Texas Code of Criminal Procedure requires a magistrate to order a defendant being released on DWI 2nd or Felony DWI bond to install an ignition interlock device on any vehicle he owns or has access to.
What’s an ignition interlock device? From the statute:
…a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator
The condition will be imposed on anyone arrested for DWI with a prior conviction, whether the defendant is released on personal bond, cash or cash deposit bond,
Thursday, July 8, 2010
FELONY MURDER APPLIED TO DWI WHATS NEXT ?
Randy England has an excellent post that illustrates the dangers of applying “worst case scenario” thinking to every situation. But before we get to the article, let me put on my Modest Proposal hat to see whether I can rile you up and get your Tough-On-Crime legislative juices running…
#1) Misdemeanors are ‘just’ misdemeanors, but if someone keeps committing misdemeanors we ought to elevate the offense to a felony. After all, if you haven’t learned your lesson, you need harsher and harsher punishment. In some (perhaps all?) cases, the second time you commit a misdemeanor, it should be a felony.
#2) If someone dies during the commission of a felony, the charge should be elevated to murder. Yes, murder usually requires intent, but it should be foreseeable to all that committing a felony automatically puts everyone in jeopardy, so… felony + death = murder.
#1) Misdemeanors are ‘just’ misdemeanors, but if someone keeps committing misdemeanors we ought to elevate the offense to a felony. After all, if you haven’t learned your lesson, you need harsher and harsher punishment. In some (perhaps all?) cases, the second time you commit a misdemeanor, it should be a felony.
#2) If someone dies during the commission of a felony, the charge should be elevated to murder. Yes, murder usually requires intent, but it should be foreseeable to all that committing a felony automatically puts everyone in jeopardy, so… felony + death = murder.
DWI: EVEN YOUR LAWYER DOSENT KNOW WHETHER YOU ARE GUILTY
DWI defense lawyers write and talk often about the inherent unfairness in penalizing DWI so harshly, when there is so much uncertainty about whether someone is guilty. Criminal defense lawyers write and talk about how they answer “that question”…you know the one: How can you defend someone you know is guilty?
Mark Bennett wrote a while back about jury selection in a DWI case in Houston, and for some reason, the short post has been floating around in the back of my mind. He listed off age, race, gender and occupation of the six folks that ended up on the jury, noting that it was an unusual mix for a Harris County jury.
I think the point of his post was that his client was really going to get a jury of his peers, rather than the usual makeup of a jury, and he ended the post with this line:
Mark Bennett wrote a while back about jury selection in a DWI case in Houston, and for some reason, the short post has been floating around in the back of my mind. He listed off age, race, gender and occupation of the six folks that ended up on the jury, noting that it was an unusual mix for a Harris County jury.
I think the point of his post was that his client was really going to get a jury of his peers, rather than the usual makeup of a jury, and he ended the post with this line:
PLEADING NO CONTESTTO DWI TX AND PREPARING THE WITNESS
Perusing my recent stats, courtesy of Mint, and I see someone has Googled the title of this post.
Maybe I’m feeling overly suspicious tonight, but I’m tempted to suspect that someone has been told by their lawyer that there’s a big difference between pleading ‘guilty’ and pleading ‘no contest’ to their (Texas) DWI charge.
There’s not. If you weren’t involved in a collision, or something that could lead to a civil suit, there’s absolutely no difference to the defendant. Your lawyer has not worked out some ‘great deal’ by ‘convincing the prosecutor’ to ‘let you plead no contest instead of guilty’.
And frankly, if you had insurance, or weren’t at fault in the accident – that’s possible, even if you were hammered – there’s still no difference.
Maybe I’m feeling overly suspicious tonight, but I’m tempted to suspect that someone has been told by their lawyer that there’s a big difference between pleading ‘guilty’ and pleading ‘no contest’ to their (Texas) DWI charge.
There’s not. If you weren’t involved in a collision, or something that could lead to a civil suit, there’s absolutely no difference to the defendant. Your lawyer has not worked out some ‘great deal’ by ‘convincing the prosecutor’ to ‘let you plead no contest instead of guilty’.
And frankly, if you had insurance, or weren’t at fault in the accident – that’s possible, even if you were hammered – there’s still no difference.
DWI DEFENDANT ARE COMING AWAY WHICH WHY ?
Just in from a marketer via email, with the title line “Thousands of DUI Defendents are Coming!”:
It’s super obvious that there is absolutely no screening of the lawyers whatever. If you pay the fee, you are listed, and then become (simply by virtue of sending them money):
Because we are the #1 Google ranked DUI/DWI website, thousands of DUI/DWI defendents[sic – I couldn’t bring myself to misspell it in the title of my post though] will come to our site next week looking for an attorney. Will you get your share?
Just one case will pay for your Membership many times over. Please respond to this email now or call (123) 456-7890.I haven’t linked to the “nationwide network of DUI defenders” that sent me the email, not wanting to hand out any undeserved Google love. But from a quick click through to the site – I had to look - the amusing thing, at least from my perspective, is that it tries to sell both potential clients on member lawyers, and potential lawyer clients of the network on paying the site to list them.
It’s super obvious that there is absolutely no screening of the lawyers whatever. If you pay the fee, you are listed, and then become (simply by virtue of sending them money):
…expertly familiar with all the intricacies and nuances involved with DUI offenses. This index of lawyers will take you through them step by step, explaining testing, sentencing, jury trends…Do the recently arrested who comb the internet realize: a bar card and some money makes any and every lawyer an expert?
DWI OFFICER WRITE COMMENT
In response to my post about DWI lawyers and blogs, a commenter who called himself DWI Officer wrote:
Jamie, it is interesting that you wrote, "I often wonder at why jurors are so ready to ruin the lives of defendants who are on trial for DWI..." Don't you think the defendant has some control over his/her life, such as making the choice to drive under the influence in the first place? It is no secret that driving under the influence is against the law.
TEXAS JUDGE RULES ON POLICE BLOOD DRWS
Even as Austin Police Chief Art Acevedo prepares to ‘train’ his officers to forcibly take blood from Travis County DWI suspects, a judge in Tarrant County has ruled that prosecutors may not use blood results from forcible blood draws done by improperly trained cops.
And, as of now, that appears to be all police officers.
In my previous post, I predicted that Acevedo’s attempts to ‘train’ his police officers to take blood from DWI suspects that refuse a breath test would run into some legal problems: primarily that they wouldn’t meet the legal standards laid out in Texas Transportation Code Section 724.017 and would therefore be subject to a motion to suppress the test results.
As Robert Guest points out:
But while I love the nurses & SWAT tanks line, I’m not as confident as he is that forced urine tests are so impossible. Painful? Orwellian? Perhaps.
But then again, they could be coming to a city near you…
And, as of now, that appears to be all police officers.
In my previous post, I predicted that Acevedo’s attempts to ‘train’ his police officers to take blood from DWI suspects that refuse a breath test would run into some legal problems: primarily that they wouldn’t meet the legal standards laid out in Texas Transportation Code Section 724.017 and would therefore be subject to a motion to suppress the test results.
As Robert Guest points out:
These cops had some EMT training. However, the law states that EMTs aren't qualified.In the comments to the local Austin story about “No Refusal Weekends” many local citizens complained that the police would open themselves to civil liability if Acevedo’s plan was implemented. Actually, I think Guest is right: it would be difficult to mount a successful civil lawsuit.
Police should not be drawing blood.
First, they have a vested interest in convicting the defendant, not attending to medical needs.
Second, if the cop actually kills or injures someone they have near complete immunity.
Finally, State law includes breath, blood, and urine for evidence of intoxication. What if the police start getting breath/urine warrants?
Ok. So the last one is not likely (yet). However, we don't want police playing nurse anymore than we want nurses driving the SWAT tank.
But while I love the nurses & SWAT tanks line, I’m not as confident as he is that forced urine tests are so impossible. Painful? Orwellian? Perhaps.
But then again, they could be coming to a city near you…
CAN a DWI EVER BE MURDER
Scott Henson at Simple Justice writes about the word Murder losing its meaning. Of a man recently convicted of second degree murder in New York for an Intoxication Manslaughter offense, Scott wrote:
It's not to say that McPherson was an innocent man. He was not. It's not to say that McPherson's conduct was excusable. It was not.
But Franklin McPherson did not commit murder. To say he did cheapens the crime for the victims of real murders, and subjects it to the transitory whims of the prosecutor. McPherson was drunk…
But Franklin McPherson did not commit murder. To say he did cheapens the crime for the victims of real murders, and subjects it to the transitory whims of the prosecutor. McPherson was drunk…
In New York, ‘creative’ prosecutors are proceeding under the theory that the defendant acted with depraved indifference to to human life.
CONTINUING LEGAL EDUCATION : DWI FOR CIVIL LAWYERS
A few months back local Austin appeals lawyer Todd Smith asked me to speak, albeit briefly, at the Austin Bar Association’s monthly meeting. My assigned topic was a natural one: DWI. Lawyers who attended would be given credit toward their yearly CLE requirements. I was honored and of course agreed.
I assumed that meant I should speak on how to defend a DWI, and so I talked about the initial interview process, the different types of court settings, the ALR process, various defenses to DWI charges and tried to throw in a few other nuggets before my time ran out.
Afterwards I stuck around and talked with people at the bar. I mean the serving-alcoholic -beverages type of bar, not “The State Bar of Texas” by the way. Yes the CLE was held in a bar, and yes, I was just about the only one without a drink in my hand.
I assumed that meant I should speak on how to defend a DWI, and so I talked about the initial interview process, the different types of court settings, the ALR process, various defenses to DWI charges and tried to throw in a few other nuggets before my time ran out.
Afterwards I stuck around and talked with people at the bar. I mean the serving-alcoholic -beverages type of bar, not “The State Bar of Texas” by the way. Yes the CLE was held in a bar, and yes, I was just about the only one without a drink in my hand.
DO COPS GET TO MAKE UP NEW DWI LAWS ?
The Dallas Morning News Crime Blog ran a story recently about stepped up DWI enforcement for a holiday weekend:
When you obviously lie to folks about part of your message, the truthful parts are more likely to be ignored. Then again, DWI lawyers might tell you that the police are inadvertently being truthful; that is, they do indeed arrest everyone who drives with an odor of alcohol on their breath, even though that is not against the law. It’s just a bad idea.
The message: If you drink and drive during the Labor Day holiday, you will go to jail.Two commenters immediately noticed the substitution of “drinking and driving” for “DWI”. (They are not the same thing.)
That's the word from local law enforcement and the Texas Department of Transportation which launched its anti-drunk driving campaign in the Dallas/Fort Worth area Friday morning…
"Drunk driving is a serious issue, and we intend to come down especially hard on drunk drivers during the two weeks leading up to Labor Day holiday," said North Richland Hills police Sgt. Neal Maranto. "If you are drinking and driving, you will be pulled over and you will be arrested.”
Posted by TexasYellowDog @ 4:33 PM Sat, Aug 22, 2009and
"If you drink and drive during the Labor Day holiday, you will go to jail."
Why's that? Drinking and driving aren't illegal. Do the cops get to make up new laws because it's a holiday?
Posted by retry @ 10:21 PM Sat, Aug 22, 2009I don’t begrudge the police spokesperson trying to discourage DWI or drinking/driving, although the second is not always unlawful. But these two comments from public readers show why conflating the two is ineffective, possibly even counterproductive.
...also- as YellowDog correctly points out, there is a HUGE difference between "Drinking and Driving" and "Driving While Intoxicated."
DWI is illegal. Drinking and driving is not. Confusing these two does not help anyone.
When you obviously lie to folks about part of your message, the truthful parts are more likely to be ignored. Then again, DWI lawyers might tell you that the police are inadvertently being truthful; that is, they do indeed arrest everyone who drives with an odor of alcohol on their breath, even though that is not against the law. It’s just a bad idea.
Witness Chicken ( THE POLICE VERSION )
Maybe your client is guilty. Maybe it will be easy for the State to prove that your client is guilty. That is, if they can get their witnesses to show up.
There are all sorts of reasons that defense lawyers set cases for hearings and trials, not the least of which is that they expect(well… hope?) that a judge will suppress some or all of the evidence, or that a jury will find their client not guilty.
Occasionally a client will even volunteer this as the solution to their problems, “What are the chances that so-and-so won’t show up, and my case will be dismissed?”
For now, I’ll ignore the ethical issues that answering that question raises, and focus on one small aspect of it. The answer depends greatly on whether or not the witness against your client is a police officer or a civilian. The chances of winning witness chicken when the only folks the State needs wear a badge and a gun are substantially less than if they don’t. Part of every cop’s job description includes “professional witness,” and they even take classes to learn how to do it.
So what are the chances that an officer won’t show up to testify in a pretrial suppression hearing? Usually pretty slight. But a cynic might say there are other factors to consider, such as… what your client does for a living. Is the answer different if your client is also part of the thin blue line?
From “Texas Officer Catches Break in DWI Case; Arresting officer is no-show for court”:
Did that happen in this case? And if it regularly happens in that court, but didn’t this time, what made this case different from any other?
There are all sorts of reasons that defense lawyers set cases for hearings and trials, not the least of which is that they expect(well… hope?) that a judge will suppress some or all of the evidence, or that a jury will find their client not guilty.
Occasionally a client will even volunteer this as the solution to their problems, “What are the chances that so-and-so won’t show up, and my case will be dismissed?”
For now, I’ll ignore the ethical issues that answering that question raises, and focus on one small aspect of it. The answer depends greatly on whether or not the witness against your client is a police officer or a civilian. The chances of winning witness chicken when the only folks the State needs wear a badge and a gun are substantially less than if they don’t. Part of every cop’s job description includes “professional witness,” and they even take classes to learn how to do it.
So what are the chances that an officer won’t show up to testify in a pretrial suppression hearing? Usually pretty slight. But a cynic might say there are other factors to consider, such as… what your client does for a living. Is the answer different if your client is also part of the thin blue line?
From “Texas Officer Catches Break in DWI Case; Arresting officer is no-show for court”:
An Hidalgo County judge killed a McAllen policeman's criminal case after one of the defendant's fellow officers failed to appear in court and testify against him, court records state.No witness, evidence suppressed, case closed. Until the newspaper called, and the D.A. had to come up with an explanation.
Judge Jay Palacios of Hidalgo County Court-at-law No. 2 dealt a "fatal" blow to the prosecution's case, Hidalgo County District Attorney Rene Guerra said, when he granted a motion to suppress evidence in Officer Alex Alvarez's pending case on a charge of driving while intoxicated.
District Attorney Guerra said he learned Wednesday that the case was set for dismissal when a Monitor reporter contacted him about the matter. Guerra said he would ask Palacios to reconsider his decision to suppress the evidence in the case.Did the state even ask for a continuance? According to the article, “McAllen's Police Chief Rodriguez said he believed the officer was hospitalized.” In Austin, prosecutors will ask for a continuance at a first setting, even if they have no idea why their witness isn’t there, and it will usually be granted. One time any way.
"Legally, I don't know if he can reconsider it," the district attorney said. "I don't know until I try."
But why the arresting officer missed the court date remains unclear.
Did that happen in this case? And if it regularly happens in that court, but didn’t this time, what made this case different from any other?
Subscribe to:
Posts (Atom)