Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

Almost everywhere except Texas the offense of driving while intoxicated is referred to as DUI. If you don't believe me, do a search for DWI attorney and then search for DUI attorney and see how many more hits you get.

If a potential client has done some research before coming in, they often ask what's the difference between DUI and DWI. It's a good question because Texas does have an offense of DUI, or driving while under the influence. That offense applies only to minors, and prevents minors from driving whenever they have had anything to drink, even if they are not under the influence. An adult can be "under the influence" and as long as they are not intoxicated, no crime has been committed.

Some people think DUI applies to someone who is under the influence of drugs, but that is not the case. The DWI statute defines intoxication as "the loss of the normal use of a person's mental or physical faculties" by reason of the introduction of alcohol, drugs, or a combination of the two.

Although the laws in most states are fairly similar, there are important distinctions. While the offense of DUI in one state may be the same as DWI in Texas, there may be important differences, especially in terms of penalties. While its helpful to be educated, there is no substitute for a consulting with a lawyer experienced in handling DWI cases in Texas.

This post published by a Waco DUI lawyer

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The Texas Department of Public Safety has suspended the certification of an independent contractor who improperlly certified breath test results. Not surprisingly, this has generated a number of comments. Grits contains stories from both the Dallas Morning News and Houston Chronicle. Another blog list the agencies that are effected. Unfortunately, this is one more example of an expert who was too lazy to do the work. Fortunately they were caught, but this points out again the problems with blindly accepting expert opinions. It also points the need to scrutinize experts more carefully, and ensure they are qualified, and doing the work they claim they are doing.

This big question is what is going to happen to those cases where this expert testified. For defendants who plead guilty the answer is "it depends". In a writ of habeas corpus you have to establish harm. In this case, the harm would in the failure to actually certify the machine. In a guilty plea, By pleading guilty, you did not challenge the breath test, and therefore you are probably going to have to establish the machine's reading was not accurate. That is impossible to do, since sample are not maintained, and there would be nothing to re-test.

Another way to evaluate guilty plea cases though is whether you would have plead guilty if you knew the machines had not been probably certified. The answer is probably no, since the breath test results would not be admissible. Of course, if the evidence was overwhelming, the answer is probably different. To prevail on this claim, you would have to establish a duty on the State to disclose the evidence. They are charged with knowledge of whatever law enforcement knows, so even if the prosecutor didn't know about the problem, that is not a valid excuse. Generally though you have to make a request for the evidence,  which is usually a Request of Favorable or Exculpatory Evidence. If no request was made, you may not be able to establish the claim.

For defendants who went to trial, they will probably be able to obtain relief. The machines have to be certified if the test results are going to be admissible, and therefore the expert would have committed perjury in testifying that the machine was properly certified.

For any claim, you are going to have to able to establish the machine in your case was not properly certified.  How difficult that is going to be remains to be seen. Hopefully DPS will identify those cases involving improper certifications and notify the defendants and their lawyer.

The effects of this are not going to be fully known. If you think your case may be one effected you should check it out.

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Since I started blogging, I've come across many things I might never have known about - at least not until later. One of the best blogs is Grits for Breakfast, written by Scott Henson. He recently posted on an effort by the Texas Attorney General to re-instate TDPS roadblocks.  In 1994 the Courts held roadblocks were illegal, unless they were conducted pursuant to statewide standards. The court was obviously concerned over the intrusive nature of roadblocks, and wanted to make sure they were conducted only when necessary, and not merely as another tool of law enforcement (i.e. to catch DWI offenders). Since then, there have been no statewide standards, although there are plans to pass legislation in the upcoming session to authorize roadblocks.

In an effort to shortcut the legislative process, the attorney general is proposing to implement guidelines through the Texas Department of Public Safety. The plan is to establish guidelines that would authorize roadblocks by not just TDPS, but also by local police departments. The proposal is currently open for comments, and hopefully they will get a lot.

We have all set through traffic accidents, and know how frustrating that is. We know its unavoidable though, and live with it. How would you like to have to deal that on Friday and Saturday nights, when you are trying to get somewhere. Roadblocks have their place, but they should only be used in those rare occasions when its absolutely necessary. Let's hope common sense prevails, even though we are dealing with politicians.

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Probably everyone has heard by now about the mother of a death row inmate who smuggled him a cell phone. The bright young lad used the phone to call a State Senator and threaten his daughters. Many of the people in prison are there because they don't have good decision making skills, and this young man certainly exemplifies that. No good can come from threatening a State Senator. Instead, a lot of bad things are going to happen, the first of which is you lose the cell phone, and the ability to communicate with the outside world.

I'm sure this young is the least liked person in TDCJ these days. A system wide shut down was ordered to search for contraband, which is probably going to turn up all sorts of things. They are also going to do what they can to make sure no one else gets a cell phone in prison, which apparently is more common than we all thought.

Instead of taking their typical knee jerk response, TDCJ would do well to look into the reasons behind the problem. One of those is the lack of phone service. Although they are looking into a service (from which someone will get very rich), there is currently no way for inmates to communicate with their families, other than mail and direct visits. Since many inmates are housed far away from their families, visits are often few and far between. The result is that many are effectively cut of from family contact while they are incarcerated. It's no surprise that they want to be able to have contact with the outside world. There is no doubt that cell phones are used for illegal activity, but I would guess most are used to communicate with family.

For the most part, TDCJ does not allow contact visits. That means that if you are going to smuggle something in, you need a guard. Some have commented that the low pay of prison guards encourages such activity; they need to make a little extra money, so they smuggle contraband. I don't buy that argument. Most people are not going to engage in illegal activity to make a little extra cash - at least that's what I would like to believe. I think it has more to do with the individual you hire than with what you pay them. That's not to say the amount of compensation is not a factor. You have to pay enough to be able to attract qualified people. If you don't, you are going to end up with people who don't have other options. That may not be an issue for vocations like teaching, but how many people really want to work in prison. You are going to have to raise compensation to attract qualified candidates, but then you are going to have to do the necessary screening to make sure you get the right person.

I don't have faith that TDCJ will do anything more than concentrate on enforcement. Until they address the cause of the problem though, someone is also going to be able to come up with a way to beat the system.

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How many times have you heard the statement that no two fingerprints are the same. Experts testify to that in courtrooms throughout the country on probably a daily basis. The validity of that assertion has been questioned in the last several years; as with other areas, it is a statement made without any scientific support.

No matter what your opinion of the validity of fingerprint analysis is, like anything else reliability is based on the person doing the examination. A report today issued by the Los Angeles police department details two cases involving faulty fingerprint analysis. In one case a person was charged with breaking into a store. In another case, a person was extradited from Alabama to face burglary charges after his prints were matched to those found at the scene. In both cases the analysis was reviewed and verified by another examiner.

According to the LAPD report, the fingerprint section was poorly run, and individuals were reviewing work and merely rubbers tamping it.Fortunately for the two individuals, the mistakes were caught. They must now try to determine whether other mistakes were made - common sense tells you there are probably other such errors.

This is one more incident which shows science is not infallible. Fingerprint examination is an entirely subjective discipline. As such, it hinges on the competence of the examiner. You would like to think all examiners are competent and take their jobs seriously, but we all knoow that is not the case in any profession.

The lesson from this story is that fingerprints, like anything else, should not be blindly accepted, even when they have been reviewed and verified by a nether examiner. If there is any doubt, an independent expert should be consulted. If we are going to send someone to prison based on the opinion of an expert, then we need to make sure it’s accurate

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Both Simple Justice, and Truth in Justice, recently commented on the reversal of a criminally negligent homicide conviction in New York. The 17 year old defendant was on his way home when he lost control over his car while going through a turn. He had 3 friends with him, who all died. The defendant was speeding, and only had a junior license. The Court of Appeals concluded that was not enough to make the conduct criminal.

Sometimes people have a hard time accepting that some actions are not crimes. Criminal statutes are generally designed to punish intentional conduct; you know something is wrong, but you do it anyway. You don't always have to intend the result; for instance, you might get in a fight, and during the fight the other person trips, and hits his head, resulting in serious injury. You may still be guilty of an aggravated assault, if serious bodily injury resulted.

All but a few criminal offenses require a mental state. There are three - intentionally, knowingly and recklessly. Recklessness means you aware of the risk, but ignore it. In the assault example, you know something might happen. You can be reckless, and be just as guilty as if you act intentionally.

Sometimes you don't need a mental state at all.  Intoxication manslaughter is one of those offenses. If you intoxicated, and involved in an accident, you are guilty. The State doesn't have to prove the accident was the result of your drinking, they just have to prove you were legally intoxicated. Sometimes its nothing more than bad luck; both for the defendant, and the other parties.

So why should you be guilty if you don't have the necessary intent? The theory is strict liability - you are responsible for the consequences of your actions, no matter what your intent is. If you drive while intoxicated, you are responsible for whatever happens. Some may think it fair, and some may not.

Not everything has to be crime. We have a civil justice system that is designed to handle disputes. We would be better off if we let the civil justice system handle some of those disputes, and not make everything a crime. After all, we have more than enough people in jail already.

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The Dallas Morning has started a series addressing the use of faulty eyewitness identifications in the Dallas County exonerations. The second article addressed the use of "show ups, which were involved in 3 of the 19 exonerations. For those that don't know, a show up is when a victim is shown a single person, and asked if that is the person who committed the offense. The suspect is almost always in police custody, and many times is sitting in a police car. It doesn't take a rocket scientist to figure out that is someone the police think may have committed the offense.

The problems with show ups are obvious - there is a preference to pick the person you are looking at. If the police don't get the right person, there is good chance the wrong person will be picked. Almost 40 years, the Supreme Court held one person show ups were dangerously suggestive, and discourage their use. Ten years ago the justice recommended stricter limits on the use of show ups. Despite all those admonishments, police continue to use show ups.

Why are police continuing to use. Part of the reason may be a lack of training and education, although its to believe even the worst trained officer wouldn't recognize the problems. The bigger reason is probably that they are easy; you don't have to really do anything, and you can resolve the case quickly. There's problem also an unstated mindset; they believe the have the right person, and don't have any doubts about it. Many probably also continue to believe that eyewitness identifications are always accurate, and the victim wouldn't pick someone out if it wasn't the person who committed the crime.

I think there is also another reason why police continue to use show ups. Prosecutors continue to accept them, and judges don't exclude them. If you can use it, why not do so. Prosecutors and judges rarely even question show ups, which means there is no reason for police to make sure they are carefully done. Jurors also seldom question them, and have no problem convicting people on such questionable identifications.

I don't have any hope that show ups will go away, although there is some hope. State Senator Rodney Elllis has stated that he will introduce a package of reforms, addressing the cause of wrongful convictions. That includes show ups, which he would like to see prohibited. Hopefully that will at least keep the issue before the public. in the end, education may be the best solution. If the public can be convinced of the dangers of show ups, prosecutors will have to listen.

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How Appealing noted an article in the Houston Chronicle about the investigation of Federal judge Samuel Kent. Kent has been indicted for federal sex crimes. The article notes that Kent is not alone; four other federal charges are facing cages including taking cash from lawyers, abuse of power, using an escort service, and posting nude photos on a web site. It is rare for a federal judge to face such charges; it is even rarer to have this many at the same time.

Federal judges are appointed for life. As a result, they have almost unlimited power. On Congress has the power to remove a federal judge. Although its happened, its been a long time since a federal judge was removed by Congress.

Is there a reason for this, or is it just a reflection of society? I don't have the answer, but I have some thoughts. Federal judges have  a tremendous amount of power. Such power can corrupt some people. You hope the selection process weeds out those who are susceptible to abusing power, but we know it doesn't always. As a society, and as lawyers, we have to monitor the actions of our judges, and not be afraid to challenge them when they are wrong.

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I recently wrote about the O.J. Simpson verdict, and the number of jurors who knew about his prior murder trial. I know it comes as a surprise to many people to find out someone can be on a jury even when they know the parties, or know something about the case. One of the things you have to educate clients about is who can serve on a jury, and how you select them. We often hear people refer to a "jury of your peers". The fact is you never get a "jury of your peers" - unless you define peer to mean any member of the community.

Generally, anyone over 18 years of age, and who doesn't have a felony conviction, or theft conviction, is eligible to serve as a juror. You also have to be of sound mind (which is clearly subjective), and be able to read and write. In the past, you had to be a registered voter, but that is no longer the case; now you only have to be qualified to register. There are certain exemptions you can claim, but you don't have to. People over 65, those taking care of small children and full-time students can claim an exemption from jury service.

The term jury selection is a misnomer. No one gets to "select" jurors they want. A more accurate term would be de-selection. Each side is given a certain number of "peremptory" challenges. A party can use those to remove a juror for whatever reason they want. The only restriction is that you cannot remove a juror solely because of race. The number of peremptory challenges depends on the type of case. in felony cases, each side gets 10, while in misdemeanor cases each side gets 5.

The process of jury selection is called "voir dire", which basically means to speak the truth. Each side is allowed a certain amount of time to ask questions. The questions are generally aimed at uncovering the jurors' attitudes about issues that are important to the case. The questions are also directed toward uncovering jurors who may not be qualified to serve.

The process of removing a potential juror is through a challenge for cause. The grounds for such a challenge are generally set forth in the Code of Criminal Procedure. Art. 35.16 contains roughly 11 reasons for disqualifying a juror.  Those include being related to a person in the case, being a witness, or having served on the grand jury that returned the indictment. Most of those challenges are fairly straightforward, and easy to decide.  The tougher challenges are those that are more subjective.

One ground is that the juror has a bias or prejudice in favor of, or against the defendant. That can include many things. A potential juror may have a bias against the law - such as the right to testify. They might also have a bias for or against certain types of witnesses, such as police officers. A juror's prior experiences may also cause them to be biased against all defendants, or those charged with certain types of crimes. It is not unusual for individuals or family members who were involved in similar case (especially sexual assault), to be unable to serve. Ultimately, these decisions are made by the juror; they are the only ones who can know whether someone is going to interfere with their service.

Another basis is that the person has heard about the case, and based upon what they heard, made up their mind. Knowing something about a case does not disqualify a person. In highly publicized cases (i.e. O.J. Simpson), it is not unusual for many jurors to know something about the case. A juror is not disqualified unless they have already made their mind. Again, this is a decision that is ultimately left the individual juror.

After removing jurors with biases, and each side removing jurors they  believe may  favor the other side, the hope is you are left with in impartial jury. The process has problems. Lawyers need to have the opportunity and ability to uncover potential biases. Jurors also have to be honest, and willing to disclose their true beliefs. Once selected, jurors have to fairly evaluate the evidence, and set aside their personal attitudes and beliefs.

We need to always remember how lucky we are to have a jury system, where cases are decided by ordinary citizens. Some people want to limit,or take away that right. Let's hope they are never successful.

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Was the O.J. Simpson guilty verdict payback for the acquittal in his murder case. According to CNN, 5 jurors believed he was guilty of the murder charge. Most of the jurors had heard about the murder case, and a few agreed with the verdict.

The fact that so many jurors knew about the previous case might surprise some people. Many believe you are not qualified to be a juror if you know something about the defendant, or their case. Knowledge does not disqualify a potential juror; the critical question is whether the juror has already made up their mind, or whether the knowledge would influence their decision. You have to rely on the juror to make that determination, and unfortunately there is no way to determine whether they are being honest No doubt some jurors lie to get on juries, but I have to believe the vast majority honestly answer the questions.

According to one of O.J.'s attorneys, the guilty verdict was payback for the previous acquittal. Of course, we will never know whether there were other motives involved; I'm sure no one would ever to admit to that, even if were true. I think the facts suggest this wasn't the case though. The most telling fact is that the jurors deliberated for 13 hours. That is a long time for a criminal jury to deliberate; many cases are decided in a few hours or less. The fact that they deliberated so long suggests they carefully considered the evidence; if they already had their minds made up, you would expect the decision to be fairly quick. Another factor is the quality of the evidence. You didn't have scientific evidence, and more importantly, you had witnesses who were there when it happened. The question for the jury was whether they were telling the truth, which they obviously decided he did.

It will be interesting to see what happens at sentencing. I doubt few people will feel sorry for him if he gets a substantial amount of time.

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