Dallas Morning News has yet another story on the proliferation of DWI blood warrants. This time the Dallas Police are joining the bandwagon of cities who have chosen to circumvent the law and violate your right to refuse blood testing.
What about the right to counsel? Will these DWI suspects have the right to consult an attorney before the Dallas Police forcefully remove their blood?
Texas Bill of Rights
When I use a word it means just what I choose it to mean, neither more nor less.’
– Humpty Dumpty, Through the Looking Glass
Most of the rhetoric surrounding DWI includes statements about drunk drivers. For example, Texas MADD has a “campaign to end drunk driving.” No one supports drunk driving which makes the label great to stifle debate.
I spent the morning at the State Office of Administrative Hearings in Dallas. SOAH is where all live Dallas ALR hearings are held. You can also request a telephone hearing. Ceteris paribus, I prefer a live hearing. A live cross examination contains more useful information than one by phone.
What is an ALR hearing?
ALR stands for Administrative License Revocation hearing. These hearings are triggered when you are arrested for DWI. Refusing, or failing a breath/blood test allows the State to suspend your license. If you request an ALR hearing your attorney can challenge the suspension and by association, your DWI arrest itself. These hearings are held separately from any criminal case. Winning at the ALR has no effect on a later criminal case.
Grand Theft Auto IV (GTA IV) is this season’s must have video game. In GTA IV you play a small time hood working his way up the criminal syndicate hierarchy. The game allows players to engage in a multitude of antisocial and criminal behaviors, including drinking and driving.Que the MADD hysteria!!!
Each year nearly 13,500 people die in drunk driving crashes and another half a million are injured in alcohol-related traffic crashes. This is why MADD is extremely disappointed by the decision of the manufacturers of the game Grand Theft Auto IV to include a game module where players have to drive drunk. Drunk driving is not a game and it is not a joke. Drunk driving is a choice, a violent crime and it is also 100 percent preventable. MADD is calling on the Entertainment Software Ratings Board to reclassify Grand Theft Auto IV as an Adults Only game, a step up from the current rating of Mature and for the manufacturer to consider a stop in distribution – if not out of responsibility to society then out of respect for the millions of victims/survivors of drunk driving.
First of all, 13,500 people do not die in drunk driving crashes. That is a complete statistical fabrication. However, no one besides me seems to care.
Collin County has jumped on the Vampire Prosecutor bandwagon with “no refusal” DWI weekends. A recent DMN story featured a Collin County ADA talking about their new tough on DWI blood draw program.
I filed an open records request for communications, documents, memos etc regarding implementation of this program. After all, if the Collin County District Attorney is so proud of this program then why not share the details with the public?
As usual, the CCDA sought to keep the records secret via the Attorney General. Cheap “tough on crime” PR stunts are easy for bureaucrats. Actually revealing what they are doing to the public is always met with resistance.
I have long argued that the Standard Field Sobriety Tests (SFST) used in DWI detection are a fraud. The science is garbage that has never been peer reviewed. However, tell a lie long enough and it becomes the truth. In Texas 3 SFSTs are used in almost every DWI case; the HGN, one leg stand and walk and turn. Officers are led to believe that these tests are highly accurate in detecting impairment and bac levels over .08. As with any good propaganda the weaknesses and flaws in the research are never mentioned.
A fortuitous Google search led me to Dr. Greg Kane. Dr. Kane has examined the field sobriety validation studies. He has examined the raw data that cops never see. His conclusion- the numbers don’t add up.
Why would a sober person refuse field sobriety tests? Read on to find out.
1. Name, Background, Resume
Greg Kane. live in metro Denver. I have degrees in math and in physics from Rice, 1980. I went to med school at UT Houston; I practiced internal medicine from ’91 till ’98. Since ’98 I’ve been a consultant to attorneys working on medical malpractice claims. See www.medmalEXPERTS.com
2. How did you get involved with SFST?
We medical doctors spend a lot of time interpreting imprecise physical tests. A spot on an x-ray may mean cancer, or it may mean nothing. Do you cut the lady open, or do you send her home? Medicine has developed a sophisticated mathematics for answering questions like that. In med school they teach you that math. As a math – physics guy, I though it was cool. My post-graduate research dealt with how that mathematics worked out for one specific type of x-ray. So I come to the question of SFST accuracy with an interest and some expertise in the mathematics of “accuracy.”
As an expert broker I get calls from defense attorneys looking for a doctor to counter FST evidence. Too often these cases involve drivers who failed an FST, had a BAC of zero, and are now charged with driving while intoxicated by, say, a therapeutic level of some benign medicine prescribed by their own doctor. The government’s reasoning: they failed an FST, they must have been impaired.
Because I happen to know how science says FST results are correctly interpreted, I know the government’s theory is wrong. The most difficult thing in life is to know how to do a thing right and to watch somebody else do it wrong, without comment. Also, it’s un-American to convict people with secret evidence, and with “scientific” tests that don’t work.
3. What did you learn about SFST validation studies?.
First, all the usual stuff defense attorneys complain about. They were never peer reviewed. They’re chock-a-block with procedural and logical flaws.
Second, I discovered things that don’t get talked about. For example
l The “accuracy” statistic the NHTSA uses to validate the SFST is a technical mathematical statistic that does NOT reflect the likelihood that a DUI defendant who failed the test was impaired.
l The NHTSA’s “accuracy” statistic is open to manipulation. Simply by manipulating the group of drivers you choose to “study,” you can set up your validation study beforehand so it is certain to “discover” whatever arrest accuracy you’ve been paid to validate. Not only is it possible to manipulate study groups this way, that’s actually how it’s done in real life. NHTSA contractors do manipulate their study groups in a way that uses this statistical trick. Every NHTSA FST validation study that “discovers” a high FST accuracy uses this trick. Every validation study that fails to use this statistical trick also fails to “discover” a high FST accuracy.
l SFST studies do not study SFSTs. They study officers instincts. The “accuracies” they report are not the accuracies of the standardized FST, they are the “accuracies” of officers’ unstandardized gut instincts about whether each driver is impaired or not. Validation study officers are as accurate as they are only because they repeatedly ignore the SFST. If they did actually rely on the SFST, their arrest accuracies would be substantially worse. That’s right, worse. SFSTs are less accurate than officers’ gut instincts, and validation study reports prove it.
l All FST validation studies keep the accuracy of the SFST itself secret. When I looked at the raw data for the 1998 San Diego study, I was shocked. To a first approximation the SFST works like this: Everybody fails. Everybody fails, and officers release people their gut instinct tells them are not impaired.
At the 0.04% BAC level:
296 drivers took the SFST
292 failed—99%.
4 passed— 1 %
On innocent people the accuracy is 7%! If juries rely on the SFST to decide the guilt of drivers charged with DWAI at the current 0.05% level, they will wrongly convict 93% of the innocent drivers who go to trial.
4. Tell us about your mathematical analysis. How is it done?
Basically it’s as if the government were pushing Youth Cream. The claim is, rub YC on your face and you wake up looking, acting and feeling young. So the government pays for Youth Cream validation studies done at an elementary school, and guess what, 95% of the people who used the cream in the scientific study did look, act, and feel young. Then the government claims the contractors’ research proves YC is highly accurate at making people young. But the secret isn’t in the cream, it’s in how contractors picked the group they “studied.”
It’s the same for SFSTs. Validation contractors “discover” high accuracies because they load their study groups with drunks.
The home page of my web site fieldsobrietytest.info links several of my published articles on how sensitivity-specificity-predictive-value science applies to SFSTs.
5. Officers are taught these tests are highly accurate. Is that true?
Yes and No.
Yes, there is a technical mathematical statistic called “accuracy,” and Yes the “accuracy” of SFSTs is high in the manipulated study groups in the government studies.
No, SFSTs are not accurate in the everyday sense that the answers they give are usually correct. The never before published raw data I managed to uncover proves that within the margin of error a failed SFST carries no implication of impairment. None. You can’t tell whether the person who failed the test is actually impaired, or whether they’re just one of the 93% of innocent people who also fail the test.
6. How do sober drivers fare on SFSTs?
At the 0.04% BAC, on innocent people the accuracy is 7%! That’s not a typo. Seven percent. If juries rely on the SFST to decide the guilt of drivers charged with DWAI at the current 0.05% level, they will wrongly convict 93% of the innocent drivers who go to trial.
At 0.08% BAC, on innocent people the SFST is only 29% accurate! That’s worse than a coin toss. If juries rely on the standardized field sobriety test to decide the guilt of drivers charged with DUI at the 0.08% level, they will falsely convict 71% of the innocent drivers who go to trial.
Texas trains DWI officers with the NHTSA Standardized Field Sobriety Student Testing Manual. The NHTSA SFST Manual is the national standard for DWI enforcement. Every DWI defense lawyer should own a copy.
The manual includes, inter alia, training on how an officer should testify in court. DWI officers are professional witnesses, trained and paid to speak in court. Some of the manual’s tips are pretty mundane; read the police report beforehand, listen carefully, take your time, speak clearly. Not too exiting.
Training Officers To Be Ignorant
Sitemeter makes it easy to browse the Google searches of my readers. Here are some recent search terms that led readers to DCDLB (formerly IWTS).
where to buy marijuana in dallas?
Reader, no one in America buys, sells, or uses marijuana. Our dear leaders in the federal government have declared that marijuana is verboten. Americans would never violate our divinely inspired federal drugs laws. I would be shocked if marijuana is for sale in Dallas, shocked!
As long as I have been practicing criminal law I have been watching DWI videos. As a prosecutor in East Texas DWI videos were on VHS tapes. This was very inconvenient for trial. I had to write down the time stamp for each scene I wanted, while noting all any objectionable material (defendant’s criminal history blaring over the police radio) etc. I spent time at trial awkwardly fast forwarding, reversing, pausing etc. Very cumbersome, those old VHS tapes.
In Kaufman County DWI videos are on DVD. Not a great technological leap forward from VHS. A DVD has a better picture, and is more convenient to browse. However, a DVD offers no more information than a VHS tape.
AVD Viewer-
MADD is on a never ending quest to destroy the Bill of Rights. To MADD any protection for suspects/defendants, any privacy rights, any amount of due process is simply an obstruction on their neo prohibitionist highway.
The Texas lege is usually an easy target for the MADD lobby. However, Texas is one of the last states to protect it’s citizenry from DWI roadblocks. Texas MADD had this list of “Myths” and “Facts” about sobriety checkpoints on their website. Before the lobbying begins this time around, let’s review their arguments.
Myths About Sobriety Checkpoints
Dallas Criminal Defense Lawyer Blog