Sunday, September 18, 2005

Blood And DWIs

I saw something about this on the news the other night, and thought it was terrible. The DUIBlog has also picked up on it, so hopefully other Texans will become aware of it, but it seems that at least one Texas police department is trying to skirt around the law and draw blood from those accused of DWI.

I've always believed DWI is one of the most misunderstood crimes in the penal code, and always hated some of the hybrid rules that seem to surround these cases. For example, if I recall correctly, you don't have a right to an attorney before taking field sobriety tests, the portable breath test, or the actual Intoxilizer test--all of which are incriminating. And, basically, refusal to take any of these results in you being arrested, simply because you've exercised your constitutional right not to incriminate yourself.

If any of you other Texas law bloggers aren't familiar with the story above or haven't posted on it, please put something about it on your blog. I think word needs to get around about this.

Friday, September 16, 2005

TCLEOSE F5's

Someone, please explain to me why this is proper:

Texas Administrative Code, Title 37, Part 7, Chapter 217, Rule 217.7:

(h) A report or statement submitted under this section is exempt from disclosure under the Public Information Act, Chapter 552, Government Code, unless the individual resigned or was terminated due to substantiated incidents of excessive force or violations of the law other than traffic offenses, and is subject to subpoena only in a judicial proceeding.

This section of the Texas Administrative Code, dealing with the Texas Commission on Law Enforcement Officer Standards and Education, relates to the document commonly known as the "F-5," which is the form agencies file with TCLEOSE when a peace officer quits or is terminated.

Why should this not be a public record? If you get an individual's personnel file from an agency he or she worked for, you'll most likely see why he or she was terminated or resigned. Furthermore, in my experience, most departments send F5's when you ask for the entire personnel file regardless of the TECLOSE rule to the contrary.

Further, why does it seem this provision is subject to wide interpretation? TECLOSE itself says they won't release F5's unless excessive force was involved. However, I read the rule above as stating that the F5 is releasable if excessive force or another violation of the law is involved.

I think this is ripe for legislative change, myself. I don't believe, when it comes to law enforcement officers, that the reasons for their termination should be kept from the public by the state.

Anyone have any experience in this regard? Comment below, please!

Thursday, September 15, 2005

Subpoenas Are Fun!!

I'm currently working on a case for a client of the firm who needs to establish that he lived at a particular address almost 10 years ago. Problem? He lived in an apartment that belonged to famlies of ex-in-laws, who are now dead and, oh, by the way, the crime has to do with the ex's family--so it's not like they'll voluntarily be of any help.

And, as my luck has it, the client paid no bills while he lived there because the apartment was on the same property as the other house. Lovely. BUT, he did finance a car, get some store credit cards and have a cell phone--all with bills mailed to him at that address. In addition, thankfully, to having registered to vote there.

Anyway, there's a technicality issue at play: the defendant can't have committed the crime in this county during the "on or about" period described if he didn't live here (or visit, which is unlikely). So, it is my lot to find as much proof as I can.

And, it is not fun dealing with Corporate America, if you haven't already found it out. And, sadly, most major corporations don't list their corporate contact numbers on their websites, or, at least, any contact numbers answered by anyone who understands the phrase "in-house counsel" or "legal department."

Oddly, Cingular, the company who took over AT&T Wireless was the easiest to deal with. They actually have a great National Compliance Center that handles subpoenas and related matters. And, they like for you to fax them! Mailing and personal service aren't necessary!

I tried to find information about the compliance center on the Web so I could give all of you folks a link to it, but I couldn't. I did find a very old page here. If you scroll down to the old AT&T Wireless (now Cingular), you'll find the information for the compliance center. I have no idea if any of the other information on the other companies is any good, but it may be a place to start.

Saturday, September 10, 2005

Sorry, I've Been Celebrating

Posts have been lacking here for a couple of days because I've been so busy.

We're getting ready for an upcoming trial and, in the midst of all of that, had offers made on about 15 pending cases. Communicating the offers to the clients has been time consuming and, in honor of the offers, last night and today were spent celebrating, most of today at the pool.

Anyway, I think I've explained the concept of "pre-trial diversion" about seven times over the lat few days, and I'm probably doing it in the shower.

Oh well.

Wednesday, September 07, 2005

AWOL At The Office Today

Was unfortunatly AWOL at the office today, so not much happened aside from me working on a few tickets....perhaps something in the news may spur me to blog more later...

Tuesday, September 06, 2005

Haloscan commenting and trackback have been added to this blog.

Jack Handles: The Newest Unlawful Weapon

Knives, billy clubs, pieces of wood with ominus nails stuck therein and the word "killer" burned in, sure. I'll say that's an "unlawful weapon" pursuant to the provisions of Chapter 46.02 of the Texas Penal Code.

But a jack handle? What the hell?

Seriously, though, it's happened. In fact, it happened the other day and became our office's problem this morning. Of course, had he police looked in the trunk, they' d have found the rest of the jack, and the blown out tire that had just been changed.

Surely this is one the DA will see the stupidity of. After all, our office has already battled the DA over whether or not those things people use to tighten barbed wire fences are unlawful weapons.

Seriously, though. A jack handle? So what if it's in the back seat on the floor? Ever change a tire, stuff everything back in the trunk and realize, "Oh, fuck, the jack handle?" I haven't done that with a jack handle, but I have done it with the thing you take the nuts off the tire with. (See how mechanically inclined I am--I don't even know what the hell you call that thing).

So, what else could be considered a "club" or whatever under the unlawful weapons provision? A baseball bat, I'm sure. You can beat someone with that: watch out, high school baseball players, don't get stopped for speeding or you may get popped for that one! A tennis racket? You could concievably beat the ass of someone with that. It constitutes a club, I guess, as could a golf club, a hockey stick and well hell, a frying pan, for that matter.

I actually run across a case from the 1940s a few years back in the local courthouse where a woman actually was charged with murder for beating her husband with a frying pan while he slept. Also found one where a woman killed her husband by pouring some concoction of hot water and lye all over him. Pretty bizarre and off track, but oh, well.

I also had to look into residential treatment centers for another client. Trying to keep this one out of jail because he has lots of problems, and the catch is state facilities mean he'll lose his disability checks. Go figure, he wants a private one. Jesus, any idea how difficult it is to find a facility for an alcoholic who also has to take lithium for a type of condition a friend of mine once very uneloquently called a "head disorer?" Ohhhh, the fun.

Oh, and it's always fun when kids are accused of fisting other kids. I refuse to say anything more about that except, "yeah, right," and, "Hello, aren't there some problems when a four-year-old girl is masturbating with rocks and sippy cups and constantly tugging at her hoo-hoo...oh, yeah, and watches while mommy and step-daddy do the nasty?" Not exactly a credible victim.

Luckily, nothing went to trial today that either I had or anyone I was doing work for had. Yeah! That's all put off until November....well, until another nasty docket comes over from the clerk's office. And, in two weeks, we have something like 22 clients with pre-trial motions due...all on one day...fun fun fun.

Sunday, September 04, 2005

Enough Meth To Get Half Of Smith County High?

I don't know how I missed this, but Grits for Breakfast alerts us to a story where the government claimed a couple possessed enough meth to get half of Smith County high:

A DEA agent testified at trial that 255 grams was enough to get 45,000 people "high" -- "If those people were lined up side by side, they would form a line from downtown Tyler to Bullard about 17 miles, he said."

Local media dutifully hyped the ridiculous claim. The lede in the local newspaper declared the couple was sentenced "for possessing enough Ice methamphetamine to get half of the population of Smith County high."


But is that true? That would mean that it only took .0056 of a gram -- or just over five one-thousandths of a gram -- for a person to get high on meth. By any measure, that's a big fat lie.

Although I don't want to minimize the terrible nature of this story--life inprisonment for drug possession is always extreme unless you're selling it to 12-year-olds on a school campus (and are a teacher)--but Scott's entry has made me re-think the "usable quantity" concept with regard to drug possession.

Drugs in Texas are dealth with by law in essentially two different catergories: marijuana and everything else. Possession and delivery of marijuana is covered in the Texas Penal Code. Everything else falls under the Texas Controlled Substances Act codified in the Texas Health and Safety Code. Subsequently, the HSC has various penalty groups, one two and three, etc.

However, the requirement that someone must possess a "usable quantity" of a particular drug in order to commit an offense applies only to marijuana offenses.

The Court of Criminal Appeals has concluded marijuana must be possessed in usable amouns as far back as the late 1950s, with Greer vs. State and Pelham vs. State. In Pelham (
164 Tex. Crim. 226; 298 S.W.2d 171; 1957 Tex. Crim. App. LEXIS 2075), the Court noted:

The legislature has not prescribed or limited, by statute, the amount of marijuana necessary to be possessed in order to constitute the unlawful act of possession of marijuana.

We know that the use commonly made of marijuana is to smoke it in cigarettes; it is not taken internally or by hypodermic, as are other narcotics. Such being true, we have concluded that the reasonable construction and interpretation to be applied here is that the legislature intended that to constitute the unlawful act of possessing marijuana there must be possessed an amount sufficient to be applied to the use commonly made thereof. In other words, unless the amount of marijuana possessed is such as is capable of being applied to the use commonly made thereof, it does not constitute marijuana within the meaning of the statute.

While this application with regard to marijuana makes some sense, as it's pretty easy to argue that one seed in the floorboard of a car or a couple random bits of pot aren't immediately usable (and, I think the courts have dealt with the issue of usability regarding seeds before) what does not make sense is that basically any quantity of other substances, i.e., heroin, cocaine, meth, is deemed "usable."

So, why haven't Texas courts done anything with regard to 'usability' with relation to other substances? (And, if they have, I missed it.) I mean, how many cases are out there where defendants have possessed syringes of meth or heroin which may not actually constitute usable quantities? The lab reports usually just show that the substances "contain" the narcotic. When you think about it, such a change could reak serious havoc for the system if it were taken far enough.

For example: the purpose of a controlled substance is to create some reaction within the body, ie to make a person high. A lot of factors determine how 'high' you get: body weight, tolerance, previous use history, quantity, etc. For example, it would theoretically take a lot more meth to get a 300 lb man high than a 120 lb 18-year-old high school student. Sure, the 300 lb man can use a small amount of meth, but does it do any good?

Of course, there is no chance in hell the courts would ever allow such defenses to be put forth. The way DWI cases are handled is an excellent example, because you may either have a .08 BAC or simply exhibit impairment to be charged.