Harris County Sherriff's DWI Initiative Just A Baby Step

Adrian Garcia, Harris County, Texas Sheriff, is developing a DWI initiative with the sole intention of dethroning Houston, Harris County, Texas from the top spot of alcohol related fatalities or at the very least curb as much as possible these type of fatalities.  While I applaud the Sheriff's efforts the public needs to realize a couple of things.  Our county decision makers are partly to blame for this dilemma.  Our decision makers have neglected to put in place public transportation throughout the years.  Our public transportation system is laughable when you compare it to similar counties like New York (Manhattan) and Cook (Chicago).  I have vacationed in both cities recently and have never needed to rent a car to get around each of these cities.  Would anyone even think of doing the same in Houston, Harris County?  We have and will continue to have a huge reliance on revenue from the oil and gas industry.  Thus, our county official decisions reflect that by building more roads for our citizens to drive instead of investing in a public transportation system.  With more roads come more cars and with more cars come more accidents and with more accidents come more fatalities. If Harris County officials truly wish to lower the amount of alcohol related fatalities it needs to raise our public transportation system from laughable to serviceable.

 

From Criminally Negligent Homicide to Intoxication Manslaughter

In a horrible and tragic crash three teenage girls were killed when a driver in Toyota Camry allegedly ran a red light and smashed into a Ford Excursion on July 9. You may have read the story or seen in on the news. The driver of the Toyota was allegedly intoxicated.

The crash illustrates a number of things. The first being to not drive if you are anywhere near being intoxicated. Further, you must always be careful on the roads, especially the late hours of the night, there are drunk drivers on the road.

In this situation the driver of the Toyota can be charged anywhere from a State Jail Felony of Criminally Negligent Homicide, to a Second Degree Felony of either Manslaughter or Intoxication Manslaughter. 

The difference in possible punishment, based on the charges can be from 6 months State Jail to a possible 60 years if the the charge is Intoxication Manslaughter and the prison time is stacked. 

Of course this could have all been avoided, but unfortunately it is too late for that. 

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DWI Surcharge Modification Being Contemplated

 The Houston Chronicled reported State Senate Criminal Justice Committee Chairman John Whitmire is putting together a panel to consider modifying or repealing the Driver Responsibility Program, which includes a surcharge of $1,000 annually for three years for first-time driving-while-intoxicated offenders. One of the many consequences of a DWI conviction is the surcharge, which if not paid, will leave a DWI offenders with suspended licenses indefinitely.

Another issue to be discussed is the various methods different counties address DWI."We need a consistent DWI policy across the state of Texas," Whitmire said. "Why would the state of Texas have a criminal justice system in Houston that will completely allow you to have no record, and in the New Braunfels experience you do (have a record), and then you go to Bexar County and she don't even file on you (for) DWI the first time? You need to be selective about where you want to get caught drinking I guess."

In Harris County the police is to offer DIVERT, a pre-trial diversion program that if completed allows the DWI defendant to avoid a conviciton."

In Bexar County, District Attorney Susan Reed allows first-time drunken-driving defendants who meet certain parameters to plead instead to a charge of "obstruction of a highway – intoxication." Defendants must undergo treatment and abide by conditions, including locks on their vehicles.

These are of course all preliminary discussions. The state legislature meets next year. It will be interesting to see what the outcome is. I would be a bit surprised if the surcharge goes away. In a bad economy Austin will do whatever it takes to raise money.

 

Lindsay Lohan Violates Probation

You have probably already read that Actress Lindsay Lohan was ordered to serve 90 days in jail for missing alcohol counseling sessions in violation of her probation. The judge also ordered Lohan to spend 90 days in a drug and alcohol rehab program after her jail term is completed.

The actress must begin serving her sentence on July 20, Los Angeles County Superior Court Judge Marsha Revel said.

As the current administration likes to say, this is a teaching moment. The bottom line is, if you are on probation, follow the rules. Don't allow a judge to take your freedom away. In Texas, as in California, there are consequences for not following the rules on probation. For a first time DWI you could face up to 180 days in jail. Additionally your driver's license can be suspended.

Your best bet is to not be convicted of DWI to begin with. But if you end up on probation follow the rules and keep yourself out of jail.

Independence Day

Today is July 4th, the celebration of our nation's birth. It was on this day in 1776 that our forefathers risking their lives, declared their independence. To remember and celebrate this we offer you the Declaration of Independence.

When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. — That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, - That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new Guards for their future security. - Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former systems of government. The history of the present king of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these States. To prove this, let facts be submitted to a candid world.

He has refused his assent to laws, the most wholesome and necessary for the public good.

He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved representative houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new appropriations of lands.

He has obstructed the administration of justice by refusing his assent to laws for establishing judiciary powers.

He has made judges dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of new offices, and sent hither swarms of officers to harass our people and eat out their substance.

He has kept among us, in times of peace, standing armies without the consent of our legislatures.

He has affected to render the military independent of and superior to the civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock trial from punishment for any murders which they should commit on the inhabitants of these states:

For cutting off our trade with all parts of the world:

For imposing taxes on us without our consent:

For depriving us in many cases, of the benefit of trial by jury:

For transporting us beyond seas to be tried for pretended offences:

For abolishing the free system of English laws in a neighbouring province, establishing therein an arbitrary government, and enlarging its boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

For taking away our charters, abolishing our most valuable laws and altering fundamentally the forms of our governments:

For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated government here, by declaring us out of his protection and waging war against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large armies of foreign mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation.

He has constrained our fellow citizens taken captive on the high seas to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these oppressions we have petitioned for redress in the most humble terms: Our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

Nor have we been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our separation, and hold them, as we hold the rest of mankind, enemies in war, in peace friends.

We, therefore, the representatives of the united States of America, in general congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by authority of the good people of these Colonies, solemnly publish and declare, that these united Colonies are, and of right ought to be free and independent states, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do. - And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor.

Can You Get A Fair Jury In Harris County?

In Harper Lee's To Kill A Mockingbird, Atticus Finch defends a black man, Tom Robinson, accused of the rape of a white woman, Mayella Ewell. Despite significant evidence of Tom's innocence, the jury convicts him. 

We have come a long way since the time that this book was set in. But have we? A couple of weeks ago a man in Harris County was on trial for Capital Murder. During jury selection, while the judge was explaining general legal concepts like the presumption of innocence in an attempt to pick a jury of 12 fair and unbiased individuals, one potential juror explained that he could not give the defendant a fair trial. The reason, because the defendant was black.

Although the potential juror's response may come as shock to many, the honesty is welcomed. To admit prejudice to a roomful of strangers cannot be easy. To admit it to the Honorable Judge Marc Carter, an African-American himself, had to be even tougher. However, what would have happened if it wasn't admitted? The defendant may have ended up with a juror finding him guilty based nothing more than prejudice. The State would not have to prove a thing.

We live in a multicultural and diverse city. We interact with people from all walks of life. But that does not guarantee a fair trial if you are ever accused of a crime. That does not guarantee that you will be presumed innocent. It is up to all attorneys to vigorously defend their client and to strenuously question potential jurors to ensure that their client receive a fair trial. You will surely be found guilty if a jury already thinks you are guilty before a shred of evidence has been presented.

Your welcome...but you did the hard part

Clients are always very grateful to me after their petition for non disclosure is granted by the court.  While I appreciate their gratitude they fail to recognize that it is their hard work that led to successful completion of the deferred adjudication allowing them to be eligible for the petition of non disclosure.  Typically, a misdemeanor deferred adjudication is one year in duration of reporting to a probation officer,  performing community service and attending different classes.  This takes time and interferes with a person's life.  You would be surprised how many people are unable to successfully complete a deferred adjudication and thus are precluded from ever having their record sealed.

Pssst....necesita un abogado en Houston?

I thought the days of Tom Zarate were behind us at the Harris County Criminal Justice Center.  For everyone that does not remember Mr. Zarate he was a lawyer at the courthouse notorious for arriving early and soliciting Spanish speaking defendants that were not represented by an attorney.  He would offer his services to mostly downtrodden people.  A non lawyer would say what is wrong with doing that?  Well the state bar of Texas states that it is unethical for a lawyer or a lawyer's representative to approach someone and offer their legal services.

I was disappointed to see that someone seems to be going the Zarate route for acquiring clients.  For the second time, I have seen a man approach a non English speaking person by the elevator banks and ask them if the were represented by a lawyer.  While I do not know this person or who he works for I do know that he is not an attorney because of the way he is dressed, and he merely sits in the courtroom without approaching the bench.  Even though this person is only approaching Spanish speaking people it is only a matter of time before they are busted for soliciting clients and the lawyer they are representing is reprimanded.

Si udsted necesita un abogado en Houston oprima aqui.  Tambien puede llamar ha (713) 225-1038.

Communicate With Your Attorney

Today while at the courthouse an attorney asked for advice. I have absolutely no problem with that. I think its a great idea to ask your peers their opinion on legal issues. But this question was something a client should be asking his attorney and an attorney should know the answer. If an attorney is asking the question they shouldn't be practicing criminal defense law.

The question was whether his client was eligible for probation after having served time in TDC for a felony conviction. The answer is no. Not to say that defendants with previous felony convictions don't sometimes get probation with a judges approval either through a Presentence Investigation or through a plea bargain after prosecutor is convinced based on the facts that probation is warranted.

How can an attorney represent someone accused of a felony and not have a basic understanding of the law? It reminds me of the many calls we get asking whether someone can get their record cleared or expunged after a conviction. I always inquire as to what their attorney advised. Some attorneys actually advise that the conviction can be expunged. Other times the client failed to ask what the consequences were.

It is the responsibility of an attorney to explain the options and consequences of a particular legal matter. If you are charged with a crime and paying an attorney to represent you, you should expect the attorney to explain the process and options so that you can make an informed decision. You don't want to be in a position years down the road with a conviction preventing you from getting a job or apartment. We always encourage our clients to come into our office and sit down and discuss the case. You should expect this of your attorney.

No Contract Required?

I never understand why someone would enter into an agreement with an attorney to be represented for a criminal matter without a signed contract.  This seems to be a disturbing trend for some reason since I have come across several of these situations of late.   How can the client know what is expected of him/her or what they can expect from the attorney when there is no contract agreed upon by both parties?  Without a contract in place  what often happens is that the attorney quotes the client a fee they later say that the case has become more complicated so they need to charge the client an additional amount.  Most troubling, is when a lawyer promises certain things to the client in order to be hired only to deny making the promises down the line or who ultimately blames the judge, prosecutor handling the case for the negative outcome  A contract detailing expectations, fees, and promises at the outset would prevent most of  these messy situations from happening in the first place.

It is imperative that as a client you have a signed contract with your attorney.  If the attorney promises you that he/she can get your case dismissed or reduced make sure you get that in writing!