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Archive for the ‘Criminal Law’ Category

DWI. DUI. Driving While Texting? Driving While on the Mobile Phone?

Tuesday, February 24th, 2009

The Texas Legislature is looking to put restrictions on the manner that Texas drivers use their mobile phones while driving.  Today’s Houston Chronicle outlines the proposed legislation here.

The Bill affecting mobile phones and teen drivers can be found here. It appears that the offense would be a Class C misdemeanor, and not involve jail time.  A bill proposing to double fines for inattentive drivers is also before the legislature.

Update:  Uh, the legislature may need to add some language to the bill…check out this story from Dayton, Ohio.

March to be Put-Up or Shut-Up time in the Bexar County Courthouse.

Sunday, February 22nd, 2009

The Bexar County District Courts will be hopping in March, according to this story in today’s San Antonio Express-News. The District Court judges have decided to bring all cases over a year old and set them for plea or trial.  The idea is to clear out old cases (averting speedy trial problems, and getting people out of an overcrowded Bexar County Jail).

Dockets seem to be clogged for a number of reasons (sheer population growth with no added courts, unreasonable plea offers from the Bexar County District Attorney’s office, chief among them).  It remains to be seen if the measures will have the desired effect.  As the story in today’s Express-News seems to imply:  the whole thing could be an exercise in futility if each defendant, some of whom have been waiting in jail for over a year, insists on his day in court.

Mobile Data Devices – Breakin’ the Law

Thursday, February 19th, 2009

Last fall, I had an interesting conversation with a prosecutor about the definition of child pornography.  The definition of child pornography, the definition of dissemination, and the definition of receipt were at the heart of our discussion.  In that conversation, I kind of stumbled onto the notion that within two miles of where we sat, there were digital devices chock full of images that met the definition of child pornography loaded with images that met the definition of child pornography.  The catch?  The were possessed by children themselves. Would the prosecutor’s office be interested in prosecuting those individuals, most of them juveniles?

Sexting is the term used to refer to the swapping of explicit images via mobile device.  Slate.com’s Dahlia Lithwick wrote a thorough treatment of the subject that appears here.  A survey conducted by the National Campaign to Prevent Teen and Unplanned Pregnancy appears here.

Update:  CNN Story about lifetime sex offender registration for “sexting” offender.

Forfeiture Horror Stories Continue in Texas

Sunday, February 8th, 2009

http://www.mysanantonio.com/news/Property_seizures_seen_as_piracy_.html

Click for a link to a story in the San Antonio Express-News on asset forfeiture abuses in an East Texas town.

Here’s a link to a story of an Austin man’s travels to South Texas and his experiences in the asset forfeiture realm:  http://texasobserver.org/article.php?aid=2760

Ice Cream registers on Ignition Interlock Device

Monday, January 26th, 2009

Click here for story of ice cream that has been shown to register as breath alcohol on a breath testing machine.

Feds to target Financial Fraud

Sunday, January 25th, 2009

According to reports in the New York Times, the Senate is looking for more funding to increase the government’s ability to detect fraud by white-collar criminal.  See the story below, from the New York Times.

Senators Seek More Funds to Fight Financial Fraud

The New York Times

January 22, 2009

Charles E. Schumer, the Democratic senator from New York, and Richard C. Shelby, a Republican senator from Alabama, introduced new spending legislation on Thursday designed to increase enforcement and detection of white-collar crime in the wake of the $50 billion fraud allegedly perpetrated by Bernard L. Madoff.
Mr. Schumer (pictured above), who is vice chairman of the Senate Democratic caucus, and Mr. Shelby, the ranking member of the Senate Banking Committee, propose adding $110 million to the budgets of the Justice Department, the Securities and Exchange Commission and the F.B.I. to help crack down on Wall Street fraud.
Under the new legislation, known as the Supplemental Anti-Fraud Enforcement (“SAFE”) Markets Act, the F.B.I. would get the bulk of the funds, $80 million, to hire 500 new agents in its white-collar crime division.
The S.E.C. would receive $20 million to hire 100 new enforcement officials, and the Justice Department would get $10 million for 50 new assistant U.S. attorneys.
The legislation would have to pass Congress and will likely be debated by lawmakers in the annual appropriations hearings, which are expected to start next month.
The S.E.C. admitted in December that, despite being repeatedly tipped off about potential fraud, the agency failed to detect Mr. Madoff’s wide-ranging Ponzi scheme.
“Our white collar crime divisions are understaffed, underfunded, and overwhelmed,” Mr. Schumer said in a statement.
“Fundamentally, our current economic crisis is one of confidence, which underpins our entire financial system. This foundation of trust has been badly shaken by greed, but is further eroded by fraud. In order to restore confidence, those who perpetrate fraudulent acts must be brought to justice,” Mr. Shelby added.
The senators noted that, by some published estimates, the Bush administration failed to replace at least 2,400 F.B.I. agents who were transferred to counter-terrorism squads. As a result, the F.B.I’s white collar crime units are currently down at least 625 agents from pre-9/11 levels, a reduction of 36 percent.
–Zachery Kouwe

Over-criminalization

Friday, January 23rd, 2009

Lions laying with lambs? The ultra-conservative think tank, the Heritage Foundation, is weighing in against the over-criminalization of the conduct of the the citizenry. Former Reagan Administration Attorney General, Edwin Meese says in the article,

“Our ultimate goal,” he said, “is to restore the criminal law to what it has traditionally been used for. That is, to protect the public safety and to deal with real crime – and to avoid what has occurred, which is the multiplicity of laws and regulations that carry criminal penalties which have ensnared ordinary, law-abiding citizens in the criminal process for things that nobody would anticipate are actually crimes.”

“What has happened is that a lot of special interest groups have urged Congress to attach criminal penalties to regulatory legislation to, quote, ‘show its importance.’… Therefore the criminal process is being abused when normal civil proceedings or administrative actions would suffice to protect public health and safety.”

Then entire story can be viewed at dcexaminer.com by clicking here:

This just in: Downtown Austin is Hotbed for DWI Arrests

Saturday, January 17th, 2009

The Austin Police Department has completed what can only be described as a sort of “straw-poll” of DWI arrestees and determined that bars in the downtown area are mentioned most often by DWI suspects when being arrested.

http://www.statesman.com/news/content/news/stories/local/01/17//0117bars.html

High Concentration of People + High Concentration of Bars + High Number of One Way Streets + High Concentration of Officers Patrolling Area = Large Number of DWI Arrests.

Got it.

Speedy Trial Rights

Tuesday, January 13th, 2009

The defendant is entitled to a speedy trial.   A more subjective tenet of law cannot be found.  “Speedy” to the layperson and “speedy” to the justice system are two very different concepts.  Typically, my cases are resolved in anywhere from six to eighteen months, depending on the complexity of the case.  In Texas, appellate courts will start to take a harsher look at the length of delay in a criminal case when it approaches eighteen months and the defendant is able to show some “harm” from the delay.

The United States Supreme Court just granted cert on a Speedy Trial issue that may trickle down to Texas law.  See the following article for a more in depth treatment of the case and its posture before the Supreme Court:

www.salon.com/wires/ap/us/2009/01/11/D95L3HO80_speedy_trials/

The Criminal Record

Tuesday, December 9th, 2008

At about the rate of once every day, I have a conversation with someone about his criminal record  and the exact meaning of the phrase “criminal record.”  “I want to clean up my criminal record.”   “What is my criminal record?” “My no good ex-husband has a criminal record!”

There are so many variations of a criminal record and where this information is stored, that the subject is almost impossible to wrestle to the ground with out a specific set of facts from which to ask questions.  My short answer to these types of questions is usually a question.  Have you been arrested?  If so, you have a criminal record.

Records exist at the police station, at the jail, at the courthouse, at the prosecutor’s office, at the county and district clerk’s offices… You get the idea…The records contain arrest information, case disposition information and other embarrassing facts.  Generally speaking, if the criminal case is later dismissed without the defendant being supevised by a probation officer, a person is usually eliglbe for an expunction.

These days, people who have completed certain types of deferred adjudicaition are eligible for a Petition for Non-Disclosure. This process is a availble to individuals whose cases have been “dismissed” after the successful completion of a deferred adjudication.  The process keeps former court proceedings from the public eye, but over sixty state agencies and all law enforcement retains the ability to access the information.  The governing statute is contained in the Texas Government Code Section 411.081(d) here:

http://www.statutes.legis.state.tx.us/SOTWDocs/GV/htm/GV.411.20600.17898.htm

Expunctions.  Petitions for non-disclosure.  The process can be confusing.  The Harris County District Attorney’s office offers an FAQ page to sort out some of the questions. http://dao-web.dao.hctx.net/ie/DADJ/FAQs.htm

In this computer age, the flow of information is easily accessible, constant, and often just plain wrong.  Dallas County has had it share of problems making sure that it’s records are in compliance with the law.

http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/080306dnmetexpunge.220f68c.html

Even smaller counties keep their court records online:

http://www.co.comal.tx.us/Search/CrimSearch/crimfrmd.htm

http://www.co.guadalupe.tx.us/judicialsearch/judsrch.asp