Houston Criminal Lawyer and DWI Blog – Scheiner Law Group, P.C.

Here’s one of the more humorous news stories we ran across this year. It’s a timely reminder to please drink responsibly this holiday season.

(CNN) — It was a dark, windy and rainy night when Per Johansson returned from work to his home in Saro just south of Gothenburg, Sweden.

“It was raining really bad. In the wind I heard something screaming with a very dark voice,” Johansson told CNN. “At first I wondered if it was the crazy neighbors, but then I heard it again and went and checked. I saw something really big up in a tree in my neighbors’ yard and it was a moose. It must have been drunk after eating fermented apples and as it was reaching out for more fruit it must have slipped and fallen into the tree.”

Johansson called the local fire and rescue department, which responded with a fire engine and a jeep with a winch.

“We got the alarm at 9.59 p.m. on September 6 that a moose was stuck in a tree,” said Anders Gardhagen, spokesman at the Gothenburg Fire and Rescue Services.

“When we arrived we used the winch to bend down the apple tree so the moose could get himself out of the tree. Once free, the moose collapsed on the ground and fell asleep. So we let him sleep it off and went back home” Gardhagen told CNN.

“Moose are attracted by the apple trees, and in the autumn when the apples have fallen off the trees we normally have at least one of these cases of intoxication. These apples, which ferment in their bellies, aren’t part of their natural food, so they can get quite angry from this drunkenness,” Gardhagen said.

Johansson’s son, Gustav, who is about to turn 11, made sure to take lots of pictures of the ordeal.

“He is saving up to buy a PlayStation so he thought he would take pictures that he could sell,” Johansson said.

CNN purchased three of Gustav’s pictures.

When dawn came the day after it was freed from the tree, the moose had not yet left.

“When I went out for the newspaper it was still laying there on the ground, sleeping. By the time I left for work it was walking around the neighbor’s yard on very shaky legs.” Johansson said.

“Today the moose came back and walked around the yard,” he added. “I think it likes it here.”

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The holiday season is in full swing, and so is Texas DWI enforcement. Police agencies throughout the state are beefing up DWI patrols. DWI defense attorneys in Houston and everywhere agree on one thing: the best way to avoid picking up a DWI is to avoid being behind the wheel if you’ve had too much to drink.

The Department of Public Safety and other government agencies are trying novel ways to discourage drinking and driving. This year, DPS launched a new website as a part of its “Choose Your Ride” campaign and a Santa-themed DWI Facebook page. Even some local law enforcement agencies are trying new ways to get their message out. Last week, an NPR affiliate in Arlington reported that the Arlington Police will have live “Tweets” from DWI arrests.

We welcome these creative approaches to discourage drinking and driving in Texas. But the problem with these approaches is that they are far too often dishonest and closer to propaganda than accurate information. If you were unfamiliar with the laws of Texas and you saw these pages or followed the Arlington Police’s “Tweets” you would almost certainly believe that drinking and driving is illegal. Of course, this is not true. You don’t have to be a criminal defense lawyer to know that it Texas, you are guilty of DWI only when your blood alcohol content is above a 0.08 or you lose the “normal” use of your mental or physical faculties (what “normal” means in this context, God only knows, but that is a subject for another blog post).

For example, DPS’ website employs the catchy phrase “Drink. Drive. Go to Jail.” when that is clearly not the law. This is a problem and I believe we are not nitpicking when we take issue with this. When people are misinformed as to the law, they will eventually believe it. What would happen the next time they sat on a jury? Would they be able to render a fair verdict? What about police officers? Will the goal of “keeping drunks off the road” outweigh the rights of the individual? Will an officer fed a steady diet of blatantly wrong catchphrases err on the side of making a DWI arrest? These are genuine concerns. While we believe the goal of keeping our roads safe is an admirable one, we ask that our government honestly instruct its citizens as to its rights, and what the law really says.

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Since practically the time automobiles because commonplace, our government has enacted legislation of one form or another to protect us from intoxicated drivers. Amazingly, the first government sponsored study recommended that drivers with a BAC above 0.15 could be presumed to be intoxicated while those below could not. Over the decades, criminal defense lawyers know the legal limit has steadily been decreasing due to pressure from politicians and politically influential organization like Mothers Against Drunk Driving. Today it is 0.08 in every state.

When will it stop? When it is completely illegal to drink and drive? When it is completely illegal to drink at all? At least one Canadian province has taken the step of enacting penalties for drivers with a BAC of 0.05 or higher. Is this a sign of things to come in the United States? An excerpt from the article below – originally published as an editorial in the Edmonton Journal – raises some interesting points:

Alberta’s new drinking-and-driving legislation will follow the tire tracks of B.C. into a decidedly grey area. In so doing, it may create opposition to an initiative that will achieve its public-safety goal, but still invite criticism for targeting drivers who are not legally impaired according to the Criminal Code of Canada.

Drinking and driving is a crime that kills too many people, both bystanders and the drunks themselves, and there ought to be universal rejection of the practice. Our premier and her government should be dedicated to the eradication of this scourge. And they were in fact wise to consult with their B.C. counterparts, whose iron-fisted and open-handed legislation is being credited with a significant reduction in deaths caused by drunk driving since its enactment in September 2010. But the Redford government has to see the B.C. legislation for its unduly harsh nature – and its cash-cow element as well.

In B.C., a driver whose blood-alcohol content is measured between .05 and .08 – which is legal under the Criminal Code – can be hit with an immediate three-day licence suspension and have to pay a fine of $200, as well as a $250 fee for licence reinstatement and might also have to pay for towing and storage if his or her vehicle is seized. Being caught in this grey area a second or third time in a five-year period results in heftier financial penalties, lengthier suspensions and longer vehicle seizures.

But a 125-pound woman needs to drink only two fiveounce glasses of wine over a one-hour period to register .06, according to a Canadian Automobile Association calculator. When Redford said she wanted new legislation to change the culture around impaired driving, surely she meant to target those who drink themselves past .08, rather than the husband and wife who share a bottle of wine on an evening out for dinner.

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If you are unsure about the status of your Texas Driver’s license, the Department of Public Safety has launched a website which will allow you to check your current status. Additionally, the website allows users to pay fees charged for suspension offenses, and lists any outstanding compliance items that need to be completed before driving eligibility is restored. The website can be accessed here:

https://txapps.texas.gov/txapp/txdps/dlreinstatement/login.do

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This past week, the New York Times featured an interesting, though troubling, article addressing eyewitness identifications (read the article here). This is a hot topic among criminal defense practitioners. This month, the United States Supreme Court heard its first oral argument in more than thirty years addressing eyewitness identifications.

The article discusses a handful of the countless studies discussing the unreliability and malleability of memory – findings that go against the common perception that eyewitness testimony is among the most reliable forms of evidence.

“While most of us tend to think memory works like a video recorder,” the article notes, “it is actually more like a grainy slide show. Lost details including imaginary ones, often are added later.” This can happen when a witness is questioned by police or prosecutors in a suggestive manner (for example, the article notes that asking a witness to a traffic accident to describe how cars “smashed” into each other, rather “hit” each other, made it more likely that the witness would report speeding and shattered glass, even if not true). A witness can also be made to feel certain in his or her memories by the suggestion of others.

Criminal defense lawyers understand that there is no correlation between the certainty and accuracy of eyewitness identifications. But the problem is that too many juries – and judges and prosecutors – put far too much stock in witness identification. The article notes that many experts have taken the view that eyewitness evidence should be regarded as “trace evidence” – fragile evidence that is subject to contamination and unreliability.

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