In the last Texas Bar Journal, Houston criminal defense attorney Gary Trichter advised holiday drinkers to refuse to provide a breath sample when asked for one by an officer. See

http://www.texasbar.com/globals/tbj/nov02/intro.asp

Today, I wrote a letter to the editor of the Texas Bar Journal, saying the following:

I feel compelled to comment on the recent article, "What's a Lawyer to Do?" In it, a Texas criminal defense lawyer directly advises other lawyers to tell people, during the holiday season, to violate the law.

Gary Trichter, who should disclose that he makes a very fancy living by representing people accused of driving while intoxicated, flippantly puts together a nonsensical explanation for why potentially drunk drivers should refuse to provide a breath sample to police upon request. That breath sample will reveal the level of intoxication and potentially acquit or convict the suspect.

What Trichter failed to say was that Texas law requires a suspect to provide a breath sample or be punished by a license suspension. He also failed to say that a jury may infer from such a refusal that a defendant was drunk.

While it is true that Texas law also recognizes the reality that a suspect may physically refuse to comply with a request for a breath test, there is no constitutional or other legally protected "right" involved. By refusing, the suspect essentially is obstructing justice and destroying reliable evidence. Some states make the refusal itself a crime. Perhaps it is time for Texas to join those states.

Furthermore, as the Texas Court of Criminal Appeals recently recognized in a written opinion, the Texas Legislature has found the breath testing technology to be reliable and such evidence must be admitted at trial, assuming the test was properly conducted.

No wonder that Texas continues to have a serious problem with innocent people being killed and maimed on Texas highways by drunk drivers. With advice like Trichter gives, we can expect the killing to continue.

I urge all prosecutors to write a letter to the editor of the Texas Bar Journal (remember, you are actually paying for the publication of that magazine and its contents).

Send your letters by e-mail to: tbj@texasbar.com

I received an e-mail from the Bar Journal today, acknowledging my letter and asking if they could publish it in the January or February issue. Has anyone else sent a letter?

I know Richard Alpert has fired one off.

Well, it seems drunk driving deaths are up:

http://www.chron.com/cs/CDA/ssistory.mpl/nation/1672444

I sent me letter by old fashioned mail and have gotten no response. Too much angry sarcasm perhaps?

Richard

I had no idea about the article. That just shows you how disgusted I am with "our" Texas State Bar. I became a prosecutor February 1, 1993 and shortly thereafter "our" Texas State Bar published an identical article. I was furious. Of course I did nothing. I could not believe that my bar dues were going to give "legal advice" to help people make my job tougher. I am glad you and others are writing letters and I promise there is one being sent as soon as I make this posting.

I emailed a letter to the Journal. No less than a public apology is deserved. It just goes to show you how the Bar overlooks us as members, even though we pay the same dues as other lawyers (who earn lots more!).

While we would all agree that people who drive while they are intoxicated present a clear and present danger on our nations highways and by-ways, I find our indignation amusing.

What I'm waiting for is the report to come out. You know the one; some enterprising soul wanting to make a newspaper name for himself. He studies a 10 year average of all the DWIs in Texas. He picks the ones that are committed by attorneys, and specifically prosecutors (DAs, CAs, ADAs, ACAs, Past and present Judges, etc...). How many of them refused the breath test, and is it a disproportionate number to the population as a whole. I'm going to hazard a guess as to his scientific conclusion -- YES.

You make a good point. An elected Texas DA was recently arrested for DWI in New Mexico. He not only refused a test, he demanded the presence of his lawyer and wanted a blood test. We all criticize the defendant who tries to manipulate the system (as the author of the Bar Journal article suggests) to make it appear he wanted to cooperate but didn't.

The difference is that in New Mexico, you can prosecute the refusal. Texas needs to have that option.

John, the real difference is the DA in question, though a prosecutor, could not now write the type letter you and others have sent in. The current law is hypocritical in that it gives the suspect the right deny access to the very thing often needed to prove his guilt. Schmerber was decided in 1966. Maybe its time Texas gave some serious thought to enforcement of its DWI laws. Assuming that would be a good thing.

By the way, our officers are repeatedly instructed (since they seem to have memory lapses) that as soon as the suspect refuses to provide a breath sample, they request permission to have blood drawn. That pretty well eliminates all the goofy arguments suggested by Trichter at trial. Of course, making it illegal to refuse to provide a breath sample will at least eliminate the ability of the defense attorney to provide the type advice proposed by Trichter (since an attorney cannot advise his client to engage in criminal conduct). But I just don't think that will be the silver bullet which is really needed (and permitted by the constitution).

[This message was edited by Martin Peterson on 12-15-02 at .]

Doesn't a blood test give the defendant a chance at delay that might mean the difference between .08 and something below .08, which is a big difference in light of Mata? I honestly don't know--my luck with DWI's is notoriously bad.

[This message was edited by John Rolater on 12-16-02 at .]

It would seem to follow logically that a request for blood might mean a delay but I'm not sure that would be true. With breath test delays stretching to over an hour, due to lines at the instrument and an indequate number of operators, a blood test might be faster. What is a common trend that I've noticed is that when the police agree to transport a defendant to the hospital he/she usually ends up refusing to cooperate once they arrive.

The reason we strongly suggest requesting a blood sample after refusal to blow is because juries sometimes question what inference (if any) to draw from that decision, but seem to us far less likely to excuse or explain away a refusal to provide blood. Furthermore, it is our belief that very few suspects will really agree to a blood test. But, if they do at least you will end up with some evidence of consumption if not intoxication. Remember that Mata may well exclude use of the blood test result as evidence of "normal use of faculties" by the defense as well.

And if the officer makes the trip to a nurse and consent is then withdrawn, I do not see how the suspect has helped himself. (Get the consent in writing). Furthermore, while it probably would not be the best way to handle a willing suspect, there is nothing that would require a trip to the hospital. The State could probably explain why it chose not to accept the defendant's offer of blood at least as well as Trichter explains why his client just couldn't bring himself to blow. In fact the admissibility of the offer of a blood test is arguably irrelevant and not exculpatory.

True enforcement of the DWI law will still require the ability to get the evidence (involuntarily) to ever be effective (even if refusal is also made a crime).

It is simply not feasible for Officer's in a large County, like mine, to offer every person who refuses a Breath Test the option of a Blood Test. In smaller jurisdictions where the number of arrests are smaller it might be a good option.
The other problem I have is that the suggestion that blood be offered seems to be based on the premise that these intoxicated drivers are refusing just because they don't trust the instrument? Furthermore, your average citizen would much rather blow into a tube then get a needle in their arm. (I witnessed the latter at a local pharmacy where flu shots were being given and I can tell you that the children, with the exception of my four year old son, handled the shot much better then the adults)

No, my suggestion operates on the assumption the suspect is refusing to provide a breath sample because he knows the likely result. That is why I would expect he will be even more prone to refuse to provide a blood sample as well. But if he would be foolish enough to agree to provide a blood sample (if asked for it), then is it really easier to go to trial with only a breath test refusal? I say that at least for felonies, a little time and expense invested by the police up front will prove to be well worth the effort in any size county. But, again, without the benefit of statistical studies, I think we would find only a very small percentage of those asked for blood would actually agree. Sure, there are explanations that can be offered for blood test refusals. I just think a blood test refusal will still carry more weight with the average juror, especially when coupled with a breath test refusal. And all it takes is one easy question to get that evidence.

In my experience it is definitely a point gained to take away the defense ability to paint the refusal to take a breath test as a refusal to trust in the intoxilyzer. Most jurors place far greater trust in a blood test than the "instrument." On the other hand, I've rarely had a juror say the refusal had much impact at all in deciding guilt.

How long until we have a portable blood-test instrument for DWI's like those used by diabetics? It would seem like a more useful device than the portable breath tests I've heard about.

I don't like having my blood drawn the old fashioned way after seeing a nurse mess up one on my wife. I wouldn't wish that on the typical DWI defendant. Intox. assault or higher, but not a class B.

I'm with John on this one. I must have seen the TV commercial a hundred times of how quickly and painlessly this instrument can take a sample of blood and tell your blood sugar content within seconds. Surely something analyzing the alcohol content can't be that far behind.

If the test could be truly made as nonintrusive as possible, you could make the testing manadatory if the officer had probable cause (based on totality of circumstances--observations and SFSTs). The results could be subject to a motion to suppress at a later date.

We could probably pay the development fees for such a device with the savings on extrapolation experts and other experts alone.

Robert DuBoise

Yeah, but I'm sure we'd suddenly see an epidemic of hemophilia claims among the DWI suspects. "You can't use that on me, I'll die!" Could we still use that refusal?

Well, the suspect's death or coma as a result of a needlestick could probably be pretty good evidence that he or she really was a hemophiliac (sp?)and provide an affirmative defense to the refusal portion of such a portable blood test offer.

But if we could get BB King and that awesome Lucille to do public service spots for the bld tests like he's doing now, I bet folks would line up to be stuck.