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2011-03-10

Moniker' might portend possible DWI conviction

By Judith Pannebaker BCC Editor

Not to give away any secrets but a word to wise Courier readers - motorists stopped for suspected drunk driving should respectfully refrain from addressing law enforcement as "Oscifer."
According to attorney W. Clay Abbott, who serves as resource prosecutor for the Texas District and County Attorneys Association (TDCAA) in Austin, that mistake alone can prove the law enforcement "oscifer's" case against the accused in court.
Abbott presented a DWI Regional Training on Wednesday, Feb. 16, at the Purple Sage Conference Center in Bandera. Sponsored by the office of County Attorney John Payne, the all-day training was designed for law enforcement officers and prosecutors. According to Abbott, more knowledgeable peace officers and prosecutors will increase conviction rates of inebriated motorists.
The training covered mandatory drawing of blood samples in suspected cases of DWI, including defense arguments against the practice; new tools in impaired driving investigations and prosecutions; old-fashioned police observations and questioning; and courtroom testimony.
According to Payne, participants represented nine counties, including Bandera, Real, Bexar, Medina, Kerr, Gillespie, Uvalde, Kendall and Comal. "One of the TDCAA's chief appellate attorneys attended from as far away as Comal County," Payne said, adding that over 30 peace officers from at least seven different counties also attended.
The all-day session offered six hours of continuing education as required by the Texas Commission on Law Enforcement Officers' Standards and Education, as well as participatory hours for prosecutors.
Additionally, the training course was offered free of charge. In fact, Payne's office provided participants with a free Continental breakfast and lunch, courtesy of recently received forfeiture funds. "No taxpayers' funds were used," Payne emphasized.
In an interview, Abbott said the first program in the United States for "no refusal" blood warrants for suspected DWI cases was initiated in Texas in 2004. Also, the first "no refusal" weekend occurred in Texas in 2007. "Now, there's a national campaign going on," Abbott said with obvious pride.
Discussing the difficulty of securing a DWI conviction, he ceded that DWI defense attracts the best and most experience attorneys due to the lucrative nature of the practice. "Clients are willing to pay for a top defense attorney because of the dire consequences of being convicted what is essentially a misdemeanor," Abbott explained.
On the other hand, he said, prosecutors usually start their careers by trying DWI cases. "So, you have extremely experienced defense attorneys pitted against the least experienced prosecutors."
Additionally, newly minted law enforcement officers usually find themselves patrolling during nights and on weekends - normally when most of the stops for suspected DWI occur.
"There's also more science involved - blood alcohol content, toxicology, blood interactions, chemistry, physics and biochemistry - in these cases than with any other misdemeanor charge," Abbott said.
"Lastly, this is an offense most likely to have been committed by a member of the jury or one of their family or friends," he said frankly, "which generates a lot of sympathy for the defendant." Abbott added, "All the pressure comes on people in this room and they have little resources."
"As a counterbalance, there's me," said Abbott, defining his mission as offsetting what seems to be a deck stacked against the successful prosecution of DWI cases. "Traveling across the state, I've conducted this training in 32 cities since October."
He graduated cum laude from the Texas Tech School of Law in 1986. From 1987 until 1990, he served with the Lubbock County Criminal District Attorney's Office, leaving as Trial Chief of the 140th Judicial District. After a stint in private practice, he returned to the Lubbock CDA as chief deputy.
In 2004, he left the education center of the Texas Municipal Court to join the TDCAA. Since then he has trained prosecutors in DWI in Texas, Arkansas, Florida, South Carolina, North Carolina, Oregon, Nebraska, Oklahoma, Louisiana, Minnesota, Michigan, New York, Massachusetts, Mississippi, Idaho and Iowa.
"DWI is my forte," Abbott said, describing it as a "nice person crime."
Addressing local law enforcement officers, he said, "The stats in this county show you're doing good. If a motorist comes in under .08, it doesn't mean you made a bad call. Even if you can't make a case, it doesn't mean the motorist was factually innocent."
Regarding unsuccessful prosecutions of DWI cases, Abbott suggested those instances be used as learning experiences, noting irreverently, "Nothing is as motivating as a good butt kicking."
Regarding the use of the word "oscifer," Abbott reminded participants that concrete examples of a motorist's lack of verbal precision resonate more with a jury than an officer testifying the driver presented with "slurred speech" or a "thick tongue."
Clearly pleased with the response to the recent DWI training, Payne said, "I intend to offer more of this type of quality training and education in Bandera County. I believe it is important for our county to be an active leader in improving the skills, quality and excellence of our criminal justice system."


Pictured: Bandera County Attorney John Payne, right, welcomed W. Clay Abbott, resource prosecutor for the Texas District and County Attorneys Association, as principal presenter at the DWI Regional Training, held recently in the county.