Originally published on chrisperrilaw.com
In one of the most egregious examples of a bad arrest, my client was finally vindicated today as the Travis County Attorney dismissed her DWI charge. The story is one of the most compelling that I’ve seen as a defense attorney.
My client was a victim of physical and verbal abuse at a Wal-Mart last year. Bystanders were so appalled by the violence that there were two separate 911 calls to the police. One of these callers described my client being strangled by her assailant and then dragged out to my client’s car in the parking lot. The police responded, but as they arrived, the assailant drove away with my client in the passenger seat. Although the police pursued the vehicle, it disappeared into a residential neighborhood.
Next, a resident of the neighborhood was awoken to a loud crashing sound outside his home. The crash turned out to be my client’s vehicle hitting the resident’s parked car on the street. The resident witnessed the assailant running away on foot, while my client’s vehicle drove away.
Meanwhile, the police had set up a perimeter around the neighborhood. As my client fled, the police caught sight of her car and pulled her over. Because they thought that the assailant was still driving, the police conducted a “felony stop.” That means that they drew their weapons and ordered the driver out of the vehicle with “his” hands up. Well, it turned out that the only occupant of the car was my client, so she was treated to further trauma at the hands of the police, who had originally been sent to protect her. The police were a little slow on the uptake on this one, so they conveniently forgot that their initial investigation related to a felony assault, and they launched into a DWI investigation on my client. She was ultimately arrested for DWI and blew .15 on a breath test, which is well over the legal limit. She was also charged with Leaving the Scene of an Accident. The police never bothered to find out who assaulted her, as that case has been completely forgotten.
After my investigation of the case a few months after the incident, I was appalled at the Austin Police Department’s treatment of a victim of interpersonal violence. Despite the high breath test, I believe that my client had legitimate defenses for her conduct. For example, under Texas law, “duress” is a complete defense to a misdemeanor if the defendant was compelled to commit a crime by the threat of force. In my opinion, and that of trauma experts, my client’s survival instincts compelled her to escape the abusive assailant, who constituted a continuing threat of violence. Perhaps, the assailant ordered her to drive the car after he initially escaped the police? Certainly, that would amount to the requisite level of compulsion for the duress defense.
Moreover, “necessity” qualifies as a defense if: (1) the defendant reasonably believes the conduct is immediately necessary to avoid imminent harm, and (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct. In this case, I could argue that escaping a life-threatening situation outweighed the potential danger of driving while intoxicated for a short period of time in order to get to a safe place.
Most of all, I needed an expert witness to help me prove that these defenses were viable. Enter my wonderful girlfriend, Shannon, who holds a degree in Social Work from UT and works as a counselor at SafePlace (a non-profit organization specializing in treating abused victims). She took a special interest in this case and helped connect me to some excellent resources at both the UT School of Social Work and SafePlace. From there, I found Rev. Dr. Chrys Parker, who specializes in the science and psychology of trauma victims. Dr. Parker’s one of the most knowledgeable people I’ve ever met, and she quickly adopted my case as a pet project. Not only did she wholeheartedly agree that my necessity and duress defenses applied to excuse my client’s alleged crimes, but she also posited that the State couldn’t even prove that my client engaged in a “voluntary act” in committing the DWI and Leaving the Scene offenses. Dr. Parker convincingly claimed that my client’s ability to make any type of rational choice was completely gone once she was in the throes of the traumatic event; instead, her body went into the automatic pilot of “survival mode,” as her entire being became devoted to the goal of escaping her abusive assailant. Dr. Parker was able to incorporate cutting-edge research on the physiological and psychological effects of trauma on a person’s body. Since the offenses require proof of a “voluntary act” on the part of the defendant, Dr. Parker’s testimony would be particularly effective at dismantling the State’s case at trial.
Dr. Parker and I were geared up for the trial today, but the prosecutor ultimately made an offer that we couldn’t refuse. I’m proud that the justice system worked without having to put a trauma victim through the stress of reliving a horrific experience.