Preparing the Case for the ALR Hearing or DWI Trial
Every case is different. Not all cases will justify, or require, every type of investigative technique available below. Depending upon the case, the Attorney may suggest the need to hire an investigator, “expert witness”, or other specialized personnel, which may result in an extra charge to the client. However, we will inform you as to the need for “special investigation” or “expert consultation and/or testimony” in your case prior to incurring any additional expenses.
Many of the following descriptions of the Investigative Process in a DWI case were either invented by, or suggested by, our good friend, Attorney Stuart Kinard of Austin, who also publishes, and is co-author of, Attorney Boyd’s ALR Manual: A Practitioner’s Guide to Administrative License Revocation. Many of the following steps are excerpted directly from one of Stu’s excellent seminar papers. Some of the most common items of preparation would include the following:
Visiting the Scene
The Attorney may find it useful to make a preliminary visit to the scene with client. It may be helpful if the client brings the same vehicle that was being driven when the client was stopped by the police in order to make some helpful photographs. However, it may be necessary (for an additional expense) to have an Investigator make the photographs in order to have an individual who can “authenticate” (i.e., “prove-up) the contents of those photographs, since you cannot count on law enforcement personnel to “prove-up” photographs that may be helpful to your case.
Police are trained to testify and part of that training may involve the officer saying that he does not recognize a photograph, sometimes because the officer is actually engaging in a ruse in order to throw you off (e.g., he stopped you at night but the photo appears to have been taken during daylight) and sometimes because (s)he really does not recognize the photograph (e.g., because the scene depicted in the photograph has changed considerably or because your photographs do not contain sufficient landmarks in order to distinguish the scene being depicted from any other street). The client may also consider bringing along a third party who can take photos and if need be, testify re photos at no additional expense to the client.
GENERAL RULE: If the police video will become available very shortly, which is usually the case in Dallas, it may prove to be more useful to wait until we may review the police video and/or the arrest report prior to viewing and/or photographing the scene, since some of our clients are a little insecure about exactly where the events took place. It will be a terrible waste of time and money if we make expensive photographs in the wrong location.
However, when we are dealing with a jurisdiction where the video may not become available for several weeks or even months, we may not have the luxury of waiting for the police video to become available.
a. By the time the police video becomes available, details of the locale that do not clearly appear on the police video – and therefore, require this photographic documentation – may have changed.
b. Pot holes may have been repaired; road construction may have started, or ended; street surfaces may have been repaved; lane divider striping may have been repainted; temporary seasonal foliage may have changed; skid marks may have been washed away by rain storms; debris from an accident may have been removed, etc.
c. The police video recorder may have malfunctioned, the videotape may turn out to be poor quality, or it may be lost.
2. At the scene, you the client, will need to be present in order to point out to the investigator:
a. The location where you first perceived the officer’s overhead light display. We may have to employ a professional photographer or investigator at an extra expense to the client in order to make appropriate photographs or a video that would document pertinent road conditions and the existence of any temporary conditions that might change before your case could come to trial (i.e. skid marks, road repairs, barricades, potholes, etc.).
b. In some cases, we should establish the route from the place where the drinking occurred to the place of the stop. In certain cases, we may have to consider employing a professional photographer at an extra expense to the client to videotape the driving of that route from the front seat of the client’s moving vehicle.
c. It is quite common to want to photograph the exact location of a client’s vehicle where it was stopped. We have frequently encountered locations where, e.g., the visit to the scene demonstrated the reason that the client did not want to stop immediately (e.g., because it was the first safe location at which (s)he could have stopped without endangering either himself or the officer).
d. The location of the police vehicle.
e. The location where each of the field sobriety tests was performed, showing the direction that the client was facing for each and, particularly for the “eye test”, the background that the client was facing (i.e, to show that the client was exposed to heavy traffic and/or flashing lights that may have actually caused the client’s eyes to jerk).
f. When inspecting the scene where the field sobriety tests were performed, we will be looking for the following types of features: – Problems with surface: Not level; not smooth; the presence of debris (e.g., rocks, gravel, or broken glass); cracks in pavement, etc.; – Problems with lighting: Bright light in client’s eyes, distractions from moving vehicles; – Problems with distracting proximity of noise and wind blasts from moving traffic, particularly the “slip-streams” from 18-wheelers on highways.
g. We may also want to look for and photograph:
– An area nearby that does not present these unfair conditions;
– Have “relocation” videos on hand for trial.
h. Collision cases present special problems. We may suggest that you will need an accident reconstruction specialist at extra expense in order to help us by consulting with us on the investigation and/or, possibly, to testify at your trial.
These experts are not inexpensive but they may prove to be invaluable, particularly when the State is trying to make your supposed negligence into an issue in your trial, whether merely to prove that you were intoxicated or to “enhance” your case up to a felony (e.g., intoxication assault or intoxication manslaughter). Since debris and skid marks may disappear immediately, we must be prepared to:
– Photograph the area of impact (including any contributing causes);
– Get photos of each damaged vehicle;
– Get the Accident Report, which may be purchased by you at the police agency in the city in which you were arrested for a minimal cost;
– Obtain data re frequency of accidents at that particular location.
3. Conducting the On-Scene Investigation After Viewing the Video: When the police video, particularly the “in-car” video, is ultimately obtained, we may have to review our preliminary on-scene investigation and do any required on-scene follow-up. Following the ALR hearing, we have frequently been prompted to conduct such “follow-up” investigations. In one particular case, an officer said that our client had weaved across the painted center-line on the street; however, on our return trip, we found that the lanes were actually separated by a concrete barrier. The photographs proved to create quite an embarrassing situation for the arresting officer when he could not explain to the jury how the defendant managed to “fly” over the barrier in his automobile.
In certain cases, the weather may prove to have been a factor in the case. Whether the extreme cold may have prevented you from doing your best on the field sobriety tests or the gusty wind may have caused your vehicle to weave, we may have to prove that those particular weather conditions existed. If you think that this may create an issue in your case, records may be ordered in order to prove the existence of those conditions, possibly requiring the employment of an investigator at an extra expense to the client.
Radio Dispatch Recordings and “911” Tapes
One of our most common investigative techniques involves the making of an Open Records Act request for “911” recordings and radio transmissions. Not every case requires this step, however. This technique may be particularly useful in situations where a “citizen-informant” (“CI”) called the police on a “cell phone” in order to report “erratic driving” on your part or where an accident may have occurred. Our general rule is: if the “CI’s” identity appears to have been unknown to law enforcement, then we should leave it unknown; however, if the identity of the “CI” is already known to the police, then the “911” tape may help us in cross-examining the “CI” at your trial.
We have occasionally received “911” tapes that revealed the “CI’s” motivation for the call to “911” in a most unflattering light, exposing them as nothing more than “cranks” or vigilantes. Although the police report portrayed them as being “in fear for their lives”, the “911” tape then showed them to be laughing and “having the time of their lives”. Other “911” tapes have convinced us that plea bargaining was in our client’s best interest.
This requires that we must both act quickly and “hold the law enforcement agency’s feet to the fire” in order to prevent our request from either becoming moot or from being ignored. We employ an experienced private investigator regularly to perform these services for us at a very reasonable price for the client.
Our investigator makes a formal written request pursuant to the Texas Open Records Act that this evidence be preserved. He then follows up by monitoring the agency’s time to respond and by either retrieving the released records or by requesting an intervention by the Texas Attorney General’s Office.
If a written preservation request is not timely made, most police departments have about a 30-day supply of these “911” tapes, which they must re-use every 30 days, so this potentially-valuable evidence will be lost if it is not requested within 30 days. “Call sheets” and other “Mobile Data Transmissions”, which are somewhat akin to “E-Mails”, are sometimes available for longer periods.
After several cases involving prominent local figures turned up some “trash-talk” amongst the police officers who were involved in these individuals’ arrests, many officers began to utilize their own private “cell phones” in order to engage in their more candid conversations with fellow officers regarding their arrests.
All Records of Contemporaneous Client Activities
1. Cellular phone calls;
2. Credit Card Receipts;
3. Gasoline Charge Receipts;
4. ATM Transaction Receipts;
5. Convenience Store Security Videotapes;
6. Jail Surveillance Tapes;
7. Records of visit to jail nurse or to a hospital. In the case of jail medical records,
we must determine the procedure of the local jail infirmary (best “under-the-radar” approach, if permitted, may be for the client to simply request these records directly);
8. Booking Photo If favorable, offer into evidence. If not, object because no indication of when taken during time of incarceration.
Open Records Inquiry to Obtain Personnel and Training Reports Regarding Officer(s) and State’s Expert Witnesses
Over the years of our practices, we have become familiar with many of the law enforcement officers who regularly make DWI arrests. Most of them are fine officers. However, every bunch of apples may contain one rotten one. We have been known to collect transcripts from previous trials in which that witness has provided different testimony in response to similar questioning.
In isolated cases, personnel files, college transcripts, and prior inconsistent testimony, particularly from ALR hearings, have all served to portray government witnesses in a most unflattering light. If your case appears to involve one of these rare, unscrupulous individuals, we will give you the advantage of our collective years of experience by alerting you to the opportunity to take advantage of these types of investigative techniques.
All of Client’s Pertinent Medical-Behavioral Records and Client’s Learning-Disability Records from School
Recent changes in the laws pertaining to your right to privacy in your own medical records have created significant impediments to our obtaining your medical records on your behalf. Further, we have frequently encountered significant “foot-dragging”, whether intentional or otherwise, by the individuals who are responsible for furnishing these records from your provider.
It is never too soon to start working on the process of obtaining medical records and records from your schools, since this is at least a two-step process: 1) first, we must obtain and review those records; and, 2) then, we must prepare a medical records affidavit in the manner required by the rules of evidence, have the “medical records custodian” at your doctor’s office sign the required affidavit, and file the completed instrument with the trial court at least fourteen (14) days prior to trial, providing notice at that time to the Assistant District Attorney.
Physician’s Desk Reference
In the 21st Century, we are constantly encountering clients who are being medicated with anti-depressants, mood elevators, anti-anxiety medications, and other prescription medications. Let us make one thing perfectly clear: the fact that you had a prescription to take any particular drug is not a defense to DWI. You may be convicted of DWI based upon the ingestion of a prescription drug alone without any consumption of alcohol whatsoever.
I have never heard of a doctor who told a patient directly that taking a prescription drug could be hazardous to his or her patient’s criminal record. Many of these drugs may also interact with alcohol in a synergistic manner, which means that they may multiply, as compared with merely enhancing, the effects of alcohol. If you did not tell law enforcement personnel that you had also consumed a drug or controlled substance on the night of your arrest, please remain secure that you may communicate this information to your attorney without fear of disclosure due to the attorney-client privilege.
However, if you “confessed” to the police that you were taking a drug, whether prescription or otherwise, further research must be done in order to determine whether that medication would cause an individual to become intoxicated, whether alone or in combination with alcohol. An expert witness may have to be retained for consultation and/or for use at trial at significant additional expense to the client.
Conducting a “Replicate” Test in a Breath Test Case
In a very few of our breath test cases, we have the opportunity to perform an out-of-court “experiment” in which the client brings his or her witnesses to the drinking scenario to our offices, exactly repeats the drinking and eating scenario, and then we have one of our expert witnesses test the client on one or both of our intoxilyzer instruments to see whether the client ever reaches the prohibited “0.08” alcohol concentration.
One or more blood draws may also be helpful, which involves the necessity of hiring a nurse to come draw the client’s blood. This involves considerable additional expense to the client and will only be worth it if the client has highly-credible witnesses, receipts for the drinks and food, and a tremendous personal desire to show the real truth. We have witnessed truly remarkable results. In one case, we watched an individual consume a large pizza together with an entire bottle of wine.
When we tested him every fifteen minutes thereafter until he reached a level of essentially “zero”, he had never exceeded a “0.060” alcohol concentration, indicating that the government breath test was reading high. A 170-lb. male should be able to consume the equivalent of a beer per hour without becoming intoxicated. The presence of food is probably the single most important factor affecting your likelihood of becoming intoxicated from the ingestion of alcoholic beverages.
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