Collin County DWI Lawyer & Attorney : Hunter Biederman : Texas DWI Defense : Serving Collin County, Denton County, Dallas County

Although not directly related to DWI, a new ordinance enacted by the Frisco, TX City Council could have DWI and DUI ramifications.

The City of Frisco enacted a new "curfew" for those under 17, spanning from Midnight to 6am.

In my opinion, this is just another "solution" to a problem that just does not exist.  Although I like Mayor Simpson, he explained in an article on WFAA.com, that:

"We figured we were taking a proactive step so that our kids wouldn't be put in the position of getting into trouble," he said. "And if Frisco was the only one who didn't have it, you might have teens saying, 'Hey, let's go to Frisco, they don't have a curfew.' "

Based on his quote, it would seem that this is not yet a problem, but he is reading into the future and the minds of our youth that they will exploit our city by causing mayhem after dark in Frisco, opposed to Plano, because they will realize there is no curfew in Frisco.  Of course, there is no problem now, as this is a "proactive step," as stated by the Mayor.

Like I said, I like Mayor Simpson, and he has done incredible things for the city, although I'm not too keen on this one.

I'd hate to see "he/she looked young" as an excuse to stop our citizens of Frisco.

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Many of my clients come into my office knowing that they want to fight their DWI case.  I'm OK with that.   In fact, as I have stated in past blogs, in general, there is very little to lose by going to trial on a DWI 1st case.

Despite knowing we are going to trial, the plea bargaining process is still an important one. . . even in counties, such as Collin County or Dallas County, where pleaing to a non-DWI offense will almost never happen.

Here is why it is important to get the best offer you can from the state, even if you never plan on pleaing to it.  If you go to trial, and are not successful, often the first thing done by the prosecutor is to look at the last recommendation given to the attorney in the case.  The point being, usually they will be seeking a tougher punishment after trial. 

Often times, you can come to an agreement with the prosecutor on the case... maybe a slightly larger fine, or a few months extra probation if your client is found guilty after trial.  If you did not actively pursue a good plea bargain pre-trial, your negotiating position after trial will diminished.

It is for this reason (and also so the client can weigh all options before deciding whether or not a trial is in their best interest), that I always actively pursue the best plea bargain possible pre-trial, even if the client has their heart set on a trial.

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      In a new law enacted at midnight tonight, Arizona will require all first time offenders convicted of DUI to install an ignition interlock device on their vehicles.  The Arizona Republic Online reports that not only will 1st time offenders be required to install this device, but also, anyone whose BAC is over .20 will have a mandatory jail sentence of at least 45 days.

The article reports:

Hardest hit are first-time violators and a new class of "super extreme" DUI offenders whose blood-alcohol concentration registers 0.20 percent or above, which is more than double the legal limit of 0.08 percent.

Beginning Wednesday, new penalties include mandatory ignition-interlock devices for first-time offenders, increased fines and a minimum of 45 days in jail for super extreme DUI convictions.

Opponents to the bill point out that this will increase caseload on the AZ courts, requiring those that are accused to fight their cases. 

Additionally, the article reports that like myself, some feel this is a short term or knee-jerk solution to a much larger problem.

Critics say interlock devices are expensive to maintain and provide a short-term answer to a long-term problem.

 The offender pays for the device, which typically costs $100 for installation and about $80 a month to maintain. Most first-time offenders will have the device for 12 months. That cost is in addition to the more than $1,000 in fines imposed for a DUI conviction.

And studies have shown that while interlock devices are effective while in use, drivers tend to slip into old habits once the units are removed.

Texas, although not quite as extreme, has enacted many laws and statutes over time that increase the severity of DWI:

1. Deferred Adjudication -- The legislature took out the "deferred adjudication" option to DWI cases.  This leaves a person with only two options -- plea guilty, and be convicted for the rest of your life, or plea not guilty, and contest your guilty through a trial.
2. Ignition Interlock -- On DWI 2nds, and also DWI 1st where there is a BAC of over .15, an ignition interlock device must be installed on your vehicle.
3. Surcharges -- DPS requires $1,000/year for three years with any conviction to keep your license.  $1,500/year for a DWI second, and $2,000/year for a BAC over .16.

I find it interesting that although on the surface some of these laws seem to crack down on "hard core" impaired drivers, you can also see that it punishes you for taking a breath test.  For Arizona, no breath test means no way you go to jail for 45 days, and no way you are required to have an ignition interlock device on your car.

In Texas, refusing a breath test means no possibility of a $6,000 FINE from DPS. and no possibility of having an ignition interlock device as a requirement on your vehicle.

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In a recent blog post by blogger Robert Guest, he posts about some of the techniques taught to prosecutors when cross examining a defendant in a DWI case.  These are the same techniques taught to me while working as a prosecutor.  He reports from old manuals that he has:

Today's subchapter is called "Crossing the Defendant", it should have been called "guilty until proven innocent." Prosecutors are taught to spin or ignore evidence of innocence.

- ADA's are taught to work out a "time line" of that day's events with the defendant. Why? Because there is "no credible way the defendant could have kept track of that, so you will either succeed in showing their no memory of times, or he has an overdeveloped memory."

- What should a prosecutor do if the defendant does not look intoxicated on the video? Drop the charge? Of course not. Argue that the defendant only looks good because of the adrenaline brought on by arrest.

- If the defendant claims the officer was abusive ask the defendant why he/she did not file a complaint with the police department.

- Ask the defendant how often he usually drinks. For regular drinkers argue that the defendant has a high tolerance and would not know if he is drunk. If he is not a regular drinker then argue he would not know his own limits.

There are others too, of course.  Other "damned if you do, damned if you dont" ways to further humiliate someone testifying in their own behalf.  Sometimes they will try and trip up a defendant on whether or not they felt they were intoxicated, and what that definition is... If they report the "falling over drunk" type definition, then during arguments, the State can argue that "we agree.. he wasnt intoxicated according to his definition.. but he was intoxicated according to the legal definition."

And how often have we heard it argued "witness credibility" of our clients??  Because he testifies, he AUTOMATICALLY must be lying, because he has something to gain?  Of course he does.. everyone on trial does.  Does that mean a citizen accused, who was sworn to tell the truth always lies?

These are just some of the arguments that an attorney and a client must be prepared to face when deciding whether or not to testify.

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Congratulations to new DUI / Criminal Defense Blogger Steven D. Eversole, on his new Alabama DUI & Criminal Defense Law Blog.

Steven has already gotten started with some great blog posts including:

• DUI Presumption of Innocence or Guilt? - Highlighting the rebuttable presumption of BAC levels
• Boating Under the Influence - Discussing Alabama's "BUI" Laws
• Alabama's Implied Consent Laws & DUI Arrests
• Sleeping Under the Influence -- Can You Get A DUI While Sleeping It Off In The Car?

We are all looking forward to seeing this blog develop!

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I last posted regarding CMI's refusal to reveal their source code here.  Apparently, court orders do not seem to phase this "government contracting" juggernaut.  CNET now reports that CMI has missed their deadline for turning over the source code. According to CNET:

The next step is a court hearing scheduled for September 19, Underdahl's attorney, Jeffrey Sheridan, told CNET News.com in a phone interview on Tuesday. At the hearing, Sheridan is expected to ask the judge to throw out any evidence the state had obtained using the the Intoxilyzer 5000EN. If the judge agrees, at least one charge--that his client was driving with a blood alcohol concentration above the legal limit of .08--would likely be dismissed.

Sheridan had predicted in an interview with CNET News.com last month that the Minnesota state public safety commissioner would not supply him with the source code to the device, as ordered by the Minnesota Supreme Court, by the August 17 deadline.

I understand their arguments, "proprietary information, and all" but I don't buy it.   This is a device that is used to convict people.  Take away their freedom.  Restrict future jobs and earnings.  Gets people fired from existing jobs.  Takes away MILLIONS of dollars from people through fines, court costs, and attorney's fees. 

In a recent post by fellow DUI/DWI blogger Lawrence Taylor, he reports that another Breathalyzer, the Draeger AlcoTest 7110, was forced to turn over their soucecode.  In his blog, he reports several problems with the code, including:

1. The Alcotest Software Would Not Pass U.S. Industry Standards for Software Development and Testing
2. Catastrophic Error Detection Is Disabled
3. Error Detection Logic problems.

Quite honestly, I don't fault CMI for the way they were acting.  If most people/corporations could get away with this type of behavior, they would.  Why do you think Enron or other large corporations didn't want to turn over their books???  What is most disappointing to me is that State agencies continue to contract with this company. That is where I place the fault in this "secret convicting machine" fiasco.

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