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

I recently posted here of why a DWI "win" is all relative.   Especially in light of a  tough plea bargain offer that is not much of a "bargain" at all. 

Shawn Matlock of The Matlock Blog (no, not Andy Griffith with a blue suit), gave another great example of a relative win.  In the past, he spoke about relative wins here.  His more recent post, Life in a Box, explains how he was lucky enough to see some great lawyers, Mark Daniel and Tim Moore, fighting a death penalty case.  In the end, the client was given a life in prison sentence instead of the death penalty.  And while life in prison might not seem like a win to most --- when looking at the alternative, it can certainly look O.K.  Especially when the reason you are on trial is for killing a police officer.  No one is saying it is O.K. to kill anyone, especially not a police officer.  But apparently 12 people felt that life in prison was a just punishment.

In the end, it is always important to ask your clients what their goal is.  For some, it is being found not guilty.  For others, it is to receive a fair punishment for the crime.  Either way, we as lawyers must do our best to achieve fair and just results for our clients.

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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 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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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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