Sam Lock, Texas Criminal Defense Lawyer

What is a Criminal Record?

What is a criminal record?  The short, smart-aleck answer is:  there is no such thing.  A "criminal record" is a combination of the records kept by law enforcement agencies from the FBI all the way down to the local Justice of the Peace.  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.

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

Katrina Victims Blamed for Houston Crime

http://www.chicagotribune.com/news/nationworld/sns-ap-katrina-houston-crime,1,13172.story?coll=chi-news-hed&ctrack=1&cset=true

Jail Conditions

Recent work by the ACLU has drawn attention to the jail conditions in Bexar County.  The ACLU report concluded that the jail is overcrowded and a general public health problem.

http://www.aclutx.org/projects/prisonspg.php?pid=93

The Dallas Morning News ran an article in the early part of August, 2006, which outlined Dallas County's jail population problems.  The article noted that Travis and Bexar County courts have been using "jail dockets" for years to clear out people sitting in jail unable to make bond on misdemeanors.

My personal experience over the years has shown that there is a dearth of prosecutorial cojones to make the call on weak cases (passing the buck to other prosecutors down the line) so inmates languish in jail until their case is called.  Many find their resolve ground to bits while awaiting court in the Bexar County Jail.  If the ACLU report is to be believed, the inmates are waiting in a cesspool of TB, Hepatitis-C, and Staph infection.

Along the same lines, what happened to the inmates in New Orleans when Katrina hit?  A recent AP wire story quoted an ACLU report stating that the Orleans Parish jail inmates experienced some of the worst horrors of Katrina.

http://hosted.ap.org/dynamic/stories/K/KATRINA_JAIL?SITE=TXSAE&SECTION=US&TEMPLATE=DEFAULT&CTIME=2006-08-10-23-08-13

Cell Phones and Criminal Law

The Supreme Court ruled long ago that there is no reasonable expectation of privacy in a cell phone conversation.  No wire taps necessary.  No fourth amendment complaint for unreasonable search and seizure.  (Remember Eric Stoltz to John Travolta in Pulp fiction?  "Are you on a cell phone?!!! Prank caller!! Prank caller!!)  http://www.imdb.com/title/tt0110912/

Law enforcement recently used cell phones to track to kidnappers in an Austin, Texas, case.  http://www.statesman.com/news/content/news/stories/local/08/4kidnapping.html

DUI vs. DWI in Texas

I am often asked the difference between the charges of Driving While Intoxicated and Driving Under the Influence. 

The confusion arises because the terms are used interchangeably in other jurisdictions.  In Texas, we have both crimes on the books.  Driving While Intoxicated is the name given to the run of the mill, had to much to drink and tried to drive - case.  Driving Under the Influence is the offense committed by someone under the legal drinking age who has any detectable amount alcohol in his system.  The difference between the two will become clear to many in the Houston area during the mayor's daughter's DWI trial. 

http://chron.com/disp/story.mpl/front/4088107.html 

She is under 21, but charged with the more serious crime of DWI, where prosecutors will have the burden to show that she had lost the normal use of her mental or physical faculties because she had too much to drink. 

Don't be surprised to see the charge reduced to DUI, a class C misdemeanor.

Andrea Yates Not Guilty by Reason of Insanity

Special salute to the attorneys involved in the Andrea Yates acquittal.  They worked for five years for no money and ultimately obtained justice for Ms. Yates.  http://news.yahoo.com/s/ap/20060726/ap_on_re_us/yates_trial

The two undeniable factors contributing to the jury's willingness to reach its verdict:  (1)  The passage of time and (2) the fact that the jurors were chosen from a pool of people that weren't "death qualified," (meaning because the first jury was a capital murder trial all of the prospective jurors who reject the death penaltly for philosophical or other reasons are automatically excluded from the jury.  The resulting panel is therefore skewed in favor of the prosecution.)

One big question that keeps popping up: What happens to Ms. Yates now?  She will be sent to a state mental hospital.  http://www.chron.com/disp/story.mpl/front/4073570.html  She has been in Rusk for the past few years.  http://www.dshs.state.tx.us/mhhospitals/RuskSH/RSH_About.shtm

Her condition will be reviewed periodically by the judge that presided over her trial.

Ms. Yates' case is one of four similar cases to go through the Texas courts in recent years where mothers have been found not guilty of killing their children by reason of insantiy. The Houston Chronicle has an excellent article analyzing the state of the law in Texas for an insanity defense. http://chron.com/disp/story.mpl/front/4075087.html

Peter Coors and the Breath Test

Beer Magnate Peter Coors finds himself in a pickle.  http://www.denverpost.com/news/ci_4070933

The myth of ".08" is in a jam. 

The advocates of the NeoProhibition have had success in recent years in getting state legislatures to drop the "legal limit" from .10 to .08.  NHTSA got on board and retrofitted their "field sobriety tests."  http://www.nhtsa.dot.gov/people/injury/alcohol/SFST/contents.htm  There have been recent pushes by MADD and the like to drop the limit even further -- to .05.  At that point, we truly have a "zero tolerance" situation where ingesting any alcohol before operating a motor vehicle exposes one to criminal liablity.  (For more on NeoProhibition, go here- http://www.foxnews.com/story/0,2933,171383,00.html )

It may all come crashing down in a courtroom in Colorado over the next few months where prosecutors face the uphill battle of bolstering their "opinion crime" case with a marginal breath test result. 

The public and the media will follow the case of Peter Coors because of the giggle factor involved.  Coors can afford the best defense with experts from around the country and world.  Law enforcement has its hands full.  Not only is the state's case probably tough to prove, the public will be educated on the pitfalls of the machine itself, retrograde extrapolation, reference sample temperature, breath temperature, body temperature, partition ratio and the myriad of other factors that make the breath test result an arbitrary number. 

The case is also worth watching because of the policy implications involved.  I was shocked to see Coors' comments after his arrest.   http://news.bbc.co.uk/2/hi/americas/5184214.stm  I'd hazard a guess that he had not talked to defense lawyer yet at that point, and was receiving advice from corporate lawyers and watching the price of his company's stock.  At play here, Coors constitutional rights, his desire not to offend the Neo-Prohibitionists, and law enforcement backing of a mythical .08 standard.

If only Dr. Hunter S. Thompson were here to chronicle it all.

National ID Card and Texas Drivers

For many decades the American public has resisted a "national identity card."  Looks like those days are behind us.  Before the days of identity theft, the citizenry resisted the social security card  because the program was viewed as a national identity card. http://en.wikipedia.org/wiki/Social_security_number   

State lawmakers are taking things one step further in an attempt to comply with federal REAL ID legislation. 

http://www.mysanantonio.com/news/metro/stories/MYSA071906.01A.National_ID.16c87a4.html

These measures should make a process that is already an administrative morass and turn it into an outright nightmare.  In my experience with the Texas Department of Public Safety and the drivers of this State, there isn't always a meeting of the minds.  The more complicated the process becomes, the more unlicensed and uninsured drivers there are.  Everybody loses. 

The phenomenon can be seen with the DPS surcharge program enacted by our legislature without a thought as to how it would be implemented.  The courts are backing up with untried DWI cases.  The roads are filling up with unlicensed and uninsured drivers. 

Pilots, Commercial Drivers

As seen recently in the Dallas Morning News, pilots who drink alcohol at or near the time of takeoff face stiff consequences. 

ttp://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/071106dnnatswpilot.cf1c14.html

What many people don't know is that a trucker or pilot who is arrested for driving while intoxicated AT ANY TIME is facing the total loss of his livelihood. 

The Texas legislature has even gone to the extreme of disallowing deferred adjudication on moving violations for commercial drivers who receive tickets in their personal vehicles. 

http://www.capitol.state.tx.us/tlo/78R/billtext/HB03588F.HTM

The elimination of this option is viewed by many prosecutors and judges as unfair. 

As with each added patently unfair penalty and assessment, the great equalizer is the jury trial and attorneys willing to take the cases to court.  As the courts become more clogged with people fighting convictions, perhaps the word will get back to the legislators that some of the measures enacted are ineffective.  One can only hope.

Obtaining an Occupational License

One of the biggest problems facing someone arrested for DWI conviction is the suspension of his license.  Rather than attempt to explain the detailed process from beginning to end over the phone to someone still reeling from the news that his license is suspended, I will send them the following letter about seven days before his license is suspended.

The letter serves as a good outline that a driver can use to keep street legal with all of the insurance and proper licensing that we come to expect from our fellow drivers.

The letter:

Mr. Joe Blow

San Antonio, Texas 78232

Dear Mr. Blow,

In the event that your driver’s license is suspended you may be eligible to obtain an occupational driver’s license. This license will permit you to drive to and from work and in the performance of household duties. An occupational driver’s license will typically permit you to drive twelve (12) hours a day, six (6) days a week in specified counties. We must meet the following requirements to obtain an occupational license:

OBTAIN SR-22: You must contact an insurance carrier to obtain an SR-22. This form is issued by the State of Texas and shows that you maintain financial responsibility for your automobile for the duration of your suspension. Please contact me for more information regarding this requirement.

FILL OUT SR-37: The SR-37 contains the same information usually found on your driver’s license. These forms are available in my office. It will be filed with the Department of Public Safety. You must fill out the SR-37 before I file the petition requesting the occupational license.

THE PETITION: I must draft a petition (a lawsuit) and file it with the appropriate court. In this petition I must include (1) the hours of the day you wish to drive, (2) the days of the week you wish to drive, and (3) the counties in which you wish to drive. You must sign this petition in front of a notary public. Once I file the petition, I must present it to a judge for his or her signature. County Clerks charges a  filing fee of $182 for the filing of the Petition. These filing fees are your responsibility as stated in our contract. Please contact me to discuss the exact amount. Once the petition is signed, I must have certified copies of the order made.

REINSTATEMENT AND DEPARTMENT OF PUBLIC SAFETY FILING FEE: The Department of Public Safety (“DPS”) charges a fee of $125 to reinstate your driver’s license and a $10 fee to process your occupational driver’s license. Please send a check for $135.00, made payable to Sam H. Lock. I will then write a check from my client trust account to DPS to pay for the Reinstatement and DPS filing fee. (Note: You may combine the $135.00 DPS filing fee with the County Clerk filing fee so that you only have to send one check.)

If you have any questions, please call.

                                                                            Sincerely,


                                                                            Sam H. Lock