Welcome to the 21st century

The Texas Department of Public Safety has discovered what a wonderful thing the internet can be -- if you know how to use it. For years a motorist could order his driving record online and then wait for weeks for it to be delivered by mail.

Now, with a few clicks of the mouse and a little info, a motorist can download his driving record instantly.

The lone holdout

There are 15 county criminal courts in Harris County and in 14 of them a motorist accused of driving while intoxicated who has an otherwise clean record is eligible for the Harris County DA's Office DIVERT program. However, if you find yourself in County Criminal Court at Law No. 2, DIVERT is not an option.

Judge Bill Harmon does not allow a defendant in his court to enter the DIVERT program. Why? Because he has concerns that the program is not legal. On this, Judge Harmon and I are in full agreement. As I have pointed out in the past, in order to enter the DIVERT program, a defendant must enter a guilty plea before the court. Then, after completing probation and treatment (if necessary), the case is dismissed.

Sounds a lot like deferred adjudication - which the state legislature said is not allowed for motorists accused of driving while intoxicated.

“All 14 of my colleagues are doing it. And certainly I could have gone along with this illegal program, and if I had, you wouldn't be sitting down here today." Judge Bill Harmon, Harris County Criminal Court at Law No. 2

While I believe Judge Harmon is correct in his assessment of the DIVERT program, the result is that some motorists are treated differently due to the luck of the draw.

On the one hand, I commend Judge Harmon for standing up for his principles and for acknowledging what we all know to be true, on the other hand, there's something that just isn't right about one policy for defendants in 14 courts and another policy for defendants in one court.

Shaken down, not stirred

Christopher Dupuy is one of the three new judges in the Galveston County Courts at Law. Recently Mr. Dupuy sent a letter to all attorneys residing in Galveston soliciting ideas and funds.

"I am also still a politician with a just-completed campaign to pay for, so I am accepting contributions (although I frankly value your advice more). Although, by statute, contributions may not exceed $2,500.00 per person or $15,000.00 per law firm, I will only accept contributions up to $500 per person or $5,000 per law firm. Contributions should be made payable to "Dupuy for Judge" and mailed to the address above."

Mr. Dupuy was swept into office in the Republican tide in Galveston County. His share of the vote was virtually identical to Gov. Perry's. His percentage of the vote was just below that of the other Republicans who won benches. Mr. Dupuy did next to no campaigning in the run-up to the election. His campaign website was not even updated after the primary election.

What campaign debt can Mr. Dupuy have? Is this letter a genuine call for contributions to offset a nonexistent campaign that clung to the coattails of Gov. Goodhair? Or is it a shakedown of the Galveston County bar?

Drinking to keep warm

Time for a little humor and science...

A Missouri man was arrested for driving while intoxicated after he lost control of his car on an icy road. The motorist, Thomas Drummond, insisted that he was sober at the time of the accident and only drank afterward in an attempt to keep warm.

A southeast Missouri man has been acquitted of drunk driving after claiming that he consumed alcohol to keep warm after - but not before - he lost control of his vehicle on an icy road.

Thomas Drummond of Jackson told a court that he had been driving home after a night out with friends last February when his vehicle veered off the slick highway and into a culvert. Drummond says he was not intoxicated while driving, but that he was by the time emergency workers arrived more than two hours later.

The Southeast Missourian reports a jury acquitted Drummond last week.

Defense attorney Stephen Wilson says it was a set of facts you don't see every day.

(Thanks to the Associated Press.)

Of course the only problem is that alcohol will not keep you warm in the cold. What alcohol actually does is dilate the capillaries. And in extremely cold conditions, that is a recipe for disaster.

When we get cold our bodies react by pulling blood in toward the core of the body in an attempt to keep our core organs functioning. To do this, the capillaries in our extremities contract to reduce the flow of blood to our hands and feet. By drinking alcohol we increase the flow of blood to our extremities (which makes our fingers and toes feel warmer) and that causes our core body temperature to fall.

So, if you find yourself stuck in a snow drift, you might be better off passing on the brandy bottle around the St. Bernard's neck.

Smile! You're on Big Brother TV!

The City of Houston is installing 250 to 300 video cameras throughout downtown to (pause) fight terrorism. Apparently those mean-spirited terrorists like to conduct dry runs of their dastardly acts, and the presence of cameras at downtown intersections will deter them from doing so. Of course I'm not thinking the baddies were planning on walking up and down the streets carrying signs or wearing shirts that say "I'm a Terrorist!"

The cameras have helped the police nab a few folks breaking into cars parked downtown -- which, I will readily admit, is a bigger risk for those of us living in Houston than baddies with bombs.

The problem, as I see it, is the further expansion of governmental power. Now I understand that many Republicans and Tea Partiers and the like all say they're for limited government - and I'm fairly certain that they mean limited government when it comes to los federales telling people or businesses how to spend their money. They certainly aren't for limited government when it comes to funding the war machine, increasing the numbers of Americans behind bars or under court supervision or civil liberties.

The same folks who claim the government cannot be trusted to be in charge of health care (can't say I disagree too much with that) have no qualms about giving the government carte blanche to do what it thinks is best to combat terrorism.

How much intrusion is enough?

How paranoid do we have to be?

The world was a dangerous place long before 9/11. It just so happened that terrorism was something that happened to "those folks" over there. Well, except for the Oklahoma City bombing. Of course that didn't occur on live television in the glitz and glam of New York City.

Those who are fighting the war on terrorism are fighting the last war. Every new "security" measure is designed to prevent something that has already happened. Unfortunately, those who wish to do harm will find a way to do it. Tougher laws and longer sentences certainly haven't stopped folks from breaking the law.

DWI Lite: here we go

From the Houston Chronicle we find the real reason why Austin Police Chief Art Acevedo is pushing for DWI Lite:

Acevedo didn't propose a penalty. A first offense of driving while intoxicated is a Class B misdemeanor.

Whitmire said Acevedo told him the idea was largely "to give people an opportunity to plead down to something."

First-time offenders may often agree to a lesser offense in a plea bargain, and the talking points submitted by Acevedo said, "This makes much more sense than reducing a charge to reckless driving or obstructing the roadway."

Just another tool to coerce motorists to plead guilty to a criminal offense because it's "not a DWI." Mr. Acevedo should be very much aware that anytime a person has a prior conviction for reckless driving or obstruction of a highway, the person was (far more often than not) charged with driving while intoxicated.

According to Texas law, and the laws of most states, a person is considered intoxicated if they have an alcohol concentration of .08 or higher or if they have lost the normal use of their mental or physical faculties.  The number .08 is just that -- a number. It just so happens that some folks are fortunate enough to blow under the limit when they submit to a breath test. It's the prosecutor's bad luck that they have to try a case with a test result indicating the driver wasn't per se intoxicated.

Ignition interlock: it's all the rage

I just received something called the "Interlock Focus" from Intoxalock in the mail this morning. The advertisement/newsletter was touting the number of states that enacted new laws requiring ignition interlock devices on the cars of those accused of and convicted of driving while intoxicated.

According to Intoxalock, in 2009 there were 74 ignition interlock bills introduced throughout the United States and 11 were approved. In 2010 there were 54 bills introduced with 15 enacted into law. Vermont became the 48th state to join the "interlock movement."

Minnesota passed a new ignition interlock bill that will require interlock devices for motorists upon a second DWI conviction. The new law will also require more first-time offenders to install the devices in order to drive legally.

Tennessee's new law will require any motorist convicted of drunk driving with an alcohol concentration of .16 or higher to install the device in their car.

The state of Louisiana has made it a criminal offense to tamper with an interlock device and will require that "interlock messaging" be placed on the driver's licenses of motorists convicted of driving while intoxicated.

Of course I would expect the maker of the Intoxalock to cheer the implementation of new legislation requiring more drivers to have these devices installed on their cars -- after all, with installation fees and monthly maintenance fees of around $75, drunk driving is quite the money-making operation.

What is reasonable doubt?

Why is it necessary for a jury to be unanimous in order for a defendant to be acquitted?

If "we are asking jurors to decide a person's fate based on imperfect information," then should every criminal defendant be acquitted on grounds that imperfect information necessarily generates a reasonable doubt? -- Comment from Randy, Does social media threaten the jury system?

Isn't the very fact that six, or twelve, jurors can't come to an agreement that a person is guilty evidence of reasonable doubt? After all, the burden of proof in a criminal case is on the state, not the defendant. If the state can't convince a panel of citizens in the courtroom that the defendant did something bad, why should the defendant have to go through the time and expense of another trial?

Scott Greenfield at Simple Justice touched on this topic back in September:

In Oregon (anywhere else?), a verdict of 9 for conviction is apparently sufficient to convict, whereas it's a hung jury elsewhere.  Not having tried a case in Oregon, this came as news to me.  Shocking news.  Of a twelve person jury, the fact that one of four jurors found that the evidence failed to prove guilt beyond a reasonable doubt means nothing.  Close enough for government work.  And a conviction.  Next case. 

* In the State of Oregon it takes 10 jurors to convict of any crime short of murder; it takes 11 to convict for murder. A comment to the post pointed out that Johnson v. Louisiana spoke to 9-3 verdicts.

Still, the question remains why the State of Oregon finds a non-unanimous jury verdict acceptable to convict.  Putting aside its rejection of the historical common law understanding that a jury verdict be unanimous for conviction, it seems incomprehensible that a state would believe the rejection of a quarter of a jury that the evidence proved guilt beyond a reasonable doubt to be an acceptable, no less good, idea.  It may be my bias, but it strikes me as barbaric.

In Johnson v. Louisiana, the U.S. Supreme Court held that the Sixth Amendment did not require unanimous jury verdicts in state criminal trials. The Court found that it was perfectly logical for a man to be convicted of a crime if 75% of the jurors thought he was guilty. The very notion is absurd on its face.

How many of us would trust a doctor if he were only 75% certain of his diagnosis? But that's enough certainty in Louisiana to lock someone up in the penitentiary in Angola.

But back to the original question -- what interest is served by ordering a mistrial whenever the jury is hung? We are all considered innocent unless, and until, proven otherwise beyond a reasonable doubt. If the jury cannot all agree that the defendant is guilty as charged, then the state has failed to prove its case beyond all reasonable doubt. That logically means the defendant is not guilty and should be allowed to go about his or her business. Why should the state get another bite at the apple?

Of course logic and law don't always go together.

My daughter the juror

I think my seven-year-old daughter would make an ideal juror in a criminal case.

The other day we were driving to the park and came to an intersection with a left turn lane. There was no protected left turn. There was a sign, however, overhead that warned drivers turning left to yield to oncoming traffic.

My daughter asked me what "yield" meant. I explained to her that it meant if you saw anyone coming toward you, you had to stop and wait until they passed before you could turn left. I thought, somewhat misguidedly, that I had cleared it up with my response. My daughter then let loose with a barrage of questions.

"What if there was someone behind you?"


"What if the car coming toward you was stopped?"


"What if the car was backing up?"


"What if...?"

As frustrating as it was to try to answer every little scenario her brain could imagine, I was impressed that she was being inquisitive and creative. A pat answer was no good for her. She wanted to apply the rule to things she imagined would happen on the street.

She was curious and willing to think outside the box.

It's a wonderful trait our children have. It's a wonderful trait that most of us had at one time in our lives. And it made me wonder what happens to our curiosity. What is it about our society that causes people to label folks who think outside the box as crackpots?

It's that curiosity and willingness to look at problems in different ways that opens us up to new possibilities - including reasonable doubt.

Legislature to consider new drunk driving offense

Last month I wrote about Austin Police Chief Art Acevedo's brilliant scheme to put more motorists under the thumb of the criminal (in)justice system. I also pointed out the intellectual dishonesty behind the proposed driving while ability impaired offense. But, come January, the Texas Legislature will consider creating the criminal offense of driving while ability impaired.

"When people are arrested for an alcohol-related offense, it needs to show up on their record," said Austin PD Commander of Highway Enforcement Jason Dusterhoft. "Our No. 1 goal is to keep drunk drivers off the road and keep them from killing people. DWAI would be a way for us to work toward eliminating repeat offenders.

No, Mr. Dusterhoft, I must disagree. If the motorist did not commit an offense, then the arrest shouldn't show on their record. Mr. Dusterhoft apparently believes that the police are never wrong when it comes to arresting motorists for allegedly driving drunk.

If you read the NHTSA training manual you will find that if a motorist exhibits four or more "clues" on the pen-and-eye test there is an almost 80% chance that the motorist has an alcohol concentration of .08 or higher. Of course that means that almost 20% of the time the voodoo test is wrong.

NHTSA claims the walk and turn exercise is accurate in predicting an alcohol concentration of .08 or higher 68% of the time and that the one leg stand gets it right 65% of the time. By my math, that means the coordination exercises are wrong about one time in three.

But here's the rub for folks like Mr. Acevedo and Mr. Dusterhoft; what happens if an officer arrests a motorist based on his performance of the roadside coordination exercises and the motorists proceeds to blow less than .08 on the breath test machine?

Might it mean that the officer was wrong in arresting the motorist? Might it mean that NHTSA's coordination exercises aren't accurate predictors of one's alcohol concentration?

Not so fast with that camera removal, boys

Oh, and you only thought the pesky little matter of the red light cameras in Houston was done with the city's decision to take them down.

U.S. District Judge Lynn Hughes injected himself into the mix when he signed an injunction halting the removal of the cameras until the court rules on the validity of the referendum in which voters said no to the continued use of the cameras.

The litigation before the court seems to have little actual relevance as both the City of Houston (the plaintiff) and ATS (the defendant) are seeking to void the referendum.

The only real issue, it seems to me, is whether or not the city is in breach of its contract with ATS. If following the will of the populace means that the city is in breach of the contract, then shame on the people who obligated the city in the first place. If that be the case then Mayor Parker needs to negotiate a termination of the contract with ACS so that everyone can go about their merry way. Regardless of whether the vote means the city is in breach, the cameras need to come down.

Maybe the contract excuses noncompliance as the result of an Act of God. Since the GOP and their religious minions swept the day in Harris County, I think the city might just have an argument that its cancellation of the contract isn't a breach.

Remembering Goliad

On my recent trip to the Valley we drove through the town of Goliad. For those of you who weren't schooled on the legends of Texas, Goliad was the site of the bloodiest massacre of the Texas Revolution. James Fannin and his men were forced to surrender upon the open plain after fighting with Mexican forces. After learning of Fannin's surrender, Santa Anna sent word to Goliad that the Texas soldiers were to be executed.

The cries of "Remember the Alamo!" and "Remember Goliad!" rang loud along the San Jacinto River (just east of modern day Houston) just a month later when Sam Houston lead the Texas army to victory.

The Goliad County Courthouse was built in the Second Empire style in 1894. The original clock tower and turrets were removed after a hurricane in 1942. They were replaced in 2003.

There was no long appeals process for death sentences back in the 19th century. Immediately after being convicted of a capital crime, the defendant was brought outside and hung from this oak tree.

This is the downstairs lobby of the courthouse. The tile work on the floor is very intricate.

Here's a shot of the clock tower.

Winning at all costs?

Cuyahoga County (OH) prosecutor Bill Mason really, really wants to win. He wants to win so much that he has neglected the first ethical rule of a prosecutor -- to see that justice is done.

“I see myself as someone holding people accountable for their actions.” Cuyahoga County Prosecutor Bill Mason

Over the past ten years, Mr. Mason's office has tried 6,891 felony cases. Out of those cases, county judges acquitted 341 defendants in the middle of trial. Why? Because the prosecutor's office wasn't able to prove their was even probable cause to arrest the defendants.

Mr. Mason came into office in 1999 as the reformer. He said that when he took over the office too many felony cases were being plead out by inexperienced prosecutors. His solution? Take away the authority for the courtroom prosecutors to work out their cases. All pleas would have to go through a handful of supervisors who had to answer to Mr. Mason.

U.S. District Judge Kate O’Malley wrote that Mason’s office showed a “startling indifference” to the defendant’s rights and then bluntly reminded Mason about his duty as prosecutor by quoting U.S. Attorney General Eric Holder:

“It’s the easiest thing in the world for people trained in the adversarial ethic to think a prosecutor’s job is simply to win.”

But it’s not, O’Malley wrote: A prosecutor’s job is to seek justice.

Stripping away the power to resolve cases in the courtroom reduces prosecutors to clerks. If you don't trust your people in the courtroom to make good decisions, then you've got some major issues. These are the folks you're relying upon to try cases -- if they're competent to try the case, then they must be competent enough to know whether a case needs to go to trial.

Being thankful

For all of its faults, our criminal (in)justice system does have one saving grace -- trial by jury. I am thankful I live in a country in which we have the right to have a jury of our peers decide our fate after a careful consideration of the evidence presented to them.

As Atticus Finch told the jury during his closing argument in To Kill a Mockingbird, the jury system is the great leveler of men in this country. No matter our station in life, no matter where we were born, no matter where we live and no matter what we do for a living, we all stand before the court equal.  We all stand before a jury of our peers who will decide our fate.

To begin with, this case should never have come to trial. The State has not produced one iota of medical evidence that the crime Tom Robinson is charged with ever took place. It has relied instead upon the testimony of two witnesses whose evidence has not only been called into serious question on cross examination, but has been flatly contradicted by the defendant. Now there is circumstantial evidence to indicate that Mayella Ewell was beaten savagely by someone who led, almost exclusively, with his left. And Tom Robinson now sits before you, having taken “The Oath” with the only good hand he possesses – his right.

I have nothing but pity in my heart for the Chief Witness for the State. She is the victim of cruel poverty and ignorance. But, my pity does not extend so far as to her putting a man’s life at stake, which she has done in an effort to get rid of her own guilt. Now I say “guilt,” gentlemen, because it was guilt that motivated her. She’s committed no crime. She has merely broken a rigid and time-honoured code of our society, a code so severe that whoever breaks it is hounded from our midst as unfit to live with. She must destroy the evidence of her offense. But, what was the evidence of her offense? Tom Robinson, a human being. She must put Tom Robinson away from her. Tom Robinson was to her a daily reminder of what she did.

Now what did she do? She tempted a negro. She was white and she tempted a negro. She did something that in our society is unspeakable: She kissed a black man. Not an old uncle, but a strong, young negro man. No code mattered to her before she broke it, but it came crashing down on her afterwards.

The witnesses for the State, with the exception of the sheriff of Lincoln County, have presented themselves to you gentlemen – to this Court – in the cynical confidence that their testimony would not be doubted; confident that you gentlemen would go along with them on the assumption, the evil assumption, that all negroes lie; all negroes are basically immoral beings; all negro men are not to be trusted around our women, an assumption that one associates with minds of their calibre, and which is in itself, gentlemen, a lie – which I do not need to point out to you.

And so, a quiet, humble, respectable negro, who has had the unmitigated TEMERITY to feel sorry for a white woman, has had to put his word against two white people. The defendant is not guilty. But somebody in this courtroom is.

Now, gentlemen, in this country our courts are the great levelers. In our courts, all men are created equal. I’m no idealist to believe firmly in the integrity of our courts and of our jury system. That’s no ideal to me. That is a living, working reality!

Now I am confident that you gentlemen will review without passion the evidence that you have heard, come to a decision, and restore this man to his family.

In the name of God, do your duty. In the name of God, believe Tom Robinson.

Groping around the Fourth Amendment

It starts off so benignly. Most folks don't even notice it. Most of those who do shrug it off like it's no big deal. The few who raise a stink are given dirty looks and called kooks. Then it passes. Another little bit of our reasonable expectation of privacy cast aside like yesterday's trash. Then the cycle repeats itself.

First there was the drastic overreaction after 9/11. I practice criminal law. Guess what? If the bad guys want to do something, they are going to find a way to do it -- regardless of how many obstacles you erect. When it comes to security, we are always fighting yesterday's threat.

Increased security measures at the airports led to an arms race among cities and counties to show how important they were. Metal detectors went up in courtrooms in counties big and small -- even in traffic court. If the machines weren't inconveniencing enough folks, the powers-that-be turned up the sensitivity so that people coming to conduct business at the courthouse had to take off their belts and shoes.

Now, not only are the peeps and perverts at TSA subjecting the travelling public to full body scans and groping, a couple of counties out in Colorado have installed full body scanners in their courthouses.

Angela Hellenbrand received a quick pat down Tuesday by security guard Mike Couts at the Castle Rock courthouse about 30 miles south of Denver. A guard in another room monitoring the full-body scans alerted Couts to an object in Hellenbrand's left rear pocket. It was the paper backing of a "Junior Deputy Sheriff" sticker that one of the guards had given her two young boys.

"It's OK," Hellenbrand said. "It's how they do security here. It's my second time through."

I wonder if Ms. Hellenbrand will have such cheery thoughts after the government has legislated away our reasonable expectation of privacy outside the home. My wife thinks I'm Mr. Crankypants when I tell people I refuse to fly unless I have no other choice. She's seemingly unconcerned about the erosion of our Fourth Amendment rights.

Maybe it's because she grew up in Canada and viewed government as a paternalistic institution designed to help people. I, on the other hand, grew up in Texas and understand that the reason we have a Bill of Rights is to protect ourselves from the power of the state.

Does social media threaten the jury system?

The top judge in England and Wales, the Lord Chief Justice, Lord Judge (I'm not making this up) has added his voice to those concerned about the risks social media poses to the jury system.

"We cannot stop people tweeting, but if jurors look at such material, the risks to the fairness of the trial will be very serious, and ultimately the openness of the trial process on which we all rely, would be damaged." -- Lord Judge

He noted during his lecture that some jurors in a rape case used the internet to conduct research during the trial. He also pointed out an incident in Manchester where a judge had to dismiss the jury and restart the trial because a juror posted details of the trial on her Facebook page and asked her friends "did he do it?"

"If it is not addressed, the misuse of the internet represents a threat to the jury system which depends, and rightly depends, on evidence provided in court which the defendant can hear and if necessary challenge." -- Lord Judge

We also have a case in California where a judge ruled that a plaintiff had waived some privileged communications with her attorney by posting information on her blog while the case was pending.

Jurors know that what they see and hear in the courtroom is not the whole truth. The rules of evidence under which we operate serve to keep information away from jurors. If you have a multi-day trial, you can be assured that your jurors are going to do some research of their own on the internet - despite the admonitions of the judge.  Is explicitly banning the use of social media by jurors a Luddite reaction or the only way to preserve the jury system?

The larger question isn't whether social media will make the jury system obsolete, but whether it will change our traditional view of trials.  Isn't the notion that we can bring in six or twelve disinterested people who can listen to testimony and decide the fate of someone based solely upon that evidence a bit naive? In every arena outside the courtroom we strive to gain as much knowledge about a subject as possible. Imperfect information is the enemy of efficiency - yet we are asking jurors to decide a person's fate based on imperfect information.

If you choose to ignore this reality and bury your head in the sand, you do so at your own peril.

Floggings at noon

Law enforcement agencies in and around Plantersville, Texas have announced a crackdown aimed at suspected drunk drivers leaving the Texas Renaissance Festival the last two weekends in November. This festival, that celebrates an era that has absolutely nothing to do with the history of this great state, has slowly morphed into a beast attempting to eat the town of Plantersville.

A crowd of folks who play Dungeons & Dragons and World of Warcraft and walk around talking in lousy British accents would seem fairly harmless provided I'm not forced to attend; but the local constabulary has decided that the festival's attendees make the roads in and around the hamlet a bit too hazardous for the local folk.

To catch the drunken drivers, the number of patrol officers on this task will increase from 20 to 30. Roads with extra patrols will include Texas 249, Texas 105, FM 1774, FM 1488 and FM 1486.

"We will not have random security checkpoints for vehicles," Diepraam said. "but we will be stopping anyone who violates traffic laws."

Two BAT (Breath, Alcohol and Transport) vans from Houston and Montgomery County will be available to offer Breathalyzer tests on the spot. If the driver refuses, authorities will seek a search warrant and then transport the driver to Magnolia's police station where a nurse will be on standby to do a blood test.

And so, much as was the case with the Salem witch trials, the motorist who is pulled over for a random traffic violation will be subjected to trial by deed with the officer's unscientific opinion being the linchpin upon which his constitutional rights rest.

The Constitution is the target of NTSB's Most Wanted List

Oh, the Tenth Amendment is alive and well. Y'all remember the Tenth Amendment, right? That's the one that says

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

You also remember the separation of powers doctrine. You know, the one that says the legislature enacts the law, the executive enforces the law and the courts rule on the law.

The last time I checked, it was up to the state legislature to amend or change the penal code. It's the state legislature's job to decide what is and what isn't against the law.

We have folks jumping up and down and cheering for those who espouse federalism, "states' rights," and limited government. But now we have the National Transportation Safety Board (NTSB) entering the fray with its "Most Wanted List" and pressuring state governments to change and amend state penal codes. That's right, the federal government is putting pressure on the states to bend to the will of los federales. More than than, the executive branch of the federal government is putting the screws to state legislatures to fall into line.

Here's the NTSB's agenda:

• Enact legislation to reduce crashes involving repeat offenders who drink large amounts of alcohol, including:

  • Frequent, statewide sobriety checkpoints.

• More effective measures (sanctions/treatment) for first time arrests with high blood alcohol concentration and repeat offenders.

• Zero blood alcohol requirement for those already convicted of driving while intoxicated.

• Administrative license revocation for refusing to take or failing an evidential test for alcohol.

• Vehicle sanctions for DWI offenders to separate drinking from driving.

• Elimination of plea-bargaining DWI offenses and programs that divert offenders and purge offense records.

• DWI offense records retention for at least 10 years to identify repeat offenders.

• Special sanction court-based programs such as DWI courts for hard core DWI offenders

Let's just go down the list, shall we?

Sobriety checkpoints have been declared unconstitutional in Texas. Why? Because the police must have reasonable suspicion or probable cause to pull you over. Sobriety checkpoints would allow the police to harass motorists without reason.

As for punishments, the legislature has determined that a first-time DWI merits a sentence of up to 6 months in the county jail and a fine not to exceed $2,000. A subsequent offense can get you 12 months in the county jail and a fine of up to $4,000. If you still haven't learned your lesson, a third offense is a third degree felony and will get you a bed in the state penitentiary. As for probation, it's up to the court to impose whatever conditions it feels are appropriate when suspending a sentence.

Zero blood alcohol? Last time I checked, it was legal for an adult in Texas to consume alcoholic beverages. The last time I checked, it's legal to drive so long as you haven't lost the normal use of your mental or physical faculties due to the consumption of alcohol. Need I remind anyone, Prohibition didn't work the first time.

The license suspension for refusing or failing a breath test - let's just talk about double jeopardy, collateral estoppel and the Fifth Amendment. The entire ALR program in Texas is just a way to coerce motorists to blow into the state's breath test machine so the state can obtain evidence it wouldn't have any other way of obtaining. And we already have vampires and their black-robed friends just waiting to take your blood if you decide to exercise your right to refuse.

The NTSB wants to stop prosecutors from offering pretrial diversions or "reductions" in DWI cases. Here we go -- Washington meddling in the affairs of local jurisdictions. There are any number of reasons why a pretrial diversion in a DWI case might be the right solution. There are also good reasons why some DWI's are "reduced" to obstruction of a highway or reckless driving. In the name of dragging everyone into the criminal (in)justice system, the government hasn't given a second thought to the consequences that follow a criminal conviction.

And my favorite, the DWI court - a facade of justice where defense attorneys are prodded to become a member of "the team" and sell their client out. Either treat DWI like a criminal offense and let the criminal (in)justice system take care of it, or treat it as a medical condition and let the doctors treat the disease. The criminal (in)justice system is not equipped to be a social service provider. The purpose of the criminal courts is to determine whether an individual violated the laws of the state, not to prescribe treatment for a medical condition.

If you like what Bret Ligon, Warren Diepraam and their crew are doing up in Montgomery County, jump aboard for the ride.

Let the witch hunt begin!

Attacking the messenger

Evidence mounting that a man convicted of murder might be innocent? Here's an idea -- go after the people responsible for uncovering that evidence.

That's exactly what the Cook County State Attorney's Office is doing in the case of Anthony McKinney, who was convicted of the murder of Donald Lundahl back in 1978. The full force of the state is being brought down on the Medill Innocence Project for a audio-taped interview of another suspect, Anthony Drake, in 2004.

Illinois law makes it illegal for a person to use an "eavesdropping device" to secretly record a conversation absent a court order. A letter written by then-State Attorney General Dan Ryan in 1996, however, seems to say it's okay if the recording is made by a private citizen who believes evidence of a crime may be obtained by recording a conversation.

The students involved recorded a conversation with Mr. Drake in a Belleville (IL) park. The student spoke to Mr. Drake in a secluded area while an investigator and a teaching assistant listened in on the conversation in which Mr. Drake stated that Mr. McKinney was not present during the shooting.

Justice is not a zero-sum game. The ethical duty of a prosecutor is to see that justice is done - whether that result in a conviction, a dismissal or an acquittal. The prosecutor acts in the name of the state. The state, through the citizenry, has an interest in seeing that the laws are enforced, that those who commit crimes are punished and that those who are innocent are set free.

In this instance, the state is betraying the people's trust by trying to cover its ass instead of seeing that justice is done.

When the breath test contradicts the officer's observations

You only thought blowing under a .08 meant you wouldn't be arrested for DWI. You figured that once the result of that breath test came back the officer would admit his mistake and let you go about your business.

You thought wrong.

Mike Williams, rookie wide receiver for the Tampa Bay Buccaneers, thought wrong, too.

Early this past Friday morning, an officer with the Hillsborough County (FL) Sheriff's Office stopped Mr. Williams for speeding and weaving in traffic. The officer smelled alcohol on Mr. Williams' breath and noted he had glassy eyes. The officer determined, through a decidedly unscientific method, that Mr. Williams was intoxicated so he placed him under arrest and took him to the station where Mr. Williams agreed to submit a breath sample.

The results of that breath test, you ask? .065 and .061. Well below the legal limit in Florida.

Now, aside from the obvious question of how a "scientific instrument" can have two readings .04 .004 apart on two blows that were no more than two minutes apart (I can't imagine a scientist being too pleased with that result on a test), what does this say about the ability of an officer to detect an intoxicated driver using NHTSA's roadside coordination exercises?

These coordination exercises supposedly tell the officer when a suspected drunk driver has an alcohol concentration of .08 or higher. But did they in this case? The answer would appear to be a big fat negative. The officer based his arrest decision on Mr. Williams' driving, his appearance and his performance on the roadside exercises. He came to the conclusion that Mr. Williams had an alcohol concentration of .08 or higher while driving his car. His conclusion was wrong.

Of course the obvious conclusion is that Mr. Williams was intoxicated by something in addition to alcohol. So authorities ordered a urine test (now there's a scientifically accurate test for you). The only problem is that regardless of what shows up on that screening, there will be no evidence that whatever was in Mr. Williams' body (if anything) other than alcohol had any effect on his mental or physical faculties.

The legislature of Florida decided that a person is intoxicated with an alcohol concentration of .08 or higher. The decision was made by legislative fiat. There is no scientific evidence that any given level of any other substance will cause a person to lose the normal use of their mental or physical faculties. None. The results of the urine test will not tell a single person whether Mr. Williams was intoxicated or not.

What we have here is an officer who was convinced, based upon his observations, that Mr. Williams had an alcohol concentration of .08 or higher. The state's own breath test machine proved the officer wrong and so the officer must find some other way to justify his actions that night.

That's DWI enforcement for you.

An inconvenient truth?

The truth, that nebulous concept that floats in and out of the aether always just seemingly out of reach, has a way of rearing its ugly head every once in a while. Now we all know that traffic tickets are nothing more than a user fee charged to motorists -- it's just that some folks pay a higher user fee than others -- but the cities and counties who depend on this ticket revenue will never admit it. Instead we're told that the police are writing tickets to make sure the roads are safe for all motorists. Yeah, right.

Leave it to City of Houston Attorney David Feldman, he who can't help but shoot himself in the foot, to tear down the public safety facade and call a spade a shovel. According to KRPC-TV,

Money was on the mind of City Attorney David Feldman in August when he implemented a new rule ordering all officers to show up in court at 1 p.m. on assigned court days, even though you have to be there at 8 a.m.

"With the more focused appearance time, we are experiencing far fewer no shows," Feldman said.

Mr. Feldman's move has reduced the amount of overtime paid to officers for sitting around the municipal courthouse all morning (a savings of $250,000 in August and September of this year compared to 2009) and has reduced the number of officers who fail to appear in court.

Texas Watchdog analyzed data from the city of Houston and put together a list of the officers who have had the most tickets dismissed due to their non-appearance in court. Officer Morrison was seriously injured when he was struck by a motorist during a traffic stop in 2009.

Officers with most Municipal Court violations dismissed due to absence : Data source: Municipal Court

Apparently HPD officers aren't altogether enthralled by the new procedure, either, as the number of tickets written in the past year has dropped by 25%.

Let the witch hunt begin!

Montgomery County District Attorney Bret Ligon and his assistant, Igor, Warren Diepraam are on a mission from God -- at least that's what they believe. Mr. Ligon has declared that his number one priority is to rid the roads north of the San Jacinto River of drinking drivers.

Montgomery County District Attorney Bret Ligon said Warren Diepraam has been described by others as “the mad scientist of DWI detection, suppression and prosecution.”

Mr. Diepraam spoke recently at a DWI seminar put on by the Texas District and County Attorneys Association that was sponsored by Annheuser-Busch. I figure that much like the tobacco companies started telling people to quit smoking, the alcoholic beverage industry will mouth the lines "don't drink and drive" in order to fend off new legislation that might affect their bottom line. After all, "here we go!"

The problem with Mr. Ligon's witch hunt is that it targets individuals who aren't even breaking the law. There is no law in the State of Texas that says it's illegal to consume an alcoholic beverage and then get behind the wheel of a car. The law says you can't drive that car if you've lost the normal use of your mental or physical faculties due to the consumption of alcohol, not that you're breaking the law if you drive with the odor of an alcoholic beverage on your breath.

“Warren’s efforts are actually unique, not only in this county, but I think people are beginning to realize that we have a resource here within Montgomery County that the rest of the state is starting to grab on to,” Ligon said.

Listening to Mr. Ligon and Mr. Diepraam you would think that drunk driving is the scourge that threatens to rip the very fabric of our society apart. To combat this apocalyptic threat, the crusaders want to shred the Bill of Rights. Fourth Amendment? That just gets in the way of gathering evidence. Fifth Amendment? It's much easier to convict someone if we can compel them to incriminate themselves. Sixth Amendment? Those lawyers will just tell their clients not to cooperate with the officers.

The District Attorney has put many tools in the hands of law enforcement since his election, such as a Hawk-Eye System which videos eye movements during a DWI field test. He has also implemented No-Refusal Weekends through the end of the year- hiring nurses to draw blood, which saves the time it otherwise takes officers to go to a hospital for the same process.

Does it really make you feel any safer knowing that the police are forcing your fellow citizens to submit to blood draws all because an officer smelled booze on their breath?

There is no other crime for which an individual has less protection against the power of the state than driving while intoxicated. The vast majority of drivers arrested on suspicion of DWI are guilty of nothing more than a minor traffic infraction, such as failing to signal a lane change or speeding.

The more we sit back and accept this assault on our personal liberty and privacy, the more the nation's roadways will begin to resemble airport terminals -- full body scan, anyone?

Alcohol + caffeine = trouble

The Food and Drug Administration today ordered the manufacturers of alcoholic beverages that contain caffeine to remove the stimulant from the drinks or risk having the drinks seized. The FDA is acting due to concerns that the caffeinated alcoholic beverages lead to alcohol poisoning, car crashes and assaults.

The FDA is concerned about the phenomenon of being "wide-awake drunk" due to the heavy alcohol content and high caffeine levels in the beverages.

FDA Commissioner Margaret Hamburg said the combinations of caffeine and alcohol in the drinks is a public health concern and can lead to "a state of wide-awake drunk." Evidence has shown their consumption has led to alcohol poisoning, car accidents and assaults, she said.

Red Bull and vodka is a popular beverage for the gambling set and college kids out for the night, but the combination of a stimulant and a depressant can lead to a situation in which an individual is intoxicated but has less self-awareness of their condition.

"The wide awake drunk phenomenon describes an individual who is impaired by alcohol but is wide awake," said toxicologist Dr. Bruce Goldberger.

One of the more popular alcoholic energy drinks is Four Loko, which contains 12% alcohol -- meaning one 23.5 ounce can contains almost as much alcohol as a six-pack of (that sorry excuse for a beer) Bud Light. Of course, the makers of Four Loko have their own spin on the issue.

For a slightly post-modern look at Four Loko, see what Richard Connelly and Craig Hlavaty of the Houston Press had to say.

Big Brother is watching your car

I had just put the girls to bed and was looking to unwind for a few minutes so I flipped on the television and watched Billy the Exterminator track down a copperhead and kill a bunch of yellow jackets. Nothing weighty - just some laughs while Billy exaggerates the danger of every bug, rodent and creature he comes across.

But next came something I wasn't expecting -- Parking Wars. Where I was amused while watching bugs meet horrific deaths, I was shocked at what goes on in the City of Brotherly Love. Parking enforcement officers ride in vans equipped with cameras and computers that scan the license plates of parked cars and run them through the city's database of delinquent parking tickets. It doesn't matter if your parked legally -- if the van comes through and gets a hit on your license plate, your car is getting booted. Of course since there are few houses with driveways in the Philadelphia neighborhoods where the parking officers cruise, just parking your car legally on the street makes you fair game.

The other thing that struck me was the delusional self-importance of the guy driving the van. The most "true believer" prosecutor has nothing on this guy. Apparently he's doing the lord's work. Of course delusional self-importance can also be found in the courtroom. Ironically enough, the lower down the chain you go, the more delusional are the people you meet. A judge in traffic court will issue an arrest warrant if someone is 15 minutes late to an 8:00 a.m. docket call -- even though the police don't have to saunter in until 1:00 p.m. In felony court? Your client will be seated in the jury box and told not to be late again. And then there's this guy -- he's the bailiff in a Harris County Justice of the Peace Court down a way from here in a place sometimes referred to as Area 51 that will not be named.



See also:

"Big Brother on Wheels," Defending People (9/24/2008)

Stragglers to the cause

Now it would appear that we've reached the tipping point in airport security procedures. My question, however, is where were Sen. Kay Bailey Hutchison and Rep. Ted Poe when President Bush created the TSA with the mission of tightening up airport security?

Full body scans and gropes pat-downs? That's where we finally draw the line? How about the other assaults on our civil liberties and privacy brought about in the PATRIOT Act? 

Is the concern really that security protocols in our nation's airport have become too invasive or is it because it's happening under the Obama administration? 

"The populace is giving up more rights in the name of alleged security." -- US Rep. Ted Poe (R-Texas)

If full body scans are that offensive to members of Congress, what about forced blood draws for a misdemeanor crime? What about judges who grease the skids for the vampires by signing pro forma warrant applications for blood draws without even speaking to the officers in person?

What about the mockery that is made of the Fifth Amendment by threatening to draw blood by force if a motorist exercises his right to refuse to blow into the state's breath test machine?

The [Obama]administration says that air travelers implicitly agree to any form of reasonable security screening when they enter the security lines at airports.

Sound familiar, anyone? That's the logic behind the implied consent doctrine in Texas. Of course I'm guessing that no one mentioned that at the time they took your picture and your money at the DPS driver's license office, either.