by Houston Criminal Defense AttorneyNew Laws in effect for 2015
Scroll Below for new laws in effect for 2015.
by Houston Criminal Defense Attorney254 Texas Courthouses
Need a Texas Courthouse? There is a pic for that.
Credit to birdshooter.smugmug.com
by Houston Criminal Defense AttorneyWolf Inside the Chicken Coop – Visiting the DPS Crime Lab
Today DPS opened up their doors allowing us an inside look at their crime lab. In particular we were given presentations on DNA, Ballistics, Evidence Reception, Breath Alcohol and Blood Alcohol Testing, and Drug Testing. The experience was one every criminal defense attorney should undertake.
Receiving Evidence
Receiving Evidence
Why the method of receiving evidence is important?
A major concern with evidence of any kind, but especially biological evidence is contamination. Contamination can come from a number of sources. The receiving department has the responsibility of ensuring the integrity of the evidence has not been compromised. Compromised evidence can lead to wrongful convictions. Under the law the chain of custody must be known before any evidence is admitted into court (i.e. who handled the evidence and when did they handle it). The receiving department assists in ensuring the chain of custody is accurate and proper.
What to look for:
How was the package sealed?
- How is it taped?
- Is there evidence tape?
- Were staples used?
- Is the package torn or ripped?
- Is the package opened?
- Is there a proper chain of custody?
Trace Evidence
Trace evidence occurs when objects contact. Examples include, hairs, paint, shoe prints, fingerprints, glove prints, etc. Below are some of the machines used by DPS to attempt to reconstruct the crime scene using trace evidence.
Breath Test
While there has been a bit of delay for the release of the Intox9000, the anticipated release date is January 1, 2016. The Intox9000 will replace the Intox5000, which has provided breath alcohol samples since the early 80s. While there are a few new gadgets on the Intox9000, in essence it is simply a more user friendly version of the Intox5000. Meaning there are still a number of issues concerning its accuracy and reliability.
During this presentation it must be noted, when asked about the delay on the Intox9000, it was denied. Also, when asked by an individual if the Intox machines were in vehicles, the DPS employee responded they would never put one in a car. This is 100% false, as they have done just that (known as the BAT Van).
Intoxilyzer Breath Machines – 5000s and 9000s
Blood Alcohol Testing
The Gas Chromatograph – Flame Ionization Detector (GC-FID) pictured below is used to qualify and quantify alcohol in blood. This machine is based on separation science. As an example, picture a sloped driveway. You are standing by the garage with a number of different sports balls in front of you (e.g. basketballs, footballs, soccer balls, baseballs, golf Balls, etc.). As you turn the blower on and point it towards the balls, they will begin traveling toward the bottom of the driveway. Eventually they will all reach the base of the driveway, doing so at different speeds. Think of molecules in blood as those balls. The machine is able to identify the molecules (i.e. ethanol) via the speed at which they travel through the machine. Once the molecule has been qualified (identified), it can then be quantified.
Of note: DPS employees listed on the dry erase board the highest BACs of the year. Directly in front of that board was Garriott’s Medicolwegal Aspects of Alcohol, a book written by the leading scientists regarding alcohol. The three BACs listed on the dry-erase board were all well over 0.40. When asked, “0.40? Shouldn’t the person be dead?”, the DPS employees response, “Yes, they should be.” Yet the result was considered valid and business as usual? Despite the leading scientists stating death is a real possibility at 0.30? Disturbing answer.
Gas Chromatograph – Flame Ionization Detector (GC-FID)
Drug Testing
After a positive presumptive test. Drugs are then run through the Gas Chromatograph – Mass Spectrometry (GC-MS) for a confirmatory test. Similar to blood alcohol testing this science is based on separation.
Gas Chromatograph – Mass Spectrometry (GC-MS)
Ballistics
Think gun residue, shooting distance, serial # restoration, bullet cartridges, etc.
DNA
Specifically fingerprints and bodily fluids used to obtain information on potential suspects.
While it was difficult not to turn the presentation into a colorful cross-examination, the experience was both invaluable and informative. We appreciated the opportunity to take a look inside the chicken coop.
by Houston Criminal Defense AttorneyDestroying your neighbors irritating drone.
In an episode from the hit series TV show Modern Family, Phil, Luke, and Manny go to great lengths in an attempt to destroy the neighbors irritating drone.
Phil isn’t alone. With the increasing number of hobbyist drones, the suburban airspaces have turned into minor battlefields. The question becomes, is it legal to destroy your neighbor’s drone? In most instances no, of course, as with anything there are a few exceptions.
The History of Drones in the United States
A drone or unmanned aircraft vehicle (UAV) is an aircraft without a human pilot. Innovation for today’s drones began in the early 1900s as a way to train military personnel. Little more than remote-controlled airplanes, the drones were modified in the 1960s with the U.S., concerned about losing pilots during the Vietnam War began deploying drones for high-risk flying operations. Heading into the early 1990s and with technology advancing, the U.S. unveiled their armed UAV lineup for the Gulf War.
While drones were developed for and associated with military applications, they have become more common in everyday urban and rural life. Modern UAVs are used for aerial surveillance of crops, footage in filming, search and rescue operations, inspection of power lines and pipelines, counting wildlife, delivering supplies, crowd monitoring, etc. UAVs have also become a trendy hobby for people, which is why you may not be all that thrilled about your neighbors new toy.
Is it legal for your neighbor to fly a UAV?
Yes, although there are limitations on using drones and capturing images of persons on private property and images of private real property. See Texas Government Code, Section 423. Look for the laws surrounding drones to change and develop as people continue to take their latest hobby to the air.
Can I destroy my neighbors flying UAV because I don’t like it?
No. In fact you can be prosecuted under Federal Law 18 U.S.C. Section 32, stating in part:
(a) whoever willfully-
(1) sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce
…shall be fined…or imprisoned not more than 20 years.
In 2011 the National Transportation Safety Board declared a drone an aircraft subject to FAA regulations. In other words the aforementioned Federal Law criminalizing the destruction of an aircraft applies to your neighbor’s irritating, drone hovering over your backyard.
What if I am under attack from my neighbor’s drone?
While self-defense has always had a bit of grey area in its application, if you believe force is immediately necessary to protect you, your family, or even your neighbors property, then yes you can take it down. Is the drone equipped with ammo? You can destroy. Is the drone trying to ram you? You can destroy.
What if the drone lands on my yard?
Unlike airspace (government property), your yard is your property. However, that doesn’t mean you can take a Louisville Slugger to the drone. In Texas, you may defend your property, but you must believe you are under attack.
What if the drone flies into my home?
If the drone comes crashing through your window and lands in your home, feel free to channel your inner – Dwayne “The Rock” Johnson and dust off your best “people’s elbow.”
Under the law, self defense may be used if a person unlawfully and with force enters your home. Here a drone (via a person) has unlawfully and with force entered your home.
What if the drone is a “Peeping Tom?”
Just because someone is snapping photos of you, doesn’t mean you can take a crane kick to their face.
So, technically speaking under Federal Law it seems you could be prosecuted for destroying or damaging the drone. Practically speaking, however, I find it difficult to believe any jury would find you at fault. On the other hand, the owner of the drone could face a variety of criminal penalties depending on what type, if any, images were captured.
Back to Phil…
So was Phil breaking the law? Maybe.
Under Federal Law, Phil could be prosecuted. Of course, he would argue that he was only defending himself and his family from the attacking drone. This may keep him out of harms way. That is of course if investigators believe he was in fact under attack and in fear of his or his family’s life.
Officers may take the easier route and just charge him indecent exposure (1:10) and Manny with theft (of the bike, 0:39).
What you should do.
If you encounter an irritating drone around your home, call the police. In most instances you should stay clear from destroying, damaging, or attempting to destroy or damage a drone. Just because you see a drone in the sky, doesn’t mean it is coming after you. While there are exceptions to the law, taking action (even if legally justified) does not mean you are “scot-free.” Not only could you find yourself facing a criminal investigation but civil penalties as well.
Because “droning” is relatively a new hobby, it will take time for laws to catch up. in the meantime realize the hobbyist controlling the drone is most likely just taking the toy out for a quick spin. If the drone makes you uncomfortable notify the proper authorities.
by Houston Criminal Defense Attorney10 Things You Should Know During a Traffic Stop
A recent article is circulating regarding 10 things one should know during a traffic stop. While some of the information is true, a few pieces are both confusing and untrue.
1) You have the right to remain silent, but upon request should produce your correct name, address, driver’s license & insurance.
2) If an officer has reasonable suspicion or probable cause a crime is or will be committed he/she can ask you to step out of the vehicle.
3) You have the right to ask the officer, why you are being ordered out of the vehicle, but he does not have to answer or give you a reason.
4) You can ask if you are free to leave. If the officer says yes, you may leave. If the officer says no, consider yourself detained for further investigation. Remember your right to remain silent.
5) You can ask if you are under arrest. If the officer says no, ask if you may leave. If the officer says you are under arrest, do not resist. Remember your right to remain silent.
7) You have the right to disagree with the officer, but your right does not extend to being physical with the officer.
8) You have the right to record, and in most instances are being recorded by the police vehicle’s dash camera.
9) You CAN absolutely refuse permission to search your vehicle.
10) Understand less is more. The officer may not have reasonable suspicion to detain or probable cause to arrest you. Don’t provide it by thinking you can talk your way out of the situation.
by Houston Criminal Defense AttorneyThe truth behind the odor of marijuana
For years Texas courts, under the mistaken belief police officers possess superhuman–like senses of smell, have permitted invasive search and seizures based on the odor of marijuana alone. This low threshold has morphed into a catch-all phrase for vehicular searches and subsequent drug arrests. This is particularly troublesome when you read statements like the one given by
Peter Keane, a former San Francisco Police commissioner, in an article for the San Francisco Chronicle, titled “Why Cops Lie”:
Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.
Find a marijuana case and you will find a police report citing the odor of marijuana as the basis for probable cause. Find a cocaine case and you will find a police report citing the odor of marijuana as the basis for probable cause. This is despite any cannabis being found. This catch-all phrase for probable cause is not only subjective, but unverifiable without any reliable standardized training.
Walk into a medicinal marijuana shop and you will find jars full of marijuana. There is the Tahoe-OG that provides a syrupy smell and taste. There is Bubblegum Kush, that tastes and smells as the name suggests. There is the Blueberry strain and the Vanilla strain. The point is the odor of marijuana can take on many different scents.
The make-up of marijuana consists of different cannabinoids, flavonoids, and terpenoids. How much of each varies. The nearly 200 different types of Terpenoids or Terpenes give marijuana its smell. These terpenoids can be found in our everyday fruits, vegetables, herbs, spices, and hops.
| Terpenes | Aroma | Also Found In |
| Alpha-Pinene | Pine | Pine Needles, Rosemary, Basil, Mosley, Dill |
| Myrcene | Earth, Herbal, Citrus | Mango, Lemongrass, Thyme, Hops |
| Limonene | Citrus | Fruit Rinds, Rosemary, Juniper |
| Caryophyllene | Pepper | Black Pepper |
| Linalool | Floral | Lavender |
The fact marijuana may smell similar to many of your kitchen spices, a pack of bubblegum, or a pine tree isn’t the only issue. The actual ability to smell marijuana from a vehicle was called into question by a peer-reviewed journal article, entitled “Marijuana Odor Perception: Studies Modeled From Probable Cause Cases”, published in the Law and Human Behavior (Vol. 28, No. 2, April 2004). Based on two different studies this article wrote, “… a blanket acceptance of testimony based upon reported detection of odors for probable cause is questionable…”. In the first of two studies, researchers recreated a situation where, during a normal traffic stop, an officer would say he detects the odor of packaged marijuana, located in the trunk of a car. The study discovered that individuals in this officer’s position were unable to accurately detect marijuana odor. In fact, the presence of marijuana was incorrectly identified 90% of the time.
Fortunately, there have been steps made in the right direction. Recent case law in Texas declared the odor of marijuana alone insufficient probable cause for searching a home. Other states have revisited the olfactory questions as it relates to marijuana in a vehicle. Massachusetts, for example, held due to the medicinal stature, the smell of marijuana is ‘no longer indicative of criminal activity’ and therefore no longer justifies probable cause. With the recent passage in Texas allowing the limited use of medicinal marijuana, searches and arrests based on the odor of marijuana are ripe for challenge.
As history continues to be made and states across the nation set out to enact some form of marijuana legislation, the requirement for probable cause needs to keep pace.
Next time you are in your kitchen, open up a bottle of oregano, give it a smell, and you will understand.
by Houston Criminal Defense AttorneyProbe into ‘Enjoy your ride’ sign on police van
http://www.cnn.com/2015/07/03/us/baltimore-police-van-sign/index.html