San Antonio Injury Attorney Blog

Burden of Proof in Texas Criminal Cases

Tue, 05 Jul 2011 15:38:57 -0600

In a Texas criminal case, the State of Texas represented by the District Attorney's office, possesses the highest burden of proof under the law. A San Antonio criminal defense attorney will explain during jury selection all of the burdens of proof separately.

The first basic element is reasonable suspicion, which is the element needed for the police to stop and detain a person. The attorney will enlighten the jury by explaining how little it takes for a police officer to legally effectuate a stop. The next level of proof is "probable cause", which is more than reasonable suspicion. Probable cause is all that is necessary for a criminal defendant to be arrested, booked, set on bond, and stand for trial.

In its most basic form, probable cause essentially means that police are required to arrest someone if that person could be guilty of committing a criminal offense. The law encourages a police officer to err on the side of safety. When the arrested person does not contest the charges, then the court resolves the case usually through a plea agreement. However, when an arrested person disagrees with the charges, then the first time he is entitled to have a group of independent citizens review the case is when a jury is chosen. In Texas, the judge does not prescreen a case, so the only people who have reviewed the case are law enforcement and the district attorney.

It is important to note that when a jury walks into the courtroom, their level of respect for the judge, law enforcement, and the district attorney outweigh their respect for the defense counsel. Yet it is important to note that the role of the judge is to decide the law, and he does not know the facts of the case before the trial. The district attorney simply presents the facts received from law enforcement to the jury.

The next burden of proof to be explained during voir dire (a unique Texas name for jury selection) is preponderance of evidence, This is the common burden of proof in civil courts and it means that a jury must find that one side has presented evidence of greater weight than the other side. The unique analogy is that of the scales of justice - enough evidence is presented to tip the scale or there was more than 50% evidence favorable for one side.

The next level of proof is clear and convincing evidence. A San Antonio criminal defense lawyer will question how many jurors have children. A key question to ask jurors during voir dire how much evidence would be necessary would be necessary for the government to remove children from the home. Most jurors would reply that government would have to prove beyond doubt before taking children. Yet the standard of clear and convincing evidence needed to terminate parental rights and take a child away from the home is a lesser standard than the standard of beyond a reasonable doubt. A common question to ask when trying to describe beyond a reasonable doubt is whether someone is willing to bet their own children that a person is guilty beyond a reasonable doubt.

"Beyond a reasonable doubt" is quite simply the highest burden of proof in the courts today and it is dictated on the government by the Constitution. Each juror should voice their agreement that the burden of proof of beyond a reasonable doubt should be placed on the state and the jury plans to hold the government to that burden as required by the US Constitution.

Each crime contains specific elements on which the government bears the burden of proof. If the state cannot prove each and every element of the crime beyond a reasonable doubt, then each juror must be willing to return a verdict of Not Guilty. It is important in a Texas criminal defense case that the jury believes it is permissible to find someone not guilty when the law requires it, and that their jury service is no less valuable if they returned a Not Guilty verdict.

A 'Not Guilty' verdict does not mean that the jury disagreed with a law enforcement officer's decision to arrest. The jury can vote Not Guilty and the police officer would still have done a commendable job.

Association between Flu Shot / Influenza Vaccine and Guillain Barre Syndrome (GBS)

Fri, 24 Jun 2011 16:59:23 -0600

The most common vaccine shot associated with the development of Guillain Barre Syndrome (GBS) is the influenza flu shot. Most people receive the influenza vaccination to reduce the risks associated with the flu. New influenza vaccines are formulated every year due to ever changing influenza viruses. Since 1979, the vaccines are trivalent, using strains of influenza A (H1N1), influenza A (H3N2), and influenza B viruses.

The first known association between GBS and the flu shot became apparent during a mass vaccination program in the United States with a swine influenza vaccine in 1976-1977. It should be noted that in 1976, an influenza outbreak occurred in Fort Dix NJ. The outbreak was traced to swine-type influenza A (H1N1). In reaction to the outbreak and the danger from an epidemic from swine influenza, the United States Department of Health and Human Services instituted a mass vaccination of the US population. Approximately fifty (50) million adults were vaccinated during the short three (3) month interval from October - December 1976. Of the mass numbers vaccinated, there were over five hundred (500) cases of Guillain Barre Syndrome including thirty (30) deaths. A study of the incidence of GBS discovered that there was an elevated risk of Guillain Barre Syndrome within six to eight (6-8) weeks of vaccination. Following the elevated GBS risk, the government ordered the cessation of the swine flu vaccination program in early 1977. A GBS flu shot injury attorney will refer to the swine flu incident as the strongest evidence of a causation link.

Other studies have confirmed a causal relationship between the 1976 swine influenza vaccine and GBS onset in the adult population. According to the Vaccine Adverse Events Reporting System (VAERS), there was an increase in GBS reports in 1992-1993 and 1993-1994 associated with the influenza vaccine, with data suggesting an increased risk within six (6) weeks following influenza vaccination. VAERS is a system employed by the United States for rapid reporting of adverse events following vaccination. The US Federal Court of Claims often inquires as to whether a VAERS report was filed following an adverse reaction to a vaccination.

An evaluation of trends of reports to VAERS of Guillain Barre Syndrome following the flu shot in adults reflected that there was a possible causal association between GBS and influenza vaccine. There was an average of onset of GBS about two (2) weeks after the vaccination and few cases of preexisting illnesses that could possibly explain the onset. A Guillain Barre vaccination injury lawyer will emphasize the timing of the onset of peak symptoms.

Between 1990 through 2005, there were over one thousand (1000) cases of GBS reported after vaccination. In the majority of cases, symptoms appeared within six (6) weeks of vaccination. GBS cases were most prevalent following the influenza vaccine followed by the Hepatitis B vaccine. For adults, there was a greater incidence of Guillain Barre under 65. The peak GBS symptoms appeared within two (2) weeks post vaccination. There appears to be a bell curve with greatest number of incidents reaching a peak at two (2) weeks with declining numbers approaching the six (6) week mark post vaccination. Over eight hundred (800) cases of GBS were reported in the US between 1990 through 2009 following the flu shot of which about half were men.

Guillain Barre Syndrome (GBS) and its link to the Flu Shot / Vaccination

Wed, 01 Jun 2011 15:54:41 -0600

Guillain Barre Syndrome (GBS) is a clinical neuromuscular syndrome that can cause paralysis (temporarily and sometimes permanently) in individuals who receive the influenza / flu vaccination. Generally, GBS is characterized by weakness and numbness. Some individuals complain of a tingling sensation in the legs and arms with minor to major loss of movement in the legs, arms, upper body, and face. Some people will show a contortion of the face from GBS similar to the physical drooping from a stroke. GBS usually starts as a ascending paralysis characterized by weakness in the legs, moving its way up to the upper limbs and face with a loss of deep tendon reflexes.

For the most part, Guillain Barre Syndrome is triggered by an upper respiratory or gastrointestinal infection although the etiology (cause) of GBS is not exactly known. It can be a potentially deadly disorder and affects up to 2 people per 100,000. Unfortunately GBS has no known cure although several treatments can alleviate symptoms and lower the length of the disorder. For the most part, people recover fully from severe cases of GBS.

There is great debate in the vaccine community about the link between the flu vaccination and Guillain Barre Syndrome. The Vaccine Court for the most part has accepted the theory that the influenza vaccination can replace upper respiratory or gastrointestinal infection as the triggering factor for GBS and the Miller Fischer variant of GBS.

When filing a vaccine compensation claim, a GBS flu vaccine attorney will investigate the presence of any antecedent upper respiratory or gastrointestinal infection within six (6) weeks prior to symptom onset. Most individuals do report experiencing some form of infectious illness prior to developing Guillain Barre Syndrome. Almost 70% of GBS cases are associated with some prior acute infection by various bacterial viruses. In a flu GBS case, the influenza vaccine activates the immune system against components of the nervous system similar to activation by viral or bacterial infection in non-vaccinated GBS cases. Many experts believe that the most common mechanism for development of Guillain Barre Syndrome is molecular mimicry in which the body produces cross-reactive immune responses.

There are certain variations of GBS, the most prominent of which is known as the Miller Fisher variant. Patients with the Miller Fisher syndrome typically project symptoms of ataxia (gross lack of coordination of muscle movements), ascending numbness, and facial palsy and these symptoms can very well occur after taking the flu vaccine. A Guillain Barre injury lawyer will look at the possibility of any infections prior to the onset of Miller Fisher syndrome. Many GBS patients will develop a disabling chronic fatigue syndrome and sensitivity to heat that may become permanent. The disabling fatigue can be particularly troublesome by interfering with activities of daily living and occupational duties. A vaccine compensation lawyer can make the argument that a person whose occupation is impaired by the fatigue syndrome deserves economic damages in addition to pain and suffering.

Sometimes in filing a vaccine compensation claim , the government attorneys will try to challenge a Miller Fisher claim, claiming that there are differences between Miller Fischer and general GBS. An expert neurologist will be able to dispel this argument by showing there is no fundamental difference between the pathogenesis (development of the disease) of Guillain Barre Syndrome and the Miller Fisher variant. Both disorders share similar patterns of evolution, recovery, and symptom characteristics.

In our next blog entry, we will discuss more in detail how the influenza vaccination causes Guillain Barre Syndrome. If you suspect your GBS is linked to the flu shot, contact a flu shot vaccine injury attorney as soon as possible. There is no need to go a local attorney because a GBS flu injury firm can handle cases nationwide.

Principles of Vaccine Injury Compensation

Sat, 07 May 2011 15:57:14 -0600

If you believe you have been injured by a vaccine, it is imperative that you contact a vaccine lawsuit attorney . There is a three (3) year statute of limitations on vaccine compensation claims.

When a person's vaccine injury is listed in the vaccine injury table and the injury occurred within the time provided in the table, then causation (the link between the vaccine and the injury) is presumed. A person may still receive compensation when the injury is not listed in the vaccine injury table, but the petitioner must show that their condition was caused by the vaccine (known as the preponderance of the evidence standard).

A vaccine injury lawyer employs several methods to demonstrate causation by a preponderance of the evidence. First, the attorney may show via experts and scientific research that it is medically plausible for the vaccine to have caused the injury. For example, in cases of GBS flu injury, a common scientific theory used by neurologists is molecular mimicry. Second, it is helpful that there is peer-reviewed medical literature supporting an association between the vaccine and alleged disability. The vaccine lawyer may also demonstrate that the petitioner's injury is medically accepted as a reaction to the vaccine and that the injury took place within a medically accepted window of time after the vaccine to reflect causation.

Finally, a good vaccine injury attorney will also seek to show other potential causes were not present. The most common way of demonstrating alternate causes are not applicable is to demonstrate via prior medical records that the petitioner did not suffer from any preexisting conditions. For example, in GBS flu vaccine injury cases, the lawyer will show via prior medical records that the injured party did not suffer from a preexisting upper respiratory or gastrointestinal infection that could cause GBS.

Other key documents in a vaccine injury claim include a affidavit from the injured party regarding timing and severity of symptoms, medical records, diagnoses of treating doctors, and VAERS (Vaccine Adverse Event Reporting System) data. To successfully obtain compensation, seek professional vaccine injury consultation immediately.

Vaccine Injury Compensation Program Basics

Sun, 01 May 2011 15:17:21 -0600

As more Americans take vaccines from injury into well into their senior years, injuries from vaccines will inevitably follow. An ensuing injury of Guillain Barre syndrome from the flu vaccine is one of the most common claims.

The National Vaccine Injury Compensation Program was established to provide compensation to those individuals who have suffered an illness, disability, injury, or even death from a vaccine. The standard by which the Court of Federal Claims determines a link is known as a preponderance of the evidence. Simply put, is it likely that the injury complained of was in fact caused by the vaccine.

To determine causation in a vaccine injury case, the special master (the term given to what is traditionally the judge in most civil matters) makes a finding of causation based on medical records and / or medical opinion. Simple claims of injury by the complainant or petitioner are not enough to warrant compensation. Besides examining medical and scientific evidence, the special master pays heavy attention to diagnoses or conclusions made by medical professionals regarding causation of the petitioner's conditions. Medical professionals can also comment on residual long-term effects of the vaccine injury.

Many petitioners often find it difficult to get their treating providers to write an affidavit of causation linking the illness to the vaccine. Some treating providers do not feel qualified enough to make the connection, or they may have ties to the pharmaceutical industry, or they are leery of potential malpractice issues (although such fears are often unwarranted). In such cases, a vaccine injury attorney can draw on various experts including board certified neurologists, who can review the records and draft strong expert reports in favor of the petitioner.

The special master also reviews the results of evaluative tests such as CAT scans and MRIs , especially as they regard abnormal effects of the vaccine on brain activity. It is important to note that such evaluations are not binding on the special master, but they are parts of the overall calculation.

When relying on the Vaccine Injury Table , and whether the symptoms of injury occurred within the time period prescribed by the table, the special master carefully reviews the medical records to determine if whether the symptoms manifested themselves during the time period after the vaccine.

A vaccine injury lawyer must demonstrate the petitioner did not exhibit symptoms of disability or conditions prior to administration of the vaccine. Documentation of medical injury and short-term and long-term pain and suffering and economic damages are keys to a successful vaccine lawsuit .

Process of Finalizing Texas Uncontested Divorce

Sat, 29 Jan 2011 19:16:31 -0600

In our last blog entry, we discussed elements of the uncontested Bexar County divorce decree. A New Braunfels uncontested divorce lawyer must generally wait at least sixty-one (61) days after the filing of the divorce petition before finalizing the divorce decree. There are exceptions where the waiting time may be reduced if there are instances of family violence. Each county specifies policies for setting the final hearing. It should be noted that some counties do not require physical presence of the parties if the parties execute an affidavit proving up the divorce decree.

Your family lawyer will make sure the prove-up reflects the requirements including living in the county for at least 90 days and in Texas for six (6) months, and whether children are involved.

There are specific closing divorce documents including child support withholding orders through the Texas Attorney General , warranty deeds, qualified domestic relations orders (QDRO), specific tax forms as to the tax treatment of child dependents, name changes, and powers of attorney over vehicles.

If at some point an uncontested divorce becomes contested, a San Antonio divorce attorney will generally begin hourly billing rather than the flat rate normally charged. In order to save costs, some people will only try to engage an attorney in drafting the divorce petition or decree. It is probably best to engage a Texas family attorney for the entire process to avoid headaches down the line. A divorce lawyer can assist you with critical elements of either uncontested or contested proceedings. The attorney will have the necessary checklists and knowledge of the local rules to ensure a smooth transition from the dissolution of a marriage.

General principles behind Texas Uncontested Divorce

Sat, 22 Jan 2011 18:23:06 -0600

In our last blog entry , we discussed the basic elements of a San Antonio and greater Bexar County uncontested divorce . Today, we will discuss what obligations an attorney has when preparing an uncontested divorce. The attorney disciplinary rules do not allow an attorney to represent both parties in an uncontested divorce. The attorney must not lead the unrepresented party to believe that they are representing their interests as well or give them any type of legal advice. An unrepresented party should consider obtaining their own attorney in developing decisions over contested issues.

A San Antonio uncontested divorce lawyer will often ask the unrepresented party to sign a statement in which the party indicates its understanding that the attorney does not represent them. Generally during an uncontested divorce, there is very little discovery of items like community property and finances. The parties should be fairly comfortable about the nature of the opposing parties' assets and how they would treat custody and possession of children. Often attorneys will ask their clients to sign a waiver of their rights to discovery of the opposing party's finances. It is crucial that all the marital property is identified and disposed of in the divorce decree.

In drafting the uncontested divorce decree, a San Antonio uncontested divorce attorney assembles basic provisions including language on jurisdiction, grounds for the divorce, and children born of the marriage. The attorney will often discuss critical issues with the parties as they relate to children including, conservatorship, possession, child support, and health insurance. Next, the lawyer focuses on the division of the community estate including assets, taxes, and debts. The divorce decree will confirm separate property ie. property belonging to one spouse only, usually property acquired before the marriage. Other divorce issues include name change, permanent injunctions, status of temporary orders, and court costs. In an uncontested divorce, the attorney will make sure the other side agrees and acknowledges the terms of the divorce. Sometimes, the divorce decree will direct the parties to execute certain documents like warranty deeds so that property may be easily transferred.

An uncontested divorce decree is a critical legal document and you should seek the services of a San Antonio family lawyer to make sure you have covered all the major issues.

Filing for Uncontested Divorce in Texas

Sat, 15 Jan 2011 08:16:45 -0600

In our last blog entry, we touched base on some fundamentals of a San Antonio uncontested divorce . Keep in mind that a Bexar County uncontested divorce attorney will generally charge a flat fee with a separate flat fee for a Qualified Domestic Relations Order (QDRO) and military retirement DRO.

In initiating a divorce in Bexar County, the attorney will often ask the client to complete an inventory appraisement. Many couples often approach me with the statement, "This is a simple divorce - we have no community property." That may very well be true, but an inventory appraisement is often needed just to get the parties thinking about what property they have accumulated during the course of the marriage. Sometimes, there are assets (or debts) that the parties have not considered and it is important to have a frank discussion about assets and debt division. Generally, joint bank accounts should be discontinued and divided. Notes on vehicles and other property should be taken out of both names, and joint credit cards should be cancelled or put in only one spouse’ name.

So as not to cause unnecessary issues, the grounds for divorce in a Bexar County uncontested divorce is often irreconcilable differences, the general "no fault" provision. Attorney fees are generally not requested. The petition for divorce is accompanied by a waiver of service. With the signed waiver, there is no need for the other party to file an Answer to the petition - submission of the waiver constitutes an appearance and for all intents and purposes, a default answer. A party can elect not to receive notice of any further proceedings - most people elect to get notice, but if they have a good relationship with the attorney, it is not necessary as I will explain later.

As in most Texas counties, a San Antonio divorce is filed in Bexar County District Court and service of process is waived for uncontested proceedings. There is generally no need for temporary orders unless the parties plan to be separated for a long time after the case is filed or parties are leaving the county. If both parties are in agreement, the attorney can simply walk in temporary orders for the judge's signature without a need for the physical presence.

If you would like to take advantage of the low costs and expediency of an uncontested divorce, it may be worthwhile to contact a Bexar county uncontested divorce lawyer .

Fundamentals of Texas Uncontested Divorce

Sat, 08 Jan 2011 07:17:17 -0600

These days, due to financial concerns, many couples and families are pursuing the route of uncontested divorce. Families also want to avoid the long drawn out process that can often accompany divorce and the adversarial nature of the proceedings.

In some cases, an uncontested divorce can be a strong option especially if the parties can agree on major issues like division of community property, child custody, and child support. That being said, it is often ill-advised to try to do an uncontested divorce without a lawyer. A San Antonio uncontested divorce lawyer can assist you with processing the paperwork and obtaining a timely divorce without unnecessary delays and additional fees.

In an uncontested divorce, there is one attorney. The parties have agreed to all if not most of the issues, and the unrepresented party agrees to a waiver of service, which is prepared by the attorney. The waiver of service helps the parties save on processing fees and the other party is given a copy of the divorce petition and given the choice of whether they want notice of any additional hearings. The attorney can also help the parties save on filing fees by petitioning the court for a waiver of fees if the party qualifies based on economic hardship.

It is important to note that when conferring with a San Antonio divorce attorney about an uncontested divorce, technically the attorney can only represent one side. Generally, however, if the divorce is amicable, the attorney will meet with both sides to develop rapport and trust. Most of the time, in uncontested divorces, a flat rate is charged with an hourly rate that kicks in if it becomes clear that the parties are contesting major issues.

The fees charged for an uncontested divorce usually include the preparation of the petition, waiver of service, and final divorce decree. If applicable, the attorney will prepare a child support withholding order and possession order in accordance with the provisions on standard possession.

A Texas uncontested divorce can certainly be a viable option during the right circumstances.

Marital Property under Texas Family Law

Sat, 01 Jan 2011 16:09:14 -0600

In a San Antonio divorce case, many disputes center on whether marital property is separate or community property. Marital property often takes on a strictly community or separate nature, or hybrid of separate and community property. The question as to whether marital property is community, separate, or a hybrid mixture is often answered at the 'inception of title' phase. The inception of title is dependent on when the party acquired a right of claim to the property. A party that owned property before the date of marriage would have an inception of title before marriage and would have his or her own separate property.

Property acquired during marriage is classified as community property. There are several exceptions to this general rule such as when the property is bequeathed as a gift or inheritance. Property whose inception of title occurred after the end of marriage is not part of the marital estate. Sometimes property is acquired in another state and would be considered community property. The court also has special rules for property acquired in another state that would be considered separate property.

Any property in the possession of a spouse during the dissolution of the marriage is assumed to be community property unless a spouse can show otherwise through clear and convincing evidence. A judge and jury often make decisions as to how property shall be characterized. There are certain situation where due to commingling , it becomes impossible to determine the nature of the marital property, and in such cases, the property is treated as community property. A sale of separate property does not change its inherent nature. Nor does a natural increase or decrease in value change the nature of the property.

A San Antonio divorce lawyer must be well versed in how to characterize martial property as the characterization will greatly influence the division of the marital estate.

Weaknesses in the accuracy of the Intoxilyzer 5000

Tue, 05 Oct 2010 09:28:04 -0600

In our last blog entry, we discussed basic temperature issues with the Intoxilyzer 5000. The machine possesses a so-called electronic "eye" that searches for alcohol molecules in the breath sample. The data is sent to a microprocessor which then extrapolates the amount of alcohol content based on two hundred ten (210) liters of air. Remember that the basic formula is an alcohol concentration of 0.080 in 100 milliliters of blood which is supposed to correlate to 210 liters of breath - i.e. a BrAC formula of 0.080 g / 210L . Of course, the machine is nowhere near 210 liters and in fact the sampling chamber inside of the machine only fits 81 milliliters of air - less than the size of soda can.

The microprocessor contains a computer program, but the technical supervisor knows nothing about the actual program. CMI, the manufacturer of the Intoxilyzer 5000, hold the program as a trade secret. When CMI delivers the Intoxylizer to the technical supervisor, the computer program is already on the machine and technical supervisor cannot access the program. Nor is the program ever updated such as we typically expect for GPS or other programs that get internet updates. Once the technical supervisor takes possession of the machine, there is an assumption that the mathematical program used to calculate the breath alcohol concentration is accurate. A San Antonio DWI lawyer would point out to a jury that he cannot employ an independent computer expert to verify the accuracy of the program - that is a distinct advantage for the State and one that should make jurors wonder. If the manufacturer is the only entity that knows anything about the computer code and there can be inherent problems with computers, jurors will wonder.

The next key issue is a scientific principle known as retrograde extrapolation. According to Texas DUI law , the DA has to prove the driver was intoxicated at the time of driving. Yet the test on the breath machine reflects a breath alcohol concentration at the time of the breath test, not at the time of driving. Adding up all the time for the actual stop, conducting the field sobriety tests , the arrest, hauling away the driver's vehicle, transport time to the precinct, reading of Miranda warnings, and the fifteen (15) minute observation period, more often than not at least an hour has passed from the time of driving until administration of the breath test. The passage of time then begs the question as to what was the breath alcohol concentration at the time of driving.

The DA often uses the technical advisor to give testimony as to the breath alcohol concentration at the time of the stop, using principles of retrograde extrapolation. There are multiple factors that go into retrograde extrapolation including the amount of alcohol consumed, type of alcohol consumed, rate of consumption, when it was consumed, how much food if any was ingested, the type of food ingested, when it was ingested, the last time the driver slept, and the length of sleep. Other factors include height, weight, and other physical conditions that could impact retrograde extrapolation.

There are several Texas DUI cases which discuss retrograde extrapolation. In Mata v. State, the Court of Criminal Appeals ruled that unless specific factors are analyzed properly, any calculations as to the breath alcohol concentration at the time of driving are not reliable. In Stewart v. State, the 4th Circuit Court of Appeals in San Antonio ruled that a breath test taken more than eighty (80) minutes after a stop would make retrograde extrapolation calculation inadmissible. The Court of Appeals reasoned that it would be impossible after 80 minutes to determine if the defendant was absorbing alcohol (meaning the breath alcohol concentration would be on the rise) or eliminating alcohol (meaning the breath alcohol concentration would be falling).

A San Antonio DWI lawyer will ask the court prior to trial to prevent the DA from using or suggesting retrograde extrapolation. Generally, the police ask the driver a series of questions designed to get information to do a retrograde extrapolation calculation. If the driver answers questions regarding retrograde extrapolation, then a San Antonio criminal defense attorney will need to employ an expert to challenge the calculation.

Other Temperature Issues with Intoxilyzer 5000 in DWI Defense

Tue, 28 Sep 2010 08:45:38 -0600

In our last blog entry we discussed mistakes breath test operators make during the administration of a DWI breath test . In this blog entry we will discuss other temperature issues involved with the Intoxylizer which a San Antonio DWI lawyer can exploit to create reasonable doubt.

The basic premise of the Intoxylizer is that its results are based on the average temperature of a person - 98.5 degrees Fahrenheit. Yet many people's average temperature vary by a few degrees higher or lower than this number. So theoretically, if the driver's core base temperature is greater than 98.5 degrees Fahrenheit, then the Intoxilyzer will yield a test result that is greater than the true measure of the breath alcohol concentration (BrAC). More often than not, the operators do not take the driver's initial temperature and record it so they can make adjustments off the test results.

In fact, if the case is a Bexar County DWI matter and the breath result was taken in the San Antonio Magistrate's office, there would be a medical professional present at all times who can take the driver's temperature and it would not be difficult.

Another important factor is the tube where the driver blows into the chamber. Many jurors do not know that the tube itself is heated and temperature has to be calibrated. A heated tube can impact the breath sample temperature and consequently the BrAC. The reality is that the technical supervisor for the Intoxilyzer cannot say if the tube temperature was in proper order when the driver blew into the tube. The tube could theoretically be at a higher or lower temperature than recommended.

In addition, there are temperature issues a Comal County DWI defense lawyer can also point out with the chamber. Sometimes, a technical supervisor will argue that the test sample temperature is not significant due to the chamber temperature. This is faulty reasoning because it is a requirement that the test sample temperature be monitored prior to starting the breath test. There would be no requirement to monitor the temperature of the test sample if the heat of the chamber cancelled out the driver's core body temperature.

As noted above, temperature can be a major factor in the ability to challenge the Intoxilyzer results and obtain a favorable DWI defense.

Texas DWI Defense on Intoxilyzer 5000 Breath Alcohol Concentration

Tue, 21 Sep 2010 17:15:18 -0600

In our last blog entry, we discussed the variance on breath test results for the Intoxilyzer 5000 and how a breath test result of .089 should raise the question of reasonable doubt.

The results on breath alcohol concentration can be affected if there is any alcohol in the mouth. The guidelines require a fifteen (15) minute time period of observation to make sure the mouth is cleared of alcohol. In addition, alcohol in the stomach can get into the mouth if the person belches. That is why if at any time a person belches during the fifteen (15) minute period before giving a breath sample, the person must wait another fifteen minutes before giving a sample.

A strong San Antonio DWI lawyer defense tactic is to query the breath test operator as to whether he keeps a log sheet reflecting the beginning of the observation period and whether that time matches with the time listed on the records. Yet more often than not in Bexar county and surrounding counties, there is no real procedure to reflect when the observation period commences.

Many New Braunfels DWI attorneys will ask the breath test operator if they have video of the breath test and whether they have videotape of the required 15 minute observation period. More often than not, the video is missing. Jurors often question why there is no video of the breath test and the observation period if the prosecutor is relying so heavily on video of the traffic stop . There is a question then as to whether the breath test operator complied with the mandatory 15 minute observation period.

Besides a 15 minute observation period, the breath test operator must verify the temperature of a test sample of fluid. The purpose behind a test of the temperature is to simulate a person's lung. When alcohol evaporates from the blood, it collects in the lungs and leaves the lungs when a person exhales.

The breath test supervisor mixes water and alcohol in a container and pumps evaporated water from the jar into the Intoxilyzer 5000. If the water and alcohol is properly mixed, the test sample will read .08 .The test sample fluid and the evaporated water should be at a certain temperature because a person's temperature can affect breath test results. A temperature higher than 98.5 degrees will create a higher result. The temperature of the test sample must be at 98.5. A technician uses an old-fashioned mercury thermometer to test the temperature of the test sample. In an age of digital thermometers, many jurors will question whether a mercury thermometer is enough of a precise instrument.

More often than not, neither the breath test operator nor the technical supervisor employ a log sheet to record the temperature of the test sample at the time the person is blowing into the Intoxylizer. Again, this omission can be exploited by a skilled Atascosa criminal defense lawyer .

Intoxilyzer 5000 DWI Breath Test Variance

Sun, 12 Sep 2010 18:01:41 -0600

In our last blog entry, we discussed how an Intoxilyzer 5000 has to detect a minute amount of alcohol in a breath sample without error. A Floresville criminal defense attorney must highlight the weaknesses in the machine's accuracy.

Specifically, the test results from the machine are + / - 0.010. A test sample can be off by 0.010 under the Texas Administrative Code . We discussed that the test sample should be 0.080 but in reality, the sample can range between 0.070 and 0.090 and still be considered reliable.

The strongest cases are where the breath sample is between 0.080 and 0.089. If the accuracy rating is + / - 0.10, then the breath sample can be off by 0.010 . Thus, a breath sample was 0.087, then theoretically, the true result could very well be 0.077. Theoretically , the State can argue that the accuracy variation of + / - 0.010 means a breath result of 0.088 could be 0.098. However, that type of variation is further evidence that this machine does not possess the precision it claims.

A jury would be hard pressed to convict beyond a reasonable doubt where the breath sample is below or equal to 0.089.

In addition, the test operator must observe the arrested driver for at least fifteen (15) minutes to make sure the driver does not inadvertently belch causing stomach gas to build in the mouth . Moreover, the test operator has to make sure the temperature is proper on the test sample jar before commencing the test.

You should immediately contact an Austin DWI lawyer especially if your breath test was less than or equal to 0.089.

Intoxilyzer 5000 Machine Breath Test Air Samples

Sun, 05 Sep 2010 17:05:48 -0600

In our last blog entry, we began our discussion of the scientific formulas behind a DWI breath test on the Intoxilyzer 5000 . The machine's objective is to measure the amount of alcohol in the driver's breath. It is critical for a New Braunfels criminal defense attorney to highlight the weaknesses.

The underlying weakness of the machine is that it supposed to calculate whether there are 0.080 grams of higher of alcohol per 210 liters of breath. Yet the machine does not examine or even hold 210 liters of air. An oil drum containing over 50 gallons holds 210 liters of air. A person's lung holds about 6 liters of air. In reality the Intoxylizer 5000 only holds eighty (80) or so MILLILITERS of air, the equivalent of a soda can.

A gram of alcohol is comparable to an Equal packet. In reality, the Intoxilyzer is attempting to measure eight (8) one-thousandth of that size. If the formula is 0.080g/210L and the Intoxilyzer can only hold eighty (80) milliliters, then that is the equivalent of .00003 grams of alcohol to be proportionate to 210 liters.

What does this mean ultimately ? It means the Intoxilyzer has to detect an incredibly minute amount of alcohol in a breath sample reliably.

To work properly, the driver must exhale 81 milliliter of air into the machine. An infrared light analyzes the molecules in the breath in conjunction with photoelectric cells and a light filter. The photoelectric cell examines the alcohol molecules and measures the amount of alcohol as if the full 210 liters of air were in the chamber. The machine spews out a Test Record.

The printout Test record lists the alcohol concentration with an empty air chamber which should be 0.000 under the heading of Alcohol Concentration. The driver then gives the first of two samples of air by blowing into the Intoxilyzer chamber. After testing the sample, the chamber is flushed with air from the room - there is no filter on the chamber when the air is flushed in. Before the 2nd sample is measured, a test sample is pushed through the chamber for measurement. The test sample is supposed to have 0.080 grams of alcohol in the water. The technical supervisor formulates the test sample. Another sample of air from the room is pushed through the chamber.

The 2nd sample is taken and the chamber is flushed out with room air again. With 2 samples, the jury is instructed to only account for the lower sample. In our next blog entry, we will discuss how a San Marcos DWI attorney can exploit accuracy issues with the Intoxylizer 5000.