Dallas Criminal Defense Lawyer Blog

The Dallas School Zone Cell Phone Ban contains the follow defense to prosecution-

(d) It is a defense to prosecution under this section that the person was: (1) operating an authorized emergency vehicle and using the mobile telephone or mobile communication device in the course and scope of the person’s official duties; (2) using the mobile telephone or mobile communication device to: (A) report illegal activity to a law enforcement agency; (B) communicate with an emergency response operator, a fire department, a law enforcement agency, a hospital, a physician’s office, or a health clinic regarding a medical or other emergency situation; or (C) prevent injury to a person or property;

Instead of banning all cell phone speech, the government is simply banning unnaproved speech. It's ok to call the cops, but not to call your wife.

The First Amendment does not come up often in my law practice. My Con Law class is a distant memory.

My question for law students and Con Law scholars-
Does the first amendment apply to the cell phone ban? If so, is this unconstitutional?

I wish the 9th and 10th Amendment would protect your right to use a cell phone in your car. However, those amendments have been repealed through neglect.

Job Opening- Kaufman Public Defender
I have received a few emails from readers looking for criminal law jobs. The Kaufman Public Defender has an opening for an Assistant Public Defender. Call Andrew Jordan for details.

My First Job
...was with the Wichita County Public Defender. It did not prove satisfactory for a few reasons. First of all, the misdmeanor prosecutor would offer time served and no fine to 90% of my clients. The Sheriff had a policy of giving 2 for 1 credit for time spent in jail.

Typically I would be assigned a defendant who had spent 21 days in jail. Defendant would be placed on the jail chain and dragged into court. The DA would offer 42 (21x2) days time served, with fine and court costs paid for. The defendant had a decision to make- Get out of jail with no fine, or fight the case and stay in jail. Hmmmmm..... Tough choice.

It was a no brainer for defendant's to accept the plea bargain. I spent most of my time explaining plea papers and guilty plea consequences.

Labels: Kaufman County, Public Defender

DMN has two stories that highlight the opportunity cost of stupid laws.

Story 1- East Dallas is being hit with a rash of home robberies. If you live in East Dallas and someone breaks in the door, it's either a robber, or the SWAT team looking for poker games.

Story 2- The Dallas City Council passed a new city ordinance that prohibits using a cell phone in a school zone. By all accounts this law is a solution without a problem. The Dallas City Council continues their proud tradition of incompetence.

Statistic- Last year Dallas had over 15,000 home robberies. Dallas also had no deaths caused by a cell phone, in a school zone.

Opportunity Costs are real.This new cell phone ban will be good at two things- raising ticket revenue (taxes) and wasting officer time. However, it will do nothing to stop the city's real crime problem- home burglaries.

Every stupid law, every speed trap, every pot arrest or poker bust wastes criminal justice resources. An officer writing a ticket for using a cell phone can not prevent or investigate a home burglary.

These two stories are two sides of the same coin. Our stupid laws- from Prohibition to Poker- prevent the police from keeping you safe. This new cell phone law is not only stupid, but dangerous.

Sitemeter is a great product for bloggers to learn about their readers. Inter alia, it displays the search terms you put into Google that brought you to IWTS.

These are like questions in a way. Each reader is looking for specific information. So let me treat these as a Q/A session.

Remember, this isn't legal advise. You pay for that. This is blogging.

Search Terms- Where to Find Marijuana Detox Drink in Dallas, Texas

Reader, I feel for you. I believe marijuana should be legal and treated like alcohol. I also have no idea where to get a detox drink in Dallas.

I know what you are thinking. If only you had done some crack, or shot some heroin- because those drugs will not stay in your system as long. Let me assure you that smoking pot is still a much safer recreational experience than other illegal drugs.

I suspect you must take a drug test for probation, or trying to get a job.

If you are on probation that is a great time to quit smoking weed. The State of Texas only approves cigarettes and doctor prescribed drugs while you are on probation. So get some Camels and/or a script for Marinol.

If you are trying to get a job- Don't work for those idiots. Any company that would waste money screening for cannabis does not deserve your talents.

Search Terms- Field Sobriety Test False Positives

Depends what research you use. Since the SFST are completely subjective they are subject to false positive results. Research has shown a false positive rate between 22-47%.

Search Terms- How Should US War On Drugs Be Changed

Easy. First, here are all my posts on the subject. In Sum- We should allow adults to legally buy the drugs they want for recreational use. That will end the black market, and empty our prisons. We can then focus these criminal justice resources on killers, rapists, terrorists etc. For further reading try StopTheDrugWar.Org.

Labels: DWI, Marijuana, War On Drugs

You are arrested for DWI
In Kaufman County DPS is involved in most DWI arrests. DPS officers initiate many DWI stops on I-20. DPS troopers are also frequently called by local police to administer field sobriety testing. It is a rare DWI case in Kaufman that does not involve a DPS trooper.

You take some field sobriety tests, blow or not blow, and then a police officer subjectively and unilaterally decides you are intoxicated. You spend all night in Kaufman's really nice jail. Bail is set in the morning between 7-9AM. In Kaufman bail is usually between $1,000 and $3,000 for a DWI first offense.

ALR Hearing- If you hire a DWI defense lawyer within 15 days of arrest they will challenge the suspension of your license. These challenges are heard at an ALR hearing. ALR stands for Administrative License Revocation. ALR hearings are very hard to “win”. The rules make a State victory almost automatic. However, winning at the ALR hearing does not prevent the State from filing a criminal charge against you for DWI.

Occupational Driver’s License- If we lose at the ALR hearing your license will be suspended between 90 days and 2 years. You are allowed to apply for an Occupational License to drive to work and to perform essential household duties.

Indictment/Information- The criminal case against you begins with either an indictment or information. In Kaufman County this takes between 3-6 months, sometimes longer.

Misdemeanor DWI cases begin when the State files an information. An information is merely a piece of paper signed by the prosecutor stating that you committed DWI on a certain date. Once that is filed you will be assigned a first court appearance.

If your case is a felony DWI (DWI 3rd or more, DWI w/child passenger) you will be indicted by a grand jury. The grand jury is a board of citizens chosen by the DA to rubber stamp cases. They will always choose to indict a case if asked.

1st Appearance/Announcement- After your case is filed you will be notified by mail (usually) of your first appearance in court. You MUST keep in contact with your bail bonds company during this time. Your bail bondsmen or the court should notify you of your first court date.

DWI Pre Trial Hearings Most DWI cases could use a pre trial hearing. DWI is such a technical, scientific, and procedure intensive crime. A suppression motion, motion in limine, or discovery motion is always in order.

Trial-All criminal cases end one of three ways- a plea bargain, a trial, or a dismissal. Sometimes a DWI case will be refiled as "Obstructing a Highway" as part of a plea deal. Almost every case set for trial in Kaufman County Courts are DWIs. No misdemeanor case carries more cost upon conviction.

To ensure the best results for your Kaufman County DWI here are some guidelines.

1. Don't take field sobriety tests. Why would you? These tests can not detect if you are sober. The false positive rate is astronomical.
2. Don't take a breath/blood test. Again, why would you? If you are so obviously intoxicated as to warrant arrest the State doesn't need the evidence anyway.

If you are not intoxicated and the machine malfunctions and scores you at .16, don't expect the cops to let you go. Belief in the Intoxilyzer 5000 is dogmatic among law enforcement.

Finally, even if the machine is accurate a breath score opens the door for the voodoo science of retrograde extrapolation. RE is junk science, based upon a junk machine.
3. Hire a DWI defense lawyer as soon as possible. The ALR hearing is of critical importance. Do not give up your opportunity to defend your right to drive.

Dallas Law Office Update-
I am looking for law office space in Dallas. I've been focusing on Uptown. The Crescent has a great facility with many flexible options and I am considering an office there. I should make a decision by the end of March. This experience has got me thinking about what a law office does.

Attorney Needs-
From an attorney standpoint a law office has two functions- convenience (getting work done), or presence (advertising).

My office in Kaufman has both. Being on the courthouse square is a convenience I can not understate. It is a great place to work and easy for clients to locate (take 175 East, exit Highway 243).My name outside is seen by those leaving the courthouse and those driving by.

The Dallas criminal courts are on Industrial Boulevard. Industrial has a wide selection of liquor stores, but not much in the way of law office space or courthouse square charm. It's not an area that meets my criteria professionaly of aesthetically.

What do you want in a law office?
Enough about my needs. I am getting office space in Dallas to serve clients. My question is- What do you want in a law office?

If you have ever hired an attorney let me know what impression, if any, the law office made on you.

Recap- I am participating in a WikiFOIA open records project. Open records requests are being sent to all 50 governors to see if their interoffice email is available to the public.

I sent a open records request to Rick Perry. I asked for all emails to and from the Office of the Governor for four days.

$217 for email
I received a letter from Office of the Governor today. I was told today that it would cost $217 to produce these emails.

That cost includes 12 hours of staff time at $15 an hour plus an extra 20% "overhead" charge. Government employees require 12 hour to do what my Outlook program can do in 30 seconds. I can't wait until they run my health care.

What Next?
Should I send the $217? Nah. I enjoy open records, but not $217 worth. I am considering asking for a waiver of the fee since this material primarily benefits the public. That is supposed to insulate costs in these requests. However, I'm not sure I want to spend the energy. After all, in the private sector I have to keep working to make money.

Labels: open records, Texas

Watching Cops can be a good exercise for criminal defense attorneys. Search and seizure, confessions, probable cause all come in to play. I was channel surfing and caught a gun arrest.

Here is what happened- 3 passengers in a car. 2 males, and one female. I didn't quit catch where everyone was sitting. The police find a gun in the glove box. I don't remember the jurisdiction, however it was clear that there was no 2nd amendment right to carry in your car. The police are looking to pin this gun on somebody and make an arrest.

Male 1- Asks for an attorney. The police say "he asked for a lawyer, he isn't cooperating."
Male 2- Talks to the police. M2 states he doesn't know anything about a gun, he has no idea whose car it is, or who these people are.
Female- Talks to the police. Female states that she is M2's girlfriend. Female also states that the gun belongs to M1. F tells the police that M1 pulled the gun out when they were pulled over, and put it in the glove box.

The police know have three suspects. M1 asked for an attorney and hasn't said anything. M2 is either lying, or stupid. Female is snitching but her credibility is hampered by her relationship with M2.

Who do the police arrest? The suspect who "isn't cooperating"- M1. That's right, even though M2 lied, he is obviously more credible than someone who would ask for an attorney. They don't even consider Female a suspect, after all, she snitched.

The result- M2 and Female are let go. M1 (who still hasn't said a word) is arrested on a gun charge.

Lessons- Cops trust snitches. Cops think you are a criminal if you "don't cooperate." And the prisoner's dillema is real (game theory exists).

No MADD member can get through an interview without stating the lie that drunk drivers kill 14,000 - 17,000 each year. I have blogged before on how the alcohol related fatality number is a complete fraud. Today I found out that MADD knows this as well.

Why would MADD inflate alcohol related deaths? For donations, government funding, to suppress dissent, and because most people believe this garbage.

On the MADD website they have a reference page to back up their blood on the highway propaganda. Let's look at two articles MADD relies on. The titles are my own.

1. Alcohol related does NOT mean killed by a drunk driver.
MADD relies on the NHTSA definition of an "alcohol related fatality", which they just happen to use interchangeably with "drunk driving death" when they talk to the media.

National Highway Traffic Safety Administration, National Center for Statistics
& Analysis, Research & Development; Traffic Safety Facts 2000, Alcohol.
DOT HS 809 323

NOTE: The National Highway Traffic Safety Administration
(NHTSA) defines a fatal traffic crash as being alcohol-related if either a
driver or a nonoccupant (e.g., pedestrian) had a blood alcohol concentration
(BAC) of 0.01 grams per deciliter (g/dl) or greater in a police reported traffic
crash. Persons with a BAC of 0.10 g/dl or greater involved in
fatal crashes are considered to be intoxicated.

According to MADD these are drunk driving deaths-

Joe drives home after work. Joe is sober. Joe has a heart attack and runs over Bill. Bill is a pedestrian who was walking home after having 2 beers at dinner. MADD says- drunk driving death.

Amy gets a call from her friend Susie. Susie is too drunk to drive home from the local bar. Amy picks up Sarah. On the way home a sober driver runs a red light and kills Amy. Sarah is fine. MADD says- Drunk driving death.

2. Statistical Fiction

(NHTSA) National Highway Traffic Safety Administration, National Center for
Statistics & Analysis, Research & Development; Traffic Safety Facts 2000, State Alcohol Estimates. DOT HS 809 334
NOTE: Estimates of alcohol involvement in fatal crashes for the U.S. are based on data from NHTSA's Fatality Analysis Reporting System (FARS). Known BAC test results are not available for all drivers and non-occupants involved in fatal crashes for a number of reasons, most frequent of which is that persons are not always tested for alcohol. To address missing data, NHTSA has developed and employs a
statistical model to estimate the likelihood that a fatal crash involved driver
or non-occupant was sober (zero BAC), had some alcohol (BAC of 0.01-0.09) or was
intoxicated (BAC of 0.10) at the time of the crash. The statistical model
was developed using all available known data in the aggregate (that is, at the
national level) and applied to each individual driver and non-occupant with an
unknown BAC test result. The estimates include a mix of both known and
estimated BACs.

In 60% of fatalities there is no BAC information for anyone. Why? Because the police on the scene did not think it was necessary to collect this information.

What are the good intentioned bureaucrats at NHTSA to do? They have millions of tax payer dollars to waste and they need to seem relevant. NHTSA chose to make up a formula and create fatalities.

Kaufman County Online reports on where local candidates stand on building a new courthouse for Kaufman County.

To summarize the arguments-

Pro New Courthouse- The current courthouse is too small, we need to expand. Let's move the courts next to our new jail (next to the highway).
Anti New Courthouse- Voters rejected this idea. Quit issuing bonds and raising taxes. The voters rejected a new $22M courthouse two years ago.

Some Background
The Kaufman County Courthouse is located on the Courthouse Square in downtown Kaufman.
Texas has some great courthouses, Ellis County (Waxahachie) is my local favorite. One thing our courthouse does not have going for it is aesthetics. Our courthouse is.... not beautiful.

The courthouse hosts 4 courts, the District Attorney, District and County Clerk, and the County Judge's office. It is crowded and jury trials are difficult in the two smaller court rooms. Kaufman is growing and expansion is going to become a necessity.

Save Downtown Kaufman
Beyond dispensing justice and solving legal problems the Courthouse also sustains downtown Kaufman. The square is host to numerous law offices (including my office), retail, and restaurants. My favorite lunch stop on the square is Kudo's.

Moving the courthouse would kill downtown. There are many buildings for sale on the square. I have often considering buying. The possibility of the courts moving is depressing downtown real estate values and deterring investors.

Some ideas
If town squares have value, then Kaufman's is worth saving.

Plan 1-
I propose that the county purchase some of the empty buildings on the square and relocate some non court offices. Or, buy the land northwest of the courthouse and build a new courts building there. Maybe make one court building for county courts/clerk and one for district courts/clerk.

Plan two-
Create criminal courts and move those next to the jail. That would cut down on transportation costs for prisoners and leave the courthouse open downtown.

Plan 3-
Legalize drugs. This would reduce the need for more jails and court rooms and increase sales tax revenue. A win/win. I'm not sure if our county commisioner's would support this plan.

From Foxnews.com A Shreveport police officer is fired after allegedly beating a handcuffed female DWI suspect.

The story- A female suspect was arrested for DWI. She was brought into the 5th Amendment violation (breath test) room.
The woman then asked to make a phone call. Her request was denied. The officer then handcuffed the now irate suspect.

This is where the incident turns violent. The police officer turns off the room's video camera. When the camera finally is turned back on the woman is lying in a pool of blood on the floor.

The officer's story- "she fell." No word on if this suspect's blood was taken off the floor for alcohol sampling. No charges have been filed agains the officer.

We arrest DWI suspects, deny them attorneys, force them to take blood tests, etc/ to protect "public safety." Our only protection from the police, however, is freedom.

Texas does not allow for phone calls (including to defense counsel) before DWI samples are taken. I can't see the danger in allowing a phone call. However, the state needs their DWI convictions to keep us safe.

Probation 101
Despite the best efforts of defense counsel the vast majority of criminal cases end up with a plea bargain. In Kaufman County the vast majority of plea bargains involve probation. In general, compliance with probation terms means a defendant can avoid jail time.

First their are the obvious rules 1,2,6, 8,13 etc. Report to probation, don't use drugs or commit any more crimes, take drug tests.

Reality of Stupid Rules These stupid probation rules are binding but not always vigorously enforced. Most probation revocations I see are for committing a new crime, or for drug use. Rules that do not promote public safety or should be scrapped. Just because we can make probationers do something does not mean that we should.

Dallas Needs.... Another Criminal Defense Lawyer! I'm looking for some office space in Dallas. I'm not closing my Kaufman practice/office. I am looking to expand into the Dallas market. If you have any space/ideas etc- shoot me an email. Opportunity Costs and Dan Here is a great comment about the TABC/DPD strip club investigations. Every police resources wasted at strip clubs is not being to used to stop real criminals. Dan comments that he would rather the police prevent the break in of his car than get wasted staring at boobs. Opportunity costs are real, just ask Dan.

Deadly Underground Poker Games
Poker is illegal in many parts of the country. When demand meets poker Prohibition you get... illegal "underground poker." ABCnews has a story on how criminals target underground poker rooms for robbery. Recently, one of these robbers shot and killed a poker playing college professor.

The Dallas Police crackdown on poker is also mentioned. From the story-

Dan Michalski of the Web site pokerati.com, who said he has played in dozens of underground games, said the number of illicit games in Dallas had shrunk from about 200 a few years ago to about 20 today after a series of police raids and robberies.

Police raids and robberies. Criminals and cops. When you criminalize consensual behavior you get more of both. Poker must be legalized. Only a fool or a tyrant would arrest adults for playing cards.

I've been to Las Vegas and Shreveport. Millions of dollars are wagered legally and safely in casinos everyday. Only Prohibition makes gambling a deadly/criminal enterprise.

The Collin County District Attorney is proud of their forced blood draw DWI program. They bragged about it to the media, and on the TDCAA message board.

However, they were less enthusiastic when it came to my open records request. As I expected the Collin County DA fired off a letter to the Attorney General asking to keep details of this program secret.

The AG request (right) is notable only for it's pathetic brevity. AG requests usually carry histrionics about officer safety. Collin County merely lists statute numbers and asks for relief.

My prediction- The AG will rule against Collin County and require disclosure. The AG does not favor short unarticulated arguments.

If I walked into court during a criminal trial and said "Objection, Bill of Rights", and then left I wouldn't expect to win either. Obviously, this is just a delay tactic. There can be no legitimate purpose to a request designed to fail.

Why These Blood Draws Should Be Unconstitutional
From your Texas Constitution-

In all criminal prosecutions the accused shall... not be compelled to give
evidence against himself, and shall have the right of being heard by himself or
counsel...

Let's see, we hold suspects down and force them to give blood all while denying them the right to an attorney. Maybe, just maybe, that could violate these provisions.

Labels: Collin County, DWI, open records

Texas had a long standing ban on selling "obscene devices" (vibrators etc). Yesterday, the 5th circuit corut of appeals correctly ruled that statute is unconstitutional. The judges cited the Lawrenece (striking the Texas sodomy laws) case in their decision.

Texas- Autonomous sex threatens us all.
Texas argued that the State was “discouraging prurient interests in autonomous sex
and the pursuit of sexual gratification unrelated to procreation and prohibiting
the commercial sale of sex.”

Texans- Do we want our police working to protect procreation? Last time I checked there seemed to be plenty of Texans around. I'm not sure how this law supported procreation. Are Texans choosing not to have children because of sex toys? If so, I don't think we should encourage them to have kids.

I am embarrassed for the lawyer the State sends to defend this idiocy. The prostitution angle was a creative reach by the State. However, it was summarily rejected.

The courts cite the 14th Amendment as the source of an invididuals right to privacy. Privacy rights should come from the 10th Amendment. The language of 10 is clear. However, that line of thinking has never been embraced.

You can't legislate morality. Really, you can't.
The judges also ruled that promoting morality is not a legitimate reason to criminalize activity. From the decision

The State’s primary justifications for the statute are “morality based.”
...These interests in “public morality” cannot constitutionally sustain
the statute after Lawrence.To uphold the statute would be to ignore the
holding in Lawrence and allow the government to burden consensual private
intimate conduct simply by deeming it morally offensive.
The fact that the governing majority in a State has
traditionally viewed a particular practce as immoral is not a sufficient
reason for upholding law prohibiting the practice.

The pace for getting rid of stupid laws is glacially slow. However, any criminal justice resources that were being wasted on "obscene device" prohibition can now be wasted on drug addicts.

H/T to the TDCAA message board for posting this ruling.

Update- The future
I consulted with my appellate expert. He believes this case will be ruled on again by the 5th Circuit "en banc" (where the entire court hears an opinion, as opposed to a 3 judge panel). He also believes that this case will be heard by SCOTUS.

DailyCrimeReport.com is a new site that publishes crime reports fresh for the Dallas Police database. It is a subscription service that allows concerned citizens to monitor crime in their neighborhood. To learn more I sent some questions to Avi Adelman.

1. Background-Resume
I have been a graphic designer - print and website - for about 20 years, mostly corporate materials but now focused on small and medium business projects.My original degree is in public relations and journalism.

I have been living on or near Lower Greenville for about 30 years - give or take a few a little further away - since moving Dallas (born in Philadelphia with a detour to Israel for three years). I was always active in civic affairs, even as a kid. Crimewatch is just a natural attitude for me.

My experience dealing with the problems we have on Lower Greenville - illegal business operations, code enforcement (or lack thereof) and personal safety issues - made me realize that the Internet could be an extremely useful tool to getting things fixed, and hence was born BarkingDogs.org ( www.barkingdogs.org).

2. Tell us about your site-
The theme of the site is - What happened in YOUR neighborhood yesterday?Daily Crime Report was created as a result of my work on our neighborhood association website, Belmont NA ( www.belmontna.org).For years I posted monthly and annual summaries of incident reports - crimes like home burglaries, burglary of motor vehicles, assaults - for our neighborhood.But getting the stats once a month is too late if three houses on your street have already been burglarized. You need to know what's going on yesterday, not last month.So after hemming and hawing for about three years, talking to showy investors who never came through, I figured out how to take the Dallas Police Department's public data files and convert them to something I could separate and post by beat numbers (in essence the area around your neighborhood).

3. Why Dallas?
After talking to Police Departments all over Texas, I have found the DPD is light-years ahead of most departments in making their incident reports available online. Some departments are trying to get their, and a few are just not going to ever go there (don't wanna embarass their rich citizens). They are the only department I can find that puts up the daily reports every single day, not a week later. With all the details about the event, not a slimmed down version (the spreadsheet goes from A to AT in Excel).Many of the larger departments are using the Dallas website ( www.dallaspolice.net) as a model for their departments future public access

4. What have you learned about Dallas from monitoring crime stats?
There are about 1,000 incidents reported every day in Dallas. Most of them are simple issues (unless you are the victim) - robbery, assault, burglary, car theft. Then you get the weird stuff like 'assault with a chicken leg' and you wonder, Who told them to call 9-1-1??Other neighborhood reps tell me they had no idea how many incidents take place that they never hear about until way later. Another neighbor told me she visited three homes that were recently burglarized not far from her house, just to make sure she was not making any of the same mistakes they did.

5. Any particular safe/unsafe areas?
I don't pore over the data with a finetooth comb, so I can't speak to that issue in general by neighborhoodsIn my neighborhood, so close to Lower Greenville, we knew in our bones how the presence of 7,000 people from outside the area (or even Dallas) coming down here every weekend made it extrem