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.

DWI Asleep & Parked in Your Car

You decide you have had too much, and you feel the right thing to do is pull over and sleep it off. Is this a DWI? According to a Tarrant County judge in a bench trial in case number 1366316, decided on February 12, 2015- yes it is. Do I respectfully disagree with the decision? Yes.

Here are the facts: my guy (Mr. "H") was asleep in his legally parked car at a QuikTrip in Keller, Texas. No one saw him drive. No one called the police on him. The QuikTrip attendant had no idea as to how long he had been there, but it had been "a while." The seat was in recline with Mr. H fast asleep. After waking him up, the police interrogation went like this:

Mr. H:    "I personally think I did the best thing."

Cop:       "What's the best thing?"

Mr. H:    "Where I'm at right now."

Cop:       "Which is what?"

Mr. H:    "Well, it damn sure ain't drinking, damn sure ain't pulling somebody over and hitting 'em head on collision, right? You're really going to take me to jail for DWI?"

In Texas, DWI stands for intoxication "while operating a motor vehicle." Funny thing is, the Texas Penal Code does not define "operate a motor vehicle"- the juries and judge get to decide. The Court of Criminal Appeals (highest Texas criminal court) has laid out the parameters of the definition in Denton v. State (911 S.W.2d 388): "The totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle's use." There are a few cases where the appellate courts use common sense and hold the following:

Texas DPS v. Allocca (301 S.W.3d 364, Tex. App. -Austin 2009):

Asleep with the seat in recline and vehicle in park although running is not operation

Murray v. State (07-13-00356-CR, Tex. App. - Amarillo 2014):

Asleep, truck parked off the roadway although running with no evidence as to how long the driver was there is not operation

The issue of admission to the act of operating a motor vehicle is a legal one. Under corpus delecti, the law requires additional evidence beyond the defendant's admission. This is a basic safeguard in our law. This prevents a conviction based on accusation alone or a confession. The premise is to prevent a false conviction based on a false accusation, forced confession or false confession. Whether or not the admission is true is not sufficient in and of itself to provide the corpus or "all" of the evidence. There must be more. A driver, such as Mr. H, cannot legally provide all the evidence to his own conviction (here the issue of operation).

So what is the big picture? Napoleon once remarked, "In politics stupidity is not a handicap." Gaining as many DWI convictions as possible is good for campaign statistics to pander to the "tough on crime" voters and insatiable members of MADD (Mothers Against Drunk Drivers who are influential in drafting DWI legislation). It makes no logical sense to convict someone of DWI when the evidence is a parked car showing no evidence of intent for movement (e.g. flickering brake lights, vehicle in gear). Is the State of Texas so desperate for the $3-6k DWI surcharges that accompany each DWI conviction, that it is willing to convict people who are not even legally operating their vehicle? There are currently 1.3 million Texas drivers who do not have valid insurance because they are a part of the 60% who can't afford the $1.7 billion Texas DPS surcharge.

 

Sure, in a perfect world no one would drive while intoxicated. The argument that one should not drive while intoxicated to begin with does not negate that is responsible and logical to pull over in a safe place and sleep it off when one finds one's self intoxicated. To do otherwise, is to risk harm to one's self and others. Shame on the society which would rather argue semantics for financial and statistical gain over being concerned about others' welfare. A simple fix since the law is not defined?

Operation should be "causing a vehicle to function in the manner in which it was intended to function." Who buys a vehicle to use as a motel room? If the law is not fixed, every running RV parked at Nascar or a camping ground with alcohol involved is a possible DWI. It is time for some common sense in our court system when it comes to DWI. Long overdue.

Do you want to know who is a DWI hypocrite? Someone who wants DWI enforcement to "keep the streets safe" yet at the same time would rather have a DWI conviction opposed to actually keeping the streets safe. Society is better off and lives will be saved if people who are driving while intoxicated will pull off the road and do the right thing. The only way we can do this is not convict people who are doing the right thing in these circumstances. Shame on illogical law enforcement decisions.