DWI Defense 101. By Deandra Grant Oct 24, 2013

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1 DWI Defense 101 By Deandra Grant Oct 24, 2013

2 DWI

3

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5 Responsible Social Drinking

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7 The Crime of DWI Not having the normal use of your mental facul9es due to the introduc9on of X. Not having the normal use of your physical facul9es due to the introduc9on of X. Having an alcohol concentra9on of.08 or higher. X = alcohol, a drug, a dangerous drug or a controlled substance

8 Alcohol

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10 Alcohol Kinetics Slide courtesy of Dr. Fran Gengo, Pharm.D, FCP, Buffalo, NY

11 Dewey, Cheatum & Howe

12 Case Study q Three lawyers meet for dinner. Each weighs 160 lbs. q Mr. Dewey has not eaten all day and is obese. q Mr. Cheatum had a light lunch and works out regularly. q Mr. Howe is having his 2 nd dinner and he works out with Mr. Cheatum. q Each has 2 drinks before dinner (7-7:30 pm) and a glass of wine with dinner (8:30 pm). q Do they need a designated driver at 10 pm? Courtesy of Dr. Fran Gengo, Pharm.D, FCP, Buffalo, NY

13 Slide courtesy of Dr. Fran Gengo, Pharm.D, FCP, Buffalo, NY

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15 Field Sobriety Tests Developed by the National Highway Traffic and Safety Admin. (NHTSA) Used by police agencies nationwide Claim a high accuracy rate

16 3 Test Battery Horizontal Gaze Nystagmus (HGN) Walk & Turn One Leg Stand

17 The Untold Story FALSE POSITIVE RATE! Rate of test subjects that failed the test but had an alcohol concentration BELOW the legal limit according to the NHTSA research studies: HGN as high as 77% Walk & Turn as high as 70% One Leg Stand as high as 40%

18 To Blow or Not to Blow That is the Question.

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20 Intoxilyzer 5000EN Z80 Microprocessor

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22 Breath Testing Theory Developed as a way to calculate the amount of alcohol in a person s blood by measuring the alcohol in their breath.

23 State s Not Using the 5000 Alabama Alaska Arizona Arkansas ConnecBcut Florida Georgia Hawaii Illinois Indiana Iowa Kansas Louisiana Maryland MassachuseLs Michigan Minnesota Mississippi Montana New Jersey New Mexico North Carolina Ohio Oklahoma Oregon South Carolina South Dakota Utah Vermont Virginia Washington Washington DC West Virginia Wisconsin Wyoming Intoxilyzer 9000 And soon TEXAS!

24 q Equilibrium (no longer absorbing alcohol) q Alveolar breath q Exhaled breath temp of 34C q Blood:Breath rabo = 2100:1 q No Mouth Alcohol q No Interfering Substances

25 Breath Testing Advantages Quick Non-Intrusive Inexpensive

26 Breath Testing Disadvantages It is a screening test that is not specific for ethanol. It has a high potential for error. If you refuse or blow over a 0.08, you may face a drivers license suspension.

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28 Potential Error q Inherent margin of error +/ q Mouth alcohol may combine with the breath alcohol to inflate the result q Stomach alcohol vapors (GERD) may combine with the breath alcohol to inflate the result q It assumes a breath temp of 34 degrees result is 6% inflated for every 1 degree above 34 q Radio frequency interference (RFI)

29 Par33on Ra3o ParBBon rabo errors represent the greatest degree of error in the breath alcohol tesbng process. BAC = BrAC 2100 : 1

30 Values in the scien-fic literature for this ra-o range from: 900:1-4100:1 Dr. A.W. Jones measured the rabo at: 1756:1 (1983) 2450:1 (2002) Range 1836:1 4082:1 2250:1 (2007) Range 1834:1 3259:1 Dr. Jones: Par33on ra3o is a moving target = x 1800 =.068

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32 Par33on 2100:1 Reads 1, assumes 2100 more Therefore 2100 exist

33 IF Par33on 4200:1 Reads 1, assumes 2100 more Assumes 2100 exist BUT 4200 actually exist Therefore: BrAC READING HALF of true BAC Level

34 IF Par33on 1050:1 Reads 1, assumes 2100 more Assumes 2100 exist BUT ONLY 1050 present THEREFORE: BrAC DOUBLE true BAC

35 Blood

36 Blood: How They Get It Blood drawn by consent Blood drawn because of an evidentiary search warrant Blood drawn without a warrant Blood drawn in a hospital for medical purposes

37 Forced Blood Draws

38 How Can a Blood Test Be Wrong? q Blood tube could be contaminated before use q Fermentation can be caused by contamination or improper storage (ie. heat) q Immunoassay testing is prone to false positives q Contamination could occur in the lab q Sample could be mixed up during preparation or in the GC autosampler

39 Chex Mix: Nuts Pretzels Bagel chips Rice Chex cereal Wheat Chex cereal Corn Chex cereal How much does each ingredient weigh?

40 Headspace Gas Chromatography They don t test the blood. They test the headspace above it.

41 Gas Chromatography is a Separation Science

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44 Batch Run

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47 All the vials are exactly alike The only identifying information is a number MANY samples are run in a batch It is up the analyst to put them in the right order

48 Immunoassay Testing: Hospital SPIN Serum Whole Blood Blood cells

49 Whole Blood vs Serum Blood containing alcohol Whole Blood Lower alcohol level Serum Higher alcohol level

50 Getting to the Real BAC.10 serum blood test result.10 / 1.16 = / 1.18 = / 1.20 = / 1.25 =.080

51 Hemolysis

52 Hemolysis can be caused by many variables, including a traumatic venipuncture, improper handling and processing of blood collection tubes, and adverse conditions when samples are being transported to a laboratory.

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55 DWI and Drugs q Prescription medications, either alone or mixed with alcohol, are a growing problem. q The most notorious is Ambien, which can cause amnesia when mixed with alcohol. q Xanax is another prescribed drug that is commonly involved in DWI cases. q Date rape drugs slipped into drinks in bars are also a potential DWI issue. A DWI lawyer must understand drug impairment and half-life in order to properly represent individuals charged with a DWI based on drug use.

56 Retrograde Extrapolation Gotta get back in time

57 What Was the BAC at the Time of Driving? BAC could have been higher, lower or the same as the test result at the time of driving. Slide courtesy of Dr. Fran Gengo, Pharm.D, FCP, Buffalo, NY

58 Cocktail Party Wisdom q If you are stopped and investigated for DWI, there is a HIGH probability that you will be arrested because the officer s standard of proof is PROBABLY. q If the officer thinks you failed the HGN test, you are going to jail no matter how you do on the other 2 tests. q The less information you give them, the better. Cooperation will not get you out of it. However, acting like an ass will ensure your arrest and will not be helpful at trial. q You are being recorded. Keep that in mind. Everything you say and do will be used against you as a sign of intoxication. q You have the right to remain silent. Use it.

59 q You are not legally required to perform Simon-says sobriety exercises or take a breath test. The best response to a request by an officer to perform SFST s is to say that you will do whatever you are legally required to do (which is nothing). q Taking or not taking a breath test will not get you released. No matter what breath result is obtained, the State can and often does go forward with prosecution under the alternative theories of impairment. In other words, you can blow under a.08 and still be prosecuted for DWI. q Do not fight the police if they obtain a blood search warrant and force a blood test. They will hurt you. Seriously. q DWI is not a traffic ticket. A conviction can have major consequences. Do not hire your buddy s probate attorney, your uncle the insurance defense litigator or anyone else who does not have a clue what they are doing. You might as well go to court with a potted plant for a lawyer.

60 q Just because a police officer who has never met you thinks you are intoxicated does not mean you are. q Just because a piece of paper says that your breath or blood alcohol concentra3on was.08 or higher does not mean it really was.

61 Oh, Canada With a DWI conviction you may not legally enter Canada for 10 years (unless you get a waiver).

62 AV- rated alorney Deandra Grant s pracbce is focused on DWI defense in Texas. She is a nabonal speaker on DWI law and science and is the co- author of The Texas DWI Manual (James Publishing). Deandra is a Standardized Field Sobriety TesBng Instructor and has completed and taught the Drug RecogniBon Overview course. She was the first alorney in Texas to pass the Forensic Sobriety Assessment CerBficaBon exam. In addibon, she has completed coursework in DWI forensic blood and urine tesbng and was trained as an operator and maintenance technician of the Intoxilyzer In 2011 she received a cerbficate in Forensic Chromatography: Theory & Prac-ce, issued by Axion Labs and the American Chemical Society. Deandra is a member of NCDD, TCDLA (Board Member & DWI CommiLee Co- Chair), the Dallas Bar AssociaBon, the Collin County Criminal Defense Lawyers AssociaBon and has served on the Board of the Dallas Criminal Defense Lawyers AssociaBon since She is also a member of the American Chemical Society, the American Academy of Forensic Science and the American AssociaBon for Clinical Chemistry. D Magazine named Deandra to its list of Best Women Lawyers in Dallas 2010 and Best Lawyers in Dallas She s been named a Texas Super Lawyer and one of Texas Top Rated Lawyers. Best Lawyers in Dallas 2013 named her one of the Top 10 DWI Lawyers in Dallas. Most recently she was selected to the Top 100 Trial Lawyers list by The NaBonal Trial Lawyers AssociaBon. Law Office of Deandra M. Grant PC 800 E. Campbell, Suite 110, Richardson, TX (972) Office * TexasDWIGal.blogspot.com WomenDefyingGravity.blogspot.com

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