Austin DWI Lawyer

Do Prosecutors Trust The Intoxiliar 5000?

jamie@austindefense.com (Jamie Spencer) — Thu, 09 Jul 2009 00:12:45 -0600

Well, Eric Dexheimer, on the Statesman’s Focal Point blog, actually asks the question “Do prosecutors walk the walk with DWI breath tests?”. The answer, of course, is usually a resounding “Hell No!” but a more interesting question is – if you believe me that the answer is “No”- then “Why Not?”

Could it be that as lawyers intimately involved in the criminal justice system, that they know their rights, and when to exercise them?

If the Death Penalty Capital of the World Can Do It...

jamie@austindefense.com (Jamie Spencer) — Sun, 31 May 2009 22:18:12 -0600

Harris County DA Pat Lykos has announced that she will allow first time DWI offenders to apply for Pretrial Diversion and/or be eligible for a Deferred Prosecution:

Harris County District Attorney Pat Lykos announced plans Friday for a program that allows first-time DWI and drug offenders to avoid conviction, an idea she acknowledged could be a hard sell to the public.

The plan, referred to as pretrial diversion and scheduled to begin in August, was heartily endorsed by the county’s defense attorneys, supported by the sheriff deputies’ and the Houston police officers’ unions, but strongly opposed by the local chapter of Mothers Against Drunk Drivers.

“What we’re trying to do is prevent recidivism. So, it’s a carrot-stick approach,” Lykos said. “With respect to DWI, that’s an absolute plague in Harris County. If we can get first offenders, get them into treatment … and divert them so they don’t become repeat offenders, that’s going to have enormous dividends. And the same thing for first-time drug possession.”

This move was, and I know I’m repeating myself here, “supported by the sheriff deputies’ and the Houston police officers’ unions”. For all you law and order folks out there, doesn’t that endorsement convince you that it can’t be an all-bad idea, can it?

Heck, even Williamson County, not known for its soft-on-crime reputation allows DWI defendants with no prior criminal history to apply for what they call Pretrial Intervention – the same thing as Travis County’s Pretrial Diversion.

Isn’t it about time the progressive folks in charge of our Travis County Attorney’s Office here in Austin do the same thing?

Missed It By That Much

jamie@austindefense.com (Jamie Spencer) — Fri, 01 May 2009 09:10:08 -0600

I should know better than to get my hopes up.

Yesterday morning, my client’s DWI was set for a pretrial conference. That’s the last setting before a contested pretrial motions hearing in Travis County. But it doesn’t get set for pretrial motions until the complaint and information (official charging instrument in a misdemeanor) have been filed at the county clerk’s office.

This was – hang on, let me go check my calendar – the 27th time my client’s case was set on the docket. Which is a lot – but, no complaint and information, it just keeps getting reset about once every 3 or 4 weeks for another status check.

Today was 732 days after my client’s arrest. Two years and two days after. The statute of limitations for a misdemeanor DWI in Texas – which applies to the filing of the charging instrument only – expired two days ago. But this morning when I looked in the clerk’s file, the C&I was there. It had been filed in between the last two settings, just under the two year deadline.

Sigh.

That’s OK. Now I’ll just have to earn my fee the regular way.

Maybe It Should Be The Law, But It Isn't

jamie@austindefense.com (Jamie Spencer) — Thu, 02 Apr 2009 17:09:43 -0600

Over two years ago, I wrote a post called “The Implied Consent Fallacy”. In the essay I objected to the legal fiction that everyone knows they are consenting to give a breath or blood test when asked by the police, simply by virtue of applying for and accepting a Texas Driver’s License.

Semi-anonomous first time reader “Jason” weighed in recently with this comment:

It's a good law. Bottom line, don't drive after consuming alcohol.

Simple enough, why don't they get it? Too bad there are attorney's [sic] who defend these people of lower than average intelligence.

Well, Jason, despite the fact that you missed the entire point of the post itself, let’s address your point. It seems to be that you think:

Driving after consuming alcohol is illegal…

and that therefore,

You deserve to have your license suspended…

even if the suspension is predicated on the falsehood that you knowingly and willingly agreed to provide a breath specimen when you got your driver’s license.

Just one problem with your theory… taint so. It is not illegal to consume an alcoholic beverage and get behind the wheel in Texas. You can make a good argument that it should be; but until you change the law to make it so, your premise is 100% incorrect.

One last thing. I often edit people’s grammar and spelling errors in comments, but given this particular combination of double ad hominem attack with a healthy dose of self righteousness I decided to let your comment stand as is.

Questions: One Always Seems to Lead to Another

jamie@austindefense.com (Jamie Spencer) — Mon, 16 Feb 2009 23:13:20 -0600

My internet stats program for this blog - Mint - keeps track of IP addresses associated with various searches as well as other interesting (if you’re a geek) tidbits of information. Tonight I saw the following string of searches, which started five weeks ago:

How long does a DWI case take in Travis County?

Of course the answer to this question, like all of those that don’t provide enough information to properly answer, is… it depends. But let me see if I can do better than that anyway. The discovery process – getting the video, offense report, intoxilyzer records if it’s a breath test case, and sitting down at least once to substantively chat with a prosecutor about your case? – will take at least three to four months, sometimes longer.

Several more uncontested settings and at least one contested pretrial setting on a motion to suppress can be several more months, depending primarily on availability of the officer and your lawyer’s schedule.

How long will you be on the jury docket if you don’t work out a plea? I talked to a client earlier today and his case is a year and half old. We are just now bubbling to the top of the jury docket in that court. (I’d say that’s a little unusual, but it’s by no means record-setting either.)

Next search, some time later, same IP:

Travis County DWI No Contest

Can’t tell if this is part of a “do I have to hire a lawyer” stage. Since the first search is only five weeks ago, it seems a tad early to be hearing this from your lawyer, but who knows? Maybe it’s just ‘background’ research on what happens. Next query:

Transcripts of ALR hearings

Seems like something a lawyer might Google if they were trying to learn some good cross examination questions. Or maybe the client wants to know how much something like that might cost. Next search, a little later still:

What if officer does not appear at ALR hearing?

A lawyer would know the answer – I hope – to this one, so maybe this really is a defendant trying to figure out how things work. Assuming the officer has been properly subpoenaed, and DPS doesn’t have ‘good cause’ for his absence, it should be dismissed. (But don’t hold your breath – I’ve objected to and been overruled on some pretty flimsy ‘good cause’ issues at SOAH.)

What if my attorney did not get an ALR hearing?

Well now things have taken a turn for the worse. The next search/same IP provides us some insight into the mystery:

My attorney did not request ALR because I passed breath test did not take a blood test

“I see,” said the blind man. I think I’ve figured this out. You told your lawyer that you passed the breath test – blew under .08 – and I hope for your sake that you told him about the blood test part.

Was your license confiscated? Did they ask for blood after you passed the breath test? If you refused the second test, they may have issued the DIC paperwork and started the license suspension process. Including that 15 day period you’ve been reading about – at least since you started doing your own internet research.

I think it’s good advice for the lawyer to request an ALR in every case, including when the potential client comes in and says, “I passed the test”. First, I’ve had cases where clients told me, “They said I blew .07”, but we find out later there was some confusion about the “.0” part. (i.e., “.17”)

Second, if DIC paperwork was issued, it has to be done. DPS is basically just a big bunch of computers. There are humans too, of course, but by and large they are there to correct the computer errors. Some clerk receives a Notice of Suspension from a police agency, enters the info, and that 15 day time limit starts ticking.

Third, DPS considers passing the breath test but refusing the next round of blood tests to actually be a refusal. And more importantly, back to point number two, if the computers were fed the information about the notice of suspension, and you/your lawyer didn’t do anything then the “Automatic” License Revocation kicked in.

Something like this came up recently – although I can’t find the email so the details might have differed - on either the Texas criminal defense lawyer listserv or the Texas DWI defender listserv, and Houston DWI lawyer Troy McKinney properly referred the questioner to Texas Transportation Code 524.012:

(1) the person is an adult and the analysis of the person's breath or blood specimen determined that the person had an alcohol concentration of a level below that specified by Section 49.01(2)(B), Penal Code, at the time the specimen was taken;

Unfortunately section (d) continues:

(d) A determination under this section is final unless a hearing is requested under Section 524.031

So it’s a moot point without the request. Sounds like your lawyer woulda, coulda, shoulda… Or maybe I’m missing something, who knows?

Update: New search since writing and posting…

Can one appeal dwi license suspension Travis County?

Uh, not successfully, if the hearing wasn’t requested in the first place. (Texas DWI lawyers please chime in and tell me I’m wrong; and more importantly, how to do it. I can’t tell you how many people call me after the 15 days. Ughhh.)

Can You Flag Down That Prosecutor For Me?

jamie@austindefense.com (Jamie Spencer) — Fri, 13 Feb 2009 22:30:17 -0600

I was in District Court most of the morning and saw an interesting set of events. As they unfolded, I paid more and more attention, but I’m sure I missed some details at the beginning. Here goes:

First: A prosecutor, a cop, defense lawyer Oscar Buitron, and the defendant at the bench. Testimony was being taken in a DWI case. Something about a CAD report and whether or not the officer really had called in to dispatch to check the license and registration on a vehicle as he had previously sworn under oath.

I suspected, and later confirmed, that it was some sort of continuation of a pretrial hearing that had already occurred. The officer was insisting that he indeed had called in to check the vehicle, but he was squirming, uncomfortable. Just a little bit. He’d testified before, so he was almost holding his own.

But it was obvious from the questioning that Oscar thought he could prove the officer was being… let’s say… untruthful. And more importantly that he had the goods to prove it. Then out came the CAD report itself (of course).

I had other things going on, but my interest was piqued and I managed to catch something about “if you press this button here”, “then you press that button there”, “blah blah blah”. They were up at the bench, no microphones, I didn’t catch everything being said.

After testimony concludes, there’s some chatter about resetting it to another-another-pretrial setting so that Oscar can bring in some more witnesses (APD officers no less) who will be able to show that the arresting officer’s testimony – that he had called it in, that dispatch had called him back and said the registration wasn’t current, but that he had then manually deleted that information from the CAD report itself – was impossible. (Never mind nonsensical. “Gee, let me take some time out of my busy day to erase the confirmation that this was a good stop.”)

Second: Probably 15/20 minutes later I’m chatting with that prosecutor about something completely unrelated, and the bailiff walks up to him and says, “The officer wants to talk to you”. He motions to the jury room. The prosecutor excuses himself from our conversation and leaves.

Third: Another half hour later… the defendant is back at the bench entering a plea. To back time on a misdemeanor.

Now I don’t need to see parts one and two to know that as a general rule when a defendant walks up to the bench in Felony Court and pleads to a misdemeanor, that he’s getting a significantly above average deal in his case. Never mind that it was back time: no probation, no more jail. Oscar was obviously well prepared and had gotten a good result.

By the way, I left it out of the initial description, but the prosecutor had brought out other traffic violations for the court to hang its hat on, so this was – despite the testilying – no slam dunk win for the defense.

I talked to Oscar afterwards (who among us doesn’t love it when one of our brothers or sisters ekes out a victory) and found out some more details. It was a habitual case. The defendant had (at least) two prior pen trips and was looking at a minimum of 25 years if convicted on the indictment.

More invigorating (perplexing? commonplace?) still was that Oscar hadn’t known this would pop up during the first pretrial. The officer had already listed in his PC affidavit, and testified to traffic violations that weren’t demonstrably false, when he decided to just “add” the testimony about calling in the license to dispatch. (This is a favorite police “excuse” in my experience. Which is foolish because it’s one of the easiest to catch them on.) Nothing mentioned about it though in the PC or the offense report.

Oscar’s BS detector went off. He asked the judge to continue it, rechecked the tape which confirmed his memory that the officer appeared to discover that the vehicle was unregistered well after the stop, and ordered the CAD.

Mostly though, it’s that second step listed above that intrigues me so. The cop in the back room sweating and “needing to talk” to the prosecutor.

What exactly did that officer tell the prosecutor, when the bailiff alerted him that he needed to “confer”? I’ve never worked for the State, so I can only imagine the possibilities…

“Hey I’m not sure how intoxicated he was after all. Can you work out a deal?”
“Please drop this case… I don’t want to come back on it. Ever.”
“Quick question for you… what’s the penalty for perjury again?”

A Feisty Question About Refusing the Breath Test

jamie@austindefense.com (Jamie Spencer) — Fri, 06 Feb 2009 11:16:20 -0600

Despite the banner proclaiming that the writer “won’t hide behind an alias” I couldn’t figure out the blogger’s name; his alias is Feisty – or based on the URL, is it perhaps Feisty Geek? – but he sure brings up a good point in his “DWI Hypothetical”.

The hypo assumes that Joe Blow gets stopped by the police while driving, investigated for DWI, refuses (politely, we hope) to do any of the proffered field sobriety tests, and then, after being arrested is asked whether or not he wants to take a breath test:

The officer then asks Joe to take a breath test for intoxication. Joe's thinks for a moment, and responds:

Joe: Am I under arrest?

Officer: Yes

Joe: Do I have the right to remain silent?

Officer: Yes

Joe: Do I have the right to an attorney before I answer any questions?

Officer: Yes

Joe: Well, I now invoke my right to remain silent and to have an attorney before answering any questions.

Officer: Will you submit to a breath test?

Joe: Officer, that sounds like a question. I have already said that I invoke my right to counsel before answering any questions.

Officer: Huh?

Great hypothetical, and we can see where the lay-legal reasoning is leading us. Heck, it’s where the legal-legal reasoning leads me too.

If I’m under arrest, and I now have the right not to answer any questions without an attorney present, I probably shouldn’t answer questions without legal advice. Especially questions like “Will you take the breath test?”

Sounds like this is exactly the situation where I should consult a lawyer familiar with DWI procedures. Feisty continues and takes a stab at answering his own hypothetical question:

If you don't refuse the test, but instead just refuse to answer the officer's question as to whether you will take the test, that might not pass muster as a refusal, particularly when you've invoked your constitutional rights as the basis for not answering the question.

Anyone know if this might work?

Unfortunately, at least in Texas, there is caselaw directly on point that is not favorable to this position, at least from the DWI suspect’s standpoint. A refusal to answer the question at all is “taken as” or “deemed to be” a refusal. And that will hold up in an ALR hearing. And on appeal.

Alas our Joe Blow is tagged with a 180 day No-Blow ALR refusal driver’s license suspension. Well, 180 days… assuming it’s a first time DWI. There’s a potential enhancement to a full two years if our hero has a prior alcohol related contact.

But Feisty hits the nail on the head with his last observation:

Obviously, anyone coherent enough to go through that conversation without slipping up probably isn't that intoxicated, even though they might blow a .08 if they tested.

Exactly. The DIC-24 Statutory Warning reads “If you refuse to give a specimen, that refusal may be admissible in a subsequent prosecution.” The intent is to blackmail the suspect into giving a sample.

But in fact, as Feisty points out, it’s just as easily evidence that you are not intoxicated.

But Officer, I Can't Do That When I'm Sober (A True Story)

jamie@austindefense.com (Jamie Spencer) — Sat, 31 Jan 2009 21:49:59 -0600

Several years back I took the same class that police officers take to become certified to administer the Field Sobriety Tests. It’s not an impressive feat; I just did it to learn more about DWI defense.

The class was taught by Troy Walden and Lance Platt, two ex-police officers who, then and now, specialize in helping lawyers defend DWIs in Texas. It used the same manuals, and they themselves were certified Instructors, so it was pretty much identical in every aspect. (I’m tempted to say the students probably paid more attention than some officers do, but I can’t scientifically prove it.)

The three day class even included the part where we the students administer tests to some subjects before and after drinking. That’s right. They bring them in with nothing to drink. All subjects get the HGN, Walk and Turn, One Leg Stand. Then, while the students go on to some other rigorous examination of FSTs, the subjects sit at a bar and get dosed with alcohol.

In other words, someone sits there and buys them drinks. Then they come back and do the tests all over again.

I was reminded of this experience when my longtime friend and office mate, as well as fellow Austin DWI lawyer Lance Stott wrote this post about his experience as a guinea pig:

My role, difficult as it was, was to be a test subject, get drunk, and then take the tests again. It was a tough job, but somebody had to do it.

I’m a little bit clumsy by nature. I didn’t listen to the instructions all that well, and performing the tests in front a group of people gave me a case of nervers. Long story short: I bombed.

I took the wrong number of steps, started before I was instructed to, did the turn improperly, and I think I stepped off the line, as well. There are 8 clues on the walk and turn, and I think I got them all.

I was there. On the second day of class they had asked if any of us could bring in our friends to be subjects, so I asked Lance if he wanted to come, and he agreed. So I designated-ly drove him to and from the class. (Another lawyer brought a friend from one of Austin’s local “bars”; she scored terribly on the tests before and after.)

I don’t remember whether he got all eight clues, but I do remember he did terribly on the first – i.e. sober – attempt. I specifically remember him getting the number of steps wrong, even though I knew he knew it’s called the nine step walk and turn.

As an aside, I also remember that someone, not Lance, had natural nystagmus in one eye. Everyone ooohed and aaaahed, as that poor guy got HGN’d to within an inch of his life. Everyone had to see it.

Police officers, when asked about natural nystagmus, will pooh pooh it in that tone of voice that let’s you know only about ten people on earth probably have natural nystagmus, and all of them know it and will announce that before they have the HGN administered to them. Apparently one of the ten just randomly made it into our class. And, no, he had no idea he had visible nystagmus at all times in one eye. But I digress.

Back to Stott. How did he do after the trip to the bar?

The second time around, I did much better. I began when I was supposed to. I took the right number of steps. I touched heel to toe, and I even did the turn more or less the way you’re supposed to. (By the way, nobody ever does the turn right.)

What happened? Well, after my trip to the bar, I wasn’t the least bit nervous anymore. More importantly, this was my second time around. I’d had a bit of practice, and this time I knew what they were looking for.

Right again. That’s exactly how it happened. I was the witness. I don’t remember the second time around HGN results for him, but other than that, I think he got zero out of eight clues on the Walk and Turn, and either zero or one clue - a passing score - on the One Leg Stand after being dosed with alcohol.

Go figure.

Goodbye Retrograde Extrapolation for Breath Test DWIs?

jamie@austindefense.com (Jamie Spencer) — Mon, 19 Jan 2009 10:57:16 -0600

In order of most to least common, the 3 basic defenses to DWI in Texas would be:

Not Intoxicated
Not Driving
Not Driving While Intoxicated

I might be wrong about “Not Driving” being a more frequently viable defense than “Not While” but the third is still probably the least known to laypersons. The short version of the defense goes like this: Maybe there’s an accurate breath test over .08, but it’s barely over, and since the defendant’s BAC could have been rising between the time of the stop and the time of the Intoxilyzer results… reasonable doubt exists as to whether he was under .08 at the time of driving.

From an earlier post, DWI and the "While" Defense:

The point is that having a BAC of .085, for example, 30 to 45 minutes after the driving, does not in and of itself prove that the defendant was driving while intoxicated.

Depending on various factors, primarily the particular drinking pattern that night and the stomach contents, it is possible for the Defendant’s BAC to be higher at the time of the test, than it is at the time of driving. It is also affected by variations in human physiology as well.

This is most likely in scenarios where the defendant’s last drink was very near the time of driving; which - given what often happens at closing time - is not an unlikely scenario at all.

This isn’t just some crazy DWI defense lawyer theory here either – it’s both basic common sense, and basic science. So basic, that even the CMI manual for the Intoxilyzer 500 (used for breath tests here in Austin) admits that the defendant’s actual breath alcohol content at the time of the test may be “higher than, lower than or the same as” the BAC at time of driving.

So what’s the State to do when confronted with common sense and basic science telling them that “over .08” is sometimes “less than .08”? Change the rules, that’s what.

Proposed House Bill 170 attempts to ruin two of my favorite statutes (Code of Criminal Procedure 38.22 and 38.23) by following them up with a new section 38.24:

Article 38.24 Evidence of Alcohol Concentration

(a) In this article, “offense relating to the operating of a motor vehicle while intoxicated” and “offense of operating a watercraft while intoxicated” have the meanings assigned by Section 49.09, Penal code.

(b) For purposes of the prosecution of an offense relating to the operating of a motor vehicle or watercraft while intoxicated, it is presumed that the person had an alcohol concentration equal to or higher than 0.08 at the time of the offense if that level of alcohol concentration is shown by an analysis of the specimen of the person’s breath, blood, or urine taken from the person not later than 90 minutes after the time of the person’s arrest.

Retrograde extrapolation is the mathematical/scientific process by which an estimated BAC range for the time of driving is deduced/guessed by taking the BAC at the time of the test, the time since driving and other factors. These factors include when the suspect drank his last beer, .eg., to his last meal, and other considerations.

These are ultimately unknown factors no matter what the pre field sobriety test interview question and answers reveal from the defendant. And therefore, there’s room for some of that old reasonable doubt defense attorneys like to try and raise.

Since this is potentially a problem for the prosecution, they want to write into the law an unscientific instruction that allows them to argue that any test over .08 given within an hour and a half of driving automatically gives them a presumption of guilt. Since it’s unconstitutional to have an irrebuttable presumption in favor of the State in criminal cases, this proposed legislation can’t eliminate all tricks from the DWI lawyer’s bag, but it’s a start in the wrong direction.

After all, are they going to change the title of the offense to “Being Intoxicated After Driving”?

[Hat Tip: Houston DWI lawyer Mark "I like to call it DUI" Bennett]

The Innocent and the Guilty

jamie@austindefense.com (Jamie Spencer) — Tue, 09 Dec 2008 14:23:08 -0600

Received a big box at work today and didn’t have the faintest idea what it could be. Since it was addressed to me, I opened it up, and tada… two bottles of wine.

It was a thoughtful gift from Houston DWI lawyer Mark Bennett. I had done some local co-counseling of a DWI/POM case here in Austin for a client he was representing. Mark did all the heavy lifting; I just went along for the ride.

Of course, Mark didn’t just send me any 2 bottles. They were from an Australian vineyard and named “The Guilty” and “The Innocent”. I read the label of “The Innocent” first:

The Innocent is produced from a single vineyard. Due to its limited production only a lucky few will ever get to taste it.

Aha. Clever commentary on the sometimes overwhelming and unfair advantage the State brings to bear on those it chooses to criminally accuse? Expecting something equally clever, I read the other label.

Apparently only the “lucky few” will get to taste that one too.

As for Mark's case? Well, the only disappointment was that after several settings on the jury docket the State eventually offered his client a deal that was too good to refuse: dismiss the DWI outright, plead to a lesser offense, no conviction (12.45) for the marijuana, and backtime credit, no probation, no community service, etc.

I had hoped to learn a thing or two by sitting second chair on the voir dire, if not the whole trial. Oh well. Maybe next time. And thanks for the tipple, Mark.

Letting Your Web Designer Write Your "DWI Content"...

jamie@austindefense.com (Jamie Spencer) — Wed, 03 Dec 2008 21:45:04 -0600

…is a bad idea.

I won’t link to it, but I just ran across an attorney’s web page that I hope was not written by him. (N.B. It was not an Austin lawyer.)

The website first acknowledges that in today’s world you need to drive: work, school, church, groceries, etc., and that one of the consequences of a DWI arrest can be loss of driver’s license, and then the attorney advertises that he will:

“effectively argue your need for a license at the ALR hearing”

In other words, hire me, and I’ll let the judge know that your license shouldn’t be suspended because you really need it.

Excuse me? Are you – that is, the lawyer, not the client – are you serious?

It’s not uncommon for clients to suggest that I should stress to the Administrative Law Judge that they really need their license, and perhaps if we demonstrate exactly how much they have to drive that they can avoid a suspension. Alas, I have to disabuse them of the notion that the ALR process is concerned at all about their essential need for a license; that’s what an occupational license is for, and those aren’t issued at the suspension hearing, or even by that type of judge.

Now it’s likely that the lawyer didn’t write the webpage content himself (see examples of comment spamming by marketers on blogs here and here). But you’d at least think he would have read it by now.

Can You Say Challenge for Cause?

jamie@austindefense.com (Jamie Spencer) — Wed, 19 Nov 2008 03:19:08 -0600

My friend and Lubbock DWI lawyer Steve Hamilton on a recent Q&A in a DWI voir dire:

So in this trial I asked the potential jurors about a hypothetical. What would you do if you only had one option, either convict an innocent person or set a guilty person free? Out of 20 people, 7 or 8 said they would actually convict an innocent person!!

I was actually somewhat shocked with the amount of people who said they would send an innocent person to prison. One person said he would do that and that he hoped he would be the person who was sent to prison to protect society.

I bet it’s a lot easier for that potential juror to say he’d be A-OK with being toted off to jail or prison for something he didn’t do… when he’s not the one that is being accused.

More on What's Good or Bad in a Potential Juror

jamie@austindefense.com (Jamie Spencer) — Sat, 15 Nov 2008 20:51:49 -0600

Following my post on the criminal defense lawyer’s dream juror comes an Austin American Statesman article “Internet aids trial lawyers doing background checks on clients, jurors”. What caught my eye of note towards DWI defense was this bit:

Sometimes the drunken-party photos are sufficient. Jurors whose Facebook page reveals a certain fondness for Sixth Street's nightlife or appreciation of the local music scene tend to be sympathetic to her DUI clients, said Mary Ann Espiritu, an associate with Chris Dorbandt & Associates.

Stories about the government digging up information about criminal defendants and using their online postings against them are becoming increasingly common. Of course, most of the time a defense attorney keeps or strikes a juror because of something they posted to Facebook or on their blog no one will be the wiser. Kudos to Eric Dexheimer of the Statesman for exploring this less publicized aspect of internet research and the law.

Austin, Texas and the DWI / No Refusal Weekend

jamie@austindefense.com (Jamie Spencer) — Sun, 09 Nov 2008 19:39:53 -0600

Several folks – prosecutors and defense lawyers – that I see on a regular basis in the Travis County Courthouse have asked me why I didn’t blog about the No Refusal Weekend that started on Halloween. (Short version: Austin Police Chief Art Acevedo announced that anyone who was arrested for DWI and refused to take a breath test would be forced to take a blood test.)

I have written frequently about blood test DWI cases and the increasingly used police tactic – both in Texas and across the U.S. - of forcibly taking blood from suspects who refuse a breath sample.

But posting “advice” in advance of an announced “No Refusal” weekend isn’t – how do I say this? – it just isn’t my style.

First, I wouldn’t know how to do it without sounding like I was giving advice on “how to get away with DWI”. That would be (a) unethical – a DWI lawyer is still an officer of the court, and (b) utterly useless to boot – I doubt people read my blog right before deciding to go to Sixth Street.

I was interviewed by an Austin TV station for a story about the “No Refusal Weekend” and was asked the obligatory “What would you advise someone who was arrested this weekend? Should they take the breath test?” They chose to air my comment on a different aspect of the story rather than my standard “Get a Cab” response to that question. (Off topic here, but that fifteen second clip convinced me that the camera adds more than ten pounds, but I digress…)

Second, there’s not a one-size-fits-all answer to this question. Sure the gut-instinct response of any DWI lawyer is going to be “Never take the Breath Test!” – but if you’ve really (and I mean really really) only had one beer or glass of wine four or five hours ago… is that necessarily the best advice? Couldn’t you potentially save your license and win the DWI in that situation by taking the test? It’s rare – well under 10% of the time in breath test cases - but I certainly have represented many people who blew under .08.

Third, there’s a difference between writing about the legally and medically dubious policy of seeking warrants to forcibly remove blood from DWI suspects and broadcasting a specific warning that law enforcement is literally out for blood tonight. If I wrote a RICO blog I wouldn’t use it to broadcast warnings to either Tony Soprano or mafiosos in general that the DEA and FBI were raiding Satriale’s Pork Store tonight.

Frankly I think that APD is using these highly publicized “No Refusal” weekends in part to encourage people to think about taking cabs and using designated drivers on a regular basis – and from a purely public policy standpoint I understand why they consider that to be part of their job. It’s just not part of mine.

Continuing Legal Education: DWI for Civil Lawyers

jamie@austindefense.com (Jamie Spencer) — Sun, 09 Nov 2008 17:54:35 -0600

A few months back local Austin appeals lawyer Todd Smith asked me to speak, albeit briefly, at the Austin Bar Association’s monthly meeting. My assigned topic was a natural one: DWI. Lawyers who attended would be given credit toward their yearly CLE requirements. I was honored and of course agreed.

I assumed that meant I should speak on how to defend a DWI, and so I talked about the initial interview process, the different types of court settings, the ALR process, various defenses to DWI charges and tried to throw in a few other nuggets before my time ran out.

Afterwards I stuck around and talked with people at the bar. I mean the serving-alcoholic -beverages type of bar, not “The State Bar of Texas” by the way. Yes the CLE was held in a bar, and yes, I was just about the only one without a drink in my hand.

At any rate, I discovered quickly that while my short presentation was roundly complimented by those I visited with in fact most attendees had another reason for coming. Of course a divorce lawyer doesn’t really need to know how to defend a DWI; a good one will refer the case out to someone who knows how to handle that kind of case. (See: jack of all trades, master of none.)

I think every single lawyer there asked me some variation of the regular set of questions a DWI lawyer hears:

Should I take a breath test?
Should I do the field sobriety tests?
What do I tell an officer who stops me after I've been drinking?

I told everyone who would listen a few of my standard lines: (1) In Austin, a traffic violation and the odor of an alcoholic beverage on your breath earns you a trip to Travis County Jail. It’s an arrest everybody and charge them with DWI now, and sort it out later kind of world. And (2) It’s cheaper to rent a helicopter to fly you home than it is to get arrested for DWI in Texas, and that can be true even if your lawyer gets the charge dismissed before trial.

Not that it did any good. It was after 5 p.m. when the presentation started, so presumable no one had to return to work but then again I didn’t see anyone calling for a cab when they left. I’m certain I wasn’t the only one to drive home.

How Long Have You Been a Certified Peace Officer?

jamie@austindefense.com (Jamie Spencer) — Tue, 14 Oct 2008 22:24:36 -0600

There are certain boring yet inevitable questions that often begin an examination of a police officer in a DWI (by a prosecutor) or an administrative license revocation ALR case (by a defense attorney):

State your name for the record please…
You’re employed by Austin Police Department?
Any prior law enforcement experience?

A defense lawyer usually wants to know how many arrests a particular officer has made for DWI and how long he has been a peace officer at all. The theory is that the fewer arrests he has made or the shorter period time he has been doing this, the more likely it is that his opinion that the client was intoxicated is suspect.

And while the defense lawyer might not bring out the possible experience of an officer at jury trial if it is extensive – that is, if the prosecutor hasn’t done that already – there’s sort of a no harm/no foul rule when it comes to asking questions at an ALR. After all, the odds are stacked against you, there’s no reasonable doubt to rely on, and in a refusal case DPS doesn’t even carry the burden of proving that your client was actually intoxicated – simply that he was properly offered a breath test and refused.

Basically, if you’re going to win or lose the driver’s license hearing it won’t often be because of that painful one-question-too-many moment. At any rate, most ALRs by defense attorneys start with these type of pro forma questions.

So as I’m taking a break in the back of the room this afternoon waiting for my client’s ALR to start (brushing up on some top notch possible avenues of cross examination like “Are there any reasons someone might be asleep at the wheel other than intoxication?”) I hear the defense lawyer ask, “How long have you been a certified peace officer?...”

At which point – I am not making this up – the baby faced officer… looks at his watch.

OK, so he replies, “10 months” and I assume that his watch is one of those that has the month on it – but it still made me inwardly chuckle about how that might have looked to a jury.

Do I Need To Sign a Form If I Refuse a Breathalizer?

jamie@austindefense.com (Jamie Spencer) — Mon, 22 Sep 2008 11:24:04 -0600

[Question via email.]

Since I don’t even know the jurisdiction this question comes from it’s pretty broad but let’s answer it from the Texas DWI perspective.

In most Texas DWI cases the officer will read the subject a form called the DIC-24 entitled “Statutory Warning”. It covers the various driver’s license penalties for refusing to blow, blowing over a .08, or being a minor with a detectable amount of alcohol in your system. The warnings state those possible suspensions are “not less than” 180 days, 90 days and 60 days respectively.

The “not less than” part obliquely refers to the possibility of longer suspension periods for folks with prior alcohol related contacts – which include but are not limited to prior ALR suspensions and prior DWI convictions.

The DIC-24 form usually ends with a portion where the officer checks “I am now requesting a specimen of Breath and/or Blood” followed by two checkmark portions:

Subject refused to allow the taking of a specimen and further refused to sign below as requested by this officer.
Subject refused to allow the taking of a specimen as evidenced by his/her signature below.

In theory the officer is supposed to ask for the breath specimen and then ask the subject to sign the form indicating their refusal.

If the suspect refuses to sign, the officer marks the form as a refusal to blow and a refusal to sign.

But I’ve certainly had cases where this procedure wasn’t followed. The unfortunate thing for my client is that even when I can prove that the officer didn’t follow procedure correctly it doesn’t necessarily lead to all that big of an advantage in the case.

It can show that he is unfamiliar with the DWI process – which in turn can create doubt as to the grading of the field sobriety tests – but it’s not going to get a criminal judge to throw the DWI charge out against my client. In other words, the state can still proceed to trial.

In most Austin DWI cases the actual reading of the DIC-24 and the verbal refusal by my client will be on tape; so the state can still legitimately argue it as a refusal. (And I can argue that refusing the breath test is a sign that you have not lost the normal use of your mental faculties since agreeing to it is almost always a bad idea.)

As for the ALR hearing, there are too many variables to predict whether this scenario would lead to a negative finding – that is a finding by the administrative law judge that DPS is not allowed to suspend my client’s license. But it could be a good start.

Can a DWI Really Ever be Murder?

jamie@austindefense.com (Jamie Spencer) — Thu, 18 Sep 2008 17:16:59 -0600

Scott Henson at Simple Justice writes about the word Murder losing its meaning. Of a man recently convicted of second degree murder in New York for an Intoxication Manslaughter offense, Scott wrote:

It's not to say that McPherson was an innocent man. He was not. It's not to say that McPherson's conduct was excusable. It was not.

But Franklin McPherson did not commit murder. To say he did cheapens the crime for the victims of real murders, and subjects it to the transitory whims of the prosecutor. McPherson was drunk…

In New York, ‘creative’ prosecutors are proceeding under the theory that the defendant acted with depraved indifference to to human life.

Read Scott’s post for why this is faulty legal reasoning. But how did we get to this point – that is, the point where the general public believes this is appropriate? Scott continues:

As has become so very popular, an appeal to emotion is hidden behind vague things that seem to make sense, provided one doesn't let things like the law get in the way. This has long been the push by advocacy groups such as MADD to create a growing public intolerance for drunk driving, and create the impression that ever-increasingly harsh charges and punishments are the only way to stop this plague.

The problem is that these groups have been so successful, and politicians have basked in the reflected glow of this success, that when reality gets in the way of these PR campaigns (meaning when convictions for murder do nothing to stem the tide of drunk driving), they need to find yet a deeper, harsher, more horrific penalty to impose. Yeah, if only they got the death penalty, that would fix the problem!

The reason why they are slaying imaginary dragons is that this is not the crime of murder. It never was, and never will be. Drinking too much and getting drunk is not something that one contemplates as part of a violent crime. Driving home drunk, every stinking drunk, isn't meant to cause harm. It's meant to get home.

In Texas, prosecutors have a gone a different route. Here, where a 3rd DWI conviction is a felony in and of itself, prosecutors have taken to charging Intoxication Manslaughter defendants with Murder if the they have 2 prior misdemeanor convictions for DWI under the ‘felony murder’ rule.

The felony murder rule is a legal doctrine that removes the usual requirement of intent in a murder prosecution and simply holds a defendant responsible for murder if a death occurs while a felony is being committed. Hence in Texas, 2 prior DWIs + an intoxication manslaughter today = a murder prosecution tomorrow.

The problem with this theory is that it means the defendant’s prior convictions are actually what elevate the Intoxication Manslaughter charge to murder. In other words, the entering of the plea on the previous cases or the finding of guilt by the jury is actually an element of the offense of Murder itself.

That doesn’t make sense.

Right now, in Texas, DWI defendants charges with Intoxication Manslaughter face the possibility of a 20 year sentence – certainly that’s enough for an unintentional crime. But if it’s not then the Legislature should simply increase the penalty for that actual offense. Ambitious legal theories advanced by creative prosecutors – or is that creative legal theories advanced by ambitious prosecutors? – should not be the basis for a Murder charge.

Blawg Review #175

jamie@austindefense.com (Jamie Spencer) — Mon, 01 Sep 2008 10:03:19 -0600

Labor Day. A day off for working citizens. The end of summer and the beginning of fall. Still the start of the football season and in decades past the last day before school. Barbeque. Fireworks. The whole nine yards.

After my last Blawg Review the anonymous editor assigned me this particular slot for my next BR. Which of the above listed associations with Labor Day could have been his reason?

Maybe he thought I’d follow a great American tradition of the work day… showing up late? (This Blawg Review is being posted well after the midnight deadline – sorry about that.)

Or did he know that when I’m asked what I believe in, the litany often includes “I’m for labor over capital”?

Ah, wait a minute. I’ve got it. Perhaps our dear ‘Ed.’ has a slightly off center sense of humor. He’s given me this weekend’s assignment because I’m a DWI lawyer. (What can I say? It seemed like such a good idea when he proposed it a year ago.)

Welcome to the Labor Day Edition of Blawg Review.

Work Related

Res Ipsa Blog gives us some helpful hints for how to use Firefox when we get back to work. And Jordan Furlong’s suggestion that non-lawyers can do the work of lawyers if it’s ‘good enough’ might put some attorneys out of work all together.

Why do you work? Proabably at least in part to get paid. But if there’s no government in Antarctica taxing your paycheck you don’t get the normal benefit of excluding eighty thousand dollars in income as earned in a foreign country.

And speaking of getting paid, how many long time lawyers would have liked Dan Hull’s suggestion that first and second year associates be paid in experience rather than dollars when they were in law school? (Yeah, yeah – I know it sounds like a good idea now that you are partner…)

Every job has its requirements. Dre Cummings writes about the LPGA’s new policy requiring all tour players to speak English proficiently or face suspension.

Off Work Related

Want to see a movie on your day off from work? Quick – go see the newest Bollywood blockbuster Harry Puttar. (Spicy IP tells us Warner Brothers has a legal beef.)

After a lifetime of laboring for the boss, we can all look forward to retirement, that is unless we read Jonathan Rosenfeld’s blog alerting us to all kinds of problems in the nursing home community.

Criminal Law / DWI

Stephen Gustitis starts a series on Texas executive clemency, i.e. how to get a pardon.

Shawn Matlock posits the MADD’s slogan ‘Drink. Drive. Go to Jail.’ is meant to contaminate jury pools, rather than to deter.

Troy Burleson answers the question DWI lawyers hear from their clients: “Why did the officer say I couldn’t talk to a lawyer?”

Lawrence Taylor writes again on a topic coming to a community near you: DUI cops with needles. San Diego DUI Blog asks ‘Isn’t it Time to Change DUI Penalties?”

To tell or not to tell? Mark Bennett expounds on the theory of what to do with a Nasty Little Surprise in a criminal case. Gideon follows up with his own thoughts on the subject.

Walter Reaves asks ‘Who is Responsible for the Cost of Indigent Defense?’

Grits for Breakfast catches Austin Police Department hyping ‘stranger danger’. Mark Draughn at WindyPundit notices we are becoming a police state. A Harris County Lawyer loves to be in trial.

Victoria Pynchon documents the FBI’s latest efforts to overcrowd our jails by arresting bloggers where at best a civil suit would do, and offers us tips on what to do when we see the agents arriving on our own doorsteps. Susan Crawford writes about battle over nondiscriminatory Internet access.

Mike Masnick alerts us that a New Zealand judge has banned the internet publication of the names of two men accused of murdering a child. In the U.S. we’d call that a clash between the right to a free press and the right to a fair trial – and I fell sure in predicting that the press would win such a battle.

Jeremy Richey tells the story of a Kentucky prosecutor who can’t take (or figure out) a joke.

Overlawyered posts about the defendant (or his insurer) suing the city for not properly taking car of his car in the impound in a fatal hit and run case.

QuizLaw posts an oldie but a goodie from the internet DWI archives.

Random (but still included)

As Labor Day precedes the start of the NFL season, Scott Greenfield writes about recently retired New York Giant Michael Strahan’s child support appeal. On a side note, he also takes his approximately 40th consecutive win for Headline-of-the-Week with ‘Three Ponies is Enough for Anybody’.

Professor Randazza suggests that if wearing a jacket that says “Fuck the Draft” was found to be protected speech by the Supremes in 1971, the Department of Homeland Security should have known that the t-shirt slogan “lesbian.com” was A-OK.

Mark Herrmann gets to say “I told you so” to the Volokhs when a terminally ill plaintiff succeeded in getting a judge to issue an injunction ordering a drug company to provide him with an unapproved, experimental drug.

David Harlow writes about an OIG advisory opinion barring a contractual joint venture.

Is it against Google’s terms of service to sell links? The comment section of Kevin O’Keefe’s post about FindLaw lights up. And Paul Ohm writes about the possibility of lawsuits when free wi-fi terms of service are editable by the user.

That’s it for now folks. Blawg Review has information about next week's host Legal Literacy, and instructions how to get your blawg posts reviewed in upcoming issues.

DUI / DWI Lawyers: Biggest Slime Balls on the Face of the Earth?

jamie@austindefense.com (Jamie Spencer) — Thu, 21 Aug 2008 08:58:51 -0600

Here’s a good reason – if you needed one in the first place – not to shop for lawyers on big referral sites. This gem comes from ZipcodeZ.com. Bear in mind that they are supposedly trying to sell you on the value of using one of the lawyers that has paid to be listed on their site:

At first glance, it may seem like a lawyer who represents drunk drivers is the biggest slime ball on the face of the earth, but the truth is not that simple.

“Notthat simple”. Apparently it’s close. But not quite accurate. Later on we learn that…

…on the slimier side of things, DUI lawyers can and do get cases thrown out of court when the police or the prosecution fail to follow procedure. While it may seem horrible that actual drunk drivers go unpunished, it is important to keep in mind that all citizens have rights whether or not they have broken the law.

True. Plus here’s a big one you left out: some folks that get arrested for DWI aren’t actually guilty because they weren’t intoxicated.

That’s what happens when police departments institute an arrest-everyone-and-sort-it-out-later policy.

[Update: Taking a look at the lawyers listed for Austin in this particular internet directory I’m actually fairly certain that not all of them – and perhaps none of them - are paying for this listing. Still the point remains the same. That is …assuming I had one.]