February 2008

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.

Despite the best efforts of some legislators in Austin to whittle away at the protections of the Fourth Amendment, DWI roadblocks or sobriety checkpoints are still not legal in Texas.

But they are in Missouri, and Randy England notes an interesting tactic used there:

The police sometimes get clever in setting up such roadblocks. A sign on the highway will say “Sobriety checkpoint ahead – be prepared to stop.” The police then setup the roadblock–not on the highway–but at the next exit.

The idea is that drunk drivers will “select” themselves by taking the exit to avoid the roadblock. Like checking into a roach motel. Too late, the driver realizes, he put his head in the noose.

Of course, once the police have a car stopped and the window is rolled down, the party is over in the time it takes to smell the driver’s breath.

Well, I have to admit it’s clever.  And every 2 years when the legislature meets, it’s more and more likely to be coming to us in Texas.

…and sit back and enjoy yourself.

Bear with me. I promise to get back to that.

So, honest to goodness, I’m sitting here skimming through law blogs on my RSS reader reading a Scott Henson comment on a Sentencing Law and Policy post that links to a Texas District and County Attorney Association thread about how to enhance a repeat and habitual DWI offender and I come across none other than this observation by Williamson County District Attorney John Bradley:

Does your reluctance come from thinking he just has a drinking problem? There is nothing in the disease of alcoholism that forces a person to drive after achieving a drunken state. The decision to drive, especially after 11 prior convictions, is a selfish decision to endanger innocent people.

And I say to myself “I should blog about this”. Not because I disagree, but precisely because I agree, at the very least in part. Driving While Intoxicated, especially when it reaches the 3rd offense Felony DWI level in Texas, is highly correlated to the disease of alcoholism.

Yet, many alcoholics have no DWI convictions. Because they don’t drive after drinking.

Most DWI lawyer blogs rant about the unfairness of punishing an alcoholic for being a victim of his disease. I’ve never done that. [A quick search of this site shows no previous hits for the word ‘alcoholism’ – although, after I finish writing this entry will come up.]

Bradley has a point that a lot of ‘DWI bloggers’ ignore: the State is attempting to punish the choice to drive while impaired, not the inevitability of the alcoholic voluntarily intoxicating himself. I’d put it differently than he does – and after all, that’s understandable, I’m a defense attorney not a prosecutor.

It’s a touchy subject at best though for me. I have clients who read my blogs, and obviously when I post something, they’re not completely out of my mind. There’s nuance in this subject too. If I write about Bradley’s comment, should I start proving my defense lawyer bona fides, you know, ‘just in case’. But defense lawyers aren’t pro-crime. I should blog this. Contrarian by nature, I put it on my blogging to do list.

So I postpone a decision on whether or not to riff on this subject, probably out of laziness more than anything else, and move on to one of the next items in my RSS reader. It’s The Adventures of Steanso’s latest post.

The woman indicted for Intoxication Manslaughter in the death of Jeff Wilson passed away of cancer before standing trial.

Jeff was one of the most liked people in the Travis County Courthouse. He was a misdemeanor prosecutor for a few years, and was eventually hired by top notch defense attorney Joe Turner. He was a local Austin blogger as well. And he was a friend.

To heck with it. 

Lots of DWI lawyer websites dispense ‘advice’ on how not to get arrested and/or convicted of DWI (don’t blow in the machine, don’t do the tests, be polite but say as little as possible, etc.). I’ve never written a single word on the subject, mostly because I think it’s plain silliness. For one thing, potential clients don’t need that advice: they have already been arrested. If you’re going to be their lawyer, you’ve got to play the cards you’re dealt.

For those who are trolling the internet, looking for ‘How To’ advice about beating your future DWI… there’s only one good piece of advice: don’t drink and drive. No, it’s not actually against the law in Texas to consume alcohol and get behind the wheel. But never driving after consumption of alcoholic beverages is the only way to ensure that you’ll be safe from arrest.

If you need more reasons, I’ve said it before: it’s cheaper to rent a helicopter to fly you home than to get arrested for DWI – and no, I’m not just talking about my fee.

As for the title of this post that I promised to get back to? Here’s the entry from my other blog last July entitled In Memory: Jeff N. Wilson 3/4/74 – 7/10/06

Thanks to Steans for reminding me of the anniversary.

When I came back from the memorial service last year, for some reason, I set the card that was passed out at the ceremony on the shelf next to my computer. It’s still there. I read it every once in while.

It’s from Blogo-de-Wilson, and I think it might have been his best post ever. On learning of Billy Preston’s death, Jeff wrote (in part):

59 is young, folks. You only get one shot at this life. Don’t waste it. It could be gone any day. Travel. Blow some money. Go see some music. Make some music. Kiss someone on the mouth (preferably someone who won’t sue you).

Read a book. Write a book. Whatever. Just don’t take it for granted. No one lies on their death bed wishing they had spent more time at the office.

Grab Let It Be (preferably on vinyl) tonight, and sit back and enjoy yourself.

Humor. Joie-de-vivre. Totally Jeff.

The twins turn one tomorrow. When it comes time for me to have the father-son(s) talk about Carpe Diem/Seize the Day/Make the Most Out of Life… I’ll tell them about Jeff. Hopefully, I’ll still have the card to show them too.

That card is getting a little dog-eared, and the boys are still more than a decade away from driving, or for that talk. But oddly, their birth is actually inextricably linked to Jeff’s memorial in my mind. I had spent about 36 straight hours at the hospital and came to the ceremony still wearing the ID bracelets on my wrists that would eventually allow me to prove I was the father and take them home.

Steanso said it best already: Jeff, you are missed.

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.

Well, plenty, judging by this week’s Super Bowl themed Blawg Review over at What About Clients:

Your office a little quiet today? Did your prized ex-U.S. Supreme Court clerk Weldon in Boston call in, maybe from the Newton slammer, despondent and too-drunk-to-bill? Or is it just the "cold and flu" season? A useful clue is offered at Strategic HR Lawyer in Super Bowl Monday "Flu" – 1.5 Million to Call in Sick".

Still, Boston as a sports town has really come into its own. What’s up? See for an explanation "Boston Forever", at Jeffrey Standen’s The Sports Law Professor.

No one ever said Super Bowl was pretty–or even legal. Howard Friedman’s Religion Clause points out that Large Church Super Bowl Parties Violate Copyright Law", according to NFL lawyers.

But Super Bowl may be energy-efficient. Anthony Cerminaro at BizzBangBuzz, which focuses on technology startups and emerging growth companies, notes that "Power Use Drops During Super Bowl".

I added my own thoughts on underdogs and criminal defense lawyers as well.