Collin County Criminal Lawyers Blog

One thing to remember when you are pulled over by the police is that you are on camera. From start to finish your encounter with the law will be recorded in all of its glory. Another thing to remember is that the officer also has a shoulder microphone that is recording your conversation that is synced with the video. When the conversation with the officer turns into a DWI investigation, that's when these two police tools can really conspire to cause your case serious harm.

If you find yourself in the middle of a DWI investigation, remember that silence truly is golden. If your case goes to trial most everything you say will be played to the jury. It's very hard to keep the statements suppressed as the State will argue that your statements are admissions of your guilt which will come into evidence--for example you boasted that you drank 10 beers, or you told the officer you couldn't have done well on the roadside tests even if you were sober. Or the State may argue the statements are relevant because they go to the issue of whether you were intoxicated or not--such as if you were obnoxious with the officer, or had quick mood swings. Most likely the State will make both arguments and you are stuck listening to those statements at trial. Even if you think you are being funny, the statements are usually seen in a different context when the jury is sitting 10 feet from you.

To go along with any statements you make, the jury will also be watching your performance on the field sobriety tests. So again, less is more. I recently saw a case in which the Addison Police Department added a new toy for DWI enforcement to its arsenal. In addition to the camera on the dash of the patrol car, there was also a camera mounted on the shoulder of the officer. This type of close range camera work can really be a less than becoming piece of trial evidence against you.

Let's say the investigation has not gone well and you were arrested, but so far your video looks pretty good for trial purposes--you did not say anything too harmful and did reasonable well on the field sobriety tests. You will now be placed in the patrol car for the ride to jail. Sometimes the officer may decide to chat it up with you on the ride. It's important to keep in mind that you are still being videotaped and recorded--now is not the time to relax and confess how really hammered you are, or discuss anything else related to the evening. Silence is golden remember. And it is never a good idea to bang your head against the cage between the front and back seats of the patrol car.

When you are taken to the intoxilyzer room at the jail, you are still on camera. This is the point in the evening when the police will ask you to take the breath test and advise you of the consequences of refusal of the test. Consider this for what it is--another opportunity for you to do a number on yourself. Again, remember less....is always more...

Be safe out there. If you have had a few, call a cab--taxicab confessions are harmless compared to the alternative.

You just took a conviction for DWI--either you plead guilty or you went to trial and unfortunately, the case was lost. You are lucky though, you are not going to jail, but you are being placed on probation. As part of the probation, you will discover that you have to pay a fine, pay court costs, make a small donation to your local crime stoppers fund-around $25-$30, take a DWI education class, go through a substance abuse evaluation, depending on the facts of your case perhaps a deep lung device will be required to be placed on your vehicle, and take a victim impact panel class (VIP). In my practice I get a lot of questions regarding the VIP, in short what the heck is it?

The VIP is an awareness program for drivers that have been convicted of DWI. Anyone can attend the VIP, but it is mandatory for those who have been convicted of DWI. The Panel is a presentation by those who have lost family members or friends to drunk/intoxicated drivers. The presentation is not supposed to be confrontational or judgmental in nature. However, the class is a reality kick in the stomach to those attending as the panel presenters relate how their own lives have been changed forever by the actions of drunk drivers. The panel focuses on real life stories of trauma, emotional/physical suffering/pain, financial loss, anger, and frustration--emotions commonly experienced by innocent victims following an alcohol or drug related vehicle wreck.

The class serves two missions: 1) it benefits the attendees in that it gives them a moment of pause to consider the severe consequences of driving while intoxicated and may be the first step to recognizing a possible addiction the person may have and getting help; and 2) it benefits the victims in that telling their stories and sharing their stories may help their healing process and hopefully experience something positive from their devastating experience.

The VIP takes about 2.5 hours to complete and costs about $30.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
Collin County 24 Hour Jail Release 214-402-4364
www.rosenthalwadas.com

A common question I hear from folks facing DWI charges is what is a deep lung device (DLD) and how do I keep it off my vehicle? It's a good question and one that certainly should be addressed.

To start with, a DLD is a portable machine that is installed on the vehicle to prevent the car from starting if it detects alcohol in the driver's system. In order to start a vehicle with a DLD, the driver must blow into the DLD and the driver's blood alcohol concentration (BAC) must be below .030. As long as the driver's BAC is below .030 the car will start. The DLD also requires the driver to blow into the machine every 20 minutes while operating the vehicle, or the car will shut down. The concept is simple--keeping drunk drivers from being able to start their cars. Sounds like a pain in the rear huh? Well, it is. And you have to use it, or the courts and probation folks will think you are not driving your car. That's right, failure to start the car with the device on it 100-125 times a month may signal that you are driving another vehicle not equipped with a DLD.

If a person accused of DWI is released from jail via a writ bond-which is a mechanism in Dallas and Collin Counties that allows a person's bond to be set if they have not seen a magistrate judge-that person will have a hearing before a Collin County Court At Law judge within 10 days to determine whether a DLD will be installed as a condition of bond. At the hearing the judge will consider:

• the person's driving record and see if there have been any prior alcohol related offenses;
• whether there has been an accident;
• is the person's BAC above a .15; and
• whether this is a person's second DWI

If the person's BAC is above a .15, or it is their second DWI, Texas law requires that the judge require the installation of a DLD. If there was an accident, the judge certainly has discretion to order the installation of the DLD if he/she believes it is in the best interest of the public.

If a DLD has not been installed as a condition of a person's bond, it may be added later as a condition of the DWI probation. Or in some cases, a DLD is required as a condition for the person's occupational driver's license.

The expense of a DLD adds up as well. The device costs about $100 to install and about $70 a month after that. These costs are approximates as they change over time. Also, the person is required to return to the installer at least once a month to have the device calibrated. Failure to have the device calibrated could result in forfeiture of the person's bond, which means a return trip to jail. There are a variety of providers for the DLD device in Texas, and a person should do their homework to determine which provider is the most user friendly.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
Collin County 24 Hour Jail Release 214-402-4364
www.rosenthalwadas.com

Juvenile law in Texas is different than what you think it might be. It's a mix of both civil and criminal law and uses terms that may be foreign--even to lawyers not familiar with the process. The attitude of the juvenile judge can do a lot to hinder the progress of either the defense attorney, prosecuting attorney or both. Tough love is usually the concept behind juvenile law. This because, it is similar to federal court in that a juvenile typically does not have a right to a jury assessing punishment and the judge must follow a sentencing guidelines.

The real sticking point of the juvenile system for most parents is that children accused of more serious crimes can be held in custody until the time of trial. The juvenile system is not considered a punitive system, but one of rehabilitation; therefore juveniles are not given a bond--with no bond being set you can't bond them out of jail and there they will sit. In some cases, the child will be released pre-trial by agreement. However, if the State does not agree to the release of the child, the child will receive a hearing to determine whether or not there is probable cause to believe the child committed the offense. The hearing will also be used to determine if there is probable cause to believe various conditions apply, one of which is whether suitable supervision is being provided at home and whether the child is following the supervision. The supervision condition may be very difficult to get around considering the child is before a judge in the first place and that may speak volumes about what the judge is going to think about the parental supervision.

Juvenile hearings can be very difficult to win. And the ability for the juvenile court to detain a child pre-trial also creates a situation where the child's confinement can exceed his maximum potential sentence. However, a major difference between juvenile law and criminal law is that a child does not get back time credit for the time he/she is confined.

If your child is facing juvenile charges, you should seek the counsel of a lawyer to help navigate the process.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
24 Hour Jail Release 214-402-4364

Well, it appears Collin County has changed its writ bond policy yet again. Once more, an attorney can file a writ bond (or attorney bond) for a person booked in on a Class A misdemeanor variety DWI 1st with a BAC (blood alcohol level) above .15, or DWI 2nd-that does not have bond set--remember, you can't get out of jail without a bond being set. The filing of the writ still triggers a setting of a cash bond of $500 for the above DWI offenses. With the bond set, the person can now have the bond posted and get out of jail. The latest twist is that a Deep Lung Device (DLD) will be ordered to be installed on the arrested person's vehicle at the time they are bonded out of jail if they are facing the charges detailed above.

To recap, I had blogged on May 13, 2012, that Collin County changed its attorney writ bond policy for certain DWI charges. The new policy blocked attorneys from filing writs (or attorney bonds) on the following DWI arrests:

• DWI 1st offense with a BAC higher than .15; and
• DWI 2nd;

The reason for the policy shift was to allow an arrested person facing such charges above to be evaluated by the magistrate judge at the jail to determine whether a DLD would be required to be installed on their vehicle as a condition of bond. The arrested person's bond would be set at the jail at the same time, instead of being able to have bond set via the attorney writ bond and having the hearing to determine whether the DLD should be installed within 10 days after the person's release from jail. The policy change would mean the folks facing such charges would mostly likely spend more time in jail waiting to see a magistrate judge. In Collin County, the magistrate judge only sees inmates on weekday and Saturday mornings usually between 8:00 am and 10:00 am. What this means is if you are not booked in by the time the magistrate judge leaves for the day, you will have to sit for another day until the magistrate returns the next morning--and hopefully the next day is not a Sunday because the magistrate judge does not come in on Sundays, or on holidays for that matter. This is unlike Dallas County that has magistrate judges available 24 hours a day.

The latest policy change is a good one considering people facing DWI 2nds, or DWIs with a BAC above a .15 will have a DLD slapped on their vehicle by just about any sitting judge in the State of Texas. So, having a DLD issued as a condition of bond while still enabling the arrested person to use a writ bond as a vehicle to get their bond set when a magistrate is unavailable strikes a reasonable balance between the safety of the community and the rights of those accused.

bo@kalabuslaw.com
Office: 972-562-7549
Collin County 24 Hour Jail Release 214-402-4364
www.rosenthalwadas.com

Late last week in Fairfax, VA, General District Judge, Ian O'Flaherty, dismissed the DWI case pending against former head of the Federal Aviation Administration, Randy Babbitt. According to police, Mr. Babbitt was pulled over for allegedly driving on the wrong side of the road in December. He was subsequently arrested for driving under the influence. When the news of the arrest became public, Mr. Babbitt resigned his position with the FAA.

Mr. Babbitt's case was set for trial and from what I can glean from the news accounts it appears Mr. Babbitt's lawyers filed a motion to suppress the traffic stop. This is lawyer speak for arguing that the police had no reasonable suspicion to stop Mr. Babbitt in the first place. In a DWI case, if the police had no reasonable suspicion to make the traffic stop, it does not matter how the person did on the filed sobriety tests, or what their blood alcohol content was because everything that happened after the bad stop is thrown out. And that is exactly what happened in Mr. Babbitt's case. After review of the police videotape of Mr. Babbitt's traffic stop at the suppression hearing, Judge O'Flaherty agreed that the stop was just a "hunch" and dismissed the case prior to prosecutors being able to present evidence of Mr. Babbitt's alleged intoxication. The videotape showed Mr. Babbitt making a normal left turn into a parking lot.

This goes to show that all DWI cases are alike and they can be successfully defended. If you are accused of a DWI, you should have your case reviewed by a competent attorney to make sure your rights are protected.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
24 Hour Jail Release 214-402-4364

Collin County has announced it changed its attorney writ bond policy for certain DWI
charges, which started this May. Until recently, a person booked in on DWI of Class B or A misdemeanor variety -DWI 1st, DWI 1st with a BAC (blood alcohol level) above .15, and DWI 2nd-that did not have bond set (you can't get out of jail without a bond being set) could have an attorney file a writ bond. The filing of the writ triggered a setting of a cash bond of $500 for the above DWI offenses. With the bond set, the person could then have the bond posted and get out of jail. The reason for the lag in the bond setting is because the Collin County magistrate judges only set bonds on weekday and Saturday mornings, usually between 8:00 am-10:00 am. So if a person is booked in after the magistrate has left (the booking in process can take anywhere from 4-12 hours or longer), then they are sitting in jail for another day. Also, if the arrest happens on the weekend--especially a holiday weekend, the person could be sitting in jail for up to 2-3 days waiting for a bond to be set. After an arrested person was released on a bond trigged by a writ bond filing, the person had to have a hearing before a Collin County Court at Law Judge within 10 days to determine whether a Deep Lung Device (DLD) needed to be installed on their vehicle.

Now, Collin County requires that with certain DWI arrests, the arrested person must be evaluated by the magistrate judge at the jail to determine whether a DLD is required and have the bond set at the jail instead of being able to have bond set via the attorney writ bond and the hearing within 10 days after release. From a writ bond perspective, the following DWI arrests are affected by the new policy:

• DWI 1st offense with a BAC higher than .15; and
• DWI 2nd;

This means that if you or a loved one are facing the above charges, the person will be spending more time in jail waiting to be seen by the magistrate judge to determine whether a DLD is required and having the bond set. There has been no mention of increasing the number of magistrate judges at the Collin County jail or whether their hours at the jail will be increased to help offset the new work load, so the folks booked on these charges can expect delays on getting out.

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
24 Hour Jail Release 214-402-4364

Anyone can go out and have a few drinks, think they feel fine, and get behind the wheel to head home. On the way home, the person can be pulled over for some minor traffic infraction--7 mph over the speed limit, no signal on a lane change, a minor swerve within a lane, etc. These infractions would never get a second look from the police in daylight hours, but after midnight these are fair game for police looking for suspected drunk drivers. When the police go to the window of the vehicle and smell booze, the DWI investigation begins and then ends very quickly with the person being arrested.

Don't think it happens this way? Ask Jane McGarry, a longtime KXAS-TV Channel 5 Dallas news anchor, whom was arrested early Sunday in Dallas County on suspicion of DWI. If you live in the local area, I'm sure you've probably watched her deliver the news on one occasion or another. If you watch her often, you may even think you know her, or consider her part of your family.

According to the news reports, McGarry was pulled over in her Porsche by DPS on the Tollway after failing to signal a lane change. The news also reported McGarry failed the "walk and turn" and "one leg stand" field sobriety tests. Frankly, it does not take very much to fail these tests and the tests themselves are subjective in nature, so the term "failure" in my opinion regarding these tests can be greatly overblown.

McGarry also admitted to drinking three glasses of wine according to the news reports and refused the breathalyzer test --which is completely her right to do so. At that point, based on the timeline of a typical DWI investigation, she would have already been under arrest anyway. Next, the reports indicate that McGarry was then subject to a mandatory blood draw, which means in my mind based on the reported facts, following the breath test refusal the DPS trooper took the time to contact a judge to get a warrant to draw her blood if she refused the blood test as well. It will take some time to get those blood results back from the lab.

McGarry will be facing a tough and perhaps embarrassing road ahead, but it's a survivable road. With no prior convictions on her record, she's looking at a misdemeanor level offense. I always tell folks that come see me that misdemeanor level offenses are usually things that happen to good people on bad days. I do wish Ms. McGarry the best of luck on the defense of her case.

A DWI can happen to anyone. If ever in doubt, play it safe and call a cab because trust me when I say being charged with a DWI is road that should be less travelled.