Articles Posted in DWI Defense Lawyer

Potential Rockwall DWI clients are usually surprised to learn that they havd the right to refuse to participate in their DWI investigation. All you are required to do is provide your license and insurance. If you’ve been drinking at the Harbor and get pulled over you’re going to jail anyway. It’s just going to happen. Not getting arrested isn’t the goal, the goal is to not give the State fake junk science evidence (field balancing tests) they will use to convict of DWI (and DWI is the most expensive misdemeanor conviction in Texas).

That’s right, in Texas you do not have to answer any questions, including the most common DWI questions such as

– where you are going

One reason we needed the Michael Morton Act (which improved on our State’s horrible discovery rules in criminal cases) is that the State was hiding evidence which convicted innocent people. One problem with the Michael Morton Act, and the prior discovery rules is that there is no penalty if the State fails to turn over evidence, and then chooses to surprise the defense at trial with secret evidence. Let’s contrast this situation to the standard that we hold defendants, in which they are penalized at every stage of a proceeding for the slightest error. Defendant has work and misses a court date? Warrant! Defendant objects to the wrong subarticle of the Code of Criminal Procedure, that issue is waived on appeal! They created a new board certification for criminal appeals in Texas. But you don’t have to be an appellate genius to guess the outcome of any criminal appeal. 95% of the time whatever violations of the evidence rules, code of criminal procedure, or Constitution will be overlooked if the court of appeals can uphold a conviction. That’s the purpose of appellate courts in Texas, to uphold criminal convictions, and to reverse judgments for damages against Defendants in civil cases.

This leads me to our case of the day- Laura Sanders vs State of Texas

What happened?

Here’s a story from WFAA about problems with the DPD field sobriety testing program. Apparently too many officers were failing, and it’s taken on a racial angle of sorts.

Dallas police sobriety testing training practices called into question | Dallas – Fort Worth.

Here’s what you to know.

If there is one thing law enforcement hates, it’s the 4th Amendment’s requirement to get a warrant before searching. The reason? Warrants require an officer to have probable cause, and to explain said probable cause (in writing) before getting what they want (searching your house, stealing your blood etc). Warrants provide some degree of accountability for LEO, a very minor check on the almost limitless power of the State. Today let’s talk about searching your body, specifically your veins. In our DWI police state your blood is merely another piece of evidence for the State to gather, and they will hold you down GITMO style to do so.

The Supreme Court recently decided a case called McNeely vs. Missouri, which upheld the controversial position that holding down a DWI suspect and taking his blood without consent is a search, and a warrant is required unless there is some kind of emergency. I say this in controversial because a) prosecutors and law enforcement hate this idea and b) the Constitution usually doesn’t apply to DWI suspects.

So the Supreme Court rules on this blood search issue and now it’s up to Texas’ appellate courts to uphold this Constitutional safeguard. The problem is our appellate courts are largely pro-conviction police-state judicial activists who want the Government to win on appeal. Don’t believe me, today’s case of the day is Reeder Vs State from the Texarkana Court of Appeals.

When I first started DWI defense lawyering blood draws were pretty rare in DWI cases, but today they are becoming more common with the “no refusal” weekends etc. This has caused some problems as far the ALR/driver license suspensions are concerned. How does a blood draw affect your drivers license? Let’s take a look.

When Texas set up the ALR hearing system to suspend drivers licenses after DWI arrests they had breath tests in mind. That is, the State would know the bac result from the breath test at the time the defendant was arrested, so if the defendant failed, then the cops would notify DPS to suspend their license.

The law in Texas states that after being arrested you have 15 days to call DPS and ask for an ALR hearing to challenge your license suspension. If you don’t request a hearing, then your license will be suspended after 40 days (from the date of arrest). If you do request a hearing within 15 days your license is good until the hearing and then only if the judge rules against you (which usually happens, the ALR game is rigged so that DPS usually wins, because tuff on crime).

Being a DWI defense lawyer, or defendant, is tough in Texas. One reason is that our appellate courts will go to almost any length to uphold a DWI conviction. We have pro-conviction judicial activism to an amazing degree in Texas. Don’t believe me. Let’s go to the case of the day,

Kristen Aleia Simpson v. The State of Texas

Kristen was convicted of DWI after a jury trial. But it was a rigged trial. Rigged in the fact that the judge allowed jurors who expressed a bias towards the State to remain in the jury pool. Did you think that jurors are not supposed to be biased? That they are supposed to be fair and neutral? That’s only fair right?

Lesser included offenses can be an important part of a criminal jury trial. Some offenses, like misdemeanor DWI, don’t have any lesser included offenses. Others, like Aggravated Assault, are full of lesser included opportunities.

What is a lesser included offense? Let’s take an aggravated assault case. The difference between an aggravated assault (felony) and a misdemeanor assault is “serious bodily injury”. Aggravated assaults require that someone suffer a serious bodily injury, where misdemeanor assault just require some injury. So if you are on trial for aggravated assault, and you want to argue over whether the injury was “serious”, then you can ask that the jury be allowed to consider the lesser included offense of assault. That means, instead of just deciding if the defendant is guilty or not guilty of aggravated assault, the jury could consider finding the defendant guilty of only a misdemeanor assault. Confused? That’s ok, this isn’t an exciting topic for the lay person.

This being Texas, we do all sorts of mental gymnastics to uphold convictions on appeal. So if you want to appeal a conviction because the trial judge would not allow a lesser included instruction, here is how the court will decide that issue (spoiler alert, they will rule against the Defendant, but this is how they will rule against the Defendant).

Some prosecutors will seek to punish a Defendant who demands a trial and start digging through the case to find an “enhancement” (enhancement increase the possible sentence or limit parole etc). This is more common for Defendants with lengthy criminal histories, but some prosecutors apply this approach to anyone who dares seek a jury trial.

For example, a prosecutor may try to enhance certain felony cases because the county did not receive enough rain last year and was declared a disaster area. Our laws are so poorly written, and prosecuting in Texas is so poorly regulated, that these revenge charge enhancements (or trial penalties) are easy to come by if a prosecutor is so inclined. There is literally no risk to the State for piling on new charges or enhancements on every Defendant who seeks a trial.

This leads us to our case of the day-

It’s another No-Refusal weekend across the Metroplex. That means cops are going to seek blood warrant, and hold you down and take your blood vampire style. Murica!

First, let’s remember how we got here. The legislator passed laws limiting the ability of officer’s to hold you down and steal your blood.That wasn’t good enough for our convict-at-all-costs prosecutors, who got activist judges to effecitvely destroy the protections that were in place.

So now officers will fax their fill-in-the-blank warrants to friendly Judge Rubberstamp to take your blood, because the system needs arrests so we can justify more government employees and higher budgets fora agencies.

Pardon the generic title, but I need the internet to know that the Guest and Gray Rockwall Criminal Defense office is for business. Our firm been taking cases in Rockwall for years and we decided it would better serve our clients to open an office there.

If you are searching for a Rockwall criminal defense lawyer let me take this moment to introduce myself. I’m Robert Guest, Chief of the Criminal Defense Division. I’ve been blogging about criminal defense for a few years now. There is some great information available on the left, sorted by category. I’m a true believer member of the NORML legal committee. I think it’s insane and immoral that we arrest pot smokers, sellers, retailers, dealers etc. So if you are charged with a drug crime and want a lawyer who won’t judge you and thinks the drug war is a crime against humanity, consider our firm (and check out my War on Drugs posts).

I’ve been working criminal cases for a decade now. I prosecuted for 2 years, and my former blog was called “I Was The State”, which morphed into this blog. Being a former prosecutor has some advantages, but really it’s overrated. Clients like to know that you use to prosecute, but prosecuting doesn’t teach you anything about defending a case at trial, or investigating a case. It does offer some insight into criminal law, law enforcement, and it gives you a chance to watch some good defense lawyers try cases. Looking back on it, prosecuting was the easiest job I ever had as an attorney.

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