Dear readers, as I have told you, one of the realities regarding my bid for the office of District Attorney is that I would have to spend time and money battling misinformation generated about me by the El Paso Times run by Dionicio Flores. It is simply a fact of life. Many of the Times’ writers, not all, but many, write on subjects that they know nothing about or know very little about. As a result, they misinform their readers through their ignorance. Some of the writers are just downright dishonest and print lies or leave out information that leaves the reader with a false impression. These kinds of lies are called lies of omission. The Times is very good at that.
One of my main campaign platforms is to apply the law equally to all. Applying the law equally to all should be a given, but sadly that has not been the case in El Paso for many years under Esparza’s regime.
I have outlined over the months several cases that illustrate how Esparza plays favorites with those in power (see blogs on Crowder, Joe Wardy, Ocegueda, Albert Machorro Jr.,…). I used the example of El PasoTimes reporter David Crowder’s 2006 arrest for DWI. In that case, Esparza refused to prosecute David Crowder even though the police had determined that he exhibited signs of intoxication. Even though the police had placed Crowder in custody for DWI and had transported him to a police station, Esparza ordered Crowder’s release. As a result, Crowder never saw the inside of the jail nor did Esparza prosecute him. On top of it all Crowder had already stepped in the jello before as this was his SECOND arrest for DWI. The average El Pasoan in circumstances similar to Crowder’s would have been booked in jail and faced prosecution for DWI. How do I know this? I am a lawyer and as a former prosecutor and as a defense attorney, I have handled hundreds of DWI cases over the years. I also researched the facts behind Crowder’s case.
El Paso Times on line editor Jay Koester wrote a blog regarding David Crowder’s second arrest for DWI and my letters to the voters regarding this arrest. In reading Koester’s blog it is apparent that Koester is upset with me. I don’t know Mr. Koester. I don’t believe we have ever met. I don’t care if he is upset with me, but I do care if he misinforms his readers about me and the law. Koester, in his blog, made some incorrect assertions in defense of his colleague Crowder. Koester submits that if you drink and drive and get stopped by the police and exhibit signs of intoxication by failing field tests, and then get taken to the station because of your performance on the tests but then blow UNDER .08 down at the station, you will NOT be charged with DWI. If you believe Mr. Koester’s information, and you do what David Crowder did, you are in for a world of hurt and legal trouble. In the end, it will cost you your license to drive, and maybe your job, thousands of dollars in legal fees and the public humiliation of having a mug shot of you on file in the system and having to go to court month after month to battle the charges. After all is said and done, chances are you will end up on probation with a conviction for DWI.
Here is what the El Paso Times reported on Crowder’s DWI:
“Sambrano [police spokesman] said Crowder was taken to a police command center after peforming a field sobriety test. Sambrano said Crowder was released after passing a breath test. In Texas, a person is considered drunk when the blood alcohol level is .08 or higher.”
Koester said in his blog that: “Crowder passed the BREATH TEST! There was no case for Esparza to prosecute. Esparza never had a chance to “release” Crowder. It never went that far.”
Koester is saying that I have “slandered” Crowder and that I have not properly informed my readers.
Consider the following:
-Police stopped Crowder on suspicion of DWI.
-They had him perform field sobriety tests.
-When a suspect fails a field sobriety test the person is placed under arrest, cuffed and taken to a police station.
-When the Times reports that “Crowder was taken to a police command center” this means he was placed in cuffs, in the patrol car and taken to the station.
-At the station, an arrestee is given the opportunity to take a breath test. A person may consent and give a specimen or a person may refuse and not give a breath specimen.
-If a person does not give a breath specimen, he certainly is not released because there is no specimen. The case lives on because the police have already determined that he is DWI by virtue of his failing the field sobriety tests.
-Using Koester’s premise, if there is no breath test to prove that you are .08 or above, then there is no proof of DWI and therefore a person is released. That of course is not the law.
-If a person takes the breath test and passes, the person is still under arrest because he failed the field tests.
-If the person takes the breath test and fails, then the police have one more piece of evidence that the person is guilty of DWI.
-There are people who refuse to take either test. The police can still arrest if there are other signs of intoxication like slurred speech, strong smell of alcohol, blood shot eyes, dangerous driving, etc.
When the Times writes that a person in Texas is drunk if he blows .08 or higher, that is correct. Except that is not the whole truth. The Times didn’t tell you that there are TWO definitions of DWI in Texas. Texas Penal Code Sec. 49.01(2)(A) states, “intoxicated means: not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body or (B) having an alcohol concentration of 0.08 or more.” Definition (A) is usually proved by failed field tests. It can also be proved by other reasons cited above. There are several tests: Walk a straight line, count backwards and forwards, hold one leg up, the Horizontal Gaze Nystagmus test (where the eyeball jerks at a certain angle), etc. Definition (B) is usually proved by a breath or blood sample. Why didn’t the Times tell you about definition A, the more widely used one in DWI cases?
If a person fails the field tests but blows for example .04 he is charged and PROSECUTED only under definition A and not the .08 definiton. This happens every day of the week.
The State of Texas has these two definitions because there are people who simply cannot hold their liquor; they become intoxicated after having only had a little bit of alcohol. If they blow, they could very well pass the breath test but are completely unfit to drive. On the other hand, there are people who can really drink a lot and still walk a straight line but fail the breath test because they are loaded. These people should also not be behind the wheel. The law provides for both kinds of drunks on the road.
Koester writes that there was “no DWI to prosecute because Crowder passed the breath test.” That is false because Crowder had failed the field tests and that is why the police put him in custody and took him to the station. If Crowder had passed the field tests then the police would not have taken him to the station in the first place.
Koster writes that “Crowder passed the BREATH TEST! There was no case for Esparza to prosecute. Esparza never had a chance to “release” Crowder. It never went that far.” This is also false. This assertion of Koester’s also shows his ignorance of the arrest process under the DIMS program. Under DIMS, when an officer makes an arrest he calls the DA’s office prior to booking the defendant into the jail and asks the DA if he will accept the case for prosecution. Under DIMS, Esparza has made himself the gatekeeper of the jail. If he says no, then the person goes free. (A magistrate should be making that determination.) In Esparza’s own press release reported by various media including the NewspaperTree Esparza himself wrote:
“When a defendant is detained by an officer, an on-duty prosecutor instantly receives a report allowing him/her to decide, based on the merits of the case, whether or not it will be accepted for prosecution. If the prosecutor decides not to file charges, the individual is immediately released.”
How could Koester be so ignorant of what DIMS is and what my opponent has said himself what the process is? Koester’s own newspaper received the above quoted press release. Did Koester not know about defendants, including Crowder, being immediately released when the DA says no to a case or is he deliberately misrepresenting the facts regarding the DIMS arrest procedures here in El Paso? Indeed it was the DA who had Crowder released as per his own DIMS system.
In Crowder’s case, the police followed DIMS procedures and contacted the DA and he said no, he would not accept the case. He used the excuse that Crowder had blown under the legal limit and ignored the fact that the police had determined that Crowder had failed the field tests. Crowder was then immediately released. No doubt this was to the chagrin of the officers who felt they had a solid DWI.
Any other citizen similary situated would have been booked and prosecuted. It was by sheer coincadence that I happened to have a DWI case with the same facts at the same time Crowder’s case came out. I was appointed by a county court judge to represent an indigent man who had been arrested for DWI. He was in custody when I got the case and had been in jail for over a week. Like Crowder, my client had blown under the legal limit. He had blown a .06. Unlike Crowder’s case, the DA had accepted my client’s case for prosecution and they were going full force ahead. I went to the DA supervisor and I said that “I want the same treatment for my client that David Crowder had gotten. I wanted an outright dismissal because my client had blown under.” Of course in the legal world having a client who has blown under but who has failed the field tests means nothing. But I looked the supervisor straight in the eye and said I was not kidding and that if they didn’t dismiss it right then and there I would haul into court David Crowder and Jaime Esparza so they could explain to the jury what the difference between the two cases were.” The supervisor knew I would do what I said I was going to do. He knew it would get rough and he knew that they could not explain to a jury how they were prosecuting one man who had blown under and let another man go who had blown under and both had failed the field tests. Both had been under the same DA’s DIMS process and each had been treated differently. The poor man went to jail and the newspaper reporter went home. The DA supervisor recognized this hypocrisy and my willingness to expose it and immediately dismissed my client’s case. However, the dismissal did not erase the fact that my client had actually been booked and printed and had his mug shot taken, now had a record, and had spent a week of his life in jail. Crowder went through none of that.
Koester goes on to say that I had not exposed the Crowder case on my website but rather the El Paso Times had exposed Crowder’s arrest. What I exposed on my website was the special treament Crowder received by the DA’s office.
I encourage Mr. Koester to research DWI law in Texas and the DIMS arrest process before he writes any more blogs on DWIs and the arrest procedure used here in El Paso. He can find much information on DIMS on my website but not in his own newspaper which may account for his profound ignorance on the subject. It is telling about Koester that he does not understand DIMS, which happens to be one of the burning issues in my race and that of the Sheriff’s. Koester really should inform himself even if it is just so that he can cast his own vote in my race and the Sheriff’s race in a responsible manner. Doing the proper research might also equate into his properly informing his readers on these matters so that they too can cast an intelligent and good vote in March and make El Paso a better place. That is the job of a good journalist who reveres the constitution and the rule of law. I invite Mr. Koester back to my website and am glad that he comes to see what I have written.