House Bill 170: Presumptions of Guilt Rather than Innocence in DWI Cases

So another Bill has surfaced that would attempt to take away the constitutional rights of Texans and anyone else driving through this State.  This piece of proposed legislation would arguably remove the "innocent until proven guilty" presumption and replace it with a presumption that the State could use to argue the driver was intoxicated if he or she was stopped, arrested, and provided a blood or breath sample greater than .08 within one and one-half hours of that arrest.

House Bill 170 is another piece of legislation aimed at making the State’s job of convicting its citizens easier and shifting the burden to the Defendant to prove that he or she is in fact not guilty.  I for one can say that I am not interested in living in a place where there is no presumption of innocence and where the burden is on me to prove that I’m not guilty of a crime.  In relevant part, House Bill 170 reads as follows:

Article 38.24 Evidence of Alcohol Concentration


(a)    In this article, “offense relating to the operating of a motor vehicle while intoxicated” and “offense of operating a watercraft while intoxicated” have the meanings assigned by Section 49.09, Penal code.


(b)   For purposes of the prosecution of an offense relating to the operating of a motor vehicle or watercraft while intoxicated, it is presumed that the person had an alcohol concentration equal to or higher than 0.08 at the time of the offense if that level of alcohol concentration is shown by an analysis of the specimen of the person’s breath, blood, or urine taken from the person not later than 90 minutes after the time of the person’s arrest.


To be clear, this section is not currently in the Texas Code of Criminal Procedure and is only proposed legislation, but we all need to hope that it does not pass, unless of course you are interested in giving up more of your constitutional rights and protections.

For others like me who are interested in tracking the life of House Bill 170, this website shows when it was introduced, and how activity on it compares to those of other pieces of proposed legislation.

In general, a presumption is a fact assumed to be true under the law and they are typically used to relieve a party from having to prove the truth of the fact being presumed.  As Jamie Spencer pointed out regarding retrograde extrapolation:


Retrograde extrapolation is the mathematical/scientific process by which an estimated BAC range for the time of driving is deduced/guessed by taking the BAC at the time of the test, the time since driving and other factors. These factors include when the suspect drank his last beer, .eg., to his last meal, and other considerations.


These are ultimately unknown factors no matter what the pre field sobriety test interview question and answers reveal from the defendant. And therefore, there’s room for some of that old reasonable doubt defense attorneys like to try and raise.


Since this is potentially a problem for the prosecution, they want to write into the law an unscientific instruction that allows them to argue that any test over .08 given within an hour and a half of driving automatically gives them a presumption of guilt.

To conclude, this is another piece of legislation being propelled forward by those who would favor arresting everyone and shifting the burden of proof to them to show their innocence.  As I have requested in the past, if you are interested in demonstrating involvement in your government, asking your State Representative and Senator to vote no on this legislation is a good start.

Prostitution: Should it be Legalized in the United States? (Part 1)

Last week, while lunching with three other attorneys and the best assistant anyone could hope to have working with them, the topic of "victimless crimes" came up … particularly, prostitution.  We tossed around the idea of legalization and some of the pros and cons to that.  We talked about the double-standards that seem to be in place and how we, as criminal defense attorneys, see the women who often get repeatedly arrested for offering oral sex for $10 and more for $20.  We pondered the points of how this could be "fixed" if that is possible at all.

For purposes of this article (and any others I write on this topic), I am going to use the feminine gender when referring to prostitutes, though, I will be the first to admit that there are male prostitutes, and that this is by no means a phenomenon unique to the heterosexual world, as there are also gay, lesbian, bi-sexual and transgendered prostitutes, too.  Likewise, this article is not intended to be a put-down of women or of prostitution in general, in fact, I am here to advocate that prostitution be legalized and regulated, much like it is in Germany, other European countries, or even here in the United States, in Nevada.

When a woman is taken to an upscale Manhattan apartment, or even called and invited to one of the hi-rise downtown Austin condos, she is considered "an escort" and this largely goes un-prosecuted.  However, when a woman gives some guy oral sex in an alley, or they decide to park a car and engage in other sexual acts, or even if they rent a room at a cheap local motel and go "trick" there, that woman is a prostitute, a whore, a slut by the double-standards that are propigated by our society.  Why is that? What’s the difference? Is this right? What can be done about it?

The simple answer regarding the difference is money… like so many other points, it all comes back to the dollar.  I believe there are two groups:  those who can afford to hire escorts + those women beautiful enough to work through an agency vs. men who cannot afford the high-end, expensive escort + the woman who is struggling to survive and trying to make anything she can.  

Most escort agencies attempt to claim that they are dispatching models to provide a social or conversational service, since prostitution laws often forbid taking payment for sex or for the purpose of arranging a contract for sexual services.  Law enforcement generally knows about these escort agencies but neither they nor the political powers typically act against them, instead, the focus is more towards the visible, street prostitution.This clearly sounds like a double-standard, or as hipocrisy.  And these are differences that I want to discuss, but am recognizing as I write this entry that this topic alone could branch into multiple posts, as it is too much information for any one entry.

In writing this article and after the lunchtime conversation, I began doing a little research and found some very interesting articles.  The best I found is from a former escort, Amber, and she runs a blog on the topic.  I have not read all her posts as they seem to be very detailed and quite lengthy, but it is definitely on my must read list, as I think it will provide much insight into this line of blog entries I plan to complete over the coming weeks.  Until then, I would really appreciate any feedback that could be provided by anyone reading this posting.  I very much want to know your opinions, regardless of perspective, on the topics of prostitution, and whether or not it should be legal in the United States.

more to come….

“But is it Good Public Policy?” (Senate Bill 261 and its progeny)

On Monday of this week, I had lunch with a friend and colleague of mine, who’s name I shall not mention due to the nature of his work in the Texas Legislature, who responded to my disdain for Senate Bill 261 with the statement, "But is it Good Public Policy?"

I was stunned that he would say this and not simply agree that the proposed changes to DWI laws in Texas and to the eroding of civil rights as set out by both the federal and Texas constitutions were in jeopardy when such legislation is introduced.  The reason that this was surprising to me is that until he recently acquired a position in the Legislature as one of the Member’s assistants (title unclear), this guy was a criminal defense attorney.  He worked to get people out of jail.  He did what he could to keep them from going back to jail… and, he was very successful at his craft.

This person is now working in a job that he enjoys and experiencing a view of the law that he’s always wanted to pursue and until recently just did not have the opportunity.  And for that, I applaud my friend.  But, to have him turn his back on a statement that almost, if not all criminal defense attorneys would agree with regarding Senate Bill 261 and its progeny, was like a slap to the face. Had my friend and colleague betrayed me? Had he really switched sides (as I was accused when I left law enforcement to open my own law office)?  Of course he had not "betrayed" anyone, but it made me think, so….

I laughed it off and pondered the point for a few days before drafting this article–successfully managing not to say something that I would later regret.  And, I do not think that he intended to be derisive or to offend anyone at the table.  Honestly, I believe that he may not have known the extent that Senate Bill 261 strips people of their constitutional rights, so we discussed it briefly, and then the subject changed, without further ado.  However, I will not jump to the conclusion that the conversation was Much Ado about Nothing, to quote a little Shakespeare, as it inspired me to write this entry and again bring Senate Bill 261 to light.

My first post on Senate Bill 261 which labeled it as Frightening expounds on the issues I have with this piece of proposed legislation.  And, to spare my readers from repetition, I am merely going to provide the link to the article for your review.

So, is the question really "But is it Good Public Policy" in the Legislature or is it more about what lobbys control which votes and who can pay the most? Now I sound like a complete conspiracy theorist to make such an accusation, but is it really that far off point? There’s a lot of good public policy out there that never makes it out of  committee because of the cost associated with a program’s implementation, which, one could argue makes it bad public policy because of the financial drain it may have on the State’s resources… but does cost alone make something "bad public policy?"

To summarize, I suppose that the question my friend raised would not have nagged me as much had I thought he was serious and sincere in the question, "But is it Good Public Policy?" Instead, when he raised the question, he laughed, smiled really big and then the conversation went on. And no, he was not just "teasing me" about it because others at the table asked him about it and he replied in the same manner.

When I goaded him a little bit and we discussed it, the subject just changed.  I fully respect if someone really believes that something is "good public policy" and stands behind it, just as I am arguing that Senate Bill 261 is a really bad idea, but if someone is just arguing that it is a public policy issue simply because that is the job he’s taken on for the moment, then I am less appreciative because those sorts of changes in the law have lasting consequences and affect every person in Texas.

Thus, urge your Senator and State Representative to vote NO on Senate Bill 261, preventing it from ever seeing the light of day.

Commenting on the Legal System, or as One Blogger Wrote, “Do Not Go to Law School”…

Mark Bennett, a fellow blogger posted a detailed post citing reasons not to go to law school.  Below is a brief excerpt of that article, but it is available in its entirety here.

Even assuming that other opportunities would not have appeared in the ten years you would have (had you chosen more wisely) spent in the workforce, and that the contract work isn’t offshored to India, ten years after you begin you’re just starting to break even.

What’s going to happen in your life in the next ten years? What has happened in the last ten? What’s going to happen in the world in the next ten years? What’s the practice of law going to look like?

While in part I agree with what Mark is saying … that the money may not be the same in law as it once was, it remains one of the better professions, especially if you are motivated, personable, and want to practice law.  And, just because the money is not as high as it may have been, what is growing, besides healthcare? And, as long as the insurance lobby continues to hold sway over lawmakers, who knows how much longer that will be true….

However, I cannot agree with Mark’s assessment that I quoted above.  To answer those questions one would have to see into the future.  While it may be that the economy is in recession and that the next few years look bleak, that does not mean someone should not go to law school because the world will always be changing, the practice of law will evolve to meet society’s needs, and someone has to be there to help people sort out their problems.

Please keep in mind, I’m writing this from the perspective of a solo practitioner.  I am also writing this from someone who has tried on various hats within the legal arena and took several years to find the perfect niche for me.  I was first a prosecutor, enjoyed the work, but felt that there was no room to advance, at least not as quickly as I would have liked.  Looking back, that was just impatience on my part — people who started after I did are now in elevated positions within that office.  Is that saying I regret my decision to leave… not today.  Would things be different had I stayed, possibly.  Did I make a bad or wrong decision by leaving… absolutely not.

Then, I went into civil litigation, insurance defense work.  I really liked the people that I worked with but the type of work was not for me.  I wanted to develop a criminal defense practice, where I could work with people and help them with real problems, rather than just shuffle documents and try to minimize insurance companies expenses.  If this is the area that Mark is really focusing on, then I would tend to agree with him more, as the limitations and restrictions that were being implemented by insurance companies made doing the work very difficult, when backed up against the demand of partners wanting you to bill X hundred hours per year.

Finally, I opened my own office, and I do not regret it and will never go back… unless something unknown to me at the time I am writing this entry forces me to do so.  That being said, this goes to the future predictions and unknown factors that Mark seems to raise.

To conclude, I would agree with Mark that if the motivating reason for going to law school is money, then don’t do it, because it is not what it once was, but I would disagree in that law school will not pay for itself.  However, if you want a solid, well-rounded education, which no one can take from you no matter what, then law school is an excellent way to go.  I thought it was ludicrous when I heard, "We teach you to think like a lawyer…" but law school really does.  You will leave with the ability to see things from multiple angles and perspectives.

And remember, the market is changing, jobs are off-shored, but being flexible and finding your niche is what really is important.

Minnesota State Trooper’s “DWI Ride-Along”: Not too realistic but raises interesting questions….

While I was surfing the internet to catch up on news, I found a link that naturally caught my eye, as it offered an opportunity to go on a ride-along with a "top DWI cop" to see what a DWI stop, investigation, and arrest involves.  While I understand that the video was not designed to show every detail of such a stop, I found it to be substantially misleading, and I’ll go into those reasons soon.  However, as a former Texas officer who made DWI arrests and worked collisions, I am certainly left wondering why this sort of video would be the one used to give "the feel" of what this officer deals with on a regular basis.  So, watch the video and decide for yourself.  I welcome any comments but especially those of other officers and/or prosecutors.

This DWI video shows a very different situation from those of most cases.

Let’s talk about a few points in this video that seem very unrealistic to me, and I will be the first to admit that there are some very cooperative people who are detained and even arrested for DWI, but I have never in six years of being an Austin-area attorney or a cop seen anyone that was as polite and cooperative as the lady shown in the video at the above link.

  • No crying, complaining, or excuses offered by the suspect;
  • Blowing snow and high winds did not impact the SFST performance;
  • Suspect wearing high-heel shoes during the Walk and Turn test (option to remove shoes is usually given in Texas and frozen Minnesota ground probably caused her to keep them on);
  • Suspect provides a breath sample into a portable breathalyzer device on the roadside (always a bad idea — NEVER do this if asked by an officer);
  • After being arrested, suspect was still fully dressed in scarf and incredibly polite and cooperative (still no tears, angry looks, or expletives);
  • Much of the video was edited (but this removed the real feel of what happens on these stops).

My purpose in writing this entry is not to criticize the officer or the videographer who filmed the video, however, I do not want people to be misled and believe that these stops are this smooth or that the evidence is this clear.  It usually is not.

DWI is a serious offense as the consequences may end an innocent third-party’s life; however, boundaries must be in place to ensure that people do not lose their rights to the State.  In Austin, Texas, political forces have become so influential that often dealing with even the most basic DWI case becomes difficult for fear of political fallout from these entities, like M.A.D.D.