Check this story out, if you want your head to explode with exactly how ridiculous people can be sometimes.

For those who’d like to keep their heads intact, here’s a summary: Father and daughter in Houston go out for a few drinks over Thanksgiving. Rather than drive and endanger their fellow motorists on their return trip, they opt to take a cab. After consuming their drinks, and enjoying their evening, they call the cab company to request that one pick them up and take them home. They proceed to wait outside of the bar for the taxi.

Police officer decides that they ought not be on the street, tells them that if their cab doesn’t show up in ten minutes, they’re under arrest for public intoxication. They tell him the cab company said twenty minutes, and walk to the corner so they can see when it arrives. Police officer decides that enough is enough, and hauls ‘em in.

Holy wah, as our friends in the upper peninsula of Northern Michigan might say. At least they didn’t get tasered, I guess.

Labels: dwi, stupid arrests

posted by Dan   permalink   0 Comments

Reading Scott Greenfield’s indispensible Simple Justice blog this morning, like I do every morning, I saw his post on the new DWI law passed at warp speed by the New York legislature, which makes DWI with a minor 15 years old or younger in the car an automatic felony with no possibility for reduction. The original story ran on Gothamist (full disclosure: I’m an editor for Gothamist's Austin-based site, Austinist) and boy, the comments there – as per usual for comments on the Internet in response to just about anything – are pretty frustrating, full of strident comments from people who only half-understand what they’ve just read.

To be certain, driving while intoxicated is very serious. The casual attitude around the legal blogosphere (I can’t bring myself to spell it “blawgosphere”) that sometimes accompanies it is something I’ve struggled with in the past. But the self-righteous stridency with which it’s condemned has always struck me as the gentlemen doth protesting too much. DWI cases, so often, aren’t clear-cut situations in which someone is totally wasted and opted to get behind the wheel anyway. So many of them are situations in which a driver who’s well under the legal limit is driving, stopped for any of a zillion reasons that have nothing to do with the beer he had with dinner, and arrested because the officer smelled alcohol on his breath. It’s not a crime to drive with the smell of alcohol on your breath, but now – if there’s a kid in the car – it’s going to see everyone arrested for it facing down a felony, with the ability of judges and prosecutors to use their discretion removed.

And all of those people in the comments who are celebrating the lighting-quick passage of this legislation – I’m willing to bet if any of them were arrested, they’d miss the ability of the courts to use discretion in their cases more than they’d suffer from the occasional person who’s actually guilty of DWI being charged with a misdemeanor when they really, really want a felony.

Labels: dwi, internet commenters, mandates, simple justice

posted by Dan   permalink   0 Comments

This story from the Chicago Sun-Times about a police officer being sued for handcuffing an ER nurse who refused to draw blood from a DWI suspect against hospital protocol and holding her in the back of his cruiser for 45 minutes is disturbing for a couple of reasons. Let’s run down the bullet points:

• Asking an emergency room nurse to violate hospital protocol in order to better ensure that the concentration of alcohol in the suspect’s blood will be higher disrupts the flow of events in a situation in which there are real, actual stakes. It’s essentially saying that the gathering of evidence is more important than treating people in an emergency situation.
• It’s the exact sort of “attitude adjustment” for daring to argue with a police officer that makes so many Americans distrustful of the police. It reaffirms something that a lot of us feel – that the police expect to be treated deferentially in all situations, which fuels a particular kind of resentment: What you want me to do isn’t always, in every situation, more important than what I’m already doing.
• It removes a friggin’ emergency room nurse from the emergency room for forty-five minutes for no good reason. The reason we respect the police is that they devote their lives to increasing safety and protecting us. When they instead decide to remove someone whose job is to provide medical care for people in an emergency situation from their role because they’re upset that they weren’t being treated like the boss of the room, they’re putting innocent people’s lives at risk. Not even the lives of people who are innocent because, like, they haven’t been convicted of anything yet, but they’re suspects so let’s give ‘em some leeway (As with, say, tasing people). No, yanking a nurse out of the emergency room – especially a head nurse who’s responsible for triage – means there’s one less qualified person available to stabilize grandma after the heart attack. So for those who would dismiss the suit because, boo-hoo, she had to sit in the back of a car for less than an hour with handcuffs on – you’re missing the point. The cop didn’t just violate the nurse’s rights, he threatened the health and safety of everyone in the emergency room. Because he was mad that she wouldn’t break the rules and do what he said.

Again, this sort of abuse of power is why it’s hard to justify the demonization of DWI suspects. Not because DWI isn’t incredibly dangerous and incredibly serious. But because when you insist that anyone accused of doing it is a terrible criminal, you justify things like putting an entire emergency room at risk just to teach a nurse who insists on following the rules (and on treating sick people as a more important part of her job than gathering evidence) a lesson for having the temerity to say no to a police officer who’s absolutely convinced of his own righteousness.

EDIT: More on this here and here and here and here.

(Linda Cardellini from ER image via NBC.com, because typing “nurse & police” into Flickr brings up a bunch of inappropriate Halloween costume pictures but not much else.)

Labels: abuse of power, blood draws, dwi, the attitude test

posted by Dan   permalink   0 Comments

This post’s bound to be a little more personal than some on the blog, but it’s something I’ve been thinking about pretty much since I started working at Sumpter & Gonzalez.

I’m not a lawyer. As such, I haven’t got a background with thorny constitutional issues, and arguments that are at the core of the criminal defense practice – about everyone having a right to the best possible counsel, about process and procedure needing to be strictly followed – are things that I’ve never had to consider besides in very abstractly until I came onboard here about a year ago.

It seems like most private defense firms, S&G included, are heavy on DWI cases, since it’s certainly the most common arrest in Travis County. I’m guessing that extends to other places, as well. A big part of my job involves keeping up with the dialogue among defense attorneys on blogs, in the news, and elsewhere, and the reaction to DWI is something that I’ve thought a lot about since I started here.

=====

Two things come to mind, before I go into greater detail:

1. I’ve always been a little bit uncomfortable with the way that DWI attorneys can sometimes talk about the charge like it’s not a significant charge. You’ll see it even from really thoughtful people, like the California lawyer who maintains the DUI Blog, who spends a lot of time talking about the relative safety of driving after drinking compared to driving while texting – and not, presumably, because he wants to see an uptick in DWT arrests and legislation, but because it’s a strong rhetorical way to diminish the dangers of DWI.

2. My first few months here, my main job was to watch and take notes on DWI arrest videos, and I’ve seen a ton of tapes – both of people who I’m convinced are totally innocent and stone-cold sober being arrested, as well as of people I’ve been really grateful to know were scooped up and arrested that night so they didn’t hurt anyone.

=====

Driving while intoxicated is a very serious thing. It’s dangerous, and it turns people who are otherwise just like you and me into potential killers. It could have been you or me, maybe, on the wrong night. People respond very viscerally to it because a lot of them know someone, or know someone who knows someone, who was hurt by a drunk driver, or they’ve heard powerful stories from people who have been there.

All criminal charges are pretty unpopular, but DWI is especially so, probably because it’s something that many of us have kinda-sorta maybe committed once or twice at some point in our lives, possibly. You think you’re okay to drive, but it’s possible a cop might not agree. And so I think that we respond to crimes that we’re aware we might have once been guilty of in a more visceral way, because demonizing those who are accused of it gives us some distance from our own poor judgment. If we call it out as abhorrent, and are vocal in doing so, then it feels less like something that we’ve done.

=====

I used the word “we” up there, but I don’t drink. No reason for it, I just don’t. That doesn’t give me a special level of purity – I’ve driven a car under circumstances that were less than ideal, like bleary-eyed and sleep-deprived, and I’ve been guilty of checking a text or two in the past while behind the wheel. But I’ve long been uncomfortable with DWI, and I really wondered when I started working at the firm if that would be something that would pose a problem down the line.

It hasn’t, and I’ve wondered what that means. Because I haven’t got the background in law, I haven’t spent a lot of time making or hearing the arguments about the constitutional right to an attorney. And I read the discussion online, or I listen to the attorneys here talk, and I’m on the side of the accused, almost every time. More to the point, I’m against the police, when it comes to forced blood draws, or sting operations, or sobriety checkpoints, or other dubious things that get announced to popular acclaim in relation to DWI.

And I’ve been trying to figure it out. What’s significant about DWI?

=====

I read a few articles recently that helped solidify what it is.

There was the forced catheterization of a DWI suspect (innocent, incidentally, not that it matters much) in Lawrenceburg, Indiana.

There was the story of the man charged with DWI for sleeping outside of his car while drunk.

And there’s the “no refusal weekend” thing that happens in Travis County whenever there’s a holiday or an event in town.

And here’s what occurs to me is that DWI: Being that it’s something so many people speak so vehemently about as a great societal ill, and so many people are reluctant to encourage a calmer policy on it, lest they feel guilty for their own likely transgressions, it’s a scenario in which the police and the state are able to abuse their authority, not just with impunity, but while feeling righteous for it.

Add to that the fact that we don’t see people charged with DWI as victims the way that we might see others – they’re not abused or attacked or scapegoated, they made their own choices – and there’s no real impulse to defend them. There’s no outporing of compassion, and so things like the forced catheterization get done by someone who can make a compelling argument that few people will want to contest that they’re keeping us all safer.

DWI is unique in this, I think. We, as a society, disdain people accused of all sorts of crimes, but this one provides some of the easiest targets for casual scorn. It doesn’t take away anything from the seriousness of the charge to note that the response to it, where a scary number of our rights are coughed up, surrounds the political issue of drunk driving, not the actual one.

And the attorneys here and elsewhere, including on all of the blogs I read every day, probably already knew this. But if you’re a non-attorney and you’re wondering, like I’ve been, why there’s an urge to downplay the seriousness of DWI, it’s because the ramifications of the accusation continue to grow in ways that have nothing to do with the charge itself.

Labels: abuse of power, dwi, public perception

posted by Dan   permalink   0 Comments

There's finally a little bit of good news - or, at least, potential good news - regarding DWI surcharges.

Since I started defending people accused of DWI, I have noticed that most of my clients know that they are looking at a possible fine and jail sentence from the courts, but very few of them know about Texas's Drivers License Surcharges that come along with DWI convictions.

As it stands right now, if you're convicted of a first-time DWI, Intoxication Assault, or Intoxication Manslaughter, you will have to pay $1,000.00 a year to the Texas Department of Public Safety for three years in order to keep your license. If you're convicted a subsequent time, it shoots up to $1,500.00. And if your breath or blood test comes back at 0.16 or greater, it spikes to $2,000.00.

The surcharge system - which extends beyond DWI, incidentally, to driving without proof of insurance, driving with license suspended, and more, albeit with lower fees for those charges - results in a number of people who live in poverty, including some of my clients, driving around without a valid driver's license. A thousand or more dollars a year is a huge portion of a lot of people's income. And this puts them (and the public) at greater risk - without a license, they can't get insurance, and they're also susceptible to arrest for Driving While License Invalid, which both result in - yeah - another surcharge. It's a cycle that never quits going for people who don't make enough money to keep up. But what's the alternative? If they quit driving, most of them won't be able to get to work, and then they'll never pay off the fines. (Furthermore, you can't just quit driving for the three years, then go back and get your license once the fee period expires - when you try, you'll still be liable for the $3,000-$6,000 in back fees you racked up over those years.)

But there is good news. The DPS actually seems to understand the burden this puts on people, and the cyclical nature of the problem that means that this system makes an innocent driver's chances of being in an accident with an ininsured motorist more likely, as well as making people who've only really been convicted of one thing liable for more crimes. The minutes from the DPS meeting is on the DPS Officer's Association blog, and they feature a pretty cogent grasp of the problem as we see it:

One in nine people have warrants out for them in El Paso (11%) due to this program. The numbers were similar in Travis County (Austin). A one-time infraction costs $1,000. Suspended license – $1,000. We have a 70% non-compliance rate, since many violators are not able to pay the surcharges. The LBB said that it has lead to more uninsured drivers on the road. It fails to make roads safer. More than 1,080,000 drivers cannot pay.
[...]
Elizabeth Earle, County Court Judge, Travis County [...] We hear “I will never be able to climb out of this hole; Just put me in jail.”

Their proposal is encouraging. The full details are at Grits for Breakfast, but the short form is that those who qualify could replace the $1,000 annual payment with a $500 one-time fee; those whose fees would be $1,500-$2,000 annually would see them replaced with a single $1,000 charge. Qualification would require passing a Drug Court program, the details for which are unspecified right now. But at the very least, this is a step in the right direction.

Labels: dps, dwi, dwi surcharges, money

posted by Kristi Couvillon   permalink   1 Comments

I represented a client at an Administrative License Revocation Hearing (ALR) recently. When people are arrested for Driving While Intoxicated (DWI) and either refuse to take a breath or blood test or take the test and "fail," DPS will move to suspend their license in a separate administrative hearing.

In this case, my client was pulled over for driving too slowly. Actually, he was driving right at the speed limit until the officer who eventually arrested him pulled up next to him at a stop light. My client slowed down, as many of us do when we are driving next to, in front of, behind, or anywhere near a police officer. The officer pulled my client over for impeding traffic and also because he thought my client's slow driving was a sign that he was driving while intoxicated (DWI). He had my client conduct the three "standardized" field sobriety tests given when someone is being investigated for a DWI (the horizontal gaze nystagmus test, the walk-and-turn, and the one-leg-stand) and then arrested my client for DWI.

An officer must have reasonable suspicion before he initiates a stop of someone to investigate a possible crime, including a traffic offense (which in Texas are considered criminal offenses). Turns out, however, that in order to violate Tex. Transp. Code §545.363, the traffic law prohibiting impeding traffic, a person has to actually impede traffic. Slow driving, in and of itself, is not enough. The Court in United States v. Coronado, 480 F.Supp.2d 923 (W.D. Tex. 2007), held that the arresting officer in that case had no reasonable suspicion to stop a vehicle for impeding traffic even when the vehicle was traveling 12 miles under the speed limit in the left lane and at least five vehicles were backed up behind the vehicle. A good handful of other courts have come to similar conclusions. A Texas appellate court has also held that slow driving--in and of itself--does not constitute reasonable suspicion to stop someone and investigate them for DWI.

The arresting officer appeared at the ALR hearing, which ran almost a full hour. I cross-examined the officer extensively about what happened the night of my client's arrest. We all watched portions of the video of my client's arrest and I questioned the officer about what was on the video as well.

The whole experience really reminded me how important ALR hearings are. Because it is an administrative hearing, and not a criminal proceeding, the burden on DPS to show reasonable suspicion to stop and probable cause to arrest is low-- a preponderance of the evidence. As a result, it's not all that common to win an ALR hearing. But, win or lose, it is very important to request and have an ALR hearing, especially where there is a companion DWI case. The hearing is like a mini-trial and offers an excellent opportunity to flesh out important legal issues and to cross-examine the police officers involved in the stop and arrest. What you learn at an ALR hearing can be indispensable in knowing how best to advise your client in their DWI case.

Labels: alr hearings, dwi

posted by Raman Gill   permalink   0 Comments

It’s a busy week over here, so blogging has been light. Here are some things we’d probably have written about if we’d had more time:

Lester Johnson, the private investigator whose work helped clear David Lozano of attempted capitol murder charges after a shootout with APD, was honored at the Texas Association of Licensed Investigators convention this week. Interestingly, in the Statesman article’s comments section, Johnson continues to call out APD and the officer who filed an – ahem – unreliable report.

If you’re not totally clear on the backstory on Sharon Keller and her trial, there’s a good primer on it at the StandDown Texas Project. The veeeeery brief version is that Keller, the chief justice of Texas’ highest criminal court, is on trial for judicial misconduct after responding to an attorney whose computer problems were causing him to run a few minutes late while filing an appeal to stay an execution with the words, “We close at five.” He arrived at 5:20, the court refused to accept is filing, and his mentally-handicapped client was executed at 8:23 that evening.

Grits For Breakfast has another good post up – it’s like this is a trend or something – this time on the subject of DWI prevention via public transit and zoning for neighborhood bars. Expect some expanded commentary on this topic in this space coming soon.

The Statesman has an article about thousands of parolees who’ve been classified as sex offenders despite having never been convicted of a sex crime.

Gamso: For The Defense, which is quickly becoming one of my favorite legal blogs, has a smart primer on exactly what different types of pleas mean. It’s a really useful post for non-attorneys like myself, especially, who couldn’t understand that someone who pleads “not guilty” even though they know they did it wasn’t lying.

Houston defense attorney Paul Kennedy has better news for people who were outraged reading about Sharon Keller (which maybe should be everybody) – the Fifth Circuit Court of Appeals decided to allow an appeal that was filed a day late. The attorney in question blamed the problem on the county’s broken fax machine. Curiously, it appears their fax machine is usually broken when this court-appointed attorney – who takes on 355 felony appointments a year – tries to file appeals, and it usually fixes itself the next day.

Labels: abuse of power, APD, crime prevention, dwi, grits for breakfast, pleas, sex offender registration

posted by Dan   permalink   0 Comments

Every few days I make it a point to compile the news and commentary surrounding criminal defense issues, especially as they relate to Austin, and send it along to all of the attorneys in the firm as potential blog topics. Starting today, those links and discussions are also going to be posted here, as well.

Kristi Couvillon wrote recently on APD’s dash cam policy, which got me thinking about this story: Florida cops stop a young woman for DUI, and then proceed to rear-end her car. After she's arrested, with the dash cam still recording, they cook up a story that they all agree to in which they decide that it's her fault, and then charge her with DUI/property damage. "I don't make things up or lie ever, because it's wrong," says the cop on the tape, "but if I have to bend it a little to protect a cop, I'm gonna."

Austin defense attorney Jamie Spencer has a couple good posts up right now. On the APD prostitution stings, he asks how much money was spent dressing a whole bunch of female police officers like prostitutes and running a sting that netted 23 arrests. And he gets to one of the hearts of the taser issue (which I’ve written about briefly here) when he asks how potentially unconstitutional acts can be declared acceptable just by claiming that they’re not outside of department policy.

In case you haven’t heard yet about The Superglue Incident:  Four women superglued a guy's penis to his stomach after tricking him into a bondage scenario because he was screwing (and scamming) all of them. If only we were still running the “We Could Defend That” campaign. 

US Attorney General Eric Holder gave a speech at the ABA convention where he says most of the same things that regarding reform and non-violent drug offenders, etc, that I’ve been learning since I started working with this firm.

In Kaufman County, the chief public defender/founder of the public defender's office is planning to run for DA. The link from Robert Guest, a Dallas-area defense attorney, talks about the difference between the roles, and what good can come from a PD becoming a prosecutor.

We have a bunch of old ads in a binder that equate DWI arrests with prohibition. I never really got those, but this bit from Politico, where MADD criticizes Obama for having Gates and Crowley over to the White House for beer, rather than milk and cookies, helps me understand it a little.

Also, California dropped charges against a guy who'd been arrested for DUI while riding a horse.

Finally, not to be all ACLU here, but this is video of a cop assaulting a woman from behind at a convenience store in Philadelphia because, half an hour earlier, his son had rear-ended her car.

Labels: abuse of power, APD, cameras, dwi, in the news, linkdump

posted by Dan   permalink   0 Comments

The 81st Texas Legislative Session was so unproductive that it has been dubbed by many as "the Seinfeld Session" - the session about nothing. However, just because there was little accomplished and taxpayers' money went largely down the drain does not mean that there was no damage.

Unfortunately, even in a Seinfeld Session, we still can't escape the insatiable legislative urge to rack up a few penalty enhancements and create a few new crimes. And since ignorance of the law excuses no one, I thought I would post the criminal justice highlights of the 2009 Legislative session:

The Good

SB 839: Abolishes Life Without Parole for Juveniles
Amends § 12.31, Penal Code, Capital Felony, to provide that a juvenile convicted of a capital felony that was certified as an adult pursuant to § 54.02, Family Code, will be sentenced to life, not life without parole.

Amends § 508.145, Government Code, Eligibility for Release on Parole; Computation of Parole Eligibility Date, to provide that a juvenile convicted of a capital felony that was certified as an adult pursuant to § 54.02 is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 40 calendar years.

SB 1940: Authorizes Pretrial Diversion Program for Veterans
Adds Chapter 617, to Subtitle E, Title 7, Health and Safety Code, Veterans Court Program Defined; Procedures for Certain Defendants, to provide the commissioners court the authority to establish a veterans deferred prosecution program whereby if a veteran successfully completes a veterans court program, the court shall dismiss the case.

SB 1681: Requires Corroboration of a Jailhouse Informant

Adds Article 38.075, Code of Criminal Procedure, Corroboration of Certain Testimony Required, to require corroboration before a person can be convicted on the testimony of a jailhouse informant. Provides that corroboration is not sufficient if it only shows that the offense was committed.

HB 1736: Increases Payments and Services to Wrongfully Imprisoned
Adds § 103.052, Civil Practice and Remedies Code, Lump-Sum Compensation, to allow lump-sum compensation of $80,000 per each year of wrongful imprisonment and $25,000 per each year served on parole or as a registered sex offender.

HB 2730: Requires DPS To Waive Surcharges for Indigent

Amends § 708.158, Transportation Code, Indigent Status and Reduction of Surcharges, to state that DPS shall waive all driver’s license surcharges for a person who is indigent.

• A person may submit the following to establish indigency: most recent federal income tax return or wages reflecting the person’s household income does not exceed 125 percent of the federal poverty guidelines or documentation that the person is receiving governmental assistance.

The Bad

SB 328: Expands Police Power for Mandatory Warrantless Blood Tests

Amends § 724.017, Transportation Code, Blood Specimen, to expand mandatory warrantless blood draws if a person is arrested for an offense under Chapter 49 of the Penal Code involving the operation of a motor vehicle or watercraft and the person refuses the officer’s request to submit to the taking of the specimen voluntarily and:

• an individual other than the person has suffered bodily injury and was transported to a hospital or other medical facility for medical treatment;


• person is under arrest for DWI with child passenger under 15;


• the person has been previously convicted of DWI two or more times; or


• the person has been previously convicted of DWI with child passenger under 15, intoxication assault, or intoxication manslaughter;

HB 2086: Creates New First Degree Felony Crime of Directing Activities of Criminal Street Gangs and Creates Definition for Gang-Free Zone and Provides Penalty Enhancements

Adds § 71.023, Penal Code, Directing Activities of Certain Gangs, to create the new crime of directing activities of certain criminal street gangs which is a first degree felony.

Adds § 71.028, Penal Code, Gang-Free Zones, to establish gang-free zones and to increase penalty category to the next higher category (except for first-degree felonies) if it is shown that the actor is 17 years or older and commits a crime in a gang-free zone; specifically, if the offense was committed:

• Within 1000 feet of any school, higher education institution, youth center, or playground; or


• Within 300 feet of any shopping mall, movie theater, public swimming pool, video arcade; or


• On a school bus

HB 2240: Creates New Offense of Continual Violence Against the Family
Adds § 25.11, Penal Code, Continuous Violence Against the Family, to create a new offense of continual violence against the family, a third degree felony, if during a 12 month period, a person commits family violence two or more times.

The Ugly

HB 2846: Increases Age of Child Victims for Outcry Statement to 14 and Expands Outcry Statements to Include Acts Other Than the Alleged Offense that Were Committed Against the Child Victim or Other Victim Under 14

Amends § 1, Article 38.072, Code of Criminal Procedure, Hearsay Statement of Child Abuse Victim, to increase the age of a child victim from 12 to 14 for purposes of admitting an outcry statement and to allow outcry statements for criminal attempt of certain offenses.
Amends §2, Article 38.072, Code of Criminal Procedure, Hearsay Statement of Child Abuse Victim, to allow outcry statement of child victim under 14 concerning other crimes, wrongs, or acts other than the alleged offense and allegedly committed by the defendant against the victim or another child younger than 14.

SB 727: Requires Judges to Order DNA Sample Collection for Defendants Granted Probation for a Felony and Juveniles Adjudicated of 3g Offenses

Amends Article 102.020, Code of Criminal Procedure, Costs on Conviction for Offenses Requiring DNA Testing, to require a person placed on community supervision to pay $34 if DNA sample required.

Adds § 54.0409, Family Code, DNA Sample Required on Certain Felony Adjudications, to require the court to, on adjudication of a 3g felony or felony involving a deadly weapon, collect DNA, as a condition of probation, from a juvenile.
Adds Subsection J, § 11, Article 42.12, Code of Criminal Procedure, Community Supervision, to require a judge granting probation to a defendant convicted of a felony to require defendant to provide a DNA sample.

Click here for our full 2009 Legislative Summary of new criminal justice laws.

Labels: blood draws, dwi, juveniles, pretrial diversion, texas legislature

posted by Kristin Etter   permalink   0 Comments

Here’s a fairly ridiculous example of an ill-conceived plan:

TUCSON, Ariz. — A plan by the Pima County Sheriff's Department that would have stationed deputies at fast-food joints to sniff out drunken drivers appears to have fallen flat.

The department had hoped to target drunken driving by putting undercover deputies inside 24-hour fast-food restaurants to spot impaired drivers placing their orders. If deputies spotted someone with classic symptoms of impairment, they were to call a uniformed deputy stationed outside to pull the driver over.

But sheriff's Lt. Karl Woolridge says the department asked various fast-food chains if they'd agree to be a part of the program, but all of them declined.

Asking fast food drive-thru operators if they’d be willing to let the police hang out by the window in the middle of the night to arrest only the customers who appear to be under the influence of some sort of substance is like asking head shop owners if they’d be willing to let the police in to bust only the customers who aren’t actually going to observe the tobacco use only signs posted throughout the place. If they did it, they’d have no customers at all.

Anyway, what’s really silly about this is that it’s not the sort of thing that’ll have any impact on drunk driving. It’ll just have an impact on what drunk drivers eat. The odds of someone saying, “I know I really want a Carl’s Jr. burger at two-thirty this morning, I’d better not drink tonight” are pretty small. All a program like this would really accomplish would be to tell drunk drivers that the odds of getting stopped for DWI have just shrunk if they steer clear of the local Taco Bell. Thankfully, old-fashioned economics from the restaurateurs (if you can call someone who runs an A&W that) nixed this one.

Labels: crime prevention, dwi

posted by Dan   permalink   0 Comments

By Raman GillFormer Texas House speaker Gib Lewis had this to say about his recent DWI arrest: "There's nothing to say but don't drink and drive."

That's excellent advice and it's exactly what I tell my family and friends, as well as my clients who are charged with DWI. And by "Don't drink and drive," I don't mean, "Be sure you only have one or two drinks, no more, before you drive," or, "Be sure you wait a good while after having a drink before you get behind the wheel." Nope. I mean, don't drink ANY alcoholic beverage and then drive (or boat, which seems particularly relevant given these three-digit temperatures and the need we all seem to feel to be in or around water if outside these days).

I can't tell you how many people our firm has represented who've had a drink or two after work, or two glasses of wine at a book club meeting, or a glass or two of wine at dinner with their spouse, and then were stopped for a minor traffic violation while driving home - and the next thing they knew they were trying to take nine steps, heel-to-toe, down an imaginary line along the side of a dark road. Often, when an officer smells ANY alcohol on your breath, he'll start asking you about whether you've been drinking and then he'll ask you if you mind taking a few field sobriety tests.

The answer to the officer's question, by the way, is YES, you do mind. You mind very much. (Except you say it very politely, as in, "With all due respect officer, I won't take any field sobriety tests and I'd like to speak with my lawyer.") Because unless you've got the balancing skills of Mary Lou Retton (I know this reference ages me, but I remember her landing perfectly off that vault in the 1984 Olympics to win the all-around women's gold medal), you might very well fail these tests, intoxicated or not.

I'm certified to administer the three "standardized" field sobriety tests most often given during DWI stops, as are most lawyers at our firm. Part of our training included attempting these tests - many times. I certainly don't want to impugn the balancing abilities of my colleagues, but let me at least say as to myself - I could not do the "Walk and Turn" or "One Leg Stand" stone cold sober, at least not until I practiced many, many times. It's simply not natural to walk heel-to-toe with your hands by your side, or with one leg six inches off the ground. If you've ever tried yoga, you'll know that making your body do what it doesn't do in everyday life doesn't always go so well the first few times. Especially if you're very nervous and distracted, maybe on the side of the highway, as most people are during DWI stops. Even our resident yoga diva Kristin Etter gave a less-than-stellar performance her first few goes at these field sobriety tests. (Did I say I wasn't going to impugn anyone else's balancing skills? Sorry, Kristin!)

So there you have it. One of the many reasons it's really just better to not drink and drive - at all.

Labels: dwi, field sobriety tests, gib lewis

posted by Dan   permalink   0 Comments

I just read Raman's post on The National Network for Safe Communities and couldn't agree with her more. Reading it, I reflected on this week's DWI Court graduation ceremony. I am one of two defense attorneys in Travis County's DWI Court - an innovative program which serves people arrested for multiple DWI's by "providing an intensive, judicially supervised program of team-based counseling, treatment, and supervision."

My participation in this court is quite different from my work in "regular" court - rather than working from the traditional adversarial approach, the DWI Court works as a team. Before our Court sessions, the team - consisting of the Judge, Probation, County Attorney, Alcohol Counselors, and Defense Attorney - meets to discuss each participant and their recovery. We problem-solve together and often disagree amongst ourselves, but in the end come up with agreed-upon solutions to help each participant in their recovery.

Even through the team approach, we still function in a "defense attorney" role - as the National Drug Court Institute warns, "It is essential that defense attorneys remain vigilant in protecting civil liberties - even in the relatively nonadversarial context of drug court." That is why I agree with Raman that there should be defense attorneys involved in this new program that could be a great solution to reducing crime and incarceration.

Anyway, as I said, her post made me reflect on this week's graduation ceremony. I must admit that this was the first time that I truly "got" just what makes this court different. Listening to one of the graduates - an older man who had spent many decades addicted to alcohol - speak about how the Court truly changed him was humbling. "I feel like I've just graduated kindergarten and am going into the first grade of life," he said. Not only does the court provide an alternative to incarceration, it can be a springboard into a whole new life.

Labels: dwi, DWI Court, innovative tactics, the role of defense attorneys

posted by Kristi Couvillon   permalink   0 Comments

By Kristin Etter
To say I was shocked when I saw the headline that local attorney Mindy Montford was arrested for public intoxication last Saturday is an understatement. Mindy is highly respected and admired in our community and I consider her to be of impeccable character -- she is held in the highest regard by all who know her. I became only more shocked and outraged as I read the story:

Attorney Pat McNelis, who is law partners with Montford, ... and is representing her, said Montford had been with friends from high school to hear a band at a downtown club. As they were leaving, McNelis said, the driver of a car
in which Montford was a passenger struck a pipe in an alley and was pulled over
moments later.

McNelis said Montford got out of the car at that time to “advise her friend of his rights.” He said an officer ordered Montford back into the car, where she sat for about 20 minutes. He said the officer then came back to the car and arrested her, as well as another passenger, on public intoxication charges. He said no further investigation was done before the arrests.

“Mindy complied with the officers when they instructed her back to the car,” McNelis said. He said his client “absolutely denies” the charge. McNelis said the driver of the car also was arrested on a drunken driving charge, but that a judge refused to sign a warrant arresting him because of lack of probable cause.

Clearly, this seems to be a retaliatory action by the officer in the worst sense. All too often, we see officers making arrests for public intoxication because the person flunked the "attitude test." Mindy's case seems even more egregious because it appears she was arrested only after advising her friend of his rights. To arrest someone for public intoxication, the officer has to have probable cause that the person was intoxicated in a public place to the degree that the person may endanger herself or another.

I have no doubt that as the case progresses, we will see that not only was Mindy not publicly intoxicated (she was sitting in the back of the car!!!), but that this was done to punish her for doing something the officer did not like -- advising someone of their rights. The outrageous treatment of Mindy only epitomizes how law enforcement reacts when people choose to exercise their Constitutional rights. Unfortunately, this is not an isolated incident. As we have seen all too often, innocent people are arrested for invoking their rights or simply flunking the "attitude test" (thankfully, the criminal justice system usually works as it is supposed to and we are ultimately able to get these kinds of cases dismissed in most instances). This incident only underscores how important it is for us all to know what are rights are in a situation before something like this occurs. If it can happen to Mindy Montford, it can happen to any of us.

Labels: abuse of power, APD, dwi, public intoxication, rights

posted by Kristin Etter   permalink   0 Comments