Dallas Criminal Defense Lawyer Blog

Glorious news!! All real crime in Kaufman County has been solved. Local law enforcement is so bored that they now have time to arrest people for meaningless victimless make believe crimes like "promoting an event without a permit." That is the only conclusion I can rationally infer from the Warrior Dash controversy brewing in Kaufman County.

What is Warrior Dash?

Adults dress up like Vikings, race 4 miles through mud and obstacles, and at the end they get a free beer and a viking helmet. Of course anything involving adults having fun and drinking beer is going to draw the ire of joykilling freedom hating nanny staters. From DMN

The Warrior Dash has a battle on its hands today at the Kaufman County Courthouse. Organizers of the sold-out race, scheduled to make its Texas debut this weekend, are fighting a temporary restraining order filed last week by the county.

After three hours of testimony this morning, the judge recessed the case until the afternoon.

County Sheriff David Byrnes testified that he is concerned about the safety of participants and spectators and those trying to drive to the event.Organizers argued in court that the law requiring the permit was not applicable to the race and that it would be safe.

"Even though it's marketed as obstacles from hell, it's a very tame event," testified Ryan Kunkel, vice president of race organizer Red Frog Events.

The Kaufman County sheriff's office has also issued an arrest warrant for one of the event's organizers, who is based in Chicago. The warrant accuses him of illegally promoting an event without a permit, a Class B misdemeanor.

WTF! A warrant for the promoters? Seriously?. It's not like festivals and events are beating down the door to come to Kaufman County. Maybe if the local pols embraced the free market system a little more and didn't ARREST ENTREPRENEURS WHO ARE TRYING TO BRING THOUSANDS OF VISITORS TO KAUFMAN COUNTY; it might help the local economy.

As for the "safety" concerns, call me cynical. Every time government wants to restrict your freedom they have a great "safety" reason.

Is it dangerous to run an obstacle course dressed like Eric the Red? Arguably. But since when is the role of law enforcement to arrest people for the most mildly dangerous activity? It's just another step towards the Wussification of America (I know it's a World Net Daily link, but google sent me there, I apologize in advance).

I don't know what the Warrior Dash people did to piss off the local badges, but seriously guys, let them have their event. Kaufman needs every tax dollar it can get and this events will be good for the county.

As a Libertarian/criminal defense lawyer I am often torn between my financial self interests and my political beliefs. The reality of criminal defense practice is that the more authoritarian unjust and idiotic our state's criminal justice system is, the more we defense lawyers make. We are pump jacks over a sea of tyrannical crude, black gold, Texas tea.

Whenever a pol proposes a new "tuff" on crime law, my immediate reaction is to cringe at the inanity and mourn the potential loss of the few scraps of freedom and liberty that remain. Last week, State Senator Jane (R- Flower Mound) announced she was drafting legislation requiring a lifetime driver's license suspension for anyone convicted of DWI 2nd.

What is wrong with this idea? First, a lifetime ban driving for DWI 2nd convicts assumes that people can't change. A lot of Texans get a DWI or 2 and go on to live productive lives as adults.

Second, the standards for DWI in Texas are subjective (ie bullshit). "Intoxication" is still just an opinion. Violating this make believe standard twice should not lead to a lifetime ban on driving.

Third, I've said this before so I'll be succinct. The same politicians who claim to be shocked by our state's DWI problem passed the laws that led to our suburban commuting no public transportation culture. If you are serious about reducing drunk driving fatalities you should look at why Texans have to drive everywhere in the first place.

Fourth, this seems a little disproportionate. Why not a lifetime driving ban for murderers, or crooked cops and prosecutors who steal money from black motorists?

Fifth, it won't work. People will drive with a license, or without. It's inevitable. You can't function in Texas today without a car. Stupid laws (eg marijuana prohibition) are often ignored.

Of course if this law does pass it will be gravy for the criminal defense bar. We will be diving into pools of money like Scrooge McDuck. Every DWI will require a jury trial. No one will ever plead to DWI 2nd, and most people won't even plead to DWI 1st.

But just like defending marijuana cases I'd rather not have it. I'd rather take more divorces and credit card debt cases than give the police state any more ground in Texas.

This is a guide for defendants facing a Driving While Intoxicated charge in Kaufman County, Texas.

1. The Stop
The typical scenario for a DWI arrest in Kaufman is a stop by local police after midnight for an innocous traffic violation (speeding, no license plate light, failure to maintain a single lane). These are mostly "pre text" stops. That is, the police don't really care about the speeding or turn signal. They really are hoping to arrest you for DWI. Since most local police officers are not qualified to perform field sobriety tests, a DPS trooper is usually called to the scene to assist. The usually battery of field sobriety tests are requested (HGN, One Leg Stand, Walk and Turn). Then you are off to the police station to meet the intoxilyzer. Bail will be set the next morning, usually between $1500 and $3000 for a DWI 1st. The police steal your driver's license and you leave the jail with two yellow sheets of paper. Now what?

2. ALR hearing- 15 day deadline
A DWI case is really two cases happening at the same time. A civil case inovling your driver's license, and a criminal case involving your freedom. First, let's talk about your license. When you leave the jail the police give you two yellow sheets of paper. One of them, titled "Temporary Driver's License" is now your driver's license. Keep this in your wallet/purse. Most defendnants never bother to read the teeny tiny fine print at the bottom. If they, they would know they are facing a critical 15 day deadline to fight for the right to drive. The Temporary License is good for 40 days. However, if you (or your attorney) requests an ALR hearing (to challenge the suspension of your license) then the Temp License is good until the hearing. ALR Hearings are usually set at least 90 days out from the date of arrest. As a bonus the ALR hearing gives me the chance to cross examine the officer who arrested you (before the prosecutor gets a chance to coach him on what to say).

3. The Criminal Case
A DWI defendant will usually have his first criminal court date set between 60-180 days after his arrest. Kaufman has two courts which hear DWI cases, County Court at Law, and County Court at Law No. 2. Unlike Dallas DWI cases Kaufman defendants are expected to appear at every court date. Our judges usually allow 2 resets or "announcement" hearings. Then the court will expect you to either plea bargain or set the case for trial. If you have a favorable DWI case, or if there are legal or factual problems with the case (bad stop/dirty cop) a reduced charge may be possible (obstructing a highway or reckless driving). Outrights dismissals are very rare. Potential clients always want to know how their DWI case will end when we first meet. It's impossible to guesstimate or guarantee any outcome during an initial consultation. If a lawyer promises he can get your Kaufman DWI dismissed, RUN. That lawyer is either lying, or not experienced in Kaufman DWI cases.

4 How to choose a lawyer for your Kaufman DWI case
The choice for most defendants comes down to- Who is the best lawyer I can afford for my Kaufman DWI? Most also weigh the decision to hire local counsel vs. a big shot Dallas DWI lawyer.

Let me recommend these questions for any defense lawyer you interview for a Kaufman DWI.

1. How many DWI jury trials have you had in Kaufman county?
2. How many DWI trials have you won in Kaufman county?
3. Are you familiar with the judges/prosecutors in Kaufman county? Kaufman is not Dallas.

In 2009, I can remember 6 not guilty verdicts on DWI cases in Kaufman county (FYI- I had 4 of them). Every lawyer who won a DWI trial in Kaufman in 2009 was a local attorney. Dallas has some great DWI lawyers, but some of the things that work in Dallas, don't work here. For example, in Dallas most prosecutors don't review a DWI case file until the day of trial. In Kaufman, prosecutors have much more time to prepare each case.

The trial dockets are also much smaller in Kaufman than Dallas. Whereas a Dallas court may set 6 or more cases for jury trial on the same; Kaufman courts often set 1 or 2. If you are set for trial, you are probably going to trial. Finally, cops show up here. In Dallas a case can fall apart if the cop doesn't show up for an important hearing. In my 5 years defending cases in Kaufman I've never had a cop not show up for trial.

Today is April 20th, the annual day of marijuana celebration around the country. To the hundreds of thousands of Texas cannabis consumers, know that as a member of the NORML legal committee I am working tirelessly to a) defend you if you get caught and b) reform our state's hopelessly inane and morally repugnant marijuana laws (until b happens, try really hard not to get caught).

I've said this before but it bears repeating. As a former prosecutor/defense lawyer I have seen first how we destroy people by putting them into the criminal "justice" system for possessing a plant. The effects are most devastating to our nation's young adults who end with criminal records that often last a lifetime.

Many DA's offices, realizing how idiotic our state's cannabis laws are, now offer pre trial diversion (or memo agreement) programs to help these defendants avoid a lifelong conviction. On the end of the rationality and deceny spectrum Williamson county uses their CPS goons to kidnap the children of cannabis advocates for teaching their children "not to trust the government".

Let's change our laws to reflect the reality that marijuana cases a waste of time for all involved. The police have better things to do, most prosecutors don't give a shit about these cases, and during a recession taxpayers can probably find a better use for their tax dollars than on court appointed counsel on ding-dong joint in the console cases. There are better ways to regulate cannabis use than prohibition.

Off the soapbox, now for some links to help you celebrate National Weed Day.

NORML is offering a FREE download of the excellent book "Marijuana is Safer" today only. If you are a cannabis consumer or liberty loving American you have no excuse for not joining NORML. For a $100 donation you get a hemp backpack designed by my travel hero Rick Steves.

Norm Stamper pens a column on the Huffington Post reminding our nation's stoners that this is still a democracy and if you want change you need to put down the joint, and pick up a pen to contact your rep.

DFW Norml is a having a celebration in Arlington on Saturday to gear up for their freedom march on May 1st.

Here is everything ever penned by yours truly on the subject.

Ron Paul suggests legalizing marijuana at the federal level as the first step in ending the larger War on Drugs.

Finally, here is a video from Reason on Oaksterdam in California.

Happy 4/20!

For the third straight election cycle Kaufman voters have decided to vote out the incumbent District Attorney. Each situation was unique, but if there one thing you can count on in Kaufman county, it's change.

To that end, the Kaufman electorate nominated Mike McLleland as the GOPs candidate for DA next November. Sans opponent (where are my Kaufman Libertarians?), Mike has already won the November election and will be sworn in in January.

I have a lot of good friends and colleagues at the Kaufman DA's office. I know many are worried about what to expect, and if they will have the same gig come January. In this economy, I wouldn't wish job insecurity on anyone. Fortunately, Mr. Mclelland has already promised not to make any personnel changes.

I hope so. Kaufman county has managed to keep a good group of prosecutors together for the past 4 years. We don't always see eye to eye, but I respect them as capable adversaries.

I've opined before that the Rick Harrison tenure as Kaufman DA has been a success. To recap, Rick opened the files, ended the rampant animosity between State and defense bar (saving taxpayers a pile of money), and started a highly successful pre trial diversion program. Kudos.

What could me made better? Well, since I asked, here are 2 hopey changey ideas I have off the top of my head.

1. Quit filing misdemeanor marijuana cases. Really, nothing registers lower on the "Who gives a shit" meter than misdemeanor weed cases. Make them all class C paraphenalia if you have to, but these ding dong joint-in-the-console cases take up a lot of time with no benefit to public safety.

2. Post plea, we should thumbprint defendants in court. It's only a matter of time before some jail chain inmate takes a header off the stairs and sues the county for millions. I know this may take some coordinating with the court and district clerk, but it's a no brainer (literally, some inmate's brain cavity is going to empty one day because of this).

I won't hold my breath on 1. I've been advocating for 2 for a while.

For a class B misdemeanor in Texas the range of punishment is up to 180 days in county jail and a fine of up to $2,000. ROPs are the legislatures way of telling us exactly how outraged they are at particular conduct. They are in no way reflective of the harm caused to society or the victim.

Can you think of a reason that any person should serve 180 days in jail for-

DWI 1st?
Possession of marijuana?
Obstructing a Roadway?
Evading arrest (on foot)?
Theft $50-$500?

Really, think hard and try to come up with a scenario that a person should rot in jail six months for a joint or for bad driving? Worse, many county sentences are day for day. That's right if you are a felon serving time in TDC you can make parole and collect good time credit. County jail inmates? Not so much. It's up to each individual sheriff to set the ground rules. Kaufman, for example, offers no good time credit (even for trustee who spend all day working for the county for free).

After seven years of practicing law I've never seen a class B misdemeanor case that deserved 6 months in jail. It just hasn't come up. What I have seen is defendants scared to go to trial because of the possiblity (however remote) of getting a huge county sentence.

The range of punishment is often used as a trial threat (implicit or explicit). That is, proseuctors may threaten to ask for some draconian pyscho punishment if you take the case to trial (it's one reason to consider jury punishment in the right case). If you have a judge who regularly doles out long sentences (your defense lawyer should have at least a working knowledge of a judge's sentencing habits) it can persuade the innocent to plead guilty for some "great" plea offer.

Texas could go a long way towards saving our broken justice system by lowering all punishment ranges. Why 180 days? Why not a 90 day max? Or 60 days?

There is a huge spread of punishment ranges between class c (tickets) and class b cases. Only legislative posturing and voter apathy can explain the obtuse inanity. In Texas A class c misdemeanor (traffic ticket) carries no jail time and a max fine of $500. Commit a crime that's a little bit worse than that, and you could spend a whole NFL season behind bars. Tuff? Sure. Smart? Not so much.