Dallas Criminal Defense Lawyer Blog

I recently blogged about the ONDCP blog Pushing Back. To recap; PB is a fed blog that allows reader to "Send Comments." As of this date they are no reader comments posted on the blog. I have sent two comments so far and received no response (they are probably in my FBI file)

This experience has given me Con Law flashbacks. My question is; If the government creates a blog and allows for any public input, does it have to then accept all public input?

The case law states that the government can present self serving viewpoints publicly without allowing dissenting views. There is no equal time or fairness doctrine for the Federal Government. However, if the government opens a public forum it can not censor viewpoints.

It seems that Pushing Back has a seperate community site and that site has the ability to register new users. The site also allows readers to post and add pictures. Is that not a public forum?

There is no link to the Pushing Back community site on pushingback.com. I only found it by accident through Site Meter. Someone at ONDCP linked to my blog directly from this site-http://pushingback.com/login.aspx?ReturnUrl=/Msgs/default.aspx?MessageID=29

I would love to register to post and comment on pushingback.com. However, new user registration has been suspended.

Are my first amendment rights being violated? If any first amendment gurus or Con Law students can answer this I would greatly appreciate it.

Federal Government drug warriors have always feared free speech. When drug war propaganda was uploaded onto YouTube comments were quickly disabled after an overwhelming negative reception. Censorship and a fear of debate are not the hallmarks of democracy. Only tyrants fear open dialogue on important issues. Prohibition should be debated. If the federal government wants to waste my tax dollars on propoganda they should be required to acknowledge dissenting views.

Labels: Federal Government, War On Drugs

DFW.com has a great post on the proliferation of red light cameras in the metroplex. These cameras are popular money makers around the country.

Cities are loathe to state the real purposes of red light cameras; revenue from a regressive tax on drivers. Like most bad government policy we are told that the cameras will make us safer.

As the article points out the cameras send a ticket to the owner of a vehicle. You do not have to actually drive the car to get a ticket. Want to protest your ticket? Call Australia.

We have outsourced this law enforcement work to an Australian corporation, Redflex. Redflex is not sympathetic to claims of innocence. They require an affidavit stating that you were not driving, but also require you to give the name and address of the person who was. In what system of justice are you required to do the police's work for them? If they do not know who is driving, they should not issue the ticket.

You have the right to an administrative hearing. You have no rights at an administrative hearing. The rights of a defendant in criminal court do not apply to these hearings. The government does not want civil liberties to stop a good racket.

DFW.com correclty points out that red light cameras do NOT make intersections safer. They increase the number of read end collision dramatically and most intersections continue to have a higher number of accident afterwards.

Automated law enforcement is an insult to the idea of limited government. These cameras are a tax grab by local cities that do not make us safer. In two years I hope the legislature has the courage to reject all forms of automated law enforcement.

Labels: Texas, Traffic Tickets

This is getting ridiculous. For the 3rd time in 3 weeks a giant marijuana field has been found in Dallas. I'm running out of things to say about how absurd the war on marijuana is.

The field was discovered by Dallas police yesterday. The field is so big that the DEA and National Guard may be called in to help remove the marijuana.

What an efficient use of tax dollars. We are paying federal drug agents and soldiers to dig up plants.

The drug war is lost, bring the troops home. Don't just take my word for it. Here is the White House Drug Policy's own report on the Dallas drug market. Even though drugs are illegal it seems that every illicit substance known is readily available in the Metroplex.

Labels: Marijuana, War On Drugs

You were arrested and you are waiting on a court date. You faithfully call your bail bondsman every week. Finally, you get a letter from the court stating that you have an "announcement" or "1st appearance" coming up.

What to do? Here are 3 simple rules for Texas State Court Cases.

Rule 1. Never wait for a court date to hire an attorney. Find one now. If your case is a DWI, you are facing a critical 15 day dealine.

There are many advantanges to hiring counsel before your first date. Pitching a good defense or pointing out problems to the prosecutor early can pay dividends. For example, in some counties you can work out a diversion deal with the prosecutor so a case will never be filed. That will keep you from having to pay to clean up your record later (with a motion for non disclosure or expunction.)

Some courts have policies on how many court appearances you get before a case has to be set for trial. Do not waste an appearance showing up alone. It puts your lawyer at a disadvantage.

You decide to ignore rule 1 and go to court alone. Now what?

Rule 2. When you go to court do not speak to the prosecutor. The prosecutor represents the State, not you. The same State that arrested you and has filed charges against you.

Remember how you thought talking to the police would make things better? How did that turn out?

Talking to a prosecutor is a horrible risk. I used to be a prosecutor. I spoke to many pro se defendants. I assumed these defendants were a) Guilty and b) Lying.

Pro se defendants did not know that most of the "plea recommendations" I made for each case included a little room to negotiate with an attorney.

For example, I would rec some cases with a higher fine or longer term of probation that I would settle for. Why? To give something to the defense lawyer. When a lawyer comes to plea a case they always wanted to show the client "value" and I was happy to oblige.

Rule 3. Do not accept a plea bargain. If you just show up and take the State's offer you have no frame of reference for what a good plea offer is in your court. Local counsel can help in that regard.

Many offenses have consequences the judge and prosecutor will not tell you about. Future enhancements, surcharges, loss of driver's license, limits on gun ownership, and hurdles to employment to name a few.

Plea bargaining is not the sexy part of defense work. However, if you are going to plea you should do it right.

Labels: Plea Bargains, Texas

Not intentionally, mad is stealing my tax dollars. The National Highway Traffic Safety Administration gave MADD $400,000 of your money to "monitor drunken driving" proceedings in court.

This is wrong on many levels.

1. Watching court is free. Anyone can watch court. It costs nothing. Why they need $400k is beyond me.
2. MADD has an annual budget of $52,000,000. They don't need taxpayer money.
3. MADD already received over $700,000 from the Department of Justice. How much tax payer money do they need?

The idea is that if MADD is sitting in the court room it will scare the judge and prosecutor into being tough on DWI. I heard rumors about this when I was prosecuting but I never saw any MADD operatives my court.

As an ADA I refiled many DWI cases as Obstructing a Highway. As far as I knew no one complained. If I thought a defendant did not need a DWI conviction or the case was weak it was a candidate for OAH. In Texas, the state adds a $1,000 a year "surcharge" for 3 years if you get a DWI conviction. I did not have to be a party to government extortion.

DWI can be a life ruining experience (unless you are George W. Bush or Dick Cheney). We have criminalized drinking for no reason. Lowering the BAC to .08 and destroying the 4th Amendment has not made us safer. It has made us less free.

I hope NM judges are not intimidated into giving out harsher sentences just because MADD is present.

Labels: Federal Government, Government Spending, MADD

The Office of National Drug Control Policy has the federal government's first blog. Like most government propaganda it is predictably awful. Today's post is that there may be a cocaine shortage and we should feel good about it. Historical data shows that cocaine is cheaper and purer than ever.

Why does the government need a blog to justify such an important policy? If Prohibition is such a great cause where is the blog support from the public?

Most welfare state programs have liberal blogs dedicated to their survival and expansion. Every cause seems to have a blog, why not Prohibition?

Here is the IWTS Prohibition Blog Challenge- I am asking for readers to submit the best pro Drug War blogs. Blogs by government agencies or employees are not preferred. I want actual intellectual Prohibition support from the citizenry.

Batman needs the Joker; so I want to find my blogosphere opposition. I also have a theory that there is not any intellectual support for the drug war, only support from those with a vested interest in Prohibition.

Labels: War On Drugs

You have been arrested for a DWI in Texas. You are asked for a breath sample. You take the breath test, or you refuse. You make bail and get out of the pokie. What next?

In Texas, you have 15 days after arrest to request an ALR hearing. You MUST request this hearing. It is not an option. Call a lawyer or request the hearing on your own then hire an attorney for the hearing.

What is an ALR hearing and why are they so important?

An ALR hearing is where a defendant challenges his driver's license suspension. The State has to prove that you refused, or failed, a valid request for a breath test.

The standard of proof at ALR hearings is very low. The State does not have to prove you are guilty of DWI beyond a reasonable doubt. Only that an officer had probable cause to stop you (traffic violation usually) and a reasonable suspicion to ask for a breath test (you smelled like alcohol, admitted to drinking, bloodshot eyes, slurred speech). These hearings are very hard for the defendant to win. So why have them? Preperation for the future criminal charge.

With an ALR hearing your attorney has the chance to cross examine the officer on all the details of the stop and arrest. These answers can and will be used against the officer in a future trial or pre trial hearing.

Getting to cross examine the officer early gives you the best chance to beat the DWI later. I have gotten great answers from officers including contradictions with the police report, many I don't remembers, and even officer admitting that my client was not inoxicated.

Armed with that information your attorney will be in a much stronger position to plea a case or try the case. It always helps.

What happens if you win at the ALR hearing. You get your license back and that's it. The State can, and usually will still file a DWI charge.

Labels: DWI

IWTS supports free trade. The Bush administration usually supports free trade. However, when it comes to Internet Gambling, George Bush is out to protect you from yourself (and state lotteries from competition).

United States is a member of the World Trade Organization. The US is being sued by Barbados, because the US laws discriminate against foreign companies. The WTO has held that the Illegal Gambling Business Act and Wire Act both violate the free trade agreement. The Bush administration has chosen to ignore this ruling and continue prosecuting online casino operators.

Supporters of this misguided Internet gaming ban want you to believe they are looking out for you. Jim Leach (R-Iowa) said the problem is particularly acute for young people who are frequently on the Internet. "Never before has it been so easy to lose so much money so quickly at such a young age," he said. In other words this is another piece of legislation "For the Children."

The real motivation for these laws is protecting domestic casino and state lottery profits as well as political pandering to the value voters.

The US ban on Internet gambling protects no one and criminalizes consensual activity. It is another form of Prohibition. The US is risking the legitimacy of all free trade agreements by ignoring the WTO ruling. That is too high a price for protectionist moralistic pandering.

Labels: Federal Government, Free Markets, Gambling

For the neo prohibitionist crowd the main problem with DWI enforcement is that every cop has either a) driven drunk in the past b) still drives drunk c) has a friend of family members who drinks and drive. The hypocrisy inherent in zealous DWI enforcement is seen as a problem. Enter DWI "education".

Officers who arrest for DWI's receive training developed by NHTSA, the National Highway Transportation Safety Administration. This training centers on the use of Standard Field Sobriety Tests. There are 3 SFST, the HGN (look at my pen), the walk and turn, and the Macarena (ok, the One Leg Stand). We are skipping those today.

Let's focus on indoctrination. Before the young DWI warriors learn the nuts and bolts of tests and arrest they first learn why DWI is bad.

The NHTSA student manual has a full chapter of neo prohibitionist propaganda. Training begins with the untrue statistic about "alcohol related fatalities." IWTS readers know by now that number is a complete fabrication. Moving on.

NTHSA states that for everyDWI arrest there are 2,000 drunk drivers who are not caught. Why is arrest number so low? NTHSA blames cops. "Some officers are not motivated to detect and arrest DWI driver" states the manual. No kidding. You mean cops don't like arresting people for a crime they or their friends commit?

Officers learn that they will let go 3 DWI violators for every one they arrest. Get the message rookie? Arrest more! Quit being soft on crime, people are dying and there is no room for discretion!

The officers are taught that society will only be changed and lives saved when society accepts that drinking and driving is "wrong." The best way to reach that change is "fear or arrest." The best way to increase "fear of arrest" is to, you guessed it, arrest more people.

That is how we ended up with zero tolerance enforcement. Cops arresting everyone who has been drinking without any other evidence of intoxication. Individuals who refuse to take SFST are assumed to be intoxicated and arrested. Cops believe that by erring on the side of caution and over arresting they are saving lives. Never mind the fact that since the legal BAC has dropped from .1o to .08 the number of DWI fatalities has gone UP.

Do you think the "How to Solve Murder" training has a chapter on why murder is bad? How about "Sexual Assault for Dummies", probably not a chapter telling you why rape is bad. Of course not, those crimes are bad because they have victims. Victimless crime is always a tougher sell, even to law enforcement.

Labels: DWI, MADD, Police, Prosecution

And gosh darn it people like us.

The DEA recently raided a licensed legal (in California) Medical Marijuana dispensary. When you are arresting Americans for consensual victimless crime it can be hard to get the attention you deserve. To keep feeling relevant drug warriors always throws out self affirming quotes.

"The marijuana traffickers arrested today claimed to sell the drug for medicinal value, but it’s clear that marijuana’s financial value was their true motivation,” said Timothy J. Landrum, Special Agent in Charge of the DEA in Los Angeles.

So, it's capitalism they are protecting us from. I hope the DEA shuts down Pfizer and every other evil profit making drug company.

"There was no care, treatment or compassion shown to our operatives during any of our undercover buys, and marijuana was sold to our agents for 2 to 3 times the cost on the streets "said Steve Bolts, Undersheriff, San Luis Obispo Sheriff’s Department.

The lesson; Be more compassionate to undercover officers and don't charge so much for weed. My idea for dispensaries- Coupons and free hugs for undercover agents.

“DEA and our law enforcement counterparts will not turn a blind eye to flagrant disregard of our nation’s essential drug laws—laws designed to protect our citizens, communities, and children.”

How can you argue with protecting children? You don't hate CHILDREN do you? I never understood how arresting parents who engage in victimless crime helps children, but maybe that's why I don't prosecute anymore. I bet children all across California will sleep easy knowing that the 33,000 missing sex offenders in the state are not smoking medical marijuana.

Labels: Marijuana, War On Drugs

A new report from the feds shows that 8% of all employees use illegal drugs, mostly marijuana. The highest rate of drug use is in the food services industry.

For what it's worth, one of the lowest rates of drug use is in the legal industry.

I thought pot smokers sat on Pete's Couch all day and did nothing? I guess they go to work like the rest of society.

The best solution belongs to the Onion. Drugs will now be legal if the user is employed.

Reason provides some great insight. Employers only discourage alcohol use if it affects performance. Employers enforce zero tolerance for other drugs. It you can be a great employee but you smoke weed, should you be fired? If so, we will have to shut down the NBA.

Labels: Marijuana

I have joined Law Enforcement Against Prohibition. LEAP is an organization of ex law enforcement who oppose drug prohibition. I am hoping to become a speaker for the organization so I can share my views on why prohibition is a failure. Milton Friedman joined in 2006 and that is reason enough for me to be a member.

I was a prosecutor for two years. However, I never had an epiphany or great conversion against the Drug War.

The fact is, I never was a true believer in prohibition. I majored in Economics at UT-Arlington. My degree taught me that prohibition would only raise prices and funnel the profits into organized crime, it would not end demand. In law school I cringed as the Supreme Court destroyed the 4th amendment to allow more drug searches. I confirmed what I already believed by working as an Assistant District Attorney.

LEAP does not stand for drug legalization. LEAP is against prohibition. What is the difference? LEAP does not argue that crack is safe and should be available at the grocery store. Drugs are dangerous and should be regulated and controlled, not handed to organized crime. The details of an alternative system can be worked out once society accepts the idea that prohibition is the wrong system.

Remember the "numbers" racket? We now have the lottery. Gambling is a great example of how prohibition can be repealed and a market recaptured from organized crime. The same thing will happen with drugs. I hope to be a part of that change.

Labels: LEAP

IWTS in DMN I had my second letter published in the Dallas Morning News. They did a nice editing job. I could use that person full time. The letter was from an earlier post why DMN thinks drug users should feel bad.

An earlier letter to the editor (bong hits 4 jesus)was published at DMN without me realizing it.

Thanks to Jim for the heads up. Chek out his blog of great photos of Terrell, Texas.

IWTS in 08?
I have been contacted about running on the Libertarian Party ticket for a judicial office in Texas. I am very interested and would like to enter the race for a seat on the Court of Criminal Appeals. Not for political power or because I need a job. No Libertarian has ever been elected statewide in Texas and private practice is working out just fine. I want to use the opportunity to spread ideas and get more readers. I have not run for any office since being elected Secretary of the InterFraternity Council at UT-Arlington.

CHEECH BIN LADEN ?
War on Terror rhetoric is being co opted by the DEA. The Nation's Drug Czar called pot growers "violent criminal terrorists."
"These people are armed; they're dangerous," John P. Walters said. If armed and dangerous is the new standard for terrorism then what are SWAT teams that conduct home invasion searches?
Dare Generation has a great rebuttal. I know Mr. Walters has a job to do but by using the "terrorist" label so often it takes away our focus from real terrorists.

Labels: DEA

The Police State and the Nanny State often join forces to pass idiotic laws. Today's example is the right to poop law that was passed by the Texas Legislature.

HB 416, which Rick Perry signed, creates a new criminal offense for business that do not allow those with certain medical conditions to use the employee restroom.

Basically, if you have a business and do not provide a public restroom a customer can present a doctor's letter and use your toilet. There is no penalty for writing a fake doctor's letter so if you have always wanted to use the john at Tiffanys this is your chance.

The bill makes a new misdemeanor offense to assure access to the toilet. I predict this law, like all bad laws, will rarely be enforced.

If a business wants to cater to customers with chronic diahrea they will have a public restroom. If not, let them run their business as they see fit. Do not create another criminal law just because it sounds good. Making everything criminal undermines the legitimacy of the criminal justice system.

Who lobbied for this? Our lege could not fix the property tax but had time to pass this? Law enfrocement resources are too important to waste on feel good posturing.

Labels: Texas

Lawyers often get a bad rap for making healthcare expensive. Allegedly our lawsuits push doctors out of high risk fields. In Texas medical malpractice litigation has been effectively shut down by insurance companies and the GOP (both of whom hate trial lawyers).

Where am I going with this?

Today there is a congressional hearing on the DEA's War Against Pain Doctors. If you think lawsuits and high insurance costs can run doctors out of certain fields, wait till you see what arrests and federal criminal charges can do.

Who is going to want to practice pain management these days? Pain management requires powerful opioids that some patients will get addicted to. However, most patients get the relief they need to function without addiction. By letting the DEA arrest pain doctors we are making a decision that stopping a few addicts is more important than treating all patients effectively.

Who is the DEA protecting? And from what? We have terrorists who want to kill us and we are wasting time jailing doctors.

This War on Pain doctors sends a clear signal to other pain management doctors. Get out of the field or under treat your patients. The losers are those who need pain management the most. If you are in pain you had better hope that a standard dose works for you. If not you may be out of luck. No doctor is going to risk his freedom for a patient.

Who is the DEA to make medical decisions? What do they know about pain management? It is time to take law enforcement out of the health care system.

Michael Moore fans take note. This is the same federal government you want in charge of all health care.

Labels: DEA, Federal Government, Health Care

I had a DWI bench trial yesterday. It was a total refusal. My client completely refused to perform any of of the field sobriety testing or blow into the intoxilyzer 5000. Not guilty.

The problem with DWI refusal cases is that DWI is largely an opinion crime. In the officer's opinion you have lost the normal use of your physical or mental faculties. Combine huge amounts of law enforcement discretion with the Witch Hunt mentality of DWI prosecution and you have a recipe for injustice.

The officer stated that my client's only indications of intoxication were; drum roll please....... speeding, part of one tire crossing the center line, my client admitted to drinking 1-2 beers, and the 3 usual suspects in DWI- bloodshot eyes, slurred speech, and the odor of alcohol. That's it. Arrested, Charged, and Tried based on that alone.

Every DWI I have ever seen involved "bloodshot eyes, slurred speech, and the odor of alcohol." I used to wonder why.

3 reasons-

1. Those are impossible to disprove in court. The camera can not see the defendants eyes on tape. Slurred speech is an opinion. And we have yet learned to capture odors on the in dash camera.

2. NHTSA training. Officers are trained to look for these among dozens of others signs of intoxication.

3. Police Reports- Most DWI reports have easy to check boxes for DWI clues, they all include those 3 reasons.

Back to number 2- We train officers to look for many clues of intoxication. The NTHSA manual lists dozens. Unfortunately if a defendat shows only 3-4 out of 50 clues, the cop can make the decision to arrest. That's what discretion gets you.

Why? Because DWI is an opinion crime.

To compare, it could never be an officer's subjective opinion alone that you killed somone, possessed drugs, started a fire, robbed a bank; the officer would need some actual objective tangible objective evidence to arrest you.

DWI, being an opinion crime, requires no objective evidence for you to get arrested. Throw in a DA's office that prosecutes ALL DWI cases and you will have innocent people convicted.

Labels: DWI, Police

Showtime had a great presentation on Medical Marijuana, In Pot We Trust. I know how liberals feel when they see Sicko. I got the same reaction watching this film.

In Sum; here are the arguments presented-

1. Legalization/MM crowd wants pot legalized. If not then at least do not arrest people who smoke weed and have horrible diseases.
2. The Government believes in the status quo. They bring out the usual suspects, DEA, FDA, ONDCP to say that marijuana is not medically useful. We get to see a cop who really really believes that he is doing the right thing for society. The DEA talking heads tell us society is doomed without Prohibition.
3. The patients do not care why pot works, they just want relief, and to not be arrested.

All sides are presented well. The issue shows the suffering of the patients, the arrogance of the government, and the persistence of the movement.

I have blogged on Medical Marijuana before. Marijuana should be legal regardless of it's medicinal value. It should be legal because we are free and it is harmless. If it can not be legal for the populace then not arresting cancer, glaucoma, and MS patients is something we should all support.

The government arrogance would be shocking if not so typical. The feds never question the cause. There is more moral certainty in the DEA than in most religions.

The czars and bureaucrats are myopic in their quest to imprison Americans. Liberty is never seen as a useful alternative to prohibition. They truly believe they are protecting society. As Ronald Reagan once said- The nine most terrifying words in the English language are: 'I'm from the government and I'm here to help.'"

A highlight of the film is meeting some of the last patients in the Federal Medical Marijuana program. These patients smoke marijuana because a court decided it was a medical necessity. These patients receive pot from the federal government. The weed is grown at the University of Mississippi.

One scene that is sure to enrage the MADD crowd is watching a federal MM patients smoke pot while he drives down the street. These patients smoke medicine not to get high, but to function.

I challenge all pro drug war Americans to watch this film. These patients have life altering conditions. They can not function without pot. Why arrest them? What is the public policy behind incarceration of the infirm? Is the FDA's authority and the DEA's aims so perfect as to provide no exception?

I am changing my views on Medical Marijuana. I started off almost resenting the MM argument because I wanted the love of freedom to lead the way. Intellectual snobbery is a problem for Libertarians and I am no different. The sincerity and need of these patients has really changed my mind. This is an important issue on it's own merits. Beyond my free market ideas this is a human rights issue.

Incarcerating these sick Americans is criminal. Our laws are morally bankrupt. Our rights come from our Creator, not the DEA, FDA, ONDCP. It is time to end this horrible drug war.

I give this film a giant thumbs up. An important entertaining film.

Labels: Marijuana