The January 2003 issue of the Texas Bar Journal published the letters from prosecutors criticizing Gary Trichter's holiday drinking advice. Thanks to all the prosecutors who took the time to let him have it.

As a side note, I had breakfast with Kelley King, the managing editor of the Texas Bar Journal, after she contacted me about publishing my letter. I agreed to serve on the Board of Editors for the Bar Journal. So, now a prosecutor will be providing some review of the articles that get published in the Bar Journal.

IMO, Gary Trichter is the best DWI defense attorney in this State and maybe in the Country. He's proved it many times in many cases. He knows more about breath tests and their machinery then the DPS experts. The advice he is giving is the same advice everyone, prosecutors & defense attorneys alike, give their friends when talking about DWIs. As Brad said, Breath Test refusal has little effect on a jury, mainly because the jury doesn't believe in the breath test no matter what the Texas Legislature says. I know of at least one Federal judge and a number of DAs and ADAs stopped for DWI and none have ever taken the breath test whether they believed they were sober or not because THEY don't believe in the breath tests. DPS has added to this by trying to make folks believe that at .1 and now .08 a person is stumbling, dog drunk and that's not the case. Further, DPS officers are running and supervising the tests and juries look at this with a cautious eye. If you've got an officer that is well respected in the community then his testimony carries a lot more weight then a breath test. The reverse is also true. The blood test is believed by juries. If justice is to be done for both the community & defendant, breath tests should be done away with and blood tests made mandatory.
Hawk

Your post is so absurd and inaccurate that I've got to believe you meant it as a joke?!

No joke at all Mr. Alpert. What is inaccurate or absurd about what I said? Certainly not anywhere near as absurd as you questioning the reading ability of the Bar Journal, be it a joke or not. I'm speaking from experience as a prosecutor in 3 different counties and a defense attorney in one.
I've been a prosecutor over 20 years. Maybe your jurisdiction is different from mine and maybe not.
Please tell me the inaccuracies in what I said.
Hawk

Hawk: When I attended the DPS course in DWI Prosecution at the academy in Austin in May, 1998, it was clear to me that at least the DPS believes in the reliability of the Intoxilizer 5000 (and they conducted tests/demonstrations in front of my eyes to prove it).

I have never heard anyone say that a person with a .08 BAC would be stumbling around. In fact, that is the reason other detection methods (besides just a video) are called for. But the studies do seem to consistently indicate significant impairment in perception and motor skills and a consequent inability to drive as safely as we would like occurs at that level. That is the fact Trichter and others are so successful at hiding.

The fact that the arresting officer may also be the intoxilizer operator is sure to be pointed out by the defense, but doesn't usually mean much.

[This message was edited by Martin Peterson on 01-06-03 at .]

O.k. Hawk

Here are what I view as the inaccuracies in your last post:

1) I respect Gary Trichter and his accomplishments but you make him sound unbeatable and I have not heard that to be the case from my friends in Harris County. I do not believe that Trichter knows more about breath testing then the DPS experts (and the Intoxilyzer is an "scientific instrument" not a "machine"). I don't know what contact you have had with the DPS experts you malign. I have met and spoken with a number of them at conferences and training over the past decade and I find them to be well qualified. Perhaps you'd like to mention the names of those you feel are not?


2) The advice he gives is not the advice that I give my friends and family and I have never heard a prosecutor state that they advise family and friends to not give a sample because the instrument "doesn't work". It is because it does work that many intoxicated officers and attorneys refuse to give samples. Not only does the instrument work but "scientific" studies comparing breath and blood testing have repeatedly shown that the breath test results will be slightly lower than blood test.

3) Juries are very willing to convict on a breath test refusal alone. It happens all the time in my County. Over the last 8 years our conviction rate in BTR and BT cases has remained virtually the same (65% for jury trials). I have done training all over the State and I have not found the numbers in my County to be that different than numbers elsewhere.

4) Your comment about DPS trying to make people believe that .10 or .08 are stumbling dog drunk is the kind of silly defense atty rhetoric that has no connection to reality. The definition of intoxication has never had anything to do with someone being "fallng down drunk". Once again it is "science" that supports the lower per se number for intoxication. Most recently a study conducted at Texas A & M proved that a person's ability to drive a motor vehicle is "not normal" at levels as low as .04. By the way DPS didn't make that change, your legislature did. Our legislature believes that a person should have the normal use of all of their faculties when they operate a motor vehicle.

5) I do think making blood tests mandatory would be great but the cost of implementing such a program would be more than most Counties could afford.

One of us is out of step with the attitude of prosecutors who deal with these cases.

[This message was edited by Richard Alpert on 01-07-03 at .]

quote:

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Originally posted by John Bradley:
The January 2003 issue of the Texas Bar Journal published the letters from prosecutors criticizing Gary Trichter's holiday drinking advice. Thanks to all the prosecutors who took the time to let him have it.

As a side note, I had breakfast with Kelley King, the managing editor of the Texas Bar Journal, after she contacted me about publishing my letter. I agreed to serve on the Board of Editors for the Bar Journal. So, now a prosecutor will be providing some review of the articles that get published in the Bar Journal.

---

Congratulations, John. Now maybe you can get the Bar to take Trichter's bad advice off their website as well ...

Texas Bar Journal link

All the prosecutors I know trust the Intoxilyzer. In my experience, most jurors also trust the Intoxilyzer, and a refusal to submit to the test is viewed as significant evidence of intoxication.

And we right-thinking prosecutors and jurors are not alone. The Intoxilyzer is used by virtually all 50 state's DPS's, as well as many city P.D.s. Its used by police forces in Britain, Europe, and Australia, as well as the Royal Canadian Mounted Police (the same outfit that Sgt. Preston of the Yukon, and his Wonder Dog King belonged to). If you can't trust the Mounties, who can you trust?

It's also used by the U.S. Navy and the U.S. Air Force, and I believe the U.S. Army. Some nuclear power plants use the Intoxilyzer (but what would they know about chemistry and physics). At least one major rail road uses the Intoxilyzer, as do many companies where the sobriety of certain employees is vitally important.

I have never heard of any serious critisism of the Intoxilyzer. I have heard a lot of emotional Luddite nonsense from defense attorneys from time to time, who argue, "you just can't trust a machine which is only tested once a month, with something as important as your verdict." Yet every one of these attorneys will trust his life in an elevator, which is tested only once a year. And they daily trust their lives in autos, whose brakes have not been inspected in years. So I'm not so sure how sincere they really are.

No one really doubts that the intoxilyzer properly analyzes a breath sample. The reality is that no honest citizen likes to think her or she is capable of committing a crime. Yet, every time an honest citizen gets in a car and drives after having a few beers, that is exactly what that citizen is doing.

There are certain crimes that the upper and middle class citizens would like to think don't apply to them. Drinking and driving is one of them. So, they are willing to pay big bucks to a creative lawyer to make all sorts of arguments that the same citizen would find ludicrous if made at their office in another context.

Prosecutors know this because we spend a lot of time educating juries about those arguments and how they don't apply in a particular case. Now, that same jury might have one or two middle or upper class citizens who can imagine themselves in the same situation, so a few get away.

But it isn't because people have serious reservations about the intoxilyzer.

Congrats, John -- you just broke 700 posts. You probably know how Emmett Smith feels, sort of, but a little differently.

Or is it Emmitt? Sorry number 22, you're still my hero, even if I can't spell. Kind of like whoever started the "exectution" forum.

Hey, A.P., if I broke my posts into two like you do, I could have 1,400. But that would just cheapen the whole thing, wouldn't it?

Mr. Alpert,
First, I don't think Gary Trichter is unbeatable and he has been beaten. I don't even think Gary is the best Defense Attorney in the State. I feel Dick Deguerin is and I know he can be beat because
I've been there and done that. What I said was Gary, IMO, was the best DWI defense atty. in the State and maybe in the country. I said he had proven that in many cases. I've seen Gary in a number of cases and heard about him in a few others. On at least 2 occassions Gary made the intoxilyzer expert admit to fallibility of his machine or scientific instrument or little box or whatever you want to call it. I was at one of these trials and I don't recall the expert's name, but I'm sure if you contact Gary he'll let you know his name. I never said the DPS experts were not qualified. What I said was Trichter knows more about their machine then they do. That's my opinion based on the two occasions
I saw him cross-examine the DPS expert in a DWI case. He tore the guys to shreds and it was obvious he knew more about the machine then the guys from DPS. As I said above, I feel the officer carries a lot more weight with a jury then a breath test result. I've tried quite a few DWIs over the years and the only expert I ever used was Dowd Haver, I think that's his name, out of Beaumont. He did a good job IMO, however he was not up against a Gary Trichter. I only used him once because, as I've said before, the jurors in my area seem to believe a well respected officer before they believe breath test results.
As what you tell your friends Mr Alpert I have not a clue. I am a prosecutor, have been a long time and I have very little faith in the intoxilyzer. There are a few other prosecutors in East Texas that feel the same way or at least have said so to me. I have little faith in your "scientific" studies. "Scientific" ballistic
reports say certain 9mm rounds deliver the same amount of energy as a .45. I've been a cop before I was a prosecutor and know that in real life that's BS. However, even if what you say is true, the jurors in my jurisdiction don't believe it.
Please read your No. 3 again. Nobody, nowhere gets convicted on a breath test refusal alone. That's the dumbest statement I've ever heard. Officers testify as to why they pulled the person over. They testify to the tests they ran on the defendant. They testify to his blood shot eyes, etc., etc. Any defense attorney I've ever seen in a DWI case with a breath test refusal asks the jury if they understand the defendant has the right to refuse and if they would convict on that alone and I've never heard a juror say he would convict if the only evidence was a breath test refusal. They've all said the opposite. As to your number 4, what I have said is what myself, Joe Smith (now DA in Tyler County), Guy James Gray
(just retired DA in Jasper County)were told at a meeting in Lufkin, Texas with a DPS Lt. We laughed him out of the room. This was the stand DPS took until the videos starting showing a different story and its a few of those videos that have made the jurors in my jurisdictions doubt the intoxilyzer.
As to the blood tests, I think at least one person on this thread has mentioned a portable type blood test that is painless and could be given at the scene. Mr. Alpert you seem to like to quote this scientific study and that scientific study. Do you argue that to a jury? It may work in Fort Worth, but it doesn't work where I'm from. I've never tried to stay in step with anyone's attitude if I had first hand knowledge their attitude was wrong for what I was trying to accomplish in my jurisdiction. Mr. Alpert, the bottom line is you have not shown any inaccuracies on my part. At best you've shown we have different opinions. As to my Defense Bias, that is really funny. I intend to copy this and show it to the defense attornies in my county that whine so much about the plea offers we made to them.
One last thing Mr. Alpert, if you're conviction rate on the type DWIs we are talking about is only
65% as to jury trials I don't see that as anything to brag about. In fact I see that as pretty much proving my point.
Hawk

[This message was edited by Hawk on 01-07-03 at .]

Let's keep it respectful. We can all disagree about the qualities of an individual defense attorney or a type of evidence, but that really doesn't add much to the wisdom of the world, does it?

And focusing on the opinion of a particular prosecutor/defense attorney makes all this seem a little like schoolyard talk.

I think we can all agree that Gary Trichter is a lightening rod for DWI issues. I think we can all agree that DWI trials would be a lot less interesting without the intoxilyzer. Neither one is going away anytime soon.

Let's leave it at that.

Okay, not to completely change the subject, but I'm wondering why the folks over in Jasper County are more skeptical as to the reliability of the Intoxilyzer than the folks in Tarrant County, or here in Polk County. Goodness knows we're not exactly a bastion of technological enlightenment, and were barely 60 miles from Jasper County, but as a felony prosecutor, when I present Felony DWI's to my Grand Jury, the question I'm routinely asked is "did the Defendant blow?" Another question that is routinely asked in voir dire, in cases of BTR, is "why can't a suspect be forced to blow?"

To me, although I think the testimony of the officer is critical, it seems that jurors are wanting something more. As best I can tell, in many cases that "something more" is going to be some type of scientific or expert testimony, be it Intoxilyzer, blood testing, DNA testing, or fingerprint analysis. And I'm reasonably sure that attitude is a product of the O.J. trial, Dateline, the Discovery Channel, Court TV, and people watching too much Law and Order and CSI.

As far as D.P.S. or the Legislature trying to sell .08 as "knee walking drunk," all I can say is that I've seen too many videos where hard core alcoholics were above .20 and appeared to be relatively normal. That would seem to suggest that video evidence is much more unreliable than the Intoxilyzer.

I would tend to agree with one of John's earlier postings which suggested that the "there but for the grace of God go I" mentality on the part of some jurors is a whole lot bigger problem than any perception that the Intoxilyzer is unreliable. Of course, the claimed fallibility of the Intoxilyzer is a handy scapegoat and excuse for an acquittal to a juror that's sitting there thinking "THAT COULD HAVE BEEN ME!" The ability of Gary Trichter, and others of his ilk, to exploit that type of mentality on the part of some jurors is what makes them successful.

Lee,
I agree with most of what you say. Further, I have seen the same thing you have. People blowing up to and above .20 that could function as well or better then a person who was cold sober, but had only had 3 or 4 hours sleep the night before.
I have been asked the same questions you have by Grand Jurors, however I have found that most, though not all, grand jurors are state oriented. I've found that petit jurors are more middle of the road or less state oriented. I have been asked the same question on voir dire,"Why can't a suspect be forced to blow" although not routinely, however unfortunately, I never had one of these folks make it on the jury. Its been my experience that jurors want as much as they can get before they put someone in jail and rightfully so, however out of the 4 you've listed, its been my experience in Hardin ,Tyler, and Jasper County that jurors have much more faith in DNA, blood test, and finger prints then the intoxilyzer. The intoxilyzer is a useful tool in plea bargaining, but for the cases that actually go to trial, unless the count is pretty high, in my experience it has come down to the officer. In the three counties I've mentioned and a few others in deep East Texas that I have not mentioned,the elected prosecutors, including myself when I was an elected official, for the last 20 years, would plead a .10 breath test down to a lesser offense and now a .08. I think this shows the less than absolute faith we had and have in the intoxilyzer, although out of the group I feel I have more reservations about it, but at least two feel very much like I do. As to whether video evidence is less reliable then intoxilyzer evidence, you may be right and then again you may not. I disagree with you on that, however its not a strong disagreement. Be that as it may, I've only seen one prosecutor try that type of" believe my machine and what we say and not what you see" argument and he didn't last until the water got hot. Of course he's making much more money now doing divorces and civil cases so he's got no complaint.)) You and Mr. Bradley may be correct as to the perception you see of jurors as stated in your last paragraph and you may not be and it may be half one way and half the other, however I very much agree with you as to Defense Attorneys running with this with some success. The difference between Gary Trichter and most other DWI defense attorneys is Gary has, with great success, attacked the intoxilyzer and has, as Mr Bradley pointed out, made a fat living in doing so.
Hawk

This topic has evolved several times during its posting life. As a chief prosecutor and ex-deputy chief of misdemeanor in Harris County, I have to strongly concur with Alpert's statements.

Gary, a friend of mine, gave a strong opinion in his published letter and I am glad to see that Bradley has been added to the editorial board as a result. Gary's license plate on one of his cars reads something to the effect of "trixster." So, is it surprising that Gary would advocate against the intoxilyzer? Frankly the only people who advocate against the intoxilyzer are defense lawyers and their experts because it is their job. Always consider the source.

Our results in Harris County mirror those of Tarrant County and Gary's results mirror those of other skilled attorneys. I have seen NO indication that there is any significant distrust of the intoxilyzer from juries. Our conviction rate on all cases in Harris County is almost 96% and the jury conviction rate is about 65%. The reasons for that are new prosecutors, skilled defense attorneys, inexperienced officers, and defendants who are literally the neighbors and people next door. I have heard of many more jurors say we believed the machine, but we thought the defendant had suffered enough and didn't want to harm his / her future than those that have said we don't believe the intoxilyzer. That is not the problem and countless entities that utilize the instrument agree (especially those folks who were on airlines whose pilots were pulled after intoxilyzer results).

The real concern is people who prosecute DWI test cases, but have doubts about the science? Maybe the feelings of the people in Jasper are such as a result of a lack of education and proper support on the subject? I would be happy to have any prosecutor come to Harris County and participate in training and a ride along. Seeing the tests work and in action does it for most people with an open mind.

As for me, my advice is do not drink and drive while intoxicated because the intoxilyzer works.

It is surprising a person whose "alias" is "Hawk" is so short sighted on the realities of prosecuting DWI cases. I can't improve on what Warren said so I won't bother other than to say that the Tarrant County numbers mirror those in Harris County. After reading your comments from previous posts that people blowing up to and "above .20 that could function as well or better then a person who was cold sober" and the disturbing "I have little faith in your scientific studies", I am convinced that the readers of our respective posts will be able to accurately discern whose advice should be followed.

[This message was edited by Richard Alpert on 01-08-03 at .]

HAHAHAHAHAHAHAHA!!!!!!
Mr. Alpert,
I said a person cold sober AND having very little sleep. As far as advice everyone follows their own path, its a free country, however your statement that juries convict on breath test refusal alone is one thing I hope anyone reading this doesn't rely on because it just doesn't happen that way. Also "Hawk" or "Super-Hawk" is a nickname I got many years ago when I fought Full Contact Karate professionally. It has nothing to do with my legal career except some people know me better by my nickname then my real name.
Mr. Diepraam,
Gary Trichter is very close friend of mine which is the only thing that really got me into this thread. I saw him being attacked and jumped in. He's had the nickname "Trichster" before he became
a lawyer. He and I went to school together and he had it then. Gary advocates against the intoxilyzer because he has a better chance of winning his case if the breath test is refused. The same reason prosecutors advocate for the breath test is because those results, if over .08,
make their case easier.
As to coming to Houston and seeing the training, that is a kind offer. My boss, and myself have just retired, and the young lady that did most of the DWIs in our office left when we did. I don't think she ever lost a DWI case, nor has Guy James or myself. Almost all that we tried were breath refusal and we were fortunate enough to have excellent officers working those cases. Of course, we are a very small county and have nowhere near the volume that you do. I'll certainly pass your offer on to Mr. Walker, the new D.A.. Mr Walker has very little experience, however he is a hard worker and very willing to learn. You may be hearing from him in the future.
Further, I feel your advice to not drive and drink is excellent, whether the intoxilyzer works or not.
Hawk

On second thought, maybe we could all use a drink.