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The short answer is yes. While your vehicle may be modified in an entirely safe and responsible manner, the police have the right to complete safety inspections on a vehicle. If the officer looks at your vehicle, and has reason to believe that your car may violate a state law concerning equipment or safety – such as headlights, taillights, noise or ‘general safety’, they may pull you over and inspect your vehicle. If, while they have you pulled over, they notice something out of place – such as the odor of marijuana, evasive attitude or signs of intoxication – they may begin to investigate those items of interest. Thus, if it’s modified, be careful.

In April the United States Supreme Court handed down its decision in Missouri v. McNeely and held that, when a person is unwilling to give a blood sample, a warrant is necessary. The Court ruled that the Fourth Amendment requires that a court issue a warrant if law enforcement wish to draw a person’s blood because in run-of-the-mill DWI/DUI cases the exigency exception to the warrant requirement does not apple. Missouri had argued that the fact that blood alcohol levels dissipate as time passes created such an exigency, however 5 justices, including Justice Sotomayor disagreed. Previous case law has influence the typical procedure. When they suspect a driver of DWI/DUI, law enforcement will often try to extract their blood to show intoxication. To do so, they generally take the driver to a medical facility where a phlebotomist or other medical professional will conduct the blood draw. From the viewpoint of the state, the obvious and unavoidable delay in time creates a per se exigency which should allow the state to bypass the Fourth Amendment’s warrant requirement where a search or seizure (here, a search) is conducted by law enforcement. The Court, in disagreeing with Missouri, instead held that a totality […]

The 9th Court of Appeals released 3 opinions today, all memorandum opinions: 1. DANNY WILBURN GREEN v. LISA A. GREEN – Affirmed The Court affirmed the 284th District Courts orders relating to a divorce matter. The first issue concerned a Mediated Settlement Agreement, specifically that the trial court erred by not following that MSA. The Court found that the trial court was not in error. The second issue raised was the sufficiency of the trial court’s implied finding of fraud by Appellant. Again, the Court saw fit to affirm the 284th District Court’s ruling. 2. LISA WALKER PERRY v. LOUIS T. BREWSTER, SYBLE J. BREWSTER, LEROY B. WALKER AND CHARLENE WALKER – Dismissed The Court dismissed an appeal of the 1A District Court’s order. 3. H. VAN HELDORF v. THE WOODLANDS TOWNSHIP – Affirmed The Court Affirmed the 9th District Court’s Summary Judgment for the Appellee, The Woodlands Township, on the basis that Appellant failed to perfect service within the statute of limitations period, and because there was no evidence presented to the trial court “regarding [Appellant’s] efforts to perfect service and to explain every lapse in effort or period of delay.”

On August 25th the 9th Court of Appeals released several opinions and other rulings, one of which was not a memorandum opinion. In re the Committment of Nelton Eugene Meyers – Affirmed The 435th District Court, ever a busy venue if you’re predisposed to sexually assault people, has yet again received word from the 9th Court of Appeals to carry on – but make a couple changes. This opinion pulls no punches and delivers the evidence of Nelton Meyers’ prior transgressions, who was committed as a sexually violent predator. In his first issue the defendant takes issue with part of the jury instruction, saying it caused reversible harm. It reads: “[that] beyond a reasonable doubt that Nelton Eugene Meyers suffers from a behavioral abnormality that predisposes him to engage in a predatory act of sexual violence.” Meyers insists that the charge should instead track the statute and state: “Do you find beyond a reasonable doubt that Nelton Eugene Myers is a sexually violent predator.” The court does not rule on this point, instead simply points out that it has affirmed this jury instruction in prior cases. Then the defendant states that “likely” should replace “predisposed” in the jury charge. The […]

Holding: Prior DWI Conviction is Element of DWI 2nd Charge The 14th Court of Appeals holding in Oliva v. State will create a sea change in many DWI cases. The Court held, contrary to all previous precedent, that when a person is charged with a 2nd DWI, the state must prove that fact. For criminal defense attorneys, the effect is obvious: the state will be able to, and will show that your client has a prior conviction for exactly the offense before the jury. What had been a key consideration, and primary focus for defense attorneys, is now possibly something we did “in the old days.” Keeping a clients’ criminal history out of the record during the guilt/innocence phase will, of course, remain vital, but in a trial for a client’s 2nd DWI this may not be completely possible anymore. For drivers, this should serve as a warning. If you have one DWI conviction, a jury may get to consider that when deciding if you committed a subsequent one. Past actions are usually not something a jury can use to decide a person’s guilt, but after this holding, drivers may not get the benefit of the doubt after one DWI […]