It might not be a crime today, but check back tomorrow

Should violating federal regulations relating to the import and sale of orchids result in a criminal conviction? Is there a need for armed federal agents to conduct exhaustive searches for paperwork related to the import and sale of orchids? Was justice served by imprisoning a 66-year-old Texas man for not filling out all of the forms required by los federales?

That's exactly what happened to Spring resident George Norris in 2004. As a result of not dotting every "i" and crossing every "t" when importing and selling orchids, Mr. Norris ran afoul of the U.S. Fish and Wildlife Service. Mr. Norris subsequently spent two years in federal prison for committing an act that scarcely rises to the level of criminal activity.

Most criminal acts in Texas require some sort of culpable mental state - such as intentionally, knowingly, recklessly or negligently. There are but a handful of so-called "strict liability" crimes in Texas -- the most prominent being driving while intoxicated.

Los federales, on the other hand, carry scads of strict liability crimes on the books -- many of which are aimed at companies who violate environmental regulations.

Strict liability has its place -- in the civil courthouse.

I guess I just don't always play well with others

Growing up in Texas I learned at an early age that if you've got a problem with someone for what they said or did, you talk to that person about it. Face to face. It was called being a man (or in this age of enlightenment -- being an adult). Attacking someone anonymously was, and remains, the act of a coward.

I had to deal with a coward down in Fort Bend County this morning. While I don't know with absolute certainty who that coward is, I have a pretty damn good idea. And if that coward is reading this post, I would appreciate it if you would act like an adult and acknowledge yourself. I'm not holding my breath, however.

I had a client appearing on an arraignment setting on a second DWI. After the docket was called, the bailiff (and I want to make this crystal clear -- the bailiff who was involved in this situation handled everything professionally and treated everyone involved with the utmost respect) took my client into the back hall and asked me to come with him. It turned out that Judge Lowery had signed an order revoking my client's bond for an alleged violation of a bond condition that the assistant prosecutor couldn't even point out.

That same prosecutor told me my client had two options this morning: he could accept her offer or he could go into custody until a new bond was set.

I asked the prosecutor if we could approach the judge to discuss this alleged violation and she said no. She told me that only the judge who signed the revocation order could hear the matter. So I headed upstairs to find out when we could get a hearing scheduled. On the way out I told the assistant prosecutor she had a problem with her probable cause affidavit and that we would need to approach the judge on that issue as well.

So up to Judge Lowery's court I went. Just before it was my turn to approach the bench, who should appear out of nowhere? Oh my, it was the assistant prosecutor! She and the judge proceeded to have a conversation -- I think it's a fair bet that they were discussing my client's case without my being present. Oh, what's a little ex parte communication between friends, anyway?

Judge Lowery then told me that we would have to go back downstairs to request a bond hearing after the sitting judge returned from out of town. Interestingly enough, on the revocation order, the judge had written that there would be no new bond until a hearing was held but then it would be set at a given amount with enumerated conditions. First the verdict, then the hearing?

Now it's back to the original court where we approach the judge on my motion to dismiss the information due to an invalid probable cause affidavit. During our time before the judge, the assistant prosecutor not only mislead the court on the purpose of our appearance in court this morning -- she also proceeded to argue a motion that wasn't before the court. Of course we should have a pretty good idea of how my motion before the bench fared. Ironically enough, without being asked, the judge set the bond at the amount listed in the revocation order along with the listed conditions.

As I left the courtroom the bailiff (the same gentleman I mentioned previously) asked me to come outside to the hallway so we could talk. I knew this couldn't be good. I know I was being a pain in the backside of the court and the prosecutor -- but that's my job -- but I couldn't think of anything I had done that would fall outside the lines. What happened next shocked me.

The bailiff told me that Judge Lowery told him that another attorney told her that I had alcohol on my breath. I told the bailiff that I had not been drinking. He told me he didn't want to take me in for public intoxication (WTF?) and asked if I thought I was okay to drive. I assured him I was. He then told me he didn't think I was drunk because he heard me arguing the law to the judge. I told him I knew he was only doing his job and I left -- steamed beyond all belief.

Now who is this coward of whom I speak? Before I approached Judge Lowery I was among my brethren on the defense bar. The only other attorney at the bench when I approached was the assistant prosecutor.

I'm not going to sit here and tell the world that an assistant prosecutor in Fort Bend County slandered me before the bench -- behind my back, no less. I'm not going to sit here and tell the world that an assistant prosecutor in Fort Bend County tried to have me arrested because I wouldn't roll over. I will say this much, however. If Judge Susan Lowery thought I was intoxicated or smelled of alcohol in court this morning - she didn't have the decency to tell me to my face.

I have a damn good idea who the coward is. I'm also willing to bet that he or she isn't going to come forward anytime soon. Always remember that a brave man dies but once while a coward dies a thousand times.

What part of no probable cause doesn't she get?

Probable cause is the level of proof needed to support an arrest decision. It is more than reasonable suspicion, but far less than a preponderance of the evidence. It is all the proof the Texas Department of Public Safety needs to suspend your driver's license if you were arrested for driving while intoxicated.

Recently I appealed an ALR suspension and got a reversal. In the order reversing the administrative license suspension, the court found that "the evidence was insufficient to establish that probable cause existed to believe that the petitioner had lost the normal use of his mental and physical faculties due to alcohol intoxication at the time of his arrest."

In other words, there wasn't probable cause to arrest my client for driving while intoxicated.

The order went on to reverse the suspension and remanded the case "for further proceedings consistent with this judgment." (Emphasis added.)

In order to suspend a driver's license when the driver declines to take a breath test, the DPS must show:

1. that reasonable suspicion to stop or probable cause to arrest the driver existed;

2. that probable cause existed that the driver was driving while intoxicated;

3. that the driver was placed under arrest and asked to submit to a breath test; and

4. that the driver declined the breath test.

The attorney for the DPS apparently had a hard time figuring out what probable cause was as she refused to dismiss the case and insisted on a rehearing - still claiming that the suspension should be upheld because the traffic stop was good. Of course the administrative law "judge" didn't seem to grasp the concept of probable cause either as he denied my motion to dismiss based on the county court's order reversing the suspension.

The deck is already stacked against citizens accused of driving while intoxicated fighting a license suspension. The problem is only compounded when the attorneys for the DPS and the administrative law "judges" can't figure out what probable cause is.

The saga continues...

New DWI program sounds more and more like deferred adjudication

So you still think Harris County's new DIVERT program for first-time DWI defendants is really a pretrial diversion and not deferred adjudication by another name? See this document released internally to Harris County prosecutors.

"After a DIVERT interview has occurred, if it is determined that a defendant is both eligible and an appropriate candidate for the program, an agreement will be tailored to the defendant with customized conditions of the program. If the defendant accepts the terms of the agreement, the defendant will be required to enter a plea of guilty to the offense of Driving While Intoxicated and agree to the punishment to be received in the event of a violation of the conditions of the program. As part of the agreement, the Defendant will waive the right to a jury trial, right to appeal from a finding of guilt and right to appeal from assessment of sentence."

Article 42.12, Sec. 5(a) of the Texas Code of Criminal Procedure states that a judge may accept a plea of guilty or no contest from a defendant and, if the judge feels it is in the best interest of both society and the defendant, the judge may defer a finding of guilt until the defendant has completed his probationary sentence. Sec. 5(c) states that if the defendant has not violated the terms of his probation and if the judge has not proceeded to adjudicate the defendant's guilt, the judge shall dismiss the the case against the defendant. This is the statutory definition of deferred adjudication.

Art. 42.12, Sec. 5(d) states that a judge may not grant deferred adjudication for the offense of driving while intoxicated.

Article 55.01(a)(2)(B) of the Texas Code of Criminal Procedure states that an expunction is not available to a person who was granted deferred adjudication under Article 42.12.

My reading of the DIVERT program procedures and the Code of Criminal Procedure leads me to believe that a person who completes the program will not be eligible for a expunction because that person entered a plea of guilty to DWI. Unfortunately we will not know until the first person files for an expunction at least three (3) years from now.

And if that isn't enough to make you wonder just what the hell is going on, there's this little gem from Page 2:

"If the defendant, after evaluation, chooses not to enter into the DIVERT program, the District Attorney agrees that any information directly or indirectly derived from the interviews or testing of the defendant during the DIVERT evaluation will not be used as evidence against the defendant in any criminal proceeding except for the purposes of impeachment, rebuttal, or cross-examination should the defendant testify or provide the court with information contrary to that provided in the evaluation process; or information learned from a source independent of the evaluation."

So there. DIVERT ain't about designing a treatment program for a person accused of DWI, it's about building a case against that person should they decide not to enter the program. If the purpose really were to treat people, the evaluations would be conducted by a provider not affiliated with Harris County so that thelimited physician-patient privilege afforded under Texas Rule of Evidence 509(b) would apply.

Cops packing needles

Police in Arizona and Idaho are now carrying needles along with their sidearms in an attempt to limit further the rights of those arrested for suspicion of driving while intoxicated. It's not enough that states strengthened penalties for those citizens who exercised their right not to incriminate themselves by refusing to submit to a breath test, now they want motorists to submit to blood draws by police officers in the field.

In Idaho, about 20% of the motorists arrested for suspicion of drunk driving exercise their right to refuse to submit a sample of their breath (the national average is 22%). Prosecutors say breath test refusals are the reason they still have to try as many DWI cases as they do. On the flip side, maybe the cops are a bit overzealous in arresting motorists for drunk driving. Of course, couldn't happen, right? All that state and federal grant money doesn't have any effect on the number of motorists arrested for DWI, does it?

According to the Associated Press, NHTSA is in contact with the Houston Police Department to institute phlebotemy training for DWI task force officers here in the Bayou City.

So now we have the Harris County District Attorney upset because people who plead guilty to driving while intoxicated are choosing to pay a fine and deal with a license suspension rather than opting for 12-18 months of probation (and headaches). We have prosecutors in Idaho upset that motorists are electing to take their DWI cases to trial. What we don't have is any acknowledgement from law enforcement that sometimes, believe it or not, they don't get it right - that sometimes they arrest innocent people.

According to the Bill of Rights, we are innocent unless proven guilty -- perhaps someone should examine the curriculum at the police academy and baby prosecutor school.

What should I do if I'm pulled over for DWI?

I'm often asked what someone should do if they're pulled over on a DWI. Now the first thing to remember is that unless you are in an area with bars and restaurants, a DWI stop rarely starts out as a DWI stop.

Typically a driver is stopped because of a traffic or equipment violation. Depending on the location and time of day, the officer may or may not start off with the assumption the driver has been drinking.

The first thing you want to do is get your driver's license and insurance card out before the officer approaches your window. If you show the slightest difficulty in getting them out after he asks for them, he will note that you fumbled for your license when he writes his report.

You always want to be polite. Always remember that it is the officer who is going to decide whether or not to make this a DWI stop. If you are rude and combative, believe me, that will make it into the officer's report as a sign of intoxication.

Generally if the officer asks you to get out of your car you are going to be arrested whether you perform any of his coordination exercises or not. Do not lean against your car after getting out. If you do, the officer will indicate this as another sign of intoxication.

Listen carefully to the officer's questions and, if you choose to answer them, only answer what is asked. If you've been drinking, your breath will have the odor of an alcoholic beverage; remember this if the officer asks if you've been drinking.

Before you agree to perform the officer's coordination exercises you need to realize that every question the officer asks you and every task he asks you to perform are designed to gather evidence that will be used against you.

If you were stopped for speeding or for an equipment violation you need to be aware that neither of these is an indicator of impairment. Even if the officer notes you had the odor of an alcoholic beverage on your breath, slurred speech and bloodshot eyes, without any signs of impairment, the officer cannot establish probable cause to arrest you (though you will be arrested).

If you are familiar with the coordination exercises the officer will ask you to perform and you know what "clues" he's looking for then you may decide to perform them -- although I would counsel against it. Just remember, even though there are 93 components to the walk-and-turn test, for instance, the officer (and prosecutor) will claim you are intoxicated if you exhibit 2 or more "clues."

If you were not involved in an accident and you don't have a child in your car and the local police are not running a "No Refusal" weekend, do not blow into the breath test machine. I repeat - do not blow into the breath test machine. If you blow over .08, you've got problems, if you blow under .08 the officer will find some reason to explain the score -- maybe you "elmininated" the alcohol from your system or maybe you were also doing either prescription or illegal drugs that "synergized" with the alcohol and caused impairment.

If you are subject to a mandatory blood draw if you refuse the breath test you sit on the horns of a dilemma. If you think you have an alcohol concentration of less than .08 then you probably should blow into the machine. Otherwise you will be looking at a blood test. While a jury is trained to think of blood tests as infallible, there are a number of evidentiary issues that can keep a blood test out of evidence, or at least cast serious doubt on its accuracy.