8th Annual Lone Star DWI

Texas Criminal Defense Lawyers Association

Course Directors Deandra Grant and Mary Ann Espiritu

Texas Criminal Defense Lawyers Association

8TH ANNUAL LONE STAR DWI DWI DEFENSE & COVID Table of Contents

Speaker

Topic Complete Date of Seminar

Mary Ann Espiritu Mark Lassiter Brent Mayr Jessica Bernstein & Mykal Fox Mark Thiessen

Helping Jurors Understand Science Search Warrant Challenges After Crider Dry-Labbing and Other Lab Issues Attacking DWI Blood Results Story Telling in Closing

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

8TH ANNUAL LONE STAR DWI DWI DEFENSE & COVID SEMINAR INFORMATION Date Location Course Directors Total CLE Hours

January 22, 2021 Livestream Event Deandra Grant and Mary Ann Espiritu 6.75 Ethics: 0.0

Friday, January 22, 2021 Time

CLE

8:30 am

Daily CLE Hours: 6.75 Topic

Speaker

Opening Remarks

Deandra Grant and Mary Ann Espiritu

8:45 am

.75

Helping Jurors Understand Science

Mary Ann Espiritu

9:30 am

.75

Search Warrant Challenges After Crider

Mark Lassiter

10:15 am

Break

10:30 am

.75

Dry-Labbing and Other Lab Issues

Brent Mayr

11:15 am

.75

Blood Alcohol Analysis Made Easy

Amanda Culbertson

12:00 pm

Lunch Break

1:00 pm

.75

Jury Selection in a COVID World

Rick Flores

1:45 pm

.75

Attacking Blood

Jessica Bernstein and Mykal Fox

2:30 pm

Break

2:45 pm

.75

Easy Cop Cross

Phil Baker

3:30 pm

.75

COVID Implications for Breath Testing

Deandra Grant

4:15 pm

.75

Storytelling in Closing

Mark Thiessen

5:00 pm

Ethics: 0

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

8TH ANNUAL LONE STAR DWI DWI DEFENSE & COVID January 22, 2021

Topic: Helping Jurors Understand Science Speaker:

Mary Ann Espiritu Roadman & Espiritu Attorneys at Law 603 W. 12th Street Austin, TX 78701 (512)472-1113 Phone maryann@roadmanespiritu.com email www.roadmanespiritu.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Helping Jurors Understand Science Let’s face it. For many jurors, trials can be boring, dull and repetitive. This is particularly true in a DWI trial with a lot of scientific evidence. The State’s expert will usually use scientific jargon that most jurors will not understand. This lack of understanding is what could cause jurors to become bored and cease to pay attention. That does not bode well for your client’s right to a fair trial.

However, it not the jury’s fault that they do not understand scientific evidence. Most jurors really do want to understand the science. They want to make an informed decision, but can only make a decision based on what was presented to them in trial, i.e. jurors are prohibited from consulting “Dr. Google” during deliberations.

While it is the State’s burden to prove its case, it is you, the defense lawyer, who needs to explain the difficult scientific concepts to jurors in order to increase the chances of success in a DWI trial. There is no scientific concept too difficult to teach a jury if you use the right tools and techniques.

Teaching Starts in Voir Dire The first step in determining how to help your jury understand science is to find out what they already know and what they already believe. These beliefs can be uncovered during voir dire. Venirepersons come into the courtroom with preconceptions and effective defense lawyers will develop their trial themes with an understanding of how they already think about breath testing and blood testing.

“Tends to be accurate.”

This is a common belief of venirepersons when asked about both breath testing and blood testing. As such, the first step in helping jurors understand science starts in voir dire where the DWI lawyer must debunk this myth.

In trial, the State will assert a Blood Alcohol Concentration (BAC) purportedly derived from science. But what DWI lawyers know is that science is “show me” not “trust me” so what the jury needs to understand

is that they cannot simply accept the BAC presented to them. The State needs to also show the jury how it arrived at that BAC. Using an analogy is a good way to get this point across.

Example: “When you took algebra tests in school, could you just write down the final answer? No, the teacher would probably think you were just copying off your neighbor with just the final answer written.

They want you to show your work, show how you got that final answer. But not only do you have to show your work, but your work has to be accurate for the final answer to be correct.”

It’s the State’s Burden of Proof. Why Does the Defense Need to Explain the Science?

The State will show it’s work in the form of scientific testimony. In a breath test case, the scientific testimony will come from the Breath Test Supervisor. In a blood test case, the scientific testimony will come from the State’s Technician. This testimony will usually be dry, dull, and/or hard for most people to understand. Some jurors will tune out. Some jurors will nod off.

Of course, it is the State’s burden to prove its case beyond a reasonable doubt. Also inherent in that burden is the duty to explain the scientific concepts so that the jury can understand and make a rational determination. If the State did not explain the science to where it made sense to the jury, then that means that the State hasn’t proven anything. This is how the law works.

However, some jurors will take their lack of understanding the scientific testimony as proof that they should trust the State’s evidence. Testifying on the stand is an “expert” who uses scientific jargon and sounds very smart.

The defense lawyer needs a strong science story to have a chance at success. Storytelling is a way to engage the jurors and keep their interest. It also makes a difference if the defense lawyer explains the science easily and clearly. The defense could be viewed as more likeable and the defense’s interpretation of the evidence could be viewed by the jury as believable.

Tools Used in Making a Strong Science Story Use plain English. Explain scientific concepts with common words, not scientific terms.

The State’s Expert: “The eluant, also known as the mobile phase, is introduced from a gas cylinder and the rate of flow of the eluant through the column is carefully controlled to give the clearest separation of the components in the sample.”

Defense Lawyer: “Ms. Witness, you previously testified that the gas that carries the sample through the machine comes from a gas tank located on the side of the machine and that this gas needs to go in very evenly – not too fast or too much – so that the results of the blood test will be accurate.”

Use Visuals – photos, diagrams, animation, demonstrative evidence. Approximately 65% of the population prefer to learn visually.

Defense Lawyer: “Ms. Witness, you previously testified that the gas that carries the sample through the machine comes from a gas tank, in my diagram that would be this red object, located on the side of the machine, which in my diagram is depicted with this blue box, and that this gas needs to go in very evenly – not too fast or too much – so that the results of the blood test will be accurate.”

Make Visual Checklists or Bullet Point List. Again, scientific testimony is usually dry and boring. It is also very lengthy. Creating checklists or bullet points for the jury will make a scientific concept easier to

understand and in the event the jury is not allowed to take notes, the concept will be easier to remember with visual checklists.

Example: Testimony regarding how a gas chromatograph works can be very lengthy and hard for a jury to follow, much less remember. A visual bullet point list breaks down the process in five (5) clear, concise steps.

• • • • •

Carrier gas is introduced from a gas cylinder through inlet port.

The sample is injected into the carrier gas The gases of the sample separate out as they travel the column A detector senses and records them The data recorder attached to the machine draws a chromatogram

Conclusion We know that it is good trial strategy to connect with jurors and avoid alienating them. But in our eagerness to zealously defend our clients, sometimes we forget how our words or actions are received by jurors. It may be in our adversarial nature to match wits with the State’s expert and show off our own scientific knowledge that may equal or even surpass that of the witness. What we must consider is how this affects our connection with the jurors and ultimately perhaps the outcome of our trials. While connecting with the jury can obviously be done in voir dire, opening statement, and closing statement, bringing science to jurors at a level that they can understand allows us to implicitly connect with the jury by diagnosing their comprehensive needs and relating to them in a way that is most effective for them.

12/9/2020

ROADMAN & ESPIRITU ATTORNEYS AT LAW 603 W. 12th St. Austin, TX 78701 512.472.1113

Mary Ann Espiritu – Attorney at Law

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HELPING JURORS UNDERSTAND SCIENCE

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WHAT MUST DEFENSE PROVE? 3

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NOTHING!

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WHAT MUST GOVERNMENT PROVE? 5

EVERY ELEMENT OF THE OFFENSE THE DEFENDANT CLIENT

WHILE INTOXICATED

IN TRAVIS COUNTY

ON OR ABOUT A PARTICULAR DATE

WAS OPERATING A MOTOR VEHICLE

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WHILE INTOXICATED

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Burdens of Proof

Beyond a Reasonable Doubt Clear and Convincing Preponderance of the Evidence

Probable Cause Reasonable Suspicion No Proof

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WHY SHOULD WE HELP JURORS UNDERSTAND SCIENCE?

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SCIENCE IN VOIR DIRE Debunking the Myth “Science is Accurate”

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Tobacco Industry-Sponsored Research “no clinical evidence” “no substantial evidence” “no laboratory proof” “unresolved” “still open”

Nothing has been: “statistically proven”, “scientifically proven” “scientifically established” There is no: “scientific causality” “conclusive proof” “scientific proof”

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SCIENCE IN TESTIMONY State’s Expert

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State’s Expert

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*REMEMBER* • • • • •

Don’t use scientific terms Don’t try to match wits with the expert Use analogies Visual aids – pictures, diagrams Meet jurors where they are

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State’s Expert Cross-Examination Q: How often does the column need to be changed?

A: Every 40 batches Q: A:

Q: A:

When was the column changed in this case?

40 batches is preventative. It doesn’t need to be changed if it appears to be working correctly.

You don’t know when the column was last changed?

I don’t have that information with me today.

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Texas Criminal Defense Lawyers Association

8TH ANNUAL LONE STAR DWI DWI DEFENSE & COVID January 22, 2021

Topic: Search Warrant Challenges After Crider Speaker:

Mark Lassiter 3300 Oak Lawn Ste 700 Dallas, TX 75219 (214) 845-7007 Phone (214) 845-7006 Fax mark@lomtl.com email www.lomtl.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CRIMINAL DEFENSE

UNDERSTANDING “CRIDER” “STATE OBTAINED THE BLOOD SAMPLE BY WAY OF A MAGISTRATE'S DETERMINATION THAT PROBABLE CAUSE EXISTED TO JUSTIFY ITS SEIZURE—FOR THE EXPLICIT PURPOSE OF DETERMINING ITS EVIDENTIARY VALUE TO PROVE THE OFFENSE OF DRIVING WHILE INTOXICATED. THAT MAGISTRATE'S DETERMINATION WAS SUFFICIENT IN THIS CASE TO JUSTIFY THE CHEMICAL TESTING OF THE BLOOD. AND THIS IS SO, WE HOLD, EVEN IF THE WARRANT ITSELF DID NOT EXPRESSLY AUTHORIZE THE CHEMICAL TESTING ON ITS FACE.”

CRIDER V. STATE, 607 S.W.3D 305, 308 (TEX. CRIM. APP. 2020)

CONCURRING OPINION – 4 JUSTICES • THE COURT CONTINUES TO HOLD THAT THERE ARE TWO SEARCHES THAT TAKE PLACE WHEN IT

COMES TO BLOOD DRAWS IN A DWI CASE: FIRST, WHEN THE POLICE SEARCH THE DEFENDANT'S BODY AND SEIZE HIS BLOOD; AND SECOND, WHEN THE LAB TECHNICIAN ANALYZES THE CONTENTS OF THE BLOOD.

• APPELLANT RAISES SOME PERSUASIVE CONCERNS ABOUT IMPLYING AUTHORIZATION FOR A

SECOND SEARCH FROM A WARRANT THAT ONLY AUTHORIZES A SEIZURE. DEPENDING ON THE TYPE OF EVIDENCE AT ISSUE AND THE PROBABLE CAUSE SUPPORTING THE SEIZURE, IMPLYING AN AUTHORIZATION FOR A SEARCH OF SOMETHING ALREADY SEIZED COULD LEAD TO THE TYPE OF “GENERAL WARRANT” RUMMAGING APPELLANT WARNS US ABOUT.

REASONING FOR THE MAJORITIES RULING: • READING BOTH THE SEARCH WARRANT AND THE PROBABLE CAUSE AFFIDAVIT IN A COMMON-SENSE MANNER REVEALS THAT THE SEARCH OF APPELLANT'S BODY AND BLOOD FOR EVIDENCE OF INTOXICATION FALLS WITHIN THE SCOPE OF THE SEARCH WARRANT AND AFFIDAVIT

• THE AUTHORIZATION TO SEARCH WITHIN APPELLANT'S BODY FOR BLOOD EVIDENCE THAT HE COMMITTED THE OFFENSE OF DRIVING WHILE INTOXICATED NECESSARILY INCLUDES THE SEARCH OF APPELLANT'S BLOOD WITHIN HIS BODY

CONT. • READING THE SEARCH WARRANT AND THE AFFIDAVIT TO AUTHORIZE ONLY THE SEIZURE OF BLOOD, AND NOT THE EVIDENCE WITHIN THE BLOOD, THAT SHOWS APPELLANT COMMITTED THE OFFENSE APPLIES AN UNDULY TECHNICAL AND RESTRICTIVE READING OF THE SEARCH WARRANT AFFIDAVIT THAT FAILS TO ALLOW FOR ANY REASONABLE INFERENCES THAT THE ISSUING MAGISTRATE COULD HAVE MADE.

DISSENTING • THE WARRANT DOES NOT SAY ANYTHING ABOUT TESTING THE BLOOD. THE WARRANT COULD HAVE DIRECTED THE PHYSICIAN, REGISTERED NURSE, OR MEDICAL LABORATORY TECHNICIAN TO TEST THE BLOOD AND THEREAFTER DELIVER THE RESULTS OF THAT TEST TO THE LAW ENFORCEMENT OFFICER. OR THE WARRANT COULD HAVE INSTRUCTED THE LAW ENFORCEMENT OFFICER TO TAKE DELIVERY OF THE DRAWN BLOOD AND THEREAFTER BRING IT TO A FORENSIC LABORATORY FOR TESTING. THE WARRANT, HOWEVER, DID NEITHER OF THESE THINGS.

• THE QUESTION IS NOT WHETHER THERE WAS PROBABLE CAUSE FOR THE DRAW OR THE TEST. THE QUESTION IS WHETHER THE WARRANT AUTHORIZED THE TEST. IT DOES NOT.

DISSENTING CONT. • ONE COULD ARGUE THAT “COMMON SENSE” WOULD IMPLY THAT A WARRANT AUTHORIZING A BLOOD DRAW IN A DWI CASE ALSO AUTHORIZES TESTING THE BLOOD FOR BAC. BUT THE “COMMON SENSE” WE SPOKE OF IN LONG WAS RELATED TO THE READING OF THE WORDS ACTUALLY USED BY THE WARRANT

• WE DID NOT, IN LONG, USE THE PHRASE “COMMON SENSE” TO MEAN THAT THE CLEAR WORDS USED BY THE WARRANT CAN BE OVERRIDDEN BY A REVIEWING COURT'S OPINION OF WHAT THE WARRANT SHOULD HAVE SAID.

DISSENTING CONT. • A WARRANT THAT EXPRESSLY DIRECTS FOR: (1) APPELLANT TO BE CARRIED TO A PHYSICIAN, REGISTERED NURSE, OR MEDICAL LABORATORY TECHNICIAN; (2) THAT PHYSICIAN, REGISTERED NURSE, OR MEDICAL LABORATORY TECHNICIAN TO TAKE A SAMPLE OF APPELLANT'S BLOOD IN THE PRESENCE OF A LAW ENFORCEMENT OFFICER; AND (3) THEN DELIVER THE SAMPLE TO THE LAW ENFORCEMENT OFFICER DOES NOT IMPLICITLY DIRECT THE LAW ENFORCEMENT OFFICER TO TAKE THE SAMPLE TO A LABORATORY FOR TESTING.

• IT IS NOT “‘PROCRUSTEAN’ OR OVERLY TECHNICAL” TO READ THE ACTUAL WORDS USED IN THE WARRANT AS AUTHORIZING ONLY WHAT IT SAYS AND NO MORE. SEE LONG, 132 S.W.3D AT 448.

THE WORDS ARE CLEAR. ID. I DECLINE TO JOIN THE COURT'S OVERLY GENEROUS READING OF THE WARRANT, AND I RESPECTFULLY DISSENT.

CITING REFERENCES • •

STATE V. STATON, 599 S.W.3D 614, 617 (TEX. APP.—DALLAS 2020, NO PET.);

• • • • • •

SEE ALSO JACOBSON V. STATE, 603 S.W.3D 485, 487 (TEX. APP.—FORT WORTH 2020, NO PET.);

STATE V. BOCANEGRA, NO. 05-19-01148-CR, 2020 WL 3496353, AT *3 (TEX. APP.—DALLAS JUNE 29, 2020, NO PET.) (MEM. OP., NOT DESIGNATED FOR PUBLICATION);

HYLAND V. STATE, 595 S.W.3D 256, 257 (TEX. APP.—CORPUS CHRISTI–EDINBURG 2019, NO PET.) (OP. ON REMAND); STATE V. GIORDANO, 05-19-00926-CR, 2020 WL 6110815, AT *3 (TEX. APP.—DALLAS OCT. 16, 2020, NO PET. H.);

STATE V. HENRIQUEZ-CISNEROS, 05-19-01419-CR, 2020 WL 5868280, AT *1 (TEX. APP.—DALLAS OCT. 2, 2020, NO PET. H.); STATE V. JONES, 608 S.W.3D 262, 264 (TEX. APP.—DALLAS 2020, PET. FILED) AND MORE

WHATS MISSING FROM ”CRIDER” THERE IS NOTHING REGARDING THE 3-DAY WARRANT EXECUTION REQUIREMENT

BATTLE PLAN GOING FORWARD – PRACTICAL APPLICATION

•OBJECT TO THE ADMISSIBILITY OF THE BLOOD UNDER 18.07. THE COURT OF CRIMINAL APPEALS HAS NOT RULED ON THAT ISSUE

CHALLENGE #1 - PLAIN LANGUAGE • THE EXECUTION MUST OCCUR WITHIN THREE DAYS BECAUSE THE STATUTE DOES NOT HAVE ANY EXCEPTION TO EXTEND THAT DEADLINE.

• WHEN THE LANGUAGE OF A STATUTE IS PLAIN, THERE IS NO NEED TO ATTEMPT TO DECIPHER THE “PURPOSE” OR “CONTEXT” BEHIND THE STATUTE. IT IS SIMPLY THE RESPONSIBILITY OF THE TRIAL COURT TO FOLLOW THE STATUTE. BOYKIN V. STATE, 818 S.W.2D 782, 785 (TEX.CRIM.APP.,1991).

ART. 18.07. DAYS ALLOWED FOR WARRANT TO RUN

• (A) THE PERIOD ALLOWED FOR THE EXECUTION

OF A SEARCH WARRANT, EXCLUSIVE OF THE DAY OF ITS ISSUANCE AND OF THE DAY OF ITS EXECUTION, IS: (1) 15 WHOLE DAYS IF THE WARRANT IS ISSUED SOLELY TO SEARCH FOR AND SEIZE SPECIMENS FROM A SPECIFIC PERSON FOR DNA ANALYSIS AND COMPARISON, INCLUDING BLOOD AND SALIVA SAMPLES; (2) 10 WHOLE DAYS IF THE WARRANT IS ISSUED UNDER ARTICLE 18B.354; OR (3) THREE WHOLE DAYS IF THE WARRANT IS ISSUED FOR A PURPOSE OTHER THAN THAT DESCRIBED BY SUBDIVISION (1) OR (2).

•

3-DAY RULE

•

•

CHALLENGE #2 - OPPORTUNITY TO CHANGE • THE LEGISLATURE HAD THE OPPORTUNITY TO EXPAND AND DEFINE WHEN EXECUTION OCCURS IN BLOOD SEIZURE CASES, JUST AS IT DID FOR COMPUTER DATA. IT CHOSE NOT TO.

• THE LEGISLATURE HAS CHANGED AND AMENDED ARTICLE 18.07 MULTIPLE TIMES TO PROVIDE DIFFERENT EXECUTION TIME FRAMES FOR DIFFERENT TYPES OF WARRANT SEIZURES.

• THE LEGISLATURE HAS RECENTLY MADE CHANGES TO ARTICLE 18.07 IN 2011 AND DID NOT INCLUDE A DIFFERENT EXECUTION TIME FRAME OR DEFINITION OF WHEN EXECUTION OCCURS FOR BLOOD SEIZURES SUBJECT TO LATER ANALYSIS.

• (C) IF A WARRANT IS ISSUED TO SEARCH FOR AND SEIZE DATA OR INFORMATION CONTAINED IN OR ON A COMPUTER, DISK DRIVE, FLASH DRIVE, CELLULAR TELEPHONE, OR OTHER ELECTRONIC, COMMUNICATION, OR DATA STORAGE DEVICE, THE

18.07(C)

WARRANT IS CONSIDERED TO HAVE BEEN EXECUTED WITHIN THE TIME ALLOWED UNDER SUBSECTION (A) IF THE DEVICE WAS SEIZED BEFORE THE EXPIRATION OF THE TIME ALLOWED. NOTWITHSTANDING ANY OTHER LAW, ANY DATA OR INFORMATION CONTAINED IN OR ON A DEVICE SEIZED MAY BE RECOVERED AND ANALYZED AFTER THE EXPIRATION OF THE TIME ALLOWED UNDER SUBSECTION (A).

EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS • MEANS THE EXPRESSION OF ONE THING IMPLIES THE EXCLUSION OF THE OTHER. SEE WILLIAMS V. STATE, 965 S.W.2D 506, 507 (TEX.CRIM.APP. 1988).

• THE MAXIM IS NOT A RULE OF LAW BUT RATHER A TOOL FOR DISCERNING LEGISLATIVE INTENT.

PRACTICLE APPLICATION • APPLICABLE TO THESE CASES IS THE PLAIN LANGUAGE IN THE CODE OF CRIMINAL PROCEDURE REFERRING TO THE WHEN AN EXECUTION OCCURS FOR DATA OR INFORMATION CONTAINED ON A COMPUTER, DISK DRIVE, FLASH DRIVE, CELLULAR TELEPHONE, OR OTHER ELECTRONIC, COMMUNICATION, OR DATA STORAGE DEVICE. SEE, E.G., TEX.CODE CRIM. PROC. ART. 18.07

• ONLY FOR A COMPUTER, DISK DRIVE, FLASH DRIVE, CELLULAR TELEPHONE, OR OTHER ELECTRONIC,

COMMUNICATION, OR DATA STORAGE DEVICE IS THE EXECUTION CONSIDERED TO HAVE OCCURRED AT THE TIME OF SEIZURE.

• THE LEGISLATURE, IF WE USE THE MAXIM FOR LEGISLATIVE INTENT, CHOOSE NOT TO INCLUDE BLOOD TESTING IN ITS EXECUTION EXCEPTION

• THE STATE WANTS EVERY COURT TO EXTEND THAT SPECIFIC LANGUAGE TO APPLY TO ALL EXECUTIONS WHERE SOMETHING IS SEIZED AND HAS TO BE ANALYZED AT A LATER TIME.

3-DAY RULE DECISIONS • JONES CONTENDED THE STATE “SUBSTANTIALLY EXCEEDED” THE THREE-DAY TIME LIMIT FOR CONDUCTING TESTS ON THE BLOOD. SEE ID. JONES,

• THE COURT HELD JONES CITED NO AUTHORITY BEYOND THE STATUTE ITSELF TO SUPPORT THIS ARGUMENT

• THE COURT HELD THE STATUTE MERELY PROVIDES THE DEADLINES FOR SEIZING THE EVIDENCE, NOT ANALYZING IT.

STATE V. JONES, 608 S.W.3D 262, 264 (TEX. APP.—DALLAS 2020, PET. FILED)

3-DAY RULE DECISIONS • ARTICLE 18.07 MERELY PROVIDES THE DEADLINES FOR SEIZING THE EVIDENCE, NOT ANALYZING IT AND THAT THE EXECUTION OF THE WARRANT IS THE BLOOD DRAW, NOT THE SUBSEQUENT TESTING OR ANALYSIS OF THAT BLOOD. SEE STATE V. JONES, NO. 05-19-00927-CR, 2020 WL 3867201, AT *2 (TEX. APP.—DALLAS JULY 9, 2020, PET. FILED) (MEM. OP.).

• WE SPECIFICALLY DECLINE TO APPLY THE STATUTORY DEADLINE TO THE TESTING OR ANALYSIS OF BLOOD.

STATE V. HENDERSON, 05-19-01298-CR, 2020 WL 6536658, AT *1 (TEX. APP.—DALLAS NOV. 6, 2020, NO PET. H.)

3-DAY RULE DECISIONS • THE STATUTE, MERELY PROVIDES THE DEADLINES FOR SEIZING THE EVIDENCE, NOT ANALYZING IT.

• WE CONCLUDED IN JONES THAT THE EXECUTION OF THE WARRANT IS THE BLOOD DRAW, NOT THE TESTING AND/OR ANALYSIS OF THAT BLOOD. JONES, 2020 WL 3867201, AT *2.

• WE FURTHER NOTED IN JONES THAT STATON SAYS NOTHING ABOUT IMPOSING A DEADLINE FOR THE TESTING

AND/OR ANALYSIS OF BLOOD, MUCH LESS APPLYING THE STATUTORY DEADLINE OF ARTICLE 18.07(A)(3) TO THE TESTING AND/OR ANALYSIS OF THE BLOOD.

STATE V. GIORDANO, 05-19-00926-CR, 2020 WL 6110815, AT *3 (TEX. APP.—DALLAS OCT. 16, 2020, NO PET. H.)

3-DAY RULE DECISIONS • APPELLANT'S ISSUE REQUIRES US TO DETERMINE WHAT IT MEANS TO “EXECUTE” A SEARCH WARRANT

PURSUANT TO CHAPTER 18 OF THE CODE OF CRIMINAL PROCEDURE. THIS APPEARS TO BE AN ISSUE OF FIRST IMPRESSION.

• WE CONCLUDE THAT, BASED ON THE PLAIN LANGUAGE OF CHAPTER 18 OF THE CODE OF CRIMINAL PROCEDURE SET OUT ABOVE, THE THREE-DAY REQUIREMENT FOR THE EXECUTION OF A SEARCH WARRANT SETS THE LIMIT FOR THE ACTUAL SEARCH FOR AND SEIZURE OF THE EVIDENCE BY A PEACE OFFICER, NOT THE TIMING FOR ANY SUBSEQUENT FORENSIC ANALYSIS THAT MAY BE CONDUCTED ON THE SEIZED EVIDENCE.

RAMIREZ V. STATE, 14-19-00433-CR, 2020 WL 6278424, AT *4 (TEX. APP.—HOUSTON [14TH DIST.] OCT. 27, 2020, NO PET. H.)

WHAT TO DO •CONTINUE TO RAISE THE ISSUE OF EXECUTION OF THE BLOOD WARRANT TO POSSIBLY SUPPRESS THE BLOOD DEPENDING ON YOUR APPELLATE JURISDICTION OR TO PRESERVE ERROR

•CONTINUE TO RAISE MARTINEZ CLAIMS IN ORDER TO PRESERVE ERROR

BEST ARGUMENTS FOR BLOOD DRAW SUPPRESSION NOW CHALLENGE THE TECHNICAL ASPECTS OF THE DRAW USING A MOTION TO SUPPRESS

SCIENTIFIC EVIDENCE UNDER 702 • THE TRIAL COURT'S TASK IN ASSESSING ADMISSIBILITY UNDER RULE 702 “IS TO DETERMINE WHETHER THE SCIENTIFIC EVIDENCE IS SUFFICIENTLY RELIABLE AND RELEVANT TO HELP THE JURY IN REACHING ACCURATE RESULTS.”

• TO BE CONSIDERED RELIABLE, EVIDENCE BASED ON A SCIENTIFIC THEORY MUST SATISFY THREE CRITERIA:

ADMISSABILITY UNDER 702 •(1) THE UNDERLYING SCIENTIFIC THEORY MUST BE VALID; •(2) THE TECHNIQUE APPLYING THE THEORY MUST BE VALID; AND •(3) THE TECHNIQUE MUST HAVE BEEN PROPERLY APPLIED ON THE OCCASION IN QUESTION.

HARTMAN V. STATE, 946 S.W.2D 60, 62 (TEX.CRIM.APP.1997)

TECHNIQUE YOU CAN CHALLENGE

1. CLEANING OF SITE – USE OF ALCOHOL (STUDIES THAT SOME BETADINE HAS ALCOHOL) 2. NUMBER OF ATTEMPTS AT DRAW - AFTER 2 FAILED ATTEMPTS MUST GET ANOTHER NURSE 3. IN ACCORDANCE WITH ACCEPTED MEDICAL PROCEDURES – BLOOD DRAW PROTOCOLS 4. HANDLING OF THE TUBES – NO SHAKING OR ROUGH HANDLING 5. PROPER INVERSIONS – COMPLETE 180 DEGREES EACH TIME (NURSE OR POLICE) 6. TOURNIQUET TIME – NO MORE THAN ONE MINUTE 7. STORAGE OF SAMPLE – REFRIGERATED PROPERLY 8. PIPETTE CLEANING – WATER OR DISPOSABLE TIPS 9. TUBE RECALL – BD VACUTAINER NOTICE

Texas Criminal Defense Lawyers Association

8TH ANNUAL LONE STAR DWI DWI DEFENSE & COVID January 22, 2021

Topic: Dry-Labbing and Other Lab Issues Speaker:

Brent Mayr 5300 Memorial Dr Ste 750 Houston, TX 77007 (713) 808-9613 Phone (713) 808-9991 Fax bmayr@mayr-law.com email www.mayr-law.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

No. xxxx STATE OF TEXAS vs. xxxx

§ § § § §

IN THE xxx DISTRICT COURT OF xxx COUNTY, TEXAS

MOTION FOR DISCOVERY AND INSPECTION OF RECORDS RELATED TO THE BLOOD TESTING IN THIS CASE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW THE DEFENDANT in the above-styled and numbered cause, by and through the undersigned counsel, and moves this Court to allow and order the discovery set forth below. These requests are brought pursuant to: 1.

TEX. CODE CRIM. PRO ANN art. 39.14.

2.

TEX. TRANS. CODE § 724.018, which mandates the disclosure upon request of “full

information concerning the analysis of the specimen shall be made available to the person or the person's attorney.”

3.

TEX. R. EVID 705(a), which provides for the court to order pretrial disclosure of all facts

and data on which an expert will rely in rendering an opinion rather than waiting until cross examination when disclosure would materially delay continuation of trial.

4.

The Due Process Clause of the 14th Amendment of the United States Constitution and

Article I, §§ 13 and 19 of the Texas Constitution.

5.

The right to effective assistance of counsel, the right to be informed of the nature of the

accusation, the right of confrontation and cross-examination and the right to compulsory process as guaranteed by the Sixth Amendment of the United States Constitution and Article I, § 10 of the Texas Constitution. Without the items sought by this discovery, Defendant and his counsel cannot evaluate the validity of the test pretrial as an essential component of developing a trial strategy that would cast doubt on the reliability and believability of the testing in this case. Moreover, because Defendant must, when requested, identify the expert witnesses he will use at trial, pretrial information concerning the testing is

required to retain and identify pretrial the necessary expert witnesses that will be needed at trial.

Defendant seeks an order requiring the State's attorney and the State's agents to produce and permit examination, inspection and copying by Defendant , undersigned counsel, co-counsel, and experts employed by the Defendant, counsel or co-counsel of the following items.

Protocols, Methods, and Standard Operating Procedures 1.

The general laboratory protocol or standard operating procedures manual, by whatever name it is known.

2.

The protocol, method, and standard operating procedure, by whatever name it is known, specific to the test used in this case.

3.

The protocol for the calibration of the machine(s) used to test the sample in this case.

4.

The protocol for calibration of all equipment, including flasks, containers, pipettes, balances or other equipment used in testing the sample at issue in this case.

5.

The protocol for the preparation of all samples, solutions, reagents, mixtures, or other substances used as, as part of, or in relation to or as internal standards, controls, mixtures, or standards in the batch in which the sample in this case was run.

6.

The quality control protocol for all solutions, reagents, mixtures, or other substances used as, as part of, or in relation to internal standards, controls, mixtures, or standards in the batch in which the sample in this case was run.

Method Validation and Parameters 7.

Documentation evidencing validation of every method contained within the protocols applicable to the test in this case or used on the specimen in this case. This specifically includes methods and protocols used in relation to the test in this case, calibration of all the equipment used in relation to the test in this case, used with respect to the preparation of all solutions, reagents, mixtures, or other substances used as, as part of, or in relation to or as internal standards, controls, mixtures, or standards in the batch in which the sample in this case was run, and all protocols and methods contained in items 1 through 6 as it relates to the testing in this case.

8.

The raw electronic data files produced by the gas chromatograph (GC) used in this case (and generated or stored on attached software) from the sample in this case for all samples, internal standards, standards, mixtures, and controls run in the batch in which the sample in this case was run.

9.

Documentation evidencing and reflecting the machine settings and parameters, by whatever name(s) known, used by the GC used in this case (and generated or stored on attached software) on the sample in this case for all samples, internal standards, standards, mixtures, and controls run in the batch in which the sample in this case was run.

10.

Documentation evidencing and reflecting the integration settings, values, and parameters, by whatever name(s) known, used by the GC used in this case (and generated or stored on attached

software) on the sample in this case for all samples, internal standards, standards, mixtures, and controls run in the batch in which the sample in this case was run.

The Batch in This Case 11.

The chromatograms produced from all samples, internal standards, standards, mixtures, and controls run in the batch in which the sample in this case was run.

12.

Any logs, reports or spreadsheets, or other documents, in whatever form, reflecting the analytical results of all samples, internal standards, standards, mixtures, and controls run in the batch in which the sample in this case was run.

13.

All lab notes, case files, case reports, or bench notes, by whatever name(s) known, and in whatever form, as well as all documents contained in the testing folder specific to the test in this case. This includes a copy of the case or testing folder itself, if it contains any notations or entries. These documents should be produced as one group of items so that an independent analyst can know everything contained within the case folder.

14.

All chain of custody documents and records, whether maintained manually or electronically generated, specific to the specimen(s) in this case and to the case folder in this case.

15.

All documents, whether manually maintained or electronically recorded, reflecting, evidencing, or concerning, the identity of any person(s) involved in the acquisition, transportation, transmittal, storage, analysis, disposal, or other possession or manipulation of the specimen(s) from which the analysis in this case was performed.

16.

All documents, including emails, reflecting communications within the lab or between lab personnel and others outside the lab regarding the drafting or editing of any audit or quality control report or related to the analysis or specimens in this case.

17.

If the lab received more than one vial or container of blood or other substance, records reflecting which vial was tested in this case.

The Machine(s) in This Case 18.

Documents reflecting the brand and model number of the machine, and all attached or integrated components, that was used for testing in this case. For example, if this test was done by gas chromatography, then this requests the brand and model of the GC, the auto sampler, if one was used, the flame ionization detector, if one was used, and the mass spectrometer, if one was used -all of which would be considered attached or integrated components of the machine used to conduct the test.

19.

The operator's manual for whatever machine and attached or integrated components were used to test the sample in this case. For example, if this test was done by gas chromatography, then this requests the protocol or operator's manual of the GC, the auto sampler, if one was used, the flame ionization detector, if one was used, and the mass spectrometer, if one was used -- all of which would be considered attached or integrated components of the machine used to conduct the test.

20.

Linearity plots for the GC used in this case from three years prior to the test in this case to the present.

21.

All warranties for all machines, and all attached or integrated components, used for testing the sample or any standard or control used in the batch in which this sample was tested.

Calibration of the Machine 22.

All calibration results and chromatograms for calibrations on the machine on which the sample in this case was tested -- for 60 days before the test at issue until 60 days after the test at issue, or to the present if less than 60 days.

23.

All logs, reports, spreadsheets, or other documents, in whatever form, reflecting the calibration of all equipment including balances, flasks, containers, pipettes, or other equipment used in testing the sample at issue in this case.

24.

Records reflecting the calibration of weights on any balance or instrument related to or used in blood alcohol testing for three years before the test in this case to the present.

Quality Control and Assurance 25.

All logs, reports, spreadsheets, or other documents in whatever form, reflecting quality control and assurance testing of all equipment including balances, flasks, containers, pipettes, or other equipment used in testing the sample at issue in this case.

26.

All records reflecting internal testing or quality control testing of all substances and solutions, reagents, or mixtures used as, as part of, or in relation to samples, internal standards, controls, mixtures, or standards in the batch in which the sample in this case was run.

27.

If any solution used in any sample, internal standard, control, mixture, or standard in the batch in which the sample in this case was run was purchased from an outside supplier, any quality control certificate provided by the supplier or manufacturer with or applicable to such solution as well as all internal testing or quality control documentation applicable to such item.

28.

Documents reflecting the expiration date of all externally purchased solutions or reagents as well as all internally made solutions or reagents used in the batch in which the sample in this case was tested.

29.

All balance quality control records on any balance instrument related to or used in blood alcohol testing in relation to the sample in this case for three years before the test in this case to the present.

30.

All refrigeration logs, reports, or other documents in whatever form, for all refrigerated compartments in which the sample, internal standards, controls, mixtures, standards, and reagents used in or in relation to the analysis in this case were stored or kept at any time.

Proficiency Testing 31.

All proficiency testing results for the section of the laboratory testing the sample in this case as well as for the person who conducted the testing in this case -- both for the three years preceding the test and for any such testing since the testing in this case, including: A.

Any and all submission documents received from proficiency testing entities relating to

proficiency testing with respect to the analyst in this case.

B.

Any and all chromatograms and related documentation (including the calibration chromatograms and all other chromatograms in the batch of the samples comprising the proficiency testing) of the proficiency samples tested by the analyst in this case.

C.

Any and all internal documents, including memorandums, emails or other correspondence, relating to the full chain of custody (both before and after submission) and submission of the allegedly unknown proficiency samples to the analyst who tested the samples in this case.

D.

Any and all documents contained in the case file for the proficiency tests of the allegedly unknown proficiency samples analyzed by the analyst who tested the samples in this case.

E.

Any and all documents reflecting submission of the allegedly unknown proficiency samples analyzed by the analyst who tested the samples in this case to the entity conducting the proficiency testing.

F.

Any and all documents received from the entity conducting the proficiency testing with respect to results of the proficiency testing relating to the analyst who tested the samples in this case. This specifically includes the summary report of expected results for the proficiency testing (and the manufacturer’s information sheet) against which the proficiency test results are judged.

G.

Any and all documents received from the entity conducting the proficiency testing relating to the analyst who tested the samples in this case indicating, reflecting, or evidencing the range of results for all participants in the proficiency testing.

H.

To the extent that documents responsive to any prior portion of this order do not identify the analyst who tested the samples in this case, any and all documents identifying the analyst who tested the samples in this case and relating non-name identifiers to the name of the analyst in this case. This item specifically requires the production of any and all documents sufficient to allow the identification of the analyst in this case from any and all documents that simply list numbers or other non-name identifiers.

I.

Any and all documents relating to internal communications, in whatever form, relating to the results of the proficiency testing from or to the analyst in this case.

J.

Any and all documents, as set forth above, in whatever form, relating to retesting of proficiency samples related to the analyst who analyzed the samples in this case.

K.

Any and all documents reflecting preliminary beta testing of samples used for later proficiency testing with respect to proficiency testing within the scope of this order.

Maintenance and Repair Records 32.

All internally generated maintenance or repair records or logs for the machine and all attached or integrated components for the two years preceding the test in this case and since the test in this case.

33.

All documents, apart from those in the prior item, evidencing or concerning maintenance for or repair of the machine, and all attached or integrated components, by any outside repair facility or source -- for two years preceding the test in this case and at any time since the test in this case.

34.

All records, other than those responsive to the prior two items, evidencing or concerning the return of the machine to the manufacturer or supplier for maintenance or repair -- for two years before the testing in this case and at any time since the test in this case.

35.

Documents evidencing the purchase of parts to be used in the operation or maintenance of the machine, and all attached or integrated components, used in the testing in this case -- for two years before the test in this case and at any time since the test in this case.

Audits and Accreditation 36.

All documents reflecting lab accreditation (for forensic labs, this specifically includes, without limitation ASCLD and DPS accreditation) and all reports to or of, or communications to and from, any accrediting entity in the three years prior to the test in this case and at any time since the test in this case. This specifically requests not only the accreditation certificate, but also the initial evaluation and final report(s) generated as part of the accreditation process. The documents should include any accreditation in effect at the time of the test in this case as well as any accreditation subsequent to the time of the test in this case.

37.

Any and all documents in whatever form reflecting correspondence or communications between the lab and any accrediting entity with respect to accreditation or continuation or renewal of accreditation.

38.

All annual accreditation audit evaluations and reports prepared for ASCLD-LAB since the lab’s last complete accreditation.

39.

All reports of internal audits for the last three years or since the time of the test in this case of the section of the laboratory performing the test used in this case as well as the report of any overall lab audit that includes machines, components, chemicals, reagents, storage facilities, or anything else used in connection with the testing of the sample, internal standards, controls, mixtures, or standards in the batch in this test.

40.

All reports of external audits for the three years preceding the test in this case and at any time since the test in this case of the section of the laboratory performing the test used in this case as well as the report of any overall lab audit that includes machines, components, chemicals, storage facilities, or anything else used in connection with the testing of the sample, internal standard, mixtures, standards, and controls in the batch in this test.

Log Books and Records 41.

Log Book records for three years prior to the test in this case to the present for: A. B. C. D. E.

The GC log book, by whatever name known, reflecting all maintenance and repair.

The log books for all equipment ancillary to the GC (e.g., auto sampler, FID, etc.).

The balance log book for any balance used for any equipment used in blood alcohol testing.

Ethanol or other Standards or controls.

N-propanol or other internal standard.

F. G. H. I. J. K.

95% (or pure) ethanol solution.

All Stock solutions.

NaCl or other salts or substances used in sample preparation, Volatile Mixture standard Negative Controls Validation, verification, and use of all externally purchased solutions.

Other Lab Documents 42.

Any and all testimony evaluations for any person listed on chain of custody documents in this case.

43.

All Quality Action Plans for or regarding blood alcohol testing of or for any person listed on chain of custody documents in this case from three years prior to the test in this case to the present.

44.

Annual self assessment reports from three years prior to the test in this case to the present for the section of the lab testing the sample in this case.

45.

All deviation request forms regarding any and all aspects of blood alcohol testing from three years prior to the test in this case to the present.

46.

All Client complaints and client complaint logs regarding blood alcohol testing or persons involved in blood alcohol testing of the sample in this case from three years prior to the test in this case to the present.

47.

Client survey results regarding blood alcohol testing from three years prior to the test in this case to the present.

48.

Annual vault inspection reports and records from three years prior to the test in this case to the present for any vault or storage facility in which the sample in this case was stored.

49.

Regarding any person listed on chain of custody documents in this case: A.

Any and all training records.

B.

Employment application.

C.

Any and all Curriculums Vitae (CV’s) and resumes.

D.

Performance reviews for three years prior to the test in this case to the present.

50.

Laboratory Staff and Meeting Documentation related to blood alcohol testing for three years prior to the test in this case to the present.

51.

Critical Supply and Service List related to blood alcohol testing for three years prior to the test in this case to the present.

52.

Approved Vendor List related to blood alcohol testing including for the critical Supply and Services List for three years prior to the test in this case to the present.

Inspection 53.

An opportunity for the defense and defense experts to view, visually inspect, diagram and photographically record the GC and all ancillary equipment used to test the sample in this case as well as the area, and all immediately adjacent and adjoining areas, in which the machine(s) used in this case are kept. This specifically also includes all other electronic devices in the room, as well as adjoining (side, above or below) and nearby rooms (within approx. 100 feet) which may emit radio frequency interference, i.e., photocopying machines, radio transmitters, microwave ovens, computer terminals, etc.

In support of this Motion, Defendant will show: 1.

The matters requested are in the exclusive possession, custody and control of the State of

Texas by and through its agents, a law enforcement agency, or the prosecuting attorney's office, and the Defendant has no other way to obtain said information other than through this motion and an order from this court.

2.

The items requested are not privileged.

3.

The items requested are material and necessary for the preparation of the defense in this

4.

Absent all of the requested discovery, Defendant's rights under Article 39.14 of the Texas

case.

Code of Criminal Procedure, Article 1, Section 10 of the Texas Constitution, and the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Texas Transportation Code ยง 724.018 will be violated to his irreparable injury and thus, will deprive the Defendant of a fair trial.

5.

This Motion is made in good faith and not for delay.

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this motion be granted in its entirety.

Respectfully Submitted,

CERTIFICATE OF SERVICE I, the undersigned attorney, hereby certify that a true and correct copy of the above and foregoing Motion For Discovery And Inspection Of Records Related To The Blood Testing In This Case was forwarded to counsel for the State via Fax, hand delivery, and/or certified mail on .

________________________________

No. xxxx STATE OF TEXAS vs. xxxx

ยง ยง ยง ยง ยง

IN THE xxx DISTRICT COURT OF xxx COUNTY, TEXAS

ORDER Before the Court is the Defendant's Motion for Discovery. The Court is of the opinion that the motion is well taken and should be GRANTED. IT IS ORDERED that the [ ] produce to the Defendant, through his counsel, [ ], on or before 5 p.m. on the tenth day after the date of this order, as follows.

1.

The general laboratory protocol or standard operating procedures manual, by whatever name it is known.

GRANTED

2.

The protocol, method, and standard operating procedure, by whatever name it is known, specific to the test used in this case.

GRANTED

3.

DENIED

The protocol for the preparation of all samples, solutions, reagents, mixtures, or other substances used as, as part of, or in relation to or as internal standards, controls, mixtures, or standards in the batch in which the sample in this case was run.

GRANTED

6.

DENIED

The protocol for calibration of all equipment, including flasks, containers, pipettes, balances or other equipment used in testing the sample at issue in this case.

GRANTED

5.

DENIED

The protocol for the calibration of the machine(s) used to test the sample in this case.

GRANTED

4.

DENIED

DENIED

The quality control protocol for all solutions, reagents, mixtures, or other substances used as, as part of, or in relation to internal standards, controls, mixtures, or standards in the batch in which the sample in this case was run.

GRANTED

DENIED

7.

Documentation evidencing validation of every method contained within the protocols applicable to the test in this case or used on the specimen in this case. This specifically includes methods and protocols used in relation to the test in this case, calibration of all the equipment used in relation to the test in this case, used with respect to the preparation of all solutions, reagents, mixtures, or other substances used as, as part of, or in relation to or as internal standards, controls, mixtures, or standards in the batch in which the sample in this case was run, and all protocols and methods contained in items 1 through 6 as it relates to the testing in this case.

GRANTED

8.

The raw electronic data files produced by the gas chromatograph (GC )used in this case (and generated or stored on attached software) from the sample in this case for all samples, internal standards, standards, mixtures, and controls run in the batch in which the sample in this case was run.

GRANTED

9.

DENIED

Any logs, reports or spreadsheets, or other documents, in whatever form, reflecting the analytical results of all samples, internal standards, standards, mixtures, and controls run in the batch in which the sample in this case was run.

GRANTED

13.

DENIED

The chromatograms produced from all samples, internal standards, standards, mixtures, and controls run in the batch in which the sample in this case was run.

GRANTED

12.

DENIED

Documentation evidencing and reflecting the integration settings, values, and parameters, by whatever name(s) known, used by the GC used in this case (and generated or stored on attached software) on the sample in this case for all samples, internal standards, standards, mixtures, and controls run in the batch in which the sample in this case was run.

GRANTED

11.

DENIED

Documentation evidencing and reflecting the machine settings and parameters, by whatever name(s) known, used by the GC used in this case (and generated or stored on attached software) on the sample in this case for all samples, internal standards, standards, mixtures, and controls run in the batch in which the sample in this case was run.

GRANTED

10.

DENIED

DENIED

All lab notes, case files, case reports, or bench notes, by whatever name(s) known, and in whatever form, as well as all documents contained in the testing folder specific to the test in this case. This includes a copy of the case or testing folder itself, if it contains any notations or entries. These documents should be produced as one group of items so that an independent analyst can know everything contained within the case folder.

GRANTED 14.

All chain of custody documents and records, whether maintained manually or electronically generated, specific to the specimen(s) in this case and to the case folder in this case.

GRANTED

15.

DENIED

Linearity plots for the GC used in this case from three years prior to the test in this case to the present.

GRANTED

21.

DENIED

The operator's manual for whatever machine and attached or integrated components were used to test the sample in this case. For example, if this test was done by gas chromatography, then this requests the protocol or operator's manual of the GC, the auto sampler, if one was used, the flame ionization detector, if one was used, and the mass spectrometer, if one was used -- all of which would be considered attached or integrated components of the machine used to conduct the test.

GRANTED

20.

DENIED

Documents reflecting the brand and model number of the machine, and all attached or integrated components, that was used for testing in this case. For example, if this test was done by gas chromatography then this requests the brand and model of the GC, the auto sampler, if one was used, the flame ionization detector, if one was used, and the mass spectrometer, if one was used -- all of which would be considered attached or integrated components of the machine used to conduct the test.

GRANTED

19.

DENIED

If the lab received more than one vial or container of blood or other substance, records reflecting which vial was tested in this case.

GRANTED

18.

DENIED

All documents, including emails, reflecting communications within the lab or between lab personnel and others outside the lab regarding the drafting or editing of any audit or quality control report or related to the analysis or specimens in this case.

GRANTED

17.

DENIED

All documents, whether manually maintained or electronically recorded reflecting, evidencing, or concerning, the identity of any person(s) involved in the acquisition, transportation, transmittal, storage, analysis, disposal, or other possession or manipulation of the specimen(s) from which the analysis in this case was performed.

GRANTED

16.

DENIED

DENIED

All warranties for all machines, and all attached or integrated components, used for

testing the sample or any standard or control used in the batch in which this sample was tested.

GRANTED 22.

All calibration results and chromatograms for calibrations on the machine on which the sample in this case was tested -- for 60 days before the test at issue until 60 days after the test at issue, or to the present if less than 60 days.

GRANTED

23.

DENIED

Documents reflecting the expiration date of all externally purchased solutions or reagents as well as all internally made solutions or reagents used in the batch in which the sample in this case was tested.

GRANTED

29.

DENIED

If any solution used in any sample, internal standard, control, mixture, or standard in the batch in which the sample in this case was run was purchased from an outside supplier, any quality control certificate provided by the supplier or manufacturer with or applicable to such solution as well as all internal testing or quality control documentation applicable to such item.

GRANTED

28.

DENIED

All records reflecting internal testing or quality control testing of all substances and solutions, reagents, or mixtures used as, as part of, or in relation to samples, internal standards, controls, mixtures, or standards in the batch in which the sample in this case was run.

GRANTED

27.

DENIED

All logs, reports, spreadsheets, or other documents in whatever form, reflecting quality control and assurance testing of all equipment including balances, flasks, containers, pipettes, or other equipment used in testing the sample at issue in this case.

GRANTED

26.

DENIED

Records reflecting the calibration of weights on any balance or instrument related to or used in blood alcohol testing for three years before the test in this case to the present.

GRANTED

25.

DENIED

All logs, reports, spreadsheets, or other documents, in whatever form, reflecting the calibration of all equipment including balances, flasks, containers, pipettes, or other equipment used in testing the sample at issue in this case.

GRANTED

24.

DENIED

DENIED

All balance quality control records on any balance instrument related to or used in blood alcohol testing in relation to the sample in this case for three years before the test in this

case to the present.

GRANTED 30.

All refrigeration logs, reports, or other documents in whatever form, for all refrigerated compartments in which the sample, internal standards, controls, mixtures, standards, and reagents used in or in relation to the analysis in this case were stored or kept at any time.

GRANTED

31.

DENIED

DENIED

All proficiency testing results for the section of the laboratory testing the sample in this case as well as for the person who conducted the testing in this case -- both for the three years preceding the test and for any such testing since the testing in this case, including: A. Any and all submission documents received from proficiency testing entities relating to proficiency testing with respect to the analyst in this case.

B. Any and all chromatograms and related documentation (including the calibration chromatograms and all other chromatograms in the batch of the samples comprising the proficiency testing) of the proficiency samples tested by the analyst in this case.

C. Any and all internal documents, including memorandums, emails or other correspondence, relating to the full chain of custody (both before and after submission) and submission of the allegedly unknown proficiency samples to the analyst who tested the samples in this case.

D. Any and all documents contained in the case file for the proficiency tests of the allegedly unknown proficiency samples analyzed by the analyst who tested the samples in this case.

E. Any and all documents reflecting submission of the allegedly unknown proficiency samples analyzed by the analyst who tested the samples in this case to the entity conducting the proficiency testing.

F. Any and all documents received from the entity conducting the proficiency testing with respect to results of the proficiency testing relating to the analyst who tested the samples in this case. This specifically includes the summary report of expected results for the proficiency testing (and the manufacturer’s information sheet) against which the proficiency test results are judged.

G. Any and all documents received from the entity conducting the proficiency testing relating to the analyst who tested the samples in this case indicating, reflecting, or evidencing the range of results for all participants in the proficiency testing.

H. To the extent that documents responsive to any prior portion of this order do not identify the analyst who tested the samples in this case, any and all documents identifying the analyst who tested the samples in this case and relating non-name identifiers to the name of the analyst in this case. This item specifically requires the production of any and all documents sufficient to allow the identification of

the analyst in this case from any and all documents that simply list numbers or other non-name identifiers.

I.

Any and all documents relating to internal communications, in whatever form, relating to the results of the proficiency testing from or to the analyst in this case.

J.

Any and all documents, as set forth above, in whatever form, relating to retesting of proficiency samples related to the analyst who analyzed the samples in this case.

K. Any and all documents reflecting preliminary beta testing of samples used for later proficiency testing with respect to proficiency testing within the scope of this order.

GRANTED 32.

All internally generated maintenance or repair records or logs for the machine and all attached or integrated components for the two years preceding the test in this case and since the test in this case.

GRANTED

33.

DENIED

Documents evidencing the purchase of parts to be used in the operation or maintenance of the machine, and all attached or integrated components, used in the testing in this case -- for two years before the test in this case and at any time since the test in this case.

GRANTED

36.

DENIED

All records, other than those responsive to the prior two items, evidencing or concerning the return of the machine to the manufacturer or supplier for maintenance or repair -- for two years before the testing in this case and at any time since the test in this case.

GRANTED

35.

DENIED

All documents, apart from those in the prior item, evidencing or concerning maintenance for or repair of the machine, and all attached or integrated components, by any outside repair facility or source -- for two years preceding the test in this case and at any time since the test in this case.

GRANTED

34.

DENIED

DENIED

All documents reflecting lab accreditation (for forensic labs, this specifically includes, without limitation ASCLD and DPS accreditation) and all reports to or of, or communications to and from, any accrediting entity in the three years prior to the test in this case and at any time since the test in this case. This specifically requests not only the accreditation certificate, but also the initial evaluation and final report(s) generated as part of the accreditation process. The documents should include any accreditation in effect at the time of the test in this case as well as any accreditation subsequent to the time of the test in this case.

GRANTED

DENIED

37.

Any and all documents in whatever form reflecting correspondence or communications between the lab and any accrediting entity with respect to accreditation or continuation or renewal of accreditation.

GRANTED

38.

All annual accreditation audit evaluations and reports prepared for ASCLD-LAB since the lab’s last complete accreditation.

GRANTED

39.

DENIED

Log Book records for three years prior to the test in this case to the present for: A. B. C. D. E. F. G. H. I. J. K.

The GC log book, by whatever name known, reflecting all maintenance and repair.

The log books for all equipment ancillary to the GC (e.g., auto sampler, FID, etc.).

The balance log book for any balance used for any equipment used in blood alcohol testing.

Ethanol or other Standards or controls.

N-propanol or other internal standard.

95% (or pure) ethanol solution.

All Stock solutions.

NaCl or other salts or substances used in sample preparation, Volatile Mixture standard Negative Controls Validation, verification, and use of all externally purchased solutions.

GRANTED

42.

DENIED

All reports of external audits for the three years preceding the test in this case and at any time since the test in this case of the section of the laboratory performing the test used in this case as well as the report of any overall lab audit that includes machines, components, chemicals, storage facilities, or anything else used in connection with the testing of the sample, internal standard, mixtures, standards, and controls in the batch in this test.

GRANTED

41.

DENIED

All reports of internal audits for the last three years or since the time of the test in this case of the section of the laboratory performing the test used in this case as well as the report of any overall lab audit that includes machines, components, chemicals, reagents, storage facilities, or anything else used in connection with the testing of the sample, internal standards, controls, mixtures, or standards in the batch in this test.

GRANTED

40.

DENIED

DENIED

Any and all testimony evaluations for any person listed on chain of custody documents in this case.

GRANTED 43.

All Quality Action Plans for or regarding blood alcohol testing of or for any person listed on chain of custody documents in this case from three years prior to the test in this case to the present.

GRANTED

44.

DENIED

Regarding any person listed on chain of custody documents in this case: A.

Any and all training records.

B.

Employment application.

C.

Any and all Curriculums Vitae (CV's) and resumes.

D.

Performance reviews for three years prior to the test in this case to the present.

GRANTED

50.

DENIED

Annual vault inspection reports and records from three years prior to the test in this case to the present for any vault or storage facility in which the sample in this case was stored.

GRANTED

49.

DENIED

Client survey results regarding blood alcohol testing from three years prior to the test in this case to the present.

GRANTED

48.

DENIED

All Client complaints and client complaint logs regarding blood alcohol testing or persons involved in blood alcohol testing of the sample in this case from three years prior to the test in this case to the present.

GRANTED

47.

DENIED

All deviation request forms regarding any and all aspects of blood alcohol testing from three years prior to the test in this case to the present.

GRANTED

46.

DENIED

Annual self assessment reports from three years prior to the test in this case to the present for the section of the lab testing the sample in this case.

GRANTED

45.

DENIED

DENIED

Laboratory Staff and Meeting Documentation related to blood alcohol testing for three years prior to the test in this case to the present.

GRANTED

DENIED

51.

Critical Supply and Service List related to blood alcohol testing for three years prior to the test in this case to the present.

GRANTED

52.

Approved Vendor List related to blood alcohol testing including for the critical Supply and Services List for three years prior to the test in this case to the present.

GRANTED

53.

DENIED

DENIED

An opportunity for the defense and defense experts to view, visually inspect, diagram and photographically record the GC and all ancillary equipment used to test the sample in this case as well as the area, and all immediately adjacent and adjoining areas, in which the machine(s) used in this case are kept. This specifically also includes all other electronic devices in the room, as well as adjoining (side, above or below) and nearby rooms (within approx. 100 feet) which may emit radio frequency interference, i.e., photocopying machines, radio transmitters, microwave ovens, computer terminals, etc.

GRANTED

DENIED

It is further ORDERED that any evidence within the scope of the items granted above be provided by the State to defendant's attorney at his office, [ ], on or before 5 p.m. on the tenth day after the date of this order.

It is further ORDERED that this order is continuing and the State will immediately make available to the Defendant's attorney any subsequent discoverable matter within the scope of the above granted items within 48 hours of the time it learns of or obtains such discoverable matter.

It is further ORDERED that any items herein not produced in violation of this order shall be and are excluded from evidence in this case if offered by the State.

It is further ORDERED that testimony concerning the items not produced in violation of this order or the information contained in those items shall be and are excluded from evidence in this case if offered by the State.

It is further ORDERED that all orders herein for viewing, visual inspection, diagraming, and photographic recording are to occur during normal business hours at a mutually agreeable time, but in no event later than 10 business days after Defense counsel transmits this order to the law enforcement agency involved and specifically requests an agreeable time to view, visually inspect, diagram, and

photographically record the items permitted in this order.

It is further ORDERED that any law enforcement agency, or person or entity having a contract with such law enforcement agency, shall be allowed as a copy cost that amount, and only that amount, that would be allowable under the Texas Public Information Act for copying the documents required to be produced by this order.

Signed and entered this

day of ____________, 20_____.

JUDGE PRESIDING

Dry-Labbing and Intentional Misconduct within Crime Labs BRENT MAYR 8TH ANNUAL LONE STAR DWI

Dry-Labbing The act of supplying fictional yet plausible results in lieu of performing an assigned experiment

Deetrice Wallace and the Fake Intoxylyzer Maintenance Records

“Little Annie” aka “Superwoman”

DPS Analyst Jonathan Salvador

How to Catch ‘Em THE CASE OF ANA ROMERO AND THE EL PASO DPS CRIME LAB

Findings by TFSC 

DPS was unable to locate the data for the 28 cases that should have been generated from the re-analysis on March 12, 2014. There were no hard copy printouts of the data in the case files.

Findings by TFSC “The professional misconduct definition requires the Commission to establish a deliberate (i.e., intentional) act or omission before issuing a finding of misconduct. Without speaking with the Analyst, the Commission finds the evidence insufficient to reach a conclusion of professional misconduct. The investigative panel agrees with DPS’ ultimate conclusion that it is not possible to determine whether the Analyst re-used the February data intentionally or accidentally. However, the panel believes DPS’ original root cause analysis did not sufficiently consider this possibility, instead defaulting to the assumption that she must not have acted intentionally.”

Findings by TFSC “The investigative panel agrees with the complainant that the log showing the Analyst moving back and forth multiple times between February and March data could be an indicator she was attempting to reassure herself that using the February data would not affect the reported conclusions. In such a case, she could have run blanks for the 28 cases and discarded the data generated from those blank runs. This would have saved her the time and effort of having to realiquot blood for 28 cases in duplicate (56 vials). To be absolutely clear, the Commission is not stating this is what actually happened, but the possibility should not be dismissed out of hand. While the Commission endeavors to reach a clear conclusion regarding professional misconduct in all investigations, some factual scenarios simply do not allow for it.

This is one of those cases.�

Texas Criminal Defense Lawyers Association

8TH ANNUAL LONE STAR DWI DWI DEFENSE & COVID January 22, 2021

Topic: Attacking DWI Blood Results Speaker:

Jessica Bernstein & Mykal Fox jessicabernstein@atxcrimidefense.com email mykay@foxthelow.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

ATTACKING DWI BLOOD RESULTS PRESENTED BY MYKAL J. FOX & JESSICA BERNSTEIN JANUARY 22, 2021

HOSPITAL BLOOD SUBPOENAS & SERUM CONVERSION (EXAMPLES FROM ST. DAVID’S SOUTH, AUSTIN, TX)

SUBPOENA‐ING HOSPITAL RECORDS ◦“How to Not Get What You Don’t Want” ◦Collision? Medical release? Time... ◦Motions ◦Speedy trial, objection to cert. of analysis, 39.14 request, granted standing blood discovery order, subpoena lab supervisor, motion to suppress M

CONFRONTATION CLAUSE ISSUES

◦ Codification of Bullcoming—Art. 38.41 ◦ Burch & Branum ◦ Burch 401 S.W.3d 634 (CCA 2013) ◦ Branum, 535 S.W.3d 217 (Ft. Worth 2017) ◦ Paredes, 462 S.W.3d 510 (CCA 2015) OBJECT!!!

M

CCP ARTICLE 38.41 Sec. 1. A certificate of analysis that complies with this article is admissible in evidence on behalf of the state or the defendant to establish the results of a laboratory analysis of physical evidence conducted by or for a law enforcement agency without the necessity of the analyst personally appearing in court. …

Sec. 3. A certificate of analysis under this article must contain the following information certified under oath: (1) the names of the analyst and the laboratory employing the analyst; (2) a statement that the laboratory employing the analyst is accredited by a nationally recognized board or association that accredits crime laboratories; (3) a description of the analyst's educational background, training, and experience; (4) a statement that the analyst's duties of employment included the analysis of physical evidence for one or more law enforcement agencies; (5) a description of the tests or procedures conducted by the analyst; (6) a statement that the tests or procedures used were reliable and approved by the laboratory employing the analyst; and (7) the results of the analysis.

M

M

M

Discovery must be specific to your case…

• Docs need to correspond to date of arrest • To person who actually tested blood and with what machine • Compare medical docs that you get automatically with hospital discovery • Meaning narrative that says who drew blood not the person who tested blood • You are entitled to know who tested • St. David’s S. got rid of all data or not sure how to get it from 2016 or before • Got new machines in 2017 • Use Iron Mountain M

M

GC vs. Immunoassay Gas Chromatography

Enzymatic Immunoassay

Tests whole blood

Tests serum

Can measure different types of alcohol separately.

Cannot differentiate between types of alcohol (e.g. ethanol & isopropyl alcohol).

Utilizes internal control substance (propanol).

Does not utilize internal quality standard.

Testing takes 24‐48 hours.

Results ready in 20 minutes.

Direct measurement of alcohol (headspace content Measures alcohol via known relationship btwn. how proportional to liquid content). much NAD is needed to oxidize a known amount of alcohol.

Duplicated testing for each sample.

Only one measurement.

M

Issues with Enzymatic Immunoassay • Enzymatic Immunoassay lacks specificity to measure only ethanol • Lacks individual internal quality controls • Do not draw blood from same arm as IV • Chain of Custody • Refrigeration • No reliable conversion factor for serum to whole blood ‐Joseph Citron, Journal of Legal Nurse Consulting, Winter 2009 Vol 20, No. 1

M

WHAT TO LOOK FOR IN HOSPITAL BLOOD DISCOVERY

J

J

“Ethyl alcohol test results may be used in the diagnosis and treatment of alcohol intoxication and poisoning.”

J

Analytical Measurement Range

Analytical Measurement Range (AMR): 3‐300 mg/dL This is the range of analyte values that can be measured directly from the specimen without any dilution or pretreatment that is not part of the usual analytical process and is equivalent to the assay range.

Samples with results in excess of 300 mg/dL should be repeated on dilution.

J

HOSPITAL LAB REPORT

J

SERUM TO WHOLE BLOOD CONVERSION J

Serum is produced when whole blood is allowed to clot and centrifuged to separate out the solids. Plasma is produced by the prevention of clotting followed by centrifugation to separate out the solids.

J

CONVERSION GUIDE FROM HOSP. LAB REPORT

J

CASE LAW ON SERUM / WHOLE BLOOD • Navarro v. State, 469 S.W.3d 687 “The word ‘blood’ is not defined in the Penal Code, but the Court of Criminal Appeals has indicated that it can only mean whole blood.”

State’s expert used 1.16 conversion ratio but acknowledged that this was not “universally accepted throughout the scientific community,” and that range of accurate ratios can be “quite dramatic” depending on the person’s health & gender. High blood cell count (e.g. leukemia) could make serum/plasma level 50‐ 60% higher than whole blood.

• Bigon v. State, 252 S.W.3d 360 “It is a valid method to reduce serum‐blood results by 15‐18% when converting to a whole‐blood result, 6 but this percentage can be affected by an individual characteristics.”

J

MORE CASES… • Jessup v. state, mem. Op. No. 13‐02‐00024‐CR State’s expert used 1.16 conversion ratio • Morris v. state, 214 s.w.3d 159 State’s expert used 1.18 conversation ratio used • Palacios v. state, mem. Op. NO. 02‐09‐00332‐CR 1.17 conversation ratio

State’s Expert on Conversion is…

DPS Breath Test Tech. Supervisor “To help keep our blood alcohol chemists and toxicologists on the bench and working on the backlog, the DPS Breath Alcohol Laboratory Technical Supervisors will now handle hospital serum alcohol result interpretation.” Supervisor in Austin region uses 1.20 ratio.

J

WHAT DOES THE SCIENTIFIC LITERATURE SAY? Relation between serum and whole‐blood ethanol concentrations, Rainey: “Serum:whole‐blood alcohol concentration ratios were determined for 211 patients. The ratios ranged from 0.88 to 1.59 (median 1.15).”

J

“The exact ratio. . . is variable and depends on several factors, including hematocrit, erythrocyte water content, and plasma water content.* Use of an average ratio to convert a serum alcohol measurement to a whole‐blood alcohol value is inappropriate for most individuals. . .” ‐ Rainey *See e.g. The sodium, potassium, and water contents of red blood cells of healthy human adults. Beilin, Knight, Munro‐Faure, and Anderson

J

“The absence of a reliable conversion factor from serum to whole blood precludes the serum level as a forensic value.” ‐ Citron

J

DOES THIS PASS THE KELLY TEST? J

Kelly Before scientific evidence is admissible it must meet these reliability criteria: (1) underlying scientific theory must be valid (2) technique applying the theory must be valid (3) technique must have been properly applied on the occasion in question.

J

4TH AMENDMENT & DIRTY BLOOD DRAWS SCHMERBER V. CALIFORNIA, 384 U.S. 757 (1966) “[T]he test was performed in a reasonable manner. Petitioner's blood was taken by a physician in a hospital environment according to accepted medical practices . . . To tolerate searches under [other] conditions might be to invite an unjustified element of personal risk of infection and pain.”

J

Texas Courts have condoned: ‐ Insects in blood draw room; crawled on D (Zalman v. State) ‐ 13th COA said insect(s) didn’t crawl on the arm from which blood was drawn ‐ Cotton ball placed on table before touching D (Adkins v. State) ‐ Nurse touched nose, mouth, & hair, appellant’s leg, & straps on chair w/ gloved hands (Gambini v. State)

J

WHAT’S WRONG WITH THIS PICTURE?

J

SUPPLIES ON BIOHAZARD BIN!!

J

PARTIALLY UNWRAPPED BAND‐AID STUCK TO BIOHAZARD BIN

J

State v. Fikes, 585 S.W.3d 636 Phlebotomist R. Morton: ‐ Ran hands through hair w/ gloves on ‐ Used biohazard bin as work surface for supplies ‐ Gauze & band‐aid directly in contact w/ bin Defense witness testified: ‐ Using bin as work surface is unacceptable practice ‐ Blood pathogens could be on top of bin (e.g. Hep C, HIV); transference can occur ‐ Could possibly pose risk of infection or disease M

Fikes, cont’d.: Judge granted motion to suppress but Third COA reversed: “Fikes failed to meet his burden of showing that Morton’s actions were so egregious that they created an ‘unjustified element of personal risk of infection and pain’ that rose to the level of violating the Fourth Amendment.”

M

State v. Dao, 03‐19‐00574‐CR Travis Co. judge: “[S]uppression is the best way to persuade the State not to invite unjustified elements of personal risk of infection and pain into the lives of those people in custody.”

M

Dao, cont’d: 3rd COA: “[W]e conclude that Dao, like Fikes, has ‘failed to meet his burden of showing that Morton’s actions were so egregious that they created an “unjustified element of personal risk of infection and pain” that rose to the level of violating the Fourth Amendment.’ See id. What the evidence at the suppression hearing established—and what the trial court’s fact findings reflect—was a hypothetical risk to Dao based on mere possibilities[.]”

M

Does COVID‐19 require heightened standard of sanitariness?

M

‐ THE END – QUESTIONS? IDEAS? MYKAL@FOXTHELAW.COM JESSICA@ATXCRIMDEFENSE.COM

Texas Criminal Defense Lawyers Association

8TH ANNUAL LONE STAR DWI DWI DEFENSE & COVID January 22, 2021

Topic: Story Telling in Closing Speaker:

Mark Thiessen The Thiessen Law Firm 733 E. 12 ½ Street Houston, TX 77008 (713) 864-9000 Phone (832) 654-3058 Cell mark@thetexastrialattorney.com email www.thetexastrialattorney.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

The Thiessen Law Firm 733 E. 12 ½ Street Houston, Texas 77008 (713) 864-9000 cell (832) 654-3058 mark@thetexastrialattorney.com

- Gerry Spence



VILLAIN



EMPOWER THE JURY



RIGHTEOUS INDIGNATION

     

Theory: Rush to Judgment, Misunderstanding, Different, Doesn’t Add Up 4 Fathers STORYTELLING Swedish 3 Mere Presence DOES NOT EQUAL Psychoactive Trips: › ABC, 123, Red White and Blue › Innocent Man, Insufficient Evidence, Indisputable Conflict › Hard working, Hornet’s Nest, Half Hearted Evidence



Demonstrative Aids Burdens of Proof Chart (NCDD); Drinking Patterns; 3 Rules; BRD Comes From



Photographs 5 x 7s of scene; helicopter; Google Earth

  

Laser Level Alcohol Paper Colored sheets of paper; post it notes

    

Thermometer Intoxilyzer 5000 Mouth Piece Cars and Action Figures Square Peg/ Round Hole

 Presumption

of Innocence

 Burden

on the State

 Beyond

a Reasonable Doubt



Innocent Unless Proven Guilty



1----- 10



ONLY ONE PRESUMPTION



Compass takes you Home

 Label

this Man a Criminal

 They

Have to PROVE IT

 Villain??

 Not

that DWI is OK/ Police Are Bad

 In THIS  Follow A

case/ THESE facts the Law

Reasonable Doubt



NCDD Stair Chart

Beyond A  Reasonable  Doubt 



Presumption of Innocence

 Where

does Reasonable Doubt Come From?

› Evidence, › Mistakes in the Evidence, and › Lack of Evidence

 Go

Home and Tell Your Neighbor

 Don’t

sugar coat or skirt the bad facts

REASONABLE

DOUBT

› Yes! (nod) › The Stairway Chart › The Definition › RD is Quick! › The more you humm and haaa = RD!!!

I

need your help

 I’ve

been waiting for you for 18 months

 Call

by Names

 Haven’t

needed anything, I need your help now

Taxalyzer 5000EN  Doppler Radar  Happy Everyday Airlines  EKG  Thermometer  Mouthpiece  Ridiculous Number 

 Impossible

not to think of the ramification of your decision  Same decision to pull the plug  CRIM  Lasts forever  Worst Nightmare

BE PROUD OF YOUR VERDICT

 One

of You Fighting for Us  Don’t Give Up  Had Him for 18 Months  Send him Home/Family  Remember this Day Forever  Gonna Sit Down/ Argue for Us

Puzzle – gun, tiger, apple  Flag of Texas  (Post It Notes)  Don’t Pay Attention  Object  Attacking Defense Counsel 

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TCDLA continues to foster these relationships and develop additional affiliations.

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ABOUT TCDLA

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TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers.

New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code.

Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments.

With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form).

Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported.

The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission.

Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements.

Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure.

In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county.

As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process.

Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate.

The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study.

Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases.

While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases.

The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions.

To learn more about this research please visit the study website at http://texaswcl.tamu.edu.

WWW.TIDC.TEXAS.GOV

MARCH 2014

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Texas Criminal Defense Lawyers Educational Institute Make a Difference Support an Attorney The Texas Criminal Defense Lawyers Education Institute (TCDLEI) is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staff. Your generous tax-deductible contribution to the Texas Criminal Defense Lawyers Educational Institute can be applied in several ways to fund a variety of legal and educational services for our membership.

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I would like to designate this donation for use on these specific funds: q CHARLES BUTTS Law Student Scholarship in the amount of $_________ q Financial CLE SCHOLARSHIPS $___________ q For the COMANCHE CLUB in the amount of $_________ q F or _CHRISTINE S. CHENG MD MEMORIAL Asian-American Scholarship & Travel fund in the amount of $___________ q BERTHA MARTINEZ TRIAL COLLEGE Travel Scholarship in the amount of $___________ q KELLY PACE MEMORIAL NEW LAWYER TRAVEL FUND in the amount of $___________

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