Triple Zero May Not be the Winning Number

As a recent arrest of celebrity golfer Tiger Woods highlights, even blowing .000 on a breathalyzer machine will not fully protect you from a charge of DUI or, in Texas, DWI.  The breathalyzer machine only tests for the presence of alcohol in the subject’s breath (and thus, their blood).  The machine will not detect the presence of many other substances that can lead to intoxication.

As a reminder, intoxication Texas is defined  as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body” or by having a blood alcohol concentration of 0.08 or more.  It is only for that last method of proving intoxication – the blood alcohol concentration – that the breathalyzer machine can speak to.

Beyond just alcohol which can be detected by the breathalyzer machine, intoxication can stem from the ingestion of controlled substances such as illegal narcotics, or even legally prescribed medications.  Even over the counter medication, if it renders the user “not normal” can lead to intoxication under Texas law.

Another aspect of intoxication that will not register on a breath test machine is the synergistic effect  that may occur when two or more substance are taken together or with alcohol.  Chemicals can often enhance and multiply the effects of each other when taken at the same time.  Legal, illegal, prescribed or over the counter, drugs that do not show up on a simple breath test may still be quite intoxicating to the user.

As always, be careful what you ingest, know your limits, and drive safely.

Misdemeanor Ranges of Punishment in Texas

when arrested in round rock
A basic, yet vitally important aspect of a criminal case is what is the level of the offense charged.  The level of offense determines the maximum and minimum punishments should a defendant be found guilty.  In Texas, as in most states, most criminal offenses can be broken into two broad categories, misdemeanors and felonies.  Today we are going to are going to focus on misdemeanors.

For a misdemeanor, the worst punishment is confinement in the local county jail.  So we are not talking about prison, simply confinement in the jail probably located in or near the county seat.  For felonies, however, the worst punishment is confinement in prison, which in Texas we refer to as TDC or TDCJ (for the Texas Department of Criminal Justice).  But again, today, we are just talking about misdemeanors.

Now misdemeanors in Texas are further subdivided into three different penalty ranges.  For misdemeanors, Texas ranks them from least serious to most as follows:  Class C misdemeanors at the bottom, then Class B, then Class A misdemeanors.  Let’s look at each.

A Class C misdemeanor is what we would normally consider “just a ticket”; where a police officer stops the defendant, writes a ticket and lets them go with a promise to appear in court later.   Here we are talking about relatively minor offenses such as Disorderly Conduct or Public Intoxication.  You can be arrested on a Class C Misdemeanor, but that’s rare.  A Class C misdemeanor in Texas can result in a fine of up to $500.00 plus court costs and that’s it, no jail time, no probation, just a maximum fine of $500.00 only.

Next on the level of seriousness in Texas are Class B misdemeanors.  Unlike with Class C misdemeanors where you’ll likely just get a ticket and not go to jail, Class B misdemeanors typically result in arrest.  Typical examples are first offense DWI’s, Possession of Marijuana less than 2 grams, and Theft from $50.00 to $500.00.  A Class B misdemeanor carries a range of punishment of 0 to 180 days in the county jail, or up to 2 years of probation, and/or a fine from 0 dollars to $2,000.00.

Last on the Texas misdemeanor punishment ladder are Class A misdemeanors, representing the most serious misdemeanors according to the legislature.  Here we are talking about crimes such as Assault Causing Bodily Injury, Resisting Arrest, second offense DWI’s, and others.  Class A misdemeanors in Texas carry a range of punishment from 0 to 365 days in the county jail, or up to 2 years of probation, and/or a fine from 0 dollars to $4,000.00.

Above the Class A misdemeanor range we get into the realm of felonies, which I’ll discuss in a forthcoming post.


Pre-Trial Release Officers


Who acts like a probation officer, and talks like a probation officer but isn’t a probation officer?  Well, they go by many names; some counties may call them a pre-trial release officer, or a bond compliance officer or a pre-trial services officer.  But whatever the name, the job is the same: to monitor a defendant’s compliance with their bond conditions.  Now we have discussed bond conditions in an earlier post, and they are a list of things that a court has ordered a defendant who is out on bond to do, or not do, or risk having their bond taken away or raised.  Well, who checks to see if a defendant is following those rules?  You guessed it: the pre-trial release officer (or whatever name that county has for that job).

If a defendant is assigned to a pre-trial release officer, the experience is much like being assigned to a probation officer.  You will meet with them and let them know some information about you like where you live, where you work, and various ways to get a hold of you.  This person has a job to do: to monitor you.  They are not paid to be your friend or to be your enemy, they are simply there to report compliance or non-compliance. If you follow the rules, they can be useful in the court proceedings (more on that later).  But if you don’t follow the rules, they are supposed to report that failing to the judge and the prosecutor’s office.  It’s not personal, it’s their job.  What the court and/or the prosecutor’s office does with that information is up to them.  As for the pre-trial officer, they have no independent power and are simply there to gather information and monitor you.  They can’t lock you back up, but they can certainly report you to the people who can.

Defendants assigned to a pre-trial officer will generally be given a set schedule for when to meet in person.  These meeting dates and times are important: this isn’t Supercuts; bond compliance officers don’t like drop-in customers.  Additionally, if a defendant was court-ordered to do something like install an ignition interlock in their car, or report to drug counseling, or provide proof of employment, expect that all that paperwork showing proof of compliance (receipts, certificates, paystubs, etc.) will need to be turned over to the officer.  A safe bet would be to keep a copy for your own records of anything that is turned over, in case something gets lost or misfiled, you will then be able to have your own proof if needed.

As frustrating and intrusive as having to report to a pre-trial officer is, there is one potential upside.  A defendant who is following the rules now has a neutral court officer who can report to the judge or prosecutor that the defendant is in fact doing what they have been told.  This is what I call “building a record of success”.  Meaning, that compliance officer is now documenting that every hoop the defendant was asked to jump through, they did.  This can help a defense attorney in negotiations with the state sometimes when perhaps the prosecutor was not inclined to offer probation or deferred adjudication.  A neutral record of success may be just the ammunition needed to help sway that reluctant prosecutor.

Of course, the downside of a having a compliance officer monitoring you is that if you are breaking the rules, you are now creating a record of failure.  Such a record can certainly impact how the court, the prosecutor, and perhaps even a jury might see you.  The safest bet as always is to follow all court-ordered bond conditions to the letter.

Out on Bail but Not Out of Trouble: Bond Conditions


A person gets arrested, goes to jail, makes bail and gets released.  Other than showing up for court, he’s got nothing to else to worry about, right?  Unfortunately not, in many cases.  In Texas, Chapter 17 of the Code of Criminal Procedure authorizes judges to set what are called bond conditions on a criminal defendant.  Each of these conditions are things that the defendant must do, or must not do, or risk having their bond either revoked (taken away) or their bond amount raised, either of which can mean going back to jail.

These bond conditions fall into two categories, general and offense-specific.  Let’s talk about general bond conditions first.  General bond conditions are broadly-worded warnings from the judge to the defendant like “don’t break the law”, or “don’t use drugs without a prescription”, or “make all your scheduled court appearances”.  Let’s say you are out on bail for offense X and then six weeks later you are arrested again for offense Y, well, the judge on offense X can revoke or raise your bail for that original case.  That can mean another trip back to jail, and more money out of your pocket to get free.

General bond conditions don’t even have to be formally ordered by the judge to take effect.  It is simply assumed that defendants know that if they break the law, use illegal drugs while out on bond, or skip out on court, they are putting their bond at risk.  As the old saying goes, ignorance of the law is no defense.

While general bond conditions can apply to any type criminal charge, offense-specific bond conditions are, as the name says, linked to that particular offense.  For example, an alcohol-related offense can trigger a bond condition that the defendant must use an ignition interlock device on their vehicle or must wear a SCRAM alcohol ankle monitor.  White collar or financial crimes may trigger bond conditions to not hold other people’s money in trust or even handle money at a charity event.  Family violence allegations can trigger a whole host of bond conditions such as being forbidden to possess firearms, to have no contact with the alleged victim of the offense, or even being subject to GPS monitoring.

And the list goes on and on.  Computer crime?  There can be a court order to stay off the internet.  Crimes against a child?  There can be an order to have no contact with anyone under the age of 18.  The possibilities are almost endless.  The law in Texas gives judges the ability to order any “reasonable bond condition” on a criminal defendant who is awaiting their ultimate day in court.  Now, what some may see as reasonable, someone else may consider to be overly burdensome.  So even though a criminal defendant is considered innocent until proven guilty, the experience of being a criminal defendant out on bond can sometimes not feel that way.


DWI vs. DUI: What’s the (Texas) Difference?


DWI: Driving While Intoxicated. DUI: Driving Under the Influence.  Two possibly similar Texas crimes, with two very different potential consequences.  In many states besides Texas, any allegation of driving while under the influence of alcohol is considered DWI.  In contrast, in those other states a DUI is charged when there is suspicion of driving under the influence of drugs.  DWI for alcohol.  DUI for drugs.  Simple really.

Well, sometimes here in Texas we do things our own special way.  In Texas the difference between a DWI charge and a DUI charge can hinge on two factors, the level of intoxication, and the age of the driver.

Let’s talk about DUI first.  In Texas, if a driver under the age of 21 has any detectable amount of alcohol in their system – even if it is not impairing them behind the wheel – they can be charged with a DUI.  The thinking is that in Texas, since it is illegal to consume alcohol under 21 anyway, the State can criminalize the conduct of younger drivers who drank any amount of alcohol.

A DUI in Texas is considered a Class C misdemeanor, which can result in a fine of up to $500.00, but cannot result in any jail time.  A DUI will get your driver’s license suspended however, anywhere from 60 to 180 days depending on the amount of prior alcohol-related driving convictions you have on your record.

Now let’s look at a DWI.  In Texas, a person is considered driving while intoxicated if they are operating a motor vehicle while either not having the normal use of their mental or physical faculties due to alcohol, drugs, dangerous drugs (i.e. prescription medications), or a combination of those substances, or by having a blood alcohol content (BAC) of .08 or higher.  As we see here, neither the age of the driver, nor the type of substance consumed has any bearing on the charge.  Alcohol, drugs, it doesn’t matter: if something makes you mentally or physically impaired, meaning “not normal”, and you drive, you risk a DWI charge.

While a DUI is merely a Class C misdemeanor which cannot result in jail time, a DWI is at least a Class B misdemeanor which carries a potential penalty of up to six months in jail or two years of probation and up to a $2000.00 fine.  And that’s just for your first conviction.  The second conviction is a more serious Class A misdemeanor while a third conviction is considered a felony with the possibility of prison time.

And don’t think that if you are under 21 you will only be charged with that lower DUI offense.  If the police think that you are exhibiting signs of a true DWI, they are free to charge you with that higher offense.

As always, take care of yourself, be careful what you consume, and drive safe.

Who Owns the Case?

I have heard a variation of that question many, many times.  And it is a perfectly reasonable question.  Many people think that with a phone call from the complaining witness / victim to the police, a judge, or the prosecutor’s office, a case can get dismissed.  It’s logical to assume that if a victim was the person who called the police in the first place to get the ball rolling on criminal charges being filed against a defendant, that same person can call or do something to make those same charges get dropped.  Logical, yes…but totally wrong.

Why is that?

The answer is that in Texas, the State owns the case from the minute the police arrive all the way until the final disposition of the case.  That means first the responding police officers, and later the local prosecuting attorneys, have complete discretion on whether or not a case gets filed, and whether or not a case goes forward to prosecution.  Although the victim in a case can ask to have charges dropped, they have zero control over the case.  Fair or not, the prosecutor’s office has the final call.

If a victim tries to call in or correspond with the prosecutor’s office in an effort to get a case dropped, it is not unusual for that office to refer the person to a Victim’s Advocate Coordinator (or VAC).  Via a phone call, email or face-to-face meeting, the VAC will typically talk to the victim and make sure they are not being pressured or threatened by anyone into asking to have charges dropped.  It is important to consider that these VAC don’t work for the victim or the defendant, they are employees of the prosecutor’s office, with all that entails.  It has been my experience that while some VACs are diligent about making sure the victim’s wishes are recorded in case file, others frankly are obstructionist and actively seek to dissuade the victim from requesting to have the case dropped.  In any event, the VAC will likely tell the the victim to fill out an official form requesting a case be dismissed, such as an Affidavit of Non-Prosecution, rather than requesting it over the phone or in an informal letter.  But again, fancy or formal, the victim’s request to have a case dismissed carries no official weight.

This is not to say that the victim’s request to drop charges is meaningless.
The accused’s defense attorney would love to know that a victim is feeling this way.  And an experienced prosecutor, too, should find this information useful as they are weighing and prioritizing court resources.

There is a hidden benefit to defendants when the State has total ownership over a case.  Just like a victim cannot force the State to drop charges, they cannot force the State to file charges in the first place, or force the State to work a case out in a particular way.  A victim cannot, for example, force the police to file charge X instead of charge Y or make the State’s attorney only offer prison time in a case and not offer probation.

For good or for bad, once a criminal case gets filed  in Texas, the State has complete ownership of the case unless and until the matter is finally put to trial before a judge or jury.

Police Bodycams: For Every Solution, Two New Problems

A very compelling article from the New York Times is worth a close read.  It details some of the dizzying array of problems that may arise with the bulk collection, retention, and distribution of body camera video by police agencies.


At first blush it seems that the bodycam can be a great tool to foster greater transparency and police accountability.  But as the saying goes, there’s no such thing as a free lunch.

And I’m not talking just about the mundane financial costs of the installation, training, and maintenance of the devices themselves.  As this article so clearly articulates, there are other, hidden costs.  What is the financial costs associated with staffing governmental agencies to deal with responding to the requests for these videos?  What systems need to be implemented to deal with the redaction of sensitive information (if any) from the videos?  And also, what is the ultimate cost to privacy?

If you are subject to a routine police stop, let’s say for speeding, who is entitled to a copy of the video of that encounter?   What if no arrest was made, but say an officer was simply responding to a person in emotional distress?  Who is allowed a copy of that video, which perhaps documents someone at a very low and vulnerable time in their life.  And once the copy is obtained, what are the limits of its distribution?  Should they be allowed to be posted up on YouTube?

Ultimately, the mass use of police body cameras, now being hailed as the next great innovation in law enforcement, can create just as many issues as they solve.

Future Dangerousness: Skin Color is Not a Crystal Ball


The U.S. Supreme Court will hear arguments this week about whether a Texas defendant, who had previously been sentenced to death, should be allowed a second sentencing hearing because the jury heard evidence from an expert witness (called by the defense!) who testified that the defendant was more likely to commit violent crimes and pose a future danger because he is black.  In the case of Duane Buck, as well as in six other Texas death penalty cases, psychologist Walther Quijano testified that based on his research, a black defendant was statistically more likely to commit violent crimes because of his race.

The issue of future dangerousness is critical in Texas law because without a unanimous finding by the jury that the defendant on trial for a capital offense poses a future danger to commit violent acts, that defendant cannot be sentenced to death and must instead be sentenced to life in prison.  In the Buck case, the original jurors sent several notes to the court during their deliberations, with many of their questions having to do with the issue of future dangerousness.

It is interesting to note that in the six other capital cases that this “expert” offered the same type of testimony, Texas conceded error during the appeals process and agreed to conduct a new sentencing hearing on the issue of life in prison versus death.  In this case however, under a new Attorney General, Texas is not conceding and is requiring this defendant to make his case before our highest court.

I think it is frankly unconscionable for Texas to stand behind the shocking testimony from this discredited so-called “expert”.  They punted on six cases already, and I’m afraid to say they should just grit their teeth and punt on the seventh.  As a former prosecutor of murder cases I know what a new sentencing hearing entails: re-opening old wounds to a victim’s family, hunting down witnesses that may have moved, retired or even passed away, marshalling trial evidence that may have been archived in a vault somewhere (or lost!) for years.  I know.  I’ve been there.  But when the State is going for the utmost punishment – death, the ultimate negation of one’s life, liberty and pursuit of happiness — it’s best to do it with clean hands.  If Buck deserves death, let a jury deliver that sentence, but a jury who has not been tainted by evidence that so improperly attempts to link the color of their skin to the content of their character.

Parking While Black

Court Grapples with “Parking While Black” Scenario

The 7th U.S Circuit Court of Appeals is hearing arguments in a case that involved police officers searching a parked car.

Sounds pretty routine?  Well, this particular search, in the opinion of at least one law professor, this case involves “an egregious instance of police aggressively targeting black motorists who may be illegally parked”

Police can justify a detention of a person if they witness an infraction of the law.  If that detention leads to the discovery of evidence of a crime, that evidence will likely be held admissible.  This is the common, everyday scenario where an officer observes perhaps a traffic violation in a moving vehicle, stops that vehicle, makes contact with the driver and then based on contact with the driver or based (let’s say the driver is acting intoxicated) on a view of the inside of the vehicle (maybe they see an open container of alcohol or evidence of drug use), develops probable cause to search the car further or even arrest the driver.

In the situation before the 7th Court, the police saw a vehicle which had parked too close to a crosswalk.  Based on that infraction, they parked their patrol cars in a manner to block the suspect car in, and then made contact with the car’s occupants.  They observed a back seat passenger with a gun and subsequently arrested him for unlawful possession of the firearm.  That defendant sought to exclude the gun from evidence under the theory that it was obtained in violation of the Fourth Amendment.  A three-person panel of 7th Circuit judges had previously ruled that the officer’s detention and search were justified and not in violation of the Fourth Amendment, but that decision has been vacated and the entire court will hear the issue on re-argument.

The crux of the matter is whether or not this court will give a stamp of approval to the police detaining and searching for violations of essentially such de minimus statutes as municipal parking ordinances.  No one denies the police’s right and authority to pass by a parked car and shine a flashlight inside.  But to block a parked car with trio of patrol vehicles, essentially creating an instant detention of the vehicle’s occupants, should that be given the judicial thumbs-up?

Although 7th Circuit decisions are not binding here in Texas, nevertheless a case to keep one’s eye on.  What appears in another federal Circuit one day may certainly appear in the 5th Circuit or a Texas state court, or even the United States Supreme Court, another day.

The High is Gone, but the Evidence Lingers On

Testing for Marijuana Usage

The place: any courtroom in any jurisdiction in America.

The time: all day, every day…or at least Monday through Friday.

The players: a defense attorney and a client, and sometimes a judge and/or prosecutor too.

The question (nice version): “Can you pass a drug test TODAY?” or

The question (graphic version): “Can you pee clean TODAY?”


As a proof of bond or probation compliance, as a condition of a plea-bargain, or simply because a defendant was acting strangely in court, drug screening of defendants via a urine analysis (UA) test is a well-established part of today’s criminal justice system.  With that in mind, let’s look at some important facts to consider regarding UA testing and the use of marijuana.

Many illegal drugs are water soluble, that is, they dissolve in water.  What that means for your body is that they arrive, do their thing, and then rapidly get excreted out by the body through its natural elimination processes when you go to the bathroom.  Although there will be traces of the drug in your system, the body is not “storing” the drug anywhere inside your body, so the traces will be hard to detect in even a few days, generally.  Of course there are variables such as dosage size and what exact drug is being checked for.  But again, generally speaking, a simple UA will not detect the presence of many illegal narcotics if the user consumed the drug more than a week prior.

Marijuana however, is quite different.  The active ingredient in marijuana, tetrahydrocannabinol (THC), is extremely fat soluble (link:  Once consumed, fat soluble substances (legal or otherwise) are dissolved and stored in the body’s fatty tissue and liver.  The body wants to hold on to these fat soluble substances.  Thus, unlike the water soluble drugs, fat soluble drugs leave the body very slowly.  Slower time exiting the body means a much longer detection time.  As such, a UA can detect the usage of marijuana anywhere from three to six weeks prior to testing.

It is important to note that generally UA testing is not checking for THC itself, but rather for a substance called 9-carboxy-THC.  This substance is created by the body in reaction to exposure to THC and stays around in the body far longer than the THC itself.  The high is gone, but the evidence lingers on.

The rate that THC and 9-carboxy-THC is eliminated from the body is highly variable from person to person.  Someone may “test clean” after a less than a month, while another person may “show dirty” for pot even five or six weeks later.  Some of the variables that may increase or decrease the detection time include the potency and amount of marijuana consumed, how frequently the user has used marijuana, the method of ingestion, and the general variances in the metabolism from one person to the next.

Now all of this is not intended to give anyone the “inside scoop” on how to beat a UA for pot.  Rather, I hope that learning more about the physiology of the marijuana in the body will lead to a better understanding of the significant risks one runs when choosing to consume marijuana while you have a criminal case pending.  Fair or not, when you find yourself as a defendant, Big Brother IS watching you.  It’s best to play it safe.


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