Tarrant County’s Disappointing Decision to Publish DWI Arrestees Names

January 1, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Tarrant County decided to publish the list of DWI arrestees over New Year’s weekend.  You can read about their decision here.

According to Richard Alpert, Tarrant County prosecutorial guru for intoxication offenses, the measure is a creative way to make the streets safer.  Alpert reasons, “If the financial cost of being charged with a DWI-related crime and the risk of injury or death is not enough, perhaps the effect of having it known by friends and neighbors will be.”

Mr. Alpert further said he’s motivated to create new efforts to reduce drunk driving because of cases he’s worked on where people have been killed: “The worst photographs that I’ve ever had to look at as a prosecutor are vehicular crashes.”

Point well taken.  Mr. Alpert is highly regarded around the State and he is nothing if not sincere about his beliefs.

Here’s why Mr. Alpert’s decision is disappointing and reveals a common thinking error amongst law enforcement and prosecutorial agencies.  Not everyone is guilty.  In fact, based on past statistics it is inconceivable that all of the arrested people this weekend will be convicted.

Tarrant County’s actions of publishing the names probably means an acquitted person’s name will be on the internet FOREVER as a drunk driver regardless of what a jury says — and even regardless of if and when a District Judge Orders the Tarrant County District Attorney’s Office to take certain names off the list.  Putting something on the internet is writing it in permanent ink.

I wouldn’t expect the public to be too lose sleep over a few unlucky schmos who get tossed on this list because they ran into an angry cop having a bad night… or for some poor mope with a lisp that couldn’t talk an officer out of arresting him for having slurred speech… and I can’t imagine the masterminds of the list would be too bothered either.  After all… even if they beat the rap, they were probably guilty of SOMEthing, right?

Prosecutors have a duty to seek justice.  That duty is worthless where prosecutors assume everyone is guilty… and how do we know they’re making this assumption?  They are intentionally convicting them in the public and they’re not even bothering to read the police reports first.

Scary.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications through this blog are not confidential.

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Posted by Jeremy Rosenthal, Esq.

Tarrant County’s Disappointing Decision to Publish DWI Arrestees over New Years Weekend

January 1, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Tarrant County decided to publish the list of DWI arrestees.  You can read about their decision here.

According to Richard Alpert, Tarrant County prosecutorial guru for intoxication offenses, the measure is a creative way to make the streets safer.  Alpert reasons, “If the financial cost of being charged with a DWI-related crime and the risk of injury or death is not enough, perhaps the effect of having it known by friends and neighbors will be.”

In an interview with the Dallas Observer, Mr. Alpert further said he’s motivated to create new efforts to reduce drunk driving because of cases he’s worked on where people have been killed: “The worst photographs that I’ve ever had to look at as a prosecutor are vehicular crashes.”

Point well taken.  Mr. Alpert is highly regarded around the State and he is nothing if not sincere about his beliefs.

Here’s why Mr. Alpert’s decision is disappointing and reveals a common thinking error amongst law enforcement and prosecutorial agencies.  Not everyone’s guilty.  In fact, based on past statistics it is inconceivable that all of the arrested people this weekend will be convicted.

Tarrant County’s actions of publishing the names probably means an acquitted person’s name will be on the internet FOREVER as a drunk driver regardless of what a jury says — and even regardless of if and when a District Judge Orders the Tarrant County District Attorney’s Office to take certain names off the list.  Putting something on the internet is writing it in permanent ink.

I wouldn’t expect the public to be too lose sleep over a few unlucky schmos who get tossed on this list because they ran into an angry cop having a bad night… or for some poor mope with a lisp that couldn’t talk an officer out of arresting him for having slurred speech… and I can’t imagine the masterminds of the list would be too bothered either.  After all… even if they beat the rap, they were probably guilty of SOMEthing, right?

Prosecutors have a duty to seek justice.  That duty is worthless where prosecutors assume everyone is guilty… and how do we know they’re making this assumption?  They are intentionally convicting them in the public and they’re not even bothering to read the police reports first.

Scary.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications through this blog are not confidential.

 

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Posted by Jeremy Rosenthal, Esq.

Defending Blood Draws Versus Defending the Breath Test

November 16, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

There are many strategies to specifically attack either a breath or blood result, but today I’m going to compare blood and breath samples very generally.

Generally speaking — the most vulnerable aspects of either test is due to the degree that a human can either intentionally or negligently effect the outcome.

Jurors tend to have a bit of a natural skepticism against the science and technique regarding the breath test, but jurors unfortunately don’t scrutinize blood tests quite the same way.  On the other hand, the process for administering the breath test is ‘idiot proof’ whereas the procedure for taking, shipping and testing the blood is filled with human contact.

The Breath Test

The breath test is based on extracting the alveolar breath from one’s deep lungs.  That breath sample has to (1) come from the deep lung in the first place;  then (2) travel through the lungs, esophagus, and mouth, through a tube on the intoxylizer machine, and into a test chamber roughly the 1/3 the size of a coke can.  Pollutants which contain hydroxyl molecules at any place can corrupt the sample.  But, compared to the blood test, the breath test is scored right on the spot.  The operator of the breath test machine needs very little training and experience to administer the test — and they should not be able to affect the test.  If the operator makes a mistake, chances are that the machine will invalidate the result or that it will be revealed on the video of the test being taken.

Blood Draws

Challenging the chain of custody and the testing of blood can be very frustrating.  This is because the person drawing the blood, the people processing and sorting the blood samples at the lab, and the lab technicians simply don’t remember YOUR specific blood test.  Places where blood is drawn and the labs that test them are mills where they process 20, 30 or 100 different blood samples any given day.  But don’t worry — they’ll be sure to testify at trial that they never make mistakes when they draw the blood, put it on the carousel to be tested, or process it in the mail room.  The manufacturer of the blood vials puts in powdery chemicals into the vial to preserve the blood specimen.  Again, challenging the amount or quality of the chemicals can be like howling at the moon in front of a jury.

A recent opinion from the U.S. Supreme Court, Bullcoming v. New Mexico, at the very least allows defendants the opportunity to cross examine the personnel that test the blood.  In addition, it contains a far more in depth discussion of blood draws and is worth the read if you are interested.  Prior to Bullcoming, prosecutor’s were able to simply proffer a sheet of paper with the blood result which is impossible to cross-examine and a spokesperson to talk about the underlying science.  Jokingly, it is not much different that calling the receptionist at the lab who just tells the jury that in her experience “everyone is guilty.”

A Must if You’re Challenging Either Breath or Blood

Challenging the blood or the breath test, though, can only be done when the jury is told over and over that it is impossible to show where some scientific test went wrong — only that the result can’t possibly be right.  Jurors tend to have the expectation that someone can go back into a lab or into a breath test machine, recreate the exact circumstances, and prove exactly where a test went wrong.  But a good DWI trial lawyer needs to debunk that expectation and demonstrate to the jury that you can tell, for example, that a clock is wrong not by examining it by the finest timekeeper in switzerland — but because the clock says it’s night time and the sun is out.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice on any topic, you should consult an attorney directly.  Contacting the attorney through this blog does not create an attorney-client privilege and communications in response to this article are not subject to the attorney-client privilege.

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Posted by Jeremy Rosenthal, Esq.

Proving Innocence

September 27, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

It’s extremely difficult to prove a negative.  That’s why our criminal courts don’t require it and the State always has the burden of proof.

A basic example I give jurors is to ask them prove they committed no traffic offenses on the way to jury duty that morning.  They very quickly get the point — other than their word, there is no way on Earth they can prove they didn’t run a red light, didn’t speed, or didn’t change lanes without signaling.

Jurors must be educated, though, and an experienced criminal trial attorney knows this.  Prosecutors over the yeas have developed subtle ways to undermine this point.  They’ll suggest to juries that the Defense has equal subpoena power and that the Defense has the right to call witnesses of their own.  I’m not sure what purpose it serves the prosecution to do this — other than to improperly shift the burden to the Defense.

There are some instances where Defendant’s should put on an innocence defense.  Testimony from the defendant isn’t legally required under the 5th Amendment, but an accused has the absolute right to testify in their own defense.  Testimony of credible witnesses may also help in an innocence defense.  Other than that, a thorough investigation of a case may reveal objective evidence which tend to be less refutable.

It is wrong to assume that because you have no evidence of innocence, or an innocence defense wouldn’t seem persuasive that the accused just plead guilty.  In a drunk driving charge, for instance, it usually (but not always) makes more logical sense to force the state to prove elements such as intoxication rather than try to show the jury how little a person drank before getting behind the wheel.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.