Austin DWI Lawyer & Attorney : Jamie Spencer Law Firm : Serving Travis, Williamson and Hays County

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.

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“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…

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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.

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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.

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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.

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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.

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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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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.

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In response to my post about DWI lawyers and blogs, a commenter who called himself DWI Officer wrote:

Jamie, it is interesting that you wrote, "I often wonder at why jurors are so ready to ruin the lives of defendants who are on trial for DWI..." Don't you think the defendant has some control over his/her life, such as making the choice to drive under the influence in the first place? It is no secret that driving under the influence is against the law. 

Just a bit of nitpicking first. Actually the portion of that post about jurors ruining lives was quoted from - and quite noticeably attributed to – Robert Guest, another Texas DWI lawyer, but one who practices in Dallas.

And the point of my post was actually that I felt I had learned something from Guest’s post that I could use in my own practice. (And thus, that lawyer blogs are worth reading.)

But I did quote that portion, so let me address it.

The short answer to the question is “Yes, obviously defendants who choose to drink and drive play a large role in getting themselves convicted”. As Bart Simpson once said about a fiasco he had entirely created “I can’t help but feel partly responsibly”.

But let’s take a look at the last sentence from DWI Officer’s comment:

It is no secret that driving under the influence is against the law. 

Well this is Texas, so let’s substitute ‘driving while impaired’, which is roughly the definition of intoxicated for DWI, for ‘driving under the influence’.

And while it may not be a ‘secret’ that DWI is illegal in Texas, it is a secret what intoxicated means.

First, no one knows when they are at or just above a .08 blood or breath alcohol concentration. Yes, sometimes they are or should be pretty certain that they are substantially over the limit – but no one knows where the line itself is.

Even when a defendant charged with DWI comes in to hire us, and is completely honest and truthful about what they had to drink over what period of time, even then the lawyer doesn’t always know.

So, yes, my DWI clients make decisions that get them arrested; not all of the decisions, but obviously the initial ones. They chose to drink alcohol and drive a vehicle some time later. But that, in and of itself, is not a criminal offense.

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