Arrest Does Not Equal Guilt
July 22nd a Montgomery County Judge signed the dismissals on all charges against former University of Houston player and Buffalo Bills’s current defensive tackle Ed Oliver. On or about May 16, 2020, Oliver was arrested for Driving While Intoxicated and Unlawful Carry of Weapon. Oliver complied with officers’ requests to complete the Standardized Field Sobriety Tests (SFSTs) as seen below.
Three Questions to Ask your DWI Lawyer
So, you’ve been arrested for Driving While Intoxicated (DWI) in Montgomery County. The encounter with law enforcement, the ride to the jail, the booking process – each step more embarrassing and frustrating than the first. Now, it’s time to fight the case. You need to find a lawyer, but you’ve never been in trouble before – let alone for DWI. This process should not be complicated or frustrating, but how do you know you’re in the right hands? What do you ask your DWI lawyer before hiring them? This article is meant to provide some suggestions. If you already have a lawyer though, this article is still for you. These are some questions you can ask other than, “What’s going on with my case?”
Instead of: “What’d my video show?” Ask: “What is your experience with the NHTSA manual?”
After a couple of months of being shut down, the world prepares to reopen. Texas Governor Abbott announced on April 27th his phases to begin opening the state back up. Today, under Phase 1, many businesses take down the shutters and open their doors at 25% occupancy to restless communities and anxious employees. Montgomery County though, under County Judge Mark Keough’s interpretation of the order, resumes business as usual with more expansive reopenings; this includes bars. If you’re someone who has been counting down the days and have your first day of socializing outfit picked out, be careful.
Since the Natural Disaster Declaration and Stay-At-Home Order, arrest numbers have been down throughout Texas. While the courts have been working diligently to reduce the amount of bail bonds and issue Personal Recognizance Bonds to lower jail populations in an effort to flatten the spread of the virus, law enforcement has seen a drop in incidents of Driving While Intoxicated. Montgomery County specifically, typically strives to be strident in their attacks on DWI. Montgomery County became one of the first Texas counties to participate in the No Refusal Initiative in 2005 that allows mandatory blood draws.
No Refusal Weekends traditionally have been holiday weekends, such as Memorial Day, Labor Day, Halloween, and the time starting from Thanksgiving through Christmas and ending after New Years Eve. For example from December 21, 2018 through January 1, 2019, Montgomery County law enforcement arrested approximately 146 individuals under the suspicion of Driving While Intoxicated (DWI). The time between Memorial Day Weekend and Labor Day Weekend has been dubbed the “100 Deadliest Days of Summer.” In 2019, 766 people were arrested for alcohol related offenses during these days.
Court dates in Montgomery County have largely been rescheduled or cancelled due to the Coronavirus. Judges are adapting by using video conferencing applications such as Zoom to address issues related to bond and to take pleas, but downtown Conroe, despite its sizable essential employee status, is a ghost town. This comes as no surprise as Montgomery County Judge Mark Keough extends his stay-at-home order and families cancel birthdays, showers, family reunions, and vacations and replace their party hats with their teacher hats as schools cancel as well. What hasn’t been cancelled though, is Montgomery County probation. Drug testing through Averhealth too has not been cancelled.
Why does that matter? Approximately 60% of criminal cases result in some sort of community supervision. In 2018, the Prison Policy Initiative counted 4.5 million adults per year in the United States on community supervision. About half of the population in county jails are individuals who have violated the conditions of their release. That’s approximately 350,000 people each year who are jailed for revocations. You’re likely to see a spike in that number as people become more desperate from layoffs, isolation, and pressure from dealing with the consequences of COVID-19 rises. Montgomery County District Attorney’s Office has already reported a 35% spike in assault calls.
Law enforcement was out in full force the last two days due to the holidays. Numerous DWI and car and truck accidents happened in Conroe and the Woodlands. Excessive drinking this time of year is common. Unfortunately, so are driving while intoxicated cases and wrecks where people are injured. Here in Montgomery County we have a no refusal policy that has been in effect since Thanksgiving. If you are pulled over for suspected drinking and driving, you will be tested even if you refuse. Upon a refusal to give a blood or breath sample, your case will trigger the officer to apply for a warrant from an on-call judge to order you to give a sample. Although many lawyers tell you “don’t blow,” I think this advice is often foolish. If you have no criminal history and are below a .25 then you may qualify for a pretrial diversion program that will allow you to get your case dismissed with year of probation. If you decide to refuse the test, then you will not qualify for a pretrial diversion.
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An interesting case out of Montgomery County was released by the Texas Court of Criminal Appeals this last week. The case involved a DWI and the state’s intended use of a trooper as an expert without disclosing the expert in a timely manner. The Wednesday before trial the state designated its expert. Under 39.14 of the Texas Code of Criminal Procedure the state is obligated to disclose the name and address of each person who may provide evidence in a trial no later than twenty days before the trial date. On the date of trial in this matter, a jury was picked and sworn in which placed the defendant Garrels in “jeopardy” which bars her from retrial under double jeopardy laws in Texas.
When the trial began, the trooper began to testify about the standardized field sobriety tests and how Garrels performed on the tests. Garrels objected to the testimony and stated that her rights had been violated due to the fact that the trooper had not been designated as an expert. Under the Texas rules if you are going to present a witness on behalf of the state you have to give the name and address of that expert twenty days before the trial date. This allows the defense to vet witnesses since the state is the one doing the accusing and the burden is on the state. As a counter the state asked for a continuance. The defense argued that a continuance would allow the state a way out of their own error. In the face of two options, one to strike the testimony or two to grant a two-week continuance, the Judge decided to declare a mistrial. The state objected on the basis that a mistrial would bar the state from retrial on the basis of double jeopardy.
The case proceeded to the 9thCourt of Appeals out of Beaumont. There the court held that, “a defendant who does not object to the trial judge’s sua spontedeclaration of a mistrial, despite an adequate opportunity to do so, has impliedly consented to the mistrial.” In other words, the court held that Garrels had consented to the mistrial and was therefore not barred by double jeopardy. The Court of Criminal Appeals of Texas took the case up on the sole ground of, “has a defendant who did not object to a trial court’s declaration of mistrial, despite an adequate opportunity to do so, impliedly consented to the mistrial?”
A Conroe woman has been accused of biting off a large chunk of another woman’s nose and then swallowing it. According to the Harris County Precinct Four Constable’s Office three local Conroe women decided to go bar hopping. When they got home Jessica Collins of Conroe, Texas wanted alcohol and cigarettes from the other women. When one of the girls refused to hand over the alcohol and cigarettes, Collins tackled her and bit off a part of her nose and then swallowed it.
“I didn’t have time to react, to push her away. I think I was trying to fight back, but I couldn’t. All I could remember was the taste of the blood in my mouth,” stated woman that was attacked.
Collins was charged with Class A misdemeanor assault and was release from jail after posting a $1000 bond. Class A assault carries a possible penalty of $4000 fine and one year in jail. The victim states she has been staying at home because it is the only place she feels safe.
If you have been convicted of DWI, you probably have an ignition interlock device installed in your vehicle. The device was probably ordered by one of the Montgomery, Harris, or Walker County Judges. Over the last few years these devices have become very popular. To make it work, you must push a button on the unit. Then when it says “blow,” you blow into the device. Viola, your vehicle will now start. Sounds like a great idea, right? Well, maybe not. Driving your vehicle with the device installed requires what is called a “rolling test.” Yep, to keep your car going you have to blow into the machine while driving. Hey, wait…isn’t that distracted driving? You bet. So, what could go wrong?
Last week an eighteen-year-old woman was killed by a person that had been ordered by a court to have an ignition interlock device installed in his vehicle after his DWI conviction. The young lady was backing out of her driveway and was subsequently struck by the man while blowing into his DWI device. The test takes three to four seconds to complete. In that time span, the man never saw the young lady backing out and never hit his brakes. The man had not been drinking at the time.
In the United States, every day, nine people are killed and over a thousand are injured from distracted driving. Distracted driving is when you are doing something other than paying attention to your surroundings when driving. The three main types of distracted driving are: visual, which is taking your eyes off the road, manual, which is taking your hands off your steering wheel, and cognitive, which is when your mind is not on your driving.
Today, I spoke with a client that suffers from multiple sclerosis (MS) and is charged with DWI or driving while intoxicated. For those of you who don’t know what multiple sclerosis is, MS is a disabling disease of the central nervous system which consists of your brain and spinal cord. The disease attacks the protective covering around your nerve fibers. Think of the plastic covering on copper wire. The comparable covering on your nerves is called myelin. MS attacks the myelin and causes communication problems between your central nervous system and the rest of your body. The damage can become so severe that a patient can have problems walking and later may not be able to walk at all. Is this the first client I have had that has been charged with DWI when they have not been drinking? No. I’ve had multiple clients charged with driving while intoxicated when they are suffering from a disease of the nervous system and have not been drinking at all and have not taken any medication. So, what are the consequences?
If you don’t already know, Texas is one of the harshest states in the nation when it comes to being charged with DWI and the consequences of the arrest. Folks, we are not just talking about the fines and court costs. The aftermath of a DWI conviction in Montgomery, Harris, or Walker County can be far reaching and life altering. Most people have no idea how much it costs overall to be charged with DWI.
First off, your car is usually towed at your expense. When you are arrested your car is left behind to be towed and impounded by a local company. This system is not regulated and there are companies that will really take advantage of you. I’ve seen towing and impound fees start at around $300 and go to upwards of $600. This is what you are required to pay even if you are innocent and are later found to be not guilty or the charges are dismissed.
In the James Bond as 007 movie A View to a Kill, Christopher Walken plays the evil villain Max Zorin who poses as a wealthy race horse breeder. Playing the part of James Bond, Roger Moore drops into Zorin’s palatial estate under the guise of securing a horse for breeding. Bond’s disguise is that of a James St. John Smythe. Smythe sits down across the desk from Zorin and his face is analyzed by a secret camera which discovers Smythe is really 007, licensed to kill. In 1986 this technology was pure science fiction; today facial recognition is science fact.
The new Apple Face ID program initiates every time you glance at your new IPhone X. The top of the line new iPhone contains an infra-red camera, a flood illuminator, a proximity sensor, an ambient light sensor, a microphone, a front camera, and a dot projector which all collect and store your personal information in your phone. The process begins with what they call a flood illuminator that lights up your face. Even in the dark. Then, there is an infra-red camera that takes an infra-red picture of your face. The camera dot projector then pushes out over 30,000 invisible IR dots that track every topographical feature of your face. Apple then pushes this data through what they call a neural network to create a mathematical model of your face. Didn’t the Cyberdyne Systems Model 101 Series 800 Terminator also have a neural network? I digress, the mathematical model is then checked against your model that has been stored in your phone to see if it is your face looking at your phone. If it’s a match it will unlock your phone. The phone even learns. If you wear glasses or grow a beard, the phone is still supposed to be able to recognize your face. Apple says that all this personal facial data collected is safely stored and encrypted in your device, not on the Apple cloud.
What could possibly go wrong with this technology? Remember the Madrid bombing case back in 2004? 191 people were killed and another 2000 were injured. After the bombing, FBI fingerprint examiners in Quantico, Virginia found a fingerprint on a bag of detonators at the scene of the Spanish bombings. The FBI searched for possible matches to a digital image of the fingerprint. Wait, what else creates digital images of your fingerprint… oh yes, your iPhone. The FBI supercomputer came up with fifteen matches, one of them being a thirty-seven-year-old American lawyer named Brandon Mayfield living in Oregon. Mayfield was arrested and imprisoned for two weeks while being held as a material witness to the Madrid bombings. The FBI eventually released him and gave a rare public apology but the damage was done.
Conroe Criminal Lawyer Blog