Mark Ryan Thiessen

Mark Thiessen is a criminal trial lawyer and the Chairman/CEO of the Thiessen Law Firm in Houston, Texas. Mark is Board Certified in (1) Criminal Law by the Texas Board of Legal Specialization; (2) DUI Law by the DUI Defense Lawyers Association; and (3) DUI Defense Law by the National College for DUI Defense through the American Bar Association. Mark earned the American Chemical Society-Chemistry and the Law (ACS-CHAL) Forensic Lawyer-Scientist designation, which is the highest form of scientific recognition available for lawyers. Mark is a frequent legal seminar lecturer, author of numerous published legal articles, and a faculty member for various organizations. Mark is the current DWI Committee co-chair and on the Board of Directors for Texas Criminal Defense Lawyers Association (TCDLA), President and on the Board of Directors for Harris County Criminal Lawyers Association (HCCLA) and a Charter Member and Director for DUI Defense Lawyers Association (DUIDLA). Mark is a 7 time Texas Super Lawyer and in the Top 100 Super Lawyers in Houston (2017-19). In 2019, Mark was the only DWI lawyer to be named to the Top 100 Super Lawyers in all of Texas. Mark has won DWI cases from total refusals up to quadruple intoxication manslaughter. and 832-654-3058.

Cold Texting: The New Wave of Barratry

Recently, Harris County and other counties around that state have increased Personal Recognizance bonds. This bond paperwork then becomes public record. In this paperwork, people are requested to list their cell phone numbers, and some marketing companies and lawyers have started using this information to solicit new clients via text messages.

Rapidly evolving technology coupled with aggressive marketing tactics have created a new minefield for the uninformed lawyer. It’s been well settled that attorneys are not allowed to “cold call” potential new clients, whether it be for personal injury actions, criminal cases, or other legal work.  Often referred to as “ambulance chasing,” which has been rampant in the personal injury world for years, we are faced with a new similar threat in the criminal world. Welcome to the world of cold calling or cold texting clients on their cell based off public information received from the district clerk or bond documents. 

Unsolicited Text Messages Can Be Illegal

Texas Penal Code § 38.12(a) makes it a third-degree felony “if, with the intent to obtain an economic benefit the person…solicits employment, either in person or by telephone, for himself or another.” It is also a third-degree felony if a person “knowingly finances” or “invests funds the person believes are intended to further the commission” of act of barratry. Tex. Pen. Code § 38.12(b)(1-2). The Penal Code further prohibits a lawyer from knowingly accepting “employment within the scope of the person’s license … that results from the solicitation of employment in violation of [the barratry statute].” Tex. Pen. Code § 38.12(b)(3).1

A person convicted of barratry faces severe penalties from the State Bar because a “[f]inal conviction of felony barratry is a serious crime for all purposes and acts, specifically including the State Bar Rules and the Texas Rules of Disciplinary Procedure.” Tex. Pen. Code § 38.12(i). 

Depending on the facts surrounding the particular situation, a creative and aggressive prosecutor could even try to throw in a Money Laundering charge (Tex. Pen. Code § 34.01) for the amount of the fee that the client paid the lawyer who committed barratry.

The Texas Disciplinary Rules of Professional Conduct Frown Upon Unsolicited Text Messages

The Texas Disciplinary Rules of Professional Conduct recognize that “[i]n many situations, in-person, telephone, or other prohibited electronic solicitations by lawyers involve well-known opportunities for abuse of prospective clients.” Tex. Disc. R. of Prof. Cond. 7.03, com. 1. The “principal concerns presented by such contacts are that they can overbear the prospective client’s will, lead to hasty and ill-advised decisions concerning choice of counsel, and be very difficult to police.” Id.

Texas Disciplinary Rule of Professional Conduct 7.03(a) says that a “lawyer shall not by in-person contact, or by regulated telephone contact or other electronic contact…seek professional employment concerning a matter arising out of a particular occurrence or event…from a prospective client or nonclient who has not sought the lawyer’s advice regarding employment…” 

This same rule defines “regulated telephone contact” as “any electronic communication initiated by a lawyer or by any person acting on behalf of the lawyer…that will result in the person contacted communicating in a live, interactive manner with any other person by telephone or other electronic means.” Tex. Disc. R. of Prof. Cond. 7.03(f). Clearly, text messages fall under this definition.

Follow State Bar Rules for Advertisements

From the outset, when in doubt, follow the requirements of the State Bar of Texas Advertising Review Committee.  Submit your advertisement or plan of attack to the Bar and ask for permission.  Note: the Bar will never give a lawyer clearance over the phone. All advertisements must be submitted in writing, and if approved, will be approved by letter with a green stamp on it. Failure to have this written approval subjects the lawyer to defending their marketing tactic before the Bar. Rule of thumb if you have a “clever” new marketing idea: get it formally approved. Texas Disciplinary Rule of Professional Conduct 7.07 lays out the requirements for submitting your marketing idea to the State Bar for approval.

The State Bar has set very specific rules regarding unsolicited direct mail outs. See Tex. Disc. R. of Prof. Cond. 7.05. The font, color, and material must all be pre-approved by the State Bar. This is widely known and has been the case for over 20 years. However, with evolving technology, one could hypothetically reach potential clients faster than mail, by text, or direct phone call. The same rule that governs mail outs also governs electronic or digital solicitations. Id.

We are aware of only a single lawyer who received an approval letter from the State Bar of Texas Advertising Review Committee for the use of sending a text message to potential clients. It is important to note, however, that this opinion expressly stated that “[i]t does not address any unauthorized practice of law or ethics issues that may be present, which are beyond the scope of an advertising opinion.” Therefore, even if you get an approval from the State Bar of Texas Advertising Review Committee, you still face potential ethics issues, as discussed above, and liability issues, which are discussed in more detail below.

It should also be noted that the text message that received this approval stated “*ADVERTISEMENT*” in all capital letters at the top of the message and ended with “PLS DO NOT REPLY TO THIS MESSAGE. REPLIES ARE NOT RECEIVED NOR [sic] RETURNED.” Also, this text message only asks the recipient to call the number listed if the recipient did not already have an attorney. The fact that this was an automated message that lacked the ability for the lawyer to directly start a conversation with the potential client could have been an important factor that distinguishes this kind of message from interactive direct texting.

Be Careful with Lawyer Referral Services

Both the Texas Penal Code and the Texas Disciplinary Rules of Professional Conduct make it clear that a lawyer can get in trouble if that lawyer knowingly uses a lawyer referral service that breaks the rules. These services are regulated by the Texas Occupations Code, which defines a “lawyer referral service” as “a person or the service provided by the person that refers potential clients to lawyers regardless of whether the person uses the term ‘referral service’ to describe the service provided.” Tex. Occ. Code. § 952.003(1).

Many of the people operating lawyer referral services do not realize that a “person may not operate a lawyer referral service in this state unless the person holds a certificate issued” under the Occupations Code. Tex. Occ. Code § 952.101. Also, applicants for these certificates must be operated by a governmental entity, or a nonprofit entity. Tex. Occ. Code § 952.102. 

So, be weary when your email box gets flooded with various lawyer referral services trying to get you to pay them for client referrals. Many of these businesses are not operating legally. If your marketing company directly texts potential clients on your behalf, you are the one who faces the legal consequences.

Unsolicited Text Messages Seeking Clients is Illegal and Subjects the Sender to Civil Liability

There are several civil penalties that exist for directly soliciting clients via text message. Tex. Gov’t Code § 82.0651, for example, creates an aggressive civil penalty for barratry where the offending party must forfeit their attorney’s fees, pay a $10,000 fine, and pay the attorney’s fees of the party bringing an action.

Additionally, the Telephone Consumer protection Agency (TCPA) and Federal Communications Commission (FCC) regulations make it illegal for a company to send a text message unless the person receiving the text message gave consent to receive it, or if the message was sent for emergency purposes. While we all agree that getting new business is important, it falls well short of being an “emergency” under these regulations.

The bottom line is that any lawyer who directly or through a third party sends unsolicited text messages to people charged with a crime to solicit that person’s business risks significant criminal and civil liability. Lawyers should not cold call any number. The first contact, whether directly or through a legitimate lawyer referral service, needs to come from the potential client.

Duty to Report

As attorneys we have an affirmative ethical duty to report barratry. Tex. Disc. R. of Prof. Cond. 8.03.

However, if a text message mimics the requirements established in the Rules, would it be ethical? As of the date of this writing, we have found no ethics opinion or court opinion that authorizes such conduct. Any lawyer who wishes to engage in this unscrupulous tactic should first seek State Bar Advertising Review Committee approval, but even that will not necessarily shield you from ethical consequences or civil or criminal liability. 

While no lawyer wishes to “snitch” on a fellow lawyer, this affects us all and cheapens our profession. If we do not take action against this conduct, then we risk having a criminal bar that goes the way of the personal injury bar – where significant numbers of cases are illegally “run” by the criminal law version of the ambulance chaser in a cheap suit. This illegal and unethical conduct makes all of us look bad in a world where people already have a hard time trusting lawyers. 

Some might suggest that an unsolicited text message is no different from mailouts, which have been approved and have been happening for years. Unsolicited texts messages are distinguished from mailouts for several reasons:

  1. Direct mailouts don’t cost the client anything. The United States Postal Service is a free service for receivers unlike cell phone or even landlines. Many subscribers must pay for call minutes or data used for texting. Many calls or texts are not free to a potential new client. Some clients work extremely hard just to pay to keep their phone on; imagine if that client was then inundated with hundreds of unsolicited calls or texts from lawyers. The fees would become an extreme hardship and they should not have to pay them just because their information was placed on a bond or cross referenced via public data.
  2. As stated above, lawyer marketing must be submitted to the State Bar for approval. If the marketing is approved, the State Bar will then send you a letter with its verification. This is a crucial step that must be taken by any lawyer who wishes to tread in these ethically murky waters.
  3. A person’s cell phone is a greater invasion of privacy than a land line. In the past, municipalities provided phone books which gave specific addresses or names for landline numbers. Cell phone numbers are not freely given for a good reason. Cell phones are also no longer publicly attached to an address. Spam calling, and telemarketing are all allowed to be blocked for the protection of privacy. Attorneys should not be allowed to circumvent this privacy in the hopes of gaining a new client.
  4. There is a delay with mailouts that provides a “cooling off” period for the potential client to avoid making a “hasty and ill-advised decision.” See Tex. Disc. R. of Prof. Cond. 7.03, comm. 1. An unsolicited text message can reach a prospective client literally the minute after they get out of jail when that client is particularly vulnerable.
  5. Citizens are used to junk mail. While it is not unusual to get many pieces of junk mail in your mailbox, it is not as common to get direct calls or text messages. These texts or calls are personal and come with more physical, psychological, and legal pressure than direct mail outs. Calling or texting prospective clients the moment they are released from jail on potentially the most life-changing day of their lives creates alarmism that could cause that person to make rash decisions.  Indeed, the Texas Penal Code creates a 30 day “no solicitation” period for personal injury or wrongful death cases. See Tex. Penal Code § 38.12(d)(2)(A). Shouldn’t people accused of crimes, with all the safeguards afforded by the constitution, be entitled to the same grace period?

No one likes to snitch on friends. However, the practice of unsolicited text messaging is unethical and illegal unless specifically allowed by the State Bar. This article is not intended to encourage grievances, prosecution, or civil lawsuits; rather, it is intended to educate those attorneys who think they or the company they hired found a cutting age way to market for new clients. Technology may be evolving, but the basics of law remain the same. Remember, pigs get fat, hogs get slaughtered. If you have a new way to market, get it approved. The State Bar will not tell your competitors, but this approval will vindicate you when your competitors take offense.

How to Fix a Blood Warrant Scandal

If you haven’t seen the Netflix docuseries How to Fix a Drug Scandal, stop what you are doing.  Go invest four hours of your life.  Prepare to be blown away.  Director, Erin Lee Carr, explores how far government employees (attorneys, judges, and lab personnel) are willing to go to prevent mass decriminalization.  While the cases in the docuseries involved two drug lab analysts compromising drug testing in Massachusetts, a similar battle is raging in Texas involving blood labs and the way blood warrants are written.  Since the Court of Criminal Appeals landmark decision in Martinez, which declared that the seizure of one’s blood and the subsequent testing of one’s blood are two distinct searches under the Fourth Amendment, various Courts of Appeal are trying to distinguish the language to avoid suppressing blood results in Driving While Intoxicated (DWI) related cases and accidents.  The fix is in, and courts seem more concerned with protecting convictions than following the law.  Until our courts force the government to follow basic Fourth Amendment Law, the fix may be in, but the problem remains.

Massachusetts’ Scandal

In 2013, Massachusetts State Police arrested 35-year old Amherst crime lab chemist, Sonja Farak, for tampering with evidence: and that was only the beginning.1  Over time and once Farak had been given immunity, details emerged that Farak had been in fact using the drugs that she was tasked with testing—for nearly a decade.  The scope of Farak’s addiction and the number of people convicted as a result of her drug testing came to light despite repeated efforts to hide the scope of Farak’s wrongdoing.2  The docuseries How to Fix a Drug Scandal examines the lengths to which some actors in the criminal justice system will go to protect convictions, cover up a scandal, and affect 35,000 lives in the process.

Farak was not the only one.  Just six months before Farak’s arrest, another Massachusetts lab chemist, Annie Dookhan, was caught dry labbing her results.3  Dry labbing is simply plucking a result out of thin air and reporting it—without ever testing a sample.  Dookhan’s work affected thousands of cases.  Whereas Farak was literally high for most of her Amherst lab career, she actually tested the samples.  Dookhan, on the other hand, lied about testing every sample.4

Together, Farak and Dookhan were responsible for compromising over 35,000 drug cases which helped land thousands of people in prison.5

But in April 2017, 21,587 cases were dismissed because of Dookhan’s involvement, according to Bustle.6  In 2019, the Boston Globe reported that over 24,000 charges from around 16,000 cases were dismissed due to Farak’s involvement.7

Texas’ Growing Scandal

When analyzing the atrocities that occurred in Massachusetts and the nature of the scandal, one realizes the limitless potential for abuse by lab employees with little or no oversight.8  It starts with the police who are tasked with getting crime off the streets.  Any evidence collected should be analyzed and reported by an independent lab.  An independent lab is critical for accurate, reliable and credible results since it is such powerful evidence.  As we know, all labs make mistakes. However, very few labs or analysts will ever admit making mistakes.9  The accused then hires a criminal defense attorney to essentially audit the lab results and ensure that any search and seizure was in accordance with the Constitution.  Ultimately, the trial judge should then act as “Gate Keeper,” refusing evidence when the testing does not clearly and convincingly show reliable, accurate results.

As Massachusetts showed us, the desire to keep convictions and prevent a scandal far outweigh following the law, being open and honest with juries about all of the issues, and requiring proper policy and procedure checks and balances.  When a mistake is made, Judges should encourage dissemination of all faulty evidence and demand corrective action.  But in reality, Massachusetts fought tooth and nail to keep the public at large—and those affected and on trial—in the dark about the evidence at the heart of the scandal.

These lab issues are not unique to Massachusetts.  Already in Texas, private chemist Amanda Culbertson discovered dry labbing (28 of 32 people in a sample batch run) by Texas Department of Public Safety crime lab El Paso analyst Ana Romero.  Culbertson found Romero had essentially copied and pasted the data from one subject to another.  And those electronic data files were “magically erased.”  In two complaints, Culbertson reported her findings to the Texas Forensic Science Commission (TFSC), which investigated the claim.10  The TFSC found evidence Romero may have dry labbed or may just have been negligent for the lab not to have procedural safeguards in place protect against dry labbing.11

The TFSC abandoned the 28 blood tests and enacted preventative measures but never talked to Romero.12  To date, Romero has not been charged or properly investigated and granted immunity to disclose how far her dry labbing goes back to determine how many cases were truly affected over her tenure in the crime laboratory. 

Just like Massachusetts and any science lab run by human beings, Texas has crime lab evidence issues.  The next wave to fix a blood warrant scandal is making its way through the judiciary—fighting the mass suppression of results and failure to demand narrowly drawn warrants and searches of the “informational dimension” of blood evidence.

Judges Fighting Martinez

Martinez requires the government to obtain an additional search warrant to authorize the testing and analysis of blood separate from seizing the blood for medical purposes.13  After a traffic accident, Martinez was taken to the hospital where medical personnel drew his blood for medical purposes.14  Martinez voluntarily left the hospital after informing nurses he could not afford any tests.15  Subsequently, upon the State’s presentation of a grand jury subpoena, the hospital released Martinez’s blood to a Department of Public Safety agent; the State sent the blood to a crime laboratory for testing.16 Martinez moved to suppress the blood test results, and the trial court granted the motion.17  Affirming the trial court, the Court of Criminal Appeals held “there is a Fourth Amendment privacy interest in blood that has already been drawn for medical purposes.”18  Martinez had a subjective expectation of privacy in his blood drawn for medical purposes, and the State’s warrantless testing of the blood “was a Fourth Amendment search separate and apart from the [initial] seizure of the blood by the State.”19  Because no exception to the warrant requirement applied, the State was require to obtain a warrant before testing Martinez’s blood.20

Some trial courts are properly suppressing blood in accordance with the Fourth Amendment and Martinez—finding that a blood warrant was obtained to draw the subject’s blood (seizure), but a subsequent search warrant for the testing and analysis (searching) was never obtained.21  However, various Courts of Appeal are refusing to follow Martinez and are narrowly construing the facts in order to avoid proper suppression.22  In CriderHyland, and Staton, the courts mistakenly relied on the fact that in Martinez the blood was drawn by a hospital for medical purposes.23

How to Prevent a Scandal

It may seem like a rhetorical question, but how can the Judicial Branch (Judges) and the Executive Branch (State attorneys) remain distinct to prevent this growing scandal?  

  1. Seize the Blood Legally

There are really only three ways that the people of Texas can have their blood drawn legally.  The first is by consent.  But consent to a blood draw must be freely and voluntarily given.24   Or they are unconscious and have deemed to consent via Texas’s Implied Consent statute.25  The second way is that a hospital is allowed to draw someone’s blood for medical purposes and not at the direction of the police.  HIPAA governs and protects the person’s privacy.  But the State may then go get a grand jury subpoena and ask for the person’s records or evidence.26  This is what happened in Martinez—the State used a grand jury subpoena for evidence obtained for medical purposes.27  And third, as is custom around Texas, a Judge signs a blood warrant to draw the blood from the person and authorizes a variety of people to help in that extraction. 

The Court of Criminal Appeals already acknowledged there are two distinct triggering events implicating Fourth Amendment protection: 1) the initial extraction of the blood from the arm, and 2) the subsequent search of the “informational dimension” of the blood.28

Various Courts of Appeal are fighting Martinez and using the hospital draw as the distinguishing factor.  However, no one is arguing that a valid blood draw warrant doesn’t grant the police agency authority to properly seize the blood from the arm. Martinez’s blood was drawn in a valid manner just as a valid blood draw warrant would allow.  What’s missing is the subsequent authority or power to violate a person’s Fourth Amendment privacy concerns and conduct a search on the information contained within the blood.

  1. Search the Blood Legally

Blood draws and warrants really began to be the normal policy and procedure around 12 years ago.  Since that time, many counties are able to get blood warrants 24 hours a day, seven days a week.  And somewhere about 7 years ago, the State began drafting form affidavits for blood warrants and form blood warrants for judges or magistrates to sign.  These forms were undoubtedly written to make the State more efficient and reduce the number of mistakes that could invalidate a warrant.  But, importantly, these pre-Martinez form warrants only authorized an extraction of blood—not subsequent testing. 

Remember, if properly drawn in a grey top tube as required by Texas DPS procedure, these tubes should contain a preservative and an anti-coagulant and be properly refrigerated.  Numerous State analysts testify that the blood was properly drawn, stored and available to the defense to retest at any time.  If that’s the case, what is stopping the State from retesting the blood with a proper search warrant?  

  1. No Common-Sense Exception to the Fourth Amendment

The Crider and Staton courts boldly claim “common sense dictates that blood drawn for a specific purpose will be analyzed for that purpose and no other.”29  But a neutral, detached magistrate’s “common sense” reading all depends on what the affiant-officer is qualified to opine about.  Most blood warrant affidavits are signed by an officer who was certified only in Standard Field Sobriety Tests, which are exclusive to determining intoxication by alcohol.  Most of these affidavits only show signs of alcohol intoxication and ultimately opine only alcohol as the intoxicating substance.  And then, the results come back under the legal limit, or it involves a death or serious injury and the State then tests the blood for drugs or medications.

What if the officer is not a Drug Recognition Expert? What qualifications does he possess even to speculate on what substance the person is intoxicated?  And did he conduct an examination?  The magistrate or judge signing the warrant must first determine the scope of the search based on the facts and qualifications of the officer swearing to the information in the affidavit.

While the Courts of Appeals suggest using “common sense” in order to determine what the State of Texas will want to search for, they obviously underestimate the zeal of the State of Texas and overlook the constitutional purpose behind the Fourth Amendment.  

Our current practice violates the most fundamental tenant of Fourth Amendment law—preventing the government from conducting limitless, general searches.30  Presumptions should be in favor of citizens, not the government.  Drafting warrants to cover these situations is nothing new, and courts should not worry about testing other seized evidence: “Because biological evidence is sui generis, this practice need not be replicated under circumstances when the object of the warrant is nonbiological[.]”31  The State can, moreover, streamline the process by drafting a single warrant properly tailored to authorize both drawing and testing.  Professor LaFave’s treatise explains:

When a magistrate is faced with a petition for a search warrant attempting to seize biological evidence (such as blood) from a criminal suspect, the warrant that issues should explicitly incorporate the scope of testing authorized on that sample. To obviate the general warrant problem, such restrictions need to be narrowly tailored in light of the supporting affidavit of probable cause presented.32

The State routinely searches for alcohol, medication, and/or illegal drugs on their own request all without a warrant specifically allowing the search.  The State must be required to rewrite the pre-Martinez warrants to expressly authorize what the blood is to be searched for, using what type of analysis, and for what length of time, just like a warrant to search a house, which contains less sensitive information than a person’s blood.

Easy Fix to Prevent a Scandal

It’s now in the hands of the Court of Criminal Appeals. Some trial courts have followed Martinez by properly suppressing evidence, but various courts have tried to distinguish or interpret the intentions of the Court of Criminal Appeals in Martinez to avoid suppression.  What if the State of Texas just did it right?  The State has been relying on pre-Martinez forms to get what are now insufficient blood warrants.  First, the State should be required to rewrite all the blood warrant forms to accurately reflect Martinez.  This would require specifically stating the blood is to be tested and analyzed, how it will be analyzed, for what substances and within what period of time.  Second, for all current cases with this outdated paperwork, the State needs to go get a new warrant and retest all of their samples.

Yes, Martinez may require more paperwork.  It is not busy work, though.  Justice favors protecting our Constitutional rights more than potentially suppressing blood, reopening cases, and decriminalizing some people.  Massachusetts learned the hard way by trying to cover up a drug lab scandal.  Texas is in the midst of a blood warrant scandal.  The Courts can remain unbiased and detached and not feel any guilt by trying to cover up the State’s outdated paperwork or desire not to back log the crime labs.  Let’s not trample our Fourth Amendment to prevent suppression of illegally searched evidence.  Get the State to do their job and not aid in covering up this injustice.

* The authors would like to thank Dustin Hoffman, Law Clerk at Westfall Sellers and 2020 Texas A&M School of Law J.D. Candidate, for helping write this paper.

Back to Basics: Attack SFSTs, Not the Officer

In the heat of trial, all trial attorneys fight vigorously for their DWI clients. In that fight, it’s understandable that you want to destroy the officer, destroy the Standard Field Sobriety Tests (SFSTs), and vindicate your client. Oftentimes, however, juries end up feeling sorry for the bumbling police officer and will hold it against the client if the attorney berates or embarrasses the officer. This article will explore a trial-tested, proven method that educates a jury on the complexities and meticulous grading system of the SFSTs rather than attacking the officer. Attack the system, not the officer. In the end, if done properly, the jury will empathize with the client. This empathy will assist the jury in finding the client not guilty—without leaving jurors feeling guilty for voting against law enforcement.

The Officer Is a Human Being

We can all agree there are good and bad officers. Just like attorneys. And contrary to popular belief, even “bad” officers are people too. Just because officers may be “bad” or incompetent at their jobs doesn’t mean they are evil. Somewhere, to someone, they are human with all the emotions, positive attributes, negative attributes, good days, bad days, highs and lows that we all enjoy and suffer. Someone out there loves them. They are someone’s family member. Once upon a time, they took an oath to protect and serve the community we live in. Most of the time, they may still be trying to do their best, but their best is sub-par. Remember this—seriously.

You must think like an average juror. How many clients are shocked that the officer “is bold-faced lying” on the stand? We can’t let our daily experiences jade and warp us. Put yourself in the shoes of your family or friends who have minimal police contact. Most respect police and admire their sacrifice. Growing up we were all probably taught to respect and trust the police. And honestly, most of us still do, for the most part. Hell, even criminal defense lawyers introduce their kids to their police friends and teach their kids to respect and honor the police. Most of our jurors were raised the same and probably raise their own kids this way.

Only in roughly the last seven years did police misconduct and abuse of power really start making the news. In the past couple years, the pendulum has swung—giving jurors cause to be wary or even scared of the police in certain situations. The world is slowly recognizing the magnitude of the problem and the catastrophic consequences when police lie, hide or destroy evidence, collude, or make “honest” mistakes.

To conclude this paean to the humanity of police officers, just try your best to remember the jury starts out thinking they are good cops. Being one of the biggest offenders of the scorched-earth cross-examination, we understand the eye rolls. But it’s not about what we know, it’s how we convey it to the jury. In the famous words of Dalton from “Road House”: “Be nice. I want you to be nice, until it’s time not to be nice.”

Standard Field Sobriety Test Hard Truths

The Standard Field Sobriety tests were developed around 1975 when National Highway Traffic and Safety Administration (NHTSA) performed research with South California Research Institute (SCRI) to determine which roadside field sobriety tests were the most accurate.1 SCRI published three reports:

  1. California 1977 (Lab);
  2. California 1981 (Lab and Field); and
  3. Maryland, D.C., V.A., N.C. 1983 (Field).

SCRI originally travelled around the United States with six tests, but narrowed it to the three tests we know today: Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and the One Leg Stand (OLS).

Twenty years later, three validation tests were undertaken between 1995 and 1998:

  1. Colorado 1995;
  2. Florida 1997;
  3. San Diego 1998.2

Many other articles examine the pitfalls and biases of these validation studies. Concocted in the ’70s and validated in the ’90s, these tests are now 40+ years old and haven’t been revalidated in the last 20 years. SFSTs are not a law of physics or science—meaning they are not indisputable. These are simply coordination exercises created by police and “scientists” in the ’70s.3

How the Officer Is Trained to Administer the SFSTs

Before we dive into the actual SFSTs, it’s important to educate the jury on just how this officer was trained and who trained them. Set the stage to illustrate the difference between how they were graded on their SFST proficiency test and how they now grade people on the SFSTs. “Before we get into the tests, can we just explore how you learned to give these tests?” Officers are usually happy to boast about their training. Start by establishing when the officer was first certified to administer the tests. It’s usually in the academy.4

  • And how long was your course (usually 24–40 hours, around a week)?
  • Who trained you (other officers)?
  • When you were trained, did your teacher tell you how to administer the tests and then just grade you on administering them?
  • No, you were provided a textbook— the SFST manual? You still have it? Did you bring it today?

At this point, if not done prior, establish that the NHTSA student SFST manual is a learned treatise under Texas Rules of Evidence 803(18). Rule 803(18) clearly states that a learned treatise may be read into evidence, but not received as an exhibit.

Be ready for the State’s objections when you begin reading from the manual. Many untrained prosecutors will try to prohibit you from reading a document not in evidence or try to admit the manual. “Your honor, I would love to admit this manual, but unfortunately under TRE 803(18) it’s specifically prohibited.” The prosecutor may also object to defense counsel reading it into evidence and not the officer. Nowhere in 803(18) does it say who is allowed to read the learned treatise. And who do you think puts more inflection and importance in reading the necessary language? The defense attorney should read it and is absolutely allowed to—once it’s established as a learned treatise.

  • Officer, you were trained according to the NHTSA student manual? And you agree it’s authoritative on how to administer these tests? BAM! 803(18)

If the officer gets shifty with what year manual, all of the manuals can be found online and you can find most on the TCDLA app. Prior to trial, it helps to establish either with the State or the officer on which edition of the manual they were trained and on whether they accept that it is authoritative. If the officer is really difficult and wants to use his manual, ask for a continuance so the officer can go get his manual—or send the officer a subpoena duces tecum to bring their SFST manual prior to trial. Most judges are very familiar with the NHTSA SFST manual and will not tolerate the officer’s games.

Back to examining their training:

  • When you were trained, you got to practice administering these tests?
  • You were allowed to study the entire week? You were allowed to practice the entire week?
  • You knew at the end of the week you would be tested?
  • You knew that you would be tested on the clues, the definitions, and administration?
  • And you had to get a 70, 75, 80% grade to pass? (Most don’t know the actual passing percentage.)
  • Now when graded, you got credit for the answers you got right?
  • Just like in school and every test you’ve ever taken?
  • On a 100-question multiple-choice test, you miss 6, what’s your grade (94)?
  • That’s because you get credit for every answer you got right?
  • If your kid came home from school, missed six, and had an F written next to that 94, what would you do? (Most say march down to that school. Agree. And welcome the sidebar objection.)

“Officer, I’m Not Here to Bust Your Chops”

Say it 10 times during your cross. Do not attack the officer—attack the tests. “Officer, I know these aren’t your tests. You didn’t design them. You are just following what you were trained to do. So, I’m not busting your chops.” Repeat this over and over. Let the jury know we are not attacking this officer. We are not complaining about the officer. We don’t hate the player; we hate the game.

“But, Officer, if someone admits to drinking or you think they might be intoxicated, you are going to give them these tests in this same standard way.” Start putting the jurors’ minds in the shoes of the client. Many times, I’ve even gestured around the entire courtroom and stated: “So everyone in this entire courtroom, as long as they are not intoxicated, should be able to pass these tests? Judge, reporter, bailiffs, people in the gallery, everyone in this whole courtroom?”

Purposefully leave out the jurors to avoid any potential objection. Some officers may pause because they know there are certain limitations on the SFSTs. “Well, I mean there are certain people that may have difficulty with these tests naturally, right? Those over 65 years old, 50 pounds or more overweight, leg, back, or neck injuries, head injuries or trauma, and lots of other ailments?”

Remind the jury the officer has no medical training and wasn’t trained by any doctors or nurses. Most officers were told to just take the client’s age, weight, or injuries “into consideration” when determining intoxication. Yeah, right! “But again, officer, I’m not here to bust your chops. Let’s examine these tests so that if anyone wanted to try them out, they could know what to look for and how to grade them.” What’s the officer going to say?

Before examining the SFSTs, it’s helpful for the jury to visually understand the tests and clues. Whether you bring an easel and butcher paper, your tablet on the screen, or even a dry-erase board, make sure it’s a large and colorful demonstration. Imagine a CLE with no PowerPoint versus one with colorful displays. Like us, jurors appreciate, learn better from, and remember colorful presentations.

Horizontal Gaze Nystagmus (HGN)

Most jurors have seen some sort of advertisement or illustration of an officer waiving a pen in front of the eyes. Before getting into the HGN, dive a little deeper into their training. Explore their range of knowledge. “Officer, you know there are many different types of nystagmus—88 actually?” It’s unimportant how many types of nystagmus the officer knows, but he will always agree there are many. Only a few are listed in the NHTSA student manual. Most officers have only read about these other types, or maybe seen them on video. Very few have actually seen them in person or done testing and seen these. It’s important to educate the jury that there are so many different ways the eyes can jerk and for a variety of medical, environmental, or natural conditions. Additionally, the jury needs to know who trained the police officer to distinguish the minute jerks of the eye.

  • Now, officer, I’m not busting your chops, but were you trained by an ophthalmologist?
  • Optometrist?
  • Nurse?
  • Person who worked for Lens Crafters?
  • Anyone wearing a white lab coat?
  • The police officer that trained you, he didn’t show you the other types?
  • Have you ever heard of Bruns, latent, pendular, vestibulo ocular, spasmus, or rebound nystagmus?
  • Has anyone showed you the difference between those and horizontal gaze nystagmus?
  • In your manual, you have optokinetic, rotational, post rotational, caloric, and positional alcohol?
  • Have you ever even seen those?
  • And those look just like horizontal gaze, but for non-intoxicated reasons?

Now start demonstrating the HGN main points for the jury to see. Write HGN in black on the top of the pad on your easel. “How far do the eyes have to jerk in order to be counted as a jerk?” Most officers get confused and hesitate. “If we wanted to put a ruler underneath the human eye, the jerk of the eye is millimeters, right? Maybe a centimeter? Maybe 1/32 of an inch? So how far does the NHTSA manual say the eye must jerk in order to be counted as a jerk? How many millimeters?” If the officer continues to hesitate, rescue him: “Sorry, Officer, I’m not busting your chops. There is no definition, right?” Write: No Def. of How Far Jerk (mm).

“How many times does the NHTSA manual say the eye must jerk in order to be counted as a clue of intoxication?” Write: No Def # of Jerks. Some officers may get cheeky and say it just has to be distinct and sustained. Break it down for the officer, gently. “Distinct means you clearly see it. And sustained means it must be continual. And that’s just for the second pass when you are holding it out for at least four seconds. What about in the first clue—lack of smooth pursuit? How many times does it have to jerk when you are just going side to side? And then in the third clue—onset prior to 45 degrees—how many times does it have to jerk before 45 degrees for you to stop your pen before you get to their shoulder?” Most officers will state just once. If they are still being evasive, refer back to the learned treatise NHTSA manual. “Show me in this manual where it says once, twice, three times a lady that it had to jerk?” Even writing this type of evasive answering makes me want to destroy this officer. Repeat to yourself: This officer is human, he is loved by someone, somewhere. Get back to your center. “Officer, I’m not trying to bust your chops, this is not your test, you did not design these tests. Nowhere in this manual did anyone ever state how far or how many times the eyes had to jerk?”

Most prosecutors have already bored the judge and jury to death with the timing of the HGN. Usually the officer has been properly woodshedded by the state and knows the HGN timing. If he doesn’t, or did it grossly wrong on the video, you may want to show the jury the difference between NHTSA standards and how the officer administered it.

But this article suggests a different tactic in attacking the HGN, one that is not based on breaking down the timing. The HGN is not a divided-attention test like the Walk and Turn (WAT) or the One Leg Stand (OLS). The officer will agree. If not, the NHTSA manual defines the WAT and OLS as divided-attention tests. The manual defines HGN as an involuntary jerking of the eyes as they gaze toward the side. Nothing about HGN or Nystagmus says divided attention. Remember to be careful with your words here: “Nystagmus does not measure mental or physical faculties?” No, it doesn’t. Inexperienced officers will try to argue that it does. To combat this, simply illustrate that nystagmus is an “involuntary” jerking and cannot be controlled by our eye muscles, as much as we may want to. And we cannot make our brains, through the neurons, control this involuntary jerking, as much as we want to. Some persistent officers will continue to argue, at which point you may need to distinguish where the loss of mental or physical faculties comes into the WAT and OLS, and how that’s not possible in the HGN. Nowhere in the NHTSA manual does it say loss of mental or physical faculties for HGN. Depending on the remarks in the video, if the officer just will not agree nystagmus doesn’t measure mental or physical, ask them about the client’s performance, like this:

  • He had no problem following your stimulus?
  • You never had to tell him not to move his head?
  • So, he displayed good mental faculties in following your instructions?
  • He displayed good physical faculties in watching your stimulus and not moving his head?

The jury will be turned off and the officer will damage credibility by continuing to argue.

Under your HGN heading, write: Does Not Measure Mental or Physical Faculties. After this amount of cross, the officer has already established a reputation with the jury. Discuss the findings on the HGN. “You found six out of six clues on my client? That’s all of them, maxed out?” Write: 6/6 on the board in the top left in red. We will come back to this at the end of all the SFSTs.5

“There is no way that I can prove you didn’t see those little jerks? Stimulus is 12–15 inches from their face, your face is about another 12–15 inches from your hand. That’s 24–30 inches from his eye, at night, looking for millimeters of jerks.” The jury gets it.

“You never stated out loud when you saw these clues on camera? You never said lack of smooth pursuit, maximum, onset into your mic while you were doing them? In fact, you wrote down how many clues you saw when writing you report? You wrote your report after you had determined he was intoxicated? After you had arrested him? After you towed his car?”

Some officers may say they are prohibited from stating the clues on the video by law, which is correct under Fischer. “Well you could have said them and then we just would have muted it. But it could serve to remind you which clues you actually saw? But you remembered later, you saw all of them? We just have to trust you?” Write: Trust Me in big red letters on the top right of the board.

“You didn’t arrest him after the HGN test, did you? Even though you got all six out of six clues? The next test you administered was the Walk and Turn?”6

The Walk and Turn (WAT)

The WAT is a divided-attention test meaning that it is supposed to measure your mental and physical faculties. In plain English, they want to see how well you can listen to instructions (mental) and then perform what you just heard (physical). The WAT is a test where the video will actually show us the client’s performance. There is no “trust me” in the WAT. The overall intent in dissecting this test is honestly for the jury to go home, try it, and realize how absolutely ridiculous this test is and how strictly it’s graded. Slowly break down this test to the jury using the officer and the NHTSA manual.

Turn to a new page on your easel and write WAT in big black letters at the top of your display. Then lay out the eight clues of intoxication NHTSA established. Know them by heart; it’s your profession. Start writing them down on the board as you recite them. “The first two clues come in the Instruction Phase, meaning they have to stand like this while you give the instructions and demonstrate. 1. Can’t Maintain Balance; 2. Starts Too Soon. The next six come during the Walking Phase. 3. Steps Off Line. 4. Misses Heel to Toe. 5. Raises Arms. 6. Stops While Walking. 7. Incorrect Number of Steps. 8. Improper Turn.” Now the jury can clearly see what the test is graded on.7

Next, show the jury how the test is really administered. Ask the judge to stand up and demonstrate portions.

  • “Officer, this test has 18 unique instructions? Don’t worry, I’m not quizzing you. Let’s go through them together (count these out on your fingers as you go so that the jury can follow along):
      1. Place your feet on a line
      2. In a heel-to-toe manner
      3. Left foot behind right foot
      4. With arms at sides and give a demonstration, tell subject
      5. Not to begin until instructed to so do and ask if subject understands. Tell subject to take
      6. Nine
      7. Heel-to-toe steps
      8. On the line and demonstrates. Explain and demonstrate the turning procedure:
      9. Lead foot planted
      10. Take a series of small steps
      11. To the left direction. Tell the subject to
      12. Return on the line
      13. Taking nine
      14. Heel-to-toe steps
      15. Count out loud
      16. Look at feet while walking
      17. Don’t raise arms from sides. And
      18. Do not stop once they have started. Do they understand?8

Write: 18 Instructions on the board top left in red. “How many times did you demonstrate the test?” Write: 1x Demo or whatever they say. “How many times did you allow him to practice this test before grading him?” Write: 0 Practice. “Did you tell him the clues you would be grading him on?” Write: 0 Clues Given. “Did you give him credit for all the good stuff he did right?” Some may argue or be confused. Circle back to their training and their testing and how they were given credit for all the answers they got right. Hell, every test anyone has ever taken they got credit for the stuff done right! “You agree age, weight, leg, back, or neck injuries may affect an individual’s performance on this test?” Write: [whatever issue your client has]. “Now tell the jury how many clues equals failure or the decision point?” Write: 2 = Intox.

Next show the jury how meticulous the test is scored. Go through each of the clues and define them. When you get to heel-to-toe, ask the officer to show the jury with his fingers just how far someone has to miss heel-to-toe in order to be counted as a clue of intoxication. And make sure to ask if that half inch is between his fingernails or finger beds, on just one step. Write: the measurements of ½ inch and >6 inches next to heel-to-toe and raises arms. Be sure to put green check marks next to all the clues your client didn’t exhibit. When you get to improper turn, you should slow down and explain to the jury that there are three ways you can get that clue: series of small steps, leave the lead foot planted, and turn to the left. Let the jury see all of the ways there are to get a clue of intoxication.9

Bring it home for the jury. Ask the officer how many clues your client exhibited. Write 4/8 or whatever it was. “So, you’re telling me that every single sober person in here has to get a zero or one on this test? Because two equals intoxication?” Look at the jury after the officer admits this. Share that common ground with them. “So you’re telling me, if someone were to go home and try this test, not that anyone would, but now knowing all of the clues and how it’s graded [optional sidebar: which is something my client didn’t know], they should be able to get a zero or a one on it?” You have to love the zealous officer who will not only agree but add that the tests are easy, or that he sees plenty of people pass them.

Finish off the cross with a final blow. “Officer, is this a normal or abnormal way to walk?” Most officers will never admit it’s “abnormal.” Ask them: “Who else walks like that?” Most either can’t think of it or don’t want to say it—gymnasts on a balance beam (but they get to balance with their arms to the side) and tight rope walkers (but they get that long bar). Write: Abnormal in the top left in red. “Now, I’m not busting your chops, these aren’t your tests, but you’re supposed to judge whether someone has lost the normal use of their mental and physical faculties on an abnormal test? And you still didn’t arrest my client after this test?”

The One Leg Stand (OLS)

Very similar to the WAT, lay out the OLS. Start with the clues: 1. Sways; 2. Hops; 3. Drops; and 4. Raises Arms. Count out the instructions: 1. Stand straight; 2. Place feet together; 3. Hold arms at sides; 4. Tell subject not to begin until instructed to do so and ask if they understand; 5. Raise one leg, either leg; 6. Approximately 6 inches off the ground; 7. Keeping the raised foot parallel to the ground (and give a demonstration), tell subject: 8. Keep both legs straight; and 9. Look at the elevated foot; 10. Count out loud, in the following manner: 11. One thousand and one, one thousand and two, one thousand and three 12. Until told to stop. And give demonstration.

Follow the pattern in the WAT and write: 12 instructions, 1x demo, 0 practice, 0 clues given, 0 credit given, age, weight, back, leg, or neck injuries may affect, 2 = intoxicated.

When examining each clue, be sure to establish there is no distance for sway as defined by NHTSA.10 No definition of how many inches or how long someone must sway. Write: ? You don’t need to save the abnormal surprise; the jury gets it. “Is this a normal or abnormal way to stand? Even the Karate Kid got to raise his arms for balance.” And then bring it home: “So everyone in this room better be able to get a zero or one on this test? And all humans have a natural sway when standing on one leg? So that’s one clue already with no definition of how far or how long one must sway? That means everyone should be able to stand on one leg for 30 seconds without dropping it, and not raise their arms or hop the entire time? Not that anyone would ever try that at home.”

Before you wrap up your cross, come back around to the HGN. “My client got 4/8 on the WAT and 2/4 on the OLS, right? Never maxed out any of these tests as we can clearly see on video. But after you arrested him, towed his car, and got to write your report, you wrote 6/6 on the HGN?” The jury sees where you are going. The officer sees where you are going. It’s a rhetorical question. Let the jury ask and answer it in their heads. “So, we just have to trust you that he failed that miserably, but on the video, he looked good (we probably are not in trial if he doesn’t look good)?”

Lastly, bring the fear home. “Not to bust your chops officer, because these aren’t your tests, but if someone is pulled over on the way home from dinner and smells like alcohol or admits to drinking at dinner, they could have to do these tests? And then if they do these tests, you will have to administer it in the standardized manner only and grade it just like we saw? Zero or one to go home?”

This will resonate with everyone. As you can tell from breaking down these tests, they are next-to impossible. We as defense lawyers know these tests, and on any given day with the weather, nerves, and our conditioning, we couldn’t pass these. To assume regular, everyday people who don’t know these tests are capable of passing . . . Let’s be honest: It’s whether the officer wants to arrest you or not. They are purely subjective.

Conclusion

This article is not suggesting that no tests should be given to suspected drunk drivers. Rather, it breaks down the simple reality of how stringently and subjectively these tests are graded. Unfortunately, many people who “fail” these tests will not have the ability to fight these tests—be it for financial reasons, time constraints, or by hiring an attorney who doesn’t want or care to fight it.

We as trial lawyers must know these tests better than the officers. Only once you truly understand these tests can you simplify their basic elements and effectively communicate their unfairness to a jury. Many times, at the end of a trial, jurors will remark how they are never drinking and driving again because there is no way they can pass these tests. These are normal people, just like our clients. And it’s not about the officer; don’t bust his chops. It’s an unfair testing system. Jurors can feel confident in a not-guilty verdict for standing up for natural human error in coordination exercises. Break the SFSTs down to the basics—make it about the tests, not the officer. Jurors can still respect law enforcement while finding the client not guilty, even after “failing” these unfair “tests.”

2019’s Need-to-Know Changes to DWI Law

1

Together, House Bills 20482 and 35823 refashioned Texas DWI law and punishment—and finally abolished surcharges. Kind of.

Now, a person “finally convicted” of DWI “shall” pay a fine of $3,000 for a first conviction, $4,500 for a second, and $6,000 for all DWI convictions over 0.15. Presumably, a person is not finally convicted if they receive a newly created “deferred ad­judication” on their DWI. The legislature also slightly altered and expanded nondisclosure eligibility. This paper overviews the changes to the new DWI laws.

New Interlock Bond Requirements

For the following DWI accusations, the judge or magistrate shall order both 1) that defendant’s vehicle be equipped with an interlock device, and 2) that defendant not operate any motor vehicle unless equipped with an interlock device:4

Subsequent offenses under

  • 49.04 [Driving While Intoxicated];
  • 49.05 [Flying While Intoxicated]; or
  • 49.06 [Boating While Intoxicated].

Any offense under

  • 49.045 [DWI w/ Child Passenger],
  • 49.07 [Intoxication Assault], or
  • 49.08 [Intoxication Manslaughter].

If ordered, the defendant must have the interlock installed within 30 days.5

If the magistrate finds, however, that an interlock device is not in the best interest of justice, the magistrate “may not” order one installed.6

“Deferred Adjudication”

Dubbed “DINO” (deferred in name only), HB 3582 creates deferred adjudication for qualifying DWIs. Specifically, it amends Article 42A.102(b) of the Code of Criminal Procedure to allow judges to grant deferred adjudication.7

A person is eligible for deferred unless the person:

(1) is charged with an offense under 49.04 or 49.06 [DWI or BWI], and at the time of the offense either:

  • Held a commercial driver’s license or learner’s permit; or
  • The defendant’s alcohol concentration was 0.15 or more;

(2) is charged with an offense under

  • 49.045 [DWI w/ Child Passenger];
  • 49.05 [Flying While Intoxicated];
  • 49.065 [Assembling/Operating Amusement Ride While Intoxicated];
  • 49.07 [Intoxication Assault]; or
  • 49.08 [Intoxication Manslaughter];

(3) is charged with an offense for which punishment may be in­creased under Section 49.09 [Enhancements for Prior Intoxication Convictions]; or

(4) is charged with an offense for which punishment may be increased under Section 481.134(c), (d), (e), or (f) [School Zone Enhancements], Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any one of those subsections[.]

But, like in family violence cases, this is not a true deferred. Now, under Penal Code section 49.09(g), “a person is considered to have been convicted of [DWI or BWI] if the person was placed on deferred adjudication community supervision for the offense[.]” In other words, the deferred may still be used for enhancement purposes.

Under disqualification three above, a person is not eligible for deferred on a DWI second. But—as some on the listserve have noted—if a prosecutor would be willing, a person could potentially obtain a deferred by pleading a second DWI as another DWI-First—i.e., by striking the enhancement language under Tex. Penal Code § 49.09 at the time of the plea.

Deferred Adjudication Interlock Requirements

HB 3582 also amended Article 42A.408, which requires ignition interlock devices as a condition of supervision.8 The new law makes three additions.

First, new subsection (e-1) makes ignition interlock devices a mandatory condition (subject to a financial exception, discussed below) when the judge grants a defendant deferred adjudication community supervision for an offense under 49.04 or 49.06 [DWI or BWI].

  • The device must be “installed on the motor vehicle owned by . . . or . . . most regularly driven by the defendant”; and
  • “the defendant [must] not operate any motor vehicle that is not equipped with that device.”

Second, (e-1) discounts interlock costs to indigent defendants. Upon a proper showing, the judge may find indigence and reduce interlock costs by:

  • waiving the installation fee; and
  • reducing monthly monitoring fees by half.

These discounts do not apply if your client blows hot. Any additional fees incurred if the device detects alcohol on the breath of the person attempting to operate the vehicle will not be reduced.9

Third, (e-2) provides an exception to the mandatory interlock condition. This exception applies if the judge:

  • based on a controlled substance and alcohol evaluation of the defendant,
  • finds and enters in the record,
  • that restricting the defendant to the use of an interlock is not necessary for the safety of the community.

Deferred Adjudication Nondisclosure Eligibility

HB 3582 amended the nondisclosure statutes to make a separate section governing deferred adjudications for certain intoxication offenses.10 The new statute, Government Code § 411.0726, applies exclusively to DWI and BWI deferred adjudications—without an affirmative finding described in Article 42A.105(f).11

Now, to receive a DWI or BWI nondisclosure, a person must

  • receive a discharge and dismissal under Article 42A.111, Code of Criminal Procedure;
  • satisfy the requirements of Section 411.074 [basic qualifications for all nondisclosures];
  • have zero prior convictions or deferred adjudications (except for traffic offenses punishable by fine only);12
  • wait two years from the date of completion of the deferred adjudication community supervision and the discharge and dismissal of the case;13 and
  • not have evidence presented “sufficient to the court demonstrating that the commission of the offense for which the order is sought resulted in a motor vehicle accident involving another person, including a passenger in a motor vehicle operated by the person seeking the order.”14

Mandatory Fines for Those “Finally Convicted”

Described as a “superfine,” HB 2048 adds new § 709.001 to the Transportation Code (Traffic Fine for Conviction of Certain Intoxicated Driver Offenses), which financially disincentivizes people “finally convicted” of an “offense relating to the operating of a motor vehicle while intoxicated”:15

  • $3,000 for the first conviction within a 36-month period;
  • $4,500 for a second or subsequent conviction within a 36-month period; and
  • $6,000 for a first or subsequent conviction if it is shown on the trial of the offense that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

What “finally convicted” means is less clear. According to the TCDLA Legislative Committee, both TDCLA and TDCAA agree the superfine only applies to final convictions—adjudicated jail sentences only.

But the actual language of the new statute suggests otherwise. Unlike other sentencing enhancements, simply probated—but not deferred—sentences still mean final convictions.16 Your client will still be assessed the fine on a straight probation. In short, if you plead your client guilty or a jury finds your client guilty of DWI, they could be facing a minimum mandatory fine of $3,000—at least until the “finally convicted” issue is settled.

Interestingly, the counties now responsible for enforcing these impressive fines keep only 4% of the money.17

Upon Showing of Indigence, Court Shall Waive Fines and Costs

Upon a finding of indigence, under § 709.001, the court shall waive all these new fines and costs.18 The statute specifically provides that the following documents can support a finding of indigence:19

  • Most recent federal income tax return showing the person’s household income does not exceed 125 percent of the applicable income level established by federal poverty guidelines;
  • Most recent pay stub showing the person’s household income does not exceed 125 percent of the applicable income level established by federal poverty guidelines; or
  • Proof of state, federal, or school assistance, including:
    • Food stamp program;
    • Special supplemental nutrition program for women, infants, and children;
    • Medical assistance program under Tex. Hum. Res. Code ch. 32;
    • Child health plan program under Tex. Health. Saf. Code ch. 62; and
    • National free or reduced lunch program.

Sayonara Surcharges (and Related Suspensions)

HB 2048 deletes the driver responsibility program from the Transportation Code.20 It both forgives all unpaid surcharges and reinstates licenses suspended due to unpaid sur­charges.

  • The repeal by this Act of Chapter 708, Transportation Code, applies to any surcharge pending on the effective date of this Act, regardless of whether the surcharge was imposed before that date.21
  • The Department of Public Safety shall reinstate any driver’s license that is suspended under Section 708.152, Transportation Code, as of the effective date of this Act if the only reason the driver’s license was suspended is a failure to pay a surcharge under Chapter 708, Transportation Code.22

Effective Dates

Both HB 3582 and 2048 took effect on September 1, 2019.23 The punishment amendments apply only to offenses committed on or after that date.24 Because the nondisclosure amendments are silent about their operation, unfortunately they are “presumed to be prospective in operation.”25

Important Takeaways

  • Interlock now required on all felony DWI-related offenses, and subsequent DWIs, but magistrates may not require if not in the interest of justice;
  • Deferred adjudication available only on DWI-first and under 0.15 offenses (plus numerous other disqualifying factors);
  • Changes to nondisclosure eligibility;
  • Mandatory massive fines upon “final convictions” for DWI; and
  • Surcharges and related suspensions are eliminated.

Undermining the Breath Test: Building the Disconnect Defense

I. Introduction

Many inexperienced DWI lawyers cringe when they see high Intoxilyzer results—for example, 0.235—but the experienced DWI lawyer embraces the high number because it might create a good defense. An exculpatory video performance by a client can create an indisputable conflict between an inculpatory breath test score and a juror’s ingrained belief that they can trust their eyes and common sense, e.g. a “disconnect.” A high breath alcohol concentration (“BAC”) provides skilled DWI lawyers a logical story to provide their jury with reasonable doubt to carry home and tell their family and friends about the inherent unreliability of the Intoxilyzer. This article is about how to tell the disconnect story from voir dire to closing.

II. Collecting the Corner Stones

The foundation of the Disconnect Defense (“DD”) is sobriety evidence. In most cases where the DD is applicable, client’s video is exculpatory for the client. An explainable bobble here and there or some erratic driving does not mean that you should throw in the towel where there is a legitimate, common-sense explanation. The good lawyer will provide innocent explanations for signs mistakenly noted as indicators of intoxication. This is done by obtaining medical records of foot, leg, back, neck, or head injuries to explain away clues on the Standard Field Sobriety Tests (“SFSTs”). Further, elicit testimony that impeaches the officers’ comments concerning red eyes caused by intoxication where the evidence shows the client was in a smoked-filled room, was a smoker, had allergies, was wearing contacts, or was fatigued. Such evidence can be bolstered by receipts for the purchase of eye drops, allergy medication, or cigarettes.

Additionally, the well-read lawyer knows that drowsy driving is responsible for more accidents than drunk driving. Phone use, text messaging, medical records, or testimony of sleep deprivation can be used to explain erratic or sloppy driving. Time in the library can also be effective for the lawyer, used to collect scien­tific treatises to counter the State’s attempt to discredit the DD with the excuse of tolerance.

III. Pouring the Foundation

As learned trial lawyers say, “The case is won or lost in voir dire.” Look to juror professions to identify persons who can act as temporary witnesses during voir dire. Use these jurors to further your DD by having them share their own personal experiences that bolster your defense. Pay special attention to engineers, mechanics, machinists, and computer people because they can help you create the DD. As a personal preference, I generally do not like engineers or IT persons on the jury, but they can be useful for short, powerful pieces of DD information during voir dire. To illustrate, they will admit that machines/computers do not work perfectly all the time, and that they do break down, freeze, malfunction, and act not as warranted. Remember, the Intoxilyzer is a government-bought machine and was probably the low-bid device at the time of purchase.

You can highlight Intoxilyzer deficiencies by analogizing it to hypothetical or other measuring devices—e.g., thermometer, Taxalyzer 5000EN,1 Doppler 5000. Whatever machine you invent for jury use, use it to demonstrate the obvious error the machine made when contrasted with what you see—i.e., common sense. The importance of embracing common sense can be related to a dire consequence of being wrong, for example, brain surgery when a thermometer reads 110°F, jail time for failing to pay taxes, or a natural disaster. Further, analogize each unreliability example in the breath test machine with your hypothetical machine: 20% acceptable range of error; self checking for accuracy; no warranty for merchantability or accuracy; recalled in multiple states; newer model available; citizen cannot purchase from manufacturer; manufacturer refuses to provide source code; not available for independent scientific testing; destroys the only direct evidence of sobriety/intoxication (when the State had the ability to save that evidence); operator has no idea how the machine works; “scientist,” who does, rarely checks it in person; any inconsistencies or strange occurrences found in test records; and so forth.

Begin with the first juror and the first unreliability example and ask how that makes the juror feel about the hypothetical machine. “Why would you trust this machine?” or “Why would you submit to this type of testing?” Go through the jurors and expose as many problems as possible as they relate to your machine. Your jury will remember, relate, and recognize the relation of deficiencies common to the hypothetical machine and the Intoxilyzer. Prepare yourself for the State’s objection to an improper commitment question and be prepared to argue that these examples are to be likened to witnesses who jurors can have pre-existing bias/prejudice, and they will aid you in the exercising of preemptory challenges and the proper framing of challenges for cause based on their answers.2

IV. Framing the Structure

The DD begins by establishing contradictions between the reported and actual reasonable suspicion and probable cause by effectively cross-examining each police officer/witness. The State will attempt to establish the requisite loss of mental and/or physical faculties by eliciting testimony to establish that intoxication caused the poor driving and SFST results. Erratic driving can be neutralized through explanations using common driving errors or through the client’s or passenger’s testimony regarding specific reasons for the erratic driving or traffic violation.

Knowing the SFST manual better than the police officer provides the defense lawyer an immeasurable advantage. The skilled lawyer leads the officer and the jury to the conclusion that the validity of each SFST was compromised and/or that the video demonstrates no indication of intoxication. Remember, the State’s own science teaches us that impairment affects mental faculties before physical faculties.3 Build the disconnect stronger by emphasizing the client’s mental faculties—i.e., he was polite, cooperative, and coherent through all the testing and contact with the officer. In the end, the accomplished lawyer may be able to lead the officer into admitting that he observed no loss of mental faculties. Henceforth, according to the science, any loss of physical faculties cannot be the result of intoxication and must be the result of something normal, such as fatigue, inexperience, injury, or nervousness.

Most importantly, establish with each witness that the client did not urinate on themselves and never asked to go to the bathroom. Later, in closing, contrast this testimony with the number of drinks consumed required to support the Intoxilyzer result: 0.235 equals 12 beers equals 144 ounces of fluid in the system at the time of the breath test.

By neutralizing the State’s evidence concerning loss of mental or physical faculties, the jury is then compelled to decide the intoxication element on the reliability of the Intoxilyzer result. Make the State’s case rely solely on the number.

V. Roofing

The Breath Test Operator (“BTO”) rarely has any significant ex­posure with the client; however, their testimony can easily destroy the State’s case. Many large metropolitan BTOs usually operate the Intoxilyzer all night, running suspected DWI clients through the intox room like cattle. Some BTOs put personal notes on their reports. Here, remember that these notes are, in effect, small police reports and inadmissible hearsay as per Texas Rule of Evidence 803(8)(b).

The State will attempt to make the BTO look credible. Yet you can enlighten the jury by examining his alcohol and Intoxilyzer experience. As per Texas Rule of Evidence 803(18), establish that the Texas Breath Alcohol Testing Program Operator Manual is authoritative so that you can cross-examine the BTO with this learned treatise. Ask the BTO about the Intoxilyzer and his knowledge of the inner dynamics of the machine. Most will admit they know very little about Henry’s Law, Infrared Spectroscopy, the simulator solution, or the checking and maintainenance of the machine. Establish that the BTO only pushes buttons and the machine checks itself. Here, remember the “self-check” function of the Intoxilyzer does not check all of the systems.

Through effective cross-examination, the BTO may admit indisputable error regarding the simulator solution temperature and/or the 15-minute presence period. This may be a ripe area for suppression of a breath test result if the BTO does not accurately remember the temperature requirement. Ask the BTO what the temperature was, what it is required to be, and what the government-accepted deviation is for the simulator solution. All you need is one mistake! If you get one, the Technical Supervisor (“TS”) must admit the results could be compromised—e.g., if the temperature was off or outside the allowable deviation.4

Another suppression area exists for failure to properly adhere to the 15-minute presence period; that is, the arresting officer brings the client to the BTO who immediately runs an Intoxilyzer test. Accordingly, be familiar with what the testifying TS considers is acceptable for compliance of “in the presence” requirement—i.e., line of sight, single or multiple officers for the duration, or within hearing range. Ask the BTO where the client was observed. Was there a video? Whose choice was it not to record the observation? Did the client burp or belch during the period? How would they know if they did? Did the client put anything in his mouth? Did he think it would have been useful for the jury to be able to see all this for themselves?

Based on the TS’ requirements, try establishing a conflict with the BTO’s observation period. If truthful, the TS must admit that a violation in breath test procedure for failure to properly conduct the 15-minute observation period compromises the validity of the result.5 Of course, the trial lawyer couples any violation with Article 38.23 of the Texas Code of Criminal Procedure, which is our statutory exclusionary rule.

VI. Putting Up the Walls

The TS is the State’s paid “expert” in the field of breath alcohol testing. Most likely the TS will be recognized by the court as an expert in breath testing, so be prepared to converse in science lay terms for the benefit of the jury. Only the skilled lawyer—with a firm working knowledge of breath testing science, the Intoxilyzer, and in possession of multiple studies authoritative in the field of breath testing for 803(18) purposes—should cross-examine a TS.

Most TSs will acknowledge the following breath testing authorities: Dr. Kurt M. Dubowski, Dr. A.W. Jones, and Professor Dr. E. M. P. Widmark. The prepared DWI defense lawyer will have articles by these noted authorities and use them readily as learned treatises for cross-examination. Texas Rules of Evidence 803(18).

With a good video performance or exculpatory testimony that demonstrates little or no loss of normal mental or physical faculties, Dr. Dubowski’s table of the Stages of Acute Alcoholic Influence/Intoxication for a high BAC can be used to exemplify the disconnect between the client’s faculties and the scientifically expected faculties. For example, Dubowski states a person’s characteristics at a 0.235 are disorientation, mental confusion, dizziness, impaired balance, muscular incoordination, staggering gait, etc.6 The TS may disagree and attempt to explain, but Dubowski is far more authoritative than the TS. Remember, being a TS does not automatically equate to being an expert in chemistry, toxicology, physiology, anatomy, pharmacology, and the like. Prevent the TS from testifying about tolerance, drug or medication effects, or any medical conditions or injuries by challenging their qualifications using Rules 702 and 703.

Additionally, remember that an Intoxilyzer test administered during the absorption period (14 to 138 minutes) yields an erroneously high result.7

Another ripe area is that the Intoxilyzer breath specimens are not saved though they could be. Rather, the State destroys them by failing to preserve them, and they are discharged out the back of the machine. There is a device called the “ToxTrap” that can be utilized with the Intoxilyzer to preserve breath specimens.8 The TS is the only witness who will know about the ToxTrap and destroying the breath specimen. Compare the destroyed breath specimen to a written statement by a defendant that the police destroy because it is inconvenient/costly to keep it.

Remember that the jury was primed to distrust the hypothetical machine in voir dire based on certain unreliability issues. Establish each comparative issue with the breath test machine through the TS or the BTO—i.e., the breath test score must come within 0.02 of the first reading, which equals 20% acceptable range of error on either side of the Intoxilyzer score, or a 40% swing of acceptable error. Furthermore, subpoena the TS to bring a copy of the Statement of Warranty for that particular machine. This document fails to state the Intoxilyzer is warranted for merchantability or fitness for a particular purpose. As a precaution, bring your copy provided in discovery as well. If the TS refuses to admit the issues, cross-examine as a statement rather than a question regarding the other issues, thereby allowing the jury to judge the TS’ credibility.

The State will certainly attempt to explain the high BAC through the TS using tolerance. Object to this testimony. If sustained, you do not need to deal with the issue. Remember, being a TS does not equate to being a tolerance expert. However, have a compilation of as many articles on tolerance as possible. Then, cross the TS on exactly which type of tolerance the State is relying upon and ask the difference between the other types of tolerance. Additionally, ask the TS the basis of his knowledge. Flip through the compilation of articles as you inquire: What’s the name of the article? The author? The country of origin? Why would a TS who knew they were testifying on a high BAC case not bring any authorities to support their position? A skilled attorney can use tolerance against the State by making the TS appear uncredible, unprepared, and prejudiced.

Last off, impeach the TS by showing he failed to even watch the video (they rarely do). “So, all of your testimony that my client is highly intoxicated is based solely on that Intoxilyzer score and not on any actual loss of mental or physical faculties?”

VII. Making It Pretty

If the client can afford it, you may consider hiring an expert. Make sure to investigate your expert for possible impeachment statements. Spend time reviewing anticipated testimony to prevent anything damaging. Make sure your expert is familiar with and knowledgeable about all the relied-upon authorities and has viewed all of the evidence, including the video. And last, prepare your clients before they meet with the expert.

VIII. Selling It

Your closing argument should consolidate the many disconnects into a defense and make logical deductions from the evidence. Depending on your personal style, choose a few effective demonstrations to illustrate the indisputable conflict between the tangible evidence (the client’s video performance and mug shot) and the high BAC result.

The hypothetical machine discussed in voir dire should be revisited to remind jurors that the breath test machine contains the same unreliabilities. Empower the jury to acknowledge that they wouldn’t trust the hypothetical machine and should likewise mistrust the breath test machine.

In closing argument, all demonstrative aids should stimulate attention and present the DD theory concisely and logically. Personally, I like to use a piece of green paper that says no loss of mental faculties, another green piece that says no loss of physical faculties, and a red piece that says “machine X.” Remind the jurors that as exclusive judges, they decide which evidence to trust. Crumble up that red piece of paper and throw it in the trash. Additionally, I like to use pictures of ordinary people with written statements involving unrealistic numbers—i.e., skinny person who can bench-press 500 pounds, heavy fellow who can run a 4.5 40-yard dash, or a little cowboy that wears a men’s size 12 boots. Similarly, the State is asking the jury to convict based on an outrageous number unsupported by common sense and the tangible, physical evidence: good video, good mug shot, never urinated, no loss of mental or physical faculties. And finally, don’t forget how many alcoholic drinks the TS testified the client contained in their system at the time of testing. If you can, smuggle in that many beers to demonstrate and conclude the impossibility of actual consumption by the client without urinating. Either the machine is wrong, or the client’s body defies the laws of science and common sense.

Each disconnect weaves the defense stronger. Remind the jury of the presumption of innocence, that any doubt in the evidence always reflects “Not Guilty.” Use the totality of the circumstances against the State by arguing the totality of sober circumstances. These indisputable conflicts create reasonable doubt. Now, the jurors have a constitutional duty to follow the law and find the client not guilty. The higher the test, the stronger your defense.9

Notes

1. Thanks to Doug Murphy of Trichter & Murphy, PC, for this example.

2. See Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001).

3. See Texas Breath Alcohol Testing Program Operator Manual (2001), pg. 44.

4. See Texas Breath Alcohol Testing Program Operator Manual, pg. 35.

5. See Texas Breath Alcohol Testing Program Operator Manual, pg. 49, and Texas Administrative Code Section 19.3(a) and (c)(1).

6. See Dubowski, Kurt M., Alcohol Determination in the Clinical Laboratory, Am. J. Clin. Pathol. 74: 747, 749 (1980).

7. See Dubowski, Kurt M., Absorption, Distribution, and Elimination of Alcohol: Highway Safety Aspects, J. Stud. Alc. Suppl. No. 10: 98, 99 and 106 (1985); Widmark, E. M. P., Principles and Applications of Medicolegal Alcohol Determination, Biomedical Publications, pg. 99, Davis, CA (1981).

8. See Bergh, Arne, “Observations on ToxTrap Silica Gel Breath Capture Tubes for Alcohol Analysis,” J. of Forensic Sciences 30: 186–193 (1985).

9. Additional thanks to J. Gary Trichter of Trichter & Murphy, PC, for help in contributing and editing.

Storytelling Closing Arguments

“May it please the court, opposing counsel…Ladies and Gentlemen, thank you for listening to all the evidence. . . .” Just about this time, juries’ eyes glaze over; they shift focus and start daydreaming. You have just lost the jury.

The best trial lawyers are gifted storytellers. The trial lawyer will connect with the jury by relating the case to something the jury can understand and feel. Closing is the only time you may deduce from the evidence and pull at the jurors emotional heart strings with your client’s story. Sometimes your client has suffered pain, been a loser, been irresponsible, done evil, or have been no good their entire lives. Now, you must stand before 12 human beings who do not care and make them care. You cannot pull out a script and read it, you cannot play a movie for them or hide behind PowerPoint. Instead, you must stand before 12 people naked and vulnerable, but not ashamed. It is your job to let them see themselves in your client. The following are real closing trial stories that will do just that.

HUNTING STORY
Rush to Judgment, New Officer,
Seeing What You Want to See

The first time I went hunting with my little brother, it was an overcast fall weekend. But my little brother woke me up and said, “Come on, I want to shoot a deer.” We bundled up, he grabbed the thermos of hot chocolate, and I grabbed the rifle, ammo, and binoculars. We’re just sitting in the blind telling jokes and trying to keep warm when all of a sudden there they were: deer, appearing out of the woods and into the clearing in the meadow. I grab the binoculars and look at the deer. It’s all does and fawns. My brother is looking through the site on the rifle, and then I hear the safety click off. Still looking through the binoculars, I ask, “What are you doing?”

He whispers, “I’m gonna shoot my first buck.”

“What buck?” I say.

“The one right there at the edge of the trees,” he responds.

I reply, “That’s just a doe and those are branches.”

He refuses to believe me. I tell him: “We are in a one-buck county. You shoot that deer, you’re gonna have to bury her because I’m not getting in trouble with Dad. Put down the gun, and just look through these binoculars.”

He puts the safety back on and I hand him the binoculars. He focuses in and just then the deer bends down to eat and leaves her “antlers” in the tree—because they weren’t antlers, they were just branches. It was my brother’s desire to kill his first big buck that made him believe a buck was down there, not reality.1

Just like my brother, this officer so badly wanted to see that big buck DWI. He’s been training and riding along with other officers for months; he just wanted to see that DWI so bad. But it’s not a big buck DWI; it’s a doe. I’m going to take off my binoculars and give them to you, ladies and gentlemen, and let you see it for yourself.

PUZZLES
Beyond a Reasonable Doubt, Complete Investigation, Crucial Evidence

When I was young, my mother would make my brothers and me put puzzles together before we could go out and play on Saturday mornings. I hated it, but we could not go out until we put those awful puzzles together. We had to put every piece together and figure out what went where before a picture would slowly start to develop. I did not realize what my mother was doing until years later. She was teaching us to think in logical sequence. You cannot force puzzles together if you wanted the right picture. You have to be patient and go step by step in order to complete the image.

I thought about those puzzles when I examined the investigation in this case. Did Officer Smith reach a conclusion before he put all of the pieces together? Now the State loves to tell you that you know what the picture is without all the pieces, beyond a reasonable doubt. But the truth is, if you are missing a crucial piece it makes all the difference—i.e., a puzzle of a gun—and the missing piece is the tip of the gun, which tells you if it’s a toy, BB, or real gun.

SPAGHETTI
Untruthful Witness, Impeached Testimony,
Rotten Evidence, Snitches

When I was a little boy, my mother would cook spaghetti every Saturday. I would watch her as she made her delicious sauce. She would start with the tomatoes and then add the basil, garlic, salt, pepper, Italian seasoning, and lots of ground meat. Then she would stir all of the ingredients with a large wooden spoon. One day, while stirring her famous pasta sauce, she saw a cockroach in the pot. Now what do you think she did? Did she just scoop out the part that had the cockroach and let us eat the rest? Or, did she get rid of the whole pot of spaghetti sauce?

Now, when Mr. Hunter told you that he was looking at a life sentence and did not expect anything from his cooperation with the State, do we digest that lie with rest of his testimony, or do we throw his entire story out? It doesn’t take much to taint the entire pot of sauce.

DOC HOLLYWOOD
Client Is Different, Get to Know
the Defendant, Punishment

The other night, my wife and I were watching TV and this old movie came on: “Doc Hollywood.” It’s a movie from the early nineties where Michael J. Fox plays this big-city LA doctor who wrecks his car and gets stuck in a small town. And there is this one scene in the movie that really reminded me of this case. It’s where this country couple brings in their son and he can barely breathe. He’s just turning blue. Michael J. Fox gets him on a table and examines him and then says: “I know what this is. I saw it in my training back in LA. It’s very rare—it’s juvenile acute right ventricle myocardial infarction.”

Michael J. Fox starts hooking the kid up to all these machines, and the nurse goes out into the hall to call old Dr. Hogue. She hollers to Michael J. Fox from across the hallway, “Doc Hogue says give him a Coke.”

Michael J. Fox goes sliding out of the room and grabs the phone and yells in it, “If you don’t get your lazy ass out of bed, this kid’s gonna die,” and hangs up the phone.

They wheel the kid out of the little hospital and the ambulance is there waiting for Life Flight to come in, when Doc Hogue’s old boat of a car comes sliding to a stop, spraying up the gravel in the parking lot. Doc Hogue lumbers out of his car and he’s dressed only in a robe. He goes up to the kid, looks down at him, and asks, “You been taking that antacid I gave you?”

The little kid’s face is covered up by an oxygen mask. The kid nods his head up and down. Doc Hogue then asks him, “You been getting into your daddy’s chaw?”

The kid doesn’t move. Doc Hogue leans closer and asks again, louder, “You been getting into your daddy’s chaw?!”

Slowly the little boy starts nodding his head up and down. Doc Hogue raises the mask off the little kid’s face and onto his forehead. Then, Doc Hogue reaches into the pocket of his robe and pulls out a can of Coke. He opens it. He raises the little kid’s head and the kid takes a sip. He exhales, “Aaahhhhh,” and the color rushes back into his face.

Doc Hogue looks at the worried parents and says, “That’ll be 35 cents.”

Doc Hogue then grabs Michael J. Fox by the arm and walks him a bit aways and tells him, “Next time, before you crack a little kid’s chest open, why don’t you get to know your patient.”

And that’s exactly what happened in this case. The police, relying on all their big-city training and rules and procedures, forgot to take five minutes and get to know Mr. Smith. You see, Mr. Smith is different. He’s not intoxicated. And it’s not illegal to be different. Now, you’ve gotten to know Mr. Smith pretty well, and y’all don’t have to crack his chest open. You can just give him a Coke.

BIRD IN THE HANDS
Punishment

I recently heard an old Chinese proverb that made me think about this case. It’s about this cheeky boy who wanted to challenge the old wise man in town. The boy went into the woods and caught a little bird. He then took this bird back into town and went to see the old wise man. The boy cupped his hands perfectly around the little bird to make sure that you couldn’t see what was in his hands. He went up to the old wise man and said, “Old wise man, please tell me what I have in my hands.”

The old wise man replied, “You have a bird, my son.”

The boy was furious that the old wise man got it right. So the boy thought for a minute and then asked, “Old wise man, if you’re so smart, now tell me is this bird alive or is it dead?”

The old man was silent and the boy knew that he finally had the old wise man. Because if the old wise man said the bird was alive, he would simply squeeze his hands together and crush the little bird. And if the old wise man said that the bird was dead, then the boy would just open his hands and let the bird fly free. There was no way that the old wise man could be correct. The old wise man was still silent, and then finally responded: “Well, that is entirely up to you, my son. After all, the bird is in your hands.”2

And just like that little bird, Mr. Davis and his life are in your hands. You 6/12 jurors will decide whether you let him go and see what great heights he can achieve, or you crush the life out of him. But ultimately, his life, his future, and his family’s lives and futures are in your hands.

SNAKE
Gruesome Violence, Unlikeable
Complaining Witness or Decedent

When I was a little boy, my brothers and I would go out in the back yard and throw rocks at each other. One day we were throwing rocks and a big snake slithered over and curled up at the base of the gate, preventing us from getting out of the yard. We screamed and screamed until a neighbor noticed and ran to get my mother. My mother was also afraid of snakes, but she got a shovel and she ran out to protect us. She took that shovel and then hit that snake, and she hit that snake again and when that snake pulled away, she hit that snake again and again. Even when the snake was dead she continued to hit that snake. We had to finally grab her to stop her.

Mr. Smith, the man killed by my client, was a snake.

COBY
Snitches, Untruthful Witnesses, Trust Your Gut

Those who have dogs know they are amazing animals. I had a dog named Coby. I raised Coby from a pup until he died of old age. Coby could tell when I came into the yard with a leash whether I was taking him to the vet, taking him to get washed, or just taking him for a walk to the park. He seemed to sense something in me that I could not see myself. I’ve learned that we all have that sense but most of us never use it.

For example: When Ms. Smith, the lady with the red hair, said she had never seen my client before that evening, what did you sense? When Officer David said he could smell marijuana as my client passed in his car, in the opposite direction, what did you sense, and so forth. You heard what they said, but what did you really sense? You are allowed to—and should—follow your senses.

WIFFLE BALL
Proper Investigation, Rush to
Judgment, Priors, Punishment

Every summer, my younger brother and I would go spend about a month with my grandparents in West Texas. Now it wasn’t a big town, and we knew all of the kids in the neighborhood. And every summer we’d spend the days playing wiffle-ball baseball. My brother and I were always pretty athletic, so we were never allowed on the same team. The neighborhood guys always loved having extra guys on the field so we could play on the big field with the railroad track at the back edge. But when we played on that field, anything on or over the tracks was considered a homerun, because you had to look both ways and take time before crossing the tracks.

Well, one day, it was a real close game. It came down to the bottom of the ninth with two outs and my team was winning by one run. My little brother was the last up to bat, one man on third, and I was pitching. He kept taunting me and calling his shot, and switching sides to bat from. Finally we settled down, and I hurled that wiffle ball with all my skill right down the pipe. Whap! He connected. I don’t know how, but he did. The ball went flying way over my head. It cleared the second baseman, and landed just before the tracks and bounced over. The centerfielder ran all the way back, looked both ways, and grabbed the ball.

Ground-rule double, right? No, his whole team was screaming to keep running, and he didn’t stop at second. He was rounding third by the time the throw came in to second. I went to cover the catcher at home. The ball and Adam came in at the same time. His team came out screaming with joy. My team ran from the field towards home plate hollering that it hit before the tracks. Everyone is screaming back and forth, and my brother, out of nowhere, who was just so happy he won the game, became so upset that he grabbed the wiffle-ball bat and whacked me behind my knees.

Everyone fell silent. The blow crippled me, and he took off running. It seemed like an eternity, but I got up, grabbed the wiffle bat and tore off after him. He ran all the way through the neighborhood with me chasing him with the wiffle bat. I was about to catch him as he blasted through the side-door fence into the back yard of our grandparents’ house. He ran right past my grandma, who was in her tomato garden. Her head perked up and she saw me coming full steam ahead, red faced, crazed look in my eyes, waving a wiffle-ball bat. She grabbed the bat from me and began to paddle me on the bottom with it, asking why I always had to torment my little brother and why was I always picking on him.3

I never forgot that. Why? Because the only thing worse than being punished is being wrongfully punished. Had my grandmother just been there, had she just asked one of the 15 or 16 other kids, had she just asked my brother, asked me, done some sort of investigation . . . But she didn’t. And just like my grandma, these police officers didn’t do a proper investigation either. Now the State is asking you to punish Mr. Smith without having the whole story. But you can’t find him guilty or punish him without investigating and knowing the circumstances surrounding this case. Remember, the only thing worse than being accused of a crime is being wrongfully accused of a crime.

We all have barriers that prevent us from truly connecting with other human beings. I’m too fat, skinny, bald, old . . . I am not perfect. When a lawyer stands up to address a jury, everything that lawyer has ever done and everything that lawyer ever intends to do stands before that jury. The lawyer is just as much a part of the story as the story itself. You are the narrator, so your credibility is always an issue. If lawyers cannot tell their own story, how can they tell their client’s story? The most important part of a final argument is being genuine. Whether you adapt one of these stories or create your own, make sure it’s genuine. In order to make a great closing argument, you must tell a compelling story, and the story starts with you.

Notes

1. Thanks to National College for DUI Defense 2007 Summer Session at Harvard University (www.ncdd.com).

2. Thanks to Gerry Spence and the Trial Lawyers College (www.triallawyerscollege.com).

3. Thanks to Shawn Dorward of the McShane Firm (www.themcshanefirm.com) and the National College of DUI Defense.