http://www.billmangelaw.com/index.php en bill@billmangelaw.com Copyright 2010 2010-02-21T22:52:33-06:00 http://www.billmangelaw.com/index.php/weblog/austin_criminal_lawyer_and_dwi_attorney_blogs_secret_evidence_just_doesnt_s/ 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. 2010-02-21T22:52:33-06:00 http://www.billmangelaw.com/index.php/weblog/teens_deserve_another_chance_on_dwis/ 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.” 2010-02-09T18:45:42-06:00 http://www.billmangelaw.com/index.php/weblog/austin_dwi_attorney_and_criminal_lawyer_blogs_police_shouldnt_detain_you_ba/ 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.  2010-02-07T19:13:36-06:00 http://www.billmangelaw.com/index.php/weblog/austin_dwi_lawyer_and_criminal_law_specialist_blogs_the_police_know_the_dri/ 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.  2010-01-09T16:43:04-06:00 http://www.billmangelaw.com/index.php/weblog/austin_criminal_lawyer_and_dwi_attorney_blogs_defang_those_blood_hungry_pol/ 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, 2009-10-23T20:41:40-06:00 http://www.billmangelaw.com/index.php/weblog/austin_criminal_attorney_dwi_lawyer_blogs_avoiding_excessive_force_on_grand/ The County Commissioners used poor judgment in refusing to supply the Constable of Precinct 3 with all the requested video cameras.  Their reasoning appears to be that the deputy constables are not peace officers who are “equal” to the Sheriff’s Deputies and that their main job is to serve papers involved in legal proceedings.  Their thinking is faulty for several reasons.  First, whether the Commissioners like it or not, Constables and their deputies are in fact Texas Peace Officers.  Texas Code of Criminal Procedure art. 2.12(2).  Though it’s true that Constables spend much of their time serving process, including protective orders, they are Peace Officers nonetheless.  They wear badges, carry guns, and yes, tasers.  They have all the lawful authority to arrest that Sheriffs and their deputies have.  That includes DWI arrests.  If the Commissioners don’t like that law, they should contact their state legislators, not cut funding.  2009-10-20T22:19:24-06:00 http://www.billmangelaw.com/index.php/weblog/austin_criminal_lawyer_and_dwi_attorney_blogs_which_county_is_smarter_and_w/ The story goes that Williamson County is tougher on crime than is Travis County.  As my former boss, Ronnie Earle used to point out, “tougher on crime” doesn’t necessarily mean “smarter on crime.” Mr. Earle’s point was that when possible, prosecutors should take steps to prevent crime, not just prosecute a Defendant after he’s been accused.  It’s a point well taken.  The smartest law enforcement—including prosecution—is one that keeps crimes from occurring at all.  There’s nothing wrong, obviously, with law enforcement picking up the pieces after a crime has occurred, investigating crimes, catching wrong-doers, and turning them over to prosecutors.  But it is just flat smarter to prevent crime altogether.  And in fact, Williamson County is smarter on crime than Travis County is, when it comes to some first offense DWI cases.  In Travis County, on a first time DWI case, if the prosecutor can prove that you were driving while intoxicated, he or she will press hard—be tough—to get a conviction.  No pre-trial diversion.  Period.  2009-10-09T15:32:25-06:00 http://www.billmangelaw.com/index.php/weblog/austin_criminal_lawyer_and_dwi_attorney_blogs_how_can_you_represent_murdere/ A question I sometimes hear is: “How Can You Represent Murderers, Child Molesters, And Drunk Drivers?” This answer, though poor, is the best I can give.  First of all, I love criminal law.  It is the most important area of law I can think of, and the most fun.  I love trying cases.  I love getting our criminal system to creak along in the direction of justice a little better.  I love getting good results for clients.  I represent people who, for many different reasons, find themselves on the wrong side of the law and need a guide and an advocate to help them navigate the dangerous waters of the criminal justice system.  Now, I didn’t just decide one day that I didn’t like the color of the walls at the Travis County District Attorney’s office and quit to enter criminal defense practice.  Deciding to defend the accused was an emotional and spiritual journey for me.  The journey turned on ethics, law, and God.  2009-10-05T00:43:33-06:00 http://www.billmangelaw.com/index.php/weblog/austin_criminal_attorney_blogs_when_would_you_want_a_1244a/ This blog is the second of two about section 12.44 of the Texas Penal Code.  If you had to accept either a 12.44(a) and a 12.44(b), then it’s probably obvious that you would prefer a 12.44(b) over a 12.44(a).  But then, it’s probably equally obvious that except for very unusual circumstances, you probably won’t be offered a 12.44(b).  So the question isn’t which would you prefer.  The question is: under what circumstances would you want to accept a 12.44(a)?  Here are some factors that would make the difference between accepting and declining an offer for a 12.44(a).  The most common is if you already have been locked up for a while and you’ve been getting 2 for 1 credit or 3 for 1 credit and you know the State’s case is fairly strong.  In that case, a 12.44(a) might look pretty attractive, since it can get you out of jail faster.  Another factor would be pre-existing criminal history.  2009-10-02T23:14:24-06:00 http://www.billmangelaw.com/index.php/weblog/austin_criminal_lawyer_blogs_what_is_a_1244a_and_how_is_it_different_from_a/ Austin Criminal Lawyer Blogs: What is a 12.44(a) and how is it different from a 12.44(b)? If you’re charged with a State Jail Felony, you may have heard about a “12.44(a)” and how good it is.  Well, let’s talk about that.  First of all, “12.44” refers to a section in the Texas Penal Code.  Section 12.44(a) says that “a court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A Misdemeanor … if the court finds that such punishment would best serve the ends of justice.” In other words, if you get a 12.44(a), you still get convicted of a State Jail Felony, but you serve misdemeanor time in a county jail instead of a State Jail.  The difference between county jail time and State Jail time is a big one.  Suppose you don’t get a 12.44(a) and the agreed upon amount of time is 180 days in the State Jail facility.  Unlike county time, which is often served at “two for one,” State Jail time is served on a “day for day” basis.  A day is calculated this way.  After the sun comes up in the morning and goes down in the evening, you have credit for 1 (and only 1) day.  After 179 more of those days go by, you can get out of the State Jail.  2009-09-30T20:01:03-06:00