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600 W. 13th Street Austin, Texas 78701 Corner of West 13th Street and Nueces.

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Board Certified - Criminal Law - Texas Board of Legal Specialization

Criminal Law Blog

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February 21, 2010
If you were accused of murder, and they said your fingerprint was on the handle of the knife that stabbed the victim, you would have a right to have your own fingerprint expert witness look at the evidence.  Fair’s fair, right?  The prosecutor has his expert look at the evidence; you have yours look at the evidence.  If you were accused of sexual assault, and they said your semen proved it, you would have a right to have your own DNA expert witness look at the evidence.  Again, the prosecutor has his expert look at the evidence; you have yours look at the evidence.  If you were accused of murder, and they said ballistics evidence showed that your handgun was the one that fired the fatal shot, you would have a right to have your own ballistics expert witness look at the evidence.  Again, The prosecutor has his expert look at the evidence; you have yours look at the evidence.  Why is it then, that the manufacturer of one of the “breathalyzer” machines, the Intoxilyzer 5000EN (and the one we use in Texas) refuses to turn over the source code over to the State of Minnesota?  Click this link to see a Feb. 19, 2010 news story about this. ... |more|

February 09, 2010
Austin DWI Lawyer and Criminal Attorney Blogs: Teens Deserve Another Chance on DWIs In DallasNews.com, Ann Causby’s opinion blog “Teens Deserve Another Chance," rightly complains “Mothers Against Drunk Driving has lobbied to change our state driving laws for underage drunken driving.  These laws are now destroying teens’ lives instead of helping them.  “The laws in Texas now state that if you are charged with an underage DWI, [then] license suspension, probation, community service, fines and a felony charge are mandatory.  Deferred adjudication is no longer an option.  For teens, one bad decision results in a lifetime of punishment.  “On every application they fill out, these teens will have to put the felony charge, essentially ruining any chance of getting into a good college—or any college at all—or getting a good job.  “Deferred adjudication would have given teens a chance to grow up and accept [responsibility for] what they had done, and, by completing probation, community service, paying the fines and staying out of trouble, they could have the felony charge taken off their record.” ... |more|

February 07, 2010
Your criminal defense lawyer should be able to take probable cause affidavits in DWI cases apart, piece by piece.  The piece I want to take apart today is the part that says that the driver had a “strong,” “moderate,” or “faint” odor of alcohol on his breath.  If you’ve seen a probable cause affidavit, you’ve probably noticed that there are checkboxes for the officer to mark regarding the driver’s breath.  There is a paper entitled “Police officers’ detection of breath odors from alcohol ingestion” written by Herbert Moskowitz, Marcelline Burns, and Susan Ferguson.  Marcelline Burns is the government’s “go to” gal in putting together scientific papers that favor the Standardized Field Sobriety Tests.  If you want to read the paper, click here. The abstract to the paper says “[e]stimate of BAC [Blood Alcohol Concentration] level failed to rise above random guesses.  These results demonstrate that even under optimum laboratory conditions, breath odor detection is unreliable, which may account for the low detection rate found in roadside realistic conditions.  ... |more|

January 09, 2010
Just this week I’ve talked to two people who said they wish they had known not to submit to breath or blood tests.  One asked me: “why did I do this?  Why did I give evidence against myself?” I answered: “you were brought up the same way I was, to respect authority, to do what the police man tells you to do, to assume that the guy wearing the badge will treat you fairly.  The trouble is that nowadays, he won’t.” The best example of what you should do when the police ask you for a sample of breath or blood is the example the police themselves set.  Today the example I point out is that of a Westchester County, NY police officer who allegedly drove drunk and refused to submit to a chemical test, even after he ran a red light and hit a fellow law enforcement officer’s vehicle.  Did his fellow officers condemn his “poor example”?  No, they did not.  In fact, several officers escorted him to the court room in an apparent show of support.  They know they would have refused the test, too.  ... |more|

October 23, 2009
It is good to see that the City Council’s stand on needle-wielding police is against, not for police to also be authorized to take blood samples.  It’s a topic I touched on in a Blog I wrote more than 3 years ago, when the City of Dalworthington Gardens started permitting its officers to become trained to take blood samples from suspects of DWI.  The issue there was whether that city’s practice would lead to more lawsuits.  Frankly, it did not occur to me that public opinion would swing against anything that the police might do to enforce laws prohibiting DWI.  It’s a pleasure to see.  Maybe George W. Bush didn’t kill off the 4th Amendment after all.  But Mr. Bush left Chief Justice John Roberts behind, who will see to it that 4th Amendment rights are slowly strangled even further.  Strictly speaking, Justice Roberts’ view was that the U.S. Supreme Court should have reviewed Harris v. Commonwealth of Virginia, a Virginia decision holding that an anonymous tip alone, ... |more|

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