Austin DWI Lawyer
Texas DWI Defense Firm: Austin DWI Lawyers handling DWI & drunk driving cases in Travis County, Texas. Call Dunham & Rogers today to speak with a Austin DWI Lawyer and find out how they can help you.
For an immediate free consultation about your Austin, Texas DWI, call (512) 879-1414 to speak with a lawyer about your Driving While Intoxicated charge or simply fill out the contact form to your left and a DWI attorney will call you. Dunham & Rogers has been handling Texas DWI cases since 1989 and has over 200 years combined legal experience. Many of the criminal defense lawyers are former Assistant District Attorneys with many years of trial experience. But hurry time is important for keeping your Texas Driver's License.
Fill out the form to your left to have Austin DWI Lawyers Dunham & Rogers send you your free arrest report regarding your Travis County, Texas DWI arrest.
Dunham & Rogers handles Texas DWI (Driving While Intoxicated), DUI (Driving Under the Influence) and BWI (Boating While Intoxicated) cases in and around Travis County, Texas. Having Texas Board Certified Criminal Law Specialists* and former prosecutors handling your DWI case can make the difference between winning, going to jail or doing DWI probation. You will find our law firm to be an very knowledgeable about Texas DWI Laws and drunk driving penalties and information.
Finding an Experienced Austin DWI Lawyer, Attorney
When selecting legal representation, realize that your attorney's experience is very important. The way your DWI case is handled will have an influence on the outcome and thus your future. Having Texas Board Certified Criminal Law Specialists* on your side can mean the difference between obtaining a good result and a bad result. At Dunham & Rogers, many of our criminal defense attorneys have previously been Assistant District Attorneys, spending years perfecting their courtroom skills. We know the procedures of the criminal court system and can make that system work for you.
Proven Track Record against DWI's in Travis County
Dunham & Rogers has accumulated a highly successful record of acquittals, dismissals and reductions in DWI defense. Each DWI is different, but note that the criminal defense lawyers at Dunham & Rogers always start with the goal of getting your DWI case dismissed or reduced to a traffic ticket.
Serious Consequences for a Texas DWI
A Texas DWI charge has serious consequences. You may lose your Texas Driver's License, experience a substantial increase in car insurance rates, pay large fines and court costs, suffer a driver's license surcharge ranging from $3,000.00 to $6,000.00, and possibly face jail time.
Don't leave your future to chance. Select a Austin, Texas DWI Lawyer who will fight for you. At Dunham & Rogers we will work for dismissal or reduction of your DWI charge. If we are successful, you may even be able to have your arrest record and fingerprints torn up! Don't let this arrest record affect your job or your future; call us immediately to discuss how we can handle your DWI.
Affordable Fees and Pay Plans
Our legal fees are fair and competitive, especially for Texas Board Certified Criminal Law Specialist. In most cases, we charge a low flat rate and often do not require any money down. The initial consultation is free. When you factor in our legal experience and proven case results, Dunham & Rogers is a good choice for those who want the highest quality of legal representation at a fair and reasonable cost.
A Word of Warning about your Texas Driver's License
You have only 15 days from the date of your DWI arrest in Texas to request a hearing on your Texas Driver's License. If you fail to request a hearing, your Texas Driver's License may be suspended and you face the probability of paying huge fines for several years. It is important that you hire quality legal representation for this hearing to challenge the license suspension. Having legal representation for this license hearing provides an opportunity for your criminal defense attorney to question the arresting police officer. Putting the police officer on the stand helps to establish his or her position, which can be very beneficial to your DWI case.
Texas Driver's License Surcharge (Fines)
Since 2003, the Texas Department of Public Safety has been authorized to levy a surcharge on Texas Driver's Licenses suspended for DWI and alcohol related arrests. This surcharge can range from $1,000.00 to $2,000.00 per year for three years. Depending on your DWI, you could be facing a $6,000.00 fee just to keep your Texas Driver's License. Now you know why it is so important to fight your driver's license suspension.
Speak to a Austin DWI Lawyer today
Call the Austin, Texas DWI Lawyers at Dunham & Rogers today to discuss the ways they can help you keep your Texas Driver's License and try to dismiss or reduce your DWI charge. The attorneys at Dunham & Rogers will take the necessary time to explain the whole process of your Driving While Intoxicated charge that you face.
Saturday, May 24, 2008
Tests: Some People Do Better Than Others
Surfing the blogosphere I run across a post entitled “Examination Blanking Out” by Razeet:
Test anxiety is normal and can even help us function well in testing situations. The problem develops when the level of nervousness is so high that it interferes with what one is there to do.
As a result, with two people taking the exact same test, one might be calm, cool and collected, while the other is a pile of perspiration and blanking out.
Now, his post doesn’t have anything to do with Field Sobriety Tests; more likely he’s talking about studying all semester, and cramming for an exam, and still not doing well.
But DWI lawyers should remember that this phenomenon, that ‘some folks do better than others on tests’, and for a variety of reasons, is a well known fact. Indeed, it should be the theme of most DWI breath test refusal trials: starting in jury selection, bolstered by the arresting officer’s own testimony, and repeated in closing.
A series of questions I use at the ALR hearing to set this defense up goes something like this (answers left out – I don’t really care if the officer disagrees):
Officer, you agree that folks in the general public vary greatly in their ability to perform physical tasks?
Some people are gifted athletes, and some people are super klutzy?
Most people are somewhere in between?
Like most characteristics, there’s probably a bell curve of natural physical abilities?
And you’d never met my client before that night?
And you don’t know where on that bell curve he might fall?
He might be an Olympic athlete, or he might be uncoordinated, you just don’t know?
I say I don’t care what the officer answers, because a jury will know that the truthful answer to all these questions is 'Yes'. If an officer disagrees, or ‘weasels’ on one of these basic truths, you may even be better off. You can certainly argue that he graded too hard in his evaluation of your client.
The basic point is this: everyone knows that ‘some folks do better than others’ on all types of tests…including DWI field sobriety tests.
Surfing the blogosphere I run across a post entitled “Examination Blanking Out” by Razeet:
Test anxiety is normal and can even help us function well in testing situations. The problem develops when the level of nervousness is so high that it interferes with what one is there to do.
As a result, with two people taking the exact same test, one might be calm, cool and collected, while the other is a pile of perspiration and blanking out.
Now, his post doesn’t have anything to do with Field Sobriety Tests; more likely he’s talking about studying all semester, and cramming for an exam, and still not doing well.
But DWI lawyers should remember that this phenomenon, that ‘some folks do better than others on tests’, and for a variety of reasons, is a well known fact. Indeed, it should be the theme of most DWI breath test refusal trials: starting in jury selection, bolstered by the arresting officer’s own testimony, and repeated in closing.
A series of questions I use at the ALR hearing to set this defense up goes something like this (answers left out – I don’t really care if the officer disagrees):
Officer, you agree that folks in the general public vary greatly in their ability to perform physical tasks?
Some people are gifted athletes, and some people are super klutzy?
Most people are somewhere in between?
Like most characteristics, there’s probably a bell curve of natural physical abilities?
And you’d never met my client before that night?
And you don’t know where on that bell curve he might fall?
He might be an Olympic athlete, or he might be uncoordinated, you just don’t know?
I say I don’t care what the officer answers, because a jury will know that the truthful answer to all these questions is 'Yes'. If an officer disagrees, or ‘weasels’ on one of these basic truths, you may even be better off. You can certainly argue that he graded too hard in his evaluation of your client.
The basic point is this: everyone knows that ‘some folks do better than others’ on all types of tests…including DWI field sobriety tests.
Do Field Sobriety Tests Measure Impairment?
Every good DWI lawyer is familiar with the last section in Chapter 8 of the NHTSA DWI Detection and Standardized Field Sobriety Testing Manual that states:
If any one of the standardized Field Sobriety Test elements is changed, the validity is comprised. (***)
Indeed, one of the bedrocks of DWI defense is being able to grade not only the defendant’s performance on the FSTs, but being able to grade the officer’s administration of the tests. In some situations, improper instructions or grading can actually make an individual test or even the entire battery of tests inadmissible.
Unfortunately, for all NHTSA’s efforts to the contrary, there are many problems with these roadside tests – even when administered by the book. They do not, in fact, allow police officers to accurately determine whether someone is over a .08 blood or breath alcohol content.
Furthermore, most of the better trained officers will admit under cross examination that there is no correlation between some of the tests and “impairment” – I know most of the specialized Austin DWI task force officers will testify to that, because I’ve asked them under oath.
To the extent that “science” is involved here at all, the only real measurement is between performance on the tests, and being above or below a certain BAC. Which means there’s an inherent argument for defense lawyers in many DWI breath test refusal cases that the client’s performance on the field sobriety tests is not sufficient proof of intoxication.
(*** Every NHTSA Manual I’ve ever seen actually has this section in ALL CAPS AND BOLD – emphasizing that even NHTSA acknowledges how important this is.)
Every good DWI lawyer is familiar with the last section in Chapter 8 of the NHTSA DWI Detection and Standardized Field Sobriety Testing Manual that states:
If any one of the standardized Field Sobriety Test elements is changed, the validity is comprised. (***)
Indeed, one of the bedrocks of DWI defense is being able to grade not only the defendant’s performance on the FSTs, but being able to grade the officer’s administration of the tests. In some situations, improper instructions or grading can actually make an individual test or even the entire battery of tests inadmissible.
Unfortunately, for all NHTSA’s efforts to the contrary, there are many problems with these roadside tests – even when administered by the book. They do not, in fact, allow police officers to accurately determine whether someone is over a .08 blood or breath alcohol content.
Furthermore, most of the better trained officers will admit under cross examination that there is no correlation between some of the tests and “impairment” – I know most of the specialized Austin DWI task force officers will testify to that, because I’ve asked them under oath.
To the extent that “science” is involved here at all, the only real measurement is between performance on the tests, and being above or below a certain BAC. Which means there’s an inherent argument for defense lawyers in many DWI breath test refusal cases that the client’s performance on the field sobriety tests is not sufficient proof of intoxication.
(*** Every NHTSA Manual I’ve ever seen actually has this section in ALL CAPS AND BOLD – emphasizing that even NHTSA acknowledges how important this is.)
Is refusing the breath test "consciousness of guilt" in a DWI?
In Texas, the answer is a pretty clear “no” (although the prosecutors will argue that it is).
I’ve written before on the legal theory called “consciousness of guilt”, and in some instances, it makes sense. However, when it comes to refusing to provide a breath or blood sample after a DWI arrest, the theory is logically useless.
In Texas, you are only asked to provide that evidence after you have already been arrested. After you have been arrested. And you won’t be let go even if the result is under .08 BAC.
When folks blow “under the legal limit”, the State proceeds on the alternate theory that you had lost the normal use of your mental and/or physical faculties - despite being under the “per se” limit of .08.
So, you’ve been arrested and you will be charged with DWI, no matter your response to “Will you take a breath test?”
If you blow over the per se .08 BAC limit, you have just made it more likely that you will be convicted. If you blow under, you don’t get to go home. You are booked into jail and prosecuted anyway.
When you think about it that way, why would anyone submit (unless they’ve literally had nothing to drink in the last twelve to twenty four hours)?
Given the above scenario, isn’t refusing to take the intoxilyzer actually evidence that you have not lost the normal use of your mental faculties?
In Texas, the answer is a pretty clear “no” (although the prosecutors will argue that it is).
I’ve written before on the legal theory called “consciousness of guilt”, and in some instances, it makes sense. However, when it comes to refusing to provide a breath or blood sample after a DWI arrest, the theory is logically useless.
In Texas, you are only asked to provide that evidence after you have already been arrested. After you have been arrested. And you won’t be let go even if the result is under .08 BAC.
When folks blow “under the legal limit”, the State proceeds on the alternate theory that you had lost the normal use of your mental and/or physical faculties - despite being under the “per se” limit of .08.
So, you’ve been arrested and you will be charged with DWI, no matter your response to “Will you take a breath test?”
If you blow over the per se .08 BAC limit, you have just made it more likely that you will be convicted. If you blow under, you don’t get to go home. You are booked into jail and prosecuted anyway.
When you think about it that way, why would anyone submit (unless they’ve literally had nothing to drink in the last twelve to twenty four hours)?
Given the above scenario, isn’t refusing to take the intoxilyzer actually evidence that you have not lost the normal use of your mental faculties?
On Forced Specimens in DWI Cases
I’ve written before on forced blood draws, and indeed, in Austin, some DWI suspects are being forced to give blood specimens. After an initial refusal to take a breath or blood test, the officer submits a warrant to have the defendant’s blood forcibly drawn.
This is one of the main reasons that the Travis County Jail went to 24 hour magistration. Since most DWI arrests are after midnight – go figure – such a policy didn’t make any sense until they made sure they had a judge to rubber stamp the warrants.
But this news article takes it to a new level:
A lawsuit over the forced catheterization of a man who was arrested for investigation of drunken driving has been settled for $15,000.
The settlement reached Friday with Matthew Clifford Arthur, 37, over his treatment following an arrest in November 2005 did not include any admission of wrongdoing, Assistant Attorney General Gary E. Andrews said Monday. While the settlement covers Cowlitz County and county officials, the state will pay the full cost, he added.
"This turned out to be a better way to go than to spend more money litigating it," Andrews said.
Arthur filed suit last month, accusing two Cowlitz County sheriff's deputies and a state corrections officer of forcing him to undergo catheterization and a blood draw when he refused to provide urine and blood samples at St. John's Medical Center in Longview following a traffic stop.
Arthur was required to undergo screening for intoxicants upon request under a probation agreement at the time, but his lawyer, Kevin G. Blondin, said the procedure was painful, invasive and unnecessary.
"He was held down kicking and screaming while they shoved a catheter into his penis," Blondin said.
Instead, Arthur should have been taken to jail when he refused to give the fluid samples, the lawyer said.
Forced catheterization. A couple of comments.
First, state entities do not, at least typically, settle lawsuits “just to make them go away” or because it will be cheaper. I don’t have any inside facts here, but I think it’s reasonable to guess that ‘they’ decided that a jury wouldn’t like this, and that they stood to lose a lot more if they went to trial. That’s how civil settlements work.
Second, this guy was on probation. So he deserved it right? Even consuming alcohol, whether you are operating a vehicle or not, is a probation violation – at least in Texas. But many times, at least if it’s a DWI probation in Austin, the judge will make “submit to the taking of a breath or blood specimen upon request of police or probation officer” a condition. So if it’s necessary to prove a probation violation, his initial refusal will do the trick.
Third… is this what we’ve come to? Forced catheterization? It barely needs commenting on. If you’re not immediately, viscerally opposed to this, I can’t imagine how my words could change your mind.
I’m not a big fan of slippery slope arguments, but before you start supporting forced blood draws in Texas DWI cases, you really might want to think where this whole thing is going
I’ve written before on forced blood draws, and indeed, in Austin, some DWI suspects are being forced to give blood specimens. After an initial refusal to take a breath or blood test, the officer submits a warrant to have the defendant’s blood forcibly drawn.
This is one of the main reasons that the Travis County Jail went to 24 hour magistration. Since most DWI arrests are after midnight – go figure – such a policy didn’t make any sense until they made sure they had a judge to rubber stamp the warrants.
But this news article takes it to a new level:
A lawsuit over the forced catheterization of a man who was arrested for investigation of drunken driving has been settled for $15,000.
The settlement reached Friday with Matthew Clifford Arthur, 37, over his treatment following an arrest in November 2005 did not include any admission of wrongdoing, Assistant Attorney General Gary E. Andrews said Monday. While the settlement covers Cowlitz County and county officials, the state will pay the full cost, he added.
"This turned out to be a better way to go than to spend more money litigating it," Andrews said.
Arthur filed suit last month, accusing two Cowlitz County sheriff's deputies and a state corrections officer of forcing him to undergo catheterization and a blood draw when he refused to provide urine and blood samples at St. John's Medical Center in Longview following a traffic stop.
Arthur was required to undergo screening for intoxicants upon request under a probation agreement at the time, but his lawyer, Kevin G. Blondin, said the procedure was painful, invasive and unnecessary.
"He was held down kicking and screaming while they shoved a catheter into his penis," Blondin said.
Instead, Arthur should have been taken to jail when he refused to give the fluid samples, the lawyer said.
Forced catheterization. A couple of comments.
First, state entities do not, at least typically, settle lawsuits “just to make them go away” or because it will be cheaper. I don’t have any inside facts here, but I think it’s reasonable to guess that ‘they’ decided that a jury wouldn’t like this, and that they stood to lose a lot more if they went to trial. That’s how civil settlements work.
Second, this guy was on probation. So he deserved it right? Even consuming alcohol, whether you are operating a vehicle or not, is a probation violation – at least in Texas. But many times, at least if it’s a DWI probation in Austin, the judge will make “submit to the taking of a breath or blood specimen upon request of police or probation officer” a condition. So if it’s necessary to prove a probation violation, his initial refusal will do the trick.
Third… is this what we’ve come to? Forced catheterization? It barely needs commenting on. If you’re not immediately, viscerally opposed to this, I can’t imagine how my words could change your mind.
I’m not a big fan of slippery slope arguments, but before you start supporting forced blood draws in Texas DWI cases, you really might want to think where this whole thing is going
Why DWI Lawyers Should Read Blogs
One of the things I love about the criminal defense/DWI blogosophere is that it is a great resource for practicing lawyers. Reading other attorneys’ thoughts often helps me in my day to day practice.
Two quick examples:
From Robert Guest on DWI and Jury Selection:
As part of the jury selection process I often ask potential jurors if they have ever driven after drinking. The vast majority of potential jurors answer yes.
The truth about DWI is that most jurors have committed DWI in their past but did not get arrested. They only difference between them and the defendant is luck.
When I inquire into the reason they chose to drink and drive most will say they were "young and stupid." I often wonder at why jurors are so ready to ruin the lives of defendants who are on trial for DWI, when they have committed the same crime themselves.
I’m not sure I would ask the “why” follow up question in Voir Dire, but that’s a matter of personal style. The point is that by reading Robert’s blog, I’ve added a question to my repertoire.
It’s simple, to the point, and something the DWI lawyer wants and needs to know. I’ve had my own ways (in the past) of inquiring about this subject matter, but because of Robert’s post, I’m going to adopt his way of doing it. It’s better than how I tried to illicit the information, and I’m not afraid to admit it. Read, learn, and get better. (I can even admit that his method is so much simpler and better than mine has been that I’m a little embarrassed.)
One general rule for jury selection is that you shouldn’t be asking “raise your hand if …” type questions, you should be asking questions that force potential jurors to respond substantively, with their own thoughts and ideas. But this is a good example of an exception to the general rule.
Example #2 comes from Mark Bennett, but some background before we get to his specific cross examination question.
I think one of the most difficult tasks for a DWI lawyer is to successfully defend a breath or blood test case where the client’s BAC (Blood or Breath Alcohol content) comes back as over .08. Briefly, there are two basic defenses: (1) the machine is an untrustworthy piece of junk, or (2) the defendant’s BAC at the time of driving was lower than at the time of the test.
The problem for the DWI defense attorney is that both of these are highly technical, i.e. scientific based defenses… and we went to law school. Few of us have graduate degrees in Science. Or undergraduate degrees, for that matter. Personally, I received a Bachelor of ‘Science’ in Psychology, after relatively brief and/or longer stops in the Departments of Computer Science, Theater Arts, and English, in that order. (OK, it took me a while to figure out what I wanted to do – and even then I changed my mind - although you can certainly make the case that my ‘Theater’ training still comes in handy.)
But generally speaking, the person testifying for the State knows more about the Intoxilyzer 5000 than we do. In Texas DWI cases, that person is the “Technical Supervisor’. Their job is essentially to come and testify that defense #1 is out the window, because the Intoxilyzer is God’s gift to machines, and that while defense #2 is theoretically possible, it doesn’t apply in your client’s DWI because blah blah blah (insert mumbo jumbo here, and the reasons seem to change to fit the facts of your particular case).
Here’s what I learned from Mark, in his post on “Dealing with the State’s Expert: One Last Question”:
If you get a chance to talk to the State's expert witness before trial (if you're allowed to, try; the best experts often see themselves as neutral, and will explain their conclusions to you), your last question should be: "What book should I read to learn about this topic myself." Get the book; it'll be a learned treatise that you can mine for cross-examination material.
Yes, it’s not technically cross examination; it’s an informal question most likely asked in whatever room the prosecutors are holed up in, and not in a pretrial or trial setting.
But here’s how it applies to DWI cases: it’s a great question to ask at the ALR driver’s license revocation hearing. This is often held before the criminal case, and it’s an absolute goldmine for defense lawyers.
Why not use your ALR hearing last question to the technical supervisor to ask his question? About books, or magazine articles and the like. Worst case scenario is that the expert limits his knowledge of ‘learned treatises’ on the subject to a bunch of material that only backs up his side of the story.
At the very least, you can show that the State’s expert relies only on material that favors his conclusions. Or, in the alternative, that the DWI technical supervisor relies on scientific publications that help your client.
Either way, you learn more, and your clients (present and future) benefit
One of the things I love about the criminal defense/DWI blogosophere is that it is a great resource for practicing lawyers. Reading other attorneys’ thoughts often helps me in my day to day practice.
Two quick examples:
From Robert Guest on DWI and Jury Selection:
As part of the jury selection process I often ask potential jurors if they have ever driven after drinking. The vast majority of potential jurors answer yes.
The truth about DWI is that most jurors have committed DWI in their past but did not get arrested. They only difference between them and the defendant is luck.
When I inquire into the reason they chose to drink and drive most will say they were "young and stupid." I often wonder at why jurors are so ready to ruin the lives of defendants who are on trial for DWI, when they have committed the same crime themselves.
I’m not sure I would ask the “why” follow up question in Voir Dire, but that’s a matter of personal style. The point is that by reading Robert’s blog, I’ve added a question to my repertoire.
It’s simple, to the point, and something the DWI lawyer wants and needs to know. I’ve had my own ways (in the past) of inquiring about this subject matter, but because of Robert’s post, I’m going to adopt his way of doing it. It’s better than how I tried to illicit the information, and I’m not afraid to admit it. Read, learn, and get better. (I can even admit that his method is so much simpler and better than mine has been that I’m a little embarrassed.)
One general rule for jury selection is that you shouldn’t be asking “raise your hand if …” type questions, you should be asking questions that force potential jurors to respond substantively, with their own thoughts and ideas. But this is a good example of an exception to the general rule.
Example #2 comes from Mark Bennett, but some background before we get to his specific cross examination question.
I think one of the most difficult tasks for a DWI lawyer is to successfully defend a breath or blood test case where the client’s BAC (Blood or Breath Alcohol content) comes back as over .08. Briefly, there are two basic defenses: (1) the machine is an untrustworthy piece of junk, or (2) the defendant’s BAC at the time of driving was lower than at the time of the test.
The problem for the DWI defense attorney is that both of these are highly technical, i.e. scientific based defenses… and we went to law school. Few of us have graduate degrees in Science. Or undergraduate degrees, for that matter. Personally, I received a Bachelor of ‘Science’ in Psychology, after relatively brief and/or longer stops in the Departments of Computer Science, Theater Arts, and English, in that order. (OK, it took me a while to figure out what I wanted to do – and even then I changed my mind - although you can certainly make the case that my ‘Theater’ training still comes in handy.)
But generally speaking, the person testifying for the State knows more about the Intoxilyzer 5000 than we do. In Texas DWI cases, that person is the “Technical Supervisor’. Their job is essentially to come and testify that defense #1 is out the window, because the Intoxilyzer is God’s gift to machines, and that while defense #2 is theoretically possible, it doesn’t apply in your client’s DWI because blah blah blah (insert mumbo jumbo here, and the reasons seem to change to fit the facts of your particular case).
Here’s what I learned from Mark, in his post on “Dealing with the State’s Expert: One Last Question”:
If you get a chance to talk to the State's expert witness before trial (if you're allowed to, try; the best experts often see themselves as neutral, and will explain their conclusions to you), your last question should be: "What book should I read to learn about this topic myself." Get the book; it'll be a learned treatise that you can mine for cross-examination material.
Yes, it’s not technically cross examination; it’s an informal question most likely asked in whatever room the prosecutors are holed up in, and not in a pretrial or trial setting.
But here’s how it applies to DWI cases: it’s a great question to ask at the ALR driver’s license revocation hearing. This is often held before the criminal case, and it’s an absolute goldmine for defense lawyers.
Why not use your ALR hearing last question to the technical supervisor to ask his question? About books, or magazine articles and the like. Worst case scenario is that the expert limits his knowledge of ‘learned treatises’ on the subject to a bunch of material that only backs up his side of the story.
At the very least, you can show that the State’s expert relies only on material that favors his conclusions. Or, in the alternative, that the DWI technical supervisor relies on scientific publications that help your client.
Either way, you learn more, and your clients (present and future) benefit
Incorrect Blood Test Results Lead to 'Reluctant' DWI Dismissal
Lawrence Taylor writes about an interesting dismissal in one of his California DUI cases, although it could have happened in a Texas DWI case just as well.
His client’s blood test results came back from the lab well over the .08 limit, in fact a .15 blood alcohol concentration.
According to the defendant, his body weight, his drinking pattern, his likely stomach contents etc., the blood test had to be wrong. Or, the result had to be wrong for him to be innocent.
So they had the blood sample tested for the presence and amount of preservative and anticoagulant, the absence or low levels of which could cause false high results. Alas, no problems there – the result still looked admissible, and no clear line of attack for the defense.
With the two most likely explanations of false high blood test results out the window, the next most likely explanation (of innocence anyway) became that the blood being tested was not the blood drawn from the client.
[See also Mark Bennett’s blog for a related discussion of the intersection of scientific principle with criminal defense lawyering in Occam’s Razor and Bennett’s Chainsaw. For those that know the second principle, the phrase ‘DWI dismissal’ in the title of the post will be a hint that Mark’s ‘most likely explanation of the evidence’ theory is not in play here.]
Checking the blood type of the sample against the blood type of the DWI defendant is the easiest, or perhaps cheapest method of proving that the State has the wrong blood, although it is not foolproof. In Taylor’s case they checked and… it was the same blood type. It’s not discussed in the post, but as long as we are talking about math and science, it’s worth noting that principles of conditional probability and specifically Bayes’ Theorem tells us this now makes it more likely that it was indeed the client’s blood. But it’s not conclusive by any means. It was Type O, which puts it at the most common blood type, about 40% of the population.
Now, I’ve seen Lawrence speak at various seminars over the years, and I think he is to say the least an impressive DWI lawyer. So the next step in the process doesn’t surprise me:
We decided to try something different, something that, to our knowledge, had not been done before in any DUI case. We had blood taken from our client and, with a portion of the remaining sample from the LAPD lab, shipped to a laboratory in Oklahoma that specialized in DNA testing.
A month or so later the report came in: the blood tested by LAPD was conclusively not that of our client.
It’s a great post. DWI lawyers in Texas and everywhere else should read it. He goes on to talk about chain of custody, gas chromatograph instruments, and how it’s likely that other DUI defendants in the same ‘batch’ as his client also probably had their blood samples misidentified with them. Some of them ended up with lower results than they really had, some higher. (And unfortunately, we all know that most of them couldn’t afford this type of sleuthing for justice.)
So what’s the ending here? Well, this line, really a throwaway line in light of the substance of the post jumped out at me:
The prosecutor in the case initially refused to accept these results. But after we proved that the comparison blood had come from our client and after LAPD checked the blood themselves, he reluctantly dismissed all criminal charges. [Emphasis Added]
Yes. When the State is pressured to convict all who come before it on DWI charges, prosecutors can become downright reluctant to dismiss the case, even in light of these facts. Thankfully in this case, they took their duty as prosecutors seriously.
One last note: I thought about titling this post ‘Incorrect Blood’ Test Results… but then, that would have given away the punchline.
Lawrence Taylor writes about an interesting dismissal in one of his California DUI cases, although it could have happened in a Texas DWI case just as well.
His client’s blood test results came back from the lab well over the .08 limit, in fact a .15 blood alcohol concentration.
According to the defendant, his body weight, his drinking pattern, his likely stomach contents etc., the blood test had to be wrong. Or, the result had to be wrong for him to be innocent.
So they had the blood sample tested for the presence and amount of preservative and anticoagulant, the absence or low levels of which could cause false high results. Alas, no problems there – the result still looked admissible, and no clear line of attack for the defense.
With the two most likely explanations of false high blood test results out the window, the next most likely explanation (of innocence anyway) became that the blood being tested was not the blood drawn from the client.
[See also Mark Bennett’s blog for a related discussion of the intersection of scientific principle with criminal defense lawyering in Occam’s Razor and Bennett’s Chainsaw. For those that know the second principle, the phrase ‘DWI dismissal’ in the title of the post will be a hint that Mark’s ‘most likely explanation of the evidence’ theory is not in play here.]
Checking the blood type of the sample against the blood type of the DWI defendant is the easiest, or perhaps cheapest method of proving that the State has the wrong blood, although it is not foolproof. In Taylor’s case they checked and… it was the same blood type. It’s not discussed in the post, but as long as we are talking about math and science, it’s worth noting that principles of conditional probability and specifically Bayes’ Theorem tells us this now makes it more likely that it was indeed the client’s blood. But it’s not conclusive by any means. It was Type O, which puts it at the most common blood type, about 40% of the population.
Now, I’ve seen Lawrence speak at various seminars over the years, and I think he is to say the least an impressive DWI lawyer. So the next step in the process doesn’t surprise me:
We decided to try something different, something that, to our knowledge, had not been done before in any DUI case. We had blood taken from our client and, with a portion of the remaining sample from the LAPD lab, shipped to a laboratory in Oklahoma that specialized in DNA testing.
A month or so later the report came in: the blood tested by LAPD was conclusively not that of our client.
It’s a great post. DWI lawyers in Texas and everywhere else should read it. He goes on to talk about chain of custody, gas chromatograph instruments, and how it’s likely that other DUI defendants in the same ‘batch’ as his client also probably had their blood samples misidentified with them. Some of them ended up with lower results than they really had, some higher. (And unfortunately, we all know that most of them couldn’t afford this type of sleuthing for justice.)
So what’s the ending here? Well, this line, really a throwaway line in light of the substance of the post jumped out at me:
The prosecutor in the case initially refused to accept these results. But after we proved that the comparison blood had come from our client and after LAPD checked the blood themselves, he reluctantly dismissed all criminal charges. [Emphasis Added]
Yes. When the State is pressured to convict all who come before it on DWI charges, prosecutors can become downright reluctant to dismiss the case, even in light of these facts. Thankfully in this case, they took their duty as prosecutors seriously.
One last note: I thought about titling this post ‘Incorrect Blood’ Test Results… but then, that would have given away the punchline.
Presumption of Innocence? Not For Some Texas Legislators...
From today’s Austin American Statesman article about an unsuccessful attempt to reverse the presumption of innocence for DWI cases in Texas:
A third proposal would have simplified the method used for determining a person's blood-alcohol content at the time he or she was driving.
The proposal, House Bill 915, by Rep. Jimmie Don Aycock, R-Killeen, would have specified that if a driver's blood-alcohol content is higher than the legal limit of 0.08 within 90 minutes of being pulled over, the driver would be considered intoxicated.
"Right now, the problem is you have to prove they were intoxicated while driving," Aycock said. [Emphasis Mine]
So it’s a problem that the State has to meet their burden of proving guilt beyond all reasonable doubt? A problem that can be fixed with some legislation?
Fortunately, this bill was voted down by the House Law Enforcement Committee. I’ve written previously about the “Rising BAC defense” that is available to some DWI defendants in Texas. Being over .08 at the time of the breath test does not necessarily mean you were over .08 at the time of driving.
But some lawmakers objected to “forcing” the State to prove their case, so they attempted to create a presumption that any breath test within 90 minutes of driving would automatically do the trick.
David Gonzalez, counsel for TCDLA and also a local Austin DWI lawyer hit the nail on the head when he…
…said the bill would create a presumption of guilt.
"What that really means is, we need to make it easy for convictions, and when science and other things get in the way, let's disregard them," Gonzalez said.
Politicians can’t change the science of breath or blood alcohol testing…and Texans should continue to object to illogical manipulations of DWI statutes.
From today’s Austin American Statesman article about an unsuccessful attempt to reverse the presumption of innocence for DWI cases in Texas:
A third proposal would have simplified the method used for determining a person's blood-alcohol content at the time he or she was driving.
The proposal, House Bill 915, by Rep. Jimmie Don Aycock, R-Killeen, would have specified that if a driver's blood-alcohol content is higher than the legal limit of 0.08 within 90 minutes of being pulled over, the driver would be considered intoxicated.
"Right now, the problem is you have to prove they were intoxicated while driving," Aycock said. [Emphasis Mine]
So it’s a problem that the State has to meet their burden of proving guilt beyond all reasonable doubt? A problem that can be fixed with some legislation?
Fortunately, this bill was voted down by the House Law Enforcement Committee. I’ve written previously about the “Rising BAC defense” that is available to some DWI defendants in Texas. Being over .08 at the time of the breath test does not necessarily mean you were over .08 at the time of driving.
But some lawmakers objected to “forcing” the State to prove their case, so they attempted to create a presumption that any breath test within 90 minutes of driving would automatically do the trick.
David Gonzalez, counsel for TCDLA and also a local Austin DWI lawyer hit the nail on the head when he…
…said the bill would create a presumption of guilt.
"What that really means is, we need to make it easy for convictions, and when science and other things get in the way, let's disregard them," Gonzalez said.
Politicians can’t change the science of breath or blood alcohol testing…and Texans should continue to object to illogical manipulations of DWI statutes.
DWI and the "While Defense"
DWI lawyers know that most times their defense will be “the State can’t prove my client was intoxicated”. This usually comes up in breath or blood test refusal cases, where the defendant does well enough (not perfectly, just well enough) on the field sobriety tests.
Sometimes, the defense is that the State can’t prove that my client drove or operated a motor vehicle. This might involve the police arriving on scene after a collision, or after the driver is pulled over on the side of the road.
But the least common DWI defense is what I call the “while defense”. Yes, the state can prove my client was legally intoxicated (at some point). And yes, they can prove he was operating a motor vehicle. But they can’t put both of them together at the same time, and therefore, he wasn’t Driving While Intoxicated.
This defense is realistically possible when the defendant provides a breath or blood specimen where the analysis shows that the alcohol concentration is over .08, but is for example, under .10.
Of course, the defendant didn’t actually provide that specimen while driving, but instead, some time after the fact. I’d estimate that in most Austin DWI cases, my client’s breath or blood sample is taken somewhere between 30 minutes to 2 hours after the arrest.
Why so long?
Well, there’s sometimes a delay while the original stopping officer waits for an Austin Police Department DWI task force officer to arrive on the scene. That officer then conducts an interview, and administers field sobriety tests. The officer might conduct an inventory of the vehicle, and will certainly read the DIC Statutory Warning to the defendant, asking for a specimen of breath.
Then there’s the trip to the police station, where there may be an additional wait. (The recent addition of the BAT-Mobile, or Breath Alcohol Testing Mobile Unit has cut down that wait – but that’s fodder for another post.) And depending on where in Austin the client was stopped, the trip to the station or the DWI mobile unit can take quite some time as well.
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 effected 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 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.
[Last Note: in explaining this over the years, I really have come to label this the “while defense”, because it seems to make sense when I explain it in this context. I should note, however, that the more formal term for it is the “rising BAC defense”, meaning that if the defendant’s BAC was still rising at the time the vehicle was pulled over, then it’s likely that it was below the test measurement at the time of driving.]
DWI lawyers know that most times their defense will be “the State can’t prove my client was intoxicated”. This usually comes up in breath or blood test refusal cases, where the defendant does well enough (not perfectly, just well enough) on the field sobriety tests.
Sometimes, the defense is that the State can’t prove that my client drove or operated a motor vehicle. This might involve the police arriving on scene after a collision, or after the driver is pulled over on the side of the road.
But the least common DWI defense is what I call the “while defense”. Yes, the state can prove my client was legally intoxicated (at some point). And yes, they can prove he was operating a motor vehicle. But they can’t put both of them together at the same time, and therefore, he wasn’t Driving While Intoxicated.
This defense is realistically possible when the defendant provides a breath or blood specimen where the analysis shows that the alcohol concentration is over .08, but is for example, under .10.
Of course, the defendant didn’t actually provide that specimen while driving, but instead, some time after the fact. I’d estimate that in most Austin DWI cases, my client’s breath or blood sample is taken somewhere between 30 minutes to 2 hours after the arrest.
Why so long?
Well, there’s sometimes a delay while the original stopping officer waits for an Austin Police Department DWI task force officer to arrive on the scene. That officer then conducts an interview, and administers field sobriety tests. The officer might conduct an inventory of the vehicle, and will certainly read the DIC Statutory Warning to the defendant, asking for a specimen of breath.
Then there’s the trip to the police station, where there may be an additional wait. (The recent addition of the BAT-Mobile, or Breath Alcohol Testing Mobile Unit has cut down that wait – but that’s fodder for another post.) And depending on where in Austin the client was stopped, the trip to the station or the DWI mobile unit can take quite some time as well.
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 effected 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 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.
[Last Note: in explaining this over the years, I really have come to label this the “while defense”, because it seems to make sense when I explain it in this context. I should note, however, that the more formal term for it is the “rising BAC defense”, meaning that if the defendant’s BAC was still rising at the time the vehicle was pulled over, then it’s likely that it was below the test measurement at the time of driving.]
Forced Blood Draws in Austin DWI Cases
Today’s Austin American-Statesman article “Warrants for blood tests in DWI cases increasing” focuses on a growing trend in Travis County Driving While Intoxicated cases.
From small Texas towns to big cities such as Austin and Fort Worth, the practice of using search warrants — traditionally reserved for entering homes and businesses or seizing private property — to obtain the blood of drunken driving suspects is sweeping the state.
In recent months, some law enforcement agencies have begun taking blood in cases in which a suspect is thought to have caused an accident and refused to take a Breathalyzer exam. Others have started doing it when drivers have previous DWI convictions.
Austin Police Department started this practice sometime in the middle of last year:
Austin police Lt. Craig Cannon said officials in the department's highway enforcement division began looking into the practice last year and started using it a couple of weeks later in certain drunken driving cases.
The handful of officers at the department who primarily handle DWI enforcement might seek search warrants for cases in which drivers are suspected of felony drunken driving, which would include driving with children in the car or instances in which a person has been convicted of DWI in the past five years and when drivers caused an accident. Supervisors must sign off on the warrants.
Suspects' blood is drawn by a nurse at the Travis County Jail and taken to the Austin police forensic center, where it is tested. Results are quickly sent back to the DWI team and included in information sent to prosecutors.
I have to agree with David Frank, a fellow Austin DWI lawyer who is quoted as saying:
It seems like an overly invasive procedure to obtain evidence. The invasion into the body is a much more significant invasion than what we usually think of in terms of searching for evidence.
Since this warrant procedure for forcing blood draws from DWI suspects who choose to exercise their right to refuse a breath test is fairly new, I think it’s fair to say that we will be seeing more and more of these cases litigated in the appellate courts in the near future.
Today’s Austin American-Statesman article “Warrants for blood tests in DWI cases increasing” focuses on a growing trend in Travis County Driving While Intoxicated cases.
From small Texas towns to big cities such as Austin and Fort Worth, the practice of using search warrants — traditionally reserved for entering homes and businesses or seizing private property — to obtain the blood of drunken driving suspects is sweeping the state.
In recent months, some law enforcement agencies have begun taking blood in cases in which a suspect is thought to have caused an accident and refused to take a Breathalyzer exam. Others have started doing it when drivers have previous DWI convictions.
Austin Police Department started this practice sometime in the middle of last year:
Austin police Lt. Craig Cannon said officials in the department's highway enforcement division began looking into the practice last year and started using it a couple of weeks later in certain drunken driving cases.
The handful of officers at the department who primarily handle DWI enforcement might seek search warrants for cases in which drivers are suspected of felony drunken driving, which would include driving with children in the car or instances in which a person has been convicted of DWI in the past five years and when drivers caused an accident. Supervisors must sign off on the warrants.
Suspects' blood is drawn by a nurse at the Travis County Jail and taken to the Austin police forensic center, where it is tested. Results are quickly sent back to the DWI team and included in information sent to prosecutors.
I have to agree with David Frank, a fellow Austin DWI lawyer who is quoted as saying:
It seems like an overly invasive procedure to obtain evidence. The invasion into the body is a much more significant invasion than what we usually think of in terms of searching for evidence.
Since this warrant procedure for forcing blood draws from DWI suspects who choose to exercise their right to refuse a breath test is fairly new, I think it’s fair to say that we will be seeing more and more of these cases litigated in the appellate courts in the near future.
On Forced Specimens in DWI Cases
I’ve written before on forced blood draws, and indeed, in Austin, some DWI suspects are being forced to give blood specimens. After an initial refusal to take a breath or blood test, the officer submits a warrant to have the defendant’s blood forcibly drawn.
This is one of the main reasons that the Travis County Jail went to 24 hour magistration. Since most DWI arrests are after midnight – go figure – such a policy didn’t make any sense until they made sure they had a judge to rubber stamp the warrants.
But this news article takes it to a new level:
A lawsuit over the forced catheterization of a man who was arrested for investigation of drunken driving has been settled for $15,000.
The settlement reached Friday with Matthew Clifford Arthur, 37, over his treatment following an arrest in November 2005 did not include any admission of wrongdoing, Assistant Attorney General Gary E. Andrews said Monday. While the settlement covers Cowlitz County and county officials, the state will pay the full cost, he added.
"This turned out to be a better way to go than to spend more money litigating it," Andrews said.
Arthur filed suit last month, accusing two Cowlitz County sheriff's deputies and a state corrections officer of forcing him to undergo catheterization and a blood draw when he refused to provide urine and blood samples at St. John's Medical Center in Longview following a traffic stop.
Arthur was required to undergo screening for intoxicants upon request under a probation agreement at the time, but his lawyer, Kevin G. Blondin, said the procedure was painful, invasive and unnecessary.
"He was held down kicking and screaming while they shoved a catheter into his penis," Blondin said.
Instead, Arthur should have been taken to jail when he refused to give the fluid samples, the lawyer said.
Forced catheterization. A couple of comments.
First, state entities do not, at least typically, settle lawsuits “just to make them go away” or because it will be cheaper. I don’t have any inside facts here, but I think it’s reasonable to guess that ‘they’ decided that a jury wouldn’t like this, and that they stood to lose a lot more if they went to trial. That’s how civil settlements work.
Second, this guy was on probation. So he deserved it right? Even consuming alcohol, whether you are operating a vehicle or not, is a probation violation – at least in Texas. But many times, at least if it’s a DWI probation in Austin, the judge will make “submit to the taking of a breath or blood specimen upon request of police or probation officer” a condition. So if it’s necessary to prove a probation violation, his initial refusal will do the trick.
Third… is this what we’ve come to? Forced catheterization? It barely needs commenting on. If you’re not immediately, viscerally opposed to this, I can’t imagine how my words could change your mind.
I’m not a big fan of slippery slope arguments, but before you start supporting forced blood draws in Texas DWI cases, you really might want to think where this whole thing is going.
I’ve written before on forced blood draws, and indeed, in Austin, some DWI suspects are being forced to give blood specimens. After an initial refusal to take a breath or blood test, the officer submits a warrant to have the defendant’s blood forcibly drawn.
This is one of the main reasons that the Travis County Jail went to 24 hour magistration. Since most DWI arrests are after midnight – go figure – such a policy didn’t make any sense until they made sure they had a judge to rubber stamp the warrants.
But this news article takes it to a new level:
A lawsuit over the forced catheterization of a man who was arrested for investigation of drunken driving has been settled for $15,000.
The settlement reached Friday with Matthew Clifford Arthur, 37, over his treatment following an arrest in November 2005 did not include any admission of wrongdoing, Assistant Attorney General Gary E. Andrews said Monday. While the settlement covers Cowlitz County and county officials, the state will pay the full cost, he added.
"This turned out to be a better way to go than to spend more money litigating it," Andrews said.
Arthur filed suit last month, accusing two Cowlitz County sheriff's deputies and a state corrections officer of forcing him to undergo catheterization and a blood draw when he refused to provide urine and blood samples at St. John's Medical Center in Longview following a traffic stop.
Arthur was required to undergo screening for intoxicants upon request under a probation agreement at the time, but his lawyer, Kevin G. Blondin, said the procedure was painful, invasive and unnecessary.
"He was held down kicking and screaming while they shoved a catheter into his penis," Blondin said.
Instead, Arthur should have been taken to jail when he refused to give the fluid samples, the lawyer said.
Forced catheterization. A couple of comments.
First, state entities do not, at least typically, settle lawsuits “just to make them go away” or because it will be cheaper. I don’t have any inside facts here, but I think it’s reasonable to guess that ‘they’ decided that a jury wouldn’t like this, and that they stood to lose a lot more if they went to trial. That’s how civil settlements work.
Second, this guy was on probation. So he deserved it right? Even consuming alcohol, whether you are operating a vehicle or not, is a probation violation – at least in Texas. But many times, at least if it’s a DWI probation in Austin, the judge will make “submit to the taking of a breath or blood specimen upon request of police or probation officer” a condition. So if it’s necessary to prove a probation violation, his initial refusal will do the trick.
Third… is this what we’ve come to? Forced catheterization? It barely needs commenting on. If you’re not immediately, viscerally opposed to this, I can’t imagine how my words could change your mind.
I’m not a big fan of slippery slope arguments, but before you start supporting forced blood draws in Texas DWI cases, you really might want to think where this whole thing is going.
On DUI / DWI Blogging: No Need to Overstate Your Case
You can click the topics and tags in this blog to see my various thoughts on the over-punishment of DWI convictions in Texas. For ‘just a class B misdemeanor’ it’s inarguably the most penal of anything else in that category in the Penal Code.
And in general that’s a fair and relevant subject for DWI bloggers to write about.
Near the top of my list of DWI blogs on my RSS reader is Lawrence Taylor’s granddaddy-of-em-all DWI blog, simply titled “DUI Blog”. (Those Californians call it D-U-I.) Taylor’s blog is aptly subtitled “Bad Drunk Driving Laws, False Evidence and a Fading Constitution”.
Taylor always does a great job of bringing us the latest and greatest in ridiculous DWI/DUI prosecution moments. See for example his recent post: DUI - While Walking a Bicycle.
And so with great anticipation I click on an even newer post titled “First DUI = West Point Expulsion + 1 year in Prison”. Here are his intro remarks on the article:
As Draconian as DUI penalties have become, one would nevertheless hope that the offense would not destroy the accused’s life, at least for a first offense. Increasingly, one would be wrong…
Great another example of Lawrence’s niche topic, which I will sum up as “MADD has driven us all mad”. And of course he’s right – most of the time – first time DWI penalties are too stiff, and this one sounds ridiculous.
Here’s what Lawrence cut and pasted from the news article:
A U.S, Military Academy cadet was found guilty of drunken driving by a military judge and sentenced to dismissal from the U.S. Army yesterday.
The verdict came less than three weeks before Dixon was due to graduate with the class of 2008.
Dixon was formally charged in December with violating two articles of the Uniform Code of Military Justice: drunken and reckless operation of a vehicle, and conduct unbecoming an officer and a gentleman…
The judge sentenced Dixon to one year and one month confinement, dismissal from the Army and forfeiture of all pay and allowances.
Well, that certainly fits the bill. Perhaps getting kicked out of West Point is appropriate, perhaps it’s not – but one year is waaaay to high a punishment for “just a DUI” – especially a first time offense. Unreasonable, capricious, arbritary, unfair, in other words: great material for a DWI blog.
There were a couple of things that didn’t ring 100% true to me though. Number one, although I’m no expert on Military law nor what gets you kicked out of West Point, I thought conduct unbecoming an officer was a little odd for a DUI. That might actually be true and I’ll try to check on it with my military defense lawyer friends over the next few days. I’ll report back if anything comes of it.
But number two was the ellipsis. I use – or perhaps overuse – parentheses, dashes and all sorts of unnecessary punctuation. But the dot-dot-dot after the next to last paragraph preceding the part about punishment. What could it be? Well here’s that portion of the original article with the quoted paragraphs before and after:
Dixon was formally charged in December with violating two articles of the Uniform Code of Military Justice: drunken and reckless operation of a vehicle, and conduct unbecoming an officer and a gentleman.
Dixon allegedly fled the scene and giving a false official statement after being involved in a drunken driving accident while on temporary duty in Maryland last July.
The judge sentenced Dixon to one year and one month confinement, dismissal from the Army and forfeiture of all pay and allowances.
[Emphasis Added]
Ah. That explains a lot now doesn’t it? Sounds like ‘conduct unbecoming’ and theoretically would justify a higher sentence. A defense lawyer could certainly argue that the sentence here was still too high, given all the facts, but hiding that and pretending this is the wave of the future for first time DWI sentencing?
Stick to the facts and don’t embellish, even by omission. DWI penalties are indeed too high as is. Don’t lose credibility by getting caught in what now seems like a deliberate misrepresentation. After all, that dot-dot-dot didn’t come out of nowhere
You can click the topics and tags in this blog to see my various thoughts on the over-punishment of DWI convictions in Texas. For ‘just a class B misdemeanor’ it’s inarguably the most penal of anything else in that category in the Penal Code.
And in general that’s a fair and relevant subject for DWI bloggers to write about.
Near the top of my list of DWI blogs on my RSS reader is Lawrence Taylor’s granddaddy-of-em-all DWI blog, simply titled “DUI Blog”. (Those Californians call it D-U-I.) Taylor’s blog is aptly subtitled “Bad Drunk Driving Laws, False Evidence and a Fading Constitution”.
Taylor always does a great job of bringing us the latest and greatest in ridiculous DWI/DUI prosecution moments. See for example his recent post: DUI - While Walking a Bicycle.
And so with great anticipation I click on an even newer post titled “First DUI = West Point Expulsion + 1 year in Prison”. Here are his intro remarks on the article:
As Draconian as DUI penalties have become, one would nevertheless hope that the offense would not destroy the accused’s life, at least for a first offense. Increasingly, one would be wrong…
Great another example of Lawrence’s niche topic, which I will sum up as “MADD has driven us all mad”. And of course he’s right – most of the time – first time DWI penalties are too stiff, and this one sounds ridiculous.
Here’s what Lawrence cut and pasted from the news article:
A U.S, Military Academy cadet was found guilty of drunken driving by a military judge and sentenced to dismissal from the U.S. Army yesterday.
The verdict came less than three weeks before Dixon was due to graduate with the class of 2008.
Dixon was formally charged in December with violating two articles of the Uniform Code of Military Justice: drunken and reckless operation of a vehicle, and conduct unbecoming an officer and a gentleman…
The judge sentenced Dixon to one year and one month confinement, dismissal from the Army and forfeiture of all pay and allowances.
Well, that certainly fits the bill. Perhaps getting kicked out of West Point is appropriate, perhaps it’s not – but one year is waaaay to high a punishment for “just a DUI” – especially a first time offense. Unreasonable, capricious, arbritary, unfair, in other words: great material for a DWI blog.
There were a couple of things that didn’t ring 100% true to me though. Number one, although I’m no expert on Military law nor what gets you kicked out of West Point, I thought conduct unbecoming an officer was a little odd for a DUI. That might actually be true and I’ll try to check on it with my military defense lawyer friends over the next few days. I’ll report back if anything comes of it.
But number two was the ellipsis. I use – or perhaps overuse – parentheses, dashes and all sorts of unnecessary punctuation. But the dot-dot-dot after the next to last paragraph preceding the part about punishment. What could it be? Well here’s that portion of the original article with the quoted paragraphs before and after:
Dixon was formally charged in December with violating two articles of the Uniform Code of Military Justice: drunken and reckless operation of a vehicle, and conduct unbecoming an officer and a gentleman.
Dixon allegedly fled the scene and giving a false official statement after being involved in a drunken driving accident while on temporary duty in Maryland last July.
The judge sentenced Dixon to one year and one month confinement, dismissal from the Army and forfeiture of all pay and allowances.
[Emphasis Added]
Ah. That explains a lot now doesn’t it? Sounds like ‘conduct unbecoming’ and theoretically would justify a higher sentence. A defense lawyer could certainly argue that the sentence here was still too high, given all the facts, but hiding that and pretending this is the wave of the future for first time DWI sentencing?
Stick to the facts and don’t embellish, even by omission. DWI penalties are indeed too high as is. Don’t lose credibility by getting caught in what now seems like a deliberate misrepresentation. After all, that dot-dot-dot didn’t come out of nowhere
Best Use of a Lewis Carroll Quote in a DWI Context
On the differences between what most people mean by intoxicated vs. what the Texas Penal Code, and what police officers mean, Dallas DWI lawyer Robert Guest starts his post with a quote:
“When I use a word it means just what I choose it to mean, neither more nor less.” - Humpty Dumpty, Through the Looking
On the differences between what most people mean by intoxicated vs. what the Texas Penal Code, and what police officers mean, Dallas DWI lawyer Robert Guest starts his post with a quote:
“When I use a word it means just what I choose it to mean, neither more nor less.” - Humpty Dumpty, Through the Looking
Getting Tough on DWI
Folks often suggest stories to me that they think I ought to blog about. For some reason, this seems to primarily consist of advice like “Did you see that [Paris Hilton/Lindsay Lohan/local celebrity/etc.] got [arrested/rearrested/etc.}? You ought to write about that…”
I thank them for the idea, and by the way – I really mean this – anything you see out there, please alert me if you think it’s good blogging material.
But (there’s always a ‘but’, isn’t there…)
I don’t blog about so-and-so got arrested for such-and-such. It’s
Not my style
Seems like making fun of people in the same situation as my clients
Not usually relevant to my ‘niche’
Overdone by the cut-and-paste bloggers
Not a case I think I know anything about, since all my info about it comes from the media
There’s about a hundred more reasons I don’t ‘do’ that type of blogging.
So today, someone tells me about a story in the Austin American Statesman about [-------] getting arrested. I wasn’t overly familiar with the name, but it seemed to ring a bell. Catalogued it as ‘not my type of post’ and went on my way.
Then I see that DWI lawyers in Frisco, Houston, and all the way to California have jumped into the fray, noting that the legislator responsible for the DWI surcharge in Texas was arrested for DWI and refused to take a breath test.
No Hunter, I am not representing Representative Krusee, so I’m free to comment on this story, but I still don’t want to add anything. I’ll toss out a little quiz though, for anyone who wants to play. Any of you DWI lawyers out there see anything odd about this PC affidavit?
On the ‘everyone loves the concept of comeuppance’ front, also piling on are Capitol Annex, Doing My Part for the Left, Texas Cloverleaf, Eye on Williamson, Williamson Republic, Stop the ACLU, Old Government Road, Burnt Orange Report, TTC News Archives, Random Nuclear Strikes, Truth be Tolled, Interesting Discussions, Wilco Wise.
Folks often suggest stories to me that they think I ought to blog about. For some reason, this seems to primarily consist of advice like “Did you see that [Paris Hilton/Lindsay Lohan/local celebrity/etc.] got [arrested/rearrested/etc.}? You ought to write about that…”
I thank them for the idea, and by the way – I really mean this – anything you see out there, please alert me if you think it’s good blogging material.
But (there’s always a ‘but’, isn’t there…)
I don’t blog about so-and-so got arrested for such-and-such. It’s
Not my style
Seems like making fun of people in the same situation as my clients
Not usually relevant to my ‘niche’
Overdone by the cut-and-paste bloggers
Not a case I think I know anything about, since all my info about it comes from the media
There’s about a hundred more reasons I don’t ‘do’ that type of blogging.
So today, someone tells me about a story in the Austin American Statesman about [-------] getting arrested. I wasn’t overly familiar with the name, but it seemed to ring a bell. Catalogued it as ‘not my type of post’ and went on my way.
Then I see that DWI lawyers in Frisco, Houston, and all the way to California have jumped into the fray, noting that the legislator responsible for the DWI surcharge in Texas was arrested for DWI and refused to take a breath test.
No Hunter, I am not representing Representative Krusee, so I’m free to comment on this story, but I still don’t want to add anything. I’ll toss out a little quiz though, for anyone who wants to play. Any of you DWI lawyers out there see anything odd about this PC affidavit?
On the ‘everyone loves the concept of comeuppance’ front, also piling on are Capitol Annex, Doing My Part for the Left, Texas Cloverleaf, Eye on Williamson, Williamson Republic, Stop the ACLU, Old Government Road, Burnt Orange Report, TTC News Archives, Random Nuclear Strikes, Truth be Tolled, Interesting Discussions, Wilco Wise.
Failing the 'Float Test': Boating While Intoxicated
I usually don’t pile on when a celebrity as arrested and the best way to do that is to not blog about the arrest. And while it’s worth noting that I have no personal knowledge of the facts in this case, nor do I represent the accused, this post is at least nominally in defense of Cedric Benson. (And to further my bona fides on sticking up for Benson, see this post.)
This part of the AP story about Cedric Benson’s arrest for Boating While Intoxicated in Austin jumped out at me:
According to a sergeant from the Travis County Sheriff's office, Benson, who played at the University of Texas in Austin, was arrested by the Lower Colorado River Authority. A LCRA spokesperson said that Benson, who failed a sobriety "float test" (an abbreviated version of a field sobriety test) on the boat, argued over taking a follow-up test on land and refused to put on a life jacket.
So they’re calling it a “float test” now. Never heard that one, but lemme take an educated guess at what they’re talking about.
Prior to taking someone to shore, a law enforcement officer asks the subject – in this case Chicago Bears running back Cedric Benson – to do some tests to prove his sobriety while he is still standing on his boat. While it’s on the water. Moving around. Waves underneath the boat.
Once the subject is unable to prove to the officer’s satisfaction that he isn’t intoxicated, he is asked to come ashore and then the standardized field sobriety tests are administered.
Putting aside for the moment that the FSTs are junk science at best to start off with, the officer then testifies in court – because it’s consistent with his training – that a 15 minute waiting period after coming off the boat is sufficient for the subject to regain his land legs, and to do the tests in a manner that puts him on equal footing with someone that hasn’t been out on a lake all day.
This 15 minute time period, as far as I’ve ever been able to tell, is completely made up. There are absolutely no scientific studies to show this. I’ve always suspected that whoever came up with it basically ripped off the idea from the 15 minute observation period required by Texas DPS in a breath test case.
One last note: I’m not saying that Cedric Benson is not guilty – I don’t know. Perhaps he was tanked. More likely than not, there was at least evidence that he had consumed some alcohol. But there’s a really big difference between those two, and conducting what the news media, if not the police, are now calling a float test to determine where on that bell curve he was? If it was anything like the boating while intoxicated cases I’ve seen in my career, I wouldn’t put much stock in it.
I usually don’t pile on when a celebrity as arrested and the best way to do that is to not blog about the arrest. And while it’s worth noting that I have no personal knowledge of the facts in this case, nor do I represent the accused, this post is at least nominally in defense of Cedric Benson. (And to further my bona fides on sticking up for Benson, see this post.)
This part of the AP story about Cedric Benson’s arrest for Boating While Intoxicated in Austin jumped out at me:
According to a sergeant from the Travis County Sheriff's office, Benson, who played at the University of Texas in Austin, was arrested by the Lower Colorado River Authority. A LCRA spokesperson said that Benson, who failed a sobriety "float test" (an abbreviated version of a field sobriety test) on the boat, argued over taking a follow-up test on land and refused to put on a life jacket.
So they’re calling it a “float test” now. Never heard that one, but lemme take an educated guess at what they’re talking about.
Prior to taking someone to shore, a law enforcement officer asks the subject – in this case Chicago Bears running back Cedric Benson – to do some tests to prove his sobriety while he is still standing on his boat. While it’s on the water. Moving around. Waves underneath the boat.
Once the subject is unable to prove to the officer’s satisfaction that he isn’t intoxicated, he is asked to come ashore and then the standardized field sobriety tests are administered.
Putting aside for the moment that the FSTs are junk science at best to start off with, the officer then testifies in court – because it’s consistent with his training – that a 15 minute waiting period after coming off the boat is sufficient for the subject to regain his land legs, and to do the tests in a manner that puts him on equal footing with someone that hasn’t been out on a lake all day.
This 15 minute time period, as far as I’ve ever been able to tell, is completely made up. There are absolutely no scientific studies to show this. I’ve always suspected that whoever came up with it basically ripped off the idea from the 15 minute observation period required by Texas DPS in a breath test case.
One last note: I’m not saying that Cedric Benson is not guilty – I don’t know. Perhaps he was tanked. More likely than not, there was at least evidence that he had consumed some alcohol. But there’s a really big difference between those two, and conducting what the news media, if not the police, are now calling a float test to determine where on that bell curve he was? If it was anything like the boating while intoxicated cases I’ve seen in my career, I wouldn’t put much stock in it.
Eventually Everyone Gets Treated Like the Worst of the Worst
“I Was There” left a comment to my post about involuntary catheterizations in DWI cases. The Attorney General’s Office for Washington State had settled a civil lawsuit - without an admission of wrongdoing – for, well, there’s no polite way to say it… shoving a tube down his penis and forcibly drawing urine from him.
That’s right. To prove a DUI/DWI case.
The anonymous commenter offers this for our consideration:
The article covers little of the story.
Arthur was on the WA equivalent of felony parole. He committed several crimes that night (hit and run, 2 counts of felony malicious mischief, and was tried and acquitted of felony harassment) in addition to DUI and was believed to have left the home of his domestic violence victim (for whom there was a no contact condition) immediately before his crime spree.
His bizarre and violent behavior (and prior drug use) led his parole officer and hospital staff to believe Arthur was intoxicated on something other than alcohol. Hospital staff needed to know to clear him before he could be booked into the jail.
The parole officer needed to establish whether Arthur posed an increased threat to his DV victim or society. (In WA, the parole officers have broad responsibilities levied by a state Supreme Court ruling to assess risks and warn and protect "reasonably foreseeable" victims.)
As such, the blood and urine draw were sought, despite Arthur's initial refusal. Despite his claims, neither was taken by force. In fact, he was cooperative with the blood draw and does not even remember it!
The blood and alcohol tests were not intended for, nor used in, his criminal trial.
OK. Arthur was a bad guy. Bad bad. BAD.
But don’t kid yourself. Once the law allows the police to do this to Arthur, they can (and will) do it to you next. That’s how the law works.
It’s axiomatic that bad cases make bad law. Here’s how that works.
An appellate court decides to rule in the State’s favor in this oh-so-special-“He’s a bad guy”-case. And then precedent takes over. Now it’s A-OK approved procedure for everyone.
As long as you’re OK with that…
“I Was There” left a comment to my post about involuntary catheterizations in DWI cases. The Attorney General’s Office for Washington State had settled a civil lawsuit - without an admission of wrongdoing – for, well, there’s no polite way to say it… shoving a tube down his penis and forcibly drawing urine from him.
That’s right. To prove a DUI/DWI case.
The anonymous commenter offers this for our consideration:
The article covers little of the story.
Arthur was on the WA equivalent of felony parole. He committed several crimes that night (hit and run, 2 counts of felony malicious mischief, and was tried and acquitted of felony harassment) in addition to DUI and was believed to have left the home of his domestic violence victim (for whom there was a no contact condition) immediately before his crime spree.
His bizarre and violent behavior (and prior drug use) led his parole officer and hospital staff to believe Arthur was intoxicated on something other than alcohol. Hospital staff needed to know to clear him before he could be booked into the jail.
The parole officer needed to establish whether Arthur posed an increased threat to his DV victim or society. (In WA, the parole officers have broad responsibilities levied by a state Supreme Court ruling to assess risks and warn and protect "reasonably foreseeable" victims.)
As such, the blood and urine draw were sought, despite Arthur's initial refusal. Despite his claims, neither was taken by force. In fact, he was cooperative with the blood draw and does not even remember it!
The blood and alcohol tests were not intended for, nor used in, his criminal trial.
OK. Arthur was a bad guy. Bad bad. BAD.
But don’t kid yourself. Once the law allows the police to do this to Arthur, they can (and will) do it to you next. That’s how the law works.
It’s axiomatic that bad cases make bad law. Here’s how that works.
An appellate court decides to rule in the State’s favor in this oh-so-special-“He’s a bad guy”-case. And then precedent takes over. Now it’s A-OK approved procedure for everyone.
As long as you’re OK with that…
SCRAM Bracelets, Money, and Big Brother
From the Joliet Herald News, “SCRAM Bracelet Saves More Than Money”:
David Talarico's business features a high-tech bracelet that has the potential to save tax dollars and -- more importantly -- lives.
The devices, called SCRAM (Secure Continuous Remote Alcohol Monitor), detect alcohol use. The bracelets are worn on the ankle by people who have abused alcohol and are in trouble with the law. Instead of going to jail, offenders wear SCRAM bracelets that monitor their bodies for alcohol 24 hours a day, 7 days a week.
OK. So that’s what the SCRAM bracelet is, and yes, it is being used in Austin as well as Illinois.
For folks released on bond for a DWI 2nd offense or higher that are required by statute to install an Ignition Interlock Device, SCRAM sometimes makes sense. It allows them access to many vehicles, instead of just one, and still fulfills the requirement that ‘some machine is making sure they didn’t consume alcohol’ before starting a car. Some folks can’t be tied down to just one vehicle.
However, it is definitely more not less expensive than an Ignition Interlock. [Posting on a Sunday night; I’ll try to get some exact figures on that soon.]
The article continues:
Though some may think the bracelets are intrusive, Talarico, president of Alcohol Monitors of Illinois Inc., thinks they're the wave of the future.
"People call this 'Big Brother,' but the reality is, these are for the people who need a big brother to help them along," he said. "Clearly if somebody can't stay sober on their own, they'll have to go to jail."
The first paragraph sets up a false dichotomy between something being “intrusive” vs. “being the wave of the future”.
And I just want to be clear on this: Talarico, based on your quote, you are at least admitting that it is Big Brother. Right? It’s just that Big Brother is or can be a good thing – that’s your point.
The article ends with an interesting quote from Talarico. I’m just going to quote it, and not comment. It’s one of those “no comment necessary” situations:
He believes the SCRAM bracelet is an important weapon to fight alcohol abuse.
Being in this business, you see both sides of it," he said. "I see SCRAM almost like the war on terror. You never know what you're preventing, but if you believe in what you're doing you know you're doing good."
OK, I said I wouldn’t comment, but I’ve got an overwhelming urge to repeat that last line:
You never know what you're preventing, but if you believe in what you're doing you know you're doing good.
From the Joliet Herald News, “SCRAM Bracelet Saves More Than Money”:
David Talarico's business features a high-tech bracelet that has the potential to save tax dollars and -- more importantly -- lives.
The devices, called SCRAM (Secure Continuous Remote Alcohol Monitor), detect alcohol use. The bracelets are worn on the ankle by people who have abused alcohol and are in trouble with the law. Instead of going to jail, offenders wear SCRAM bracelets that monitor their bodies for alcohol 24 hours a day, 7 days a week.
OK. So that’s what the SCRAM bracelet is, and yes, it is being used in Austin as well as Illinois.
For folks released on bond for a DWI 2nd offense or higher that are required by statute to install an Ignition Interlock Device, SCRAM sometimes makes sense. It allows them access to many vehicles, instead of just one, and still fulfills the requirement that ‘some machine is making sure they didn’t consume alcohol’ before starting a car. Some folks can’t be tied down to just one vehicle.
However, it is definitely more not less expensive than an Ignition Interlock. [Posting on a Sunday night; I’ll try to get some exact figures on that soon.]
The article continues:
Though some may think the bracelets are intrusive, Talarico, president of Alcohol Monitors of Illinois Inc., thinks they're the wave of the future.
"People call this 'Big Brother,' but the reality is, these are for the people who need a big brother to help them along," he said. "Clearly if somebody can't stay sober on their own, they'll have to go to jail."
The first paragraph sets up a false dichotomy between something being “intrusive” vs. “being the wave of the future”.
And I just want to be clear on this: Talarico, based on your quote, you are at least admitting that it is Big Brother. Right? It’s just that Big Brother is or can be a good thing – that’s your point.
The article ends with an interesting quote from Talarico. I’m just going to quote it, and not comment. It’s one of those “no comment necessary” situations:
He believes the SCRAM bracelet is an important weapon to fight alcohol abuse.
Being in this business, you see both sides of it," he said. "I see SCRAM almost like the war on terror. You never know what you're preventing, but if you believe in what you're doing you know you're doing good."
OK, I said I wouldn’t comment, but I’ve got an overwhelming urge to repeat that last line:
You never know what you're preventing, but if you believe in what you're doing you know you're doing good.
How Often Should a Blawging Lawyer Blog?
Frisco DWI Lawyer Hunter Biederman felt some pressure recently when he hadn’t been blogging enough to satisfy his audience. He asked:
So, if anyone out there has some tips on how to keep up better, I'd love to hear them. How do you manage the time to blog? Mark, Jamie, Lawrence, Stephen, Glen, Robert, Scott, Stephen, Shawn, Kevin, What say you?? How about my pal Ken Gibson? You seemed to give up on the blogging too…
Do you set aside particular days? Time slots? My wife says I should have a routine and block off time just as I would for a new client.
Looking forward to hearing your suggestions.
Simple answer, and the best answer from my perspective? As often as you like, even if that’s not every day, or every week. The flip side – there’s always a flip side, isn’t there? – is that less than once a month or so and your blog won’t amount to much in the long run.
If you practice law for the next 20 years, and only blog once a month or so, that will end up being about 200-250 total posts. Not bad actually. Of course, you’re going to retire, but so what? There’s no magic number.
But much less than that and it’s hard to call it blogging. Twice a year? Four times a year?
I’d also say the answer is “as often as you have something to say and the time to say it”. Keith Lauerman, who practices criminal defense in both Williamson and Travis Counties has posted 17 times since he started in January of 2007. So he’s in that approximately once a month range that I’m talking about.
But most importantly, he writes substantive lengthy thoughtful posts when he feels like it. Every time he pops up in my reader, I’m there.
A good blog is about original content – not just cutting and pasting newspaper clippings.
So, to answer the question you really asked, Hunter? How do I manage the time to blog?
Yes, I set aside some time almost every day to read other blogs. But once a week will do for reading. Any less than that and I don’t know that you’re keeping up with the practical blawgosphere. Get an RSS reader to help with that (or call me if you’re a lawyer thinking about blogging – and I’ll talk you through that – it’ll take 3 to 5 minutes tops.)
And personally, I tend to write and post late at night after my wife and kids have gone to bed. But that’s just me. Hunter, post when you have something to say and the time to say it.
Frisco DWI Lawyer Hunter Biederman felt some pressure recently when he hadn’t been blogging enough to satisfy his audience. He asked:
So, if anyone out there has some tips on how to keep up better, I'd love to hear them. How do you manage the time to blog? Mark, Jamie, Lawrence, Stephen, Glen, Robert, Scott, Stephen, Shawn, Kevin, What say you?? How about my pal Ken Gibson? You seemed to give up on the blogging too…
Do you set aside particular days? Time slots? My wife says I should have a routine and block off time just as I would for a new client.
Looking forward to hearing your suggestions.
Simple answer, and the best answer from my perspective? As often as you like, even if that’s not every day, or every week. The flip side – there’s always a flip side, isn’t there? – is that less than once a month or so and your blog won’t amount to much in the long run.
If you practice law for the next 20 years, and only blog once a month or so, that will end up being about 200-250 total posts. Not bad actually. Of course, you’re going to retire, but so what? There’s no magic number.
But much less than that and it’s hard to call it blogging. Twice a year? Four times a year?
I’d also say the answer is “as often as you have something to say and the time to say it”. Keith Lauerman, who practices criminal defense in both Williamson and Travis Counties has posted 17 times since he started in January of 2007. So he’s in that approximately once a month range that I’m talking about.
But most importantly, he writes substantive lengthy thoughtful posts when he feels like it. Every time he pops up in my reader, I’m there.
A good blog is about original content – not just cutting and pasting newspaper clippings.
So, to answer the question you really asked, Hunter? How do I manage the time to blog?
Yes, I set aside some time almost every day to read other blogs. But once a week will do for reading. Any less than that and I don’t know that you’re keeping up with the practical blawgosphere. Get an RSS reader to help with that (or call me if you’re a lawyer thinking about blogging – and I’ll talk you through that – it’ll take 3 to 5 minutes tops.)
And personally, I tend to write and post late at night after my wife and kids have gone to bed. But that’s just me. Hunter, post when you have something to say and the time to say it.
Out of State DWI Suspension and Texas Driver's License Question
From an email:
I was arrested in 2005 while in the military in North Carolina for a DWI. My license is suspended in North Carolina but is it suspended in Texas?
Answer:
I assume you are living in Texas now? Ever apply for a Texas DL? Or are you just driving around hoping not to get pulled over? (Not the best idea - by the way.)
Basically, if Texas DPS gives you a license, you're good. Sounds like that's not the case though. You may need to clear up any problems with NC - if your license is still suspended there - before you can get a Texas DL.
If your suspension period is up you may just have to pay a reinstatement fee to North Carolina, to get in compliance with their DMV. Once that's done, under the interstate compact, you will probably be eligible for a regular license here.
If you aren't eligible for a 24/7 Texas driver's license, you may be able to get an occupational here in Texas. That's a bit trickier, and not answerable without knowing more facts.
I don't know what part of Texas you're in, but you should find a DWI lawyer that practices in your (current) neck of the woods to help you with this.
From an email:
I was arrested in 2005 while in the military in North Carolina for a DWI. My license is suspended in North Carolina but is it suspended in Texas?
Answer:
I assume you are living in Texas now? Ever apply for a Texas DL? Or are you just driving around hoping not to get pulled over? (Not the best idea - by the way.)
Basically, if Texas DPS gives you a license, you're good. Sounds like that's not the case though. You may need to clear up any problems with NC - if your license is still suspended there - before you can get a Texas DL.
If your suspension period is up you may just have to pay a reinstatement fee to North Carolina, to get in compliance with their DMV. Once that's done, under the interstate compact, you will probably be eligible for a regular license here.
If you aren't eligible for a 24/7 Texas driver's license, you may be able to get an occupational here in Texas. That's a bit trickier, and not answerable without knowing more facts.
I don't know what part of Texas you're in, but you should find a DWI lawyer that practices in your (current) neck of the woods to help you with this.
Offer of Proof in an ALR Hearing: DWI and Marijuana
The Austin Criminal Defense Lawyers’ listserv was filled with replies and answers recently when someone inquired about the best way to make an offer of proof. As these things often do, there was a tangential question asked: “Anyone aware whether the Judge can require that an offer of proof be made after he goes on break?”
I’d never seen it done in county or district court, but it reminded me that it had happened in an ALR. I replied:
Some ALJs do it.
I had an Administrative Law Judge try to leave the room once - after dismissing the live in person officer/witness that could have just answered the one and only question that had been objected to, and sustained - while he finally allowed me to make an offer of proof. (There's only a tape recorder, not a real live court reporter of course in ALRs.) I'm pretty sure he quoted me chapter and verse on why he was allowed to leave, or it was better for him to leave the room, or something.
I managed to get out "I anticipate that Officer So-and-So would have testified that the marijuana was found in the glove compartment" (which was almost all I wanted to ask on the subject) and concluded the offer of proof before the judge was able to storm out of the room. Unfortunately for him, although he wanted to make a point to me about how unimportant and/or irrelevant my offer of proof was, he had spent enough time lecturing me on the subject of "No appeal court will overturn my ruling" that I was able to get the Q&A in before he reached the door.
In my own defense, I still think it's relevant to the issue of intoxication - and even the officer's determination of probable cause to believe DWI blah blah blah - that the connection or nexus between the defendant and the marijuana was remote. (And, to be fair, in his defense, the standards on appeal for ALRs are so ridiculous that he was right about the chances of appellate success - we didn't even bother appealing it.)
To put it in context, my client had been charged with both possession of marijuana and DWI. In an ALR hearing, DPS is required to ‘prove’ that the officer had probable cause to believe that my client was intoxicated. Since the state can charge you with being impaired on either substance, or a combination of the two, the officer’s belief about my client’s ‘marijuana intoxication’ was at least marginally relevant.
Looking back on it, I think both the judge and the lawyer (yes, that was me) were being somewhat childish. After my email to the listserv, another attorney ribbed me about bothering to go through the offer of proof motions in the first place. I texted him back:
Yeah, basically I was RIGHT and the judge was wrong and I tried to tell him why it WAS relevant, and he wouldn't listen so I wanted him to have to listen to the answers, then it would become clear that I was right, but then he wanted to take his basketball and go home and leave the room, but I beat him to the punch by getting it out before he could leave.
I can be very mature.
Still, you’ve got to let judges know you know how to preserve the record for appeal, even if there’s not going to be one. They may give you a little more latitude in the future with your questions.
And since one of the primary purposes of ALR is to depose the witness for the upcoming DWI case, the more questions you are allowed, the better.
I might have been able to go a little further, if allowed, and elicited testimony that the officer couldn’t or didn’t know whether my client knew about the marijuana in the glove box. Which certainly would have been useful for the possession charge.
I didn’t have a good faith basis for including that in the offer of proof; and it would only have done me good if I had gotten the officer’s sworn testimony under oath. My Q&A in an offer of proof would not have been admissible of course in the criminal trial.
The Austin Criminal Defense Lawyers’ listserv was filled with replies and answers recently when someone inquired about the best way to make an offer of proof. As these things often do, there was a tangential question asked: “Anyone aware whether the Judge can require that an offer of proof be made after he goes on break?”
I’d never seen it done in county or district court, but it reminded me that it had happened in an ALR. I replied:
Some ALJs do it.
I had an Administrative Law Judge try to leave the room once - after dismissing the live in person officer/witness that could have just answered the one and only question that had been objected to, and sustained - while he finally allowed me to make an offer of proof. (There's only a tape recorder, not a real live court reporter of course in ALRs.) I'm pretty sure he quoted me chapter and verse on why he was allowed to leave, or it was better for him to leave the room, or something.
I managed to get out "I anticipate that Officer So-and-So would have testified that the marijuana was found in the glove compartment" (which was almost all I wanted to ask on the subject) and concluded the offer of proof before the judge was able to storm out of the room. Unfortunately for him, although he wanted to make a point to me about how unimportant and/or irrelevant my offer of proof was, he had spent enough time lecturing me on the subject of "No appeal court will overturn my ruling" that I was able to get the Q&A in before he reached the door.
In my own defense, I still think it's relevant to the issue of intoxication - and even the officer's determination of probable cause to believe DWI blah blah blah - that the connection or nexus between the defendant and the marijuana was remote. (And, to be fair, in his defense, the standards on appeal for ALRs are so ridiculous that he was right about the chances of appellate success - we didn't even bother appealing it.)
To put it in context, my client had been charged with both possession of marijuana and DWI. In an ALR hearing, DPS is required to ‘prove’ that the officer had probable cause to believe that my client was intoxicated. Since the state can charge you with being impaired on either substance, or a combination of the two, the officer’s belief about my client’s ‘marijuana intoxication’ was at least marginally relevant.
Looking back on it, I think both the judge and the lawyer (yes, that was me) were being somewhat childish. After my email to the listserv, another attorney ribbed me about bothering to go through the offer of proof motions in the first place. I texted him back:
Yeah, basically I was RIGHT and the judge was wrong and I tried to tell him why it WAS relevant, and he wouldn't listen so I wanted him to have to listen to the answers, then it would become clear that I was right, but then he wanted to take his basketball and go home and leave the room, but I beat him to the punch by getting it out before he could leave.
I can be very mature.
Still, you’ve got to let judges know you know how to preserve the record for appeal, even if there’s not going to be one. They may give you a little more latitude in the future with your questions.
And since one of the primary purposes of ALR is to depose the witness for the upcoming DWI case, the more questions you are allowed, the better.
I might have been able to go a little further, if allowed, and elicited testimony that the officer couldn’t or didn’t know whether my client knew about the marijuana in the glove box. Which certainly would have been useful for the possession charge.
I didn’t have a good faith basis for including that in the offer of proof; and it would only have done me good if I had gotten the officer’s sworn testimony under oath. My Q&A in an offer of proof would not have been admissible of course in the criminal trial.
Pleading 'No Contest' to DWI Tx and Preparing the Witness
Perusing my recent stats, courtesy of Mint, and I see someone has Googled the title of this post.
Maybe I’m feeling overly suspicious tonight, but I’m tempted to suspect that someone has been told by their lawyer that there’s a big difference between pleading ‘guilty’ and pleading ‘no contest’ to their (Texas) DWI charge.
There’s not. If you weren’t involved in a collision, or something that could lead to a civil suit, there’s absolutely no difference to the defendant. Your lawyer has not worked out some ‘great deal’ by ‘convincing the prosecutor’ to ‘let you plead no contest instead of guilty’.
And frankly, if you had insurance, or weren’t at fault in the accident – that’s possible, even if you were hammered – there’s still no difference.
The only difference that counts is that a ‘no contest’ plea can’t be held against you in a civil case arising out of the criminal incident, while a ‘guilty’ plea can. If that’s a big deal to you, maybe it’s worth something. 99% of the time it won’t be.
And as long as I’m being suspicious, who else out there thinks the recent search phrase ‘preparing cops for an ALR hearing’ was done by a prosecutor? Late night search, and all I know is it was from a wireless broadband IP address, so I can’t be sure, but who else would Google such a thing?
What the heck… Never been a prosecutor, but I’m going to hand out some advice in that regard anyway:
Say, “Officer, thanks for showing up. The hearing’s about to start. Have you reviewed the documents? You remember the arrest? OK, great. You’ll get called as a witness in a few minutes.”
Pretty simple stuff. He’ll be sworn in under penalty of perjury. They taught him in the Police Academy to just tell the truth – well, didn’t they?
What other kind of ‘preparing’ could you (not a witness to the events in question) give to an officer anyway?
[OK, OK, I'm being something of a smart-alec. I know there are prosecutors that read this blog. Feel free to add comments on how to 'ethically' prepare a witness. You may do so anonymously, or leave your name. I'd be happy to hear from you.]
Perusing my recent stats, courtesy of Mint, and I see someone has Googled the title of this post.
Maybe I’m feeling overly suspicious tonight, but I’m tempted to suspect that someone has been told by their lawyer that there’s a big difference between pleading ‘guilty’ and pleading ‘no contest’ to their (Texas) DWI charge.
There’s not. If you weren’t involved in a collision, or something that could lead to a civil suit, there’s absolutely no difference to the defendant. Your lawyer has not worked out some ‘great deal’ by ‘convincing the prosecutor’ to ‘let you plead no contest instead of guilty’.
And frankly, if you had insurance, or weren’t at fault in the accident – that’s possible, even if you were hammered – there’s still no difference.
The only difference that counts is that a ‘no contest’ plea can’t be held against you in a civil case arising out of the criminal incident, while a ‘guilty’ plea can. If that’s a big deal to you, maybe it’s worth something. 99% of the time it won’t be.
And as long as I’m being suspicious, who else out there thinks the recent search phrase ‘preparing cops for an ALR hearing’ was done by a prosecutor? Late night search, and all I know is it was from a wireless broadband IP address, so I can’t be sure, but who else would Google such a thing?
What the heck… Never been a prosecutor, but I’m going to hand out some advice in that regard anyway:
Say, “Officer, thanks for showing up. The hearing’s about to start. Have you reviewed the documents? You remember the arrest? OK, great. You’ll get called as a witness in a few minutes.”
Pretty simple stuff. He’ll be sworn in under penalty of perjury. They taught him in the Police Academy to just tell the truth – well, didn’t they?
What other kind of ‘preparing’ could you (not a witness to the events in question) give to an officer anyway?
[OK, OK, I'm being something of a smart-alec. I know there are prosecutors that read this blog. Feel free to add comments on how to 'ethically' prepare a witness. You may do so anonymously, or leave your name. I'd be happy to hear from you.]
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