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THERE WILL BE Powered By Docstoc
					APRIL 2–8, 2009 I voLume 29 I numbeR 14                   I fRee

              BEaTIng a DWI                              THERE WILL BE
              casE may soon
              gET a LoT TougHER
                                    BY KIMBERLY THORPE
B y K I m B e r ly t h o r p e | P h o t o s b y m a r k g r a h a m

I’m goIng to screw up, Andrea says to herself
as she walks a straight line in front of a Dallas police
officer. Only hours into what was supposed to be a
relaxing Memorial Day weekend, Andrea is on the side
of the road near the bar she just left on Lower Green-
ville Avenue. She thinks she’s sober, but she has to
prove it to this cop, and she’s starting to doubt herself.
I’m going to screw up.
   It’s a cold Friday night just after 11 p.m., and the 29-
year-old now engages in a balancing act. She closes
her eyes, holds out one leg and touches her nose. The
officer points a flashlight at her face as her eyes track
a red penlight that he moves back and forth. He asks
her to count backward. Finally done, she thinks she has
passed the tests.
   The officer thinks otherwise. He handcuffs her and
places her in the back of a squad car headed to the
Dallas County jail. Still in handcuffs, she’s brought to
a room to take a breath test, which she refuses. “I’d
always heard that if you’ve had anything to drink, do
not take it,” she said recently at a restaurant, as she
nervously toyed with a ring. “Don’t blow! Don’t blow!”
                                                continued on Page 18
DWI lawyer David Burrows in the hallway leading to his corner of-                                                                                                half refused to give
fice, surrounded by framed not-guilty verdicts.                                                                                                                  up their blood volun-
                                                                                            “I juST DOn’T WAnT                                                   tarily to a certified
                                                                                                                                                                 medica l technicia n
There Will Be Blood                            more no-ref usa l                                                                                                 stationed at the jail.
continued from page 17                         weekends, most
                                               recently this St. Pat-                      TO COME ACROSS AS                                                     T wo resisted even
                                                                                                                                                                 a f ter being ser ved
   The immediate penalty for refusing          rick’s Day. So far, 404                                                                                           with search warrants

                                                                               pROMOTInG pEOpLE DRInkInG
the test is light: a 180-day license suspen-   p e ople h ave b e en                                                                                             and were cuffed and
sion, which a decent lawyer can easily         arrested and, in some                                                                                             strapped into a chair
reduce. But her refusal to take the breath     c a s e s a f t er b ei n g                                                                                       so their blood could
test means the officer will be denied a        physically restrained,                                                                                            be drawn.
valuable piece of evidence to prove she
had been driving drunk if her case later
                                               forced to give a blood
                                                                                          AnD HuRTInG pEOpLE.                                                         Dallas’ no-refusal
                                                                                                                                                                 program is part of a
goes to court.                                     Drivers stopped                                                                                               trend in DWI polic-
   This night in 2008 is different, though,
and it’s not over yet.
                                               on suspicion of DWI
                                               can ref use to ta ke             I DO WAnT TO pROMOTE THAT                                                        ing that is picking up
                                                                                                                                                                 moment um state-
   Andrea sits on a bench in a long hall       r o a d s ide s o br ie t y                                                                                       wide—one that could

                                                                                                yOu CAn GO TO A
inside Lew Sterrett jail. After about an       a nd br e a t h t e s t s ,                                                                                       quick ly go beyond
hour, a cop hands her a fax. “We have a        and about half of the                                                                                             t he experimenta l
warrant for your blood.”                       nearly 4,000 people                                                                                               stage here if legisla-
   “I’m not signing this,” she says. Are       a r re ste d a n nua l ly                                                                                         tion crafted by the
you freaking kidding me?
   “It doesn’t matter,” the officer says.
                                               in the city of Dallas
                                               for DWI refuse the
                                                                                        RESTAuRAnT AnD HAvE                                                      Dallas Count y Dis-
                                                                                                                                                                 trict Attorney’s Office
“Either way, your blood is getting drawn       breath test. The num-                                                                                             passes in the Legis-
   Andrea, who recounted her story with
                                               ber of “total refusals”
                                               of both kinds of tests                    A DRInk AnD BE FInE.”                                                   lature. It cleared the
                                                                                                                                                                 Senate on March 30.
the condition that we not publish her          have been skyrocket-                                                                                              Dalworthington Gar-
full name, has the dubious distinction of      ing in the last year and a half, say officers,   to have judges standing by on no-refusal      dens, a small Tarrant County community,
being perhaps the first person arrested        judges and lawyers. Drivers are getting          weekends, ready to sign search war-           was the first arresting agency to go full-
during the premiere weekend for an             smarter about the law, and DWI cases are         rants that allow officers to get blood from   time with a blood-draw program in 2005,
experimental Dallas Police Department          getting tougher for police and prosecu-          drivers whether they like it or not. The      and more than 30 agencies across the
program called “no refusal.” Since last        tors to win.                                     weekend before this St. Patrick’s Day, 32     state have contacted the town since then
Memorial Day, the DPD has had four                 To counter that, police have arranged        people were arrested for DWI, and about       to learn how to replicate the program.
Most recently, the Austin police chief         ply too time-consuming. An arresting            this fight better than David Burrows,       Partly that’s because he wants to stay out
announced he is ready to go full-time          officer must fax a request for a search         chairman of the statewide DWI com-          of the line of fire of groups like MADD, he
with the program, although he is being         warrant to a cit y, district or count y         mittee for the Texas Criminal Defense       says. Besides, he’s not a political figure,
met with resistance from the American          criminal court judge who volunteers to          Lawyers Association and arguably Dal-       he says, and he doesn’t have any agenda
Civil Liberties Union and a grassroots         sit at home by a fax machine all night,         las’ DWI king.                              other than to win. “I just don’t want to
group named Stop the Vampire Cops.             ready to sign off on the warrants and fax                                                   come across as promoting people drink-
   It’s not hard to understand why police      them back.                                      The long ha llway outside Burrows’          ing and hurting people,” he says. “I do
and prosecutors are looking for a new              The legislation awaiting action in Aus-     office on North Central Expressway          want to promote that you can go to a res-
weapon to help get drunken drivers off         tin would simplify the process by allow-        is lined with framed pieces of paper,       taurant and have a drink and be fine.”
the road. In 2007, Texas led the nation in     ing magistrates, already on staff 24-7 at       each a not-guilty verdict he has won,           Almost all of the 100 DWI cases that
the number of people killed in alcohol-        the jail to set bonds, to issue search war-     and he’s run out of room to hang them       Burrows will bring to court in a year—
related accidents, according to the lat-       rants to collect blood. That simple change      all. Burrows is a tall figure with a trim   most lawyers will set about 12 DWI cases
est statistics available from the National     would greatly reduce the two to three           mustache, sharp eyes and sun spots on       for court annually—involve clients who
Highway Traffic Safety Administration.         hours it takes an officer to get a blood        his balding head. On a column in the        have refused a breath test, though over
More than 100 people were killed in            sample and shorten the turnaround time          office hangs a framed award given to        the last year and a half he has received
alcohol-related traffic accidents in Dal-      for getting cops back on

                                                                                “IF yOu DOn’T knOW yOuR
las County last year, or about 49 percent      the streets.
of traffic fatalities.                             Increasing the use of
   A lcohol f lo o d s t he cou r t s t o o.   blood as evidence would
Around the courthouse, when lawyers            radically shift the bal-
talk about misdemeanors, what they
really mean is DWI. That’s not sur-
prising, considering that two-thirds of
                                               ance of power between
                                               prosecutors and defense
                                               lawyers and will almost
                                                                                  MATERIAL, THEy WILL nAIL
the 875 misdemeanor cases that went
to court last year were DWIs—which
include drivers intoxicated by alcohol,
                                               certainly lead to court
                                               challenges over whether
                                               rout i ne blo o d t e s t s
                                                                                     yOu TO THE CROSS.”
drugs or both. Fully three-quarters of         t ra mple on d r ivers’
misdemeanor jury trials involve DWI,           right to privacy, as the Texas ACLU con-        him by the Dallas Observer: “2005 Best      more cases in which drivers have refused
and defendants won 57 percent of cases         tends. Whatever the courts later decide,        DWI Lawyer.”                                to take either breath or roadside sobriety
heard by judges or juries.                     right now it looks as if there will be blood,      As successful as Burrows has been        tests. “You know the word’s getting out,”
   Dallas would have already gone to           thanks to the support of police, prosecu-       over the decade in which he’s built a       Burrows says. “Somebody says, ‘Well, I
the no-refusal program full-time, but          tors and the advocacy group Mothers             thriving practice devoted solely to DWI     was convicted, and I didn’t know that I
under current law the process of secur-        Against Drunk Driving.                          defense, he’s been careful to maintain a    didn’t have to do anything.’”
ing the required search warrants is sim-           Perhaps no one knows the stakes in          low profile when it comes to publicity.        Refusing a breath continued on page 22

   A woman arrested for DWI during a no-refusal weekend
   braces inside Lew Sterrett jail before being stuck with a
   needle. In her left hand she clutches a search warrant
   that orders her to give up her blood.
There Will Be Blood                            numbers guy who keeps a running tally
                                               of his win-loss record on his computer.
                                                                                                conference, and this year the focus will
                                                                                                be blood cases. He’s calling it the DWI
continued from page 19
                                               He speaks in percentages and odds and            Innocence Project, a play on the Texas
test isn’t exactly a get-out-of-jail-free      bases his strategies on stats and scientific     Innocence Project, a nonprofit organi-
card for tipsy drivers, but it certainly       theories, and he doesn’t like to bring cases     zation that works to free prison inmates
helps. In Texas, prosecutors must prove        to trial in which he believes he has less        wrongfully convicted of felonies.
that a driver was mentally or physically       than a 50-50 chance of winning. When a               Once lawyers learn about Burrows’
impaired because of drugs, alcohol or          client has taken a breath test that comes        courtroom methods, they often retool
both, or had a blood-alcohol concentra-        back with results above the legal limit, he      their own approach to incorporate his
tion of 0.08 or higher. Whether a jury         figures he has only a 30 percent chance          style, says Lawrence Boyd, another high-
returns a guilty verdict in a DWI case         of victory in court. “I’m not really big on      winning Dallas DWI lawyer, who will
ultimately comes down to a combination         long shots,” he says.                            serve as course chairman at Burrows’
of whatever tests a driver takes and what         Sometimes, though, if the client wants        conference. “David Burrows revolution-
jurors see on the videos officers rou-         to go to court badly enough, he’ll do it. That   ized the way that a DWI case is handled,”
tinely shoot during traffic stops. Appear      happened last year. He had a client, fresh       Boyd says. “We’re educating attorneys on
sober as a judge on the video, and a good      out of SMU, who scored 0.19 on his breath        how to try a DWI case from start to fin-
defense lawyer like Burrows can some-          test—more than twice the legal limit—but         ish. Every criminal lawyer is going to get
times pick apart a negative test result.       his client’s father was determined to keep       calls on DWI. Every person you know has
   If you don’t appear drunk, and there’s      a conviction off his son’s record. And this      a co-worker or a cousin or a brother-in-
no breath evidence that says otherwise,        February, he defended 30-year-old Zach           law who’s going to go get a DWI.” Boyd
well...                                        Warner, who scored 0.14 on his breath test       considers DWI the bread and butter for
   “The person has to look normal,” Burrows    but was resolved to try his luck in court.       defense attorneys, cases in which “you
says. “If you have a client who doesn’t look   Burrows won both cases.                          can do a great job and get a great result.”
normal, you’re just spinning your wheels.”        That sort of success explains why                 In Burrows’ practice, a winning
   Even an ace lawyer like Burrows shies       other defense lawyers look to Burrows            defense starts with picking the right jury
away from trying cases in which his cli-       to teach them his methods. In May, Bur-          and connecting with them.
ent had a bad breath test. Burrows is a        rows will host his third DWI strategy                “I’m from Dallas,” Burrows began
                                                                                                at a February trial. He leaned against
                                                             Zach Warner, a multimedia          the counsel desk and took his time, as
                                                                developer, got a second         if speaking to friendly strangers in his
                                                              chance at a life without a        own living room. “I’ve been here all my
                                                          criminal record after Burrows         life.” After telling them about his stud-
                                                                   beat his DWI charge.         ies at SMU and Baylor, he moved directly
                                                                                                to the question that was on the minds of
                                                                                                potential jurors. “I know what you are
                                                                                                saying in your heads. I wonder what he’s
                                                                                                accused of?” Then he adopted a somber
                                                                                                tone. “Well, my client is innocent.” It’s the
                                                                                                prosecution’s job to prove guilt beyond a
                                                                                                reasonable doubt. “Will you have an open
                                                                                                mind and make the state prove to you
                                                                                                that the breathalyzer works?” There was
                                                                                                a round of enthusiastic nods.
                                                                                                    Burrows’ st yle in t he cour troom
                                                                                                is folksy, but that’s part of a carefully
                                                                                                crafted strategy. “When he walks into
                                                                                                a courtroom to try a case, there is a
                                                                                                purpose behind every move he makes
                                                                                                and every word he speaks. It’s scalpel-
                                                                                                like in its precision,” says Rick Hagen,
                                                                                                president of the Texas Criminal Defense
                                                                                                Lawyers Association.
                                                                                                    If his client appears sober on the video,
                                                                                                then Burrows believes doubt has already
                                                                                                been planted in the jury’s mind. “The
                                                                                                jury doesn’t need somebody to tell them
                                                                                                what they’re seeing,” Burrows says. Per-
                                                                                                haps the officer made a mistake, or maybe
                                                                                                the field tests the officer based the arrest
                                                                                                on were faulty. Or, if the client took the
                                                                                                breath test and the score was high, per-
                                                                                                haps the breath test machine itself, the
                                                                                                Intoxilyzer 5000, didn’t work properly.
                                                                                                    Defense lawyers used to focus on
                                                                                                attacking the character and intelligence
                                                                                                of the police officer making the arrest,
                                                                                                but the stat-minded Burrows crunched
                                                                                                his numbers and found that approach
                                                                                                wasn’t working. Jurors don’t want to see
                                                                                                a cop accused of being a liar, so Burrows
                                                                                                took a different tack. He limits the num-
                                                                                                ber of questions he poses to officers on
                                                                                                the witness stand to 15, tops, and zeroes
                                                                                                in on how the evidence was collected.
                                                                                                    Rather than attack a cop, Burrows
                                                                                                focuses on the possibility that the officer
                                                                                                made a straightforward mistake. “[DWI
                                                                                                is] an opinion crime,” he says. “The old-
                                                                                                school lawyers would berate the officer
      “OnCE yOu GET
     THEM In THE jAIL,
     AnD THEy REFuSE
    EvEn THOuGH THEy
       HAD SIx CLuES,
      THEn THEy WIn
        THE pRIzE.”

Dallas police Senior Corporal Bobby Watkins and his portable breath test: Officers like Watkins on the city’s DWI task force take care in
building cases against drunken drivers. They have to, thanks to lawyers like David Burrows.

and try to break down the officer and          how the test said he should have looked        false positives 59 percent of the time.
show the officer was incompetent, and I        was enough for Burrows to sow doubt in            Like Wimbish, Simpson has made a
just decided, wait a minute, it’s not about    jurors’ minds and win an acquittal.            career out of testifying as an expert on
the officer. It’s about an opinion. And an        Burrows also will occasionally argue        behalf of defense lawyers in DWI cases.
opinion doesn’t reach beyond a reason-         that the state cannot prove his client was     He’s even written a book, The DWI Con-
able doubt.”                                   intoxicated at the time of arrest, since the   spiracy, alleging a plot in the manipula-
   Whether someone looks drunk is sub-         breath test was taken more than an hour        tion of the field sobriety tests that result
jective, but a breath test produces a con-     later. It takes a while for the human body     in the faulty arrests of thousands of inno-
crete, persuasive number. With a breath        to absorb alcohol into the bloodstream, so     cents—though Burrows doesn’t bring up
test score, Burrows says, “you’ve stepped      paradoxically, a driver could be below the     the book at trial.
out of the opinion.”                           legal limit for intoxication when arrested        “We respect the court system,” Simp-
   So how does Burrows manage to win,          but become drunker as he or she waits to       son says. “We just beat it every chance
by his own accounting, 30 percent of           blow into the Intoxilyzer, Wimbish says.       that we get, because it’s defeatable. I
the cases he tries that have Intoxilyzer          “David is able to distill the essence of    shouldn’t be able to win these cases like
results? He uses science to attack the         a case to the current knowledge known          this. It should be difficult, but it’s not.”
science behind the breath test. For that,      about alcohol relating to breath and              At least for now.
Burrows relies on his own experts.             blood,” says Wimbish, who spends many
                                               afternoons at the county courthouse tes-       It’s St. Patrick’s Day no-refusal week-
The breath test, invented in the earlier       tifying for a number of defense lawyers at     end, and Senior Corporal Bobby Wat-
part of the 20th century, measures the         a rate of $120 an hour. “David deals with      kins, a member of the Dallas DWI squad,
amount of alcohol in your breath and uses      the facts. He is a pretty good scientist.”     is on duty Saturday night. Only 15 min-
that measurement to approximate the               Burrows also uses science to attack         utes after pulling out of central head-
level of alcohol in your blood. And there’s    the field sobriety tests—that series of bal-   quarters, he’s called to where a possible
the rub: The results are an approximation      ance and mental acuity exams that offi-        drunk driver was stopped heading the
and can vary depending on a number of          cers ask drivers like Andrea to perform at     wrong way down a one-way street. At
factors—how much you drank, your size,         the roadside. Officers will testify that the   the scene, an Expedition is parked on
when you had your last drink before the        tests are accurate and backed up by stud-      the sidewalk on Elm Street. The woman
test and what you’ve eaten, for example.       ies conducted by the National Highway          behind the wheel is wearing a festive,
   If a client has a high breath test score    Traffic Safety Administration. Burrows         bright green T-shirt.
but on the video seems sober and speaks        has his own expert to counter a failed            “We’re doing blood tonight,” says
without slurring, Burrows will argue that      sobriety test—a former police officer and      Watkins, a cheerful cop with a whisper
something went wrong somewhere with            Texas Alcoholic Beverage Commission            of a voice, as he parks his squad car. He
the analysis of the breath sample. To bol-     commander named Dexter Simpson.                directs a spotlight into the windshield
ster his case, he often calls on Dr. Gary         According to NHTSA, a simple test like      of the Expedition and walks over. The
Wimbish, a forensic toxicologist.              watching to see if a suspect’s eyes follow     sobbing woman has red hair stuck in
   Take, for example, the case of Bur-         a moving light smoothly or if they jerk—       clumps to her face. Watkins asks how
rows’ client Zach Warner, who blew a 0.14      called the horizontal gaze nystagmus           much she’s had to drink. “Two drinks,”
on his breath test. According to Wimbish,      test—is an accurate measure of drunk-          she says. “Oh, two drinks?” he repeats.
science says that anyone with that high a      enness up to 95 percent of the time. Not       (On the way over here, Watkins told me
blood-alcohol level should appear visibly      quite, Simpson testified in a recent Bur-      that virtually every driver he faces says
drunk, but in Warner’s case, he appeared       rows case. Both Wimbish and Simpson            they had only two drinks.) The woman’s
relatively sober on his arrest video. The      have delved into the NHTSA’s own data          left leg is in a splint, and she limps away
difference between how he appeared and         to find, they claim, that the test produces    from her car at Wat- continued on page 24
There Will Be Blood                                    A stream of people flowing into the
                                                   jail offers a glimpse of how big the DWI
continued from page 23
                                                   problem is.
kins’ request. Between sobs, she says she              A handcuffed man followed by another
is a single mother of three.                       officer comes through the mechanized
    Watkins tells her to hold the grill of         door. His shoulders are pulled back tight.
the squad car while he performs a series           He also needs to use the restroom and is
of field sobriety tests. He’s looking for at       spinning in circles, holding it.
least four clues that she’s drunk. Counting            The door opens again. Another young
backward from 48 to 33, she skips 45. She          woman in handcuffs comes through, fol-
recites the alphabet correctly. Then he asks       lowed by another officer. She shuffles her
her to focus on a red penlight as he moves         feet. Blood is splattered across her jeans.
it broadly to one side and back. Her light         “What happened here?” Watkins asks.
eyes follow it. Her mascara has run and            “DWI accident,” the other officer replies.
collected to form a smudged ring below her             “The reg ular patrol officers, they
eyes. He sees her eyes jerk during the eye         shy away from DWI arrests...because of
test. Next, he removes a portable breath           some good lawyers out there, yes, like
machine. He can’t use the reading in court,        David Burrows. If you don’t know your
but it helps to confirm his decision to arrest     material, they will nail you to the cross,”
the woman. She scores 0.184.                       Watkins says.
    She’s placed in handcuffs and starts               But all his preparation can fall flat in
squirming because her bladder is full.             the face of a determined assault from
She needs to go now, she complains, but            lawyers like Burrows and his experts.
there’s nothing but a vacant parking lot           That’s why blood would be such a game
and multi-storied garage nearby. As Wat-           changer. A breath test may be iffy, and
kins fills out more paperwork, urine col-          even a hardcore drunk may pass a field
lects in a pool below her sneakers.                sobriety test. But a blood test that shows
    In the Dallas Police Department, there         a high level of alcohol is tough to beat.
are usually 10 officers on the DWI task            That’s why Mothers Against Drunk Driv-
force specializing in DWI cases. The               ing is baying for blood.
squad knows what it takes to win at trial.             MADD firmly believes that punish-
    “We’re building a case right from              ment works as a deterrent. So, when 57
the start,” Watkins says as he drives to           percent of the people who go to court
the jail, where the single mother will be          for first-offense DWI are acquitted, that
booked and have her blood drawn. “If you           means a growing number of Dallas driv-
arrested this person, you got them off the         ers haven’t learned their lesson. With
street. That’s a win-win for us and for the        blood in play, once the public gets word
citizens of Dallas. But once you get them          that it is nearly impossible to get out of
in the jail, and they refuse to give sam-          a DWI arrest, people will think twice
ples, even though they had six clues, then         before drinking and driving, says Mary
they win the prize.”                               Kardell, executive director of the North
    Watkins says that everything he does           Texas MADD chapter. The average defen-
in the field is geared toward a future trip        dant drinks and drives 70 times before
to the witness stand. First, he determines         they’re caught, Kardell contends. “If they
if there is enough reasonable suspicion            are dumb enough to drink and drive and
to stop a car—say, driving the wrong               get themselves pulled over, then they get
way down Elm Street. Next, he uses his             what they deserve.”
senses. “What do you see? What do you                  Dallas District Attorney Craig Wat-
smell? What do you hear? You see blood-            kins created the blood legislation await-
shot eyes. Or you ask for their license,           ing action in Austin, and it tops his nine-
and they hand you a credit card. Or they           point legislative agenda.
are fumbling with the license and drop-                Misdemeanor court Judge Lennox
ping it on the floor.” Then, “What do you          Bower was the first judge to sign a blood
smell? Alcohol.” Finally, “What do you             warrant during Dallas’ first no-refusal
hear? ‘Officer, I had two beers.’ Well,            weekend in 2008. Bower had reserva-
maybe they did, but then they are giving           tions about forcing people to give up
you inconsistent statements.” The woman            blood, but he knew the practice was
in green says she had her first drink at 7,        sweeping the state and figured he might
but then says she had her first drink after        as well get involved early and have some
leaving her house, which was at 4 p.m. So          input. For one, he insisted that blood
Watkins asks her again, and she says 5.            draws take place at the jail and aren’t
    He adds up all this to decide whether          performed by police.
to make an arrest. Watkins says that on                Then he started to look at the numbers.
some nights, although he’ll stop five peo-         After that first no-refusal weekend, of the
ple, he’ll arrest only one or two.                 18 people who refused to give a sample of
    Of course, if a driver pisses herself on the   their breath, blood work revealed that all
street, that’s pretty much a lock arrest-wise.     but one were well above the legal limit for
    The woman arrested on Elm Street is            intoxication. The average was 0.15. The one
dragging her feet across the police park-          exception was Andrea, who hired Burrows
ing lot to the basement entrance of Lew            to defend her. Her results came back at
Sterrett jail. “This is so embarrassing,”          0.05, and prosecutors dismissed her case.
she mumbles.                                           Then Bower looked at his own casel-
    Once inside, she stays for a while inside      oad and noted that in a growing number of
the restroom, which is a glass room vis-           DWIs, prosecutors had no evidence because
ible to those in the hall.                         the defendant had refused to take any tests.
    Watkins waits for her with his back to             “When I saw that, and then saw what
the room. “If you were at a .09,” he says,         the juries are doing—which is acquitting
“you would say, ‘I can’t use that bathroom         total refusal cases—I realized that this is
because people are going to see me!’”              not only inevitable, but necessary,” Bower
says. After he heard that some drivers had      ing flaws in the search warrant of a DWI        also susceptible to challenge.                 “In my own mind, I want to feel like
to be physically restrained, he grew less       blood test case.”                                  Burrows doubts the blood program            they’re not intoxicated. You can’t sell a
comfortable with the practice. “There are           “If the blood test comes in to evidence,    will ever go full-time, particularly for       product you don’t believe in,” he says.
some parts of this I am still conflicted        I don’t think anybody legitimately can say      large agencies like Dallas. Blood tests,           “If you do blood testing, I think the
on,” Bower says. “I don’t like to literally     your chances will ever be better than 30        besides being time-consuming, could            gray area is going to drop,” he says, then
force them if they are refusing, but once       percent, with the exception if it’s an 0.08     actually lower the amount of fines the         pauses. “Well, the lawyers will help them
I started seeing the numbers, it made it        or 0.09, then I would give them 50-50,”         county collects because officers will be       through the plea bargain process. But as
easier to accept.”                              Burrows says.                                   less likely to make borderline arrests.        far as trials, we’ll start trying other cases.
   Right now lawyers are debating whether           Burrows also will continue to use sci-      “Just because today the courts seem to be           “I’ll say the politically correct thing:
no-refusal programs are constitutional.         ence to challenge the blood tests and has       leaning toward blood testing, that doesn’t     I’ll be happy to go into another line of
Texas law states that if a driver refuses to    invited Wimbish to speak at his confer-         mean it’s going to stay that way,” Bur-        business if it stops you from driving while
give a sample, “none shall be taken,” but       ence. Wimbish says blood must be col-           rows says. “We don’t have any definitive       intoxicated. But as long as there’s gray
mandatory blood-draws backed by search          lected properly, which means accord-            answer from the Texas courts whether           area in DWI...”
warrants have been upheld by the Texas          ing to forensic standards. If the officer       that is a reasonable violation of a person’s       With defense lawyers just beginning
Court of Criminal Appeals.                      takes the vial of blood and leaves it in his    rights. Basically, it’s going to take some     to meet about blood cases, it’s likely the
                                                pocket for a couple of days before sending      cases to figure this whole thing out.”         area will remain gray for a while.
For those arrested during St. Patrick’s Day     it off to the lab, that evidence is no longer      For Burrows to continue handling
weekend, the consequences will be costly,       admissible. Blood tests that are processed      DWIs, he must believe there is still the                     E-mail the author at
win or lose. Burrows bases his fees, any-       at a hospital rather than a forensic lab are    possibility that his clients are innocent. 
where from $5,000 to $10,000, on how
long he thinks a trial will last. A convicted
driver pays the court $1,000, the proba-
tion office $62 per month for two years
and the state $1,089 for three years. Plus,
the conviction goes on your record.
   Bur rows k nows a ll too well t he
price of a g uilty verdict. In 1996, he
was convicted of failure to file hun-
dreds of thousands of dollars in taxes
and ordered to serve a two-year sen-
tence. But he never lost his law license,
just any semblance of his previous law
practice. Burrows came from a mod-
est upbringing; his father was a truck
driver, and his older brothers were star
athletes, so he turned to academics at a
young age to feed his intensely competi-
tive spirit. After he served his sentence,
he quickly dedicated himself again to
winning in law.
   “I’m cer tainly 100 percent more
appreciative,” the 55-year-old Burrows
says about how his conviction affects him
today. “Most lawyers my age...are burned
out, ready to retire. I’m truly ready to go
another 20 to 30 years.”
   He started trying DWI cases because
those were the phone calls he was getting
when he resumed practicing. Specializing
allowed him to stay on top of his game.
“Every trial I would lose, I’d learn more.
As I would lose a case, I would say, ‘OK, I
gotta adjust next trial’ and see what was
working and what was not.”
   Now Burrows is beginning to get calls
on DWI blood cases. As of February, only
12 of the hundreds of cases from the start
of the no-refusal program had come to
court, resulting in a dozen guilty pleas.
While Burrows is disturbed that law-
yers are shying away from bringing blood
cases to court, he realizes that blood
marks a new challenge to the strategies
he’s spent a decade perfecting. It’s time
for a new game plan.
   For one thing, cases where the blood
alcohol level is determined to be at 0.10 or
higher will stay out of the courtroom. The
blood evidence is simply too persuasive—
unless Burrows and other defense law-
yers can find a way to keep the evidence
from ever being introduced at trial.
   Fort Worth attorney Mark Daniel
succeeded in suppressing the blood evi-
dence against one of his clients, District
Judge Elizabeth Berry. The court ruled
that there wasn’t enough evidence to jus-
tify her arrest. Daniel will speak at Bur-
rows’ DWI Innocence Project on “expos-