The Transportation Code allows a driver to pass on the improved shoulder in certain situations if it is “necessary and may be done safely”. The statute lists several situations where a driver can pass on the shoulder, which includes passing another vehicle that has slowed on the main roadway. The Court of Appeals treated the statute as providing a defense, which must be established by a defendant. The Court held the defendant must prove the manuever was done safely, and out of necessity, and in one of the enumerated situations.

The Court of Criminal Appeals held the lower court improperly limited the definition of necessary to “absolutely necessary”, which thwarted legislative intent. The plain language of the statute suggests passing on the shoulder is authorized, even when it is not necessary to avoid a collision. The court also held that driving on the improved shoulder is not prima facie proof of an offense; in other words, just because you are driving on the shoulder doesn’t mean you have committed an offense.

In this case the officer saw the car in front of Mr. Lothrop slow down he passed, and therefore there was no reason to stop him.

Sometimes it appears that the police have almost unlimited authority to stop motorists, and they do have a tremendous amount of discretion. However, as this case shows that discretion is not absolute. It is important to review all the facts in a case, and determine if the initial stop was lawful. If it wasn’t, then any evidence of intoxication will not be admissible, which means there is no case.

The defendant was driving on two lane roadway that merged into one lane. He was in the right hand lane, and when the right hand lane ended he merged into the left hand lane. He didn’t signal before he did so, and was stopped for failing to signal before changing lanes. Unfortunately for him the officer decided he was intoxicated, and arrested him for driving while intoxicated.

The defendant filed a motion to suppress, arguing the police officer had no reason to stop him; and if they had no reason to stop him, the evidence of his intoxication could not be used. The trial judge denied the motion, and the Court of Appeals affirmed that decision. The Court of Criminal Appeals originally reversed, and sent the case back to the Court of Appeals to decide if what the defendant did constituted a lane change. The Court of Appeals decided it did, and again affirmed.

Fortunately, common sense prevailed, and The Court of Criminal Appeals found the defendant didn’t change lanes, because to change lanes you need two lanes. Once the lane markings ended the two lanes became one, so there was no need to signal. It’s probably significant that the defendant didn’t merge until he had to – if he would moved over before the lane actually ended he probably would have had to use his turn signal.

So there you have it. If you merge when you are supposed to you don’t have to change lanes.

Bonds are set when a person first appears before a magistrate. In some counties that may be immediately following the arrest, or it may be the following day. The magistrate will inform the person what they are charged with, and set the amount of bail. Many magistrates have standard bonds for certain types of cases. For example, in McLennan County, the bond for a first DWI  is generally going to be between $1-$3000. The amount may vary depending on the seriousness of the charge, or the history of the defendant. That may be provided by the arresting officer, who can include that information in the affidavit for arrest, or in person. It is not uncommon for an officer to request a certain bond, or ask that it be set either high or low.

The Texas code of criminal procedure sets forth the requirements for setting the amount of bail. As you would imagine, they are fairly broad, and subject to interpretation. The five factors identified by article 17.15 are as follows:

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
2. The power to require bail is not to be so used as to make it an instrument of paper in print oppression.
3. The nature of the offense and the circumstances under which it is committed are to be considered
4. The ability to make bail is to be regarded and proof may be taken upon this point.
5. The future safety of the victim of the alleged offense in the community shall be considered.

After reading those factors you might wonder what they really mean. They can be interpreted almost anyway consistent with the position you are advocating. The main reason for that is that they are often. For example, the ability to make bail may suggest a low bail, while the future safety of the victim and the community might suggest a high bail. In reality, the most important factor for most judges is the safety of the community and the victim. That means the lawyer’s job is to convince the judge that the individual will not be an danger.

It is always important to remember that the purpose of the bail is to ensure a person’s appearance at court. It cannot be used to punish a defendant, since they have not been found guilty. There is often a fine line that must be drawn, which ultimately comes down to a judge.

If bail is set too high, it can be challenged. How you do so, and the factors to consider will have to be the subject of another post.

There have been problems in those situations where a person is arrested and charges are never filed. The courts have required individuals to wait until the statute of limitations expires before applying for an expunction. In cases where there is no statute of limitation – such as murder – you could never have your record cleared. There are also charges with lengthy statutes of limitation, such as most sexual assaults.

The legislature basically set up waiting periods: 180 days for a Class C misdemeanor, 1 year for Class A & B misdemeanors, and 3 years for felonies. The burden is on the applicant to prove that they were released, and that charges are no longer pending.

As you would imagine, the legislature is not going to tell the State to close their file and destroy all the records The order granting expunction must authorize the State to retain their records and files.

Another change is what can be termed a discretionary expunction. Previously, any agency listed in the petition could oppose it. DPS did that fairly regularly, which is why a lot of expunction cases have the Texas Department of Public Safety as a party. Under the new statute the prosecutor can agree to an expunction. Of course, a court must still sign the order, and might refuse to do so if there is opposition. This change could be significant in those cases where it is obvious no charges should  have been filed, and the individual should not be forced to wait.

One other change removes the restrictions on prior felonies. Previously an individual could not receive an expunction if they had been convicted of a felony within the previous 5 years. That has been removed.

There is no doubt these changes are positive, and are going to allow a significant number of individuals to obtain expunctions who otherwise could not do so, or would  have to wait for significant periods.  If you feel like this would benefit you contact a lawyer and discuss it.

Breath testing was developed to determine a person’s blood alcohol level. All states define intoxication of terms of the level of alcohol in a person’s blood. The best way to test is that is of course to take a  blood sample; however, that takes time; breath testing and easy and quick. Something that can be done by a police officer.

Breath testing is based on the scientific principle that there is an exchange between air and the blood system. You breath in air, which is transferred to your blood system in the lungs. Breath testing is based on the idea that you can estimate a person’s blood alcohol content based on the levels in their deep lungs – alveolar air. A mathematical formula is used, which is recognized as being an assumption. The formula is basically an average, which does not apply to everyone.

For any test to be valid, the underlying facts must be valid. According to Dr. Hlastala, the facts supporting breath testing are far from settled. At the beginning of his paper he notes:

In spite of the considerable effort that has gone into the studies attempting to validate the breath test, forensic scientists and toxicologists still have only a basic understanding of the physiological aspects of the the alcohol breath test (ABT) and associated limitations.

The “old paradigm” assumes the amount of alcohol in the breath remains constant as it goes through the lungs. It turns out that is not accurate. In fact, the amount varies – sometimes significantly. The result is that the actual blood alcohol level may be over or under-represented.

The new paradigm recognizes that alcohol is deposited in the airway surfaces during both inspiration and expiration. It also recognizes that the alcohol that comes out in the breath test comes from airway surfaces rather than the alveolar region.

The conclusion reached in the article was:

It is time for forensic scientists to re-examine the ABT to consider the importance of alcohol interaction with the airway tissue during both inspiration and expiration. the result of this interaction is that the breath test is fairer for some subjects than others. Another consequence is that the BrAC continues to increase as the subject continues to exhale. The resulting end-exhaled breath concentration is only partially related to BAC. And, therefore, the ABT exhibits much more variability than previously recognized.

The author recommends decreasing the importance of relying on threshold levels – especially for determining penalties. he also recommends that some margin of error be recognized. Of course, that will never happen, but it something to consider when you have a client that is only slightly over the limit. Based on this research, they may or may not be legally intoxicated.

In Texas, limits are important for not only determining whether someone is guilty or not, but also for determining whether certain conditions are going to be imposed – such as a interlock device. The validity and accuracy of the breath test results is therefore critical.

This article does not break new ground – problems with breath testing have long been recognized. Those problems must be explored – especially in marginal cases. Where someone’s future hinges on a machine, the least we can do is make sure the machine is accurate.

Mr. Strong described what happens when the first examiner finds a match but the verifying analyst doesn’t agree. In such instances, he said, they notified their supervisor and all of them conferred to make a decision. A defense attorney in the crowd asked what seemed to me an obvious question: When two examiners originally disagreed but a supervisor resolved the issue in favor of a match, was that disagreement recorded in the final report? No, replied Strong, only the conclusion. At this, the audience began to murmur and fidget. Somebody from the back cried out, “Have you ever heard of Brady v. Maryland?,” which is the US Supreme Court case requiring the state to turn over all exculpatory evidence to the defense  before trial. No he had not, replied a credulous Strong, a statement which elicited an audible gasp from the crowd.

The Brady problems are obvious, and create a whole of host of potential issues. What struck me about the story however is that provides more evidence of just how unreliable – and unscientific – fingerprint examinations are. Despite what they want you believe, fingerprint examinations are nothing more than a subjective opinion. The fact that two examiners disagree shows that.

I’ve said it before, and I’ll continue to say it: we need to challenge fingerprints more often. There is no science involved, and we need to keep pointing that out. While comparing inked prints to inked prints may be reliable and accurate, there is a big difference between an inked print and a partial print that you have only limited information on. This story gives us one more weapon in the arsenal.

I think  most people would agree that there is nothing more serious than facing a loss of your liberty. If you are going to have to defend yourself, you want to know what evidence the government has. Most people believe you are entitled to that – after all, we always hear about all these “rights” criminals are supposed to have. How can a proceeding be fair if you don’t know what evidence is?

The reality is that there is no such thing as discovery in criminal cases. Under the rules, the State only has to provide copies of your client’s statements, and any expert reports (e.g. drug analysis, DNA results, etc..) They do not have to provide offense reports, or witness statements. You are only entitled to those after the witness testifies – so you can cross-examine them. There’s an old joke about waiting to try the case to find out what the facts are, but that could happen.

Thankfully, most prosecutors will open their files, and allow lawyers to look at what they have. The District Attorney in McLennan County will allow lawyers to do that in felony. You have to then sit down, and take notes on what you see. Some more enlightened prosecutors actually provide copies of whatever they have.  Not only is that fairer, it also helps resolve cases. It’s hard to decide what to do when you don’t know what the evidence. It’s also impossible to advise a client on whether or not to go to trial when all you have is the prosecutor’s assurance that he is guilty. You need to know what the evidence is, and the prosecutor is in total control of the flow of information.

In contrast to what you have access to in criminal cases, in civil cases you can obtain almost anything. Most of the time is civil litigation is devoted to discovery. You can file interrogatories, requests for production and take depositions. In the process you can learn everything about the case, and the parties. You can sue someone for $1,000.00 and find out almost everything about them. If you look at the rules of discovery, you would think civil cases are  more important than criminal cases.

Discovery reform has been addressed in the last several sessions of the legislature, without much success. Prosecutors are obviously reluctant to turn over what they have – they like it the way it is. As with most criminal justice issues, anything that appears to be favor criminal defendants is opposed. That belief system will rarely succumb to logic and common sense.

The fact is that adopting uniform rules of discovery would streamline the criminal justice process. Access to information can do nothing but help move cases along. When you know what the evidence is, you can make an informed decision. Providing that information early means cases can be resolved quicker. Even if the case has to go to trial, what’s wrong with a defendant knowing all the evidence?

As it stands now it is up to the State  to decide how much information to provide and how to do so. It runs contrary to the expectations of most people, and that is why it is so hard to explain.  Unfortunately, that’s just the way it is.

Generally, anyone over 18 years of age, and who doesn’t have a felony conviction, or theft conviction, is eligible to serve as a juror. You also have to be of sound mind (which is clearly subjective), and be able to read and write. In the past, you had to be a registered voter, but that is no longer the case; now you only have to be qualified to register. There are certain exemptions you can claim, but you don’t have to. People over 65, those taking care of small children and full-time students can claim an exemption from jury service.

The term jury selection is a misnomer. No one gets to “select” jurors they want. A more accurate term would be de-selection. Each side is given a certain number of “peremptory” challenges. A party can use those to remove a juror for whatever reason they want. The only restriction is that you cannot remove a juror solely because of race. The number of peremptory challenges depends on the type of case. in felony cases, each side gets 10, while in misdemeanor cases each side gets 5.

The process of jury selection is called “voir dire”, which basically means to speak the truth. Each side is allowed a certain amount of time to ask questions. The questions are generally aimed at uncovering the jurors’ attitudes about issues that are important to the case. The questions are also directed toward uncovering jurors who may not be qualified to serve.

The process of removing a potential juror is through a challenge for cause. The grounds for such a challenge are generally set forth in the Code of Criminal Procedure. Art. 35.16 contains roughly 11 reasons for disqualifying a juror.  Those include being related to a person in the case, being a witness, or having served on the grand jury that returned the indictment. Most of those challenges are fairly straightforward, and easy to decide.  The tougher challenges are those that are more subjective.

One ground is that the juror has a bias or prejudice in favor of, or against the defendant. That can include many things. A potential juror may have a bias against the law – such as the right to testify. They might also have a bias for or against certain types of witnesses, such as police officers. A juror’s prior experiences may also cause them to be biased against all defendants, or those charged with certain types of crimes. It is not unusual for individuals or family members who were involved in similar case (especially sexual assault), to be unable to serve. Ultimately, these decisions are made by the juror; they are the only ones who can know whether someone is going to interfere with their service.

Another basis is that the person has heard about the case, and based upon what they heard, made up their mind. Knowing something about a case does not disqualify a person. In highly publicized cases (i.e. O.J. Simpson), it is not unusual for many jurors to know something about the case. A juror is not disqualified unless they have already made their mind. Again, this is a decision that is ultimately left the individual juror.

After removing jurors with biases, and each side removing jurors they  believe may  favor the other side, the hope is you are left with in impartial jury. The process has problems. Lawyers need to have the opportunity and ability to uncover potential biases. Jurors also have to be honest, and willing to disclose their true beliefs. Once selected, jurors have to fairly evaluate the evidence, and set aside their personal attitudes and beliefs.

We need to always remember how lucky we are to have a jury system, where cases are decided by ordinary citizens. Some people want to limit,or take away that right. Let’s hope they are never successful.