Dallas DWI lawyer Robert Guest recently asked a question on the Texas DWI Defenders listserv:

Dearest Brain Trust,

 I’ve been using the same DWI voir dire for a few years and I’m looking for some fresh questions for the jury.

 If you wouldn’t mind send me your favorite DWI voir dire question or idea. I’m open to anything, just something you think is creative, or has gotten results in the past. 

Thanks in advance,


Here was my response:


My new favorite is on the difference between probable cause and BRD:

 “Mr. Smith, I want you to imagine that you are a police officer.  It’s 2 o’clock in the morning.  The person you just stopped for a traffic violation has admitted drinking, and you smell the odor of alcohol.  You have 2 choices: eventually to put him back in his vehicle and to let him drive on down the road, or to arrest him and take him to jail.

 “Mr. Smith, how sure would you want to be that that person was not intoxicated before you put him back in the car to drive off?”

Continue Reading Voir Dire Questions In A DWI

 Administrative Law Judges handle all sorts of cases for the State Office of Administrative Hearings – aka SOAH – from the tremendously boring, such as boat motor sales and use tax cases, to the no doubt endlessly fascinating scenarios where a trucking company is alleged to have failed to carry a required certificate of registration. (I know so little about those cases that I can barely understand what is written in the previous sentence; frankly, I cribbed it from the “about us” page on the SOAH website.)

Of course, they also handle license revocations arising out of DWIs. I got to my ALR this week a little early, and stuck my head in a different courtroom than the one my client’s case was being heard, to chat with a Judge. He handed me a printout of this – sorry, just click the link – it’ll look better from the original website than if I try to cut and paste it into a little box on this blog.

Apparently that site is all the rage on whatever informal listserv the subset of ALR Administrative Law Judges use. Probably the others too, but it seems most (least?) appropriate for the DWI court personnel. 

Just in from a marketer via email, with the title line “Thousands of DUI Defendents are Coming!”:

Because we are the #1 Google ranked DUI/DWI website, thousands of DUI/DWI defendents[sic – I couldn’t bring myself to misspell it in the title of my post though] will come to our site next week looking for an attorney. Will you get your share?

Continue Reading DWI Defendants Are Coming! Away! Which Way?

Harris County DA Pat Lykos has announced that she will allow first time DWI offenders to apply for Pretrial Diversion and/or be eligible for a Deferred Prosecution:

Harris County District Attorney Pat Lykos announced plans Friday for a program that allows first-time DWI and drug offenders to avoid conviction, an idea she acknowledged could be a hard sell to the public.

The plan, referred to as pretrial diversion and scheduled to begin in August, was heartily endorsed by the county’s defense attorneys, supported by the sheriff deputies’ and the Houston police officers’ unions, but strongly opposed by the local chapter of Mothers Against Drunk Drivers.

“What we’re trying to do is prevent recidivism. So, it’s a carrot-stick approach,” Lykos said. “With respect to DWI, that’s an absolute plague in Harris County. If we can get first offenders, get them into treatment … and divert them so they don’t become repeat offenders, that’s going to have enormous dividends. And the same thing for first-time drug possession.”

This move was, and I know I’m repeating myself here, “supported by the sheriff deputies’ and the Houston police officers’ unions”. For all you law and order folks out there, doesn’t that endorsement convince you that it can’t be an all-bad idea, can it?

Heck, even Williamson County, not known for its soft-on-crime reputation allows DWI defendants with no prior criminal history to apply for what they call Pretrial Intervention – the same thing as Travis County’s Pretrial Diversion.

Isn’t it about time the progressive folks in charge of our Travis County Attorney’s Office here in Austin do the same thing?

I should know better than to get my hopes up.

Yesterday morning, my client’s DWI was set for a pretrial conference. That’s the last setting before a contested pretrial motions hearing in Travis County. But it doesn’t get set for pretrial motions until the complaint and information (official charging instrument in a misdemeanor) have been filed at the county clerk’s office.

This was – hang on, let me go check my calendar – the 27th time my client’s case was set on the docket. Which is a lot – but, no complaint and information, it just keeps getting reset about once every 3 or 4 weeks for another status check.

Today was 732 days after my client’s arrest. Two years and two days after. The statute of limitations for a misdemeanor DWI in Texas – which applies to the filing of the charging instrument only – expired two days ago. But this morning when I looked in the clerk’s file, the C&I was there. It had been filed in between the last two settings, just under the two year deadline.


That’s OK. Now I’ll just have to earn my fee the regular way.

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.

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.