Criminal Defense

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.

If you have very driven on the busy highways within Houston, you have probably witness that the roads are swarming with semi-trucks. Unfortunately this often means that tuck crashes occur throughout the Houston area, you may have even witness one yourself. With the sheer size of these trucks, these accidents often mean serious collisions and injury for those involved, sometimes even death. Many of these truck accidents are the result of the driver being tired or fatigued on their long journeys. New regulations have recently been set by the Federal Motor Carrier Safety Administration in order to reduce the number of accidents. Truck drivers are generally paid by the size of their load or the distance they cover on a trip. This results in drivers pushing themselves to cover as much distance as possible. The new regulations mandate that drivers must take a minimum of 30 minutes break within their first 8 hours. They must also have a minimum of 34 hours off each week. Drivers are not supposed to drive more than 70 hours in a week. Much research has been done and shows that when drivers experience fatigue and drowsiness, their alertness and reflexes are not up to […]

In national DWI news this week, a Buffalo, NY, seat belt stop led to a DWI arrest. Just a reminder that you can be pulled over for any traffic offense and end up with a DWI. You do not need a DWI lawyer if you are never pulled over. Buckle that seat belt, stay within the speed limit, make sure your vehicle has all equipment in working condition, and so on. Better to stay out from the watchful eye of law enforcement altogether, because even when actually sober, a stop can lead to an arrest under the wrong circumstances.

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 1 opinion today: 1. YVONNE COMO v. CITY OF BEAUMONT – Modified and Affirmed This opinion concerns an action brought by Appellant one year after the City of Beaumont condemned and demolished a commercial structure on land owned Appellant. The Court found that, among other things, Appellant’s suit was a collateral attack on a final judgment, and the decision to affirm stems from that finding. The Court further found that Appellant’s Public Information Act claim was moot because Appellant received the information sought, even though she did no receive it in a timely manner.

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 […]

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 […]

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.”