By Craig Malisow
By Jeff Balke
By Angelica Leicht
By Jeff Balke
By Sean Pendergast
By Sean Pendergast
By Jeff Balke
By Ben DuBose
Sergei Tukanov drove his gold Nissan Maxima through a red light toward the end of a Sunday night. It T-boned a police cruiser, sending Tukanov into his airbag and the female officer at the wheel to the hospital.
An officer from the DWI Task Force was called to the scene. He reported a strong odor of alcohol on the six-foot-three, 250-pound native Russian. Tukanov's eyes were red and glassy. His heavily accented speech was slurred, and he admitted he'd been drinking. He swayed when he walked and swayed when he stood in place. On the one-leg stand he swayed again, flailed his arms and dropped his foot twice. He missed on all eight categories of the walk-and-turn and all six of the pen test, the most incriminating in the field sobriety lineup. Then he refused to take a breathalyzer.
Tukanov already had one conviction for driving while intoxicated, and a second could land him in jail. So he reached deep into his bank account and hired Tyler Flood, whose ad he had seen on the first page of a booklet full of local DWI attorneys. It had a photo of the striking and sharply dressed Flood, who looks like a TV pitchman, and, in big letters, "Do Not Blow," a common slogan in Houston.
Harris County's penchant for ranking right at the top of the nation in drunk driving-related fatalities and arrests has spawned a horde of defense lawyers dedicated to DWI. It's the one crime an otherwise law-abiding citizen might conceivably commit — and pay well to defend. As prosecutor Sean Teare puts it, "You'll never have a true jury of your peers like you do in DWI."
There are the two local legends: Gary Trichter, who appears in and out of court as Buffalo Bill, and the six-foot-seven legal encyclopedia Troy McKinney. Atop the current generation are the congenial cowboy Jed Silverman and genteel Doug Murphy, also known as the drinking driver's best friend. Thirty-one-year-old Mark Thiessen is rumored to have the best win percentage of any defense lawyer in town.
Then there is Flood, perhaps not the best but the flashiest for sure. And Flood is everywhere. You might sign a bill at a restaurant with a Tyler Flood pen, drink beer at a bar with a Tyler Flood pint glass, play poker with a deck of Tyler Flood cards. Or look up from a urinal at Minute Maid Park and see Tyler Flood staring down from the wall — arms crossed, hair fashioned into a contemporary version of the Vanilla Ice spike.
Silverman calls him "Jim Dandy," and Flood seems to embrace the slick and smug defense attorney's persona. His suits are custom-made. He wears a Baume et Mercier Swiss luxury watch and writes with a Montblanc pen. He gives Astros tickets to court coordinators and is friends with at least one DWI cop on Facebook. And he loves to boast about getting drunk drivers off the hook.
"Listen, most of the people we get off are intoxicated. But that's the justice system," he says. "I've always thought people would be very concerned if they knew what we were doing."
Police found Kevin Thomas passed out at an intersection with freshly iced beer in the back of his truck. He didn't blow, but his field sobriety tests were recorded at the police station. The officer asked Thomas to pick a foot and raise it six inches above the ground. Thomas lifted his left leg, then braced against a padded wall. Soon he was hopping and flailing around the room, giggling like a fool. Flood, who calls trial a popularity contest, turned the jury against the cops.
One client admitted to drinking on Cinco de Mayo and puked on himself in the back of the squad car. Flood persuaded the jury this could have been a hypoglycemic episode. Another was seen speeding and swerving through town in the middle of the afternoon, then found passed out in a parking lot with an open 40-ounce of Mickey's beside him in the car. ("I don't know," Flood says. "Good jury. Three people had DWIs.") Flood says he can remember losing only two cases in which the client refused all sobriety tests. He blames at least one of the anomalies on "aggravating circumstances": The man had picked up a case of beer, then a homeless man from the side of the road, and was headed to a strip club.
With Oliver Feast, Flood won three times in a span of 18 months. Feast politely refused all tests during each arrest, and Flood got two grudging trial-day dismissals followed by a quick "not guilty," all for lack of proof.
He won with Tukanov, too.
Flood approaches the potential jurors, who cough and creak and groan along the wooden benches, like the guy breaking the ice at a high school dance.
"I like to think of myself as a constitutional lawyer," he says, as he always does. "You have constitutional rights. The cops are trying to convict you. The DA is trying to convict you. I am the guy that's trying to protect your rights."
Flood's eyes flicker behind Dolce & Gabbana eyeglasses. For an instant, he seems to smile.
At the large table in the center of misdemeanor Court 2 sits the defendant, flanked by Flood's paralegal and sidekick Andrea Podlesney. The defendant wears a dark suit and a docile demeanor just as Flood has instructed. But not everything has gone quite according to plan.
This morning the prosecution unveiled a surprise piece of evidence: an audio recording of the ride to the station. This would provide the jury's only glimpse of the defendant on the night in question, since there is no video of the tests he failed at the scene, and he refused all tests at the station.
It would also be the jury's only chance to hear the defendant speak. As with almost all of Flood's clients, he will not take the stand, though for drama's sake Flood will pretend to confer with him about doing so during trial. This keeps certain details from the impressionable jurors — the defendant was driving home from the Men's Club, for instance, and has priors. It also guards against perjury; the defendant has privately indicated that he was in fact drunk.
Podlesney took notes in the witness room as the audio of her client talking to the arresting officer played on her laptop. It was a 45-minute soliloquy of self-pity. "I hope you feel good about yourself," the defendant said to the officer. He then revealed earlier arrests "because of my wife beating on me," and for reckless driving on his motorcycle. "Oh Jesus," Podlesney remarked near the end as the defendant, who is Hispanic, said to the black cop: "At least you're not white."
While Podlesney transcribed and Flood hustled from court to court to tend to other clients, Court 2 carried on with the morning's proceedings. The coordinator moved down her long list of names in nasal monotone. The bailiff acted as fashion and etiquette police — tuck in that shirt; turn off that phone; don't slouch; don't sleep. A woman cried because her ride home went to jail.
Attorneys shuffled from their clients to the judge and around the cluttered table in baggy suits that made noise. One sported Wranglers, and another's tie hung past his crotch. Still another looked like he'd been attacked by a haberdasher and emerged as a cross between a yachtsman and a pimp. He wore a fedora and a purple tie and was wrapped in a six-button blazer.
Flood and the defendant entered in their handsome suits about 10:30 a.m., and the benches cleared for the potential jurors. The process of selecting six for trial, or voir dire, began with a crash course on reasonable doubt courtesy of the judge, followed by an election pitch. The prosecutor, another newbie, was up next.
He read from printed notes, stopped, sputtered and forced his y'alls. Flood watched the jurors from his leather chair. He eyed two women who were educators, as those tend to worry him. He caught juror No. 2 staring at his Montblanc and considered switching to a Bic, then noticed the man's gold Rolex and changed his mind. The prosecutor flipped through charts on an easel-board better suited to a schoolroom; his address was long and dull enough to later draw a scolding from the bailiff.
Attorneys like Flood make their good living on shredding the baby prosecutors who in Houston use DWI trials to cut their teeth. "It's not hard to win sometimes. You can kind of prey on them a little bit," Flood says.
Caught in the middle of the unbalanced exchange are the city's 14 task force officers, who each make around 250 drunk-driving arrests a year and are usually the only witnesses on the stand. Officer Don Egdorf has been a cop for nine years and on the task force for seven, and is considered by defense attorneys one of the tougher nuts to crack in trial. He coaches prosecutors on what to ask him beforehand, but often finds himself biting his tongue all the same.
"A lot of times we know what we want to say and how we want to say it, but we can't," he says.
Egdorf wears a red Mothers Against Drunk Driving bracelet on his right wrist. His father, a police captain, was run over on the job by a drunk driver and spent a year and a half in recovery during Egdorf's high school years.
"Most of the guys here probably had something happen to them or their families," Egdorf says. "Or they've just been out on really nasty scenes."
The task force recently mapped its last five months of work, marking each arrest with a small green dot. The result was a big green blob. More than 11,300 people have been arrested on DWI-related charges so far in 2009, already a jump of about 1,400 from last year.
Fewer than half agree to a breathalyzer. (Those who do average a blood-alcohol content of .16, double the legal limit in Texas. If officers get a warrant for a blood test — as they do during "no refusal" weekends — that jumps to .20.) Along with profanity, DWI is the only crime based on an officer's opinion. This makes his performance during an arrest especially important, as it is often the only thing for the defense to attack.
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.
"Building a practice is one day at a time," he says.
Flood played left field at Klein High School, then made an abortive attempt to continue his career at a junior college in Waco before moving to Southwest Texas State, which has since dropped the Southwest in an effort to shed its party-school image, and becoming a Lambda Chi Alpha. On his way home from a pledge event in January of 1990, he was pulled over for rolling a stop sign. Flood failed the field sobriety tests and blew a .12.
"I broke all of my own rules," he says, blaming the conviction on an $800 lawyer who was afraid to go to trial.
Flood graduated with a degree in psychology. Then he became a music promoter, doing everything from slipping flyers under windshield wipers to organizing a music festival at the Atlanta Olympics from scratch. He enrolled at South Texas College of Law hoping to become an entertainment lawyer, but soon discovered he had no patience for reviewing contracts. During his first big job with real estate firm Hoover Slovacek, he also realized he didn't work well with a boss.
When Flood finally decided to become a DWI lawyer, he says, he was given the impression that there were already enough of those in town. So he turned his knack for marketing onto himself.
"I made my own way. I mean, you can't wait for an invitation," he says.
On top of his various ads, Flood has more than ten domain names, including some for counties where he has never practiced. There is also Tyler Flood the entertainment attorney, along with Tyler Flood firms for personal injury and maritime law. Flood pays someone to keep up his Google search rankings. He cut a deal with the publisher of the DWI booklet, a former employee, to keep his ad on the first page. He has reviewed himself on Yahoo (five out of five stars): "Tyler Flood is one of the smartest lawyers I have ever met...reasonably priced also!"
Flood's personal style and rampant self-promotion can inspire incredulity in his competition.
"It's amazing to me. How can you wear those Dolce and Gabban-o glasses in Brazoria County?" Silverman says. "There's just a lot of fluff."
On all of his sites, Flood's biography starts with his No. 4 class rank in law school. It doesn't mention that he graduated during the summer with 17 other people. (In fact, the site for Flood Publishing, which sells law school flash cards, claims he graduated in May.) Flood also has a reputation for bad-mouthing other lawyers to potential clients, a serious sin in the cliquish community of DWI defenders. When clients make their free consultation rounds, those who've already seen Flood might be getting his texts while sitting in the next lawyer's office.
"I can't help it," Flood says.
But there is one trait guaranteed to earn the respect, however grudging, of any good DWI lawyer in town, and Flood has it — even if, as is his custom, he takes it to the extreme. Flood once was in court in Brazoria County, for instance, when a colleague from Houston had to leave in a hurry. The lawyer planned to plea his client and asked if Flood would do it while he was gone. Flood declined. He doesn't like to plead guilty.
"He tries cases," Silverman says. "And you know what? He wins."
Near Flood's large desk hangs a plaque with a skull and crossbones. "The Beatings Will Continue," it says.
Big windows look down on the Majestic Metro building, and beyond that the elevated snarl where I-45 and I-10 tangle and merge with the downtown streets. The eighth-floor office seems crafted out of a frat boy's wet dream. A brand-new Golden Tee Complete sits in one corner, autographed electric guitars in another. There are signed baseballs, two laptops and two big flat-screen TVs. A "Fit Mom" issue of Health & Fitness magazine features, on page 36, Flood's blond and attractive wife.
The large, bustling and recently renovated digs opened in March. When Podlesney started in January 2008, it was just her and Flood in a dingy office down the hall. The mess of papers and missed hearings on the old assistant's desk took Podlesney more than a month to fix. Flood's business has almost doubled since, to as many as 100 clients at a time, and Podlesney is now helping Flood write his own DWI book. They want to knock down the walls and take on the old office, too.
Podlesney is a keen and experienced aide whose eye for detail has won cases. She manages the paperwork and myriad court dates and keeps the wheels greased so Flood can focus on performing in trial. Podlesney pulls a massive pencil case from the rolling trial bucket she totes to court each morning while Flood drags the TV. Inside are an assortment of school supplies, including dry-erase markers, rubber bands and two large glue sticks.
"I don't know what he's gluing in trial," Podlesney says. "We have to have everything. We can't be without anything. That sums him up."
Flood admires a maxim he credits to Judge Larry Standley in Court 6, who as a lawyer claimed he always knew a verdict before it was read. This refers to the ability to read a jury. Flood takes it one step further. Podlesney has found him passing a recess on his hands and knees, his ear to the crack in the bottom of a door as the jury converses inside. Or he'll carefully position himself within earshot of the prosecutors.
"He picks up a lot of stuff just by standing around sometimes," Podlesney says. "I don't think it's because he wants to be like Judge Standley. I think it's because he can't sit there."
Aimee Flood reports that her husband is similarly compulsive out of court.
"He hated bosses. He hated to be at work on time. He hates to use an alarm clock, and he hates having anyone tell him what to do," she says.
"He doesn't like schedules. He doesn't like consistent approaches to things. He's bored by doing the same thing every day. He's bored by doing the same thing every evening. He doesn't want to put the kids to bed at the same time every night. He doesn't want to eat dinner at the same time every night. You see his office. He's got to have five different forms of media going at all times. And that's how he is. He rarely has quiet time."
Flood keeps his phone switched on and at the side of the bed to field late-night calls from both pranksters and people with lights flashing in the rear-view mirror. Household projects — the alarm system, a new row of trees — will be randomly conceived and completed in a single day. He takes up 80 percent of the large bedroom closet. Aimee has one drawer in the bathroom. Her husband? "Drawer-ssssss." His monthly CVS tab for things like hair products and deodorant is through the roof.
When one morning about six months ago Flood walked into the bathroom in his fancy new glasses, it gave his wife pause. Then she thought: "Well...it is criminal law. You can wear those glasses. I think the thing about criminal law is it lets Tyler be who he is."
Flood struck out on his own intending to run a civil practice and took criminal cases just to pay the bills. After some felony losses that resulted in serious jail time, like many lawyers he decided the relatively lighter consequences of DWI made it a better way to learn the ropes. (Flood has yet to try a case resulting in serious injury or death.)
At first, he was terrified of trial and hoped his clients would decide to plead. He eavesdropped and hustled because he was scrambling to learn as he went. And then he was hooked. DWI involves everything from toxicology and physiology to grilling officers on the stand. Trial brings competition and a rush.
Flood soon learned that the more he went to trial, the more he won, and the more he won the better his chances of getting cases dismissed. He says most lawyers — prosecutors and defense attorneys alike — just want to reach a deal and go home. So Flood always comes pushing for court.
"It doesn't do any good to talk to the DAs about why it's good to go to dismissal," he says. "People that argue are the ones that are scared."
Even when Flood is off his game, as he was during a recent trial, with Podlesney on vacation, the result might be the same as the initial plea deal. "Why wouldn't I go to trial?" Flood said after the loss.
On another day he was forced to swallow a particularly generous guilty plea; the prosecution seemed eager to sweeten the pot.
"Tyler, I know how conflicted you are," the chief prosecutor said. "I know you wanted to go to trial."
And Flood has found that even seemingly hopeless cases can be won by showing the jury that the state overplayed its hand. An officer might incorrectly demonstrate a sobriety test, then penalize someone for following his lead. (Flood keeps a video of a state trooper who stumbles twice and almost falls during his demonstration.) There are eight categories on the walk-and-turn; missing two means you fail. Cops sometimes even exaggerate evidence on the stand, he says — as in Kevin Thomas's case, where the video showed him friendly and cooperative, albeit likely drunk, while police claimed he was violent and combative.
"And then, we go to trial on bad cases and we win," Flood says. "And that fuels your fire also. You kind of want to push the envelope."
Tukanov was lonely on the night he was arrested in November of 2006. He and his wife of 15 years had divorced. He'd fallen in love with his girlfriend, blond, petite and pretty Lena, whom he hoped to marry. Lena, though, wanted to break up.
Tukanov bought a dozen roses and a bottle of champagne and drove to Lena's house to win her back.
The evening at first went according to plan. Tukanov and Lena each drank a couple of glasses of champagne. Then they got into a screaming fight.
"I don't know how to say. She could bring any man to crazy. And she did," says Tukanov, who lives in a condo with a kitten named Lisa that follows him around when he walks outside.
It was nearing midnight when the jilted Tukanov returned to his car. He sat in place for ten minutes, because his hands were shaking with rage. Finally he began to make his way down the dark and tree-lined street.
"When I'm driving, I continue to argue with her in my mind," he says.
Lena called Tukanov's cell phone. He swore and spiked the phone into the floor. Then his airbag smacked him in the face.
Though he had scratches all over his arms and chest, Tukanov told the police he was fine. Soon he was on his way to the station. When he arrived, Tukanov says, he refused the breathalyzer because he wanted a blood test, which he had heard was more reliable and believed he had the right to take. But unless there is a nurse with a needle on hand, as there are during no-refusal weekends, a blood test requires a trip to the hospital and a wait at the back of the emergency-room line, which police aren't eager to accommodate.
For the next nine months, Tukanov says of his life: "It's nightmare."
Drivers who refuse breath tests have their licenses automatically suspended for a year, though by filing an appeal within 15 days a good DWI attorney can overturn this quite often. Tukanov, a mechanical engineer, first hired a corporate lawyer and instead had his license suspended, along with an ignition interlock — which requires a clean breath sample to start a car — installed in his Nissan.
Rain or shine, Tukanov rode his bike three miles to work. But he was required to start his car with the interlock every two days, and to illegally drive it once a month for an inspection, or he'd get in trouble with the judge.
"It sounds funny right now," Tukanov says. "But your car is in your garage, and you can't drive, and you have to blow in this device...and this device is crazy!"
It sometimes took Tukanov 40 minutes to blow correctly, with the interlock beeping madly each time he failed. He had to blow while he was on the road. One time, sober, he blew a .119. Four hours later, he blew .00.
All the while, Tukanov found himself unable even to buy groceries for his son.
"I am alone. I could not solve easiest problem," he says. "It drove me crazy of course. It's absolutely abnormal life."
Eventually Tukanov hired Flood and prepared himself for trial.
Flood worried he'd have to subpoena Lena, who initially fought against testifying and had since married another man, and he had no idea how she'd act on the stand. He wasn't sure that Tukanov should even speak. The evidence looked bad. It was by far the toughest case Flood had ever brought to trial.
"He didn't believe we're going to win to [the] last minute," Tukanov says.
Flood planned to attack the sobriety tests in the order they were given. First came the pen test, or HGN.
Tukanov's eyes had swollen in the days following the crash. Egdorf, who plays hockey, recalled on the stand that his own eyes often suffered a similar fate following harsh blows to the head. Flood was armed with photos, diagrams and medical definitions. He explained that head injuries can cause anomalies in the HGN.
A large man fresh from a car crash, on top of an emotional breakup, and possibly suffering from a head injury, could not be reasonably expected to balance on one leg, or walk heel-to-toe with poise, Flood further reasoned.
As Tukanov recounted his story of heartbreak on the stand, Flood then wondered whether a thick Russian accent might be mistaken for slurred speech.
Lena, wearing a white satin jumpsuit, wooed the jury with her own accent. And she swore Tukanov had consumed just a glass and a half of champagne, which he hated anyway, and had only purchased for her.
Tukanov slept for three days straight after the verdict came.
And Flood had the big win he needed for his upcoming marketing blitz.
It is Halloween night and Flood, dressed in jeans and a polo shirt, and wearing contacts, marches into an intox center on Riesner Street with a court order in his hand. The weekend has been declared "no refusal," and the holding cell will soon fill with alleged drunk drivers, some in costume, such as a bearded man with running makeup and a dress. Empty vials await the blood of those who refuse a breathalyzer.
Word of each refusal will be sent to Judge Bill Harmon, who is off playing poker at a friend's house. Harmon will then grant a search warrant for the suspect's blood. The suspect will be brought from the cell to a room with a lone camcorder facing down from a pole, a gurney chair, a large man named Jeff and a needle. Flood claims his court order allows him to watch the proceedings of what he calls the "vampire cops."
He had become frantic hours earlier when a friend in the district attorney's office called to say he wouldn't be allowed inside as promised, raging at the unfairness of it all and rushing to his office to draft a legal memo to help his case. Police likely suspect Flood is looking for ways to challenge the increasingly common tests in court. They are probably right. Officer Egdorf is called over to send him home.
Flood argues and complains, flashes his order and his memo, but Egdorf refuses to budge until at last Flood cools down and agrees to leave. Suddenly Flood smiles.
"Arrest a lot of people tonight," he says on his way out the door.