McAllen, Texas Criminal Defense, Divorce and DWI Lawyer Johnathan Ball

October 19, 2009

A Primer on the Myth of Latent Print Identification

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LATENT FINGERPRINT IDENTIFICATION IS UNRELIABLE AND FAILS TO MEET THE MOST BASIC SCIENTIFIC PRINCIPLES TO ENSURE RELIABILITY

      A latent fingerprint is the reproduction of the friction ridges of the fingers in perspiration or oily matter on an object which has

been touched. See Gary W. Jones, Courtroom Testimony For the Fingerprint Expert. Latent fingerprint examiners make

identifications when they find a certain number of ridge characteristics to be in common, both in terms of type and location.

However, there is no consensus in the latent print expert community as to how many common characteristics should be found

before an identification is proclaimed. See An Analysis of Standards in Fingerprint Identification, FBI L. Enforcement Bull, June

1972.

A.        Fingerprints are not as unique as once thought.

      The long held belief that no to prints are alike has come under intense scrutiny in recent years. During expert testimony in a recent federal case, the government call Steven Karasky, a board certified member of the International Association for Identification (IAI) and a United States Postal Inspector. Mr. Karasky acknowledged during his testimony that no published studies regarding false identification had ever been conducted. He also testified he personally knew of instances where prints from two different people contained as many as ten matching ridge characteristics. See U.S. v. Parks (C.D. Cal. 1999). Following an evidentiary hearing the Court held that fingerprint evidence was not scientific and lacked sufficient indicia of reliability. In fact the Court was incredulous telling one of the experts: “You don’t have any standards, As far as I can tell, you have no standards, its just an ipse dixit.” The testimony was excluded. . See U.S. v. Parks (C.D. Cal. 1999) .  See also The Challenge of Fingerprint Comparison Opinions in the Defense of a Criminally Charged Client Mears, Michael and Day, Therese M 19 Ga. St. U. L. Rev. 705. 

      In addition to United States experts recognizing the lack of total uniqueness in latent prints, experts in other countries have discovered the same and published their research. Israeli fingerprint examiners found fingerprints from two different people that contained seven matching ridge characteristics. As the authors of that study acknowledged, “an expert with many years of experience behind him” could make a false identification when comparing two such prints. Unfortunately, no scientific study has been performed that reasonably indicates the probabilities of fingerprints from different people having varying numbers of matching ridge characteristics. See Y. Mark & D. Attias, What Is the Minimum Standard of Characteristics for Fingerprint Identification? 22 Fingerprint Whorld 148, 148. So we are left to ask ourselves, “What is the scientific basis for analysts’ long held position that no to prints are the same?”

B.        Fingerprint identification is not used outside of the courtroom setting.

            Fingerprint analysis is not used outside of the judicial setting. It is exclusively the providence of the courts. See The Challenge of Fingerprint Comparison Opinions in the Defense of a Criminally Charged Client Mears, Michael and Day, Therese M 19 Ga. St. U. L. Rev. 705. This ;ack of out-of-court use is one of the Daubert factors adopted by the Texas courts which trial courts should look to in deciding whether to admit or exclude expert testimony.  

C.        There is no uniformity regarding the number of ridge markers required to designate a print as a match.

            Latent fingerprint examiners in the United States are currently operating in the absence of any uniform objective standards. The absence of standards is most glaring with respect to the ultimate question that should be asked of all fingerprint comparisons: what constitutes a sufficient basis to make a positive identification? See Simon Cole, What Counts for Identity? The Historical Origins of the Methodology of Latent Fingerprint Identification, 12 Sci. in Context 139, 147 (1999). See also The Challenge of Fingerprint Comparison Opinions in the Defense of a Criminally Charged Client Mears, Michael and Day, Therese M 19 Ga. St. U. L. Rev. 705. As there are no objective industry standards, individual analysts are left to their own, subjective standards in making the determination.

            Though the United States has no uniform identification standard, many other countries have set such standards based on a minimum number of points of comparison. Italy retains the minimum standard of seventeen matching points before a comparison can be made, and both France and Australia require twelve points. Thirty is the minimum number required for a “match” in Argentina and Brazil. See David R. Ashbaugh, Quantitative-Qualitative Friction Ridge Analysis: An Introduction to Basic and Advanced Ridgeology 125 (CRC Press 1999) . See also The Challenge of Fingerprint Comparison Opinions in the Defense of a Criminally Charged Client Mears, Michael and Day, Therese M 19 Ga. St. U. L. Rev. 705.

            The International Association for Identification (IAI) is a private organization/governing body for forensic science. The IAI makes recommendations to the National Academy of Science which in turn makes recommendations to Congress itself. As far back as 1973 the IAI issued a report that indicated the lack of testing in the fingerprint identification field. The IAI formed a standardization committee for the purpose of determining the minimum number of friction ridge characteristics which must be present in two impression in order to establish a positive identification. After three years of examining the issue the IAI was unable to reach a consensus on the minimum number needed. See The Challenge of Fingerprint Comparison Opinions in the Defense of a Criminally Charged Client Mears, Michael and Day, Therese M 19 Ga. St. U. L. Rev. 705.

            Underlying the real reason for not providing a minimum number was “[T]he absence of valid scientific criteria for establishing the minimum number of minutiae has been the main reason that professionals have avoided accepting one.” See David Stoney, The Scientific Basis of Expert Testimony on Fingerprint Identification, Modern Scientific Evidence: the Law and Science of Expert Testimony Section 21-3. The official position of the IAI since 1973 is that no minimum number of corresponding points of identification is required for an identification. Instead, the IAI leaves the determination of a sufficient basis for an identification entirely to the subjective judgment of the particular examiner.

            In other words, there is no general acceptance in the scientific community on latent fingerprint analysis requirements. It is purely subjective to the individual examiner.

D.        In the United States the results of the fingerprint identification are purely the opinion of the analyst.

            David Ashbaugh, a leading forensic scientist stated, that “[i]n some instances we may form an opinion on eight ridge characteristics,” but in other cases, “we may require twelve or more to form the same opinion.” Ashbaugh’s explanation for this sliding scale is that some ridge characteristics are more unique than others. However, fingerprint examiners have never adopted any weighted measures of the different characteristics. Therefore, as Ashbaugh has recognized, the particular examiner’s determination of whether eight or twelve matching characteristics are sufficient in a particular case is entirely subjective. Without objective professional standards, courts are without sufficient basis to judge the validity, admissibility, and worthiness of fingerprint identification testimony. David Ashbaugh, The Key to Fingerprint Identification, 10 Fingerprint Whorld 93 (Apr. 1985). The results are identifications made by examiners using their own ad hoc criteria. Any way you look at it, the positive identification of the Defendant is based solely on the opinion of one person, without any guiding standards.

E.        There is no known error rate in fingerprint analysis

            There have been no controlled studies to determine the error rate in the field of latent print identification. Without known error rates the State will be unable to meet its burden and the admission of the fingerprint analysis will not meet the Daubert test.

            At the very heart of verifiable certainty is a known error rate against which comparisons can be made. In addition to failing to provide a known error rate, the testimony of fingerprint experts also lacks scientific studies upon which predictions of probabilities can be made. Lacking any such probability studies, latent print technicians do not offer opinions of identification in terms of probability. Indeed, the rules of their primary professional association, the IAI, actually prohibit latent print examiners from doing so. Instead of testifying regarding probabilities, latent print examiners make the claim of “absolute certainty” for their identifications. Examiners provide an opinion to the fact finder that the latent print at issue was made by a particular finger to the exclusion of all others in the world! Not even DNA experts make such bold statements. Such assertions of absolute certainty are inherently unscientific. See The Challenge of Fingerprint Comparison Opinions in the Defense of a Criminally Charged Client Mears, Michael and Day, Therese M 19 Ga. St. U. L. Rev. 705. See also Robert Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint “Science” is Revealed, 75 S. Cal. L. Rev. 605, (March 2002).

F.        A complete lack of studies exists regarding the reliability of latent fingerprint examinations or any type of peer review.

            In addition to the lack of basic reliability studies, no testing has been conducted to determine the probability of two different people having a number of fingerprint ridge characteristics in common. And to the contrary, the studies and testimony of experts have shown people can have numerous ridge characteristics in common. See paragraph A above.

             This is in sharp contrast to the relatively new field of DNA analysis, where scientific testing has been done to calculate the probability of a

coincidental match. See Robert Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint “Science” is Revealed, 75 S. Cal. L. Rev.

605, (March 2002). David Stoney, a leading forensic science scholar, and a trained fingerprint analyst, has written:

            [T]here is no justification [for fingerprint identifications] based on conventional science: no theoretical model, statistics or an empirical validation process. Efforts to assess the individuality of DNA blood typing make an excellent contrast. There has been intense debate over which statistical models are to be applied, and how one should quantify increasingly rare events. To many, the absence of adequate statistical modeling, or the controversy regarding calculations, brings the admissibility of the evidence into question. Woe to fingerprint practice were such criteria applied! Much of the discussion of fingerprint practices in this and preceding sections may lead the critical reader to the question “Is there any scientific basis for an absolute identification?” It is important to realize that an absolute identification is an opinion, rather than a conclusion based on scientific research. The functionally equivalent scientific conclusion (as seen in some DNA evidence) would be based on calculations showing that the probability of two different patterns being indistinguishably alike is so small that it asymptotes with zero . . . . The scientific conclusion, however, must be based on tested probability models. These simply do not exist for fingerprint pattern comparisons”. See David Stoney, Measurements of Fingerprint Individuality, Advances in Fingerprint Technology at 331.

            The United States Department of Justice concurred in Mr. Stoney’s assessment when it began soliciting validation studies regarding fingerprint identification 2000. As the Department of Justice stated in its solicitation, “the theoretical basis for [fingerprint] individuality has had limited study and needs additional work to demonstrate the statistical basis for identifications.” See Solicitation, Nat’l Inst. Of Justice Forensic Friction Ridge (Fingerprint) Examination Validation Studies (March 2000). See also Robert Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint “Science” is Revealed, 75 S. Cal. L. Rev. 605, (March 2002).

G.       Positive identification of fingerprints have led wrongful convictions

            Dr. Simon Cole, an assistant professor of criminology at the University of California-Irvine authored an article entitled More than Zero: Accounting for Error in Latent Fingerprint Identification which was published in the Journal of Criminal Law & Criminology with Northwestern University School of Law. Dr. Cole’s article details eighteen of the most famous instances of false positive identifications of fingerprints. In each of these cases, people were arrested and most spent considerable time in jail. This includes a recent case in 2004 when the FBI arrested an attorney in Oregon as a material witness in the Spain train bombings of that same year. After the FBI finger analysis stated that it was a 100% match, the lawyer, Mr. Mayfield was arrested and held for two weeks. It was ultimately learned that this 100% positive match was completely wrong. Mr. Mayfield was released with an official apology from the FBI.

October 17, 2009

BAIL IN TEXAS

Filed under: McAllen Criminal Defense,McAllen Texas Criminal Defense Attorney,Texas Criminal Defense — Tags: , , , , , , , , , , , , , , , — Johnathan Ball @ 4:15 pm

THE RIGHT TO BAIL

     The Excessive Bail provision of the Eighth Amendment to the United States Constitution is based on an old English common law right of Englishmen and the British Bill of Rights. It is considered a fundamental right by the Supreme Court of the United States.

     The United States Supreme Court has stated that “Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary government action.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992). The Court has also held that “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” U.S. v. Salerno, 481 U.S. 739 (1987) (reserved on other grounds). Additionally, the Eighth Amendment states that “excessive bail shall not be required.” U.S. Const. Amend. VIII. However, the courts have interpreted this constitutional provision to prohibit excessive bail without a right to bail. Bail becomes excessive when courts set a higher than reasonably necessary amount to ensure that a defendant appears at trial

THE RIGHT TO BAIL IN TEXAS

     The Eight Amendment to the United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This fundamental right allows an accused to be free before conviction, allowing the defendant to preparae a defense and preventing unjust punishment of the wrongfully accused. It would seem that prohibiting excessive bail would mean that bail should be made available and affordable to everyone. That is not always the case.
     Article 1, Section 11, of the Texas Constitution extends the right to bail to all defendants except those charged with capital offenses. This constitutional provision is buttressed by Article 1, Section 13, of the Texas Constitution which prohibits excessive bail. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law.”

TRIAL COURT’S DISCRETION IN SETTING BAIL

      Texas jurisprudence is well-settled that the trial court enjoys inherent discretion in setting bail. The primary purpose of a bond is securing the defendant’s presence at trial. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex.Crim.App.1977); Ex parte Bonilla, 742 S.W.2d 743, 744 (Tex.App.-Houston [1st Dist.] 1987, no pet.). The factors a trial court should consider in setting bail are set out in Tex. Code Crim. Proc. Ann. § 17.15 (Vernon Supp. 2004):

      1.         The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.

      2.         The power to require bail is not to be used as an instrument of oppression.

      3.         The nature of the offense and the circumstances of its commission are to be considered.

      4.         The ability to make bail is to be regarded, and proof may be taken on this point.

       5.         The future safety of a victim of the alleged offense and the community shall be considered.

      Texas has an extensive body of case law dealing with bail issues which interpret the Texas Code of Criminal Procedure and the Constitution. See Ludwig v. State, 812 S.W.2d 323, 324 (Tex.Crim.App. 1991)(stating that to be governed in the exercise of [its] discretion by the Constitution and by the [article 17.15 factors]“). The general principles of bail law are well established in appellate court decisions. Once bail has been set, the burden is on the defendant to demonstrate the bail is excessive. See: Ex parte Rubac, 611 S.W.2d 848, 849 (Tex.Crim.App.1981); Ex parte Martinez-Velasco, 666 S.W.2d 613, 614 (Tex.App.-Houston [1st Dist.] 1984, no pet.). The Court is to set bail sufficiently high to provide reasonable assurance the accused will submit himself to the Court proceeding, but bail should not be so high as to constitute an instrument of oppression. See: Ex parte Bufkin, 553 S.W.2d 116, 118 (Tex.Crim.App. 1977; Ex parte Willman, 695 S.W.2d 752, 753 (Tex.App.-Houston [1st Dist.] 1985, no pet.)

       In considering the amount of bail to set, Courts be guided by such criteria as:

        1.          The defendant’s work record;

        2.         Family ties to the community;

        3.         Residency in the community; and 

        4.         Past criminal record. See Rubac, 611 S.W.2d at 849; Martinez-Velasco, 666 S.W.2d at 14-15.

     While have a past criminal record will not necessarily prevent the defendant from getting bail. As long as the Defendant appeared in Court at the right times and no prior judgment nisi’s or capias warrants were issued, prior criminal record will have much less of an impact. The opposite is true though. If the defendant has a criminal record and a history of not appearing in Court, this will likely be held against him and his bail set higher.

TEXAS CASES DEALING WITH BAIL PRINCIPLES

            In Ex parte Dueitt, 529 S.W.2d 531 (Tex.Crim.App. 1975) the defendant was indicted in Harris County on two counts of delivery of a controlled substance. Prior to his indictment and shortly after his arrest, a local justice of the peace reduced defendant’s bail from $20,000 to $10,000. Defendant posted bail and was released from custody. Following his indictment, the trial court reset bail at $60,000 and the defendant was re-arrested. He could not post the $60,000. He filed a pretrial habeas corpus petition alleging the bail was excessive. Id., at 532. It was established at the habeas hearing that defendant was 23 years of age, married, and father of a three year old daughter; and that he had lived his entire life in Harris County. He had never been convicted of a felony and his former employer said he could have his job back if released on bail. Id. The court of appeals ordered that the $60,000 bond reduced to the original $10,000.

        In Ex parte Branch, 653 S.W.2d 380 (Tex.Crim.App. 1977) the defendant was charged with possession of heroin. Bond was set at $500,000. The State offered evidence at the pretrial habeas hearing that the defendant had three other charges pending against him, including an aggravated assault on a peace officer; and that he had already posted bonds in the amount of $200,000 in those cases. The defendant, through his wife, established he was unable to raise the $50,000 fee necessary to make the $500,000 bond. Defendant’s wife testified that her husband had worked at Gulf Oil Corporation for twenty-three years, and that he had been working with his father at a store prior to his arrest. The appeals court found the $500,000 bond excessive and ordered it reduced to $20,000.

                        In Ludwig v. State the defendant had been charged with two murders. Bond was set at $2,000,000. The defendant requested a bail reduction and presented evidence of a limited ability to make bond because his assets were frozen by court order. The defendant’s family members testified there were able to collectively offer $10,000.  The defendant was a vetrinarian in Katy and had strong communiy ties. There was no indication the defendant had a criminal record or had failed to attended any hearings in the past. The appeals court ordered it reduced to $50,000.

            In Ex parte Khalid Sabur-Smith, 73 S.W.3d 436 (Tex.App.-Houston [1st Dist.] 2002)(per curiam) involved a twenty two year old defendant. He was arrested and charged with second degree felony assault charge. Defendant lived with his mother was living with his mother and had strong family ties to the community which included a large extended family. For three years prior to his arrest defendant was employed at various jobs. Defendant’s prior criminal conduct involved only two prior trespass warnings. The State conceded Defendant had never been arrested. The sexual assault victim in this case claimed the Defendant had offered drugs in exchanged for sex. When the victim refused the Defendant alleged forced himself on her. Several months later following a DNA match Defendant was arrested. His bond was set at $150,000. Defense counsel requested the bond be substantially lowered. But this request was denied by the Court.

            The appellate court held that while “no precise standard for reviewing bond settings on appeal,” the “right to a reasonable bond is based on the presumption of innocence …” The primary factors” to be considered by the court are punishment and the nature of the offense. The court said the crime Defendant was accused of was a second degree felony for which Defendant could be imprisoned for up to twenty years with a fine up to $10,000. The appellate court stated that excessive bonds are justified only when violence was during the crime and/or the defendant has a lengthy criminal history of sexual assaults and violence. Substantiating this point the court cited to Balawajder v. State, 759 S.W.2d 504 (Tex.App.-Fort Worth 1988, no pet.) where the defendant was charged with aggravated rape and robbery. Further the defendant had at least one prior felony conviction and arrest in three states. The other case cited by the Sabur-Smith Court was Ex parte Ruiz, 692 S.W.2d 192 (Tex.App.-Austin 1985, no pet.) wherein the defendant was charged with six felonies. Further, the Defendant was a career criminal with a violent past. The bond in the Balawajder case was $50,000 and in the Ruiz case it was $100,000. These bonds were significantly lower than in the Sabur-Smith’s case. After nothing that Sabur-Smith did not pose any future threat to either the victim or the general public, the court found his $150,000 bond excessive and ordered it reduced to $30,000.

            In Ex parte Martinez-Velasco, the defendant was indicted for delivering cocaine. His bond was set at an astounding $2,000,000.  Defendant filed pretrial motions asking his bond be reduced.  At the reduction hearing the defendant showed he was an Ecuadorian citizen who had resided and worked in the U.S. for 3o years.  He had community ties in the form of long lasting friendships and no prior criminal record.  Additionally, his arrest had been completely uneventful. The appeals court ultimately reduced the bond to $375,000.

            In Ex parte Veselka, 2008 WL 4958305 (Tex. App.–San Antonio 2008, no pet. h.)(not designated for publication) the Court of Appeals upheld a $750,000.00 bond in a capital murder case, finding that, considering the facts of the case, the circumstances of appellant’s arrest, appellant’s ability to make bail, and his ties to the community, “we cannot conclude that the trial court abused its discretion in only reducing the bail to $750,000.”

       

October 16, 2009

Border Patrol makes six drug busts across Starr County

Filed under: McAllen Criminal Defense,McAllen Texas Criminal Defense Attorney — Tags: , , , , , , , , , , , — Johnathan Ball @ 6:14 pm

Border Patrol makes six drug busts across Starr County

Comments 29 | Recommend 6

October 15, 2009 9:05 AM
Jared Taylor
The Monitor

ESCOBARES | DRUG BUST

U.S. Border Patrol agents said they encountered two pickup trucks Tuesday night traveling north together from the Rio Grande near Escobares. As the agents tried to stop the pickups, the lead truck, a pewter Chevrolet, accelerated north. The black Ford F-150 that was tailing the truck made a U-turn, agents said.

Minutes later, agents found the F-150 abandoned behind a nearby business. The truck was filled with 923 pounds of marijuana. The Chevrolet pickup truck escaped. The drugs have a street value of $738,400.

LA CASITA | DRUG BUST

U.S. Border Patrol agents seized nearly a ton of marijuana during a Tuesday morning chase near La Casita, according to an agency statement.

Agents used a spike strip to stop a truck. The truck’s driver bailed out into the nearby brush and managed to evade agents, who found 1,849 pounds of marijuana with the pickup truck. The drugs have a street value of more than $1.4 million.

GARCENO | DRUG BUST

U.S. Border Patrol agents working here Monday morning said they saw several people carrying bundles on their backs. As the group emerged from the brush, they began loading the bundles into a green 1994 Ford F-150 pickup truck that arrived at the area.

The driver headed north toward U.S. Highway 83 but bailed out of the truck after agents tried to pull him over. The driver escaped into the nearby brush.

Agents counted 676 pounds of marijuana in the bed of the pickup truck. The drugs have a street value of $540,800.

RIO GRANDE CITY | DRUG BUST

U.S. Border Patrol agents patrolling south of Rio Grande City on Monday evening said they saw five people climb out of the Rio Grande with bundles strapped to their backs. The group continued north until agents confronted them. The smugglers dropped their packs and took off into the nearby brush, evading arrest.

Agents rounded up and seized the abandoned 388 pounds of marijuana. The drugs have a street value of $310,400.

FRONTON | DRUG BUST

U.S. Border Patrol agents found 489 pounds of marijuana here Sunday after they saw several people carrying bundles from the Rio Grande. Agents confronted the smugglers, who then dropped the drugs and swam across the river to Mexico. Agents said they also found a small aluminum boat loaded with marijuana. The drugs have a street value of $391,200.

LA GRULLA | DRUG BUST

U.S. Border Patrol agents seized 380 pounds of marijuana Saturday that was being transported from the general area of the Rio Grande. Agents conducting a traffic stop found the drugs inside the rear passenger seat area. The drugs have a street value of $304,000.

October 11, 2009

The Horizantal Gaze Nystagmus Test in Texas

Filed under: Guide to DWI,McAllen Criminal Defense,McAllen Texas DWI Lawyer — Tags: , , , , , , , , , , , , , , — Johnathan Ball @ 11:05 pm

OVERVIEW OF THE FIELD SOBRIETY TESTS AND THIS PAPER

      A couple of decades ago, The National Highway Traffic Safety Administration (“NHTSA”) developed the Standardized Field Sobriety Tests (SFST). These tests were designed to detect the impaired driver. After development, NHTSA claimed the tests were the most effective means of detecting impaired drivers at the roadside when they are stopped. The SFTS’s are designed as divided attention tests. Divided attention tests require the driver to concentrate on more than on task, and accomplish these tasks successfully, in order to prove their sobriety to the officer. It is claimed the divided attention tests mimic the necessary ability to divide your attention while driving. Since a driver is required to control steering, brake a the right times and accelerate appropriately, the divided attention tests are said to test a person’s ability to effectively multitask. The inability to conduct the divided attention tests exactly as instructed is claimed to be proof positive of a person impairment while driving. The thought process behind this notion is that alcohol significantly reduces the ability to divide attention effectively between multiple tasks. People who have consumed alcohol are unable to satisfactorily divide their attention to handle multiple tasks at once. SFST’s are marketed as simulating the divided attention requirements of driving. The two divided attention tests which became part of the SFST’s battery the Walk-and-Turn and the One-Leg Stand.

     This paper will deal primarily with nystagmus, its causes and how to deal with it at suppression and at trial. The Horizontal Gaze Nystagmus Test (Test) is considered to be the most scientific of all the field sobriety tests. Many consider it to be the most accurate. However, failing to administer the HGN correctly, lack of training and simply rushing through the testing case lead to unnecessary arrest and prosecution for DWI. By understanding the HGN, the science and the administration of the test, it becomes much easier to deal with the test and trial and to neutralize it.

     That being said, buy the NTHSA Field Sobriety Training Manual and memorize it. Invest the money, its worth it. The manual provides instructions and analysis for conducting the field sobriety tests. It also details how to interpret the result of the field sobriety tests. Knowing this manual and having it handy during suppression and trial is your best weapon.

WHAT IS NYSTAGMUS

        Alcohol ingested for intoxication purposes is known as ethyl alcohol or ethanol. Ethanol is found in beer, wine and liquors. Ethanol causes the impairing effects on driving. Drivers who have been drinking have slowed reaction. These slowed reaction times are thought to contribute to the inability to avoid becoming involved in an accident.

     Nystagmus naturally occurs without the presence of alcohol. Nystagmus can be caused by problems Physiological problems influenza, streptococcus infections, vertigo, measles, syphilis, arteriosclerosis, muscular dystrophy, multiple sclerosis, Korsakoff’s Syndrome, brain hemorrhage, epilepsy all have been shown to produce nystagmus. Moreover, conditions such as hypertension, motion sickness, sunstroke, eyestrain, eye muscle fatigue, glaucoma, and changes in atmospheric pressure can create gaze nystagmus. The consuming purely legal over-the-counter substances such as caffeine, nicotine, or aspirin also lead to nystagmus almost identical to that caused by alcohol consumption. Despite this whole litany of other-than-alcohol causes for nystagmus, the NHTSA manual summarily dismisses these causes as being . While NHTSA my flippantly these other sources of nystagmus, at least one Federal Court did not.

     In a lengthy opinion, a Federal Court in United States vs. Horn discussed at length the different reasons that nystagmus may be present. The Court went so far as to suggest that it is so well know that nystagmus arises from causes other than alcohol, a Defendant may wish to ask the Court to take judicial notice of this fact. The Horn Court went on to list the following causes of nystagmus other than alcohol:

 

Problems with the inner ear labyrinth; irrigating the ears with warm or cold water; influenza; streptococcus infection; vertigo; measles; syphilis; arteriosclerosis; Korchaff’s syndrome; brain hemorrhage; epilepsy; hypertension; motion sickness; sunstroke; eye strain; eye muscle fatigue; glaucoma; changes in atmospheric pressure; consumption of excessive amounts of caffeine; excessive exposure to nicotine; aspirin; circadian rhythms; acute head trauma; chronic head trauma; some prescription drugs; tranquilizers, pain medication, and anti-convulsant medicine; barbiturates; disorders of the vestibular apparatus and brain stem; cerebellum dysfunction; heredity; diet; toxins; exposure to solvents; extreme chilling; eye muscle imbalance; lesions; continuous movement of the visual field past the eyes; and antihistamine use.

      Now that the definition of nystagmus is known, the different types of nystagmus need to be looked examined briefly. Chapter 8 of NHTSA’s DWI Detection and Standardized Field Sobriety Testing Manual contains a section entitled “Overview of Nystagmus” It lists the following types of nystagmus:

1. Vestibular Nystagmus is caused by movement or action to the vestibular system.

     There are four types of vestibular nystagmus:

     Rotational Nystagmus occurs when the person is spun around or rotated rapidly, causing the inner fluid in the ear to be disturbed. If it were  possible    to observe the eyes of a rotating person, they would be seen to jerk noticeably.

     Post Rotational Nystagmus is closely related to rotational nystagmus: when the person stops spinning, the fluid in the inner ear remains disturbed for a period of time, and the eyes continue to jerk.

     Caloric Nystagmus occurs when fluid motion in the canals of the vestibular system is stimulated by temperature as by putting warm water in one ear and cold in the other.

     Positional Alcohol Nystagmus (PAN) occurs when a foreign fluid, such as alcohol, that alters the specific gravity of the blood is in unequal concentrations in the blood and the vestibular system.

2. Nystagmus can also result directly from neural activity

3. Nystagmus may also be caused by certain pathological disorders.

     The idea behind the HGN is that alcohol slows/decreases the eye’s ability to track a stimulus (such as pen being moved across your field of vision). Alcohol will cause the eyes to jerk as they follow or track the stimulus. Without the introduction of alcohol in the body, it is though the person would be able to “normally track” the stimulus being moved across their field of vision. There is a direct correlation being a person’s blood alcohol concentration the intensity of the jerking of the eyes as they move to the side. The HGN test is supposed to identify intoxication by measuring the alcohol induced jerking of the eyes.

     The National Highway Traffic Safety Administration developed the procedures that officers use to administer the HGN test. These procedures are provided to the officer in the DWI Detection and Standardized Field Sobriety Testing Student Manual.

CONDUCTING THE HGN TEST

     The HGN test begins with the officer checking the eyes to ensure equal tracking and equal pupil size. Lack of equal tracking and equal pupil size can be indicative of head injuries or medical conditions unrelated to alcohol. NHTSA standardized the signs or clues which officers are to look for when determining if someone is intoxicated. These clues include lack of smooth pursuit, distinct nystagmus at maximum deviation and onset of nystagmus prior to reaching a 45 degree angle. To administer the HGN the officer holds a stimulus (usually a pen or finger) 12-15 inches in front of, and slightly above, the suspect’s nose. The officer keeps the tip of the stimulus slightly above the suspect’s eyes. The stimulus is to be moved smoothly in front of the eyes. The officer is looking for all three clues in both eyes. The procedure is to always start with suspect’s left eye. The three clues are looked for one at a time in the in the following sequence: (1)lack of smooth pursuit. It should take approximately 2 seconds to move the stimulus from in front of the subjects face to 45 degrees and the stimulus should be held at 45 degrees for two seconds; (2) distinct nystagmus at maximum deviation. Is should take approximately two seconds to move the pen to maximum deviation, where the pen should be held for a minimum of four seconds to discover the HGN (3) onset of nystagmus prior to 45 degrees. Again, the stimulus needs to be moved at a two second rate to maximum deviation and then held for a minimum of four seconds. The test sequence then needs to be repeated according to the NTHSA manual. Failure to administer this test correctly will result in the test being held unreliable.

     This means that the officer should be passing the stimulus past each eye six times. Additionally, after the pen is moved across the eye it should be held still to check for nystagmus for a combined total of forty seconds, twenty seconds on each eye. Most officers will move the pen much too fast and will hold the eye at maximum deviation for much less time that is required by NHTSA. Be sure to check the video carefully and see if the officer conducted this test appropriately. If not, ask for a suppression hearing or a Texas Rule of Evidence 705 hearing and see if you can get the results of the test excluded and/or the officer excluded from testifying about the results. This will be discussed in greater detail later.

     Remember that officers who are certified to administer field sobriety tests in Texas have gone through a one day training course. They were taught by other police officers how to conduct and interpret the tests. They were not taught by medical personnel how to identify the various types of nystagmus or how to differentiate between acute alcohol nystagmus and nystagmus brought on by other means.

     NHTSA does not recognize the onset angle can be used to gauge/determine a person’s BAC. NHTSA has determined the standardized criteria for evaluating the HGN. A person can exhibit no more than six clues of horizontal gaze nystagmus. The officer is looking for a total of three clues in each eye. Four or more clues is said to be evidence of intoxication.

RULE 705. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION

     A weapon is a Rule 705 hearing. I usually ask that the hearing be held pre-trial. Often times I will ask that the suppression hearing and the 705 hearing be held together in a bit of a hybrid type of hearing. This allows me to question the officer not only about the basis of the stop, but also about his/her qualifications.

(a) Disclosure of Facts or Data. The expert may testify in terms of opinion or inference and give the expert’s reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data.

(b) Voir dire. Prior to the expert giving the expert’s opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury. 

(c) Admissibility of opinion. If the court determines that the underlying facts or data do not provide a sufficient basis for the expert’s opinion under Rule 702 or 703, the opinion is inadmissible. 

(d) Balancing test; limiting instructions. When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert’s opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request

     The seminal case in Texas regarding the admissibility of the HGN is Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994). Read this case and know it. “For testimony concerning a defendant’s performance on the HGN test to be admissible, it must be shown that the witness testifying is qualified as an expert on the HGN test, specifically concerning its administration and technique. In the case of a police officer or other law enforcement official, this requirement will be satisfied by proof that the officer has received practitioner certification by the State of Texas to administer the HGN. A witness qualified as an expert on the administration and technique of the HGN test may testify concerning a defendant’s performance on the HGN test, but may not correlate the defendant’s performance on the HGN test to a precise BAC.”

     Two other helpful cases for HGN are: (1) State v. Rudd, 255 S.W. 3d 293, 301, 302 (Tex. App.–Waco 2008, pet. ref’d) where it was held it was within the trial court’s discretion to exclude HGN tests where the officer’s credibility was questioned because the tests were not performed on video; and (2) McRae v. State, 152 S.W. 3d 739, 743-44 (Tex. App.–Houston [1st Dist.] 2004, no pet.) The trial court abused its discretion when it admitted HGN results after it was established by undisputed testimony that the officer did not administer the tests correctly.

     When doing a 705 hearing, show the Judge how the officer administered the tests wrong. Point the inconsistencies between the results of the tests and other “normal” activities. If you client was not swerving or weaving, had no problems responding to the overhead lights, not problems parking the vehicle and exiting the vehicle, etc., why would he have problems on the sobriety tests? Bias of the officer? Rush to judgment? These are all things to look for and point out to the Judge when trying to have the officer stricken from testifying.

Mission man busted in N.C. with 1,758 pounds of marijuana

Filed under: Uncategorized — Tags: , , , , , , , , , — Johnathan Ball @ 6:25 pm
Ana Ley
The Monitor

ASHEVILLE, N.C. — A Mission man was arrested here Wednesday when state troopers found 1,758 pounds of marijuana inside his tractor-trailer, according to the Web site of the Asheville Citizen-Times.

Heriberto Flores Jr., 53, of Mission, was charged with marijuana trafficking, Citizen-Times.com reported. He was jailed in Buncombe County with bond set at $500,000.

The drugs were mixed with a load of limes, an investigator with the North Carolina Highway Patrol said Thursday, according to the Web site. With a street value estimated at $6.7 million, the seizure was one of the largest-ever in Western North Carolina, said Sgt. Rodney Crater, criminal interdiction unit supervisor with the agency.

According to public records, Flores has several prior arrests in Texas on suspicion of driving while intoxicated. He has no prior arrests in North Carolina.

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Ana Ley covers law enforcement and general assignments for The Monitor. She can be reached at (956) 683-4428.

Man confesses to killing wife, burying her in yard

Filed under: McAllen Criminal Defense,McAllen Texas Criminal Defense Attorney,Uncategorized — Tags: , , , , , , , , , , , — Johnathan Ball @ 6:18 pm
Jeremy Roebuck
The Monitor

ALAMO — Nearly six months after he allegedly killed his wife, Jose Perez walked into the San Juan Police Department, flagged down an officer and confessed.

With no investigators on his trail and no evidence pointing in his direction, the construction worker in his early 50s told police Friday that he strangled his wife in May and buried her in the backyard of their home northeast of Alamo, San Juan Police Chief Juan Gonzalez said.

“He committed a heinous act. He committed murder,” the chief said. “I think it was just laying on his conscience.”

Hidalgo County sheriff’s deputies unearthed the badly decomposed body of Agapita Perez, 48, nearly eight hours later, after her husband led them through the crime scene.

In the months leading up to her slaying, Jose Perez had argued with his wife over his suspicion that she was cheating on him with a man in Reynosa, according to the account he gave police.

The couple called sheriff’s deputies to their home on the 8000 block of Jam Square Road four times from February to May to referee disputes between them. But on May 24, their argument turned fatal, Hidalgo County Sheriff Lupe Treviño said.

Not knowing their mother’s fate, the couple’s children asked sheriff’s deputies to check on their parents four days after she died.

Investigators visited the couple’s home but eventually called off their search when one of the couple’s sons said he had talked to his father on the phone and thought he heard his mother’s voice in the background.

“(Jose Perez) told him that they were in Reynosa and working out their problems,” the sheriff said. “There was no reason to believe they were in any danger.”

But by Friday, something had triggered Jose Perez’s guilt.

He first asked one of his sons to take him to the Donna Police Department just before 8 a.m. For some unknown reason, he changed his mind and asked to be driven to San Juan, said Gonzalez, the city’s police chief.

“He didn’t confess to his son,” he said. “He just told him that he had done something really bad and couldn’t live with it anymore.”

Because the house is outside city limits, the sheriff’s office was called in to take over the case.

Deputies spent much of the afternoon milling around the Perez family property waiting for a search warrant to dig up the earth. With Jose Perez by their side, they entered the backyard just before 2 p.m.

One of the man’s sons — looking on from behind crime scene tape — burst through a gate on an adjacent property to catch a glimpse of what his father would reveal, but family members eventually dragged him back behind police lines.

Investigators hope an autopsy of Agapita Perez’s body will corroborate much of her husband’s story. Without it, little evidence exists beyond his confession to convict him of murder, they said.

As of late Friday night, Jose Perez remained in the Hidalgo County Jail pending an arraignment hearing this afternoon where he is expected to be charged with murder.

Should he be convicted, he could face up to life in prison and a fine of up to $10,000.

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Jeremy Roebuck covers courts and general assignments for The Monitor. You can reach him at (956) 683-4437.

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Weslaco police union to host women’s self-defense class

Filed under: McAllen Criminal Defense — Tags: , , , , , , , , , — Johnathan Ball @ 6:06 pm
Ana Ley
The Monitor

WESLACO — It’s not every day a woman gets to beat up a police officer without getting herself arrested.

The Weslaco Municipal Police Association and the city’s Crime Stoppers program is set to host a two-hour self-defense class for women this week at the Weslaco Business Visitors Center, 301 W. Railroad. Weslaco police officer J.P. Rodriguez said the organization hopes to teach females the basics on staying safe from potential predators by offering them tips on being better aware of their surroundings and including them in hands-on training. Women will also be given suggestions on products available for protection, such as pepper spray, stun guns and firearms.

“They make a stun gun now that looks like a little lipstick canister,” Rodriguez said. “Some have up to 30,000 volts…it hurts really bad.”

Participants may also practice self-defense scenarios in which the student strikes or breaks free from an instructor wearing a fully padded red suit called the RedMan.

“It can be intimidating,” Rodriguez said. “But we need to protect our guy. He’s going to get hit in the groin, the face, elbow, arm.”

Although the class is not meant to be considered a thorough self-defense course, Rodriguez said he hopes women will acquire a better sense of self-preservation once the two hours are up.

“It would normally take days to teach people everything, but we have to try to condense it,” he said. “We’re playing it by ear right now.”

 

IF YOU GO: The self-defense course will take place Thursday at 6 p.m. and run for about two hours. Those interested in going are encouraged to contact the Weslaco Business Visitors Center at (956) 968-2102.

 

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Ana Ley covers law enforcement and general assignments for The Monitor. She can be reached at (956) 683-4428.

October 4, 2009

Survivor mourns sisters’ deaths after expressway rollover

Filed under: Uncategorized — Tags: , , , , , , , , , , , , , — Johnathan Ball @ 8:01 pm

Comments 8 | Recommend 4

October 03, 2009 2:15 PM
Jared Taylor
The Monitor

PHARR — The two vehicles paced each other as they headed north along Expressway 281 just before dusk Monday.

Esther Hernandez rode in the front passenger seat while her twin sister, Mary, was behind the wheel. Their brother, Raul, and their kid sister, April, sat in the back. The family was headed to Esther’s apartment in Edinburg.

But suddenly, Esther told her sister to watch out for the red Chevrolet that crossed into their lane. Mary swerved to the right, then left, then right again before losing control of the white Ford Explorer.

“We just started flipping,” the 20-year-old Esther said Thursday afternoon. “It was just so fast — up and down, up and down — until we landed.”

Raul called out for Esther. And Esther screamed for her twin sister.

“She wouldn’t answer,” Esther said. “There was blood on the street. I saw my baby sister in the middle of the expressway.”

Esther crawled out of the mangled SUV and ran to check on April.

Other motorists stopped to help them. The fifth-grader was able to nod and wiggle her fingers, they told Esther. The little girl seemed OK.

But the driver of the red Chevrolet was nowhere to be seen, Esther said.

Pharr police said Mary died on impact. April was not OK after all and succumbed to her injuries as an ambulance took her to McAllen Medical Center.

“I don’t know what she was doing,” Esther said of the other driver. “She left. She didn’t stop.”

Esther and her 16-year-old brother came out of the crash with relatively minor scrapes and bruises.

The past week has been a bloody one on Hidalgo County roads. In addition to the Hernandez sisters, three others have died in auto wrecks, including a father and daughter killed Friday and a woman who was killed in a head-on collision on Sept. 26.

The worst can happen when drivers are careless on the highway, said Trooper Johnny Hernandez, a local spokesman for the Texas Department of Public Safety.

“It’s people not paying attention,” he said of the driver who left the scene of the crash that killed the two sisters. “They’re not paying attention to their destination. They’re not paying attention to their driving.”

The driver of the red Chevrolet car that presumably caused Monday’s wreck turned herself in at the Pharr Police Department late Tuesday evening, investigators said. Police have withheld her identity and continue to investigate the crash.

“She admitted that she was the (driver of the other) vehicle, because she was there,” Lt. Guadalupe Salinas, a Pharr police spokesman, said last week.

Whether she will face any charges and what they may be remain to be seen.

“I would want at least for the cops to do something,” Esther said. “She caused the accident. Why would she run and not try helping us? It was her fault.”

Authorities regularly cite drivers for reckless driving and other traffic violations that could otherwise result in what occurred along the expressway at the Nolana exit Monday, Hernandez said. Drivers cited for reckless driving typically say they weren’t paying attention.

“We get distracted with our cell phone, with our radio, eating, whatever,” Hernandez said. “It’s something where these distractions need to be avoided.”

On Thursday, the family of the two dead sisters greeted hundreds of mourners who gathered to pay their last respects at an open-casket wake.

Esther described her twin as “always friendly” and “a friend to everyone.” April, their younger sister, was “super strong” and a proficient student.

“She hadn’t even experienced anything,” Esther said.

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Jared Taylor covers law enforcement and general assignments for The Monitor. You can reach him at (956) 683-4439.

The Monitor: Readers’ Choice Awards 2009

Filed under: Uncategorized — Tags: , , , , , , , , , , , , , , — Johnathan Ball @ 12:25 pm
Category ————————————————-> Winner
Favorite Restaurant – Bakery — De Alba Bakery
Favorite Restaurant – Bar — Thirsty Monkey
Favorite Restaurant – BBQ — Rudy’s BBQ
Favorite Restaurant – Buffet Style — Golden Corral
Favorite Restaurant – Children’s/Party Place — Peter Piper Pizza
Favorite Restaurant – Coffee Shop — Starbuck’s
Favorite Restaurant – Deli — Jason’s Deli
Favorite Restaurant – Doughnuts — Shipley’s Donuts
Favorite Restaurant – Fajitas — Taco Palenque
Favorite Restaurant – Fast Food — Whataburger
Favorite Restaurant – Hamburger — Whataburger
Favorite Restaurant – Ice Cream Shop — Baskin Robbins
Favoriite Restaurant – Mexican Food — Casa del taco
Favorite Restaurant – Night Spot — Club 33
Favorite Restaurant – Oriental Food — House of China
Favorite Restaurant – Pizza — Pizza Hut
Favorite Restaurant – Seafood — Red Lobster
Favorite Restaurant – Steak — Santa Fe Steakhouse
Favorite Restaurant – Tamales — Delia’s Tamales
Favorite Restaurant – Taqueria — Taqueria El Zarape
Favorite Restaurant – Wings — Wingstop
Favorite Professional – Accountant/Tax Preparer — George Kuhn
Favorite Professional – Attorney — Johnathan Ball

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