Houston DWI Defender

Here is a link to the Houston Chronicle article. A few weeks ago, I went to trial in Montgomery County on a breath test DWI. Thanks to the awesome investigative work of our expert Ray McMains (formerly with DPS and responsible for this (Read the Dee Wallace story), we hit gold when Merkord was posed this question: “Do you ever follow the rules?” His answer: “No.”

The questions referred to whether or not he followed the DPS Standard Operating Guidelines. Specifically, whether or not Merkord ever performed required quality control checks when removing when removing a machine from its current testing environment. The purpose of these checks is to insure that the machine can detect interferents in the air, like acetone, that could produce a false positive high result on a subject’s breath test. In other words, if the machine didn’t guard against interferents a person’s breath test could appear much higher than what it actually is and the evidence would be unreliable but could still be used against them in court.

Glenn Merkord, the man entrusted by DPS to oversee several breath test machines to insure their reliability and to insure proper scientific procedures are being followed, failed to do his job. He not only failed to do his job, he failed to READ the job requirements. The Standard Operating Guidelines consist of only 8 pages.

The required acetone check procedure is right on the very first page. Glen Merkord said not only does he Never do this acetone check upon removal of a machine but that he didn’t even know he was supposed to be doing it. This testimony shined some unwanted light on Glenn Merkord from DPS. They began investigating him and they found out that he was improperly certifying breath test operators also. The result has been that Glenn Merkord is suspended, they took his keys from him and the breath tests of the wrongly certified breath test operators have been determined to be illegally obtained and the evidence will not be able to be used. The Montgomery County DA’s office is having to dismiss cases because of Merkord’s violations.

My concern is that how can we really know that Merkord wrongfully certified ONLY 2 breath test operators? If he isn’t familiar with the SOGs how can he be the one in charge of making sure the operators are following the required rules. I suspect that this is only the tip of the iceberg and that we will uncover more bad breath tests and more illegally certified breath test operators.

DPS has a person in charge of looking at Technical Supervisors. An auditor for DPS looks to other Technical Supervisors work to make sure they are doing what they are supposed to do. Follow the rules, insure compliance with the Standard Operating Guidelines, properly maintain and calibrate breath test machines. Where is the auditor in this mess? Either the auditor is doing their job and was aware of Glenn Merkord’s mistakes, violations and illegal certifications and covered it up or the alternative is that the auditor is not doing the job either and is completely unaware of renegades like Glenn Merkord.

I don’t know what is more disturbing.

 

Over an 18 day “Special Enforcement Period” which included the Labor Day weekend, Texas DPS made 1,859 DWI arrests across the state.
Texas DPS received a special grant funded by the Texas Department of Transportation which allowed more patrolling hours concentrated in “high risk” locations during the times when alcohol-related crashes are most frequent.

This DPS effort also resulted in 25,000 speeding citations, 3,800 Seat Belt/Child Safety Seat citations, 1,190 fugitive arrests and 877 felony charges.

Unfortunately, DPS has ended their Amnesty Program with no plan on offering another amnesty period in the future BUT you may still have a chance to catch a break on surcharge fees. The Texas Legislature recently authorized an Indigency program that will provide drivers with a chance to pay surcharge fees owed and maintain driving privileges. The Indigency program will not eliminate surcharge fees entirely but will reduce the surcharge fee amount.

The DPS Indigency Program was authorized for individuals living at or below 125% of the federal poverty level. All individuals interested in the program will have to complete an application with will include a signed/notarized affidavit.

Once an application is approved for the Indigency program, DPS will reduce the amount of surcharge fees owed by 10%, not to exceed $250. DPS will remove the suspension from the individuals driver’s license while payments are being made.

If you have any surcharge fees assessed on or after September 30, 2004, you are eligible for the reduction provided you are approved by DPS.

To Apply: Fill out and submit to DPS the application including the affidavit (affidavit must be signed and notarized) provided below. You can also call DPS at (866) 223-3583 and have the application mailed to your residence. I have also provided a link below to the DPS website which will provide you with addition, more detailed instruction.

NOTE: Inmates may also apply for the Indigency program. There is a link to an unsworn declaration (for inmates only) included on the DPS surcharge website and at the link below.

Poverty Level Chart (Health and Human Services Department):

Important Links:

Texas DPS Indigency Program:

https://www.txsurchargeonline.com/Indigence.aspx

Texas DPS Indigency Application, Instructions and Affidavit:

https://www.txsurchargeonline.com/IndigencyAffidavitEnglish.PDF

https://www.txsurchargeonline.com/IndigencyInstructionsEnglish.pdf

https://www.txsurchargeonline.com/UnswornDeclarations.pdf

Texas DPS Surcharge Website:

https://www.txsurchargeonline.com/default.aspx

NOTE: Tyler Flood is a DWI Defense Attorney in Houston who is providing helpful information for individuals who may qualify for the Texas DPS Surcharge Indigency Program. The Firm, unfortunately, cannot help process applications or answer any further questions. Please contact the Texas Department of Public Safety Municipal Services Bureau (MSB) at (800) 688-6882. Agents are available from 8:00 am to 9:00 pm Monday through Thursday, 8 am to 6 pm Friday, and 8 am to 12 pm Saturday. You can also email the MSB by click on the link below and filling out the provided form.

https://www.txsurchargeonline.com/ContactUs.aspx

Starting February 25, 2012, 260 law enforcement agencies around the State of Texas will be making visits to homes, businesses and schools to arrest people who currently have active warrants. Usually before a warrant round up agencies will have an amnesty period…not this time. Just a little heads up to get those warrants paid before you find yourself in handcuffs.

Tyler Flood was interviewed by ABC 13 recently regarding the BAT van cases and the investigation into the potentially faulty DWI testing equipment. Watch the segment below or at ABC13′s website

“Law enforcement officers have the obligation to convict the guilty”

These strong words are not mine.  They are in fact the Supreme Court’s from United States v. Wade in 1967.  If the police have the duty of convicting an accused, who’s duty is it to hold the police accountable to the public?  The criminal defense lawyer.  We are called to Police the Police.

The Voice for the Defense magazine contains a great message this month from TCDLA President Gary Trichter.  That message is that being a criminal defense trial lawyer is NOT all about winning.  In fact, our job is to fight for our client and uphold the United States Constitution?  Today I heard a wonderful description of a criminal defense lawyer’s role.  We are Officer’s of the Constitution.  We Police the Police.  Our job is to keep Police Officers in check and to serve as protectors of the rights and protections we are afforded by the Constitution.  We are the last protection for a civilian who has been accused of a crime.  We are the only ones standing up for an accused and the only ones standing between the accused and the people trying to convict him.

In dealing with a case such as a Blood or Breath DWI, we are External Quality Control. Our job is to verify the lab work performed that the State will rely on as evidence.  We have a duty to arm ourselves with special knowledge of the areas of scientific evidence so that we can insure that unreliable lab work is discovered and exposed when found.  We must present the issues we find in simple understandable terms and let the jury decide.  Our job is not to win but to investigate and defend.

When we have diligently defended an accused and insured their right to a fair trial, we have done our job.  Winning is certainly more but enjoyable but we can never try to achieve that goal to the exclusion of personal and professional values.  A win at all cost attitude is very damaging to the lawyer and to the system.  The costs associated with this mentality come in many forms, including, compromised ethics, a perception of low morals, damaged professional reputation and potentially a lessening of faith in the justice system held by the lay person and jurors.

Here is a link to the article: Voice for the Defense

 

Wednesday, November, 2, 2011, I celebrated 10 years being licensed to practice law.  The time I spent applying for law school, going through law school and then studying and taking the bar exam seemed to take forever at the time but 10 years later, looking back, it was just a brief moment in time.  The first milestone I achieved was becoming Board Certified in Criminal Law, but having 10 years under my belt now is another.  Here are some things I learned along the way so far:

1. You don’t know anything about practicing law when you get your bar card.
2. You THINK you know everything about practicing law when you get your bar card.
3. The worst kind of lawyer is one who has the “answer” for every legal question you ask them.  The smart ones say they don’t know and then find the answer.
4. Everything should not be a fight.
5. Say a little less than you know.  This goes for personal life and the law practice.
6. If you think you found a big problem in a piece of State’s evidence against your client, it probably isn’t. But even if it is, if you tell anybody before trial it will NOT be a big issue at trial.
7. Pay your bar dues on time.  I have seen colleagues suspended unnecessarily for just not paying their dues.
8. There is only one way to do your job as a criminal attorney  – be a TRIAL lawyer. Try jury trials, period.
9. If you want to go to Spence’s trial college, do it before you are married and have kids.
10. Be careful what you say to the media.
11. Keep your head up and eyes forward and fight for your clients and ignore what anybody says about you.
12. If you can find a mentor you are lucky.  Learning how to do anything is much harder on your own.  (I didn’t have a mentor).
13. If you do your job for your client over and over, you will not make many prosecutors happy with you…oh well!
14. Read everything you can about the area of law you practice and be the best in one area.
15. Seminars are great vacation excuses for your family.
16. Don’t give an internet marketing company your credit card info to hire them over the phone.
17. Don’t give any internet marketing company any money at all, ever.  Your competitor is paying them also and they can’t make you their number one priority.  Find someone who will.
18. Judges don’t know everything about DWI law like I assumed they did when I started.  This was one of the biggest revelations when I was new.
19. Lots of “DWI” lawyers don’t know much about DWI.  When asked, though, most have no problem offering some sort of answer and most of the time it is wrong.
20. Always request an ALR hearing, period.  There is no excuse for not doing so.
21. If a case is triable, TRY IT, even if your client can’t afford a trial fee.  You shouldn’t have taken the case if you weren’t planning on doing everything it would take to defend your client.
22. Nobody can make a shoe look as good as Weldon can.
23. Hanging out at Char is bad for a marriage.
24. Be nice to your staff.
25. Don’t assume Democrat criminal judges will be good for the defense.
26. Partnerships have low survival rates.
27. Start off with a Mac instead of a PC.
28. Be open and generous with knowledge you accumulate, younger attorneys need you.
29. You have to stop yourself before you argue one word too many!  Everybody will do this.  If you are lucky it will be just once.
30. If you seek any political position, know that you could end up being indicted.  Politics is a dangerous game.  Prosecutors are politicians.
31. Your family is more important than your practice.

The Independent Grand Jury investigating the BAT Van cover up finally ordered Rachel Palmer to appear and answer for her actions.  They also issued subpoenas for John Jordan and Jim Leitner.
Somebody may be waking up with an indictment under their Thanksgiving tree soon!

David Mitcham may have successfully figured out how to professionally and respectfully handle the DIVERT issue in Court 2, the issue being that Judge Harmon has (probably correctly) used his informal veto power and said he will not allow an otherwise qualified DWI defendant to enter into the DA’s makeshift deferred adjudication program for first time DWI offenders.

I have included a copy of the Motion to Dismiss Information David filed alleging that due to random computer generated court assignment, any person runs the risk of winding up in Court 2. Well if you are eligible for DIVERT and you wind up in Court 2, you have in the past been out of luck in getting into the DIVERT program even though everybody else who wound up in any other court can obtain the guaranteed dismissal.  This obviously isn’t fair to a person who winds up assigned to Court 2 and David made smart arguments based on his client being denied Due Process and Equal Protection of the law.  David merely asked for a dismissal so that the case could be refiled and have a chance of showing up in another court besides Court 2.  Judge Harmon granted the motion in favor of the defense even though the State was fighting it (just another immature decision probably ordered from a supervisor).

Kudos to Judge Harmon and David Mitcham.  Hopefully this has opened the door for across the board relief for all DIVERT candidates that find themselves assigned to Court 2 from now on.

A request to the DA’s Office, please concede. This is a good and just resolution to the DIVERT issue in Court 2 and please try not to interfere in the future.  I’ve heard many Assistant District Attorney’s state that their job is merely to “seek justice for the people of Harris County.”  Will it kill you to just stand by and let the Defense Lawyers do their job in their attempt to seek fairness, Due Process and Equal Protection from the Courts?  Thank you.

I was happy to hear about several lawyers leaving the DA’s office earlier this week.  Allison Secrest, David Natchigall and the “Lighthorse” Knox Nunnally.

I know these prosecutors and they have one thing in common, high ethics and integrity.  There are hidden land mines all around that office right now just waiting to be stepped on.  I think these few are smart to get out before it’s too late.  Good going.  You are above the antics occurring with Lykos as the, umm…leader.

Unfortunately, Carl Hobbs, And Steve Morris already had a limb severed in an explosion last week as they were demanding that secret grand jury testimony be turned over to them so that they can show Pat Lykos the substance of why she is being investigated.  Carl and Steve are now being ordered to Honorable Susan Brown’s court this coming Monday to explain what the hell they were thinking.  This is becoming such an amazing display of stupidity.  It’s one horrible decision after another.  It’s starting to be followed on a national level as the American Bar Association picked up the story yesterday.

www.abajournal.com/news/article/judge_sets_contempt_hearing_for_prosecutors_and_court_reporters_in_runaway_/