Recent Blog Posts in May 2009

The Harris County District Attorney's Office is considering a progressive approach to the way that first time DWI offenders are prosecuted.  The plan being considered is to grant a pretrial diversion to those charged with their first DWI.  The program would spare the person from having a conviction for the rest of their lives if they successfully complete the program. 

As a lawyer that routinely sees the effects of a DWI conviction I applaud this approach by the District Attorney's office.  Most of the people that we assist with a DWI arrest are first time offenders.  As I have stated on this blog the consequences of a  DWI conviction can seriously impact a person's life.  This new policy will help countless people in Harris County.

This decision by the  Harris County District Attorney, Pat Lykos, is a departure from her earlier proposals that seemed to be politically motivated.  Conversely, I suspect this approach will cause M.A.D.D, and other DWI zealots to adamantly oppose this approach that has proven to be effective in other jurisdictions.  The zealots will direct the public to the numbers of DWI fatalities in Texas, but will not admit that the methods that are currently being used to prosecute DWI cases are not working.  Thus, a fresh approach is to be commended.

I have discussed steroid use in baseball a lot with my friends.  It has been an issue with us for most of this decade if not earlier.  Today, the current saga involving Alex Rodriguez,, Miguel Tejada, Roger Clemens, Barry Bonds, and Mark McGwire should be a lesson to those that are considering  talking to the Government without consulting with an attorney beforehand.  If you notice the ones that did not to speak to Congress or asserted their 5th Amendment privilege like Mark McGwire are not facing criminal charges.  Similarly, Alex Rodriguez told Katie Couric he never used steroid.  Of course, today we know the truth about Rodriguez, but he is not facing criminal charges.  On the other hand, Miguel Tejada has been convicted of misleading Congress.  Ironically, Tejada was not convicted for lying about his own steroid use, but for not disclosing a teammate's use. The same prosecutors that got Tejada are pursuing perjury charges against Roger Clemens.   In the case of Barry Bonds one of the numerous charges against him is that he told a grand jury that he had not been injected by anyone other then his doctors not that he has never used steroids.

What has happened to these famous, wealthy, and iconic players should serve as an example to anyone that is considering talking to the Government.  Despite all their fame and millions of dollars they did not escape the tentacles of the Government .  Thus, consult a criminal attorney before you make the same mistake.

Also, a lot of courts in Houston will restrict your travel outside of  Harris County while on bond even for a simple DWI charge. 

Since I have been a Houston DWI lawyer DWI checkpoints have been outlawed in Texas.  That could be changing if a proposed bill becomes law.  These checkpoints allow the police to stop anyone without having probable cause to check for the possibility that the driver is operating a motor vehicle while intoxicated.  The proposed bill is unclear.  For instance, what will be the system in place for stopping  the vehicles, where will the checkpoints be located, and will the checkpoints be publicized like the bill suggests?  Also, surprisingly, the police will not be asking for proof of insurance or a driver's license when they make the stops.

While the United States Supreme Court has found the checkpoints to be constitutional many states have found them to be unconstitutional. Even if the bill passes I am confident that it will be heavily litigated in Texas.

If you have any questions regarding your DWI arrest please call our law firm at (713) 225-1038 or (800) 724-1876 for a free consultation.

As a Houston Criminal Defense Attorney I must admit that I was shocked when I heard a rumor regarding the Harris County District Attorney's Office implementing a new policy whereby prosecutors would not offer probation to an accused unless the accused swore to be residing legally in the United States.  One of my close friends, that is a prosecutor himself, confirmed not only that this is fact, but there will be a document that a defendant will need to swear to before a plea agreement is finalized. 

This new policy wrong on several levels.  It seems to be politically motivated.  Pat Lykos, the District Attorney of Harris County, was elected to uphold the law of the state of Texas.  The policy may seduce the most steadfast of conservative Republicans in Houston and beyond, but it is misplaced and a subtle form of racism.  It is very easy for people to say "He is an illegal get him out of our country."   However, the law states that anyone that is in this country is presumed to be here legally.  Also, every person in this country  has a 5th amendment privilege regardless of their status.   On one hand, by requiring anyone that is undocumented to swear that they are here legally before receiving probation the District Attorney's Office is encouraging them to commit perjury.  On the other hand, if the defendant tells the truth the consequences are twofold.   They will not get the probation and they have given the Government evidence to prove that they are committing a Federal Offense.  What competent criminal defense attorney would advise their client to do anything other than to remain silent?  Thus, the District Attorney's office is punishing a defendant for exercising their right to remain silent and that is a clear constitutional violation. 

Below is a copy of the 5th Amendment.  Perhaps, the Lykos administration should give it a read if they have done so in a while. 

No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

With this new policy the Harris County District Attorney's Office is disregarding Texas law.  For example, the law in Texas clearly states that low level felony drug possession for first time offenders is a mandatory probation.  The law does not differentiate between those that are here legally and those that are undocumented.  The Lykos administration is essentially stating that they will not follow Texas law.  Correct me if I am wrong, but the last time I checked our District Attorney was elected to follow the laws of Texas.

More practically speaking, what defense attorney that has a client on bond that is undocumented will enter into any type of plea bargaining when they know that a prosecutor's hands are tied when it comes to getting probation for their client.  A competent criminal defense attorney knows that a jury is not precluded from granting an undocumented person probation.  Additionally, any potential juror that can not consider granting probation for someone that is undocumented should be exposed during voir dire and kept from serving on the jury.

My hope is that Harris District Attorney's Office reconsiders this policy and decides that despite being a hit politically legally it is without merit.

As a Houston DWI Attorney I dislike having to break it to people all the costs that are associated with a DWI. Most people know the consequences of a DWI conviction.  There is jail, fines, and the revocation of driving privileges.  The costs of a DWI conviction can range from losing your freedom, to losing your hard earned money, to the very right to travel outside the United States of America.

Texas legislators have found that someone convicted of DWI is an easy target.   For example, in Texas there are mandatory conditions for a DWI conviction.  Two examples include, DWI School as well as a Victim Impact Panel. The Victim Impact Panel is a humbling meeting for the accused, made up of Mothers Against Drunk Drivers members who convey harrowing stories of DWI victims.  In other instances the Ignition Interlock Device is required and community service will also be involved.

There are many costs associated with a DWI.  There are attorney fees, fines, court fees, mandatory surcharges imposed by DPS, potential civil suits, electronic home monitoring, time lost from work, programs and community service, license reinstatement fees, Interlock device, alcohol treatment, insurance premium rates rising, towing and storage fees. A conservative estimate would easily put the costs in the neighborhood of $10,000.

There are other consequences of a DWI conviction which involve more than money. Many automobile rental agencies will refuse your business. If you are convicted, you may not be able to obtain life insurance at any price. Likewise, many health insurance companies will charge you an extra premium, or deny you coverage. A  conviction may restrict you from traveling to some countries. Most countries only exclude you for a felony, but some, like Canada, treat all criminal convictions, including DWI as a basis for exclusion from the country.

If you have any questions regarding a DWI please contact our law firm.  We offer free consultations.

The simple answer is probably not. Most people believe that a case may be thrown out of court if the police officer does not provide them with their "Miranda warnings" when they are arrested. I am confident that this belief comes from the abundance of television programs that show the Miranda warnings given whenever someone is being arrested.

A Miranda warning is necessary if the police officer interrogates someone and wants to use  their responses as evidence. If the police officer fails to give you a Miranda warning, nothing you say in response to the questioning can be used as evidence to convict you.  Additionally, under the "fruit of the poisonous tree" rule, if the police officer finds evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial.  For example, if you tell the police officer where a weapon is hidden and it turns out that you gave this information in response to improper questioning, the police officer will not be able to use the weapon as evidence unless the officer can prove that they would have found the weapon without your statements.

It looks like the Harris County, Texas District Attorney's Office went full force in the enforcement of the First Marathon Memorial "No Refusal" Weekend . The program netted over 200 DWI arrests in Harris County alone.  I wonder how this compares to a normal holiday weekend?

Warren Diepraam, a former Harris County Prosecutor, who now works for the Montgomery County District Attorney's Office, also initiated the same type of program with and added the arrests of boating while intoxicated on Lake Conroe.  I anticipate that the citizens of Montgomery Country are in for a dramatic change in the way a DWI is going to be prosecuted in the future with Warren leading the charge.

As a DWI Attorney I get to witness how each court treats people accussed of DWI.  The courts of  Harris County, Texas are always attempting to monitor a person's alcohol consumption when charged with a DWI. There are several reasons the court attempts this, mostly it is because as a condition of probation a person is not allowed to consume alcohol. Another is because a person has been previously convicted of an alcohol related driving offense and now there on bond in their court. The ways the court has tried to do this include:
 

• bordering for urine analysis,
• random alcohol screenings,
• installing breath reading equipment in your home or vehicle (interlock), and
• ordering the SCRAM Device

The SCRAM (a Secure Continuous Remote Alcohol Monitor) allows the court to monitor your alcohol intake continuously.

When the SCRAM device is ordered by the court, a person will be fitted with a tamper-resistant ankle bracelet made up of two boxes. One box will conduct the tests that will compute your BAC (blood alcohol content). The second box stores the calculations and transmits the data. The SCRAM device is designed to test your BAC level every hour. If the device detects any alcohol in your system, the test repeats every thirty minutes.
 

There are many different reasons the court orders a SCRAM to be installed. The reasons include being convicted of alcohol related offenses in the past; a person states that do not have a vehicle to install the guardian interlock, or a judge that finds it to be the best way to monitor an individual.
 

The SCRAM device is expensive.  You will have to pay a refundable $100 deposit, a $75 fitting fee, and a weekly fee while you are wearing the device . Most importantly, the fees must be paid in full before the device is installed and fitted.

Texas law requires a county like the size of Harris is required to videotape anyone that is arrested for DWI.  Most agencies usually leave their tape with the District's Office within the week of the arrest.  Commonly, DPS takes much longer to drop off the tape.  In my practice I have waited over a month to see a video made by DPS. 

Lately, I have had cases where the arresting officer does not drop off a video tape.  When that happens the prosecutor has to make a decision whether to dismiss the DWI case or proceed to trial knowing that I will get an instruction for the jury letting them know that the police officer was required to make a video tape of the field sobriety tests.  Luckily, I have come across reasonable prosecutors that have dismissed the DWI case when the video tape can not be found.  I wonder if there is a reason this is happening and will it continue?

The Houston Chronicle is reporting that the Houston Police Department is asking for over a million dollars from City Council so that another group of scientists, from Dallas, may review the work from the Houston DNA lab.   

In my opinion, the HPD lab should outsource all of their work if they do not believe that their current staff can handle the work that is required of them.  I doubt the citizens of Harris County are ready to pay for someone from Dallas to not only review the work of the Houston lab, but also bear the expense of traveling from Dallas to Houston if the case goes to trial.  Also, what type of working relationship will the Harris County District Attorney's office have with this Dallas lab?  How available will this Dallas lab be to the Harris County Criminal defense bar for review?  It seems to me that more questions need answering before the HPD lab is back on its feet and the citizens of Harris County are able to trust their work.

Another common question that a criminal lawyer in Houston gets asked is... I got probation a while ago and I want to know how can I get this off my record.   First, it must be determined what type of probation you received. There are two types of probation in Texas. "Regular Probation" is a conviction and can not be "cleared" from your record. Second, some deferred adjudications may be "cleared" from your record. The instrument used to "clear" a deferred adjudication from your record is called a Motion for Non Disclosure. Some deferred adjudications may be "cleared" immediately after sucessful completion. Others may take as long as five years and some are never eligible for a Motion for Non Disclosure. Please keep in mind that most government agencies will still be able to see that deferred.

There a lot of attorneys that tell their clients that a deferred adjudication is not a conviction. This is correct, but anyone with access to public records will find your deferred adjudication until you have your Motion for Non Disclosure granted by a court. Therefore, if possible get your Motion for Non Disclosure filed as soon as possible, if you are eligible.

A question that I get asked routinely as a Houston Criminal Lawyer: "There is a warrant out for my arrest...I do not want to go to jail."  "What should I do?"  This is a situation everyone would like to avoid. There are several proactive steps one can take when this occurs. The first thing I would do is contact a bonding company so that I could do what is called a "non arrest bond." If you contact a bonding company and they do not know what that is move on because they probably can not help you. I would hate to pay anyone to be their first case.

A "non arrest bond" is straight forward. This type of bond allows you to avoid any jail time while waiting for someone to bond you out if you get arrested. If you talk to anyone that has spent as little as a few hours in jail they will tell you do not want to be waiting in jail for someone to bond you out. Thus, the non arrest bond allows you to skip the booking process. The bonding company will take your information and  give you a court date to appear with your attorney. If you do this you will be one of the lucky people that will not be hassled by the police and potentially giving them information that you would later regret.

The Courts of Harris County have their a bond schedule for each case.

As Memorial Day approaches I know a lot of Houston Criminal Lawyers; be it prosecutors or defense attorneys that are looking forward to wearing their seersucker suits this summer. Typically, the seersucker suit is worn from Memorial Day through Labor Day, but may be worn throughout the year in our hot climate.  This type of suit is perfect for our oppressive heat since it is made in cotton instead of wool, like traditional suits.  A seersucker epitomizes the Southern Attorney. Remember Gregory Peck in the film "To Kill a Mockingbird?"   

If you have not worn a seersucker suit before you should give it a try.  Where it on a Friday when most of the men wear them so you feel most comfortable and will not stand out as much.  You will even find a sprinkle of woman wearing theirs as well on a Friday.  To accessorize remember to wear buck shoes, preferably white.  The bowtie or hat is optional.  I bet you will forget you are wearing a suit because it is so light, comfortable and easy to wear.

A theft/shoplifting case like a criminal mischief case is determined by the amount that is alleged to have been stolen.  If the dollar amount is less than $50 then it is a class "c" misdemeanor.  A person can not go to jail for these type of cases.  In fact, the punishment is only a fine.  Once it is over $50  it becomes a class 'B" misdemeanor.  A person can go to jail for up to 180 days and/or receive a fine up to $2,000 for this level of offense.  If the amount alleged is over $500 but less than $1,500 it becomes a class "A" misdemeanor and the punishment increases up to one year in the county jail or a fine up to $4,000.  A theft/shoplifting becomes a felony one of two ways.  It could become a felony if the person has been convicted twice before of theft.  Please keep in mind that a deferred adjudication is not a conviction.  Next, it could become a felony if the amount is over $1,500.  If the amount is over $1,500 but under $20,000 it is a state jail felony.  The range of punishment for this offense is not less then 180 days and no more then 2 years and a fine up to $10,000.  If the amount is over $20,000 but under $100,000 it becomes a third degree felony where the range of punishment if from 2 to 10 years in the Texas Department of Corrections and a fine up to $10,000.  If the amount is over $100,000, but under $200,000 you are facing a second degree felony where the range of punishment if from 2 to 20 years in the Texas Department of Corrections and a fine up to $10,000.  Finally, when the amount is over $200,000 a person is facing a first degree felony where the punishment is from 5 years to 99 years or life in the Texas Department of Corrections and a fine up to $10,000.

Thus, it is expremely important that you have a Houston theft attorney on your side.  A simple shoplifting case can impact your future. 

A Texas Department of Public Safety audit has revealed that the breath tests from eight Houston area police departments have been comprised because the test machines were not properly tested by the certified supervisor.  The machines in question are the breathalyzers that are used to determine if someone is legally intoxicated.

How is the Harris County District Attorney's Office going to handle this tricky situation.  Will current cases be dismissed?  Will there be any retrials of old cases?  I imagine that the prosecutors will have to evaluate each case like there is no breath test.  The likelihood is that you will see more breath test cases going to trial.  Thus, a misdemeanor prosecutor's job just  got harder.

DPS officials said they suspended the supervisor's certification, and the Texas Rangers launched a criminal investigation.

"These are serious allegations and we will not tolerate any activities that call into question the integrity of the breath test system," said Col. Stan Clark, interim DPS director.

If DPS was truly concerned with the integrity of the breath test system they would release the machine's software to the defense bar so it could be independently tested.  Until this happens the machine will never have any credibility.

Lastly, will we be seeing criminal charges against the supervisor?  It seems clear that he may be charged with falsifying government records, a felony.  Stay tuned.

As a Houston DWI Attorney I help those charged with DWI . I have helped all types of people.  Despite the different backgrounds of my clients they have several things in common.  Mainly, they say the can not believe a DWI happened to them.  For many, a DWI charge is the first time they have been arrested for a crime.  Also, they never intended to drive while intoxicated.  Not surprisingly, the law the does not require that a person intend on driving while intoxicated like most other crimes.

If you have been arrested with for DWI/DUI keep several things in mind.  After getting some needed rest read the forms the police officer gave you.  At the bottom of the main form you will find the contact information to save your drivers license.  You have 15 days to schedule a hearing to save your license.  You should do this before even talking to an attorney.  Next, speak to several attorneys on the phone and schedule as many office interviews as you can.  Most DWI attorneys like myself will offer a free consultation.  Choose your DWI attorney based on your instincts.  Decide if you and the attorney are a good fit.  Do they answer all your questions?  How easier will it be to get a hold of them?  What type of experience do they have with DWI/DUI cases?

Many people are embarrassed about being arrested for DWI/DUI, but  keep in mind that it truly can happen to anyone even a judge that routinely handles criminal cases.