DWI Corner
May-June 2021

Dusting off the knowledge we ­forgot and learning new things

By W. Clay Abbott
TDCAA DWI Resource Prosecutor in Austin

In TDCAA’s 2019 Legislative Update courses—before the pandemic hit and the world flipped upside-down—nothing caused more concern and consternation among the audience than an agriculture bill that upended marijuana prosecutions.

We promised we would get back to you with some solutions when the lab problems were resolved—and then we got distracted by that pesky pandemic.

            Since then, we have found a whole new way to get information out to Texas prosecutors (that would be online video courses), and you have likely started receiving DPS lab reports on felony marijuana cases. To explain these lab reports (what they are and why you’re getting them), TDCAA created a short online video, “DPS Crime Lab Marijuana Testing Policy & Procedure,” which is totally free and accessible at www.tdcaa.com/training/dps-marijuana-policy-and-procedure-online-training. It provides a half-hour of CLE and is similar to many of our other DWI training videos (more on those in a moment).

            In this video, I interview those who oversaw the creation of the current DPS marijuana testing program and those who are training the scientists whom prosecutors will soon call as witnesses. Although the training is not a mock trial, my interview may seem a bit like a direct examination. That is not an accident, as my hope for the online course was not only to educate prosecutors on science and lab procedures, but also to be a template for preparing a forensic scientist to testify.

            Some of you are already making charging decisions, negotiating, and perhaps even trying felony marijuana cases, so this is information you need immediately. TDCAA learned from the pandemic that the best way to get information across the state quickly and cheaply is through short online videos, so please check out this new one and let us know what you think.

Additional resources

Speaking of trials resuming, anyone feel a little rusty on your DWI trial skills? Please don’t forget about the tremendous number of resources available from TDCAA that will help shake off the dust—because y’all have an avalanche of cases the pandemic delayed coming your way soon (or maybe right now).

            For one, every Texas prosecutor received an updated edition of TDCAA’s DWI book. It was shipped in the last month or two courtesy of our Texas Department of Transportation (TxDOT) traffic safety grant. If you have not seen it, it has a nice bluebonnet-blue cover and is called DWI Investigation & Prosecution by W. Clay Abbott and Diane Beckham (our senior staff counsel). If you have not read a previous edition, I recommend a thorough reading of this one. If you’ve already read earlier versions, I suggest a quick browse, as there are new suggestions, charts, and resources. Plus, a year without DWI trials is a long time, and this book will kick out the cobwebs.

            Second, check out the DWI page of our website (www.tdcaa.com/resources/dwi). There you’ll find a DWI caselaw document updated by Jessica Frazier, ACDA in Comal County; the whole thing is searchable and downloadable. There are also a good number of training videos. Many are similar to the aforementioned marijuana testing video, and all are meant to disperse information in a short, easy-to-digest format. Two of them, “Testing Blood for Drugs in Texas” and “Breath Alcohol Testing,” were created with the help and participation of the forensic scientists you will have to call to admit breath or blood results. These videos’ purpose is to launch your preparation of witnesses for direct and cross in what is often very difficult expert testimony.

            Are you feeling a bit out of practice in jury selection? Take another (or a first!) look at the two videos on this topic, “Jury Selection in DWI Prosecution,” and “Special Issues in Jury Selection in DWI Prosecution.” You’ll see some of the best DWI prosecutors in Texas present their most effective jury selection techniques. For those who participated in athletics in the past, think of these videos as the film room sessions you spent with your team getting ready to start the season.

            And there’s a lot more where that came from, including additional videos, demonstrative exhibits, documents, and more, so go take another look at the website’s DWI page. You just might find exactly what you need there.

Regional training is coming soon

Lastly, regional DWI training is coming back in June. Regional training is when I journey the state to deliver a day’s worth of free CLE and TCOLE training, for both prosecutors and peace officers, on various intoxication-related topics. I ask prosecutors in jurisdictions across Texas to host these events, and I book them weeks and even months ahead, so the rest of my year is planned out well in advance. I cannot tell you how restless I have been in waiting to travel again.

            This year’s topics are “Effective Courtroom Testimony,” “Rolling Stoned” (how to prepare and try drugged driving cases), and “Worst Case Scenario” (preparing and trying intoxication assault and manslaughter cases). If you’re interested in receiving this training and you want to host me, watch the “Live Training” side of our website’s Training page (www.tdcaa.com/training/#live-training) for information on signing up in late April. It will be great to see everyone in person this summer!