Dallas Criminal Defense Lawyer Blog

This past Wednesday was the final Kaufman County Bar meeting for 2009. What a difference a year makes. It was only twelve short months ago when a dozen lawyers met for what was only then 5th KCB meeting of the year and elected Tracy Booker, myself, Keena Greling, and Lisa Gent to office.

Largely due to the hard work by President Booker and Secretary Greyling 2009 saw monthly meetings (each with CLE), and a huge spike in attendance. Things are looking up, and more organized for the KC bar.

So who will lead the KC bar into 2010?

President- Keena Greling
Vice President- Me
Secretary- Prescot Smith
Treasurer- Lisa Gent

I was considering a run for President. In Kaufman it is customary for the VP to become the P the next year. However, Keena was outstanding her role as Secretary and righftully ran unopposed.

Do you want to hire me, or sue me?
The officer elections were overshadowed by a heated debate over a State Bar proposal that would require attorneys to disclose whether or not we carry malpractice insurance. The vote was 40-0 against the idea.

What's wrong with this requirement? Basically it is a huge competitive disadvantage for solo lawyers with little, if any, benefit to consumers.

Our very nice, and slightly overwhelmed State Bar rep had the unfortunate job of pitching this idea to a group of semi-hostile lawyers. The last thing solos want in this economy time is another requirement from the State bar for another rule that could get us grieved for a measure that if passed, will either brand a lawyer with a scarlet letter (I'm too broke or incompetent to get legal mal insurance!) or cost thousands in premiums.

Malpractice insurance is generally offered on a claims made basis. That is, it doesn't matter when you did the work that got you sued, you are covered for all claims made during any coverage period (typically one year). Ergo, the larger body of work you have to be sued for, the more you pay. A relatively young (6 years in) lawyer like myself would pay less than a solo who has been out for 20+ years. Big firms can bargain for better rates in a way smaller firms can not. Just like health insurance you want to get a huge group to pool risk. I'm solo, I don't have a pool to spreak my risk around in, maybe a bath tub at best.

Who benefits from this? Consumers allegedly, but that doesn't make sense to me. I've never had a client ask about malpractice insurance. I would hope a prospective client is not already considering litigation against me and weighing how much they can recover. I've never had a client file a legal mal claim. Unlike grievances, lawsuits for legal malpractice are exceedingly rare.

The fantasy of consumer benefit doesn't mask the reality of windfall profits for insurance companies. If I was selling legal mal insurance I would lobbying the State Bar to make my product quasi mandatory. Most solo lawyers know their odds of getting sued for malpractice in any year is around 0%, so they eschew legal mal insurance. What is an insurance company to do to get low risk attorneys to pay premiums for a product they don't need? Pass a disclosure law.

If this measure is passed (and the details of what kind of policy/disclosure) have not been worked out, I am going to lobby my State rep for legal mal caps on damages against lawyers. Attorneys need some legal mal tort reform! If you want all lawyers to have legal mal insurance then why should we let frivilous lawsuits drive up our premiums!

I was quoted in DMN today for an article on the Dallas Constables allegedly selling raffle tickets to finance their campaigns. My entire contribution, soup to nuts, was

Robert Guest, a local criminal defense lawyer, said he believes the state's anti-gambling law prohibits elected officials from using raffles to raise campaign money.

How did I come to that conclusion? It should come as no surprise that I've never actually represented someone for illegal raffling. Such prosecutions are rare. In fact, in my 6 years of lawyering I've never seen one.

So when DMN calls and asks for my opinion on the legality of a constable using raffles to finance their campaign I harnessesed the power of google to find the Texas raffle law.

To the occupations code, Section 2002. the Charitable Raffles Enabling Act.

§ 2002.051. RAFFLE AUTHORIZED. A qualified organization may conduct a raffle subject to the conditions imposed by this subchapter.

Ok, so what's a qualified organization? I can tell you what it's not.

(3) does not devote a substantial part of its activities to attempting to influence legislation and does not participate or intervene in any political campaign on behalf of any candidate for public office in any manner, including by publishing or distributing statements or making campaign contributions

Ergo, I believe that a Dallas constable selling tickets to finance his campaign is a no go. Lacking omniscience there is the possibility that some other statute allows for this activity. I didn't check the Local Government Code, inter alia. Barring that, I wouldn't sell raffle tickets to finance my election.

In an era of swine flu you would think that drawing blood in a jail, which are usually full of staph and other nasty bugs, would be verboten. Unfortunately police departments across Texas are giving cops a crash course in needle work and setting them loose to prey on the driving public.

Does the Constitution provide any protection from police station blood draws? Or will we add yet another DWI exception to the Bill of Rights?

This brings us to our case of the day from the Fort Worth Court of Appeals.
Johnston vs. State-

Facts- Christi Lynn Johnston was pulled over for having an expired vehicle registration. Using the latest in voodoo SFST "science" Dalworthington PD believed Johnston was intoxicated.

The arresting officer then requested a blood sample. Dalworthington PD had a policy against offering defendants the opportunity to provide a breath sample.

Johnson exercised her right to not be stabbed with a syringe and refused the officer's request for blood. Reflexively the arresting officer pulled out his fill in the blank blood warrant, found a "friendly" magistrate, and a warrant for Johnston' blood was quickly obtained.

To make matters worse, the police refused to take Johnston to a hospital for the procedure. Instead Dalworthington PD opted to go all Grey's Anatomy at the police station. Like any normal freedom loving person would do at the sign of a cop with a needle, Johnston resisted. In a moment that would make the founders proud, Johnston was forcefully restrained while the police took her blood.

Issue- Are we really going to allow cops to draw blood from suspects at the police station? Really?

Holding- This particular blood draw was unreasonable and violated the 4th Amendment, but just barely..

Why was this blood draw deemed illegal? Cops have as much business drawing blood as dentists have driving the SWAT tank. What makes cops so bad at phlebotomy? What they don't know can hurt you.

Here is a frighetning exchange between defense counsel and the vampire cop-

Q. . . . What type of tourniquet did [Officer Burkhart] use?
A. Latex.
Q. Does my client have latex allergies?
A. Not sure.
Q. You don't have the slightest clue, do you?
A. No, sir.
Q. Was my client on blood thinners that night?
A. I don't know, sir.
Q. You don't have the slightest clue, do you?
A. No, sir.
Q. You didn=t ask any medical history before you stuck her or she was stuck with that needle, did you?
A. The jailers have a full medical history that they ask them while they=re booked into jail.
. . . .
Q. So you had a medical history on her before you took the blood?
A. That's correct.
Q. Did you review that?
A. No, sir.
Q. So what good would it have done?
A. I"m not sure.
Q. . . . You didn't know anything about her medically, did you?
A. No, sir.

Medical history, allergies, blood thinners? Why should the police be bothered with such minitua when they have drivers to convict and Constitutional protections to violate?

The most obvious problems with vampire police work is that LEO has an agenda which is in direct conflict with attending to the medical needs of a suspect. Cops aren't trained to care about your medical history, they are trained to gather evidence for your prosecution.

The Transportation code requires that blood draws be done by trained professionals (not LEO's or EMT's) in a sanitary place. Police state judicial activism effectively vetoed the implied consent laws. Instead of the legislative process deciding how blood draws should occur, we have judges legislating from the bench.

The 2nd COA describes the end run around the legislative process thusly-

When a blood specimen is taken in accordance with a valid warrant, we must look to guiding Fourth Amendment principles to determine whether the method of taking the specimen is reasonable instead of chapter 724, the implied consent statute. Beeman, 86 S.W.3d at 615.

Unfortunately, this small victory could be overturned by the CCA. I can almost guarantee that PDR will be granted, and I wouldn't bet against a reversal.