Posted on September 09, 2018 in Uncategorized

It's not uncommon to see a spike in DWI arrests in the summer. This is certainly true in August when summer begins to come to a close. Last month, Houston police arrested more than 50 people on felony DWI charges alone.

Driving while intoxicated, particularly for first-time offenders, is typically a misdemeanor offense in Houston. Felony charges are typically only applicable when a driver has multiple DWI infractions, causes harm, or puts a young child in danger.

Felony DWI: Multiple DWI Convictions

First and second-time DWIs are generally misdemeanor offenses in Houston. However, once you have two DWI convictions, any subsequent DWIs will be felonies. It doesn't matter how long ago your two prior DWI convictions occurred. Any prior DWI convictions will trigger felony charges for future arrests.

Third DWI: A third DWI is a third-degree felony in Texas, punishable by:

• Imprisonment: 2 to 10 years

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 Posted on July 07, 2018 in Uncategorized

It's a common misconception in Texas and across the United States that just because someone dies in a motor vehicle accident or other crash, that a person will be criminally charged for that death.

Just today, in Houston, Harris County, Texas, a construction worker was fatally run over by a forklift, driven by another worker.

In Texas, there are two things to consider when deciding whether charges will be filed. First, was the person responsible for or cause the death of the victim? And second, was there at least criminal negligence on the part of the actor?

Texas law states that "a person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient."

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 Posted on June 06, 2018 in Uncategorized

When you are driving a car in Texas, looking down at your phone or smart watch to read a text from a friend seems harmless, but under Texas law, it's now illegal and you could be arrested on the spot.

In 2017 alone, there were over half a million reported accidents on Texas roadways according to the Texas Department of Transportation. Of those, a little over 100,000 involved some type of distracted driving (driver distraction, inattention or cell phone use). And of those 100,687 distracted driving crashes, 444 resulted in death (a 7% decrease from 2016) and 2,889 resulted in serious bodily injury.

According to a 2015 study by the Transport Research Laboratory, a driver looking at an Apple Watch would take 2.32 seconds to react when an emergency maneuver is required, compared to just 0.9 seconds for a driver talking to a passenger. A driver using a smartphone reacted in 1.85 seconds.

On September 1, 2017, in an effort to continue the downward trend of distracted driving fatalities, the Texas Legislature outlawed the reading, writing, and sending of electronic communications, i.e., text messages and emails, while driving.

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 Posted on December 12, 2017 in Uncategorized

On December 16, 2017, a a 16- year veteran of the Pearland Police Department was arrested for driving while intoxicated (DWI). According to Pearland Police Department press release, Officer Gebert was driving a Pearland P.D. patrol car and was dressed in full police uniform. The press release did not indicate whether Officer Gebert was also charged with unlawful carrying of a weapon. Texas law forbids anyone--including police officers and license to carry holders--to possess a weapon when they are intoxicated.

No other details concerning the arrest have been released as would be normal for a high profile civilian arrested for DWI or unlawful carrying of a weapon. A standard press release in a high profile civilian arrest would contain the reason for the traffic stop, the officer's observations of the suspect's eyes, speech, odor of alcohol on their breath, admission to drinking, etc. Officer's observations after conducting balance and coordination exercises, often referred to as sobriety exercises, such as the 9 step walk the line exercise, and also a one legged stand. The report would end with a report on whether a breath or blood test was failed or refused. There was also no report of whether a search warrant was issued if he refused a breath or blood test. Search warrants are a common practice throughout Texas when a person refuses a chemical test. Why was there no report of any of this information for Officer Gebert? Officer Gebert is certainly entitled to the same presumption of innocence as every citizen is guaranteed. But why is he being treated differently by his own police department?

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 Posted on June 06, 2017 in Uncategorized

Forced Urine or Blood Draw in a DUI DWI Case

Law enforcement aggressive tactics to force blood or urine draws after a person is arrested for DWI or DUI sometimes are not always safe or reasonable. The 4th Amendment of the United States Constitution requires a warrant be issued for any search or seizure. The U.S. Supreme Court reminded law enforcement that the 4th Amendment is still alive and well in the United States requiring a search warrant in order to draw blood from a DUI or DWI suspect if they do not consent.

Forced Urine or Blood Draw Must be Reasonable

Just because the government has a search warrant, the execution of that search warrant must also be reasonable. The U.S. Supreme Court held in Schmerber v. California that the forced bodily fluid extraction must be executed in a reasonable manner, i.e., according to reasonable "means and procedures", or accepted medical practices. The Supreme Court went further to hold that they were not deciding a case where blood was drawn at a police station... "if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain." They obviously had the foresight to understand realistic medical concerns with forced police blood or urine draws.

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 Posted on May 05, 2017 in Uncategorized

Memorial Day brings in the boating season at area lakes Lake Conroe, Lake Houston, Clear Lake, and on the coast near Seabrook, Kemah, Clear Lake and Galveston or other Texas waterways. It is not illegal to consume alcohol on a boat for either the driver or the passengers, unlike in a car. But boaters need to be responsible and careful when enjoying this right because law enforcement patrols will be patrolling near the marina conducting "water safety checks". If Texas Parks & Wildlife Game Wardens or other law enforcement smell alcohol on your breath, they will conduct a series of seated sobriety tests. These seated sobriety tests are not reliable, and sober people often score the clues they associate with intoxication that law enforcement to look for to make an arrest decision. More information about these seated float sobriety tests can be loaded HERE.

If you, a friend or family member gets wrongly caught up in the net of a wrongful boating while intoxicated, BWI, boating under the influence, BUI, charge. Contact board certified DWI and criminal lawyer Doug Murphy today for help 713-229-8333. Doug Murphy is the noted BWI defense authority with multiple published articles on defending BWI BUI cases, and speaking engagements. Doug Murphy is named to Best Lawyers in America, and Texas Super Lawyers. Don't let a BWI BUI arrest ruin your Memorial Day weekend on Lake Conroe, Lake Houston, Seabrook, Kemah or Galveston.

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 Posted on April 04, 2017 in Uncategorized

The criminal justice system is far from perfect, but it especially failed one Texas man who spent 32 years in prison waiting for new trial. It seems impossible that this could happen, that no one in 32 years could realize that Jerry Hartfield was still waiting for his day in court. But that is exactly what occurred and it wasn't until, in 2006, a fellow prisoner helped Hartfield, who is developmentally disabled, file motions in numerous courts that there was any movement in Hartfield's case. And even then, he still languished in prison for years until he was finally re-tried in 2015.

Hartfield's story begins way back in 1976, when he was charged and convicted of the murder of 55-year old Eunice Lowe and subsequently sentenced to death. In 1980, Hartfield's conviction was reviewed by the Texas Court of Criminal Appeals which determined that there was "error related to the exclusion of a potential juror." The court then "vacated Hartfield's conviction, and ordered a new trial in its entirety." The State of Texas asked on a motion for re-hearing that the court change the judgment to life in prison or allow the State time to have the Governor commute the sentence. The court denied the State's motion in 1983 and issued a mandate reversing Hartfield's conviction and remanding the case for a new trial.

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 Posted on April 04, 2017 in Uncategorized

The most severe punishment a defendant can face for a criminal conviction in Texas is the death penalty. The Lone Star state has executed more people than any other state by far since the death penalty was reinstated in the U.S. in 1976. One man on death row, Albert Leslie Love Jr., was recently granted a second trial by the Texas Court of Criminal Appeals. This court is the court of last resort for criminal cases in the state. On December 7, 2016 the court handed down its decision in Love's case.

Love was convicted of capital murder for his role in the deaths of two people and given the death penalty. He appealed his conviction to the Court of Criminal Appeals arguing a number of different points, including that the trial court had erred in allowing text messages from Love's cell phone to be admitted into evidence because the messages were seized without a warrant.

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 Posted on April 04, 2017 in Uncategorized

Technology is advancing rapidly with new devices and software programs being developed every day. These new technological developments have impacted nearly every facet of society, from how we communicate to how we drive. One other area that has seen many changes due to improving technology is law enforcement. Police departments across the country have taken advantage of advancements in things like surveillance equipment to catch criminals in ways that would not have been available in the past.

One device that a number of law enforcement agencies, both state and federal, have been using is called a cell-site simulator, also known as a 'stingray'. This device allows "police to pinpoint a phone's location within a few yards by posing as a cell tower." The police are able to find the suspect, but "[i]n the process, they can intercept information from the phones of nearly everyone else who happens to be nearby, including innocent bystanders." However, the information captured does not include the content of any communications.

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 Posted on March 03, 2017 in Uncategorized

New and evolving technology often leads to novel of legal issues for the courts to address. In 2014, the United States Supreme Court addressed one such issue in the case of Riley v. California. The issue at hand was whether or not law enforcement could search a suspect's cell phone without a warrant.

Riley was actually a consolidation of two cases where the police had searched a suspect's phone without first getting a warrant. In analyzing the case, the Supreme Court stated that, under the Fourth Amendment, generally a warrant is required in order to conduct a search. The court further stated that "[i]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement." One warrant exception that has been recognized is the search incident to arrest exception. It was this exception that had been used to justify the searches in both of the Riley cases. To determine if cell phone data fell into the search incident to arrest exception, the court looked at "the degree to which [the search] intrudes upon an individual's privacy and... the degree to which [the search] is needed for the promotion of legitimate governmental interests."

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