Dallas Criminal Defense Lawyer Blog

Ken Sparks, from the Colorado County DA's office was kind enough to quickly respond to my open records request (Thanks, Ken!). Although I may disagree with my prosecutor colleagues on the issues, it is more often than not that we can work together. If only City Attorneys were as cooperative on open records requests.

The TDCAA thread on forced blood draws is becoming a self congratulatory orgy. What is missing in this discussion is whether these forced blood draws are being used merely to convict, or if justice is being done.

Barring an injury accident, Texans have the right to refuse blood/breath testing. These prosecutors are making an end run around the legislative process with these warrants. But I digress.

Here is a comment by "Greg Davis"-

Collin County will be conducting another no-refusal weekend this weekend to
coincide with the Super Bowl. We've lengthened the effective time periods to
7:00 p.m.-5:00 a.m. after consulting with our agencies and the Tarrant County
DA's Office. We'll be using a fax/email system to communicate with our judges,
and we've streamlined the affidavit so that officers can fill in the blanks and
complete it in less than 10 minutes. We anticipate 10-20 blood draws from the
participating agencies. It's good to see that other counties are pursuing this
type of DWI enforcement. It would be good to see a state-wide no-refusal weekend
in the near future.

Another county using "fill in the blank" affidavits for warrants. A fax/email system to communicate with "our" judges. How convenient. If these drivers are so "intoxicated" why are these forced blood draws necessary?

I filed an open records request to learn more about this Super Bowl no refusal weekend. I'm expecting the usual AG request delay tactics. The public should be aware that these self described "cutting edge" prosecutors are making an Orwellian farce out of our constitutional protections. My advice- watch the Super Bowl at home, or in Dallas County.

Finally, Don a brave reader from Levelland has jumped onto the TDCAA message board and voiced his concerns. Good job Don! Let your elected DA know that you do not stand for these forced blood draws.

As free people, the contents of our veins should not be subject to a search warrant. However, the tyranny of good intentions that is MADD/DWI prosecution has convinced the public that forced DWI blood draws will keep us safe. Ergo, forced blood draws are becomming a sadly common practice.

The TDCAA message board has a recent thread on forcibly extracting DWI blood samples. Here are some comments from blood lusting prosecutors. Each paragraph is a seperate prosecutor.

In Colorado County we do a blood test on all refusal cases and have done so for
several years using a fill-in-the-blank search warrantr form that has worked
really well. There is a backlog of cases awaiting results from the DPS lab, but
it is well worth the wait.

My judges are getting a bit tired of being jolted out a sound sleep but they are still very cooperative as well....We had a "No Refusal" weekend a couple of weeks before Christmas. We jointly sponsored it with our local MADD chapter. Good results and great PR!

Imagine how it would work if every DWI suspect (felony or misdemeanor) was required by statute (as is true in most states) to provide a sample. It would put an end to the misleading claims by defene lawyers that a defendant has a "right" to destroy physical evidence of intoxication. Of course, those lawyers know that the privilege against self incrimination applies to words, not blood. Furthermore, the constitutional protection against an unreasonable search is not violated by a warrantless seizure of blood based upon a probable cause arrest for DWI -- because the delay caused by getting a warrant provides time for the loss of evidence as the body absorbs the alcohol.

We were lucky enough to have the cooperation of all our LE agencies, local judges, and hospital ER/lab to make this work. The judges rotate being on call (at home, with a fax machine) and our local hospital staff is trained on

Do we want "cooperative" local judges who sign "fill in the blank" warrants? This Orwellian Criminal Justice Theatre makes a mockery out of our constitutional protections.

The 3rd quote is from John Bradley, the elected DA in Williamson County. He proposes that no warrant is even needed for a blood draw. After all, this "Evidence" is being destroyed in the defendant's bodies. What is sad is that our Constitutional protections have been eroded to the point where he may be right.

These DWI blood draws make convictions easier to get which seems to be the new duty of Texas prosecutors (to convict/get good PR). You had the right remain silent, and the right to be secure in your person from unreasonable searches, and the right to counsel. Those antiquated rights have been replaced with the new right to have your blood forcibly removed by the State.

Labels: DWI, Search Warrants

Prohibition will never work. The War on Drugs will always be a failure. There is no clearer signal than the continued prescence of narcotics in prison. If we can not keep our prisons drug free, there is no hope for a free (or formerly free) society. A mature perspective would be to accept adult drug use and end Prohibition.

Until then we will have stories like this. Two jail guards in Liberty County Texas were arrested for conspiring to deliver marijuana and excstacy to a federal inmate.

What would cause two jail guards to become drug dealers?

Money. Demand for drugs will always create supply by raising prices. When prices are high enough even law enforcement will sell drugs. Prohibition creates an artificially high price for drugs and limits the producers to criminals and corrupt cops. These two guards are not merely bad apples, they are a predictable externality of Prohibition. Ergo, when you choose Prohibition you are choosing to corrupt law enforcement.

When I was a prosecutor in East Texas we had a problem with drugs in our county jail. I would have inmates on the "jail chain" plead guilty and accept probation. Often these inmates had been in jail 30 days or more. Guess what? Many would fail their first drug test. The speculation was that trusty inmates who worked outside of the jail found a way to smuggle drugs in. Right.....

When drugs are legalized this corruption will end. We will win the drug war by choosing new suppliers, not by building more prisons.

Many of you want to know more about Texas Open Records. My open records 101 details the process I use to get open records. In an effort to further educate the public, and train more citizens to pursue open records, I have cut and pasted this FAQ from the Texas Attorney General.

What is the Public Information Act?
The Public Information Act, formerly known as the Open Records Act, is located at chapter 552 of the Government Code. The Act provides a mechanism for citizens to inspect or copy government records. It also provides for instances in which governmental bodies wish to, or are required by law to, withhold government records from the public.
What types of records are subject to the Public Information Act?
Any information collected, assembled, or maintained by or for a governmental body is subject to the Public Information Act. The format (paper, electronic, microfilm, etc.) of the record does not affect its status as a public record.
What is a "governmental body"?
For purposes of the Public Information Act, the term "governmental body" encompasses all Texas public entities at the state and local levels. It does not include the judiciary. Private entities may be considered governmental bodies if they are supported in whole or in part by public funds or they expend public funds. The Public Information Act does not apply, however, to private persons or businesses simply because they provide goods or services under a contract with a governmental body.For purposes of the Public Information Act, a governmental body includes all governmental entities with the exception of the judiciary. In addition, some non-governmental entities that receive public funds are considered governmental bodies. -->
How can I request records of the judiciary?
Many court records are available for inspection or copying at the court clerk's office. However, records of the judiciary do not fall under the Public Information Act. To request records of the judiciary, the request must be in writing and must be addressed to the court's custodian of records. For more information about requesting and withholding records of the judiciary, click here.
How do I make a public information request?
The request must be in writing and must be addressed to the governmental body. While the request does not need to be addressed to any particular person, it is a good practice to clearly label your correspondence as a "Public Information Request" or "Open Records Request." Requests sent via fax or email must be addressed to the public information officer or to the person designated by that officer to receive such requests.
What should I say in my public information request?
No "magic language" is required to trigger the Public Information Act. You should, however, make the request as clear and as specific as possible. This will enable the governmental body to identify exactly what information you are requesting.
How long does the governmental body have to respond to my request for information?
The Act provides that a governmental body must respond "promptly" to a request for information. If a governmental body is unable to produce the requested information within ten business days, the officer for public information must send you correspondence certifying that he is unable to do so and he must set a date and time when the records will be available to you.
May a governmental body ask me why I want the records?
No, a governmental body is forbidden from inquiring about the purpose for which the records will be used. However, if a request is unclear or very broad, the governmental body may ask the requestor to more clearly identify or narrow his or her request. Additionally, a governmental body may require additional identifying information to determine that the requestor is eligible to receive certain types of information.
When may a governmental body refuse to release the information I request?
If the information you request falls within one of the exceptions to disclosure found in the Public Information Act, the governmental body may refuse to release the information while it seeks an open records decision from the Attorney General. Unless the governmental body has a previous determination from a court or the Attorney General regarding the precise information requested, a governmental body cannot determine on its own to withhold information.

To recap- I filed an open records request for any local DWI enforcement materials developed or used by Wylie PD. At trial two officers testified these materials did not exist. Through an open records request I learned that not only do such materials exists, but the City tried to withold them claming-

Release of theInformation requested would give people insight into our procedures, which wouldput 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."

Today I received those materials. Basically Wylie put together a 6 page outline on how to handle a DWI arrest. It contains mostly basic DWI 101 material.

WARNING- WYLIE POLICE OFFICERS MAY DIE IF YOU READ THIS.

The statement from Wylie PD's attorney contains many lies, the two most obvious are that these procedures are somehow different than those commonly known, the second is that officer's lives will be threatened. Hyperbolic boilerplate fabrications seem to be the norm in Open Records requests.

I should change my FOIA request letters to match the garbage these City's Attorneys put out. Maybe something like "Million of children may perish, the Moon may explode, and puppies will be tortured if these records are not released within 24 hours!!!!"

The City of Austin finally turned over their records on the Austin PD/Austin Energy Warrantless surveillance program. To recap, Austin PD has a deal with Austin that gives Austin PD access to customer electricity usage information. I filed an open records request for information on the program. Austin PD fought the request by asking for an AG opinion. The AG ruled for disclosure. Today I received the materials from the City of Austin Law Department.

What I Received
I received a list of email addresses for city employees (I'm not really sure why), the Austin Police's customer service agreement with Austin Energy (to provide electricity, not customer info), and a copy of the Austin PD Organized Crime Division Operation Procedure Manual.

The Procedure Manual is eight pages long. The city redacted all but two sentences. The still sent me 8 pages though, with a nice big "redacted- not responsive" stamped on each page to highlight their power of non disclosure.

The Two Sentences
Here is what the City of Austin fought to keep secret. Here is the information that would "endanger officer safety" if released. Drum roll..........................

"Assigned Personnel will use investigative techniques to include.....
F. Check utilities at reported location."

Tax Dollars At Work?
That's it. Austin PD, though the City of Austin Law Department, wasted tax dollars to fight the release of those two sentences. The City told the Attorney General that releasing those two sentences would "endanger officer safety." Is anyone else insulted by such fraudulent arguments? The City of Austin's Law Department is making a mockery of open records and law enforcement such sorry arguments.

No Program Exists
Sometimes what you don't find in an open records request is as important as what you do find. In this Austin PD has no program for this warrantless surveillance. Their is no oversight, no reporting of searches, no suspicion needed to search, nothing. Austin PD has unfettered access to your personal information with no policy as to how, when, or why the information can be accessed.

If an officer is getting divorced and wants to check his spouse's utility bill then he can. Want to see if you neighbor's house is energy efficient? Call Austin PD. Law enforcement discretion rarely goes without abuse, even seemingly benign powers like utility bill searches.

The Harris County DA is in turmoil for a number of recent events. One being an email that mentioned problematic "Canadian" jurors. This email was sent between Prosecutors. "Canadians" being a code work for African Americans.

I filed an open records request to the Dallas District Attorney's office to see if there had been any mentions of "Canadians" in their email. Specifically, I asked for any emails sent by any attorney that had the word "Canadians" in it.

The response from the Dallas office- We can't search our own email.

Really? You don't have Google desktop? ">Dallasites spend millions of dollars yearly for government technology that can not perform a simple search? No wonder so many innocent people are convicted in Dallas County.

Terrell is the most recent Texas city to adopt red light cameras. I filed an open records request to learn more about this revenue generation scheme.

"Life and Death Realities"
Government PR 101- To quash dissent about more taxes/less freedom, talk about saving lives. Check out the "warning letter" that will be sent out to drivers.

"we know you appreciate the true life and death realities associated with following the rules of the road. Since so many crashes occur as a result of running red lights... Not [following traffic laws] leaves the City no other option than to follow the traffic code's enforcement provision, which can include a civil penalty of $75.00 to $150.00."

Get that? Don't you appreciate life? The City has "no other option" but to use these cameras. You would have killed somebody if we did not send you a ticket for $75.00 to $150.00. You are lucky we didn't arrest you for attempted vehicular manslaughter!

Innocence is NOT a Defense
This new traffic law makes the RO (registered owner), not the actual driver, financially responsible for these red light fines. What if you weren't driving the car? Just read this email from Redflex (the camera company) recapping a meeting with the city.

"A person will not be afforded the option to identify another individual as the driver at the time of the violation. The RO is responsible for the violation."

A new low for criminal justice- Guilt by car ownership. There is a defense for funeral processions, stolen cars, ambulances, but not for ACTUAL INNOCENCE. If this is really about "public safety" and not revenue then why punish anyone other than the driver?

Civil Penalty
The documents repeatedly discuss how this is only a "civil penalty". Drivers can not be arrested for these violations, or even for failing to pay these tickets. Rather, a collection agency will be sent to harass these drivers and ruin their credit.

Why not call these traffic tickets (Class C Misdemeanors)? That would actually give these driver's rights to a jury trial. The State would have to prove them guilty beyond a reasonable doubt. By making these "civil" penalties the State takes away your rights.

If you disagree with the fine you only have the right to an administrative hearing in front a judge (no jury). You only have to be found "liable" (instead of guilty) by a preponderance of the evidence (not BARD).

These "public safety" measures are a money grab by local government. Putting real police officers at these intersections would do a better job, but not raise as much money. Ergo, we have Robo-Cop Red Light Cameras.

Read this important piece by The Agitator on the recent SCOTUS hearing, Virginia vs. Moore. If you want to read a transcript on how legal scholars can justify gutting one of our last constitutional protections (Exclusionary Rule), this is for you.

The Exclusionary Rule states that illegally obtained evidence can not be used at trial. It appears that SCOTUS is leaning towards diminishing that standard and sanctioning illegal conduct by law enforcement.

18 State Attorney General are arguing to end this practice so that officers can break the law without endangering drug arrests. Va. vs Moore is of course, a drug case. The State of Virginia's goal is to win as many dope cases as possible, not to uphold constiutional protections. Prohibition has made Attorneys General full time advocates for repealing the Bill of Rights.

Without the Exclusionary Rule the 4th Amendment really loses all meaning. SCOTUS has already destroyed the warrant and reasonable search and seizure requirement. It's embarassing to watch appellate courts justify illegal police activity.

DWI is a danger to liberty because Officers have unlimited discretion to subjectively decide you are "intoxicated." Combined with SFST junk science and you have a recipe for injustice.

What could make that situation even worse for the citizens of Texas? DWI arrest quotas. Austin DPS troopers operating under just such a system. These officers received memos stating that they had to make a minimum number of DWI arrests annualy.

What's wrong with quotas? Cops chasing a number of arrests, and given wide discretion to interpret "intoxication" will arrest the innocent and spin the evidence.

I shudder to think how many innocent drivers were arrested so DPS troopers could meet their quota. I guarantee these innocent drivers all had "bloodshot and glassy eyes, slurred speech, and the odor of an alcoholic beverage" and that they all "failed" the HGN.

Texas is supposed to have laws against law enforcement quotas. However, I'm sure no one involved in this scandal will face any charges.

Austin Energy Warrantless Surveillance To recap- Austin Police and Austin Energy have an agreement that allows for warrantless surveillance of consumer electricity bills. Austin PD uses this information to search for marijuana growing operations sans warrant.

Request
I filed an open records request with Austin PD and asked for internal policies, inter alia. I received this information, however other records were not disclosed. Austin PD sought an.. wait for it... Attorney General Opinion to avoid disclosure. ACLU Texas also filed a request for the same information.

Labels: austin energy austin police, open records

Motion to Suppress I prevailed at a motion to suppress last week. A suppression hearing is one where the defendant challenges the constitutionality of an arrest, search, or seizure. A plain reading of the 4th amendment would imply that all arrests require a warrant. Luckily our living breathing constitution has developed so many exceptions to that outdated rule that the vast majority of arrests are warrantless.

If you want to assert what is left of the tattered 4th Amendment do NOT consent to a search of your car. If there are no drugs in your car, there is no reason to let the police search. Believe it or not- "Those aren't my drugs" is not a compelling defense to possession.

Xanax Violence-
A shootout in Richland Hills left one dead and a security guard injured. Allegedly a deal to buy 90 Xanax pills went bad. I have never seen a blood bath at CVS and they sell lots of Xanax. I wonder what the difference is?

Reno 911-
Reno 911, one of my two favorite cop shows (The Shield) is returning next week. I have rented the movie 3 times now. Brilliant comedy that I always DVR. Trudy is my favorite officer.

The Economics of Prohibition, LEAP
I am a member of LEAP, Law Enforcement Against Prohibition. As such we are expected to write a speech/presentation. In order to prepare my speech I ordered The Economics of Prohibition by Mark Thornton. This book is available for FREE here (h/t Tuna!).

TEOP is a must read (and it's free!). It covers the history and economics of Prohibition and the War on Drugs. You can see how Prohibition produces the same negative externalities time after time. It was an amazing read. I may go through the ideas in detail in the future.

It was not until I opened my package from Amazon.com that I realized I had been assigned this book in a Economics of Crime class at UT-Arlington and... never finished it.

Prohibition begins with the idea that Americans have no right to control what goes in their body. I believe in the sovereignty of each individual to choose what substances to consume, or not consume. If you believe pot, heroin, or crack should be illegal you accept the premise that the government holds a higher power than the individual.

"But crack and heroin are dangerous", "You don't really think people have the right to use drugs?" I do, and here is why.

When you give up the right of individuals to use "bad" substances (crack) and place that power with the government you also give up the right of individuals to use "good" substances (unapproved cancer treatments).

The government entities (FDA, DEA) who are given that power will act in their own interest, not those of the individual. For proof, here is today's latest Supreme Court embarrassment.

The Supreme Court is upholding a decision that prevents dying patients from receiving non-FDA approved medicines. Your advocates for this cruel torture- the FDA and the Bush Administration.

The Supreme Court is merely acknowledging that individuals have no rights to use any substance without permission from the federal government (FDA). Ergo, our rights no longer come from our Creator, but from the federal government's army of bureaucrats.

The DEA and FDA paved the way for this brutal statism with their "victory" in a 2001 Supreme Court case. In US vs Oakland Cannabis the Supreme Court held that Americans had no right to medical marijuana even if they showed a "medical necessity." The fruits of that argument inspired today's horrendous decision.

Like all tyrants the FDA values the authority to run your life over the rights of the dying, their power over mercy, and their funding over your freedom. The 10th Amendment should protect the rights of all Americans to pursue medical treatment. The road to hell is paved with bureaucracy.

Gather the family and watch as federal paramilitary police break down doors and invade private residences. The DEA is getting their own reality show.

Watch the promo and tell me what you see-

- Hard Working Law Enforcement Keeping Us Safe From Evil

or

- A home invasion paramilitary raid conducted by some idiot in a backwards baseball hat who lacks the intelligence to see that Prohibition will never work.

When the federal police invade homes to solve victimless crime it shows how little freedom we have left. If you are not disgusted by this promo ask yourself why? Is your subjective belief that drugs are "bad" enough to support terrorizing neighborhoods with paramilitary police and funneling billions to drug gangs?

This whole series is brought to you by Al Roker productions. Mr. Roker must be too busy whoring out the violence of Prohibition to actually think about this failed policy. Here is a quote from this moron-

“Television viewers will get the same unprecedented access to the inner workings
of the DEA as our camera crews – the raids, the risk and the danger,” said Al
Roker, executive producer. “This series is the real deal, exposing elements of
the illegal drug trade that you could not imagine. When you watch DEA, you will
feel like you have gone undercover.”

Wow Al, that sounds really exiting. Will you also cover the funerals of SWAT victims like Tamika Wilson? How about those dying from AIDS caused by the drug war? I bet viewers could "never imagine" that our War on Drugs not only destroys the Constitution, but kills innocent Americans while spreading AIDS and corruption.

Houston DA Scandal- Mark Bennett has done a masterful job breaking down the email scandal inside the Harris County DA's office. These posts are a must read.

The latest embarrassment is an email from one Harris ADA that decries "Canadians" on a jury.
Why does that matter? Apparently Canadians is slang for the N-Word.

Mark's work has inspired an open records request to the Dallas DA for any emails that contain the word "Canadians". I hope this search turns up nothing.

Hookers and Cops in Chicago-
The Agitator breaks down a recent study on prostitutes in Chicago. It seems that hookers are statistically more likely to have sex with a police officer than get arrested by one.

3% of all tricks by Chicago's hookers are "protection sex" with police. Another 5% of tricks are given to gang members for protection. Hmmm... corruption, organized crime...reminds me of..Prohibition. That's because it is.

Prohibition of commercialized sex results in the same externalities as drugs. Fortunately you don't have to take my word for it.

Nevada's legal brothels are not only free of pimps and protection sex, they are much safer. Only 20% of professional sex in Chicago involves condoms, compared with 100% at Nevada's legal brothels.

My Readers Want Law
My views on the federal government and the deficit have drawn some reader criticism. I was even called a "neo con." I do not break from criminal justice issues often. However, daily copy is difficult and I do have other interests.

I hope my readers understand that I believe there is no "good" big government. All spending requires taxation and coercion. I view taxes as sanctioned theft and the national debt as a direct threat to freedom just like the War on Drugs. The interstate commerce clause is the common thread from Prohibition to Entitlement spending. The parallels are clear to me.

However, I respect my readers and their views. If you disagree with me that is what comments are for. This blog is still 95% law and will stay that way. Thanks for reading.

Help End Home Invasion Searches
The SWAT killing in Lima, Ohio is merely the latest death caused by home invasion drug searches. You can help end these residential paramillitary raids. StoptheDrugWar.org has an easy form to email your local officials to let them know you do not support home invasion searches. I would encourage any IWTS reader to take a few minutes and fill out this simple form.