Last night I went to dinner with relatives. I NEVER have a drink during dinner if I am driving home, but another member of our group did.

He limited himself to one because he said that if he was stopped and asked for a breath sample, then he wouldn't be guilty and there was nothing a police officer could do, right?

WRONG!

Don't assume that because you think you are under the legal limit that the police officer will agree with you. More and more I am seeing breath tests that are under the .08 per se standard, but the driver is still being arrested.

Why?

Because there are different ways to prove intoxication in Texas. Specifically, the police officer can prove it with a breath sample over .08 OR if the police officer has probable cause to believe a driver has lost the normal use of his mental OR physical faculties.

That's why I tell my clients that they must not perform any type of roadside skills exercises - the officer isn't trying to see "if you are OK to drive." That officer is looking for the slightest misstep or balance problem to claim that driver is intoxicated.

One misstep, one waive of your arm and you are now guilty of DWI. It's like a horror movie that is no longer a movie, but your life!.

Don't take the breath test!

Don't take any roadside skills exercises!

Don't fool yourself into thinking that if you "pass" the nice officer will let you go home. If the officer believes that you have had anything to drink you are going to jail anyway. Do not give the officer any evidence to help him win the case against you.

Because there are three ways to prove "intoxication" you need to know that the officer can and will use any of the three that they feel they can prove. And by prove, I mean that they can take to a judge or jury and say - "That person may or may not be intoxicated. I think they are, but I took the driver off the streets to make certain that your families were safe. So now I throw it over to you, the jury, and let you decide."

Guess what a jury thinks when the officer comes in with their shiny new badge and dress uniform on? Do you think they are willing to tell that officer, "You shouldn't have arrested that driver."

Don't take the breath test or participate in any roadside coordination skill exercises. Their are too many ways for the State to prove guilt and it has nothing to do with actually being guilty!

Brett Ligon has been elected the new District Attorney of Montgomery County. Brett brings a wealth of trial experience to the office and graciously met with the defense bar on Thursday November 13, 2008. Georgette Lucado of ASAP Bail Bonds graciously agreed to host the meeting.

Mr. Ligon spoke for over an hour and also answered questions regarding his plan for the upcoming change of administration as well as his plans for the future.

Mr. Ligon recognizes a lack of structure and hopes to remedy this in several ways. He informed us that he has been given funding for 7 additional lawyers and 5 staff positions for the office and hopes to alleviate some of the workload on the remaining attorneys. He is also planning on rotating ADA's much quicker than the previous administration in the hopes of giving them a broader perspective so that their focus is not so narrow. His goal is to allow a quicker turn around and move cases at a higher rate than is presently being done.

What was most impressive about the meeting is that, while not making any promises to specifically change policies, Mr. Ligon does have a definite goal of increased efficiency. Some of his plans include some method of internet file review.

Montgomery County is 20 years behind where it should be with access to information. A lawyer must drive, or have someone drive to Conroe, to obtain a copy of a clients indictment. If anything in the Clerk's file is required, there is no method for obtaining it other than sending someone to Conroe to make a copy and physically bring it back. Yet, the courts do not bring over inmates because they have video systems that allow video conferencing - double standard? Only when it works in their favor!

Mr. Ligon recognizes that the problem is a lack of efficiency. He mentioned several times that an ADA that does not return phone calls and is repeatedly not in their office for meetings, will not remain in his office. Currently, I average 5 visits to the DA's office to be able to review a felony file. That's almost 3 wasted hours of travel time going back and forth because that office cannot pull the file or cannot locate the file even AFTER I have sent a fax letter requesting file review.

That means that on an appointed case, the county is paying for 3 hours of nothing because the file could not be found or no one was available to pull it out of a file drawer!

I pay taxes here too and that is ridiculous!

Mr. Ligon assures us that will not happen.

In addition to his policies of efficiency, Mr. Ligon addressed several concerns about discovery issues. As you know, the ADA's in Montgomery County do not understand the discovery process in a criminal case. Either that, or they have been taught to intentionally deny exculpatory evidence to the defense bar until after a jury has been sworn. This is in direct violation of two Supreme Court cases Brady v. Maryland and Giglio v. United States.

Mr. Ligon was trained as an ADA under the legendary Harris County DA, Mr. Johnny Holmes. Mr. Ligon is adamant about discovery and that is, it shall be disclosed, in advance, to the defense or else! He made that very clear and I found it to be reassuring that his training was very similar to mine when I was first prosecuting cases 17 years ago. That is, "disclose everything with a true open file and if you can beat with me, then you deserve to win."

At the end of the meeting, Mr. Ligon was explicit about doing his job. He will prosecute cases and will not be looking to make friends, but he isn't going to be engaged in hiding discovery and secreting evidence to slant the playing field just to win.

It seems that he intends to be fair and at the same time, prosecute his cases to the best of his ability. Having known him for the past 15 years as someone with integrity and possessing great courtroom skills, I think Montgomery County may finally make it into the 20th century!

Only time will tell if it is possible for Mr. Ligon to remain true to his ideals. I don't think he is going to have it smoothly. I expect much resistance from the smaller jurisdictions' police force because it is going to force them to actually be professional officers and act appropriately. Of course, I believe this will work to the overall benefit of the citizens of Montgomery County, and hopefully the "good ole boy" network will finally die and we can outlive the "monkey county" moniker that has been bestowed upon us by citizens and lawyers, from other jurisdictions, that have visited for an occasional case.

Professional prosecution will help everyone by recognizing that not every case filed is valid and there are and have been some people that have been wrongfully accused and convicted! At the same time, it is important for those cases that must be prosecuted and tried to be done in a timely fashion.

Everyone loses when it takes 2 1/2 years for a misdemeanor case to get to trial or get resolved.

There are several local watering holes that police have recently decided to set up on. Officers will wait for patrons to leave a local bar and will follow them seeking to develop probable cause to make a stop. Understand that any traffic violation no matter how seemingly insignificant can be cause for a traffic stop. Conveniently, the officer will forget to write in his report, later, that he was waiting for someone to leave the bar and it happened to be you.

So you get pulled over and the officer miraculously claims he can smell alcohol on your breath. Do you say, "gee officer, you must be nuclear subatomic physicist because I know you watched me leave the bar and now you are claiming you smell alcohol on my breath."

Probably not a good idea, but it doesn't hurt to know what to do in this situation. First NEVER submit or agree to any testing. The officer is not testing you to decide whether you are "OK to drive home." He is gathering evidence. If you don't believe me, decline all tests and politely refuse to answer any questions. Watch how quickly you get arrested.

But then, since the officer decided he had probable cause to arrest you without any tests being performed, why does he need you to perform any tests? Because he is gathering evidence. You are being videotaped and you are on audio, too. Everything you say and do is being recorded. After you are placed in the back of the police car, you are still being recorded, both video and audio.

Don't say or do anything that can complicate your case. Provide your driver's license and insurance information and then politely refuse to engage in discussions with the officer. After you have been arrested and are in the police car, refuse to talk to the officer. He is still recording you all the way to jail. Do not talk to him or answer his questions. Right away you need to ask for your lawyer. Keep asking for your lawyer in strong terms, "I want my lawyer", "I want to talk to my lawyer." Asking the police officer that is arresting you if you should talk to your lawyer is like asking your child if they want to eat their vegetables - what do you think they are going to say?

The smartest thing you can do for yourself is realize that the police officer is not your friend. Also be comforted by the fact that it is not legal for the officer to follow you out of the parking lot to develop his probable cause. If you can remain silent and request your lawyer, you have a good chance of getting the whole thing thrown out. But making admissions and giving the officer evidence against you will only guarantee that you will make it easier for you to be prosecuted.

Remember, it is not illegal to have a drink and then drive regardless of what the catchy slogan says, "Drink. Drive. Got to Jail."

Not quite. It's Drink. Become intoxicated. Drive. Go to jail.

Of course you should not ever drive after having an alcoholic drink and definitely do NOT EVER have an open container in your automobile. You are guaranteeing your arrest.