The Dallas Morning News Crime Blog ran a story recently about stepped up DWI enforcement for a holiday weekend:

The message: If you drink and drive during the Labor Day holiday, you will go to jail.

That’s the word from local law enforcement and the Texas Department of Transportation which launched its anti-drunk driving campaign in the Dallas/Fort Worth area Friday morning…

"Drunk driving is a serious issue, and we intend to come down especially hard on drunk drivers during the two weeks leading up to Labor Day holiday," said North Richland Hills police Sgt. Neal Maranto. "If you are drinking and driving, you will be pulled over and you will be arrested.”

Two commenters immediately noticed the substitution of “drinking and driving” for “DWI”. (They are not the same thing.)

Continue Reading Do Cops Get To Make Up New DWI Laws?

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

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

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

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

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

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

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

 

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

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

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

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

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

 

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

 

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

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

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

 

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

 

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

 

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

 

That doesn’t make sense.

 

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

Even as Austin Police Chief Art Acevedo prepares to ‘train’ his officers to forcibly take blood from Travis County DWI suspects, a judge in Tarrant County has ruled that prosecutors may not use blood results from forcible blood draws done by improperly trained cops.

And, as of now, that appears to be all police officers. 

In my previous post, I predicted that Acevedo’s attempts to ‘train’ his police officers to take blood from DWI suspects that refuse a breath test would run into some legal problems: primarily that they wouldn’t meet the legal standards laid out in Texas Transportation Code Section 724.017 and would therefore be subject to a motion to suppress the test results.

As Robert Guest points out:

These cops had some EMT training. However, the law states that EMTs aren’t qualified.

Police should not be drawing blood.

First, they have a vested interest in convicting the defendant, not attending to medical needs.

Second, if the cop actually kills or injures someone they have near complete immunity.

Finally, State law includes breath, blood, and urine for evidence of intoxication. What if the police start getting breath/urine warrants?

Ok. So the last one is not likely (yet). However, we don’t want police playing nurse anymore than we want nurses driving the SWAT tank.

In the comments to the local Austin story about “No Refusal Weekends” many local citizens complained that the police would open themselves to civil liability if Acevedo’s plan was implemented. Actually, I think Guest is right: it would be difficult to mount a successful civil lawsuit.

But while I love the nurses & SWAT tanks line, I’m not as confident as he is that forced urine tests are so impossible. Painful? Orwellian? Perhaps.

But then again, they could be coming to a city near you

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.

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.]

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.

DWI defense lawyers write and talk often about the inherent unfairness in penalizing DWI so harshly, when there is so much uncertainty about whether someone is guilty.

Criminal defense lawyers write and talk about how they answer “that question”…you know the one: How can you defend someone you know is guilty? 

Mark Bennett wrote a while back about jury selection in a DWI case in Houston, and for some reason, the short post has been floating around in the back of my mind. He listed off age, race, gender and occupation of the six folks that ended up on the jury, noting that it was an unusual mix for a Harris County jury.

I think the point of his post was that his client was really going to get a jury of his peers, rather than the usual makeup of a jury, and he ended the post with this line:

If the State can convince these six that my client is guilty of DWI, he might just be.

And finally, it came to me. The reason Mark’s words stuck in my head had nothing really to do with the point he was making. What struck me was this: even Mark didn’t know if his client was guilty or not.

Now, there are several reasons that a criminal defense lawyer might not know that his client was guilty, even when he was; the primary reason is the obvious one… the client doesn’t admit guilt, or doesn’t tell us the whole story.

But DWI clients are very often completely truthful with their lawyers, and yet still the lawyer himself doesn’t know.

As DWI lawyers often say, Driving While Intoxicated is an opinion crime. I think Mark’s (unintentional) point proves that.

Randy England has an excellent post that illustrates the dangers of applying “worst case scenario” thinking to every situation. But before we get to the article, let me put on my Modest Proposal hat to see whether I can rile you up and get your Tough-On-Crime legislative juices running…

#1) Misdemeanors are ‘just’ misdemeanors, but if someone keeps committing misdemeanors we ought to elevate the offense to a felony. After all, if you haven’t learned your lesson, you need harsher and harsher punishment. In some (perhaps all?) cases, the second time you commit a misdemeanor, it should be a felony.

#2) If someone dies during the commission of a felony, the charge should be elevated to murder. Yes, murder usually requires intent, but it should be foreseeable to all that committing a felony automatically puts everyone in jeopardy, so… felony + death = murder.

I don’t need to tell you that we already have these rules separately, and some of you can guess what will happen when we combine them.

I’ve blogged before about the (il)logical dangers of imprisoning people for life without proving any intent, and we see more and more stories in the news of Texans prosecuted for Felony Murder based on DWI. The state gets there by proving DWI + 2 prior convictions for DWI = felony, and felony + dead body = murder.

Yes, there’s already a more specific statute for Intoxication Manslaughter, whereby a defendant convicted of DWI that causes death can be punished up to 20 years in prison. But that’s not enough for the Life in Prison crowd. So, we came up with the legal fiction of misdemeanor DWI elevated to felony with priors + dead body = murder.

And, because no one has sympathy for defendants convicted of DWI, there is no general outcry about over punishment in these cases. So that leads to murder convictions in DWI cases, without any intent to kill.

But wait, couldn’t the same reasoning be applied to non-DWIs? Let’s get back to Randy’s post “Should driving while license suspended result in a felony-murder charge?

You may have heard of defendant Kevin Fisher in Kansas City who is charged with felony-murder because he was in an auto accident and his passenger was killed. No Drugs or alcohol were involved. The reason he is charged with murder is that he was driving on a suspended license, normally a misdemeanor–but in his case, a felony because of his prior criminal record…

Apparently in Missouri, DWLS can be elevated to a felony based on a defendant’s prior history. (In Texas, it ‘maxes out’ at a Class A misdemeanor – that is, ‘only’ a 1 year in jail maximum sentence.)

But as Randy points out, the law requires a causal connection between the ‘felony’ (or Driving While License Suspended, in this case) and the death. But the State has been known to stretch that pretty far sometimes:

If I rob a bank with a toy gun and the guard accidently shoots and kills a bystander while trying to stop me, I get charged with felony murder because someone was killed as a result of my felony.

But should the same apply if I try to forge a check at Breaktime and the clerk gets suspicious and calls the manager from the back room. On the way out the manager slips, breaks her neck and dies. All because of my forgery. Am I now to be tried a murderer?

What if they called the police and the officer runs over a baby on the way to investigate?

Worse still, many folks don’t know that their licenses are suspended in the first place. Couldn’t the state then proceed with murder charges, when the underlying misdemeanor itself is very questionable? Randy asks the same thing:

Some may argue that [the defendant] was a bad driver, so that puts him on a par with a drunk driver. But that is not necessarily so. One can be suspended for many reasons which have nothing to do with dangerous driving (e.g. failure to show proof of insurance or getting behind on child support).

Not only that, a person can drive while suspended without actually knowing that he is suspended. It is considered sufficient that you should have known you were suspended. That means [the defendant] can be guilty of murder on a standard of recklessness. Normally, a reckless killing would not be murder, but manslaughter.

I repeat: it is [illogical, unfair, senseless… you pick] to apply “worst case scenario” thinking to all defendants.

Because, when you do, you get a glorified traffic ticket, like DWLS, prosecuted as a Murder. And on its face, that has to be the wrong result.

Article 17.441 of the Texas Code of Criminal Procedure requires a magistrate to order a defendant being released on DWI 2nd or Felony DWI bond to install an ignition interlock device on any vehicle he owns or has access to.

What’s an ignition interlock device? From the statute:

…a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator

The condition will be imposed on anyone arrested for DWI with a prior conviction, whether the defendant is released on personal bond, cash or cash deposit bond, surety or bail bond. In Austin, the judge that orders the condition will require a meeting with the County Pretrial Services office within 24 hours of release. The person is then given 30 days to show proof that the interlock has been installed.

Failure to install the device will result in two consequences. First, the bond will be revoked, which will result in a warrant for the person’s arrest. And second, if DPS does not receive proof of compliance, along with another fee, the person’s license will be suspended until such proof is shown.

(Click for contact information about the 3 companies that Austin DWI defendants can use to install an interlock device on their vehicle.)