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Lonely Wise County Courtroom After The Fact
I mentioned to you earlier this case was unusual and it was. Basic facts: Sheriff's Office receives a call at 2:50 a.m. that a pickup is sitting half on and half off a remote country road in Wise County, all lights off, and the radio blaring. The caller, who is going to work, said it just seemed "suspicious". He couldn't say whether it was running or not.
A deputy responds in 10 minutes. The driver is found sitting behind the steering wheel with his hands to his side. The deputy testifies the vehicle was running with the transmission in "park". He then turned the engine off by reaching in the open driver's side window -- the music (which was Eminem's Slim Shady) continued to blare until the deputy opened the vehicle door. The driver remained asleep and only woke up when the deputy spoke a few seconds later to dispatch over the radio. The driver is initially disoriented and admitted to drinking "two to three beers".
The deputy arrests him for Public Intoxication because there are no troopers available to perform field sobriety testing for a DWI investigation. The Deputy tells him, "It's your lucky day." However, about three minutes later a trooper reports he is available and arrives at the scene in about twenty minutes. Routine field sobriety testing occurs as well as the arrest of the driver for DWI. The driver refuses to provide a sample of his breath.
A search of the vehicle reveals a receipt for a six pack of beer purchased in Runaway Bay at 11:34 p.m. That's about five miles away and three and half hours ago. One beer is in the truck and half empty. One beer cannot be found. Four full/unopened ones are in the sack.
There's always a ton of issues in a trial but the main one was this: Assuming the State proved intoxication, was the driver "operating" a motor vehicle when the deputy found him? The driver/defendant did not testify. The jury will have no information about what happened before the deputy arrived on the scene, why the driver decided to stop at that location, or how long he had been there. Nor will they have any information regarding whether the driver was intoxicated when he initially parked the vehicle. The term "operating" is not defined by the Texas Penal Code. So was he operating a motor vehicle when the deputy walked up to him and found him asleep?
That question, to me at least, is as much of a philosophical question as a factual one or legal one.
Edit: Can't post comments about "what Barry knows" or any factual allegation that I can't verify.
40 comments:
That's how lawyer'n go.
Double Fake Ron Washington
I think he was operating, but he wasn't drunk. Should have been charged with an open container, that's about all they could get him for.
Radio stayed on until the door was opened? Chevy?
Rage
My vote is that sitting in your vehicle, in PARK, on the side of the road, is NOT 'operating' the vehicle. The guy was doing what more people should do...pull over, sleep it off, then go home. should be no one's business if I want to LIVE in my car by the side of the road.
The job of a defense attorney in a jury trial is to convince the jurors that they have the collective intelligence of six (or twelve) fenceposts. It must not have taken much convincing. Congrats to you counselor and your exonerated scumbag client.
Never, EVER do sobriety tests or a breatalyzer. You have the right to refuse incriminating evidence against yourself...
Congratulations BG on acquiring what I am sure will be a repeat customer. Nothing empowers a drunk driver like getting him off the first time.
ok, so which is it? Do or not to do the breathalyzer (sp)..can't they just come back then if you refuse and take your blood with a warrant?? doesn't that violate something besides me?
You can all "vote" all that you want. Until your loved one drives down that remote County Road and plows into this guy because he is half on the roadway with no lights on, maybe we will stop arguing about how to define "operating" and treat the guy for what he is... a possible hazard in the roadway that could cause serious bodily injury. Congrats Barry on your Not Guilty verdict.
12:26, Yea just open container... Let's forget that he is halfway on the raodway with no lights on. That must not be an offense.
Was he moving?No
Was it in gear? Nope....
Not Guilty of DWI...(he was keeping cool to sleep)
PI? Yes
Open container? Yes
Bad driving citation? Yes
I had a feeling somethin bad was gonna come from all this.
Love him or hate him, but my ass gets a DWI i have Barron on speed dial, you always want a good Lawyer, Barber, Massage Lady and Proctologist. Good Job Shoopy
12:54 PM
I would think that forcibly drawing blood against ones will would violate your 5th Amendment right against self-incrimination.
Just as I told you, our laws have failed us again. Yes, luckily he pulled over before he killed someone. But how many innocent families did he pass on the road to the spot he finally pulled over that he could have killed? GREAT job BG. He will be just like a thief. Once they get away with it they believe they can do it again. Maybe this time he will actually hurt an innocent person. We never get lucky enough that they kill themselves. I hope you fell safe with your family being on the same roadway as this idiot.
Now, now counselor. You know there is plenty of case law that describes what "operating" means and the case law is specific to DWIs.
Having said that, I think you are absolutely correct and the jury was correct...if that is everything there is to know about the detention and arrest.
And for you non-legalize knowing folks, the car doesn't have to be "in gear" to be contrued as "operating." I believe that courts defined it as "exerting force in some manner to the vehicle to allow any of the vehicle's functions."
Does this mean car turned off, and you hit the brake pedal, thus causing the rear brake lights to activate? Yup, it does. Or so says the courts.
Not The Real Slim Shady
The law is the law. The verdict is black and white. Jurors can't opt to try someone for something other than what they were charged with(like open container, bad parking, etc) in the jury room. There is no common sense. There is evidence, or lack there of. I've been a juror and had to vote "not guilty" when I felt strongly the guy had done something. We just didn't have proof that he had done what he was charged with. I would hope that if I ever had trumpted up charges from a bad cop, or a disgruntled neighbor, that my peers would do the same for me. Base their judgment on the facts.
I highly doubt this was his first offense. Priors cannot come out until the sentencing phase. Clearly, this case did not get to that point. I am tired of no one having personal responsibility for their actions. He had to drive to get to that point. If he wanted to sleep it off he clearly was not sober enough to pull safely off the road. Let's not argue over the "operating" a vehicle part. He was drunk and behind the wheel of a running vehicle. Period. No wonder the world is going to hell in a hand basket. Bunch of damn liberals. Not everyone is a victim of the system. I could not sleep at night helping crooks get away with it. Everyone is entitled to a fair trial, but that is not the same thing as letting them go free on stupid legal loopholes.
"One beer is in the truck and half empty. One beer cannot be found. Four full/unopened ones are in the sack." That adds up to a six pack. I don't know many men who can get drunk off of 1 and a half beers.
And who knows how many "innocent families" he passed before he pulled over. Drinking and driving is never good, but chances are he wasn't drunk and wasn't a threat to anyone he passed after midnight on a county road in Wise County.
Drunk drivers should be shot in the head on the side of the road. Drunk people in vehicles should be forced to walk down the center stripe all the way home and hope they don't meet the ones who should be shot in the head on the side of the road. That would clear up all the drunk in car issues.
Neither the Law nor Barry are the bad guys here. The prosecutor chose to go forward on a case with bad facts.
If anybody is guilty of letting the driver off, it is the prosecutor. Charge the guy with everything that you can prove his is guilty of, and do everything you can to make sure that he gets the maximum punishment.
Don't charge him with something you think he is guilty of but can't prove.
I just think its ridiculous that our Wise County deputies refuse to do field sobriety tests for a DWI and instead call out troopers to do them. SMH
"The deputy arrests him for Public Intoxication because there are no troopers available to perform field sobriety testing for a DWI investigation."
That's BS.. why can't they do DWI investigatons?
2:08
You must be a time traveler from the days of the Spanish Inquisition.
"We'll dunk them in a tank of water...it they drown, they are innocent. If they live, they are guilty and we'll burn them at the stake! So sayeth the Lord."
2:08 should go back in time he would make a good little Nazi,
Couple of things I would like to know re: the case...
1.) Just how many beers did the guy have? We have some pretty good evidence that he bought a six pack and drank one and a half beers in 3 hours time. You would have to weigh 50 pounds soaking wet to be legally intoxicated just from that. If he was drunk, its because he got lit up prior to the Runaway Bat beer run. Did the prosecution push him on this matter.?
2.) Half on Half off the road doesn't necessarily mean he was in a lane of traffic. If he was half on half off the shoulder and into the right of way that is a big difference. Which was it?
3.) Does 2:08pm also beat puppies with baseball bats in his spare time?
The only thing this guy is guilty of is being a lightweight! A beer and a half and passed out...the real crime was the music on his radio!
But Occifer, I had to drive,I was too drunk to walk...hiccup!
IANAL, but it seems like we are getting further and further away from the spirit of the law and are relying too much on the letter of the law. Obviously, the DUI law itself was enacted to keep people from harming themselves and others. Worse case scenario even if this guy was intoxicated, and there is no real evidence to show that he was, he did the right thing and stopped the vehicle. If you do decide to charge people with DUI just for sitting in a stopped vehicle you are encouraging people to take the chance and to go ahead and drive home. You have to think about the unintended consequences of your actions.
In a perfect world no one would be intoxicated behind the wheel in the first place, but we don't live in a perfect world and have to do the best with what we have.
Congratulations on your victory!
What do you want here, Barry? Compliments on your skills?......thought this was a board for a variety of thought.....it is obviously a venue for you and your lawyer buddies.
If you want compliments, go to to individual jurors OR the judge!
:-)
Wise County deputies can't do their own DWIs? Must be the only agency in the state that can't. Aren't the deputies in Wise County Texas Peace Officers?
Note to self: If you are gonna get drunk, do it in Wise County!
Would you idiots who keep saying on this blog that it is a 5th Amendent violation to take someone's blood with a warrant get it through your thick skulls that the 5th Amendment only covers compelled TESTIMONY, TESTIMONY, by the Defendant. Blood is not TESTIMONY, TESTIMONY. Blood is blood is evidence. So sayeth the Supreme Court of the United States of this America.
Very nice self promotion today, Counselor. How come you don't mention your losses and describe them in long posts?
Congrats you! They should have charged the cop with disturbing his peace..
You know how you keep a Baptist from drinking all your Beer...bring two they will watch each other, only in Wise Co..see you at Church Sunday and a Pitcher of Beer after, funny
Wise County Deputies doing field sobriety tests! Please, the only thing they know how to do is take an incident report. That's what daddy chief deputy wants done and by god that's how it's gonna be. Just call and ask him. The Sheriff needs to go work for Devon. It'll happen.
6:25
Maybe blood isn't exactly testimony, but it could be argued that it is testament. F-you, have a nice day.
What a joke that we have deputies that cannot or will not do a DWI investigation. That's a lack of training or a lack of supervision or both. One more instance where our show pony politician sheriff is failing. The public is clueless. Every other officer and department is capable of and responsible for handling DWIs. Again, what a joke and embarassment.
sooo...it's not a violation to forcibly draw my blood???
did you have the Pinellas 12 idiots for a jury?? No, he was not operating. Good job on the win!!
Only lawyers can determine that drawing my blood,... my urine,... or my breath is not ME testyfying against myself. It is ME providing EVIDENCE against myself and that is something completely different than testyfying. Only lawyers can see that difference.
Big Ed
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