Dallas Criminal Defense Lawyer Blog

I recently filed an open records request with the Texas Department of Public Safety. I asked for all videos used to train officer for DWI enforcement. I received one DVD. Here is my review of DWI, The Movie.

This film starts off by telling officers that "The Research has shown" that there is a good chance a driver is DWI if he exhibits one or more of these signs while driving- Driving Too Slow, Braking Too Soon, Braking Too Fast, Braking Too Late, Weaving In a Lane, Weaving out of a lane, Turning Too fast, Turning Too Wide, Parking Too Far from the Curb, Turning Without a Signal, Making Illegal U Turns, inter alia.

In sum, nearly every moving violation is a sign of DWI.

To reinforce this idea the video constantly talks about "The Research" that backs up these findings. "The Research has shown" is a constant phrase throught the film. What the video does not state is the research is flawed, biased, has never been subject to peer review, and has only been evaluated by the Government. It is not "research" it is government propoganda disguised as science.

This training video lies to officers. These lies give the moral certainty needed to arrest driver's who are not intoxicated. "The Research" says it must be done, we can not disagree with "The Research".

Common sense tells us this "research" is false. Look at the traffic violations listed as signs of intoxication. How many of those traffic violations have you committed this year? How many times were you intoxicated? Yesterday I parked too far from the curb. I must have been completely intoxicated!!

This video helps explain the illogical testimony I often get from troopers. For example, officers often testify that a defendant's speeding is a sign of intoxication. However, the same officer will then admit that over 99% of speeders are NOT intoxicated.

An officer who will claim that speeding is a sign of intoxication will also never admit the opposite- that the absence of moving violations is a sign of sobriety. Why? "The research" didn't say that and we do not teach logic 101 at DWI school.

DWI is an opinion crime based on junk science. I give DWI, The Movie an F-. It is however, a must see for anyone concerned with the loss of liberty in an age of Neo Prohibiton.

Labels: DWI, Police

Client interviews are an important part of criminal defense work. When I first meet a potential client I spend a good amount of time going over the events that led to arrest. Police reports are only going to tell me that some cop thinks my client is guilty. I want to know my client experienced.

I always tell my client's that I do not care what they did or did not do, if they use or sell drugs, drink and drive, write bad checks etc. I only care that they answer my questions honestly. Proper defense work requires some degree of attorney client-cooperation.

When I was a public defender I noticed that defendants had a hard time opening up. I blamed this on the fact that the defendants saw a public defender as another government employee. That as a public defender I was part of the system or working with the State.

I had to convince these indigent defendants that as a public defender I was not only a "real lawyer" but I was their lawyer.

In private practice I think that less than complete answers come from two main factors.
1. Embarassment
2. An erronneous belief that if I will not fight as hard if I know you are guilty.

I have stated earlier that I do not determine guilt or innocence. My representation is the same if a defendant believes him/herself guilty or not. Only judges and juries pronounce guilt. My job is to get the best result and to help my client make important decisions.

It is much harder to represent a client with bad information. If a client misrepresents facts it can waste valuable investigation time. Unlike the State who has armies of officers, investigators, and assistants; defense lawyers have limited resources and time to investigate.

Trust your defense lawyer. If he/she asks you a question, there is a reason. I know you are embarassed and you would rather not be in my office reliving your arrest. However, at this point we have to fight this case and I can't fight anything without your help.

Remember- If a cop ask you a question about the facts of a criminal case- Ask for a defense lawyer. If a defense lawyer asks you- tell him the truth.

I got a call from a "State Trooper Benevolence" association asking for donations. They told me that for my donation I would get a sticker that identified myself as a supporter of state troopers.

First of all, as a Texas taxpayer and occasional speeding driver I already support the State Troopers. I should have dozens of stickers by now. Second, the idea behind the sticker is that you expect the police to let you go for speeding. The only way to get out of tickets is to be a trooper.

I need to start a telephone campaign for the wrongfully convicted, or for victims of Cannabis Prohibition. Unfortunately no one would want that sticker. A bumper sticker for the "Victims of Cannabis Prohibition" would probably be considered probable cause to search.

Labels: Police, Tickets

To see how Prohibition makes you less safe take the IWTS prohibition inmate challenge.

1. Go to the Texas Offender Information Website.
2. Type in a common name, or your name.
3. Compare the sentences between drug offenders and violent/sexual offenders.

For today's example I typed in "John Smith".

John Dirk Smith was sentenced to 11 years for 3 counts of Indecency with a child and 3 counts of sexual assault.
John Daniel Smith was sentenced to 10 years for 2 counts of delivering GHB.
John Ray Smith was senteced to 10 years for Attempted Murder and Agg Assault.
John Wesley Smith was sentenced to 25 years for delivering Cocaine.

Who do you want locked up? John Dirk Smith will have to be released so we can keep John Wesley Smith behind bars.

The War on Drugs makes us less safe by wasting criminal justice resources on victimless crime. Just ask John Smith.

Labels: War On Drugs

I recently filed an open records request with the Wylie Police Department.. I asked for any and all training materials for DWI and Speeding enforcement, including any local procedures used by Wylie PD.

Like many government agencies the Wylie PD has chosen to stonewall my efforts and requested an Attorney General Opinion. No surprise there.

Here is the reason given by the Wylie Police Chief- Jeff Butters.

"The release of the Wylie Police Department's DWI Arrest Procedure would
interfere with Wylie's law enforcement and crime prevention. Release of the
Information requested would give people insight into our procedures, which would
put officers at a disadvantage in a situation regarding: DWI enforcement....searches, arrest and detention, including but not limited to, placing the officer's life in danger. In addition the Information relates to policies and procedures which are different from those commonly known with law enforcement and crime prevention."

The suprise is that this response was filed after two Wylie police officer's swore under oath that NO SUCH DOCUMENTS EXIST!

The last thing we need with DWI enforcement is secret enforcement techniques. DWI is already the greatest threat to liberty outside of Prohibition. DWI is an opinion crime littered with junk science. To allow the police to make up new local arrest procedures and keep them secret from defense lawyers is unconscionable.

Wylie PD should quit stonewalling and release their local DWI enforcement practices. They are not above the law when it comes to Open Records requests.

Labels: DWI, Police

I posted earlier on a possible deal between Austin Energy and Austin Police. Allegedly Austin Energy was providing electricity bills to the Austin Police. Austin PD was allegedly using this information to hunt for marijuan grow houses.

I could not confirm this story. ACLU of Texas sent an open records request to Austin Energy to find out if there is any truth to this rumor. I have sent a similar request to Austin PD.

ACLU Texas is an important force in the war on Prohibition. I'm glad they are investigating this story.

The police have no business arresting marijuana consumers. The police have no business going through electricity bills to find cannabis producers. I hope the story turns out to be false. However, I am not hopeful.

Fellow Texas Tech alum Karen Tandy has resigned from the DEA after 4 years of complete and utter failure. She will join Motorola as their public policy vice president.

Amazing coincidence!Motorola is also the chief sponsor of the DEA museum. I will never buy another Motorola product.

Let's look at Karen Tandy's sorry tenure as DEA chief

• She helped outsource Meth production to Mexico which resulted in purer cheaper Meth and more death and violence on the border.
• In the age of terrorism her agency wasted at least $10 Billion tax dollars prosecuting over 120,000 for consensual crime.
• She helped destroy the tenth amendment by arresting medical marijuana providers and patients in states where MM is legal.
• Her organization helped ensure windfall profits for organized criminals which are used to corrupt our criminal justice system.
  

Goodbye Karen. If you help Motorola half as much as you helped Mexican drug cartels you will be a huge success.

Labels: DEA

Pushingback- "If we accept addiction, the addicts win" Pushingback.com is outraged at the idea of a safe injection clinic in San Francisco. They even borrow some War on Terror rhetoric. If we accept addiction, and quit arresting users, the addicts win.

Bertha Madras, deputy director of demand reduction for the White House Office of National Drug Control Policy, called San Francisco's consideration of such a facility "disconcerting" 'We accept drug addiction, we accept the state of affairs as acceptable,' Madras said. "This is a form of giving up."

Pushingback has the audacity to champion the virtues of drug treatment. When the DEA kicks in your door it is not to take you to treatment. When your assets are seized in federal court they are not used for rehab.

Dallas Officer Shot Serving Warrant On Millionaire Meth Dealer

DMN has a follow up story on a Dallas SWAT officer who was shot serving a warrant. The warrant was for Clayton "C-man" Sharpless. Apparantely "C-man" was part of a multimillion-dollar methamphetamine and cocaine distribution ring.

Federal prosecutors have charged Mr. Sharpless and about a dozen others with conspiring to distribute at least 500 grams of methamphetamine and more than 5 kilograms of cocaine. The indictment also seeks a judgment of $16.38 million that authorities say the defendants have collected during their dealings.

Any corporation would easily put "C-Man" and other organized criminals out of business. However, we have chosen cop shooting felons as our suppliers of meth and cocaine. Why do we give multi million dollar monopolies to criminals like "C-Man"? We can choose new suppliers at any time.

Ron Paul Introduces "Freedom Agenda" Bill
This Tuesday, Ron Paul introduced House Bill 3835, to "restore the Constitution's checks and balances and protect against government abuses as envisioned by the Founding Fathers". The bill outlaws tortue, illegal evidence, and protects jounralists, inter alia. Read it, Support it, Call your Congressman and make the vote for it.

Timely Debates from Business Week
Business Week has a great series of debates available for download. Here is Internet Gambling Here is Universal Health Care

The Kaufman County Bar met for lunch today at the courthouse. We have a great group of local attorneys. It is a pleasure to work with them. I need to attend more local bar meetings. I end up forgetting too often.

Today we watched a video on lawyers and depression. I can understand why lawyers would get depressed. The practice of law can be very stressful.

Think of the worst thing someone could do to you. Take away your kids or take away your freedom. My job is to take your worst problems, and make them my problems.

Stress also comes from the lack of control we have over final decisions. My contract for services states that no outcome is guaranteed. The reason is that I never know what a judge or jury is going to do.

Finally law is a business. Bills need to be collected and paid. Clients need and deserve prompt attention. The government has never ending demands for money. All of this can add up to stress and depression for attorneys.

Here is a disturbing email I received from the NORML list serv. An Austin citizen is concerned about the police using electricity bills to justify home invasion searches. I'm trying to verify this story, until then here is the email.

I live in Austin Texas and the police have signed an agreement with the local utility company Austin Energy. They now have their own account login that they use without getting a subpoena. The narcotics department is using this to data mine the utility records for high utility usage. This in my opinion is a warrant less search. This is enough for them to get search warrants for those residents looking for marijuana indoor grows. They have performed dozens of raids based on this and are ramping up and expanding their task force due to the massive amounts of properties and $$$ seized in the raids. They are now getting the DEA involved which is splitting a slice of the pie because they have a lot less oversight and the overwhelming negative odds of winning at the Fed level.

Think the war on pot only affects cannabis consumers? When the police raid the wrong home, citizens die. When the police steal private property, freedom dies.

I think the market is missing an opportunity here. I want to open a line of "Freedom" businesses. For example, "Freedom Bank" would fight Patriot Act requests and make privacy a foundation of the institution. "Freedom Cell Phones" would also fight federal attempts to subpoena information. Or at least make those attempts public. "Freedom Electricity" would keep local law enforcement from looking at your light bill. It's none of their business. Now I just need some investors....

Labels: Marijuana, Search Warrants, War On Drugs

As part of the jury selection process I often ask potential jurors if they have ever driven after drinking. The vast majority of potential jurors answer yes.

The truth about DWI is that most jurors have committed DWI in their past but did not get arrested. They only difference between them and the defendant is luck.

When I inquire into the reason they chose to drink and drive most will say they were "young and stupid." I often wonder at why jurors are so ready to ruin the lives of defendants who are on trial for DWI, when they have committed the same crime themselves.

How would the lives of these potential jurors would have been impacted by arrest, loss of the right to drive, thousands of dollars in fines, fees, and court costs, and being placed in the criminal justice system?

Labels: DWI

I went to trial today in Collin County. We actually went from voir dire to closing argument all in the same day. Very efficient, but also very tiring.

The Collin County courthouse is aesthetically indifferent. It does not strive for courthouse grandeur. It is content in its functionality. The outward appearance is what I would describe as bureaucratic apathy.

The inside of the courthouse is highly functional. The courtrooms have a great set up for laptops at the counsel tables. I could access the internent and play videos as needed for the jury as needed. The jurors were well positioned and the witness stand had a good central location. Microphones for the judge and witnesses maintained good acoustics.

On the downside the courthouse needs more bathrooms. They are all located by the entrance. It can be a long walk during trial. I also could not find any coffee.

Overall, I give the Collin County courthouse at B-.

In order to balance the budget a few years ago the Texas Legislature instituted an oppresive and regressive tax scheme called the "Driver Responsibility Program". The DRP issues "surcharges" (taxes) ranging from $200-$2000 for various traffic offenses.

So far, the program has taxed $900M, and collected ....$300M. Not paying the "surcharge" results in a driver's license suspension. Driving without a license is a separate offense that can result in jail time (after 9/1/07 it can be a class C misdemeanor). In essence, we have created a new debtor's prison for drivers.

Senator Steve Ogden, R-Bryan, who sponsored the legislation, said the massive noncompliance with the surcharges exemplifies a "big problem" for state government. "If we could only collect all the fines and fees the state is owed, we could cut taxes because we would have a lot more money than we have now," he said.

Mr. Ogden failure to grasp the obvious is typical for a politician. The "fines and fees" are taxes. If you collected them you would not be cutting taxes, merely shifting them. The "big problem" for state government is the failure to cut spending.

What Texas really needs is a "Government Spending Responsibility Program." Instead we pimp out the criminal justice system to raise money.

It looks like I will keep the blog name, at least for now. Therefore, I feel the need to give out my resume. I do not want to create the impression I was a career prosecutor or trying capital murder cases for the State.

After law school my first job was.... with the Public Defender in Wichita Falls. Then I spent a year at the Bowie County DA, and another at the Kaufman County DA.

I have been in private practice for 18 months.

I was the State, but not for long. I was the only misdemeanor prosecutor in Bowie County (Texarkana). I was the Chief Misdmeanor DA in Kaufman County.

Full disclosure being achieved. I can keep IWTS until I think of something better.

An 18 year old Stephen F. Austin student died Sunday night of alcohol poisoning. Despite years of MADD propaganda and tough underage drinking laws Nikloas Gallegos still chose to consume alcohol. Texas law does not stop young adults from drinking, only from drinking responsibly in public.

MADD likes to argue that the 21 drinking age stops drunk driving. MADD should acknowledge their role in causing deaths from binge drinking.

When you are under 21 you have a tendency to treat every party with booze as your last. Instead of legislating alcohol abstinence we need to allow young adults the freedom to learn to use alcohol responsibly.

MADD is a strong proponent of age discrimination. To MADD 18 year olds are an underclass of adults who lack the ability to use alcohol. MADD's "Why 21" site MADD explains to young people why is necessary to criminalize their alcohol use.

MADD uses a tried and true method to justify age discrimination- brain science. In 1850 Robert Knox wrote that the "dark races" suffered from a "lack of quality" in their brain. What Mr. Know did not know is that his book, "The Races of Man" was at the forefront of a movement that sought to justify everything from Eugenics to Jim Crow laws with science.

MADD seeks a similar neurological foundation for tee totalling totalitarianism.

A person’s brain does not stop developing until his or her early to mid-20s and adding alcohol to the mix is a recipe for disaster.The brain goes through dynamic change during adolescence, and alcohol can seriously damage long- and short-term growth processes. Frontal lobe development and the refinement of pathways and connections continue into the mid-20’s.

MADD's army of researchers may know a lot about brains, but they have little knowledge of reality. The vast majority of Americans drink before turning 21 and ....nothing happens.

Fear based "research" should not be used to criminalize behavior. Freedom exists independent of lab results. MADD is only the latest in a sorry history of science based discrimination.

Labels: MADD

Most criminal cases still end with a Plea Bargain. In order to accept a plea bargain you must sign various documents. Most of these documents detail the crime you are charged with (range of punishment etc) and the rights you are giving up.

As a society we are used to ignoring forms and just signing what in front of us. Unlike the recent Mastercard you signed up for plea papers are a little more important. Today we are going to discuss a typical waiver of rights.

Remember the Bill of Rights? Before you accept a plea bargain you must waive it.

Right to Remain Silent- By pleading guilty you are giving up your right to remain silent. At the very least you are going to say "guilty".

Some prosecutors require defendant's to sign a "Judicial Confession." A JC is basically the indictment copied verbatim with a spot below for the defendant to sign. This has always seemed redundant. You confess to committing the same offense you are trying to plead guilty to.

Most judges ask- "Are you pleading guilty because you are guilty and for no other reason." This is a trick question. We all know that one of the reasons defendants plead guilty is because they want to accept the plea bargain. If the State was offering 20 years in jail instead of probation you would not plead guilty. However, when plea bargaining we like to pretend that the decision to plead guilty is made in a vacuum.

Right to a Jury Trial- Plea Bargain= No Trial. You had the right to make the State come to court and actually prove you did what they say you did. By pleading guilty you remove that burden.

It is well know that if every criminal case were set for trial the criminal justice system would shut down. That will never happen (see the Prisoner's Dilemma).Plea bargains make it possible for the State to move many more cases that it could ever try.

By giving up the right to trial you also give up the right to testify, cross examine the State's witnesses, and call witnesses. No trial, no witnesses.

Right To Appeal- If you had lost your trial you could have appealed to a higher court. In Texas we have a form telling Defendants that in a plea bargain you have no right to appeal. I usually sum this up by telling clients, inter alia, "After today your case is over."

MADD feigns outrage to the Department of Justice report on racial profiling. MADD only opposes racial profiling because it is a roadblock (pun intended)to universal implementation of their beloved sobriety checkpoints, inter alia.

As MADD works to enact these lifesaving efforts through effective legislation, we encounter resistance from representatives and constituents concerned that these laws will give some law enforcement officers another opportunity to engage in racial profiling.

MADD's "good" constitutional violations are being impeded by a "bad" constitutional violation.

You can't have it both ways. MADD fights for racial profiling every time it champions weakening the Bill of Rights to "stop drunk drivers".

MADD proposes more data collection to fight racial profiling. A more transparent police state will not protect you from government abuses. Freedom protects you from government.