By Jeff Balke
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When Egdorf teaches field sobriety at the academy, he warns cadets to administer each test by the book. One slipup, and lawyers like Flood, who are certified in all the same courses as the cops, can pounce during trial. Egdorf also tells new officers to keep their cool when their work and integrity are questioned on the stand. If they come across as overly aggressive or unfair, the jury will be more likely to acquit.
"The whole thing people tend to forget about, especially when it comes to court: Defense attorneys lie. They lie their asses off," Egdorf says. "He's the only person in there that's not sworn to tell the truth. I get indicted if I lie. He gets a bigger check."
Egdorf often wonders why a seemingly obvious case has gone to court. And sometimes he loses even those, as he did as the arresting officer in the Tukanov case.
"There's no doubt in my mind that guy was intoxicated," he says. "It makes you scratch your head and — you know, what are they thinking? But that's the system we have."
Flood flips on the 32-inch HD TV he has recently debuted for voir dire. The first slide is the Constitution. He breezes through his opening spiel, then hones in on Juror No. 2. During a long exchange that should have drawn some objections, the court learns that Juror No. 2 was once in a car with a sober driver who was unfairly stopped and then arrested for driving drunk. The driver refused a breath test on principle.
"Was your friend acquitted?" Flood asks.
"$8,000 later, yes," Juror No. 2 replies.
Flood thanks the potential jurors for their time, and he and the prosecutor approach the bench to make their selections. Flood leaves an image of a big, white question mark on his TV.
The case is dismissed while the court breaks for lunch.
Attorney Jed Silverman was riding his bicycle in Conroe one day. He looked up at the sky. There was Tyler Flood.
Up until just a few years ago, Silverman and the other DWI lawyers in town hadn't paid Flood any mind. Then he appeared on the flap of a shopping cart, and in the bathrooms at more and more bars, telling people to put his number in their phones. He was in the annual booklet of DWI ads, always, somehow, on the first page. He was even on a billboard in front of a beat-up gas station in Conroe.
"That's really what dumbfounded us all. Where the heck did he come from?" Silverman says. "Maybe it's a comment on the way things are these days."
Silverman came up the traditional way. He clerked for experienced attorneys, then started small and learned from the best. In Houston that means Trichter and McKinney, who together penned Texas Drunk Driving Law, the bible of the trade (see "Expert Advice on What to Do When You're Pulled Over").
Trichter was a cop in the 1970s before switching to criminal defense, which he views as another way to enforce the law — by keeping the state in check. He started with drug cases. "If you were interested in being a Constitutional lawyer, that's where you needed to be," he says.
But according to Trichter, the brunt of the state's abuse of power soon shifted to DWI, for which he estimates more innocent people are arrested than any other crime combined. Trichter paints breathalyzers as junk science, field sobriety tests as outrageous affairs cooked up to incriminate, and forced blood tests, which take place during no-refusal weekends and have recently been permitted in any stop involving a child passenger or an injury, as a menacing specter for a modern democracy.
Murphy, who runs Trichter's Houston office now that Trichter has relocated to the cowboy town of Bandera, says if a cop smells any alcohol at all on your breath, you're likely getting arrested. He points to the signs found on highways throughout the state. "Drink, Drive, Go to Jail is not the law," he says. "But it is exactly how it's enforced."
Murphy claims cops target people driving nice cars or from nice bars for DWI arrests, hoping they'll pay to fight in court, which brings extra overtime. He keeps handy a 2006 Houston Chronicle article that found one DWI officer making more than $100,000 of overtime in a single year. DWI lawyers say they now get a huge chunk of business from Washington Avenue. (They should get another boost from the 1,200 convictions that will be revisited now that a Texas Department of Public Safety employee was caught faking breathalyzer inspection records.)
People thought Trichter was crazy to focus on DWI. But as the legal limit has halved, public rage has intensified and the state has devoted increasing energy and funds to convicting drunk drivers, Trichter's reputation and practice have grown, largely through word of mouth. Even in losses, Trichter wrote exhaustive briefs, which caught the attention of the judges who read them and eventually sent friends his way. Trichter saw each jury as 12 potential references. He published scores of articles and taught countless seminars for free.