Matthew's Foray into Blogging

Wednesday, September 27, 2006

Learn Something New Every Day

In law school criminal procedure courses, students learn that the Fourth Amendment of the Constitution requires that police have “probable cause” to arrest, that is, facts that support that a person committed a particular crime. Law students also learn that police can make an “investigative detention” based on a lesser standard – “reasonable suspicion,” that is, facts and inferences that would lead a reasonable officer to believe that a crime is afoot. Additionally, all arrests must be reasonable, per the Fourth Amendment. If an arrest is made pursuant to a warrant, it is reasonable, but there are numerous exceptions to the warrant requirement.

Applied to a real-life scenario, this means that the police cannot randomly pull people over on the roads to determine whether they are Driving while Intoxicated. The authorities cannot even wait outside bars to pull over the patrons as they depart the drinking establishments. Rather, reasonable suspicion to stop must exist. Reasonable suspicion to stop amounts to a violation of a traffic law, such as speeding, or a license plate light being out. When the officer approaches the vehicle, and smells the strong odor of alcoholic beverage, notices the slurred speech, and the glassy, bloodshot eyes, the officer can administer standardized field sobriety tests, and ask the suspect to submit to a breath test (all of which the citizen can and should refuse). If the officer determines that the person is operating a motor vehicle in a public place while not having the normal use of mental or physical faculties by reason of the introduction of alcohol or any other substance into the body, or the person has an alcohol concentration of 0.08 or more, probable cause to arrest exists.

A useful statute for providing the reasonable suspicion is Texas Transportation Code § 545.060, entitled “Driving on Roadway Laned for Traffic,” which provides, in part, “(a) An operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely.” The officers will cite this variously as “Fail to drive in single lane,” “Fail to maintain lane,” “Changes lanes when unsafe,” or some variation thereof. Essentially, this is a means to make a traffic stop because a driver is weaving on the road. However, a Texas case that is a great boon to lawyers whose clients who are charged with Driving while Intoxicated exists: State v. Huddleston, 164 S.W.3d 711 (Tex. App.–Austin 2005). Huddleston holds that, essentially, weaving, by itself, is not sufficient. Rather there are two parts to the statute: (1) there must be a lane change, and (2) the lane change must be unsafe. At a suppression hearing n Huddleston, the officer testified that Ms. Huddleston never crossed the fog line (that solid stripe on the right side of the road) in an unsafe manner. The court held that witnessing Ms. Huddleston safely cross the fog line five times over a stretch of six miles did not give the officer a reason to suspect that she was unsafely failing to remain in a single lane in violation of § 545.060.

Following is what I learned most recently. We had a client who was charged with DWI. A Motion to Suppress was filed because the reason for the stop was nothing more than crossing the fog line. A suppression hearing was set. At a suppression hearing, the defense has the burden of proving that an arrest was made without a warrant. Thus, the defense has the first go at whatever witness it wishes to call, usually the arresting officer, in a DWI case. At the outset, the prosecution will offer to stipulate that the arrest was made without a warrant. Many defense attorneys will agree to stipulate that a warrantless arrest was made. At this point, the defense has met its burden. The burden shifts to the prosecution to prove that, although there was no warrant, the arrest was reasonable. The State now has the opportunity to call its witnesses of choice, without the defense having conducted direct examination of the arresting officer. Now, the prosecution calls the arresting officer to the stand, and essentially says, “Officer, tell me how recklessly the defendant was driving!”

Cleverly, at this suppression hearing, my employer refused to stipulate that the arrest was made without a warrant. This caught the prosecutors off guard. Thus, the defense still had the burden of proving that the arresting officer did not have a warrant, as a result of which, my employer had the opportunity to have the first shot at questioning the arresting officer. It was elicited that our client’s crossing of the fog line was hardly unsafe. There was no violation of § 245.060, and thus no reasonable suspicion to stop. Good bye, DWI.

Saturday, September 23, 2006

The Representation the Constitution Guarantees?

If an attorney is not going to devote the same attention to his or her appointed clients as the attorney devotes to his or her retained clients, why bother being on the appointment list? I have heard numerous clients who are represented by court appointed attorneys remark that they are not satisfied with their court appointed attorneys’ representation. I have also heard a number of attorneys remark that they do not invest the same amount of time in their court appointed clients’ cases as they invest in their retained clients’ cases.

Sunday, September 17, 2006

Work on Weekends

I don’t mind working on weekends, provided I don’t have to go into the office. Since I am not paid by the hour, it does not benefit me to clock in to surf the Internet. I am not suggesting that anyone does this, but I can take my work home with me, and save the gallon of gas that I would use in driving the thirty-mile roundtrip. Of course, I lose out on making an appearance at the office on weekends, but that is a small price to pay.

Friday, September 15, 2006

A Special Place

There is a special place in hell reserved for judges and prosecutors.

Wednesday, September 13, 2006

Infrequent Blogger

My mind and my time have been too preoccupied with work as of late for me to devote attention to blogging. Alas.

Tuesday, September 05, 2006

Screw the Environment!

It may take “many years and tens of billions of dollars” to bring it to market, but the discovery of oil and gas reserves in the Gulf of Mexico could increase reserves by more than 50 percent! Now I can buy that .12 mpg Hummer 6 I have been wanting, and without suffering from a guilty conscience!

Monday, September 04, 2006

What? Where?

Where did my three-day weekend go? Looking ahead, I don't think we have another extended weekend until the end of November.

Saturday, September 02, 2006

Obsessive-Compulsive Disorder

My mom suggested that I might exhibit obsessive-compulsive behavior. It might not bother me, she said, but it does disturb other people. She recommended that I consult a doctor, who could then prescribe medication to treat this alleged obsessive-compulsive disorder. Shouldn’t I see a specialist who could diagnose me as OCD, rather than just getting some GP to medicate me?

Would this medication be a mood altering substance?