Scaled Questions

Adding scaled questions during jury selection can help eliminate a bad juror from the venire better than traditional questions alone. In a few minutes you can sample every juror’s attitudes on a challenge for cause and do it discretely and accurately. A scaled question asks the panel to rank on a scale of 1 to 7 their answers to specific statements. The statements test the panel member’s attitudes toward authoritarianism which is an accurate predictor of that juror’s potential for convicting.

While framing the statements as challenges for cause will help you make your strikes, cause statements do not always produce answers that help eliminate authoritarian veniremen. Authoritarians may for instance strongly agree with a defendant’s right to remain silent and respond favorably out of a sense of patriotism, nationalism, or conflict avoidance. Their attitudes are nonetheless sclerotic and these veniremen remain prone to convict. Cause questions are good because they are relevant to a legitimate area of inquiry on voir dire. Nuanced questions will reveal a potential juror’s true authoritarian attitudes more accurately.

Continuous Family Violence - Third Degree Felony

It appears that our office is the first to receive a case involving the new Continuous Family Violence statute under Texas Penal Code § 25.11. This statute makes it a Third Degree Felony for anyone to engage in conduct that constitutes an Assault two or more times against a Family Member during a period that is 12 months or less in duration. The family member need not be the same in each occurrence.

This statute is ripe for attack. Since the Penal Code already allows for enhancement to a Third Degree Felony based on a prior Family Violence conviction, this new statute allows for enhancement based on prior unadjudicated conduct. The first line of attack is to scrutinize the prior conduct. The prior conduct may not legally meet the elements for an "Assault" under the Penal Code. Threats alone don't count. Neither would accidental injuries. Where cases are being assigned to the District Court, an attack on the court's jurisdiction to hear the case might be appropriate. The prior conduct that is alleged to constitute an Assault would be an element of the state's case. At trial, the state would need to prove two Assaults beyond a reasonable doubt. With the possibility of multiple complainants, the state's difficulties are compounded.

We have certainly seen the case where a client is placed on deferred prosecution for a misdemeanor family violence assault only to be charged with a subsequent family violence assault within a 12 month period. The state should not be allowed to automatically enhance a subsequent assault by using the earlier assault as prior conduct. The earlier assault may have been deferred for lack of probable cause or witness problems. There may have been a strong self-defense claim or an assertion of police misconduct. We would litigate any attempt by the state to use a prior Assault that had been disposed of through a deferred prosecution agreement.

The same is true about Protective Orders which allege prior Family violence. Many of the allegations used to support a protective order are untested assertions. Even in a contested hearing, a protective order's findings are made based on a lower standard of proof than that required in a criminal case.

We would also challenge the lack of notice in the indictment for failing to specify the particular conduct and the dates this conduct is alleged to have occurred. While under the statute the jury need not be unanimous as to the "specific conduct" or the "exact date" when that prior conduct occurred, the defendant should be allowed reasonable notice to defend his case.

As a final note, the language of this statute seems to borrow heavily from the Continuous Sexual Abuse statute that the legislature passed in the last legislative session. Not all of this borrowed language seems to fit or necessarily make sense.

DWI Offenses

DRIVING WHILE INTOXICATED WITH A CHILD PASSENGER
The penalty for Driving While Intoxicated is increased to a state jail felony if the driver has a passenger in the vehicle younger than 15 years of age.

BOATING UNDER THE INFLUENCE BY A MINOR
It is now a crime for a minor to operate a watercraft while having any detectable amount of alcohol in the minor’s system.

DWI BREATH AND BLOOD TESTS

Law enforcement is allowed to collect a blood specimen from a driver in any DWI when the driver refuses to submit to a breath or blood alcohol test and the officer obtains a search warrant from a judge to take blood. The police also have the authority to take blood without a warrant if you are arrested for DWI, you refuse to voluntarily take a breath or blood test, you caused an accident, and any individual died or suffered serious bodily injury.

Senate Bill 338 expands that authority by allowing the police to forcibly take blood without a warrant when a person other than the driver suffers bodily injury (which includes just a complaint of pain) as a direct result of an accident and the injured person has been transported to a hospital or medical facility for medical treatment.
Law Enforcement shall also forcibly take blood in a DWI without a search warrant if:

• There is a child under the age of 15 in the car;
• The driver has a prior conviction for DWI with a child passenger;
• The driver has a prior conviction for Intoxication Assault or Intoxication Manslaughter; or
• The driver has two or more prior convictions for DWI, Flying While Intoxicated, Boating While Intoxicated, or Operating an Amusement Ride While Intoxicated.

The new law also requires the Police to obtain a sample of your blood on any felony DWI or Boating While Intoxicated arrest.
Note: Throughout Texas the police have instituted what they call “No Refusal Weekends.” During these weekends, if a driver refuses a breath test, the police will obtain a warrant to take blood without consent. This applies even to first time DWI drivers.

KNOW YOUR RIGHTS: If the police take your breath or blood, the law allows you to request to have a physician or nurse take an additional specimen of your blood for later testing. Make sure the request is made on video or in writing and do not sign anything unless your request and the time it was made is recorded. The police are supposed to allow you a reasonable opportunity to contact such individual for the independent test.

No Cell Phone Use in School Zone

It is now a Class C misdemeanor to use a wireless communication device within a “school crossing zone” unless the vehicle is stopped or the wireless communication device is used with a hands-free device. The bill also prohibits a school bus operator from using a wireless communication device under any circumstance unless the vehicle is stopped.
“School crossing zone” means a reduced-speed zone designated on a street by a local authority to facilitate safe crossing of the street by children going to or leaving a public or private elementary or secondary school during the time the reduced speed limit applies.

Child Safety Seats

When traveling in a passenger vehicle, the law used to be that children younger than 5 and less than 36 inches in height had to be in a in a car seat. The law has been amended to require car seats for any child younger than 8, unless the child is taller than four feet, nine inches. Violation of this law will cause the driver to be fined not more than $25 for the first offense and not more than $250 for a second or subsequent offense
“Child passenger safety seat system” means an infant or child passenger restraint system that meets the federal standards for crash-tested restraint systems as set by the National Highway Traffic Safety Administration.

Deferrals for Veterans

We will have to keep an eye on this one: Senate Bill 1940 provides the commissioners court the authority to establish a veterans deferred prosecution program whereby if a veteran successfully completes a veterans court program, the court shall dismiss the case.

Seal Your Deferred Adjudication

Under the right circumstances, after you complete your deferred adjudication probation you can ask the court for an order of non-disclosure. The order allows you to legally deny the occurrence of the arrest and prosecution. The arrest records are sealed and you need not disclose your arrest record to prospective employers, landlords, or anyone else that may ask about the arrest record.
You can request the non-disclosure order immediately after discharging from most misdemeanor deferred adjudications. On felony offenses, the order can be requested 5 years after discharge. You are not eligible if you have a conviction for any other offenses after the discharge of the case.
Many job applications and licensing applications ask whether or not you have been convicted of a crime. The Legislature just passed House Bill 2808 which prohibits a licensing authority from considering a person to have been convicted of an offense if the person successfully completed deferred adjudication. However, this provision does not apply if the person is an applicant for or the holder of a license that authorizes the person to provide law enforcement or public heath, education, or safety services.

Expunctions

Governor Rick Perry vetoed a law that would have eliminated the waiting period to seek an expunction. An expunction legally allows you to deny ever having been arrested. An order of expunction requires all state agencies to remove and destroy any record of the arrest. Among other things, a criminal arrest record can cause employment problems, an inability to find a place to live, and make getting a loan more difficult.

An expunction gives you the legal right to deny the arrest on job applications, legal documents, and even swear under oath that you have never been arrested. Getting and keeping a job these days is challenging. Going to a job interview with an arrest on your record can make you feel nervous. You can do something about all that by seeking an expunction of your dismissed criminal cases.

Here is some good news: The new law waives the expunction fees for acquittals. If you were found Not Guilty of a felony or misdemeanor there is no filing fee as long as you file your petition within 30 days.

New Texas DWI Laws

Results from the 77th Legislative Session


SUSPENSION PERIODS INCREASE FOR DRIVING WHILE INTOXICATED CONVICTIONS -- OFFENDERS WHO REPEAT WITHIN FIVE YEARS:

If you are convicted of a second or subsequent DWI within 5 years of your last conviction, you will face stiffer penalties and more serious driver's license suspensions. If you commit a second or subsequent DWI or intoxication manslaughter within five years of your most recent DWI, your driver's license will be suspended for one year. Additionally, if your driver's license is suspended for a second or subsequent intoxication assault committed within five years of your most recent intoxication assault, the suspension continues for a period of one year.

- You will serve a minimum of 5 days in jail as a condition of probation. You will be ineligible for an occupational driver's license for one year. You will be required to have an ignition interlock device installed in any car you operate for one year after your license is no longer suspended.

SUSPENSION PERIODS INCREASE FOR DWI ARRESTS:

FAILING THE BREATH TEST (21 YEARS OF AGE AND OLDER)

If you are asked to perform a DWI breath test and you fail the breath test, your driver's license will be suspended for 90 days. The suspension increases to 1 year if you have had a previous alcohol-related or drug related enforcement contact within 10 years of the date of your arrest. A breath test failure in Texas means you have a Blood Alcohol Concentration of 0.08 or higher.

REFUSING THE BREATH TEST (21 YEARS OF AGE AND OLDER

If you refuse to take the breath test, your driver's license will be automatically suspended for 6 months. The suspension increases to 2 years if you have had a previous alcohol-related or drug related enforcement contact within 10 years of the date of your arrest.

The police are now authorized to confiscate your driver's license at the time of a DWI arrest for refusal to take, or failure of, a breath test. The officer will issue you a temporary driver's permit that expires on the 41st day after the date of issuance. The fee for reinstating your driver's license after suspension has gone up to $125.00.

FAILURE TO SURRENDER YOUR DRIVERS LICENSE IS A CRIME:

It is a Class B misdemeanor if you fail or refuse to surrender your driver's license after law enforcement personnel have demanded it.

Please Read:

USE GOOD SENSE WHEN YOU DRINK. EACH YEAR PEOPLE DIE AND ARE SERIOUSLY INJURED BECAUSE OF DRUNK DRIVERS. ASK SOMEONE ELSE TO DRIVE WHEN YOU HAVE BEEN DRINKING. TAKE A TAXI CAB HOME. REMEMBER, DWI IS EXPENSIVE TO DEFEND. KNOW YOUR RIGHTS. YOU HAVE THE RIGHT TO REFUSE ALL TESTS AND QUESTIONING BY THE POLICE. YOU HAVE THE RIGHT TO BE REPRESENTED BY A LAWYER. IF YOU HAVE NOT BEEN CONVICTED OF A DWI IN THE PAST FIVE YEARS, YOU ARE ELIGIBLE FOR AN OCCUPATIONAL DRIVER'S LICENSE IF YOU REFUSE THE BREATH TEST.

DWI Facts

LAW ON DWI / TEXAS DWI LAW FACTS & INFORMATION
DRUNK DRIVING IS VERY SERIOUS!

Evaluating A Texas Drunk Driving DWI Case and the Deciding Factors.

The law states that in most Texas DWI cases, there are 3 pieces of evidence open to one interpretation of the law, include breath test/chemical tests ( were the regulations followed? What is the validity due to lack of regulations).

Police Reports:

The police report is only the officer's interpretation.

Were you properly read your Miranda warnings?

Did the police officer stop you for a valid reason?

Were any statements made by you coerced, taken out of context, or misinterpreted?

Important:

The Intoxilyzer 5000 assumes that everyone has the same blood breath partition ratio, hematocrit ratio and assumes that all samples are at an air temperature of 93.2 F. Texas DWI Law does not utilize any methods which would allow for a retest of samples given. The computer software is proprietary and is not available to scientific peer review. There are many things which have been shown to affect a breath test score. These machines are generally not available for inspections by anyone outside of law enforcement. Texas does not allow for non-law enforcement or government personnel to become certified as breath test technical operators. Much of the Texas breath program remains limited to outsiders despite a generally assumed belief that these machines have undergone and passed wide general scientific review.

Field Sobriety Tests:

Police make arrests on the basis of probable cause. This is not the same thing as "beyond reasonable doubt." It is not a police officer's job to determine if someone is guilty. Many police offers choose to arrest on the basis of caution.

There is much technical training for a police officer in the field of Texas DWI Law. There is no law in Texas which states they must keep up their training on a yearly or any other type of basis with respect to standardized field sobriety training. Many police officers do not make any form of notes on the side of the road with respect to numerous details. Most police officers do not include mitigating or exculpatory information in their reports, mainly negative observations.

Where there distractions during the testing? Were you nervous or tired during the testing?

If there was a video taping of the event, does it accurately depict your true state of sobriety at the time, or was it unfairly effected by perhaps traffic, poor lighting, noise, or lack of sound.

What is your true balance and coordination?

Do you have any physical disabilities that can cause false results?

By retaining an attorney today, you will be aware of your rights! Police reports, breath test results, and video tape will be reviewed in an effort to uncover possible defenses that you may not be aware of.