Meanwhile, eight years after JB started this thread regarding Gary T's legal advice to readers to refuse to give a breath sample, we encounter Mr. Tyler Flood, a board certified Houston lawyer licensed a year before this thread began, who advises folks in the current issue of the BJ to refuse to give a breath specimen and that they can refuse roadside sobriety testing.

Here's the link to the article, and his viewpoint is near the end.

http://www.texasbar.com/AM/Template.cfm?Section=Texas_Bar_Journal&Template=/CM/ContentDisplay.cfm&ContentID=11948

It should be a requirement that before any defense lawyer can represent anyone on a DWI EVER that they must put in some time in a police cruiser cutting innocent dead folks out of cars who have been killed by drivers who didn't think they were intoxicated.

Apart from being a bunch of nonsense, Flood makes obvious his contempt for prosecutors. The second sentence of his "advice" says: "Prosecutors commonly try (improperly, in my opinion) to educate juries that "intoxicated" is a much lower standard than "drunk".

If Mr. Flood thinks that this statement is true, then I'd request him to show me a statute for driving while drunk.

The drunk vs. intoxicated trick is an old one that most of us get past in our first year of criminal trial practice. Does Mr. Flood spend time in trial trying to tell a jury that his client wasn't drunk, with the intent to confuse them with the difference between drunk and intoxicated?

Mr. Flood continues with: "Most reasonable people would agree that it is very scary to think that they can have a margarita at dinner and then drive home and be at risk for having a needle stuck in their arm."

I would add that most reasonable people don't drive while intoxicated, and that it's the reasonable people (i.e. victims of intoxicated drivers) that get injured by the unreasonable ones, the intoxicated ones.

I'd like to see the survey from which Mr. Flood drew his opinion of who constitutes "reasonable people".

And I'd like to see the appeal on the case where the trial court threw out a breath specimen due to the D being coerced into giving a sample. And a cite.

GG, you read my mind.

Kind of sad to see that 8 years hasn't changed anything about how defense attorneys approach the issue of advising citizens about following the law. Also, kind of sad to see that the Bar Journal hasn't really changed all that much, except to provide an alternative point of view. [Notice that throughout the Party Talk, the other issues only get one point of view.] The defense perspective practically drips with editorial bias, not legal advice.

On the other hand, for felony DWI cases, the question is moot: you will give blood. That is, indeed, a step forward.

[This message was edited by JB on 12-02-10 at .]

I think it's the same "reasonable people" as the ones they make up the "American people" that as a group seem to be the reasoning behind both completely opposite choices of policy in Congress.

This should please you: several years ago, Mr. Flood represented a family member in a DWI case I was prosecuting. He filed a motion to suppress based on the standard purported violations of every constitutional amendment conceivable, including a violation of Miranda because his client had been "interrogated" at the roadside without the benefit of being informed of his rights. I attached as "Exhibit A" of my reply to the court a copy of **his own website** that stated Miranda warnings do not apply to roadside interrogations. Kinda made it hard for him to legitimately argue it in court, and I was proud as ever that I researched the out of town attorney.