Austin Criminal Law Journal : Austin Criminal Defense Lawyer & Attorney : Dax Garvin : Texas, Travis County, Georgetown, Round Rock, Cedar Park

On Monday of this week, I had lunch with a friend and colleague of mine, who's name I shall not mention due to the nature of his work in the Texas Legislature, who responded to my disdain for Senate Bill 261 with the statement, "But is it Good Public Policy?"

I was stunned that he would say this and not simply agree that the proposed changes to DWI laws in Texas and to the eroding of civil rights as set out by both the federal and Texas constitutions were in jeopardy when such legislation is introduced.  The reason that this was surprising to me is that until he recently acquired a position in the Legislature as one of the Member's assistants (title unclear), this guy was a criminal defense attorney.  He worked to get people out of jail.  He did what he could to keep them from going back to jail... and, he was very successful at his craft.

This person is now working in a job that he enjoys and experiencing a view of the law that he's always wanted to pursue and until recently just did not have the opportunity.  And for that, I applaud my friend.  But, to have him turn his back on a statement that almost, if not all criminal defense attorneys would agree with regarding Senate Bill 261 and its progeny, was like a slap to the face. Had my friend and colleague betrayed me? Had he really switched sides (as I was accused when I left law enforcement to open my own law office)?  Of course he had not "betrayed" anyone, but it made me think, so....

I laughed it off and pondered the point for a few days before drafting this article--successfully managing not to say something that I would later regret.  And, I do not think that he intended to be derisive or to offend anyone at the table.  Honestly, I believe that he may not have known the extent that Senate Bill 261 strips people of their constitutional rights, so we discussed it briefly, and then the subject changed, without further ado.  However, I will not jump to the conclusion that the conversation was Much Ado about Nothing, to quote a little Shakespeare, as it inspired me to write this entry and again bring Senate Bill 261 to light.

My first post on Senate Bill 261 which labeled it as Frightening expounds on the issues I have with this piece of proposed legislation.  And, to spare my readers from repetition, I am merely going to provide the link to the article for your review.

So, is the question really "But is it Good Public Policy" in the Legislature or is it more about what lobbys control which votes and who can pay the most? Now I sound like a complete conspiracy theorist to make such an accusation, but is it really that far off point? There's a lot of good public policy out there that never makes it out of  committee because of the cost associated with a program's implementation, which, one could argue makes it bad public policy because of the financial drain it may have on the State's resources... but does cost alone make something "bad public policy?"

To summarize, I suppose that the question my friend raised would not have nagged me as much had I thought he was serious and sincere in the question, "But is it Good Public Policy?" Instead, when he raised the question, he laughed, smiled really big and then the conversation went on. And no, he was not just "teasing me" about it because others at the table asked him about it and he replied in the same manner.

When I goaded him a little bit and we discussed it, the subject just changed.  I fully respect if someone really believes that something is "good public policy" and stands behind it, just as I am arguing that Senate Bill 261 is a really bad idea, but if someone is just arguing that it is a public policy issue simply because that is the job he's taken on for the moment, then I am less appreciative because those sorts of changes in the law have lasting consequences and affect every person in Texas.

Thus, urge your Senator and State Representative to vote NO on Senate Bill 261, preventing it from ever seeing the light of day.

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Finally! The country is beginning to wake-up (at least in Massachusetts) and realize that possession of small amounts of marijuana is no worse than possession or use of alcohol, if that bad!  In Massachusetts, the voters by a 65% to 35% margin passed a change to state law that only makes possession of marijuana a civil penalty with a $100.00 fine.  There is no longer a criminal penalty, threat of jail, or threat to future job prospects attached to possession, if it is a small amount.  Read the complete article here.

Under the marijuana decriminalization law, offenders who are caught with an ounce or less of marijuana get a ticket for a civil violation, but are not criminally charged. Juveniles have to pay the $100 fine and attend a drug abuse counseling course, or the fine will be increased to $1,000.

Further, it seems that law enforcement in Massachusetts is having difficulty with this change, not because they are wanting to arrest these small-time users / possessors, but because they do not have a way to force a person to identify themselves and they do not have a citation with the proper "checkbox" on it for this civil violation.

While the latter part of this sounds ludicrous to me (write it into the other box or ignore it), it also amazes me that Massachusetts does not have a law similar to that in Texas for Failing to Identify Oneself to a Police Officer:

Sec. 38.02. Failure to Identify.

 

(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

 

(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:

 

(1) lawfully arrested the person;

 

(2) lawfully detained the person; or

 

(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense....

But, I am far from believing that Texas legislators will ever wake-up and pass a similar law.  However, officers could stop wasting resources and making arrests for nominal amounts of pot, weed, maryjane, 420, or any other name you want to call the pretty green plant.  I will remain hopeful that one day this will change, but for now, I realize we, as Texas residents, will still have to be careful of how we possess our pot and where we keep it, if you choose to do that... and no, I'm not recommending that anyone break the law!

However, as a parting thought, the picture below is one that I find entertaining but also quite true. I hope you enjoy this as much as I did.

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On October 19, 2008, the Austin American Statesman reported on changes governing when officers arrest someone by taking them to jail and when they release the alleged offenders by citation.  These changes are soon to be implemented by the Austin Police Department according to its Chief, Art Acevedo.

The offenses that qualify for the optional release by citation are as follows:

• Graffiti < $500.00 in damages
• Theft < $500.00
• Criminal Mischief < $500.00
• Possession of Marijuana < 2 oz
• Driving while License Invalid (select offenses).

Most of us understand what the criminal offenses are and realize that there is not a high risk to the public's safety involved in any one of these offenses.  I believe that is part of the logic behind doing a "cite and release" procedure on these offenses.  Further, it would not result in a change in the manner with which these cases are resolved or the penalties that the arrestee faces.  The only matter that is changed is whether the arrestee finds himself in the back of a patrol car, handcuffed and on his or her way to jail.

Of course, there are proponents and opponents to this change in the law and its policy.  But, to summarize the proponents points of view:

• Keeps more officers on the street because they are not tied up with minor arrest paperwork;
• Reserves jail space for more serious offenders;
• Saves tax payer money by minimizing the use of jail space;
• Trust erodes between citizens and officers if it is perceived officers are making a "bigger deal than necessary" out of a matter.

Opponents argue that this policy:

• "Sends the wrong message", to paraphrase Williamson County District Attorney John Bradley;
• Concerns that the public will complain.

So, let's consider what Mr. Bradley means by his concern that it sends the wrong message.  His actual statement to the news read:

the law "sends the exact opposite signal" law enforcement officials should want to give offenders. "My thoughts are that the entire process is a very creative way to decriminalize how we prosecute drug cases in Texas."

Let's not forget that this is not just a policy change by Austin Police Department or other agencies, it is an actual change to Texas law that went into effect in September, 2007.  This change was not done by the Courts, but by the actual law makers, the Legislature, who are put into office by voters statewide.

The last time I checked, and when I was working in law enforcement as a Williamson County Deputy Sheriff, I never perceived my job, duty or responsibility to send a "signal" or to "give offenders" any point of view.  My job was to enforce the laws that were passed by the Legislature.  Further, my job was to do that in a professional manner that put a positive image on the agency that I worked for.  My goal being to enforce the laws that were on the books, not to make a political statement when doing so.  However, I do believe that many officers take it upon themselves to teach someone a lesson....  That is not what we want in officers.

I also question why John Bradley is commenting on this and not Jana Duty, the Williamson County Attorney.  Afterall, none, not one, of the offenses covered by the change in this law are prosecuted by Mr. Bradley.  His office is responsible for felonies, not misdemeanors like these.

Ms. Duty, what is your opinion of these matters, as they are going to be governed by your office and handled by your prosecutors... and ultimately save you time and money in your budget. 

Sheriff Wilson, what is your opinion? Your deputies are the ones that would be saved time.  And, given the mass shortage of deputies you currently have available to cover the districts, wouldn't it make more sense to keep them available to take higher priority calls?

In no way am I suggesting these matters should not be prosecuted, but think about the money that can be saved along with the monumental waste of time it is to arrest someone for these matters and remove officers from the street.

Voters, what do you think? I invite anyone to comment to this blog below and let's begin a useful, informative dialogue.

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Finally, Texas motorists may be able to abandon the paper card that we have all carried for decades that "proves" we have insurance.  This is thanks to the TexasSure program.

How it works: Insurance companies will report information to Texas DPS and Texas Department of Insurance who in turn cross-match Texas license plates to insurance polices.

The result:  when an officer runs a license plate, he or she will know whether the information is current and insurance is in effect.

This will drastically reduce the citations issued to folks who have coverage but lost the paper cards.  This will also limit the paperwork for courts and save officers time from writing this citation that ultimately gets dismissed upon showing proof of the card.

However, it is going to be harder to avoid a ticket for not having insurance... as there is little doubt as to whether or not it is in effect.

Let's see how this works... as a driver who hates keeping up with the cards and a cop who hated being "required" to write the "no insurance" ticket, this seems like a winning solution.

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§61-2-10b. Malicious assault; unlawful assault; battery and recidivism of battery; assault on police officers, conservation officers, probation officers, humane officers, emergency medical service personnel, firefighters, fire marshal, Division of Forestry employees and county or state correctional employees; penalties.

Probably the longest link I've entered to date and hopefully will ever create in the future is actually the title of a statute written in West Virginia.  I learned about this story from a friend of mine who called and mentioned it in his daily news digest, then with a quick gander online, I found the story.

A man who was arrested for Driving while Intoxicated was also filed on for a misdemeaner where he faces jail time for allegedly passing gas in an officer's direction.  So he was flatulent, so he allegedly fanned it in the officer's direction... even given those behaviors, does it justify putting him in jail?

Below is the portion of the statute that governs this charge:

(c) Battery. -- Any person who unlawfully, knowingly and intentionally makes physical contact of an insulting or provoking nature with a police officer, probation officer, conservation officer, humane officer, emergency medical service personnel, firefighter, State Fire Marshal or employee, Division of Forestry employee, county correctional employee, state correctional employee, employee of a mass transportation system or Public Service Commission motor carrier inspector acting in his or her official capacity, or unlawfully and intentionally causes physical harm to a police officer, probation officer, conservation officer, humane officer, emergency medical service personnel, firefighter, State Fire Marshal or employee, Division of Forestry employee, county correctional employee, state correctional employee, employee of an urban mass transportation system or a Public Service Commission motor carrier inspector acting in such capacity, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one month nor more than twelve months, fined the sum of five hundred dollars, or both.

What's the physical harm? Discomfort to the olfactory cells of the officer's nose? As a former officer, myself, I have smelled odors that I'd rather forget, but I would never even attempt to file a charge like this against an individual.  I believe when officers take actions like this, although they may have what they believe is "probable cause" to justify their action(s), they lose credibility.  Reputation in law enforcement is critical, as it is in any field... but this is just a classic case of "piling on charges" or heeping up the amount of accusations that the accused must resolve... I know in some places, the strategy is to file more so the person "must" plead to something ... as the risk becomes too great not to take a plea and have the other charges dismissed.

The best way to handle this, take note of the alleged action as "evidence of intoxication"... afterall, what sober and sane person would willingly fart and fan toward another adult?

Here's to hoping this charge is dismissed promptly.

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I just saw this story resurface in the news and instantly remembered it because of the widespread attention it garnered.  Back in 2001, Marjorie Knoller was convicted of a manslaughter offense for not stopping an attack by her two dogs on a la crosse coach in her building in the San Francisco area.  The New York Times reports on the story here. 

Originally, Marjorie wsa sentenced to 4 years in prison, now she is facing 15 to 99 years, as the original conviction was set aside by a superior court and returned to the trial level.

Citing that Marjorie expressed no remorse and held her dogs in higher regard than human life, the judge sentenced her to the higher penalty.  Law.com says this about the matter:

The case turned into a tabloid sensation because of the viciousness of the attack -- the dogs tore all of Whipple's clothing from her body and left her with more than 70 bites -- and the seemingly cavalier attitudes of Knoller and her law partner and husband, Robert Noel, who blamed Whipple for the attack.

The couple also said they were keeping the canines on behalf of a white supremacist accused of running an attack dog ring from his state prison cell. The couple eventually adopted the prisoner, Paul "Cornfed" Schneider, as their son.

Knoller, who has served three years in prison, will have to serve 12 more years before she can apply for parole.

In denying Knoller's plea for probation, Woolard noted that Knoller didn't call 911 or otherwise try to help Whipple during the 10-minute attack. The judge said Knoller knew the dogs were dangerous, ignored numerous warnings to train them and hasn't expressed remorse for the attack.

"She has blamed the victim and has held her dogs in higher regard than humans," Woolard said.

Whipple's partner, Sharon Smith, addressed Knoller before she was led off to jail. Smith called Knoller's relationship with the two dogs and the prisoner "perverted" and expressed satisfaction with the lengthy prison sentence.

"It is very hard to find forgiveness for someone who doesn't accept responsibility," Smith said.

What the California Supreme Court said on the matter when determining the appropriate standard for "implied malice" is stated below:

... according to the Supreme Court, the "Court of Appeal set the bar too low" and "the trial court set the bar too high."

"In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another — no more, and no less," Kennard wrote in People v. Knoller, 07 C.D.O.S. 6178. She also reaffirmed the implied malice test the court set in 1966 with People v. Phillips, 64 Cal.2d 574, which requires that a person act "with conscious disregard for life."

According to Kenneth Phillips, a Beverly Hills dog bite attorney who watched the Knoller trial closely, the ruling makes prosecuting dog mauling cases more difficult.

"A dog owner is never going to be aware of the risk of death," he said.

Although the Supreme Court said that Judge Warren gave the 2002 jury proper instructions, he granted the new trial based on an inaccurate definition of implied malice. The "high probability of death" standard was just one of two parts of the implied malice test set forth in 1953's People v. Thomas, 41 Cal.2d 470, and Judge Warren had applied it incorrectly, the court said.

So there are three points to this story from my point of view:

1) Whenever a person is going to be sentenced in Court, show some kind of remorse... it really should not be that difficult considering what they are facing, and if they are truely remorseless, then I guess they get what they "deserve."

2) Know your dog, or keep it away from the public.

3) This decision is a bit troubling to me because of the standard applied, "a defendant's awareness of engaging in conduct that endangers the life of another." Taking the dogs out seems to be a far cry from this unless she sent the dogs to attack the victim or stood by and did nothing to help the victim or try to stop the attack.  Bottom line, most jurors said they did not like Knoller and found her testimony "inconsistent."

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In Eugene, Oregon, an ordinance was just passed and went into effect on September 13, 2008, that allows the prosecution of those convicted of a criminal offense in a 20-block area of downtown to be banned from re-entering the area for 90 days to 1 year.  Read the Ordinance online.

While this may seem like a good idea to some, it seems to me that once a person is convicted of an offense and that penalty is paid, life should continue for that person.  They should not be banned from a part of the city.

This really reminds me of The Scarlet Letter, which I'm assuming most readers know about that work of literature which commented on the branding of women convicted of "adultery". When I read that book I found myself shaking my head at that scenario, but at times, we really are not that far afield from a similar society.

An excerpt from the article reads:

Eugene's downtown exclusion zone bans people convicted of crimes downtown from downtown for a year. People charged with a crime can be banned from downtown for 90 days.

"It requires careful planning to make sure we remain within the law, that we apply the ordinance the way it was intended and that we don't violate anybody's constitutional rights," said Captain Pete Kerns with the Eugene Police Department.

Police will start enforcing the downtown exclusion zone in just a few weeks, but it will be some time before police start issuing violations for all the crimes listed in the ordinance.

It's nice to know that Captain Kerns is at least giving voice to the concept of "constitutional rights" but the implementation of this should be interesting.  Afterall, the Constitution provides for Freedom of Assembly--unless the argument will be that this falls under one of the "time/place/manner exclusions".

Reading between the lines of the ordinance, it appears to me that this is a way of pushing transients and other homeless people out of downtown without directly saying as much.

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