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)
Tuesday, December 13, 2011
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.
Felony DWI Reduced to Misdemeanor
I just finished representing a client with a felony DWI, that it, it was his third arrest for DWI with two prior convictions. He gave a blood sample but it indicated no alcohol having been consumed. There was an issue regarding the use of PCP. Even if the prosecutor could screen his blood for PCP, it would have been very difficult to prove a level of intoxication due to the level of the drug found in his blood. So, the case was reduced to a misdemeanor DWI and my client was sentenced to the backtime he had already served in jail. He was happy to go home and not have a felony DWI on his record, not to mention avoiding the possibility of serving pen time.
Friday, June 17, 2011
Recent DWI Case Results
I recently represented a young woman who was charged with DWI and Passing an Emergency Vehicle at an Excessive Speed. After reviewing the video of her arrest and determining that the office had exaggerated her performance on the field sobriety tests, I was able to have the DWI dismissed. My client, per my advise, had completed the DWI Education Program and a Mothers Against Drunk Driving Victim Impact Panel. She was only required to plead to the traffic ticket and pay a fine.
I also recently represented a young man, a UT student, who was charged with DWI with no alcohol involved. The arresting officer smelled an odor of marijuana coming from his car after she stopped him. He gave a blood sample and it did indicate some consumption of marijuana, but the prosecutor was unable to prove that the amount consumed indicated intoxication. His case was dismissed and he agreed to a term of deferred prosecution. What that means is that if he is not arrested or convicted during that period of time for any offense above a traffic violation, his case will not be refiled. He will be able to have his record expunged after the required waiting period has expired.
I also recently represented a young man, a UT student, who was charged with DWI with no alcohol involved. The arresting officer smelled an odor of marijuana coming from his car after she stopped him. He gave a blood sample and it did indicate some consumption of marijuana, but the prosecutor was unable to prove that the amount consumed indicated intoxication. His case was dismissed and he agreed to a term of deferred prosecution. What that means is that if he is not arrested or convicted during that period of time for any offense above a traffic violation, his case will not be refiled. He will be able to have his record expunged after the required waiting period has expired.
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