DWI License Suspension - A Small Victory

For the poor, unfortunate soul arrested for DWI in Texas, many people are surprised to learn that an arrest for DWI triggers not just one, but two cases. The first is the criminal case, in which the State must prove beyond a reasonable doubt that you loss the normal use of your mental or physical faculties. The second is a civil case regarding suspension of your license for refusing or failing a breath test.

Under the Transportation Code, you are entitled to a hearing on the license suspension if you request one within 15 days after receiving notice of the suspension (for most people, notice is given to you by the officer at the time of arrest). The issues at the hearing are pretty straight-forward and the Department must prove by preponderance of the evidence (more likely than not) that:

(1) reasonable suspicion or probable cause existed to stop or arrest the person;
(2) probable cause existed to believe that the person was:
(A) operating a motor vehicle in a public place while intoxicated; or
(B) operating a watercraft powered with an engine having a manufacturer's rating of 50 horsepower or above while intoxicated;
(3) the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and
(4) the person refused to submit to the taking of a specimen on request of the officer.

As a matter of practice, these are pretty much a slam-dunk for the Department. If the officer shows up and says he thought the person was intoxicated, then you lose. Every once in a while, though, something amazing happens.

I had a case this week that involved what's called a "total refusal" - the client refused field sobriety tests and the breath tests. The officer testified at the hearing that her speech was slurred and she was using the car door for balance when she was asked to step out of the vehicle. I offered the video for the judge, in which my client spends 20-30 minutes clearly and articulating telling the officer she does not want to perform his tests. No slurred speech. No balance problems.

Here's the amazing part: I actually won on the merits and avoided the license suspension. Hats off the the ALR judge for not merely rubber-stamping the arrest and making his own call. Many wouldn't have had the guts to do the right thing.

The Right to Cross Examine

In an interesting bit posted by the Washington Post, a Virgina judge threw out a breathalyzer certificate because prosecutors failed to make the person who performed the breath test available for cross-examination. The Virginia court relied primarily on the Supreme Court's most recent confrontation clause decision in Melendez-Diaz v. Massachusetts, which I gleefully posted on last month.

Of particular humor in the article was the comment, "But the prospect of bringing lab technicians and breathalyzer operators to court in every case has sent shock waves through prosecutors' offices across the country." My, my, my - isn't that a first-class example of the malaise of indolence gripping the government? The annoyance at actually being forced to call witnesses to prove their case before convicting citizens. Never mind that the framers (who had quite a few other issues to consider at the time) considered the Confrontation right so important it made the top ten list in the Constitution. This requirement has been in print for over 200 years and the new enforcement of it sends "shock waves." Amazing.

Despite the whines and cries to the contrary (and I assure you, this is whine in its purest sense), this is not going to "paralyze" the criminal justice system or result in mass loads of criminals waltzing out of prison. This kind of predictable scare tactic and misinformation usually emerges when the state doesn't get its way (by the way, come up with some new ones, really). Unfortunately, the claims actually have zero empirical evidence to support them. The vast majority of cases are still going to plead out, as many defendants are not going to risk going to trial on the gamble that a witness won't be available. And if it does end up clogging the system, perhaps the place to start is by re-examining our draconian and completely ineffectual drug laws rather than eviserating citizens' constitutional rights. In any event, it appears that the days of trial by affidavit are over.

Best "Boston Legal" Quote Ever:

Alan Shore: "My problem is the judge. His tiny brain has been calcified by intolerance."

Reading Case Law Depresses Me

So, being a younger attorney and not having the bulk of criminal case law memorized like my awesome mentoring attorneys, I frequently find that I have to go look things up. As I'm quickly learning, reading the law can be a rather depressing experience. Today's to-do involved researching whether or not statements made to law enforcement after arrest but before you were taken to see a judge were admissible.

I start off pretty excited, picking through the Supreme Court's recent opinion in Corley v. United States. There, the Supremes reversed a conviction because after arresting Mr. Corley, federal agents then took him aside and interrogated him rather than promptly presenting him to a magistrate as required by law. Mr. Corley, of course, gave both an oral and written confession, and a mere 29 hours later, he was finally taken to see a judge (to be fair to the agents, they did let him take a rest before he penned his written confession). No, no, said the court. You really do have to take people to see a judge rather than interrogating them in secret. This is America, after all.

Excited that the law appears to be on my side, I begin plotting my motion to suppress. I decide to check and see if Texas law carries a similar provision, and to my delight, it does. Code of Criminal procedure 15.17 requires that after arrest, the officer shall, without unnecessary delay, present the person to a magistrate. This language seems pretty straightforward to me, so the officer's decision to stop at the station and interrogate my client before taking him to a judge appears to be a no-no.

Not so, says the depressing Texas case law. Despite the fact that this law is on the books to prevent that exact abuse, every case I read says the defendant must show a nexus between the confession and the delay. And if they read you your Miranda rights, then it's totally cool. As one of the Supreme Court justices pointed out in Corley, this is not a constitutional issue. It's an issue of fundamental fairness and what kind of justice system we want to have - whether it's done openly or whether we allow people to be secretly interrogated before they get to talk to a judge. In this area, Texas gets an "F" for choosing the latter.

Harmful Error on Harmless Error!

In a state where some appellate courts go out of their way to find trial errors harmless, the Amarillo appellate court deserves a nod for their recent opinion in Mason v. State. The case involved the Potter County District Attorney allowing law enforcement to question witnesses in front of the grand jury, a clear violation of the grand jury statutes. The appellate court's opinion, to put it mildly, blasted the District Attorney for its blasé attitude towards following the law when indicting its citizens.

The opinion begins with this quote: “The greatest dangers in liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” - United States Supreme Court Justice Louis D. Brandeis. In other words, beware of well-meaning but dense people. As I read this, a few people come to mind immediately.

Speaking of dense, here's the State's arguments of why what they did was A-OK:

(1) State: "We misunderstood what the law meant." Appellate court: "Um, no. These statutes have been on the books since 1995 and 1989, respectively. And they were put there specifically to curb abuses in the grand jury process. Try again."

(2) State: "Who cares really? If we break these laws, it will always be a technicial violation that appellate courts will deem harmless error." Appellate court: "Wrong again - we're finding it is harmful error. Because otherwise you'll do this again and again with impunity."

They actually said it a little more firmly than that: "We cannot countenance the State’s purposeful violation of the law . . . If the State is able to avoid a just result in this case, its prosecutors will be able to violate these statutes with impunity and visit an injustice upon every citizen who comes under scrutiny by a Potter County Grand Jury."

Wow. Apparently some appellate judges take following the law pretty seriously. And think the State should too. Here's my favorite quote: "This is particularly unfortunate because the State’s error, as well as this possible cost, could have been avoided if the State had simply obeyed the law. Something the State requires of its citizens on a daily basis."

An appellate court upholding the law and demanding that prosecutors follow it as well? How refreshing. And subject to review by the Court of Criminal Appeals. This decision was about ensuring the integrity of our system - let's hope they let it stand.