Once lawyers learn about Burrows' courtroom methods, they often retool their own approach to incorporate his style, says Lawrence Boyd, another high-winning Dallas DWI lawyer, who will serve as course chairman at Burrows' conference. "David Burrows revolutionized the way that a DWI case is handled," Boyd says. "We're educating attorneys on how to try a DWI case from start to finish. Every criminal lawyer is going to get calls on DWI. Every person you know has a co-worker or a cousin or a brother-in-law who's going to go get a DWI." Boyd considers DWI the bread and butter for defense attorneys, cases in which "you can do a great job and get a great result."
In Burrows' practice, a winning defense starts with picking the right jury and connecting with them.
Mark Graham
DWI lawyer David Burrows in the hallway leading to his corner office, surrounded by framed not-guilty verdicts.
Dallas Police Video
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.
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"I'm from Dallas," Burrows began at a February trial. He leaned against the counsel desk and took his time, as if speaking to friendly strangers in his own living room. "I've been here all my life." After telling them about his studies 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' style in the courtroom 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. Perhaps 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, perhaps 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 number 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 and try to break down the officer and show the officer was incompetent, and I just decided, wait a minute, it's not about the officer. It's about an opinion. And an opinion doesn't reach beyond a reasonable doubt."
Whether someone looks drunk is subjective, but a breath test produces a concrete, persuasive number. With a breath test score, Burrows says, "you've stepped out of the opinion."
So how does Burrows manage to win, by his own accounting, 30 percent of the cases he tries that have Intoxilyzer results? He uses science to attack the science behind the breath test. For that, Burrows relies on his own experts.
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The breath test, invented in the earlier part of the 20th century, measures the amount of alcohol in your breath and uses that measurement to approximate the level of alcohol in your blood. And there's the rub: The results are an approximation and can vary depending on a number of factors—how much you drank, your size, when you had your last drink before the test and what you've eaten, for example.
If a client has a high breath test score but on the video seems sober and speaks without slurring, Burrows will argue that something went wrong somewhere with the analysis of the breath sample. To bolster his case, he often calls on Dr. Gary Wimbish, a forensic toxicologist.
Take, for example, the case of Burrows' client Zach Warner, who blew a 0.14 on his breath test. According to Wimbish, science says that anyone with that high a blood-alcohol level should appear visibly drunk, but in Warner's case, he appeared relatively sober on his arrest video. The difference between how he appeared and how the test said he should have looked was enough for Burrows to sow doubt in jurors' minds and win an acquittal.
Burrows also will occasionally argue that the state cannot prove his client was intoxicated at the time of arrest, since the breath test was taken more than an hour later. It takes a while for the human body to absorb alcohol into the bloodstream, so paradoxically, a driver could be below the legal limit for intoxication when arrested but become drunker as he or she waits to blow into the Intoxilyzer, Wimbish says.
