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"I'm certainly 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 lawyers 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 lawyers can find a way to keep the evidence from ever being introduced at trial.
Fort Worth attorney Mark Daniel succeeded in suppressing the blood evidence against one of his clients, District Judge Elizabeth Berry. The court ruled that there wasn't enough evidence to justify her arrest. Daniel will speak at Burrows' DWI Innocence Project on "exposing flaws in the search warrant of a DWI blood test case."
"If the blood test comes in to evidence, I don't think anybody legitimately can say your chances will ever be better than 30 percent, with the exception if it's an 0.08 or 0.09, then I would give them 50-50," Burrows says.
Burrows also will continue to use science to challenge the blood tests and has invited Wimbish to speak at his conference. Wimbish says blood must be collected properly, which means according to forensic standards. If the officer takes the vial of blood and leaves it in his pocket for a couple of days before sending it off to the lab, that evidence is no longer admissible. Blood tests that are processed at a hospital rather than a forensic lab are also susceptible to challenge.
Burrows doubts the blood program will ever go full-time, particularly for large agencies like Dallas. Blood tests, besides being time-consuming, could actually lower the amount of fines the county collects because officers will be less likely to make borderline arrests. "Just because today the courts seem to be leaning toward blood testing, that doesn't mean it's going to stay that way," Burrows says. "We don't have any definitive answer from the Texas courts whether that is a reasonable violation of a person's rights. Basically, it's going to take some cases to figure this whole thing out."
For Burrows to continue handling DWIs, he must believe there is still the possibility that his clients are innocent. "In my own mind, I want to feel like they're not intoxicated. You can't sell a product you don't believe in," he says.
"If you do blood testing, I think the gray area is going to drop," he says, then pauses. "Well, the lawyers will help them through the plea bargain process. But as far as trials, we'll start trying other cases.
"I'll say the politically correct thing: I'll be happy to go into another line of business if it stops you from driving while intoxicated. But as long as there's gray area in DWI..."
With defense lawyers just beginning to meet about blood cases, it's likely the area will remain gray for a while.