Freeing Tiger: Breaking Down Tiger’s DWI/DUI Arrest: Part 2 – Intoxication
DWIs or DUIs are some of the most litigated cases in the criminal justice system. They are very fact-dependent cases, where strategy can change in a heartbeat depending on how the facts play out.
With Tiger it is easy to assume the worst, however, under the law, the only assumption must be that of innocence. In fact, Tiger is guaranteed it. If he chooses a jury trial, he is guaranteed the right to a fair and impartial jury strong enough to hold the State in check; willing to require each and every element of the alleged offense be proved beyond a reasonable doubt. In other words assume the best, even if it is Tiger.
In part one of this two-part series, we broke down the element of operating. In part two we’ll look at intoxication or impairment.
To start, the legal definition of DUI or DWI in Florida is similar to Texas, providing in order to convict a person for DWI or DUI the State must prove beyond a reasonable doubt that:
The person is intoxicated while operating a motor vehicle in a public place.
The State must prove the person was intoxicated at the time of driving.
Intoxication must be proved by showing a person has lost the use of their normal mental and physical faculties through alcohol or drugs, or a person has a blood alcohol level that is 0.08 or higher at the time of operating/driving. In this case and because there is no per se level of intoxication for drugs, the latter method of proving intoxication is inapplicable.
How the State will try to get there:
Prosecutors will attempt to show Tiger had lost the use of his normal mental and physical faculties at the time of driving through the introduction of drugs. To do so, they will use a combination of the alleged bad driving facts, officer’s observations, Tiger’s statements (including his post-arrest statement), the field sobriety exercises, the Drug Recognition Expert’s (DRE) Evaluation, the urine sample, and a toxicologist’s interpretation of the urine sample results.
How the Defense can Prevent the State from getting there:
- Officer’s observation: Tiger was confused.
Of course he was. He had just woken up. Greeted by Jupiter’s finest. If someone is found sleeping in their car, you can bet they were at the very least tired. A recent MIT study compared impairment vs. sleep deprivation and found if one sleeps only 6 hours it is comparable to 2-3 beers; 4 hours is comparable to 5-6 beers; 2 hours is comparable to 7-8 beers, and no sleep is the same as drinking 10-11 beers. We know it was early in the morning, but we don’t know what Tiger had done that day or how long he had been up. Under the law and under the presumption of innocence we are required to presume exhaustion and sleep deprivation were the cause of Tiger’s demeanor unless the State proves otherwise beyond a reasonable doubt
We also know there was damage to Tiger’s car. Both of Tiger’s driver side tires were flat, with damage to the rims, front bumper, rear bumper and rear tail light. There was an accident of some kind. The severity we don’t quite know, nor do we know how and where the damage occurred or how the accident impacted Tiger’s mental and physical faculties (although we get a good idea from the video). Symptoms of intoxication mirror symptoms associated with head injuries and concussion. It is why officers are taught as part of their investigation to ask about any possible head injuries. Head injuries cause slow and slurred speech and head injuries cause confusion. We can lawfully presume the cause of Tiger’s demeanor was the result of a head injury.
- Tiger’s statement he took several prescriptions.
“Soloxex” is likely a misspelling of soloxine (levothyroxine sodium), a drug meant to treat dogs with hypothyroidism, a condition in which the thyroid doesn’t produce enough thyroid hormone. In January of 2016 the FDA issued a warning letter to the drug’s manufacturer, Virbac, for producing the drug without FDA approval. The dog pill would unlikely cause impairment.
“Torix” is likely a misspelling of Etorix or Turox. This drug is used to treat joint pain and is currently not approved in the United States. Side effects are limited to rare instances of skin rashes. Again, this pill alone would unlikely cause impairment.
Of the drugs listed, “Vicodin” could cause signs of impairment, including drowsiness and confusion, especially at high doses. Vicodin, a brand name for hydrocodone, is an opioid painkiller and a schedule II substance under the Controlled Substance Act. However, a statement that you are prescribed Vicodin is not enough. To prove their case beyond a reasonable doubt the State needs more. The urine tests could help, if a quantitative analysis (how much) is accompanied with it. However, urine tests are often presumptive indicating only if a drug is present. Additionally, urine tests must be gathered, collected, and stored properly or risk contamination. Another issue with drugs, unlike alcohol, is they cannot be extrapolated back to the time of driving. This is because of the way they are processed through the body, referred to as first-order kinetics. A fancy way of saying from person-to-person we don’t really know how long it will take the drugs to absorb, distribute, metabolize, and exit. All of this makes drug impairment at the time of driving difficult to prove beyond a reasonable doubt.
- Was there an odor of alcohol or not?
The odor of alcohol is a classic sign of intoxication. Typically you will see words such as “strong odor of alcohol”, despite the fact that alcohol doesn’t have an odor and officers are unable to tell how much someone had to drink based on that odor. After going back to write his report, Officer Fandrey notes “none” for odor. However, on video released, we here the following exchange:
- Officer Fandrey: Have you had anything to drink?
- TW: No.
- Officer Fandrey: Are you sure about that . . . because there is some odor coming from you.
We know later Tiger submits to a breath alcohol test that reads 0.00.
So did Tiger have an odor of alcohol or not? Did Officer Fandrey conveniently change his opinion after seeing the breath alcohol results? Jupiter PD for the win.
- The Standardized Field Sobriety Tests:
Tiger should have never been given these tests.
Officers are trained to administer field sobriety tests in accordance with procedures and standards set out by the National Highway Traffic and Safety Administration (NHTSA). The three recognized and standardized tests are the Horizontal Gaze Nystagmus (the pen or eye test), the Walk & Turn (walk the line) and the One Leg Stand (stand on one foot). While the tests are used as indicators of impairment, they are really nothing more than glorified coordination exercises designed for you to fail. Both sober and impaired persons equally struggle with the exercises. That is why scientific studies, in charge of developing the exercises, resulted in a high % of false arrests. Additionally, these tests have specific procedures and protocol that need to be followed, though they rarely are. The NHTSA manual itself states, “If any one of the Standardized Field Sobriety Elements is changed, the validity is compromised.”
Tiger should have never been given these tests. Officers are taught to screen subjects prior to administering the tests. Of importance is whether a person has any back, leg, or ear problems. In his report, Officer Fandrey says,
- “I asked Woods if he had any injuries that would stop him from standing on one foot or walking in a straight line to which he replied no . . . “
Wait, what?
How about 10+ surgeries since 1994, including 4 back surgeries, two ACL surgeries and a ruptured Achilles? His most recent back surgery was just last month. You just asked someone, fresh off back surgery, to walk a line heel-to-toe? Jupiter PD for the win again!
- Linking drugs to impairment.
We are still waiting on the urine analysis, but tucked away somewhere is the DRE evaluation. Urine analysis coupled with DRE evaluations are used to bolster the State’s case that drugs were the cause of impairment. It is a 12 step program backed by NHTSA and others that allow an officer to give an “expert” opinion that not only were drugs the cause of impairment but what kind of drug. DRE programs came about in the 1970s after officers arrested people for intoxication, noting things like odor of alcohol, but then reading 0.00 across breath testing machines (sound familiar). The police reports say an Officer Borrows completed the DRE evaluation, but it is MIA. All we’ve seen thus far are tests associated with arresting someone for an alcohol-related offense.
With more information being given daily, we’ll have to see how this plays out. For now, if you consider yourself law abiding, Tiger deserves we presume him innocent.
Freeing Tiger: Breaking Down the DWI/DUI Arrest – Part 1
DWIs or DUIs are some of the most litigated cases in the criminal justice system. They are fact-dependent cases, where strategy can change in a heartbeat as new information is revealed.
With Tiger it is easy to assume the worst, however, under the law the only assumption must be that of innocence. In fact, Tiger is guaranteed it. If he chooses a jury trial, he is guaranteed the right to a fair and impartial jury strong enough to hold the State in check; willing to require each and every element of the alleged offense be proved beyond a reasonable doubt. In other words assume the best, even if it is Tiger.
In part one of this two-part series, we’ll look primarily at the element of operating. In part two we’ll break down intoxication.
To start in order to convict a person for DWI or DUI the State must prove beyond a reasonable doubt that:
A person is intoxicated while operating a motor vehicle in a public place.
Because we know Tiger was found in his car on a public road, we’ll look past the elements of a person, motor vehicle, and public place.
But what about “operating”?
Skimming through available police and incident reports the issue of operating is in play and here is why.
Date: May 29, 2017
Time of Stop: 2:03 AM
Time of Arrest: 2:49 AM
Time of Breath Test: 4:22 AM
Time of Urine Test: Shortly after 4:35 AM
Officer Palladino was the first officer on the scene at approximately 0203 hours. In regard to operation, his report states:
- “ . . .dark colored sedan was not moving.”
- “The vehicle’s rear brake lights and right turn signal were still active.”
- “The vehicle was stopped in the right lane and its passenger side tires were partially blocking the bicycle lane . . . “
- “ . . . running vehicle . . .”
- “I advised the male to place the vehicle in park and turn the vehicle off. While speaking with the male Sergeant Hennessy arrived on scene . . .”
- “I again asked the male to put the vehicle in park and turn it off.”
- “Officer Imperiale arrived . . . and stood with Woods in the vehicle.”
Contrast with Sergeant Hennessy’s Report: “Officer Palladino . . . had located a disabled vehicle.”
See also Officer Imperiale’s Report: “Officer Palladino observed . . . a disabled vehicle . . .”
Why It Matters: While most people may believe driving while intoxicated means actually driving, courts have held proof of movement is not needed to meet the element of operating. For example, in Dornbusch v. State the court found sufficient evidence to establish the driver was operating a motor vehicle where officers found him passed out in the driver’s seat with the car running, in drive, headlights on, music playing and the curb being the only thing keeping the vehicle from moving. 262 S.W.3d 432, 433, 437-38 (Tex.App.-Fort Worth 2008, no pet.). On the other hand in Texas Department of Public Safety vs. Allocca the court found the motorist was not “operating” his vehicle while intoxicated after being found sleeping in the car with the front seat reclined, the car in park, the lights off, and the engine running. 301 S.W.3d 364 (Tex.App.-Austin 2009). The question becomes whether the State can prove the person “ . . .took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use.” Denton v. State, 911 S.W.2d 388, 390 (Tex.Crim.App.1995).
So can the State prove Operating?
Maybe. Maybe not. We need to see more. While Officer Palladino’s report states Mr. Woods was asleep behind the wheel with the car running, in drive, and lights on, Sergeant Hennessey’s report, who was on the scene prior to Mr. Woods placing his car in park and turning the car off only refers to the car as “disabled.” Officer Imperiale’s report mirrors Sergeant Hennessey’s, calling the car “disabled.” Look up the definition of disabled and you will find “out of action”, in other words not on.
We know per Officer Palladino’s report his dashcam video was turned on when he pulled up behind Tiger’s car.
- “I pulled behind the stopped vehicle blocking the right-hand southbound lane activating my overhead lights and Dashcam video.”
That video should show if the car was running, in drive, with the brake lights on or if the car was “out of action.” If the video or portion of the video goes MIA, then the State will have bigger problems.
Another question that needs to be answered surrounds the car’s damage. Per the police reports:
Officer Fandrey’s Report: The later investigation revealed fresh damage to the vehicle. Both driver’s`side tires were flat along with minor damage to both respective rims. There was also minor damage to the front driver`s side bumper and rear bumper, and the passenger rear tail light appeared to be out.
Officer Imperiale’s Report: The damage that was noted is as follows: driver’s side front and rear rims were damaged and their respective tires were flat, the front bumper on the driver’s side was damaged, and there were some white scrapes and scuff marks on the rear bumper, and the passenger side tail light appeared to be out.
Where did this damage occur? How? When? Are there any witnesses? Did Tiger call anyone? Text anyone? Was Tiger driving? Was he with someone else? There have been reports Tiger may not have been alone. Although the person of interest, Instagram model Laci Kay Sommers denies being with Tiger that night/morning.
If you had been in an accident or had two flat tires, wouldn’t you pull off to the side? Would you put your car in park? Would you turn the car off? It it was 2 AM, fresh off major surgery, would you fall asleep?
Before we assume the worst, before sponsors jump ship, before we publicly convict, we need to know much more.
Freeing Tiger: Part 2: Breaking down Tiger’s DWI/DUI Arrest – Intoxication
Winning at Voir Dire: 54 Steps to Jury Selection Success
Look at the photo above. What do you see?
A) Lava
B) An Ocean
C) A Desert
D) Mountains
E) Something Else
Ask others what they see. You will find people view this photo differently. People view this photo based on what they have experienced in life.
In the context of voir dire, think about a hung jury.
The jury has just sat through and seen all the same evidence and exhibits; has heard the same opening statements and arguments; and, has been read the same jury instruction from the court. Yet the decision makers were unable to unanimously reach the same conclusion.
Why?
Because just as our life experiences influence the way we see the photo above, our life experiences influence the way we interpret the evidence. Each juror’s conclusion, whether guilty or not, was made through their worldview. Life has stamped a colored imprint on the lenses of each juror’s eyes. This footprint has been strengthened over time and is unlikely to change in just thirty brief minutes.
This is why, contrary to what lawyers are often taught, a jury trial is won or lost the moment the jury panel walks into the courtroom, not at the conclusion of voir dire.
Once the trial lawyer understands that, they are better armed to find and strike any juror whose worldview is inconsistent with an acquittal. The ultimate goal of voir dire.
This is how.
Pre-Trial:
- Review applicable jury charge for potential challenges for cause.
- Review applicable law for potential challenges for cause.
- Identify the emotional (hot-topic) issues of your case.
- Develop a summary of your case.
- Bounce that summary off family, friends, and staff.
- Narrow-down the issues non-lawyers find important.
- Focus Groups: useful to discern what issues may be important to a jury, that wouldn’t be to an attorney.
- Focus Groups: not useful to predict what your jury panel is likely to believe because each panel will be different.
- Know the type of juror you are looking for in the box.
- Have a theory to your case.
- Draft relevant questions.
- Practice your questions until they become natural.
Trial (prior to voir dire beginning):
- Have help.
- Have a jury seating chart.
- Know how jurors are seated in the courtroom.
- Get the jury information sheets as soon as possible.
- Immediately assign prospective jurors a rating (Leader/Follower; For Me/Against Me)
- If the ratings suggest, request a shuffle.
- Write out jurors by name
- Engage the panel from the start. Begin voir dire by providing a context encouraging full participation.
- Begin with questioning “Leaders – Against Me.”
- Spend time with jurors who may actually be reached.
- Best practice is to have someone else take notes, so you can give your full attention to the panel.
- Don’t explain things to the prospective jurors; let them explain things to you.
- Refer to jurors by their last name.
- Don’t argue with a potential juror: this is the quickest way to ensure individuals will not express their strongly held opinions.
- Ask “Loaded” questions. “People have strong feeling about the burden of proof in a criminal cases. Some people would require the state to prove their case beyond a reasonable doubt. Other people feel beyond a reasonable doubt is to too high a burden. They would require the State to prove their case by clear and convincing evidence.
- Ask “Winning” questions, “Can you think of some reasons why a child may lie? Winning questions allow the jurors to provide pertinent answers to the theory of your case.
- Refer to answers from jurors throughout the course of your trial (e.g. opening, cross, closing, etc.)
- No legal words.
- Don’t be afraid of unfavorable answers or “poisoning” the panel.
- Loop unfavorable answers for cause with “Who has a different opinion from {juror}?”
- Loop favorable answers for cause with “{Juror} has said . . ., who has a similar opinion?”
- “Tell me more about that . . .”
- “Is it fair to say . . . “
- Ignore the good.
- Identify and engage the bad.
- “Can you think of any other reasons . . .”
- Thank jurors for their honest opinions.
- Protect the record. Identify juror’s head nods and answers by name.
- When challenging for cause (at bench) remind the juror what he or she previously said.
- Follow up with “Are my notes accurate?”
- Nail the strike down: “Is it fair to say that regardless of the law, the facts, or the judge’s instructions that you . . .”
Preemptory Strikes:
- Ask all decisions makers (see #12) to make a list equal to the number of preemptory strikes. No discussion at this point.
- Compare numbers.
- Use a preemptory strike on any juror who shows up on every list.
- If strikes remain, discuss.
- “Leaders – Against You” are struck first.
- “Leaders – Questionable” are struck second.
- “Followers – Against You” are struck third.
Additional Tips:
- Rid of jurors that have a point of view inconsistent with an acquittal in your case.
- Understand jurors make up their mind and then justify their decision.
Happy jury selection and good luck.
Harris County Misdemeanor Marijuana Diversion Program
Effective March 1, 2017, the District Attorney’s Office will unveil the Harris County Misdemeanor Marijuana Diversion Program (MMDP). This program aims to give citizens a chance to avoid misdemeanor marijuana arrests and convictions by completing a 90-day program while also seeking to use resources of the Harris County Criminal Justice system more effectively and efficiently.
To be eligible for participation in the Harris County Misdemeanor Marijuana Diversion Program a person must:
- Be 17 years or older;
- Be found to have four ounces or less of marijuana;
- Possess sufficient identifying information at the time of detention (stop);
- Have no additional criminal charges arising out of the instant detention. For example, a person found in unlawful possession of marijuana and Xanax would be ineligible;
- Have no outstanding warrants;
- Not currently on bond, deferred adjudication or probation for a Class B offense or greater; and
- Be stopped and detained in Harris County (Montgomery County, Waller County, Liberty County, Galveston County, Ft. Bend County, Chambers County, and Brazoria County do not apply).
Note: A person will still be eligible to participate if they have a prior criminal record and/or if they have participated in the program before.
A person is not eligible for the Harris County Misdemeanor Marijuana Diversion Program if:
- They are on bond, deferred adjudication or probation in Harris County or another jurisdiction for any offense other than a Class C (e.g. speeding ticket);
- Officers determine the person possesses marijuana with the intent to deliver (i.e. be careful how much cash you have);
- Is in possession of a concealed handgun and marijuana without a valid Concealed Handgun License (CHL). In this instance the person, assuming all other requirements are met, will only be charged with the Unlawful Carrying of a Weapon;
- Possess four ounces or less in a “drug-free zone”;
- Possess four ounces or less in a corrections facility;
- Is currently enrolled in the MMDP program; or
- Is found with cannabis wax, cannabis oils, etc. (these are controlled substances under Texas law and a felony).
Note: The officer can still detain and arrest you for driving under the influence of marijuana if probable cause exists that you were driving while intoxicated through the introduction of drugs.
Harris County Misdemeanor Diversion Program Requirements:
The Marijuana program requires a person to:
- Sign up for and complete the 4-hour MMDP cognitive decision-making class within 90 calendar days of his or her arrest;
- Not break the law before completion of the course (i.e. do not get arrested for another offense before the 90 day period is up); and
- Pay a $150 program fee.
MMDP Program Procedure:
When a person is stopped, and an officer finds a misdemeanor amount of marijuana, the officer should contact the Harris County District Attorney’s Office to confirm 1) probable cause exists for the detention (i.e. “the odor of marijuana”) and 2) if the person is eligible for the MMDP program. If the person is eligible, the officer will not make an arrest but instead will offer an agreement stating the marijuana program’s requirements and ask the person to sign. After signing the MMDP form, the person is released. If the person refuses to sign the MMDP form, they will be arrested, booked, and charged as if the program did not exist.
Once the person successfully completes the marijuana diversion program, no criminal charges will be filed and no criminal history of the event will exist. If the person agrees to but fails to complete the diversion program a formal criminal charge will be entered and an arrest warrant will be issued.
For Harris County misdemeanor marijuana cases filed before March 1, 2017
If you have been charged with possession of marijuana, 4 ounces or less, before March 1, 2017, you may still be able to take the class and have your case dismissed. Though as of this writing, the answer has not been finalized.
For additional questions feel free to contact our office, the Adamo & Adamo Law Firm at 713-237-8380 or email us at [email protected].
Super Bowl LI: Good decisions gone bad.
In case you live in a bubble, on February 5, 2017, Houston will host the 51st NFL Super Bowl. While the game will attract millions of worldwide viewers, it is the events leading up to the game that will draw the most attention. Houstonia Magazine has been running a feature, highlighting everything you need to know in preparation for Super Bowl LI. Perhaps more important than the parties is understanding what to do when the wheels come off during one. So if you or your mate’s motto is “bad decisions make for good stories”, keep reading.
First Quarter: 5th Amendment.
You didn’t plan on being out long, but you bumped into Johnny Football. Before long, you’re dropping your flag football college intramural stats. Next thing you know someone in his entourage hands you a shot. And another. And another. Time flies when you are partying with JFF and now it’s 2:00 AM. Uber is running 5X their normal rate and, besides, you feel invincible. You hop in your car to head home. It’s just a few blocks away, but valet turned your auto lights off and the eyes of Texas are now staring down upon you. Red and blue flashing lights appear in your rear-view mirror. Two officers approach your driver side window. “You had anything to drink tonight?”
You have the right to remain silent, but you also need the ability. Know that anything you say will be used against you. Remember two lines: “Am I free to leave?” If the answer is “yes”, leave. If the answer is “no”, then “I’d be happy to cooperate with my attorney present.” No more, no less.
You drop $250 for a once-in-a-lifetime chance to attend the Playboy Party. You’ve fallen in love eight times tonight, but the ninth time it’s for real. That is until some bro slides in on your wife-to-be. Words turn to insults. Insults turn to shoving. Unknown to your adversary, you’ve been trained by Miyagi Dojo and unleash a crane kick in the middle of the crowd. Of course, crane kicks are better suited for 1980s Hollywood, and yours lands on the face of wife-to-be number nine. “That’s assault Brotha” and the men in blue have taken notice. Walking away in cuffs, you get the attention of your buddy, “get me outta here.”
There are 2 ½ options for bail in Harris County:
(1) Post a Surety Bond: Contact a bonding agency or Harris County criminal defense attorney who will cover the bond for a fee of approximately 10-15% of the total bond, So if the bond was $20,000, you would pay $2000 to the bondsman and he would cover the total bond. The $2000 fee is non-refundable.
(2) Post a Cash Bond: If you post a Cash bond, you will pay 100% of the bond amount. For example, if the Bond is $500, you pay $500. If the bond is $10,000, you would pay $10,000. Once the person’s case is disposed of or complete, the amount posted will be refunded.
To post a cash bond:
- Go to the Jail Public Information Inquiry or call the Jail Information Line at 713-247-5400 / 713-837 – 0311 and type in the necessary information.
- Print the search result page or write down the person’s location, arrest number, name and date of birth.
- For any offense greater than a Class B Misdemeanor take cash along with your photo ID to 49 San Jacinto, Houston, TX 77002 (phone: 713-755-8040). Be prepared to wait in line.
(1/2) Hope for a Personal Recognizance (PR) Bond: a PR bond is where the person is released upon his or her own promise to appear. These bonds are reserved for low-level, low-risk persons with no criminal history. Neither a bondsman nor a cash bond is needed for release. While still unique in Harris County (hence the ½), these bonds are gaining traction.
Third Quarter: Appearing For Court
Bail has been posted, you have been processed and 6-8 hours later you are saying goodbye to your new jailhouse friends. You are dazed. You are confused. You are tired and you are hungry. If anything, keep track of your bond papers. On them, you will find your court number, court date, and court time. In Harris County, the court date could be as soon as the next day. Don’t be late for court, your bond may be revoked. Time to lawyer up.
Fourth Quarter: Odds and Ends
Phone Call: In jail, there will be phone access. If you receive a collect call, answer it and keep it simple. These phone calls are recorded. If the person in jail is calling your cell phone, you’ll need to set up an account at www.GTL.net in order for them to get through to you.
Vehicle Towed: If the person was arrested for an incident involving a car, it was likely towed away. Call the Wrecker tow line, 713-308-8580, or go to houstonpolice.Org, Find my Towed Car, where you can search by license plate and/or VIN number.
If you learn there is no bond (i.e. the person is on probation for another case, on bond for another case, violent charges, or the person is considered a flight-risk) contact a Harris County Criminal Defense Attorney, who will get a bond set (same advice applies if an extremely high bond is set).
Harris County Criminal Justice Map:
The REAL Gift Guide for Lawyers
Know a lawyer? Like the lawyer? With the holidays upon us scroll past the gavels, scales of justice, and law books, here’s The REAL Gift Guide for Lawyers.
***Gifting Scale (1-5):
- 5 = Got away with murder
- 4 = My case was dismissed, but it should have been.
- 3 = No jail time. Thank you.
- 2 = I should be out in a year.
- 1 = I can appeal it, can’t I?
Alcohol
Rating: 3
Cost: N/A
Duh. Any bottle will do.You can go a step further and gift a yearly prescription of Wine or Spirits delivered straight to your lawyer’s office door.
Waverly PilotTranslating Headphones
Rating: 5
Cost: $199.
Légitime. That’s legit in French and is exactly what these headphones are. With the ability to translate five different languages, your alibi can be tested in English, Spanish, French, Italian, and Portuguese. These can be pre-ordered now and delivered May 2017. Next fall languages such as Chinese, Japanese, and German will be integrated.
Bullsh*t Button
Rating: 2 1/2
Cost: $8.95
Anyone can drown out a bullsh*t with a sneeze, but not everyone can push a button that screams it. “Your Honor, I object, [press bullsh*t button].
Wireless Headphones
Rating: 3
Cost: $17 – $399
Put your lawyer in the zone with these Bluetooth operated wireless headphones providing precision sound without all the mess. Sit back and relax as your lawyer delivers a memorable closing argument to the tune of Thunderstruck.
Hover Camera Passport
Rating: 5
Cost: $599:
Lawyers love them some lawyers. This selfie stick on steroids connects to your smart-phone and hovers over you while simultaneously capturing epic aerial footage. Look at me now!
Swagtron T1 Hover Board
Rating: 5
Cost: $349
Remember when lawyers walked to the courthouse? Not anymore. Give the gift of swag in the form of the Swagtron T1 Hover Board, known in the hovering community as the best value on the market. An added bonus, if you dislike your attorney, there is a chance the thing blows up.
BulletBlocker Bulletproof Executive Briefcase
Rating: 4
Cost: $299
Who doesn’t want a lawyer with bulletproof accessories? This briefcase houses bulletproof lining and is guaranteed to keep your case file secure. Not sold yet? Doubling as a bulletproof shield it is guaranteed to keep you and your legal team safe.
Bullet Blocker Bulletproof Leather Tote
Rating: 4
Cost: $369.99
For the bada$$ female trial lawyer.
Fitbit:
Rating: 3
Cost: $59.99 – $249.99
Is your lawyer a fitness fanatic? If not, should they be? Give them a subtle hint in the form of a fitness-tracking device capable of reporting such things as heartbeat, calories, and sleeping patterns. Better yet, locate their online username and data to see just how fast their heart beats when their objection is denied.
Mini Nintendo NES Classic Edition
Rating: 3
Cost: $59.99
Depositions and meetings can drag on for hours. Break it up with the Mini Nintendo NES Classic Edition. A slice of heaven pre-programmed with 30 original video games. Excitebike in HD on an over-sized flat screen? Yes, please.
Gadgets and Gear Spy Pen
Rating: 3 ½
Cost: $69.95
If it looks like a pen, writes like a pen, then it’s a pen. But this isn’t your ordinary pen, it is equipped with a camera capable of recording high-resolution videos and snapping high-resolution, date and time-stamped pictures. Channel your lawyer’s inner 007.
Vat 19 Inkless Pen
Rating: 2 1/2
Cost: #29.95
Nothing like having a game-changing thought with a pen out of ink. Worse is the busted ink pen that finds its way on the lawyer’s sharp outfit. The inkless pen eliminates both problems, so your lawyer has more time to focus on yours.
Easy ACC 10,000mAH Ultra-slim Dual USB Power Bank Charger
Rating: 2 1/2
Cost: $17.99
Exciting? No. Invaluable? Yes. This power bank keeps all USB devices charged and ready. With personal portable device use at an all time high, feel confident your attorney will be available 24/7.
Please Don’t Confuse Your Google Search With My Law Degree Coffee Cup:
Rating: 2
Cost: $13.99
Give your lawyer a daily reminder that he or she is as smart as they believe. Upgrade this gift with a Starbucks gift card, because no one likes sleeping lawyers.
Insults and Comebacks For All Occasions:
Rating: 2 1/2
Cost: $7.95
A lawyer without a witty comeback is no lawyer at all. Arm your lawyer with elite weapons of mass insults. “I know you are but what am I?”
Happy shopping and happy holidays.
Stock Up, Stock Down: Harris County Justice in 2017 and Beyond
s Amidst a federal lawsuit against Harris County and Harris County Misdemeanor Court Judges bail policies; amidst county-wide evidence destruction; amidst appellate court findings of prosecutorial misconduct; amidst perjured testimony from government employees; and the jailing of a rape victim, Harris County residents decided change was necessary and come January 1, 2017 a new sheriff, a new district attorney, a new criminal county court at law judge, and nine new criminal district court judges will take their respective seats.
Kim Ogg, the new Harris County District Attorney is a South Texas College of Law Houston College of Law South Texas College of Law Houston alum and will oversee the district attorney’s office for the third largest city in the nation. In her twenty-five year legal career she has spent time as both a prosecutor and defense attorney. Her prior stint in the DA’s office included involvement with the City of Houston’s first anti-gang task force as well as crime stoppers. She is well-qualified for the position as the legal community looks toward the change her campaing platform stood on.
Stock Up: Marijuana, Trace Cases, and Bail Policies
Reports of ending arrests and prosecutions for small amounts of marijuana possession have surfaced and are believed to have the support of new Harris County Sheriff, Ed Gonzalez. For now, marijuana possession under two ounces is a class B misdemeanor, punishable up to 180 days in jail and up to a $2000 fine. Possession up to four ounces is a class A misdemeanor, punishable up to 1 year in jail and up to a $4000 fine. Under the new regime possession of marijuana up to four ounces would not result in an arrest. It is also believed trace (the bare minimum) controlled substance cases will not be prosecuted.
Another area drawing attention is bail reform. In Harris County upward of 75% of all jail inmates are awaiting trial, many for low-level, non-violent offenses unable to afford bail. While personal recognizance (PR) bonds have been available for some time, they are rarely used. The new administration has emphasized prosecutors will be unopposed to PR bonds. To accomplish this task, the judges and magistrates will need to jump aboard and bond company representatives, known to make lucrative donations, must be overcome.
Each of these policies would be a step in the right direction toward ending outdated ideologies. Severely over-crowded jails would become less crowded. Arrest and conviction related job-loss would decline. Court dockets would clear up. These two policies alone would benefit the city of Houston as a whole.
Stock Down: Organized Crime and Gang-Related Activity
On the flip, as a former director of the first anti-gang task force in Houston, one can expect our new district attorney to focus on prosecuting organized crime and gang-related offenses. There have been early mentions of a special prosecutorial division tasked solely with prosecuting and investigating gang members and gang member activity.
The aforementioned ideas are just the tip of the iceberg, and Houston should expect additional changes. Questions surrounding re-filing of previously dismissed charges, pretrial intervention programs, DWI policies, are additional items that will shape the perception of the elected class of 2017.
Crimination Camps
Barbed wire, watchtowers, and guards.
Unjust punishment and dehumanization.
Uninhabitable conditions.
Propaganda and financial incentives.
Mass incarceration.
Confinement without trial.
Many Americans living in the United States during the 1930s and early 1940s, didn’t think much about Germany. Little weight was given to secondhand reports. Confirmed reports were thought to be exaggerated and beyond-belief. It wasn’t until 1945 that Americans began to grasp the devastation left behind. By then it was too late. Millions had perished.
Unfortunately, we are often too late. Philosophical studies have concluded human beings are overwhelmingly cooperative. Our need to cooperate can lead us to turn a deaf ear on issues that don’t immediately impact us. Out of sight, out of mind. It isn’t until we are personally affected that we find ourselves in disbelief. Desperate for a solution to unjust punishment.
But, this isn’t about philosophy and this isn’t about the Third Reich, We aren’t going back in time. We don’t have to because all of the above can be found right here in the American justice system; the Texas justice system; the Harris County Justice system.
The Rise of Bail: The Beginning
Bail is an old-school tool originally used to assist in ensuring a person accused of a crime would appear for court. The theory was if a person put up their own money they were more likely to show up. Seems logical, although an outstanding warrant also seems logical.
Eventually, “entrepreneurs” discovered there were financial incentives tied to bond and formed bonding companies. A bonding company guarantees the bond for a non-refundable fee around 10% of the bond amount (although some bonding companies have been known to charge as much as 100% of the bond). If the accused fails to appear the bonding company is on the hook. Meaning, the original use of bail doesn’t even apply in today’s system.
When a person is arrested, they appear in front of a magistrate who assesses bail. Harris County magistrates rubber-stamp the amount from a bail schedule. While Texas law allows for personal recognizance bonds (zero money down), they are only used 7-8% of the time in Harris County. Once the bail amount is set, the accused (or accused’s family) is responsible for getting the necessary funds together to post bail.
In Harris County it is estimated up to 77% of the jail is made up of persons accused (emphasis on accused) of crime and
awaiting trial. Many of these accusations (emphasis on accusations) are low-level, non-violent offenses. Those unable to afford bail are left to sit. Mass incarceration.
Looking for the quickest exit, jail residents ignore collateral consequences attached to a criminal conviction by pleading guilty to crimes they did not commit. Doing so ensures they can get back to their homes, families, and jobs. It is a primary reason 95% of arrests end with a plea of guilty and is used to keep the court’s docket moving. Confined without trial.
In the last ten years, there have been nearly 200 deaths reported in the Harris County Jails. Knowing 77% of the jail is made up of Houstonians awaiting trial, 150 of those deaths are likely people with no business being in jail at all. These deaths have come at the hands of other inmates, uninhabitable conditions, disease, suicides, understaffed jails, and negligence.
The Axis Powers: Bail and Bail Conditions
The eradication of the presumption of innocence does not end once bail is posted. Certain accusations, carry with them bail conditions. Conditions the Texas Court of Appeals has held are necessary to secure the accused’s presence at trial, the safety of the victim, or the safety of the community. Burson v. State, 202 S.W.3d 423, 425 (Tex. App. – Tyler 2006, no pet.).
Take the real-world example below. One person has been convicted of Driving While Intoxicated and sentenced to a year probation. The other has been arrested for Driving While Intoxicated, posted bond, and been given bond conditions. Neither person has any prior criminal history. Disturbing is the inability to tell the difference.
Progressive leaders and civil right lawyers have recently made a strong push to rid of bail. As a result, many states have turned to personal recognizance bonds for an alternative. While this is a step in the right direction, as bail slowly diminishes pre-trial bond conditions are becoming more prevalent. When one door closes, another opens. Interlock devices, like the example from the DWI above, are cash cows with huge financial incentives.
Assume every person accused of DWI in Texas was ordered to have an interlock device as a condition of bail:
- Number of DWI arrests in Texas in 2015: 65,609
- Average Length of Time DWI is on court’s docket: 3 months
- Avg. Interlock Monthly Maintenance and Calibration Fee: $60
- (Monthly Fee * Docket Length) * # of DWI arrests = Total Interlock Fees.
- ($60 * 3) * 65,609 = $11,809,620.00 a year in interlock fees.
Throw in installation fees and that number grows.For interlock providers and investors business is good. Real good. As long as financial incentives outweigh the true purpose of justice, the system will be flawed. As long as we fail to make a difference, innocent lives will be adversely impacted. The writing is on the wall. Act, before it’s too late.
As long as financial incentives outweigh the true purpose of justice, the system will be flawed. As long as we fail to make a difference, innocent lives will be adversely impacted. The writing is on the wall. Act, before it’s too late. Act, before someone you care about, has their number called. Act, before your number is called.
The Old School Way
A former basketball player has come and gone from the nearby office. Once a tough kid living in unforgiving circumstances, he was shown an alternative way, one that doesn’t end in prison or death. The visitor is just one of many that drop by weekly to say hello, seek advice, or give thanks to the person responsible for saving their life. Inside the office, the décor mirrors the resident, the result of removing an Italian from New York into the heart of the South fifty years ago. If the main course is spaghetti, the dessert is apple pie. Nearly forty-five years of devotion to criminal law spill over the edge of the Texas-sized desk in the form of statutes, files, and ineligible yellow legal pads.
With each blog deadline approaching, I walk next door and ask,
“Want to write a blog this month?”
I know the answer. He has much to tell, but the old school in him won’t allow it.
“I don’t blog.”
Since joining his practice nine years ago, I have been fortunate to soak up seven years experience as an Assistant District Attorney during the Johnny Holmes era. I can smell the cigar smoke on Judge Jimmy Duncan’s breath as he denies another objection. I can hear the former client’s voice seeking advice on entering witness protection. The lawyer had acquitted him of one murder; the government was willing to pardon him of fifteen. I can feel the emotional argument in front of the Texas Court of Criminal Appeals. Yes, I am fortuitous to share offices with someone who constantly reminds me “he has forgotten more than I know.”
True to his word Sam Adamo (Sr.) has not blogged, nor do I expect a blog anytime soon. However, if you were a young (or older) attorney seeking advice, here are some things he would tell you.
I. “You can’t lose a client you never had.”
I remember one of the first cases I brought in. A consultation was scheduled, and the potential client was on his way. The contract was as good as signed. Toward the end of the meeting, the potential client said, “I plan on retaining your firm, but am meeting with two other attorneys. I’ll call you later tonight.” That call never came. The next day, I slammed open his office door, “Can you believe I lost that client.” Staring down at the Texas Penal Code he said, “You can’t lose a client, you never had.”
II. “That’s the Old School Way.”
We had just finished a two-week trial on an accusation carrying a punishment range of twenty-five to life. The jury acquitted our client, found him guilty of a lesser-included offense and assessed the minimum. For any criminal defense attorney, this was a victory, but our client’s family was still reeling from the one-word verdict. Standing in the elevator, another old-school attorney entered. He watched a portion of the trial and was no stranger to defending citizens accused of serious crimes. Unprovoked, he looked to the family and said, “Now that is why you hire those guys.” Sr. looked at me and said, “that’s the old-school way.”
Before social media and the Law Hawk. Before Google and Lexis Nexus, there were lawyers on the ground, front and center, paving the road for the next generation. Influential groups like the Harris County Criminal Lawyers Association didn’t exist, and when they eventually formed carried little weight with government officials.
Whatever your niche is criminal, family, civil, there is another lawyer available at the click of a mouse. You will have consultations where the potential client has met or will meet with other attorneys. You will also field phone calls from potential clients looking for new representation. In short, there will be opportunities to voice your opinion about other attorneys. Keep it positive and keep it brief. Focus on what you can do, as opposed to what you feel the other lawyer cannot. The “other lawyer” has likely done more for you than you will ever know. “That’s the old-school way.”
III. “You can’t buy trust.”
Trust takes seconds to break and forever to repair. Be honest with judges and honest with district attorneys. It isn’t necessary to reveal all your cards but don’t tell the district attorney the sky is green when the dash-cam shows it is blue. Doing so will damage your credibility, hurt your case, and harm future cases.
Earn your client’s trust by communicating (and getting results). Tell them email is the best way to reach you (it typically is). Not only does email provide an effective means of communication, but also serves as useful evidence should the need arise. Gain your client’s trust by understanding their overall goal. You can’t provide a solution if you don’t know the problem.
Bonus: “Find one thing.”
People are different. Some we get along with better than others. In your practice, you have come across (or will come across) a client you have difficulty tolerating. When that happens, you need to find one thing you like about them and hold on to it. At trial, that “thing” will act as your guide while delivering a genuine message to the jury.
IV. “Win as if you’re used to it.”
If you have ever watched a sporting event, it is clear when the winner doesn’t win much. As a criminal defense lawyer, it is easy to get lost in fighting for the underdog. You’ve taken on the system, won, and now want to let the world know. No problem there, but do so with class. The district attorney you just humiliated on social media will be handling another one of your client’s cases shortly.
V. “Trust yourself.”
Watch other attorneys in trial. Go to CLEs. Pour over court transcripts. Ask questions. Learn. Get involved. Investigate. Over prepare, be confident, trust your instincts and above all trust yourself.
With many outstanding lawyers in Houston, this list will grow. Add on.
You Are Committing a Felony: Cannabis Oils in Texas
Cannabis oils in Texas
Cannabis oils are illegal in Texas. In fact, you are committing a felony and don’t even know it.
Maybe it’s for a bachelor party.
Maybe it’s for a business trip.
Maybe you are looking to escape the Texas heat.
Whatever the reason, you have just touched down at Denver International Airport and you are determined to emphasize the “High” in “Mile-High.”
Just make sure what happens in Colorado, stays in Colorado.
You be surprised how many vape pens, cannabis oil cartridges, and edibles find their way into visitors golf bags, ski bags and luggage. While legal in Colorado, the cannabinoid oil that fuels the vaporless pen is a felony in Texas. The paraphernalia itself is a misdemeanor.
What is Cannabis Oil?
Cannabis oil (also known as: marijuana oil, hash oil or wax) is a thick, sticky, resinous substance made up of cannabinoids, such as THC and CBD. It is obtained by separating the resins from cannabis flowers using a solvent extraction process. Cannabis oil is not only the most concentrated form of cannabis, but also the most potent. In other words, it does the job and can be found at any dispensary in Colorado.
What is the Punishment Range for Possession of Cannabis Oil in Texas?
This marijuana derivative is a controlled substance in Texas, falling into penalty group 2. For example, possess less than a gram and face up to two years in a state jail facility and up to a $10,000 fine. Possess more than one gram and face the possibility of a third-degree felony, up to ten years in prison and up to a $10,000 fine. Possess more than four grams and face the possibility of a second-degree felony, up to 20 years in prison and up to a $10,000 fine.
So if you find yourself in Colorado to hit the slopes, take in a Broncos game or add twenty-five yards to your driver, make sure what happens there stays there.
See Texas Health & Safety Code Section 481.002(26), 481.103, and 481.1031.