I was in District Court most of the morning and saw an interesting set of events. As they unfolded, I paid more and more attention, but I’m sure I missed some details at the beginning. Here goes:
First: A prosecutor, a cop, defense lawyer Oscar Buitron, and the defendant at the bench. Testimony was being taken in a DWI case. Something about a CAD report and whether or not the officer really had called in to dispatch to check the license and registration on a vehicle as he had previously sworn under oath.
I suspected, and later confirmed, that it was some sort of continuation of a pretrial hearing that had already occurred. The officer was insisting that he indeed had called in to check the vehicle, but he was squirming, uncomfortable. Just a little bit. He’d testified before, so he was almost holding his own.
But it was obvious from the questioning that Oscar thought he could prove the officer was being… let’s say… untruthful. And more importantly that he had the goods to prove it. Then out came the CAD report itself (of course).
I had other things going on, but my interest was piqued and I managed to catch something about “if you press this button here”, “then you press that button there”, “blah blah blah”. They were up at the bench, no microphones, I didn’t catch everything being said.
After testimony concludes, there’s some chatter about resetting it to another-another-pretrial setting so that Oscar can bring in some more witnesses (APD officers no less) who will be able to show that the arresting officer’s testimony – that he had called it in, that dispatch had called him back and said the registration wasn’t current, but that he had then manually deleted that information from the CAD report itself – was impossible. (Never mind nonsensical. “Gee, let me take some time out of my busy day to erase the confirmation that this was a good stop.”)
Second: Probably 15/20 minutes later I’m chatting with that prosecutor about something completely unrelated, and the bailiff walks up to him and says, “The officer wants to talk to you”. He motions to the jury room. The prosecutor excuses himself from our conversation and leaves.
Third: Another half hour later… the defendant is back at the bench entering a plea. To back time on a misdemeanor.
Now I don’t need to see parts one and two to know that as a general rule when a defendant walks up to the bench in Felony Court and pleads to a misdemeanor, that he’s getting a significantly above average deal in his case. Never mind that it was back time: no probation, no more jail. Oscar was obviously well prepared and had gotten a good result.
By the way, I left it out of the initial description, but the prosecutor had brought out other traffic violations for the court to hang its hat on, so this was – despite the testilying – no slam dunk win for the defense.
I talked to Oscar afterwards (who among us doesn’t love it when one of our brothers or sisters ekes out a victory) and found out some more details. It was a habitual case. The defendant had (at least) two prior pen trips and was looking at a minimum of 25 years if convicted on the indictment.
More invigorating (perplexing? commonplace?) still was that Oscar hadn’t known this would pop up during the first pretrial. The officer had already listed in his PC affidavit, and testified to traffic violations that weren’t demonstrably false, when he decided to just “add” the testimony about calling in the license to dispatch. (This is a favorite police “excuse” in my experience. Which is foolish because it’s one of the easiest to catch them on.) Nothing mentioned about it though in the PC or the offense report.
Oscar’s BS detector went off. He asked the judge to continue it, rechecked the tape which confirmed his memory that the officer appeared to discover that the vehicle was unregistered well after the stop, and ordered the CAD.
Mostly though, it’s that second step listed above that intrigues me so. The cop in the back room sweating and “needing to talk” to the prosecutor.
What exactly did that officer tell the prosecutor, when the bailiff alerted him that he needed to “confer”? I’ve never worked for the State, so I can only imagine the possibilities…
* “Hey I’m not sure how intoxicated he was after all. Can you work out a deal?”
* “Please drop this case… I don’t want to come back on it. Ever.”
* “Quick question for you… what’s the penalty for perjury again?”
Thursday, July 30, 2009
Questions: One Always Seems to Lead to Another
My internet stats program for this blog - Mint - keeps track of IP addresses associated with various searches as well as other interesting (if you’re a geek) tidbits of information. Tonight I saw the following string of searches, which started five weeks ago:
How long does a DWI case take in Travis County?
Of course the answer to this question, like all of those that don’t provide enough information to properly answer, is… it depends. But let me see if I can do better than that anyway. The discovery process – getting the video, offense report, intoxilyzer records if it’s a breath test case, and sitting down at least once to substantively chat with a prosecutor about your case? – will take at least three to four months, sometimes longer.
Several more uncontested settings and at least one contested pretrial setting on a motion to suppress can be several more months, depending primarily on availability of the officer and your lawyer’s schedule.
How long will you be on the jury docket if you don’t work out a plea? I talked to a client earlier today and his case is a year and half old. We are just now bubbling to the top of the jury docket in that court. (I’d say that’s a little unusual, but it’s by no means record-setting either.)
Next search, some time later, same IP:
Travis County DWI No Contest
Can’t tell if this is part of a “do I have to hire a lawyer” stage. Since the first search is only five weeks ago, it seems a tad early to be hearing this from your lawyer, but who knows? Maybe it’s just ‘background’ research on what happens. Next query:
Transcripts of ALR hearings
Seems like something a lawyer might Google if they were trying to learn some good cross examination questions. Or maybe the client wants to know how much something like that might cost. Next search, a little later still:
What if officer does not appear at ALR hearing?
A lawyer would know the answer – I hope – to this one, so maybe this really is a defendant trying to figure out how things work. Assuming the officer has been properly subpoenaed, and DPS doesn’t have ‘good cause’ for his absence, it should be dismissed. (But don’t hold your breath – I’ve objected to and been overruled on some pretty flimsy ‘good cause’ issues at SOAH.)
What if my attorney did not get an ALR hearing?
Well now things have taken a turn for the worse. The next search/same IP provides us some insight into the mystery:
My attorney did not request ALR because I passed breath test did not take a blood test
“I see,” said the blind man. I think I’ve figured this out. You told your lawyer that you passed the breath test – blew under .08 – and I hope for your sake that you told him about the blood test part.
Was your license confiscated? Did they ask for blood after you passed the breath test? If you refused the second test, they may have issued the DIC paperwork and started the license suspension process. Including that 15 day period you’ve been reading about – at least since you started doing your own internet research.
I think it’s good advice for the lawyer to request an ALR in every case, including when the potential client comes in and says, “I passed the test”. First, I’ve had cases where clients told me, “They said I blew .07”, but we find out later there was some confusion about the “.0” part. (i.e., “.17”)
Second, if DIC paperwork was issued, it has to be done. DPS is basically just a big bunch of computers. There are humans too, of course, but by and large they are there to correct the computer errors. Some clerk receives a Notice of Suspension from a police agency, enters the info, and that 15 day time limit starts ticking.
Third, DPS considers passing the breath test but refusing the next round of blood tests to actually be a refusal. And more importantly, back to point number two, if the computers were fed the information about the notice of suspension, and you/your lawyer didn’t do anything then the “Automatic” License Revocation kicked in.
Something like this came up recently – although I can’t find the email so the details might have differed - on either the Texas criminal defense lawyer listserv or the Texas DWI defender listserv, and Houston DWI lawyer Troy McKinney properly referred the questioner to Texas Transportation Code 524.012:
(c) The department may not suspend a person's driver's license if:
(1) the person is an adult and the analysis of the person's breath or blood specimen determined that the person had an alcohol concentration of a level below that specified by Section 49.01(2)(B), Penal Code, at the time the specimen was taken;
Unfortunately section (d) continues:
(d) A determination under this section is final unless a hearing is requested under Section 524.031
So it’s a moot point without the request. Sounds like your lawyer woulda, coulda, shoulda… Or maybe I’m missing something, who knows?
How long does a DWI case take in Travis County?
Of course the answer to this question, like all of those that don’t provide enough information to properly answer, is… it depends. But let me see if I can do better than that anyway. The discovery process – getting the video, offense report, intoxilyzer records if it’s a breath test case, and sitting down at least once to substantively chat with a prosecutor about your case? – will take at least three to four months, sometimes longer.
Several more uncontested settings and at least one contested pretrial setting on a motion to suppress can be several more months, depending primarily on availability of the officer and your lawyer’s schedule.
How long will you be on the jury docket if you don’t work out a plea? I talked to a client earlier today and his case is a year and half old. We are just now bubbling to the top of the jury docket in that court. (I’d say that’s a little unusual, but it’s by no means record-setting either.)
Next search, some time later, same IP:
Travis County DWI No Contest
Can’t tell if this is part of a “do I have to hire a lawyer” stage. Since the first search is only five weeks ago, it seems a tad early to be hearing this from your lawyer, but who knows? Maybe it’s just ‘background’ research on what happens. Next query:
Transcripts of ALR hearings
Seems like something a lawyer might Google if they were trying to learn some good cross examination questions. Or maybe the client wants to know how much something like that might cost. Next search, a little later still:
What if officer does not appear at ALR hearing?
A lawyer would know the answer – I hope – to this one, so maybe this really is a defendant trying to figure out how things work. Assuming the officer has been properly subpoenaed, and DPS doesn’t have ‘good cause’ for his absence, it should be dismissed. (But don’t hold your breath – I’ve objected to and been overruled on some pretty flimsy ‘good cause’ issues at SOAH.)
What if my attorney did not get an ALR hearing?
Well now things have taken a turn for the worse. The next search/same IP provides us some insight into the mystery:
My attorney did not request ALR because I passed breath test did not take a blood test
“I see,” said the blind man. I think I’ve figured this out. You told your lawyer that you passed the breath test – blew under .08 – and I hope for your sake that you told him about the blood test part.
Was your license confiscated? Did they ask for blood after you passed the breath test? If you refused the second test, they may have issued the DIC paperwork and started the license suspension process. Including that 15 day period you’ve been reading about – at least since you started doing your own internet research.
I think it’s good advice for the lawyer to request an ALR in every case, including when the potential client comes in and says, “I passed the test”. First, I’ve had cases where clients told me, “They said I blew .07”, but we find out later there was some confusion about the “.0” part. (i.e., “.17”)
Second, if DIC paperwork was issued, it has to be done. DPS is basically just a big bunch of computers. There are humans too, of course, but by and large they are there to correct the computer errors. Some clerk receives a Notice of Suspension from a police agency, enters the info, and that 15 day time limit starts ticking.
Third, DPS considers passing the breath test but refusing the next round of blood tests to actually be a refusal. And more importantly, back to point number two, if the computers were fed the information about the notice of suspension, and you/your lawyer didn’t do anything then the “Automatic” License Revocation kicked in.
Something like this came up recently – although I can’t find the email so the details might have differed - on either the Texas criminal defense lawyer listserv or the Texas DWI defender listserv, and Houston DWI lawyer Troy McKinney properly referred the questioner to Texas Transportation Code 524.012:
(c) The department may not suspend a person's driver's license if:
(1) the person is an adult and the analysis of the person's breath or blood specimen determined that the person had an alcohol concentration of a level below that specified by Section 49.01(2)(B), Penal Code, at the time the specimen was taken;
Unfortunately section (d) continues:
(d) A determination under this section is final unless a hearing is requested under Section 524.031
So it’s a moot point without the request. Sounds like your lawyer woulda, coulda, shoulda… Or maybe I’m missing something, who knows?
Maybe It Should Be The Law, But It Isn't
Over two years ago, I wrote a post called “The Implied Consent Fallacy”. In the essay I objected to the legal fiction that everyone knows they are consenting to give a breath or blood test when asked by the police, simply by virtue of applying for and accepting a Texas Driver’s License.
Semi-anonomous first time reader “Jason” weighed in recently with this comment:
It's a good law. Bottom line, don't drive after consuming alcohol.
Simple enough, why don't they get it? Too bad there are attorney's [sic] who defend these people of lower than average intelligence.
Well, Jason, despite the fact that you missed the entire point of the post itself, let’s address your point. It seems to be that you think:
Driving after consuming alcohol is illegal…
and that therefore,
You deserve to have your license suspended…
even if the suspension is predicated on the falsehood that you knowingly and willingly agreed to provide a breath specimen when you got your driver’s license.
Just one problem with your theory… taint so. It is not illegal to consume an alcoholic beverage and get behind the wheel in Texas. You can make a good argument that it should be; but until you change the law to make it so, your premise is 100% incorrect.
One last thing. I often edit people’s grammar and spelling errors in comments, but given this particular combination of double ad hominem attack with a healthy dose of self righteousness I decided to let your comment stand as is.
Semi-anonomous first time reader “Jason” weighed in recently with this comment:
It's a good law. Bottom line, don't drive after consuming alcohol.
Simple enough, why don't they get it? Too bad there are attorney's [sic] who defend these people of lower than average intelligence.
Well, Jason, despite the fact that you missed the entire point of the post itself, let’s address your point. It seems to be that you think:
Driving after consuming alcohol is illegal…
and that therefore,
You deserve to have your license suspended…
even if the suspension is predicated on the falsehood that you knowingly and willingly agreed to provide a breath specimen when you got your driver’s license.
Just one problem with your theory… taint so. It is not illegal to consume an alcoholic beverage and get behind the wheel in Texas. You can make a good argument that it should be; but until you change the law to make it so, your premise is 100% incorrect.
One last thing. I often edit people’s grammar and spelling errors in comments, but given this particular combination of double ad hominem attack with a healthy dose of self righteousness I decided to let your comment stand as is.
Missed It By That Much
I should know better than to get my hopes up.
Yesterday morning, my client’s DWI was set for a pretrial conference. That’s the last setting before a contested pretrial motions hearing in Travis County. But it doesn’t get set for pretrial motions until the complaint and information (official charging instrument in a misdemeanor) have been filed at the county clerk’s office.
This was – hang on, let me go check my calendar – the 27th time my client’s case was set on the docket. Which is a lot – but, no complaint and information, it just keeps getting reset about once every 3 or 4 weeks for another status check.
Today was 732 days after my client’s arrest. Two years and two days after. The statute of limitations for a misdemeanor DWI in Texas – which applies to the filing of the charging instrument only – expired two days ago. But this morning when I looked in the clerk’s file, the C&I was there. It had been filed in between the last two settings, just under the two year deadline.
Sigh.
That’s OK. Now I’ll just have to earn my fee the regular way.
Yesterday morning, my client’s DWI was set for a pretrial conference. That’s the last setting before a contested pretrial motions hearing in Travis County. But it doesn’t get set for pretrial motions until the complaint and information (official charging instrument in a misdemeanor) have been filed at the county clerk’s office.
This was – hang on, let me go check my calendar – the 27th time my client’s case was set on the docket. Which is a lot – but, no complaint and information, it just keeps getting reset about once every 3 or 4 weeks for another status check.
Today was 732 days after my client’s arrest. Two years and two days after. The statute of limitations for a misdemeanor DWI in Texas – which applies to the filing of the charging instrument only – expired two days ago. But this morning when I looked in the clerk’s file, the C&I was there. It had been filed in between the last two settings, just under the two year deadline.
Sigh.
That’s OK. Now I’ll just have to earn my fee the regular way.
If the Death Penalty Capital of the World Can Do It...
Harris County DA Pat Lykos has announced that she will allow first time DWI offenders to apply for Pretrial Diversion and/or be eligible for a Deferred Prosecution:
Harris County District Attorney Pat Lykos announced plans Friday for a program that allows first-time DWI and drug offenders to avoid conviction, an idea she acknowledged could be a hard sell to the public.
The plan, referred to as pretrial diversion and scheduled to begin in August, was heartily endorsed by the county’s defense attorneys, supported by the sheriff deputies’ and the Houston police officers’ unions, but strongly opposed by the local chapter of Mothers Against Drunk Drivers.
“What we’re trying to do is prevent recidivism. So, it’s a carrot-stick approach,” Lykos said. “With respect to DWI, that’s an absolute plague in Harris County. If we can get first offenders, get them into treatment … and divert them so they don’t become repeat offenders, that’s going to have enormous dividends. And the same thing for first-time drug possession.”
This move was, and I know I’m repeating myself here, “supported by the sheriff deputies’ and the Houston police officers’ unions”. For all you law and order folks out there, doesn’t that endorsement convince you that it can’t be an all-bad idea, can it?
Heck, even Williamson County, not known for its soft-on-crime reputation allows DWI defendants with no prior criminal history to apply for what they call Pretrial Intervention – the same thing as Travis County’s Pretrial Diversion.
Isn’t it about time the progressive folks in charge of our Travis County Attorney’s Office here in Austin do the same thing?
Harris County District Attorney Pat Lykos announced plans Friday for a program that allows first-time DWI and drug offenders to avoid conviction, an idea she acknowledged could be a hard sell to the public.
The plan, referred to as pretrial diversion and scheduled to begin in August, was heartily endorsed by the county’s defense attorneys, supported by the sheriff deputies’ and the Houston police officers’ unions, but strongly opposed by the local chapter of Mothers Against Drunk Drivers.
“What we’re trying to do is prevent recidivism. So, it’s a carrot-stick approach,” Lykos said. “With respect to DWI, that’s an absolute plague in Harris County. If we can get first offenders, get them into treatment … and divert them so they don’t become repeat offenders, that’s going to have enormous dividends. And the same thing for first-time drug possession.”
This move was, and I know I’m repeating myself here, “supported by the sheriff deputies’ and the Houston police officers’ unions”. For all you law and order folks out there, doesn’t that endorsement convince you that it can’t be an all-bad idea, can it?
Heck, even Williamson County, not known for its soft-on-crime reputation allows DWI defendants with no prior criminal history to apply for what they call Pretrial Intervention – the same thing as Travis County’s Pretrial Diversion.
Isn’t it about time the progressive folks in charge of our Travis County Attorney’s Office here in Austin do the same thing?
Do Prosecutors Trust The Intoxiliar 5000?
Well, Eric Dexheimer, on the Statesman’s Focal Point blog, actually asks the question “Do prosecutors walk the walk with DWI breath tests?”. The answer, of course, is usually a resounding “Hell No!” but a more interesting question is – if you believe me that the answer is “No”- then “Why Not?”
Could it be that as lawyers intimately involved in the criminal justice system, that they know their rights, and when to exercise them?
Could it be that as lawyers intimately involved in the criminal justice system, that they know their rights, and when to exercise them?
DWI Dismissal Could Lead To Removal Of Ignition Interlock Device
Proving that the Wichita Falls Times Record News Online is just a little behind what most people would consider news, a few days ago they ran a story titled “First Offense May Require DWI Device”:
Repeat drinking and driving offenders in Texas know the hassle that comes with the advanced charges, but soon, first-time offenders, too, could face a tougher crack down.
Texas state legislation mandates that repeat offenders be ordered to have an ignition interlock installed on their vehicle as a condition of their bond.
However, that could change soon, as legislators are looking at amending the law, making the interlock a requirement on the first offense.
Actually, the legislative session is over, and I’m pretty sure House Bill 1110, which would have done just that, was left pending in committee, which is fancy legi-speak for “went nowhere”. I say “pretty sure” because Texas has some funky procedures regarding the Governor’s ability to call special sessions for certain issues, but I haven’t heard of one for this… yet. Not saying it couldn’t happen.
At any rate, I found this tidbit from the article amusing. Sometimes journalists like to rile their readers up, let ‘em know what sorts of outrageous consequences there could be if a bill doesn’t pass:
For some, the device is only a temporary inconvenience.
Being a condition of bond, the suspect could be allowed to have the device removed if the case is dismissed, or the terms of the conviction or probation don’t mandate its use.
That’s right folks! You get arrested, not convicted but just accused of DWI second in Texas, and you’re going to be required to put an interlock on your car. But as the law stands now… if the state dismisses your case (or, and the article doesn’t mention this, but hey, this is bad law too) if you are acquitted…
Under current law, you are no longer required to have the IID on your car. Imagine that. The horror. Better call your legislator and, well, tell them what? Rewind time and get this bill out of committee?
Repeat drinking and driving offenders in Texas know the hassle that comes with the advanced charges, but soon, first-time offenders, too, could face a tougher crack down.
Texas state legislation mandates that repeat offenders be ordered to have an ignition interlock installed on their vehicle as a condition of their bond.
However, that could change soon, as legislators are looking at amending the law, making the interlock a requirement on the first offense.
Actually, the legislative session is over, and I’m pretty sure House Bill 1110, which would have done just that, was left pending in committee, which is fancy legi-speak for “went nowhere”. I say “pretty sure” because Texas has some funky procedures regarding the Governor’s ability to call special sessions for certain issues, but I haven’t heard of one for this… yet. Not saying it couldn’t happen.
At any rate, I found this tidbit from the article amusing. Sometimes journalists like to rile their readers up, let ‘em know what sorts of outrageous consequences there could be if a bill doesn’t pass:
For some, the device is only a temporary inconvenience.
Being a condition of bond, the suspect could be allowed to have the device removed if the case is dismissed, or the terms of the conviction or probation don’t mandate its use.
That’s right folks! You get arrested, not convicted but just accused of DWI second in Texas, and you’re going to be required to put an interlock on your car. But as the law stands now… if the state dismisses your case (or, and the article doesn’t mention this, but hey, this is bad law too) if you are acquitted…
Under current law, you are no longer required to have the IID on your car. Imagine that. The horror. Better call your legislator and, well, tell them what? Rewind time and get this bill out of committee?
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