Panel Discussion
Cross of the State's Expert
Revealing the Questions that Work
MR. TRICHTER: Howdy, everybody. Let me start with this observation. I disagree with Dr. Booker about his statement, "Don't go head—to—head with the expert." The reason I say that is because it's only when they know you can, they'll be short and sweet with you.
Anybody here that doesn't get a library together on breath testing is making a mistake. Anybody here who doesn't know their material, what the articles say, what the manuals say, who doesn't have each and every manual that goes back as far as you can go is making a terrible mistake in their practice. Because what you're doing is you're eliminating your ability to get a $12,500 fee or a $15,000 fee.
If you become a go—to guy in breath testing, you could expect to get paid for that. So this is just an advertisement. Anybody here can do that. Let's figure out how these panelists did it in their cases.
Mike, what do you think is the very best question that you can ask a technical supervisor?
MR. MCCOLLUM: I don't think you can ask them just one question; but if you only had one —— and again, you got to set them up for a lot of other things —— but if you only had one question, I'd say, "Isn't it true that if you take a breath test on this machine of yours —— and it could be a validly run test —— in other words, all the rules and regulations of the Texas Department of Public Safety were followed. The operator got the sample that he wanted to get and it was considered a valid sample and you've got a result, isn't it true that what's considered a valid test for the State of Texas is two people could weigh the same, consume the same amount of ethyl alcohol in the same period of time, both of them take it, you know, not knowing any better, agree to take your test, and the two validly run tests, according to the Texas Department of Public Safety, one person's breath test score could be twice the other's; isn't that true?"
And they'll say, "Yes." You know, they'll hedge it and say that, "Oh, yeah, I mean, if one's a .01, and the other one's a .02."
But, you know, the fact is you get no .02 agreement invalid tests all the time, so they don't know if somebody's got an invalid test score. If it was a .11 or a .15 or what have you, they can't say; but you can make them look bad if they're trying to say, "Yeah, it's an invalid test score." But that's the one, the one that I would use if that's the only question I could ask them.
MR. TRICHTER: We'll let you ask one later.
MR. MCCOLLUM: Yeah. It's not that simple.
MR. TRICHTER: Hugo, you got one?
MR. AGUILAR: What I kind of do in my case, I had a relatively new technical supervisor that was testifying; and what I just tried to get her to say is that what she was doing was guessing. And I think that the jury saw that; and they thought, "It couldn't be that simple." But she went through all these calculations; and then I just came back and said, "After doing all that, basically you're just guessing?"
And she admitted she was.
MR. TRICHTER: Good for you.
MR. AGUILAR: So, that's exactly what I would ask.
MR. TRICHTER: Okay. Gary?
MR. MEDLIN: I think usually, you can find the best one question for the technical supervisor from the subject test records for that particular peak to begin, either 30 days before or 30 days after, you look at it and you'll find with the one best question, one of the best that's always there is you can ask that technical supervisor, "On this machine with that same reference sample to that 30—day or however long that period was, that machine consistently measured that reference sample different as low as .07, as high as .09. You may not have those exact numbers, and your records may not have the reference sample scores or anything. Mark Harmon just takes those out now. They used to be in there. But he'll admit that that machine is measuring that same reference sample different every time, higher and lower.
MR. DAMERON: Yeah, I'm, kind of, like a lot of you out there. I'm still relatively new to the breath testing. In fact, I've been to this seminar twice. And so, I don't like to get too far, too deep into it, and I'm not going head—to—head yet.
You know, Jake and I, we work together on our cases. And a lot of things, you know, when you have a good video, you want to give the jury something to hang their hat on, and preferably not get lost into it. And that's why in affording certain arguments, I like to keep it simple and talk about retrograde questions later.
You know, a scenario is a scenario where the Defendant can be under, you know, .08, in our instance it was two—and—a—half hours earlier. So of all the questions, I think that was one of the most important ones. You know, it wasn't just, you need to come out and say, "Oh, yes, definitely," you know; and the DA asked her questions based on —— they have a script they go off that actually Mark Harmon wrote from them; and if you read the transcript —— I believe it's on—line if you want to go through it —— it reads like a story. It's very concise. You tell them what to remove and what to add and, you know, kind of help them along.
And when Jake is going through his questions, you know, asking about could he be under, just doing what I call the "Magic Math". He had to sit there and look at it and think; and we got the answer, "Sure," you know. But we also set it up early with other questions to the officer. So I really like the ones that, you know, you give the jury, you know, hope that it could be under .08.
And I've heard stories of jurors that when they were asked about the breath test officer —— the breath test supervisor, "What was the breath test at the time of driving"; and they go, at —— or they say higher or lower. And I think the jurors just look at me and go what's the problem. So I like to keep things pretty simple.
MR. TRICHTER: Simple's good.
Jake?
MR. JENKINS: Well, I think breath test cases in general are just a little bit different than refusal cases in that you can't just go in and try them the same way every time. You have to put in the work beforehand, and you know how you're going to attack this machine, because you're going to go head—to—head with the supervisor; but you can't just go head—to—head with anything. Do your work beforehand, know where you're going to go. Look at the transcripts that are on David's website, and you can just go in there and find what you're going to attack.
But if I can say what the best question is, I think it's the best type of question. I think, you know, each case is going to be different. But if you're dealing with a lower breath test score, one success that I really had is you build up the technical director and proceed to ask him questions throughout and say how the technical director says, "This is the allowed tolerance for the machine. So the technical director builds that out.
And then your best question is the question of getting your technical supervisor to agree, because then your closing would be to say, Is this a reasonable doubt? Well, the technical director in Austin thinks that.
And you can build that up. So once you get him to agree to something —— whoever the technical director is —— I think that once you get them to agree, then you've got their own witness agreeing with your theory of the case that you worked on beforehand. And I think that's the best question.
And the one thing I would look to say about the best question is, is you want —— you know, the last two breath test trials that I've won —— one in Tarrant County and one in Collin County —— the DAs didn't ask any questions after I finished my after I finished my cross of their technical supervisor, as they should have; but they didn't. And in that case, you want that best question right there so that the jurors know and they can go back and they'll remember that when they go to the jury room.
MR. TRICHTER: You know, folks, in order to be a good examiner of the technical supervisor, you want to always be thinking, "Keep it simple, stupid." And I don't want to mislead you to tell you that you have to go head—to—head with them. You have to have the ability, if need be, to go head—to—head. And the reason I think it's so important that you know their materials, the sites better than they do is so that when you're listening —— when you're ever so carefully listening, you can see when they make a mistake; and then you can take advantage of that mistake. Then, you get a chance to rub their nose into their manual. And until you know the manual, you can't ever tell when they speak if they're making a mistake or they're lying.
Now, Jake just talked about acceptable tolerance. They talk about acceptable tolerance. Why don't you change the wording to, "That's your range of acceptable error". Because that's what tolerance really is; it's an acceptable range of error. Error is a word the jury can understand that weighs for the side of the defendant. Tolerance is a word that weighs to the side of the government. Which word do you want to use? What word do we want to use? Use the "error" word.
I like —— in terms of the one question —— it's true to be a certified operator or a certified technical supervisor that you've got to take a test, and you've got to score a minimum of 75 percent on the knowledge. The answer is going to be "yes". Just leave it alone. Why would you think that's important? It's important because in closing argument, you get to say, "These people walk around with the acceptable error range of 25 percent." It's a simple question, but you have to know the material first.
Hugo, next best question?
MR. AGUILAR: Well, I was just going to talk about my theory basically.
MR. TRICHTER: Well, tell us your theory.
MR. AGUILAR: The theory I use starts with my voir dire and throughout the trial. I just said, all of us need a reality check, including the State of Texas. And one of the things I asked the panel was, what do you do, number one, when you see —— like at a bank, you see the time and temperature? The first thing you do is you check your watch, and you kind of vary, you know, range of the temperature. And why do you do that? Just to see if that clock is right. Well, that's how you match up your video with your test; and you pound that in there. They have to have a reality check.
Another good example is Google Maps. We all use that. When you get directions on Google Maps, at the very bottom, it says, these aren't accurate for —— whatever reason —— please be sure you check ahead of time. Well, same thing with the breath test. Basically, they can make a make on this. And always look at the video and use that as a reality check to whether your client has lost the normal use. And that's what I would talk about.
MR. TRICHTER: Mike?
MR. MCCOLLUM: Well, I think you've got to start —— all my cases are based on the premise that there's a big difference between accurate and valid. Like I say, you can't take it as accurate. You've got to remember what your theory is. And just like Jake said earlier, you know, about that opening statement, in my opening statement, our opening statements, when we try these cases is the first question in voir dire.
We get up. We don't introduce yourselves. You know, don't start with "I" or "me" or "thank you" or any of that. When you do say, May it please the Court, get up and say, How many of you—all drove down here today? And those of you who drove down, how many of you—all saw some bad driving, you know, people cutting people off, speeding, changing lanes without turning their signals on, maybe saw an accident? How many of you—all saw that? And how many of you, the first thing that popped into your mind is, That driver has got to be intoxicated. Hand are up, and then you say, but the rest of you did.
And then you go, now, let's keep the same driving facts, but let's change who it is. It's not you coming to the courthouse and you're looking around to make sure —— you're looking at everything. You're a police officer out looking for DWIs at about 2:00 in the morning in your patrolling area where there's lots of bars. And that night he sees the same driving facts that you saw this morning. Now, how many of you—all think that thought just might cross his mind? You know, yeah, it might.
The whole idea here is you've got —— just like Jake said —— you've go to get these —— heck, start with panel members, not with opening statements, with panel members, you've got to get them to stop —— when they come in, the first thing they're going to —— once they figure out you're not the accused, they're going to be looking at your client; and they're going to know it's a DWI case before voir dire is over. So what you've got to get them to do is to look at this case just like they looked at the traffic this morning, like they normally do outside the courtroom, and not just focus every thought, every piece of evidence, everything that's said directly towards, Is that guy guilty or not? Is that guy drunk or not? Because if they just concentrated on your client, then they're not going to be paying attention when you point out that the officer swayed kind of the wrong number of steps or he misspoke four times when he read the intoxilyzor warning, which is read thousands of times. You want to get them to look at the big picture. Okay.
The second thing you do is you've got to reinforce the difference between accurate and valid. What we do is, you know, how many of you—all —— what time is it? Who's got a watch? Mr. Smith what time does your watch say? Mr. Jones?
And we went and bought a watch —— a clock —— you know, that costs three bucks, a big one; and we set it off about six hours. And there's a clock up here in the courtroom. So we asked several people, you know, what time they have on their watch. The Judge's clock up here says something. All you've got to have is two that are different. You're always going to get at least two. Oftentimes they are all different.
And then you have yours sitting there. What time is it, folks? Which clock or watch is correct? They could all be wrong, couldn't they, if you had to know exactly what time it was. We've learned to adjust outside —— and, you know, we rely on instruments and machines to make our lives easier, because we don't live in caves anymore. But we know inherently, instinctively that they're not always accurate. In fact, some people will take their clocks and they'll set it ahead 10 minutes, because that's the way they want to use them, so they won't be late. You do that outside of the courtroom. Don't leave your common sense out there.
And then go through examples of get them committed. I get them committed on the difference between admissible evidence and believable. Just because the State —— and it takes awhile —— but just because the State admits to evidence —— how many of you—all —— the bottom line is, the question you ask the panel after you do some other stuff is, now, how many of you—all —— you've already explained to them that admissible evidence, just because it's admitted doesn't mean it's accurate or believable. It would be a big difference to go through that analogy, so, you know...
And then you go, Now, how many of
you—all if the government were to introduce evidence of intoxilyzer test results, which they claim are greater than .010, we have to sort of believe —— if you served on the jury —— you have to kind of sort of believe it's got to be a little bit accurate or they wouldn't have admitted it.
If they raise their hand —— you know, it's a commitment question; but they've already been asked a commitment question by the State, you know, if they have to have a breath test. Remember that question, you're allowed —— they're allowed —— that's a commitment question. So I say, The State asked you about relying on a breath test, let me ask you this. You know, and then you ask this question about, If it's admitted, would you have to sort of believe it's got to be somewhat accurate?
And if they say, Yes, hey, they'll have to be challenged for cause. Because just because it's admissible doesn't mean it's accurate. And what you do when you're asking the questions of the expert, I don't take him on head—to—head. He's my witness. You know, you start off with these guys, you ask them questions that they're going to agree with you on. You say, you know, It's about noon, isn't it? You can't say "no" to that.
But you know, you modify thousands of what's called a infrared —— and if you use a infrared spectroscopy —— is that right, Mr. Supervisor?
Yeah.
And you know, there's generally three different methods that are using intoxilyzers —— scientific methods use intoxilyzers to measure breaths. They call them fuel cell, gas chromatography, and then what you use here is an infrared; isn't that right?
You get a bunch of guesses out of him right off the bat. And then you do the math —— and I have a real cheap little thing that operates by light to do the math. And if you get him up here doing the math up on the stand, they're going to mess it up. And you know, what's a decimal point among friends. It's really great in front of a jury.
So, they're your expert; but the point is just because we got a result, that doesn't mean it's accurate. But if you have a videotape and everything else —— see it all goes together. But the theory is you can't be afraid of it coming in, but you've got to condition the panel members right off the bat to look at the big picture. Don't just concentrate on your guy. And then if they do that and you've got a good video, then you've got plenty to work with to raise reasonable doubt about the accuracy of that intoxilyzer test result. Don't try to prove it's inaccurate. Just raise reasonable doubt.
MR. TRICHTER: Gary?
MR. MEDLIN: I won't say that this should be the last question, but you have to set it up. And I learned this from Chris Hoover. But you talk about the example chamber being about 81 cc, the definition of .08 being .08 grams per 210 liters of breath. You demonstrate what 210 liters is equal to, like, a 55—gallon drum, much more than human lungs. And then you do a little math, and do it ahead of time so you know what it is. But .08 grams per 210 liters would be —— when you calculate that don't to show what that would be in the amount of grams per the sample chamber of 81 cc, it comes out to like .000003. And you write that up there on the board, and you emphasize how microscopic that is.
And then your last couple of questions can be —— and you constantly look at the subject test records to help set this up. So, you might have somebody who blew into that machine about 20 minutes earlier with a .3 or somehting like that; but you can use that to tailor your questions.
And Mr. Technical Supervisor, did anybody clean that sample chamber out in between Joe Blow's .2 and Billy's breath test?
No.
And when's the last time you did clean that sample chamber?
Well, never.
MR. TRICHTER: What do you say?
MR. DAMERON: You know, what Mike was talking about on the attachment is, you know, the breath test supervisor, at least over in Tarrant County it would appear, he doesn't watch the video. He doesn't, you know, go talk with the prosecutors about what happened so far, he just walks in and starts talking about a piece of paper.
And I think that really helps to show if you can bring that out that he's really detached. He's just coming in to talk about something that happened after the fact, happened after the arrest. And he doesn't even know what's going on at the scene. And I mean, before you can set it up with the officer where, you know, how —— you know —— in terms of alcoholic beverages that show you're intoxicated and just showed you recently consumed, that can help show that he's in the absorption period.
MR. TRICHTER: Raise your hand if you know what 803.18 Rules of Evidence says. 803.18, raise your hands. Come on.
Okay. You can't try a breath test case unless you know what that rule says and you know a code.
612, what's the sanction for 612? Anybody give me an answer.
ATTENDEE: Striking.
MR. TRICHTER: And 615, what's the penalty for 615?
You need to know these rules, folks, because 612 and 615 are the easiest way to kill a case; that is, if somebody had a written report and relied upon a report and they don't come up with it, you get to strike their testimony. It's very, very critical.
But 803.18 in terms of the expert technical supervisor, it's critical. You can try a breath test case once you know the rule, and you educate your judge to it.
A good question to ask —— by the way, questions for breath test supervisors, for operators, for the arresting officer, questions ought to be statements, short and concise statements with question marks on the end.
For example, to the technical supervisor, You're here to support the Intoxilyzer and the Texas Breath Test Alcohol Program. It's in your regulation.
He's going to say or she's going to say, Yes.
What did you just tell the jury? Your testimony is designed to or you're hired to support the program.
A good cross—examination of the technical supervisor or the operator begins with your study of the breath test program of the regulations of all the manuals that go back to day one and the scientific articles.
Another good example, you want to get ahold of the manufacturer's manual. Why? Because there are going to be differences between DPS's manual and the manufacturer's manual. The technical supervisor's going to say, as he should or she should, that the observation period is 15 minutes.
Doesn't the CMI, the manufacturer, the manual there say, The proper observation period is 20 minutes?
Simple questions, you don't need to go into anything else, it's stuff that you can tie together later with your jury.
Hugo, do you have another good point that you would like to share with us?
MR. AGUILAR: What I also try to do is I try to bring in the cost effectiveness of the machine versus the blood test and also the cost of a copy trap. If you can get the technical supervisor to admit that there is a device that will catch this breath test so that somebody else can independently test it, and they will come at you, and you can argue at the end, You know what, they are trying to save money here; but they're also putting somebody in jail.
MR. TRICHTER: How did you ask that question?
MR. AGUILAR: First, I set her up, basically by saying, If you're a scientist, any valid scientific experiment could be tested by several people, and the same result will occur?
She says, Yes, that's correct.
I say, Well, how do you test —— how could you independently test this breath test if this occurred?
She says, Well, it can't be.
I said, Well, is there any device that captures that breath test?
There is.
Does Texas use it?
No.
Why not?
She says, It's too costly.
Okay. Then I went into the other part. I said, What's more expensive ——
MR. TRICHTER: Did you ask, What's the cost?
MR. AGUILAR: No, I didn't. I didn't ask that. Because as soon as she said ——
MR. TRICHTER: That's an excellent question.
Mike, do you ask that question on cross?
MR. MCCOLLUM: Yeah, I'll ask them. But you've got to know your technical supervisor. The ones we have in Dallas just won't —— they won't tell you. We don't know. You've got to know how they're going to answer those questions. We've got transcripts, so you know how some of these will answer. We've got some really good transcripts of a couple of them, and they're nailed to the wall.
But you've got to know how they're going to answer, because if you don't know how they're going to answer, you know, there's so much you can ask them that they've got to agree with. You go back to the two people can weigh the same, over the same period. What I'm trying to point out is accurate and valid are two different things.
MR. TRICHTER: Wait. Let me keep you on track. Keep with the breath test sample.
MR. MCCOLLUM: Well, I'm going to —— I am. I am.
So, what you do is you get the guy to admit, the technical supervisor —— Now, this plus or minus .02 agreement between breath test scores, that means that if that is your instrument, your machine has —— according to the Texas Scientific Director of the State Police, it can be 25 percent off and be considered a valid test; isn't that right?
Well, I don't know what you mean by that.
Well, I mean, one breath test score could be 25 percent —— actually 33 percent higher than the other and still a person could be deemed intoxicated; isn't that right?
You know, it's simple math. A .08 could be a .10 or it could be a .06 and still be considered a valid test, right?
Well, that doesn't mean it's accurate.
Let me just ask you, Mr. Supervisor —— you've got to do this one fast —— Mr. Supervisor, let me just ask you: If you were having a custom—made door for your doorway —— you had an 8—foot doorway —— and the carpenter said that he could custom make the right kind of wood you want, the type of glass you wanted and everything, but by the way, I could only get it, you know, eight to ten sheets is close as I can come.
Would you use that carpenter? Of course not. But that's what you do for these citizens accused of DWI. It's good enough for them, isn't it?
Again, it shows accurate and valid are just two different things. And that way if you approach it from that direction, my attitude about it is I don't give a care what the test score is. It's irrelevant. It's got to be other things in the case —— the videotape or what have you —— because they can't prove it's accurate. So, if you do it that way, you don't have to worry as much as you're getting started that you're going ask a question that you're going to get slammed with or that you have to take him on without some teeth until you learn all of this technical stuff. Because if you take the attitude, it's irrelevant, all you've got to do with that supervisor is point out through their own regs how imprecise a valid test score is. And you know, if you stick with that theory, that will give you time to learn all the technical stuff as you try these things through the years.
MR. TRICHTER: Craig, do you use the lack of a breath sample?
MR. DAMERON: No. We kept those pretty simple. We just went basically off of the video didn't match the breath test. .
MR. TRICHTER: Gary, what do you think, effective or not effective?
MR. MEDLIN: Well, I think it can be real effective. I think you have basically two areas of questions or at least I'll go with questions. First, I normally try to figure out how I'm going to get under a .08, weather it be retrograde, whether it be using the calculator to add up all the different little margins of errors, whatever you can get down.
And then I have another set of questions that I like to ask, and this is where I think the copy trap question goes. And those are questions that leave the jurors thinking, Well, that machine is a good guess, but a guess is not good enough.
You know, little things that are little variables, like the heated tube that's heated to an unknown temperature. The reference sample that's a known measured out sample and still can't read things right. You know, little things that you can add in there. And I think the copy trap is a real good example of that, in that we could not —— it could not be a guess, because we could say that; but they're leaving it at the guess stage. They're not taking it that step further.
And Gary Redman spoke here I guess it was two times ago about how one of the things that he had touched on was that the breath test —— the reason why the State uses the breath test —— and I think you got an answer to this —— is because it's cheaper and it's faster. And you've got to really bring that out. And the copy trap, you know, they're not even willing to spend the 75 cents or whatever it costs to get a little device to say that; and they're certainly not going to be able to get a nurse up there to do a blood test. So I think it's —— you've just got to use that copy trap to keep it at the guess stage.
MR. TRICHTER: Gary?
MR. MEDLIN: I think one way to demonstrate Mike's point about accuracy versus validity is, okay, when I have a technical supervisor say, Well, there are two samples on this particular person were .112 and .118 —— and I put on an easel of my own, my sheets, I put a couple of dots close together.
So these two are .006 apart? And they couldn't have been even .02 apart, and it's still okay for this test, right?
Yes.
And then on final argument, with those two dots over there, I just put a dot over here, way far away from it, and then make that the center bulls eye of the target and draw specific rings until I get to these two that are close together, so far off of the mark.
And I say, Folks, these may be close together, they may be valid for government work, but they're in no way accurate. They're way off the mark.
MR. TRICHTER: Anybody ever seen a toxcraft? Anybody know what it is? On the exhaust tube of the "intoxi—liar" —— on the exhaust tube, the cork, there's a little device about the size of this pen that will slide on; and it contains silica gel. It's like a straw. And the alcohol goes out the exhaust and goes into this silica gel tube. The silica gel grabs the alcohol, so it can be tested later in a laboratory with a different device, the gas chromatogram.
The beauty of it is it only costs about a dollar. And if you have friends in other states, they can typically get them for you. It is a great exhibit.
And I'd like to think when you ask your questions of the technical supervisor or with any witness, you don't ask them for lawyers, you don't ask the questions for the judges, you ask the questions for the jurors, and you do it for effect. I didn't ask if there's a device, at least not out of the box, that will preserve the sample.
I say, Did you bring the breath?
No, we don't save it.
You don't save breath?
No.
Well, if this was a confession case, would it be good police work for you to destroy the confession and allow —— would you want us just to take you at your word what it said?
No.
You work in the crime lab?
Yes.
Well, if we were talking about a semen stain, would you destroy the semen stain and just tell us about it? Is that good police work?
No.
The only reason we don't have it is because they don't want to keep it. I don't have the article title —— but if you do a search on Alvin Weatherman, who is now retired, he was with the Austin Police Department, when he was No. 2 at DPS, he did a study, thank goodness he did a study for use with the intoxilyzer; and he found that you could keep the toxcraft on a shelf for six months with a 99 percent accuracy rate.
Yes?
ATTENDEE: Can you get that study tomorrow and put it on the website?
MR. TRICHTER: Oh, I'll send it to David. Yeah, I'll give it to him.
So it's very important that you think about how you ask the question. And the questions really are statements with question marks on them.
We have time maybe for short statements that you want to make that you want to tell these people, "What would make the difference in the next breath test case, what you didn't do that you would do now?
Gary?
MR. MEDLIN: I think the key is you just have to understand the basic science behind it. And you have to have the subject test records and look at the different tests, the different people who blow in the machine, the different scores that are being registered, the different representative tests that are being run.
And you have to ask the technical supervisor simple questions, and don't try to battle them on the science unless you really can win that battle. And that's hard, especially if they're effective witnesses, even if they're not terribly smart. But using any of those questions, I think, any of these things, I think, it's all accurate.
But you can also prep the jury for this by making them understand why. They'll tell you that, you know, they like breath testing, because it's easy. Well, a cop —— we talked to the jury about this in voir dire to set this up. The cop gets to choose which test they can request. They can request any of them. They're not choosing to ask for blood. Your client never refused to blood. They chose to ask for breath. Well, because breath testing is a quick result or it's cheaper, well, that's a bunch of hooey, because you talked with the jury beforehand about, Well, when do you think the breath test is given, before or after you're arrested?
Well, guess what, it's after you're arrested. You don't get un—arrested if you pass the test.
MR. TRICHTER: We've got to move on.
MR. DAMERON: I agree a lot with what Gary said. My advise is don't get overwhelmed by everything. I know sitting here listening that most of us aren't math majors or science majors; and you get to .006 and different toxilogic traps, it can get overwhelming, so just kind of, like Gary said, keep it simple.
I recommend finding somebody you can work with pretty well. Jake and I work very well together in trials. We both have different approaches, and we complement each other. Just find someone else you can split things up and focus on different areas.
But like Gary said, "Keep it simple." Don't try to get in an argument. I know Mark Harmon probably loves for you to do that, and he'll act like he doesn't understand what you're saying because you don't ask a question right. So, keep things pretty simple and find somebody to work with, watch trials, plagiarize from everything you've learned today, and work it into your own set of facts.
MR. TRICHTER: Jake?
MR. JENKINS: One thing I would say is use a flip chart or something like that, because once you do get the tech super to admit to something that helps your case, you want to make sure you remember to use it in closing. And one way that I always do that is with a flip chart.
There's a couple of question that I would always look to ask, but I forget sometimes. One thing, the longer you blow, the higher the score. I won a case in Dallas about a year ago when they timed the score back in the jury room.
They said, He blew for 15 seconds.
And that was a big deal. And I almost didn't ask that question. And then also I mentioned on retrograde. I always like to get the technical supervisor to say, Those two scores are the same scores. They don't represent going up or going down.
Because in Collin County on the last case, the DA stood up and goes, Well, we know he wasn't in the absorption period, because these scores are different, which is a bunch of crock and we all know that. The technical supervisor knows that. But if you don't ask that question of the technical supervisor in front of the jurors, then your DA gets to stand up and make that argument. And so those are two questions I always like to throw in no matter what my case is looking like.
MR. TRICHTER: Mike?
MR. MCCOLLUM: Yeah, I forgot. I always ask. You know, always get an agreement on all of them. The longer you blow, the higher the score, so get that in somewhere. But what I would do differently, I wouldn't do anything differently. I like the way I'm doing it. But I would say that we all need to start getting ready for these blood tests that are coming. Right? Mandatory blood tests? They've always had the right to get a search warrant and draw blood, always had that right. And until Tarrant County started doing it, the judges over in Dallas County wouldn't let us say that in front of a jury; but they do now.
If you catch a prosecutor saying, The reason we don't have an alcohol concentration —— in voir dire
—— one of the reasons why we may not have a scientific measurement is because the accused can refuse.
You stand up and object.
You say, Your Honor, that's ridiculous.
At any time they can get a search warrant and involuntarily draw blood on anybody on a DWI case, if they really want to. In fact, they've been doing it in Tarrant County for two years.
And then you get to this deal about the 8—foot door —— you know, the 8—, 6— to 10—foot door to be a valid test on a breath test. Of course, you've already talked to them about the simulator solution uses gas chromatography to —— one way to check the accuracy of the simulator solution. Of course, if you use blood test —— if you use gas chromatography on a blood test, those blood tests will come out basically the same. You won't have this .02 difference of blood. They may not answer it; and if they do, they'll say, Yeah, it should be a lot closer.
And of course, you have to know the laws. And you know that the trooper or the police officer, he gets to pick which test he's going to request our clients take. And of course, he didn't get a search warrant and get a blood sample, did he?
You may not know the answer, but you've already got that out of the officer when you crossed him before the technical supervisor came in. So, what you can argue is, Hey, it's no wonder they're going to use this 25 percent. You know, bulls eye.
MR. TRICHTER: What would you do different, Hugo?
MR. AGUILAR: Well, I'd get more verse on all the technical aspects.
But I have a general tip, I would say; and it goes to what you were saying about earning a $15,000 fee —— I mean, not all attorneys here are earning this figure ——
MR. MCCOLLUM: I better take that class. Where is that class?
Well, David Burrows or a lot of these other great lawyers that are here.
What I would say —— and this is what I do —— I set a flat rate on any DWI that walks in my door. And I do that —— and you know, if you're right out of law school, it could be $1500; and you know, depending on your experience, you vary that.
So what that does, it tells my client, I'm going to fight for you no matter what. I don't care if that breath test is at .30. If I think you've got a chance, we're going to take that chance in trial. And you're not going to have to worry about coming back in here and me telling you, You know what, now you owe me a trial fee of "X" amount of dollars.
Because I think a client automatically says, You know what, I blew a .16, I ain't going to win this case. And then I've got to pay another trial fee; and on top of that, I've got to pay probation. And on top of that, I've got to pay surcharges that are higher, because I blew so high.
If you set it up right up front —— and then when —— with my particular case, I had a 25—year—old, second grade elementary school teacher. I gave her a flat rate; and I told her, You know what, no matter what, we're in it. It worked with her, because she didn't want to go to trial. I had to convince her that, You know what, you have a good enough video, let's take our chance. Let's see what this jury does. And if you lose, you're not going to jail. You're going to get probation. You know that.
And if you do that, you're going to get —— you're going to practice more breath tests and absolute refusal; and then you take your chances. And we need —— I don't know what the —— what was the number, David, 300 trials out of —— only 300 trials ——
MR. BURROWS: 300 out of 15,000 —— 300 trials and four counts.
MR. MCCOLLUM: Just breath tests?
MR. BURROWS: Just breath tests.
MR. AGUILAR: I mean, and that's what I would tell you; and then that way, you start getting in there and start mixing it up and see what happens. And you get better at all these things that I've already talked about.
MR. TRICHTER: Folks, a breath test case is harder. Your client is going to know it's harder. It's like giving them an extra gun in a gunfight. You have a right to charge more for it. I think that it takes longer for a no—test case. For me, it might take 2 days. A breath test case might take four. You can try 4—day breath test cases. The next time you have a .08—09, .10, they're not going to try it with you. They'll give you the benefit of the doubt, and that is a wonderful thing you can sell to the clients.
I've had the chance to work with Mike. He's helped me a lot. I don't go anywhere in Dallas unless he's holding my hand.
I think it's important that you secure a copy of the patent on the breath test device, the intoxilyzer. Who's seen the patent? It's important because when you cross a technical supervisor, you generally want to cross on areas that you know you can hit them over the head with and say, Wow. Nothing can defeat the State's case quicker than catching someone in a lie.
The patent says that the breath test machine we use in Texas measures blood alcohol, and it's converted into breath. Blood alcohol. So that makes the 2100 to 1 blood breath ratio relevant and material. How many times have you heard the prosecutor say, It's not relevant, 2100 to 1 is not relevant?
Anybody?
Write this down. Dahl, D—a—h—l. Dahl versus State. 707 S.W.2d 694, Austin Court of Appeals. It says, it doesn't matter the statute change. It didn't matter that we changed to a per say statute. The machine hasn't changed. The technology hasn't changed. The machine is based upon 2100 to 1. It's still good cross. What is the most —— what is the single most important presumption in a criminal DWI case? Anybody know?
ATTENDEE: Presumption of innocence.
MR. TRICHTER: A little louder.
ATTENDEE: Presumption of innocence.
THE COURT: How many presumptions are there allowed in a criminal case?
ATTENDEE: Presumption of innocence.
MR. TRICHTER: Can you presume that the breath test machine is accurate?
ATTENDEE: No.
MR. TRICHTER: Can you presume that the breath test machine is reliable?
ATTENDEE: No.
MR. TRICHTER: That's what you tell your jurors, folks, and get them to say it. David?
MR. BURROWS: That couldn't have been any better I don't think.
MR. TRICHTER: For those who came in late, I want to remind you or tell you that we've got a court reporter, Crystal Jones. She's taking all of this discussion down, and it's going to be transcribed and put on the website. So, if you like to take a lot of notes, take a lot of notes. Or you can wait and it will all be on the website.
We're going to go to lunch now.
Mark, anything?
ATTENDEE: Can you give us the website again?
MR. TRICHTER: Dwiwinningedgean.com.
(End of panel discussion)