Should Houston Juries Know Margins of Error in Breath Testing?

A hearing was held to determine what evidence is required to be presented regarding breath tests in DWI cases in Washington.  At issue, whether the State should be required to produce for the DWI defense team and jurors the margin of error in breath testing procedures.  In other words, should the jurors in a DWI case with a breath test be given information about the breath test and the inherent errors in the breath testing machine?

Ted Vosk, the attorney for the DWI suspect, merely says, "All we’re asking is that this information be given to defendants and to the jury.”  Vosk is not arguing that the test should be thrown out all together.  However, he is arguing that the jurors should be given all information regarding the test. 

He goes on to say, "If prosecutors are going to use these tests as evidence, they should be required to show the jury the full picture."

To most of us citizens, this sounds pretty reasonable.  If the government is trying to convict a citizen of DWI (or any other crime for that matter), don't you think it makes sense that they have to provide everything to the defense?  I don't think that many would want their government to hide evidence in DWI cases - maybe I'm wrong.

So what did the government say?  Prosecutors argue that the law doesn’t require them to provide an uncertainty calculation for each test. State legislators already have established the hurdles that must be cleared for prosecutors to introduce test results as evidence — a move to clarify drunken-driving law. The margin of error is not among the criteria, Snohomish County deputy prosecutor Elise Deschenes said.  Jurors should be allowed to hear the results even if the margin of error isn’t calculated. It is up to the defense attorneys to attack the results, she said.

“It’s just one more way that the defense attorneys are trying to keep out the breath tests,” Deschenes said.

It seems like the prosecutors in this case don't really care about the fairness of the process or the potential for convicting an innocent person.  How about some independent thought from the prosecutor?  How hard would it be to tell the Court, "Judge, we have so much confidence in this breath test machine that we are happy to turn over the margins of error - we can win even with this evidence being presented?"  I would have gained a great deal of respect for the prosecutor if he had done just that.  But instead, the prosecutor tries to avoid being forced to turn it over. 

I would hope the prosecutors here in Houston would have the guts to take a different stand on this issue than the prosecutors in this case.  Do you think Houston juries should have all the evidence about the breath test?  Share your thoughts.

Thinking About the Houston DWI DIVERT Program? Have a Concealed Handgun License?

Is your concealed handgun license important to you?  If so, the Harris County DIVERT Program may not be for you.  You see, if you have a pending charge for DWI, DPS may send you a notice that they are going to try and suspend your License to Carry a Concealed Handgun.

So how does this relate to the DIVERT Program?  While you are a participant in the DIVERT Program, your DWI case is still "PENDING" in the Harris County court system.  Beware, the entire time your DWI case is pending you may not be eligible to carry your concealed handgun license.  If you are concerned, ask your DWI lawyer about the ramifications of the DIVERT Program on your concealed handgun license.

Just one more potential pitfall with the Harris County DIVERT Program that no one told you about.

Harris County DWI Blood Draws - Look to Austin for Help

According to the Austin American Statesman, the Travis County (Texas' capital county), Commissioner's Court approved a plan that would allow the city of Austin and Travis County to share the cost of employing a phlebotomist at the county jail to draw blood from those suspected of DWI.  The reasoning, save the taxpayers money.  Not a bad reason to try something new. 

Hiring a non-cop (someone with blood drawing experience) to draw blood sure does seem like a better idea than having cops draw blood.  Harris County, however, is in the process of training police officers to draw DWI suspects blood.  Let the cops do what they do and let the medical people do what they do.


Harris County should take a page out of Austin's book and have a medical person draw blood.  Keep the cops away from needles.

Does Driver's License Surcharge Lead to More DWI Dismissals?

Just a little background.  In 2004, the Texas Legislature mandated that anyone convicted of DWI in Texas is required to pay a driver's license surcharge in order to legally continue to drive.  The surcharge on a driver's license is between $1,000 and $2,000 per year for 3 years.  The state has failed in its attempt to collect many of the imposed surcharges.

The question, what purpose does the surcharge (I call it a tax or  fine) serve?  Does the surcharge help resolve DWI cases or simply encourage citizens to go to trial?

According to Derk Wadas of Plano, "A former District Judge testified before the Texas Public Safety Commission that the effect of the surcharge program has been to actually increase DWI dismissals because so many more DWI cases are being tried to juries since the passage of the surcharge law."

Maybe the surcharge is actually helping many of those charged with DWI from ever having a conviction.  More and more dismissals means less and less money for the government.

Basketball Coach Resigns After DWI Arrest - Why?

According to reports, Hofstra's men's basketball coach Tim Welsh resigned only 3 days after he was arrested and charged with DWI.  The question that I ask, "Why, why would you resign after only an allegation of Drunk Driving?"

"The university accepted the resignation in the best interests of the university and of the men's basketball program," Hofstra spokesman Stephen Gorchov said in a statement.  According to the report, Welsh was to be paid $3 million over the next 5 years.

Was this really a resignation from someone charged with DWI or did the University force him to resign.  My guess - the University forced him to resign pursuant to some morality clause in his contract, though that was not in any report I have seen.  This begs the question, "Is an arrest for DWI really a morality issue."  There have been coaches that have certainly survived a DWI arrest and conviction.  Let me know your thoughts on this issue.