The reason is that Texas Disciplinary Rules of Professional Conduct (TDRPC) prohibit the use of comparative terms like Best, Top or Most unless they can be statistically justified. There is also a prohibition against using the “DWI Specialist” and “DWI Expert” terms absent the lawyer actually having the right to do so under TDRPC.
As of the date of this blogs post, there are only 4 lawyers that can ethically and professionally claim those titles. Accordingly, if you are considering hiring a lawyer who attracted you to their site by improperly using “Best”, “Top” or “Most”, you may want to pass on that lawyer so that you can use an ethical and professional one. The same is true about a lawyer’s use of the Specialist/Expert terms unless they have earned that right. Want to know more or why? Then read on!
What the State Bar of Texas Says About Saying You Are a Specialist
Under Texas law, a “DWI SPECIALIST” is a lawyer who has been granted the privilege to publicly state that they have special competence in the areas of Driving While Intoxicated (DWI), Driving Under the Influence (DUI), Boating While Intoxicated (BWI), and Flying While Intoxicated (FWI).
This privilege is an earned one and is recognized and regulated by the Texas Board of Legal Specialization. Once granted, and maintained, it allows the lawyer to advertise that they are a DWI Expert or DWI Specialist; DUI Expert or DUI Specialist; BWI Expert or BWI Specialist; and, FWI Expert or FWI Specialist.
According to the Texas Board of Legal Specialization under Section I of the TEXAS PLAN FOR RECOGNITION AND REGULATION OF SPECIALIZATION IN THE LAW, the purpose and objective of the specialist designation, is:
To promote the availability, accessibility and quality of the services of attorneys to the public in particular areas of the law is to serve the public interest and advance the standards of the legal profession. That is the purpose and objective of the following program for the recognition and regulation of those attorneys who have special competence in a particular area of the law.
Here, it is important to understand that while the Texas State Bar has no specific DWI Expert or DWI Specialist designation, it does acknowledge and approve of that designation as it is recognized by the American Bar Association (ABA). That organization has specifically approved the National College for DUI Defense (NCDD) as being the sole provider of the DUI certification of lawyers as Specialists. According to NCDD, it says:
“The NCDD is the only organization accredited by the American Bar Association (ABA) to provide certification in the specialty field of DUI Defense. ABA accreditation is currently recognized in over 20 states…” and [Texas is one of those states].
Under the Texas State Bar Rules, more commonly known as Texas Disciplinary Rules of Professional Conduct, it is improper for a lawyer to advertise that they are a specialist or expert in the area of DWI law unless they are Board Certified in this Particular Area by an approved organization that is recognized by the Texas Board of Legal Specialization (TBLS). This limitation to none board certified lawyers is to protect the public from false or misleading advertising while at the same time allowing the public to find lawyers that have been recognized as having special competence in the DWI, BWI, DUI, and FWI areas of the law.
Accordingly, it is a violation of the TDRPC for a lawyer to hold themselves out as a DWI Expert or DWI Specialist when they improperly say they are Specialist or Experts. Indeed, as per Rule 7.02(a), TDRPC, it specifically provides:
Rule 7.02. Communications Concerning a Lawyer’s Services (a) A lawyer shall not make or sponsor a false or misleading communication about the qualifications or the services of any lawyer or firm.
And so, it is just wrong for a lawyer to say that they are a DWI Specialist or DWI Expert when they are not.
The same can be said about other comparative statements made by lawyers that they are “the Top DWI Lawyer” or “the Best DWI Lawyer” unless that comparison can be substantiated by reference to verifiable and objective data. This limitation is specifically noted in Rule 7.02(a)(4) which provides:
(4) compares the lawyer’s services with other lawyers’ services, unless the comparison can be substantiated by reference to verifiable, objective data;
Clearly, the rule prohibits a lawyer, even a DWI Specialist or DWI Expert from advertising that they are “the Best DWI Lawyer in Houston” or “the Top DWI Lawyer in Houston”. The commentary to rule 7.02(a)(4), at Comment 5, provides the following example:
Statements comparing a lawyer’s services with those of another where the comparisons are not susceptible of precise measurement or verification, such as “we are the toughest lawyers in town”, “we will get money for you when other lawyers can’t”, or “we are the best law firm in Texas if you want a large recovery,” can deceive or mislead prospective clients.
In closing, as an aid to the public, at the time of this blog’s publication, Texas only has 4 lawyers that can hold themselves out as a DWI Specialist, DWI Expert, DUI Specialist, DUI Expert, BWI Specialist, BWI Expert, FWI Specialist or FWI Expert. All others but those four who hold themselves out with those designations are not authorized to do so. We know this because this is exactly what 7.02(c) says as it provides:
(c) A lawyer shall not advertise in the public media or state in a solicitation communication that the lawyer is a specialist except as permitted under Rule 7.04.
And so, when you are looking for a lawyer to help you with a DWI, DUI, BWI, or FWI, you might be best served by talking to a lawyer who can properly and professionally hold themselves out at a DWI Specialist, DWI Expert, DUI Specialist, DUI Expert, BWI Specialist, BWI Expert, FWI Specialist or FWI Expert.
What I Think You Need to Know About the Difference Between a Skilled and Experienced DWI Lawyer and One Who is Not
As the first DWI Specialist in Texas, I believe that all lawyers are not alike. In hiring the right lawyer, the client needs to know this, too! The question is how do you know? To begin with, the citizen needs to understand that there are no bad questions when interviewing a lawyer for help. There is a big difference between being available for hire in a DWI case vs. competent to be hired in a DWI case. In order to represent someone ethically, professionally, and competently, in DWI breath and blood test cases, the lawyer needs to know all about the breath and blood testing devices being used in Texas.
Looking at breath testing, that knowledge would include what was formerly used and why it was disregarded with what we have now. In Texas, the breath test device that was used was the Intoxilizer 5000, which has now been replaced by the Intoxilizer 9000.
Interestingly, the same government expert that testified that the 5000 was the best thing since sliced bread is the same person who is now saying that about the 9000. Both devices are made by the same company, CMI and, both devices have the ability to preserve evidence but that feature was conveniently and deliberately not functional. To the competent lawyer, and to a thinking jury, the question that should be asked is why would the government allow evidence to be destroyed?
Could it be that the government does not want the public to know that its breath testing devices are neither accurate nor reliable? Could it be that if a breath sample was available through the use of a toxtrap capture device that the breath could be reanalyzed to determine what the real breath alcohol level was-which would not be the same as the result reported?
A good competent DWI lawyer can liken the failure to preserve the breath or subsequent testing to be the same travesty of justice that would be visited on a citizen if the IRS sent a whopping big tax bill and stated that we have no tax records to substantiate it but just trust us. Another example that a skilled and competent DWI lawyer would compare the government’s failure to preserve the breath sample to be just like a failure to preserve a blood sample for subsequent testing. Here, the reader can take it to the bank that blood samples are kept for retesting if necessary. In regard to a toxtrap, a preserved breath sample can be retested within 2 years of its taking and the preservation tube only cost about 2 dollars.
Another credibility issue that a seasoned, skilled, and competent DWI lawyer can bring out to a jury is the fact that neither the 5000 nor the 9000 were ever warranted fit for breath testing by its manufacturer, CMI. At best, the warranty provided was for parts and labor if something broke. Here the lawyer, knowing of the warranty issue, would bring that topic out during jury selection and have the jury discuss it to seize the opportunity to have the jurors become defense witnesses.
This is done by comparing the breath test devices to lasers used for Lasik surgery on the eye. Would the loving and protective parent allow their child to have Lasik surgery on its eyes by a device not warranted fit to do Lasik surgery on the eye? Universally speaking, the answer is “no”.
If your DWI lawyer does not know the above, then that is the wrong lawyer for you. With a DWI specialist, you can be assured that this information is not only understood but also, it can be easily communicated to the jury who would then embrace and understand it, so much so that it would result in distrust in the police breath testing process.
The DWI Specialist will also have special knowledge about the blood testing procedures in Texas that will cast doubt on the police blood testing process. In Texas, blood testing is done through a process described as gas chromatography. This a process where the government alleges its device will be able to separate and quantify alcohol in the blood. The problem here is that the blood is never tested but it is the air above the blood that is tested.
Absent the lawyer knowing this process, there would be no way to communicate this information to the jury to undercut the accuracy and reliability of a blood test result. Moreover, there is so much data in blood testing that most lawyers do not know how to read and interpret that they would never be able to see an error, even if it had a red light on it.
For example, the sample could be contaminated by exposure to great heat where it was not refrigerated in time. In such cases, notwithstanding that there is an alleged preservative in the blood, the heat would make the bacteria in the blood sample begin to ferment and generate its own new alcohol. This happens more often than one might think because it occurs where the officer keeps the sample in his trunk for days before it can be mailed.
Here, think a Texas summer and you being locked up in the trunk- you are going to cook. How long would a gallon of milk last in that trunk even with the preservative? A lawyer that doesn’t understand preservative limitation and refrigeration and who doesn’t know how to read refrigeration and chain of custody logs ought not to take blood test DWI cases. With a DWI specialist, however, you can rest assured that this information, plus much more, is known, and can be explored for the benefit of the client.
In the world of breath or blood testing, the simple fact that a result says .08 or more, does not make it true. There are many, many, many errors that can occur in breath and blood testing cases, and with the DWI Specialist/Expert, the chances of finding those errors are greatly enhanced.
So Who Was the First DWI Specialist/Expert in Texas?
To best answer this question, I am going to switch from 1st person to 3rd person in the rest of this blog. The first DWI Specialist/Expert in Texas was Gary Trichter. He has incredible experience and has been practicing law for approximately 39 years. His accolades include:
- Avvo Rated: 10.0 Superb (read peer endorsements)
- National Trial Lawyers: Top 100 Trial Lawyers – 2018 by Legal Associations Management, Inc.
- President, Texas DWI Lawyers, 2014
- DUI Board Certification from NCDD/ABA and State Bar of Texas
- President, Texas Criminal Defense Lawyers Association (TCDLA),
- “AV” Rated by Martindale-Hubbell 2012-2017
- Super Lawyers, a Thomson Reuters service, 2004-2018
- The Erwin-Taylor Award, National College for DUI Defense, 2013
- Best Lawyers in America by Woodward White Inc., 2008, 2010, 2013, 2015, 2016
- Lead Counsel Rating in Criminal Law – State Felony & Misdemeanor, Drunk Driving Defense, a Thomson Reuters service, 2018
- America’s Top 100 Criminal Defense Attorneys, Americas’ Top 100, LLC, 2018
- ABA National Essay Winner on Medicine and the Law
- Licensed to practice law in Texas, Alaska, Colorado, Texas, and Wyoming
Further, Gary has been published in numerous legal journal and magazines, approximately 50 times and has lectured on DWI and other criminal law matters approximately 300 times. Please see Gary’s biography on www.texasdwilaw.comto see where he has lectured and see what he has published.
In closing, the short answer on the original question: “What is a DWI Specialist?” is someone you can trust!
See appendix one concerning Toxtrap
“A Breath Alcohol Capture and Preservation Tube”
The “Toxtrap” is a highly specialized sample tube designed to meet the challenges of judicial acceptance. By simply attaching the “Toxtrap” to the exit port of a breathalyzer, the tube will capture and preserve the alcohol content of the breath sample to be analyzed at a later date or on another instrument. Samples can be saved for up to two years.
The primary purpose of the Toxtrap Tube is to capture and retain a physical sample of the breath. It can be beneficial in determining or verifying the accuracy of the test. The tube can also be used to validate the accuracy of the testing instrument or determine if an interfering substance was present during the sample collection.