Legal Assistance

Blood And DWIs

2005-09-18T11:41:00.000-07:00

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.

TCLEOSE F5's

2005-09-16T07:28:00.000-07:00

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!

Subpoenas Are Fun!!

2005-09-15T17:04:00.000-07:00

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.

Sorry, I've Been Celebrating

2005-09-10T20:42:00.000-07:00

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.

AWOL At The Office Today

2005-09-07T16:25:00.000-07:00

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...

2005-09-06T17:45:00.000-07:00

Haloscan commenting and trackback have been added to this blog.

Jack Handles: The Newest Unlawful Weapon

2005-09-06T16:38:00.000-07:00

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.

Enough Meth To Get Half Of Smith County High?

2005-09-04T16:09:00.000-07:00

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.

Rehnquist is Dead

2005-09-03T20:20:00.000-07:00

I just got the flash on my MSN messenger, and found this, the first posting of the AP story from the SF Chronicle:

(09-03) 20:17 PDT WASHINGTON, (AP) --Chief Justice William H. Rehnquist died Saturday evening at his home in suburban Virginia, said Supreme Court spokeswoman Kathy Arberg.

A statement from the spokeswoman said he was surrounded by his three children when he died in Arlington.

"The Chief Justice battled thyroid cancer since being diagnosed last October and continued to perform his dues on the court until a precipitous decline in his health the last couple of days," she said.

Rehnquist was appointed to the Supreme Court as an associate justice in 1971 by President Nixon and took his seat on Jan. 7, 1982. He was elevated to chief justice by President Reagan in 1986.

His death ends a remarkable 33-year Supreme Court career during which Rehnquist oversaw the court's conservative shift, presided over an impeachment trial and helped decide a presidential election.

The death President Bush his second court opening within pour months and sets up what's expected to be an even more bruising Senate confirmation battle than that of John Roberts.

Rehnquist, 80 and ill with cancer, presided over President Clinton's impeachment trial in 1999, helped settle the 2000 presidential election in Bush's favor, and fashioned decisions over the years that diluted the powers of the federal government while strengthening those of the states.

Congressional Black Caucus Press Conference On CSPAN

2005-09-03T10:12:00.000-07:00

I just got through watching a rebroadcast of a press conference by the Congressional Black Caucus and others on CSPAN, which I believe you can watch here. It was on the Katrina aftermath, obviously.

Congressman Jessie Jackson, Jr. and Stepahnie Tubbs Jones had some of the very best remarks, and it's very much worth a watch.

New Laws & Getting Some Attention

2005-09-02T19:59:00.000-07:00

The main reason for this post is to offer some of my opinions on some of the new Texas laws that went into effect yesterday. But, before we get into all of that, I want to thank Scott over at Grits For Breakfast for giving Legal Assistance this wonderful shout-out. And, though Legal Assistance never looks a gift horse in the mouth, I've got to say that I'm not blogging from Houston. Won't say from where, but will say it's a long way from Houston. That's OK, though...it just adds to the mistique.

That said, I will give you this link to a fairly good--or at least, one of the better--articles on new laws that became effective the other day, which is from Houston...the Chron, to be exact.

According to the article, about 700 new laws are now in effect. The Chron summarized some of them and, of course, as a member of the legal profession (yes, legal assistants are a member of the legal profession as we can be Board Certified by the state bar, but it's a pain in the ass for brilliant people like me), I want to give my take on some of them, to wit:

All children younger than 5 and less than 36 inches tall will be required to ride in child safety seats in autos. The previous law applied to children younger than 4.

Can't really say I have an opinion on this one. It's probably a good idea but consider this: have ou ever tried to get a five-year-old in a car seat? Perhaps the penalties for beating your kids should be lessened somewhat, as I can tell you from experience: getting anyone above 3 and a half in a car seat is pure hell and makes you want to drink, beat people and take overdoses of presctiption drugs. (Thanks to my younger sister for giving me this experience many years ago).

An ignition interlock device will have to be installed on the car of a person convicted of driving with a blood-alcohol level of .15 or more, if the defendant is to receive probation.

Ok. Ignition interlock devices are a joke. Anyone can blow in the damned things. Plus, do you have any idea just how many people this will effect? By my estimation, it will effect about 1/4 or more of our firm's DWI clients. That's a lot. Second, I'm probably at .15 right now, since I've been drinking Jack and Coke since 7p.m. Just thought I'd throw that in.

A school district will be required to transfer a student who is the victim of bullying to another classroom or school if the victim's parent requests the move. Districts also will be expected to crack down on bullying and other forms of harassment.

This is ok, though it sounds kind of bull-shitty. Seriously, though, it's better than what some schools are doing now, which is calling in their "school resource officers," and charging 12-year-olds with Class C assault for throwing rocks on the playground. When I was in school, you'd get a detention or your ass beat for that, not a ticket. So, maybe this will discourage school administrators from becoming judge, prosecutor, and jury in conjunction with out-of-control school resource officers.

The prerogative of a parent, grandparent or guardian to use corporal punishment, or spanking, for the "reasonable discipline of a child" is reaffirmed.

Yeah, Ok. Whatever. So, now, does this become an affirmative defense to beating your kids? What if your idea of "corporal punihment" is a lit cigarette and a metal rod?

The murder of a state judge is added to the list of offenses for which the death penalty or life without parole can be sought.

Actually, I thought this was already the law. Works for me, except it doesn't really, because I oppose the death penalty. What's next: justices of the peace, tax assessors and football coaches? I'm surprised shooting a football coach hasn't been a capital offense, anyway, especially in the Panhandle...

It will be illegal (a misdemeanor for first offenders) to try to record a movie in a motion picture theater. The new law also authorizes the theater manager or other movie patrons to make "citizens' arrests" of suspected offenders, detaining them until police arrive.

This reminds me of a lawsuit filed in our district court some years back where a Wal-Mart security guard stripped searched a mother and son because they kept going out the doors and the theft alarm kept sounding. And, surprise surprise, they weren't actually trying to steal anything! Seriously, so you're answering your cell phone which happens to have a camera, someone thinks you're recording the next crappy Star Wars installment and you are under "citizens arrest?" I can smell the civil rights lawsuits coming around the bend like day-old movie popcorn.

A nine-member independent commission, appointed by the governor, the lieutenant governor and the attorney general, will have the power to investigate complaints against DNA crime labs in Texas. The new law also will require DNA sampling from 60,000 current state prison inmates who don't have DNA profiles in a central database.

First part, good. Second part...uh, did the Lege fail to read the Constitution? Just because you've been found guilty of one crime, doesn't mean you're guilty of another. And, what about the right against self-incrimination?

In a crackdown on minors purchasing alcohol and tobacco with fake IDs, retailers will be allowed to use electronic scanners to read driver's licenses presented as proof of age.

Ok. Whatever. This is done at a couple of clubs I've been to before, and half the time, the licenses won't even scan right. I'm so sure this will cut down on this. Has anyone ever heard of bootleggers? Last time I checked, they don't ID patrons, and sure as hell don't have license scanners in the trunks of their '82 Cadillac El Dorados.

A longtime law that allows Texans to carry handguns while traveling, even without a concealed handgun license, is clarified. The new law says a person is "presumed to be traveling" if he or she is in a private vehicle, is not engaged in criminal activity, is not prohibited by any other law from possessing a firearm and is not a member of a criminal street gang.

OK. Given the way the DPS and local police are today, I can see this going horribly wrong. Aren't you technically engaged in criminal activity if you're speeding, changing lanes without signaling, or violating any number of the tasty little provisions of the Texas Transportation Code the cops use to stop black people, Hispanics, and young people--all of whom are no doubt guilty of committing horrible crimes just because they're either young, Black, or Hispanic? Or, god forbid, a young half-hispanic, half-black individual? God, DPS will have their back seats pulled out and a drug dog pissing in their floorboard before they can even say 'I'm not in a gang or prohibited from possessing a firearm, and I'm traveling!"

Like Two Shoes In A Hurricane

2005-09-02T13:03:00.000-07:00

My appologies to Martina McBride or whatever country singer sang "Two Sparrows In A Hurricane," but I just read this wonderful story by Jaye at Winding Road in an Urban Area about Madame Secretary of State Rice shopping for shoes, and I could not resist.

I have the day off today, and slept very late before getting up to work with some video files and still pics for a case set for trial Tuesday. Although it's 34th on the trial docket, I have a bad feeling it's going to go.

In addition to being a brilliant legal assistant, I also investigate and perform "expert imaging services," which means basically enhancing video and still photos for use at trial, and all of the analysis and reports that accompany things like that.

In this particular case, I am court appointed, or, rather, the office I work for is court appointed wih the caviat that I'm doing the work. This is an agg. assault case (w/a deadly weapon), and, of course, it involves a gas station, which means a four-quad video, which means I've had to separate pertinent panels into individual videos. And, there is so much video, I really need an external hard drive to handle some of it, but I'll make do without for this case.

And, though the office has all of our own equipment, the Court recently got an ELMO system, which can be use for documents and evidence. The flier I got from the court says you can also run video through it, but I think I'll be using the projector I've always used since (1) it was so damned expensive an (2) I'm very familiar with it.

At any rate, it should be a fun Labor Day Weekend.

Are "The Police" Stupid, Or What?

2005-09-01T20:46:00.000-07:00

Today was like a Friday for those of us at the office, since we're closed in the a.m. for a long Labor Day weekend. And, of course, it was another wonderful day in the field of criminal defense.

First off, I spent most all day fielding calls from a particular client wondering if/when the DA was going to agree to a PR bond on a Motion to Revoke/Motion to Adjudicate, and if/when the judge would sign off on it. Client has some serious mental and physical problems due to circumstances unrelated to his charges, and he calls at least twice a day when nothing's going on, and dozens of times over the past week. Finally, everything was OK'd and we set up his turn-in for after the holidays.

Second, I got several calls from prospective clients which made me wonder, "What the hell is wrong with the police?" And, by police, I mean "Law Enforcement" in general.

The first call, the lady literally blurted out, "My son is charged with burglary of a habitation and he didn't do it because he was home watching TV with me and the Sheriff's office said they would drop the charges if he takes a polygraph. Should he take one?" The first thing I blurted out was "EXCUSE ME?" and then, "You're going to need a lawyer, even if your son is innocent, because this is not something you should try to work through on your own." Sadly, the whole episode was in a county our office doesn't practice in, so I referred her to a good attorney who does.

Second, a call comes in about a juvenile case. Believe it or now, the juvenile authorities in our county think that people they tell are being charged with a crime will want to come in and "discuss this matter, make a statement to an officer, and discuss terms of detention and/or supervised release."

Hello, if you're being charged, you'd be stupid to do this. Furthermore, half of the time the juvie authorities around here tend to try to do things that would constitute an improper delegation of powers; I won't even go into that, as it would take forever.

Aside from all that, I've got to be ready for a trial for another attorney next week who I am performing some expert witness services for. I analyze video, enhance photographs and all that jazz. Though the case is 34th on the trial docket, I'm sure, with my luck, it will be first by Tuesday morning. What suit to wear?

Oh, and I'm investigating a particular matter on another pending case for our office...can't go into details, obviously, but I've secured a bunch of records that show the cop likes to view porn, falsify reports/police records, and have sex with 16-year-old girls. Of course, I'm telling The Attorney all of this and his eyes are bugging out of his head. "How did you find all this out?" Well, it was pretty simple, actually...all in "public records." Of course, you have to know exactly how to ask for them and what to ask for...someting I've been doing since I was editor of my high school newspaper. Not to brag, but investigating stuff is something I'm very good at. Luckily, in our state, investigators working for attorneys don't have to have a license. In fact, I was told by the state agency regulating all this (and the lady may have been wrong) that if you are licensed, you have to work for another licensee for x-number of years and then work on your own or at an agency, b/c you can't do work for others unless you are employed by them full time.

At any rate, I guess that's all for now...

Welcome To Legal Assistance

2005-08-31T20:54:00.000-07:00

Welcome to my blog. Ok, so I'm not a lawyer, but I play one at work. Well, not really. I'm just a legal assistant for a very prominent criminal defense lawyer (well, prominent in my area), and I wanted to blog about the crazy shit that happens at work, my take on the law and maybe share tips & tricks with some less talented legal assistants. Aw, I'm charitable, how cute.

Anyway, I kind of figured "hell, if all those lawyers have blogs, why not me?" Now, for those of you lawyers out there reading this (and, I'm sure you will be), I may not be a lawyer, but if I had a law license, I could so do your job. Not being cocky, just factual. After all, I am brilliant.

Anyway, I hope to add some links to some of the legal blogs I do read, so stay tuned.