grievance committee.

GRIEVANCE COMMITTEE If the Respondent elects or defaults by failing to timely elect, the hearing will be held in front of the local grievance committee. A Private Reprimand is only available at this proceeding and is not available if the Respondent elects a district court proceeding. The CDC must file a petition within 60 days of the election deadline. All proceedings are confidential, and the burden of proof is on the CFLD by a preponderance of the evidence. Respondent must be served with the petition by certified mail or other means permitted by the Rules of Civil Procedure. Respondent must file an answer to this petition.

The committee can dismiss and refer the matter to CAAP (Client Attorney 26

Assistance Program). The grievance committee can find that the Respondent suffers from a disability and refer the case to BODA (Board of Disciplinary Appeals) or they can find professional misconduct and impose sanctions. There is a separate hearing on sanctions. Sanctions can include private reprimands, public reprimands, probation, suspension or disbarment. CFLD or Respondent has the right to appeal the decision to BODA, but the complainant does not.

Judgment of disbarment cannot be stayed.

DISTRICT COURT PROCEEDINGS The Texas Rules of Civil Procedure apply and the CDC files a petition on behalf of the CFLD with the Supreme Court. The Supreme Court appoints a judge who does not reside in Respondent=s administrative district. The Respondent may request a jury trial, and like the Evidentiary Proceeding the Respondent once served with the petition must file an answer. If misconduct is found, the judge determines the appropriate sanction. A Private Reprimand is not available and the court retains jurisdiction to enforce its judgments. A final judgment of the district court is appealed as in any other civil case. A judgment of disbarment or order revoking probation can not be stayed.

For more explicit details of the procedures used in District Court or in the local grievance committee hearings, see the Texas Rules of Disciplinary Procedure that can be found online at Texasbar.com Grievance Referral Program To participate in the program, the lawyer must meet certain eligibility criteria and agree to meet with the program administrator for an assessment of the issues that need to be addressed. The lawyer must agree in writing to complete specific terms and conditions, including restitution if appropriate, by a date certain and to pay for any costs associated with those terms and conditions. If the lawyer agrees to participate and completes the terms in a timely manner, the Office of Chief Disciplinary Counsel will recommend to the Commission for Lawyer Discipline that the underlying grievance be dismissed. If the lawyer does not fully complete the terms of the agreement in a timely manner, the underlying grievance will move forward through the usual disciplinary process.

Criteria for Referral: Respondent Attorney has not been disciplined within the prior 3 years.

Respondent Attorney has not been disciplined for similar conduct within the prior 5 years.

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Misconduct does not involve misappropriation of funds or breach of fiduciary duties.

Misconduct does not involve dishonesty, fraud or misrepresentation.

Misconduct did not result in substantial harm or prejudice to client or complainant.

Respondent Attorney maintained cooperative attitude toward the proceedings.

Participation is likely to benefit respondent attorney and further the goal of protection of the public.

Misconduct does not constitute a crime which would subject respondent attorney to Compulsory Discipline under Part VIII of the Texas Rules of Disciplinary Procedure.

Important Numbers at the State Bar: Client Attorney Assistant Program: 1-800-204-2222 Ext. 1777 Ethics Hotline 1-800-532-3947 Law Office Management 1-512-427-4000 Lawyers Assistance Program 1-800-343-8527 Advertising Review 1-800-566-4616

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Texas Criminal Defense Lawyers Association

19th Annual Stuart Kinard Advanced DWI November 2-3, 2023 The Menger Hotel San Antonio, Texas

Collateral Consequences for Driving While Intoxicated

Speaker:

George Scharmen

Law Offices of George Scharmen 214 Dwyer Ave, Suite 304 San Antonio, TX 78204-1105 210.226.8021 phone 210.224.5722 fax georgescharmen@hotmail.com email www.scharmenlaw.com website

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

10/5/2023

COLLATERAL CONSEQUENCES FOR DRIVING WHILE INTOXICATED BY GEORGE SCHARMEN 214 Dwyer Ave., Suite 304 San Antonio, Texas 78204

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Citizenship

Obvious concerns:

Prior convictions Occupations Contracts with employers Licenses for work State certifications Security Clearances (Secret or TS/SCI) Pension or government retirement Travel (Canada anyone?)

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Security Clearances

Top Secret

- military (veterans or active duty treatment court) - civilian

TS/SCI (top secret or sensitive compartmented information) - military (veterans or active duty treatment court) - civilian

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State certifications When to Report Arrest?

- Teachers (see contract and district and T.E.A.) - immediate - Nurses (once only except some special certifications) –upon recertification - pharmacists (usually drugs only)-upon recertification - CPAs (felonies)-upon recertification - Real estate brokers (felonies)-upon recertificatioin - etc. (refer to client for other licenses, and the client will know) -Law enforcement officers will lose TCOLE licence others will be fired based upon the arrest alone -Some professional licenses will be reinstated after deferred dismissals. The Occ. Code sec. 53.0231 will allow some with professional licenses under the Occupational Code to keep the license

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Pension or government retirement See, Veterans Benefits Administration (.gov): Veterans in receipt of VA pension will have payment terminated effective the 61st day after imprisonment in a Federal, State, or local penal institution For federal or state retirement read the individual State or federal agency policy. Plea bargain appropriately!

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Travel (Canada anyone?)

You cannot go to Canada if you have a DWI. Will they catch your client at the boarder? Probably. If they don’t get him at the boarder will they deport him later when they find him? Yep. For other international travel, your client on felony, misdemeanor probation or a visa will need a written order from the judge authorizing him to leave the country. Will they catch him at the boarder? Probably. If they don’t, will there be a problem coming back?? Just get the order, and make that question moot.

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Prior Convictions This topic is very complicated, but remember the holding in Ex Parte Harrington, 310 S.W.3d 452, (Tex Crim. App. 2010): “Because the record reveals no reasonable strategy in counsel's failure to investigate (the prior judgments) or in his advice to applicant to plead guilty to felony DWI, we conclude that counsel's conduct fell below the wide range of attorney competence as a matter of law. “ (my emphasis)

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Citizenship See, Padilla v. Kentucky, 559 US 356, 130 S.Ct. 1473, 1483, 176 L.Ed.2d 284 (2010). Get a letter from an expert prior to plea bargaining.

Furthermore, if your client is here on a visa he may not be able to return if he leaves the country while here on a visa. Various visas have different applications. Therefore, you should always confer with an expert on this topic so that a wedding or funeral at home doesn’t turn into a job lost because your client is refused re-entry on the visa at the border.

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Driver License Driver license suspensions are some of the most onerous collateral consequences of the DWI conviction. Suspensions can occur before the DWI trial after the ALR hearing in addition to being suspended as a result of a finding of guilt and being placed on probation.

Suspensions and the length of suspension are set out here: https://www.dps.texas.gov/internetforms/Forms/DL-176.pdf This list of suspension periods, in exhausting detail, sets out the myriad of reasons for the specific punishment that the Texas driver may suffer. It is a series of charts 20 pages long! I would not have time to discuss this in two hours, and I have only one.

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Nevertheless, here are some common license suspension issues: 1. DWI2d reduced to 1st with deferred: No suspension but if probated DPS may suspend ninety days to 180 days for failure to take the DWI Ed. Class. Ask judge for a ninety day suspension and take the class to keep DPS out See TX Code Crim. Proc. Sec. 42A.407(f) 2. DWI2d or 3rd mandatory 1 year suspension if prior is within 5 years 3. Commercial license suspension 1 year upon conviction, suspension or failure; 2nd DWI mandatory life time ban.

4. Judge may grant early termination of deferred Tx. Code Crim. Proc. 42A.111 “best interest of society.”

5. Judge may give credit for the 90 day ALR suspension toward any suspension during the probated sentence. Tx. Transp. Code sec., 421.344 (c ).

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Interstate Driver License Compact Texas is a member of the Interstate Driver License Compact. Tex. Tran. Code Sec. 523.001 et seq. The Stated purpose of the Compact is: “The Driver License Compact is an interstate compact used by States of the United States to exchange information concerning license suspensions and traffic violations of nonresidents and forward them to the state where they are licensed known as the home state. Its theme is One Driver, One License, One Record.”

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Out-of-State DWI Convictions Texas Transportation Code § 521.292 (a) The department shall suspend the person's license if the department determines that the person: •(5) has committed an offense in another state or Canadian province that, if committed in this state, would be grounds for suspension; TTC § 521.294 provides: •The department shall revoke the person's license if the department determines that the person: (7) has committed an offense in another state or Canadian province that, if committed in this state, would be grounds for revocation.

TTC § 521.306 provides: •(a) The department may suspend or revoke the license of a resident or the operating privilege of a nonresident to operate a motor vehicle in this state on receipt of notice of a conviction of the individual in another state or a Canadian province of an offense that, if committed in this state, would be grounds for the suspension or revocation of a driver's license.

•(b) The department may give the same effect to the conduct of a resident of this state that occurs in another state or Canadian province that the department may give to conduct that occurs in this state under state law.

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Tx. Code Crim. Proc., Art. 17.441 Ignition interlock (a) Except as provided by Subsection (b), a magistrate shall require on release that a defendant charged with a subsequent offense under Section 49.04, 49.05, or 49.0649.06, Penal Code, or an offense under Section 49.045, 49.07, or 49.08 of that code: (1) have installed on the motor vehicle owned by the defendant or on the vehicle most regularly driven by the defendant, a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator; and (2) not operate any motor vehicle unless the vehicle is equipped with that device.

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Tx. Code Crim. Proc., Art. 17.441 Ignition interlock (b) The magistrate may not require the installation of the device if the magistrate finds that to require the device would not be in the best interest of justice.

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Tx. Code Crim. Proc., Art. 17.441 Ignition interlock (c) If the defendant is required to have the device installed, the magistrate shall require that the defendant have the device installed on the appropriate motor vehicle, at the defendant's expense, before the 30th day after the date the defendant is released on bond.

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Tx. Code Crim. Proc., Art. 17.441 Ignition interlock (d) The magistrate may designate an appropriate agency to verify the installation of the device and to monitor the device. If the magistrate designates an agency under this subsection, in each month during which the agency verifies the installation of the device or provides a monitoring service the defendant shall pay a reimbursement fee to the designated agency in the amount set by the magistrate. The defendant shall pay the initial reimbursement fee at the time the agency verifies the installation of the device. In each subsequent month during which the defendant is required to pay a reimbursement fee the defendant shall pay the fee on the first occasion in that month that the agency provides a monitoring service. The magistrate shall set the fee in an amount not to exceed $10 as determined by the county auditor, or by the commissioners court of the county if the county does not have a county auditor, to be sufficient to cover the cost incurred by the designated agency in conducting the verification or providing the monitoring service, as applicable in that county. (sounds like probation?)

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Tex. Penal Code, Section 49.09(h) Ignition interlock This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed. The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated by the defendant, that uses a deeplung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in …

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Tex. Penal Code, Section 49.09(h) Ignition interlock and that requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device. The court shall require the defendant to obtain the device at the defendant's own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date. If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation. The Department of Public Safety shall approve devices for use under this subsection.

Section 521.247, Transportation Code, applies to the approval of a device under this subsection and the consequences of that approval. Failure to comply with an order entered under this subsection is punishable by contempt. For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed. To the extent of a conflict between this subsection and Subchapter I, Chapter 42A, Code of Criminal Procedure, this subsection controls. (42A sets out treatment options for alcohol and drug offenders) Not probation but “Ignition Interlock Supervision by court.”

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Code of Crim. Proc. Article 17.44 Home Confinement, Electronic Monitoring, and Drug Testing as Condition Bail Conditions/ Probation Conditions Code of Crim. Proc. Article 17.44 Home Confinement, Electronic Monitoring, and Drug Testing as Condition 1.

Generally, the magistrate will determine the necessary kind of monitoring will be used as a condition of bond.

In Texas an ignition interlock is not required for a first offense with a breath test under .15. fF there are aggravated conditions such as extreme intoxication (.15 or above) or an accident noted in the officer’s probable cause affidavit, and ignition interlock will be required. However, on a county by county basis some magistrates may require ignition interlock with every DWI bond.

Code Cim Proc. 42A.001; 42A.655 2. In more aggravated cases involving multiple DWIs and accidents with injuries or death, bond conditions will be far more restrictive, including home confinement with SCRAM or GPS monitoring. However, payment for these expensive electronic devices may not be forced upon persons with limited income. The county may be required to fund the device. See, Mathis v. State, 424 S.W.3d 89 (Tex. Crim. App. 2014) (“can’t get blood out of a turnip.”)

3. In probation cases the monitoring devices will be set by the judge in compliance with Tex. Code Crim. Proc. sec.

42A.001 and paid in compliance to Mathis v. State, supra.

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OCCUPATIONAL LICENSES 1. HEARING THE LAW NOW REQUIRES A HEARING TO BE HELD BEFORE BEFORE THE JUDGE CAN SIGN THE ORDER TX. Transp. Code, sec. 521.248 (amended 9/1/23) 2. REQUIREMENTS OF THE PETITION A. There must be a suspension of the license. The petition must set out the date of the suspension and the ending date of the suspension. If it is an ALR suspension, the SOAH judge’s order date is not the beginning date of the suspension.

Check the DPS website to determine when the suspension went into effect. The period of the suspension starts on that date, and the date of the reinstatement of the license must be in the petition and order indicating the length of the occupational license.

B. There are some attachments to the petition: a copy of the SR22 insurance certificate; a DPS driving record of the applicant; and an affidavit from the applicant setting out the facts supporting the need for a hardship license.

3. THE PETITION WITH THE ATTACHMENTS AND THE ORDER MUST BE E-FILED IN THE COUNTY CLERK’S OFFI CE OR IN THE JP’S COURT.

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NONDISCLOSURE OF DWI CASES REQUIREMENTS under Govt Cde sec. 411.074 >ELIGIBLE TWO YEARS AFTER COMPLETING PROBATION OR DEFERRED >Not convicted of or placed on deferred for any other offense >Mst not have resulted in a montor vehicle accident involving another person, including the passenger >Ignition interlock for 6 months Benefits: 1. sec. 411.0755says that petitioner is not required in any application or employment, information or licensing to state that the person has been the subject of any criminal proceeding related to the information that is the subject of the order.

2. A criminal justice agency may only disclose the arrest to the Tx. Dept. of Licensing and Regulation.

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Some Loss of Rights and Benefits from a Conviction > Financial aid Class A misdemeanor and felony – loss of scholarship awarded under Texas Education Code. Tex. Educ. Code Sec. 54.633 >Voting denied to those convicted of a felony except as provided by Tex. Election Code sec.

11.002 (not finally convicted or on appeal or deferred.) The defendant must be so advised at sentencing as provided by Tex. Code Crim. Proc., Art. 42A.0194.

After conviction when the defendant has fully discharged their sentence, including incarceration, supervision, or parole, or completed probation he/she is immediately eligible to register to vote.

If pardoned, the defendant is immediately eligible to register.

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SUSPENSION OF DRIVING PRIVILEGE FOR DRUG CONVICTION Tx. Transp. Code sections 521.372; 521.374; 521.342 and Tx. Health and Safety Code Sections 481.000; 483.041; and 484.000 Licensed drivers receive an automatic 180-day suspension beginning on the conviction date.

ID card holder/Unlicensed Drivers have a 180-day denial pon application for a license.

A drug education program is required for every conviction and cannot be waived.

Deferred adjudications are not reported for suspensions Drug paraphernalia is not reported. Transp. Code sec. 521.372; Health Code sec. 481.125

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DWI Suspension - minors

First offense is an automatic 1-year suspension Second or subsequent offenses are an automatic 18 months suspension With an ignition interlock the suspensions are reduced to 90 days The trial court may not give ALR credit to a driver suspended under the minor statutes Transp. Code sec. 521.342; 521.343; 521.344 (c ); Code Crim. Proc. Art. 42.12 sec. 13(n)

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Commercial Driver's License Information System (CDLIS) CDLIS Maintains a record of all commercial drivers and their license status. It’s stated purpose is: “The Commercial Driver’s License Information System (CDLIS) is a nationwide computer system that enables state driver licensing agencies (SDLAs) to ensure that each commercial driver has only one driver license and one complete driver record.”

Anyone can go to the site and search for information on registered drivers. Texas is a member of the interstate compact, sharing the driver license records of all States which are members. There are five States that are not members: Georgia, Tennessee, Michigan, Wisconsin, and Massachusetts. There are circumstances under which the CDLIS does not function well even if the communicating States are members.

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Enforcement Actions Suspension: occurs as a result of ALR rulings; convictions for DWI and drug cases.

Suspension are for a definite time such as 90 days, 180 days, 1-2 years, etc.

Revocations, cancellations and denials are generally indefinite until compliance is received

by DPS. Examples are 1. a person who has been charged with a 2nd or 3rd DWI and DPS has no record showing that the individual has an ignition interlock. With proof of ignition interlock the license will be reinstated and a new license will issue with a restriction that the holder may only drive a vehicle with an ignition interlock.

2. a person may be charged with DWI or not, but has in the past been convicted for more than one DWI. The DPS will cancel the license if they have no record that the individual has attended the DWI Intervention class. Upon receipt proof that the person has completed the DWI Intervention class, DPS will reinstate the license.

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Mandatory vs. Administrative enforcement Action Mandatory suspensions are a result from convictions or court orders such such as DWI conviction, drug conviction or no insurance conviction.

Administrative suspensions are initiated by the DPS as and indirect result of conviction(s) 1. Habitual Violator 2. Provisional Violator 3. Non-Resident Violator Compact (NRVC) referral “NRVC The Non-Resident Violator Compact came into existence in the 1970s, originating from the northeastern states. The Non-Resident Violator Compact is being superseded by the new Driver License Agreement (DLA) which also replaces the Driver License Compact. As planned by the DLC-NRVC Executive Board, when the Driver License.

Agreement is ratified by Non-Resident Violator Compact members, it will no longer be relevant. Most states where a citation is issued will suspend your license in that state while you maintain the privilege to drive in your home state that is not a member of the NRVC. Most states will also issue a warrant for your arrest as well as sending the suspension request to your home State. If you are traveling through NRVC member states, and you are licensed in one of the non-member states, it may be a good idea to carry enough cash to pay bond for any traffic violations you are stopped for and required to pay before leaving.” (Source: Wikipedia, “Non-Resident Violator Compact.”)

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UNLAWFULLY CARRYING A WEAPON

FREQUENTLY PEOPLE WHO ARE ARRESTED FOR DWI ARE ALSO CHARGED WITH UNLAWFULLY CARRYING A WEAPON. BUT FOR THE DWI, THE GUN WOULD BE LAWFULLY POSSESSED.

WHILE THE STATES HAVE THEIR OWN LAWS GOVERNING WEAPON POSSESSION, THE UNITED STATES GOVERNMENT HAS A LONG HELD PROHIBITION OF POSSESSION OF FIREARMS BY FELONS. THAT IS, INDIVIDUALS WHO HAVE COMMITTED OR ARE IN THE COURSE OF COMMITTING A CRIME. OFTEN TIMES THE CRIMES INVOLVED, LIKE DWI, ARE VICTIMLESS CRIMES. THERE IS DEVELOPING LAW IN THE FEDERAL CIRCUIT COURTS ADOPTING A SECOND AMENDMENT DEFENSE TO THE 18 USC 922. THE THIRD CIRCUITE ADOPTED THE DEFENSE IN THE CASE ATTACHED IN THE NEXT SLIDE. THE FIFTH CIRCUIT IS NOT FAR BEHIND. THE DEFFENSE MAY BE AVAILABLE IN THE STATES IF THE SUPREME COURT FOLLOWS THE CIRCUITS. THE ATTACHED CASE WAS AN EN BANC DECISION: 11 TO 4 ADOPTING THE DEFENSE.

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About TCDLA TCDLA began more than 45 years ago as a small, nonprofit association and has grown into a state-of-the-art organization, providing assistance, support, and continuing education to its members. TCDLA provides a statewide forum for criminal defense lawyers and is one of the few voices in the legislature interested in basic fairness in the defense of criminal cases. We are proud that many of our 3,800 members are elite criminal defense professionals in Texas. TCDLA hosts more than 60 seminars each year, providing the highest-quality legal education available for new lawyers as well as seasoned veterans. Our seminars are attended regularly by our members, non-members, judges, and professionals in related fields. Our yearly seminars have increased to over 9,000 people continuing their educational opportunities each year.

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Fellow 1-year plan—$1,500

Super Fellow 1-year plan

Super Fellow 2-year plan

q 3 payments of $500 (quarterly)

q 3 payments of $1,000 (quarterly)

q 6 payments of $500 (quarterly)

q 5 payments of $300 (every other month)

q 5 payments of $600 (every other month)

q 10 payments of $300 (every other month)

q 12 payments of $125 (monthly)

q 12 payments of $250 (monthly)

q 24 payments of $125 (monthly)

*If you are currently a TCDLEI Fellow, a second contribution of $1,500 will make you a Super Fellow.

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