Do taxpayer-funded ads contaminate DWI jury pools?

While attorneys have long railed against taxpayer funded sloganeering over DWI, at The Matlock Blog, defense lawyer Shawn Matlock suggests an hypothesis I've long harbored in some deeply cynical pocket of my soul but never publicly pronounced: Is the main, real-world function of anti-DWI advertising of the type Texans see everywhere on billboards and television, essentially to contaminate the jury pool? If not in intent, certainly I think that occurs in practice. Matlock writes:

Not too long ago, I had a conversation with my father about some federal case I had where there were some complex search and seizure issues. I tried to explain to my twenty-ninth generation Texan, former rodeo cowboy, straight-talking father that the government can’t actually just walk into your house and seize everything on a hunch. To my dismay, he apparently assumed the government could.

As I began to dissect this somewhat horrifying situation, the conversation turned to DWI cases. My father quizzed me on how I defend (or at least try) various DWI cases. I explained the common fact scenarios for a DWI case that might go to trial. During the middle of the conversation, my father interrupted me to state very matter-of-factly that “If you drink and drive, you go to jail. End of story.”

Somewhere, a Texas prosecutor is smiling. It dawned on me. Those billboards are not about deterrence. Whoever came up with that slogan wasn’t thinking that the campaign was going to stop anyone from having a drink before driving. The purpose of these billboards is to contaminate the jury pool.

You see, after I wiped the drool from the sides of my mouth, I tried to explain that that little catch-phrase is not actually Texas law. I went over the definition of intoxication and explained how a typical DWI case is constructed. I even went so far as to show him a copy of a jury charge that I happened to have saved onto my laptop.

Despite all of that, he wasn’t sure. He had questions about how the definition of intoxication worked with the catch-phrase. He questioned the thinking of someone that drank before driving knowing that it was against the law. The point is, he was swayed by the billboard. He was confused by billboard because he thought for the longest time that the billboard was the law.

I've thought since I first saw them these billboards were misleading and relied on a poor message that's factually inaccurate - they're writing PR checks, so to speak, that the justice system can't cash. Matlock's conversation with his Dad shows why that's harmful and not just wrong, wasteful and dumb.

To give credit where it's due, Shawn isn't the first Tarrant County lawyer to notice the mendacious overreach of these now ubiquitous billboards and ads. According to Alcohol Problems and Solutions:

Of course, its only illegal to drive with a blood alcohol concentration (BAC) of .08 or higher. Therefore, the billboards present a falsehood apparently intended to intimidate drivers into abstinence.

In reaction to these dishonest billboards, Mimi Coffey of Fort Worth has posted a billboard of her own. “Drink, Drive -- go to jail. Another government lie.” (Dallas Morning News, 4-22-04) She earlier posted a billboard asking rhetorically “Who said responsible social drinking is illegal?”

Ms. Coffey wants both the Texas Department of Transportation, which created the slogan, and anti-alcohol activists to stop putting out propaganda that’s creating an atmosphere of terror. She says the crusade unnecessarily scares people and is part of an effort to discourage alcohol consumption under any circumstances.

To be sure, public education programs have done a lot to reduce many vices from cigarette smoking and drunk driving particularly those that focus on truth telling instead of promoting inaccurate hype, so I don't think any reaction should throw out the baby with the bathwater. The real issue in the example of TXDOT's ads, IMO, is that the PR campaign is obviously, factually inaccurate, not necessarily that government should not ever fund them.

I also wonder about the wisdom of a) overhyping the actual, real-world risks of what is usually a victimless crime, and b) failing to focus on reasons for not driving drunk besides just fear of short-term incarceration. That message only goes so far, especially when claims of the tactic's effectiveness were seriously overstated in the first place.