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.

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.

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.

Got a call from someone trying to get an expunction of criminal records recently, and got a question that is becoming more common, and for which there isn’t a clear answer:  ”Can you get a criminal record of a case expunged if you were never actually arrested for the offense?”

This issue is becoming more important because of the way in which the expunction statute is worded and the way that criminal background checks are now conducted.  Chapter 55 of the Texas Code of Criminal Procedure provides that, in some instances, you can get an expunction of records associated with a custodial or noncustodial arrest (I’ve been waiting twenty years to witness a “noncustodial” arrest.).  But let’s say you are charged with misdemeanor Theft by Check and, instead of arresting you, the court simply issues you a summons to appear?  The case, which the court posts on its local county website (a very common practice these days), is later dismissed.  Years later, you apply for a job, have a background check done, and the company performing the check finds the record of the case through the public access website.  Obviously, you don’t want this to pop up the next time you apply for a job.  But since you were never arrested, how do get your records expunged?  After all, the expunction statute only provides for erasing records associated with actual arrests.

Unfortunately, there is no clear answer.  Back when the expunction statute was written, the Legislature really didn’t anticipate how criminal background checks would be performed in the age of the internet.  It was simply assumed that the only records that anyone would find (other than law enforcement) would be records tied to actual arrests.  This just isn’t how it works in the real world anymore.

So what do you do?  File for the expunction anyway.  Many prosecutors’ offices won’t object and many judges won’t care as long as you otherwise qualify for an expunction.  The worst that can happen is that the court can say “No.”  Given what an expunction is worth in terms of finding a job, it’s worth taking a shot.  In the meantime, let’s hope the Legislature gets around to dragging the expunction statute into the 21st Century.

A prospective client asked me today whether or not I accept court-appointed criminal cases and was relieved to find that I don’t.  This is a question I get at least once a month. People facing the prospect of going through the criminal justice system are suspicious of court appointed lawyers and are surprised and disconcerted to find out that so many lawyers accept criminal cases on a court-appointed basis. I think that they are right to feel uneasy.

In case you don’t know, here’s how the court-appointed system works, or is supposed to work, in criminal cases in both Comal and Guadalupe Counties:

First, a person shows up to court and tells a judge or court coordinator that he can’t afford to hire a lawyer.  It’s not automatic that he gets a lawyer.  He’s then usually required to fill out some paperwork describing his financial situation in order to see if he “qualifies” to have a lawyer appointed (why the courts think anyone would ask to have a lawyer appointed when he could afford to hire his own is beyond me).  By the way, don’t ask me what the financial guidelines are for qualifying for a court-appointed lawyer.  There is no set formula under Texas law.  I have asked judges and court coordinators what the official cut-off is, and have never gotten a straight answer.  And I have repeatedly seen people on Social Security disability denied the appointment of an attorney.

But let’s say the person qualifies.  The court then selects a name of an attorney from a list of attorneys that have told the court that they will accept court appointed criminal cases.  In theory, the attorney is supposed to be whoever is next on the list.  Often, the attorney is just whoever happens to be handy.  Lawyers who hang around courthouse waiting to get appointments are sometimes referred to as “courthouse vultures.”  The defendant has no say in who is appointed to him; it’s the luck of the draw.  The attorney appointed may be the second coming of Johnny Cochran, or he may be Elmer Fudd.  If the defendant does not like his attorney, it is rare that a court will allow him to fire the attorney and replace him with another court-appointed attorney.

The attorney then goes to work on the case.  Typically, in most courts, a court-appointed attorney will not be paid fees until the case is finished.  Thus, the attorney has a strong incentive to finish the case as quickly as possible.  Needless to say, it is rarely in the best interest of the defendant for the case to go as quickly as possible.  The other questionable feature of the court-appointed system is that the lawyer gets paid by the same court that may wind up punishing his client.  Keep in mind that judges reserve the right to kick lawyers off of the court-appointed list if the lawyer displeases them.  Again, there is more of an incentive to please the court by moving cases quickly through the system than there is to look after the best interests of the client.

Finally, it should be noted that the court-appointed lawyer is not “free.”  If a person is convicted or placed on probation, he is required to reimburse the court for the fees it gave to the attorney.

As I said, it doesn’t surprise me at all that defendants think that this system is rigged against them.  The most curious thing I have seen over the years is the number of indignant lawyers (always court-appointed) who have approached me asking why I refuse to participate in the system.  The answer is easy:  it’s an unjust, dysfunctional system, and I’m not a codependent enabler.

Do I think indigent defendants deserve representation?  Of course.  I also believe that, if the State of Texas cared about defendants’ rights, it would join most of the rest of the civilized world and create a state-wide system of public defenders offices staffed by lawyers who specialized in criminal defense.  Why won’t Texas do this?  For the same reason it let’s child abuse go on relatively unchecked, doesn’t provide adequate care for the mentally ill, and maintains one of the worst performing school systems in the country.  The present system is cheap.  Doing things right would cost money.  And the State doesn’t care enough to spend money.

And that’s why I don’t accept court-appointed criminal cases.

In a bad economy, a criminal history sets off alarm bells and sirens in a job interview.  Have any doubts?  Check out CNN’s website today for their list entitled “43 Weird Things.”  The list is a compendium of horror stories from corporate human resource directors about the strange things that people have volunteered about themselves during job interviews.  A common thread throughout the list is people trying to explain away their criminal records — such as the person who stated “I didn’t steal it; I borrowed it” and the one who told a job interviewer:  “I’m not wanted in this state.”  As I’ve said many times in this blog, if you don’t want to become a war story that a personnel director tells to his colleagues, you might want to expunge or seal that criminal record before you walk into the job interview.  To avoid making the CNN website, check out of website for further information on Texas expunctions and orders of nondisclosure.

USA Today published a survey of boaters this morning which showed that the most popular holiday for boating on lakes is the Fourth of July.  If you getting in your boat and heading out onto Canyon Lake, Lake Dunlap, Lake Placid or Lake McQueeney this Fourth of July Weekend, here’s a few things to remember in order to stay out of court (or worse):

1.  BOATING WHILE INTOXICATED IN TEXAS IS A SERIOUS OFFENSE:  In Texas, it’s illegal to operate any type of watercraft in public place while intoxicated due to the consumption of alcohol, drugs (prescription or otherwise), controlled substance, or any combo.  First offense Boating While Intoxicated is a Class B misdemeanor and carries the same range of punishment as a first offense Driving While Intoxicated charge — a fine of up to $2,000.00, nywhere from 72 hours up to 180 days in county jail, and/or up to 2 years of supervised probation.

2.  YOU CAN BE ARRESTED FOR BOATING WHILE INTOXICATED WHILE OPERATING A JET SKI:  Our Boating While Intoxicated statute in Texas provides that you can get a BWI while operating any kind of a “watercraft” while intoxicated.  “Watercraft” is broadly defined as any type of a vessel that is not designed to be propelled by the current of the water.  If you take the definition of watercraft to it’s logical extreme, it’s possible, in theory, to get arrested for BWI in a rowboat.  Needless to say, if it’s got a motor, and it floats, it qualifies as a watercraft.  We have represented more than one client who was arrested for BWI while jet-skiing.

3.  BOATING WHILE INTOXICATED CAN COST YOU YOUR DRIVER’S LICENSE TO DRIVE A CAR.  Under our implied consent statute — the one where law enforcement offers you a breath test after you get arrested for DWI and then seizes your driver’s license when you either fail or refuse  — BWI is also covered.  So in other words, if you refuse to take, or fail a breath test, after getting arrested for boating while intoxicated, you can lose your license to drive a car.

4.  BOATING CHECKPOINTS ARE LEGAL IN TEXAS — COPS DON’T NEED REASONABLE SUSPICION OR PROBABLE CAUSE TO STOP YOUR BOAT ON THE WATER:  As I’ve mentioned several times before on this blog, random law enforcement checkpoints to detain and search people are generally illegal in Texas.  There is at least one huge exception, however.  The Texas Legislature has made it legal for law enforcement to stop watercraft on the water in order to inspect safety equipment.  If you are stopped for a safety inspection, and the cop happens to notice that strong odor of alcohol on your breath or the tipsy look in your eyes, then you could wind up in trouble for more than not have life preservers onboard.

5.  “BUZZING” ISN’T JUST RUDE, IT’S ILLEGAL:  It’s illegal to operate a watercraft in a circular path around a swimmer or fisherman, as well as to operate a watercraft in an area marked off exclusively for swimmers or fishermen.  In addition, it’s also against law to create a wake behind your watercraft that endangers others on the water.

6.  KNOW THE SPECIAL RULES FOR THE LAKE ON WHICH YOU ARE BOATING:  Many people don’t realize that Canyon Lake is administered by the U.S. Army Corp of Engineers, which can adopt its own regulations for the areas it supervises.  Before getting on the water, make sure you know any special rules that apply to the body of
water on which you are boating.

7.  BONUS RULE:  That lake is like a frying pan.  Use a sunscreen with an SPF of 50 or above.  Happy boating.

If you are going through the criminal justice system, you should learn some of the lingo. Some words and phrases for the day:

CATCH A CHAIN: Getting transported to prison.

PAPER READY: A defendant’s felony case is completed, and he is ready to be transported to prison.

GETTING PSYCHED: For most of the world, getting excited, enthused, or mentally prepared. In the criminal justice system, submitting to a psychological evaluation to
determine if you are mentally competent to stand trial.

TWO BRAIN CELLS SHY OF A COMPETENCY HEARING: Crazy. Okay, this one’s not common, but I heard it recently and liked it.

ROCKET DOCKET: In some counties, a regularly-scheduled court docket on which a court tries to cram an unusually large number of cases through the system in a
single day. In other counties, a case calendar that make cases go from zero to jury trial setting in under sixty seconds.

RESET: Normal people reschedule. Criminal lawyers reset.

WARRANT ROUND-UP. The Sheriff and County Attorney are up for reelection, so it’s time to arrest a few truckloads full of people on ten year old Class C misdemeanors.