Time keeps on slippin'

Long lines snaking around the outside of the building. People lined up three-deep trying to catch an elevator to the 11th floor and above.

Typical for a weekday morning at the Harris County Criminal (In)justice Center as people try to cram into the building at 8:30am for a 9am docket call.

Only problem is that was the scene at 9:30 this morning.

Bend over, here it comes

The other day I had a client down on the island whose felony was dismissed and refiled as a misdemeanor as part of a plea agreement. Since he was still in custody I had to go to the County Jail to resolve the case on the misdemeanor jail docket.

I entered the jail and went back to the "control room" where the prosecutor had the files. The attorneys assigned to the jail docket were already there when I walked in. One of the attorneys was sitting at the table filling out the plea paperwork and waivers of appeal for each of their cases - before ever reviewing the case file or talking with their client.

How much fight can there possibly be when the attorney has already filled out the paperwork before walking into the holding cell? How vigorous a defense can that attorney present?

The news cycle rolls on

The day after the Houston Texans upset the Indianapolis Colts, callers to SportsTalk 790 in Houston were ready to buy their Super Bowl tickets. The day after the Texans were stomped by the (evil) Dallas Cowboys, those same callers were ready to fire the coach.

Yesterday a mudslide swallowed the Mexican town of Santa Maria Tlahuitoltepec. Initial accounts listed the probable death toll at 1,000. As it turned out, the actual death toll was seven.

With cable and satellite television, talk radio, the internet, Twitter and Facebook accessible to so many people, the news cycle has shrunk from 24 hours to mere minutes. Rumors grow legs and become news. Overreaction is commonplace.

This is the world in which our jurors live. They are bombarded constantly with information - some of it useful and some of it just noise. By tomorrow, today's big story will be but a memory as some new catastrophe will take its place.

What the first witness said will be overshadowed by what each subsequent witness says - and everything those witnesses say will be overshadowed by what the jurors can actually see.

Let me out!

What would J. Edgar Hoover say if he were alive today?

It appears that FBI agents, including supervisors, cheated on an open-book test covering the FBI's policies for conducting surveillance on citizens of the good ol' US of A. Agents worked together, used cheat sheets or took advantage of a software problem to answer questions regarding how agents can conduct investigations without treading on the rights of the citizenry (there's that damn Fourth Amendment again).

These are the people who run domestic surveillance on groups that espouse views that could be considered anti-government. These are the people who collect data and evidence to use against those the government deems to be terrorists.

If they can't be trusted to take a test, how can they be trusted to carry out investigations in which the rights of the citizenry are under attack? If they will lie when signing an oath that they took the test without anyone's assistance,  what's to stop them from lying on the stand?

Feds seek to make it easier to eavesdrop on the internet

According to this article from today's New York Times, the Obama administration is continuing in the footsteps of its predecessors in making the 4th Amendment obsolete. As more and more people eschew the regular telephone and turn to cell phones and the internet to communicate, los federales are seeking legislation to mandate providers to create "backdoors" in the encryption programs to allow the government to snoop about.

This comes on the heels of the efforts by Dubai and India to force RIM to allow those governments to intercept encrypted messages sent over its proprietary network.

Of course the FBI and other law enforcement hold up their hands and say there is no reason to be alarmed -- we just need to be able to execute wiretap orders signed by judges. Spy agencies are a tad more honest saying they need the legislation in order to conduct surveillance on anyone with the audacity to oppose the government.

You can put me firmly on the side of greater liberty and freedom -- even if that clashes with the perceived "need" for more and more order. If we keep giving into these demands to cede more and more of our privacy rights, we're going to wake up one morning and realize we have no reasonable expectation of privacy at all.

Let the games begin

This weekend marked the opening weekend of soccer season for my daughters' league. My oldest is beginning her fourth year of soccer while my youngest ran out onto the pitch for the first time on Saturday. As soccer commissioner, or as I like to call it, soccer czar, it's my responsibility to make certain the fields are ready to go every Saturday.

My ordinary routine is to get up before dawn and go for a run around the neighborhood, then wolf down breakfast and head over to the church to unlock gates, put out signs and get everything ready for the morning rush.

There is something uniquely peaceful about athletic fields in the early morning hours before a single player has stepped onto the field. The wet grass, the chalk lines and the flags are all in harmony.

I come back again late in the day to break down the fields and pick up the trash and everything else that was left behind. In the morning there's a feeling of optimism from looking ahead to what promises to be a great day. In the evening it's a tad more somber picking up what's been lost and thrown away.

That being said, there's usually some humor to be found in the evening. This past Saturday I picked up soccer balls and water bottles left behind by the kids (not at all unusual). I also found an umbrella left in the fence (it was sunny and there was no shade on that field). Then I found some odd items: some folding chairs and a fairly new pair of sneakers and socks. I don't understand leaving a chair -- I mean, you were just sitting in it. And the shoes? The strangest find of the day was a set of car keys. How someone managed to leave those laying around beneath the bleachers I'll never understand. I'm thinking walking out to the car and not being able to get in would be a clue that you left something behind.

On the road again

The fog rising from the ground between Wharton and El Campo on my way to Jackson County.

Another shot of the fog en route to Jackson County.

Sunrise on US-59.

Report documents prosecutorial misconduct

A USA Today investigation revealed 201 cases between 1997 and today in which federal prosecutors committed various acts of misconduct that resulted in convictions. The violations ranged from not handing over Brady material to defense attorneys to sitting by and letting prosecution witnesses lie under oath. In 47 of those cases, defendants were either exonerated or set free after the misconduct came to light.

One of those rules, established by the Supreme Court nearly 50 years ago in a case called Brady v. Maryland, is that prosecutors must tell defendants about evidence that could help prove their innocence. Withholding that evidence is "reprehensible," the court later said.

The article highlights the injustice that Mr. Nino Lyons of Florida suffered when prosecutors failed to turn over Brady material in his drug case. During his trial, federal prosecutors put inmates on the stand who all testified that Mr. Lyons sold them dope. But prosecutors failed to disclose evidence to the defense that would have discredited many of the jailhouse snitches the feds paraded on the stand.

The violation only came to light because one line in a 40-page sentencing report indicated that some evidence may not have been turned over. Prosecutors then dropped the drug charge against Mr. Lyons while the judge tossed out the rest of the case. According to one of Mr. Lyons' attorneys, Robert Berry, the only reason the misconduct came to light was because Mr. Lyons' case was tried.

The sad truth is when some 90 - 95% of cases are resolved with plea bargains, there are a lot of cases that are never investigated properly. There isn't a whole lot of investigation going on in the Harris County Criminal (In)justice Center when prosecutors are making time served offers on misdemeanor cases to defendants who were unable to post a bond. Those defendants who sit back in the holdover cell are looking for a way out of the disgusting mess known as the Harris County Jail -- given a choice of pleading guilty and walking away or staying in jail while their court-appointed attorney investigates their case; the path of least resistance is the most popular choice.

I've had more than one prosecutor make an offer on a new case and then get irritated when their offer is rejected in favor of resetting the case to allow more time for investigation. The only way to change this cultural mindset is to shine a light on what goes on behind closed doors -- and the only way to do that is to push cases to trial.

Every second counts

In so many aspects of our lives and work, timing is everything.

Yesterday I had to drive down to League City for a legal matter. I left about 12:15 and headed down Heights Boulevard toward I-10. When I got to the freeway I took a right on the feeder and then a left onto Yale - if I'm heading south on I-45 I would much rather get to the Gulf Freeway via Memorial Drive than deal with the interchange just north of downtown.

As I was cruising down Waugh I saw a truck pull out into traffic just before the outbound ramp to Memorial. The driver either didn't realize he should've come down Waugh, or he just didn't care, because he pulled out right in front of me. I jammed on the brakes and eased the wheel to the right and held on hoping I would avoid the collision. Luckily we both came to a stop before colliding.

I was furious about what had just happened. But, after I had calmed down, I thought about the situation and realized how much timing matters. A couple of seconds earlier and I'm on down the road, a second or two later and we collide, or vice versa.



Leaving a bar five minutes earlier or five minutes later can mean the difference between getting home and getting arrested for drunk driving. Getting through an intersection or being stopped at a light can be the difference between an officer seeing them drive or passing by in the night.

Big brother wants to ride with you

A little known bill managed to slide under many radar screens this summer that may result in alcohol monitoring devices being installed on new cars. The ROADS SAFE Act of 2010 was introduced by Sen. Tom Udall (D-NM) and co-sponsored by a bevy of senators including New York's Charles Schumer and David Vitter of Louisiana. Of course the clunky name of the proposed legislation (S. 3039) is an acronym - in this case, standing for Research of Alcohol Detection Systems for Stopping Alcohol-related Fatalities Everywhere. The House version of the bill (HR 4890) was introduced by Rep. Vernon Ehlers (R-MI).

The bill calls for federal funds to be spent on researching alcohol monitoring devices that can be installed in cars in order to prevent an intoxicated driver from starting the engine. The technology could range from interlock devices to alcohol sensors in the steering wheel. Mr. Schumer is pushing for legislation in New York that would allow parents to buy alcohol monitoring devices and have them installed on their childrens' cars.

If these devices are one day mandated on all new cars sold in the United States, who will be in charge of calibrating and cleaning the equipment? At what alcohol concentration would the device not allow the driver to start the car? Sarah Longwell of the American Beverage Institute thinks the devices should be set to an alcohol concentration of .04, meaning that, in most states, the device would prevent a motorist from legally operating a motor vehicle. Does anyone see a problem with that?

Would would happen if a motorist was arrested on suspicion of DWI but had an alcohol monitoring device in their car that allowed them to operate the vehicle? Since the devices can't measure the loss of normal use, would that definition of intoxication eventually fall by the wayside to be replaced with an alcohol concentration?

Jets receiver grounded for DWI

Braylon Edwards, a wide receiver for the New York Jets, was arrested early this morning in Manhattan for suspicion of driving while intoxicated. Mr. Edwards submitted a breath specimen that that had a reported alcohol concentration of 0.16, twice the limit in New York state.

Ironically enough, Mr. Edwards was not stopped as a result of any erratic driving. His downfall were overly tinted windows on his Range Rover.

The 27-year-old Edwards was pulled over for having overly tinted windows in his Range Rover. Edwards was arrested at 5:15 a.m. after police smelled alcohol and Edwards blew .16 on a breathalyzer -- twice the legal limit, the New York Post reported.

What possessed Mr. Edwards to blow into the state's breath test machine is something we may never know. If all the police had was an equipment violation and the smell of alcohol, a conviction for drunk driving would be unlikely.

What should be obvious is that if you consume any alcohol you are at risk for being arrested for driving while intoxicated -- whether you are over the limit or not. Getting pulled over for an equipment violation can lead, as it did in Mr. Edwards' case, to a DWI arrest just because an officer smells alcohol on your breath.

Saddle up, it's time to ride

Charlie Dunn, he's the one to see
Charlie done the boots that are on my feet
It makes Charlie real pleased to see me walkin' with ease
Charlie Dunn, he's the one to see
"Charlie Dunn" -- Jerry Jeff Walker

All is right in the world today. Judge Kevin Madison announced he rescinded the Lakeway Municipal Court's ban on cowboy boots.

"I guess the adage 'Don't Mess with Texas' should be changed to 'Don't Mess with Texans' Cowboy Boots!' " -- Hon. Kevin Madison.

Now if someone can just tell me what sartorial means.

Giving it the boot

Well, I decided that, I'd get my cowboy hat
and go down to Marble Arch Station.
'Cause when a Texan fancies, he'll take his chances,  
and chances will be takin, now that's for sure.  
And them Limey eyes, they were eyein' a prize,  
that some people call manly footwear.  
And they said you're from down South,  
and when you open your mouth,  
you always seem to put your foot there.

"London Homesick Blues" -- Gary P. Nunn

There's a showdown a-brewing up over in Lakeway (a resort community near Austin) over a municipal judge's aspirations to be the legal community's Jerry Blackwell. The Honorable Kevin Madison presides over Lakeway's Municipal Court of Record No. One and has decreed that it is inappropriate for lawyers to wear cowboy boots in the courtroom.

The court also requires all attorneys practicing in the court to sign a form indicating that they have read the local rules and promising to abide by them.

What was that, you say? You heard me right, a judge in a Texas court has banned the wearing of cowboy boots. I never knew it was optional. If I remember correctly when I took the oath to get my law license, I think I swore at some point to never walk into a Texas courtroom NOT wearing boots. I'll need to pull the oath out from the back of my license to verify that -- but I'm pretty certain it says something like that.

"Counsel shall be dressed appropriately while in attendance of the Court, which means a coat and tie with dress slacks, socks, and dress shoes for men and dress, blouse and skirt with hosiery, or business dress slacks and dress shoes for women. No blue jeans or cowboy boots will be worn by counsel." -- Lakeway Municipal Court Local Rule No. 5.

How on earth can a Texas lawyer dress "appropriately" without the requisite manly footwear?

Apparently the judge has since backed off on holding a lawyer in contempt for wearing boots into his courtroom -- but, as if often the case with anyone attached to the government, the "new" rule is worse than the old one. The judge told a report from the Austin American-Statesman that it was okay to wear boots in the courtroom as long as they were "nice" boots.

And who's going to make that decision? Instead of a black and white rule (no matter how un-Texan it may be) the judge has decided to make himself the arbiter of taste in the Lakeway Municipal Court.

See also:


"Well-heeled Lakeway should give court rule the boot" Austin American-Statesman, Sept. 18, 2010.
"Lawyers balk at Lakeway court ban on cowboy boots" Austin American-Statesman, Sept. 19, 2010.

New article looks at juror's decision-making biases

Earlier this month Keene Trial Consulting's Douglas Keene reviewed an article on countering juror's decision making biases by Tarika Daftary-Kapur, Rafaele Dumas and Steven Penrod. The article focused on pre-trial publicity, jury instructions, inadmissible evidence and scientific evidence.

I wanted to focus on jury instructions and inadmissible evidence. The authors point out that a good many jurors are simply confused by the array of instructions they are read by the judge at the end of the trial. The instructions are unwieldy and poorly worded - no matter how much we try to rewrite them in plain English. Of course what else would you expect when a bunch of lawyers get together to try to "simplify" something -- who do you think mangled the language in the first place?

Mr. Keene's "takeway" from the authors' observation is that attorneys should consider introducing flow charts into evidence - thereby giving the jurors what would amount to a decision map. Texas Rule of Evidence 1006 allows for the introduction of summaries, charts or calculations when it is impracticable to introduce the contents of otherwise admissible writings into evidence. The same rule may be used to admit summaries of testimony into evidence.

If nothing else, prepare a flow chart as a demonstrative aid during your closing argument. You can walk the jurors through the decision-making process and leave them with a visual in mind.

The authors also observe that jurors have a hard time disregarding evidence once they have been exposed to it. We all know is damn near impossible to stuff the genie back into the bottle after the fact. Mr. Keene suggests asking the judge for an instruction as to why the evidence was deemed inadmissible. The authors suggest that attorneys think before objecting to certain evidence as their research indicates an increase in guilty verdicts when evidence is ruled inadmissible over cases in which the evidence is allowed in.

While I agree that objecting to something tends to focus the jurors' minds on it, there is a need to make a good record in the event your client wishes to pursue an appeal. To be an effective trial attorney you must think ahead to what an appellate attorney may need if the jury comes back with a one word verdict.

Here's the cite for the article:

Daftary-Kapur, T., Dumas, R. and Penrod, S.D. (2010). Jury decision-making biases and methods to counter them. Legal and Criminological Psychology, 15, 133-154.

Rewriting history

Ernest Withers, known by many as the "original Civil Rights photographer," who had access to the inner circles of the movement was a paid informer of the FBI.

He was there during the Emmitt Till trial, the sanitation workers strike in Memphis and at the Lorraine Motel on the night Dr. King was gunned down. The man who chronicled the movement toward equality was reporting back to the FBI on the activities of the men and women he betrayed.

Why he chose to betray Dr. King may never be known and, but for an FBI mistake, his treachery would not have been discovered.

"Once you get to this level if you're a criminal informant versus a source of information they're at a higher level. They're controlled. They're supervised...It speaks to the problem of secrecy. The government is able to do things in the shadows that are really questionable. That goes to the heart of our (democratic) society.'' -- Althan Theoharris, retired professor at Marquette

Rarely is anything what it seems.

What's good for the goose...

"During your deliberations in this case, you must not consider, discuss or relate any matters not in evidence before you. You should not consider or mention any personal knowledge or information you may have about any fact or person connected with this case that is not shown by the evidence." -- Instruction given to juries in Harris County

If the jury as the trier of fact cannot take into consideration any personal knowledge they may have that was not put into evidence, then I am hard-pressed to see how a judge sitting as the trier of fact is permitted to do any differently. In Texas, at least, Judge Donald Armstrong's ruling in the Howlett case (discussed earlier today) would be an abuse of discretion.

Belching his way to an acquittal

The Kentucky Supreme Court is set to decide whether a burp is enough to invalidate a breath test.

It seems that Bertrand E. Howlett exhibited several signs of intoxication when he was stopped for a traffic violation back November of 2006. Mr. Howlett was arrested and taken to the station to blow in the state's breath test machine (the Intoxiliar 5000). The machine registered a .015. At trial Mr. Howlett testified that he burped before blowing into the machine.

Judge Donald Armstrong, a former prosecutor for the Commonwealth, recalled from his days as a DA that the manual for the state's breath test machine said that if suspect regurgitated that the 20-minute observation period must begin anew. The next day he found Mr. Howlett not guilty.

The state appealed Judge Armstrong's decision arguing that it was improper for the judge to consider facts not in evidence to decide the case (it was a bench trial). At no time during the proceedings did Mr. Howlett's attorney ask the court to take judicial notice of the provisions in the operator's manual. The state also argues that burping, belching and regurgitating are all different bodily acts and that a burp is not sufficient to warrant a new observation period.

The point of the observation period is to make certain that the machine is measuring only deep lung breath and not residual alcohol in the mouth. When someone burps, belches or regurgitates, they are expelling gases from their digestive system through the mouth -- and any alcohol that might still be in the stomach could contaminate a breath sample by registering a higher alcohol concentration that is present in the body.

The larger question, however, is whether or not a judge can rely on his personal knowledge when ruling on a case. Jurors are instructed that they are to make their decision based solely on the evidence presented in court. Does that same admonition hold true when a judge is the trier of fact? What if a jury is seated? Can the judge make rulings on the admissibility of evidence based on his or her personal knowledge or recollection?

If so, that's a troubling notion that can cut both ways.

Busted on a Huffy

Under the Texas Penal Code, a person commits the offense of driving while intoxicated if they operate a motor vehicle after having lost the normal use of their mental or physical faculties due to the consumption of alcohol, a drug, or some combination of the two. A motor vehicle is "a device in, on or by which a person of property is or may be transported or drawn on a highway..."

So, in the Lone Star State it's acceptable to get hammered and pedal down the road on your bike. You might have a hard time keeping your balance, but at least you can't get tagged with a DWI charge.

But try doing that in Louisiana and it's a different story. According to this story from Shreveport's KTBS, Robert Earl Batton found out that Louisiana truly is in a different world as he managed to get arrested for driving while intoxicated while riding his bike. According to the Section 14.98 of the Louisiana Code, operating any means of conveyance while intoxicated is a crime.

So just remember the next time you're down in the Big Easy that you can walk around the French Quarter and get as liquored up as you wish -- just don't get on a bicycle afterward.

The passing of a hero

About 30 years ago in Conroe a manager for the Bellville High School volleyball team was raped and killed in a bathroom at Conroe High School during a pre-season volleyball tournament. Police arrested Clarence Brandley, a black janitor, for the crime. I grew up in Conroe and while I don't remember all of the details (I was getting ready to start my 8th grade year at Travis Jr. High), I do remember the mood.

It was the classic southern crime story -- a black male accused of raping and killing a white girl. Mr. Brandley was portrayed as a monster and a predator while the victim, Cheryl Ferguson, was beatified. While there was some physical evidence, little of it was ever tested and, later, what there was turned up missing. I remember writing a letter to the editor of the Conroe paper stating that there was no evidence the linked Mr. Brandley to the crime and that he should be freed -- my mother was worried that someone might retaliate against me because of what I had written.

After a mistrial, a Montgomery County jury convicted Mr. Brandley of murder and sentenced him to die in 1981. Thus began years of furious appeals and writs before Mr. Brandley was exonerated in 1990. The only evidence linking Mr. Brandley to the murder was the testimony of two other janitors (who later recanted their testimony).

I bring this up because last week Don Brown, a longtime Conroe defense attorney died. I didn't realize until I read his obituary that he was the man who defended Mr. Brandley at trial. While he might have lost that trial, in the end, he, and his client, got the victory they deserved.

Plugging in and tuning out?

I never realized how addicted I had become to my phone until the trackball stopped working a couple of weeks ago. Suddenly I was unable to read through e-mails because I couldn't scroll down the page. I couldn't send text messages. I couldn't surf the internet. Now my phone was nothing more than a... phone.

Until yesterday, that is. For some inexplicable reason while I was sitting down and eating lunch I picked up my phone to see if I had received any new e-mails. As usual I started trying to scroll down the screen -- but this time it worked. After two weeks of feeling no friction when scrolling down, it had come back.

Suddenly I was able to read my e-mails, send text messages and surf the internet. Life was good again.

But it made me pause and think about my addiction to always being in touch. It also made me think about how much reliance we place on technology. We are rapidly becoming less and less social. There are a multitude of cable and satellite channels for niche interests. There's Facebook and Twitter. Texting and e-mail. Increasingly our interactions with each other are through technological means rather than face-to-face.

How does that affect our ability to communicate with a jury? Are we losing our ability to just sit and talk with one another? Are we losing our ability to concentrate on one matter for more than a few seconds? Has dialog been reduced to sound bites?

A little break from the day-to-day

While most of us were sleeping, an asteroid passed within 154,000 miles of Earth -- inside the moon's orbit. Another is expected to pass within 49,000 miles this afternoon.

The table below shows the potential damage to earth from an asteroid impact. As you move from left to right, the size of the rock gets bigger as does the potential destruction. The orange area indicates extinction.

A larger image of the table above can be found here. Here's a link to images from the Catalina Sky Survey at the University of Arizona-Tucson.

The interesting thing about this event is that the asteroids weren't discovered until last Sunday.

Don't forget the marshmallows

Nothing like a good little old book burning to bring folks closer together, wouldn't you say?

I'm certain that Terry Jones' call for people to burn a Quran (or Koran or Qur'an) will be a seminal event in bringing together people of all faiths. His (ironically named) Dove World Outreach Center will be seen as a guiding light in inclusiveness.

Constitution, be damned! Man the roadblocks!

Never let it be said that Montgomery County Assistant District Attorney Warren Diepraam is one to let the law get in the way of his crusades. In fact, after this past weekend, never let it be said that Mr. Diepraam would let the Constitution get in his way.

Sobriety checkpoints were deemed unconstitutional by the Texas Court of Criminal Appeals back in 1985 (See Meeks v. State, 602 SW2d 504 (Tex.Crim.App. 1985)). The problem the Court found was that the checkpoint allowed officers to stop motorists without so much as reasonable suspicion and that the process runs afoul of the 4th Amendment prohibition on unreasonable search and seizures.



Mr. Diepraam's latest attempt to skirt the Constitution involves setting up checkpoints in Montgomery County to determine if a motorist stopped for a traffic violation is intoxicated. Sitting at the checkpoint will be a mobile blood alcohol testing truck staffed by two nurses. Also at the checkpoint will be Montgomery County prosecutors and judges all-too-willing to sign a "check-box" warrant application so that the vampires can do their work. Don Quixote's rational is that an officer had at least reasonable suspicion to stop any motorist brought to the checkpoint and, if anyone sniffs alcohol, it will be game on.

You sure you want to refuse that breath test, son?

According to a little bird up in MoCo, prosecutors met with judges to get their okay before announcing this scheme (apparently white smoke was spotted coming out of the chimney). How's that for neutral and detached?

I'll have an extra slice of garlic bread, please

It's time to get your survival kits together for the Labor Day Weekend. If you're in the Houston area you are going to need:

1. Garlic;
2. Salt;
3. Hawthorn branches;
4. A cross;
5. Iron stakes;
6. Silver bullets; and
7. Boiling water.

That's right. It's another No Refusal Weekend (otherwise known as a Rip up the Constitution and Throw it in the Trash Weekend) in the Bayou City.

According to a press release:

In the "No Refusal" program, law enforcement patrols, testing units and prosecutors team up to get search warrants for blood samples from intoxicated motorists who refuse to voluntarily provide them.

Of course, as we all know by now, they left someone off the list of who's teaming up this weekend -- the judges. The operation just doesn't work if you don't have enough people who are willing to disregard the Bill of Rights.

“It’s clear that too many people still don’t understand that impaired driving is no accident — nor is it a victimless crime.” -- Chief Deputy Phil Sandlin, Precinct 8 Constable’s Office.

Someone might also want to take a copy of the Texas Penal Code to Deputy Sandlin. Driving while impaired is not an offense in the State of Texas. It is against the law to drive if you have lost the normal use of your mental or physical faculties or if you have an alcohol concentration of .08 or higher at the time of driving.

“So our message to motorists is simple and unwavering: if you get caught driving while impaired, you will be arrested. No exceptions.” -- Phil Sandlin

Should a motorist be asked to blow into the breath test machine and refuse, the arresting officer will fill out a warrant application (typically a "check the box" and fill-in-the-blank form) and fax it to the judge who will "review" it before signing it. Not to make too fine a point here, but in order to ask a motorist to blow into the breath test machine, the motorist must already be under arrest. That's right, the alleged drunk driver is under arrest before anyone can ask him to blow into the machine. The breath test (or blood test) is completely irrelevant to the decision of the officer to place the driver under arrest.

In other words, we're making a mockery of the Constitution to coerce someone to provide incriminating evidence against himself after he's already been arrested.

The ordinary rules don't apply for DWI

A ruling by Louisiana's 2nd Court of Appeals has expanded the arrest power of police officers outside their jurisdictions. Prior to the court's ruling, an officer outside his jurisdiction was considered a civilian and could only make a "citizen's arrest" for a felony.

A private person may make an arrest when the person arrested has committed a felony, whether in or out of his presence. - Art. 214, Louisiana Code of Criminal Procedure

At trial, in two separate cases, police officers outside their jurisdiction stopped motorists they believed were driving while intoxicated. In one case, State v. Stapa, an officer noticed a motorist weaving between the fog line and the center line and called a state trooper. The state trooper told the officer to "light up" the motorist but to stay in her car until he arrived. In the other case, State v. Williams,  an officer observed the motorist driving and stopped him.

In both cases the Court acknowledged that the officers did not have the authority to make the stops -- in fact, the trial courts, in both cases, suppressed all evidence attained as a result of the illegal stops. The Louisiana court quoted from a dissent by Chief Justice Roberts to a denial of ceriorari in which Roberts wrote that "[t]he imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases."

The Chief Justice and Justice Scalia went on to write:

"Drunk driving is always dangerous, as it is occurring. This Court has in fact recognized that the dangers posed by drunk drivers are unique, frequently upholding anti-drunk-driving policies that might be constitutionally problematic in other, less exigent circumstances." Virginia v. Harris, 130 S.Ct. 10 (2009).

So there you have it. The Chief Justice of the Supreme Court and "Mr. Original Intent" think that your constitutional protections are situational and shouldn't apply equally in all cases. In the two Louisiana cases, the Louisiana Court also expressed its belief that statutes protecting citizens from overzealous law enforcement don't always mean what they purport to mean (keeping in mind that Louisiana is not a common law state).

A new wrinkle in ALR practice?

I spent part of my morning at the State Office of Administrative Hearings on an ALR hearing for a DWI client. While observing some of the other hearings I noticed something I'd never seen before -- administrative law judges admitting documents even though an officer failed to appear after being subpoenaed.

Rule 159.211(c)(2) of the Texas Administrative Code states:

An officer's sworn report of relevant information shall be admissible as a public record. However, the defendant shall have the right to subpoena the officer in accordance with §159.103 of this title (relating to Subpoenas). If the defendant timely subpoenas an officer and the officer fails to appear without good cause, information obtained from that officer shall not be admissible. 

In each of these cases the officer who prepared the documents failed to appear after being subpoenaed by the defense. In each instance the attorney for the DPS sought to admit the documents as an offer of proof. The defense attorneys all objected on the grounds that the officer failed to appear after being subpoenaed. And, in each case, the administrative law judge admitted the documents but stated that any information provided by the officer who failed to appear would be disregarded.

In no case did the attorney for the DPS try to show that there was good cause for the officer's failure to appear. In no case did she raise any objection to the subpoena or its proof of service.

The old practice was for the DPS attorney to move for dismissal for the officer's failure to appear. Is this new practice designed to preserve evidence on the record in case the DPS chooses to appeal the finding of the administrative law judge? Is it being done so that the DPS can later raise the issue of sufficiency of service or show good cause for the officer's absence? Or is it yet another example of an administrative law judge who doesn't know the law?