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.

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.

September is the month that a new law goes into effect concerning the use of deferred adjudication probation as a reason for denying, uspending or revoking someone’s professional license.  Unfortunately, the text of the new statute spills a lot of ink without really changing very much.

One of the main concerns our clients have is how a deferred adjudication on their records may affect their ability to obtain, and keep, a professional license.  Many of the laws that govern whether or not someone is eligible to have a professional license in Texas permit a licensing agency to deny a professional license to someone if they receive deferred adjudication for certain types of offenses.  House Bill 2808 from the last legislative session seeks, at first blush, to change all of this.  The new law states that a licensing authority may not consider a successfully completed deferred adjudication for the purposes of granting or yanking a license.

However, the exceptions in the new law are so broad that it’s hard to see how anything changes.  The statute specifically allows state agencies to consider a deferred adjudication the same as a conviction for licensing purposes if the employment being regulated involves law enforcement, public health, education, safety services or financial services.

I don’t know about other defense lawyers, but the only clients I get coming to me on a regular basis worrying about how a deferred adjudication will affect their professional licenses ARE people working in law enforcement, public health, education, safety and financial services.  What’s left?
Maybe now you can clear that last hurdle to get your cosmetology certificate.  Other than that, you’re still screwed.  Thanks Texas Lege.  Thanks for nothing.

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.

Who knew that printing a new firm brochure would be such an adventure?  We just put out a new firm brochure for the first time in a few years.  We were really proud of it:  it’s colorful, glossy — a real classy, eye-catching deal.  And then we got the call from California.

It seems a lawyer from California was arrested on the Guadalupe River in New Braunfels this weekend for, of all things, violation of the city boom box ordinance.  But that’s not what was interesting about the call.  We have two toll free numbers — one for our New Braunfels office, one for Seguin. One of the numbers he saw on the brochure when he was dialing was the toll free number for Seguin.  Turns out what he got, instead of us, was an adult phone sex line offering conversations with very interesting ladies.

Now, mind you, this brochure was proofed repeatedly by four people, has been out for about three weeks, has been sent to hundreds of people, and was reviewed for compliance by the Advertising Review Committee of the State Bar of Texas.  But not until now did anyone bother to mention that anything was out of the ordinary.  The attorney helpfully pointed out that this might not be the image for which we were striving.

For the record, our correct toll free number for Seguin is 1-866-387-2722.

The most interesting part about this incident:  since the new brochure went out, our business in Seguin has increased approximately 50 percent compared to July of last year.  Haven’t heard if business is up for the phone sex line.  If so, talk about synergy.