In a recent case from the Nevada Supreme Court, State v. Eighth Judicial District Court, 2011 WL 6840685, the court decided that a blood sample taken from a driver over two hours after he was involved in a collision was unreliable to the point that to allow a jury to hear it would unfairly prejudical. The reasoning of the court was based on the use of "retrograde extrapolation," a methodology by which an expert attempts to determine the approximate level of alcohol in a person's blood at the time of stop for suspected drunk driving. This methodology is based on the the blood or breathe sample taken later, and the consideration of a number of factors that can lead to what is no more than an educated guess about the blood/alcohol level at the time of the stop. Those factors include: the amount of time between a person's last drink and the blood test, the amount and type of alcohol consumed, the time period over which alcohol was consumed, and personal characteristics such as age, weight, alcohol tolernance, and food. Of these, the court said that the amount of food consumed, according to one of the experts who testified, was one of the most important factors. In this case, it was unknown. Also unknown were the defendant's age or height, his regular drinking pattern, or his emotional state after the collision. The court also emphasized that only one sample was taken, and it was taken over two hours after the collision. This is important, because having more than one sample can help determine if the person was absorbing or eliminating alcohol at the time the blood sample was taken. The court also quoted at length from a Texas case on the same subject, State v. Mata, 46 S.W.3d 902 (Tex.Crim.App. 2001), which includes even more factors that need to be taken into consideration in order to determine the reliability of retrograde extrapolation.
So, even if a person has been arrested for DWI and a blood sample has been taken, the prosecutor has some hurdles to overcome to prove that the blood test is reliable, especially if a significant amount of time has expired between the time of the original stop for the suspected drunk driving. (Not the time of the arrest, for this could be somewhere 15 minutes or an hour after the stop.) Just because the prosecutor may present testimony from an expert on the estimated level of alcohol in the blood at the time of the stop, that testimony may be unreliable due to a number of unknow factors about the person, the amount of alcohol consumed, what the person had to eat and when, his or her weight, the time the last drink was consumed, etc. Just having a high breath test or blood test is not always the end of the ballgame in a DWI case.
Friday, February 24, 2012
Monday, January 16, 2012
New York Times Quotes Me
The New York Times picked up an article from the Texas Tribune that discusses the difficulties faced in defending a client charged in a "cold case." The case of State of Texas v. Dennis Davis was such a case--one that I defended last year and disussed in an earlier blog. (It was also profiled on CBSs' 48 Hours Mystery) Here's the NY Times article: http://www.nytimes.com/2012/01/15/us/piecing-together-decades-old-murder-cases-increasing-because-of-dna-evidence-is-a-challenge.html
Tuesday, December 13, 2011
48 Hours Mystery: Dennis Davis Case
I had the privelege of defending a client, Dennis Davis, this year in a jury trial that was covered by CBS's 48 Hours Mystery. Mr. Davis was charged with murder--a cold case that stemmed from a murder committed in Austin in 1985. Despite having a suspect who fit the description given by a witness, a description that did not match Mr. Davis, the investigation never resulted in charges being filed against that suspect. There may have been several reasons for this, but one of the main reasons, perhaps, was because that original suspect was convicted a few months later of sexual assault and sent to prison for a lengthy sentence. Another factor may have been that the lead investigator became ill with cancer and ran out of time to finish investigating the case. Mr. Davis, who knew the victim, as did the original suspect, became a target of a cold-case investigation after he reportedly made an ambiguous statement to his ex-wife that seemed to indicate that he felt guilty about something from his past. In 2007 the cold case unit investigator tracked down an ex-girlfriend of Mr. Davis, who, for the first time, claimed that Mr. Davis had made an incrimiating statement to her as well. These allegations and other circumstantial evidence led to a conviction by the jury. The law of Texas, which the judge followed, did not allow me to present evidence against the original suspect even though the evidence against him was almost as compelling as the evidence against Mr. Davis.
Although the trial lasted only a week, it was a long difficult case from the time I was retained until the final verdict. A witness, a neighbor to the victim, had seen a man with a weapon about an hour prior to the murder lurking around the apartment complex. The neighbor told the police that he had seen this man--a man who looked completely different from Mr. Davis, with a baseball bat in his hands, muttering something, and in a state of rage. This neighbor, who had moved out of Austin (and was tracked down by my investigator) was too afraid to come testify at the trial, fearing that if Mr. Davis were acquitted, he might then be charged with the crime himself. This witness had literally gone into hiding and could not be served with a subpoena to force his testimony at trial. I was able to introduce a statement this neighbor made to the police shortly after the murder, but it did not have the impact that his live testimony would have had. Had he testified that the man on trial, Mr. Davis, looked nothing like the man he had seen, I believe the outcome of the trial may very well have been different.
CBS's 48 Hours Mystery crew covered the case and produced a program entitled "Redemption Song." The show gives an excellent short-hand version of the many twists and issues in the case. Here is the link to the show: www.cbsnews.com/video/watch/?id=7384838n
(austin criminal lawyer, austin criminal attorney, Austin, Texas)
Although the trial lasted only a week, it was a long difficult case from the time I was retained until the final verdict. A witness, a neighbor to the victim, had seen a man with a weapon about an hour prior to the murder lurking around the apartment complex. The neighbor told the police that he had seen this man--a man who looked completely different from Mr. Davis, with a baseball bat in his hands, muttering something, and in a state of rage. This neighbor, who had moved out of Austin (and was tracked down by my investigator) was too afraid to come testify at the trial, fearing that if Mr. Davis were acquitted, he might then be charged with the crime himself. This witness had literally gone into hiding and could not be served with a subpoena to force his testimony at trial. I was able to introduce a statement this neighbor made to the police shortly after the murder, but it did not have the impact that his live testimony would have had. Had he testified that the man on trial, Mr. Davis, looked nothing like the man he had seen, I believe the outcome of the trial may very well have been different.
CBS's 48 Hours Mystery crew covered the case and produced a program entitled "Redemption Song." The show gives an excellent short-hand version of the many twists and issues in the case. Here is the link to the show: www.cbsnews.com/video/watch/?id=7384838n
(austin criminal lawyer, austin criminal attorney, Austin, Texas)
Monday, December 12, 2011
Blood: Gas Chromatograph Testing
If you have been arrested for DWI and you gave a blood sample, the results of the test on that sample could be inaccurate or just plain wrong. Here are just a few of the things that could affect the accuracy of the test:
1) If your arm is swabbed with a pad containing alcohol, this could skew the test results
2) Storing the blood sample at room temperature for an extended period of time, meaning 5 days or so, could lead to more alcohol being created in the tube of blood
3) The sample must always be returned to room temperature before testing
4) The testing is done with a gas chromatograph. Guess what? This machine doesn't always work properly and there are ways to find out if it is not working properly, such as: a) examining the print-out of the results, the "chromatograph," to see if the machine is separating out the various chemicals in the blood, such as ETOH (the alcohol in beverages) b) examining the separation matrix to see if the control mix used to test the machine indicates that it was working properly. Bottom line is--if the machine isn't properly separating out the alchohol from other chemicals in the blood, then it is not going to be able to quantify the amount of alcohol in the blood.
This machine is complex, and the prosecutor must be able to prove it was working properly. If they can't explain how it works and prove that it was working properly, then they should not be able to convict you based solely on the results of the blood test.
1) If your arm is swabbed with a pad containing alcohol, this could skew the test results
2) Storing the blood sample at room temperature for an extended period of time, meaning 5 days or so, could lead to more alcohol being created in the tube of blood
3) The sample must always be returned to room temperature before testing
4) The testing is done with a gas chromatograph. Guess what? This machine doesn't always work properly and there are ways to find out if it is not working properly, such as: a) examining the print-out of the results, the "chromatograph," to see if the machine is separating out the various chemicals in the blood, such as ETOH (the alcohol in beverages) b) examining the separation matrix to see if the control mix used to test the machine indicates that it was working properly. Bottom line is--if the machine isn't properly separating out the alchohol from other chemicals in the blood, then it is not going to be able to quantify the amount of alcohol in the blood.
This machine is complex, and the prosecutor must be able to prove it was working properly. If they can't explain how it works and prove that it was working properly, then they should not be able to convict you based solely on the results of the blood test.
Blood Sample Warrants: "No-refusal Weekends"
If you live in Austin, you have probably heard of "No-refusal" weekends or holidays. These are times when the Austin Police Department has decided to seek blood samples from every person arrested for DWI, such as New Year's Eve, Halloween and other "high party" times.
In order to get a blood sample, a police officer must submit an affidavit to the on-duty magistrate and ask the magistrate to issue a warrant for taking a sample of the blood of the arrested person. Since the person is already under arrest for DWI, it is usually easy to convince the magistrate to issue the warrant, unless there are problems with the case, such as a long delay between the stop on the street and the time the officer is asking for the warrant. One recent Texas case said that a long, unexplained delay that could have been as much as 25 hours or so was too long, and found the warrant to be invalid, so the blood test was thrown out. Other earlier cases have said shorter unexplained delays are OK. Every case is a little different and I always look to see if there is a problem in the timing that can help my client who has been arrested for DWI and forced to give a blood sample.
In order to get a blood sample, a police officer must submit an affidavit to the on-duty magistrate and ask the magistrate to issue a warrant for taking a sample of the blood of the arrested person. Since the person is already under arrest for DWI, it is usually easy to convince the magistrate to issue the warrant, unless there are problems with the case, such as a long delay between the stop on the street and the time the officer is asking for the warrant. One recent Texas case said that a long, unexplained delay that could have been as much as 25 hours or so was too long, and found the warrant to be invalid, so the blood test was thrown out. Other earlier cases have said shorter unexplained delays are OK. Every case is a little different and I always look to see if there is a problem in the timing that can help my client who has been arrested for DWI and forced to give a blood sample.
Wednesday, September 14, 2011
Tuesday, August 9, 2011
DWI-What Does Your Lawyer Need to Look For?
DWI/DUI arrests often start out as a minor traffic violation in the evening or early morning hours—you forgot to put on your seat belt, or you failed to signal before you changed lanes. These small violations give the officer who stopped you the opportunity to stop you and talk to you. If the officer smells alcohol on your breath, you will probably be asked to step out of the car and perform what are called “Field Sobriety Tests.” You will probably be on camera when you do these tests. Each test involves many small components, but if you do only two of these things in each test wrong, the officer will say you failed that test. Theses tests must be administered correctly to be valid.
Wade Russell is certified to administer Field Sobriety Tests, just as are the officers who perform these tests. He will review the recording of you doing the tests, and will able to tell you whether the tests were demonstrated properly to you before you started. He will also be able to tell you how well you did on the video overall, despite what the officer said in his report about how well you did. Most of the time, what the officer writes in his or her report does not match what is on the recording—you may have done much better than what is written in the report.
DWI cases have many issues for your attorney to look at—did you really do something wrong while driving for the officer to legally stop you? Did you really have alcohol on your breath? Did you really fail the tests? Were the tests administered properly? If they were not, then they are not valid.
Many cases turn on things other than the tests that show up on the video. For instance, many people arrested for DWI technically failed one or more of the tests, but have clear speech, are responsive to the officer's questions and instructions, do not sway, and otherwise seem "normal." In my experience, very many of these cases are reduced to a lesser charge, and some are dismissed altogether.
Wade Russell is certified to administer Field Sobriety Tests, just as are the officers who perform these tests. He will review the recording of you doing the tests, and will able to tell you whether the tests were demonstrated properly to you before you started. He will also be able to tell you how well you did on the video overall, despite what the officer said in his report about how well you did. Most of the time, what the officer writes in his or her report does not match what is on the recording—you may have done much better than what is written in the report.
DWI cases have many issues for your attorney to look at—did you really do something wrong while driving for the officer to legally stop you? Did you really have alcohol on your breath? Did you really fail the tests? Were the tests administered properly? If they were not, then they are not valid.
Many cases turn on things other than the tests that show up on the video. For instance, many people arrested for DWI technically failed one or more of the tests, but have clear speech, are responsive to the officer's questions and instructions, do not sway, and otherwise seem "normal." In my experience, very many of these cases are reduced to a lesser charge, and some are dismissed altogether.
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