If we could get officers to quit using the portible breath test gizmos, I am sure we'd have more Intoxilyzer tests. I'm amazed that officers get as many Intoxilyzer tests as they do, after giving the suspect a preview of what his test is likely to be.
I also think the warning could be improved, by writing it as a jury argument. It should state something like:
"The Intoxilyzer 5000 is used by many state police departments throughout the U.S., as well as many police agencies in Europe and elsewhere. It is even used by the Royal Canadian Mounted Police--the same outfit that Sgt. Preston of the Yukon and his Wonder Dog King belong to. It's results are considered highly accorate and reliable by the courts of every state where it is used. The Intoxilyzer 5000 is also used by airlines, railroads, the military, and nuclear powerplants to accurately monitor alcohol use. It is based on well established scientific principles. In Texas, all Intoxilyzer 5000s must be maintained and tested several times a year by qualified personnel before their results may be admitted into evidence in court. The results of this test may be introduced by the State or by you in your defense. If you refuse to take this test, the jury or judge who hears your case will be free to use that refusal as evidence of your intoxication."
Another way to strengthen a DWI case, without using a breath test, is to get officers to ask the suspect driver to rate his own level of intoxication on a 0--10 scale. When I prosecuted misdemeanors in Ft. Bend Co., we had the following instructions for officers interviewing DWIs on video:
"Listen very carefully. I am going to ask you to rate your own level of intoxication on a scale of 0 to 10. On this scale, 0 means you are completely sober, 1 means you have just a slight loss of your normal mental or physical abilities due to the ingestion of alcohol into your body, 2 means a little more of a loss, and so on up to 10, where you would be falling down drunk. Using that scale, how would you rate your level of intoxication right now? Using that same scale, how would you rate your level of intoxication when I stopped you?"
Most rated themselves a 2 at the time of the interview, and most rated their intoxication level a point higher when they were stopped. Very few said "0."
[This message was edited by Terry Breen on 03-18-04 at .]
We just lost a felony dwi refusal case to a jury. The officer did a so-so job and it was a case that is hard to justify dismissing. I guess it really doesn't mean much that the guy refused because he was intoxicated... The blood search warrant procedure is looking pretty enticing right about now. Rather than reinvent the wheel, could someone contact me who has the program "up and running?" 936-336-4609 or email@example.com Thanks.
Posts: 276 | Location: Liberty County, Texas | Registered: July 23, 2002
Gordon are you suggesting that readers of this forum might find themselves in need of a warning about taking breath tests? But I agree Terry, the reference to the RCMP probably wouldn't mean much to most Texas drunk drivers. I am finding it hard enough to drive safely these days with normal use of faculties, but I guess it will still be a while longer before the truth sets us free from having to guess about intoxilizers and refusals and extrapolations.
On another (but somewhat related note), I believe one of our juries was quite confused by the wording of the intoxication manslaughter statute. Since we now have DWI with child why not just DWI with death? Isn't it enough that the death or injury was caused by reason of the intoxication? What role does "accident or mistake" play in the equation?
wisdom, or some such - at least that's what they tell me; and yes, I, too, remember the tales of Sgt. Preston!
I am seriously considering making search warrant option available here. Between the PBTs warning the defendant that they are over the limit, the higher "surcharge" for a high test, and the general perception that a refusal can be beaten, I need an alternative.
I feel that there has been a decline in breath tests with the advent of the PBT. You can't get much good out of it's results at trial, the driver knows he flunked it (or he probably wouldn't have been arrested) and feels there is no use to flunk another one at the station. They're great for underage offenses where the prescence of alcohol is all that's required but they don't help much and may hinder us on dwi's.
Posts: 1 | Location: Midland, tx. usa | Registered: July 02, 2004
Copies are on the way. I cannot take credit for these forms. While I did modify them slightly,by adding the boxes to be checked for the failure of each element of the FST's(merely for the sake of saving time) Jeremy Fowler from Deaf Smith County provided them to me in the first place. Thanks Jeremy! Philip, there was a digit missing from your fax number.
In reviewing the forms sent, I noticed there was a missing blank in the search warrant for the suspect's name before the suspect's physical description. Sorry for the ommission. I'm also in the process of getting this program up and running and still working out all the kinks.
I have brought the concerns expressed in this thread as well as the thread regarding obtaining witness statements to the attention of Major David Baker here at DPS HQ. Major Baker is the main Highway Patrol liason for enforcement matters. The advice given by a prosecutor to start with the local sergeant and work up is good advice. If a trooper is not completing his investigation by obtaining witness statements, etc., call his supervisor. If you still can't get a response, call his Lieutenant or Captain. If you need to know who that is and the number, you can get that from the Sergeant or by calling the main HP office here at headquarters (512-424-2000). There is no policy against using evidentiary search warrants to obtain blood specimens. If you are implementing this in your county as they have in Deaf Smith and couple of other counties, have a talk with your sergeant concerning the parameters, etc. If you need specific help, you can contact me at 512-424-2345. If you have no response and you have tried up through the regional commander, give Major Baker a call at 512-424-2000 x 2115.
Janette Ansolabehere Senior Assistant General Counsel Texas Department of Public Safety
Posts: 674 | Location: Austin, Texas, United States | Registered: March 28, 2001
I don't mind saying that both DPS sgts. in my three county district, Sgt. Mark Helton and Sgt. Bill Browning, were both extremely receptive and helpful in implementing my blood search warrant program. I have found DPS to be more receptive to it than the local agencies, probably because the troopers have been getting blood in manslaughter cases for a long time and know that it's really not the big deal it seems to be if you have not done it before. I agree that this is the first place to start if you have a problem.
Posts: 283 | Location: Montague, Texas, USA | Registered: January 26, 2001