New Local DWI Blog
Congrats to Troy Burleson of Plano, TX on the start of his new blog, the Plano DWI Lawyer Blog. Guess I'm no longer the only local guy blogging on DWI issues in the Collin County.
Troy has started off with a bang with such topics as:
Congratulations on the new blog. I'm looking forward to reading more.
Troy has started off with a bang with such topics as:
- Mandatory DWI Blood Tests: Denton County imposing mandatory Blood Tests for DWI suspects this Memorial Day Weekend:
- Texas DWI Breath Test: A high breath test DWI can be won with proper defense tactics.
- Collin, Dallas or Denton County, Texas DWI: 6 Facts that MUST be proven before you can be found Guilty of a Texas DWI:
Congratulations on the new blog. I'm looking forward to reading more.
DWI Jury Selection
I occasionally handle criminal appeals. DWI criminal appeals are usually pretty rare, and even more rarely successful.
Handling an appeal is a little like Monday morning quarterbacking... A lot of "why didn't they say XXX or XXX?" is running through my head. The appeal I am reading now has an attorney making a challenge for cause improperly, and because he does so improperly, I cannot raise that point of error on my appeal.
Instead of complaining, I thought I would blog here on the correct way to challenge a juror for cause. This would be in case you you are in trial, and end up wanting or needing to appeal a case. Truth is, you never know until after the case is over if you need or want to appeal your case. Therefore, it is good practice to preserve all possible points of appeal during your case.
During jury selection, (for a misdemeanor case), both sides get 3 juror challenges. Generally speaking, you can strike any 3 people for whatever reason you want, (peremptory challenges) so long as it is not race, gender, etc. related.
You may also challenge (ask the Judge to strike) jurors for "cause." This is when a juror indicated they can not be fair to either your side or the opposing side. One example (in caselaw I'm reading) is where someone cannot be fair because they always believe the police are telling the truth. Even before hearing from them.
How to properly challenge the juror for cause:
First, you must make your challenge to the court and present to the court why you believe that juror is "challengable" (Is that a real word?).
If your objection is sustained, the juror is removed (no need to appeal). If your objection is wrongly overruled, there are more steps you must take.
You must first off, use all of your peremptory challenges.
Second, you must request from the court additional strikes (which is always denied) to use.
Third, after the panel is selected, you must object to an "identifiable" juror that you were forced to take that you would not otherwise have accepted but for the court's overruling of your challenge for cause.
That's it! But unfortunately, I almost never see attorneys properly handling these challenges for cause. By following these procedures, you are showing that your client was harmed by the erroneous ruling of the court.
If you do not follow this procedure, the opinion of the appeal will read "Accordingly, appellant failed to properly preserve this point of error for appeal, and we overrule his point of error." That means you lose.
Handling an appeal is a little like Monday morning quarterbacking... A lot of "why didn't they say XXX or XXX?" is running through my head. The appeal I am reading now has an attorney making a challenge for cause improperly, and because he does so improperly, I cannot raise that point of error on my appeal.
Instead of complaining, I thought I would blog here on the correct way to challenge a juror for cause. This would be in case you you are in trial, and end up wanting or needing to appeal a case. Truth is, you never know until after the case is over if you need or want to appeal your case. Therefore, it is good practice to preserve all possible points of appeal during your case.
During jury selection, (for a misdemeanor case), both sides get 3 juror challenges. Generally speaking, you can strike any 3 people for whatever reason you want, (peremptory challenges) so long as it is not race, gender, etc. related.
You may also challenge (ask the Judge to strike) jurors for "cause." This is when a juror indicated they can not be fair to either your side or the opposing side. One example (in caselaw I'm reading) is where someone cannot be fair because they always believe the police are telling the truth. Even before hearing from them.
How to properly challenge the juror for cause:
First, you must make your challenge to the court and present to the court why you believe that juror is "challengable" (Is that a real word?).
If your objection is sustained, the juror is removed (no need to appeal). If your objection is wrongly overruled, there are more steps you must take.
You must first off, use all of your peremptory challenges.
Second, you must request from the court additional strikes (which is always denied) to use.
Third, after the panel is selected, you must object to an "identifiable" juror that you were forced to take that you would not otherwise have accepted but for the court's overruling of your challenge for cause.
That's it! But unfortunately, I almost never see attorneys properly handling these challenges for cause. By following these procedures, you are showing that your client was harmed by the erroneous ruling of the court.
If you do not follow this procedure, the opinion of the appeal will read "Accordingly, appellant failed to properly preserve this point of error for appeal, and we overrule his point of error." That means you lose.
You Are A Much Different Person In Trial
Yesterday I was told by a prosecutor (after setting a case for Jury Trial), "I hear you are a much different person in trial."
I questioned what that meant ... but the prosecutor started back-peddling, saying, "I don't know," and "I don't remember where I heard that from."
So, what does that mean??
The only other time I heard something like that, was from the boss of a prosecutor after I had won a pretty high breath test case. (I think it was a .12 or .13). Anyway, that comment was something along the lines of, "I heard you pulled some crap in that trial the other day." I didn't really think I did. My response to that one was much easier:
Do you really think a) I was unethical, or b) the prosecutor is trying to explain to their boss why they lost a case that they easily should have won? I think the latter is the more obvious answer.
So, anyway, I don't know if these two are related or not. Heck, I don't even know for sure what the prosecutor this time meant? Aggressive? Unethical? Mean? Oh well...
I questioned what that meant ... but the prosecutor started back-peddling, saying, "I don't know," and "I don't remember where I heard that from."
So, what does that mean??
The only other time I heard something like that, was from the boss of a prosecutor after I had won a pretty high breath test case. (I think it was a .12 or .13). Anyway, that comment was something along the lines of, "I heard you pulled some crap in that trial the other day." I didn't really think I did. My response to that one was much easier:
Do you really think a) I was unethical, or b) the prosecutor is trying to explain to their boss why they lost a case that they easily should have won? I think the latter is the more obvious answer.
So, anyway, I don't know if these two are related or not. Heck, I don't even know for sure what the prosecutor this time meant? Aggressive? Unethical? Mean? Oh well...
More MADDness
A recent article in the Dallas Morning News is talking about a new law passed by Texas to help nab more uninsured motorists.
The topic of this post is not whether or not it is a good law, waste of time, etc., but rather who helped champion the law.... Yup, MADD.
In the article, it tells us that:
At least they aren't making up false statistics, or skewing stats, as been pointed out by other bloggers here, here, and here.
So intoxicated drivers were intoxicated at the time they were supposed to renew their insurance?
In thinking back.. with the exception of one case, every DWI case I have handled, the client had insurance at the time. OK, so my sample group may not mean much, but there is no rhyme or reason to this thinking by MADD.
This just further shows that MADD is a political lobbying group...
So this got me to thinking. Why would a group like MADD want a law to help nab uninsured motorists?
Maybe it is because they know that many state find DWI checkpoints to be illegal, and this is just their way of finding a way to allow police "reasonable suspicion" to stop just about anyone.
This program:
So, yes, I guess it makes sense that MADD would support this initiative...
The topic of this post is not whether or not it is a good law, waste of time, etc., but rather who helped champion the law.... Yup, MADD.
In the article, it tells us that:
One group that lobbied for the law was MADD [Mothers Against Drunk Driving] of Texas, which argued that the average drunken driver is less likely to have insurance than other drivers.WHAT??
"The need for this law has not changed in the past three years. In fact, it has probably gotten worse," said Bill Lewis of MADD-Texas. "There are probably more uninsured people today than when the law was passed."
At least they aren't making up false statistics, or skewing stats, as been pointed out by other bloggers here, here, and here.
So intoxicated drivers were intoxicated at the time they were supposed to renew their insurance?
In thinking back.. with the exception of one case, every DWI case I have handled, the client had insurance at the time. OK, so my sample group may not mean much, but there is no rhyme or reason to this thinking by MADD.
This just further shows that MADD is a political lobbying group...
So this got me to thinking. Why would a group like MADD want a law to help nab uninsured motorists?
Maybe it is because they know that many state find DWI checkpoints to be illegal, and this is just their way of finding a way to allow police "reasonable suspicion" to stop just about anyone.
This program:
aims to create a database for police officers, state troopers and vehicle inspection stations to instantly verify whether a motorist has the minimum coverage required under state law.Basically, this could just be another tool or rouse to allow an officer to pull you over, just to check up on you. Obviously, this system is going to have problems... but these officers will still argue "good faith" when explaining why you were pulled over.
So, yes, I guess it makes sense that MADD would support this initiative...
Refusing a Breath Test
Texas Transportation Code
§ 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES; EXCEPTION.
Except as provided by Section 724.012(b), a
specimen may not be taken if a person refuses to submit to the
taking of a specimen designated by a peace officer.
What part of this does the State not understand?
§ 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES; EXCEPTION.
Except as provided by Section 724.012(b), a
specimen may not be taken if a person refuses to submit to the
taking of a specimen designated by a peace officer.
What part of this does the State not understand?
Justifying the "calling out" of Someone Being Arrested
Austin, TX DWI Lawyer Jamie Spencer recently posted about whether or not someone should "call out" of those arrested for DWI or other crimes on blogs.
He explains:
I don't normally report on people getting arrested. I haven't once mentioned Lindsay, Brittany, Nicole, etc. I felt this one was different for a few reasons.
1. It happened in Austin & my Collin County Readers wouldn't necessarily pick up on it.
2. I was actually kind of proud to be what I felt was the first to report on it. At least on the blogs I normally read. I hadn't read about it in any of the other usual suspects blogs. Posted 5/1 at 10:48pm.
3. I felt the importance of this one mainly because my understanding is that he championed the surcharge. Also, one of the ridiculous things about the surcharge is that it doubles with a .16 reading. That reason alone is a good one to refuse the test.
4. He decided to refuse a breath test. I like to point out to my readers (as does several others bloggers), that Legislators, Judges, and Policeman.. when asked, all seem to refuse the breath test!
Anyway, there's my 2c on the issue.
Oh yeah, and as far as the PC affadavit you Jamie points out, I'd start with the question of
1) An officer reading a license plate exp. date at 10PM
2) I thought the expirations were on the front windshield?
(possible explanation - l/p has only 5 digits, starting with SO. So I'm guessing this may be a special plate?)
3) Interesting how this ofc. can tell the difference between metabolized and non-metabolized alcohol.
And all the other usual garbage...
He explains:
I don’t blog about so-and-so got arrested for such-and-such. It’sI'd agree with him for the most part. This was in response to my previous post, and others who constantly tell him "hey, you should blog about ________ being arrested!"
-Not my style
-Seems like making fun of people in the same situation as my clients
-Not usually relevant to my ‘niche’
-Overdone by the cut-and-paste bloggers
-Not a case I think I know anything about, since all my info about it comes from the media
-There’s about a hundred more reasons I don’t ‘do’ that type of blogging.
I don't normally report on people getting arrested. I haven't once mentioned Lindsay, Brittany, Nicole, etc. I felt this one was different for a few reasons.
1. It happened in Austin & my Collin County Readers wouldn't necessarily pick up on it.
2. I was actually kind of proud to be what I felt was the first to report on it. At least on the blogs I normally read. I hadn't read about it in any of the other usual suspects blogs. Posted 5/1 at 10:48pm.
3. I felt the importance of this one mainly because my understanding is that he championed the surcharge. Also, one of the ridiculous things about the surcharge is that it doubles with a .16 reading. That reason alone is a good one to refuse the test.
4. He decided to refuse a breath test. I like to point out to my readers (as does several others bloggers), that Legislators, Judges, and Policeman.. when asked, all seem to refuse the breath test!
Anyway, there's my 2c on the issue.
Oh yeah, and as far as the PC affadavit you Jamie points out, I'd start with the question of
1) An officer reading a license plate exp. date at 10PM
2) I thought the expirations were on the front windshield?
(possible explanation - l/p has only 5 digits, starting with SO. So I'm guessing this may be a special plate?)
3) Interesting how this ofc. can tell the difference between metabolized and non-metabolized alcohol.
And all the other usual garbage...
Interesting NHTSA video
Designated ________________
One night a police officer was staking out a particularly rowdy bar for possible DWI violations. At closing time, he saw a fellow stumble out of the bar, trip on the curb and try his keys on five different cars before he found his. The man sat in the front seat fumbling around with his keys for several minutes.
Meanwhile, all the other patrons left the bar and drove off. Finally he started his engine and began to pull away. The police officer was waiting for him. As soon as he pulled onto the street, the officer stopped him, read him his rights and administered the breathalyzer test to determine his blood-alcohol content.
The results showed a reading of 0.0.
The puzzled officer demanded to know how that could be. The driver replied, "Tonight I`m the designated decoy."
Meanwhile, all the other patrons left the bar and drove off. Finally he started his engine and began to pull away. The police officer was waiting for him. As soon as he pulled onto the street, the officer stopped him, read him his rights and administered the breathalyzer test to determine his blood-alcohol content.
The results showed a reading of 0.0.
The puzzled officer demanded to know how that could be. The driver replied, "Tonight I`m the designated decoy."
Legislator Who Brought Us the Surcharge May Get Surcharge Himself
The Dallas Morning News has reported that the legislator that helped pass the surcharge for DWI drivers was arrested and charged with DWI himself.
Naturally, "He refused a Breathalyzer and blood test, according to the affidavit." according to the Austin-American Statesman.
Anyone out there surprised he refused to give a sample of his breath? I reported about judges and cops knowing about how to refuse tests in the past here and here.
Maybe because HE KNOWS that if you blow over a .16, the surcharge he came up with is DOUBLED! This was discussed partially here. Or perhaps he knows about the vast problems with Texas' Intoxilyzer 5000.
I would ask Jamie or Ken their opinions, but they may be getting a call very soon....
Here is the text from the DMN.
Of note: Krusee carried and passed legislation in 2003 that created something called the "driver responsibility program" to help fund the Texas Mobility Fund. That program included a number of surcharges for driving offenses, including $1,000 for a first conviction of driving while intoxicated.
Naturally, "He refused a Breathalyzer and blood test, according to the affidavit." according to the Austin-American Statesman.
Anyone out there surprised he refused to give a sample of his breath? I reported about judges and cops knowing about how to refuse tests in the past here and here.
Maybe because HE KNOWS that if you blow over a .16, the surcharge he came up with is DOUBLED! This was discussed partially here. Or perhaps he knows about the vast problems with Texas' Intoxilyzer 5000.
I would ask Jamie or Ken their opinions, but they may be getting a call very soon....
Here is the text from the DMN.
Rep. Mike Krusee Charged with DWI
State Rep. Mike Krusee, a Republican from Williamson County north of Austin, was arrested for drunk driving late Wednesday. He was released this morning. The Austin American-Statesman has the story, with mugshot.Of note: Krusee carried and passed legislation in 2003 that created something called the "driver responsibility program" to help fund the Texas Mobility Fund. That program included a number of surcharges for driving offenses, including $1,000 for a first conviction of driving while intoxicated.
