Difference Between an Experienced DWI Specialist and One Who is Not

As the first DWI Specialist in Texas, I believe that all lawyers are not alike.  

In hiring the right lawyer, the client needs to know this, too! 

The question is how do you know?  

To begin with, the citizen needs to understand that there are no bad questions when interviewing a lawyer for help.  

There is a big difference between being available for hire in a DWI case vs. competent to be hired in a DWI case.  

In order to represent someone ethically, professionally, and competently, in DWI breath and blood test cases, the lawyer needs to know all about the breath and blood testing devices being used in Texas.

Looking at breath testing, that knowledge would include what was formerly used and why it was disregarded with what we have now. 

In Texas, the breath test device that was used was the Intoxilizer 5000, which has now been replaced by the Intoxilizer 9000.

Interestingly, the same government expert that testified that the 5000 was the best thing since sliced bread is the same person who is now saying that about the 9000.  

Both devices are made by the same company, CMI and, both devices have the ability to preserve evidence but that feature was conveniently and deliberately not functional.  

To the competent lawyer, and to a thinking jury, the question that should be asked is why would the government allow evidence to be destroyed?  

Could it be that the government does not want the public to know that its breath testing devices are neither accurate nor reliable?  

Could it be that if a breath sample was available through the use of a toxtrap capture device that the breath could be reanalyzed to determine what the real breath alcohol level was-which would not be the same as the result reported?

A good competent DWI lawyer can liken the failure to preserve the breath or subsequent testing to be the same travesty of justice that would be visited on a citizen if the IRS sent a whopping big tax bill and stated that we have no tax records to substantiate it but just trust us. 

Another example that a skilled and competent DWI lawyer would compare the government’s failure to preserve the breath sample to be just like a failure to preserve a blood sample for subsequent testing.  

Here, the reader can take it to the bank that blood samples are kept for retesting if necessary.  

In regard to a toxtrap, a preserved breath sample can be retested within 2 years of its taking and the preservation tube only cost about 2 dollars.

Another credibility issue that a seasoned, skilled, and competent DWI lawyer can bring out to a jury is the fact that neither the 5000 nor the 9000 were ever warranted fit for breath testing by its manufacturer, CMI. 

At best, the warranty provided was for parts and labor if something broke. Here the lawyer, knowing of the warranty issue, would bring that topic out during jury selection and have the jury discuss it to seize the opportunity to have the jurors become defense witnesses.  

This is done by comparing the breath test devices to lasers used for Lasik surgery on the eye. 

Would the loving and protective parent allow their child to have Lasik surgery on its eyes by a device not warranted fit to do Lasik surgery on the eye?  

Universally speaking, the answer is “no”.

If your DWI lawyer does not know the above, then that is the wrong lawyer for you. 

With a DWI specialist, you can be assured that this information is not only understood but also, it can be easily communicated to the jury who would then embrace and understand it, so much so that it would result in distrust in the police breath testing process.

The DWI Specialist will also have special knowledge about the blood testing procedures in Texas that will cast doubt on the police blood testing process.  

In Texas, blood testing is done through a process described as gas chromatography. 

This a process where the government alleges its device will be able to separate and quantify alcohol in the blood.  

The problem here is that the blood is never tested but it is the air above the blood that is tested.

Absent the lawyer knowing this process, there would be no way to communicate this information to the jury to undercut the accuracy and reliability of a blood test result.  

Moreover, there is so much data in blood testing that most lawyers do not know how to read and interpret that they would never be able to see an error, even if it had a red light on it.

For example, the sample could be contaminated by exposure to great heat where it was not refrigerated in time.  

In such cases, notwithstanding that there is an alleged preservative in the blood, the heat would make the bacteria in the blood sample begin to ferment and generate its own new alcohol. 

This happens more often than one might think because it occurs where the officer keeps the sample in his trunk for days before it can be mailed. 

Here, think a Texas summer and you being locked up in the trunk- you are going to cook. 

How long would a gallon of milk last in that trunk even with the preservative?  

A lawyer that doesn’t understand preservative limitation and refrigeration and who doesn’t know how to read refrigeration and chain of custody logs ought not to take blood test DWI cases. 

With a DWI specialist, however, you can rest assured that this information, plus much more, is known, and can be explored for the benefit of the client.

In the world of breath or blood testing, the simple fact that a result says .08 or more, does not make it true.  

There are many, many, many errors that can occur in breath and blood testing cases, and with the DWI Specialist/Expert, the chances of finding those errors are greatly enhanced.

Who Was the First DWI Specialist/Expert in Texas?

To best answer this question, I am going to switch from 1st person to 3rd person in the rest of this blog. 

The first DWI Specialist/Expert in Texas was Gary Trichter.  

He has incredible experience and has been practicing law for more than 40 years. His accolades include:

• Avvo Rated: 10.0 Superb (read peer endorsements)

• National Trial Lawyers: Top 100 Trial Lawyers – 2018 by Legal Associations Management, Inc.

• President, Texas DWI Lawyers, 2014

• DUI Board Certification from NCDD/ABA and State Bar of Texas

• President, Texas Criminal Defense Lawyers Association (TCDLA),

• “AV” Rated by Martindale-Hubbell 2012-2017

• Super Lawyers, a Thomson Reuters service, 2004-2018

• The Erwin-Taylor Award, National College for DUI Defense, 2013

• Best Lawyers in America by Woodward White Inc., 2008, 2010, 2013, 2015, 2016

• Lead Counsel Rating in Criminal Law – State Felony & Misdemeanor, Drunk Driving Defense, a Thomson Reuters service, 2018

• America’s Top 100 Criminal Defense Attorneys, Americas’ Top 100, LLC, 2018

• ABA National Essay Winner on Medicine and the Law

• Licensed to practice law in Texas, Alaska, Colorado, Texas, and Wyoming

Further, Gary has been published in numerous legal journals and magazines, approximately 50 times and has lectured on DWI and other criminal law matters approximately 300 times.  

Please see Gary’s biography to see where he has lectured and see what he has published.

Summation

In closing, the short answer to the original question: “What is a DWI Specialist?” is someone you can trust!