Just when you thought they couldn't get any more diabolical, I witness this at a felony Driving While Intoxicated sentencing hearing in Guadalupe County District Court:  a portable breath test being given to a Defendant in court to determine what his sentence should be.  This week I watched a defendant in the 25th District Court being sentenced for felony DWI.  But before the judge would pronounce sentence, he ordered the probation department to administer a portable breath test to the defendant in court.  In a felony DWI, when a person is going on probation, he is required to receive a certain amount of days in the county jail upfront as a condition of the probation.  The judge in this case announced that, if the test turned out negative, the court would assess 10 days jail, but if it was positive, the defendant would get 30 days.

Now it bears pointing out that, in Texas, the results of a portable breath test are not admissible against a DWI defendant to determine his guilt or innocence.  Portable breath tests are not considered scientifically reliable enough to be trusted for that purpose, and the people who give the tests are not always properly to trained to do so.  And, sure enough, when the probation officer in this case tried to give the portable breath test in court, he couldn't get the device to work properly.  The judge finally gave up and ordered 10 days.  This raises the question, why is a local district court using something that isn't admissible in evidence because of its unreliability in order to decide what would be a fair punishment for a given defendant?  Was the Magic-8 Ball broken?


One of the comments I got the most from people during the just-concluded year of the Great Recession,  when I mentioned that I was a criminal defense lawyer, went something along the lines of: "The economy's bad.  The amount of crime must have shot through the roof."  People assume that, when the economy is in the toilet, civilization instantly devolves into anarchy and crime soars.  This, however, is a myth, or at least it was in Comal and Guadalupe Counties, where the number of criminal case filings were actually down significantly over the previous year.

According to the Texas Office of Court Administration, the number of Class A and B misdemeanors and felonies filed in Comal and Guadalupe County courts combined in 2009 fell by 16.3 percent from 2008.  Case filings were down 20.5 percent in Comal County.  In Guadalupe County, case filings were down 12.2 percent.

The decline in case filings can actually be tied to the bad economy.  Remember that the the housing bubble burst in late 2007, and the ensuing recession began at the end of that same year.  It just so happens that criminal case filings in Comal County peaked in 2006 and are down 23.8 percent since then.  Guadalupe criminal case filings peaked in 2007 and are down 25.5 percent since then.  Criminal case filings are down across the board, both misdemeanors and felony filings plunging in both counties.

But why?  I don't know for sure, but I suspect it has something to do with our love of automobiles and how we change how we use them when the economy goes sour.  The majority of cases that come through our office are somehow related to traffic stops.   A cop stops someone for a routine traffic violation, or approaches someone whose car is parked in a suspicious place, and winds up stumbling across some other offense -- a DWI, illegal drugs sitting in the  console, an illegal weapon in the driver's door pouch, etc.  When the economy is bad, people tend to hunker down and drive less.  They are then far less likely to have an unfortunate encounter with a police officer.  Bad economy = less driving.  Less driving = fewer contacts with cops.  Fewer police contacts = fewer arrests.  Fewer arrests = fewer jail-time cases filed in court.

On behalf of all criminal defense lawyers everywhere, here's hoping for a robust economic recovery in 2010.  Let's get out there and drive, people. The economy is depending on you.


The New Braunfels Police announced that they arrested a whopping one person on New Year's Eve for Driving While Intoxicated as a part of a DWI "no refusal" weekend that began on December 21st. In case you haven't heard all of the dire warnings on your local TV news, a "no refusal" weekend is where people who are arrested of DWI will not be allowed to refuse alcohol testing.

If a DWI suspect refuses to take a breath test, then police obtain a warrant to draw a blood sample from the person, which can then be tested for alcohol concentration. The New Braunfels Police claim that its "no refusal" weekend policy has been a great success so far. But this begs the question: "If no refusal weekends are such a great tool for law enforcement, then why isn't this law enforcement technique used all of the the time?" Why just have this policy for special weekends?

Why not make no refusal standard operating procedure? And is it really worth the trouble to do a no refusal policy on special holiday weekends? Some things to consider: 1. Breath testing is far easier for law enforcement, and far less expensive, then blood testing. Doing blood testing requires law enforcement to go through the trouble of processing extra paperwork to obtain a warrant, have a judge on call 24/7 to issue a warrant, and to have qualified medical technician on hand to draw the blood. The blood sample then has to be sent off to a lab to get a result, which can take weeks.

It just isn't feasible for most jurisdictions to do this on a routine basis. A breath test, on the other hand, can simply be obtained by an on-duty cop who happens to have taken a certification class in order to run the breath test machine. No warrant, no waiting, no civilian personnel -- and instant results. 2. The idea that there is a huge number of DWIs on holiday weekends is largely a myth. I think the general public assumes that an enormous number of people get arrested for DWI on holiday weekends. My experience as a criminal defense lawyer doesn't bear this out.

The vast majority of our DWI clients aren't arrested on holidays. Instead, they're arrested for DWI coming home from their cousin's barbeque, after stopping at a bar after work with friends; they are arrest during normal times, during their normal lives. If anything, they are less likely to be arrested on a holiday, when they are more self-aware of their drinking, when they are more likely to be conscious of police targeting DWI and more likely to have access to designated drivers."No refusal" weekend are good PR, but I haven't seen anything like a peer-reviewed study that says they actually do a lot to stop DWIs from being committed.

As long as there are prosecutors and judges who run for reelection in Texas who think they can get some PR bank for the buck by publicizing "no refusal" weekends, such weekends will continue to pop up around the holidays. But don't expect no refusal polices to become the normal way of doing things or for them to make a significant dent in overall DWI statistics.