Shocking Legal Truths on DWI

The way our government is created is simple. The legislature passes the laws and the judicial branch enforces it. That is the way it is designed. This is not the way it works. The Constitution is the framework that guarantees all rights and sets the parameters for all the state legislatures to follow when passing laws. Simple? It should be. Who on earth would dare defy the Constitution? Judges do it every day. Not just in Texas, but everywhere. Examples:

In the State of New Jersey, you can't have a jury trial for a DWI. Yes, the United States Constitution says you are entitled to a jury trial when accused of a crime, but the New Jersey judges ignore it. NCDD member John Menzel took this case up to the highest Supreme Court in New Jersey recently, yet they still decided against following a basic tenet of the United States Constitution.

In the State of Ohio, their Supreme Court has said in Ohio v. Vega that you can't cross examine a breath test machine. What?! You ask? What about the right to cross examine witnesses? Yes, the United States Constitution guarantees every citizen accused of a crime the right to cross examine their accuser. Does this include a machine that says you are guilty (the operators, the scientific lab director, etc.)? Of course, but not according to the Supreme Court of Ohio. NCDD members Shawn Dominy and Tim Huey has been attacking this nonsense for years and in 2014 a brave Ohio ruled the Intoxilyzer 8000 was unreliable (because it is) in Ohio v. Lancaster. Yet, Ohio v. Vega remains the law in Ohio.

In Texas, there is no such thing as double jeopardy when it comes to DWI. Once the court sentences you, guess what? Without any hearing, a whole different branch of the government sends you a bill for $3,000 to $6,000 because you got convicted. This is higher than the maximum fine a court can punish you with in a misdemeanor class B DWI. What happens if you don't pay it? You get arrested for driving with an invalid license and tagged with usurious late fees and interest on top of the surcharge. How can that happen, you ask? What do the judges have to say about it? How can a government agency act independently and with no abandon from the state's entire criminal justice system? I can't tell you. I sued the Texas Department of Public Safety over this illegal (no due process and excessive punishment, both illegal under the Constitution) surcharge program in federal court and a federal magistrate dismissed my case (this litigation I undertook cost me personally thousands of dollars).

There are so many more examples of how laws are not followed in many states when it comes to DWI.

So, what is going on? Across the country, citizens accused of DWI hire lawyers expecting that whether they are guilty or not guilty the courts will guarantee their Constitutional and legal rights throughout the process. Guess again. Why is this happening? I have practiced law 22 years. The answer is "the ends justify the means." Judges ignore the Constitution and laws because they think the public does not care. The truth is the public does care, for many reasons. One of which, is they or someone close to them have been charged with a DWI (average of 1.4 million DWI arrests in the U.S. every year).

I don't support DWI. No one does. My clients accused of DWI don't support DWI, but not supporting DWI does not mean we don't support the Constitution and our laws. Good people make mistakes. We all do, and when we do- an advanced civilization guarantees to its people basic protections and guarantees. The common thread in this country is that our Constitution and laws are supposed to apply to everyone equally, no matter what they are charged with. It is time for judges to follow the law. This means they must have courage. No American citizen wants a court where our Constitution and laws are ignored.

The one thing I have learned in 22 years of practicing law is that courage in the law is rare. I am a 5'2" half Japanese, 49-year old female. I have never served in the military. I never played varsity team sports (not counting tennis). Neither one of my parents graduated with a 4-year college degree (they both dropped out of high school). I don't have a distinguished lineage, nor did I inherit any wealth. But courage does not take brawn, money or military training. It just requires a good heart and an honest conscience. I never sought out to be courageous, I just chose to do right at the forks in the road. I chose to:

1. Sue the Pantego Police Department (their officer in my client's case) when they illegally used police officers to draw blood.

2. Sue the Texas Department of Public Safety over their DWI surcharge program in federal court.

3. Stood up to the civil lawyers of the City of Ft. Worth when they refused to give me the blood discovery on my client's blood cases. They finally gave up after multiple hearings where judges shot them down by giving me what I am legally entitled to.

4. Fought the City of Arlington when they illegally tried to bill me over $500,000.00 for 6 police officer personnel files. No, it did not stop me. Yes, I got all 6 files and they had to deal with the civil lawyer I retained and the threat of going to the media.

These are just a few examples in my career where I had to make a choice, the easy one (give up, go with the flow) or the right one. In every decision, I was fighting not just for me and my clients but for all my fellow lawyers and their clients too. These battles were costly, time consuming, and took their emotional tolls, but to not fight was never a choice. Currently I am battling a national lab who has hired a civil firm, because they too don't want to hand over the blood discovery which may or may not prove their blood result is accurate. Just this past June, I tried to educate judges and prosecutors at the Advanced Criminal Law Seminar of the State Bar of Texas that Chapter 724 of the Texas Transportation Code specifies the qualifications of who and how blood can be drawn in Texas. Yet, our Texas courts still refuse to follow the law replacing it with 'a standard of reasonableness' because it is more convenient for law enforcement to let them do what they want.

A judge too must fight (the media, their colleagues) and be courageous to make the right decision. It is too easy to make the wrong and illegal choice, especially when it comes to legal issues surrounding politically charged topics like DWI. But just like forcing a child to take their medicine, it is necessary. The right decisions are so often the toughest ones to make. Following the Constitution and laws is the only protection we have in this country. Have courage. Just follow the law. I envision a time where the administration of DWI justice does not involve shocking truths.

MADD OFF COURSE

Mothers Against Drunk Drivers started out as a good thing. There was a sincere concern that there needed to be more attention focused on the dangers of driving while intoxicated in order to prevent more deaths. What has happened; however, over time is not. A campaign which originated to encourage responsibility has morphed into an anti-drinking campaign at all costs. Now there are cottage industries economically dependent upon the number of DWI convictions, such as the interlock, home monitoring, and SCRAM companies. It is these industries that are writing and passing the DWI laws in legislatures all across the country. It is no surprise that the laws they pass require more of their products even when it makes no sense. For example, why should a citizen convicted of DWI under the intoxicating influence of a drug or medication be subjected to an alcohol interlock device?

The State of Texas is also dependent upon the DWI surcharges to the tune of billions of dollars in order to keep out of the red (although only a fraction of people ever pay it, which has created more uninsured drivers on the roads). Judges and elected District Attorneys feel pressured to cater to the demands of MADD lest they receive bad press. This affects judges’ decisions, district attorneys’ policies, and police priorities. Have the DWI fatalities gone down? Yes, but the numbers of arrests have gone up exponentially and disproportionately. “Tough on crime” advocates argue that the ends justify the means. They argue that it is ok if a few innocent suffer if it benefits the many. This circular logic is unconstitutional. 

Our system of laws guarantees that every citizen is afforded the protections of the Constitution and its laws. DWI victims are often paraded around by MADD as a battle cry in justifying the present day war on social drinkers. No one would ever justify the sufferings of any DWI victim. In that same vein, no one should justify the sufferings of a citizen accused where there is unjust punishment.

In 20 years, I have had misdemeanor and felony clients so stricken with grief and shame that even though their arrest did not involve a victim, nor had they been convicted yet or even received due process, they took their own life. Some of the many real repercussions that my clients suffer due to their arrests and subsequent convictions include: job loss, divorce, loss of housing opportunities due to a criminal record, loss of insurance, forced career changes, permanent unemployment, depression, anxiety and attendant health problems. These costs are often borne by not just the DWI accused but their families, friends, loved ones, employers, and of course the taxpayers. The 1.4 million DWI arrests in the US every year compared to the approximate 11k DWI fatalities do not add up. If the death penalty was the law for every DWI in which a victim died, this still would not prevent DWI deaths. Draconian judicial measures only serve to penalize the unwarranted.

The “one size shoe” policy does not fit all. Most first time misdemeanor DWI offenders never re-offend. They self-punish. The costs of putting all of them on traditional probation or incarceration is not justified when put on the scales, nor does it accomplish anything. The same for felony offenses. Some offenders require a different approach for corrective measures than others. To punish all for the deaths of an irresponsible few is not what our Founders envisioned when they created a system of “Innocent until proven guilty” and an 8th amendment prohibition against cruel and unusual punishment. 

I deal with the repercussions of this systematic knee jerk reaction of “tough on DWI policies” every day. I have seen countless lives destroyed in so many different ways, all without necessity where better means could be employed. It is time for judges, jurors, and prosecutors to take to heart that every case is different. Every person has a different way of being reached and many teach the lesson of having made a mistake to themselves. We need options available in the judicial system that treat each case appropriately. There needs to be diversion programs which result in dismissals that can be fully expunged. There needs to be different levels of probation from unsupervised, to deferred to long term probations with treatment. Not every social drinker who made a mistake is a future killer on the road.

It should be a given that where the police made an unconstitutional stop without probable cause, that case will be thrown out. It should go without hesitation where there is a reasonable doubt about the case, regardless of purported alcohol level, the law will be followed and a Not Guilty returned. We don’t live in a true democracy when people fear following the law due to political hype. If MADD was truly a charitable organization it would promote following all laws, not just seeking convictions. MADD has no business has no business supporting campaigns like: “Buzzed Driving is Drunk Driving” and “Drink. Drive. Go to Jail.” when this is not the law. A society ruled by passion rather than laws finds itself ruled by lawlessness.

I think often about my few clients who took their lives. I wish I could go back and reassure them that everything will be okay. I think back to my conversations with them and my staff, my availability after hours, how everyone gets my cellphone , how my staff passes out my “compassion letter” and “challenge letter” which emphasizes hope. What I keep coming back to is the need for the system to change. Good people should not feel desperate over a DWI in a country with the best Constitution in the world. It is time we start placing the law, wisdom, and prudence above politics and furied passion. MADD’s victims are not the only victims. It is time we stop creating more unnecessary ones.