So We Fought

 

I was recently in trial on a difficult case.  It was a felony DWI, so the jury knew my client had at least two priors from the get go.  The DA, a long-time prosecutor, mentioned that in Voir Dire at least 15 times.  Truth be told, it was not just my client’s third DWI, it was actually my client’s sixth DWI since 2009.  But, my client (who we can call James) wanted a trial.  So we fought.

James had a tough case.  He was accused of running a police officer off the road late at night, on video.  He was accused of driving north in south-bound lanes for more than a mile.  He was accused of registering a BAC of over .20.  He was accused of urinating in his pants in the police car after being arrested.  James was accused of fighting with the nurses who drew his blood.  He was accused of unloading a stream of expletives that would make George Carlin or Sam Kennison blush.  He was accused of having whiskey and beer in the car.  Worst of all, this was all on video.   James was offered twelve years and then, after a lot of negotiation, eight years in prison.  We refused the offers.  So we fought.

Thanks to some good lawyering in the past, James was only looking at one enhancement despite this being his fourth felony arrest.  His first felony was reduced to a misdemeanor, the second resulted in probation and the third led to two years in TDCJ.  Here we were, with a tough case, worse facts and a man seemingly out of breaks.  He insisted on a trial.  So we fought.

We picked a jury during a tornado.  I was soaking wet standing in front of the venire.  We got a decent jury, despite them being told over and over about the jurisdictional enhancements.  We started testimony right after that. The first witness was the only officer who did the Standard Field Sobriety Tests.  He was very honest and very likeable.  The deputy told us this was the second time he had ever done SFST’s and that is was likely he made several mistakes.  He was very well received by the jury.

The second deputy was another matter.  He was not certified to do the tests, was cocky and hostile, and had a hard time finding the truth.  He insisted my client was unsteady on his feet.  After watching the video for more than ten minutes without so much as a shuffle, he would not concede his mistake or lie.

There is nothing really exciting about the rest of the trial.  The chemist testified and there were no facts for retrograde extrapolation.  The jury deliberated for about 90 minutes before they reached a guilty verdict.  This was not much of a surprise.  I spoke to several jurors after the verdict and the horrible driving, especially on video, was critical.  They ignored the SFST’s and were split on the blood, but the driving was too much to overcome.

We elected to go to the court for punishment.  We had decent mitigation.  My client started drinking after the man who raised him, who he was named after, passed away suddenly in front of my client.  All his legal trouble, all 6 DWI’s, were after James’ grandfather died.  The DA asked for twenty years and a $10,000 fine.  He challenged the judge to “bridge the gap” between James and the community.  I argued for leniency.  The judge sentenced James to six years in prison.

There is an idea that “winning” is a fluid concept on this side of the table.  Often, we have terrible facts, caught on video even.  We have clients with difficult attitudes and worse criminal histories.  We fight DA’s and judges.  But, beating the offer was satisfactory to my client.  He knew we had bad facts.  He knew he had numerous priors.  He knew what the video looked like and what the police testified to, and he knew that we did what we could with what we had.  He wanted the fight.

So we fought.

About Vik Vij

Vik Vij is a criminal defense attorney in Houston practicing in Harris, Galveston, Brazoria and Fort Bend Counties. He’s the father of two amazing girls and is a fan of all things Houston. Connect with Vik on Twitter at @Vikvijlaw

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