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

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.

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.

September 27, 2009

H.G.N. (Horizantal Gaze Nystagmus) Texas

Filed under: Guide to DWI,McAllen Texas DWI Lawyer — Tags: , , , , , , , , , , , , , , , , , — Johnathan Ball @ 11:45 am

May 20, 2009

Postal inspectors looking for four narcotics suspects in McAllen

Filed under: McAllen Criminal Defense,McAllen Texas Criminal Defense Attorney,Texas Criminal Defense — Tags: , , , , , , , , , — Johnathan Ball @ 6:04 pm

Postal inspectors looking for four narcotics suspects

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May 20, 2009 – 3:09 PM
Jared Taylor
The Monitor

McALLEN — Area U.S. Postal Inspectors are looking for four men believed to reside near Alton who are suspected of a shipping narcotics through the mail.

The four men are wanted on federal charges related to possession with intent to distribute a controlled substance and using the U.S. Postal Service, to distribute controlled substances.

Investigators say they are looking for:

>> Concpcion Gonzalez, 38, a Hispanic man who stands 5 feet 8 inches tall, weighs 230 pounds, has black hair and brown eyes. Gonzalez has tattoos on his back, left shoulder, left hand, right shoulder, abdominal muscles, left calf and chest.

>> Roman Vasquez-Mendez, 29, a Hispanic man who stands 5 feet 7 inches tall, weighs 160 pounds, has brown hair and brown eyes. Vasquez-Mendez has tattoos on his left hand, chest, right arm, abs, left forearm, upper left arm and upper right arm. Vasquez-Mendez is nissing his right foot, inspectors said.

>> Tomas Silva, 31, a Hispanic man who stands 6 feet tall, weighs 300 pounds, has brown hair and brown eyes.

All three men are known to reside near Alton or Mission, inspectors said.

Inspectors also are looking for Eduardo “Lalo” Garcia Quijano, who is described as Hispanic, stands 5 feet 5 inches tall, weighs 210 pounds and has short black hair.

Anyone with information on the whereabouts of these men is encouraged to contact the local U.S. Postal Inspectors office in McAllen at (956) 871-1721. Callers may be eligible for a reward of up to $50,000 for information that leads to the arrest and conviction of anyone who uses the mail to distribute narcotics.

May 14, 2009

Police name carnival worker as girl’s kidnapper

Filed under: McAllen Texas Criminal Defense Attorney,Texas Criminal Defense — Tags: , , , , , , , , , , , , — Johnathan Ball @ 2:54 pm

Police name carnival worker as girl’s kidnapper

Comments 54 | Recommend 2

May 14, 2009 – 8:42 AM
Jared Taylor
The Monitor

HIDALGO — Police have released the name of the man they believe kidnapped a 4-year-old Hidalgo girl on Tuesday night.

Christian Elijalee McMillan, a 23-year-old California carnival worker who was living in Mercedes was arrested late Wednesday night after police found little Lesley Estefania Perez, more than 24 hours after she was taken.

Lesley was taken to Knapp Medical Center in Weslaco, where she was checked for signs of injury or abuse.

Authorities would not clarify whether there were signs of sexual assault, but family members confirmed that she had not been abused during her day with McMillan. The only sign of injury appears to be red marks around Lesley’s wrists, from when she was tied up during the kidnapping.

McMillan did not know the girl or her family before taking the little girl, Hidalgo police said at a press conference this morning. Police said McMillan likely took Lesley with intentions to sexually assault her. (Click here to view video from Thursday’s press conference)

Police found McMillan and Lesley at a rented farm near Mercedes. They were watching the farm when he came outside without realizing they were there and they arrested him.

McMillan had a history as a sexual predator, police said and had cased the neighborhood for three days before grabbing the little girl, who is now back with her family. Nobody reported the suspicious activity to police.

“We have to keep our eyes open,” said John Johnson, who heads the McAllen FBI office.

Lesley’s 12-year-old sister Brianda proved to be critical to the kidnapping investigation. She was the one tried to protect Lesley and  wrestled with McMillan before he took the 4-year-old from her grip. The description she gave investigators matched McMillan’s profile and the white F-150 was found at the farm, partially painted with primer as if he were trying to disguise the vehicle, authorities said.

“She was an incredibly informative witness for us,” Johnson said.

May 10, 2009

DEMYSTIFYING THE INTOXILYZER 5000

Filed under: McAllen Texas Criminal Defense Attorney,McAllen Texas DWI Lawyer,Uncategorized — Tags: , , , , , , , , , , , , , , , , , , , — Johnathan Ball @ 5:25 pm

DEMYSTIFYING THE INTOXILYZER 5000

By: Troy G. Broussard, The DWI Dr.

published in the Louisiana Criminal Defense Lawyers Association Magazine,

“The Advocate”

 

I was speaking with a state trooper friend of mine at court the other day about different

breath testing devices. We started talking about recent news reports of a flashlight, which also contained a device for detecting alcohol and the inherent problems with such a device. When this trained police officer stated, “It’s not infallible like the Intoxilyzer 5000.” Even though I knew that some officers say this, and CMI, (the manufacturer of the Intoxilyzer), thinks the Intoxilyzer 5000 is God’s gift to law enforcement, I was still blown away (pun intended) by this troopers sincerity. He actually believed this statement. Unfortunately, many judges in this state believe the same as the trooper. It is incumbent upon us as defense attorneys to challenge this erroneous assumption and offer facts, which will provide judges, prosecutors, and law enforcement officers, with realistic limitations of this machine. This article will attempt to point out some of those limitations. The Intoxilyzer 5000 is not infallible.

 

At the recent Essentials of DWI Practice for Bench and Bar Seminar presented on May

12th in Hammond, Louisiana, Mary McMurray, a nationally known forensic consultant working with Forensic Associates, Inc. of Minneapolis, Minnesota, gave a 5- hour “Demystifying the Intoxilyzer 5000”. During that presentation Ms. McMurray pointed out that the widespread use of breath analysis for legal purposes means that evidential breath testing machines and their operators take over the role of the blood-alcohol laboratory. Her question to us was, “So how do you assure that the high standards of analytical practice that are expected of a forensic laboratory are rigorously

maintained?” Since 1968 the minimum standards for forensic breath-alcohol testing quality assurance has revolved around two issues: 1) the practice of analyzing two or more breath samples and 2) the analysis of an appropriate control standard with every test run. Louisiana has declined to implement either one of these quality assurance standards. The following is extracted from her materials. She can be reached at either (608) 437-5344 or (612) 339-7903.

 

Breath alcohol testing is not a true science. The concept of using a breath sample to

accurately and reliably measure an alcohol concentration in a person’s blood was intended to be a useful tool to aid the road officer in performing his job responsibilities.

The early breath testing scientists did a large amount of foundational research and made numerous assumptions that formed the basis of evidential breath-testing today. These early researchers and scientist made training, program and other recommendations for conducting the testing. From the start, the individual state programs, including Louisiana’s, have largely ignored the recommendations for training and testing procedures. Breath-alcohol testing equipment is not infallible – it does malfunction on occasion. Calibration is not permanent on any equipment, despite sales propaganda claims. Plus, there are some people who are not “good candidates” for breath-alcohol testing.

These inherent limitations need to be recognized in all testing programs. To minimize the limitations of the testing method, scientific test procedures should be applied. Procedures that incorporate repeated analysis of all unknowns and control standards are basic to any quality assurance program and should be considered mandatory when testing for evidential purposes. Moreover, the breakdown and service logbook of each machine, as well as control charts reflecting the precision of breath analysis and variations in long-term calibration should be available for scrutiny by qualified independent bodies. On the newer model Intoxilyzer 5000, this data is stored within the machine and can be downloaded to disc. The reason for making a measurement is to determine the true value. The true valuewill always be an unknown. The purpose of an analysis is to obtain a value as close to the true value as possible. When performing any type of measurement or analysis two key elements that need to be addressed are the accuracy and precision of the measurement or analysis. Accuracy is like trying to hit the center of a bull’s eye. It is the ability of the machine or method to provide a result as close to the true value as possible. Precision, on the other hand, is associated with the repeatability or results from analysis of the same sample. Is there clustering of the “hits” on the target or are they scattered? It is possible to have good precision without having good accuracy. Thus, simply repeating a measurement does not insure accuracy. The practice of using multiple breath samples provides an indication of the precision of the measurements at the time of testing. A check of the calibration provides an indication of the accuracy of the measurements at the time of testing. The analysis of multiple breath samples for alcohol is the only means to insure precision in the measurements. Without such analyses there can be no testimony relating to the precision of that test.

Similarly, the measurement of at least one standard at the time of testing is the only way to assure the accuracy at that point in time. Every evidential breath-alcohol testing program in this country is capable of conducting duplicate breath analysis and analyzing standards with every test run. But the failure to practice basic quality control measures in any evidential alcohol-testing program – be it breath, blood, or urine – is a failure to provide quality assurance to the people being tested and to the society being protected.

In the October 2000 issue of the DWI Journal, William C. “Bubba” Head of Atlanta,

Georgia, phone (404) 250-1113 and e-mail: wchead@absolutely-not-guilty.com, authored the article entitled, “High Protein Diet Causes Unreliable Breath Test Results.” In the article, Mr. Head states: “A strict diet of high protein foods produces ketosis as the body converts stored body fat into energy. It is this ketosis, or production of ketone and subsequent byproducts, that most breath test devices will not reliably report as an interfering substance.” “…self-generated isopropyl alcohol is part of the body’s defense to the toxicity of acetone or ketone build up. As the ketone level increases in a person, the body uses certain amino acids to create enzyme pathways to remove or convert the ketones into safer compounds. Isopropyl alcohol is that safer compound. One pathway uses the enzyme alcohol dehydrogenase (ADII). This is the same enzyme the liver uses to break down ethanol into the metabolic, acetaldehyde.” “Most breath testing devices will render a cumulative reading of ALL alcohols in the body (ingested and auto-generated) is the likely result.” This is the same type of effect that persons with the condition known as hypoglycemia, a condition involving low blood sugar levels, could display. A.W. Jones of Linkoping, Sweden 1995.

Mr. Head also has a list of 50 ways to beat the breath test. I will only lists those, which

involve the machine’s accuracy and precision, or the individual not being a good candidate for the test. Defendant has a physical problem or health limitation, which the officer did not discover or Testing room or circuitry has a problem (RFI; recently painted walls or trim; certain cleaning solutions, smoking in or near machine; shared power supply with A/C or other appliance-must be dedicated “clean” electrical source)

Defendant has had environmental exposure to volatiles and will have cumulative reading. Defendant unable to blow sufficient sample due to lung capacity or size, respiratory health or high alcohol level. Air bag defense – the “Tyndall effect” – diffusion of light; propellant exposure; cut lips; lung and airway irritation & fluid build-up from caustic gas propellant. Something in mouth containing alcohol (Breath Drops with SD alcohol). Something in mouth that contains interfering or contaminating substances (Skoal snuff –wintergreen; Altoids curiously strong mints).

Dentures, gingivitis, bridgework, “pockets” Vomiting, belching within 20 minutes of test/ no rinsing of mouth, or inadequate deprivation period before retest. Elevated breath temperature caused by fever, hot tub, sauna, detention in hot sun or back of

police car in summer, dancing, menstrual cycle, etc. [only Draeger is supposed to catch

this]. Failure to verify simulator temperature remains constant and within tolerance; otherwise, results cannot be accurate. Breath/blood ration (2100:1) not proven to be Defendant’s ratio; show how minor error gets multiplied 2100 times; 0.12 = 17/10,000,000th of an ounce. Show Defendant has abnormally LOW blood/breath ratio through testing/expert. If BatMOBILE, wiring issues and electrical configuration; AC/DC issues; low voltags spikes. No proper periodic testing of quantities of commonly occurring interfering substances likely found in a living subject, to assure machine’s ability to distinguish alcohol from other volatiles.

Burp, belch that is silent. Gastric reflux or hiatal hernia, preferably diagnosed and treated before arrest occurred. Simulator solution not kept for subsequent re-analysis.

Simulator solutions not checked by GC-Mass Spec analysis upon receipt from company

that sell them. Blowing pattern irregularities (blubbering and crying causing artificially high water vapor problem)

 

Defendant has been on a strict high protein DIET and then introduces carbohydrates,

thereby triggering auto-generated alcohol production when ketones are converted to

isopropyl alcohol. Defendant has diabetes, is “borderline” diabetic or is hypoglycemic and consumes alcohol in any amount, causing conversion of high acetone levels into isopropyl alcohol. It is interesting to note that temperature variances in the subject breath will yield different breath test results. As stated in the list above, the Draeger machine is the only machine on the market, which measures the temperature of the subject’s breath and then adjusts the results as a result of the temperature.

Ms. McMurray showed an example of a Draeger result card from Alabama in which the

subject blew a .120g% with a breath temperature of 36 degrees Celsius, the machine had been calibrated at 34 degree Celsius (the same as Louisiana’s Intoxilyzer 5000s) and the resulting adjustment resulted in the subject actually having a BAC of .080g%.

The Intoxilyzer 5000 is not the infallible machine that the manufacture or law enforcement make it out to be. Defense attorneys should not look at an over-the-limit breath test and

immediately think that the client is guilty, but should investigate all possible avenues that would indicate that either the machine was not functioning properly at the time of the test or that the client was not a “good candidate” for the breath test.

DWI and the Breath Analyzer Accuracy

Filed under: McAllen Texas Criminal Defense Attorney,McAllen Texas DWI Lawyer — Tags: , , , , , , , , , , , , , , , , , , — Johnathan Ball @ 5:12 pm

Breath Analyzer Accuracy

by David J. Hanson, Ph.D.

About half of all alcohol-related traffic accident fatalities involve drivers with a Blood Alcohol Concentration (BAC) of about .16 or higher. A significant proportion of such high-BAC drivers are hard core drunk drivers; they repeatedly abuse alcohol and drive while intoxicated. Hard core drunk drivers are a major threat to the safety of themselves and others. Breath analyzers are a major tool in convicting such dangerous offenders.

Breath analyzers (Breathalyzer, Intoxilyzer, Alcosensor, Alcoscan and BAC Datamaster are common brand names) don’t actually test blood alcohol concentration (BAC), which requires the analysis of a blood sample. Instead, they estimate BAC indirectly. Different types of machine use different techniqes and larger machines generally yield better estimates than do hand-held models. Therefore, some states don’t permit data or “readings” from hand-held machines to be presented as evidence in court. South Dakota does not even permit evidence from any type or size breath tester but relies entirely on blood tests to ensure accuracy and protect the innocent.

A major problem with some machines is that they not only identify the ethyl alcohol (or ethanol) found in alcohol beverages, but also other substances similar in molecular structure. Those machines identify any compound containing the methyl group structure. Over one hundred compounds can be found in the human breath at any one time and 70 to 80 percent of them contain methyl group structure and will be incorrectly detected as ethyl alcohol. Important is the fact that the more different ethyl group substances the machine detects, the higher will be the false BAC estimate.

The National Highway Traffic Safety Administration (NHTSA) has found that dieters and diabetics can have acetone levels hundreds and even thousand of times higher than that in others. Acetone is one of the many substances that can be falsely identified as ethyl alcohol by some breath machines.

One investigator has reported that alcohol-free subjects can generate BAC readings of about .05 after eating various types of bread products.

Substances in the environment can also lead to false BAC readings. For example, an alcohol-free subject was asked to apply a pint of contact cement to a piece of plywood and then to apply a gallon of oil-base paint to a wall. The total activity lasted about an hour. Twenty minutes later the subject was tested on an Intoxilyzer, which registered a BAC of .12 percent. This level is 50% higher than a BAC of .08, which constitutes legal intoxication in many states.

Ignition Interlocks

An ignition interlock is a device installed in a vehicle to prevent its use if a driver has been drinking alcohol. It includes a breath testing device into which the driver must blow before starting the engine.

The blood-alcohol concentration (BAC) limit for starting the car is very low, under .025, which is less than 1/3 the legal limit of .08. Therefore drivers are advised by authorities not to eat or smoke before trying to start their vehicles. Otherwise, the device may prevent them from driving.

Repeat DUI offenders to get ignition interlock: blood-alcohol level must be below .025 to start car. TheWGALChannel.com, 10-1-03.

Similarly, a painter with a protective mask spray painted a room for 20 minutes. Although a blood test showed no alcohol, an Intoxilyzer falsely reported his BAC as .075.

Any number of other products found in the environment can cause erroneous BAC results. These include compounds found in lacquers, paint removers, celluloid, gasoline, and cleaning fluids.

Other common things that can cause false BAC levels are alcohol, blood or vomit in the subject’s mouth, electrical interference from cell phones and police radios, tobacco smoke, dirt, and moisture.

Breath testers can be very sensitive to temperature and will give false reasings if not adjusted or recalibrated to account for ambient or surrounding air temperatures. The temperature of the subject is also very important. Each one degree of body temperature above normal will cause a substantial elevation (about 8%) in apparent BAC.

Many breath testing machines asume a 2,100-to-1 ratio in converting alcohol in the breath to estimates of alcohol in the blood. However, this ratio varies from 1,900 to 2,400 among people and also within a person over time. This variation will lead to false BAC readings.

Physical activity and hyperventilation can lower apparent BAC levels. One study found that the BAC readings of subjects decreased 11 to 14% after running up one flight of stairs and 22-25% after doing so twice. Another study found a 15% decrease in BAC readings after vigorous exercise or hyperventilaion.

Some breath analysis machinnes assume a hematocrit (cell volume of blood) of 47%. However, hematocrit values range from 42 to 52% in men and from 37 to 47% in women. A person with a lower hematocrit will have a falsely high BAC reading.

Failure of law enforcement officers to use the devices properly or of administrators to have the machines properly maintained and re-calibrated as required are additional sources of error.

Research indicates that breath tests vary at least 15% from actual blood alcohol concentration. At least 23% (that’s about one out of every four) of all individuals tested will have a BAC reading higher than their actual BAC.

One writer has observed that

Breath testing, as currently used, is a very inaccurate method for measuring BAC. Even if the breath testing instrument is working perfectly, physiological variables prevent early reasonable accuracy….Breath testing for alcohol using a single test instrument, should not be used for scientific, medical or legal purposes where accuracy is important. 1

Solutions

There are good ways to virtually eleminate being unfairly conviced of impaired or intoxicated driving. One is to choose not to drink, another is to pace the rate of drinking and follow other tips for maintaining a low BAC, and another is to select a designated driver.

  1. Don’t Drink – If you choose not to drink, you’ll find that it’s not a big deal to decline a drink. Here are some possibilities:
    • No thanks.
    • No thanks; I feel good enough already.
    • Sorry, my analyst won’t let me.
    • I can’t because I get high on grape juice.
    • Not now — I’m testing my willpower.
    • No thanks — I want a clear head to appreciate you fully.
    • Not right now — the party’s wild enough as it is.
    • Sorry, I never drink on Friday (or whatever day it is).
    • Sorry, I promised my parents (spouse, date, etc.) that I wouldn’t.
    • No thanks — I prefer to watch.
    • No thanks — Suzie (or whoever) can’t stand me when I drink.
    • Sorry — I’m taking medication.
    • No thanks, but I’d love to have a Pepsi.
    • Sorry, but I’m the designated driver.
    • You can also “lose” alcohol drinks or order such drinks as water, orange juice, seltzer with a twist of lemon, or any of a number of other beverages that lool like alcohol beverages. Most people don’t really pay much attention to how much others are drinking and you might find that you actually enjoy yourself as much or more without becoming intoxicatecd. There’s no hangover and it’s certainly much safer.
  2. Maintain Low BAC – If you choose to drink but wish to keep your BAC low, here are some tips:
    • Don’t be fooled. The contents of the typical bottle or can of beer, glass of wine, or liquor drink (mixed drink or straight liquor) each contain virtually identical amounts of pure alcohol. When it comes to alcohol, a drink is a drink is a drink and are all the same to a breathalyzer.
    • Know your limit. If you are not sure, experiment at home with your spouse or some other responsible adult. Explain what you are attempting to learn. Most people find that they can consume one drink per hour without any ill effects. Also, experiment with the Drink Wheel, which can be very informative.
    • Eat food while you drink. Food, especially high protein food such as meat, cheese and peanuts, will help slow the absorption of alcohol into your body.
    • Sip your drink.
    • Avoid “chugging” contests or other drinking games.
    • Skip a drink now and then. Having a non-alcohol drink betwen alcoholic ones will help keep your blood alcohol concentration down, as does spacing your alcohol drinks
    • Beware of unfamiliar drinks. Some drinks, such as zombies and other fruit drinks, can be deceiving as the alcohol content is not easily detectable. Therefore, it is difficult to space them properly.
  3. Use or Be a Designated Driver
    • Consider either using or being a designated driver. A designated driver is simply a person who agrees to abstain from alcohol and be responsible for driving others home. The others are free to drink or not as they choose. Many establishments provide free non-alcohol beverages to designated drivers.
    • Designated drivers have probably saved 50,000 lives and spared many more thousands of people from suffering injury from druink driving. 2 Over nine out of 10 Americans who attend social evernts where alcohol is served woould like to see designated drivers used. 3 And the proportion of people either using or being a designated driver has increased dramatically over time. Over 73,000,000 Americans either serve as a designated driver or are driven home by one. 4

A designated driver helps friends and family:

  • Avoid embarrassment,
  • Keep their driver’s licenses,
  • Avoid fines,
  • Stay out of jail, and
  • Prevent needless injury and death. 5

There are a number of advantages to the designated driver concept.

The non-drinker has a legitimate and respected role at a social function where alcohol is served. There is no stigma to abstaining because the designated driver is considered an important member of the group. Being a designated driver can also help legitimate a personal choice not to drink.

The designated driver approach prevents driving under any level of impairment because that person consumes no alcohol. It doesn’t require a driver or passenger to determine if a person is too impaired to drive.

The server or host can offer a positive alternative to drunk driving by encouraging a groups to designate a driver.

The designated driver concept is easy to understand, simple to implement, costs nothing, and is effective. 6

Tips for designated drivers:

  • Plan ahead whenever you are going to socialize wtith alcohol beverages.
  • Decide ahead of time who will not drink any alcohol before or during the party or event.
  • Consider taking turns being the designated driver. Look after your friends and family and they can look after you.
  • Larger groups should have more than one designated driver. 7

Breathalyzers may be inaccurate and often lead to unjust fines, imprisonment, loss of employment, and other serious problems but you needn’t worry if you choose not to drink, to maintain a low BAC, or to use a designated driver.

The High Times of Gerry Goldstein

Filed under: McAllen Texas Criminal Defense Attorney — Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , — Johnathan Ball @ 5:07 pm

The San Antonio lawyer started out defending friends who had been busted for smoking pot. Twenty-five years later, his clients are big-time dope dealers and international cocaine kingpins — and he believes he’s saving the world.

by Mimi Swartz as published in Texas Monthly in April of 1996

The arrest and extradition in January of reputed Mexican drug lord Juan García Abrego created something of a stampede among criminal lawyers. The McAllen office of Abrego’s longtime counselor, Roberto “Bobby Joe” Yzaguirre, was overwhelmed by sales pitches from attorneys all over the country, forceful or flattering letters and faxes explaining why they and they alone should be hired as part of the defense team. Farther north, in Houston, speculation about who would get the job was rampant. Florida dope lawyers pumped their Texas colleagues (“Is it you?” they wanted to know). One lawyer sparked a blaze of gossip after spying the name “Frank Rubino” on the visitors log at the Harris County jail, where Abrego was incarcerated. (“Wasn’t me,” the Miami attorney for dictator—drug smuggler Manuel Noriega said.)

Though Abrego could be quite charming and humorous—“You’d feel very comfortable if he was selling you a car,” said one acquaintance—he would not hold much allure for the average person. After all, the 51-year-old car thief turned kingpin was alleged to have presided over the flow of Colombian cocaine through northern Mexico into the U.S., an operation that reaped $20 billion a year, according to estimates by the Drug Enforcement Agency. He was believed to be armed and dangerous—Abrego’s indictment charged him with authorizing “the murders of numerous individuals,” which were thought to include everyone from business rivals to nosy journalists. There were additional charges of money laundering, drug smuggling, and attempted bribery. There were dark hints of political assassinations, of corruption within the now tainted administration of former president Carlos Salinas de Gortari. There was the dubious distinction, in 1995, of a spot on the FBI’s Ten Most Wanted list. Innocent until proven guilty, okay, but either way, Juan García Abrego looked at best like a pretty bad guy.

Unless, of course, you were a criminal lawyer: then you knew that everyone was entitled to the best defense possible, that if society cannot treat the worst of us with fairness, then what of the rest of us? Maybe the extradition wasn’t legit. Maybe the investigation was fishy—the DEA and the FBI were rumored to have cut deals with more than seventy felons to get their man. There were lots of maybes, except, of course, for one: The Abrego case was the legal equivalent of a gusher. Along with a fee that could hit seven figures, it offered lots of media coverage that doubled as free advertising—in other words, big money up front and down the road in the form of future clients. Juan García Abrego might get life without parole, but the lawyer who represented him couldn’t lose.

Roberto Yzaguirre knew this as well as anyone, of course, but as the only lawyer actually hired by Abrego, he had other concerns. Having represented clients facing drug-related charges in the Valley for more than twenty years, he knew that alone he lacked the resources to go against the federal government in a case of this magnitude. And as a man whose courtliness belied his shrewdness, he had known whom he wanted as partners from the beginning. Tony Canales, a criminal lawyer from Corpus, was an obvious choice: The former U.S. attorney was an old friend who spoke Spanish and knew the ways of the federal government, particularly the federal government in South Texas, better than just about anyone. But Yzaguirre needed someone else to complete his team, someone who was not just a great trial lawyer and a great drug lawyer but a great book lawyer, someone with the intellect to, at a moment’s notice, tip the vagaries of the Constitution in his client’s favor. Someone who, if need be, could work out the negotiations should Abrego decide to cooperate with the government, testifying against an even bigger fish like, say, Salinas himself. Someone who had no problem representing the worst of us and, in fact, saw that as a matter of conscience. When you came right down to it, there really was just one man for the job.

“Goldstein!”

“GOLDstein!!”

“GOLDSTEIN!!!”

THE ATTORNEYS GATHERED IN MIAMI’S fountainebleau hotel for the 1996 midwinter meeting of the National Association of Criminal Defense Lawyers make way for Gerald Goldstein like supplicants in a temple. He has flown in from his San Antonio home this morning and will fly out shortly after his speech. Whipping a cart of visual aids through the hotel’s gilded warrens, he has the air of a man unable or unwilling to downshift. Even without his haste, Goldstein would stand out amid these cheerful conventioneers in their sport shirts and jeans. His salt-and-pepper hair is slicked back, taming curls that twenty years ago approximated an Afro. Long past the age of love beads and bell-bottoms, when he first made a name for himself defending conscientious objectors, Goldstein now wears scholarly tortoiseshell glasses, which complement his impeccably crafted sport coat, which is enhanced by a contrasting orange-and-green tie and the crispest white shirt. At 52 he is trimmer than he was at 42, his hawk-like nose and deepening crow’s-feet telegraphing wisdom, not age. The enfant terrible has become an éminence grise, simultaneously elite and egalitarian. “Hey, brother! Hey, brother! Hey, broth-er!” he says by way of greeting, having his cake and eating it too.

So it has always been with Gerald Goldstein, a man who has made his reputation championing civil rights and his fortune defending dopers, two activities that frequently and fortuitously overlap. He has never shied away from a controversial case—in 1974 Goldstein, no fan of government censorship, defended a San Antonio theater manager’s right to show Deep Throat and, in 1990, rap group 2 Live Crew’s need to be as nasty as they wanted to be; infuriated by overzealous prosecutors, in 1980 he represented one of Texas House Speaker Billy Clayton’s cronies in the kickback scandal known as Brilab. Even so, it is safe to say that drugs have been Goldstein’s life. It was his 1978 appeal that reversed the convictions in what has come to be known as the Piedras Negras Jailbreak Case, in which two Texans stormed the border city’s jail and, Rambo style, freed fourteen American inmates charged with drug offenses. Goldstein was an early and influential supporter of the National Organization for the Reform of Marijuana Laws. He is a counselor and loyal friend to superhead Dr. Hunter S. Thompson, wrote an amicus brief on behalf of Noriega, and has defended on drug charges the sons of such prominent men as BeBe Rebozo and assorted San Antonio swells. The majority of newspaper clippings framed on his office walls have to do with his victorious work in the field of drug-related defense work: a 1979 High Times article that named him one of the top ten dope defenders in America; a 1983 San Antonio Express story headlined POT CONVICTIONS THROWN OUT, POLICE SURVEILLANCE WAS TOO ORWELLIAN; a 1985 Texas Lawyer story titled “U.S. Must Return $10 Million to Drug Smuggler”; a 1989 San Antonio Express-News story headlined FEDERAL CASE DEAD IN RECORD DRUG DEAL. Let the general public scowl—“Rich libertarian is druggie mouthpiece” the late, irascible Express-News columnist Paul Thompson declared in another clipping on the wall—Gerald Goldstein loves his work.

And why shouldn’t he? It has earned him the profound respect of his colleagues, who elected him president of the Texas Criminal Defense Lawyers Association in 1992 and president of the National Association of Criminal Defense Lawyers in 1994 and 1995. He is a sought-after commentator on CNN, a frequent contributor to op-ed pages, the kind of guy whose number is in the Rolodexes of reporters around the nation. If Americans are ambivalent about drugs—outraged by their destructiveness but bitterly divided over what to do about them—then Gerry Goldstein is the embodiment of that ambivalence, and has profited mightily from it.

Nowhere is this ambivalence more apparent than here, in Miami, a place revitalized in part by a TV show about two drug-busting cops in silk suits, a place that now pays the price for its drug culture in the form of murdered tourists. The lawyers gathered here seem immune to this irony, absorbed in the investigative databases on display or in swapping war stories (“I got a reversal in my drug case—that means my client will only have to serve ten years back to back,” says one. Says another: “I just won a two-billion-dollar forfeiture!”) They gossip—“I hear Abrego’s cooperating, so it’ll be an easy case for y’all,” one lawyer says, baiting Goldstein—or they make plans for drinks at the Delano, the hot new hotel owned by Ian Schrager, the man who helped make cocaine a glamour drug in the eighties with his club in Manhattan, Studio 54. The drug culture isn’t just a culture nowadays but an economy, one that is so pervasive that many Americans regard it as unavoidable.

Alleged Gulf Cartel member awaits trial on 2000 drug charges

Filed under: Uncategorized — Tags: , , , , , , , , , , , , , , , , , , , , , , — Johnathan Ball @ 4:56 pm

Alleged Gulf Cartel member awaits trial on 2000 drug charges

September 22, 2008 – 9:29 PM
By Emma Perez-Treviño

 Osiel Cardenas Guillen continues to await his trial on 2000 drug trafficking charges as U.S. Attorneys process his alleged Gulf Cartel associates who were arrested earlier this month.

Cardenas Guillen was indicted in 2000 and was later extradited by Mexico to the U.S. in 2007. He faces charges of drug trafficking and assaulting and threatening to murder a FBI agent and a sheriff’s deputy, public records show.

Several weeks ago, U.S. District Judge Hilda G. Tagle moved Cardenas Guillen’s trial in the Brownsville Division of the U.S. District Court Southern District of Texas to March 2009.

His attorneys, including Roberto Yzaguirre from Yzaguirre & Chapa of McAllen, requested the continuance noting that despite months of review, they have been unable to review all the material. They also claim that some of the material must be translated from English to Spanish or Spanish to English.

Cardenas Guillen’s attorneys also maintain that their review of material with their client is “severely limited” because of his restrictive confinement and the few hours a week that they are allotted with him.

Yzaguirre also represents Roma resident Jose Carlos Hinojosa, 31, aka “Charlie,” aka “Sobrino,” who was named earlier this month along with nine other suspects in a 17-count indictment filed in the McAllen Division of the U.S. District Court Southern District of Texas.

Yzaguirre was not available for comment.

The suspects are charged with drug trafficking and conspiracy to launder money.

Hinojosa along with Raymundo Edgar Gonzalez, 37, and Sergio Ivan Olivarez-Flores, 24, who were named in the indictment, pleaded not guilty Thursday and are being held without bond.

The 10 suspects are among 507 persons, including Cardenas Guillen’s brother Ezequiel Cardenas Guillen, arrested or indicted in a 15-month federal investigation called Project Reckoning led by the Drug Enforcement Administration.

Local lawyer Johnathan Ball assists in polygamist sect case

Filed under: McAllen Texas Criminal Defense Attorney,McAllen Texas Divorce Lawyer — Tags: , , , , , , , , , , , , , — Johnathan Ball @ 4:52 pm

Local lawyer, child welfare staff assist in polygamist sect case

April 27, 2008 – 3:23 PM
Jeremy Roebuck

McALLEN – Johnathan Ball’s career was defending clients in minor civil suits and criminal charges – until he found himself involved in the largest child welfare case in state history.

The 31-year-old McAllen lawyer is representing one of hundreds of children removed from a West Texas polygamist compound earlier this month on allegations that youths there were at risk of being forced into underage marriage.

What he thought would be a single issue case has evolved into an intricate legal conundrum, calling into question whether a parent’s beliefs can constitute abuse.

“I knew it was going to be strange,” he said last week. “But the whole case has become more complex than I thought it would.”

More than 400 children were removed April 8 from the Yearning for Zion compound near San Angelo. Residents at the ranch – run by members of a Mormon splinter organization called the Fundamentalist Church of Jesus Christ Latter Day Saints – marry off underage girls to older men within their group.

State child-welfare authorities raided the property after an anonymous phone caller claiming to be a 16-year-old girl told a family violence shelter she had been beaten and raped by her 49-year-old husband. While recent developments have cast doubt on that original tip, investigators say they have found evidence of physical and sexual abuse at the ranch.

To accommodate the massive legal and investigative effort, several Hidalgo County lawyers like Ball responded to a request for legal aid and took on the hundreds of child custody cases that sprung.

Ball – who works for the Griffith & Garza law firm in McAllen – headed to San Angelo two weeks ago to meet with his 5-year-old client. At the time, Child Protective Services was temporarily holding the children at the San Angelo Coliseum. Entering required a police escort and a brief medical examination, Ball said.

“I think (the compound’s former residents) were interested in all these people coming in with files and suits,” Ball said.

Dozens of CPS investigators and caseworkers from across the state had convened on the facility to take individual statements from family members. 

While an exact number was not immediately available, several of the child welfare support staff came from Hidalgo County CPS offices, the agency’s Corpus Christi-based spokesman John Lennan said.

“They’re all trained to the same standards as they would be in Houston, San Antonio or Dallas,” he said. “They’re doing the same thing there they would do here, so they were able to hit the ground running.”

Ball’s young client seemed relatively at ease.

“He’s a really outgoing kid – very smart,” he said. “The whole time he was playing with a Matchbox car. He seemed very comfortable around his mom.”

While Ball feels confident that in his particular case the child’s best interest would be to place him back with his family, he could face a steep fight drawing individual attention to his case.

A chaotic mass custody hearing last week glommed all the cases together. And after more than 20 hours of testimony, state District Judge Barbara Walther decided to place all the children in state custody, promising individual hearings by June 5.

For Ball and his client, that new hearing date can’t come soon enough. For now, his young client is staying in a foster-care facility – its exact location not publicly identified.

“To me, the most important thing is to get in front of a judge with my child and my parents,” he said. “From there, everyone has a different opinion.”

____

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

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