Next week I'm headed to Gas Chromatography school held at Axion Chromatography Labs in Chicago, IL.  It is an extremely intensive course with less than 70 graduates thus far across the country.

So why am I spending a fortune on this course and wasting a week in Chicago in a freezing cold lab?

I'm still pondering the answer, but it seems like necessary training in this DWI blood test world.  Gas Chromatography is the technique used to test DWI blood for alcohol concentration.  In the past attorneys focused on the "science" (and I use that term lightly) of breath testing machines and standardized field sobriety tests.  Personally I am already a certified Instructor in Field Sobriety Testing -- I can teach the course that certifies the police officers.  But when it comes to blood testing, I have no certification. . .  Yet.

Studying blood testing methods is the next obvious step.

Part of the reason I want to go is because of the obvious anomalies I've seen in our existing DWI cases.  We have had cases where it was obvious that there was a problem with the blood testing.  And juries have agreed.  One case in particular I can remember, the client was almost three times the legal limit.  Yet she was walking fine, talking fine, and asking normal questions.  Clearly there was a problem with that test.

High error rates have been discovered for Austin PD blood tests in DWIs already. Houston's crime lab has come under criticism as well. 

The class gives hands on training to attorneys and other professionals experience working on chromatography instruments such as the modern Agilent 6890 instruments with capillary columns and the latest Agilent Chemstation data systems (whatever the heck that is). Admittedly I cut and pasted that last portion from the registration materials.

The Class is taught in part by Harold M. McNair, author of Basic Gas Chromatography the best selling Gas Chromatography book in the world (translated into many different languages. Other instructors include Dr. Lee N. Polite, B.A., M.B.A., Ph.D. (pictured), Lew Fox, Justin J. McShane, Esq, and Josh D. Lee, Esq.

I've been to tons of blood test seminars.  But hearing a Ph.D or attorney drone on about testing procedures can be quite boring.  I think the only true way to learn this information is hands on in a lab setting such as this.  At the very least I should get some cool photos of me in a lab coat.

Our office already has 2 Intoxilyzer 5000 machines.  Maybe next we'll need to invest in our own GC instruments...

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This year's republican judicial primary had a recent "surprise twist." One of the candidates, James Mosser, switched races from the 380th (with a crowded field) to the 401st.  The 401st District Court was not an open bench, but rather it is presided over by Judge Mark Rusch.  This years election will be held during the May 29, 2012 Republican Primary.

The 401st District Court is a general jurisdiction court.  It hears Family Law matters (divorces, child custody cases), Felony criminal matters, and civil matters.  The court was created in 2000 at which time Judge Mark Rusch was appointed.  He has presided as the sitting judge since then.  He has been re-elected twice, although I do not believe either time was contested.

MARK RUSCH 

Mark Rusch began his 12 year tenure with the Collin County District Attorney's office in the summer of 1984, rising to the level of chief felony prosecutor. In 1989 he became Board Certified in Criminal Law by the Texas Board of Legal Specialization. During his time as a prosecutor, he tried cases ranging from traffic violations to capital murder.

Judge Rusch ran for judge of the newly created County Court at Law #4 bench and won the election in 1996. He presided over misdemeanor criminal cases, civil and mental health matters. He was appointed by then Governor George W. Bush to the newly created 401st District Court and took that office on September 1, 2000.  He has presided over the court since that time.

"I believe a judge's role is to interpret the law, not to make the law. In 15+ years of service on the bench, I have never wavered from this position and I never will. I respectfully ask for your support in the May 29, 2012 Republican Primary Election."

More about Judge Mark Rusch can be found on his campaign website at www.markrusch.org

JAMES MOSSER

James Mosser has practiced law in private practice for 18 years. During that time he has handled complex civil litigation, family law, and criminal defense.

Mr. Mosser is a self described " Navy brat" and attended more than 17 different schools before graduating from high school. He began college in Japan, before transferring to the University of Texas in Austin. At UT he participated in Navy ROTC, and upon graduation he was commissioned as an Ensign in the United States Navy.

James flew many combat missions in Vietnam, and he is qualified on both fixed-wing and rotary aircraft.  After flying several fixed wing aircraft, and carrier qualifying, he completed helicopter transition and obtained my Wings of Gold.  During his service he spent a year in Vietnam as an aviator and member of the elite Navy Seawolf Squadron (HAL-3). Flying nearly a combat mission a day that year in Light Attack Helicopters mostly supporting SEAL teams, and Riverine Patrol Boat Operations on the Cambodian-Viet Nam Border.

After his honorable discharge in 1973, James embarked on a  series of careers ranging from financial analyst to restaurant management to aircraft sales and leasing. All leading up to his eventual ownership of his own law firm.

"I realize I may be a little late into this race. I have lived my life and conducted my career with the expectations to prepare myself to one day serve the courts like many great men and women I have known over the years."

More about James Mosser can be found on his campaign website at www.mosserforjudge.com.

 Hunter Biederman is a DWI / Criminal Defense Attorney in Collin County. He publishes his blog (www.friscodwilawyer.com) which focuses on the Collin County and Texas legal system. He can be reached at friscolaw@gmail.com or (469) 333-3333.

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Looks like Dallas is jealous of Collin County's Shenanigans.  We all know that Collin's DA indicted and convicted a judge here.  Now Dallas wants to get in on the action.  Below is the article of the Dallas DA trying to charge a Dallas Judge.

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Dallas County DA seeks to indict judge for official oppression

By JENNIFER EMILY
JENNIFER EMILY The Dallas Morning News

The Dallas County district attorney’s office is seeking an official-oppression indictment against a sitting judge after a prosecutor was held in contempt and detained in a courtroom for several hours.

Prosecutors contend in a letter to Criminal Court Judge Julia Hayes that she broke the law. But her attorney said the district attorney’s office is retaliating against the judge.

“The real official oppression here is the DA’s office trying to intimidate this judge by issuing her a subpoena, trying to get her to testify in front of a grand jury,” said J. Michael Price II, who represents Hayes. “This whole thing is a circus.”

District Attorney Craig Watkins said Tuesday that he would not talk about whether there is an investigation and called it “unfortunate that an officer of the court would characterize anything that we do with this administration, in this office, as retaliation.”

Both Watkins and Hayes are Democrats. Hayes is in her first term as a misdemeanor court judge and Watkins is in his second as district attorney.

The escalating legal feud follows Hayes’ ruling Thursday that a prosecutor was in contempt of court for disregarding her order to conduct a criminal background check on police officers who were to testify in a domestic case in her court. The district attorney’s office believes such searches are illegal, insisting that federal law prohibits giving the information to defense attorneys.

Hayes said she wanted to inspect the records to determine if the defense was legally entitled to any information. Prosecutors are required to give the defense any evidence that could help the defendant. A criminal record of a police officer involved in the case could fall into that category.

Hayes a short time later on Thursday suspended the contempt order against prosecutor Keena Miller after meeting with Watkins. She set a hearing for the next day. Lawyers held in contempt are entitled to a hearing within 24 hours before another judge.

But early in the morning, representatives of the district attorney’s office served her a subpoena and ordered her to appear before the grand jury at 10 a.m. Hayes was given a letter from Watkins saying she was a target of an investigation.

“Please be advised that there is now pending before the Dallas County Grand Jury an investigation of Official Oppression, where you are the person accused of the crime,” Watkins wrote on the district attorney’s office letterhead.

“This letter is to advise you that it would be in your best interest to retain the services of an attorney,” it states. “If you do retain the services of an attorney, he or she may contact our office to discuss the allegations with the Dallas County District Attorney, Honorable Craig Watkins or his designee. We will not discuss the facts of the case with you over the telephone.”

The letter also tells Hayes: “You have the right to remain silent.”

Hayes said in an interview that the timing of the investigation was questionable.

“I find it peculiar that I was served with a subpoena at 9:40 a.m. ordering me to appear before the grand jury at 10 when I was scheduled to rule on my contempt consideration at 11” the same day, Hayes said.

The subpoena of Hayes was quashed by state District Judge Carter Thompson, a felony court judge, after Price objected, citing that his client needed time to prepare for an appearance, that the district attorney’s office is supposed to represent her on legal matters and has a conflict, and that the “subpoena appears to be in retaliation for rulings made in court.”

The district attorney’s office has asked Thompson to reconsider his decision. A hearing has been scheduled for later this week in Thompson’s chambers. That hearing is not expected to be public.

The district attorney’s office, meanwhile, has appealed Hayes’ order to do the criminal background checks, and there is no timeline for the appellate court to rule.

The district attorney’s office has asked that all records of the proceedings in Thompson’s court be sealed from public view because they relate to grand jury proceedings, which are typically secret.

The Texas Penal Code defines official oppression, in part, as public servants using their offices to “intentionally subject another to mistreatment or to arrest, detention.” It is a Class A misdemeanor, punishable by up to one year in the county jail and a $4,000 fine.

Because official oppression is a misdemeanor, prosecutors are not required to present the case to a grand jury. They could just charge Hayes.

“Because I am being investigated for a criminal act, I fear that I could be arrested at any time,” Hayes said. “Judges shouldn’t have to live in fear when we’re just doing our jobs.”
 

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Fox 4 News had an interesting story on the front license plate law.  The law has always been that you have to have a front and back license plate on your car.  Other states, however, only require a back plate.

Some people don't know about this law, or purposely defy it because they don't want to drill holes in their front bumper.

Time and time again, I have seen local police use this as an excuse to pull people over to see if they have been drinking.  Its one of the may little traffic laws that law enforcement use as a pretext to stop a car when they are only looking for drunk drivers.

Well, based on some mishaps in Austin, it looks they missed this one.  Below is the story:

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Texas Lawmakers Accidentally Omit 2 License Plate Law

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Well, there's a new law in town, and the local police and District Attorneys are already pushing it hard. Its a DWI with a breath or blood alcohol level of .15 or more.

The amended text of Penal Code 49.04 reads:

(d) If it is shown on the trial of an offense under this section that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0/15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.

So now if you were facing a regular DWI the punishment range was 72 hrs in jail - 180 days in jail, or a term of probation not to exceed 2 years.  The new DWI +.15 punishment range is 0 days in jail - 1 year in jail, and a term of probation not to exceed 2 years.

MADD pushed hard for this, and our legislators folded as usual.  But here's the funny part....

This new crime will decrease the amount of convictions, and decrease the punishment for offenders!

What???

Here's why -- first of all, no first time offenders go to jail on a DWI 1st.  Therefore, since the length of probation is the same, the underlying jail sentence doesn't change anything.  If someone were to go to jail on a DWI 1st, it most certainly wouldn't be for a length over 6 months anyway.  

Decrease In Punishment Step ONE

Less people would be inclined to provide a breath or blood test. This is the same effect that the surcharges have had on poeple arrested for DWI.  If you do not give a breath or blood test, you cannot be charged with this "higher" level crime -- so why do it?  Refuse, Refuse, Refuse ! !

Decrease in Punishment, Step TWO

This actually LOWERS the minimum sentence for DWI.  Before, the minimum was 72 hrs in jail up to 180 days.  With this new law, the range is 0 days in jail, up to 1 year in jail.  Therefore, a prosecutor can give a $1 fine, and 0 days in jail. 

So there you go.  The new "tougher" crime effectively lowers the punishment range and decreases the chances of a conviction for the state.  Congratulations MADD.  You win again.

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Recently, I was in contact with Michael Salas, a licensed counselor.  He had read my article, Substance Abuse Evaluations (SASSI) in DWI cases, which is one of the highest read pages from my blog.

He wrote an article about the other side of substance abuse evaluations -- they way they should be done.  Objective Substance Abuse Evaluations is the title and I've included the text below:

________________________________________________________________

Objective Substance Abuse Evaluations

I recently read something on a local attorney’s blog that was disturbing to me. This was that some counselors who were evaluating clients were making recommendations based on one screening instrument alone. Thus, I thought it was important for me to write about completing a comprehensive substance abuse interview, evaluation, and report. Making an objective assessment on a person you spend an hour or two with is a difficult task, and I do not pretend to get to know the whole person in that timeframe. Also, I take care not to diagnose something that I am not sure of, because like it or not, a diagnosis is a label. I understand the need in our current state of counseling to have labels, but it is a label nevertheless. I would not want a label that I did not think was attributed to me, and I would not expect that a client would want an inappropriate label either.

There are ways for you to be sure that you are having an objective substance abuse evaluation completed. For an objective assessment and evaluation to be completed, you should be completing a fair amount of paperwork prior to the evaluation. I tell clients to expect to spend about an hour completing preliminary paperwork for the evaluation, and then another hour interviewing with me after this. The evaluation should be comprehensive, in my opinion, and not only focusing on your alcohol or drug use history. Ask if the format that is used is comprehensive. Two well known formats for this interview process are the ASI for adults and CASI for adolescents. The reason that you want the assessment to be comprehensive is because you can then take greater comfort in that the counselor is likely trying to see the whole picture and is less likely to jump to conclusions based on your alcohol and drug use history alone.

It is also beneficial to ask if the interviewer is using a computer-based report writing system. Using a computer-based system should not disqualify or deter you from having your evaluation completed by that person, but it does cue you to ask a couple more questions. If they use a computer based system, do they edit the automatically generated report? I have used computer-generated reports, but they should only be used as a skeleton. Those reports alone are incomplete at best. I have yet to complete an evaluation that was generated by these report-writing systems that did not need some editing to accurately reflect the person and his/her situation. It is also beneficial to ask if there are any other sources of information that will be included in the report. For example, it is my policy to ask for at least two collateral contacts to put into the report, include several screening instruments into the report, and to include barriers to treatment recommendations for clients as needed.

Over time, I have found that some clients are worried that a counselor is simply recommending something so that they can get the business themselves. This is an understandable concern. This is when it is important to understand the rational behind the recommendations. For example, at the end of an evaluation, I will tell a client of a range of what I will recommend for treatment. I give this range, because I have found in the past that if I give a specific recommendation at that time, and then contact collateral contacts and obtain new information, and the recommendation changes, the client is confused, upset, or feels lied to. At this time, I explain rationale for decisions being made. If a client has been in treatment recently, then that same level of care is less likely to be recommended. If a client has participated in several groups, and is again having troubles, then individual treatment is maybe more appropriate. If there have been multiple failed attempts of having no problems in an outpatient setting, then residential treatment may be necessary. There are many situations and scenarios that can make up a recommendation on an evaluation. One widely recognized recommendation determination tool is using ASAM ratings. This helps a counselor determine, which client is appropriate for which setting. But even this is not an end-all solution to making an appropriate recommendation.

Finally, the best recommendation I can give you is be open and honest. Sometimes people are honest, but not necessarily open. For example, if you go to the doctor and your knee has really been bothering you, but you are not in a place where you are wanting surgery or to be unable to work, you might not tell the doctor all of the information in hopes that this will change the recommendation. The only problem is that you are more likely to get a higher level of care recommended if you are not open. It is much easier to write a recommendation for someone for the least restrictive setting if they are open in an interview.

As you can see by the above information, writing a recommendation for a client objectively is a difficult task. There are ways, though, to determine if a counselor is writing an objective report. By asking the counselor how comprehensive the report is, how they generate their reports, and how open they are with you about the recommendations, you will be able to take greater comfort in the fact that your evaluation is objectively written to best reflect your current situation and needs.
 

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It was a sad day in Collin County. Yet another innocent person was convicted of a crime based on circumstantial evidence and the testimony of an admitted felon and child molester. On Friday, Judge Suzanne Wooten was convicted of 9 counts of bribery, money laundering.  Judge Wooten allegedly took money in return for a promise to give favorable rulings.

I guess I shouldn’t be surprised. In a county and era notorious for overzealous prosecution, observers might already be hardened to the notion of innocent people being convicted of crimes. 

- Nationally there have been 280 DNA exonerations.

- In Texas, 41 innocent lives have been exonerated from wrongful convictions due to DNA testing.

- In Collin County, even the Supreme Court says its OK to have the Judge and the prosecutor in a sexual relationship together during the prosecution of a capital murder.

A Lack of Substantial Evidence

Part of why I was surprised of this conviction is because I thought there was no way a guilty verdict would ever come from this case. I sat through parts of the trial and never saw any evidence that even remotely pointed towards guilt. 

The theory of the case was an odd one to me. In a county where no incumbent judge had ever been defeated, supposedly someone was willing to “bribe” a lawyer to unseat a judge, and reverse rulings already made on their case. The theory was further removed from reality considering Judge Wooten removed herself from the case and never made any rulings that aided the briber.

The prosecutor’s theory (an Assistant Attorney General brought in “AG”) was quite close to the plot of John Grisham’s The Appeal, where a Mississippi Supreme Court justice is pushed to the court to hopefully overturn a big corporate jury verdict. In the book, however, the judge to be didn’t know of the reason he was being placed on the court.

But the fiction in this case became hard reality for Judge Wooten. She now faces up to 20 years in prison. Along with the possible prison sentence she is also subject to the convicted felony tag, the loss of her job as a judge, and probable loss of her law license.

The AG’s theory of the case is that it didn’t matter if the Judge made the favorable rulings or not – the bribe was committed on acceptance of the offer. I guess that is true in theory. I offer to pay an elected official for some favor, they are guilty when they take the money, not when they do the favor. 

But a closer look at that idea would show that if the bribed person didn’t do the favor in return for the bribe, then it most likely wasn’t a bribe anyway. The briber in Wooten’s case certainly got screwed out of their $150,000 considering the bribed judge refused to even hear the case much less make favorable rulings.

A Lack of Faith in the Prosecutors

When I was a prosecutor in Collin County, nobody ever asked me how many innocent people I thought I convicted. As a defense attorney, I am constantly asked how many guilty people I get off. The general public perceives the greater “wrong” to be a guilty person getting away with a crime, not an innocent person getting convicted.

“It is better that ten guilty persons escape than that one innocent suffer" ~William Blackstone, c.1760’s

Although not asked about convicting innocent people as a prosecutor, I thought about it during and after my prosecuting career ended.  The stock answer in my mind was that I never convicted anyone.   They either pled guilty, or a jury convicted them – never me.

My suspicion is that the AG in the Wooten case feels the same way. A jury convicted Wooten – not him.   Furthermore, the jury’s verdict justified this prosecution. 

Except this AG had even more to gain from a guilty verdict. This verdict cleared his name in an FBI investigation against him.   The problem with this outcome is that this prosecution could have been pushed forward out of a hope to clear his name – not for a prosecutor’s stated duty of seeing that justice be done.

Art. 2.01. It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. 

At one point the current Collin County District Attorney tried to intervene and take the case back out of the hands of the AG. This was fought by the AG and eventually overruled by the visiting judge.

If a new, uninterested prosecutor were assigned to the case, the outcome might have become more reliable, and easier for me to believe.

Political Overtones

Much of the lack of faith in the conviction also comes from the political overtones in this case. An ousted republican incumbent judge, upset at a perceived Democratic challenger that smelled of “RINO.” (Republican In Name Only).   She was referred by the ousted judge as “active in the Democratic party.”

So here we have it, an AG working for the Republican elected AG’s office, prosecuting a perceived Democrat. If the undertones weren’t enough, during the trial the prosecution politics a focal point of their case. Questions were asked of how many Republic events Judge Wooten attended before running.  Not exactly subtle.

It had always been a joke that its illegal to be a Democrat in Collin County. Unfortunately this trial brings the joke into possible reality.

In The End . . .

In the end I am saddened by what seems on all accounts as yet another innocent person being convicted of a crime. If there was any chance at the public having faith in the jury’s verdict, it was lost a long time ago in the face of the overwhelming politics that plagued this case.

 Hunter Biederman is a DWI / Criminal Defense Attorney in Collin County. He publishes his blog (www.friscodwilawyer.com) which focuses on the Collin County and Texas legal system. He can be reached at friscolaw@gmail.com or (888) DWI-FRISCO.

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With the upcoming retirement of District Judge Robert Dry in the 199th, candidates have begun their preparations for seeking the Collin County District Bench.  So far, I have received two mailers from attorneys seeking the bench.  As new candidates pop up, I will add them here once I receive solid information that are running. ("Solid Information" generally means a public website or candidate contacting me directly)

ANGELA TUCKER                        

Angela Tucker has practiced civil, family, and criminal law. After spending four years as an Assistant District Attorney in Collin County, she opened her law office and currently is a solo practitioner at Angela M. Tucker, PC.

Mrs. Tucker has stated in the past she is, "committed to representing the people of Collin County by serving as the next [Judge]. To maintain high legal standards, it is imperative that we elect judges who have a strong work ethic, high moral standards, and diverse experience.”

Mrs. Tucker lives in McKinney with her husband James and two children.

Mrs. Tucker's campaign website can be found at www.angelatuckerforjudge.com

SHARON RAMAGE 

Sharon Ramage has been licensed to practice law since 1992. As a former social worker, Ms. Ramage has practiced law in many areas specific to protecting children since that time. From 1992-1997, Sharon served as an Assistant Criminal District Attorney in Tarrant County, and was assigned to the Crimes Against Children Division from 1995-1997.

After resigning from the District Attorney’s Office, Ms. Ramage opened a private practice in Tarrant County, where she practiced special education law and family law. Since 2000, Ms. Ramage has worked in private practice in Collin County, primarily in the area of family law and adoption. Since 2003, she has also served as a Special Education Hearing Officer and Mediator for the Texas Education Agency, conducing special education due process hearings and mediating disputes between schools and parents.

“The totality of my experience -- criminal prosecutor, defense attorney, appellate attorney, family law attorney, mediator and hearing officer -- has prepared me for this position,” Ramage said. “I welcome this challenge and recognize the hard work that lies before me in seeking this position, as well as in the hard work and diligence required of the Bench.”

Sharon is married and the mother of two children adopted from China.

More information about Sharon can be found on her facebook page, Sharon Ramage for Judge.

BOB DRY

Son of retiring judge Robert Dry, Robert Dry, III (Bob) has also announced his intention to run for his father's bench through a facebook page.  

Mr. Dry Robert T. Dry, III joined the firm Gay, McCall, Issacks, Gordon & Roberts, PC, in 2005 upon graduation from South Texas College of Law. He practices Civil Litigation with the firm.  He was born and reared in Plano and is a graduate of Plano Senior High School and SMU.

www.dryforjudge.com

 Hunter Biederman is a DWI / Criminal Defense Attorney in Collin County. He publishes his blog (www.friscodwilawyer.com) which focuses on the Collin County and Texas legal system. He can be reached at friscolaw@gmail.com or (888) DWI-FRISCO.

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Drunken moose ends up stuck in Swedish apple tree

(CNN) -- It was a dark, windy and rainy night when Per Johansson returned from work to his home in Saro just south of Gothenburg, Sweden.

"It was raining really bad. In the wind I heard something screaming with a very dark voice," Johansson told CNN. "At first I wondered if it was the crazy neighbors, but then I heard it again and went and checked. I saw something really big up in a tree in my neighbors' yard and it was a moose. It must have been drunk after eating fermented apples and as it was reaching out for more fruit it must have slipped and fallen into the tree."

Johansson called the local fire and rescue department, which responded with a fire engine and a jeep with a winch.

"We got the alarm at 9.59 p.m. on September 6 that a moose was stuck in a tree," said Anders Gardhagen, spokesman at the Gothenburg Fire and Rescue Services.

"When we arrived we used the winch to bend down the apple tree so the moose could get himself out of the tree. Once free, the moose collapsed on the ground and fell asleep. So we let him sleep it off and went back home" Gardhagen told CNN.

"Moose are attracted by the apple trees, and in the autumn when the apples have fallen off the trees we normally have at least one of these cases of intoxication. These apples, which ferment in their bellies, aren't part of their natural food, so they can get quite angry from this drunkenness," Gardhagen said.

Johansson's son, Gustav, who is about to turn 11, made sure to take lots of pictures of the ordeal.

"He is saving up to buy a PlayStation so he thought he would take pictures that he could sell," Johansson said.

CNN purchased three of Gustav's pictures.

When dawn came the day after it was freed from the tree, the moose had not yet left.

"When I went out for the newspaper it was still laying there on the ground, sleeping. By the time I left for work it was walking around the neighbor's yard on very shaky legs." Johansson said.

"Today the moose came back and walked around the yard," he added. "I think it likes it here."

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