Tuesday, September 02, 2008

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.

24 comments:

Anonymous said...

Is it really predjudicial to the defense? Some of the ads might actually help. Especially the ones running lately with the shitfaced looking guy sitting in a car filled with beer. The public's expectation in DWI trials is that they will see slobbering, falling down drunks. Those never make it to trial.

The ones that do are the ones where the driver's finer motor and processing skills are impaired. These are usually associated with BAC's just at around 0.08, sometimes even higher. Juries want to see the guy with the traffic cone on his head, not an HGN test.

Anonymous said...

I think that MADD has lost a lot of it's original intent and is now a politically motivated group moving to make social drinking illegal.

Anonymous said...

I don't have a problem with social drinking, but then I see a case like the one this weekend in Dallas where an (allegedly) drunk man with two previous DWIs and a history of running from the police killed a couple and injured four others after an officer attempted to pull him over on suspicion of DWI and I think "the laws need to be a lot more strict." That is, of course, a knee-jerk reaction.

I don't know what the answer is to solving such problems, but it's easy to be angry at a system that failed to do anything substantial that might could've saved these lives.

Anonymous said...

I agree with 2:09. Grits, you are stretching far to find something to bitch about. What do you have against DWI prevention programs when you tout "prevention" programs for most other issues that you blog about?

Plato

Don Dickson said...

I don't really have a big problem with the "drink-drive-go-to-jail" ads. As a defense lawyer I'd use them in voir dire to make my point that it isn't quite that simple.

It's certainly no worse than the insurance companies telling us they are the "good hands people" and your "good neighbors," which are not intended to sell insurance so much as to persuade you that you're not dealing with the forces of Evil Incarnate, and don't need a lawyer, after someone whom they have insured plows into you.

Drinking even a little and then driving within temporal proximity is just plain stupid and reckless. I'm not going to lose any sleep over the lack of nuance in TXDOT's message.

Gritsforbreakfast said...

Plato asks, "What do you have against DWI prevention programs when you tout "prevention" programs for most other issues that you blog about?"

Answer: Nothing at all - I specifically wrote, "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 ... 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." So you're arguing against a red herring, Plato, not anything I've written here.

Don, at least you're honest that you're willing to tolerate overt misrepresentation if it's for what you perceive as a good cause. I'm not sure that's a wise stance to take, but at least you're up front about it.

Anonymous said...

Thousands of incrementalist bureaucrats LEOs and hotshot prosecutors just read this post, spit up their coffee and cried out, "Holy fuck!"
Then they speed-dialed folks like plato to start muddying the waters while they figure out a way to SHUT Scott Henson DOWN.
The most important power a state has is to propagandize it's citizenry. From the idiotic "Keep East Texas Purdy" billboard to Operation: Gamethief, Click it or Ticket (see???what a Free country we live in, they give you a CHOICE!) to images extolling the great pleasure of driving while paying tolls the state carefully and at great expense to the taxpayers shapes the messages and attitudes it wants to breed in a compliant citizenry.
You screw around with this stuff, or even point it out, at your own peril.

W. W Woodward said...

"There's man with a gun over there, telling me that I've got to beware."

Drink, drive, go to jail! (Threat)

Click it or ticket. (An obvious threat, but crappy verse.)

Speed kills. (Nope, it's the sudden stop.)

The state is your friend. If you don't do what the state says it will send someone to kill you.

I am sick of being threatened by the state. The best thing my government can do for me is to just leave me alone. After all, as far as the state is concerned all I am is a statistic and a revenue source.

Billboards and Television ads probably won't make any difference because by the time the lawyers get through whittling down the jury pool, the only people left are idiots that will blindly follow the instructions of the court.

There was an "educational" video making the rounds a few years ago in which a prosecutor stated that juries aren't picked. the people who end up on a jury are the left-overs.

Don Dickson said...

WWW wrote: There was an "educational" video making the rounds a few years ago in which a prosecutor stated that juries aren't picked. the people who end up on a jury are the left-overs.

If you've ever watched jury selection, you know that this is precisely what happens. You don't really "pick" a jury. You pick people off, and you're stuck with whoever's left.

Don said...

I'm with Scott. All for prevention, but more for the Truth. We did this crap with marijuana, (and still are), and all that did was cause kids to not believe anything the government, or an adult said. MADD and NHTSA put out bogus information and "statistics" constantly. If they can't be factual, they need to not run the campaign. Drink, Drive, Go to Jail? Probably not. A very tiny percentage of drunk drivers get caught. Anon. 2:19. You are exactly right. MADD is now a neo-prohibitionist outfit, (also funded in part by taxpayer money), that even it's founder, Candy Lightner, has denounced. I don't want my money going to this propaganda crap, and I SURELY don't want it going to the MADD propaganda machine. Mr. Dickson: the whole point Scott was making was that it is the GOVERNMENT using TAXPAYER money. How you draw a parallel with Insurance company ads and that, is beyond me. Also think it's quite a stretch that you think the insurance company ads are aimed at telling people they don't need a lawyer. Good Grief!

Anonymous said...

Tell my co-worker Albert, who was left for dead on the side of a San Antonio freeway that DWI isn't a big problem. He now is missing his entire right shoulder and arm. And that the MEAN POLICE are just out picking on those "poor souls" who leave the parties and bars "intoxicated/shitfaced or whatever" after 10 p.m. Yeah, I know you are all gnashing your teeeth at this post, really, too f***ing bad. Defense attornies are responsible for all the victims of 2nd, 3rd, 4th, 5th and so on DWI accidents because the money is the "MOST" important thing to you! And don't give me I'm protecting their rights BS. I don't care to hear you ptiy party for those who drink and drive, and injure and kill innocent Americans!!!!!!!!!!!!

Anonymous said...

...And if we just pass enough laws, and EDUCATE the public, who are too dumb to know what's good for them, then everything will be PERFECT and nothing bad will ever happen. We are just a FEW laws away now....can't you understand this????

deputylastrites said...

Well, then we should have Amish juries I suppose. Aren't thou right Grits? Those darn English and their fiery water drinks.

Anonymous said...

Wow. I thought it was illegal! If someone advertises that a vitamin will "cure" this or that (which it might), the FDA is all over that manufactuer and will shut them down, so how can you post something like that..fraudulant information?

Anonymous said...

We can ALWAYS put them on a registry, like the SO registry. Well we've seen that 97% of all new cases of sexual offenses come from outside the registry, so think it as ever-expanding. But hey, look at the great votes the elected officials will be pandering for.. Although I think that some of the votes they get now would be against them making DWI/DUI register-able.

I have to side on the thought that the posters/signs/ads do nothing to quell the drunk driving arrests. It is education that has or should claim victory there.

W. W Woodward said...

I'm almost afraid to engage in satire as some idiot will probably want to take this suggestion and run with it.. But here goes:

The state could pass legislation to treat those convicted of DWI/DUI offenses just like we treat those convicted of felonies.

Take away the convict's drivers license and his/her privilege of possessing, being in the presence of, or drinking alcoholic beverages as well as the ownership, possession, or use of a motor vehicle of any kind for the rest of his/her life. In addition; take away his right to vote, hold public office, or live anywhere within 5 miles of another human being. Relegate the convicted alcohol abuser to second class citizenship for the rest of his/her natural life.

There. That ought to fix the problem.

karlrove said...

Well we've seen that 97% of all new cases of sexual offenses come from outside the registry

Aha! Registering offenders reduces the rate of recidivism more efficiently than rehab programs!

Anonymous said...

w.w. woodaward

"The state could pass legislation to treat those convicted of DWI/DUI offenses just like we treat those convicted of felonies."

Let's hope not. We certainly don't need more poeople in jail for potentially hurting someone, if we did that we might as well all go to jail, for if you drive, you have the possibility of getting in an accident and killing someone.

"I don't care to hear you ptiy party for those who drink and drive, and injure and kill innocent Americans!!!!!!!!!!!!"

This is not a pity party for those who legitimately hurt someone while driving (whether impaired or not). And that is the problem with the whole DWI movement, it's about emotions and not about common sense.

The stated fact is that drinking and driving is not illegal, it's only illegal if you're over a predetermined point (0.08 presently, we won't get into the idiotness of this number). And everytime I hear these idiot ads on TV or radio, i turn the station, although there are far too many sheep who believe what the sign says, becasue the government says so.

diogenes said...

Seems to me a bit too much read into public safety advertising campaigns that must meet the demands of advertising (memorable sound bites) and resonate with the audience (Texans). The general Texan attitude prefers blunt and simple messages. We don't like playing around with "nonsense"; when we say "no", we mean "no, dammit!"

My favorite is "Don't Mess with Texas". Blunt. Simple. Fits the stereotypical Texan attitude. And it's far better than other states. I visited North Carolina recently and saw their version. It looked like it was written by a committee. Two or three sentences rambling on about how "this is our state so we have to take care of it and keep it pretty so please don't litter pretty please m'kay?". Maybe that's the attitude they prefer in North Carolina, but I doubt it.

If you want responsible social drinking, get a designated driver or use the free taxi ride programs offered in most areas. Or stay put where you are until the alcohol passes through your system (sleep it off). Just don't put other people at risk. It's called being considerate. "Drive Texas Friendly"

samriver said...

The government is spending way to much money on social engineering.
Ther should be a yes or no box on your income tax form asking if you mind having any of your tax spent on brainwashing the public.

sunray's wench said...

deputylastrites said...

"Well, then we should have Amish juries I suppose. Aren't thou right Grits? Those darn English and their fiery water drinks."


Hmmmm.... so it's OUR fault now?? LOL

Actually, we've had a lot of success in turning attitutdes around on the social acceptability of drinking and driving (ie, its NOT socially acceptable) over the past 10 years or so. Most people who drink to excess now cannot afford cars anyway, and its equally hard to afford to be alcohol dependent without forgoing food, because of the tax levied on alcohol. Same with smoking: you cant smoke in public places here now and a pack of 20 costs around £5 (that's $10 ~ do you think that would cut the numbers of Texans smoking too?)

Texas could try that approach.

harry said...

The discussion made on this blog are really interesting.
Every body have different views.
We can come up with new ideas.
============================
Harry
California Dui

andrew123 said...

I don't know what the answer is to solving such problems, but it's easy to be angry at a system that failed to do anything substantial that might could've saved these lives.
=========================================
Andrew William

DUI

Mr Ethical said...

Just sat on a DWI jury this week-

Only evidence= Bexar County Deputy's account of the speeding stop (no ticket issued), and the Deputy's account of roadside sobriety test.

Breathalyzer downtown turned out to contain innacurate "anamolies" for the two week period back in 06 when the arrest was made. (bet non of the other 30 some odd arrested suspects got the benefit of that tidbit!)

Deputy- who has over 1000 DWI arrests, testified over 200 times, had a video in his car that miraculously didn't work that day...

this was a 3rd conviction on DWI-

The first one was when the suspect was 17, the second when he was 19, and now he's over 30...
(y'all realize that for those minor age convictions, there is no evidence needed, only the arresting officers statement that he/she smelled alcohol in the vehicle the minor was in...)

Country road- 3 houses within 2 miles- no traffic or other dangers observed....

He goes to the State Penetentiory for 2-10 years for this "third" DWI...

4-5 jurors adamantly took the word of the Deputy-

4 jurors figured he must be guilty- why else would he be pulled over?

2 didn't believe the totatality of the improbableness of the story and voted not guilty....