Recent Blog Posts in 2008

While I do not condone what the single mother does, other options should be available to her.  For example, the welfare fraud division has a steadfast rule that they will only offer felony deferred adjudication or a misdemeanor time served offer if the poor mother pays back the funds she was over paid, within forty days.  The welfare fraud division never considers a dismissal of the charges or a misdemeanor deferred adjudication if the money is paid back sooner.  They need to see that justice would be better served if they offered some other options.  They should have a standard policy of contacting the potential defendant to inform them that they have thirty days to pay back the money before criminal charges are filed.  If charges are filed they should give them the opportunity to get a misdemeanor deferred adjudication.  The welfare fraud division needs to see that the children are the ones being hurt by having their mother receive a conviction for theft or being on deferred adjudication for a felony.  The theft conviction would eliminate a lot of job opportunities for her.  Moreover, a felony deferred adjudication is not a conviction, but that means that for a minimum of two years she would be on probation, and must wait longer before she is eligible for a motion for non disclosure.

Everyone enjoys some type of diversion in life.  Some people like to read or play music to "get away."  The Houston Marathon is next month and I have come across various criminal lawyers at the Harris Criminal Justice Center  that  are in training for or have done a marathon. There are all types of runners at the courthouse.. Some are new at running, others are slow and some are fast, but they all like to run for that special feeling that running a long distance does for them.

While I have done several marathons in the past this year my wife and I have opted for a half marathon.  Mario Madrid, a Houston Criminal Defense Attorney, my business partner, and his wife are doing the full marathon again this year.  Mario's time was so good last year that he made the Houston Chronicle results section for the top finishers.  Fellow criminal lawyer, Tom Radosevich, recently had the best time for his age group in a local long distace race. .  John Boone, chief of the Check Fraud division, has the best Houston Marathon time that I know of at the Harris County Criminal Justice Center.  Judge Marc Carter and his family are all avid runners. Rick Trevathan can recount how he ran one of the first Houston Marathons.

If your DWI breath test case was reviewed by Deetrice Henderson Wallace, a scientist hired by Houston area police agencies, to inspect Intoxilyzer machines you may be in luck. The Texas Department of Public Safety has invalidated all breath tests she reviewed.  Thus, your case may be found to be lacking sufficient evidence for a criminal conviction. 

I am confident that the Harris County District Attorney's Office will review each case individually in order to determine if they warrant a dismissal.  The problem that I foresee is that the DA's office destroys all DWI video tapes after the case is over.  Regardless, without a DWI tape or a breath test their DWI case becomes much harder to prove.  I think they are going to find it problematic to review a DWI case when their key pieces of evidence are missing.  Therefore, you may see more DWI dismissals by the Harris County Districts Attorney's Office after this announcement.

Ms. Wallace has been charged with the state jail felony of Tampering of a Government Record.  The range of punishment for a state jail felony is from 180 days to two years.  Her case will be heard in the 182nd District Court of Harris County, Texas.  The presiding judge of that court is Jeannine Barr.  I am curious to see what the outcome of this case will be considering the damage it has done to credibility of future breath tests.

Do you remember Jerry's girlfriend that was able to persuade anyone to get what she wanted?  In fact, she was able to get out of traffic ticket by flirting with the police officer in the Seinfeld episode titled "The Calzone" despite Jerry admitting everything.  Well not even a extraordinary persuasive person like that will able able to convince Houston, Texas area police officers to write them a citation for being in possession of a misdemeanor amount of marijuana despite the law allowing them the opportunity to do just that in the appropriate situation.

Last year the law changed where an officer has the option to arrest someone or simply write the person a citation for being in possession of less than four ounces of marijuana.  In fact, Austin police officers hope to start the policy by the end of the year.

Since Houston, Harris County, Texas  has a notorious overcrowding issue in their jails you would think they would embrace this law. " Not on my watch your not" said Former Harris County District Attorney Chuck Rosenthal bluntly...he notified all the police chiefs in Harris County that if their officers want to follow the new law and issue citations, the DA's office would not accept the charges.  He flatly refused to recognize this law.  Even several months after Chuck Rosenthal's resignation from the District Attorney's office the policy has not changed in Harris County.

Here is hoping that whoever becomes the new Harris County District Attorney recognizes this law and values the good it could do for the overcrowding issues that are occuring in the Harris, County Jail.

I imagine the samebreathalyzer machine will be used in these vans.  If so, will the machine's owner release the software pertaining to how the machine works.  If a machine is going to brand someone a criminal and effect their life so much the accused deserves to know how it works.  Typically, prosecutors say that it is a trade secret of the company that makes the machine.  That poses the question what is more important, the trade secrets of a company or the constitutional right to due process, which surely includes the right to examine a machine used to determine if someone is guilty?

If you take the route of refusing to take the breath test you are not out of the woods.  The DWI van is equipped for a quick warrant to be faxed in where an on-call judge can force the involuntarily draw of blood from the accused.  Does that mean that the van will have nurses ready to draw blood?  How well will the Houston Police Department be able to preserve the evidence?  We all know how well the Houston Police Department has handled important evidence in the past.

Robert Hood, a Texas resident, was able to get arrested four times in two weeks for driving while intoxicated. Remarkably, this occurred in the states of Wyoming, South Dakota, and Nebraska.  Would this be possible in Houston, Harris County Texas?

A person with no prior DWI convictions would still be considered a first offender in Texas.  Luckily, Mr. Hood has not been convicted of DWI so he is still a first offender.  Nevertheless, most judges in Houston would have made it difficult for Mr. Hood to drive a vehicle and treat him like a repeat offender while on bond.  For instance, anyone who is arrested for DWI/DUI charge while on bond for DWI would be ordered to have a guardian interlock device installed in their vehicle.  A guardian interlock device is an in car alcohol breath screening device that prevents a vehicle from starting if it detects a blood alcohol concentration (BAC) over a pre-set limit of .02 (i.e., 20 mg of alcohol per 100 ml of blood). The device is located inside the vehicle, near the driver's seat, and is connected to the engine's ignition system.  Moreover, their bond would be set higher and higher after each arrest.  Perhaps, a judge would go as far as not granting a bond after his third or fourth arrest.  Therefore, the likelihood a Houston Harris County, Texas judge allowing this to happen is unlikely.