September 2008

[Question via email.]

Since I don’t even know the jurisdiction this question comes from it’s pretty broad but let’s answer it from the Texas DWI perspective.


In most Texas DWI cases the officer will read the subject a form called the DIC-24 entitled “Statutory Warning”. It covers the various driver’s license penalties for refusing to blow, blowing over a .08, or being a minor with a detectable amount of alcohol in your system. The warnings state those possible suspensions are “not less than” 180 days, 90 days and 60 days respectively. 


The “not less than” part obliquely refers to the possibility of longer suspension periods for folks with prior alcohol related contacts – which include but are not limited to prior ALR suspensions and prior DWI convictions.


The DIC-24 form usually ends with a portion where the officer checks “I am now requesting a specimen of Breath and/or Blood” followed by two checkmark portions:


  • Subject refused to allow the taking of a specimen and further refused to sign below as requested by this officer.
  • Subject refused to allow the taking of a specimen as evidenced by his/her signature below.


In theory the officer is supposed to ask for the breath specimen and then ask the subject to sign the form indicating their refusal.


If the suspect refuses to sign, the officer marks the form as a refusal to blow and a refusal to sign.


But I’ve certainly had cases where this procedure wasn’t followed. The unfortunate thing for my client is that even when I can prove that the officer didn’t follow procedure correctly it doesn’t necessarily lead to all that big of an advantage in the case.


It can show that he is unfamiliar with the DWI process – which in turn can create doubt as to the grading of the field sobriety tests – but it’s not going to get a criminal judge to throw the DWI charge out against my client. In other words, the state can still proceed to trial.


In most Austin DWI cases the actual reading of the DIC-24 and the verbal refusal by my client will be on tape; so the state can still legitimately argue it as a refusal. (And I can argue that refusing the breath test is a sign that you have not lost the normal use of your mental faculties since agreeing to it is almost always a bad idea.)


As for the ALR hearing, there are too many variables to predict whether this scenario would lead to a negative finding – that is a finding by the administrative law judge that DPS is not allowed to suspend my client’s license. But it could be a good start.

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.

Labor Day. A day off for working citizens. The end of summer and the beginning of fall. Still the start of the football season and in decades past the last day before school. Barbeque. Fireworks. The whole nine yards.

After my last Blawg Review the anonymous editor assigned me this particular slot for my next BR. Which of the above listed associations with Labor Day could have been his reason? 


Maybe he thought I’d follow a great American tradition of the work day… showing up late? (This Blawg Review is being posted well after the midnight deadline – sorry about that.)


Or did he know that when I’m asked what I believe in, the litany often includes “I’m for labor over capital”?


Ah, wait a minute. I’ve got it. Perhaps our dear ‘Ed.’ has a slightly off center sense of humor. He’s given me this weekend’s assignment because I’m a DWI lawyer. (What can I say? It seemed like such a good idea when he proposed it a year ago.)


Welcome to the Labor Day Edition of Blawg Review. 


Work Related


Res Ipsa Blog gives us some helpful hints for how to use Firefox when we get back to work. And Jordan Furlong’s suggestion that non-lawyers can do the work of lawyers if it’s ‘good enough’ might put some attorneys out of work all together.


Why do you work? Proabably at least in part to get paid. But if there’s no government in Antarctica taxing your paycheck you don’t get the normal benefit of excluding eighty thousand dollars in income as earned in a foreign country.


And speaking of getting paid, how many long time lawyers would have liked Dan Hull’s suggestion that first and second year associates be paid in experience rather than dollars when they were in law school? (Yeah, yeah – I know it sounds like a good idea now that you are partner…)


Every job has its requirements. Dre Cummings writes about the LPGA’s new policy requiring all tour players to speak English proficiently or face suspension.


Off Work Related


Want to see a movie on your day off from work? Quick – go see the newest Bollywood blockbuster Harry Puttar. (Spicy IP tells us Warner Brothers has a legal beef.)



After a lifetime of laboring for the boss, we can all look forward to retirement, that is unless we read Jonathan Rosenfeld’s blog alerting us to all kinds of problems in the nursing home community.



Criminal Law / DWI


Stephen Gustitis starts a series on Texas executive clemency, i.e. how to get a pardon.

Shawn Matlock posits the MADD’s slogan ‘Drink. Drive. Go to Jail.’ is meant to contaminate jury pools, rather than to deter.


Troy Burleson answers the question DWI lawyers hear from their clients: “Why did the officer say I couldn’t talk to a lawyer?


Lawrence Taylor writes again on a topic coming to a community near you: DUI cops with needles. San Diego DUI Blog asks ‘Isn’t it Time to Change DUI Penalties?


To tell or not to tell? Mark Bennett expounds on the theory of what to do with a Nasty Little Surprise in a criminal case. Gideon follows up with his own thoughts on the subject.

Walter Reaves asks ‘Who is Responsible for the Cost of Indigent Defense?


Grits for Breakfast catches Austin Police Department hyping ‘stranger danger’. Mark Draughn at WindyPundit notices we are becoming a police state. A Harris County Lawyer loves to be in trial.


Victoria Pynchon documents the FBI’s latest efforts to overcrowd our jails by arresting bloggers where at best a civil suit would do, and offers us tips on what to do when we see the agents arriving on our own doorsteps. Susan Crawford writes about battle over nondiscriminatory Internet access.


Mike Masnick alerts us that a New Zealand judge has banned the internet publication of the names of two men accused of murdering a child. In the U.S. we’d call that a clash between the right to a free press and the right to a fair trial – and I fell sure in predicting that the press would win such a battle.


Jeremy Richey tells the story of a Kentucky prosecutor who can’t take (or figure out) a joke.

Overlawyered posts about the defendant (or his insurer) suing the city for not properly taking car of his car in the impound in a fatal hit and run case.


QuizLaw posts an oldie but a goodie from the internet DWI archives.


Random (but still included)


As Labor Day precedes the start of the NFL season, Scott Greenfield writes about recently retired New York Giant Michael Strahan’s child support appeal. On a side note, he also takes his approximately 40th consecutive win for Headline-of-the-Week with ‘Three Ponies is Enough for Anybody’.


Professor Randazza suggests that if wearing a jacket that says “Fuck the Draft” was found to be protected speech by the Supremes in 1971, the Department of Homeland Security should have known that the t-shirt slogan “” was A-OK.


Mark Herrmann gets to say “I told you so” to the Volokhs when a terminally ill plaintiff succeeded in getting a judge to issue an injunction ordering a drug company to provide him with an unapproved, experimental drug.


David Harlow writes about an OIG advisory opinion barring a contractual joint venture.


Is it against Google’s terms of service to sell links? The comment section of Kevin O’Keefe’s post about FindLaw lights up. And Paul Ohm writes about the possibility of lawsuits when free wi-fi terms of service are editable by the user.


That’s it for now folks. Blawg Review has information about next week’s host Legal Literacy, and instructions how to get your blawg posts reviewed in upcoming issues.