May 2008

You can click the topics and tags in this blog to see my various thoughts on the over-punishment of DWI convictions in Texas. For ‘just a class B misdemeanor’ it’s inarguably the most penal of anything else in that category in the Penal Code.

And in general that’s a fair and relevant subject for DWI bloggers to write about.

Near the top of my list of DWI blogs on my RSS reader is Lawrence Taylor’s granddaddy-of-em-all DWI blog, simply titled “DUI Blog”. (Those Californians call it D-U-I.) Taylor’s blog is aptly subtitled “Bad Drunk Driving Laws, False Evidence and a Fading Constitution”.

Taylor always does a great job of bringing us the latest and greatest in ridiculous DWI/DUI prosecution moments. See for example his recent post: DUI  – While Walking a Bicycle.

And so with great anticipation I click on an even newer post titled “First DUI = West Point Expulsion + 1 year in Prison”. Here are his intro remarks on the article:

As Draconian as DUI penalties have become, one would nevertheless hope that the offense would not destroy the accused’s life, at least for a first offense.  Increasingly, one would be wrong…

Great another example of Lawrence’s niche topic, which I will sum up as “MADD has driven us all mad”. And of course he’s right – most of the time – first time DWI penalties are too stiff, and this one sounds ridiculous.

Here’s what Lawrence cut and pasted from the news article:

A U.S, Military Academy cadet was found guilty of drunken driving by a military judge and sentenced to dismissal from the U.S. Army yesterday.

The verdict came less than three weeks before Dixon was due to graduate with the class of 2008.

Dixon was formally charged in December with violating two articles of the Uniform Code of Military Justice: drunken and reckless operation of a vehicle, and conduct unbecoming an officer and a gentleman…

The judge sentenced Dixon to one year and one month confinement, dismissal from the Army and forfeiture of all pay and allowances.

Well, that certainly fits the bill. Perhaps getting kicked out of West Point is appropriate, perhaps it’s not – but one year is waaaay to high a punishment for “just a DUI” – especially a first time offense. Unreasonable, capricious, arbritary, unfair, in other words: great material for a DWI blog.

There were a couple of things that didn’t ring 100% true to me though. Number one, although I’m no expert on Military law nor what gets you kicked out of West Point, I thought conduct unbecoming an officer was a little odd for a DUI. That might actually be true and I’ll try to check on it with my military defense lawyer friends over the next few days. I’ll report back if anything comes of it.

But number two was the ellipsis. I use – or perhaps overuse – parentheses, dashes and all sorts of unnecessary punctuation. But the dot-dot-dot after the next to last paragraph preceding the part about punishment. What could it be? Well here’s that portion of the original article with the quoted paragraphs before and after:

Dixon was formally charged in December with violating two articles of the Uniform Code of Military Justice: drunken and reckless operation of a vehicle, and conduct unbecoming an officer and a gentleman.

Dixon allegedly fled the scene and giving a false official statement after being involved in a drunken driving accident while on temporary duty in Maryland last July.

The judge sentenced Dixon to one year and one month confinement, dismissal from the Army and forfeiture of all pay and allowances.

[Emphasis Added]

Ah.  That explains a lot now doesn’t it? Sounds like ‘conduct unbecoming’ and theoretically would justify a higher sentence. A defense lawyer could certainly argue that the sentence here was still too high, given all the facts, but hiding that and pretending this is the wave of the future for first time DWI sentencing?

Stick to the facts and don’t embellish, even by omission. DWI penalties are indeed too high as is. Don’t lose credibility by getting caught in what now seems like a deliberate misrepresentation. After all, that dot-dot-dot didn’t come out of nowhere.

Folks often suggest stories to me that they think I ought to blog about. For some reason, this seems to primarily consist of advice like “Did you see that [Paris Hilton/Lindsay Lohan/local celebrity/etc.] got [arrested/rearrested/etc.}? You ought to write about that…”

I thank them for the idea, and by the way – I really mean this – anything you see out there, please alert me if you think it’s good blogging material.

But (there’s always a ‘but’, isn’t there…)

  • I don’t blog about so-and-so got arrested for such-and-such. It’s
  • Not my style
  • Seems like making fun of people in the same situation as my clients
  • Not usually relevant to my ‘niche’
  • Overdone by the cut-and-paste bloggers
  • Not a case I think I know anything about, since all my info about it comes from the media

There’s about a hundred more reasons I don’t ‘do’ that type of blogging.

So today, someone tells me about a story in the Austin American Statesman about [——-] getting arrested. I wasn’t overly familiar with the name, but it seemed to ring a bell. Catalogued it as ‘not my type of post’ and went on my way.

Then I see that DWI lawyers in Frisco, Houston, and all the way to California have jumped into the fray, noting that the legislator responsible for the DWI surcharge in Texas was arrested for DWI and refused to take a breath test.

No Hunter, I am not representing Representative Krusee, so I’m free to comment on this story, but I still don’t want to add anything. I’ll toss out a little quiz though, for anyone who wants to play. Any of you DWI lawyers out there see anything odd about this PC affidavit?

On the ‘everyone loves the concept of comeuppance’ front, also piling on are Capitol Annex, Doing My Part for the Left, Texas Cloverleaf, Eye on Williamson, Williamson Republic, Stop the ACLU,  Old Government Road, Burnt Orange Report, TTC News Archives, Random Nuclear Strikes, Truth be Tolled, Interesting Discussions, Wilco Wise.

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.