A comprehensive guide to representing DWI clients in Texas
Because a conviction is so costly, a plea to a Texas DWI should be a last resort. To provide the defense your DWI clients need and deserve, you must be prepared to confront the State’s witnesses at trial. Cross-examination of the State’s witnesses is probably the most difficult, yet most crucial aspect of winning a DWI trial. In Texas DWI Manual, successful DWI attorneys Deandra M. Grant and Kimberly Griffin Tucker offer the tools you need to take the DWI case from inception through trial and beyond. This valuable guide includes:
- Hundreds of trial-tested cross-examination questions
- Over 80 forms and numerous practice tips
- Clear explanations of the law and the science
- Tactics for discrediting SFSTs
- Step-by-step guidance for trying breath and blood cases.
DWI defense is one of the most challenging and technical areas of criminal law. To establish a successful DWI practice, you must have a firm grasp of the law as well as grounding in the underlying science. Texas DWI Manual brings these two essential elements—the law and the science—together in one indispensible resource. With hundreds of hours invested in DWI defense training and decades of experience representing DWI defendants, authors Deandra M. Grant and Kimberly Griffin Tucker share with you their most effective strategies. Let them walk you through each phase of the Texas DWI case from investigation and discovery through the trial and expunction of your client’s criminal record. 20 practice tips from the book These 20 tips offer you a small preview of the innumerable ways that Texas DWI Manual will prepare you to provide your DWI clients with a robust defense: Field Sobriety Tests
- What to watch for in administration of OLS. Does the officer tell your client that if she puts her foot down she should pick it back up and continue the test? That is not part of the instructions for the test. . . . [§5:83]
- Deviations from NHSTA procedures. When challenging the HGN test or any other field sobriety test that uses an NHTSA standard, ask the officer to agree that NHTSA believes that its procedures should be followed as given. If the officer does not agree, point out the following section in the NHTSA manual. . . . [§5:103]
Breath Test Cases
- Object to PBT results on video. It is critical to look for whether the results are either stated aloud or flashed before the video camera. The results are inadmissible at trial, but will be admitted if you do not object before the video is admitted and published. [§2:64]
- A “machine,” not an “instrument.” Technical Supervisors are taught to continually refer to the 5000EN as an “instrument” as opposed to “machine” to give it more credibility. “Machine” implies something that might break. Don’t fall into the trap of calling this an instrument. Always call it what it is—a machine. [§6:91]
- Blood or breath—don’t ask which is more accurate. Do not ask if the Technical Supervisor thinks blood is a more accurate way to test for a person’s alcohol concentration than a breath test. Most will say no. However, your JURORS will likely think that blood is more accurate. Save this argument for closing. [§6:93]
- Make an open records request. Send an open records request to your Technical Supervisor requesting copies of any letters that have been sent to the DA’s Office concerning machines that have been found to be malfunctioning or test results they have refused to sponsor. . . . [§6:95]
- Notify supervisor of intention to reference scientific materials. When asked about a particular study or opinion, technical supervisors will often deny that they have read it or know anything about it. As a result, I give notice to the Technical Supervisor of my intention to reference certain materials during cross-examination. . . . This should prevent the technical supervisor from claiming that he or she does not know anything about a particular issue. [§6:110]
- When the second test is lower. Always ask the Technical Supervisor if that means that your client’s alcohol concentration was declining while he was taking the test. For example, if the first blow is .093 and the second is .086, a jury may believe that your client was in the elimination stage. You need to have the Technical Supervisor testify that a person can not eliminate that much alcohol in 2 minutes. [§6:162]
Blood Test Cases
- Investigate sanitation if client’s blood was drawn in jail. You may have an argument that the specimen was not drawn in a sanitary place. . . . You may want to obtain an inspection report, cleaning logs, and the type of cleaner/disinfectant used in the area of the jail you are dealing with by using a Public Information Request. . . . [§7:72]
- Watch out for a “short draw.” If the blood draw is “short” (i.e., less than 9 ml), it might be an indication that the vacuum had been compromised. . . . A compromised vacuum seal may allow contaminants to be introduced into the tube. [§7:91]
- Make the State produce an expert. Prosecutors typically do not understand the difference between a forensically tested whole blood test result and a hospital lab enzymatic blood test screening. They may attempt to offer the hospital result with no conversion. . . .You will need to argue that they should be required to have a witness capable of converting the result to a whole blood alcohol concentration. . . . [§7:101]
- False positives. The kits used in the hospital labs for enzymatic testing of blood plasma alcohol levels are prone to false positives. . . . A common interferent is lactic acid which can enter the blood due to muscle or organ injury or from fluids introduced via IV. [§7:101]
- Recognized authorities. In my experience, Technical Supervisors in Texas will recognize AW Jones, Kurt Dubowski and the book, Gariott’s Medico-Legal Aspects of Alcohol, as authorities. I like to get this out early so that I can keep referring to them as “your teacher, Dr. Dubowski” or “your teacher, Dr. Jones.” [§8:02]
- Ask about retrograde extrapolation calculation in advance. If the Technical Supervisor has done the calculation for the State, I ask the Supervisor to provide it to me so I’ll know in advance what retrograde range will be provided to the jury. [§8:31]
- If your client took a blood test. The DIC 25 Notice of Suspension will be mailed to the client only if the results of the blood test are .08 or higher. Do not send in a request for hearing until DPS sends this letter. . . . It is a request for nothing if DPS does not show that your client is entitled to a hearing. [§1:40]
- Getting a hearing transcript. My office e-mails the clerk of our local SOAH office a request for the hearing transcript and the clerk then emails us a “.wav” file. I obtain my transcripts in this manner because it ensures me that no one other than my office [e.g., the DA] will get a copy of our transcript. [§3:152]
- File a Motion to Remove Interlock. If your client has successfully completed 50% of his probationary term, he is eligible to request that the judge remove the interlock requirement from his probation conditions. . . . [§10:41]
- Remind judge to consider length of license suspension. Judges seldom supply DPS with their opinion on a license suspension, and DPS simply applies the maximum period allowed by law. Always request that the judge consider the facts of your case and the full range of suspension available. . . . It is not difficult to prevent maximum license suspensions in almost all cases. [§10:50]
- Expunging ALR and ODL records. Be sure to identify your client’s ALR and ODL cause numbers in your petition if you want to have these records destroyed. If this is the case, you will have to notify the appropriate agencies. . . . [§12:20]
- Informing non-state government agencies. Texas courts are not required to notify non-state government agencies of an expunction. . . .The best approach to ensure these agencies are notified is to place the burden on Texas DPS to notify the private entities to which DPS sells its arrest records that an expunction has taken place. You may do this by. . . . [§12:45]
REVISION 3 HIGHLIGHTS
To establish a successful DWI practice, you must have a firm grasp of the law as well as grounding in the underlying science. Texas DWI Manual brings these two essential elements– the law and the science–together in one indispensable resource.
This edition of Texas DWI Manual is packed with useful information:
Occupational Driver’s License
- Which type of ODL is right for your client?
- Jay Freeman of Concept- 22 insurance explains how to prevent clients from jeopardizing insurance coverage and financial well-being when obtaining an SR 22.
Field Sobriety Tests
- Transcript of cross-examination of arresting officer on HGN, walk and turn, one leg stand, and Romberg tests.
Breath and Blood Test Motions
- Motion for Discovery and Inspection in Breath Test Cases (Intoxilyzer 9000) and accompanying Order.
- Motion to Suppress Blood Alcohol Content or Breath Test Results Obtained Without Consent or a Valid Search Warrant under McNeely and Villarreal.
Driving under the Influence of Drugs
- 2013-14 National Roadside Survey of Alcohol and Drug Use by Drivers (the Virginia Beach Study) makes important findings regarding drug use and driving.
- Dallas attorney John Gioffredi offers guidelines for asking the jury to determine punishment along with a detailed handout explaining this strategy to the client.
Case Law Update
- Recent cases on: traffic stops; warrantless blood draws; areas that constitute a public place; and more.