Yet another public official has added their name to the list of those who have defied the law and refused to provide a breath test. Anyone keeping a list?

Travis County judge arrested Wednesday night

Sam Biscoe charged with DWI and released on bond

By Ben Wear

AMERICAN-STATESMAN STAFF

Thursday, August 12, 2004

Travis County Judge Sam Biscoe was arrested Wednesday evening and charged with driving while intoxicated.

Biscoe, whose arrest by Austin police occurred at 10:47 p.m. at Manor Road and Northeast Drive, was released at 1:35 a.m. today from the Travis County downtown jail on a personal recognizance bond, according to Roger Wade, spokesman for the Travis County Sheriff's Department.

According to an arrest affidavit, Biscoe was stopped after failing to signal while changing lanes.

Police also reported that Biscoe's 2001 Ford was drifting from the inside to the outside of its lane.

According to the affidavit, Biscoe told police he had one glass of wine and one beer at the bar he was coming from. Biscoe said he was also taking cholesterol-lowering and diabetes medication.

The affidavit says Biscoe was polite, but failed several sobriety tests. According to police, he refused a Breathalyzer test.

Biscoe, who spoke in calm measured tones during an interview at his office Thursday morning, said that he had one beer at a fundraiser for Casa Marianella at the Nuevo Leon restaurant on East Sixth Street. He also said that after the fundraiser he went to the Airport Club and Grill where he had a few drinks while discussing politics with another person whose name he declined to release. He declined to say how many drinks he had at the bar where he said he regularly goes to discuss business.

Biscoe said he does not think he is guilty of driving while intoxicated and does not plan to resign. He said the police officer who arrested him followed him for several blocks before turning on his siren. Biscoe said he wondered why the officer was following him because he was driving the speed limit, which is 35 m.p.h.

Biscoe said he did fail to signal that he was changing lanes. The road, which he had frequently driven, was bumpy in that area and that was why he was changing lanes, Biscoe said.

He said the officer who arrested him did not ask him if he wanted to take a breath analyzer test until Biscoe was sitting handcuffed in the back of the patrol car. By then, Biscoe said, he decided he was already going to be charged with a DWI, so he refused the breath test.

Biscoe said he plans to hire a lawyer. He said he doesn't have a drinking problem, but "from now on I'm going to drink a whole lot less or not at all," he said.

Under Texas law, a conviction for a first-offense driving while intoxicated charge carries a minimum jail term of 72 hours. The maximum punishment would be 180 days in jail and a fine of $2,000.

As Travis County judge, Biscoe presides over the five-member Travis County Commissioners Court. He was first elected to the court to represent Precinct 1 and has been judge since 1999.

If implied consent actually means anything, then I guess the judge altered, destroyed, and concealed his blood and/or breath (a thing) with intent to impair its availability as evidence in the officer's investigation?

We sat and waxed poetic (many threads ago - following the State Bar Magazine article on DWI refusal) about those who would not take a breath test, and why they wouldn't. My question was, how many lawyers would. I haven't met one yet.

Frankly, the Judge was right, once you are arrested, they aren't going to unarrest you. So, why give any statements or evidence at all. He probably did far more than I (and most lawyers who actually defend DWIs) would do. I'd be inclined to skip the FSTs also.

If the State were really interested in knowing your blood alcohol, they'd read the DIC on the side of the road, on video and ask for a breath test. If the answer is no, the perp should be driven to a local hospital, while an affidavit is prepared for a search warrant, a Judge should be located and the search warrant signed (much of the information on a DWI affidavit can be preprinted such as the trinity - glassy blood shot eyes, odor of alcohol on breath, trouble maintaining balance) then when the perp arrives, blood is taken.

That should end all whining and complaining about not ever knowing.

Bet that Judge now feels a lot differently about suppressing evidence.

[This message was edited by Beck Gibson on 08-13-04 at .]

Some of us are doing just what you suggest, Ms. Gibson. But the fact that we have to go to the trouble of establishing a warrant system to get a blood or breath sample just highlights the extreme silliness of our implied consent law. Warrants for blood programs are not that difficult to set up in small counties but pose a much greater obstacle to large urban counties because of the numbers. Of course most lawyers are going to refuse to give the sample if arrested for DWI. That's because they know it's the best way to frustrate a prosecution. It has nothing to do with whether they are guilty of the crime. We all know most of them are. Unless you are a defense attorney who believes that most people arrested for DWI are innocent. I happen to believe that our police officers do a pretty good job of discriminating who is actually intoxicated and make the right decision most of the time. The point with this judge isn't about whether you or any other lawyer would refuse the test; it's about a judge setting a really great example for all the other people out there who are stopped for DWI. This is the best example I have seen in a long time of why we need to change the consent law. Only an idiot takes the test ... especially if he's guilty. That's why this stupid law needs to be changed. Why pretend we have a breath or blood test requirement when everyone knows it's a legal fiction. I think we will stop "whining" and go to the Legislature and put the focus on this issue to get the law changed, and I think the good judge has unwittingly helped us out.

Austin-American Statesman EDITORIAL

Embarrassing combination: politicians, DWI charges
Sunday, August 15, 2004

Drinking and driving is an occupational hazard of the political class, as numerous local and state officeholders over the years can attest.

The latest casualty is Travis County Judge Sam Biscoe, charged late last week with drunken driving after being stopped while weaving on Manor Road in East Austin. Austin police said Biscoe failed a field sobriety test and refused to take a blood alcohol test.

Biscoe admitted to drinking beer at a fund-raiser in East Austin and having drinks with a friend at another establishment afterward. He says he did not feel intoxicated and suggested that medication he takes for diabetes and high blood pressure might have caused him to fail the field test. That determination will be left up to the prosecutor and the courts to decide.

Biscoe's embarrassment follows the sad downfall of former Williamson County Sheriff John Maspero, arrested twice last week, once on a charge of public intoxication. Maspero resigned his position as sheriff in December after being charged with public intoxication while walking home from an event in Georgetown.

These and other high-profile cases of alcohol-related incidents should help illustrate the dangers of driving under the influence of alcohol. It is a hazardous, sometimes deadly, custom that can wreck cars, lives and careers.

Maspero had already, as he put it, hit bottom when he fell a little further still. Biscoe, 57, has placed his long career in public service in jeopardy, though he says he will not resign his office. "Will I drink less in the future?" asked Biscoe, who has been county judge for six years and was a county commissioner for a decade before that. "Yes, if at all."

Drunken driving is a serious issue of long standing in this community. In November, Mack Martinez III, who was the Travis County attorney's first assistant, was charged with drunken driving after hitting a guardrail on the Interstate 35 frontage road. He resigned, pleaded no contest, was fined and served five days in jail. He has since returned to the county attorney's office.

During Thanksgiving week in 2001, state Sen. Gonzalo Barrientos of Austin was charged with drunken driving after weaving along Congress Avenue. He pleaded no contest, apologized and served a year's probation. His career survived but he drew a stiff challenge from Republicans at the next election.

In 1999, longtime Travis County Court-at-Law Judge Wilfred Aguilar was arrested on drunken driving charges in Williamson County. He resigned his office and pleaded no contest. Aguilar is now in private practice as an attorney.

Alcohol can be a perilous habit for anyone, but elected officials pay a particularly high price when busted in alcohol-related incidents. Just ask President Bush, who was embarrassed when his 1976 drunken driving arrest was exposed during the 2000 presidential campaign.

These highly embarrassing episodes should be instructive for everyone: Don't drink and drive. It just isn't worth it.

[Oh yeah, and they all refused to follow the law and provide evidence showing their guilt.]

I disagree with Becky's post in one regard. If he had passed a test (and look at your log books many do) he likely would have walked away.

During a heated discovery ordeal a defense attorney won the right to look at a years worth of BT logs. Of course I reviewed them first. The great majority of people who took breath test failed (many miserably) but it was not an isolated incident that people tested at .06, .04, .02. Many were released and no case was submitted to our office. Some were submitted and were no filed. A couple were submitted and we filed even with a passed BT. Those cases were very rare.

Attorneys that advise everyone to refuse the test commit malpractice. If the person is not intoxicated defense lawyers, or well meaning prosecutors, just caused very exculpatory evidence to be lost. At worst the innocent suffer, at best the guilty escape justice. Since when did lawyers take the position that all truth was damaging? This advice creates more clients, and more contestable cases, it is still horrible advice to those that drink and drive, but are not intoxicated under the .08 standard. Ask any prosector which would you rather try: a refusal and an ok video, or a .04 and and ok video? Many would no-file the second, and certainly make a lower offer even if they filed it. Am I way off base here?

We have a PR situation with breath test that defies logic and rational thinking.

Clay,

NOt being a defense lawyer myself I wonder if that might not cut the other way as well. Its not as if its always easy to tell whether someone has hit 0.8 or not just from how they feel. Since the consequences to failing the BT are well known, perhaps the general refusal advice grows out of the fear that the defendant will misjudge his own intoxication level and/or otherwise be overconfident in his abiltity to drive.

Certainly if you've had one drink in over an hour or no drinks and are certain you are nowhere near intoxicated taking the breathalyzer might be a good move, but if that's the case you would have likely passed the field sobriety tests too right? (I admit I've never been asked to take an FST or BT)

Given the consequences and uncertainty might it not also be malpractice to advise a course of action that has such consequences and such risks outside of limited circumstances?

In any case, I agree these scenarios make a strong argument for revising the way the law operates here.

Well, according to the most recent NHTSA study, if you exhibit 2 of 6 clues on the HGN, you're 88% likely to be at .08 or more. If you're eyes are wobbling, (onset of distinct nystagmus prior to 45 degrees) sorry bubba, but you've had too much drink to drive.

I asked a trooper during a DWI refusal trial, "Of all the defendants you've arrested for DWI who chose to provide a breath sample after performing and exhibiting intoxication during the HGN, did any of them pass the Intoxilyer examination?" His answer was yes. One. The one person that wasn't intoxicated it turned out had a language barrier that wasn't readily apparent. But of the other 9237492749274 he'd done, he was always right.

I don't know if that means those who are very intoxicated don't think to refuse, or what, but I think it is relevant to the conversation and perhaps something to consider.

Providing a sample of your breath when one is requested is simply put, pleading guilty.

I have noticed in the past few months a trend of DWI cases in which a suspect is offered a breath test, takes it, and blows under .08. Nonetheless he is charged with DWI or DWI w/ child. I understand the frustation of prosecutors for BTR; they are certainly easier for me to defend. Nonetheless, if the law is .08, then the State should be playing by the rules. The more cases, like the ones I mentioned before, are filed, it will also lead to breath test refusals.

I would like to know who out there is trying less than .08 cases (in the absence of evidence of drugs other than alcohol). I'm sure not.

Folks in the know advise others not to submit a breath sample becuase it is true that the overwhelming majority of those who law enforcement ask to submit are intoxicated.

I have also heard anecdotal stories from West Texas that too many law enforcement officers (esp. DPS) are still processing defendants who blow well under 0.08, esp. in DWI w/ Child cases. Is this yet another example of "passing the buck," or is there a legitimate reason for such behavior in the absence of any evidence of other causes of intoxication?

They are not anecdotal in my county. We have officers who file on defendants who blow less than .08 under the theory that he/she has lost the normal use, etc. Since we have only a few certified operators of the intoxilyzer machine, it sometimes takes 2 hours or more to get the test administered. The theory is that the defendant was above .08 when stopped. I decline those cases without sufficient extrapolation facts (which is all of them), but the officers keep filing them. They do not understand that the people we are doing this to are the jurors of tomorrow.

Also it certainly discourages people to take the breath test since they are going to be arrested anyway.

I don't understand the unwillingness to file on low breath test results. At least it doesn't match up with what I was taught in baby prosecutor school this year. The loss of normal use of mental or physical faculties isn't a theory, but a statutory fact. Or are you also going to reject those cases with a no blow? It would seem to me that a sufficiently poor performance on the standard field sobriety would be enough to proceed. We don't have to prove what other substance contributed to the loss, or even that there was another substance. Just the loss.

Do you think it would be legitimate in a no blow or low blow case to charge *only* on 49.01(2)(A) "not having the normal use ... by reason of introduction of alcohol ... or other substance," and leave off (2)(B) altogether? In other words, omit any reference to .08 in both the charging instrument and ultimate jury charge?

Posted on Thu, Sep. 09, 2004

Judge arrested on suspicion of driving drunk

By Deanna Boyd

Star-Telegram Staff Writer

FORT WORTH - A U.S. magistrate judge was arrested Friday night near downtown Fort Worth, accused of driving while intoxicated.

Paul D. Stickney was pulled over about 11:25 p.m. in the 900 block of West Seventh Street after a Fort Worth DWI officer noticed him speeding and weaving in his 1971 Volkswagen Beetle, said Sgt. Don Hanlon, supervisor of the traffic investigation unit.

Hanlon said the officer noticed a strong odor of alcohol coming from Stickney, a federal magistrate in Dallas for the Northern District of Texas.

The officer also noted that Stickney was unsteady on his feet, that his eyes were watery and bloodshot and that his speech was slurred, Hanlon said.

"He indicated he had several drinks that evening," Hanlon said.

Stickney did not return phone messages left at his office and home Wednesday. His attorney, Francisco Hernandez Jr. of Fort Worth, declined to comment.

Hanlon said Stickney, 51, refused to take a Breathalyzer test but submitted to a field-sobriety evaluation.[emphasis added]

"He did not successfully complete the evaluation and was arrested for DWI at that time," Hanlon said.

Driving while intoxicated is a Class B misdemeanor.

After his arrest, Stickney was transported to a holding facility, where he was videotaped. Hernandez soon arrived, and Stickney was released on a pretrial writ of habeas corpus signed by Magistrate Allan Butcher.

Butcher said Wednesday that Stickney was not treated any differently because he is a magistrate.

"This was a charge of driving while intoxicated, and his attorney was there to take him home," Butcher said. "He did not pose a danger or threat to the community and certainly was no flight risk.

"The alternative would be for him to remain in jail for many hours. There's no community benefit that's furthered by that."

Stickney worked in private practice until becoming first assistant federal public defender in 1990. He was appointed a U.S. magistrate judge in 1998.


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[This message was edited by Robert S. DuBoise on 09-09-04 at .]

[This message was edited by Robert S. DuBoise on 09-09-04 at .]

Robert M., I don't know how new you are (you did mention that you went to the baby prosecutor's school) but the reluctance to file a DWI below .08 isn't a decision (most times) on the law. You are right, an argument can be made that the person was intoxicated even if the instrument doesn't show it. I have filed one or two of these cases during my career when there was a long delay before the test was conducted, etc. But as a general rule, I think it's a waste of judicial resources to try to prosecute such a case. I can't imagine most jurors deciding to convict in such a case when the test conducted by the State itself is against you. Personally, I just don't have time to do it. If you do, by all means full speed ahead and let us know how it goes.

I have to agree with Tim. Unless the defendant is just horrible on tape and there is a significant delay between arrest and the breath test, I wouldn't file a straight alcohol charge with a test less than .08.

Now, we've had a blood test with .05 BAC, but the defendant also had trace marajuana, Soma, Vicodin, and Xanex in his system. Which was a dunk on the conviction.

I agree with Jane. I have seen very very few cases where there was any independent evidence of LNU (loss of normal use) in the face of a bt under .08 (or in the old days, under .10). The defendant would have to be snot slinging, commode hugging drunk to get a jury to go for guilty if they passed the bt.

If you've got a good video (for the defendant) and the def passed the bt, and you're contemplating trying it, then you've got a lot of time on your hands.

That kind of case should be knocked out at the intake level, before it is ever filed.