I’ll be following up fellow Austin lawyer Todd Smith’s latest Blawg Review with one of my own over at my DWI blog, so please… all you criminal defense lawyers out there in the blogosphere write up a little something something about DWI and make sure to email it to me or submit it here.

Or just send me your criminal defense related posts. Doesn’t have to be DWI or DUI related but I thought that might help work it into the theme. Not that I have a theme yet.

At some point in any trial the prosecutor is going to ask a witness to identify the defendant as the person who is accused in the complaint or indictment. A fair amount of the time this witness doesn’t know the defendant personally – may never have met him – especially if it’s a police officer making an on the spot arrest for a crime alleged to have been committed within his presence or view.

Juries probably suspect the rule I’m about to annunciate. Judges, prosecutors and defense lawyers certainly know it:

Sometimes when the police officer says he remembers the defendant, he doesn’t really remember the defendant.

Not really really remember.

Of course there may be a few clues for the officer.

It’s probably the person sitting next to the lawyer. No, not the one next to the prosecutor who is asking the question. Most likely that’s another prosecutor.

The other lawyer at the other table. The guy next to him. Yeah, that’s the defendant.

Which is what makes this next story so interesting. Missouri DWI lawyer Will Worsham advised a client that he may as well try his DWI case instead of taking a plea bargain agreement, because he had nothing to lose.

And then – and for my non-lawyer readers I hate to do it, but I’m going to use the technical legal term for it – a miracle occured:

I advised my client to proceed with trial.  Even though we would likely lose, he really had nothing to lose because pleading guilty provided no benefit.  He agreed. 

Shortly after the trial began the prosecutor asked the Officer if he saw the driver in the courtroom.  Mind you, my client is sitting next to me at counsel table. 

After looking around for about 30 seconds at the 6 or so people in the courtroom.  The officer replies, "Honestly, I can’t say that I do." 

I’m surprised, the prosecutor is shocked and the case is shortly thereafter dismissed.

Nice. I guess he didn’t know that whole “sitting next to the defense lawyer” trick that so many officers rely on…

…or “How To Not Get Arrested for DWI”

Background for the Post

I went to see Steanso and his band play some excellent tunes from the 80’s a few months ago and it was a great gig. Folks were talking about it all over the Travis County Courthouse for some time afterwards. Rumor is the setlist got published or at least emailed, and that there might be a second go-round. And that they might take requests in advance. I hope so.

When I got home that night, I thought, “I should write a post called the $100 six pack”. Never got around to it.

Yesterday, Jason reminded me that it’s now the two year anniversary of Jeff’s passing. Time to write the post. The details about that night at the skating rink are slightly fuzzier now – more from aging than alcohol – so I might get something wrong in the telling, but the point remains the same. Here goes:

The $100 Six Pack

I don’t get out much anymore (see: twin toddlers) but when I heard that Jason’s band was playing one of my favorite genres – 80’s classics – I knew I had to go.

I was also pretty sure that hanging out late at night in a skating rink listening to songs from my youth could be enhanced by the consumption of an alcoholic beverage. Or two. OK, maybe more.

So here’s the point about the ‘$100 Six Pack’:

I took a cab.

That’s it. I took a cab there. I took a cab back. I live in South Austin. The band was playing at 183 & MoPac. North Austin. Google Maps says that’s 12+ miles and 18+ minutes from my house. 

My house to the 7/11 to the Skating Rink/Band and back to my house.

That’s – what? – almost 25 miles and when you factor in waiting for me to run into the convenience store… it’s a big bill. If my memory serves me, the whole night cost just under $100.

I went and saw the band, and I think I polished off 5 beers over several hours. Then I took a cab back home.

$100 is a lot to spend for a ‘night out on the town’ – but there was an exactly 0.0000% chance that I would be arrested for DWI and it’s also a lot less expensive than getting arrested.

Related Posts:


Browsing through the RSS reader, and I came upon an apropos section of a recent DrugWarRant post that applies neatly to the libertarian objections voiced by Austin’s citizens in the stories above.

Pete is actually talking about that age old Never Consent To A Search bit of advice that seems mostly to apply in drug cases, but struck a chord with me because of my recent ramblings about the newly proposed Austin Police policy regarding .

In the ‘Austin Reacts’ post I mentioned the overwhelmingly negative public response to Acevedo’s new proposal, but of course there were also the inevitable “If you’ve got nothing to hide, why would you care about this” comments left on the KXAN story as well.

And this subject comes up in a variety of ways but with regularity when discussing criminal defense issues with the public at large. Thanks to Pete, I now have a new and improved way of explaining why that logic is so flawed:

Now the real question is, why would anyone ever consent to a search?

Sure, the canned law enforcement quip is "If you have nothing to hide, you have nothing to worry about." But regular readers know my response to that:

Sometimes people say I shouldn’t mind being searched if I have nothing to hide. I immediately accuse them of having a swastika tattooed on their genitalia — if they have nothing to hide, then surely they shouldn’t mind dropping their pants to prove me wrong.

And, of course, even without that thinking the "nothing to hide" bit doesn’t make a bit of sense in consenting to a search.

Fantastic response. I can’t wait to use it the next time someone tells me I shouldn’t worry so much about the Fourth Amendment, or that the Bill of Rights is all a bunch of baloney meant to coddle criminals and doesn’t do anything for the rest of us…

AKA the phrase you’ll never see written in an appellate decision or hear spoken out loud.

Gideon’s post about the fifth consecutive failed attempt by Connecticut’s legislature to pass an open container law got me thinking:

So, come to CT, where you can drink and drive (just not drunk and driving).

Well, in Texas we do indeed have an open container law, but we also have drive through liquor stores. Go figure. That’s got to be illegal in (most? perhaps all?) other parts of the country.


Update: A little googling and I find that Fox Noise reports that Texas is not alone. At least we were the first, and apparently the best at it. (Everything’s bigger in Texas.)

Texas boasts the most drive-thru liquor stores in the country. And despite legal controversy for drinking-and-driving-related reasons, they have also popped up in Maryland, Louisiana, Arizona and Hawaii, to name a few.

A (former) CNCN producer gets fired for expressing his own opinions on his own blog, and the blogosphere lights up about it. Any relevance of this story to blogging lawyers out there? Probably for big firm bloggers; not so much I imagine for criminal defense attorneys.

Most criminal defense lawyers are solos to start off with, and I for one certainly don’t yearn to ever join the civil bar. (Wouldn’t know anything about how to do it either – actually it sounds kind of like a nightmare.)

As far as law blogging goes, it’s best to be solo too. The best law blogs are extensions of the lawyer’s indicidual personality. That is to say they express their actual opinions – not ones filtered by ‘the boss’.

I can give a quick example. I wrote a post last Friday night on my DWI blog that even I had reservations about. Some of those qualms ended up as part of the post. Without rehashing the whole post, suffice it to say that for various reasons I wanted to make this point:

Lots of DWI lawyer websites dispense ‘advice’ on how not to get arrested and/or convicted of DWI (don’t blow in the machine, don’t do the tests, be polite but say as little as possible, etc.). I’ve never written a single word on the subject, mostly because I think it’s plain silliness. For one thing, potential clients don’t need that advice: they have already been arrested. If you’re going to be their lawyer, you’ve got to play the cards you’re dealt.

For those who are trolling the internet, looking for ‘How To’ advice about beating your future DWI… there’s only one good piece of advice: don’t drink and drive. No, it’s not actually against the law in Texas to consume alcohol and get behind the wheel. But never driving after consumption of alcoholic beverages is the only way to ensure that you’ll be safe from arrest.

If you need more reasons, I’ve said it before: it’s cheaper to rent a helicopter to fly you home than to get arrested for DWI – and no, I’m not just talking about my fee.

Perhaps it’s pretty basic stuff for 99% of blogs out there, but my particular blog is a DWI defense lawyer blog, and as far as the blog is a tool to attract clients, not necessarily what prospective clients want to hear.

But then again, I’m my own boss, so I can say what I like. There are a few ‘DWI Law Firms’ in Austin, where the client’s case gets assigned out to one of several associates to handle. Some of these firms have DWI blogs as well. And I doubt that if I worked for someone else that I would have been allowed to post such an entry to ‘the company blog’.

I have recently started a separate blog for DWI issues and questions which can now be found over at the Austin DWI Lawyer Blog.

Topics covered: Texas DWI laws, traffic stops, field sobriety tests, license suspensions and ALR hearings, occupational driver’s licenses, pretrial motions and trial issues.