Serving all of New Braunfels; Bulverde; Comal County; Hays County; and Guadalupe County, Texas

When charged with driving while intoxicated, many plead guilty in the face of breath test evidence which shows their BAC as being above the legal limit.  When prosecution expert Rod Gullberg testified on August 5, 2010 regarding a breath alcohol test ticket with the values 0.081 and 0.080 he testified that despite the fact that the tests were accurate and reliable, there was a 44% likelihood that this individual’s BAC was below 0.080.  Even for the most carefully performed measurement, the value of a thing being measured can never be known exactly; all that can ever be given is an estimated value.  Thus, a breath test is more appropriately represented as a packet of values, any of which could represent an individual’s BAC.

Once provided with the tests uncertainty ranges, Mr. Gullberg found that, to a 99 percent level of confidence, the coverage interval was defined as 0.0731 to 0.0877.  This means that the values which could actually and reasonably be attributed to the BAC in question were between 0.0731 and 0.0877.  This creates quite a different picture than just presenting the results of the test and affirming that the test is accurate and reliable.  Despite the test being accurate and reliable, the actual BAC level in question could have been below the legal limit.

Measurement uncertainty facilitates the discovery of truth.  It is another piece of evidence for the jury to consider and weigh with the rest of the evidence in arriving at a verdict.  When the State presents a breath measurement as evidence against a DUI defendant, it should be required to produce the whole truth about it.  The whole truth is that the reading is only a “best estimate” of a defendant’s breath-alcohol content.  The true measurement is always the measurement coupled with its uncertainty ranges.  Without the uncertainty ranges of breath tests, the jury is not being presented with “the truth, the whole truth, and nothing but the truth.”

Source:

Ted Vosk
Voice for the Defense

April 2011
Vol. 40, No. 3

Confrontation and Blood Tests:  A Bull is Coming
By: Doug Murphy

            This month the United State Supreme Court will hear oral argument on Donald Bullcoming v. New Mexico, a DWI case in which a blood test was conducted.  The defendant argues that his constitutional right to confront his accusers was violated when the trial court allowed the lab analyst’s supervisor to testify on behalf of the analyst.   Because the lab analyst was the only person present when the blood tests were conducted, the defendant argues that allowing another to testify in his place does not allow him to question the witness on the accuracy of the test results.  This case illustrates the importance of having live testimony from the analyst who actually administered the tests and wrote the report.  If the analyst who performed the tests is not present to testify, the defense has no way of discovering if errors occurred.  The outcome in Bullcoming will affect any criminal case where forensic chemical tests are used. 

Summarized from Voice for the Defense Vol. 40 No. 1

A Defender’s Perspective:

            The best advice is not to drive if you have had too much to drink.  “Intoxicated” for purposes of a DWI can be proved in one of three ways: (1) not having use of normal mental facilities, or (2) not having normal control over physical faculties by reason of introduction of alcohol, drugs, or a combination of the two into the body, or (3) having a blood alcohol concentration of 0.08 or more.  From a defense viewpoint, the less evidence there is the better.  That means: stop immediately when being pulled over, refuse to submit to roadside sobriety tests, refuse a breath specimen (but be aware that in some jurisdictions a warrant may then be obtained for a sample of your blood), and be polite and ask for a lawyer.

A Prosecutor’s Perspective:

            If you are given the opportunity to take a breath test, take it!  If you blow under 0.08 and the officer does not suspect that you are intoxicated on some other substance, you will save yourself the embarrassment of going to jail, having to post bond, and appearing in court as a criminal defendant.  If you refuse to voluntarily provide a sample of your breath or blood, in some jurisdictions the officers can then try and obtain a blood search warrant signed by a judge or magistrate.  After that is obtained, a qualified technician obtains a blood sample.  Your refusal to provide a sample of breath or blood can be considered evidence of guilt by the judge or jury.  Again, the best advice is to make arrangements to get home safely if you’re planning on drinking. 

Source:

Party Talk
Texas Bar Journal
December 2010
Vol. 73, No. 11

Article by: Marilee H. Brown, Comal County Lawyer

Few drivers on the road are already familiar with the Texas Implied Consent Law, which states that, if you get behind the wheel, you are agreeing to give a sample of your breath or blood when stopped on suspicion of driving while intoxicated.  The law states that if you give a blood or breath sample that shows a blood-alcohol level over the legal limit of 0.08, then your driver’s license will be suspended for 90 days.  However, if you REFUSE to provide a blood or breath specimen, your license will be automatically suspended for 180 days. 

Previously, if you did not CONSENT to giving a breath or blood sample, a police officer would have to obtain a WARRANT to get your blood sample.  However, the law regarding implied consent and warrants has recently CHANGED.  As of September of 2009, if you are arrested for DRIVING WHILE INTOXICATED, BOATING WHILE INTOXICATED, or any other alcohol offense, a police officer can draw blood from you WITHOUT A WARRANT under the following circumstances:

1. If there was an accident involved;
2. If there is a child passenger in the car;
3. If the officer believes you have prior DWI convictions.

A stop and arrest for driving while intoxicated already carries serious consequences, especially in the Comal County, Texas area. The law is showing a trend against the rights of the accused, making legal counsel even more important in the face of a Texas DWI charges.

This article is intended to provide general information, and should not be considered legal advice.  If you have been arrested for a DWI in Comal County, Guadalupe County, or Hays County, and you would like a private consultation with a DWI lawyer, please contact us today.

What is SCRAM?

Scram stands for Secure Continuous Remote Alcohol Monitor.  It is a device that is fastened to your ankle.  A court can order you to wear it if you are an alcohol offender.  It continuously measures your blood alcohol content through perspiration.  This way, a court can constantly monitor when and how much you drink.

Who gets a SCRAM?

SCRAM is most often assigned to convicted repeat DWI offenders. The reason why these types of offenders get a SCRAM is because it saves that State of Texas money, it reduces jail crowding, it treats the alcohol addiction problem of repeat DWI offenders, and treating the addiction of the offender prevents them, in theory, from going to jail again.

SCRAM and the Texas Justice System

SCRAM has been introduced to the Texas Justice System as an effective means of reducing jail crowding, cost, and recidivism.  According to a case study in Ellis County, SCRAM was introduced to repeat DWI offenders coinciding with treatment for alcoholism, thus establishing a rehabilitation program.  Of all of the offenders enrolled in the program, 80% completed the program successfully.   

This article is intended to provide general information, and should not be considered legal advice.  If you have been arrested for a DWI in Comal County, Guadalupe County, or Hays County, and you would like a private consultation with a DWI lawyer, please contact us today.

There is no aspect of DWI defense practice that has gathered greater momentum over the past five years than blood draw warrants. Blood draws can be done by law enforcement pursuant to a search warrant shortly after a person arrested for driving while intoxicated refused  to submit to a breath test. Police use blood draw search warrant affidavits and search warrant forms to get authorization for a blood draw from an  on- call judge.

The criminal defense attorney must prepare to meet and confront the blood draw warrant and this evidence in a motion to suppress before trial.  In order to do so, counsel must have a clear understanding of search and seizure laws.  Counsel must review and scrutinize the search warrant and supporting affidavit to discover inconsistencies, false statements, conclusory statements, and a lack of sustainable probable cause.

Blood draw warrants in connection to DWI offenses have made a grand appearance on the criminal law scene. Police departments and prosecutors’ offices throughout Texas are advocating the use of blood draws in virtually every driving while intoxicated arrest. 

Lawyers defending individuals in Comal County DWI matters must be equally vigilant in their efforts to educate themselves on the practices, procedures, and laws governing blood draw warrants so that this emerging practice can be met, tested, confirmed, and defeated where possible.

Summarized from:
Challenging Blood Draw Search Warrants- Mark G. Daniel
Voice for the Defense-December 2009, Pgs. 29-35