July 2007

Hunter Biederman has just launched his Frisco DWI Lawyer blog, and he has certainly started it off with a bang. For those of you that don’t know, Frisco is north of Dallas, Texas.

Among other topics, he’s already posted about:

Texas DWI Lawyers, criminal defense lawyers, law bloggers and anyone else interested can subscribe to his blog at this link.  Based on the start, I’m looking forward to reading more of his posts.

Or perhaps… in my corner of the blogosphere, “Why Lawyers Should Read Lawyer Blogs”. (Because they can always improve their skills.)

One of the great things about law blogging is that done correctly, it requires that you read other law blogs. I’ll get to how that potentially helps me as a practicing DWI lawyer in Austin, Texas in a moment, but let me start with the first point.

How do you learn to write a blog? By reading other blogs. Plain and simple, end of story.

This is simply a subset of the well known axiom that the best way to learn to write is to read. And read. And then read some more.

Copyblogger’s Brian Clark recently posted his “10 Steps to Becoming a Better Writer,” suggesting the answer was to write, write, write.

The comments section of the post is the most interesting though, because several responders (who understood his basic point) exhorted others to read as well as write.

Blogs are written differently than novels, short stories, biographies, historical fiction, technical writing, etc. Blogs are written differently than anything else. So the best way to learn to blog is to read blogs.

But there’s more to it than that. At least for lawyers. Blogs provide the perfect medium for an exchange of ideas about, say, criminal defense.

Professionals can learn from others in their field, and those whose egos won’t let them become versed in new techniques and fresh ideas are bound to stagnate and lose their edge.

For example, I recently ran across the Lubbock DWI blog, written by DWI lawyers Stephen Hamilton and Nicky Boatwright

They posted about inaccuracies and problems with the Breath Test Machine used in Texas, and started their post with:

Over the years, the machine used to guess at a person’s blood alcohol concentration has changed.

Breath testing is simply trying to guess what a person’s blood alcohol concentration is at the time the test is administered. The current guesser is called the Intoxilyzer 5000.

I’ve practiced DWI defense in Austin for over ten years, so I’m well aware of the potential for disputing breath test results. But I learned something from the post, not about blogging, but about DWI defense, and a new way of arguing a case to a jury:

…the machine used to guess at a person’s blood alcohol concentration…

Beautiful turn of phrase. One that accurately describes the Intoxilyzer 5000. And a quick and easy way to accurately describe the machine to a jury, if necessary. 

So, to recap: reading blogs is the way to learn to write them. But even if you just want to become a better [fill-in-the-blank], don’t be afraid to soak up ideas from other people, and use them in your practice.

One last point: I could have titled this post “Why Lawyers Should Read Other Law Blogs,” or even more generically, “Why Bloggers Should Read Other Blogs”… because the basic point is the same, no matter what section or niche of the blogosphere you inhabit, want to blog? Start by reading other blogs.

Just received an email from the National Association of Criminal Defense Lawyers about this year’s annual DWI seminar.

First thing I always do is look at the agenda to see who is speaking and on what topics. This seminar is always “dual track” meaning sometimes you have to pick and choose who you want to see, because multiple presenters speak at the same time in different rooms.

If I were forced to choose now, I think my initial inclinations would be to see and hear:

  • Jan Semenoff on The Top 10 Things You Need to Know About Breath Alcohol Testing
  • Jim Nesci on SFSTs: Lies, Damn Lies and Statistics
  • Flem Whited on Winning at Every Level

And the most difficult choice award (because they are speaking at the same time) goes to…

  • Jan Semenoff on Raising Evidence to the Contrary: Simulation Studies in Support of DUI Defense, and
  • Tommy Kirk on Opening Your Trial with a Royal Flush

That doesn’t even factor in the multitude of choices available for the Saturday workshop sessions.

True, very often we hear much of the same things at these seminars, especially when you have been to as many as I have. But I honestly believe it never hurts to go. DWI defense can be an uphill battle, and our clients potentially face overly harsh penalties if and when they are convicted.

But listening to other good lawyers, other ideas, and just the plain old fashioned pep talk can reinvigorate me, and get my competitive juices flowing at full speed once again.  And for any DWI lawyers that have never gone to this seminar, I have only one thing to say: Go.

Based on this lineup, I can tell already that I’m going to be making some game time decisions this year.

Dallas DWI Lawyer Robert Guest “I donate to MADD”:

Not intentionally… MADD is stealing my tax dollars. The National Highway Traffic Safety Administration gave MADD $400,000 of our money to "monitor drunken driving" proceedings in court.

This is wrong on many levels.

1. Watching court is free. Anyone can watch court. It costs nothing. Why they need $400k is beyond me.
2. MADD has an annual budget of $52,000,000. They don’t need taxpayer money.
3. MADD already received over $700,000 from the Department of Justice. How much tax payer money do they need?

And, uh, I don’t know how else to say this, but… why would they need to ‘watch court’ in the first place? Smacks of intimidation tactics, doesn’t it?

‘Hey Judge, never mind the Constitution, due process, reasonable doubt, etc., we are a powerful lobby, and we donate.” 

Or perhaps, if you’re feeling a little more cynical/sinister, ‘Don’t make us donate to your opponent in the next election!” (Anyone else having flashbacks to the Sopranos episode where one of Tony’s enforcers ‘bumped into’ a sitting juror in a corner store?)

Houston DWI Lawyer Mark Bennett follows up with the text of the New Mexico governor’s press release bragging about the use of state funds on this project, and adds:

What do you suppose "positive change" is going to mean to MADD’s courtwatchers? More convictions, faster, and more punishment. After all, if your sole goal were "reduction of alcohol-related crashes," you could do away with due process, convict every person accused of DWI (regardless of the facts) and put them all in prison…

Like MADD, I’d like to reduce alcohol-related crashes. That’s why I won’t drive after having more than one drink. Unlike MADD, I don’t think that reducing alcohol-related crashes is more important than due process or common sense.

Why would Mark say he won’t drive after one drink? Well, it is the safest thing to do certainly. After all, the law doesn’t say you are automatically not guilty of DWI even if you are below a .08 Breath Alcohol Concentration.

But I’m also guessing that HPD uses the same rule that Austin police do when making DWI arrests: A traffic violation and the odor of alcohol… arrest now, and sort it out later. You can beat the rap, but you can’t beat the ride. (Also, I suspect some officers think that while they may not have enough to convict, forcing the driver to hire a DWI lawyer is in itself punishment.)

As a defense attorney you can only watch so many video tapes of (some of) your clients performing very well on the Walk & Turn, One Leg Stand, and other field sobriety tests before you realize… the law doesn’t say Zero Tolerance for adults, driving and alcohol, but the police often make arrest decisions on that very basis.

I’m like Mark. I too am not “pro drunk driving”. And I have occasionally praised MADD for some of their marketing campaigns. But is this really an appropriate way to spend taxpayer money?

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.

Question: My wife and I were pulled over in August 2005 on a rural road approximately 5 miles from my house by DPS who at the time was going the other direction on a two lane road. 

We had been out seeing my wife’s favorite band and it was her night out.  He asked me if I know what we were pulled over for and I say no.  License plate light out!  So no big deal until he shines the light at my wife and says, “What’s wrong with her?”

"She’s sleeping,” I say.  Well he asks where we have been and I’m truthful, her night out and I’m the designated driver.  He proceeds through the get out of the car deal, does the eye test, then the one leg to 30, then walk the line….then the finger count….no problem here…..

He goes and finally wakes up my wife and talks with her.  Well she’s hammered of course.  Then he comes back and arrests me after I refuse the breathalyzer. 

Then he arrests her for public intoxication.  I convince him to let a friend come get her and the vehicle.  He does and takes me to the pokey.  Since then my lawyer has sent three letters to the court letting them know when he will be out of town.  The court has never sent anything to me at my home or office. 

Since it has been two years, can I stroll down to the DPS and get my license or will they snatch me up?  I appreciate any input. 

Reply: What county is this from?  Also, you are saying it has been almost two years from the arrest?  The ALR suspension would usually be over well before then.  (Unless there are priors, perhaps…do you have any prior DWI arrests? or prior alcohol related license suspensions?)

Follow Up: I had one prior when I was 20 and I was 35 when I got this one.  Yes two years since arrest in August.  It is in [Anonymous] County.  I got my license suspended for not taking the breathalizer. 

I haven’t done anything since.  No license, [rest of sentence deleted]. But if I can go and get it without being harassed I would love to do so.

Reply: Well, the 15 year old DWI can now (unfortunately) be used to enhance your new DWI charge to a DWI 2nd.  It used to be the law that after 10 years, new DWI charges would be filed as Class B ‘first offense’ DWIs.  But that’s no longer the case.

But ALR (pretrial Driver’s License Suspensions arising out of the DWI arrest) only started in 1995, so you shouldn’t have any enhanceable alcohol related contacts.  If there were prior DWI related license suspensions within the applicable time period, DPS would have sought a 2 year suspension.

I asked because based on your facts, it sounds like DPS probably sought a 180 day license suspension, which would have started either 40 days after the arrest, if you did not request a hearing to contest the suspension.  And if you, or your DWI lawyer did request the hearing within the first 15 days of the arrest, certainly the hearing would have happened and the 180 day suspension is probably up.  I know that would be the case for an Austin DWI arrest, but I am unfamiliar with practice and docketing in your neck of the woods.

If you got an occupational license during the original ALR refusal 180 day driver’s license suspension, and filed it within the 30 day grace period with Texas DPS, then they would have made you pay the $125 reinstatement fee at that time.  That would mean your license was no longer suspended.

If you never filed an occupational, or never went to pay DPS the reinstatement fee, then that is still owed, and will be necessary to get your license back.

Sounds like you’ve got an attorney helping you on the DWI.  You probably need to contact him for more specific information.

One last note:  Looks like you found my DWI blog by searching for "Statute of limitations" and "DWI Texas".  You certainly need to find out from your current DWI attorney whether or not the State has filed a complaint and information officially charging you with the DWI at your local County Clerk’s office.  If the full 2 years runs without them doing that, you should have a legal defense to being prosecuted for the DWI criminal charge.

Police in New York State have admitted to arresting and charging drivers with any alcohol on their breath, although the law only criminalizes impaired driving. Well, that’s my DWI defense lawyer take on the story, but you tell me:         

"If you’re going to drink, do it at home, designate a driver or hire a taxi. We’re not saying there’s anything wrong with drinking – just drinking and driving," said state police Lt. Douglas Larkin of Troop K in Westchester…

Once the driver rolls down the window, (the officer) said, it’s easy to tell if he or she has been drinking.

"The first thing that hits you is the odor of alcohol -it’s so obvious," he said. "I’ve had a few drivers who know they’ve been drinking and try to play it down, but the odor on their breath gives them away."

“Drinking and driving.” And having alcohol on your breath. These are the main standards it appears that police use to make an arrest for DWI.

But the law itself doesn’t say having a detectable odor of alcohol on your breath and operating a motor vehicle is illegal (unless you are under 21 – then it’s a DUI in Texas). Driving while having lost the normal use of your mental or physical faculties, due to the introduction of alcohol, a controlled substance, etc., is illegal.

On a side note, I’ll add this: I advise friends and family, and anyone else who asks, that in Austin, DWI arrests are made using this same standard.

If you are pulled over for a traffic violation in Austin, Texas, and the police officer smells the odor of an alcoholic beverage on your breath, you are very likely going to jail for DWI. I have heard testimony from Austin Police Department DWI Task Force officers that is substantively the same as what is quoted above.

Driving While Intoxicated Hung-Over…from CrimProf Blog:

In a ruling that expands the legal meaning of "under the influence," a state appeals court Thursday ruled a hangover is also an impairment — whether it’s from drinking alcohol, taking cocaine or other substances.

The judges, in a 3-0 decision, ruled a driver who had taken cocaine but was not intoxicated when police stopped him, was still a danger to other drivers. While the cocaine was no longer active it was the "proximate cause of his impaired behavior," the judges found…

"The potential impact is enormous," said John Tumelty, who represented the driver, David Franchetta, in the case.

"Where do you draw the line? Even though a guy is not high and a drug is not active in the guy’s system, if he’s tired and sluggish and hung over from previous use, does that makes him under influence? If they say a drug hangover makes you guilty, what about an alcohol hangover?"

Wow. At least this doesn’t apply to Texas DWIs. (Yet.)

When I relate stories about the criminal ‘justice’ system to her, my wife often asks me, “Doesn’t the law have some common sense written into?”

Apparently not.

[Hat Tip: American Tradition]

Let’s say you are arrested for DWI in Austin, Tx, and face 2 cases: (1) the criminal DWI charge, and (2) the Driver’s License Suspension Hearing.

In Austin, the Driver’s License hearing will be probably be held before a resolution of the DWI, so again, continuing our hypothetical, let’s say the 180 day driver’s license suspension is imposed for your refusal to take the breath test. Remember, you were already under arrest for DWI when you were asked to submit to a specimen of breath or blood, so you made a wise choice as far as the criminal charge is concerned to refuse the test.

Now let’s say that your DWI lawyer goes to court, and prior to trial, works out a deal with the prosecutor that they agree to reduce the charge of DWI to Reckless Driving, or maybe even a traffic ticket. The benefit to you is that you are assured of not being convicted of DWI.

So you accept.

Well, you may still be under that DL suspension, driving around town with an Occupational License, but not 24/7 like you are used to. The suspension will be lifted, right?

Wrong. Only a ‘Not Guilty’ verdict at bench or jury trial will reverse the suspension now. Texas Transportation Code Section 524.015 states, in part:

…the disposition of a criminal charge does not affect a driver’s license suspension under this chapter and does not bar any matter in issue in a driver’s license suspension proceeding under this chapter… A suspension may not be imposed under this chapter on a person who is acquitted of a criminal charge under Section 49.04

A ‘dismissal’ of a DWI charge is not an ‘acquittal’ (i.e., not guilty verdict), and therefore the license will stay suspended for the original term imposed. An in jurisdictions outside of Austin, where the DWI case may run quicker than the suspension hearing, you will still be facing the loss of your license.

In my experience, most clients prefer a certain outcome in terms of getting the DWI dismissed, than to risk it all by rolling the dice at trial. But it’s something to think about. And if you are facing DWI charges in Texas, your lawyer needs to be able to lay out all the options for you.