Simple Thoughts on the Reliability of the Breath Test

September 12, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Texas uses the Intoxylizer 5000 as its breath test machine.  Rather than discuss it in confusing and lengthy scientific concepts (which we’re happy to do in person), let’s discuss in general terms some if the problems associated with the machine.

Think of it as a scale in your bathroom that says you weigh anywhere from 50 to 170 lbs.  Not very helpful, is it?  This is for several compounding reasons.  First is the machine’s technology was created when the Atari video games were popular and Texas simply hasn’t found it cost-effective to upgrade.  Second is the machine piles assumption after assumption about the test-taker which may or may-not be true.

Also the machine – like any other mousetrap — can completely whiff on occasion.  The amount of ethyl alcohol it would take to score a false positive could fit on the tip of a pen as just one example.  The machine can be set off by GERD or gastro-intestinal reflux disease, can respond to environmental products used in the workplace, and has problems distinguishing diabetic shock from intoxication.

Again, we’re happy to discuss the science behind the Breath test in person… but understand just because the machine said it doesn’t mean it’s accurate!  It never hurts to scrutinize any test result.

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Posted by Jeremy Rosenthal, Esq.

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.

New DWI Law: Above a 0.15 is now a Class A Misdemeanor

November 13, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Drunk driving laws are a one-way road.  They’re getting tougher and unless and until politicians begin campaigning on being easier on this sort of thing, you can expect the laws to keep getting even tougher than they are now.

A law passed this past legislative term and now in effect is that it is now a Class A misdemeanor if your blood alcohol result is above a 0.15 at the time the test is taken (not when you were behind the wheel).

The law is yet another example of how the state punishes you for cooperating by taking the breath test.

Not only that, but what they’re also doing is making steeper punishment more arbitrary.  Think of it this way… if person A has been drinking steadily all night and gets behind the wheel at, let’s say, a 0.18 blood/ alcohol concentration — it’s possible he’s spared the enhanced punishment because by the time he takes the breath test 2 hours later, his blood alcohol level may be at a 0.14 and he won’t be punished under this new enhancement.  Now take person B who took 2 or 3 shots before getting in the car to drive 2 miles home… felt fine… but was pulled over.  Two hours later, person B’s blood may spike at o.15.  Person B’s conduct is punished more harshly than person A, but clearly the culpability is reversed.

Regardless of why the law may be unfair, here’s the net result — it will be more stigmatizing.  Legally the punishment increases from a class b to a class a misdemeanor, so there is always the legal possibility that someone may get punished worse (up to a year in jail instead of 180 days and up to a $4,000 fine instead of $2,000).  In reality, people typically don’t see anywhere near the max jail time or fine on a DWI regardless of the breath or blood test scores.

The arrest will simply look worse on someone’s record and gives people facing these charges even more incentive to fight them.

*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 on any matter you should contact an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

I Just Got Arrested for DWI. Is My Texas Driver’s License Still Valid?

September 18, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Yes.  If you have just been arrested and released for a DWI in Texas, then your Texas driver’s license will not be suspended for 40 days from the date of your arrest.

You should be given several documents during a driving while intoxicated arrest — usually two yellow carbon copies.  One is your statutory warning about the consequences of refusing or taking a breath or blood test (DIC-24) and the other is your temporary driving permit (DIC-25).

The DIC-25 states in the fine print, “This permit is valid for 40 days from the date of service shown below.  If you request a hearing, this permit will remain in effect until the administrative law judge makes a final decision in your case.”

English translation — you still have a drivers license.  If you appeal the suspension (you have 15 days to do this), then the DIC-25 is your driving permit until your appeal is ruled on by an administrative law judge.  If you do nothing, the yellow sheet is your driving permit for 40 days.  Either way, you are perfectly okay to drive if you have a Texas license.  At least for now.

Normally if you take the breath test and fail or if you refuse the breath test, the arresting officer confiscates your license on the spot. Again, this doesn’t mean you can’t drive.  You do, however, have to pay attention to the fine print.

If you take a blood test, then normally they don’t take your drivers license because they don’t know if you passed or failed the test.  In those instances, you have to check the mail for a letter from DPS indicating whether your blood result has triggered a possible suspension.  If it has, then you still have time to file your appeal.

If you’re in the situation where you were just arrested for driving under the influence within the past few days, then you’re still in a position to maximize your full options with regards to your driver’s license.  You can appeal the officer’s decision to ask you to take the breath test and you can get an occupational driver’s license in the event your license is ultimately suspended.

Unlike a fine wine, your options don’t get better with age.  So now is the time to get into decision mode.

*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 issue, you should consult an attorney directly.  Communicating to the attorney through this blog does not constitute an attorney client communication and nothing communicated herein is considered privileged.

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Posted by Jeremy Rosenthal, Esq.