If you have a legal emergency, please call and leave a voice mail in my mailbox.  My response will be sure, if not immediate.  I hope you have had a Merry Christmas, and I wish you all the best in 2010.

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Bristol Myers is a criminal defense lawyer in Austin, Texas.  He is Board Certfied as a specialist in Criminal Law by the Texas Board of Legal Specialization.

http://blogs.wsj.com/law/2009/08/13/for-exxonmobil-the-bird-is-now-a-criminal-word/

It is yet another example of over-criminalization of our laws and over-federalization of our criminal jurisprudence. Granted, Exxon has a bad environmental track record and makes an easy target in light of the Valdez spill.  But more shocking is the side note that a power company was shaken down by the feds for birds killed on its power lines.  How in the world is an electric company supposed to keep birds from sitting on its power lines?!

If I were the defense lawyer for PacifiCorp, I’d have considered cutting power to all govermental customers during the plea negotiations.  Maybe toss in a few rolling blackouts to rile up the electorate while we’re at it.  But I disgress…

To be fair, the MTBA (the law at issue) should require some culpable mental state.  In these cases, there is no evidence that either company did anything wrong.  Nor is there evidence that either company intended any harm to the birds.  Strangely, the law doesn’t require any real wrongdoing.  You are strictly liable for the death of a migratory bird.

Strict liability has no place in criminal law.  As this law is written, even the most zealous animal lover could be prosecuted for a federal crime should the family pet happen to drag home a migratory bird.

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Bristol Myers is an Austin criminal defense lawyer and is Board Certified as a specialist in criminal law by the Texas Board of Legal Specialization.  He loves migratory birds, especially grilled with jalapeno and bacon.  He hates overreaching by federal prosecutors.

It was just about the worst kind of DWI: the client wrecked into a pole and blew over twice the legal limit.  The airbags had deployed, so I figured I might be able to argue the high breath score was from particulate matter inhaled by my client during the collision.

“I heard you got a 20-minute Not Guilty verdict from a jury on a DWI with a .17 blood test,” the client said.  “Yes,” I replied, “but every case is different.”

Indeed, the cases are different.  Before, I had a client who looked perfect on the video, and now I had a client who (according to the police) failed the field sobriety tests miserably.  And there was no car accident in the other case.  What to do?

I filed a motion to suppress the breath test and the field sobriety tests and set it for a hearing. At best, I figured that the hearing would be  a good warm-up for trial: a chance to see how the cops acted on the witness stand.  Then the unexpected occurred.

The first officer on the scene testified that he didn’t notice any signs of intoxication in my client.  He said my client just seemed shaken up from the accident.  The second officer (the one who said my client failed his field tests so badly), well, he fell apart under my cross-examination.  Did my client appear obviously intoxicated at first glance?  No.  Did the officer see any signs of intoxication before administering the field tests?  No.  Had he talked to EMS about my client’s possible injuries? No.  Did it ever occur to him that my client might be injured and not drunk?  No.  And so it went…until the judge granted my motion to suppress: no field tests, no breath tests.  The proseuction now has no evidence to use at trial, and the case will have to be dismissed.

The lesson?  Every case is different.  This “bad DWI” was different from most other collision/high breath test cases I’ve handled.  The difference came from the witness stand, and it would have never been discovered had my client pled out and denied me permission to be aggressive.

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Bristol Myers is an Austin Criminal Lawyer and is Board Certified as a specialist in Criminal Law by the Texas Board of Legal Specialization.