Smart Start Is Not the Only Game in Town Anymore - Thanks for the Comment Smart Start

I received the following comment from Neil Guerrier (an assistant manager with Smart Start - unbiased, no doubt!) a couple of days ago regarding my post related his company and the DWI Divert Program,

If any other company offered and IID with a camera that worked, perhaps offenders would have a choice, as it stands however....

Also, Dane, you lose any credibility by mentioning that you have a friend that works for a competitor.

The point is with the Divert program is that a device with a camera is required. Any other client is given a choice of what provider they wish to install with.

For years, judges and other court officials been screaming for positive id on the person blowing into the device. Smart Start beat other companies to the punch with their devices.

Also, if i remember correctly, there was an incident in Houston a few years ago where a Judge was part owner or investor in an Interlock company, was ordering clients to install with that company only...

Actually, I'm glad he left the comment because I have needed to write an update to my previous post. 

What Neil failed to point out in his criticism of me is that Smart Start is not the only company that now has a contract with the Harris County DWI DIVERT Program.  In fact, my friend's company (the one that made me biased presumeably) EZ Interlock is now an approved provider of services for the DWI DIVERT Program.  Apparently the cameras are working now.

I would like to think my post had something to do with EZ Interlock getting approved to be a provider for the DIVERT Program - competition is good for all, right Neil?

Thank you Neil for giving me a reason to write this post.

Cops Should Not Be Able to Draw DWI Supects Blood - Leave That to the Medical Professionals

As I reported back in September of 2009 and as Paul Kennedy writes about this week, the Houston Police Department began making arrangements for some of its officers to be trained to take blood from citizens they arrest for DWI in Harris County. 

As KPRC reports, the Houston Police Department currently has 7 police officers enrolled at Lone Star College to become phlebotomists - people that draw blood.  Unlike what happens now, the cops will now be taking our citizen's blood.  As I have said before, cops have no business taking the blood of our citizens - leave that job to the medically trained professionals. 

Just like I don't want nurses and doctors carrying guns and enforcing the law at hospitals, I sure don't think the police should be drawing blood.

To watch the KPRC video, click here.

New Illinois Supreme Court Case - The HGN Test Is Not All It's Been Touted to Be

The Supreme Court of Illinois  in The People of the State of Illinois v. Joanne Mckown last week issued an opinion regarding the Horizontal Gaze Nystagmus (HGN) field sobriety test and made some remarkable findings. 

First, the Court held that the HGN test can not be used to show actual loss of the normal use of mental or physical faculties, but instead, can only be used to show that a "defendant may have consumed alcohol and may, as a result, be impaired."  There is no more of this, "they failed the HGN so they are therefore intoxicated" arguments.

Second, the Court held that just because a scientific test is regularly relied upon in law enforcement does not make it admissible in court.  The test is whether the particular test is relied upon in the scientific community, not the law enforcement community. 

Third, just because a test meets the standards for admissibility under Frye, that does not preclude the trial court from conducting a balancing test  and deem the evidence "inadmissible on grounds of undue prejudice."

Finally, the Court held that the test must strictly comply with the NHTSA standards for performing the test.  This means the cops aren't going to be allowed to come in a testify, "I did it the way I was trained to do it."  They are going to be held to the standard of the NHTSA.

Here's hoping the Texas Court of Criminal Appeals will at least read this opinion.  Even more importantly, here's hoping that the trial courts in Texas will read the case and understand that they truly are gatekeepers for the admission of evidence.

Harris County Prosecutors Using HGN Video in Trial - Good Trial Tactic?

One of the field sobriety tests that police often rely on in DWI investigations is the Horizontal Gaze Nystagmus (HGN).  Apparently the Harris County District Attorney's Office has recently started using a video in DWI cases that show what HGN looks like - presumably to influence jurors to give more weight to the HGN test.  

It seems that they have realized what many of us have known for years, jurors want to see it to believe it.  Jurors are sharper than most of us give them credit for.  Hearing a cop say he observed 6 of 6  clues on the HGN means relatively little to most jurors that I have spoken to.  However, if they had seen a video of the Defendant's eyes and the jerking the cop says he saw, I think they would feel much differently.  Here is a video that shows what HGN looks like.

Unfortunately for the prosecutors, the video they are showing to the jury is not the defendant or the defendant's eyes.  It seems any good DWI lawyer would quickly point this out to the jury.  It seems just as obvious another drawback for the prosecution - the technology does exist to look at a defendant's eyes and let the jury actually see the defendant's eyes.  Instead we get to tell the jury - the technology exists to record this so called HGN - prosecutor showed you that.  What he/she didn't show you was my DWI client's eyes.  Why?

Houston Law Professor Suggests No More Jury Trials in DWI Cases - What a Joke?

Adam M. Gershowitz, law professor at the University of Houston Law Center, has proposed a simple solution for deterring Drunk Driving / DWI cases - eliminate Jury Trials.  The abstract from his paper reads,

Over the last few decades, states have imposed tougher punishments on drunk drivers. This article argues that increasing punishments is counter-productive. If legislatures are seeking to hold guilty offenders accountable and deter drunk driving generally, they should keep punishments low and instead abolish the right to jury trials. Under the petty offense doctrine, the Supreme Court has authorized states to abolish jury trials when defendants face a maximum sentence of six months' incarceration. . And researchers have also found that the certainty of punishment, not the severity of punishment, is the key factor in maximizing deterrence. Thus, by keeping maximum sentences for most drunk driving offenders at six months or less, states can abolish jury trials, thereby raising conviction rates and improving general deterrence. Additionally, bench trials will be far more efficient because the greater certainty of conviction will give defendants an incentive to plead guilty rather than taking their cases to trial. When trials do occur they will be much faster because there will be no need to select juries, and lawyers will have to present far less background information to already knowledgeable judges. At present, only a handful of states have eliminated jury trials for drunk drivers. This article outlines the specific steps that states should take to abolish jury trials and thereby increase convictions, maximize general deterrence, and more efficiently handle one of the most common crimes in the United States.

Although I'm admittedly no Constitutional scholar, I firmly believe in every citizen's right to a jury trial.  In fact, the right to a jury trial before incarceration has long been a tenet of not only our national criminal jurisprudence, but also here in Texas.

Quoting Gershowitz' abstract,

Social science evidence has long demonstrated that judges are more likely to convict than juries, particularly in drunk driving cases.

I doubt Gershowitz would like a rubber stamp guilty verdict by our judiciary if he (or someone he knows - possibly the colleague at the University of Houston Law Center that was recently charged with DWI whose case was ultimately dismissed) was wrongly charged with a DWI.  I'm quite certain that his law professor colleague is glad the judiciary doesn't have the right to just rubber stamp a guilty verdict for DWI.  Gershowitz - why don't you walk down the hall and ask your fellow law professor that had his case dismissed if he agrees with you. 

Let me tell you, there are many of our Harris County citizens that have been wrongly charged with DWI that are thankful we do still have a right to a trial by jury.  Gershowitz couldn't be more wrong on this point.  He seems to be buying into the ever increasing attitude by some (including Justice Roberts of the United States Supreme Court) that the Constitution does not apply in DWI cases.

DIVERT Coercion Revisited

In response to Herman Martinez' post and my post about the new rules for the DIVERT Program, Mark Bennett offers another (and I must admit compelling) reason for the changes in the DIVERT Program.

Mark writes,

The DA’s Office is not trying to get more people to reject DIVERT, and is not trying to prevent DWI trials. Rather it’s like a monkey at the controls of a nuclear reactor, pulling levers and pushing buttons without a thought to the consequences.

It does seem that this decision to expedite these cases was made in haste without much thought about the practical aspects of the policy. 

My partner had a discussion today with one of the attorneys working in the DIVERT Division and explained how ridiculous this new policy is.  In fairness, there was apparently a meeting about this short reset BS yesterday and the policy is apparently being change.  We will wait and see, but it does seem once again that Mark's conclusion is right on the money.

Harris County Commissioner's Court Decides Not to Appoint Judges During Executive Session

While the appointment of Harris County Criminal Court Judges was on the agenda this week, apparently Harris County Commissioner's Court decided to wait on the appointments until after the primary elections in March.  Not sure exactly what happened in the executive session with the Commissioners, but it seems they made the correct decision to appoint after the primary election.  This allows the voters to decide who they want on the November ballot.  It seems logical that the Commissioners will then appoint the victor of the primary election to fill the vacancies.

I guess we are going to continue to see Neal Richardson in Harris County Criminal Court at Law No. 1 and Henry Onken in Harris County Criminal Court at Law No. 3 for the near future.

Harris County Criminal Courts - Judicial Appointments on Commisioner's Court Agenda

According to the Harris County Commissioner's Court Agenda, the Commissioners were going to discuss the resignation of Reagan Helm of Harris County Court at Law Number 1 and appointing new Judges for Harris County Criminal Courts at Law 1 and 3.  According to the agenda, the Commissioners were to meet yesterday (February 9, 2010) in Executive Session to discuss the Judicial Appointments for the vacant Harris County Criminal Courts. 

Seems like a strange time for this in light of the upcoming primary election (less than 1 month from now).  Anyone hear if they actually did appoint anyone to these benches or if they are waiting until a later time?  My sources have told me who they thought the Harris County Commissioners were going to appoint, but I have not confirmed yet if they did appoint anyone.

Breath Test Refusal Lands Man in Prison for 3 Years?

At least we don't live in Akron, Ohio.  According to this report, an Ohio man was convicted and sentenced to 3 years in prison for Tampering with a Government Document for failing to give a breath test after his DWI arrest. 

Am I missing something here? How is refusing a breath test tampering with a government document? Doesn't it seem that you would have to actually alter, change, destroy, or manipulate a document in order to tamper it?  Even more basic, wouldn't there have to be a document already in existence or one that you fraudulently made to alter or tamper with?

After the verdict, the prosecutor apparently said, "the law is now clear that drunk drivers cannot refuse to take a breath test,  It is mandatory, and the jury agreed that Mr. Simin broke that law and deserved prison time. Bottom line: It doesn't pay to refuse to cooperate. It will increase your sentence."

Since when did our Constitution require us to aid in a police investigation?  Is the Fifth Amendment to the United States Constitution still around?  Funny, I thought we were all protected in our right to remain silent and not aid the Government in convicting us.

Less Resets - More Coercion with the DIVERT Program

It seems the new DIVERT Program is again changing without a real reason why.  As of last week, the county court prosecutors learned that the DWI cases that may be DIVERT eligible must now be set up for DIVERT no later than the second setting.  For the record, the first setting is generally scheduled for 1 week after the arrest.  The second setting normally will be approximately 3 weeks later.

The new policy mandates that a person arrested for a Harris County DWI must make a decision about his/her case within a month of the DWI arrest.  Mind you, no person charged with any other offense in Harris County has to make a decision within the first month - only those that may or may not want to participate in the DIVERT Program will be required to make that life altering decision this quickly.

It appears that this is more coercion by the district attorney's office to force people to take the DIVERT Program.  There are cases where we don't have the offense report or video within a month of the arrest.  Without such basic information about the case, how can a person be expected to make a rational decision about his/her case within a month of the arrest?  Wouldn't you expect your DWI lawyer to have all information about your case before having to make that major decision? 

Is it because the Harris County District Attorney's office has lost so many DWI cases recently?  Do they not want us to have the information?  Are they tired of losing so many DWI cases?

My questions to the policy makers:  What is the rush?  Why not let us properly evaluate these cases like the rest of the cases?  What are you scared of?

Texas Drunk Driving Campaign - False and Misleading

This billboard image was recently sent to me and it reminded me of the Texas DWI campaign,


The problem that Houston driver's face - Houston Police officers believe the statement to be true.  Unfortunately, the statement is very true for all intents and purposes.  Many citizens are arrested simply because they have had a drink, smell like alcohol and are driving.

This is just simply not the law.  The law allows a person to drink and then drive so long as they are not intoxicated at the time they are driving. 

I believe the Texas Department of Public Safety is not only trying to curb the number of people that drive while intoxicated, but also to taint the jury pool for DWI cases.  The state and DPS  are purposefully misstating the law on the  DPS signs in the hope that jurors will believe that the law is any drinking and then driving is enough for a DWI conviction.