Dallas Criminal Defense Lawyer Blog

Plano PD has lawyered up on the Tray B's DWI case. I filed an open records request seeking emails, communications, documents on any internal investigation, inter alia, to confirm or deny the story. The City of Plano is asking the Attorney General for permission to keep these documents secret. Allegedly, three officers conspired with Mr. B's wife to set him up for DWI.

The government always chooses the path of least disclosure. The City of Plano is no different.

When the story broke Plano City Attorney Dianne Wetherbee said the officers conducted themselves in an appropriate manner involving the incident. Now the City Attorney is pleading with the Attorney General for permission to keep these records secret. If, as Mr. Wetherbee stated, these officers conducted themselves appropriately then why not release the records?

I will report the truth. If these officers did nothing wrong the public (or at least those who read IWTS) will know they are wrongly accused.

The City of Plano implies that I may be an agent for Mr. B's attorney, Don Tittle. I have never met with Mr. B or Mr. Tittle. I am not using the open records process to subvert discovery. I am acting merely as an interested criminal justice commentator.

I respect the City of Plano's plea to attorney-client privilege. However, I find it sadly ironic that DWI enforcement officers are invoking their right to counsel. DWI enforcement has gutted Constitutional protections, including the right to counsel for the rest of us.

We need to strengthen open records laws and require disclosure in cases involving possible illegal acts by government. By destroying our Constitutional protections we are all in danger of government malfeasance. Open records are the public's last hope to keep the government... honest.

Labels: DWI, open records

DWI prosecution is a threat to freedom because it is an opinion crime. href="http://www.duiblog.com/2007/11/27/another-dui-supercop-2/">it is easy for cops to file false DWI charges, or unilaterally decide that a suspect is intoxicated and arrest. Combine the vague law with the "you must arrest more" propaganda we feed young cops and you have a recipe for injustice.

As a prosecutor and defense lawyer I have read the DWI Investigation and Prosecution Training Manual by TDCAA. Until today, I never read the intro. I was to learn that the author of the DWI manual agrees with my conclusion that DWI is an opinion crime.

The goal of this book is to serve as an aid to those prosecutors who face [DWI] in trial daily, to help them overcome the difficulties inherent in attempting to prove an offense that, at its core, is based upon an "opinion".

Actually, the goal of the book is help get convictions, not to see that justice is done. Notwithstanding the above statement an opinion crime is great for the State. There is no physical evidence to contradict and few, if any, unbiased witnesses to worry about. To make things easier we have eliminated the pesky 4th, 5th, and 6th amendments in DWI cases. More from the intro...

Most DWI cases do not involve "falling down drunks" who stumble from their cars and give breath samples that register at over twice the legal limit. Instead, most cases- if they include bad driving form the defendant at all- involve.... police stops in which a defendant performs, at most, three fields whose methods are hard to follow and whose scoring is an easy target for defense cross-examination. DWI prosecutors will most likely be trying cases where [the suspect on the videotape] does not sway, slur his speech, and wants to talk to an attorney before he decides to give a breath sample...

This is an important message to young prosecutors. Even if there is no evidence of intoxication that affects driving, or speech, or balance, you can use this training manual to get convictions.

The reason that the "methods" of "field tests" are "hard to follow" and are an "easy target for defense" lawyers is because SFST science is garbage.

Everyone agrees that "falling down drunks" who "blow over twice the legal limit" should not be driving. Unfortunately, we are targeting social drinkers who pose a threat to no one. This book helps prosecutors feel good about convicting citizens of an opinion crime.p>

After uncovering Austin PD warrant less surveillance deal with Austin Energy, I filed an Open Records request with Dallas PD.

Sgt. Randy Hooper of the Open Records unit reports that no such agreements exists for either Dallas PD or the Dallas County Sheriff. Your electric bills are safe, for now.

I don't know if this is a victory for privacy or freedom, but at least it is not a loss.

ABC news has a compelling and tragic story of Iraq War veterans struggling with drug addiction. The stress of combat, failure of prescription meds, and easy access to controlled substances (despite 70 years of prohibition) has turned some veterans into addicts.

I hope we treat the soldiers better than the average drug defendant. I challenge any drug warrior to argue for the arrest of these brave soldiers.

Not every American who is an addict is overcoming the stress of war. This story highlights that addiction is a disease with different causes. These soldiers deserve help and treatment, not jail.
Someday all addicts will be treated the same way.

Here's a quote from an injured hero-

Combat engineer William Swenson was injured on what
was to be his final mission in Iraq when his vehicle drove over a 200-pound
improvised explosive device. The blast injured Swenson's spine, and he developed
syringomyelia -- a condition in which cysts form on the spinal cord.

Swenson said a laundry list of prescribed painkillers was ineffective
so he turned to marijuana, the only substance that he said would numb his
physical and emotional pain. Swenson failed a drug test after testing positive
for marijuana as well as cocaine.

Godspeed to all soldiers fighting overseas, or battling addiction at home.

Some headlines... Cannabis May Prevent Breat Cancer From Spreading Sativex, A Cannabis Spray effectively treats pain The DEA admits that marijuana is medicine, only if you get it in pill form

I wonder how long the feds can argue that marijuana is not medicine when we will soon have two prescription drugs based on cannabis.

MEDICAL MARIJUANA, The Trojan Joint?
Medical Marijuana is a topic I have mixed emotions about. On one hand, I believe any movement that results in arresting less people for pot is good. One the other hand, I believe that Americans, as free people, should have the right to smoke what they want, regardless of medicinal value. Pot should be available for any use, recreational or medicinal.

Johnny Walker Blue is not medicine, it cures nothing. I still consume it, even though a side effect of drinking aged Scotch is intoxication. We ended Alcohol Prohibition without requiring that "medical alcohol" be legalized first.

Prohibitionists often argue that MM is simply a "trojan horse" to legalize cannabis funded by the evil George Soros. I have to plead guilty to that charge. I hope that MM will take away the stigma and fear around marijuana and speed up the inevitable legalization of cannabis. I have never met George Soros, but he should feel free to sponsor this blog.

The debate on cannabis is shifting. Medical pot is happening, Barack Obama has come out for legal medical use. Here is a great page of videos on all the canidates MM stances.

The debate over MM will end with legal prescription drugs like Sativex and Marinol available for certain "good" uses like pain management and fighting cancer, while recreational use is still banned.

Whereas, getting high is not recognized as a medical treatment, anxiety relief is. What separates taking Xanax to treat "anxiety" from smoking pot for a simliar purpose? Is it because the government (FDA, DEA) has not blessed marijuana for "anxiety" treatment. Is that really why we arrest 750,000 cannabis consumers a year?

I believe the arguments surrounding marijuana are moving towards an inevitable debate on the sovereignty of your mental state.

Who Owns Your Mental State?
Here is a recent video of John McCain trying to justify Prohibition. John implies that drugs, unlike alcohol, can not be used responsibly and therefore must be banned. He also states that while you can drink without getting drunk, drugs have this awful side effect- intoxication. Here is a great video of Bill O'Reilly throwing a hissy fit over the idea that you have any right to get "intoxicated."

The argument of Mr. McCain, Mr. O'Reilly and other Prohibition apologists is that the federal government has a higher claim to your sobriety than you do. You somehow need government permission to pursue "intoxication" on any level, and then only through approved substances.

The right to control your mind should be one of the basic tenets of freedom. Unfortunately we have accepted the paradigm that the FDA, DEA, and Pharma companies can and should have a monopoly on what you can do to your own mind.

I'm listening to an audiobook on Saint Thomas Aquinas, narrated by Chartlon Heston. I have never read Aquinas' greatest work, Summa Theologica. However, I did read the wikipedia entry.

Here is a summary of Aquinas' view of the law.

According to Question 90, Article Four of the Second Part of the Summa, law "is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated."

All law comes from the eternal law of Divine Reason that governs the universe, which is understood and participated in by rational beings (men and angels) as the natural law. The natural law, when codified and promulgated, is the human law.

In addition to the human law, dictated by reason, man also has the Divine law, which, according to Question 91, is dictated through revelation, that man may be "directed how to perform his proper acts in view of his last end," "that man may know without any doubt what he ought to do and what he ought to avoid," because "human law could not sufficiently curb and direct interior acts," and since "human law cannot punish or forbid all evil deeds: since while aiming at doing away with all evils, itwould do away with many good things, and would hinder the advance of the common good, which is necessary for human intercourse."

It should be noted that human law is not all-powerful; it cannot govern a man's conscience, nor prohibit all vices, nor can it force all men to act according to its letter, rather than its spirit.

Furthermore, it is possible that an edict can be issued without any basis in law as defined in Question 90; in this case, men are under no compulsion to act, save as it helps the common good. This separation between law and acts of force also allows men to depose tyrants, or those who flout the natural law; while removing an agent of the law is contrary to the common good and the eternal law of God which orders the powers that be, removing a tyrant is lawful as he has ceded his claim to being a lawful authority by acting contrary to law.

The idea that law today comes from Divine Reason, or Natural Law would be naive at best. Our laws are merely favors that the political class bestows on the those (lobbyists etc) that keep them in power. Quid pro quo has replaced natural law.

Thomas was right that law can not prohibit all vices. The idea that we can legislate morality is as misguided now as it was in 1274.

Obama gave a fairly candid account of his past "experimentation" with illegal drugs.

ABC News' Sunlen Miller Reports: Democratic candidate Sen. Barack Obama, D-Ill., spoke candidly Tuesday about experimenting with drugs while he was in high school at surprise stop at Manchester Central High School in New Hampshire. "I made some bad decisions ... You know, got into drinking and experimenting with drugs, there was a whole stretch of time where I didn't apply myself," Obama confessed to the study hall class.

This story is buried on the ABC news site which is pretty amazing. Barack is admitting to the commission of multiple felonious acts. The lack of media attention shows how the public knows that drug crimes and or drug use does not make one unfit for public office. So why is possession still a felony?

It is time we told the truth about drug use. Many Americans use drugs at some point in their lives and..... nothing happens. They move on and lead productive ordinary lives. Why do we continue a policy that would have made Barack Obama a felon at an early age?

The only thing that separates Barack and George W. Bush from your typical drug felon is that they did not get caught. It is time we saw Prohibition for what it is, as "unlucky lottery" too often "won" by the poor and politically powerless.

Closing arguments are an important part of any jury trial. After both sides present their witnesses and evidence we have closing arguments. The State gets two closing arguments- one before and one after the Defense.

From the TDCAA Publication "DWI Investigation and Prosecution" comes these exiting tips on the State's DWI close. In sum, we teach ADA's to argue that the defendant was on his way to kill somebody, even if there is no evidence to support that argument.

1. Blood on the Highway- The TDCAA manual tells prosecutors to "spend some time reminding them (the jurors) of the dangers of this offense. The case you are prosecuting may not have involved a crash but the thanks for that goes to the police officer who the skill and training to recognize the danger this defendants posed."

Basically, the State wants jurors to find the defendant guilty out of fear. Even if a defendant posed a threat to no one, act like he killed somebody and thank the police for stopping him.

2. Blood on the Highway Part II- "The defense is very likely to make light of the fact that his client was arrested for stepping off a line a couple of times... Ask yourself what difference it would have made if he missed the brake by an inch."

Even though field sobriety tests have never been tested to relate to driving impairment, argue it anyway. Again, another fear based argument. Ignore the facts, play to emotion.

3. Breath Test Refusal- "This defendant made a contract with the State of Texas. He promised that in exchange for the privilege of driving on our streets he would give a sample of his breath.... Now you know what his word is worth... that he is able to continue to put his pleasure above the safety and security of the rest of us."

Implied consent is not a contract. Contracts require two parties bargaining fairly. Implied consent was created and enforced by fiat. Did you give up your 4th and 5th amendment rights to drive? Should you have to?

This is a plea to collectivism. The defendant is to be shown as selfish for not worshipping the idol of Public Safety. Life, liberty, and the pursuit of Public Safety?

DWI has officialy achieved witch hunt status. Just like sex offenders, those convicted of DWI in Phoenix will have their mug shots and conviction information posted online. I guess the financial ruin is not enough we have to publicly humliate those convicted of an opinion crime.

Where are the pictures of those wrongfully arrested and acquitted? Why not post those photos?

Why not post the mugshot of officers who arrest the innocent? That would be a public service.

I wonder if this DWI offender website will start with George Bush's and Dick Cheney's photos? They were both convicted of DWI.

DWI laws are dangerous because we give officers to much discretion too arrest. Law enforcement discretion combined with an erosion of constitutional protections leads to injustice every time.

Freedom, liberty, and the now defunct Bill of Rights used to protect us from corrupt law enforcement. Today, criminal defense lawyers are freedom's last hope.

This leads me to the story of Tray B.. Tray was arrested by Plano PD for DWI. The Plano Star Courier reports that during Boswell's DWI trial, his criminal attorney Phillip, requested the cell phone records from Sarah B., Trey's wife. Trey and Sarah were going through a divorce. Child custody was an issue.

Phone records indicated that numerous phone calls were made between Sarah Boswell and the arresting officers Ron Michael Scott Copeland and Jon. The calls were initiated by both parties. Kress, Copeland and Britton claimed they had never met Sarah Boswell .

Court records state Copeland detained B without probable cause and issued two traffic citations. Phone records state on that day, at least four phone calls were made from Sarah Boswell to Copeland, despite their claim of never meeting before.

Tray filed a federal lawsuit after the DWI was dismissed. Don't believe criminal defense lawyers are freedom's last hope? Surely the government is policing the police and looking out for your rights? Here is a great quote from the Plano City Attorney, Diane Wetherbee.

Plano City Attorney Dianne Wetherbee said the officers conducted themselves
in an appropriate manner involving the incident."We will vigorously defend
them," While Diane is vigorously defending the officers, we should all be glad Phillip Linder was doing the same for Mr. B.

Kaufman County has the nicest county jail I've ever been in. It is new, clean, devoid of foul odors and has a great staff. If you have to do county jail time, do it in Kaufman.

Here is basic information on the Kaufman County Jail.

Where Is It?
1900 E. US Hwy. 175, Kaufman, TX 75142

View Larger Map

What are the Visitation Hours?
Male Inmates
Wednesday 7:00pm - 10:00pm
Sundays 1:00pm - 4:00pm

Female Inmates
Tuesday 7:00-10:00pm
Saturday 1:00pm - 4:00pm

Attorney visitation is 24/7. Just bring your bar card.

INQUIRY FROM PROBATIONER I received an inquiry from an Ellis County probationer recently. The probationer had been sent notice to appear at an "Adiministrative Violation Hearing." Allegedly this probationer had done or not done various thing in violation of the rules of probation.

Probationer told me that he was not allowed to have an attorney at this hearing. Probationer said if an attorney did appear then Probationer would be arrested. That didn't sound right to me.

I told probationer that he did have the right to counsel. I also filed an Open Records request to confirm or deny this allegation.

THE RIGHT TO COUNSEL?
I am sad to report that this is true. The Ellis County Community Supervision department sent me their "Notice to Attend Administrative Violation Hearing." This notice reads

"You may have attorney present, however, they will not be allowed to participate in these proceedings. If you would like a hearing before the Court so your attorney can speak for you, a motion to revoke your community supervision, motion to proceed to adjudication of guilt, and violation warrant will be obtained for you. Once in custody you will be able to participate in a hearing before the Court. Come to this administrative hearing prepared to answer truthfully about your violations...."

Get that. You can have a lawyer, but he can't participate. Also, come ready to confess.If you want your lawyer to participate then we will revoke your probation and arrest you. You can then wait in jail for your hearing. Probation violaters routinely have very high bail, if any is set. WHAT ARE PROBATIONER'S RIGHTS? A probationer enjoys the right to counsel at a Probation Revocation hearing. A person who has been convicted of a crime, is in prison or on probation still has a right against self-incrimination concerning statements that would incriminate him for some other offense.

Often times, probationers are charged with committing a new criminal offense. If the right against self incrimination and right to counsel have any meaning it should be to protect those accused of new offenses, even if they are on probation or at an "Adminstrative Hearing."

It appears that these "Administrative Violation Hearings" are used as intermediate step before a revocation hearing. That is not an uncommon practice. Many counties have dockets to address probationer's non compliance. However, Administrative Hearings should not be an end-run around the right to counsel.

TOO MANY PROBATIONERS
When I was a prosecutor I dealt with many pain in the a** non compliant probationers. Probation officers have a tough stressful job. It is not easy to rehabilitate drug addicts and career criminals. The answer is not to deny constitutional protections.

We have too many people on probation for consensual crime. If we only put real criminals on probation, we would have the resources to monitor, rehabilitate, and/or revoke them all.

DMN has a story on how Mexican drug cartles are using teenage hitmen to further their drug trade interests in the United States. Drug war violence, so long associated with Mexico, is coming to the USA, brought to you by the DEA. Grits For Breakfast does an excellent job breaking the story down (do you ever sleep Scott?).

The only way to stop these teenage hitmen is to put their bosses out of business. The DEA has had 35 years to put Mexican drug cartels out of business. They have wasted billions, incarerated thousands, and failed miserably to stop organized crime from selling drugs. When will we let the free market put these gangs out of business?

Last spring, the Marine base is San Diego rightfully began allowing soldiers 18 and over to drink on base. MADD chimes in with this lovely quote-

"When someone who is under the age of 21 gets behind the wheel, they just don't have the maturity and the ability to combine drinking and driving," says Pat Hodgkin of MADD.

Notice how MADD can not seperate social drinking from drunk driving. Hence MADD's decent into Neo Prohibiton. This explains MADD's stand on social host liaiblity, keg registration, and increased penalties for underage drinking.

If you are mature enough to make the decision to fight and possibly die for our country, you are mature enough to drink.

Pushingback.com, the government's official Prohibition propoganda site, is bragging about a recent rise in the price of meth. Allegedly, the street price of meth is up 73% since January.

It is unfortunate that all the gains in the price of meth are going to Mexican drug cartels. Prohibition creates a great reliable income and retirement for drug lords.

Our government is doing a great job ensuring windfall profits for organized criminals. We have given them a monopoly on the American meth market and outsourced production through a misguided ban on over the counter sudafed.

An increase in the price of meth reflects either a growing demand, smaller supply, or both.
At $244 per gram, drug cartels should reap record profits. Profits that will be used to corrupt our criminal justice system and fuel violence on the border.

What the pb.com crowd does not undestand is that an increase in price will produce more supply. It is not a victory in the drug war anymore than a rise in the price of oil is a victory against OPEC. At $110,000 a pound, meth will continue to flow unabated into American cities.

Labels: Pushing Back, War On Drugs

Austin American Statesman Calls It looks like the print media is picking up on the Austin Energy story. A reporter called to confirm IWTS was my blog. That was it. No interview, but with a blog I guess I'm really not needed for quotes.

Prop 13 passes- No Bail For Family Violence
The horrible Prop 13 passed by a huge margin. Judges can now incarcerate indefinitely those who are merely arrested for Family Violence. Voters again choose safety over liberty.

Family Violence cases are fraught with dismissals, affidavits for non prosecution, and false statements to police. When a "tough on crime" judge gets a hold of this new power, injustice will follow.

Vouchers Die In Utah
I was watching this vote carefully. Utah voters rejected school choice. The socialized education forces and teacher's unions defeated what would have been the first statewide voucher program in the country.

CATO hits the nail on the head and explains that vouchers are still public education. Vouchers simply let parents control the provider of education.

Ron Paul Breaking Records
Remember, remember the 5th of November. Ron Paul smashed fundraising records on 11/5, bringing in $4.2M in online donations. Freedom has no better advocate in the GOP. Republicans sold their small government soul for power. Only RP can bring them back.

Yes, you have to show up in court
I think the wonderful weather is affecting my clients. I have had a rash of last minute calls from defendants stating they can not make their court appearance. In Kaufman county you are required to appear for ALL settings. I can not get a "continuance" the morining of your hearing. If you can not get a ride, walk. Otherwise the Sheriff will provide you a free ride to jail.

News 8 Austin has picked up on the warrantless surveillance story. The media is going to the wonderful Debbie Russell of Texas ACLU for quotes (I'm not that hard to find guys). Here is what Debbie has to say-

"They have full access to the database and the question is, how are they using it?" Debbie Russell with the American Civil Liberties Union said. "They could have an 85-year-old lady growing African violets or something completely different, medical machines. It's a waste of resources," Russell said.

Here are some more embarassing statements from Austin PD.

The Austin Police Department would not comment on the record. They say they are waiting for a ruling by the attorney general about just how much information they have to disclose. APD did release a statement, saying, "Every case must go through the legal process where all tactics are reviewed. APD is confident that the measures it utilizes follow the law.”

Austin PD does not want to disclose any information, yet they are confident their surveillance program follows the law.

Question for Austin PD- If you are not doing anyting illegal, why not DISCLOSE THE INFORMATION! I thought privacy laws only protected criminals. We need a Patriot Act for government disclosure. Open records laws are not enough. Police have no need for privacy if they are acting honorably.

Labels: austin energy austin police, Marijuana, Search Warrants

KXAN has picked up on Austin Energy/Austin Police warrant less surveillance program. It's good to see the mainstream press involved. I hope they keep pressing until they get answers.

Next time an Austin Cop questions you, ask for a lawyer. That is what Austin PD did when asked about their Austin Energy customer data mining program. Here is the quote from KXAN

An APD representative agreed to talk to KXAN Austin News about using energy
usage information, but just before the interview, the agency got a call from its
attorneys, advising to refrain from commenting on the issue.

Disgraceful, yet sadly typical. Government always chooses the path of least disclosure. Austin PD is not different. Even more disturbing is the quote from Austin Energy.

"State law allows us to share information with other governmental entities, and
APD is, of course, a city department," said Ed Clark of Austin Energy. " And so,
really and truly, we wouldn't have a basis on which to deny information to them,
and on the other hand, we are interested in assisting them."

Only a bureaucrat, or a fool, could be proud of the disease, death, corruption, and mass incarceration caused by the drug war.

I can now confirm that Austin Police have access to Austin Energy customer usage information. The City of Austin, in response to my open records request, turned over an agreement titled "Utility Database Confidentiality Agreement." This agreement gives Austin PD the right to search Austin Energy customer information without a warrant.

Here is the history. I received an email from the NORML listserv. An Austin resident was concerned the police were using customer information from Austin Energy. Allegedly, Austin PD was using electricity bills to get search warrants for marijuana grow operations. I, along with ACLU Texas, filed open information requests to confirm this story.

The City of Austin withheld further information pending an AG opinion. For those who are not familiar with Open Records requests, Attorney General Opinions are often sought to delay releasing information.

The City of Austin claims they will not release further information because it would "permit private citizens to anticipate weakness in a police department, avoid detection, jeopardize officer safety, and generally undermine police efforts to effectuate the laws of the State."

It is a sad day for freedom when your power company become an agent for law enforcement. Is the danger from cannabis so great that we must give up our privacy?

The War on Drugs makes us all less safe and less free. Austin Police have 127 unsolved murders they could be working on. Instead they are wasting resources on indoor pot farms. Unplug your tanning bed and hot tub or else expect Austin SWAT to visit.

Labels: Marijuana, Police

Grits for Breakfast is hitting daily home runs. The pace and strength of GFB copy puts most blogs to shame. I can not understand why Scott Henson is not writing for a major media outlet. He inspires this blog on a regular basis. I should retitle IWTS "Grits for Lunch."

GFB posted recently on the economic forces behind plea bargains. His conclusion is that traditional negotiation models do not apply. Especially in cases where the defendant is in jail.

In my career I prosecuted mainly misdemeanors. In East Texas every Friday I had jail docket. We had a nice space in the jail where the prisoners could meet with us and we could "plea bargain." Most of the defendant's had attorneys. If not, they would sign a waiver. These defendants had been in jail anywhere from 14 to 30 days.

These inmates could not get out of county jail because either bail was too high or they had a "hold." A "hold" is a situation where an inmate has a warrant out of another county or parole (a parole hold is typically called a blue warrant.)

95% of these defendants would plead guilty during these jail dockets. Why?

First of all, we offered a lot of "time served" deals. For example, Joe Defendant gets arrested for DWI. Joe has been in jail 30 days and can't make bail. I offer Joe a sentence of.... 30 days. Joe pleads guilty and gets to go home.

Second, if we didn't offer you time served we offered probation. I knew most of the defendants would have a very small chance of completing probation. A common question during these "plea bargain" sessions was "Do I get out today?"

Anyone who has been stuck in jail for 30 days will plead guilty to get out. Out of a year of defendants I maybe had one who insisted on going to trial, and I think he ended up being incompetent. Even the defendants who rejected my initial plea offer would beg to plead guilty when I came back next Friday. People stuck in jail want out.

On a side note- When I was in Wichita Falls as a public defender the State would offer every misdemeanor inmate time served, but they would double the amount of time to look "tough in crime." For example, Joe Defendant who had served 30 actual days in jail would get a sentence of 60 days, and the State would give them credit for 60 days. I was told that the DA used these sentences as campaign material.

Labels: Plea Bargains

I routinely get phone calls on Expunctions. There seems to be a lot of bad information floating around so let's start with the basics.

Expunction is the process of having records of arrest permanently hidden from public view. Failure to obliterate an expunged record is a class B misdemeanor. Yes, the law actually requires that expunged records be "obliterated."

If your record is expunged you can actually deny ever being arrested (unless you are on the stand in a criminal case).

Are you eligible for an expunction? That's a tough question. Call me and we'll talk about it. Here are some general rules for Texas expunctions.

Misdemeanor Expunctions- To expunge a misdemeanor you can not have received a final conviction OR received community supervision. Deferred adjudication cases can not be expunged. That's not all, you can not have any felony convictions in the 5 years prior to arrest and you can not have plead to another charge arising out of the same criminal offense.

Confused?

Here are some hypotheticals-

1. Quincy is arrested for Possession of Marijuana. Quincy pleads guilty and receives deferred adjudication probation for 12 months. Quincy completes probation and there is no finding of guilt.

Quincy wants to expunge his record of the POM arrest and case. Can he?

No. He was placed on probation. Even though it was deferred and no finding of guilt was entered.

2. Paris gets arrested for DWI. Paris reads this blog and refuses to take any field sobriety tests. The State drops the DWI and Paris pleads to "Obstructing a Highway" as part of a plea bargain. Paris wants to expunge the arrest for DWI?

Can she? Nope. The "Obstructing a Highway" case is out of the same criminal episode.

3. Finally, Morpheus is arrested for Assault Family Violence. A year earlier Morpheus pled guilty to Possession Of Methamphetamine and got 6 months in State Jail. Morpheus sets the Family Violence case for trial and it is dismissed when the victim does not show up.

Can Morpheus get the Assault Family Violence expunged? Nope. He has a felony conviction within 5 years of the Assault Family Violence.

As you can see, expunctions are not easy to get. However, expunctions have a little known relative the Motion for Non Disclosure that can be useful. We will discuss MFNDs in the future.