by Houston Criminal Defense AttorneyYou 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.
by Houston Criminal Defense AttorneyTexas DWI Conditions: Interlock and SCRAM
Texas DWI Bail, Diversion, and Probation Conditions: Interlock and SCRAM
If you are arrested or convicted of driving while intoxicated you may have to come to grips with an interlock or SCRAM (Secure Continuous Remote Alcohol Monitor). The following are examples of Texas DWI conditions of bail, intervention programs, and probation that may require you to install an interlock or SCRAM, including a description of each and costs associated.
Interlock or SCRAM as a Condition of DWI Bail
Depending on the Texas county you are arrested in and the criminal court you are assigned, if this is your first intoxication offense, you may be required to install an interlock device as a condition of your DWI. In Harris County some judges require the interlock device as a condition of pre-trial release, others require it only if your blood alcohol level comes back at 0.15 or higher, and others do not require it at all. If you have previously been convicted of an intoxication offense Tex. Code of Crim. Proc. Art. 17.441 requires the installation of an interlock if the installation is in the best interest of justice.
Texas DWI Lawyer Practice Tip: courts generally find installation of the device is in the best interest of justice.
Interlock or SCRAM as a Condition of DWI Pre-Trial Intervention
Many counties offer pre-trial intervention or diversion programs for first time DWI offenders. Once upon a time staying out of trouble was all it took to complete the diversion program and have your case dismissed. Today, diversion programs resemble probation with the interlock, SCRAM or both conditions of the program.
Interlock or SCRAM as a Condition of DWI Probation
If the court finds you guilty, sentences you, but suspends your sentence and places you on DWI probation your conditions will include the interlock, SCRAM, or both. The difference in the aforementioned pre-trial intervention and probation is probation acts as a final conviction that cannot be expunged.
Texas DWI Lawyer Practice Tip: if you fail to successfully complete the terms of your probation, a motion to revoke probation may be filed and the court can sentence you up to the maximum punishment range for the charged offense.
Texas DWI Lawyer Practice Tip: Clients often ask if deferred adjudication is an option for DWI. Deferred adjudication is not a lawful option for intoxication offenses in Texas. Deferred adjudication falls between pre-trial diversion and probation in that the court finds you guilty, but defers the finding of guilt. A deferred adjudication cannot be expunged but can be blocked from the public through what is known as a non-disclosure.
Interlock or SCRAM as a Conditon of an Administrative License Suspension (ALR)
In Texas if you apply for a driver’s license you consent (implied) to provide a specimen of your breath or blood if you suspected of driving while intoxicated. A refusal to provide a specimen may result in your license being suspended by the Texas Department of Public Safety. If suspended, you may be eligible for an occupational license. Interlock devices are often required before the court will grant such a license.
What is the Interlock?
The interlock is a portable breathalyzer that attaches to your vehicle under the dash. At one end is a blow tube and at the other end is a cord that runs under your dash. The device is installed into the ignition system of your car. In order for your car to start, you are required to provide a breath sample. Every 5 to 30 minutes you may be asked to give an additional breath sample. Hence the term “blow and go.” Most devices now have cameras attached to confirm you are the person blowing into the tube. The data from the device is pulled when you have the device calibrated at a scheduled time and location.
What is the SCRAM?
The SCRAM is an ankle bracelet that communicates through a modem connected to a monitoring station. Hourly the apparatus tests for the presence of alcohol through the person’s perspiration. If alcohol is detected the SCRAM device will test every thrity minutes. Additionally the SCRAM has a sensor designed to report any tampering with the device.
Both the Interlock and SCRAM are not without issues of their own, having mistaken many everyday household products as drinking alcohol.
What is the cost for an Interlock or SCRAM device?
The monthly cost for each device is expensive approximately:
Interlock = $59-$90 a month
SCRAM = $435 a month (yes, $435 a month)
Interlock providers include EZ Interlock, Intoxalock, Smart Start, and LifeSaver. As expected the reviews for the providers are relatively low, with EZ being the highest per Google at 3 out of 5 stars.
If you are required to obtain an interlock or SCRAM it is important you pay close attention to the instructions and do not use alcohol or even alcohol based products such as mouth wash that can cause false positives. Doing so can result in your bond being revoked, your probation being revoked, or your pre-trial diversion being terminated.
by Houston Criminal Defense AttorneyWhat is Considered a Deadly Weapon in Texas?
What is a Deadly Weapon in Texas?
Pictures: (a) revolver (b) BB gun (c) car, (d) pillow (e) hot water, (f) underpants
a) both a and b
b) both c and d
c) both e and f
d) a only
e) All of the above
If you answered e) than you know Texas deadly weapons extend to a long list of objects.
Deadly Weapon Under Texas Law
Deadly Weapon applies to felony offenses and is defined in Texas Penal Code Section 1.07 as:
(A) a firearm or anyhing manifestly designed made, or adapted for the purpose of inflicting death or serious bodily injury (i.e. deadly weapon by design); or
(B) anything that in the manner or its use or intended use is capable of causing death or serious bodily injury (i.e. deadly weapon by use”).
Under subsection (B) objects that are generally not considered dangerous by design may become so by the manner in which they are used in the offense. Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991). The object must be used in a manner capable of causing death or serious bodily injury to fall into the deadly weapon class. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). To sustain a deadly weapon finding the evidence must demonstrate: (1) the object meets the definition of a deadly weapon; (2) the deadly weapon was used or exhibited during the transaction on which the felony is based; and (3) other people were put in actual danger.
“Firearm” means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning susbtance or any device readily convertible to that use.
“Serious bodily injury” means bodily injury that creates a substantial risk of death, or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
Texas Deadly Weapon Short Long List
The following have all been found to be a deadly weapon by design: firearm, bayonet, shank
The following have all been found to be a deadly weapon by manner of use: axe handle, baseball bat, BB gun, belt buckle, board, bottle, club, drugs, dustpan, fire, flashlight, floor, foot, gasoline, class decanter, hammer, hand, HIV-positive person, knife, mixture of sedatives, motor vehicle, nailgun, nunchakus, pillow, rope, scissors, screwdriver, seminal fluid, spear, stick, straight razor, underpants, hot water.
Why It Matters: the Consequences of a Deadly Weapon Finding
A deadly weapon can be attached as a special issue in a number of criminal accusations such as, assault, aggravated assault, manslaughter, homicide, intoxication offenses, drug offenses, etc.
If a person is convicted of a crime involving a deadly, the person is ineligible to receive probation from a judge.
If a jury recommends probation and finds a deadly weapon was used or exhibited the judge may place the convicted in prison for a term of 60 to 120 days.
A deadly weapon finding also requires a person serve at least one-half of their prison sentence before being eligible for parole.
The question seems to be not what is, but what is not considered a deadly weapon in Texas.
by Houston Criminal Defense AttorneyPlaying the Odds: Why Every Family Should Have a Criminal Attorney on Speed Dial
You are a parent.
You take zero chances.
Your staff includes private tutors and coaches.
It includes insurance agents and doctors.
It should also include a criminal defense attorney.
“We don’t need a family criminal lawyer; we aren’t criminals.”
Statistics from the National Survey of Youth show there is a 1 in 3 chance your child is arrested before age twenty-three. A startling and rather unspoken truth. Adolescent arrests have grown as a result of tough on crime legislation, harsh sentences, and an increase in government spending and police forces.
Today, everything is a crime. What you once knew as a slap on the wrists (a crime) is now a slap in cuffs. Rivalry week pranks are a crime. After school fights are a crime. The senior courting the sophomore can be a crime. The teacher your son daydreams of is now not only attainable but also a crime. Yes, your high school is a far cry from your teenager’s high school. So while the private coach trains your Olympic-bound child (1 in 662,000 chance) or the private tutor prepares your prodigy child for that perfect ACT score (1 in 14,000 chance), your family’s odds of needing a criminal defense attorney is significantly higher (1 in 3 chance).
“. . . but not my kid.”
Hopefully not, but honeymooners aren’t thinking about divorce (1 in 2 chance) either. The law, particularly criminal law, is intimidating. Public perception reserves criminal courtrooms for the nation’s bottom-feeders. However, step inside the criminal courthouse and you will see a different story. You will find people who are lost; angry and defiant people; people who suffer from mental disabilities; victims of physical and mental abuse; people with hidden drug and alcohol addictions; people who found themselves in the wrong place at the wrong time; and people with solid homes and good families. Sound Familiar?
A teenager’s struggle is real and adding to it is the criminal injustice justice system. A flawed system where lawmakers, officers, judges, prosecutors, and defense attorneys have all been guilty at times of getting it wrong and doing it wrong.
This hard reality led Lisa Green, author of “On Your Case: A Compassionate (and Only Slightly Bossy) Legal Guide for Every Stage of a Woman’s Life,” to emphasize the need for every parent of a teen to have a criminal defense attorney on speed dial. Legal insurance to protect children and parents who can be held civilly and criminally liable should the unexpected occur.
“If something comes up, it won’t, but if it does, I’ll find a local criminal defense attorney.”
You won’t have time. Suspected of unlawful activity, within seconds your child is whisked away to the principle’s office. There police officers and school officials wait. Cell phones are confiscated, backpacks are searched, and statements are made. Your teen’s constitutional rights ignored waived when they should have been protected. Protection in the form of preparation. Preparation by spending the time to find a trusted criminal attorney capable of educating your family on life-altering encounters with authorities.
“Okay, well I’ll just Google my question.”
You won’t have time, but let’s assume you did. When your teen needs medical attention, you call your doctor. Sure, you may check out WebMD (1 in 3 chance of being correct), with the caveat a qualified doctor is necessary to diagnosis, treat, and in serious instances save. If your teenager finds himself in a legal jam, Google equals not an attorney. Most legal information is not only vague but incorrect, written by second-year employees at John Doe Web Design, hung-over from last night’s “bro-fest.” Instead, your family criminal attorney can quickly diagnosis, treat, and in serious instances save you and your family.
You are a parent.
You take zero chances.
Your staff includes private tutors and coaches.
It includes insurance agents and doctors.
It should also include a criminal defense attorney.
If not, may the odds be forever in your favor.
by Houston Criminal Defense AttorneyFumbling the War on Drugs: The Unintentional Decriminalization of Drug Crimes.
With the 2016-17 football season approaching, Texas defense attorneys and prosecutors alike are scrambling to recover lawmakers recent fumble.
It’s no secret, legislatures had successfully reigned down on drug crimes. Penalty groups were expanded, punishments were enhanced, and sentences were lengthened. Capitol Hill in Austin acquired all the firepower needed to defeat Texas’ war on drugs.
Then along came a new and serious threat to the peace and dignity of the State. This threat was dangerous. It was underpunished. It was playing for the other team. It was synthetic drugs.
To stiffen punishment on these designer psychedelics (not listed in the Texas Controlled Substance Act) the lawmakers pushed a new subsection (d) to the Texas Health & Safety Code Section 481.103. The updated playbook would exclude some Federal Drug Administration (FDA) approved substances from Penalty Group 2 (PG2) (one of four primary drug penalty groups). The synthetic drugs would finally be penalized as felonies rather than misdemeanors. High-fives were exchanged as the bill rolled through the Senate, the House, and on to the Governor’s desk.
Game Over. So it was thought.
As the bill went to print, the plain language of the statute excluded all FDA approved substances from PG2. Amphetamine, lisexamfetamine, and dronabinol were a few of the substances listed in both Section 481.103 and the FDA, exempting drugs containing any quantity of those substances from felony prosecution. A hole, big enough for any criminal defense attorney to run through, opened. Prescription drugs like Adderall, Adderall RX, and Vyvanse contain amphetamines and lisexamfetamines. Street drugs like ecstasy, PCP, and speed have been known to contain amphetamines. Marijuana capsules and oils house dronabinol or delta-9-terahydrocannabinol (THC). Substances once playing under the bright lights of felony stadiums were demoted to outdated, empty misdemeanor fields, if at all. Prosecutors will argue Texas Health & Safety Code Section 481.119 applies, making it a misdemeanor offense to possess, manufacturer or deliver a miscellaneous substance not listed in a penalty group. Defense attorneys will argue, the substances are listed and specifically exempted. For now, it will be up to the courts to sort it out. For now, the pigskin is loose on crimnal courtroom floors across Texas.
by Houston Criminal Defense AttorneyDriverless While Intoxicated: The Future of DWI
Jake Dunn proudly exited the heavy iron doors of the swanky upscale restaurant. His jaw aching from the photographs. His hand raw from the autographs. Earlier that day he had inked a multi-million dollar contract, making him one of the highest-paid athletes in the world. Sliding his hand deep into the left pant pocket, he felt the keys his agent had delivered just hours ago. With a click, his six-figure fully-autonomous car was on its way.
In near silence, the car’s electric engine turned on. Snow white LED headlights illuminated the black pavement as the nineteen-inch wheels slowly rotated toward the car’s owner. The future of the auto industry willing and able to transport the future of the sport.
The driverless car approached the curb’s edge, and the Lamborghini doors swung open. The entourage piled in with their “lottery ticket” taking his place in the roomy back seat. The plan was to finish the celebration at an old city park. A place the longtime friends had spent hours on as kids dreaming of this very moment.
Office Kyle White’s car sat next to an empty park. It was 1:45 am Friday, and the adjacent street was about to dump fresh bait. The location was perfect. One bar after another lined the historic district. A known hot-spot for “thousand-aires” to boast about their latest deal, while emptying their wallets on cheap booze. Alcohol meant DWIs and the veteran officer was a paid assassin. Part of the DWI task force division trained and expected to make DWI arrests.
Gliding toward the park the driverless car switched lanes and changed speeds with ease. Champagne was poured without a drop hitting the suede interior. There was not a smoother ride on the road. Approaching the legendary playground, the vehicle’s automated system warned the passengers the park was closed. The advisory was unnecessary. The invincible crew knew the park’s hours and had always ignored them. Unassisted the car drifted into its selected parking spot. The doors opened and the entourage piled out. Before his size seventeens could touch the pavement, the star athlete heard the sound of squealing tires. Directly behind, red and blue lights flashed. A loud, authoritative voice came over the hip-hop music from the Bang & Olufsen speakers, “DO NOT MOVE!”
The officer was aware of autonomous cars. He vaguely recalled a three-hour course his department held on them not long ago. He couldn’t remember if he attended or not. He didn’t care. He never expected to come into contact with a self-driving car. The car’s ridiculous price tag meant one had a better chance of passing his field sobriety tests.
He wiggled his broad shoulders out from the driver side seat and exited the car. His walk exemplified confidence as he approached the “defendants.” The odor of alcohol dancing in his head. He didn’t know what type of car he stopped. It didn’t matter. From the looks of it, the driver had money, and he preferred wealthy defendants. Money meant jury trials. Jury trials meant time and a half.
“Whose vehicle is this?”
Jake mumbled, “It is mine, sir.”
“You been doing a little drinking tonight?”
The athlete’s stomach sank. But I wasn’t even driving?
At 5:30 am, sitting in his home office, Clyde Hatcher could hear one of his two cell phones buzzing. A prominent criminal defense attorney in town, he knew the meaning of an early morning phone call. He had a long list of high-profile clients and Alex Wright, the slick agent on the other line, was one of his best referral sources.
Before he put the phone to his ear, the defense attorney heard a frantic voice on the other line, “Our man got arrested for DWI.”
Clyde turned to the computer he had planned to replace for weeks. He slowly pulled up Texas Penal Code Section 49.04(a).
“A person commits an offense [DWI] if the person is intoxicated while operating a motor vehicle in a public place.”
He scrolled further and Denton v. State appeared.
“A person operates a vehicle when the totality of circumstances demonstrate the person took action to affect the functioning of the vehicle that would enable the vehicle’s use.” 911 S.W.2d 388, 390 (Tex. Crim. App. 1995).
The law was clear in Texas; you could be arrested for DWI without the car ever moving.
There wasn’t much order to the court. The mad judge counting down the days to retirement had a tendency to show up well after docket-call. Criminal defense attorneys and prosecutors shuffled from one side to the other of the dated courtroom leaving stacks of files scattered in their wake. For months, Clyde believed the law was on his side. Texas DWI statutes had yet to catch up with technology and the state was unable to prove the element of “operating.” On top of that, there were multiple people in the car, how could the prosecution prove his client was the one “operating?”
Clyde had pushed hard for a dismissal, but the young assistant district attorneys disagreed and refused to budge.
An old-school criminal lawyer, Clyde knew the district attorneys had no choice. Political contributions and pressure ensured DWIs were treated differently. DWIs were a cash cow and this highly-publicized decision was coming down from above.
The case was going to trial.
The jury was ready. After six hours of deliberation, that followed two days of trial, including 16 hours of testimony from 7 witnesses, a thorough explanation of autonomous cars, after endless objections, rulings, sidebar gestures, and attorney arguments, the jury was ready. Determined to uphold their civic duty and follow the law each juror scribbled their name on the verdict form. The foreperson, Ms. Parker notified the court a verdict had been reached. The bailiff walked through the courtroom’s side door and into the hall to answer the jury’s call.
“That’s great. I’ll let the judge know.”
Of course, the bailiff already knew the jury’s verdict; he had his ear to the deliberation room for the last hour.
The lawyers expecting a “rush-hour verdict” were already sitting in the courtroom.
“All rise.”
The judge entered.
“Bring in the jury.”
Led by their foreperson one-by-one, the jurors shuffled in. Clyde was confident, but as usual avoided eye contact with the jurors. His experience taught him jurors were impossible to read, and he knew he would hear their answer soon enough.
“Have you reached a verdict?”, the mad judge asked.
“Yes, we have,” the foreperson replied.
The bailiff handed an envelope to the clerk, who passed it on to the judge. Opening the envelope the judge gazed down at the verdict form and read, “We the jury find the defendant, Jake Dunn…”
by Houston Criminal Defense AttorneyDWI Standardized Field Sobriety Tests
DWI Field Sobriety Tests (SFSTs) have 99 Problems . . .
. . . but, courtroom admissibility ain’t one.
Despite many issues with outdated field sobriety exerices, they continue to form the basis for DWI arrests and subsequent prosecutions.
- Hired Guns: Many DWIs involve special DWI tasks force. Hired guns looking for and expecting to make DWI arrests.
- Officer Street Bias: (see 1) It’s 3 a.m., you knicked a curb. Officer’s are looking for DWIs. You gotta be DWI.
- Time & 1/2 : the officer receives time & a ½ to come testify in court. Aggressive DWI lawyers routinely contest the officer’s opinion you were intoxicated. DWI trials = officer bonuses.
- Subjective: The decision to arrest a person for DWI is based on the subjective opinion & bias of the officer.
- Political Influence: The day Mothers Against Drunk Driving was formed, is the day DWI laws changed forever. A DWI arrest alone can result in driver’s license suspensions, interlock devices, random urine tests, etc.
- Probable Cause: All that is needed for an officer to make an arrest. A crime may have been committed. It is a low burden. Significantly lower than proof beyond a reasonable doubt.
- Presumption of Guilt: trained officers have made an arrest, so they must be guilty???
- Exercises designed to make arrests, not to prove intoxication. The Standardized Field Sobriety Tests were implemented to assist in arrests, not to prove DWI beyond a reasonable doubt.
- Coordination Exercises designed to fail: you are not told what signs of intoxication the officer is looking for on the field sobriety tests and do not get credit for the things you do well.
- Exercises place a person in abnormal situations. How often do you stand with your one foot directly in front of the other? How often are you balancing on one foot?
- “You don’t know me, man”: The officer is meeting you for the first time: Under the law, the definition of intoxication includes not having the normal use of your mental or physical faculties. The problem is the officer has no idea what is normal for you.
- What is Normal? Normal for you, is not normal for me. Normal for Lebron James is not normal for me (or I wouldn’t be writing this).
- Isn’t an abnormal reaction to an abnormal situation normal? (see 10)
- Sleep Deprivation: can mimic signs of intoxication.
- Diabetes: can mimic signs of intoxication.
- Head injuries: can mimic signs of intoxication.
- Officer’s often fail to inquire into a person’s medical history (despite their training and instructions)
- Nervousness can mimic signs of intoxication. Ever seen a professional golfer miss a 1 ft. putt? A gymnast miss the landing? Routines they have perfected and practiced thousands of times. Why? Nerves.
- 1977 “Psychophysical Tests for DWI Arrest”: used in the development of field sobriety exercises. Narrowed 6 tests down to 3 (tAlcohol Gaze Nystagmus, Walk & Turn & One Leg Stand) while noting the tests “yield more precise results . . . in the station.”This study had a 47% false arrest error rate: Officer’s were wrong nearly ½ the time…in controlled environments.
- 1981 “Development and Field Test of Psychophysical Test For DWI Arrests”: Expanded on the 3 field sobriety exercises and recommended an 18-month field evaluation.
- The 18-month field evaluation was never completed.
- But a 3-month field evaluation was in the 1983 study “Field Evaluation of a Behavioral Test Battery for DWI.” This evaluation required officers to administer field sobriety exercises to any person they suspected of DWI. This study was based on the Honor system, without researchers riding along to see if the tests were being administered correctly.
- Zero of these “studies” have been submitted for peer review.
- Zero of these “studies” have ever been published in any scientific journals.
- No control group existed to evaluate a non-drinker or sober person’s performance on the exercises.
- Shouldn’t the expert officer know the studies, the instructions, and the clues like the back of their hand? In court testimony often reveals just the opposite.
- The Colorado Study: 1 out of every 8 participants failed the Horizontal Gaze Nystamus test although having a BAC under 0.05.
- The Florida Study: 67% of all incorrect arrests had maximum clues on the Horizontal Gaze Nystagmus Test; 70% of subjects under 0.08 failed the Walk & Turn.
- The San Diego Study: subjects under 0.08 were wrongfully arrested at a rate 6Xs more than those with a BAC over 0.08; 37% of subjects under 0.08 failed the HGN; 52% of subjects under 0.08 failed the walk and turn; and, 41% of subjects under 0.08 failed the one leg stand.
- The Robustness Study: This study looked at minor deviations on the Horizontal Gaze Nystagmus (HGN) and the impact on determining impairment. An average false positive rate of 66.7% (76.9%, 54.1%, 69.2%) was reported.
- Jim Booker’s peer-reviewed study, End Position Indicator of Ethanol Intoxication (Science and Justice 2001; 41: 113-116) finding alarming problems with the Nystagmus test, including:
- 19% of subjects had nystagmus before consuming any alcohol;
- 62% had nystagmus after reaching 0.00;
- 56% had nystagmus an hour after reaching 0.00;
- 37% people during absorption had nystagmus between 0.01 – 0.05;
- During elimination, 68% had nystagmus between 0.01 – 0.05.
- Not-Standardized? Non-standardized tests are often administered by the officer, like the Rhomberg test, also used to detect venereal disease.
- Science? The National Highway and Safety Administration thinks so, many disagree.
- Or Junk-Science: try to balance on one leg for 30 seconds and see how you do.
- Show me the evidence? What happen to the on-scene video?
- Mic Check? There is a video, but where did the sound go? Why does the officer turn his mic on and off?
- Horizontal Gaze Nystagmus: Flashing Lights can cause nystagmus
- Head Injuries can cause nystagmus
- Medical Conditions can cause nystagmus
- Eye Injuries can cause nystagmus
- Nicotine can cause nystagmus
- Caffeine can cause nystagmus
- Natural Nystagmus & Resting Nystagmus: some (unknowingly) have natural nystagmus.
- There are all types of Nystagmus
- And the officer can’t tell the difference.
- Test is Depressant specific, not alcohol specific: there are a lot of depressants other than alcohol.
- Equal Tracking? Did the officer check to see if the eyes tracked equally?
- Equal Pupil Size? Did the officer check the subject’s pupil size?
- Dust can interfere with the test
- Wind can interfere with the test
- Officer holds stimulus too high – test invalid
- Officer holds stiumulus too low – test invalid
- Officer takes stimulus out too far – test invalid
- Officer moves stimulus too slow – test invalid
- Officer moves stimulus too fast – test invalid
- Stimulus held out too long – test invalid
- Stimulus held out not long enough – test invalid
- Incorrect # of passes – test invalid
- 82 seconds should be the minimum time it takes for the officer to perform the HGN.
- Rubber Stamp: rarely do the officers not “find” 6 of 6 clues (or a strong odor of alcohol on your breath and red, blood shot glassy eyes).
- What do the eyes look like? The officer can see the nystagmus (bouncing of the eyes), but no one else can.
- Vertical GazeNystagmus: inadmissible and not standardized.
- Walk and Turn and One Leg Stand: Incorrect Instructions – test invalid.
- Officer distractions on the Walk & Turn and One Leg Stand can impact the subject’s performance. The officer should be quiet. The officer should be still.
- Passing traffic can impact the subject’s performance.
- The Walk and Turn Test and the One Leg Stand should not be conducted on a slippery, wet, or un-level surfaces.
- Failing before you even start: the first two signs of intoxication on the Walk and Turn test are starts too soon and can’t balance during instructions. Two strikes and you’re out, meaning you can fail this test before you ever walk the line.
- C = F: if you get 6 of 8 clues correct (75%) on the walk and turn you still fail.
- What you don’t know will kill you: the officer doesn’t tell you what signs of intoxication or clues he is looking for.
- Uses arms for balance is a clue. This means raising both arms more than 6”. You are not told this.
- Steps off-line is a clue. This means one foot comes entirely off the line. You are not told this.
- Heel-to-toe is a clue. You get a 1/2″. You are not told this.
- Improper Turn is a clue. If you remove your front foot from the line while turning, you get docked.
- Stops while walking is a clue. This should only be marked if you pause for several seconds.
- During the One Leg Stand officer’s often tell subjects to pick their foot up if they put it down. That is not an instruction. Officer’s often tell subjects to point their toes, this is not an instruction.
- Test too long or too short? Officer should discontinue the One Leg Stand at 30 seconds
- Failing: 4 total clues. 2 strikes and you’re out.
- Using arms for Balance is a clue (6+”). Aren’t we taught to balance with our arms out as kids?
- Swaying back and forth or side to side is a clue. Who wouldn’t sway on one foot?
- Age can impact performance.
- Back & Leg Injuries can impact performance.
- Inner ear problems can impact performance.
- Your shoes can impact performance and you should be allowed an opportunity to remove them.
- Inadequate Training: one week course is all it takes to become an expert.
- Signs of Sobriety? They often outweigh the signs of intoxication.
- Consistently Inconsistent: When a person does well on the tests, officer’s say their decision to arrest for DWI was based on the “totality of the circumstances.”
- Form Police/Offense Reports: district attorney offices provide easy fill in the blank forms which feed the necessary signs of intoxication and field sobriety clues.
- Accused 1st time: The subject doesn’t know what to expect on the test.
- Officer’s 100th+ time demonstrating the test. Practice makes perfect.
- Refuse and be arrested: Your refusal will be taken as a sign of hiding intoxication.
- Perform and be arrested: the officer’s mind was made up at “have you been drinking.”
- Mi—randa? The officer will say you were not under arrest, so Miranda doesn’t apply. What you say will be used against you.
- The Calvary: other officers (a.k.a. friends, colleagues, supervisors) on the scene will bolster each other’s opinion and testimony as to your intoxication.
- Validity Compromised: Despite the officer’s training manual stating, “if any one of the standardized field sobriety test elements is changed, the validity is compromised”, Texas courts continue to find creative ways to allow improperly administered field sobriety exericises into evidence. The Texas Court of Appeals in Compton v. State concluded “slight variations” do not render the tests inadmissible. As such the DWI criminal lawyer must highlight all the normal and sober signs their client exhibited, while pointing out the inherent bias of these unforgiving and outdated exercises and trusting the jury to follow the law in reaching their final vedict.
by Houston Criminal Defense AttorneyAnnual Declaration of Independence Reading – Texas Lawyers
Seven years ago Houston criminal defense attorney Rob Fickman organized the first reading of the Declaration of Independence at the foot of the Harris County Criminal Courthouse. Alongside fourteen other attorneys, the reading represented unification, strength, and freedom. Since 2010, declaration readings have spread across Texas as criminal lawyers send a powerful message in support of all who have placed their lives on the line for American freedom. For 2016, it is anticipated every Texas county will have a representative reading the Declaration of Independence. Quite an accomplishment in seven years and certainlty a powerful message.
by Houston Criminal Defense AttorneyChipping away at the 4th Amendment
The United States Supreme Court in Utah v. Strieff held an unlawful stop may be legitimized by the later discovery of a traffic warrant. A disturbing finding that only strengthens the Texas Court of Criminal Appeals similar position in Mazuca v. State. 375 S.W.3d 294 (Tex. Crim. App. 2012). As we enter the latter half of this decade, our highest courts seem all to willing to bend over backwards and uphold unlawful arrests.
by Houston Criminal Defense AttorneyAvatar Lawyer
Meet ROSS.
Created by and marketed as the world’s first artificially intelligent attorney. The AI machine, powered by IBM’s Watson technology, will serve as a legal researcher for the firm, BakerHostetler.
BakerHostetler emphasized ROSS is not out to replace attorneys, but only to be used as a supplemental tool to “reduce human error, move faster, and move more efficiently.”
The same reasoning cited by Cyberdyne Systems in creating Skynet, a self-aware, artificial intelligence system that initiated mass genocide in the blockbuster movie franchise Terminator. Unfortunately for those waiting, attorney genocide seems unlikely and this article is not about ROSS, BakerHostetler, or Arnold Schwarzenegger.
This article incorporates a different idea with the potential to terminate or at least diminish a trial attorney’s courtroom presence. Walking in ROSS’ red-carpet shadow is Adam Benforado, an accomplished professor of Drexel University Law School and author of Unfair: The New Science of Criminal Injustice, who has proposed virtual courtrooms. That’s right, lawyer avatars. His goal aims at fixing the criminal “injustice” system. A system where verdicts are rendered not on facts, but on cultural cognitions – gut feelings, prejudices, stereotypes, personal likes, or dislikes, sympathies, and generalizations. A system where incorrect Verdicts send innocent people to prison far too often.
How Good People, with Good Intentions, Get Things Terribly Wrong.
Simply put, we don’t understand how the human brain works. While we are aware humans suffer from a long litany of biases, everyday courtrooms across the country attempt the impossible. They try to control uncontrollable biases.
Any trial attorney can give you a voir dire example where an otherwise disqualified juror is rehabilitated by the court. After explicitly revealing a bias, the court instructs the juror, “you can put your feelings aside and follow the law?”. To which the perspective juror reluctantly replies, “I guess, yes.” This exchange by the judge and juror actively promotes a false notion that biases can be suppressed and controlled.
The very purpose of voir dire is to ferret out biases. Sanchez v. State, 165 S.W.3d 707 (Tex. Crim. App. 2005). While the fear of a person concealing explicit biases to remain on the jury exists, it is the hidden, implicit biases lawyers should fear most.
Explicit bias is an attitude and stereotype consciously accessible and endorsed as appropriate. Consider a person’s bias towards vaccinations. This person has a negative attitude (i.e. prejudice) toward vaccinations and also believes vaccinations are bad for your health (i.e. stereotype). In believing vaccinations should be avoided, this person is aware of the attitude and stereotype and endorses them as appropriate. Implicit bias, on the other hand, is an attitude and stereotype not consciously accessible. Consider another person who just recently developed a bias against vaccines. However, this person has a history of receiving vaccinations and has remained in good health. Based on past experiences this person may still have a positive attitude towards vaccines. Translating these biases to the courtroom, a juror with an explicit bias should recognize their prejudice against a certain class of people and reveal it. A juror with an implicit bias may perceive themselves as objective, but unknowingly hold a negative stereotype about a particular class of people. Jurors may say they will give equal weight to both a police officer’s testimony and a non-police officer’s testimony, but subconsciously they may associate an officer being more trustworthy and credible.
Check out this video from What Would You Do? and see an example of these biases at work.
Like many in the video, it is those who perceive themselves as objective who present the greatest challenge. Research has shown when a person believes himself to be objective; such belief licenses him or her to act on their biases. Eric Luis Uhlmann & Geoffrey L. Coher, “It Think It, Therefore It’s True.”: Effects of Self-Perceived Objectivity on Hiring Discrimination, (2007). Police officers, lawyers, jurors, and judges all harbor these hidden biases. In a judicial poll, 97% of judges ranked themselves in the top half in their ability to “avoid racial prejudice decision making.” Jeffrey J. Rachlinski, Does Unconscious Racial Bias Affect Trial Judges?, 84 NOTRE DAME L. REV. 1195, 1225 (2009). Not only is that figure mathematically impossible, but it is inaccurate. Implicit Association Tests (IAT’s), used to measure hidden attitudes and beliefs, revealed these “impartial” judges had concealed biases on defendants of the opposite race. Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, The Failed Promise of Batson, and Proposed Solutions, 4 HARV.L. & POL’Y REV. 149, 150 (2010). It is the need to counter these biases that stand as the foundation for the lawyer avatar.
The Lawyer Avatar.
In the first part of the two-part proposal, Benforado suggests substituting “live” jury trials with previously recorded trials. Trials that have been edited to eliminate inadmissible material, improper questions, sidebar remarks, objections, and the court’s rulings on those objections. This approach protects jurors from unlawful evidence with the potential to negatively influence their decision-making process. In essence, what jurors don’t know, won’t harm them. In part two of the proposal, he suggests an animated courtroom where lawyers and witnesses are replaced by avatars. In substituting courtroom faces with generic avatars, he believes juries will focus more on the facts of the case as opposed to cultural cognitions bolstered by implicit biases. A witness avatar would hide the physical characteristics of the person testifying (e.g. race, dress, attractiveness, etc.). The judge avatar would hide such things as facial expressions while ruling on evidentiary matters. Supporters believe virtual courtrooms would bury unwanted explicit and implicit biases.
The Lawyer Avatar’s Legal Hurdles
We can assume our founding fathers failed to take into account virtual courtrooms when writing the Constitution. In order to accommodate this idea grounded Constiutional pillars would need to be bent. The 5th Amendment provides, “No person shall . . . be deprived of life, liberty, or property without due process of law.” U.S. Const. Amend. V; See also Tex. Const. art. 1 § 13 & 19. The 6th Amendment grants the “accused the right to be . . . confronted with the witnesses against him. U.S. Const. Amend. VI; See Tex. Const. art. 1 § 10; See also Crawford v. Washington, 541 U.S. 36 (2004); Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010). Incorporated in both is the right to a fair and impartial jury that is the exclusive judge of the facts and determines the credibility of witnesses and the weight given to their testimony. Tex. Code. Crim. Proc. Art. 36.13. The central purpose of these constitutional principles is to ensure the reliability of evidence against an accused by subjecting it to rigorous testing that includes: physical presence, oath, cross-examination, and observation of demeanor by the trier of fact. Maryland v. Craig, 497 U.S. 836 (1990). Proponents could argue courts have held that although face-to-face confrontation forms the core of these clauses values, it is not an indispensable element, particularly where the testimony’s reliability is assured and public policy is advanced. Id at 837. Adapting the criminal justice system to protect innocent persons from spending years in prison, certainly seems like a valid public interest. On the flip side, appellate courts are careful not to “invade the province of the jury” when reviewing cases. This is due in part because the black robes were not present at trial. It is the jury’s role, not appellate judges, to determine the credibility of the witnesses and the weight evidence should be given. Although one could argue the current legal system shows jurors are deciding cases on things unrelated to the facts of the case, these clauses exist to protect the accused. An adverse witness hiding behind an avatar not only deprives the jury the ability to get a complete picture of the witnesses demeanor but also deprives the accused of truly testing the witness’ story. The witness will feel more comfortable and more confident without having the eyes of the courtroom on him or her, an essential element of confrontation.
Attorney Genocide?
Who knows if virtual courtrooms will ever take a seat in the American justice system or if avatars will help fix a broken system. In the meantime using prior wrongful conviction as lawyer avatar case studies could yield compelling information. Also, judges, lawyers, officers, and jurors should become aware and educate themselves of these biases and courts should take measures to ensure a fair and impartial jury is seated. United States District Court Judge Mark W. Bennet, for example, spends twenty-five minutes with jury panels during voir dire discussing implicit biases. He shows jurors the above video and has a plaque in the jury deliberation room that reads:
I pledge: I will not decide this case based on biases. This includes gut feelings, prejudices, stereotypes, personal likes or dislikes, sympathies, or generalizations.
We must lay to rest this notion we are infallible and objective. Failure to do so is a vote of injustice. An endorsement that it is okay to send innocent people to prison. As we continue to search for a just system, as we continue to live in a nation where anything is possible, who knows, maybe a lawyer’s courtroom presence will slowly become…terminated.