15th Annual DWI Defense Seminar

DWI DEFENSE SEMINAR SEMINAR INFORMATION Date Location Course Director Total CLE Hours

May 6, 2022 Sheraton Arlington | 1500 Convention Center Drive, Arlington, TX, 76011 Lawrence Boyd, David Burrows and Frank Sellers 7.0

Ethics: 0

Friday, May 6, 2022 Time

CLE

7:45 am

Daily CLE Hours: 7.0 Ethics: 0

Topic

Speaker

Registration and Continental Breakfast

8:30 am

.50

Opening Remarks and Case Law Update

Lawrence Boyd

9:00 am

1.0

Blood Discovery: Obtaining it, Evaluating it, and Using it at Trial

Nnamdi Ekeh

10:00 am

.75

10:45 am 11:00 am

Cross Exam of the Arresting Officer-From ALR to Acquittal

Frank Sellers

Break .75

11:45 am

Intoxication Manslaughter Defense

Michael Smith & Deric Walpole

Lunch Provided

12:45 pm

.75

The Drug Aspect of a DWI

Sean Darvishi

1:30 pm

.75

Article 38.23 Defenses at Trial

Troy McKinney

2:15 pm 2:30 pm

Break .75

3:15 pm

The Defense of Extrapolation

Matthew Peacock

Break

3:30 pm

1.0

Panel Discussion: Jury Charges in DWI Cases Voir Dire, and Cross Examination

Hon. Charles Vanover, & Hon. Carey Walker, Hon. Audrey Moorehead

4:30 pm

.75

Voir Dire Reflective Questioning

David Burrows

5:15 pm

Adjourn

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

Texas Criminal Defense Lawyers Association

15th Annual DWI Defense Seminar Table of Contents

Speaker

Topic Friday, May 6, 2022

Larry Boyd Frank Sellers Michael Smith & Deric Walpole Sean Darvishi Matthew Peacock David Burrows

Case Law Update Cross Exam of the Arresting Officer-From ALR to Acquittal Intoxication Manslaughter Defense The Drug Aspect of a DWI The Defense of Extrapolation Voir Dire Reflective Questioning

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

Texas Criminal Defense Lawyers Association

DWI Defense Seminar May 6, 2022

Topic: Case Law Update Speaker:

Larry Boyd 4303 N Central Expy Dallas, TX 75205-5597 (214) 691-5630 Phone (214) 696-0867 Fax lawrencegboyd@hotmail.com email

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

Texas Criminal Defense Lawyers Association

DWI Defense Seminar May 6, 2022

Topic: Cross Exam of the Arresting Officer-From ALR to Acquittal Speaker:

Frank Sellers 1701 River Run Ste 801 Fort Worth, TX 76107-6498 (817) 928-4222 Phone (817)385-6715 Fax frank@westfallsellers.com email

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

SAMPLE CROSS EXAMINATION OF DWI ARRESTING OFFICER Frank Sellers Westfall Sellers frank@westfallsellers.com 817-928-4222 We can agree you went to the Police Academy to learn how to be a police officer • Taught traffic laws • Taught NHTSA manual • Which is where you learned DWI Investigation?

• And How to write police reports?

Official Police Report • It was stressed to you to be complete?

• Many cases do not get to trial for some time after your involvement?

• Therefore, the report must be complete so you can testify to all the relevant facts?

• You were also trained to be accurate in the report?

• Again, accuracy is necessary so you can give testimony at a later date and not have to rely purely on memory?

• It may seem obvious, but you were also trained to be truthful in the report?

• In this case did you make a report?

• Was it complete?

• Accurate?

• Truthful?

• Is there anything in your complete, accurate, truthful report that is not complete, accurate or truthful?

• So we can assume it is a full report?

• Officer, you are trained to record all important facts close in time to the event?

• You are taught to take notes?

• And to write a report based on those notes when the events are freshest in your mind?

• You reviewed your report before you signed and submitted it for review to your supervisor?

• You used your report that you made close in time to the events to refresh your recollection prior to coming here to court to testify?

• You have had many other cases since this one and obviously cannot remember ever fact of every case without using your report?

• In fact, one of the first things you did after you received your subpoena to testify was pull your report and review it?

• Officer, do you remember when the prosecutor was asking you questions earlier and your memory of the facts was so insufficient that you needed to refer to your notes several times to find the answers he was looking for? Do you recall that?

• Is that what you have there in front of you?

•

And at some point you gave a copy of that material or discussed some things in it with the prosecutor, correct?

Why Reports are Important • Many cases — if not most cases — result in plea bargains • When people plead guilty or no contest, it is primarily based on what you wrote in your report?

• You are usually not present when a person pleads guilty or no contest?

• But if you do not put enough incriminating things in your report, a case may never be filed in the first place?

• Or a case could be dismissed?

• You wouldn’t want that to happen to you, would you?

• You want your paperwork to be pretty strong, right?

• And you know that an accused person who gives up and pleads guilty based on what you put in your report will never be able to raise questions or to dispute anything you wrote in your report?

• I think you agreed that most cases based on arrests you made end up in guilty pleas?

• That means that most of your reports go unchallenged?

• So really you can put in a report whatever you want without much fear of contradiction, right?

• And if an officer gets a little sloppy, tells a few white lies, or exaggerates a little, no one really ever questions that • Those things would only come out if someone were to stand up and challenge the case, right?

• At any rate, you write very complete, accurate, truthful reports to avoid all of these things we have talked about • Supplement o You are also permitted to supplement your reports o You can do this at any time o A supplement is just adding additional facts that you recall o Prosecutors rely on supplements o Attorneys like me rely on supplements o And When it comes to guilty pleas, judges rely on supplements NHTSA Manual • Another subject you learned about in the academy was how to conduct a DWI Investigation • You spent 40 hours learning this?

• Have you had any refresher courses?

• Everything you learned was ta ken from the National Highway Traffic Safety Administration Manual for DWI Detection and Standardized Field Sobriety Testing?

• Most people refer to this as the NHTSA Manual for short?

• Everything you learned was from this manual?

• This is the bible for you as it relates to a DWI investigation?

Steve Gonzales—3 parts to a DWI Investigation • The NHTSA Manual explains that there are 3 parts (phases) to a DWI investigation?

• The first is the Vehicle in Motion • The second is the personal contact • The third is the pre-arrest screening • DRAW PIE CHART • NHTSA Student 2006, IV-1 o The term DWI detection has been used in many different ways. Consequently it does not mean the same thing to all police officers. For the purposes of this training, DWI detection is defined as: o THE ENTIRE PROCESS OF IDENTIFYING AND GATHERING EVIDENCE TO DETERMINE WHETHER OR NOT A SUSPECT SHOULD BE ARRESTED FOR A DWI VIOLATION. o …. o The detection process ends when you decide either to arrest or not to arrest the individual for DWI. That decision, ideally, is based on all of the evidence that has come 'to light since your attention first was drawn to the suspect. Effective DWI enforcers do not leap to the arrest/no arrest decision. Rather, they proceed carefully through a series of intermediate steps, each of which helps to identify the collective evidence.

Phase 1: Vehicle in Motion • NHTSA criteria for traffic stops (2006 Student Manual V-4-V7; 2013 Participant Manual Session 5, at 6-10) o Look for what types of driving not displayed by client o 20 Driving cues o NHTSA studied over 1000 DWI arrest reports o And more than 600 stops o Law enforcement officers o Law enforcement officers who were specialists • Speeding — careful, speeding is included in 2013 Manual, Session 2, at 8. o Pulled over for speeding o Pull over hundreds of individuals for speeding o Most of them get a warning or a ticket and are let go o Speeding, according to NHTSA is not an indicator of intoxication o Speeding requires more attention to details, as road events happen much more quickly • Stop o WHAT HAPPENED HERE, __(behavior)__ IS NORMAL, WHAT THEY ARE TAUGHT TO LOOK FOR, SAW NONE OF THAT HERE, __(client)__ IS NORMAL. o I want to ask you some questions about my client’s reaction to you. Do you understand? o Activated your overhead red/blue lights?

o You are taught to pay attention to how long it takes the driver to react to your squad car lights? o You watch to see how quickly they hit their brakes? o You watch to see whether they use their turn signal when pulling over? o You watch to see whether they pull over in a safe manner? o In a safe place? o You would note if they hit a curb? o Swerved abruptly? o Made a sudden stop? o My client immediately tapped his brakes when you turned on your lights? o He used his signal when he began to pull over? o Q: He pulled over in a safe manner? o He pulled over in a safe place? o We can agree he did not hit a curb? o We can agree his reaction to you was normal? o His driving was normal? o The stop of his car was normal? o Stopping normally is a sign of sobriety?

Vehicle in Motion • Pre-exit Interview (See Manual, VI-3 for list of things to look for and contrast what is missing from report). o Initial Contact § I want to ask you some questions about meeting my client. Do you understand? § You walked up to my client’s car? § You are taught to notice whether or not the window has been rolled down? § Rolling down the window would be normal behavior? § My client’s window was rolled down? § You are taught to notice whether or not the car has been put in park? § Putting the car in park would be normal behavior? § My client’s car was in park? § You are taught to request a driver’s license? § You are taught to notice whether the driver is able to quickly locate their driver’s license? § You are taught to notice if they fumble for their license? § You are taught to notice if they hand you something other than a driver’s license? § Quickly locating your driver’s license is normal behavior? § My client’s driver’s license was located in his wallet? § He was able to quickly find his wallet? § He opened his wallet and pulled out his driver’s license? § He handed you his driver’s license? § Not a Sam’s card? § Not a debit card?

His driver’s license?

We can agree that my client responded in a normal manner to your driver’s license request? § You also asked him for proof of insurance? § You are taught to notice if they fumble around looking for their insurance? § You are taught to notice if they hand you something other than an insurance card? § My client’s insurance card was in his glove box? § For officer safety, you would pay particular attention to a person reaching into a console or glove box? § You are trained to notice if a person has trouble opening the console or glove box? § That would have been something you would have seen and noted? § We can agree that my client had no difficulty producing the documents you requested? § We can agree that he handed you his driver’s license and insurance card normally. § Normally handing you the license and insurance is a sign of sobriety.

Divided attention § Quick look around § Then ask for license/insurance § Keep talking to them — ask them some other question § Try to see if individual can do two things at once Many times people are not honest with you § Crazy answers § Client knew? § Client told you why he was stopped? § Good awareness of situation No problem retrieving / Nervousness § Where was client’s license § Insurance § Did not have any problem retrieving those Problem retrieving § Where was it § Give him a chance to stand up and make it easier (back pocket) § Let him undo seatbelt § How big was the wallet Took time / Nervousness § Not immediately § Glovebox messy § Able to discern right papers from wrong ones § Ever been given wrong items? § Credit card instead of license § Library card? § §

o

o

o

o

o

All of those people DUI Could be nervousness Yet client gave you right items at the appropriate times And even when you asked him questions while doing this, he responded appropriately?

Slurred Speech § Anything you did not understand § What words or conversation was slurred?

Bloodshot eyes1 / glassy eyes— § I want to ask you about my client’s eyes. Do you understand? § You said they were bloodshot? § We can agree there are many reasons that a person’s eyes might be bloodshot? § Allergies? § Cigarette smoke? § Lack of sleep? § Dry contact lenses § Naturally bloodshot? § You do not know whether my client suffers from allergies? § You do not know whether he had been around cigarette smoke? § You do not know when he last slept? § You do not know what his eyes look like on a daily basis? § We can agree that eyes being blood shot does not give you any information about what is normal for my client? § YOU DIDN’T ASK Glassy eyes § Glassy eyes can be caused by a lot of things • Normal appearance • Eyes blink to provide moisture • To keep from drying out • Serious eye disorders?

• Sometimes shining a light in a person’s eyes makes them appear glassy • YOU DIDN’T ASK • NHTSA MANUAL SAYS NOTHING ABOUT GLASSY EYES Odor of Alcohol § § § §

o o

o

o

1

1997 study titled "The Detection of DWI at BACs Below 0.10" Final Report by Jack Stuster. The final report states on page 14. "Finally, some clues were eliminated because they might be indicators more of social class than of alcohol impairment. For example, the interview and archival research indicated that a flushed or red face might be an indication of alcohol impairment in some people. However, a flushed or red face and bloodshot eyes are open to subjective interpretation and could be due to allergies or caused by outdoor work. A disheveled appearance similarly is open to subjective interpretation. We attempted to limit the recommendations to clear and objective post-stop behaviors."

§ § § § § § § § § §

I want to ask you some questions about smelling alcohol. Do you understand?

You said that you noticed the smell of alcohol when you met my client?

We can agree that it is not against the law to drink alcohol and drive a car if not intoxicated?

We can agree that if someone drinks alcohol, they will smell like alcohol?

We can agree that the smell of alcohol does not tell you whether or not a person is intoxicated?

It doesn’t tell you what they had to drink?

It doesn’t tell you how much they had to drink?

My client told you he drank alcohol earlier?

We can agree that smelling alcohol on someone that drank alcohol earlier is normal?

IF YOU AND I HAD A BEER TOGETHER, we would both have an odor of alcohol on our breath?

Even a strong odor?

§ Arresting Officer • Lack of mental impairment o Asked quite a few questions o Spoke quite a lot o Answers appropriate o Asked if under the care of a doctor or dentist o Where he was coming from and where going to o Able to articulate an appropriate answer o Jumping ahead, did you get a chance to verify these answers, such as correct address, etc? o So answers as far as you could verify were true • Admission of drinking o Denial o Admission § Eventually client admitted to drinking § Told you how much § Before or after Miranda § Miranda indicates that what a person says to you may be used in court § Never told him of this prior to these questions § And here you are telling the jury § Did you arrest him § Have him exit?

• Alphabet — (2006 Student VI-5, 2013 Participant, Session 6, at 12) o Asked him to do the alphabet o No starting with A o Starting with ___ o Ending with ____ o Before going to the academy, how many times had you said the alphabet this way?

•

o Abnormal task?

Counting o Asked him to count o Not forward o Backwards o More difficult o FINISH THIS

•

ADD — On a scale of 0-10 how intoxicated are you? o Q - Officer do you know what a loaded question is? o Q. - Officer, on a scale of 1 to 10, with ten being Barney Fife, how do you rate your incompetence?

•

Exit— Session Vl-P. 13 NHTSA SFST Student Manual, HS178, revised RS/20 13: "How the driver steps and walks from the vehicle and actions or behavior during the exit sequence may provide important evidence of impairment." o I want to ask you about when my client got out of the car. Do you understand? o For safety, you would always pay close attention to any person that was getting out of their car? o You are taught to look for certain things when a driver gets out of their car? o This is called the “exit sequence”? o You look to see if someone fumbles with or forgets to unbuckle their seat belt? o You take not if the person forgets to put the car in park? o You note if the person fumbles or has trouble opening the car door? o You note if the person has to use the car for balance? o You also look to see if they forget to close the car door? o My client was wearing a seat belt? o He unbuckled his seat belt? o He unbuckled his seat belt normally? o He put the car in park? o He was able to open the car door without difficulty? o He opened the car door normally? o He stepped out of the car? o He did not need assistance? o He did not use the car for balance? o He stepped out normally? o He shut the car door? o My client got out of his car normally? o GETTING OUT OF THE CAR NORMALLY IS A SIGN OF SOBRIETY o You asked him to walk to the back of his car? o He understood your instructions? o He walked to the back of the car? o You are taught to note if a driver has difficulty walking to the back of the car? o You note if they use the car for support?

o o o o o o

You note if they stumble as they walk?

You note if they run into you or the car?

My client did not use the car for support?

He did not stumble as he walked?

He did not run into anything?

We can agree that my client walked normally?

Coordination Exercises o You first gave the NHTSA Eye Test o Then the Walk on a Fake Balance Beam o Then the try to balance on one foot o Before we get into how each of these exercises works, I want to ask you about human nature o Are you familiar with the words primacy and recency? o You would agree with me that people remember things they learn first and last better than what is in the middle? o These tests were studied by government scientists? o In multiple different studies? o To determine whether they are valid scientifically for determining whether someone is intoxicated? o In your NHTSA manual, there is a specific chapter dedicated to how to give and grade these exercises? o On very last page of that chapter, there is a warning? o It’s presumably at the very end because NHTSA wanted you to remember it? o It’s also in all capital letters? o It’s in all bolded capital letters? o The warning says: IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN: • THE TESTS ARE ADMINISTERED IN THE PRESCRIBED, STANDARDIZED MANNER • THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECT'S PERFORMANCE • THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE. • IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED. Session 8-P. 17 of 95 NHTSA SFST Student Manuel, HS 178, revised 02/2018 (“VALIDITY MAY BE COMPROMISED.”); (Removed from NHTSA 2013 SFST Manual added in 2015) ADD: “Horizontal gaze nystagmus is an involuntary jerking of the eye which occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles.” (Final report Validation of the SFST Battery at BACs Below 0.10 Percent, NHTSA 1998, P. 32). SEE ALSO DUIDLA Listserv from 9/26/17-Robustness+Study+-+HGN+Too+High+-+False+Positives.jpg

•

From Platt: One of the 2018 sfst changes stated that ALL references to the Robustness study are to be removed from the materials. Just a heads up as I anticipate the newer trained officer’s will not have any knowledge (allegedly) of the Robustness study.

Thoughts on bad HGN: •

99% of the time, I want the HGN admitted in front of the jury rather than excluded when it is done wrong or when someone is not a proper candidate for the test. At the motion to suppress, I want the officer to confirm what we all know: o HGN has higher accuracy rate than other FST's according to studies, o HGN is not subject to issues with balance, physical injuries to back/legs, HGN is scientific, and o HGN is relied upon heavily to make the decision to arrest. o At trial, I use the studies/manuals to show why the officer should not have relied on the HGN in this case. The government manuals explain why the officer made a mistake and/or there is clearly reasonable doubt in your case. o I've disagreed with many good lawyers in Georgia about this but most of them have agreed with me after a trial when the HGN was suppressed for them. I'd rather be able to show the jurors why the evidence is not reliable. o Your HGN should not have been conducted. Each time an officer says he takes anything into account as it relates to scoring the FST's, then you need to ask him how the scoring criteria of 4/6, 2/8, and 2/4 on the FST's are modified for your client because of X. I don't care what X is, there isn't a "new" or "modified" scoring criteria for the FST's. The scoring is still a fail for 4/6, 2/8, and 2/4. That is why the officers are required to confirm someone is a good candidate for fields so that the standardized criteria can be used. It makes them look unreliable and incredible in front of the jury when you do this.

Eye Test —slight deviations in test conditions—NOT TEST ADMINISTRATION § Gave Eye test § Did client understand instructions § He attempt to follow § He stood still § Kept head still § Followed pen with eyes and eyes only § No problems § Followed these directions § You observed onset of nystagmus prior to 45 degrees § Manual VIII-15: Examples of conditions that may interfere with suspect's performance of the Horizontal Gaze Nystagmus test: wind, dust, etc. irritating suspect's eyes; visual or other distractions impeding the test (always face suspect away from rotating lights, strobe lights and traffic passing in close proximity). § Familiar with all other causes of nystagmus § There are 47 different types of nystagmus?

§ § § §

§ §

HGN can be caused by brain injury Can occur naturally Can be optokinetic Caloric Nystagmus • Familiar with caloric nystagmus • Recall being told of it in training let me show you the department of Transportation National Highway Safety Administration Standardized Field Sobriety Test Administration Manual to see if that refreshes your recollection • Read Caloric Nystagmus Definition PAN I and PAN II Nystagmus How long should the NHTSA HGN test take

For a discussion of why HGN should take 82 seconds, see http://books.google.com/books?id=zTjcGQQtOGUC&pg=PA275&lpg=PA275&dq=horizontal+ gaze+nystagmus+should+take+82+seconds&source=bl&ots=l7lHessGhj&sig=TL4kv1P88UYZu EKcPfWWi20RWMo&hl=en&sa=X&ei=3xvjUbrbCeLmyQHjnYCwAQ&ved=0CCwQ6AEwA A#v=onepage&q=horizontal%20gaze%20nystagmus%20should%20take%2082%20seconds&f=false §

§

§

§

Equal Tracking (2 seconds) — Drunk Driving Defense book says: This should take at least 2 seconds.

• NHTSA Manual does not say how long this should take. (Note: Best to look at how long they actually took and use that number instead of some arbitrary two seconds because it will likely be longer) Smooth Pursuit (16 seconds) — Drunk Driving Defense book says: The stimulus should be moved at a speed that takes at least two seconds from the center position to the side position. At a rate of at least four seconds per eye per pass (2 seconds out to the side and 2 seconds back to center), this phase of the HGN should take at least 16 seconds.

• NHTSA Manual says: Maximum Deviation (32 seconds) — Drunk Driving Defense book says: In this phase, the stimulus is moved from the center position to the person’s far left at a rate taking at least 2 seconds, held for at least 4 seconds, and then moved back to the center position at the same two-second rate. Each pass must take at least 8 seconds and the four passes must take at least 32 seconds.

• NHTSA Manual says: Onset of Nystagmus Prior to 45 Degrees (32 seconds) — Drunk Driving Defense book says: In this phase, the stimulus is moved very slowly — at a rate that would take at least four seconds to move the stimulus to the person’s shoulder or at a rate of no more than 10 degrees per second. Once the officer sees nystagmus, he is required to stop moving the stimulus and hold it steady to confirm the presence of nystagmus.

The stimulus must be held sufficiently long to confirm the onset of nystagmus.

Assuming an onset angle of 30 degrees and the stimulus being held for 2 seconds to confirm the continuation of nystagmus, each of the four passes in this phase must take

•

•

•

at least 8 seconds (3 seconds out, 2 seconds hold for confirmation, 3 seconds back), and the four passes together should take 32 seconds.

Stimulus Position: o Session VIII-P. 21 NHTSA SFST Student Manual, HS 178, RS/2013: "Holding object too close to (or too far from) subject's eyes;" Moving object too slowly (or too quickly) toward the side; "Failing to move object far enough to the side to bring eye to maximum deviation; "Curving downward and curving around."

Actual Reliability of Results of Eye Test / Robustness Study o NHTSA has done research on these tests o Published the results o Because you have learned everything you know about this test from NHTSA publications, you would agree that studies published by NHTSA are authoritative in the field of this test? o You rely on NHTSA publications to make sure you are doing the tests correctly o In other words, articles and studies published by NHTSA are reliable publications, correct? o In your 24 or 40 hour course, were you given a copy or receive any training about NHTSA’s Robustness study? o If not, show them o If I told you that essentially what this study did was dose, or give alcohol, to test subjects and then have trained officers perform the eye test on them to see whether the HGN provided valid results, would you have any reason to disagree?

FIGURE OUT WHAT PAGE HAS THE SHORTEST EXPLANATION OF THIS. o You know, as part of your training, that for an average 180-pound guy, about one beer in his system, unmetabolized, still in his blood stream, puts him at about a .02. o There can be variation in that depending on weight and other things, but that’s generally an average that you’ve been trained on?

Turn with me to table 10 (Stimulus Speed); Table 13—Stimulus Height o NHTSA essentially published the results of their little experiment here o According to this list, 26 people had a blood alcohol content of .08 or lower, and 20 of them had 4/6 clues on HGN? o The study was designed to determine whether or not if you move the stimulus too fast or you held the stimulus too high if either of those things would impact the HGN test? o In other words, NHTSA had people with a beer or a beer and a half in their system and showed the same 4/6 clues that would “indicate to you that someone was intoxicated” — even when they were not? o For example, this person here was a .031 with 4/6 clues, might have gotten him arrested for DWI? o Or this one here is a .019 that’s less than a single beer, with 4/6 clues again. That would have gotten him arrested? o By this table here, ¾ people who are not intoxicated are failing this test?

•

o If you put your faith in something that could affect your life and future, would you trust it if there were a 3/4ths chance it could be wrong? o Would you jump out of a plane if there was a 3/4ths chance your parachute might not open?

Can also do this for stimulus too high, too low, too fast.

Walking on Fake Balance Beam

Session 8 – P. 62 of 95 NHTSA SFST Student Manual, HS 178 revised 02/2018: • “The original SCRI studies suggested individuals over 65 years of age or people with back, leg or inner ear problems had difficulty performing this test. Less than 1.5% of the test subjects in the original studies were over 65 years of age. Also the SCRI studies suggest that Individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes. Officers should consider all factors when conducting SFSTs.” Bubba Head • • • • • • • • • • • •

1. With the black marker, 2. please draw the roadway and all crossing streets, 3. plus the lane configuration, 4. including a North arrow.

5. Then, draw my client's car in blue, 6. using an arrow to show which way it was facing.

7. Then, put all police vehicles in red, 8. also with a red arrow indicating which way the cars were facing.

9. Finally, use the green pen to draw the location of the field tests, 10. including use of arrows in green to show where and how the field tests were oriented.

11. Mark all street names in red, 12. and draw and label for the jury any adjacent businesses or residences in blue."

• • • • • • •

Gave him instructions on this test as well Listened Understood Never told him what you were looking for, or how he would fail?

Tried it Did not perform to your satisfaction Tyler had to remember twelve different things from your instructions: o 1. Keep left right foot in front of left in the instruction stance o 2. Not to step out of instruction stance o 3. Not to start before being told to do so o 4. To walk on a line they cannot see

• • • •

• • • •

• • • • • • • • • • • •

o 5. Keep arms at their side o 6. Touching heel to toe on each step o 7. Taking correct number of steps down the line o 8. Turning with a series of small steps (not a specific number given) o 9. Taking the correct number of steps back down the line o 10. Counting out loud o 11. Looking at their feet o 12. Not to stop once beginning That’s pretty tough You have performed this test many times You were trained at multiple 24 or 40 hours courses and refresher courses to learn how to do it In fact, the manual says that the more you perform these tests, the less effective they become o If the suspect has difficulty with the test (for example, steps off the line), continue from that paint, not from the beginning. This test may lose its sensitivity if it is repeated several times. Manual, VIII-11.

And when you went through the course, it took you quite a while to learn the waiting position It’s not an easy stance to stand in Video Manual o VIII-11: Test “requires a designated straight line, and should be conducted on a reasonably dry, hard, level, non-slippery surface. Note: Recent field validation studies have indicated that varying environmental conditions have not affected a suspect’s ability to perform this test.” o If officer says, slight deviations. § YOU HAVE NOT SEEN ANY OF THOSE STUDIES SO YOU CAN’T SAY WHETHER IT WAS AFFECTED § What does slight mean?

Was there a line?

Asked client to imagine a line Would like you to walk my imaginary line What color is it What size Where is it If you do not know the size, color, shape, or direction of the line my client was walking, how can you say he stepped off of it Client did attempt to walk heel to toe up an imaginary straight line, turn and come back Appeared to understand what you wanted He could not do it as you asked If I asked you to to walk a 4x4 beam on the ground, you could If I took that same beam and lifted it 50 stories in the air, would be a challenge

• • • • • •

Board does not change You do not change Gravity of the situation changes Making you nervous Client was aware of the gravity of the situation Same nervousness affecting him Fair Way to Grade Walk and Turn

Clue Opportunities to mess up Can’t Balance During 1 Instructions Starts too soon 1 Stops while walking 1 clue x 18 steps = Doesn’t touch heel to 1 clue x 18 steps = toe Steps Off Line 1 clue x 18 steps = Wrong Number of 1 Clue x 2 ways (down & Steps back) Uses Arms to Balance 1 Clue x 18 steps = Improper Turn 1 Total Possible Clues • Total Clues Needed To Fail: 2 Clues • Percentage Required to Pass: 97.4%

Client

Total Opportunities 1 clue 1 18 18 18 2 18 1 77

Fairness: • If you took a test and got a ___% yet did not pass, would you think that was fair?

• Do you think it’s fair to deviate from the approved instructions yet still grade them correctly?

• Do you think it’s fair to judge someone’s normal physical abilities using abnormal physical tests?

Trying to balance on one foot • He stood where you asked • He listened • He told you he understood • When told to start, he lifted one foot • He stopped when you said or you told him to • Found this to be wrong • You said he did not perform as instructed • You can’t say whether his failure to perform as instructed was due to alcohol or due to being a clumsy person • This is not a normal task?

• • • • •

Not something people do on a daily basis?

If someone is tired, this could affect them?

If someone has bad balance, this could affect them?

Getting back to client, while he could not do the balancing act, he did try as best he could and did so in the manner you asked?

It is possible that ___________ did not do this up to your standards because he is not athletic?

Fair Way to Grade One Leg Stand

Clue Sways While Balancing Uses Arms to Balance Hopping Puts Foot Down Total • • •

Opportunities to mess up 1 Clue x 30 Seconds 1 Clue x 30 Seconds 1 Clue x 30 Seconds 1 Clue x 30 Seconds

Client

Total 30 Clues 30 Clues 30 Clues 30 Clues 120

Total Clues Possible: 120 Clues Total Required to Fail: 2 Clues Percentage Required To Pass: 98%

Sum Up • You have asked client to perform a number of tasks, all of which he appeared to understand • Unable to perform them to your level of satisfaction • Failures were purely physical • Did not fail to comprehend what was going on • Learned about these tests at the academy • You took several hours of training on them • Had to pass a test at the end in how to administer the tests assume you passed • Able to give the instructions and demonstrations exactly right the very first time you heard them had to practice • Especially how to move the stimulus for the HGN • Difficult • Eventually you passed • How many times did you give client to practice • How many attempts did he get • How many hours did he have to study • In other words, no warning, no practice, no experience, client given these tests in the field knowing his freedom was at stake, and he was not given a chance to explain, retry, or practice • Drinking Pattern — Rising Alcohol Defense

Ask client when he started drinking Ask when he finished Ask what he had had to eat Ask when he ate Ask what he was drinking Ask the size of the drink Did you ask how much he currently weighs Got weight from license If guilt/innocence of person based on license vs actual at the time, how many men would be innocent o How many women o People drink differently in different situations o Sometimes more in beginning and less in the end o Other times it’s other way around o How was client’s drinking pattern that night • The Arrest o I want to ask you some questions about when you arrested my client. Do you understand? o We can agree he was cooperative? o Polite? o You handcuffed his arms behind him? o You had him walk while handcuffed to the police car? o You are taught to note if a person has difficulty walking to the police car? o If they stumble? o If they lose their balance? o If they fall? o We can agree that my client did not have any difficulty walking to the police car? o You had him get into the back of the car while handcuffed? o You gave him instructions on how to get into the backseat? o He was able to follow your instructions? o His arms were pinned behind him? o We can agree he did not have any difficulty getting into the back of the car?

Ability to understand statutory warnings - You read _________ the statutory warnings?

- There’s a lot to read?

- The paragraphs are long?

- It’s a lot to understand?

- It’s a lot to comprehend?

- Do you have your copy of the DIC up there?

- Can you go ahead and read it for the jury, exactly as you read it to _________?

- You understand that before a person’s consent to give breath or blood can be voluntary, or their refusal, they have to have a full understanding of what that says?

- You’re telling this jury that ___________ understood what you were reading?

- In other words, her mental ability in terms of ability to understand was normal? o o o o o o o o o

Arrival at the Jail - I want to ask you some questions about what happened when you arrived at the jail. Do you understand?

- You drove to the jail?

- My client was in the back seat?

- His arms remained pinned behind him?

- When you arrived at the jail, he had to get out of the car?

- With his arms still pinned?

- You are taught to note if a person stumbles when getting out of the car?

- If they fall?

- If they lose their balance?

- We can agree that my handcuffed client was able to get out of the car without any difficulty?

- He was able to walk into the jail?

- He walked normally?

Conditions And Nervousness, Afraid, Intimidated • You pull people over regularly • Nervous?

• Afraid?

• Intimidated?

• The longer you interact with most people, those conditions are more and more evident • You have had nervous, afraid, and intimidated people before who were not guilty of anything more serious than a traffic violation • In this case, there were also people walking by • People coming and going from the club • Also, it can be embarrassing for some people to be singled out by a police officer outside of a gentlemen’s club • Especially a young person • It can be even more embarrassing when there is someone in the police car that knows them • Your ride along’s name was what?

• He knew Tyler • HE’S the one that pointed you in Tyler’s direction • You wanted to get him experience • You figured why not pick someone who Tyler knew? 3:45 on video Alternative tests • You performed one alternative test • The manual calls for multiple tests • You could have done the count down?

• Explain • You could have done the finger test?

• There’s also a palm pat test I’m sure you have learned • Instead, you only did one

• The bare minimum Fatigue, tiredness, and fairness • Tyler was obviously tired • He slept almost the whole way to the jail • When people work long weeks, they get tired • Whether or not they have had anything to drink, they can be tired • And you have learned that sometimes people who are tired sometimes demonstrate the same indicators as someone who is intoxicated o If he wiggles: Nevertheless, they don’t always act normal • When you got back to the jail, you read Tyler the implied consent warning • You had to wake him up to read him the warnings • It’s a lot to take in?

• It’s a lot absorb?

• It takes you a while to read it?

• By the end of it, Tyler is asleep again? 48:06 • You had to wake him up to ask him if he wished to give a breath test?

• Meaning, he slept through a portion of the warnings, but you thought it fair to ask him to waive his rights and give a sample?

• Youre only human?

• You make mistakes?

DECIDE NOT TO TAKE BLOOD TEST - Read DIC form - Long - Complicated - Obviously written by lawyers - Form doesn’t say who would take the blood - Doesn’t say where the blood would be taken - Doesn’t say whether you were going to do it - Doesn’t say whether you were going to do it right there on the side of the road Blood Questions For Officer Q: Did you use a blood kit for this blood draw?

Q: Where did you get the blood kit?

Q: Where had it been stored prior to use in this case? (The kits are not supposed to be exposed to extreme temperatures.)

Q: Where was the blood drawn? (If at the jail, was it videotaped?)

Q: Were you present when the blood was drawn?

Q: Did you open the blood kit?

Q: What was the expiration date on the blood tube?

Q: Was there anything in the blood tube? (The officer is supposed to check for the presence of the anticoagulant/preservative powder.)

Q: What color was the rubber stopper on the blood tube?

Q: Did you see the nurse clean the arm?

Q: What did she use to clean the arm?

Q: Was she wearing gloves?

Q: Did you see her tap the arm to palpate the vein right before she inserted the needle?

Q: Did she insert the needle right after cleaning the arm?

Q: Did she use hand sanitizer?

Q: Did she fill up the blood tube with blood?

Q: Did she remove the blood tube before she removed the needle?

Q: Did she shake the blood vial to mix the chemicals and the blood?

Q: Can you demonstrate how she did that.

Q: Who filled out the blood tube label?

Q: What happened to the blood tube after the label was filled out?

Q: Did you fill out any paperwork that came with the blood kit?

Q: What did you do with blood?

Q: What time was the blood drawn?

Q: Was it taken to the property room?

Q: What time?

Q: Did you transport it in your squad car?

Q: Was it in the passenger compartment or the trunk? (Exposure to heat in the trunk could have degraded the sample.)

Q: What happened to the blood once it was placed in the property room?

Q: Was it refrigerated?

Q: What temperature is the refrigerator set at?

Q: When was the last time the refrigerator temperature was tested?

Blood —Consent - There is actually a form provided with a DPS blood kit?2 - It has a place for a person to sign and acknowledge that they gave consent?

Bathroom - You were with ______ from the time you stopped him until the time he got to the jail?

- Approximately how long do you think that was?

- Let me ask you this: if you drank ____ glasses of water, don’t you think you would have to go to the bathroom in a ____ hours period?

2

Instructions for the Collection and Submission of Blood Specimens for Alcohol and/or Drug Determinations (Tab ___)

Texas Criminal Defense Lawyers Association

DWI Defense Seminar May 6, 2022

Topic: Intoxication Manslaughter Defense Speaker:

Michael Smith 2603 Oak Lawn Ave Ste 200 Dallas, TX 75219-4060 (214) 502-7176 Phone maslaw2603@gmail.com email

Deric Walpole 5900 S Lake Forest Dr Ste 410 McKinney, TX 75070-2199 (972) 569-0740 Phone (972) 632-1301 Fax deric@collincountyattorney.com email

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

Texas Criminal Defense Lawyers Association

DWI Defense Seminar May 6, 2022

Topic: The Drug Aspect of a DWI Speaker:

Sean Darvishi 2200 North Loop W Ste 304 Houston, TX 77018-1754 (832) 766-4019 Phone (713) 583-2896 Fax sean@defendmetexas.com email

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

The Drug Aspect of a DWI by Sean Darvishi 1. Introduction More and more we, as DWI defense attorneys, see an influx of Drug Based DWI cases filed. But it is not just illegal drugs that we see, but yet an increase in both over the counter, and prescription alleged drug usage. And is there truly an increase of individuals abusing drugs to the point where the statistical “needle” is moving that much? Its unlikely. The increased amount of officers who seek the “Drug Recognition ‘Expert’” (air quotes emphasized) has rapidly increased. Additionally, the number of Prosecutors that have chose to educate themselves on how a Drug based DWI works and what they can and cannot prove has dwindled.

The good news is with the 24-hour news coverage that we now have and added skepticism to law enforcement, these cases aren’t as taboo and as difficult as they once may have been. The evolution of social media and video sharing has also led to an increase is skepticism. It wasn’t that long ago when I was scrolling through Facebook only to see a non-lawyer friend share a video and news clip about multiple people being arrested for a Marijuana based DWI despite having either no marijuana in their system at all, or only inactive metabolite. And as a trial attorney of course I couldn’t help but read through the comments and instead of the usual incredibly proPage 1 of 17

police rhetoric I am used to seeing on stories like this, it was met with people sharing their similar experiences and their lack of trust with such detection.

Certainly the 30 years old and up crowd has all seen that episode of Seinfeld where Elaine tests positive for Opium without ever having used the drug. This was because she had a poppy seed bagel every morning which led to her testing positive. This was one of the first times that I can remember thinking to myself (of course I was 8 years old), wow, that’s crazy that something like this could happen. It was a hilarious episode but paralleled a very real situation.

We have clients who are being charged with DWI

because a prosecutor doesn’t know that amphetamine is someone’s daily ADHD medication that they take every morning. And just because an officer decided he was “acting funny” decided to arrest him.

But without an

educated advocate, someone may plead guilty because a lawyer who isn’t worth the suit they’re wearing says they have drugs in their system so they should plead guilty. You’ve made the first correct choice by reading this and being here for this seminar. So let’s dive into drugs, the DRE program, and explore how we can use this to our advantage.

Page 2 of 17

2. Drugs and Their Classifications The Texas Health and Safety Code §481.002(5) a “Drug” means a substance other than a device or component, part, or accessory of a device that is: (A)

Recognized

as

a

drug

in

the

official

United

States

Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, official National Formulary, or a supplement to either pharmacopoeia or the formulary; (B)

Intended for use in the diagnosis, cure, mitigation, treatment, or

prevention of disease in man or animals; (C)

Intended to affect the structure or function of the body of man or

animals but is not food; or (D)

Intended for use as a component of a substance described by

Paragraph (A), (B), or (C).

Further Dangerous Drug is defined as a device or a drug that is unsafe for self-medication and that is not included in Schedules I through V or Penalty Groups 1 through 4 of Chapter 481 (Texas Controlled Substances Act). The reason these definitions are vital is because of the definition of Intoxication, which is not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a Page 3 of 17

drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.

Drugs that are usually involved in matters such as DWI come in various categories. There are seven categories of drugs. These contain both legal and illegal drugs.

1. Cannabis 2. CNS Depressants 3. CNS Stimulants 4. Hallucinogens 5. Inhalants 6. Narcotic Analgesics 7. Dissociative Drugs/PCP

Only one category is a Depressant but all categories are active on the Central Nervous System.

Cannabis includes marijuana, hash, hash oil, and the synthetic drug dronabinol. It is the most widely used drug. It affects judgment, depth perception, and attention. Physiologically it affects the cardiovascular system, causes red, bloodshot eyes tachycardia, muscle tremors and causes memory loss. It does not produce HGN. Page 4 of 17

CNS Depressants include Benzodiazepines, anti-anxiety and tranquilizer medications. Common Benzos are Valium, diazepam, Librium, Xanax, alprazolam,

Halcion,

Rohypnol,

Klonopin, clonazepam,

Serax and

Oxazepam. It also contains subcategories such as, Anti-psychotics, Antidepressants or mood elevators, barbiturates, non-barbiturates, and combinations of different types of pharmaceutical elements to make up a different CNS Depressant drug in itself.

CNS stimulants include cocaine in its various forms, amphetamines, meth, ephedrine, Ritalin, certain diet pills as well.

Hallucinogens are drugs that distort sensory perception and produce hallucinations. They are like CNS Stimulants in that they elevate vital signs and cause dilated pupils. They do not cause HGN. LSD, mushrooms (psilocybin), mescaline, peyote, bufotenine, morning glory seeds, jimson weed, nutmeg and the psychedelic amphetamines are in this category.

Inhalants include volatile solvents, aerosols and anesthetic gases. It is administered as the name suggests, by breathing in volatile fumes. Signs of use on inhalants are the odor of the substance and possible visible signs of use on the individual’s hands or face.

Narcotic Analgesics are frequently termed opioids or opiates. It also includes morphine, codeine, Percodan, heroin, meperidine, methadone, Page 5 of 17

fentanyl, oxycodone and others. Individuals will exhibit slow and deliberate actions. These drugs relive pain, sedate, constrict pupils and depress vital signs.

Dissociative drugs include PCP which stands for phenyl cyclohexyl piperidine. It’s classified as a hallucinogen in many tests and by many laws.

It can induce distorted sensory perception and has been known to give “super strength” ton users. Ketamine is a related drug in this category known as a “club drug.” PCP had been considered a drug of the past but has made a particularly strong resurgence, especially in Texas.

3. The DRE Program and Why It Was Created If no one told you, I would bet that people would assume the DRE program was founded by Scientist and Researches after extensive research and countless validation studies by independent organizations. Well, I hate to burst your bubble but the DRE program was literally developed by 2 police officers in the Los Angeles Police Department. The “drug epidemic” was in full effect and officers needed an effective way to get convictions when people had blood results showing no alcohol and only drugs.

We know, that drugs in the blood alone, does not equal intoxication.

Numbers can be different for everyone, half-lives for drugs are different, and so there is no real way to pinpoint when someone becomes intoxicated. To Page 6 of 17

say there wasn’t extensive studies or independent validation studies would be an understatement. But ultimately, the police had a credibility problem, and this was going to fix that for them. And thus was born the so-called Drug Recognition “Expert”, despite the fact that the term Expert can only be determined by the Judge via Rule 702 of the Texas Rules of Evidence.

Limine that part out if you’re in trial (more on that later).

In order for someone to become a DRE, the officer must be certified to administer Standardized Field Sobriety Tests and attend a 2 day preliminary training course. This is where they learn about vital sign examination such as checking pulse, temperature and blood pressure. If they pass, they begin the 7 day DRE course. The course covers the seven categories of drugs and the 12 steps of the DRE. Those Steps are: 1. The breath alcohol test 2. interview of the arresting officer 3. preliminary examination and first pulse 4. eye examinations 5. divided attention tests a. modified Rhomberg balance b. walk and turn c. one leg stand (once on each leg) Page 7 of 17

d. finger to nose 6. vital signs, and second pulse 7. darkroom exam of pupil size, nasal and oral cavities.

8. muscle tone 9. examination of injection sites and third pulse 10. statements, interrogation and other observations 11. opinion of the evaluator 12. toxicology examination At the conclusion of learning all of this, a test is administered and the officer must receive a minimum passing score of 80% to receive their certificate. So the folks that are supposed to determine whether someone’s freedoms are taken from them gets a built in 20% margin of error with no pressure that they end up in a metal cage.

Once they pass and are certified they are required to maintain something that is called a Rolling Log as well as an updated CV. These can be discovery gold mines. You’ll be able to see how many cases they’ve worked on, if they got some things wrong, etc. The only trick to know is a DRE could do an assessment on someone and say they’re definitely high on marijuana and if the blood comes back 1 ng of delta-9-tetrahydrocannabinal, which is absolutely not intoxicated at all, the DRE will be considered correct.

Page 8 of 17

I have never once seen a DRE put the reported values in their log. The DRE certified officer is also required to attend a minimum of Eight Hours of continuing education training biannually to maintain that certificate as well as conduct a minimum of Four evaluations within that Two year period. One of these must directly be supervised by a DRE instructor. This may not be so hard to maintain in major cities like Houston, Dallas, Austin, San Antonio and El Paso but could be extremely difficult in small counties. This still can be played to your advantage if a DRE is not available in your county though depending on how you can spin it.

4. The 12 Steps to the DRE There are 12 total steps to the DRE. If the State is attempting to introduce the DRE, and have a DRE testify, conduct a 702 hearing. There are loads of studies that will help discredit. There was a big case in Maryland in a case called Maryland v. Brightful which practically has shut down the DRE process up there. They determined that the DRE process was not generally accepted in the scientific community. You cannot let the judges just make that assumption because it absolutely is not accepted in the scientific community at all.. You don’t need an expert to overcome these.

On to the 12 steps and what they entail. This will be rather brief but meant

Page 9 of 17

to give you an idea of what you should be looking for if you are to encounter a full DRE being conductd.

1. The breath alcohol test The breath test is administered to help determine if alcohol is a factor at all. If you blow over a .08 a DRE may not even happen. But officers love the “synergistic effect” of a CNS Depressant (alcohol) and some other drug.

Here, your client is of course consenting. You could certainly make a stink about the officer doing this because if they were truly confident it is drugs, then why would they need to do an alcohol test.

2. interview of the arresting officer This is exactly what it sounds like. But an innocent interview can quickly turn into, “yeah I found a couple blunts and a spent roach in the cupholder” and then we have introduced bias into the equation. Its best if this interview covers behaviors and maybe odors but still that can have a prejudicial effect and change what the assessment becomes.

3. preliminary examination and first pulse The prelim exam and pulse is basically used to dispel injury being the reason for any loss of the normal use of mental/physical faculties.

Additionally, determining conditions such as the subject being a stroke victim, having medical conditions, or psychiatric problems is absolutely vital.

Page 10 of 17

And in reality it gives the defense a little less to work with. If any of those things are detected, the exam is supposed to cease. Oddly enough they check the pulse as if the stress and anxiety of being put through a long series of unusual tests by someone who determines if you go to jail doesn’t seem like the best use of resources. Of course an elevated pulse should be expected.

The DRE usually has no medical training. They wont be expected to know medical conditions that can mimic intoxication. There are in fact some slight entries in the DRE manual that cover these. If someone doesn’t have any training in medicine, how do we expect them to even use these as a factor.

4. Eye Examinations Here the officers check HGN, VGN and Lack of Convergence. Yes, the police believe if you cannot cross your eyes that somehow you definitely have to be on some type of drug. That’s comical at best.

Kudos to Doug Murphy, who has always suggested in his presentations in the past to file a motion to suppress the state and their witnesses from correlating any HGN/VGN, or angle of onset, results to a blood alcohol concentration or a high dosage of drugs. This of course comes from the Emerson case.

Page 11 of 17

4. divided attention tests These are done and must be done in a controlled environment. Which is slightly ironic because they are standardized FIELD sobriety tests and yet are okay when its any ole regular DWI. a. modified Rhomberg balance Always fun to have the officer explain how this was originally developed to help test for syphilis. b. walk and turn c. one leg stand (once on each leg) d. finger to nose 6. vital signs, and second pulse Check of blood pressure, temperature and pulse. Certain categories of drugs will elevate, depress or have no effect on vital signs. Pulse should be checked for a total of thirty seconds, with the number of beats times two, which should equal their pulse per minute.

Blood pressure should be

checked with a sphygmomanometer and a stethoscope. Again, all sorts of issues can exist with this. Just regular medical condition, health, or fitness status can become an issue here.

7. darkroom exam of pupil size, nasal and oral cavities.

Page 12 of 17

This may be one of the more unusual ones. Officers will use something called a pupilometer. I will attach a picture of one in the materials. First, they will check and estimate the pupil size in room light. Mind you this is the ole hold the card near their eye and try your best guess to figure out if its 4.0mm, 4.5mm or 5.0 mm or what have you. Next the lights go out and you do it in close to pitch black. A pen light will be used. The DRE officers are given a range of whats normal. 2.5-5.0 mm for room light, 5.0-8.5 mm in darkness.

Next they test in direct light which should be a range of 2.0-4.5 mm. Lastly, they will check the eyes reaction to light. Looking for constriction within a second. They will then look at their nostrils and make sure their isn’t anything left in there that they were snorting. Nothing will make a DRE’s decision easier than some residual nose candy hanging up there. Also, hilariously they will look at the specimens tongue. The claim of the DRE program is if you’re high on marijuana that you will have some sort of green tongue. If you’re reading this laughing to yourself, I know you get the humor in this. If you are reading this with confusion and wonder, lets just agree you should take a trip to Colorado to enjoy local legalities and then stick your tongue out in a mirror and tell me if you see that.

8. muscle tone

Page 13 of 17

So this is the awkward part of a DRE where the officer essentially feels your client. It never looks like a comfortable situation. The officer is to determine whether someone is flaccid, normal or rigid. Does this have medical backing that would affirmatively link it to drug usage? Absolutely not.

Does the DRE program care?

Again, also no.

Stress, anxiety,

excitement, lack of sleep etc. can all lead to various muscle tone states.

Heck, getting a good bicep workout lifting weights to failure after a great gym session could absolutely lead to a rigid body tone. So according to DRE, gainz = drugs.

9. examination of injection sites and third pulse A DRE will be looking for injection sites and will do this by running their hands along the neck, forearms, wrists, inner elbow, etc. And then again they will check for pulse again. Of course it is important to keep in mind that even if an injection site is found, it only means recent usage, not current intoxication.

10. statements, interrogation and other observations At this point the DRE will have a pretty good idea of what their opinion is but will proceed with an interview. This may be specific questioning like what drug are you on right now, or what drugs have you used in the past.

T.C.C.P. 38.22 will require these to all be video recorded so if you don’t have Page 14 of 17

that, none of these statements come in. Miranda warnings should certainly be in place before any of this happens or else you could get an exclusion under T.C.C.P. 38.23(a).

11. opinion of the evaluator The DRE will give an opinion about whether someone is intoxicated or not and what category of drug. Specific drugs should not be listed here.

There should be conclusions as to why they came to this opinion and not just statements of the defendant or the on scene officer.

12. toxicology examination A specimen would be obtained here whether that be blood and/or urine. At this point a refusal has no consequences in the administrative side of things (aka no license suspension for refusal). The results of this don’t mean intoxicated or not because drugs in the system does not equal current intoxication.

5. Drug Combinations Throughout the DRE training, the officers are taught about poly-drug usage, meaning multiple drugs were introduced into the system causing intoxication. What would typically happen is a mixture of symptoms that may not fit one category by itself. There are 4 different types of effects: additive, antagonistic, overlapping and null. Additive is when a combination of the Page 15 of 17

drugs produce a total effect that is equal to the sum of the individual effects.

Basically, a whole load of symptoms. Antagonistic effects happen when the effect of one drug is lessened due to the presence of another drug. For example cocaine dilates pupils but heroin constricts. When you take them together you may have either result, or maybe even normal pupils. This depends on prior experience with the drug, dosage, time of ingestion, etc.

Overlapping effect refers to a drug producing an effect but the drug neither adds or takes away from it. Alcohol causes HGN but cocaine does not.

Taken both together, you will still have HGN due to the alcohol. Last is null, where there is a pure cancel out effect and you don’t show symptoms at all.

Prosecutors typically use the phrase “synergistic effect” which is never specifically mentioned in the DRE Manual.

Synergistic refers to a

combination of drugs that produces an effect even larger than the two combined. So if the DRE tries to opine an opinion such as that you can challenge it, as no such teaching or effect exists in the DRE manual.

6. Case Law I am attaching part of the State of Maryland v. Brightman, et. Al., opinion which was a considerably long hearing about the reliability and acceptance (or lack thereof) of the DRE in the scientific community. It is absolutely worth the read. In Texas, our own Troy McKinney had a case Page 16 of 17

entitled Layton v. State that needs to be an opinion you have read multiple times. Additionally, we have cases such as Delane and DeLarue which discuss the various circumstances in which results should be accepted or not. There is no throw down case in Texas that says the DRE is always coming into evidence. In Emerson, we have the Court telling us that HGN is scientifically reliable and is held to the Kelly standard. It should be noted that no such opinion exists from the highest Court when it comes to DRE. If all 12 steps weren’t don’t, object under Kelly because if the State somehow convinces Judge that these are all that and a bag of chips then they better be able to fulfill that 3rd prong that everything was done correctly. And they won’t be able to do that. The State will literally set itself into a trap each and every time. Ultimately, these cases are beatable. Relating to your jury is half the battle, because you will always know the material better than the State if you are preparing and attending seminars such as this.

7. Conclusion These cases can be beat and if anyone were to have any questions you can always email me at sean@defendmetexas.com or call/text me on my cell at 832-766-4019. I love handling Drug Based DWI cases and always willing to lend a hand when I can.

Page 17 of 17

Texas Criminal Defense Lawyers Association

DWI Defense Seminar May 6, 2022

Topic: The Defense of Extrapolation Speaker:

Matthew Peacock 1300 S University Dr Suite 318 Dallas, TX 76107-5737 (817) 900-6000 Phone (214) 559-0581 Fax matt@medlinfirm.com email

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

Attacking the Blood Expert & The Defense of Extrapolation The common DWI question I get is “How do I beat a blood case without an expert?” or “I got this good tape, but a high number, how do I win?” Usually, the underlying question is how do I handle the state’s blood expert. “What do I do?” Hopefully, this paper will help break down some of the steps in dealing with the expert and put you in a position to get a two-word verdict.

What’s the point?

At the fundamental level, we have to figure what we are wanting to get out of the cross examination of the state’s expert. Many of you have run into the same things I have where this “impartial scientist” isn’t going to budge on a point you thought was concrete. And for sure, most of them are not going to say that your client was under .08 at the time of driving.

Obviously, each case calls for its own plan of attack, but there are two main things you want to have happen during your cross of the expert. In fact, each question you ask should do at least one of these two things.

1. Create Credibility with the Jury I am talking about your credibility; not the “expert’s.” You want to appear to know what you are talking about and look good doing it. I say “appear to know” because, realistically, I don’t, and many of you don’t, know the ins and outs of gas chromatography with flame ionization. But we don’t need to. I’ll show you some questions you can ask with confidence that will give you credibility with the jury. We want to put the jury in position of choosing our version of blood testing over the state’s.

2. Get Answers You Can Argue This is critical. Too many attorneys go into a cross-examination of an expert thinking they are going to get them to admit the client wasn’t intoxicated or that it’s likely a mistake was made during testing. I know it has happened, but those cases are few and far between. What we don’t want to do is ask that ‘one question too many’ and then allow the witness to dump all over us. It usually looks something like this: (‘One question too many’ in italics) Q: “It is important to make sure you put the head space vial in the right slot of the auto sampler, correct?”

A: “Yes, it is.”

Q: “Because if you don’t it could read the wrong result for the wrong sample, right?”

A: “That’s correct.”

Q: “You can’t be certain that didn’t happen in this case, can you?”

OR Q: “Human error happens like that all the time, right?”

These types of questions allow the witness to give the jury the answer on how they are certain the mistake did not happen. I know this temptation. I have made this mistake myself.

It is the temptation of wanting the jury to hear the mistake could have happened, therefore, find the client ‘not guilty.’ But it is one question too many, and the witness already gave the answer you can argue. **Remember: it is not your job to prove this mistake happened. It is the state’s job to prove it didn’t happen.** You got the answer you can argue in close: “Ladies & gentlemen, you heard that it is important to make sure the blood vial is in the right slot at the time of testing. Did the state prove a mistake wasn’t made and that the blood test was done perfectly?”

So, make sure as you are preparing your cross examination of the state’s “expert” that the questions you ask are either building your credibility in front of the jury or eliciting answers that you can circle back to in closing arguments. And hopefully, many of the answers you receive will be accomplishing both.

How Do I Do This?

Debunk Any Tolerance Argument We have all seen the State’s voir dire where they are describing “Sippy Sally” who has 2 glasses of champaign at a wedding and is dancing on the table. They are building a tolerance argument to try and prove the “not having” definitions of intoxication. If we don’t address it, it will be something the state argues and the jury will be thinking about in their deliberations.

Debunking this argument is typically pretty easy and quick. I like to do this at the beginning of the cross examination to show the jury that there are somethings the “expert” doesn’t know and to allow some time before re-direct so that the state forgets to circle back to it. Here is how I like to do it: Q. Dr. Easley, you're here today to testify regarding the blood results that was produced by your lab, right?

A. I am.

Q. So you're not here to talk about whether {DEFENDANT} has any sort of tolerance to alcohol, right?

A. That is correct.

Q. Because you don't know, right?

A. I don't know about his personal physiology, that is correct.

Q. Because it's different for everyone, right?

A. Yes. Q. So any sort of testimony regarding tolerance would be speculation, correct, because you don't have enough information, correct?

A. For his personal information, no.

Q. Okay. And so then for any personal

information regarding his specific tolerance, that would be speculation, right?

MS. JOHNSON: Objection, asked and answered.

THE COURT: I'll overrule. You can answer.

THE WITNESS: For his specifically, yes.

Just 5-6 questions and it is done. But the witness just said she doesn’t know about our client’s physiology and she is there just to testify to the results produced by the lab. These are answers that produce credibility and can be argued later.

Get Familiar with the Vocab & Process This is the part that takes some work on your end. You need to get some working knowledge of what happens in the lab. Again, you do not need to be an expert yourself, but you do need to know the vernacular and what the witness does with the blood. This will help you gain a ton of credibility with the jury because this is the stuff the State won’t touch. Here is an excerpt from the transcript of how to ask these questions:

Q. So you take the vial of blood, right?

A. Uh-huh.

Q. And then what you do is you put it into a much smaller vial and you -- that's called a headspace vial?

A. Yes. Q. And the instrument that you use is what's called a pipette; is that correct?

A. To transfer the blood?

Q. Correct.

A. Yes. Q. And so what you do is you come down to here with the pipette, take up the blood, and move it into the headspace vials?

A. That is correct.

Q. Right. And like you said, then you put like a crimped top on that headspace vial, right?

A. Yes. Q. And that's where the blood that's actually tested is in those vials, correct?

A. Yes. Q. Do we have the headspace vials that were tested in {Defendant’s} case here?

A. No. Q. Because they're destroyed, right?

A. They are.

Q. At the same time you're also pipetting into this headspace vial N-Propanol; is that correct?

A. It's in the internal standard, but yes.

Q. And you say internal standard. That's what's added into this vial because you know exactly how much is supposed to be in that vial, right?

A. Yes. Q. Right. Because we talked about the pipette, and I call it an instrument because it has been to be calibrated very precisely, correct?

A. Yes. Q. Because if it's not, it will actually insert more internal standard than is necessary?

A. Yes. Q. Which can then elevate the blood results, right?

A. More internal standard would actually decrease the blood results.

Q. Sorry, that's right. And then less would elevate it, right?

A. That is correct, yes.

Q. So if the pipette's not calibrated correctly, it could affect the results?

A. Right.

Q. And that N-Propanol is actually a type of alcohol, right?

A. Yes. Q. And you do this process for several of those small headspace vials, right?

A. Yes. Q. And you put them on what you guys call an auto sampler?

A. Yes. Q. Do you guys have the rectangle or the circular auto samplers?

A. For the blood alcohol?

Q. Yes, ma'am.

A. The trays we use are rectangular.

Q. Rectangular, okay. And so, I guess, for a visual, have you seen the circular ones before?

A. We use circular ones on some of our other instruments, but I -- they make a lot of different types.

Q. Okay.

A. So I'm not sure if you and I are talking about the same ones.

Q. I guess what I'm just saying is just so the jury can have a picture, like the circular ones look like old communion trays, right?

A. Yeah.

Q. Is that right?

A. Yeah.

I am not going to copy and paste the whole transcript but pages 13-22 of the transcript are the portion that describe the process. Again, it is in very general terms.

There are a couple of ways to familiarize yourself with this process, but one that I found very helpful to me is just a quick YouTube search of Gas Chromatograph Testing. You will find great videos explaining the process and how it is done. You can also find videos of lab techs performing the process.

Also, read Bullcoming v. New Mexico, 564 U.S. 647, for another great description of this process and the science behind it. This case lays out why it is necessary for the technician who tested the blood needs to come testify at trial. It gives a general understanding of what the analyst does in the lab.

Below I have included some of the vocabulary associated with the gas chromatography process and pictures of what is being described so you can have a visual.

•

Pipette- instrument used to move defendant’s blood from initial vial to head space vial.

Also used to add n-propenal to head space vial. Must be calibrated very precisely.

•

Column- long, coiled up tube with a chemical lining that the gas travels through to reach the flame ionization detector. The lining inside is what separates the molecules. Never cleaned. Changed out every 6mo or so. Looks like a guitar string.

•

Auto Sampler- the trey the headspace vials are placed into. The auto sampler is then inserted into the machine for testing. Circular trey looks like a communion trey.

•

Headspace Vial- smaller vial that the defendant’s blood is transferred to for testing.

Destroyed by the lab after testing.

•

Lab Report- document prepared by the lab and signed by the analysist. This is usually the document you receive in discovery with your client’s blood alcohol content on it. Not the actual results printed by the machine.

•

Chromatograms- the results printed by the chromatograph. Shows the amount of npropenal and ethanol alcohol.

•

Carrier Gas- the gas that pushes or carries the headspace gas through the column.

•

N-propenal- a type of alcohol added to the head space vials, in addition to the defendant’s blood. Called the internal standard. This is a known quantity that should produce a specific, known corresponding result. Too little internal standard could produce a higher BAC number.

Be familiar with these terms. The witness will talk about them and you want to be able to explain to the jury what is being discussed. I like to use analogies like “guitar string” and “communion tray” to give the jury a picture of what we are discussing. Again, you are building credibility with the jury by showing your knowledge of the process and exposing the State for their lack of understanding.

Physiological Aspects of ALC & Extrapolation What I am not tackling in this paper: I am not going to get into the Windmark equation to figuring out someone’s BAC because, rarely, do we actually have that information. We are just looking for answers to argue in closing regarding an alcohol level at the time of driving. Also, I am not going to go into great detail on rebutting an expert’s testimony regarding extrapolation. I want to show you what they need in order to do a proper extrapolation, but that’s it. If you are looking for more in-depth article on retrograde extrapolation you can read Deandra Grant’s “An Introduction to Retrograde Extrapolation” online. If you want a more advanced articles, you can look for articles by Dr. A.W. Jones or Dr. Kurt Dubowski.

Keeping to the premise of gaining credibility and getting answers you can argue, I want to give you a basic breakdown (the same stuff I do with the jury & what you will find in the transcript) of how alcohol works in the body, the bare minimum needed by the expert to actually give an extrapolation opinion, and how to use the disconnect defense when the extrapolation is not good for your case.

•

Absorption phase- this is the first phase when a person drinks alcohol. It goes first into the stomach, and then into the small intestine, which is where most of the absorption takes place. The type of alcohol consumed, as well as the stomach contents prior to and during drinking, will impact the speed at which absorption takes place. Is the defendant in a “fed” state or not? If they are not, absorption will happen at a quicker rate than if they are. Most experts will give 30 min to 2 hours for FULL absorption. There is no standard absorption rate.

•

Elimination phase- this happens as soon as alcohol is being consumed. Alcohol is a toxin and the body is trying to get rid of it anywhere water leaves the body. Assuming no other alcohol is consumed, the alcohol level will steadily decrease at a rate .015 per hour, on average. The elimination rate is different for each individual. Most experts will give you the range of elimination rate will vary between .01-.035 per hour.

Here are the questions from the transcript describing absorption and elimination. While I am discussing this with the witness, I am drawing this out. See below for how I chart this out in front of the jury (I always describe it as looking like a rollercoaster).

Q. (By Mr. Peacock) Doctor, I'm going to try this one more time. So alcohol in the body, it works in a pretty standard way for everyone, right?

There's an absorption rate, correct?

A. That is correct.

Q. And then a peak, right?

A. Right.

Q. And then an elimination rate?

A. That is correct.

Q. And so when you graph it out, you have the

absorption rate, a peak, and then an elimination rate. And it kind of looks like a roller coaster, right?

A. Typically, the elimination's more linear, but yes.

Q. Okay. And the absorption happens much quicker than the elimination; is that correct?

A. Most of the time, yes, but that's depending on a lot of factors, specifically whether or not the person is in a fed state or fasted. So have they eaten, have they not eaten, and then have they already started consuming alcohol. Are they consistent drinkers? But typically the absorption rate is more faster -Q. Right, it's -A. -- or faster than the elimination rate.

Q. It's way more common for it to be quicker than the elimination rate, correct?

A. Based on the research that I've read, yes.

The absorption and elimination rates are very important when it comes to extrapolation. So, please, I cannot stress this enough: Use ranges!!! Using the ranges, will allow you work the number as you need for your fact pattern. Don’t let the expert lock into a standard rate of absorption or elimination.

When it comes to extrapolation, whether the client is in a fed state or not is important, but the most important factor is the time of their last drink. As we discussed above, the body cannot reach full absorption until the consumption of alcohol ceases. If at all possible, you want the client’s time of last drink as close in time to operating as possible. This puts them in the absorption phase allowing you to argue in close that the client could have been under .08.

Knowing the time of the last drink will help you, using the rates we discussed, to figure out the client’s range of BAC at the time of driving and push it higher if you are using a disconnect defense.

WARNING: You are going to run into some “experts” who are going to say that they can do extrapolation without knowing the time of the last drink. They usually try to use the time of the stop as the metric. This is sloppy science. Don’t let them get away with it. Use Mata v. State 46

S.W.3d 902 (Ct. Crim. App. 2001) and ask for a hearing to make sure they have all the information they need to extrapolate.

Bare Minimum Information the State’s Expert Needs for Retrograde Extrapolation: • • • • • •

Sex Weight Time of Last Drink Time of First Drink Fed State or Not Time Subject Ate

When it comes to the expert trying to testify as to extrapolation, if they don’t have at least these factors make sure to object. Most experts will also give you that BMI of a subject, type of food eaten, and type of drinks consumed could all help make the calculation more accurate.

Extrapolation Works Both Ways Recently, we have been able to win high BAC cases with a disconnect defense. The basic premise of the disconnect defense is that if the blood result is accurate then the defendant’s BAC would have to be ridiculous high at the time of driving. We use the video & officer’s testimony to show the client doesn’t have the attributes of someone whose BAC is that high. So here is how, using extrapolation and the high end of the elimination range, I was able to push my client’s BAC to a .41 (pages 30-33 of the transcript): Q. And in this case at the time that blood was tested, it tested at a .333; is that right?

A. I don't have the paperwork in front of me, but I believe that that is what I read earlier. Yes. .0 -- .333.

Q. .333, right?

A. Yes. Q. With plus minus .032, right?

A. That is correct.

Q. And so what that means is that at the time of the blood draw, he could have -- according to the test could have been as high as a .365; is that correct?

A. Yes. Q. But if there was just under an hour, okay, if it was just under an hour from the time of the stop to the blood draw, we could say that {Defendant} was with the officer during that time.

A. Okay.

Q. If he's eliminating at a .035, then if we come back this way, he could have been a .42; is that correct?

A. Yes, that's theoretically -- if he's only in a state of elimination and not still absorbing alcohol, that would be correct.

Q. Right. Because if he was still absorbing alcohol, he would actually be higher later on in the evening?

A. Yes. These experts are usually more than happy to give you information that might make your client’s BAC as high as possible. They typically believe they are helping the State’s position. In the case above, I added the machines listed variance to my client’s BAC to get to .365. Then I started adding the .035/hr elimination rate to the existing blood result. Since my client’s blood was taken an hour and a half after the stop, if he was in the elimination phase, he would have eliminated approximately .055. So we add that back to the .365 to get to the .42. This is not a true extrapolation. Notice from the transcript, I used the time of the stop as the time of last drink. I didn’t have to do complicated math to get there. Just extrapolated back to that point. All you want to do is set up the number to be as high as possible.

Once you get the witness to admit these high ranges, move in your questioning toward the medical signs/symptoms that should be exhibited. I have attached Dr. Kurt Dubowski’s Stages of Acute Alcoholic Influence/Intoxication chart. This chart describes the clinical signs/symptoms that should be seen depending on the BAC. Most experts, if they have had any training, will recognize Dr. Kurt Dubowski as a credible source and usually admit they have read this chart in publications. You are wanting to point out the disconnect between these symptoms and the evidence of your client that has been presented.

Q. And that's in that stage five stupor zone.

If that's just his number at the time of the draw, according to Dr. Dubowski, he should exhibit some of those signs, correct?

A. Yes, according to the chart.

Q. And then if he were to be above a .35 or higher, that would actually put him in the coma phase, correct?

A. Yes. Q. So if like you said theoretically like if he were at that .42, he would be in the coma phase, right?

A. Yes. Q. And now we're talking about "complete unconsciousness," correct?

A. Yes. Q. "Depressed or abolished reflexes," right?

A. Yes. Q. "Subnormal temperatures"?

A. Yes. Q. "Impairment of circulation and

respiratory" -- "respiration"?

A. Yes. Q. And possibly "death," right?

A. According to the chart, yes.

Q. And these are things like actually having to go to a medical hospital for, right?

A. I would assume so.

Q. What experts would call alcohol poisoning, right?

A. Again, that's outside of my expertise.

Q. But according to Dubowski, these are the clinical, the medical symptoms and signs, that somebody would be showing in these phases, right?

A. According to Dubowski, yes.

Q. And you have not seen the video in this case, right?

A. I have not.

MR. PEACOCK: I'll pass the witness, Judge.

This line of questioning gives you credibility with the jury because you are citing reliable authority and gives you lots to argue in terms of disconnect during closing argument. Use their extrapolation against them and try to get the BAC number as high as possible.

Closing After you elicit the answers from the blood witness, make sure you tie it all together in closing argument. Show the jury your version of the blood test is correct and the state hasn’t proven their case because of the giant disconnect between the evidence that was produced and the blood score being alleged.

‘Not Guilty’ on high blood cases are not impossible. I wish I could write a paper that would give you exactly what you need to get an NG on every case. Obviously, that is unrealistic. There is still going to be a lot of work you will need to do on your end, but I hope this paper gives you a starting point on how to attack your blood cases with confidence.

Don’t hesitate to reach out to me if I can ever be of help: matt@medlinfirm.com.

Resources/Cites “An Introduction to Retrograde Extrapolation” by Deandra Grant (COUNTERPOINT- The Journal of Science and Law, Vol. 1, Iss. 3; Summer 2016) Garriott's Medicolegal Aspects of Alcohol by James Garriott (Tucson, Ariz. : Lawyers & Judges Pub. Co., 2009, 5th ed.)

Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705 (2011) Mata v. State 46 S.W.3d 902 (Ct. Crim. App. 2001)

Special Thanks To Dean Miyazono for helping me craft this attack over the years and allowing me to learn from you. Literally, I wouldn’t be the same attorney without your friendship.

Will Gallagher for allowing me to sit second on your case and trusting me with the blood portion of the trial. You don’t get enough credit for the .33 win. You killed it the whole trial.

Gary Medlin for believing in me and being a great mentor all these years.

Suzy Vanegas for taking the time to proof read this paper and all your help the past couple of years.

TCDLA for all the DWI wisdom and information you have shared. I learn something new at every CLE event and I am always inspired by the amazing attorneys who present.

1

1

REPORTER'S RECORD

2

VOLUME 1 OF 1 VOLUMES

3

TRIAL COURT CAUSE NO. 1628613

4

THE STATE OF TEXAS

)

IN THE COUNTY CRIMINAL

5

VS.

)

COURT NUMBER ONE OF

6

CHIDIOGO NWOKOYE

)

TARRANT COUNTY, TEXAS

7 8 9 10 11 12

EXCERPT OF PROCEEDINGS CROSS-EXAMINATION OF DR. ALEXANDRA EASLEY

13 14 15

On the 2nd day of June, 2021, the following

16

proceedings came on to be heard in the above-titled

17

and numbered cause before the Honorable David E.

18

Cook, Judge Presiding, and a jury, held in Fort

19

Worth, Texas, reported by machine shorthand utilizing

20

computer-aided transcription.

21 22 23 24 25

Jana Kay Bravo, CSR Official Court Reporter County Criminal Court No. 1 Tarrant County, Texas

2

1

APPEARANCES:

2

HONORABLE CHLOE JOHNSON - SBOT NO. 24111175 HONORABLE JAIMIE JERNIGAN - SBOT NO. 24116569 Assistant District Attorneys 401 W. Belknap Street Fort Worth, Texas 76196 Telephone: 817-884-1400

3 4 5

Attorney(s) for The State of Texas.

6 7 8 9 10

HONORABLE MATT PEACOCK - SBOT NO. 24072277 HONORABLE WILLIAM GALLAGHER - SBOT NO. 24097719 Attorneys at Law 1300 South University Drive, Suite 318 Fort Worth, Texas 76107 Telephone: 817-900-6000 Attorney(s) for The Defendant.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

3

1

VOLUME 1 OF 1

2

EXCERPT OF PROCEEDINGS

3

June 2, 2021

4

PAGE

VOL.

5 6

Proceedings Begin ........................... 5

7

State's Witnesses

8

Alexandra Easley

9

Excerpt of Proceedings concluded............40

1

10

Reporter's Certificate ..................... 41

1

Direct

Cross

Voir Dire

5

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

1 Vol. 1

4

VOLUME 1 OF 1

1

ALPHABETICAL INDEX OF WITNESSES

2

June 2, 2021

3 4

Direct

5 6

Cross

Easley, Alexandra

Voir Dire

5

Vol. 1

7 8 EXHIBIT INDEX

9

June 2, 2021

10 11

DEFENDANT'S EXHIBITS

12 13

EXHIBIT

14

2

DESCRIPTION Report for Blood Alcohol

OFFERED ADMITTED VOL. 23

23

15 16 17 18 19 20 21 22 23 24 25

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

1

5

P R O C E E D I N G S

1

June 2, 2021 Wednesday 4:39 p.m.

2 3 4

(Open court, Defendant present, jury

5

not present)

6

THE COURT:

7

Okay.

for the jury?

8

MS. JERNIGAN:

9

MR. PEACOCK:

Yes, Your Honor.

Defense is ready.

10

THE COURT:

11

(Jury present)

12

THE COURT:

13

Both sides ready

Let's bring in the jury.

Thank you.

You may be

seated.

14

State has passed the witness.

15

Cross-examination.

16

MR. PEACOCK:

CROSS-EXAMINATION

17 18 19

Thank you, Judge.

BY MR. PEACOCK: Q.

Dr. Easley, you're here today to testify

20

regarding the blood results that was produced by your

21

lab, right?

22

A.

I am.

23

Q.

So you're not here to talk about whether

24 25

Chidiogo has any sort of tolerance to alcohol, right?

A.

That is correct.

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

6

1

Q.

Because you don't know, right?

2

A.

I don't know about his personal physiology,

3

that is correct.

4

Q.

Because it's different for everyone, right?

5

A.

Yes.

6

Q.

So any sort of testimony regarding

7

tolerance would be speculation, correct, because you

8

don't have enough information, correct?

9

A.

For his personal information, no.

10

Q.

Okay.

And so then for any personal

11

information regarding his specific tolerance, that

12

would be speculation, right?

MS. JOHNSON:

13 14

answered.

THE COURT:

15 16

19

I'll overrule.

You can

answer.

THE WITNESS:

17 18

Objection, asked and

For his specifically,

yes.

Q.

(By Mr. Peacock)

Okay.

And again, I think

20

you said that you worked for Armstrong Labs for about

21

two years; is that right?

22

A.

A little over, yes.

23

Q.

A little over.

Okay.

And your lab is

24

contracted to do the lab testing for a couple of

25

police departments; is that right?

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

7

1

A.

That is correct.

2

Q.

And so they pay you guys to test their

3

blood?

4

A.

They do.

5

Q.

And you said that you've testified in five

6

trials now?

7

A.

I think it's five, yes.

8

Q.

And that's out of the thousands of blood

9

cases that y'all received, right?

10

A.

That is correct.

11

Q.

And so not every blood case goes to trial,

12

correct?

13

A.

No.

14

Q.

And so you would say a small percentage of

15

your job is what you're doing here today, right,

16

testifying?

17 18 19 20

A.

Not necessarily.

Trial prep takes more

time, but it's not a significant amount.

Q.

It hasn't been anyway in the past year and

a half, right?

21

A.

No, especially not with the pandemic.

22

Q.

Do you anticipate that picking up as things

23

start opening up?

24

A.

I'm not familiar with the court systems.

25

Q.

Now, you just test the vials that come into

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

8

1

your lab, right?

2

A.

That is correct.

3

Q.

And that means however they come to your

4

lab, right?

5

A.

Yes.

6

Q.

And so you don't know whether the blood

7

draw was done correctly or incorrectly, right?

8

A.

That is correct.

9

Q.

And so looking at the vials before, the one

10

that was actually tested, based on the vial itself,

11

you don't know whose blood that belongs to, right?

12

A.

If you remove the information from the

13

outside package and the inner package, then yes.

If

14

you handed me the vial without any of that

15

information and with no chain of custody, I would not

16

be able to tell you who it belongs to.

17

Q.

Right.

Because it's not labeled, right?

18

A.

Correct.

19

Q.

So you are just saying that it's Chidiogo's

20

blood because it was in a box that was labeled with

21

Chidiogo's name, right?

22

A.

Yes.

23

Q.

And what we're talking about with the

24

machine that you discussed, in this case it was only

25

testing for alcohol, right?

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

9

1

A.

Yes.

2

Q.

More specifically ethanol alcohol?

3

A.

Yes.

4

Q.

Again, just however it got in the blood,

5

right?

6

A.

Yes.

7

Q.

And you know lots of cleaning products have

8

alcohol in them, right?

9

A.

Yes.

10

Q.

Many, right?

11

A.

I don't know about many.

12

I know that some

cleaning supplies do have ethanol alcohol in them.

Q.

Did you ever talk to the nurse in this

15

A.

No.

16

Q.

And you didn't view the video of this blood

17

draw, right?

18

A.

No.

19

Q.

And would you consider a jail a sanitary

13 14

20 21

case?

place?

MS. JOHNSON:

Objection, Your Honor.

22

The Defendant has already -- I'm sorry.

We've

23

already established that the Defendant has consented,

24

in which case the transportation code no longer

25

applies under Johnson v. State.

We no longer have to

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

10

1

prove that the area by which the blood draw was taken

2

was sanitary.

3

amendment.

It's hinged solely on the fourth

4

THE COURT:

5

MR. PEACOCK:

You got a response?

Yeah, Judge, I think if

6

she has an opinion as to whether the jail is a

7

sanitary place, she could say it.

8

I'm not looking to kick the blood on a sanitary place

9

if that's the argument.

THE COURT:

10

I mean, I'm not --

As long as you're not

11

going too far down this path, I'll let you answer --

12

I'll let you ask, and she can answer the question.

13

MR. PEACOCK:

14

THE COURT:

15 16

Q.

(By Mr. Peacock)

Okay.

Overrule the objection.

Doctor, do you have an

opinion whether a jail is a sanitary place?

17

A.

I have no experience with it.

18

Q.

Okay.

19

You talked just real briefly about

it, but blood is a mixture of a lot of things, right?

20

A.

Yes.

21

Q.

There's lots of stuff in it, correct?

22

A.

Yes.

23

Q.

And in terms of compounds, it's kind of a

24 25

jumbled mess, right?

A.

That's one way to call it, yes.

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

11

1 2

Q.

And one of the things you'd find in blood

is glucose, right?

3

A.

Yes.

4

Q.

But that is not something that you can

5

actually test with this GC, right?

6

A.

Correct.

7

Q.

The machine.

8

Because it's not a volatile

compound?

9

A.

Right.

10

Q.

Right.

And so when you're talking about

11

volatile compounds, you're talking about things like

12

acetone, right?

I'm sorry, you --

13

A.

I'm sorry.

14

Q.

Methanol?

15

A.

Yes.

16

Q.

Isopropanol?

17

A.

Yes.

18

Q.

And these volatile compounds, that's what

19

Yes.

the gas chromatography can test?

20

A.

That is what the headspace analysis tests.

21

Q.

Okay.

22

A.

But that is what we are detecting on the

23

gas chromatograph.

24

Q.

With the gas chromatograph?

25

A.

Correct.

Yes.

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

12

Q.

1

And so just for the jury's education, we

2

call it the gas chromatograph.

It's like a telegraph

3

and a telegram, right.

4

chromatograph, and what it produces is the

5

chromatogram?

So the machine is

6

A.

That is correct.

7

Q.

Right?

8

A.

Yes.

9

Q.

And so you prepare the samples prior to

10

running the machine, right?

11

A.

Yes.

12

Q.

And you prepared several at once, correct?

13

A.

Yes.

14

Q.

And like you said, we would call it back

15

testing?

A.

16

Yes. MR. PEACOCK:

17 18

the -- the --

19

THE COURT:

20

MR. PEACOCK:

21

it.

24 25

Yes.

The Maverick.

I forget what we call

The Maverick.

THE COURT:

22 23

Judge, may I approach

We call it the Maverick,

yeah.

Q.

(By Mr. Peacock)

first time with this.

So, Doctor, this is my

If I mess this up, I've got

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

13

1

our old school version with paper and marker right

2

over here, okay, so if you'll bear with me and my

3

drawings.

4

this works.

5

headspace vials like we discussed, right?

All right.

Okay.

Let's cross our fingers that

And so, again, you prepared the

6

A.

Yes.

7

Q.

And so what we have is our -- that's

8

perfect.

9

take those vials -- even the old school's going to

10

fail me.

Doctor, you talked about what you do is you

Can you see that okay, Doctor?

11

A.

Yes.

12

Q.

So you take the vial of blood, right?

13

A.

Uh-huh.

14

Q.

And then what you do is you put it into a

15

much smaller vial and you -- that's called a

16

headspace vial?

17

A.

Yes.

18

Q.

And the instrument that you use is what's

19

called a pipette; is that correct?

20

A.

To transfer the blood?

21

Q.

Correct.

22

A.

Yes.

23

Q.

And so what you do is you come down to here

24

with the pipette, take up the blood, and move it into

25

the headspace vials?

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

14

1

A.

That is correct.

2

Q.

Right.

3

And like you said, then you put

like a crimped top on that headspace vial, right?

4

A.

Yes.

5

Q.

And that's where the blood that's actually

6

tested is in those vials, correct?

7

A.

Yes.

8

Q.

Do we have the headspace vials that were

9

tested in Chidiogo's case here?

10

A.

No.

11

Q.

Because they're destroyed, right?

12

A.

They are.

13

Q.

At the same time you're also pipetting into

14

this headspace vial N-Propanol; is that correct?

15

A.

It's in the internal standard, but yes.

16

Q.

And you say internal standard.

That's

17

what's added into this vial because you know exactly

18

how much is supposed to be in that vial, right?

19

A.

Yes.

20

Q.

Right.

Because we talked about the

21

pipette, and I call it an instrument because it has

22

been to be calibrated very precisely, correct?

23

A.

Yes.

24

Q.

Because if it's not, it will actually

25

insert more internal standard than is necessary?

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

15

1

A.

Yes.

2

Q.

Which can then elevate the blood results,

3 4 5 6 7

right?

A.

More internal standard would actually

decrease the blood results.

Q.

Sorry, that's right.

And then less would

elevate it, right?

8

A.

That is correct, yes.

9

Q.

So if the pipette's not calibrated

10

correctly, it could affect the results?

11

A.

Right.

12

Q.

And that N-Propanol is actually a type of

13

alcohol, right?

14

A.

Yes.

15

Q.

And you do this process for several of

16

those small headspace vials, right?

17

A.

Yes.

18

Q.

And you put them on what you guys call an

19

auto sampler?

20

A.

Yes.

21

Q.

Do you guys have the rectangle or the

22

circular auto samplers?

23

A.

For the blood alcohol?

24

Q.

Yes, ma'am.

25

A.

The trays we use are rectangular.

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

16

1 2 3

Q.

Rectangular, okay.

And so, I guess, for a

visual, have you seen the circular ones before?

A.

We use circular ones on some of our other

4

instruments, but I -- they make a lot of different

5

types.

6

Q.

Okay.

7

A.

So I'm not sure if you and I are talking

8 9

about the same ones.

Q.

I guess what I'm just saying is just so the

10

jury can have a picture, like the circular ones look

11

like old communion trays, right?

12

A.

Yeah.

13

Q.

Is that right?

14

A.

Yeah.

15

Q.

So then basically if you just had a

16

rectangle, that's what it looks like if you were to

17

just match that to a rectangle?

18

A.

This auto sampler is a little different.

19

The auto sampler itself is actually on the track at

20

the back of the instrument, and it's told to go to

21

certain places, and the trays themselves are

22

separate.

23

have the auto sampler in the tray hooked together,

24

and then the tray would move so the auto sampler goes

25

to the same place every time, so it's a little

Other circular auto samplers typically

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

17

1

different.

Q.

2

Okay.

But you are to put these headspace

3

vials into very precise locations in the auto sampler

4

in that tray, right?

5

A.

That is correct.

6

Q.

Because if you don't put them in the right

7

place, then the results for that sample could be

8

associated with the wrong case?

9

A.

That is correct.

10

Q.

You guys call it switching vials or

11

swapping vials; is that right?

12

that?

Have you ever done

13

A.

We -- no.

That would be an error.

14

Q.

And at your lab, the number that's on

15

State's Exhibit 8B, the vial that was tested by your

16

lab, there's a number on there, right?

17

tag on there?

You put that

18

A.

Yes.

19

Q.

And that's a lab number given by your lab,

20

correct?

21

A.

That is correct.

22

Q.

And that does not come from Mansfield PD?

23

A.

That is correct.

24

Q.

And it does not come from the nurse?

25

A.

Right.

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

18

1

Q.

Does not come from the property room?

2

A.

That is correct.

3

Q.

And so that's a number given by your lab

4

when the blood gets there?

5

A.

Yes.

6

Q.

And then it's also given a run number or an

7

identification number when it goes into the gas

8

chromatograph, right?

9

which one is the one you want to be tested is by a

10 11 12

The way you tell the machine

different number, correct?

A.

We tell it which location to go to.

But

you're talking about the run ID?

13

Q.

Correct.

14

A.

That is the chromatogram name in our filing

15

system.

16

Q.

17

So that's a different number as well,

right?

18

A.

Yes.

Yes.

19

Q.

And when you talked about that the sequence

20

is repeated, you don't run it one time and then take

21

all those headspace vials out and move it around,

22

right?

23 24 25

A.

No, but I don't understand "the sequence is

repeated."

Q.

I believe you testified earlier that the

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

19

1

sequence is repeated; is that correct?

2

A.

No.

3

Q.

But you said it's tested twice, right?

4

A.

Yes.

The sample is prepared in duplicate,

5

so two of those headspace vials per vial of blood

6

tested.

7

Q.

Right.

And so then the way it works is

8

that it runs through the order that it's been put in

9

by the analyst, right?

10

A.

Correct.

11

Q.

And then it runs that in reverse?

12

A.

No.

13

Q.

Yours does not run it in reverse to test it

14 15 16

twice?

A.

No.

It runs -- no, it did not run in

reverse.

17

Q.

So it runs it twice the same way?

18

A.

It -- it just runs once.

19

the blank.

20

the sample duplicate from the CCD, so each sample was

21

tested once.

22

Q.

But you get four numbers?

23

A.

Yes, because we have two columns.

24 25

It will take the sample.

So it will sample It will take

Each vial is tested once.

So one

injection will go through each of the columns.

Q.

Gotcha.

Okay.

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

20

1

A.

That's to confirm -- that's an inner check

2

to confirm that the columns themselves are working in

3

order.

4

Q.

Gotcha.

Gotcha.

So let's talk about the

5

columns real quick just so the jury understands.

6

We're not talking about the columns or like pillars

7

that hold up the building, right?

8

A.

That is correct.

9

Q.

The column looks like the thinnest guitar

10

string wrapped up in about 50 different ways, right?

11

A.

Yes.

12

Q.

So it's real thin, correct?

13

A.

That is correct.

14

Q.

And it's coated on the inside with a

15

substance that helps separate the molecules as that

16

gas runs through there?

17

A.

That is correct.

18

Q.

And so what you're looking for is the

19

ethanol to hit first and then the N-Propanol?

20

A.

Yes, that is correct.

21

Q.

Right?

22

A.

Sorry.

23

Q.

And what's your carrier gas?

24 25

Yes. Are y'all

still using helium?

A.

We use nitrogen.

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

21

1

Q.

Helium got expensive?

2

A.

Yeah.

3

Q.

Okay.

And so the amount of blood, I think

4

on your sheet, you said that those tubes were about

5

three-quarters of the way full; is that right?

6

A.

Right.

7

Q.

The amount that actually goes in the

8

headspace vial is very miniscule; is that correct?

9

A.

That is correct.

10

Q.

And then it heats it up, right, the machine

11

heats it up, and like you said, it actually punctures

12

it and sucks the gas out of the top, right?

13

A.

Yes.

14

Q.

And that's where you said the headspace is,

15

right?

16

A.

Yes.

17

Q.

And that's what runs through the column?

18

A.

Yes.

19

Q.

Right?

20

A.

Yes.

21

Q.

Now, you said -- you discussed earlier

22

that, oh, if there's a lot of noise on the

23

chromatogram, that's an indicator that there may be

24

something wrong with the column, correct?

25

A.

Yes.

It's -- the blanks that we shoot --

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

22

1

so the blanks do not contain any ethyl alcohol, but

2

they do contain the N-Propanol for the internal

3

standard.

4

very large peak.

5

our samples and it just looks like a squiggly line

6

that's going to cross, that's considered noise.

7

would indicate that there's some sort of instrument

8

failure.

9 10

Q.

That is going to give what looks like a

Right.

If we don't see that peak in any of

That

Because what you're looking for is

equal symmetrical peaks, correct?

11

A.

We're looking for symmetrical peaks, yes.

12

Q.

Yes.

But like you said, if there's noise

13

on the base line of it, that could indicate something

14

wrong with the column, right?

15 16

A. base line.

There would be no large N-Propanol peak.

(Defendant's Exhibit 2 marked)

17 18

There would be -- the noise would be the

Q.

(By Mr. Peacock)

Dr. Easley, I'm going to

19

hand to you what I've marked as Defense Exhibit 2.

20

Do you recognize that?

21

A.

It's a typical report for blood alcohol.

22

Q.

And based on that piece of paper, can you

23

tell which report for which blood that belongs to?

24

A.

It's for case C000522A.

25

Q.

And those would be chromatograms, right?

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

23

1

A.

Yes.

2

Q.

And is that the number associated with the

3

blood that was tested in this case?

4

A.

It is.

5

Q.

And so are you confident that that is the

6

chromatogram for the blood tested in this case?

7

A.

Yes.

8

Q.

Thank you.

MR. PEACOCK:

9

I'm going to tender

10

Defense Exhibit 2 to the State, and ask that it be

11

admitted if there's no objections.

12

MS. JOHNSON:

13

THE COURT:

14

State has no objections.

Defense Exhibit 2 is

admitted.

MR. PEACOCK:

15 16

Q.

17

the results?

18

A.

I -- I do, yes.

19

Q.

Dr. Easley, I believe State's Exhibit 11

20

(By Mr. Peacock)

Thank you, Judge.

Dr. Easley, do you have

were the results that were admitted on this document?

21

A.

Yes.

22

Q.

Is that correct?

23

A.

That is correct.

24

Q.

And this is a document that you produced,

25

right?

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

24

1

A.

I sign it.

I don't type reports.

2

Q.

But this is not what the machine produces?

3

A.

That is correct.

4

Q.

So we just put it on letterhead and a

5

report that just goes out to make it look more

6

readable, right?

7

A.

Yes.

8

Q.

This is a document that the machine

9

actually produces, correct?

10

A.

Yes.

11

Q.

And so what we're looking for in order to

12

get this number, and you can see it over here in the

13

quantitative space, is the space in between these

14

peaks, right?

15

A.

It's the area.

16

Q.

The area.

17

A.

You mean the peak?

18

Q.

Yes, ma'am.

19

A.

Yes.

20

Q.

Do you know how many headspace vials were

21 22 23 24 25

tested in this case?

A.

I can go back and count and look.

It's --

but off the top of my head, no.

Q.

But we don't have any of those headspace

vials from this case, correct?

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

25

1

A.

That is correct.

2

Q.

And those vials, State's Exhibit 8A and

3

8B -- I'll take those from you, Doctor.

4

A.

Sure.

5

Q.

These vials, these actual vials, were not

6

tested, right?

7

A.

No.

8

Q.

And in fact, 8A, the one that actually had

9

Chidiogo's name on it, not only was the vial not

10

tested but the inside contents were not tested

11

either, correct?

12

A.

That is correct.

13

Q.

And so the test that we have comes from a

14

vial that was not marked or identified with a

15

particular individual's name, right?

16 17 18

A.

There was no labeling on the vials off

those, correct.

Q.

Now, on that laboratory worksheet, you

19

didn't know that there was an arrested's person's

20

name on there, right?

21

A.

I did not.

22

Q.

And so why did you choose to test the one

23 24 25

that did not have somebody's name on it?

A.

It is actually very rare for there to be

any sort of label written, handwritten on the vial

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

26

1

itself.

2

choose the vial that just is the first one we choose.

3

It -- it's a random testing.

4

once we pick it out, but you just pick the vial.

Q.

5 6

It's not a -- to help decrease bias, we

So we'll look at it

Doctor, you said that that's a standard

blood kit, right?

7

A.

From my knowledge, yes.

8

Q.

Does Armstrong prepare those?

9

A.

No.

10

Q.

And so an officer who might deal with those

11

everyday would also be familiar with them, right?

A.

12 13

I would assume so, but I don't have any

experience.

14

Q.

And so you've tested a thousand of these?

15

A.

Probably in that ballpark, yes.

16

Q.

And you're saying it's unusual for them to

17

come in with the individual's name on them?

A.

18

Written on the -- the label itself that was

19

on that vial is from the manufacturer, and it

20

contains the manufacturer's information.

21

if there is any information on the vial, it should be

22

on a label that would have been on the -- over the

23

top.

24 25

Q.

Over the top, right.

Typically,

It could have been

that gray tube, right?

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

27

1

A.

Yes.

2

Q.

Because there's --

3

A.

Or the gray cap, yes.

4

Q.

The gray cap, right.

5 6 7 8 9 10

The gray cap is for

forensic purposes, right?

A.

I actually don't know what the purpose of

the gray cap is.

Q.

Okay.

So what you're talking about is this

is a vial, there's a label that goes over the top; is that correct?

11

A.

Typically, yes.

12

Q.

And on it, it's usually white and you can

13

write on it, correct?

14

A.

Yes.

15

Q.

And then what your lab will do is just take

16 17

that off and save it for after the testing, right?

A.

Yes. MR. PEACOCK:

18 19

blood, Judge?

THE COURT:

20 21

May I approach the

Q.

(By Mr. Peacock)

You may.

This tube that was not

22

tested, this is an incorrect label or covering over

23

that top, right?

24 25

A.

I would not say it's incorrect, but it is

not what we typically -- what I typically see as an

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

28

1

analyst.

Q.

2 3

blood -- on top of blood like this?

A.

4 5

Maybe.

6

labs.

7 8

Have you ever seen this tape on top of this

I can't definitively answer that question.

We use evidence tape in other aspects of the

Q.

Okay.

So if yes, it would have been a very

rare circumstance?

9

A.

It's not common, yeah.

10

Q.

So what we're talking about, then, is an

11

actual label that goes over the top of the gray part?

12

A.

Typically.

13

Q.

And then it would have information on it

14

that's removed and saved with the rest of the kit?

15

A.

Yes.

16

Q.

We don't have that in this case?

17

A.

I did actually see a label that was

18

consistent with that.

It looks like it's attached to

19

the top of the kit if you look at the lid.

20

Q.

This one right here?

21

A.

That would be something that would be

22

consistent with the label attached over the top of

23

the vial.

24 25

Q.

Okay.

Thank you.

Doctor, your Ph.D. is in

chemistry, right?

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

29

1

A.

Biochemistry.

2

Q.

Biochemistry, excuse me.

But you are able

3

to testify about the physiological effects of

4

alcohol, right?

5

A.

Not specifically the physiological effects.

6

Q.

Can you talk about the way alcohol is

7 8 9

processed in the body?

A.

I can speak to elimination rates

specifically.

My degree itself is in kinetics, which

10

means rate of reaction.

11

can extrapolate from.

12

individual information, but I can give you averages.

May I approach the

Maverick, Judge?

THE COURT:

15 16

Again, I don't have any

MR. PEACOCK:

13 14

So that is something that I

Q.

(By Mr. Peacock)

You may.

Doctor, I'm going to try

17

this one more time.

So alcohol in the body, it works

18

in a pretty standard way for everyone, right?

19

There's an absorption rate, correct?

20

A.

That is correct.

21

Q.

And then a peak, right?

22

A.

Right.

23

Q.

And then an elimination rate?

24

A.

That is correct.

25

Q.

And so when you graph it out, you have the

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

30

1

absorption rate, a peak, and then an elimination

2

rate.

3

right?

4 5 6 7 8 9

And it kind of looks like a roller coaster,

A.

Typically, the elimination's more linear,

but yes.

Q.

Okay.

And the absorption happens much

quicker than the elimination; is that correct?

A.

Most of the time, yes, but that's depending

on a lot of factors, specifically whether or not the

10

person is in a fed state or fasted.

So have they

11

eaten, have they not eaten, and then have they

12

already started consuming alcohol.

13

consistent drinkers?

14

rate is more faster --

Are they

But typically the absorption

15

Q.

Right, it's --

16

A.

-- or faster than the elimination rate.

17

Q.

It's way more common for it to be quicker

18

than the elimination rate, correct?

19

A.

Based on the research that I've read, yes.

20

Q.

And in this case at the time that blood was

21 22

tested, it tested at a .333; is that right?

A.

I don't have the paperwork in front of me,

23

but I believe that that is what I read earlier.

24

.0 -- .333.

25

Q.

.333, right?

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

Yes.

31

1

A.

Yes.

2

Q.

With plus minus .032, right?

3

A.

That is correct.

4

Q.

And so what that means is that at the time

5

of the blood draw, he could have -- according to the

6

test could have been as high as a .365; is that

7

correct?

8

A.

Yes.

9

Q.

Now, and again, you know that the

10

elimination -- well, let me ask this.

11

toxin, right?

Alcohol is a

12

A.

Yes.

13

Q.

So your body is trying to kick blood as

14

fast as it can out of the body, correct?

15

A.

Kick ethyl alcohol out.

16

Q.

Ethyl alcohol, yes.

17

A.

Yes.

18

Q.

So anywhere water leaves the body, alcohol

19

is going to leave the body, correct?

20

A.

Yeah.

21

Q.

So that's why, you know, when people go out

22

to drink they have to, for lack of a better term, pee

23

a lot, right?

24

A.

One of the reasons, yes.

25

Q.

Right.

Because your body is trying to kick

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

32

1

that alcohol out, correct?

2

A.

Yes.

3

Q.

And then the elimination rate for most

4

folks is pretty standard.

5

most part -- well, let me ask you this:

6

understanding of the standard rate of elimination?

7

A.

I think everybody for the What is your

I have a range that I talk about.

It's --

8

the lowest elimination rate is .01 percent per hour.

9

The highest on average has been about .035 per hour.

10

Q.

And you know, especially with that range,

11

the more alcohol that's in the body, the faster it's

12

trying to eliminate it, right?

13

A.

That's not completely correct.

The way --

14

the way that your alcohol disposes of body -- I'm

15

sorry.

16

that up to a certain point it will work faster the

17

higher the concentration, and I can't remember off

18

the top of my head what that number is.

19

reaches above that number, it's a consistent rate

20

over all.

The way that your body disposes of alcohol is

But once it

21

It's a difference of -- we call it

22

zero order, which is the first order of kinetics.

23

It's just how it works.

24

machine getting rid of the alcohol in your system,

25

once you reach that machine's capacity, it can't

So if you think of it as a

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

33

1

function any better.

But I do remember that that

2

number is relatively low.

3

having a couple of drinks, it's a consistent

4

elimination rate until it gets back down below that

5

number.

6

Q.

So once people get to

And so let's just say that he's on the high

7

end of this elimination rate because his number's

8

high.

9

that once somebody is in the custody of police

Let me ask you this, Doctor.

It's typical

10

officers, they're not drinking anymore alcohol,

11

right?

12

A.

That would be my assumption.

13

Q.

And do you know what time this blood was

14

drawn at?

15

A.

I don't.

16

Q.

Do you know what time the stop was at?

17

A.

I don't.

18

Q.

But if there was just under an hour, okay,

19

if it was just under an hour from the time of the

20

stop to the blood draw, we could say that Chidiogo

21

was with the officer during that time.

22

A.

Okay.

23

Q.

If he's eliminating at a .035, then if we

24

come back this way, he could have been a .42; is that

25

correct?

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

34

1

A.

Yes, that's theoretically -- if he's only

2

in a state of elimination and not still absorbing

3

alcohol, that would be correct.

4

Q.

Right.

Because if he was still absorbing

5

alcohol, he would actually be higher later on in the

6

evening?

7

A.

Yes.

8

Q.

Right?

9

A.

Theoretically.

Again, that's depending on

10

his own personal physiology.

But, yes, it would be

11

around -- it's right in that kind of ballpark.

12

Q.

Have you ever heard of Dr. Kurt Dubowski?

13

A.

Yes.

14

Q.

And he's a toxicologist; is that right?

15

A.

Yes.

16

Q.

He's done lots of blood alcohol studies,

17

correct?

18

A.

That is correct.

19

Q.

And are you familiar with Garriott's

20

Medicolegal Aspects of Alcohol?

21

A.

I think I've heard of it.

22

Q.

Do you have this book in the lab?

23

A.

No, we do not.

24

Q.

But you've heard of Dr. Dubowski, and you

25

know of his Acute Alcoholic Influence/Intoxication

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

35

1 2 3 4 5 6

chart, right?

A.

Off the top of my head.

to reference it.

Q.

If I gave you a copy to refresh your

memory, would that help?

A.

Possibly.

MR. PEACOCK:

7 8

THE COURT:

10

Q.

11

Doctor?

12

A.

14 15

Approach the witness,

Judge?

9

13

I wouldn't be able

(By Mr. Peacock)

Yes.

You may.

Does that look familiar,

I believe it's been published in a

couple of the papers I've read.

Q.

So that is a good authority on stages of

alcohol, right?

16

A.

That is correct.

17

Q.

And he says on his chart that there are

18

seven stages, correct?

19

A.

That is my understanding.

20

Q.

And I'll try to do this quickly so that

21

we're not just drudging through it.

But the first

22

stage is what you call "Subclinical," right?

23

A.

According to this chart, yes.

24

Q.

The second is "Euphoria"?

25

A.

Again, according to the chart, yes.

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

36

1

Q.

Third is "Excitement"?

2

A.

Yes.

3

Q.

Fourth, "Confusion"?

4

A.

Yes.

5

Q.

Fifth, "Stupor," right?

6

A.

Yes.

7

Q.

Sixth, "Coma"?

8

A.

Yes.

9

Q.

And then stage seven is "Death," right?

10

A.

It is, yes.

11

Q.

And if somebody were a .333, what stage

12 13 14 15

would they fall into under Dubowski's chart?

A.

According to this chart, it looks like they

would be in a stupor.

Q.

And there's specific clinical signs and

16

symptoms that he says somebody would exhibit in that

17

phase, right?

18

A.

Yes.

I would like to preface this that

19

I -- my Ph.D. and my background was not in

20

physiology, so I'm just repeating what the chart is

21

saying.

22

Q.

23 24 25

Right, because that's a learned treatise,

right?

A.

Yes.

That is something that is outside of

the area of my expertise.

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

37

1 2

Q.

Right.

But you've read papers with that

chart in it, right?

3

A.

Yes.

4

Q.

And so some of those symptoms and signs are

5

general inertia, correct, and what we're talking

6

about is approaching the loss of motor function,

7

right?

MS. JOHNSON:

8 9 10

Objection, Your Honor,

the witness has testified that this is not within her area of expertise.

MR. PEACOCK:

11

Judge, she's testified

12

this is a learned treatise, that she's read papers on

13

this, they've called her as the witness to come and

14

talk about the effects of alcohol.

15

I mean, she's read it.

16

published.

17

knows that Dr. Dubowski is a good authority of

18

alcohol, and she's allowed to testify from it.

19

seen it before she said, and she's seen it to refresh

20

her memory.

21

She says that --

It's in the -- it's

It's in this book, Judge.

THE COURT:

I mean, she

She's

So I'm going to overrule

22

the objection, but obviously she doesn't have to

23

answer questions that aren't in her expertise.

24

again, if she believes that's reliable, then she can

25

testify about it.

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

But

38

1

MR. PEACOCK:

2

already testified she does.

3

Q.

(By Mr. Peacock)

Which I believe she's Thank you.

So in that stupor phase

4

somebody would have "marked muscular incoordination,"

5

right?

6

A.

That is what the chart says.

7

Q.

And you believe that's a reliable

8 9

authority, right?

A.

That is my understanding from the other

10

papers that I have read, that Dubowski is a well

11

known toxicologist.

12

Q.

Right.

13

A.

I do.

14

Q.

And you used those to testify before today,

15

right?

16

A.

I have.

17

Q.

Yeah.

18

And you trust those papers?

And so when we're talking about

muscle incoordination, we're talking ataxia, right?

19

A.

I'm not familiar with that term.

20

Q.

Basically, when we're talking about marked

21

muscular incoordination, we're talking about the loss

22

of full control of your body movements, right?

23

A.

Okay.

24

Q.

In the stupor phase, you have the inability

25

to walk or stand, right?

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

39

1

A.

According to this chart, that is correct.

2

Q.

According to the chart, somebody would be

3

"vomiting," right?

4

A.

Yes.

5

Q.

"Impaired consciousness, sleep," or the

6

term for that phase "stupor," right?

7

A.

Yes.

8

Q.

And that's in that stage five stupor zone.

9

If that's just his number at the time of the draw,

10

according to Dr. Dubowski, he should exhibit some of

11

those signs, correct?

12

A.

Yes, according to the chart.

13

Q.

And then if he were to be above a .35 or

14

higher, that would actually put him in the coma

15

phase, correct?

16

A.

Yes.

17

Q.

So if like you said theoretically like if

18

he were at that .42, he would be in the coma phase,

19

right?

20

A.

Yes.

21

Q.

And now we're talking about "complete

22

unconsciousness," correct?

23

A.

Yes.

24

Q.

"Depressed or abolished reflexes," right?

25

A.

Yes.

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

40

1

Q.

"Subnormal temperatures"?

2

A.

Yes.

3

Q.

"Impairment of circulation and

4

respiratory" -- "respiration"?

5

A.

Yes.

6

Q.

And possibly "death," right?

7

A.

According to the chart, yes.

8

Q.

And these are things like actually having

9

to go to a medical hospital for, right?

10

A.

I would assume so.

11

Q.

What experts would call alcohol poisoning,

12

right?

13

A.

Again, that's outside of my expertise.

14

Q.

But according to Dubowski, these are the

15

clinical, the medical symptoms and signs, that

16

somebody would be showing in these phases, right?

17

A.

According to Dubowski, yes.

18

Q.

And you have not seen the video in this

19

case, right?

20

A.

21 22 23

I have not.

MR. PEACOCK:

I'll pass the witness,

Judge.

(Conclusion of Excerpt of Proceedings)

24 25

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

41

1

STATE OF TEXAS

2

COUNTY OF TARRANT

3

I, Jana Kay Bravo, Official Court Reporter

4

in and for the County Criminal Court No. 1 of Tarrant

5

County, Texas, do hereby certify that the above and

6

foregoing contains a true and correct transcription

7

of all portions of evidence and other proceedings

8

requested in writing by counsel for the parties to be

9

included in this volume of the Reporter's Record in

10

the above-styled and numbered cause, all of which

11

occurred in open court or in chambers and were

12

reported by me.

13

I further certify that this Reporter's

14

Record of the proceedings truly and correctly

15

reflects the exhibits, if any, offered by the

16

respective parties, if requested.

17

I further certify that the total cost for

18

the preparation of this Reporter's Record is $200,

19

and was paid by Defense Attorney.

20 21 22 23 24

WITNESS MY OFFICIAL HAND, on this the 5th day of November, 2021.

Jana Kay Bravo ________________________________ Jana Kay Bravo, CSR Texas CSR No. 1565, Exp:02/28/23 Official Court Reporter County Criminal Court No. 1 Tarrant County, Texas 76196

25

Jana Kay Bravo, Official Court Reporter County Criminal Court No. 1

STAGES OF ACUTE ALCOHOLIC INFLUENCE/INTOXICATION BLOODALCOHOL CONCENTRATION grams/100 mL

STAGE OF ALCOHOLIC INFLUENCE

0.01-0.05

Subclinical

0.03-0.12

Euphoria

0.09-0.25

Excitement

0.18-0.30

Confusion

0.25-0.40

Stupor

0.35-0.50

Coma

0.45+

Death

CLINICAL SIGNS/SYMPTOMS Influence/effects usually not apparent or obvious Behavior nearly normal by ordinary observation Impairment detectable by special tests Mild euphoria, sociability, talkativeness Increased self-confidence; decreased inhibitions Diminished attention, judgment and control Some sensory-motor impairment Slowed information processing Loss of efficiency in critical performance tests Emotional instability; loss of critical judgment Impairment of perception, memory and comprehension Decreased sensitory response; increased reaction time Reduced visual acuity & peripheral vision; and slow glare recovery Sensory-motor incoordination; impaired balance; slurred speech; vomiting; drowsiness Disorientation, mental confusion; vertigo; dysphoria Exaggerated emotional states (fear, rage, grief, etc) Disturbances of vision (diplopia, etc.) and of perception of color, form, motion, dimensions Increased pain threshold Increased muscular incoordination; staggering gait; ataxia Apathy, lethargy General inertia; approaching loss of motor functions Markedly decreased response to stimuli Marked muscular incoordination; inability to stand or walk Vomiting; incontinence of urine and feces Impaired consciousness; sleep or stupor Complete unconsciousness; coma; anesthesia Depressed or abolished reflexes Subnormal temperature Impairment of circulation and respiration Possible death Death from respiratory arrest

KURT M. DUBOWSKI, Ph.D., D.A.B.C.C., D.A.B.F.T. The University of Oklahoma Department of Medicine Oklahoma City, Oklahoma Copyright© 2006 by Kurt M. Dubowski, Ph.D. All Rights Reserved

Texas Criminal Defense Lawyers Association

DWI Defense Seminar May 6, 2022

Topic: Voir Dire Reflective Questioning Speaker:

David Burrows 4420 Staten Island Dr. Plano, TX 75024 (214) 755-0738 Phone (214) 377-4169 Fax David@DWIdb.com email

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

4/26/2022

2

3

1

4/26/2022

4

5

6

2

4/26/2022

7

INFLUENCE

8

INFLUENCE

INFLUENCE

9

3

4/26/2022

10

11

12

4

4/26/2022

13

IS A PERSON GUILTY BECAUSE THEY WERE ARRESTED?

14

15

5

4/26/2022

16

DOES “ADMITTED” MEAN PROVEN?

17

18

6

4/26/2022

19

20

21

7

4/26/2022

22

23

“WHILE OPERATING”

24

8

4/26/2022

25

26

27

9

4/26/2022

28

HOW MANY OF YOU HAVE RECEIVED A TICKET WHERE YOU DISAGREED WITH THE OFFICER?

29

WHAT LEVEL OF PROOF MUST AN OFFICER HAVE TO WRITE A TICKET?

30

10

4/26/2022

TO YOU ….

WHAT IS THE MOST IMPORTANT WORD IN THE LAW “BEYOND A REASONABLE DOUBT”?

31

REGARDING THE ELEMENTS HOW MANY REASONABLE DOUBTS MUST EXIST TO VOTE NOT GUILTY?

32

33

11

4/26/2022

WHICH IS A HIGHER LEVEL OF PROOF, BEYOND A REASONABLE DOUBT OR CLEAR AND CONVINCING? 34

WHAT IS THE OFFICER'S “DECISION POINT” TO ARREST? WHAT IS A JUROR'S “DECISION POINT” TO VOTE GUILTY? 35

36

12

4/26/2022

WHAT DOES “BEYOND A REASONABLE DOUBT” MEAN TO YOU?

37

REASONABLE DOUBT CAN BE RAISED THREE WAYS.

38

1. THE EVIDENCE 2. LACK OF EVIDENCE 3. CONFLICT IN EVIDENCE IF THE CONFLICT RAISES A REASONABLE DOUBT IN YOUR MIND. 39

13

4/26/2022

THE VERDICT IN THIS CASE WILL BE GUILTY OR ___________?

40

WHAT ARE YOU SAYING IF YOU VOTE “NOT GUILTY”?

41

IS THERE A VERDICT OF …

“UNDECIDED”?

42

14

4/26/2022

43

15

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

WWW.TCDLA.COM

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.

Deserving members without the wherewithal to attend our seminars can get financial aid to help in their continuing legal education.

Pledge Options Choose a fund that’s near and dear to you: For the

q ASSOCIATE FELLOWS FUND ($750)

q In one lump sum

q Quarterly

q Monthly

q FELLOWS FUND ($1500)

q SUPER FELLOWS FUND ($3000)

q In ____ payments of $________.

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 For CHRISTINE S. CHENG 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 $___________ q CLIFTON "SCRAPPY" HOLMES MEMORIAL INDIGENT DEFENSE SCHOLARSHIP FUND in the amount of $___________

Contact Information _________________________________________________________________ Name

__________________________________________________________________ Bar Card Number/Date

_________________________________________________________________ Street

__________________________________________________________________ City, State, Zip

_________________________________________________________________ Phone

__________________________________________________________________ Email

Payment Method q Check payable to TCDLEI

q Credit Card (Visa, Mastercard, Amex, or Discover)

_________________________________________________________________ Credit Card Number

__________________________________________________________________ Expiration Date

_________________________________________________________________ Name On Card

__________________________________________________________________ Signature

Mail completed pledge form with payment to TCDLA • 6808 Hill Meadow Drive • Austin, Texas 78736 TCDLA Office Use Only Amount:_____________________________ Check/cc: _______________________________ Entered By: _____________________________ Date: __________________________

You can also return by email to mrendon@tcdla.com or fax to 512.469.9107.

Texas Criminal Defense Lawyers Association Membership Application (Effective 4/2019)

Contact Information Your membership is effective upon approval of application and receipt of annual membership dues. q Mr. q Ms. q Mrs.

______________________________________________________

__________________________

______________________________________________________

______________________________________________________

Name (first, middle, last) Address

Date of Birth*

__________________________ Ethnicity*

City, State, Zip

___________________________ ___________________________ ___________________________ ___________________________ County

Phone

Cell phone

Fax

_____________________________________ ____________________________________ ____________________________________ Business

Email

______________________________________________________ Bar Card Number/Date Licensed

Website

______________________________________________________ Member of Local Bar

New-Member Endorsement (must be completed for new members) As a current member of TCDLA, I believe this applicant to be a person of professional competency, integrity and good moral character.

______________________________________________________ Printed Name of Endorser

______________________________________________________ Signature of Endorser

* These questions are optional and for internal statistics only. The information provided will not be distributed at any time.

Membership Fees

Get Involved: Committees/Lawyer Locator

Membership Category and Yearly Fees: $_______ $100 First-time ($100 for each of the first two years) $_______ $180 Regular member $_______ $60

Public defender (must be a PD employee)

$_______ $330 Voluntary sustaining (required for TCDLA officers and directors) $_______ $100 TCDLA past president $_______ $80

Distinguished member (70+ years old)

$_______ $20

Law student (not auto-renew)

$_______ $80

Affiliate (: q Paralegal

q I’m interested in serving on a committee—send information. q Send me a Board application. q Y

es! Include me in the online Lawyer Locator.** You may list up to three areas of specialty in criminal defense law for public access (example: DWI, sexual assault, appeals).

_________________ __________________ ________________

q Investigator q Expert q Other (law professors & others approved by board)

I prefer not to participate in auto-renewal

$_______ Total

**Disclaimer: Provider makes no promises, guarantees, or warranties regarding the attorneys listed on its Lawyer Locator. Said attorneys are TCDLA members who have requested inclusion on provider’s website to provide the public with choices for possible legal services. Provider expressly disclaims all warranties, including the warranties of merchantability, fitness for a particular purpose, and non-infringement. Moreover, content contained on or made available through this website is not intended to and does not constitute legal advice, and no attorney-client relationship is formed. The accuracy, completeness, adequacy, or currency of the content is not warranted or guaranteed. Your use of information on the website or materials linked from the website is at your own risk.

q I would like to donate to the TCDLEI scholarship fund, 501(c)(3) organization, in the amount of $__________________________________.

Payment Method For your convenience, TCDLA uses AUTO RENEWAL for all membership dues, using your checking account or credit card. You will be automatically enrolled in the autorenewal program so you do not have to do anything while continuing to enjoy membership benefits every year! You can always opt out of auto-renewal anytime by simply contacting TCDLA by emailing mrendon@tcdla.com or by checking the opt-out option above.

As the account holder at the financial institution I have designated for Automatic Draft, I authorize TCDLA to automatically draft the account I have designated and I authorize my financial institution to debit my payments automatically from the Draft Account on the date the payment is due. I further understand and agree as follows: • This authorization will remain in effect until TCDLA receives a written notification of cancellation at least 10 business days in advance of the next payment due date.

____________________________________________________ Type Name to Authorize Payment

______________________________________________________ Date

q C hecking Account Name of Institution* _____________________________ Financial Institution 9-Digit Routing # __________________________ Account # __________________________

q Credit card (Visa, Mastercard, Amex, or Discover)

______________________________________________________ Credit Card Number

______________________________________________________ Expiration Date

Tax Notice: $36 of your annual dues ($19 if a student member) is for a one-year subscription to the Voice for the Defense. Dues to TCDLA are not deductible as a charitable contribution but may be deducted as an ordinary business expense. The non-deductible portion of regular and initial membership dues is $39 in accordance with IRC sec. 6033.

Information will be used for TCDLA communication (legislative, SDRs, seminars, events, and other announcements related to criminal defense). Contact office to opt out. For refunds please note credit cards may take 2-5 business days, checks may take longer. Contact mrendon@tcdla.com for any questions or concerns.

2021–2022 TCDLA Committee Expression of Interest TCDLA is seeking enthusiastic and motivated individuals for upcoming openings to its 2021–2022 committees. Committee descriptions and mission statements are listed on the website. Complete the form below and check one or more of the committees that you would be interested in serving on.

Responsibilities of a TCDLA Committee Member: 1. Member of TCDLA. 2. Committees will provide advice, guidance and recommendations to the TCDLA President and/or Board of Directors on relevant matters related to their particular committee.

3. Committees will have assigned responsibilities associated with TCDLA’s strategic plan and objectives.

4. Meet throughout the year via conference call and/or at quarterly board meetings.

5. Members are expected to review and respond to email requests in a timely fashion.

6. Committee Chairs are expected to prepare a written report for inclusion in the board packets for each board meeting. Any items requiring a decision of the Board should be included on agenda.

Committee members will assist chairs in the preparation of reports.

Your information Last name

First name

Law school

Years in practice

Primary areas of practice

Contact information Work phone

Cell phone

Email

Committee preference: Select up to three committees. Place a “1” next to your first choice, followed by “2”and “3,” if desired. ❏ Amicus (Brief) Curiae ❏ Bylaws ❏ Cannabis ❏ Capital Assistance ❏ Client Mental Health ❏ Corrections & Parole ❏ Diversity & Inclusion ❏ DWI Resource ❏ Ethics ❏ Indigent Client Defense

❏ Judicial Conduct ❏ Juvenile ❏ Law School Students ❏ Listserve ❏ Long-Range Planning ❏ Media Relations ❏ Membership ❏ Memo Bank ❏ New Lawyers ❏ Prosecutorial Conduct

❏ Public Defender ❏ Rural Practice ❏ Strike Force ❏ Technology & Communications ❏ Veterans Assistance ❏ Women’s Caucus ❏ Wellness

Email this completed form with a brief resume. Form may include a personal statement describing your interest in serving on the committee to ksteen@tcdla.com no later than July 1, 2021.

Texas Criminal Defense Lawyers Association 6808 Hill Meadow Drive, Austin, TX 78736 • www.TCDLA.com P: 512.478.2514 • F: 512.469.9107 ©TCDLA 2022. All rights reserved.