DWI Trial Strategy

Published on: February 2, 2010

The State’s “Biederman & Burleson” Motion in Limine

Recently, we had a trial set in which the prosecutors filed some pretrial motions. While not uncommon for the prosecutors to file such motions, one of the items they requested I found quite interesting.

The prosecutors filed a "Motion in Limine." A Motion in Limine is the attorney asking the judge to make the opposing attorney ask permission in advance of doing something. Some common requests are for an attorney to request the opposing attorney to ask permission during trial in advance of offering expert testimony, or something else they think might be inadmissible and don’t want the jury to hear.

Well, the State’s Motion in Liminie starts out pretty normal, but they then add in the "Biederman & Burleson" Clause. Both my partner Troy Burleson and myself are both certified to administer Standardized Field Sobriety Tests. This is the same certification the police officer’s have. I am an instruction in Standardized Field Sobriety Testing (I can teach the course that certifies the students). I guess they State doesn’t like the jury know we have more specialized knowledge than most of the officers.

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Published on: July 9, 2008

State Does Not Need to Charge How Someone Is Intoxicated in DWI Cases

By Hunter Biederman

In a brand new case out by the Court of Criminal Appeals, the Court has declared that the state does not need to be specific on which theory or theories of intoxication they need to prove.

In order to find someone guilty of DWI, the State must prove that person was intoxicated. Intoxicated means not having the normal use of your mental faculties, not having the normal use of your physical faculties, or having an alcohol concentration of above .08 at the time of driving. (this is my simplified definition — so attorneys, don’t jump on me about it!)

In the past, the state would have to add into the charging document (information for misdemeanors, indictment for felonies), which of those three definitions of intoxication they wanted to prove.

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Published on: May 20, 2008

DWI Jury Selection

By Hunter Biederman

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.

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Published on: May 8, 2008

You Are A Much Different Person In Trial

By Hunter Biederman

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??

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Published on: December 14, 2007

A DWI trial “win” is all relative

By Hunter Biederman

I’ve often said that the reason I do not post a list of trial "wins" on my website is because I feel that to do so is deceiving to potential clients. Simply saying "DWI case – Not Guilty" is not fair because EVERY case is different. Some cases, quite honestly, you SHOULD be winning. Some cases, are significantly harder. And in every case, the client’s idea of what a "win" is, is different.

My trial this week truly brings this point home. I represented a client accused of DWI 2nd. He provided a breath sample of .210, and .220. Close to 3 times the legal limit. The offer pre-trial was to be convicted of DWI second, $2000 fine, court costs, 2 years probation, an ignition interlock device on his car, a S.C.R.A.M. device (ankle monitor that checks for alcohol — very expensive), and 30 days in jail as a term and condition of his sentence.

We decided to take the case to trial, knowing that it was going to be a very tough battle. The jury ended up finding my client guilty. After a VERY hard fought trial, the judge assessed the punishment. the punishment ended up being a lower fine ($1000 instead of $2000), and only 5 days in jail instead of 30 days in jail.

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Published on: September 28, 2007

Plea Bargains Aren’t Just for Pre-Trial

By Hunter Biederman

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.

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Published on: September 7, 2007

Pitfalls of Testifying in DWI cases

By Hunter Biederman

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."

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