Would Lubbock Police arrest a hospital nurse during a Lubbock DWI investigation?

Recently I heard about a case in Chicago where a RN nurse was arrested by the police while working.  The case involved a dwi investigation and the police asked the nurse to draw blood on a suspect.  The nurse followed hospital procedure and was waiting for the suspect to be admitted to the hospital.  

That is where the case takes a turn, the police did not want to wait and guess what they handcuffed the RN charge nurse and took her out of the hospital in cuffs.  The nurse sat in a squad car for 45 minutes before being released.  She is now suing the police.

Hofstra said she filed her lawsuit in federal court last month in an effort to have the officer punished for violating her rights.

She was in the car for about 45 minutes before the situation was resolved, Hofstra said. The cuffs were too tight, requiring treatment in the hospital after she was released from custody, she said.

A security video of the incident shows the officer smiling outside the squad car as Hofstra sat inside.

“He feels comfortable about smiling when he just illegally arrested someone,” said Hofstra’s attorney Blake Horwitz. “He is enjoying his power.”

Could this happen in Lubbock?  I certainly would not rule it out.  As they say absolute power....

Lubbock DWI Blood Draws

Recently the Lubbock County District Attorney held a "No Refusal" weekend. You ask what does that mean? Well, anybody who was arrested for a dwi by the Lubbock Police Department and refused to take a breath test was taken to a local hospital and their blood was taken. When the citizen accused refused to take the state's breath test somebody in law enforcement sought a warrant to obtain their blood. This is a relatively new concept in Texas and as far as I know the first time this "no refusal" weekend was held in Lubbock. There are several areas of this program that are very disturbing to me and I will be addressing them over the next few postings.



Let's start with the background. Law enforcement have had the ability to obtain a "mandatory blood draw" by law in several areas. One of our laws provide that if a person is suspected of driving while intoxicated in Lubbock or any place in Texas and is arrested and if that person caused an accident that resulted in either death, fear of death or serious bodily injury to another person then law enforcement can have a qualified medical person take the arrested person's blood. However, if there is no accident with serious bodily injury or death and a person refuses a breath test then the law says no sample SHALL be taken.



Then in 2002 the Texas Court of Criminal Appeals decided the case of Beeman v. State and said that the law of no sample shall be taken does not prevent the government from seeking a search warrant under the Fourth Amendment search and seizure law.

"The prosecutors in various jurisdictions and now Lubbock are trying to use that case, set up a no refusal weekend, that type of thing, and so they got warrants, stuck a needle in somebody's arm and drew blood," Lubbock Criminal Law Attorney Stephen Hamilton said.
Hamilton is against the blood search warrant program.

"You have an absolute right to refuse to give a breath sample. What the D.A.'s office has done, through the case law, is say well that doesn't prevent us from going forward attempting to get a warrant to take somebody's blood," Hamilton said.

"That's incorrect," Brummett said.

He says once you get behind the wheel on a Texas roadway, you give authorities implied consent. It's written in the Texas Transportation Code.
"There's not a right not to give a breath test. If that was so, we couldn't bring it up in trial as evidence against you, and we're allowed to do that. You also couldn't face a penalty for doing that, and right now the penalty for not providing a breath sample is a suspension of your license for six months. If you had a right not to give that, they couldn't take away your driver's license," Brummett said.

As you can see from part of the article, the District Attorney's office believes that you cannot refuse to give a breath test!!!! Really, well I wonder why then in EVERY dwi arrest that does not involve an accident that the police REQUEST not demand a breath sample. I wonder why the statutory warning says the police are now REQUESTING a sample of your breath.

As I said I will have lots to say on this and why the above statement from Mr. Brummett is absolutely wrong in the next few posts.

Here is the link to the story


Lubbock DWI Blood Draws

Lubbock DWI Attorneys want the Lubbock Police to videotape all field sobriety tests

As reported this week by the local media, the Lubbock Police Department is using wireless, mobile cameras to help fight crime.  Apparently, these cameras are being placed in alleys and work off movement sensors.  The idea is that even when the police are not there these cameras may help record activities such as burglaries.  

The law is clear that there is no right to privacy to actions in "public places."  If the LPD keeps these cameras focused in public areas then there will be no violations of privacy.  If however, these cameras are used or pointed into homes or other places such as backyards then there will be major issues of privacy and violations of the U.S. and Texas Constitutions.  I guess we will have to wait and see.  Knowing the LPD's tract record I wouldn't hold my breath that they will stay on the straight and narrow.

 What is really interesting to me as a DWI trial attorney is that the LPD will not videotape certain parts of the field sobriety tests, specifically the HGN or eye test, but they will videotape alleys.  It seems that there is a policy at least informally in Lubbock that when a citizen is accused of a dwi the police will not do one of the "tests" on camera.  I have had several officers testify that they were trained either at the police academy or by a field training officer to not perform this test on camera.  I wonder why?  Could it be that by doing it on camera everybody who watched the video including the jury would see what garbage this "test" is.  Could it be that everybody could see when the officer does the "test" correctly and when the don't?

 Bottom line if you need us, call.  We are aggressive Lubbock and West-Texas DWI trial attorneys and are here to help if we can.

Lubbock DWI--Field Sobriety Tricks

Over the last few months on both of my blogs, both here at at west-texas-dwi.com, I've been writing on the basic idea that a "field sobriety test" have absolutely no validation as to whether or not a person can safely drive or operate a car or motor vehicle. See, Field Sobriety Tests have no validity in loss of normal use in Texas, and Your Guilty Because Everybody is Guilty!!!

Well recently I had a case where the Texas DPS officer on video is explaining some of these "frauds" to a citizen accused. What is amazing about this video is that the trooper actually speaks the truth when explaining these frauds. Watch this and see what the trooper says!!!!

That is right, he says "Just part of the field sobriety tricks!!!!" No we all know they are tricks. We all know that there is absolutely no study that says that a person who can't do these tricks have lost the normal use of their mental or physical faculties but to have a Texas DPS trooper say it... Makes you wonder if it was a Freudian slip or the Homer Simpson mentality "OH did I say that or think that?"

The bottom line is if you or somebody you love is arrested for DWI, call us. We'll be glad to sit down with you, talk about the case and look at the video to see what we can find that might help your case.

Lubbock DWI field tests---What good are tests if they don't have any validity?

Once again I have heard from the lawyers for the state in a DWI trial that "field sobriety" tests help officers determine whether or not a person is ok to drive a car. This has to be one of the biggest frauds committed on juries not only in Lubbock, Texas but throughout at least the state of Texas. How so you ask. Well first let's start with the legal definition of "Intoxicated" in Texas. Our law says that a person is intoxicated if:

1. His or her Blood or Breath alcohol concentration is .08 or more at the time of driving; OR

2. That by the introduction of alcohol, drugs, dangerous drugs or a combination of, a
person has lost the NORMAL USE of his or her mental or physical faculties.

So, the police officer when administering these police motor skills does not have the evidential breath test and often testifies that once the person fails these "tests" that the officer has probable cause to arrest for dwi.

I often ask in cross-examination about the validity of these police motor skills tests. It goes something like this:

Q: Officer you testified that "bill" had 4 clues on the walk and turn?
A: Yes
Q: You have been trained on what you call the field sobriety tests?
A: Yes
Q: I issued you a subpoena to bring all the materials you have been trained on correct?
A: Yes
Q: Now turning to those materials, there are absolutely no studies, no manuals, no
documentation you can show this jury that a person who steps off a line or does not
touch heel to toe has lost his (or her) mental faculties, correct?
A: That's correct sir
Q: And there is no studies or manuals or documentation you can show this jury that a person
who steps off a line or does not touch heel to toe has lost his (or her) mental faculties,
correct?
A: Yes sir.

Glen Neeley, a dwi attorney in Utah blogs on this basic fallacy. He cites the study of the "inventor" of these balance tests and her acknowledgement that these balance tests cannot determine whether a person safely operate a motor vehicle. In fact, Marcelline Burns,, in her study entitled "Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent" writes on page 27 of the study as follows:

"Many individuals, including some judges believe that the purpose of a field sobriety test is to measure driving impairment. For this reason, they tend to expect tests to possess "face validity," that is, tests that appear to be related to actual driving tasks. Tests of physical and cognitive abilities, such as balance, reaction time, and information processing, have face validity, to varying degrees, based on the involvement of these abilities to driving tasks; that is, the tests seem to be relevant "on the face of it." Horizontal gaze nystagmus lacks face validity because it does not appear to be linked to the requirements of driving a motor vehicle. The reasoning is correct, but it is based on the incorrect assumption that field sobriety tests are designed to measure driving impairment.
Driving a motor a motor vehicle is a very complex activity that involves a wide variety of tasks and operator capabilities. It is unlikely that complex human performance, such as the required to safely drive an automobile, can be measured at roadside." Read Glen's blog here.

So let me see if I have this correct officer,
1. there are no studies to show that not holding your foot up while balancing on one leg
2. in the wind, on the side of the interstate,
3. while 18 wheelers come whizzing by,
4. while a police officer who has a gun on his hip,
5. while telling you that if you don't pass these "tests" you are going to jail,
I'm sorry officer there are no studies that say that not being able to do the above means that "bill" has lost his normal use of his mental or physical faculties?

Not that really seems fair wouldn't you agree?

Lubbock Police Department Party Patrol

For those of you who have been following the Lubbock Police Department's "Party Patrol" consider this. As you know the Lubbock PD has spend the fall semester with a very aggressive stance regarding noise violations and minor in possession tickets. The real problem has been that in an attempt to stop underage drinking the LPD has been accused of giving tickets to those minors who were not viewed by the police consuming or possessing alcohol.

We have seen cases that go so far as the potential of an officer entering the second story of a residence with a ladder after those inside refused to allow the officer entrance into the home. If true this is obviously illegal and a violation of the homeowners fourth amendment right to be free of unreasonable searches and seizures.

Recently the general manager of News Channel 11 of Lubbock in his "consider this" section agrees with the tactics of the LPD. His stance is simply another of the ends justifies the means mentality. I see this idea of do whatever it takes to fix the problem a lot with driving while intoxicated cases in Lubbock. I can say with great pride that as a Lubbock DWI trial attorney I will fight this mentality with every ounce of energy that I have.

I wonder if this gentleman will have a different view when the police enter his house one night at gunpoint without a warrant, get him and his wife out of bed, sit them on the curb in handcuffs and tell them that they are searching their home because the police had a call that he is a drug dealer. That is the problem with the ends justify the means mentality. It only works when you are not that the police consider the "means."

Mistakes by Police involving a DWI / DUI Arrest in Texas

Driving While Intoxicated - DWI in The State Of Texas
Driving Under The Influence - DUI in The State Of Texas

Lubbock Texas DWI / DUI Defense Lawyers Handling Drunk Driving Arrest

The reality of the situation is that you need experienced DWI / DUI defense attorneys on your side who know the drunk driving laws and have been successful in getting results throughout the West Texas areas. You will have a much greater chance of a more favorable outcome. We are experienced and knowledgeable in litigation and trial defense work, research and case preparation which helps our law firm prepare the best possible case for you.

At Boatwright & Hamilton, we understand your drunk driving incident. Being arrested for drunk driving and taken to jail can be very frightening. As experienced DWI defense lawyers we are here to help. You don’t need to face it all alone.

The 10 biggest mistakes most people make after being arrested for a DWI in Texas and how to avoid them.

1. Not taking the matter seriously. This is a charge that will follow you for the rest of your life, if you are convicted. The additional insurance charges alone could cost you thousands of dollars.

2. Not hiring an attorney. The law is complex and you need competent representation. You must raise the right defenses at the right time or you will lose them. Facts will disappear, memories fade and witnesses vanish. A winnable case can quickly become a loser.

3. Hiring an lawyer based on the amount of the fee alone. The State of Texas has almost unlimited resources when it comes to your case. You need to hire an attorney and pay a fee which will allow him to put time and effort into your case to counter the prosecution. Attorneys must earn enough in the time they spend on your case in order to keep their doors open and make a living wage. If you go too low, your attorney will not be able to put in the time necessary to protect you. Look for a reasonable, predictable fee, not the lowest.

4. Not complying with driver's license laws. You could lose your right to drive.

5. Driving after your license has been taken away.

6. Not taking full advantage of your constitutional rights.

7. Taking the prosecutor's first offer. The first offer is not a bargain, it's just to get rid of your case with the least amount of work. Very few cases are dismissed or reduced to a non-alcohol charge at this stage. You do not give the judge an opportunity to rule on constitutional challenges. You give up your right to raise these issues and make the State of Texas prove it's case.

8. Failing to appear in Court. The Court will issue a bench warrant for your arrest and revoke any bond. The next time you are stopped for a traffic infraction, you will be spending some time in jail and posting a bond for your future appearances.

9. Talking to anyone but an attorney about your case. Anything you say to them can be used against you.

10.Thinking that talking to numerous attorneys will help you handle it on your own. You need to have an attorney go to Court with you.

For more information call our office at 806-747-8002 or visit our website at Lubbock DWI Defense Attorneys.