The Biggest Problem with Portable Breath Testing Devices

January 24, 2013

By Collin County Criminal Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Breath Test Devices in General

In DWI prosecution and defense there are several occasions where a person may give an optional or sometimes mandatory breath specimen.  Obviously at the arrest, a person is given the opportunity to provide a breath specimen.  After the arrest either while on bond or if after conviction — people are often required to submit to testing to start their car or carry a device which tests them periodically.

Only one machine in Texas is currently used and admissible to show a blood alcohol concentration (BAC).  This is the Intoxylizer 5000 which is almost always located at the police station in a special room where DWI arrestees are taken and read statutory warnings.  Any other testing device used in Texas is currently not considered scientifically accurate enough to do anything other than indicate the mere presence of alcohol in one’s system — yet those devices still report a numerical reading.

Other testing devices come in forms such as interlock ignition device (deep lung device or “DLD” for short), portable breath test devices carried by police officers for quick field tests (“PBT”) and portable devices carried around by someone on bond or probation and attached through a smart-phone like connection which requires breath samples throughout the day and reports the results to a probation officer.

Portable Breath Test Devices

Today’s discussion isn’t about the intoxylizer machine but about the other three devices which for today’s purposes I’ll just refer to as PBT technology.  This is because the ladder three devices discussed above operate on what is known as “fuel cell” technology.  Fuel cell technology is highly complex but what is important is (as companies who make and sell services for these devices will readily admit) is these devices are simply not very accurate and extremely susceptible to false-positives.

Common Flaws of PBT Devices

For starters, at least one company claims the accuracy of their device to have a 0.05 margin of error.  In other words, someone who blows a 0.08 might be as high as a 0.13 or as low as a 0.03.  This is the difference between being highly intoxicated and having one glass of wine for some.

The company asks people to wait at least 20 minutes to blow after eating, drinking, or smoking.  The company admits cologne, perfume, hand sanitizer, and toothpaste can result in false positives.  Users are warned not to wear sunglasses or take the test any place where large amounts of alcohol are being consumed.

Courts are admonished by the providing companies the company itself “does not warrant the veracity of readings as evidence.”

The Biggest Problem With Portable Breath Test Devices

The biggest problem isn’t the inaccuracy or fallibility of the testing.  The companies providing these services are honest in telling us what their devices can and can’t do.  The problem is probation officers and courts who treat these device readings as the gospel and mock victims of the short-comings of the technology.

Many probation officers use deliberate and careful discretion in evaluating the results of some of these devices — but unfortunately — some do not.

One thing you learn quickly as a criminal defense attorney is how almost impossible it is to prove a negative.  Failing a PBT test puts you in this position with some evaluators who don’t believe these machines are fallible.  There is virtually no explanation you can give in your defense a probation officer can’t accuse you (or someone testifying on your behalf) of lying about.

What you can do is show how fallible the device might be.  But this assumes the listener has an open mind.  This is the biggest problem with portable breath test devices.

Users are instructed to re-attempt a sample after 10, 20 or 30 minutes to show the first result was a false positive — or if the machine is completely on the fritz — to go to a 3rd party testing agency to prove you haven’t been drinking… Here’s hoping your not in a job interview, the Mojave Desert, or on an airplane!

In Closing

One last admonition from a service provider instructs a person in the event of repeated false positives to have themselves tested by a third party — I’m guessing like an independent test lab.  If that doesn’t get done, good luck telling your probation officer you were in the middle of a job interview, important meeting, or driving through the dessert.  They can see right through those excuses.

*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 other situation, you should contact an attorney directly.


Top 5 Tactics Prosecutors Use to Convict People at Trial

December 29, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

It’s obviously important to know your adversary, your adversaries tendencies, and how your adversary thinks.  Having been a prosecutor, it’s easy for me to place myself in their shoes to analyze how I’d have prosecuted the case against my client were the roles reversed.  Today I’ll discuss the Top 5 most common tactics we see in criminal prosecution I see on a regular basis.

Criminal prosecution is a difficult and noble profession.  The vast majority of prosecutors are honest, hard working and consciences.  The rules are (in some ways) much more restrictive against prosecutors who have extremely high expectations of honesty and integrity whereas a defense lawyer usually has an immediate uphill climb with juries.  While creativity is heralded in criminal defense — it is frowned upon in criminal prosecution (often unfairly).

Though I can easily nit-pick prosecutorial tactics and paint them as unfair… probably none of the techniques I describe below were created or have evolved from malicious intent, rather they were created by advocates who may not fully appreciate the harmful effect some of their tactics may have.

With that out of the way, let’s review the top 5 tactics prosecutors use in trial:

5.  “Liar Liar Pants on Fire”

Proffering a defense in a criminal trial is extremely difficult.  If you think about it, it’s almost impossible to do without a prosecutor being able to accuse your client, his friends, family or anyone testifying on their behalf of being a liar.  It’s really a built-in, automatic rebuttal when someone takes the stand to say “my friend wasn’t drunk we he left the bar” in a DWI trial, or “I was with my husband the time you say he was sexually assaulting the accuser,” or  “my wife bought that scarf three weeks ago from your store… she wasn’t shoplifting.”

What many jurors don’t realize is this built-in tactic is the exact reason we have the right to remain silent.

4.  Spinning a Lack of Evidence, Neutral Evidence, or Evidence of Innocence into Evidence of Guilt For the Jury.

One of the more frustrating techniques I come upon is where a prosecutor infers evidence which obviously points to innocence actually points to guilt.

A common example in DWI cases is where the person looks good on the video… prosecutors frequently argue this is evidence the person has a high tolerance for alcohol abuse.  It’s possible in some cases this argument may be true.  Then again, what they’re really saying the accused person is just guilt regardless of the evidence.  If they look drunk — they’re drunk and if they look sober — they’re drunk.

Another common example is in cases where there is very little evidence and only a select few witnesses.  Some prosecutors will actually argue this is because the crime was committed with expertise.  Prosecutors will argue, “The Defendant chose the time, place, and witnesses to the crime.”  In other words… if there is no evidence it’s not because the Defendant may be innocent — but because the defendant is good at getting away with things.

This tactic is a recipe for erroneous convictions.  Read the facts of cases from inmates who get exonerated after decades and you’ll see a continual pattern of virtually all evidence being subjective conjecture or horribly flawed eyewitness testimony.  No evidence means no evidence.

What is more upsetting about this tactic is it is really prohibited by the Texas Rules of Criminal Procedure Rule 2.03 (b) which does not allow any officer of the court to “impair the presumption of innocence.”  When evidence of innocence is being spun into evidence of guilt — I’d say that provision is being broken.

3.  Feigned Fairness

Prosecutors are taught to cover concepts such as the presumption of innocence, the defendant’s right not to testify, and the burden of proof being very high in their arguments and jury selection presentations.  The cursory discussion has the effect of making them seem even-handed to the jurors.

Like a politician who makes a broad statement he’s for one thing… then promptly does another, a prosecutor talks about the defendant’s important rights briefly and then pays them lip service for the rest of the trial.

Experience has taught me brushing over a defendant’s constitutional rights without any context or explanation is a sure way to have a jury ignore them.

2.  Shifting the Burden to the Defendant

It’s virtually impossible for a Defendant to prove they’re innocent of an accusation.  Think of how impossible it would be to prove you’re innocent of making a bad lane change if you were accused of it.  You’d have no video evidence or other documentary evidence supporting your case at all.  You’d only have your word — or the word of a passenger in your car.  That defense is a loser (see #5 above, Liar Liar…).

Prosecutors routinely shift the burden, though, in very tacit ways.  One common method is during jury selection prosecutors will explain Defendant has a right to discovery under the Texas Penal Code and the prosecutor has no such right.  Another is the Defendant has equal subpoena power.

Both statements are true and leave an impression of rules that are even or even turn the district attorney’s office into being victims of an unfair process.

These impressions are highly misleading, however.  First — the accused gets information because (as explained above), the prosecution is charged with proving an affirmative action.  Defendant is not required to prove a negative.  Second, Defendant’s “equal subpoena power” is extremely hollow considering the police and government have virtually unlimited investigatory resources compared with virtually none of the defense.

1.  Lowering the Burden of Proof

This is easily the No. 1 tactic prosecutors use to secure convictions.  Prosecutors are trained to lower the burden on themselves and many of them don’t even appreciate this is what they’re doing.

The burden of proof in a criminal case is “beyond a reasonable doubt.”  This phrase used to be defined for jurors as, “..the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.”  In 2000, the Texas Court of Criminal Appeals did away with this rule and allowed jurors to define it how they chose fit.

An extremely common example used by prosecutors — especially in DWI cases — is a likening the standard of proof beyond a reasonable doubt to an incomplete puzzle where you can still make out the over-all image (usually of a whale or a handgun).  The prosecutor explains there may be missing pieces, the jurors still don’t have a “reasonable doubt” as to the over-all picture.

Jurors find this explanation simple and highly persuasive but the puzzle is problematic.  It’s flawed assumption is proving a crime is a general proposition… instead of a specific proposition with fine details.  It lowers the burden of proof because you could remove over half the pieces to a picture of a giant whale and still be certain it’s a whale.  But what if instead of a puzzle a case is more like a math equation where we’re missing just one or two key numbers?  The remaining pieces of the equation become worthless because we can’t be sure of the outcome or how to get there.

*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 should be considered legal advice.  For legal advice about any case you should contact an attorney directly.


TxDOT Signs Bend Truth for Noble Cause

August 27, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

On a recent drive to Austin and back, I couldn’t help but notice about 10 or 15 Texas Department of Transportation electronic signs which flashed two sequential screens.  The first was “1785 Deaths This Year on Texas Roads” and the second was a reminder not to drink and drive.

Wow, I thought… I didn’t realize drunk driver’s caused about 250 deaths per month in Texas alone!  Then I started thinking this figure sounded a bit too high.  Then my lawyer brain started to kick in and I realized the TxDOT signs were sort of making a play on words… The signs didn’t actually SAY all 1785 were caused by DWI — they had their fingers crossed!

The Obvious

No one wants drunk drivers on our roads.  Losing a loved one on the highway is a terrible tragedy no one should experience regardless of whether it’s inattentive driving, road rage, texting or drunk driving.  Hopefully the TxDOT officials decision to publish the number of traffic related deaths will turn heads and in doing so make our highways a safer place to drive.  You can read some of the PR they got here and here.

The Rub

The signs leave the clear impression the 1785 tragic losses on the highway are ALL due to Driving While Intoxicated.  When you read the quote from TxDOT spokesman Mark Petit, he says “We think that pointing out the number of deaths that have occurred so far this year will make somebody think twice maybe about whether they should pick up that cell phone and text somebody, or whether they should buckle that seatbelt.”

But the signs don’t say, “Buckle Up” and they don’t say, “Don’t Text and Drive.”  Each sign I saw had the same sequence of traffic deaths followed by the warnings against drinking and driving.

Here’s Why It’s A Problem

It’s a problem because it leaves a false impression, over-exaggerates, and stokes the flames against a group of people that it’s already somewhat popular to pick on — DWI suspects.  TxDOT concedes traffic fatalities have declined 21% in roughly the past decade and Mr. Petit’s warning in the above quote is also clearly against distracted driving.

Think of how angry you would be if your husband, wife, son or daughter were on trial for Driving While Intoxicated and during the jury selection process, you hear extremely angry jurors who want to presume a suspect guilty and give them far harsher punishment — because they’re lead to believe DWI related deaths are approximately 300% worse than they actually are (in 2011, TxDOT reports 3,015 total highway deaths and 1,039 “involved” alcohol).

If there is harm in the Texas Department of Transportation also warning drivers to put down hand-held devices and to wear seat belts in conjunction with the traffic death statistics — I have a hard time seeing it.  Everyone wants safer roads.

*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 forum does not create an attorney-client relationship and communications sent through this forum are not privileged nor confidential.

 


What Happens After A DWI Arrest?

July 13, 2012

By Collin County Criminal Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I am frequently asked “what now” after someone is released from jail on a driving while intoxicated arrest.  Though the specific answer may vary depending on where in Texas you were arrested, here are some answers to common questions:

What is My Legal Status?

If you just got out of jail for a DWI or DUI arrest, then you are technically released on bond.  This means have conditions to live by to assure you appear in court (or in certain cases) do not endanger the public.  You will probably not be formally charged with DWI for several weeks or in some cases (usually where there is blood evidence) for several months.  The District Attorney’s office in your county will review the report and decide whether to file a case against you with a document known as an “information.”  In Collin County virtually every case where an officer makes an arrest ultimately gets filed.

What Happens Now?

A DWI is two cases in one.  There are the driver’s license suspension issues and then there are the criminal aspects.

For the driver’s license suspension portion, you must remember you have 15 days appeal any driver’s license suspension issued because of a breath test refusal or failure (score of 0.08 or greater) within 15 days of the arrest with the Texas Department of Public Safety.  These are highly technical proceedings which lawyers commonly handle.  If a voluntary blood specimen was given, then you have 20 days after you receive notice your blood was above 0.08 blood/alcohol concentration.

For the criminal side of the case, you can expect to appear in court for an announcement when the case is filed with the information.  This appearance is more of a work-session between your lawyer than the prosecutor than an actual appearance before a judge (though in some jurisdictions the judge may wish to proceed with technical matters that require you to visit with them).  It is the announcement where your lawyer will have some access to the police report (again, depending on the jurisdiction) and access to the video evidence in the case.

Ultimately, you and your attorney will decide whether you wish to plead guilty to the charges with a plea bargain — or plead not guilty and have a trial.  It is also possible the State may dismiss the case depending various other factors.

Is My Driver’s License Suspended Immediately?

No.  If you were given a document called a DIC-25, then you have a temporary driving permit valid for 40 days from the date of the arrest.  If you appeal the suspension, the temporary permit is valid until your administrative law review hearing (ALR) which could be several months later.  This is the case even if the officer confiscated your driver’s license.

Can I Get This Off My Record?

Yes.  The steps may be different in each unique case, but not guilty verdicts and expunctions are common for DUI and DWI cases.  You should visit with a lawyer directly about how to accomplish this in your case.

*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 should be considered legal advice.  For legal advice about any situation you should contact a lawyer directly.


What I Like About Defending DWI Cases Collin County

July 9, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 369-0577

Defending driving while intoxicated case presents a unique challenge to lawyers.  This is because long before entering the courtroom, you can detect a stiff headwind of resistance working against you which lasts the entire case.

You get the sense the legislature, lobbyists and victim advocacy groups, and even many jurors don’t stop to consider whether the police are right when they make an arrest.  Even the news media runs article after article about how if the courts and police were just meaner and tougher on these cases — they would somehow go away.  There is an unmistakable and heavy bias which reaches far beyond whether drunk driving is a problem — and assumes everyone suspected of DWI is guilty.

No one wants drunk drivers on the road.  Everyone’s heart breaks for victims of drunk drivers.  The vast majority of people respect and trust police which is one of the things that makes Collin County a great place to be.  But legislators, activist groups, and police are human.  By their very nature, groups with this degree of moral authority tend to make up the rules as they go along — and therein lies the potential for them to badly hurt innocent people in the name of the public good.

I enjoy the challenge of showing jurors that not everyone caught in the wide-cast-net of DWI is a drunk driver.  I enjoy showing the jury how the framers of the constitution knew the timeless attitudes of accusers, authority figures, and even society’s tendency to rush to judgment.  Most of all, I enjoy the challenge of winning cases where there is a steep up-hill climb with skeptical jurors, difficult police officers, and strict rules limiting our ability to defend the case.

Though I’m probably biased in favor of Collin County jurors, I enjoy trying cases in front of people that live in places like Allen, Plano, Frisco, McKinney and Richardson for the reason they are intelligent and open minded.  Without people even willing to listen — having a fair trial anywhere would be impossible.

*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 forum does not create an attorney-client relationship nor are any communications confidential or privileged.