The offensive in New Braunfels against the Great Rowdy Tuber Menace marches on this week. The New Braunfels Herald-Zeitung recently reported that the City Council is on the verge of approving yet another ordinance that purports to protect public safety, but is really intended to disrupt tourism shortly before Spring Break. The ordinance would regulate the manner in which river outfitters can run shuttles for tubers. The proposal would limit shuttles only to vehicles specifically designed for commercial shuttle service and would require outfitters to carry at least one million dollars in liability insurance. This proposed ordinance comes a year after the Council restricted parking areas in the vicinity of the Comal River, which forced outfitters to scramble in order to offer expanded shuttle service to tubers — not just to get tubers to and from the rivers, but also to get tubers to and from the outfitters’ businesses and the now-distant lots at which the tubers were forced to park.

Now, no one really argues that tube shuttles shouldn’t be operated safely. However, the timing of the ordinance is designed to make it impossible for many outfitters to comply with the new regulations in time to shuttle Spring breakers. Had the regulations been suggested after the end of the last tourist season, outfitters would have had several months in which to get ready for the new rules. If the  ordinance is passed, some outfitters may face the prospect of being run out of business.

The timing, of course, is not coincidental. This is the same council that, a few weeks ago, proposed a “roommates” ordinance that would have the effect of putting many local weekend house rental companies and bed and breakfasts out of business in the name of reducing noise from tourists on weekends.

None of these ordinances are necessary. There are plenty of laws and ordinances already on the books that protect riders in shuttles and that give law enforcement the ability to maintain peace and quiet in residential neighborhoods. The real intent of theses ordinances is to destroy the tourist industry in New Braunfels. In the long love/hate relationship that New Braunfels has had with river tourism, the hate faction now has the upper hand.

Ironically, this attack on the most iconic sector of the New Braunfels economy comes at a time when this same city council announced that the city is expected to run a 3.3 million dollar budget deficit, in large part because of declining sale tax revenues. At a time when New Braunfels desperately needs tourist dollars, the council continues to cut off its proverbial nose to spite its proverbial face.

Here’s how you know that the Guadalupe River tourist season in Comal County is just around the corner: the local powers-that-be are contemplating another series of inane (insane?) ordinances to combat those “rowdy tubers.” First they took away your cooler. Then they took away your parking spot. Now they want to take away your toilet.

Many summer tourists to New Braunfels like to rent vacation houses for the weekend. Unfortunately, some of these folks vacation a little too loud for the homeowners residing nearby. But rather than simply calling the cops when the vacationers get too loud, or dealing with rental owners who allow their properties to become a nuisance, Comal County is considering flushing away the problem of loud vacation rentals by pulling the chain on their septic permits. Under one proposal being considered, homes used as vacation rentals would be required to have septic system capacity far in excess of what is usually required for a residence, even though there is absolutely no evidence that vacation rentals now have inadequate septic systems. Since expanding the size of the septic systems would be prohibitively expensive for many owners, they would no longer be able to afford to rent the houses to tourists.

Once again, instead of using statutes and ordinances that are already on the books, and that are specifically designed to solve the problem (such as the Disorderly Conduct statute, which prohibits unreasonable noise near a private residence), the County is now poised to go after perfectly innocent owners, whose rental houses aren’t causing any problems, in the name of rooting out those “rowdy tubers” at the few houses that are.

As expected, this proposal is not passing smoothly, being considered irregular by many. In fact, a spirited pissing match is expected at the next public hearing on the matter. Here’s hoping that this bad idea becomes clogged as it tries to snake its way through the system. May the toilets in Comal County continue to flow as free as the rivers.

A couple of months ago, the county court-at-law in Comal County began experimenting with something called “Driving While Intoxicated Accountability Court.” (As if they weren’t already DWI accountability courts.) The basic idea of the new court docket was well intentioned — to give someone charged with a subsequent offense DWI case an extra incentive to volunteer for intensive outpatient treatment. In practice, the incentives to participate in the program don’t outweigh the costs for many defendants.

The program is supposed to work like this: if someone is charged with a subsequent offense DWI they are given an opportunity to go into intensive outpatient treatment through the Adult Probation Department. In exchange, the person receives a few months less than the maximum amount of probation, an automatic occupational driver’s license, and a possible waiver of jail time as a condition of probation, as well as a possible reduction in fine. Sounds like a great deal, right?

Not so much. Many people simply can’t do the program. DWI probation for someone with a subsequent offense already has a lot of hoops to jump through: DWI Intervention classes, outpatient counseling, a driver’s license suspension, jail as a condition of probation, AA attendance, community service and participation at a victim impact panel. Probation through the new DWI docket, though, is like doing probation on steroids. Probationers are expected to report several times of week, which is often impossible to do if someone is trying to hold down a job. And the perks a person is supposed to get for participating in the program really aren’t that significant. The length of probation being offered in the DWI court is similar to what we being offered to defendants before the new docket was started. Probationers were previously required to apply for occupational licenses anyway. The days of jail received as a condition of probation can usually be organized around work schedules. All of the other conditions of DWI probation are still there under the new system.

The single biggest concern that a person usually has when he walks into my office charged with a subsequent offense DWI is the possibility of losing his job. Picking up a subsequent offense DWI is a major threat to someone’s job security as it is. Having to potentially miss work several times a week to report to a probation officer only makes matters worse. It’s all well and good that the courts want to offer an opportunity for more treatment for those who wish to participate in the new program, but I suspect that most defendants will choose to take their lumps under the old system and keep their jobs, instead.

Just when you thought they couldn’t get any more diabolical, I witness this at a felony Driving While Intoxicated sentencing hearing in Guadalupe County District Court:  a portable breath test being given to a Defendant in court to determine what his sentence should be.  This week I watched a defendant in the 25th District Court being sentenced for felony DWI.  But before the judge would pronounce sentence, he ordered the probation department to administer a portable breath test to the defendant in court.  In a felony DWI, when a person is going on probation, he is required to receive a certain amount of days in the county jail upfront as a condition of the probation.  The judge in this case announced that, if the test turned out negative, the court would assess 10 days jail, but if it was positive, the defendant would get 30 days.

Now it bears pointing out that, in Texas, the results of a portable breath test are not admissible against a DWI defendant to determine his guilt or innocence.  Portable breath tests are not considered scientifically reliable enough to be trusted for that purpose, and the people who give the tests are not always properly to trained to do so.  And, sure enough, when the probation officer in this case tried to give the portable breath test in court, he couldn’t get the device to work properly.  The judge finally gave up and ordered 10 days.  This raises the question, why is a local district court using something that isn’t admissible in evidence because of its unreliability in order to decide what would be a fair punishment for a given defendant?  Was the Magic-8 Ball broken?

One of the comments I got the most from people during the just-concluded year of the Great Recession,  when I mentioned that I was a criminal defense lawyer, went something along the lines of: “The economy’s bad.  The amount of crime must have shot through the roof.”  People assume that, when the economy is in the toilet, civilization instantly devolves into anarchy and crime soars.  This, however, is a myth, or at least it was in Comal and Guadalupe Counties, where the number of criminal case filings were actually down significantly over the previous year.

According to the Texas Office of Court Administration, the number of Class A and B misdemeanors and felonies filed in Comal and Guadalupe County courts combined in 2009 fell by 16.3 percent from 2008.  Case filings were down 20.5 percent in Comal County.  In Guadalupe County, case filings were down 12.2 percent.

The decline in case filings can actually be tied to the bad economy.  Remember that the the housing bubble burst in late 2007, and the ensuing recession began at the end of that same year.  It just so happens that criminal case filings in Comal County peaked in 2006 and are down 23.8 percent since then.  Guadalupe criminal case filings peaked in 2007 and are down 25.5 percent since then.  Criminal case filings are down across the board, both misdemeanors and felony filings plunging in both counties.

But why?  I don’t know for sure, but I suspect it has something to do with our love of automobiles and how we change how we use them when the economy goes sour.  The majority of cases that come through our office are somehow related to traffic stops.   A cop stops someone for a routine traffic violation, or approaches someone whose car is parked in a suspicious place, and winds up stumbling across some other offense — a DWI, illegal drugs sitting in the  console, an illegal weapon in the driver’s door pouch, etc.  When the economy is bad, people tend to hunker down and drive less.  They are then far less likely to have an unfortunate encounter with a police officer.  Bad economy = less driving.  Less driving = fewer contacts with cops.  Fewer police contacts = fewer arrests.  Fewer arrests = fewer jail-time cases filed in court.

On behalf of all criminal defense lawyers everywhere, here’s hoping for a robust economic recovery in 2010.  Let’s get out there and drive, people. The economy is depending on you.

The New Braunfels Police announced that they arrested a whopping one person on New Year’s Eve for Driving While Intoxicated as a part of a DWI “no refusal” weekend that began on December 21st. In case you haven’t heard all of the dire warnings on your local TV news, a “no refusal” weekend is where people who are arrested of DWI will not be allowed to refuse alcohol testing. If a DWI suspect refuses to take a breath test, then police obtain a warrant to draw a blood sample from the person, which can then be tested for alcohol concentration. The New Braunfels Police claim that its “no refusal” weekend policy has been a great success so far.

But this begs the question: “If no refusal weekends are such a great tool for law enforcement, then why isn’t this law enforcement technique used all of the the time?” Why just have this policy for special weekends? Why not make no refusal standard operating procedure? And is it really worth the trouble to do a no refusal policy on special holiday weekends?

Some things to consider:

1. Breath testing is far easier for law enforcement, and far less expensive, then blood testing. Doing blood testing requires law enforcement to go through the trouble of processing extra paperwork to obtain a warrant, have a judge on call 24/7 to issue a warrant, and to have qualified medical technician on hand to draw the blood. The blood sample then has to be sent off to a lab to get a result, which can take weeks. It just isn’t feasible for most jurisdictions to do this on a routine basis. A breath test, on the other hand, can simply be obtained by an on-duty cop who happens to have taken a certification class in order to run the breath test machine. No warrant, no waiting, no civilian personnel — and instant results.

2. The idea that there is a huge number of DWIs on holiday weekends is largely a myth. I think the general public assumes that an enormous number of people get arrested for DWI on holiday weekends. My experience as a criminal defense lawyer doesn’t bear this out. The vast majority of our DWI clients aren’t arrested on holidays. Instead, they’re arrested for DWI coming home from their cousin’s barbeque, after stopping at a bar after work with friends; they are arrest during normal times, during their normal lives. If anything, they are less likely to be arrested on a holiday, when they are more self-aware of their drinking, when they are more likely to be conscious of police targeting DWI and more likely to have access to designated drivers. “No refusal” weekend are good PR, but I haven’t seen anything like a peer-reviewed study that says they actually do a lot to stop DWIs from being committed.

As long as there are prosecutors and judges who run for reelection in Texas who think they can get some PR bank for the buck by publicizing “no refusal” weekends, such weekends will continue to pop up around the holidays. But don’t expect no refusal polices to become the normal way of doing things or for them to make a significant dent in overall DWI statistics.

Am I the only one who thought that the timing of the arrests was curiously and coincidentally timed to coincide with the end of the semester at TLU?

I’ve spent most of today getting ready for jury selection in a trial in Comal County Court-at-Law. We’re picking a jury in a Deadly Conduct case. This one’s interesting. Keep you posted on the twists and turns and the results.

It seems like the number of jury trial settings that we have had over the past 3-4 years has exploded. Our clients have been much more willing to set cases for jury trials in the past few years than when I started in private practice, particularly in misdemeanor cases. I’d like to think that it’s because we engender awe-inspiring confidence in our representation, but I think there’s some more practical reasons.

First, clients have grown more sophisticated. When I first started in this business, clients had very little exposure to jury trials. Most of what they knew about trials is what they saw on the evening news or read in the newspaper. Now you can watch condensed versions of criminal jury trials practically every day either on cable television or the internet. There’s also just a great deal more info available about trial procedure out there, mainly online; so much so that courts have started having problems with jurors in trials trying to do outside research on their own while hearing a case. Trials are just less mysterious now, and, as a result, less scary to clients.

Also, clients now have more at stake in misdemeanor cases than in the past. We now live in the age of the full-blown criminal background check for everything (getting a job, finding a place to live, keeping a professional license, etc.), and there are more other types of collateral consequences to a misdemeanor conviction than before (such as driver’s license suspensions or surcharges). Clients simply have more to lose by having a misdemeanor conviction than before, so they are more likely to take a case all the way to trial.

This is having a big impact on the way that criminal law is practiced at the state court misdemeanor level. Years ago, the lion’s share of continuing education for criminal lawyers, for example, focused on pretrial procedure and appellate law. Now, there’s much more of an emphasis on mastering jury selection and trial technique, not to mention the rise of burgeoning cottage industries in the area of trial consulting and expert witnesses.

Although the stakes for clients have risen in misdemeanor cases, I think the trend towards more trials is to their benefit. It forces the state to look at their cases more critically, and makes the State jump through more hoops to attempt to obtain convictions. This ultimately leads to more weak cases getting poured out before they even reach the trial stage.

November 3, 1989:  George Bush Sr. was in the White House, The Cosby Show was still atop the Nielson ratings, Janet Jackson’s “Miss You Much” was the #1 song on the Billboard charts, and hardly anyone had heard of this obscure thing used by defense researchers called the internet.  And yours truly (with a lot more hair and a very bad suit) was standing in a crowd of other people wearing not much better suits squeezed into the Frank Erwin Center in Austin, Texas being sworn in as a lawyer.  I don’t remember much more about that day, other than the chicken fried steak at Threadgill’s and getting a J.C. Penney briefcase from my beaming, choked up mother.

I don’t remember what I was expecting the next 20 years to be like.  I just had a vague notion that I wanted to make a living as a criminal trial lawyer, and I wanted to have an interesting time doing it.  Now, I have noticed that wealth tends to corrupt people and has a way of wringing the joy and fun out of work, so I am fortunate, like many others who do what I do, to have studiously avoided getting rich.  But two decades, several thousand criminal cases, and approximately 100 jury trials later, I can say that it has been interesting.  I have witnessed not only jaw dropping stupidity and cruelty in both people and institutions, but also flickers of humor and humanity even in people who have been accused of doing unspeakable things.  I have had the proverbial front-row seat at the circus.

If I died tomorrow, I could honestly and proudly say that I had kept a few people out of prison who didn’t belong there, saved more than few poor people from being needlessly buried beneath the courthouse, and helped change the way in which criminal law is practiced in my small corner of the world for the better.

I’m not supposed to be doing this, of course.  I grew up in a small town in the rural South.  I had one grandfather who was a bootlegger during Prohibition and another from the backwoods of Alabama who never graduated from school.  I’m supposed to be driving a truck or bottling beer like my dad did.  I’m supposed to be working on a farm or in a factory like the friends I went to school with.  I’m not supposed to be part of a tradition of protecting liberty that stretches back literally hundreds of years and includes people with last names like Adams and Lincoln and Darrow.

Sometimes when I’m in a jury trial, and there’s a lull in the action, I’ll look around at the courtroom and the people sitting in the jury box and think to myself: “This can’t be me.  I can’t believe I get to do this.”  I have been very lucky for the last twenty years.  Here’s hoping my luck keeps running for another twenty.

Both Comal and Guadalupe Counties recently finished a Driving While Intoxicated “no refusal weekend” a few days ago.

For the uninitiated, a “no refusal” weekend means that the government will not allow a person to refuse alcohol testing after being arrested for DWI.  Normally, when a person is arrested for DWI, he is taken to the nearest jail and offered a breath test.  The arrested person has the right to refuse the breath test, but may suffer a driver’s license suspension as a result.  But during a “no refusal” weekend, a person refusing to take a breath test is told that the police will then, instead issuing a notice of driver’s license suspension, obtain a search warrant authorizing the police to take a blood sample from the person.  The blood sample would then be shipped off to the Department of Public Safety lab for testing.  Thus, there is “no refusal” because a test will be taken one way or another.

Many people, when told they will be forced to submit to a blood test against their will, simply give up and agree to take the breath test that was first offered.  This is absolutely the wrong thing to do.  What to do, then, when faced with a test you can’t refuse?  Easy:

REFUSE TO TAKE THE BREATH TEST AND MAKE THE COPS GET A BLOOD SAMPLE INSTEAD.

Here’s why:

1.     THE COPS MAY SCREW UP THE WARRANT FOR THE BLOOD TEST.
The ways in which obtaining and executing a search warrant for blood, or anything else, can be FUBAR are too numerous to list here.  But you should certainly give the police the opportunity to find one of them.  If the search warrant for blood is no good, the breath test is inadmissible.

2.     WHEN YOU REFUSE, YOU KEEP THE CLOCK RUNNING.
The result you get on a breath or blood test is just a starting point.  What’s really important is what your blood alcohol content was at the actual time you were driving a car.  When you refuse the initial breath test, you force the cops to spend time obtaining a warrant, which lengthens the time between the driving and the test.  Without spitting out a volume’s worth of blood testing theory, simply put, the longer the time between the driving and the test, the harder it is to reliably figure out what your blood alcohol content was at the time you drove.

3.     ROUNDING UP ALL OF THE PEOPLE INVOLVED IN THE TAKING AND ANALYZING OF A BLOOD TEST IS LIKE HERDING CATS.
One of the reason the government prefers to give breath tests is that it makes it easier to round up its witnesses if there is a jury trial in the case.  The government needs to produce all of the people involved in the administering of, and analysis of, the test.  When there’s a breath test, everyone involved is a member of law enforcement.  They are, essentially, professional witnesses.  When blood testing is done, it is more likely to involve civilians along the way, such a nurse or EMT.  These people are sometimes harder to get to a trial.

4.     YOU MAY BE ABLE TO RE-TEST THE BLOOD SAMPLE
When a breath test is done, the breath sample is purged from the breath test machine and lost forever.  When a blood test is done, some of the blood sample may be left over at the end.  Your lawyer may be able to obtain the rest of the sample for independent testing.  We have done this before on a few cases, and have come up with interesting results.

5.     IF YOU ABSOLUTELY HAVE TO TAKE A TEST, BETTER ONE BASED ON REAL SCIENCE THAN JUNK SCIENCE
When was the last time you saw a breath test machine in an emergency room?  Never, and you probably never will.  That’s because breath testing has been widely criticized as being based on junk science, and no reputable health care professional would ever dream of relying upon it.  Only the government does, because its cheap, fast, and “efficient.”  It you are forced to submit to a test, might as well take one that at least has a fighting chance of being correct.

MORAL OF THE STORY:  WHEN IN DOUBT, REFUSE THE GOVERNMENT’S REQUESTS AND MAKE IT JUMP THROUGH HOOPS.