Arrest Does Not Equal Guilt
July 22nd a Montgomery County Judge signed the dismissals on all charges against former University of Houston player and Buffalo Bills’s current defensive tackle Ed Oliver. On or about May 16, 2020, Oliver was arrested for Driving While Intoxicated and Unlawful Carry of Weapon. Oliver complied with officers’ requests to complete the Standardized Field Sobriety Tests (SFSTs) as seen below.
Three Questions to Ask your DWI Lawyer
So, you’ve been arrested for Driving While Intoxicated (DWI) in Montgomery County. The encounter with law enforcement, the ride to the jail, the booking process – each step more embarrassing and frustrating than the first. Now, it’s time to fight the case. You need to find a lawyer, but you’ve never been in trouble before – let alone for DWI. This process should not be complicated or frustrating, but how do you know you’re in the right hands? What do you ask your DWI lawyer before hiring them? This article is meant to provide some suggestions. If you already have a lawyer though, this article is still for you. These are some questions you can ask other than, “What’s going on with my case?”
Instead of: “What’d my video show?” Ask: “What is your experience with the NHTSA manual?”
After a couple of months of being shut down, the world prepares to reopen. Texas Governor Abbott announced on April 27th his phases to begin opening the state back up. Today, under Phase 1, many businesses take down the shutters and open their doors at 25% occupancy to restless communities and anxious employees. Montgomery County though, under County Judge Mark Keough’s interpretation of the order, resumes business as usual with more expansive reopenings; this includes bars. If you’re someone who has been counting down the days and have your first day of socializing outfit picked out, be careful.
Since the Natural Disaster Declaration and Stay-At-Home Order, arrest numbers have been down throughout Texas. While the courts have been working diligently to reduce the amount of bail bonds and issue Personal Recognizance Bonds to lower jail populations in an effort to flatten the spread of the virus, law enforcement has seen a drop in incidents of Driving While Intoxicated. Montgomery County specifically, typically strives to be strident in their attacks on DWI. Montgomery County became one of the first Texas counties to participate in the No Refusal Initiative in 2005 that allows mandatory blood draws.
No Refusal Weekends traditionally have been holiday weekends, such as Memorial Day, Labor Day, Halloween, and the time starting from Thanksgiving through Christmas and ending after New Years Eve. For example from December 21, 2018 through January 1, 2019, Montgomery County law enforcement arrested approximately 146 individuals under the suspicion of Driving While Intoxicated (DWI). The time between Memorial Day Weekend and Labor Day Weekend has been dubbed the “100 Deadliest Days of Summer.” In 2019, 766 people were arrested for alcohol related offenses during these days.
Montgomery County County Judge Mark Keough extends the Disaster Declaration until May 11th. This comes after Texas Governor Greg Abbott declared a state of disaster for Texas on March 13th. These proclamations are intended to stop the spread of the coronavirus and provide national relief and benefit for the community. Specifically, in an emergency meeting in Conroe, County Judge Mark Keough said, “We want to be able to recoup all our costs.” However, there are consequences that accompany the benefit.
A disaster declaration triggers tougher punishments for crimes under Texas Penal Code § 12.50. The section, Penalty if Offense Committed in Disaster Area or Evacuated Area, tells us who can make the declaration and who it impacts. The increase in punishment is for Assault, Arson, Robbery, Burglary, Burglary of Motor Vehicle, Theft and Criminal Trespass cases. In speaking on the harsher punishment, Montgomery County District Attorney’s prosecutor Kelly Blackburn has said, “The enhancement (of punishment) is just a better tool in our tool belt to use to try to effectively prosecute people that are taking advantage of this situation.” The last time we saw a similar disaster declaration in Texas was during Hurricane Harvey.
Court dates in Montgomery County have largely been rescheduled or cancelled due to the Coronavirus. Judges are adapting by using video conferencing applications such as Zoom to address issues related to bond and to take pleas, but downtown Conroe, despite its sizable essential employee status, is a ghost town. This comes as no surprise as Montgomery County Judge Mark Keough extends his stay-at-home order and families cancel birthdays, showers, family reunions, and vacations and replace their party hats with their teacher hats as schools cancel as well. What hasn’t been cancelled though, is Montgomery County probation. Drug testing through Averhealth too has not been cancelled.
Why does that matter? Approximately 60% of criminal cases result in some sort of community supervision. In 2018, the Prison Policy Initiative counted 4.5 million adults per year in the United States on community supervision. About half of the population in county jails are individuals who have violated the conditions of their release. That’s approximately 350,000 people each year who are jailed for revocations. You’re likely to see a spike in that number as people become more desperate from layoffs, isolation, and pressure from dealing with the consequences of COVID-19 rises. Montgomery County District Attorney’s Office has already reported a 35% spike in assault calls.
An opinion out of the Texas Court of Criminal Appeals this week entitled, State of Texas v. Roger Anthony Martinez, discussed probable cause and the offense of public intoxication. So, what is Public Intoxication? In Texas, public intoxication is defined as “a person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another. The Texas Penal Code goes on to state, “for the purposes of this section, a premises licensed or permitted under the Alcoholic Beverage Code is a public place. In addition, “it is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person’s professional medical treatment by a licensed physician. Just to let you know, public intoxication is a Class C misdemeanor offense in Texas. The punishment for a Class C offense in Texas is by a fine that is not to exceed $500. Therefore, a place with a permit under the Texas Alcoholic Beverage Code is just what you think it is, a bar. If you are in or around a bar and are intoxicated and may endanger yourself or others you are deemed to have violated the Texas offense of Public Intoxication. As far as the substance being prescribed by a doctor for therapeutic purposes stipulation, you can go ahead and interpret that one on your own. How long has it been since a doctor prescribed alcohol as a viable medical treatment? If this has happened to you please contact me as I would like an appointment with your doctor.
The Martinezcase first discussed the burden of the State in a Motion to Suppress. For those of you that don’t know, if you are arrested you have been seized. When this happens, your lawyer must prove to the court that your arrest happened without a warrant. If no warrant was issued, then the burden shifts to the State which must prove the reasonableness of the search or seizure. In Texas under the Code of Criminal Procedure, “a peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.” So, if a cop sees you break the law with his own eyes, you are toast.
So, what is the big deal here? Apparently, the arresting officer for whatever reason did not testify at the trial. The trial court in this case reasoned the statute above stating that the offense was committed in the officer’s presence or view applied only to the officer who actually made the arrest. As you know that officer was a no show in this matter. Therefore, the motion to suppress was granted.
Law enforcement was out in full force the last two days due to the holidays. Numerous DWI and car and truck accidents happened in Conroe and the Woodlands. Excessive drinking this time of year is common. Unfortunately, so are driving while intoxicated cases and wrecks where people are injured. Here in Montgomery County we have a no refusal policy that has been in effect since Thanksgiving. If you are pulled over for suspected drinking and driving, you will be tested even if you refuse. Upon a refusal to give a blood or breath sample, your case will trigger the officer to apply for a warrant from an on-call judge to order you to give a sample. Although many lawyers tell you “don’t blow,” I think this advice is often foolish. If you have no criminal history and are below a .25 then you may qualify for a pretrial diversion program that will allow you to get your case dismissed with year of probation. If you decide to refuse the test, then you will not qualify for a pretrial diversion.
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A new case out this week from the Texas Court of Criminal Appeals.
Ritcherson v. State
In a murder case the issue was whether the defendant was entitled to a lesser included offense of manslaughter. Lesser included jury charge issues are always interesting because there are so few appellate issues that can actually gain any traction these days and this happens to be one of them. The case stems from an argument that started in a nightclub between several people that was broken up and later resumed in the parking lot after the club closed. In the parking lot one of the partied stabbed the other in the chest. The man later died from his injuries. The initial charge was aggravated assault with a deadly weapon which was later enhanced to murder after the man passed away from his injuries. The case was tried twice after the first case ended in a mistrial. In the jury charge conference, the defendant requested a lesser included charge of manslaughter and negligent homicide. The court denied the requests. The jury convicted the defendant and sentenced her to twenty-five years in the Texas Department of Criminal Justice Institutional Division. The court of appeals affirmed the conviction by reasoning that the jury could not have found the defendant guilty of only manslaughter.
Weed in your Carmex? Why not, because weed makes everything better, right? At least until you’re arrested. According to advocates, marijuana has many medicinal benefits such as pain relief in addition to anti-inflammatory properties that could prove to be beneficial in the treatment of certain skin disorders such as acne or eczema. Are we going to see a huge surge in cosmetics containing weed such as Mary Kay Baked? Maybe. The market is already seeing the introduction of many lip-balm like products containing THC or marijuana.
The big question is, does it get you high? In a word, yes. But how does that happen if THC cannot be absorbed through the skin? Well, you have to lick your lips over and over. Doesn’t that negate what you are using the cannabis Chapstick for anyway? Probably. Sure, you are going to look silly repeatedly licking your lips, but what do you care, you are high.
Is there a pleasant smell associated like medicated Chapstick? Nope, it smells like weed. Therefore, you are probably not going to want to apply this in the office or classroom. Incidentally, parties where people kiss after applying the marijuana infused lip-balm is what all the cool kids are doing now.
Ah, this brings me back to the days of the Phototron. Who doesn’t remember this icon located in the advertisements at the back of nearly every magazine back in the day? Billed as the only all in one self-contained hydroponic grow box. The picture always showed either kitchen herbs or some type of house plant inside the box. As if anyone would grow anything in this box but marijuana. The Phototron was to “pay for itself harvest after harvest.” As I recall, this thing had a hefty price tag. Somewhere in the neighborhood of around $500. That’s a lot of basil one would have to grow in order to make up for the cost of a Phototron.
The “Phototron”
The Stack!t advertises as a way to dry all your “garden herbs” at once in this giant drying rack. At over six feet tall, one could put a lot of herb in this thing. Although, I would advise against this little number. Decades ago, I went over to a friend’s house and discovered a small-scale marijuana grow operation. The smell of weed upon walking in the door was overpowering. Just what you want when the police show up trying to chase off a burglar. Thankfully, this friend later went through a divorce and subsequently got rid of all of his marijuana grow operation. That little project was a felony waiting to happen. I have personally witnessed small hobbies like this turn into a major problem for clients. In Lubbock, it was always rumored that law enforcement had a plane that could detect infrared heat signatures. As everyone knows, these devices do exist. If you have a grow operation in your house, the heat signature is going to light up your house like a Christmas tree. Remember THC and marijuana are still illegal in Texas. If you get caught with a grow operation, it is going to result in a hefty charge. In a raid, I have seen law enforcement pull up the plant and weigh the whole thing; roots, dirt, and all which tends to be heavy. The higher the weight the higher the penalty.
Conroe Criminal Lawyer Blog
