Submit Your DWI Posts for Next Week's Blawg Review
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.
He's the Guy Sitting Next To the Defense Attorney
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…
The $100 Six Pack
…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:
More on Forced Blood Draws
See:
- Forced Blood Draws Come to Austin in DWI Cases and
- Austin Reacts to Forced Blood Draws as well as Frisco DWI comments at
- DWI Blood Draw Debate Continues
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…
'The Legislature, In Their Infinite Wisdom...'
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.
Anyone?
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.
Fired for Blogging? Solos Need Not Worry
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’.
Texas DWI Lawyer 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.
Around the Blogs (DWI and DUI)
A Lawrence Taylor post on how body temperature can distort Intoxilyzer results.
DUI Rob reminds us that Radio Frequency Interference can effect the Intoxilyzer 5000.
George Creal posts an article from the Arizona Daily Star on “inconsistent” police testimony in DWI cases.
St. Louis DWI Lawyer writes about some of the factors NHTSA trains officers to look for in a DWI.
And Tiffany Sanders reminds us DWI arrests sometimes happen, even if you’re not on a street or highway.
Qualifying a Marijuana Expert for the Defense
I enjoyed Cliff Hutchison’s post at the ScienceEvidence Blog (cleverly titled Don’t Bogart That Expert) about the qualifications of a marijuana defendant’s expert witness.
The case discussed involved a former criminal defense lawyer who was an opponent of the drug war, who had been qualified in 100 marijuana cases to testify as an expert witness, always for the defense. The court eventually ruled that the defense had not properly established his qualifications as an expert in the field.
However, they rejected the Government’s theory that his testimony was more prejudicial than probative, simply on the basis of his bias against our current system of prohibition and incarceration. Cliff questioned that part of the finding:
Query, though, if the government wasn’t correct in arguing that an advocate witness has no business offering Rule 702 testimony? Logan claimed to have testified in over one hundred marijuana cases, and if his testimony was consistently an argument favoring marijuana defendants, how can it be considered reliable? The testimony becomes simply bolstering, in the guise of expert opinion, hence not helpful to the fact finder.
I have to jump in and disagree here. Let me make my point by using some obvious and common examples from the prosecution. Would this mean that the Austin Police Department’s DWI Task Force officers, who are qualified as experts in the standard field sobriety tests based on their NHTSA training, would be disallowed if it turned out they always testified for the prosecution? (I assume it’s self evident that they do.) If I could just get them disqualified, I'd probably win every case...
Intoxilyzer 5000 Source Code: It's a State Secret
Cobb County DUI lawyer Rob Leonard posts an update over at the Georgia DUI Blog about CMI being ordered by a Georgia Judge to turn over the source code for its Intoxilyzer 5000. The State of Georgia is appealing this ruling.
Well…what’s the “source code” mean anyway? It’s basically the software that tells the machine how to interpret the physical data it receives from the defendant’s breath, and how to convert it to BAC. The number it spits out (.041, .086, .119) is then compared to the so called “legal limit” of .08, to see whether the defendant is per se guilty of DUI.
Defendants often want to be able to see how the machine analyzed their breath. CMI has fought and fought in courts all over the U.S. to keep this information secret. Apparently, we are supposed to take the manufacturer’s word that the machine is perfect.
Austin Police Department Starts Targeting Certain Bars Again
KXAN NBC reports that the Austin Police Department is keeping a list of the bars that last served DWI suspects. They get the information during the questioning of the suspect on scene and prior to the arrest.
"We try to get these officers to ask them, 'Where have you been drinking?' If it's a business establishment. To give us an idea of are there any violations at those businesses that are already serving to people intoxicated?" APD Lt. Craig Cannon said.
APD then hands over the information to TABC. At first blush, this may not sound unreasonable. The problem lies in the method of collecting the data. Once certain bars are targeted by a police department, that becomes the area that DWI task force officers patrol. More officers in a certain area means more detentions, more arrests, and more arrests for DWI. Then more DWI suspects report their last drink came from one of the bars on the list.
As soon as a list is first established, and without using a random or statistically significant sample size, it becomes a self-fulfilling prophecy. The current top five on the list are Cedar Street, Rain, Club Carnaval, Blind Pig and Oilcan Harry’s.
Sleep Apnea and Driving While Intoxicated (DWI)
Washington, D.C. personal injury lawyers Regan Zambri and Long write a post about a study in the American Journal of Respiratory and Critical Care Medicine regarding patterns of sleep apnea in truck drivers. Criminal Defense practitioners should take note of this study as well:
Oftentimes, when police find someone who has “passed out behind the wheel”, they jump to the conclusion of intoxication. DWI defense lawyers need to be aware of all the possible reasons someone may seem intoxicated, when in fact they are not.When the participants took driving tests, those who suffered from sleep apnea had motor skills impairments consistent with drunk driving. Of the truckers with sleep apnea, one-third of them also experienced attention lapses comparable to intoxication.
Definition of Driving While Intoxicated (DWI) - Texas Penal Code
§ 49.04. DRIVING WHILE INTOXICATED.
(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, Class B misdemeanor, with a minimum term of confinement of six days.
How Much Should You Tell The Prosecutor?
Blonde Justice has a recent post where she, in effect, asks the question “How much should I tell the Prosecutor about my case?”. Her answer: it depends on the Prosecutor. I agree with her. Read her post for her example, but here’s mine:
Let's say hypothetically speaking that I have a DWI case where the officer on scene is evaluating whether or not my client was intoxicated. At one point, before arresting my client, the officers says something that helps my client’s case immensely. Also, it's nothing so outrageous as "I'm not sure this guy is intoxicated"; it's just something that helps my case.
My dilemma is this: do I point out to the prosecutor what it is that the officer says, and explain how that helps my case? If I do that, and they refuse to dismiss the DWI, I have no doubt that they will bring up that portion of the videotape and show it the officer before he testifies.
If the officer knows beforehand what I’m going to ask him about his statement, I’m sure I’ll hear a different explanation than if I set him up correctly on cross examination, and bring it out for the first time in front of the jury.
If I felt confident that the prosecutor would fairly evaluate the entire videotape of my client on the scene, taking intop consideration the officer's statement, then I would have no hesitation in using that as a bargaining chip. As Blonde Justice said, it all depends on your relationship with that particluar prosecutor.
Definition of Intoxication for DWI - Texas Penal Code
§ 49.01. DEFINITIONS. In this chapter:
(2) "Intoxicated" means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.
