March 2008

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.

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.]

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.