DRUG DWIs: YES YOU CAN GET A DWI IF YOU ARE HIGH ON DRUGS

Appearing on TV following a big WIN

DWI: DRUGS

Driving While Intoxicated is one of the most prosecuted crimes in the State of Texas.  Most people think that you can only be charged with DWI if you have been drinking alcohol.  Well, those people are wrong.  You can actually be charged with DWI if you are intoxicated on literally any substance, including, marijuana, ecstasy, mushrooms, mescaline, Adderall, cocaine, LSD, meth, amphetamines, caffeine, tree bark (yes, tree bark a.k.a. DMT), Molly, MDMA, ephedrine, mescaline, Ritalin, acid, and many, many more.

But wait, how can I be arrested for DWI if I don’t have a blood alcohol content (BAC) of .08 or higher?  A person can be convicted of DWI if he has a BAC of over .08, he has experienced the normal loss or his mental faculties, or he has experienced the normal loss of his physical facilities. 

At the moment, most officers do not have the knowledge, experience, and skill to determine whether someone is intoxicated on a drug, which is why if the police determine something has you intoxicated and they have ruled out alcohol, but they cannot determine exactly what messed you up, you will be arrested and taken to jail to meet with a drug recognition “expert,” or “DREs,” and have your blood drawn.  The good news is that these drug recognition “experts” are not really experts.  They went to a two week class, and believe they are qualified to be doctors.  At best, drug recognition “experts” are drug recognition “evaluators,” “eye witnesses,” “estimators,” and paper pushers.  These people are not doctors, and if I have anything to do with it, the judge will not allow the DREs to be called experts at your trial.

Think about this.  What happens when people smoke marijuana?  They are cautious.  Many actually become safer drivers.  What happens people take Adderall, or other “study drugs?”  The get focus of a puma and reaction speeds of a cheetah.  Science has even showed that the use of amphetamines improves driving abilities.

At the end of the day, DWI’s are serious business that can seriously affect your life.  You need a Texas Drug DWI Trial Lawyer that focuses his practice on drug crimes and drug DWIs. Trust me, the cost of hiring the wrong DWI drug lawyer will way outweigh the cost of hiring the right DWI drug lawyer. 

Stay tuned for more to follow.

Your Right To Remain Silent - A Guest Blog Post By Austin-Georgetown Attorney Terrance Marsh

What does the Right to Remain Silent really mean?

How many times have you heard someone say "I'm going to plead the Fifth." If you've heard that before, they're referring to our U.S. Constitution and the Bill of Rights. The Bill of Rights is the first 10 Amendments to our U.S. Constitution. These rights protect us from the government (police are part of the government). Our right to remain silent is written in the Fifth Amendment to the U.S. Constitution. There are many rights packed into the 5th Amendment. Here are the exact words:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a 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 offence 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.

- 5th Amendment to the U.S. Constitution

Why is the right to remain silent important?

The part referring to the right to remain silent is in bold, and underlined above. The right to remain silent is so important because it protects you from being forced to say things, write things, or confessing when being questioned by police. It is a shield between you and the government (police are part of the government)!

Being compelled in a criminal case as a witness against yourself is the fancy way of saying that the government can't force you to testify against yourself or self incriminate. Being forced to testify against yourself pretty much explains itself. If you are charged with a crime, the government or the prosecutor can't force you to testify.

Over time the Courts have said that our Fifth Amendment right to remain silent includes contact and questioning with police. Police are allowed to go up to you and talk to you on the street, or in your car. However, you don't have to answer the questions police ask you other than identify yourself. Your right to remain silent includes all police questioning - including confessions. Never confess to anything and especially don't put anything in writing when the police question you. I'm a big fan of examples so let's use an example.

Police Questioning and The Right to Remain Silent

A few months ago I had a client named John who was arrested because police suspected him of dealing drugs. Police picked John up with a Warrant of Arrest at his home and brought him to the station for questioning. Police read him is Miranda Warnings. If you've ever seen an episode of Cops or Law and Order you've heard this a millions times:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

The moment the police went to John's house, knocked on the door, and began asking John questions other than his name, his 5th Amendment right to remain silent had kicked in. Why?

John's right to remain silent kicked in because the police asked John questions after he identified himself. John could have told police "I don't want to talk to you or answer any questions" and that would have been perfectly legal. As a matter of fact, that's exactly what I would have advised John to do if I was sitting next to him. The police are allowed to ask as many questions as they'd like and as many as you'll keep answering. Luckily, John didn't answer very many of the questions police asked. More importantly, the police didn't question John further or try to get a confession out of him. John kept his mouth shut, and because of that his felony drug charge was dropped  down to a misdemeanor.

Summary

The true meaning of the right to remain silent is for people to be free from government (police) questioning. Never answer questions from police unless the question is to identify yourself. Miranda Warnings are given to you by police so that you are aware it's your right not to speak with police. Knowing the meaning of the right to remain silent can help protect you from past or future criminal charges that police investigate. Always follow the law.

But just remember, don't make the cops' job easier than it has to be and if nothing else, don't do their jobs for them. Remember the meaning of our right to remain silent.

HUMAN TRAFFICKING PROSTITUTION CASE DISMISSED

Ya'll ready for some flim-flam, poppycock, malarkey hogwash?  Get this...

My client is a pretty, young Hispanic lady who enjoys having sex for money, allegedly.  She is working at a 'cantina' one night, racking up notches on her belt, allegedly, when two brutes walk in the door in their finest boots (okay this part is made up, although this is a real thing).

The two gentlemen offer to buy my client a cerveza.  They then try to get her to agree to have sex with them for money.  Little does my client know that these men are clandestine operatives of the police force, and on this particular night, the FBI, Harris County Sheriff, HPD, ICE, and several other 'law enforcement' organizations are about to execute a big human trafficking bust.  In layman's terms, the two guys were VICE cops.  Cops that live in the underworld with their head above water. 

Yeah.  Right.

These cops and the prosecutors that work for them want you and I to believe that they don't drink the beer they buy, and instead empty the bottles in the urinal.  The weird thing is that I never hear the bottles being emptied.

So let's jump to the chase.  My client ends up getting busted along with several other girls and alleged pimps.  She is charged with prostitution and her case is assigned to the human trafficking division. They are a group that, at best, gives tough love in exchange for favorable testimony.

The Harris County District Attorney Office Human Trafficking Division is also that group that runs SAFE (Survivors Acquiring Freedom and Empowerment) Court, which is a pretrial intervention court program for girls with prostitution charges that  are between the ages of 17-25, arrested in Harris County, and charged with prostitution, for starters.   The Harris County Human Trafficking Division knows next to nothing about their own program.  They are rude and lazy.

I told the ADA from the get-go that my client is not a victim of human trafficking, she was not forced to have sex, and she was not forced to have sex for money.  The human trafficking game involves lots of disbelief.  The ADA does not believe my client.  I try to not believe my client at first.  I want her to be consistent.  I become convinced.  The ADA still does not believe. 

Let's talk about what going to court looks like.  My client shows up on time for her docket (her docket time, not mine).  She then waits.  I show up, and we wait.  We wait and wait and wait.  What are we waiting on?  We are waiting on the human trafficking prosecutor.  Where is she?  She tells me she is running from court to court.  Of course, I frequently see her having conversations with her girlfriends in the hallway.

This going on for hours every month.  Not only that, but the ADAs are kicking my client back to the home court prosecutor and then back to the human trafficking division.

Finally, FINALLY, after 6 months they finally get my client into an evaluation to see if she will be accepted into SAFE Court.  My client shows up and does what she is supposed to do.

At the next setting, the ADA shows up THREE HOURS LATE.  In the interim, I let her know that I am waiting.  She tells me she is on her way.  An hourish later I email her to let her know I am still waiting, and it's incredibly rude to me and my client to make us wait all this time every single month.

She shows up sits down and makes a giant shitshow.  She tells me my client didn't show up to her meeting, which she did.

Next month the ADA shows up and says my client wasn't approved for the SAFE Court program, and she was.

The next month, the ADA drops off a dismissal form and leaves without saying anything.

I am pretty sure she dismissed the case because she wanted to save her ass after I made a stink and the coordinator and probation were backing me up.

I guess we will never know.  Case Dismissed.

Possession of Marijuana Jury Selection in Texas

Houston, we have a problem.

The problem is that tons of people are arrested annually in Texas for the crime of Possession of Marijuana, but very few people are choosing to go to trial.

Making a TV appearance after winning a Motion to Suppress and Not Guilty in a Possession of Marijuana Case

There are many reasons why one might not take a Possession of Marijuana case to trial:

1. Defendant just doesn't care about his future life and job prospects.
2. Defendant was offered Pre-Trial Diversion, is actually guilty, will admit to being guilty, will apologize, and will successfully complete a probation program.
3. Defendant was offered First Chance Program in Harris County and will do the above.
4. Defendant is afraid of a conviction or doing time.

There are also many reasons why one might take a Possession of Marijuana case to trial:

1. Defendant is innocent.
2. Defendant is not guilty (there is a difference).
3. Prosecutor cannot prove the case beyond all reasonable doubt.
4. Defendant was illegally searched and seized.
5. Defendant thinks jury will 'nullify' based on the charge.

These are just a few reasons why a person might take or not take their case to trial.  I am of the personal opinion that just about every Possession of Marijuana case needs to be set for trial.  If we set all these case for trial, we will break the system and there will be few charges for Possession of Marijuana.

So, let's say you decide to take your weed case to trial.  Great.  What happens next?  Well, first you will decide whether you want to go to the judge or to the jury for punishment.   This is your decision, but I will help you make it.  What determines you punishment 'election' is basically the judges reputation and the facts of your case.  I will almost always recommend going with the jury for punishment in the event you are elected.

Next, we will do jury selection, or voir dire.  Prosecutors love to get up and teach the jury a lesson in French and philosophy about how 'voir dire' means 'to tell the truth' in French, and that jury selection is really 'deselection.'  Before the DA gets to talk to the jury, the judge will, and the judge will tell the jury panel (the venire) all about himself, his court, and some basic Constitutional rights, such as the presumption of innocence, your right to not testify, the burden of proof, and the useless 'one witness rule.'

Next, the prosecutor will do his or her best to ask questions and get answers.  The problem is that they are more like middle school algebra teachers than people with personality, generally.

Next it is my turn to ask the jury questions.  I always like to start by letting the jury panel know a little about myself, because we get to know so much about them.  I think the jury finds it welcoming that I am a human too, with good and bad things going on in my life.  It really makes them comfortable about sharing more personal feelings and opinions.  

This Slide Makes the Jury All Warm and Fuzzy and Talkative

It's worth noting, that many criminal defense attorneys do not use PowerPoints for their jury selection.  I use them because (a) that's how people learn best and (b) it helps keep me on track without using notes.

I immediately tell them why WE are at court.  ALWAYS ALWAYS ALWAYS the jury was dragged into court by the government because you and I disagree with the government's allegation that you possessed a usable quantity of marijuana on a given day in a given location.

I will then tell the jury why THEY are in court.  The jury is in court to decide the truth.  There is no arguing with these two points.

From there, we may do an example or ask a question to get the jurors talking.  We want to get them thinking about situations where everybody else was doing something, but they chose not to do it, for example.  Or maybe about a time where they were near someone who was in possession of something, but they were not in possession of that same property.

Once we get the brain juices flowing, we talk about your constitutional rights as a defendant.  The goal here is to find jurors to challenge for cause.  In any criminal trial, the court, prosecution, and defendant are able to strike any number of jurors if they are unable able to follow the law and give the defendant (and somehow the state) a fair and impartial trial.  In other words, they are biased and can't overcome their bias.  I am usually able to identify a few jurors that the judge or DA didn't identify who cannot give my client a fair trial.

Next, we break down the law that applies.  So, for a Possession of Marijuana case, I want the jurors to explain to each other what it means to knowingly or intentionally do something.  I want the jurors to explore what it means to exercise possession, which means care, custody, control, or management over an object.  

Throughout jury selection, I am also using my proposed jury charge to get ideas of how the jury might rule on specific jury charges such as destruction of evidence, 38.23 motions to suppress, and so on.

Finally, after making our challenges for cause, I sit down with you and my co-counsel (which you will usually get free of charge)  and determine who we want to strike.  In a misdemeanor case, both sides can 'strike' or get rid of 3 jurors for any reason or no reason at all.  Well, actually, the State cannot strike a juror for race or gender based reasons.  I will talk about challenges to this conduct (Batson Challenges) in a future blog post.  

In my last three juries, I got the exact jury I wanted.  I also got the exact result I wanted.

Until next time, 

Take Your Case To Trial

POSSESSION OF MARIJUANA NOT GUILTY... SORT OF... CASE DISMISSED MID-TRIAL

This is a week late, at least.

Where to start...

Maybe I should start off by saying, thank you. 

 Thank you to the Harris County District Attorney and minions for not dismissing a case that never should have been charged in the first place.

Thank you. Harris County Court 14 and Judge Fields for hauling my client to court for 11 trial settings.

Thank you to the court for finally allowing me to try my case on the one year anniversary of my client's wrongful arrest.

Thank you to my client for sticking with me, even though she was incredibly frustrated and could not understand why I could get the case dismissed. 

Thank you to Judge Fields for following the law and granting my motion to suppress.

For those of you that have read some of my prior posts, this is my possession of marijauna case involving an overzealous cop and his failure to follow the HPD bodycam policy.

Let's recap:  My client was sitting in the driver seat of a parked car at a park in Acres Homes. Her friend was sitting in the passenger seat.  Both doors were wide open.  The cops, which a Juror referred to as "Officer Handlebars" due to his ridiculous stylish mustache, were conducting a "park check."  In other words, they were out to do warrantless searches that frequently violate the Fourth Amendment. Park searches are a treasure trove of constitutional violations, and I wish lawyers did more to challenge them.  Needless to say, if you have been arrested for drugs or weapons in a public park, CALL ME.

So the cops allegedly see a pile of loose tobacco outside the passenger door.  The cops then park their cop car right in front of the car my client was in, and boxing her in.  The cops then see the codefendant reach towards the center console and place something there.  The cops then exit the car and when they get right up next to the car they smell the week.  One cop puts my client in handcuffs while she is still sitting in the car.  The cop then forces her to stand against his front bumper in the searing July heat.  The cops then search the car and find a joint in the codefendant's side of the ashtray leaning towards the codefendant (the joint they saw the codefendant place).  They then claim to have found a second joint in plain view.  Well, the bodycam (which the police did not want me to have) showed that the second blunt was deep inside the codefendant's side of the center console.  The cop then searches my client's purse, without PC, and finds nothing linking her to the marijuana. The cop then searches the seat where my client was sitting and finds nothing linking her to the marijuana.  Finally, the cop searches the trunk.  Funny thing is that he says in the offense report that he could smell weed form outside the vehicle, but his body camera reflects otherwise.  The body camera shows the cop opening the trunk and then saying "smells like weed in here" 15 seconds later, and then saying "oh fuck yeah" when he finds the weed.  The cop then asks my client whose car it is and she says it is the codefendants.  The cop then turns off his body camera every time he talks to my client, including when she denied it was hers, and the turns it on when he talks to the obviously and admittedly high codefendant to get him to rat on my client.  Didn't work.

Nine months later we have a out first trial setting.  Two trial settings later, I finally get the body camera footage. Thank the good lord for that.

At the 10th trial setting, my client was told she did not have to show up unless we were called to trial.  Of course, we were called for trial, weather was horrible and she showed up 2 hours later, not one hour as she told the judge she would.  Lo and behold, we were given the best looking, most diverse, youngest jury panel in the history of Harris County.  It was so defense friendly, the judge wanted to take a picture with them.  OF course, though, because my client was late (DONT BE LATE), the jury was sent home.

We finally went to trial, picked a jury, got the jury we wanted, gave my opening then the cop got on the stand and I filed my motion to suppress.  Judge Fields disagreed with why all of the marijuana should be suppressed (I was right), but he suppressed all of the weed anyways under affirmative links (not permissible at a motion to suppress, but ok).  All that matters is that I got the not guilty.  Also, being on TV was pretty cool. Make sure to check back and read the next few posts that will go more in depth about my jury selection method and the Houston Police Department Body Worn Camera Policy (PS I'm the first in the county to have it).