Received a big box at work today and didn’t have the faintest idea what it could be. Since it was addressed to me, I opened it up, and tada… two bottles of wine.

It was a thoughtful gift from Houston DWI lawyer Mark Bennett. I had done some local co-counseling of a DWI/POM case here in Austin for a client he was representing. Mark did all the heavy lifting; I just went along for the ride.


Of course, Mark didn’t just send me any 2 bottles. They were from an Australian vineyard and named “The Guilty” and “The Innocent”. I read the label of “The Innocent” first:


The Innocent is produced from a single vineyard. Due to its limited production only a lucky few will ever get to taste it.


Aha. Clever commentary on the sometimes overwhelming and unfair advantage the State brings to bear on those it chooses to criminally accuse? Expecting something equally clever, I read the other label.


Apparently only the “lucky few” will get to taste that one too.


As for Mark’s case? Well, the only disappointment was that after several settings on the jury docket the State eventually offered his client a deal that was too good to refuse: dismiss the DWI outright, plead to a lesser offense, no conviction (12.45) for the marijuana, and backtime credit, no probation, no community service, etc.


I had hoped to learn a thing or two by sitting second chair on the voir dire, if not the whole trial. Oh well. Maybe next time. And thanks for the tipple, Mark.

…is a bad idea.

I won’t link to it, but I just ran across an attorney’s web page that I hope was not written by him. (N.B. It was not an Austin lawyer.)


The website first acknowledges that in today’s world you need to drive: work, school, church, groceries, etc., and that one of the consequences of a DWI arrest can be loss of driver’s license, and then the attorney advertises that he will:


“effectively argue your need for a license at the ALR hearing”


In other words, hire me, and I’ll let the judge know that your license shouldn’t be suspended because you really need it.


Excuse me? Are you – that is, the lawyer, not the client – are you serious?


It’s not uncommon for clients to suggest that I should stress to the Administrative Law Judge that they really need their license, and perhaps if we demonstrate exactly how much they have to drive that they can avoid a suspension. Alas, I have to disabuse them of the notion that the ALR process is concerned at all about their essential need for a license; that’s what an occupational license is for, and those aren’t issued at the suspension hearing, or even by that type of judge.


Now it’s likely that the lawyer didn’t write the webpage content himself (see examples of comment spamming by marketers on blogs here and here). But you’d at least think he would have read it by now.

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.

There are certain boring yet inevitable questions that often begin an examination of a police officer in a DWI (by a prosecutor) or an administrative license revocation ALR case (by a defense attorney):

  • State your name for the record please…
  • You’re employed by Austin Police Department?
  • Any prior law enforcement experience?

 A defense lawyer usually wants to know how many arrests a particular officer has made for DWI and how long he has been a peace officer at all. The theory is that the fewer arrests he has made or the shorter period time he has been doing this, the more likely it is that his opinion that the client was intoxicated is suspect.


And while the defense lawyer might not bring out the possible experience of an officer at jury trial if it is extensive – that is, if the prosecutor hasn’t done that already – there’s sort of a no harm/no foul rule when it comes to asking questions at an ALR. After all, the odds are stacked against you, there’s no reasonable doubt to rely on, and in a refusal case DPS doesn’t even carry the burden of proving that your client was actually intoxicated – simply that he was properly offered a breath test and refused.


Basically, if you’re going to win or lose the driver’s license hearing it won’t often be because of that painful one-question-too-many moment. At any rate, most ALRs by defense attorneys start with these type of pro forma questions.


So as I’m taking a break in the back of the room this afternoon waiting for my client’s ALR to start (brushing up on some top notch possible avenues of cross examination like “Are there any reasons someone might be asleep at the wheel other than intoxication?”) I hear the defense lawyer ask, “How long have you been a certified peace officer?…”


At which point – I am not making this up – the baby faced officer… looks at his watch.


OK, so he replies, “10 months” and I assume that his watch is one of those that has the month on it – but it still made me inwardly chuckle about how that might have looked to a jury.

[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.