Tiger Woods and the Constitution - Even Tiger has the Right to Remain Silent

According to reports, Tiger Woods was involved in a single car accident near his residence.  The big story seems to be that he is "refusing" to talk to investigators about the accident. 

Just a guess, but he probably hired a competent lawyer to advise him on the matter.  That competent attorney probably told Tiger he did not have any obligation to answer any questions about the accident and did not have to speak to investigators about the accident.

Remember that document that I write about - The United States Constitution?  We as citizens have no duty to talk to the police about anything.  Yes, this includes the famed Tiger Woods.

As a Houston DWI lawyer, we have had several clients that have been contacted by the police to get "client's" side of the story.  The problem is, the police are often trying to gather evidence to use against that person.  In our experience, it is rare that law enforcement contacts our clients to exonerate them.  More often than not, the police are seeking information to build a case against the person to whom they are speaking.  

If the cops come knocking on your door to speak to you about a crime, I suggest you find a lawyer to help you through that process (even if you have nothing to hide.)

Felony DWI Dismissed after Cop Indicted

Remember the Conroe Police Officer that was indicted for falsifying a DWI offense report?  Well good news for our client that was arrested by this officer - his felony DWI case was dismissed yesterday.

Our client had absolutely nothing to drink and looked and sounded absolutely sober on the video.  He was still arrested and charged with Felony DWI, had to make a bond and hire a Texas DWI attorney.  Additionally, he had the ongoing worry of having a felony DWI hanging over his head for several months.

I don't normally write on this blog about our victories.  However, I think it is important to show just how easy it is to be arrested for a DWI / DUI.  All the cops have to do is say they smell alcohol and that you have not passed the field exercises and you as a citizen, are off to jail.  Fortunately in this case, the Montgomery County District Attorney's Office saw through this officer's BS.  Based on our years of experience, this calling the officer on his shenanigan and outright lies is the exception, not the rule. 

You ever caught a cop lying either in his report or on the witness stand?

Should Judicial Candidates Have Experience Before Becoming a Judge?

Mark Bennett wrote about this a while back, but I just looked at the slate of judicial candidates for Harris County Democrats seeking a Misdemeanor Court bench for the 2010 election.  Who the hell are most of these judicial candidates?  I know I don't know everyone that has stepped foot in the criminal courthouse, but I am there just about every day.

I know most of prosecutors and most of the criminal defense lawyers either by name or face or both.  While there are some on the list that I know by either face or name, many I have never heard their names. 

The Harris County Criminal Courts at Law handle Class A and Class B Misdemeanors.  The majority of jury trials that these courts hear are Driving While Intoxicated (DWI) cases, Assaults and Possession of Marijuana cases.  Given that the majority of cases that are tried in these courts are DWIs, Assaults and Marijuana cases, is it too much to ask of these candidates that they have tried a few DWI, Assaults or Marijuana cases before running for the bench?

What is Brady Material? Here's a Simplified Definition

It seems that Brady material is an ongoing problem with the Harris County District Attorney's Office.

I offer this on behalf of Jordan Lewis in our office.  His simplified definition of Brady material is something like this -

If a prosecutor learns something about a case and his/her first reaction is, I hope the defense lawyer doesn't find out about this, then it is probably Brady material.

This is to all of the young prosecutors out there, if there is any question about whether something is Brady material or not, turn it over.  As a matter of fact, if you are trying to convict someone and take away his/her freedom, don't you think it is fair to give the defense everything you have - especially the information that tends to show he/she didn't do it?

Coercing Defendants to Plea with the DIVERT Program

As predicted, the DIVERT Program is turning into a coercive program

Yesterday, I asked a prosecutor to evaluate a DWI case.  He asked, "for the DIVERT Program?"  I replied, "No, I would like for you to evaluate it for the other 'D' word, a Dismissal."  The prosecutor then told me that he was under orders form the "higher ups" that if they evaluate a case for trial, they will no longer be offering the DIVERT Program.

We, the Houston Criminal Defense Bar, specifically asked the Honorable Roger Bridgewater about the office's position on evaluating cases when the Harris County District Attorney's office initially  spoke about the DIVERT Program.  Judge Bridgewater specifically told us that the cases that need to be dismissed will be dismissed.  How in the hell is the prosecutor going to know if the case needs to be dismissed if they don't evaluate the case?  Am I missing something, or have they changed their policy? 

I hope this prosecutor is wrong.  I hope Judge Bridgewater is standing by what he told us several months ago  that being that his prosecutors are going to first evaluate the merits of the DWI cases before offering the DIVERT Program.

HGN - Are Police Officers Really Reporting What They See or What They Think Will Get a Conviction

You may have heard of the police doing the "pen test" or "eye test."  What they are referring to is theHorizontal Gaze Nystagmus (HGN) test.  DWI police officers will tell you this HGN test is one of the standardized field sobriety tests they use to determine if you are driving while intoxicated.  

So what is HGN?  The test in essence is a measurement of the movement of the eyes.  Nystagmus refers to the involuntary jerking of the eyes back and forth.  Horizontal refers to the officer moving a pen or other object horizontally across your field of vision.

DWI officers claim that they are looking for three clues in each eye during this HGN test. 

The first part of the test is to determine if a DWI suspect's eyes are able to pursue smoothly - is there jerking in the movement of the eyes.  The next part of the test is to determine if there is nystagmus at maximum deviation - when the pen is held with your eyes as far out as they can go, is there nystgamus.  Finally, the officers are looking to see when the nystagmus occurs as they move the pen across your field of vision.  They are to mark off if they see nystagmus prior to a 45 degree angle.  Each eye is suppose to be checked twice for each of the 3 clues.  The total maximum number of clues for the test is 6.

What the cops don't normally tell you is that there are over 40 types of nystagmus that can naturally occur in an individual.  They also don't tell you that they can't differentiate these other 40+ types of nystagmus and they have not heard of most of the other types of nystagmus.  

According to the federal standards for the HGN, the officers are suppose to use objective criteria for administering the test and scoring the test.  More often than not, however, the officers simply just report that the DWI suspect has 6 of a possible 6 clues on the test.

As Houston DWI lawyers, we have seen hundreds of videos where the police perform the HGN.  Many of the officers that perform the test either do not know how to properly perform the test or choose not to do the test correctly which leads to falsely reporting results on this test.  I have yet to see an officer ask a client if he or she has naturally occurring nystagmus.

If you have been arrested for DWI, ask your lawyer how many clues the cop says you had on the HGN.  My bet is the answer you will get is 6 of 6.  What is your score on the HGN?

Houston DWI Cops Drawing Blood - Is the training adequate?

The Houston Police Department hoped to have police officers certified to draw blood; however, there have been delays because several of the officers have not had proper vaccinations.  Before training to become phlebotomists, the officers must first become current with their vaccinations.

The training these officers will undertake is less than what is required by a nurse or doctor to draw blood.  The government does not seem to be phased by this reduced blood draw requirement.  I am, however, concerned about the police drawing our citizens blood.  Now we are learning that the police will receive less training than a nurse or doctor on the procedures for drawing blood from a misdemeanor DWI suspect. 

How about this for an idea - get a qualified doctor, nurse or phlebotomist tot draw our blood - not a cop!  There are certain things I want only a health care professional to do and drawing my blood is one of those things.  Just like I don't want a doctor, nurse or phlebotomist making arrests, I don't want a cop sticking a needle in me.

Conroe Police Officer Indicted for Tampering in DWI Arrest - Is There a Pattern?

Remember the Conroe Police Officer – Mark Goodman - that was indicted for tampering with a government record in a DWI case? Well, as it turns out, Mr. Goodman recently arrested one of our clients for felony DWI.

Through the course of our investigation, we get a copy of the offense report and the video tape from the night of our client’s DWI arrest. Guess what? In spite of what the officer writes in his report about the field sobriety tests, client looks perfect on the video. Additionally, when Goodman asks client if he has had anything to drink, client replies that he has not had anything to drink. Not surprisingly, Goodman falsifies this in his report and writes that client admits to drinking.

It seems that the indictment against Goodman may have been a long time coming. I will say it again, good for the Montgomery County District Attorney’s office for taking a stand and saying in effect, “we will not stand for lying cops.”

All we ask as criminal defense lawyers is that we have a level playing field and that everyone plays by the rules.  Actually, when you think about it, don't we all want that in our criminal justice system.  I think we all want everyone to tell the truth, right?  We all expect OUR government to play by the rules, right?  Even in DWI cases, right?

Texas Court Holds Blood Draw Violates 4th Amendment

Finally, a Texas court has said enough is enough when it comes to drawing a person's blood in a Texas DWI case.  The 2nd Court of Appeals affirmed the decision of the trial court to suppress the blood draw pursuant to a warrant.  The case summary from the 2nd Court of appeals states:

Although some of the trial court’s conclusions of law supporting its suppression of Appellee’s blood test results in this DWI case were erroneous or unnecessary, the trial court did not err in its ultimate conclusion that the manner in which police took Appellee’s blood was unreasonable under the Fourth Amendment, considering the totality of the circumstances. Here, after obtaining a warrant for Appellee’s blood, which Appellee conceded was valid, a trained officer drew Appellee’s blood in private at the police station (assisted only by the arresting officer) after restraining her to the blood draw chair with gauze, failed to ask for any prior medical history or issues, and failed to check on her condition afterward. Moreover, the police department did not have any guidelines for officers to follow in the event a suspect resisted such a blood draw, which Appellee did here. Although the United States Supreme Court’s decision in Schmerber v. California does not require blood draws to occur at a hospital, it does hold that such a bodily intrusion should be performed in a reasonable manner so as to minimize the risk of infection and pain from the procedure.

The Court said that just because you have a warrant to take a Texas DWI suspect's blood, that is not the end of the inquiry.  Because we have this little document called the United States Constitution, the government must not only have a warrant.  The State of Texas must also execute that blood warrant in a reasonable manner.

Conroe Police Officer Indicted for Tampering with DWI Offense Report

The Montgomery County District Attorney's office has indicted a Conroe police officer for tampering with a government record.

The indictment accuses Conroe policeman Mark Goodman of falsely stating that a person he charged with Driving While Intoxicated refused to perform field sobriety tests. The defendant was charged with DWI.

It is a new day in law enforcement when police officers are held accountable for arresting someone and then lying in their reports about that DWI arrest. Rarely is anything done to police officers that just flat our lie in their reports. Even when there is video evidence that the officer's report is wrong, there is rarely any repercussions for the officer.

Let's not forget that these reports have a serious long term impact on people's lives. Even if the case is ultimately dismissed, the client is still arrested, taken to jail, forced to pay money to make bail and hire a lawyer. Good for the Montgomery County District Attorney's office for protecting the rights of the citizen accused and holding a police officer accountable.

Dumbest Criminals - Drunk Driver Arrested after calling 911 on herself

A Wisconsin caller dials 911 to report a drunk driver - the conversation with dispatch is a s follows:

     Caller: Somebody's really drunk driving down Granton Road."

     Dispatch: Okay are you behind them, or...

     Caller: No, I am them.

     Dispatch: You am them?

     Caller: Yes, I am them.

     Dispatch: Okay so you want to call and report that you’re driving drunk?

     Caller: Yes.

Dispatch then asked the caller to pull over and turn the car off, which she did.  Police officers arrive and arrest the caller for Driving While Intoxicated / Drunk Driving.  According to reports, the caller's breath test was over twice the legal limit.

As Jamie Spencer points out, let's hope she gets credit from the prosecutors for "doing the right thing."  Knowing the system and how it works, I doubt the prosecutors will give her any credit for doing the right thing.