Austin Attorneys & Criminal Defense Lawyers | Jail Release | Federal Defense | DWI Attorney

It is my opinion that the crime he actually committed was one not found in any Penal Code. A crime committed by individuals that, although usually done unknowingly, can result in their immediate arrest. That crime is “Failing the Attitude Test.”

As a criminal defense attorney, I see it often. The most common scenario is someone gets into an argument with a police officer and is charged with public intoxication. For example, a recent client, a young woman, called police to report her concern over threats made by an ex-boyfriend. The ex had threatened her and her new boyfriend that evening, and she was afraid he might come to her home. When police showed up to investigate, sure enough, the ex-boyfriend drove by. Police stopped and questioned him. When the decision was made to not pursue the matter any further my client became angry and walked out to the street to let the officers know how displeased she was. Moments later she was charged with public intoxication and arrested.

I believe what happened with Professor Gates was a similar situation. He was angry and responded in a not-so-pleasant manner. This upset the police and they arrested him. Everyone is focusing on the fact that he is black and calling it a race issue, and to some degree it is. It is not hard to imagine how things could get ugly when someone like Gates, a black Harvard professor, acutely aware of how race can come into play when dealing with authority, finds himself being interrogated in his own home. Black authority figure confronts white authority figure and the person with the power to arrest wins. So race added fuel to the fire, but race isn’t a mandatory ingredient for a situation like this to occur. Just ask former candidate for Travis County District Attorney, Mindy Montford. After the car she was riding in was stopped by police, she got out to advise the driver of his rights. When told by police to get back into the car she complied, but the damage was done. She was charged and arrested for public intoxication. It seems the only mandatory ingredient for a public intoxication arrest is an attitude perceived as confrontational by the police.

In all of these incidents charges were later dismissed, but of course by then, the punishment had already been exacted. And it’s not right. Police officers are professionals when it comes to confrontational situations and as such, should remain above the fray. Their duty is to de-escalate a potentially dangerous situation, not add to it. Citizens can get nervous, say distasteful things, and over-react. Police officers must stay calm, not over-react, and never take a situation personally. It’s the professional thing to do. It’s the safe thing to do. It’s the right thing to do.

So what I hope we learn from the "teaching moment" at the “beer summit” between President Obama, Professor Gates and Sgt. Crowley together is how to prevent some of these confrontations in the future. But you know, we can always find something to fight about. Already breweries are arguing over which beer should be served. As Gilda Radner from Saturday Night Live episodes of long ago would say…“it’s always something.”

Similar to previous sessions, the 81st legislative session was chock full of DWI-related bills proposing myriad ways to combat Texas’ high rate of alcohol-related crashes - sobriety checkpoints, ignition interlocks on DWI firsts, mandatory blood draws, DWI offender registry, DWI hotlines, aggravated DWIs, limiting ALR hearings... Countless hours were spent debating numerous DWI-related bills, with several of them passing out of committees but later dying on the House floor. In the end, the only DWI-related bill to survive the legislative gauntlet to change DWI laws in Texas was SB 328.

The biggest change made by SB 328 is the expansion of police power for mandatory warrantless blood tests. Under current law, police officers can only do a mandatory warrantless blood draw on a DWI suspect if there has been accident causing serious bodily injury or death. However, as of September 1, 2009, police officers will now be able to strap you down and extract your blood (and can use force if necessary) without a warrant if you are pulled over for DWI and refuse to give a breath or blood sample and any of the following scenarios is at play:

Well, what is wrong with this you might ask? First off, I should note that I HATE getting my blood drawn for medically necessary reasons, and even though it might just be a little prick, I find it a rather painful and somewhat scary procedure. Imagine combining that moderately unpleasant experience with the highly unpleasant experience of being arrested. Do you want law enforcement jabbing needles in your arm to extract your blood?? Just the mental image of that freaks me out (not to mention the hygienic aspect - for anyone who has ever taken a trip to the big house, you know that jails and booking facilities are not the cleanest of places).

Secondly, note that "bodily injury" is defined in the penal code as any physical pain which can be as innocuous as "ouch, my neck is a little sore." Under this law, cops can force people with very minor aches and pains to go to hospitals - who otherwise would not go - just so they can do a warrantless forced blood draw on the DWI suspect. Third, take a look at the language in the third scenario - "the officer possesses or receives reliable information from a credible source" that a person has prior convictions - there is no definition of "reliable information" or of "credible source" so that leaves me worried that cops will be able to use just about anything to get at your blood.

The other kicker to this new law is that it expands the pool of people authorized to sign blood warrants. As of September 1, 2009, any magistrate who is licensed to practice law in the State of Texas will be authorized to sign blood warrants.

So, as of September 1, 2009, be aware that there will undoubtedly be more blood in Texas. And you have your Texas legislators to thank for that!

1. It happened a block away from the house I moved out of last week. The green house in the photo? My dog’s peed in that yard three hundred times.

Even recognizing firsthand that breaking into cars is a very bad thing that has a frustrating impact on normal, hardworking people who just want to be able to listen to Prince as they drive to work, and being fully aware of the dynamics of the neighborhood in which the bait car was placed, I’m against the practice.

It reminds me a little bit of the NYC subway sting operation from a year or so back, “Operation Lucky Bag”, where the police were leaving briefcases and shopping bags and wallets on the ground, waiting for someone to pick them up, and then arresting them. The problem is that doing these things doesn’t necessarily get you wallet thieves (or car burglars) – at worst, it gets you people whose decision-making skills are weak when faced with an uncommon temptation (like a wallet with a bunch of cash and no ID or a car with the keys sitting in the ignition) and, as in the case of the couple from my neighborhood and several people in New York, it often snags people who were trying to do the right thing.

But even leaving those people out – maybe they’re just outliers and most of the people who pick up the wallet or check out the car are really doing so with bad intentions – it still doesn't seem like a good way to go about things. Because the person who broke into my car was a pro - he left the house that evening with a toolkit that would enable him to get into my locked car, pop open the dashboard, cut the cables, and yank out my stereo. And that's the sort of person I'd like to see the police focus on. It makes me question their motives, if they need to manufacture a set of circumstances that make committing a crime unusually convenient - are they really interested in reducing theft or in generating arrests? It seems like a bait car that just had a decent system in it would be more inclined catch the sort of people who go out of their way to commit crimes, as opposed to catching people who might, for a variety of motives - some of which are non-malicious - end up breaking the law when confronted with a strange set of circumstances. In that scenario, the car might be parked for weeks (or, in the case of my stereo and the house I just moved into, two days) before anyone is actually busted in the sting, which would probably make it hard to justify the expense of parking a car full of monitoring equipment and tracking what happens to it.

And if no one was breaking into cars that didn't have the keys in the ignition, maybe I'd see the point. But as it is, I'd feel safer knowing that, say, the police were driving around the poorly-lit streets of my neighborhood a few extra times a night than knowing that some people who seem to put everyone at zero risk were getting arrested for checking out a car abandoned under extremely unusual circumstances. I'm not all concerned with catching people who break into cars that are parked in front of their houses for weeks on end with the windows down and the keys in the ignition. Call me "soft on crime".

I am somewhat perplexed by all the dire predictions that last month's Supreme Court decision in Melendez-Diaz v. Massachusetts is going to paralyze the criminal justice system and allow a mass exodus of criminals to stream out of the jails. The case holds that lab analysts must appear in court to testify about their tests, rather than merely having their certificates of analysis admitted into evidence, as had been the practice in the majority of states. Writing for the majority, Justice Scalia clarifies that the Sixth Amendment guarantee that "the accused shall enjoy the right . . . to be confronted with the witnesses against him" is not satisfied by the "bare-bones statement(s)" often contained in the lab certificates.

Prosecutors and legal experts are panicking, fearing that murderers will go free, that thousands of drug and drunk-driving cases are going to be dismissed, and that ths sky will fall in on us all. Justice Kennedy, writing for the dissent warns, "Guilty defendants will go free, on the most technical grounds, as a direct result of today's decision." The governor of Virginia, Tim Kaine, announced Wednesday that he is calling a special session of his state's General Assembly to address the decision.

Surprisingly, however, Texas already requires live witnesses as opposed to certificates of forensic analysis under Cole v. State. Forensic lab analysts have been required to come to court to be cross-examined by defense attorneys in our state since 1990. The sky has not fallen, defendants still plead guilty in healthy numbers, cases are often won by the State, and I haven't seen any cell doors fling open to let swarms of murderers and rapists go free.

In other words, guaranteeing the accused their Sixth Amendment right to confrontation should not radically alter the nation's criminal justice system. It will ensure that lab reports and scientists can be meaningfully tested so juries can get the truth.