Dallas would have already gone to the no-refusal program full-time, but under current law the process of securing the required search warrants is simply too time-consuming. An arresting officer must fax a request for a search warrant to a city, district or county criminal court judge who volunteers to sit at home by a fax machine all night, ready to sign off on the warrants and fax them back.
The legislation awaiting action in Austin would simplify the process by allowing magistrates, already on staff 24-7 at the jail to set bonds, to issue search warrants to collect blood. That simple change would greatly reduce the two to three hours it takes an officer to get a blood sample and shorten the turnaround time for getting cops back on the streets.
Mark Graham
Zach Warner, a multimedia
developer, got a second
chance at a life without a
criminal record after Burrows
beat his DWI charge.
Mark Graham
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.
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Increasing the use of blood as evidence would radically shift the balance of power between prosecutors and defense lawyers and will almost certainly lead to court challenges over whether routine blood tests trample on drivers' right to privacy, as the Texas ACLU contends. Whatever the courts later decide, right now it looks as if there will be blood, thanks to the support of police, prosecutors and the advocacy group Mothers Against Drunk Driving.
Perhaps no one knows the stakes in this fight better than David Burrows, chairman of the statewide DWI committee for the Texas Criminal Defense Lawyers Association and arguably Dallas' DWI king.
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The long hallway outside Burrows' office on North Central Expressway is lined with framed pieces of paper, each a not-guilty verdict he has won, and he's run out of room to hang them all. Burrows is a tall figure with a trim mustache, sharp eyes and sun spots on his balding head. On a column in the office hangs a framed award given to him by the Dallas Observer: "2005 Best DWI Lawyer."
As successful as Burrows has been over the decade in which he's built a thriving practice devoted solely to DWI defense, he's been careful to maintain a low profile when it comes to publicity. Partly that's because he wants to stay out of the line of fire of groups like MADD, he says. Besides, he's not a political figure, he says, and he doesn't have any agenda other than to win. "I just don't want to come across as promoting people drinking and hurting people," he says. "I do want to promote that you can go to a restaurant and have a drink and be fine."
Almost all of the 100 DWI cases that Burrows will bring to court in a year—most lawyers will set about 12 DWI cases for court annually—involve clients who have refused a breath test, though over the last year and a half he has received more cases in which drivers have refused to take either breath or roadside sobriety tests. "You know the word's getting out," Burrows says. "Somebody says, 'Well, I was convicted, and I didn't know that I didn't have to do anything.'"
Refusing a breath test isn't exactly a get-out-of-jail-free card for tipsy drivers, but it certainly helps. In Texas, prosecutors must prove that a driver was mentally or physically impaired because of drugs, alcohol or both, or had a blood-alcohol concentration of 0.08 or higher. Whether a jury returns a guilty verdict in a DWI case ultimately comes down to a combination of whatever tests a driver takes and what jurors see on the videos officers routinely shoot during traffic stops. Appear sober as a judge on the video, and a good defense lawyer like Burrows can sometimes pick apart a negative test result.
If you don't appear drunk, and there's no breath evidence that says otherwise, well...
"The person has to look normal," Burrows says. "If you have a client who doesn't look normal, you're just spinning your wheels."
Even an ace lawyer like Burrows shies away from trying cases in which his client had a bad breath test. Burrows is a numbers guy who keeps a running tally of his win-loss record on his computer. He speaks in percentages and odds and bases his strategies on stats and scientific theories, and he doesn't like to bring cases to trial in which he believes he has less than a 50-50 chance of winning. When a client has taken a breath test that comes back with results above the legal limit, he figures he has only a 30 percent chance of victory in court. "I'm not really big on long shots," he says.
Sometimes, though, if the client wants to go to court badly enough, he'll do it. That happened last year. He had a client, fresh out of SMU, who scored 0.19 on his breath test—more than twice the legal limit—but his client's father was determined to keep a conviction off his son's record. And this February, he defended 30-year-old Zach Warner, who scored 0.14 on his breath test but was resolved to try his luck in court. Burrows won both cases.
That sort of success explains why other defense lawyers look to Burrows to teach them his methods. In May, Burrows will host his third DWI strategy conference, and this year the focus will be blood cases. He's calling it the DWI Innocence Project, a play on the Texas Innocence Project, a nonprofit organization that works to free prison inmates wrongfully convicted of felonies.
