Not too long ago I posted comments about my clients illegal stop and arrest.  Now it seems that the Deputy has been sanctioned by the Sheriff's department.  Below is the the video with comments from me on WFAA Channel 8. 

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Last night, WFAA's David Schechter ran a story featuring myself and my client after an obviously illegal stop and illegal arrest.

In order for the police to stop and detain someone, they must have "Reasonable Suspicion" that a crime has occurred.  This can, of course, include traffic offenses.

But in this case, it is quite clear there was no reasonable suspicion that a traffic offense was committed by my client.  The video shows as much.  This is confirmed by the police officer, who, in response to my client asking why he was pulled over, states:

The reason you're being pulled over is because I'm gonna take your camera and we're gonna use it as evidence of the crimes that have been committed by other bikers.

Obviously stopping someone because of crimes committed by others is not legal.  If everyone that took video of others were a crime, everyone at our local news stations would already be in jail.

The other major issue here, is the obvious "creation" of a crime: the obstructed license plate charge.

Texas law states that you may not have "a coating, covering, protective substance, or other material... that [distorts or alters] the plate."

Here, the video clearly shows that no coating, covering or protective substance is covering his license plate.  So even if this were the reason he was stopped (which the officer clearly denies in the video), he was not committing a traffic offense.

This story has been commented on, and a question that came up often has been on the issue of arresting someone for a minor traffic offense.

An officer does have the option to arrest or issue a citation on pretty much any charge, this included.  So if this were a valid charge, he would be allowed to arrest. But that of course is only if the charge is valid.

Since the video aired, the Sheriff's office has release video from a different officer, showing different bikers committing traffic offenses.  I'm still not quite sure what this has to do with our case.  

What this video show us, is that:

1. They already had video evidence of other people committing crimes, thus lowering the need to illegally stop and arrest Mr. Moore. And;

2. The Dallas Sheriff's Office should be arresting the other bikers they already knew were committing crimes.

The video release by the sheriff's office simply furthers our point -- Mr. Moore should never have been pulled over, much less roughed up and arrested.

Mr. Moore would like to thank everyone involved with helping to bring this case to light, and the outpouring we have received thus far.

 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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Each year, the Collin County Bench Bar Association awards a Litigator of the Year Award.  This year I was honored to receive the 2012 Litigator of the Year award which was presented at the Bench / Bar Conference.

Two categories of the award are given, County Court Litigator of the Year, and District Court Litigator of the Year.  Each of the local bar association nominates an attorney for the both the District and County awards.  The associations are the Plano Bar Association, Collin County Bar Association, Frisco Bar Association, and Collin County Young Lawyers.

At the conference, when the awards were announced, I was honored to hear that I was the only attorney nominated by each of the four bar associations for County Court Litigator of the Year. 

The award is a great honor and and reminds me how lucky I am to practice law surrounded by such great attorneys and judges.

A special thank you to the Bench / Bar Foundation for putting on such great programming and conferences each year. 

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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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