November 2008

My friend and Lubbock DWI lawyer Steve Hamilton on a recent Q&A in a DWI voir dire:

So in this trial I asked the potential jurors about a hypothetical. What would you do if you only had one option, either convict an innocent person or set a guilty person free? Out of 20 people, 7 or 8 said they would actually convict an innocent person!!


I was actually somewhat shocked with the amount of people who said they would send an innocent person to prison. One person said he would do that and that he hoped he would be the person who was sent to prison to protect society.


I bet it’s a lot easier for that potential juror to say he’d be A-OK with being toted off to jail or prison for something he didn’t do… when he’s not the one that is being accused.

Following my post on the criminal defense lawyer’s dream juror comes an Austin American Statesman article “Internet aids trial lawyers doing background checks on clients, jurors”. What caught my eye of note towards DWI defense was this bit:

Sometimes the drunken-party photos are sufficient. Jurors whose Facebook page reveals a certain fondness for Sixth Street’s nightlife or appreciation of the local music scene tend to be sympathetic to her DUI clients, said Mary Ann Espiritu, an associate with Chris Dorbandt & Associates.


Stories about the government digging up information about criminal defendants and using their online postings against them are becoming increasingly common.  Of course, most of the time a defense attorney keeps or strikes a juror because of something they posted to Facebook or on their blog no one will be the wiser.  Kudos to Eric Dexheimer of the Statesman for exploring this less publicized aspect of internet research and the law.

Several folks – prosecutors and defense lawyers – that I see on a regular basis in the Travis County Courthouse have asked me why I didn’t blog about the No Refusal Weekend that started on Halloween. (Short version: Austin Police Chief Art Acevedo announced that anyone who was arrested for DWI and refused to take a breath test would be forced to take a blood test.)

I have written frequently about blood test DWI cases and the increasingly used police tactic – both in Texas and across the U.S. – of forcibly taking blood from suspects who refuse a breath sample.

But posting “advice” in advance of an announced “No Refusal” weekend isn’t – how do I say this? – it just isn’t my style.

First, I wouldn’t know how to do it without sounding like I was giving advice on “how to get away with DWI”. That would be (a) unethical – a DWI lawyer is still an officer of the court, and (b) utterly useless to boot – I doubt people read my blog right before deciding to go to Sixth Street.


I was interviewed by an Austin TV station for a story about the “No Refusal Weekend” and was asked the obligatory “What would you advise someone who was arrested this weekend? Should they take the breath test?” They chose to air my comment on a different aspect of the story rather than my standard “Get a Cab” response to that question. (Off topic here, but that fifteen second clip convinced me that the camera adds more than ten pounds, but I digress…)


Second, there’s not a one-size-fits-all answer to this question. Sure the gut-instinct response of any DWI lawyer is going to be “Never take the Breath Test!” – but if you’ve really (and I mean really really) only had one beer or glass of wine four or five hours ago… is that necessarily the best advice? Couldn’t you potentially save your license and win the DWI in that situation by taking the test? It’s rare – well under 10% of the time in breath test cases – but I certainly have represented many people who blew under .08.


Third, there’s a difference between writing about the legally and medically dubious policy of seeking warrants to forcibly remove blood from DWI suspects and broadcasting a specific warning that law enforcement is literally out for blood tonight. If I wrote a RICO blog I wouldn’t use it to broadcast warnings to either Tony Soprano or mafiosos in general that the DEA and FBI were raiding Satriale’s Pork Store tonight.


Frankly I think that APD is using these highly publicized “No Refusal” weekends in part to encourage people to think about taking cabs and using designated drivers on a regular basis – and from a purely public policy standpoint I understand why they consider that to be part of their job. It’s just not part of mine.

A few months back local Austin appeals lawyer Todd Smith asked me to speak, albeit briefly, at the Austin Bar Association’s monthly meeting. My assigned topic was a natural one: DWI. Lawyers who attended would be given credit toward their yearly CLE requirements.  I was honored and of course agreed.

I assumed that meant I should speak on how to defend a DWI, and so I talked about the initial interview process, the different types of court settings, the ALR process, various defenses to DWI charges and tried to throw in a few other nuggets before my time ran out.

Afterwards I stuck around and talked with people at the bar. I mean the serving-alcoholic -beverages type of bar, not “The State Bar of Texas” by the way. Yes the CLE was held in a bar, and yes, I was just about the only one without a drink in my hand. 

At any rate, I discovered quickly that while my short presentation was roundly complimented by those I visited with in fact most attendees had another reason for coming. Of course a divorce lawyer doesn’t really need to know how to defend a DWI; a good one will refer the case out to someone who knows how to handle that kind of case. (See: jack of all trades, master of none.)

I think every single lawyer there asked me some variation of the regular set of questions a DWI lawyer hears: 

  • Should I take a breath test?
  • Should I do the field sobriety tests?
  • What do I tell an officer who stops me after I’ve been drinking? 

I told everyone who would listen a few of my standard lines: (1) In Austin, a traffic violation and the odor of an alcoholic beverage on your breath earns you a trip to Travis County Jail. It’s an arrest everybody and charge them with DWI now, and sort it out later kind of world. And (2) It’s cheaper to rent a helicopter to fly you home than it is to get arrested for DWI in Texas, and that can be true even if your lawyer gets the charge dismissed before trial.


Not that it did any good. It was after 5 p.m. when the presentation started, so presumable no one had to return to work but then again I didn’t see anyone calling for a cab when they left. I’m certain I wasn’t the only one to drive home.