Full Cooperation in DWI Investigation Leads to Innocent Man Being Arrested

I have heard police officer after police officer testify that a DWI client really is not arrested for DWI until the DA makes a decision to charge them with DWI.  My clients have told me that the police sometimes tell them, "It (the DWI arrest decision) is out of my hands, it's up to the DA."

Let's set the stage.  Client is pulled over for speeding on Loop 610 here in Houston.  The Houston Police officer approaches client and claims he smells alcohol.  He does the HGN and guess what - he sees 6 of 6 clues.  He then has the client do the walk and turn test and claims he observes 2 of 8 clues (video would show differently).  Client then was asked to do the One Leg Stand and scored a whopping 1 out of 4 clues (for those that don't know - that is a passing score).  After this terrible performance on the field sobriety tests, the officer arrests client and takes him to the jail.  By the way, there is no allegation of drug use in this DWI arrest.

Here is the kicker.  At the jail he asks for a breath test and again my client cooperates fully.  He blows a whopping .026 less than 45 minutes after he was "operating" his motor vehicle.  The legal limit is .08.  While I'm not a mathematician, I do know that .026 is a lot less than the legal limit of .08. 

Presumably, if the cops tell the truth on the witness stand (see first paragraph), the arresting officer called the district attorney's office to have the DWI charge approved.  I would like to assume that the police officer told the truth about the excellent performance on the field sobriety tests and the breath test.  I would also like to assume the prosecutor used his best judgment and made the call he thought was right.  I guess that is why we need jury trials?

So where does that leave us?

Innocent people are being arrested for DWI in Houston, Texas.

Houston Law Professor Suggests No More Jury Trials in DWI Cases - What a Joke?

Adam M. Gershowitz, law professor at the University of Houston Law Center, has proposed a simple solution for deterring Drunk Driving / DWI cases - eliminate Jury Trials.  The abstract from his paper reads,

Over the last few decades, states have imposed tougher punishments on drunk drivers. This article argues that increasing punishments is counter-productive. If legislatures are seeking to hold guilty offenders accountable and deter drunk driving generally, they should keep punishments low and instead abolish the right to jury trials. Under the petty offense doctrine, the Supreme Court has authorized states to abolish jury trials when defendants face a maximum sentence of six months' incarceration. . And researchers have also found that the certainty of punishment, not the severity of punishment, is the key factor in maximizing deterrence. Thus, by keeping maximum sentences for most drunk driving offenders at six months or less, states can abolish jury trials, thereby raising conviction rates and improving general deterrence. Additionally, bench trials will be far more efficient because the greater certainty of conviction will give defendants an incentive to plead guilty rather than taking their cases to trial. When trials do occur they will be much faster because there will be no need to select juries, and lawyers will have to present far less background information to already knowledgeable judges. At present, only a handful of states have eliminated jury trials for drunk drivers. This article outlines the specific steps that states should take to abolish jury trials and thereby increase convictions, maximize general deterrence, and more efficiently handle one of the most common crimes in the United States.

Although I'm admittedly no Constitutional scholar, I firmly believe in every citizen's right to a jury trial.  In fact, the right to a jury trial before incarceration has long been a tenet of not only our national criminal jurisprudence, but also here in Texas.

Quoting Gershowitz' abstract,

Social science evidence has long demonstrated that judges are more likely to convict than juries, particularly in drunk driving cases.

I doubt Gershowitz would like a rubber stamp guilty verdict by our judiciary if he (or someone he knows - possibly the colleague at the University of Houston Law Center that was recently charged with DWI whose case was ultimately dismissed) was wrongly charged with a DWI.  I'm quite certain that his law professor colleague is glad the judiciary doesn't have the right to just rubber stamp a guilty verdict for DWI.  Gershowitz - why don't you walk down the hall and ask your fellow law professor that had his case dismissed if he agrees with you. 

Let me tell you, there are many of our Harris County citizens that have been wrongly charged with DWI that are thankful we do still have a right to a trial by jury.  Gershowitz couldn't be more wrong on this point.  He seems to be buying into the ever increasing attitude by some (including Justice Roberts of the United States Supreme Court) that the Constitution does not apply in DWI cases.

Amazing Harris County DWI Statistics

I ran into a lawyer friend and colleague, Mark Bennett, at the Harris County courthouse and we were discussing Harris County DWI arrests and conviction rates.  Mark Bennett writes:

94.5%. That’s the fraction of the 713 people in Harris County whose cases were resolved in the first five months of this year after they refused to plead guilty who beat their cases—got them dismissed or got acquitted.

Wow, this is an amazing number that surprised me when I heard it.  The number, unfortunately, is directly related to the DWI lawyer that you hire to represent you in your DWI.  What do I mean that the number is related to the attorney you hire.  Well, there are many lawyers that represent clients on DWI cases that never go to trial on those DWI cases and never require the government to produce witnesses and provide evidence.  If you are looking to challenge your DWI and win your case, you need to hire a lawyer that is going to go the distance with you and have a jury trial if necessary to protect your DWI rights. 

There is an old phrase out there, "Good things happen when you go to trial."  If you stand in front of a Judge and plead guilty to a DWI, you are 100% of the time going to be found Guilty.  According to the statistics, however, if you stand up and say "Not Guilty" you have a great chance of winning your Houston DWI case.

Image: Eleutheromanic