David Sloane DWI

Possessing Grandpa's old Mossberg Shotgun can land you 10 years in prison under Federal Law if you smoke Marijuana

2012-01-28T09:27:00.000-08:00

According to Congress, a person that uses cannabis for medical purposes or otherwise (illegal under Federal Law) effectively forfeits their right to keep and bear arms under the 2nd Amendment. 18 U.S.C. § 922(g) prohibits specified categories of persons from shipping or transporting in interstate or foreign commerce or from receiving any firearm or ammunition which has been shipped or transported in interstate or foreign commerce or from possessing, in or affecting interstate commerce, any firearm or ammunition. A violation of 922(g) can lead to a maximum term of 10 years imprisonment, unless the statutory enhancements of the Armed Career Criminal Act apply.

18 U.S.C. § 922(g) states:

It shall be unlawful for any person– …

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802));

…to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has shipped or transported in any interstate or foreign commerce.

David Sloane, AttorneyDFW-NORML Public Information Officer
http://www.sloanelaw.com

Smugglers Blues

2012-01-27T09:12:00.000-08:00

Beware in the Texas Panhandle: (Texas Counties: Potter, More, Hartley & Dallam)
In my Criminal Defense practice I am seeing some alarming trends in Police Drug Interdiction tactics in the Texas Panhandle with Colorado’s relaxation of their Marijuana laws. I am finding myself defending people in these areas more than ever before. The Texas Highway Patrol (Department of Public Safety) and a few local agencies have stepped-up and bolstered their drug interdiction tactics dramatically in the Texas Panhandle corridor leading from Colorado in an area primarily North and West of Amarillo. US Highway 87 running through Potter, Moore, Hartley, and Dallam Counties appears to be the areas where police are most active in their Drug Interdiction Efforts. With a great deal of success they are apprehending a number of person transporting varying amounts of Marijuana from Colorado into the State of Texas. Often with those caught with smaller quantities, the cannabis was still contained within packaging from a Colorado dispensary. It appears the percentage of vehicles being searched during "routine" traffic stops in this area clearly exceeds the national average, which normally runs about 5% of the number vehicles stopped resulting in a search. These searches appear to be roughly split 50/50 consensual and non-consensual with no marked differences with consent in the percentage of instances where Marijuana was found.

Police Interdiction Tactics:
The interdiction tactics being employed by Texas State Troopers appear for the most part are run-of-the-mill. Aggressive use of traffic enforcement to generate and exploit opportunities to search are generally employed such as stopping someone for exceeding the speed limit only by one or two miles an hour, or other minor moving or equipment violations. My personal favorite (certainly the most cleverly-amusing) is their use of a ‘rolling surveillance’ where in a marked patrol car they travel along in the outside lane 10-15 miles an hour UNDER the speed limit, just to see who DOESN'T have the nerve to pass them because they have a carload of Ganja. Once stopped they will ask the driver a series of questions requiring a “No” answer (such as “you don’t have anything in your car do you?”) to get the driver into a pattern of saying “No” and will then say “Oh, well then you won’t mind if I search?” Of course another way they freequently generate "reasonable suspicion" is asking a series of harmless sounding questions and looking for inconsistencies. (Where are you coming from? Where are you going? etc. This is NOT just small talk!) Virtually all non-consensual searches involving Marijuana arrests I’ve seen involve an officer claiming he smelled it. With the pungent smell of marijuana these days it no longer has to be burning to permeate the vehicle or an officer to recognize it. There is a reason they call it Dank. While stops of this nature are technically legal when they begin, they can become illegal when the depth and scope of the police inquiry and the length of detention exceeds what is reasonably necessary based upon the initial reason for the stop. For example, in the cases of a traffic violation the officer exceeds the time it takes for him to make his customary checks and issue the citation. (And he really has no business messing with the passengers in cases of an alleged traffic violation.) In cases of reasonable suspicion, the officer exceeds the time it should take for his suspicions to be refuted or confirmed via lawful means, and nothing has been said or done to raise more suspicions. An officer may not detain a motorist longer than is reasonably necessary to complete the investigation absent reasonable suspicion of additional criminal activity.

State and Federal Drug Criminal Prosecutions & Drug Asset Forfeitures:
It appears being caught with a small amount will land the person in jail on State charges and cash and asset forfeitures (such as the vehicle used.) However, the Federal authorities are very quick to adopt cases involving larger amounts; and those instances where a firearm was also found in the vehicle, which gives a Federal prosecutor an instant twenty-year bump under their statutes in the plea-bargain process. Nearly all of those caught small amounts of hash were shocked to learn they were being charged with a felony under the Texas statutes. My best advice to anyone vacationing in Colorado not coming back by way of Omaha is to say: “What happens in Colorado, stays in Colorado” if you aren’t planning on needing me.

http://www.sloanelaw.com

Required proof in possession cases.

2011-08-04T10:39:00.000-07:00

Proximity possession cases (where the contraband is not found directly on a person, but rather, in their proximity in small amounts) are very weak at best for the prosecution UNTIL the person in question runs their mouth! The police aren’t just being smartasses when they fish for responses while brandishing the contraband with a “what have we here?” They’re wanting the person to give them evidence via verbal statement of knowledge the contraband was there, a required element of a possession offense. Merely being present at the scene where contraband is found does NOT make one guilty of possession! Admitting knowledge does!

Marijuana "420" Police Car a HIT!

2011-05-09T06:44:00.000-07:00

NORML "420 Truth Enforcement" cop car has proven to be a tremendous hit with fans in the Dallas/Fort Worth metroplex. Sponsored by the Law Offices of David Sloane, the car was unveiled on May 7, 2011 during the world marijuana march held at the Dallas venue as seen here. David Sloane is a member the NORML National Legislative Committee and on the local DFW NORML board of directors.

This car has became one of the most photographed vehicles around. It cannot be driven or parked anywhere without people breaking out their camera phones. There was a great deal of trepidation as to how the REAL police in the area would respond. But Sloane says all in all the local police have been really good sports about it. Most are amused. Since hitting the road, the car has been stopped once by a Traffic Officer wanting to insure the light-bar did not violate any state or local laws prohibiting non-emergency vehicles from having flashing red or blue lights. Once he sae the lights were green, he was fine, and also asked if he could take pictures of the car.

If you have a local venue or event where you would like the NORML cop car to make the scene, or to arrange for one of our speakers for your group please contact us at http://dfwnorml.org. To contact Attorney David Sloane use the email link on his website at: http://www.sloanelaw.com

Attempting to Locate Witnesses - Lockdown incident at Texas Women's University. Please Help

2011-03-15T11:41:00.000-07:00

I represent Christopher Gillette in his current difficulties with the law and Texas Women's University. I am attempting to locate student/witnesses that were present and personally heard the statements he made during his emotional outburst in a Government Class on Monday, March 1, 2011 on the campus of Texas Women's University shortly before his arrest. I am anxious to interview witnesses while their memory of exactly what was said is fresh. Likewise, I would ask them to PLEASE preserve any recordings or class notes made by them at the time of the incident or any communications in all forms (ie. Text messages, bulletins, etc.) received from the University concerning the incident. If you personally witnessed any of these events (or know anybody that did) please (have them) contact my office at 817-810-0088, or by email at davidsloanelaw@yahoo.com, or via private email through my facebook: http://www.facebook.com/profile.php?id=100001830517527

Thank you for any assistance you can provide.

David Sloane

Alan Sloane dies at 84

2011-01-26T04:38:00.000-08:00

LAS VEGAS, NEVADA
Alan Price Sloane
Born October 29, 1926 ~ Passed on January 20, 2011

Alan was born and raised in Oxford, Ohio. He served in the Merchant Marine at the age of 17 (with his parents approval) during the closing days of World War II. He returned to Oxford and completed his degree at Miami University graduating in 1948. He was drafted and served in the Army during the Korean War. His professional broadcasting career spanned an extraordinary 60 years beginning with his first job as a radio DJ in Cleveland hosting a late night format with romantic music. His talent took him from Cleveland radio to a position in Dallas with WFAA-TV Channel-8 as their first Weather Anchor, and co-host of a television cooking show, to WWL-TV in New Orleans where he hosted a noon talk show with a "live" in-house band led by trumpet virtuoso Al Hurt. His next move was to WAGA-TV in Atlanta where his humor and style was noticed by a Hollywood talent scout who selected him to host a bi-centennial celebration of Margaret Mitchell's Gone With The Wind. The event, staged at the Loews Grand Theater, the site of the film's original premier in 1939. Alan introduced and interviewed David O. Selznick, Olivia deHavilland and dozens of visiting celebrities including actors George Murphy and Douglas Fairbanks, Jr.
Shortly after the event, he was offered an "on-air" position with KCOP-TV 13 in Los Angeles. During his tenure with KCOP he was the West Coast host of "The Advocate" and also hosted a variety of entertaining syndicated television shows produced by Bill Burrud Productions including the American West (featured in 102 markets nationally) and This Exciting World. In addition he hosted the original Los Angeles "Dialing For Dollars" show for KCOP for over 7 years. The highly poplar program (#2 in the market, just behind #1 "As The World Turns") was formatted as a daily one hour talk show from Noon to 1:00 p.m. featuring lively celebrity interviews with authors, actors, artists - a format that suited Alan's rapier wit and style. His busy schedule during those years also included hosting the annual "Holiday Lane Parade" coverage each Christmas, entertaining at VA hospitals and hundreds of personal appearances.
In 1969 Alan moved to KABC-TV 7 in Los Angeles where he was the weekday Weather Anchor for the 5, 6, and 11:00p.m. news broadcasts and also worked special assignments for ABC Sports. He served as Pit Announcer for the Can-Am auto race series - often flying the "red-eye" from L.A. to the East Coast, returning late Sunday nights in time for his Monday weather broadcasts.
Alan covered Track & Field events for ABC at the 1968 Olympics in Mexico City and the ill-fated 1972 Olympic in Munich. While at KABC-TV , he received two Emmy Nominations (1 award), and while at KCOP he was nominated three times and received 2 Emmys. He also made numerous appearances on the popular "Love Boat" television show and appeared in national commercials for Ford Thunderbird and Kraft Cheez Whiz.
After a management shakeup at KABC, Alan created a Business Travel Weather show concept. He was able to convince American Airlines of the show's merit. He then offered the complete package to the then fledgling national "Financial News Network" (now MSNBC). He went on-air at the Network in 1982 as National Weather Anchor with his daily early morning and mid-afternoon Business and Agricultural Weather shows which also included interviews with business newsmakers. After six years with the network, Alan decided to retire - for the first time - and relocated to Las Vegas in 1988. He had often covered Las Vegas news stories for KABC, including the infamous MGM fire. So, he was well acquainted with the area. Within less than a year of retiring, he was approached by the local NBC Affiliate, KVBC-TV 3 to work part-time as the station's Weekend Weather Anchor. A year later, the station's primary weekday Weather Anchor abruptly left and Alan took over the position, working full time for the next 7 years! He also hosted a half-hour weekend program titled "Action Seniors". He retired, again, in 1997, but continued to be active - developing and hosting a weekly radio show titled "FYI The Radio Show" in Las Vegas.
Alan relocated to Carmel Valley in September, 2008 and subsequently hosted a weekly television show "Choices" at Noon on the NBC affiliate KSBW-TV 8. The show was sponsored by Monterey based Choice Home Health Care.
From his 20's into his 80's, Alan continued to be an intuitive interviewer, charming and literate, always putting his guests at ease, and knowing instinctively how to draw them into a lively conversation for the audience.
These are only a few of the highlights of a life lived to the fullest.
Alan is survived by his wife Lynne, sister Ann Leech (Canton, Ohio)
sons Lance (Studio City, CA.), Devin (Bhusto Arsizio, Italy), David (Fort Worth, Texas) daughter Gail Munger (Indianapolis, Indiana) - Grandchildren; Ryder, Jack, Matteo, Marco and Leonardo Sloane, and Joshua and Rebekah Munger
Services are scheduled for January 29, 2011 at The Lakes Lutheran Church - 8200 W. Sahara, Las Vegas, Nevada. A Celebration of Life follows at Red Rock Country Club in Las Vegas.
In lieu of flowers, donations may be made to the Alfred Price Sloane Scholarship at Miami University in Oxford, Ohio. The family is currently organizing the scholarship through the Alumni Association.

Fort Worth DWI No Refusal Weekend

2011-01-02T05:00:00.000-08:00

New Year's Eve starts a "No Refusal" weekend in Dallas Fort Worth.

Law enforcement officials are saying for drivers, that means if a driver is pulled over on suspicion of DWI and they refuse the standard field sobriety test, officers will place them under arrest. Frankly, this more disinformation for the media because this has always been the case (being arrested when they refuse.) Drivers should continue to stand on the rights to refuse breath and blood test.

County and Municipal jails in the Dallas Fort Worth area had judges on site over the holiday to sign search warrants, as well as having a nurse available to draw blood for the purposes of determining if a driver is legally intoxicated. Some smaller police departments took those arrested directly to hospitals for blood samples after the warrant was signed.

Alcohol-related fatalities are the commonly stated reason behind the "No Refusal Law." However I have seen no evidence it makes a difference.

Citizen videotapes police misconduct

2010-12-25T22:44:00.000-08:00

Know your Rights-Just say NO to illegal Police Searches in Fort Worth.

2010-12-23T09:40:00.000-08:00

Know Your Rights on DWI in Fort Worth

2010-12-23T09:36:00.000-08:00

Ways to avoid a DWI

2010-12-18T06:57:00.001-08:00

How To Protect Your Rights During A DWI Traffic Stop in the Fort Worth area.

Let's dispense with the obvious. If you're drunk, then don't drive. Don't drive, because you don't want to hurt someone else or yourself. Don't drive, because you don't want to smash up your car or damage someone else's property. And finally, don't drive, because you don't want to get arrested, lose your license, pay huge fines, have your insurance go through the roof and perhaps even lose your job.

That said, let's move to the real world where you do not have to drive drunk to be arrested and found guilty of drunk driving. This is the world that says any person with virtually any amount of alcohol in their system is a candidate for a drunk-driving citation and 100% responsible for any accident that may occur, regardless of who caused the accident. This is not an exaggeration, and you should not assume that because you drink and drive in a responsible manner that you are immune from the "drunk-driver" label and the consequences of a drunk-driving conviction.

If you drink and drive in the Fort Worth area, no matter how conservatively, there is a real possibility that you could be stopped, arrested, and convicted of drunk driving. First, most people do not realize how few drinks it takes to exceed the legal standards of .08 % or .1 % Blood Alcohol Content (BAC). For the average sized person, three or four drinks could easily place them in the "drunk-driver" category. However, based solely on a police officer's claim that you were "impaired," even though your BAC was below the legal threshold, you can be convicted as a drunk driver. The only additional evidence needed would be proof of some measurable amount of alcohol in your system.

Is this fair? No. Is it right? No. Does this improve highway safety? No. In fact, it detracts from highway safety.

How do you avoid being caught up in a DWI nightmare in Tarrant County? Well, you could avoid drinking and driving altogether. That means no beer after the ball game, no wine with your meal, no drinking at holiday parties, sticking to soft drinks at wedding receptions, no meeting your friends after work for a drink and socializing. You get the picture. However, if you choose to drink and drive, there are a number of things you can do to lesson the likelihood of being stopped and charged with a drunk-driving violation.

Your Vehicle

Police officers in the Fort Worth area need an excuse to stop a vehicle; there must be some probable violation to justify stopping your vehicle. Frankly, they can always come up with an excuse to stop any vehicle they want to -- a dirty license plate is a violation. But, if given the choice, they will stop the vehicles with the most obvious violations. Speeding, failing to use signals, rolling through a stop sign or driving with burned out lights are common justifications for stopping a motorist. Most of these are controllable items or situations.

For example, once every two or three weeks turn on all the lights on your vehicles(s). Check both headlight beams, taillights, clearance lights, brake lights and turn signals. And don't forget the license plate light (this is a favorite!) Your headlights should be properly aimed, also. Make sure your license plates are properly affixed and readable.

Darkly tinted windows, loud exhaust pipes, broken lenses, unrepaired body damage and cracked windows all serve as the necessary excuse to stop a vehicle.

If the vehicle you are driving is registered in the name of someone who has been convicted of drunk driving it would be wise to not drink and drive in that vehicle. Police officers spend large amounts of time riding around reading license plate numbers into a central computer. When they find a vehicle licensed to someone convicted of drunk driving, especially late at night, they will always find an excuse to pull that car over.

Traffic Laws

Obviously, violating traffic laws in the Fort Worth area or elsewhere is a good way to attract the attention of police officers. At the same time, driving below an already under posted speed limit, signaling a turn a half a mile before turning or not taking your turn at a stop sign will also attract attention. It is virtually impossible to drive more than a mile or two without violating some arcane traffic law. If you have the option of pulling into a parking lot or otherwise avoid having a patrol car follow you for a long distance there will be less likelihood of being stopped for a traffic violation. Making sure to wear your seat belt is one way to convey an aura of "safety."

Driving Time And Place in the Fort Worth area

The chances of being stopped under a variety of pretenses at "bar time" are fairly high. However, the police are also attuned to special events like festivals, sports contests, large wedding receptions, church picnics and company parties. Enforcement may be intensified in these environments. If you are moving with traffic and your vehicle is well maintained and not "standing out" for any reason, you are much more likely not to be stopped for enforcement purposes.

If you have alternative routes that you can take to your destination, particularly in the later evening, that avoid those areas with the largest concentrations of taverns, bars and nightclubs, you will also be avoiding the largest concentration of enforcement activity. Taking the longer, less traveled route may turn out to be a short cut in the long run!

You've Been Stopped by the police after drinking, Now What?

Despite your best efforts, a just-burned-out headlight has given a police officer an excuse to stop you. Under other circumstances you might welcome being told about your failed headlight before you left the lighted city streets. But, you have been drinking, not in excess, but drinking never the less. What should you do?

First, always keep documents like your registration and insurance card in a readily accessible location. You do not want to have to fish through your glove box, or worse, to not find these documents when you need them. When the blue lights go on, find a safe place to pull over, always on the right side of the road whenever possible. Next, turn your dome light on and place both your hands on the steering wheel where the police officer can see them. This makes him more comfortable about his safety and conveys a sense of personal control on your part. If the opportunity presents itself, it's best to roll down your window and vent the passenger compartment of accumulated odors prior to actually stopping.

Be courteous, but admit to nothing. If the officer asks if you have been drinking return his question with a question, "would you like to see my license?" or "why do you ask?" Do not admit to drinking so much as one beer. You are under no obligation to give the officer any information beyond that on your driver's license. Your admission to drinking gives the officer "cause" to pursue the matter further. Without that admission he must base his decision on pursuing a DWI arrest on your driving, or mannerisms after the stop. A burned-out headlight is not an indication of impairment and neither is a refusal to chitchat about your night's events.

If he decides to push the issue, he may ask you to step out of your vehicle, which the courts say is permissible. He may ask you to perform certain tests, "just to prove you're capable of driving safely." Do not perform any of these tests. You are not required to perform these tests and there is no penalty for refusal. The ONLY reason these tests are given is to give the officer justification to require you to take a chemical test (breath, blood or urine) to determine your Blood Alcohol Content, BAC and of course more and better ammunition in court. These encounters are nearly always being videotaped. No one ever "passes" one of these roadside sobriety tests, not even the "soberest" of the sober.

Texas does require a driver to submit to a chemical test, or face administrative driver's license penalties. However, the police officer must have at least "reasonable suspicion" that you are impaired by alcohol to legally ask you to take one of the chemical tests. If you show no obvious signs of intoxication, have made no admission to drinking and have performed no tests that he can claim you performed inadequately, his grounds for forcing the testing are limited to the way you were driving and your present(unmanipulated)demeanor. If your drinking has not been clearly excessive, neither your driving nor your demeanor should support reasonable suspicion to demand a chemical BAC test. The only common defense for refusing to take a chemical test is that the officer did not have a lawful reason to stop you or probable cause to require the test. Refusal to participate in the charade of a roadside sobriety test in the Fort Worth area are not probable cause to require a chemical test.

If you are not "drunk," it is usually advantageous to you to have the stop recorded on a video camera. Most police cars in Tarrant, Parker, Wise, Denton, and Dallas County are equipped with video cameras for just this purpose. However, police officers will sometimes avoid turning the camera on if they think the resulting documentation will detract from the possibility of a conviction. Ask the officer if his car has a video camera and if he has it turned on. If he does not have the camera turned on and you believe it would be advantageous to your defense, ask him to turn it on, that you want the stop recorded. This sends a message that you are not afraid to have your mannerisms and demeanor judged by an impartial judge or jury. It's very difficult for a police officer in the Fort Worth area to claim your "speech was slurred" or that you were "staggering" when you got out of the car when a video film shows a composed articulate defendant being interrogated on an unlit roadside by a uniformed, gun-toting agent of the law.

If you notice that the officer is intent on sticking a flashlight in your face or in your car, it is probably because the flashlight is equipped with an electronic alcohol sensor that detects the presence of alcohol. Texas Alcohol Beverage Control Agents (I call them Liquor-Dicks are notorious for having these devices.) You do not have to accept this "probing." You can instruct the officer to keep the device away from your face and out of your vehicle. He is free to look into your vehicle, but only from the exterior, unless he requests to search your vehicle. NEVER voluntarily permit a search of your vehicle. To search your car, depending on the jurisdiction, an officer must have probable cause or at least reasonable suspicion, a suspicion he must be able to explain in terms of what he is looking for and why he believes he will find this specific illegal item in your vehicle. There is absolutely no good that can come to you by voluntarily allowing the police to search your vehicle.

Another pre-screening test that falls in and out of favor in DWI Arrest in the Fort Worth area is called the nystagmus test. By shining a flashlight in the drivers eyes and instructing the driver to scan left and right the officer looks for a jerking eye motion that is sometimes an indication of intoxication. It takes training and experience on the part of the police officer to perform this test. In reality, jerky eye movement or not, the officer can say he performed the test, detected the telltale eye movement, and therefore felt justified in ordering the defendant to take a chemical test. Again, you do not have to take the nystagmus test and should refuse to do so. Just as with the other pre-screening tests, the only reason they are conducted is to justify requiring a chemical test and to build a case against the defendant.

Will your refusals to cooperate with the officer's requests for pre-screening tests irritate the officer? Yes, they probably will. But, keep in mind that if he asked you to take these tests he has already decided to find a way to justify requiring you to take a mandated chemical test. There is no good reason for you to assist him in this effort. Furthermore, if he senses a lawsuit in the making, if he falsely arrests you for drunk driving, he might just decide to find an easier target to fulfill his nightly quota.

Of equal importance, without the additional evidence that the pre-screening tests provide, or pretend to provide, the prosecution will find it very difficult to make a case against you, if your BAC is close to the legal limit, or below.

Despite all evidence to the contrary, if the officer decides a chemical test is justified you typically have three choices of test procedures: Breathalyzer, urine test, or blood test. Frequently, the police will use a Breathalyzer test for the initial screening. However, you are almost always guaranteed the option of taking one of the other two tests, at your request. Of course you have the right to refuse ALL of them and absolutely should if you have any doubt what the results may be.

The Breathalyzer is the most inaccurate means of measuring your BAC. These devices are pretty much garbage. Without going into great detail, it should be understood that the error factor can be as high as 50 %. If the Breathalyzer generates a reading that confirms your BAC is within legal limits, you should be free to leave. If the Breathalyzer test results indicate an illegal BAC, you should immediately request one of the two other tests, the most accurate of which is the blood test. If the police refuse to assist you in obtaining a second test, demand an opportunity to obtain a second test, even if it must be at your own expense.

A legitimate police stop for a suspected drunk-driving incident does not have to rely on trick questions, sensing devices, or gimmicks to justify a chemical test of the driver. The driver's lack of control of the vehicle, his inability to reasonably react to questions and requests, and his physical reactions will be a dead give-away of his impaired condition. Unfortunately, the government, certain commercial interests, and self-serving organizations have institutionalized a negative stereotype of anyone who drinks and drives, no matter how responsibly. By labeling virtually all drivers who drink and drive as "drunk drivers," they have created a situation where responsible and constructive citizens are at risk of suffering huge fines, exorbitant insurance charges, loss of driving licenses, confiscation of personal property, and even incarceration, all for the singular act of violating an arbitrary and unreasonable BAC standard.

If you have been arrested for DWI in Tarrant, Parker, Wise, Denton or Dallas county and need an experienced criminal defense lawyer give me a call!

NORML - Attorney David Sloane to use Medical “Necessity” as Defense to Prosecution in Marijuana Possession case.

2010-10-19T11:56:00.001-07:00

WEATHERFORD, TEXAS - On September 30, 2010 detectives from Weatherford Police Department appeared at the residence of a 52-year-old Weatherford man who smokes marijuana to alleviate his suffering from diabetic neuropathy with severe symptoms including chronic pain and insomnia. He has done so with the full knowledge and support of his physicians claiming they could not provide him with the synthetic substitute Marinol because it was heavily regulated and reserved for Cancer and HIV patients. The detectives told the man they had received “a tip” that he was growing marijuana on the premises. Once inside they found one cannabis plant growing and approximate 1.5 ounces of cannabis already harvested. Whether this case will be prosecuted as a misdemeanor or a felony is yet to be determined depending on the dried weight of the cannabis seized.

Fort Worth Attorney David Sloane says he intends to raise the defense of necessity as well as other procedural and constitutional grounds in defending this case. Sloane is a legislative committee member for the National Organization of Reform of Marijuana Laws (NORML) and an officer of the local DFW NORML chapter. Sloane says fifteen states now recognize the medical need and necessity of lawful marijuana use. A 2009 Texas bill that would have allowed seriously ill patients to raise a medical necessity defense to the specific offense of marijuana possession died in committee. Sloane said he sees no problem proceeding without this legislation under these circumstances. Texas penal law already provides for a justification of necessity for all criminal law violations “if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm” and “the desirability and urgency of avoiding the harm clearly outweighs…the harm sought to be prevented by the law proscribing the conduct. “ Had the 2009 bill passed it might have curtailed number of needless arrest of medical patients here in Texas but that doesn’t mean the common and statutory defenses and justifications for all offenses aren’t still available to us in the courts.

I must admit I was a little intimidated in trying this even though my repeated application of the facts to the law in this case told me this is what I should do. I had never even heard of anyone else trying it here Sloane said. But then I found a case from Amarillo with substantially similar facts where it took the jury eleven-minutes to find a marijuana patient not guilty when they were given the opportunity to consider his medical necessity. I have gone from believing it would be a long-shot to believing it would be malpractice not to raise it in defending a medical marijuana patient with what appears to be a genuine need. Sloane said if the Texas legislature wants to continue dragging their heels by ignoring the medical needs of their citizens that’s fine I guess. But I’m going to do my job. And I’m hoping these judges and juries will do theirs.

University of Florida Taser Incident

2010-08-02T16:15:00.000-07:00

Cute Video

2010-08-02T16:14:00.000-07:00

Small Marijuana growers oppose corporate Hydrophonic farms.

2010-07-24T10:20:00.000-07:00

A proposal to create four large-scale marijuana factories in Oakland has touched off a turf war in the lucrative market for medicinal marijuana. Established local merchants are trying to hold their ground against entrepreneurs who are seeking to gain a foothold in the rapidly evolving industry.

A nonprofit, nonpartisan news organization providing local coverage of the San Francisco Bay Area for The New York Times. To join the conversation about this article, go to http://www.baycitizen.org.

Under the proposal, which will be debated by the City Council on Tuesday, Oakland would issue four permits to operate the factories, which are currently not limited in size or scale. One would-be applicant is planning a 7.4-acre complex that could produce over 21,000 pounds of marijuana a year.

Based on current prices, such a factory would generate about $60 million in annual revenue, more than twice the gross receipts for Oakland’s four medical marijuana dispensaries last year.

Taxes on cannabis cultivation and sales could generate millions of dollars for Oakland, once the program is up and running, and create hundreds of jobs, according to supporters. The ordinance — written by Councilwoman Rebecca Kaplan, who is also a mayoral candidate, and Councilman Larry Reid — would also require the factories to pay a $211,000 “regulatory fee.”

“I think it’s a total win-win for everyone,” Ms. Kaplan said last week, after the Public Safety Committee voted 3 to 1 on Tuesday to send the cultivation ordinance to the full City Council.

The proposal is creating discord between businesses seeking to preserve the status quo and others who are trying to carve out new businesses in advance of Proposition 19, a November ballot measure that would legalize marijuana for adult recreational use in California.

“It’s big business; you’re talking about manufacturing gold,” said Jeff Jones, a longtime marijuana activist working with the legalization effort. “There’s going to be stakeholders, different opinions and different approaches, which lead to bickering like in any other marketplace.”

One of the most vocal critics of the cultivation proposal is Stephen DeAngelo, executive director of Harborside Health Center, the largest medical marijuana dispensary in the world. With outlets in Oakland and San Jose, Harborside has 58,000 members, or patients, who can buy dozens of strains of marijuana packaged in vacuum-sealed bags or in edible forms ranging from cookies to gelato.

The dispensary receives its marijuana from about 400 member/suppliers who deliver one or two pounds of cannabis at a time. Allowing large-scale production in Oakland would crowd out those small growers, according to Harborside officials and the dispensary’s lawyer.

“Why does this whole new system have to be created?” Mr. DeAngelo asked in an interview. “Let’s bring these citizen farmers out of the shadows and into the light and give them a role in this new industry.”

Jeff Wilcox, a Bay Area businessman, is an outspoken proponent of the industrial pot permits as well as a leading advocate for the Proposition 19 initiative. Mr. Wilcox is hoping to obtain one of the four permits to build AgraMed, a marijuana production complex on 7.4 acres beside Interstate 880 near Oakland International Airport.

AgraMed would include a bakery to create edible forms of marijuana, a lab to test for potency and contaminants and 100,000 square feet of cultivation space. If he obtains a permit, Mr. Wilcox said, he will offer to lease space to smaller growers.

James Anthony, a lawyer for Harborside, said Mr. Wilcox was a “Johnny-come-lately” motivated by profit, not by the desire to help patients who use marijuana for medical reasons.

Mr. Wilcox responded that Harborside and its supporters had been “sitting in the back just waiting.”

“They started this campaign of lies to kill the cultivation permits,” he said.

Mr. DeAngelo said he was not opposed to the Oakland plan, but wanted to see a permit process that would benefit smaller growers, an opinion that was echoed by many Tuesday at the meeting of the Public Safety Committee.

Oakland is known as a marijuana-friendly city, but friendliness was sometimes in short supply last week as Council members heard hours of contentious public comment on the proposed ordinance.

The Council chambers were filled with members of the Bay Area cannabis industry: dispensary owners, lawyers specializing in medical-marijuana law, would-be permit applicants, subcontractors who see the proposed factories as a means to expand their businesses and growers of all stripes.

A nonprofit, nonpartisan news organization providing local coverage of the San Francisco Bay Area for The New York Times. To join the conversation about this article, go to http://www.baycitizen.org. Some expressed concern that allowing industrial marijuana factories would drive down prices and squeeze out local cultivators.

“I think this ordinance is nothing more than a municipally sanctioned monopoly on medical cannabis,” one grower told the committee.

In a compromise effort, Vice Mayor Jean Quan and Councilwoman Patricia Kernighan suggested that Ms. Kaplan and Mr. Reid devise a similar permit process for medium-sized facilities. Those new rules will be up for discussion in September, but in the meantime, some growers worry that they are being run out of business.

“It’s politics,” said Dan Grace, who runs a 3,000-square-foot nursery for young pot plants called clones. “All you can count on is what we have now, and what we have now is not a process that allows for medium-sized growers.”

Councilwoman Nancy Nadel drew some applause from the audience when she raised concerns that the cultivation ordinance was not legal under state or federal law. “I don’t see any rush to do this until we know what happens in November,” Ms. Nadel said, referring to the ballot initiative.

Ms. Quan warned, however, that if Oakland did not act quickly, other cities could seize the opportunity to become a hub for the expanding medical-marijuana industry. “I want Oakland to be in place, so I want to move this out,” she said.

The debate was heated in part because the proposed ordinance has gone through several revisions, and rumors have swirled about the regulations. City Council members said they received a flood of calls amid concerns that all dispensaries would be required to buy marijuana from the industrial facilities. But that is not a requirement.

Until recently, cultivation of medical marijuana has not been closely regulated in any California cities.

“Our real goal is to eliminate a lot of the public problems stemming from illegal and unregulated cultivation,” said Dhar Mann, an Oakland businessman who plans to apply for one of the permits if the proposal passes.

A report attached to the proposal said residential electrical fires in Oakland rose from 133 in 2006 to 290 in 2009, a spike, it said, “likely attributable to cannabis cultivation.” There were also eight robberies, seven burglaries and two homicides linked to marijuana growing, the report said.

Mr. Mann, 26, owns a 15,000-square-foot hydroponic supply store called iGrow, which will soon open franchises in eight states. He recently scouted another large-scale warehouse with an architect and security contractor in the hope of growing marijuana there.

If he receives a permit, Mr. Mann said, he will outfit the building with solar panels, a grass roof and a state-of-the-art security system.

New Jersy to become 15th State recognizing Medical Marijuana...yet the Feds STILL list it as Schedule 1 Narcotis as having "no medical use."

2010-07-24T10:14:00.000-07:00

Five months before its new medical marijuana law is set to take effect, New Jersey this week moved further away from having answers to basic questions about how the law will work — specifically, who will grow the marijuana and who will dispense it.

Chris Christie’s administration had been pursuing a plan to make Rutgers University the only approved cultivator of cannabis, and to make teaching hospitals the only places where patients could get it.

But on Thursday, Rutgers announced that it would not participate for fear of losing grants from the federal government. State officials said the hospitals had the same concern.

State laws legalizing medical marijuana are at odds with federal law. The Obama administration has stopped the practice of raiding marijuana dispensaries in those states, but the Drug Enforcement Administration remains reluctant to grant permission to grow the plants, even for medical research.

“This is genuinely something we were interested in doing,” said Robert M. Goodman, the executive dean of agriculture and natural resources at Rutgers. “We have agricultural stations; we have programs in medicinally reactive plants, in chemical biology, in pharmacy. It’s a potential new crop for the state, and we’re interested in promoting the state’s economy.”

But, he added, “it just puts too much at risk,” jeopardizing research grants, contracts, student aid or other funds from Washington.

Fourteen states have passed laws allowing medical use of marijuana, but New Jersey’s, signed in January, is in some ways the strictest. The law was written to prevent the proliferation of growers and dispensaries seen in states like California and Colorado, at first limiting the state to six dispensaries run by nonprofits, and it prohibits patients from growing the plants themselves.

New Jersey allows doctors to prescribe marijuana only for patients with terminal illness or a fairly limited set of specific, chronic conditions, and limits each person to two ounces per month, compared with as much as 24 ounces in other states.

Governor Christie, a Republican who took office days after the law was enacted, has sought to make it still more restrictive in the way it is carried out. The administration is supposed to put regulations in place for carrying out the law by Oct. 1, and the law is scheduled to go into effect on Jan. 1.

Michael Drewniak, the governor’s chief spokesman, said Friday that the administration still expected to have dispensaries ready to open in 2011.

“As we’ve said all along, we’ve been considering other options beyond the Rutgers plan,” Mr. Drewniak said, “and we will continue working diligently to implement a high-quality and secure program.” He declined to elaborate.

The governor is angry about the university’s decision, according to officials who were granted anonymity to comment on private discussions, and so are some legislators. Assemblyman Reed Gusciora, a Democrat from Mercer County who was one of the primary sponsors of the legalization bill, said “the university is chickening out” by not testing federal authorities’ willingness to grant a waiver.

State Senator Nicholas P. Scutari, a Democrat from Linden who was the other main sponsor, said that Mr. Christie wanted too much control over the program and that the state would have no choice but to approve private growers.

“We’ve known this was going to be a concern for Rutgers from the get-go, but the administration indicated no, it’s not going to be a problem,” Mr. Scutari said. And the hospitals, he said, “have got the same exact issue.”

The New Jersey Council of Teaching Hospitals declined to comment, but several people briefed on the discussions said the hospitals wanted some kind of guarantee that they would not be jeopardizing federal money.

Mr. Christie has said he had concerns about how to carry out the law with enough security. At his request, the Legislature delayed putting the law into effect for 90 days.

The plan to use Rutgers and teaching hospitals would have given the state far more direct control over the program than the Legislature intended, but for the most part, lawmakers said they were amenable to the idea if it would work.

Veteran's Hospitals easing rules on Medical Marijuana us will not affect hosptals in Fort Worth, Texas

2010-07-24T10:08:00.000-07:00

DENVER — The Department of Veterans Affairs will formally allow patients treated at its hospitals and clinics to use medical marijuana in states where it is legal, a policy clarification that veterans have sought for several years.

A department directive, expected to take effect next week, resolves the conflict in veterans facilities between federal law, which outlaws marijuana, and the 14 states that allow medicinal use of the drug, effectively deferring to the states.

The policy will not permit department doctors to prescribe marijuana. But it will address the concern of many patients who use the drug that they could lose access to their prescription pain medication if caught.

Under department rules, veterans can be denied pain medications if they are found to be using illegal drugs. Until now, the department had no written exception for medical marijuana.

This has led many patients to distrust their doctors, veterans say. With doctors and patients pressing the veterans department for formal guidance, agency officials began drafting a policy last fall.

“When states start legalizing marijuana we are put in a bit of a unique position because as a federal agency, we are beholden to federal law,” said Dr. Robert Jesse, the principal deputy under secretary for health in the veterans department.

At the same time, Dr. Jesse said, “We didn’t want patients who were legally using marijuana to be administratively denied access to pain management programs.”

The new, written policy applies only to veterans using medical marijuana in states where it is legal. Doctors may still modify a veteran’s treatment plan if the veteran is using marijuana, or decide not to prescribe pain medicine altogether if there is a risk of a drug interaction. But that decision will be made on a case-by-case basis, not as blanket policy, Dr. Jesse said.

Though veterans of the Vietnam War were the first group to use marijuana widely for medical purposes, the population of veterans using it now spans generations, said Michael Krawitz, executive director of Veterans for Medical Marijuana Access, which worked with the department on formulating a policy.

Veterans, some of whom have been at the forefront of the medical marijuana movement, praised the department’s decision. They say cannabis helps soothe physical and psychological pain and can alleviate the side effects of some treatments.

“By creating a directive on medical marijuana, the V.A. ensures that throughout its vast hospital network, it will be well understood that legal medical marijuana use will not be the basis for the denial of services,” Mr. Krawitz said.

Although the Obama administration has not embraced medical marijuana, last October, in a policy shift, the Justice Department announced that it would not prosecute people who used or distributed it in states where it was legal.

Laura Sweeney, a spokeswoman for the Justice Department, would not comment spefically on the veterans department policy. “What we have said in the past, and what we have said for a while, is that we are going to focus our federal resources on large scale drug traffickers,” she said. “We are not going to focus on individual cancer patients or something of the like.”

Many clinicians already prescribe pain medication to veterans who use medical marijuana, as there was no rule explicitly prohibiting them from doing so, despite the federal marijuana laws.

Advocates of medical marijuana use say that in the past, the patchwork of veterans hospitals and clinics around the country were sometimes unclear how to deal with veterans who needed pain medications and were legally using medical marijuana. The department’s emphasis on keeping patients off illegal drugs and from abusing their medication “gave many practitioners the feeling that they are supposed to police marijuana out of the system,” Mr. Krawitz said.

“Many medical-marijuana-using veterans have just abandoned the V.A. hospital system completely for this reason,” he said, “and others that stay in the system feel that they are not able to trust that their doctor will be working in their best interests.”

In rare cases, veterans have been told that they need to stop using marijuana, even if it is legal, or risk losing their prescription medicine, Mr. Krawitz said.

David Fox, 58, an Army veteran from Pompey’s Pillar, Mont., uses medical marijuana legally to help quiet the pain he experiences from neuropathy, a nerve disorder. But he said he was told this year by a doctor at a veterans’ clinic in Billings that if he did not stop using marijuana, he would no longer get the pain medication he was also prescribed.

A letter written to Mr. Fox in April from Robin Korogi, the director of the veterans health care system in Montana, explained that the department did not want to prescribe pain medicine in combination with marijuana because there was no evidence that marijuana worked for noncancer patients and because the combination was unsafe.

“In those states where medical marijuana is legal, the patient will need to make a choice as to which medication they choose to use for their chronic pain,” Ms. Korogi wrote. “However, it is not medically appropriate to expect that a V.A. physician will prescribe narcotics while the patient is taking marijuana.”

Mr. Fox was shocked by the decision, he said.

“I felt literally abandoned,” he said. “I still needed my pain meds. I thought they were supposed to treat you. It was devastating for me.”

Mr. Fox, who said that at one point he was weaning himself off his pain medication for fear of running out, has held one-man protests in front of the clinic, carrying signs that read “Abandoned by V.A., Refused Treatment.”

Veterans officials would not comment on specific cases, citing medical privacy laws.

This month, Dr. Robert A. Petzel, the under secretary for health for the veterans department, sent a letter to Mr. Krawitz laying out the department’s policy. If a veteran obtains and uses medical marijuana in accordance with state law, Dr. Petzel wrote, he should not be precluded from receiving opioids for pain management at a veterans facility.

Dr. Petzel also said that pain management agreements between clinicians and patients, which are used as guidelines for courses of treatment, “should draw a clear distinction between the use of illegal drugs, and legal medical marijuana.”

Dr. Jesse, the veterans department official, said that formalizing rules on medical marijuana would eliminate any future confusion and keep patients from being squeezed between state and federal law.

Steve Fox, director of government relations for the Marijuana Policy Project, which favors the legal regulation of the drug, called the decision historic. “We now have a branch of the federal government accepting marijuana as a legal medicine,” he said.

But Mr. Fox said he wished the policy had been extended to veterans who lived in states where medical marijuana was not legal.

He said it was critical that the veterans department make its guidelines clear to patients and medical staff members, something officials said they planned on doing in coming weeks.

Said Dr. Jesse, “The whole goal of issuing a national policy is to make sure we have uniformity across the system.”

Why is Marijuana Illegal? An Insightful History of the Criminalization of Marijuana

2009-12-18T08:56:00.000-08:00

According to an insightful article i found in the history of marijuana laws, I found the following article at drugwarrant.com. Why is Marijuana Illegal?

7000-8000 B.C.

First woven fabric believed to be from hemp.
1619

Jamestown Colony, Virginia passes law requiring farmers to grow hemp.
1700s

Hemp was the primary crop grown by George Washington at Mount Vernon, and a secondary crop grown by Thomas Jefferson at Monticello.
1884

Maine is the first state to outlaw alcohol.
1906

Pure Food and Drug Act is passed, forming the Food and Drug Administration. First time that drugs have any government oversight.
1913

California, apparently, passes the first state marijuana law, though missed by many because it referred to “preparations of hemp, or loco weed.”

1914

Harrison Act passed, outlawing opiates and cocaine (taxing scheme)
1915

Utah passes state anti-marijuana law.
1919

18th Amendment to the Constitution (alcohol prohibition) is ratified.
1930

Harry J. Anslinger given control of the new Federal Bureau of Narcotics (he remains in the position until 1962)
1933

21st Amendment to the Constitution is ratified, repealing alcohol prohibition.
1937

Marijuana Tax Act
1938

Food, Drug and Cosmetic Act
1951

Boggs Amendment to the Harrison Narcotic Act (mandatory sentences)
1956

Narcotics Control Act adds more severe penalties
1970

Comprehensive Drug Abuse Prevention and Control Act.
Replaces and updates all previous laws concerning narcotics and other dangerous drugs. Empasis on law enforcement. Includes the Controlled Substances Act, where marijuana is classified a Schedule 1 drug (reserved for the most dangerous drugs that have no recognized medical use).
1972

Drug Abuse Office and Treatment Act.
Establishes federally funded programs for prevention and treatment
1973

Drug Enforcement Administration (DEA)
Changes Bureau of Narcotics and Dangerous Drugs into the DEA
1974 and 1978

Drug Abuse Treatment and Control Amendments. Extends 1972 act
1988

Anti-Drug Abuse Act.
Establishes oversight office: National Office of Drug Control Policy and the Drug Czar
1992

ADAMHA Reorganization.
Transfers NIDA, NIMH, and NIAAA to NIH and incorporates ADAMHA’s programs into the Substance Abuse and Mental Health Services Administration (SAMHSA) Many people assume that marijuana was made illegal through some kind of process involving scientific, medical, and government hearings; that it was to protect the citizens from what was determined to be a dangerous drug.

The actual story shows a much different picture. Those who voted on the legal fate of this plant never had the facts, but were dependent on information supplied by those who had a specific agenda to deceive lawmakers. You’ll see below that the very first federal vote to prohibit marijuana was based entirely on a documented lie on the floor of the Senate.

You’ll also see that the history of marijuana’s criminalization is filled with:

Racism
Fear
Protection of Corporate Profits
Yellow Journalism
Ignorant, Incompetent, and/or Corrupt Legislators
Personal Career Advancement and Greed
These are the actual reasons marijuana is illegal.

Background

For most of human history, marijuana has been completely legal. It’s not a recently discovered plant, nor is it a long-standing law. Marijuana has been illegal for less than 1% of the time that it’s been in use. Its known uses go back further than 7,000 B.C. and it was legal as recently as when Ronald Reagan was a boy.

The marijuana (hemp) plant, of course, has an incredible number of uses. The earliest known woven fabric was apparently of hemp, and over the centuries the plant was used for food, incense, cloth, rope, and much more. This adds to some of the confusion over its introduction in the United States, as the plant was well known from the early 1600’s, but did not reach public awareness as a recreational drug until the early 1900’s.

America’s first marijuana law was enacted at Jamestown Colony, Virginia in 1619. It was a law “ordering” all farmers to grow Indian hempseed. There were several other “must grow” laws over the next 200 years (you could be jailed for not growing hemp during times of shortage in Virginia between 1763 and 1767), and during most of that time, hemp was legal tender (you could even pay your taxes with hemp — try that today!) Hemp was such a critical crop for a number of purposes (including essential war requirements – rope, etc.) that the government went out of its way to encourage growth.

The United States Census of 1850 counted 8,327 hemp “plantations” (minimum 2,000-acre farm) growing cannabis hemp for cloth, canvas and even the cordage used for baling cotton.

The Mexican Connection

In the early 1900s, the western states developed significant tensions regarding the influx of Mexican-Americans. The revolution in Mexico in 1910 spilled over the border, with General Pershing’s army clashing with bandit Pancho Villa. Later in that decade, bad feelings developed between the small farmer and the large farms that used cheaper Mexican labor. Then, the depression came and increased tensions, as jobs and welfare resources became scarce.

One of the “differences” seized upon during this time was the fact that many Mexicans smoked marijuana and had brought the plant with them, and it was through this that California apparently passed the first state marijuana law, outlawing “preparations of hemp, or loco weed.”

However, one of the first state laws outlawing marijuana may have been influenced, not just by Mexicans using the drug, but, oddly enough, because of Mormons using it. Mormons who traveled to Mexico in 1910 came back to Salt Lake City with marijuana. The church’s reaction to this may have contributed to the state’s marijuana law. (Note: the source for this speculation is from articles by Charles Whitebread, Professor of Law at USC Law School in a paper for the Virginia Law Review, and a speech to the California Judges Association (sourced below). Mormon blogger Ardis Parshall disputes this.)

Other states quickly followed suit with marijuana prohibition laws, including Wyoming (1915), Texas (1919), Iowa (1923), Nevada (1923), Oregon (1923), Washington (1923), Arkansas (1923), and Nebraska (1927). These laws tended to be specifically targeted against the Mexican-American population.

When Montana outlawed marijuana in 1927, the Butte Montana Standard reported a legislator’s comment: “When some beet field peon takes a few traces of this stuff… he thinks he has just been elected president of Mexico, so he starts out to execute all his political enemies.” In Texas, a senator said on the floor of the Senate: “All Mexicans are crazy, and this stuff [marijuana] is what makes them crazy.”

Jazz and Assassins

In the eastern states, the “problem” was attributed to a combination of Latin Americans and black jazz musicians. Marijuana and jazz traveled from New Orleans to Chicago, and then to Harlem, where marijuana became an indispensable part of the music scene, even entering the language of the black hits of the time (Louis Armstrong’s “Muggles”, Cab Calloway’s “That Funny Reefer Man”, Fats Waller’s “Viper’s Drag”).

Again, racism was part of the charge against marijuana, as newspapers in 1934 editorialized: “Marihuana influences Negroes to look at white people in the eye, step on white men’s shadows and look at a white woman twice.”

Two other fear-tactic rumors started to spread: one, that Mexicans, Blacks and other foreigners were snaring white children with marijuana; and two, the story of the “assassins.” Early stories of Marco Polo had told of “hasheesh-eaters” or hashashin, from which derived the term “assassin.” In the original stories, these professional killers were given large doses of hashish and brought to the ruler’s garden (to give them a glimpse of the paradise that awaited them upon successful completion of their mission). Then, after the effects of the drug disappeared, the assassin would fulfill his ruler’s wishes with cool, calculating loyalty.

By the 1930s, the story had changed. Dr. A. E. Fossier wrote in the 1931 New Orleans Medical and Surgical Journal: “Under the influence of hashish those fanatics would madly rush at their enemies, and ruthlessly massacre every one within their grasp.” Within a very short time, marijuana started being linked to violent behavior.

Alcohol Prohibition and Federal Approaches to Drug Prohibition

During this time, the United States was also dealing with alcohol prohibition, which lasted from 1919 to 1933. Alcohol prohibition was extremely visible and debated at all levels, while drug laws were passed without the general public’s knowledge. National alcohol prohibition happened through the mechanism of an amendment to the constitution.

Earlier (1914), the Harrison Act was passed, which provided federal tax penalties for opiates and cocaine.

The federal approach is important. It was considered at the time that the federal government did not have the constitutional power to outlaw alcohol or drugs. It is because of this that alcohol prohibition required a constitutional amendment.

At that time in our country’s history, the judiciary regularly placed the tenth amendment in the path of congressional regulation of “local” affairs, and direct regulation of medical practice was considered beyond congressional power under the commerce clause (since then, both provisions have been weakened so far as to have almost no meaning).

Since drugs could not be outlawed at the federal level, the decision was made to use federal taxes as a way around the restriction. In the Harrison Act, legal uses of opiates and cocaine were taxed (supposedly as a revenue need by the federal government, which is the only way it would hold up in the courts), and those who didn’t follow the law found themselves in trouble with the treasury department.

In 1930, a new division in the Treasury Department was established — the Federal Bureau of Narcotics — and Harry J. Anslinger was named director. This, if anything, marked the beginning of the all-out war against marijuana.

Anslinger was an extremely ambitious man, and he recognized the Bureau of Narcotics as an amazing career opportunity — a new government agency with the opportunity to define both the problem and the solution. He immediately realized that opiates and cocaine wouldn’t be enough to help build his agency, so he latched on to marijuana and started to work on making it illegal at the federal level.

Anslinger immediately drew upon the themes of racism and violence to draw national attention to the problem he wanted to create. He also promoted and frequently read from “Gore Files” — wild reefer-madness-style exploitation tales of ax murderers on marijuana and sex and… Negroes. Here are some quotes that have been widely attributed to Anslinger and his Gore Files:

“There are 100,000 total marijuana smokers in the US, and most are Negroes, Hispanics, Filipinos, and entertainers. Their Satanic music, jazz, and swing, result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers, and any others.”

“…the primary reason to outlaw marijuana is its effect on the degenerate races.”

“Marijuana is an addictive drug which produces in its users insanity, criminality, and death.”

“Reefer makes darkies think they’re as good as white men.”

“Marihuana leads to pacifism and communist brainwashing”

“You smoke a joint and you’re likely to kill your brother.”

“Marijuana is the most violence-causing drug in the history of mankind.”
And he loved to pull out his own version of the “assassin” definition:

“In the year 1090, there was founded in Persia the religious and military order of the Assassins, whose history is one of cruelty, barbarity, and murder, and for good reason: the members were confirmed users of hashish, or marihuana, and it is from the Arabs’ ‘hashashin’ that we have the English word ‘assassin.’”

Yellow Journalism

Harry Anslinger got some additional help from William Randolf Hearst, owner of a huge chain of newspapers. Hearst had lots of reasons to help. First, he hated Mexicans. Second, he had invested heavily in the timber industry to support his newspaper chain and didn’t want to see the development of hemp paper in competition. Third, he had lost 800,000 acres of timberland to Pancho Villa, so he hated Mexicans. Fourth, telling lurid lies about Mexicans (and the devil marijuana weed causing violence) sold newspapers, making him rich.

Some samples from the San Francisco Examiner:

“Marihuana makes fiends of boys in thirty days — Hashish goads users to bloodlust.”

“By the tons it is coming into this country — the deadly, dreadful poison that racks and tears not only the body, but the very heart and soul of every human being who once becomes a slave to it in any of its cruel and devastating forms…. Marihuana is a short cut to the insane asylum. Smoke marihuana cigarettes for a month and what was once your brain will be nothing but a storehouse of horrid specters. Hasheesh makes a murderer who kills for the love of killing out of the mildest mannered man who ever laughed at the idea that any habit could ever get him….”
And other nationwide columns…

“Users of marijuana become STIMULATED as they inhale the drug and are LIKELY TO DO ANYTHING. Most crimes of violence in this section, especially in country districts are laid to users of that drug.”

“Was it marijuana, the new Mexican drug, that nerved the murderous arm of Clara Phillips when she hammered out her victim’s life in Los Angeles?… THREE-FOURTHS OF THE CRIMES of violence in this country today are committed by DOPE SLAVES — that is a matter of cold record.”
Hearst and Anslinger were then supported by Dupont chemical company and various pharmaceutical companies in the effort to outlaw cannabis. Dupont had patented nylon, and wanted hemp removed as competition. The pharmaceutical companies could neither identify nor standardize cannabis dosages, and besides, with cannabis, folks could grow their own medicine and not have to purchase it from large companies.

This all set the stage for…

The Marijuana Tax Act of 1937.

After two years of secret planning, Anslinger brought his plan to Congress — complete with a scrapbook full of sensational Hearst editorials, stories of ax murderers who had supposedly smoked marijuana, and racial slurs.

It was a remarkably short set of hearings.

The one fly in Anslinger’s ointment was the appearance by Dr. William C. Woodward, Legislative Council of the American Medical Association.

Woodward started by slamming Harry Anslinger and the Bureau of Narcotics for distorting earlier AMA statements that had nothing to do with marijuana and making them appear to be AMA endorsement for Anslinger’s view.

He also reproached the legislature and the Bureau for using the term marijuana in the legislation and not publicizing it as a bill about cannabis or hemp. At this point, marijuana (or marihuana) was a sensationalist word used to refer to Mexicans smoking a drug and had not been connected in most people’s minds to the existing cannabis/hemp plant. Thus, many who had legitimate reasons to oppose the bill weren’t even aware of it.

Woodward went on to state that the AMA was opposed to the legislation and further questioned the approach of the hearings, coming close to outright accusation of misconduct by Anslinger and the committee:

“That there is a certain amount of narcotic addiction of an objectionable character no one will deny. The newspapers have called attention to it so prominently that there must be some grounds for [their] statements [even Woodward was partially taken in by Hearst's propaganda]. It has surprised me, however, that the facts on which these statements have been based have not been brought before this committee by competent primary evidence. We are referred to newspaper publications concerning the prevalence of marihuana addiction. We are told that the use of marihuana causes crime.

But yet no one has been produced from the Bureau of Prisons to show the number of prisoners who have been found addicted to the marihuana habit. An informed inquiry shows that the Bureau of Prisons has no evidence on that point.

You have been told that school children are great users of marihuana cigarettes. No one has been summoned from the Children’s Bureau to show the nature and extent of the habit, among children.

Inquiry of the Children’s Bureau shows that they have had no occasion to investigate it and know nothing particularly of it.

Inquiry of the Office of Education— and they certainly should know something of the prevalence of the habit among the school children of the country, if there is a prevalent habit— indicates that they have had no occasion to investigate and know nothing of it.

Moreover, there is in the Treasury Department itself, the Public Health Service, with its Division of Mental Hygiene. The Division of Mental Hygiene was, in the first place, the Division of Narcotics. It was converted into the Division of Mental Hygiene, I think, about 1930. That particular Bureau has control at the present time of the narcotics farms that were created about 1929 or 1930 and came into operation a few years later. No one has been summoned from that Bureau to give evidence on that point.

Informal inquiry by me indicates that they have had no record of any marihuana of Cannabis addicts who have ever been committed to those farms.

The bureau of Public Health Service has also a division of pharmacology. If you desire evidence as to the pharmacology of Cannabis, that obviously is the place where you can get direct and primary evidence, rather than the indirect hearsay evidence.”
Committee members then proceeded to attack Dr. Woodward, questioning his motives in opposing the legislation. Even the Chairman joined in:

The Chairman: If you want to advise us on legislation, you ought to come here with some constructive proposals, rather than criticism, rather than trying to throw obstacles in the way of something that the Federal Government is trying to do. It has not only an unselfish motive in this, but they have a serious responsibility.

Dr. Woodward: We cannot understand yet, Mr. Chairman, why this bill should have been prepared in secret for 2 years without any intimation, even, to the profession, that it was being prepared.
After some further bantering…

The Chairman: I would like to read a quotation from a recent editorial in the Washington Times:

The marihuana cigarette is one of the most insidious of all forms of dope, largely because of the failure of the public to understand its fatal qualities.

The Nation is almost defenseless against it, having no Federal laws to cope with it and virtually no organized campaign for combating it.

The result is tragic.

School children are the prey of peddlers who infest school neighborhoods.

High school boys and girls buy the destructive weed without knowledge of its capacity of harm, and conscienceless dealers sell it with impunity.

This is a national problem, and it must have national attention.

The fatal marihuana cigarette must be recognized as a deadly drug, and American children must be protected against it.
That is a pretty severe indictment. They say it is a national question and that it requires effective legislation. Of course, in a general way, you have responded to all of these statements; but that indicates very clearly that it is an evil of such magnitude that it is recognized by the press of the country as such.
And that was basically it. Yellow journalism won over medical science.

The committee passed the legislation on. And on the floor of the house, the entire discussion was:

Member from upstate New York: “Mr. Speaker, what is this bill about?”

Speaker Rayburn: “I don’t know. It has something to do with a thing called marihuana. I think it’s a narcotic of some kind.”

“Mr. Speaker, does the American Medical Association support this bill?”

Member on the committee jumps up and says: “Their Doctor Wentworth[sic] came down here. They support this bill 100 percent.”
And on the basis of that lie, on August 2, 1937, marijuana became illegal at the federal level.

The entire coverage in the New York Times: “President Roosevelt signed today a bill to curb traffic in the narcotic, marihuana, through heavy taxes on transactions.”

Anslinger as precursor to the Drug Czars

Anslinger was essentially the first Drug Czar. Even though the term didn’t exist until William Bennett’s position as director of the White House Office of National Drug Policy, Anslinger acted in a similar fashion. In fact, there are some amazing parallels between Anslinger and the current Drug Czar John Walters. Both had kind of a carte blanche to go around demonizing drugs and drug users. Both had resources and a large public podium for their voice to be heard and to promote their personal agenda. Both lied constantly, often when it was unnecessary. Both were racists. Both had the ear of lawmakers, and both realized that they could persuade legislators and others based on lies, particularly if they could co-opt the media into squelching or downplaying any opposition views.

Anslinger even had the ability to circumvent the First Amendment. He banned the Canadian movie “Drug Addict,” a 1946 documentary that realistically depicted the drug addicts and law enforcement efforts. He even tried to get Canada to ban the movie in their own country, or failing that, to prevent U.S. citizens from seeing the movie in Canada. Canada refused. (Today, Drug Czar John Walters is trying to bully Canada into keeping harsh marijuana laws.)

Anslinger had 37 years to solidify the propaganda and stifle opposition. The lies continued the entire time (although the stories would adjust — the 21 year old Florida boy who killed his family of five got younger each time he told it). In 1961, he looked back at his efforts:

“Much of the most irrational juvenile violence and that has written a new chapter of shame and tragedy is traceable directly to this hemp intoxication. A gang of boys tear the clothes from two school girls and rape the screaming girls, one boy after the other. A sixteen-year-old kills his entire family of five in Florida, a man in Minnesota puts a bullet through the head of a stranger on the road; in Colorado husband tries to shoot his wife, kills her grandmother instead and then kills himself. Every one of these crimes had been proceeded [sic] by the smoking of one or more marijuana “reefers.” As the marijuana situation grew worse, I knew action had to be taken to get the proper legislation passed. By 1937 under my direction, the Bureau launched two important steps First, a legislative plan to seek from Congress a new law that would place marijuana and its distribution directly under federal control. Second, on radio and at major forums, such that presented annually by the New York Herald Tribune, I told the story of this evil weed of the fields and river beds and roadsides. I wrote articles for magazines; our agents gave hundreds of lectures to parents, educators, social and civic leaders. In network broadcasts I reported on the growing list of crimes, including murder and rape. I described the nature of marijuana and its close kinship to hashish. I continued to hammer at the facts.

I believe we did a thorough job, for the public was alerted and the laws to protect them were passed, both nationally and at the state level. We also brought under control the wild growing marijuana in this country. Working with local authorities, we cleaned up hundreds of acres of marijuana and we uprooted plants sprouting along the roadsides.”
After Anslinger

On a break from college in the 70s, I was visiting a church in rural Illinois. There in the literature racks in the back of the church was a lurid pamphlet about the evils of marijuana — all the old reefer madness propaganda about how it caused insanity and murder. I approached the minister and said “You can’t have this in your church. It’s all lies, and the church shouldn’t be about promoting lies.” Fortunately, my dad believed me, and he had the material removed. He didn’t even know how it got there. But without me speaking up, neither he nor the other members of the church had any reason NOT to believe what the pamphlet said. The propaganda machine had been that effective.

The narrative since then has been a continual litany of:

Politicians wanting to appear tough on crime and passing tougher penalties
Constant increases in spending on law enforcement and prisons
Racist application of drug laws
Taxpayer funded propaganda
Stifling of opposition speech
Political contributions from corporations that profit from marijuana being illegal (pharmaceuticals, alcohol, etc.)
… but that’s another whole story.

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Interlude…

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This account only scratches the surface of the story. If you want to know more about the history of marijuana, Harry Anslinger, and the saga of criminalization in the United States and elsewhere, visit some of the excellent links below. (All data and quotes for this piece came from these sources as well).

• The History of the Non-Medical Use of Drugs in the United States by Charles Whitebread, Professor of Law, USC Law School. A Speech to the California Judges Association 1995 annual conference.

• THE FORBIDDEN FRUIT AND THE TREE OF KNOWLEDGE: AN INQUIRY INTO THE LEGAL HISTORY OF AMERICAN MARIJUANA PROHIBITION by
Richard J. Bonnie & Charles H. Whitebread, II. VIRGINIA LAW REVIEW. VOLUME 56 OCTOBER 1970 NUMBER 6

• The Consumers Union Report – Licit and Illicit Drugs
by Edward M. Brecher and the Editors of Consumer Reports Magazine

• The History of the Marihuana Tax Act of 1937
By David F. Musto, M.D., New Haven, Conn.
Originally published in Arch. Gen. Psychiat. Volume 26, February, 1972

• The Report of the National Commission on Marihuana and Drug Abuse
I. Control of Marihuana, Alcohol and Tobacco.
History of Marihuana Legislation

• The Marihuana Tax Act of 1937.
The history of how the Marihuana Tax Act came to be the law of the land.

• Marijuana – The First Twelve Thousand Years by Ernest L. Abel, 1980

Fort Worth Officer Blood Alcohol Alleged to be Twice the Legal Limit. Criminal Prosecution now Intoxicated Manslaughter

2009-12-18T08:42:00.001-08:00

By ALEX BRANCH

Fort Worth Star Telegram

FORT WORTH — A Fort Worth police officer’s blood-alcohol content was more than twice the legal limit when his unmarked police vehicle collided with a PT Cruiser, killing a mother of two, police said Thursday.

Officer Jesus Cisneros’ blood-alcohol content measured 0.17 after the Dec. 11 crash that killed Sonia Baker, 27, according to a Fort Worth police statement. The legal limit in Texas is 0.08.
Detectives are now investigating the crash as an intoxication manslaughter case, police said.

"This tragedy has shocked the conscience of this department," Police Chief Jeff Halstead said in a statement. "The Police Department is deeply saddened for the Baker family. We are embarrassed by this tragic incident."

Reached by telephone, Demond Baker, Sonia Baker’s husband, said that dealing with his wife’s death left him too tired to discuss Thursday’s findings. Her funeral was Tuesday, according to an obituary in the Star-Telegram.

The Bakers have two sons, Tayshawn, 4, and Amarion, 5.

"I’m just drained right now," Demond Baker said.

Sonia Baker, a dialysis technician, was driving from her southwest Fort Worth home to a McDonald’s when the crash occurred, her husband has said. Fort Worth police said Cisneros, who was off-duty, was westbound in the 3800 block of Columbus Trail when the Toyota Highlander he was driving collided with Baker’s car about 2:30 a.m.

Baker, who had been southbound on Evening Star Drive, had turned east in front of the officer’s vehicle, police have said.

Cisneros’ blood was drawn at a hospital after the crash. He is now on restricted duty, police said.

Fort Worth traffic investigators requested an independent reconstruction of the wreck from Crash Dynamics, a private company contracted through the Tarrant County district attorney’s office, police said. It will try to determine the speed and momentum of both vehicles, which are factors in determining whether intoxication manslaughter charges are applicable, police said.

Intoxication manslaughter is a second-degree felony punishable by two to 20 years in prison and up to a $10,000 fine.
Internal affairs is investigating Cisneros’ activities before the crash. That inquiry will include what time Cisneros concluded his workday, whom he was with, why he was in an undercover police vehicle and whether he was allowed to use it after hours, police said.

In 2006, Cisneros accepted a 20-day suspension after an internal investigation determined that, while intoxicated and with a passenger in his private car, he fired a single shot through an open sunroof, civil service records show.

Mayor Mike Moncrief released a statement Thursday calling the crash a "terrible tragedy."

"If the facts are as presented, the actions by this officer are completely unacceptable," he said. "They certainly do not represent the good men and women of our Police Department who protect us every day."

This report includes information from the Star-Telegram archives:

Fort Worth police say officer in fatal wreck was very drunk
A Fort Worth police officer’s blood-alcohol level was more than twice the legal limit when his unmarked police vehicle was involved in a fatal collision that killed a 27-year-old mother of two, police announced Thursday.

Officer Jesus Cisneros had a blood-alcohol content of .17, Fort Worth police said in a statement. The legal limit is .08.

As a result, investigators will "focus the criminal investigation on intoxication manslaughter," the statement said. Detectives are reconstructing the Dec. 11 wreck that killed Sonia Baker (right) to determine the speed of Cisneros’ Toyota Highlander.

Here's what Police Chief Jeffrey Halstead had to say about the case:

“This tragedy has shocked the conscience of this department. The men and women of the Fort Worth Police Department risk their lives to protect our community from impaired drivers; to have an employee suspected of causing the death of a citizen under these circumstances is deplorable. As Chief of Police, I will ensure our investigators work closely with the District Attorney’s office and once the facts of the investigation are obtained, I will deal swiftly with Officer Cisneros. The police department is deeply saddened for the Baker family. We are embarrassed by this tragic incident.”

Mayor Mike Moncrief also commented:

"Fort Worth is deeply saddened by this terrible tragedy," he said. "If the facts are as presented, the actions by this officer are completely unacceptable. They certainly do not represent the good men and women of our Police Department who protect us every day."

Death Sentences Decreasing

2009-12-18T08:35:00.000-08:00

According to news articles published today Texas juries are following a nationwide trend of sending fewer convicted criminals to death, but the state still leads the country in executions by a wide margin, according to a new study released today.
Both in Texas and across the country, death sentences declined for the seventh straight year, according to a report from the Death Penalty Information Center, an anti-capital-punishment group.
Both in Texas and nationwide, the number of executions carried out rose this year. Out of 52 people executed by states in 2009, 24 occurred in Texas. Last year, there were 37 executions nationwide, with 18 in Texas. There was a four-month death penalty moratorium last year while the Supreme Court addressed the constitutionality of lethal injections.
"The fact is those 24 people will never murder anyone again," said William "Rusty" Hubbarth, an Austin attorney and vice president of Justice for All, a victims’ advocacy group. "That in itself is a real good deterrent."
Nationwide, 106 people were sentenced to death this year, the lowest number since the death penalty was reinstated in 1976, according to the report.
Texas also reached its lowest point in over 30 years, with juries giving just nine death sentences, including Erick Davila, who was sentenced in February for gunning down a 5-year-old girl and her grandmother during a birthday party in southeast Fort Worth.
Texas accounts for 8 percent of the country’s death sentences, an amount in proportion with the state’s population.
California, however, is bucking that nationwide trend. The state’s death sentences more than doubled, from 14 in 2008 to 29 this year.
Reasons for the drop
There is some disagreement over why the number of death sentences has fallen so sharply in most states in recent years.
Many in the legal community point to the introduction of life without parole as an option for juries in 2005. The change in state law altered the dynamics of capital cases. Before 2005, jurors were responsible for choosing either the death penalty or a life sentence in which a convicted killer could be eligible for parole in 40 years.
Several Texas prosecutors have said they are now less likely to pursue the death penalty. Capital cases are long and expensive, and defendants are often willing to plead to life without parole to avoid the death penalty.
Others argue that jurors have become less willing to agree to the ultimate punishment as more stories emerge of convicted offenders exonerated through DNA evidence.
Nine people sentenced to Death Row were exonerated in 2009, according to the report, including two Texans: Michael Toney, who was convicted of the 1985 bombing of a Lake Worth trailer and served nine months, and Robert Springsteen, who was convicted of the 1991 slayings of four teens at an Austin yogurt shop and served eight years.
"I think there are a large number of people who are on Death Row currently in Texas who most likely would not have been sentenced to death in the current climate," said Kristin Houlé, executive director of the Texas Coalition to Abolish the Death Penalty.
Economic factors?
The report suggests a third theory: The bad economy has prompted district attorneys to shy away from pursuing the death penalty because they are more expensive.
"The economics are a controlling factor on that," Hubbarth said. "It has nothing to do with public opinion."
While the death penalty is becoming more rare in Texas courtrooms, the state’s justice system is still working through the hundreds already sentenced to die.
Almost all of the offenders executed by Texas this year were sent to Death Row between 1993 and 1999, when the state gained international notoriety for its high use of the death penalty.
The Death Row facility at Huntsville will likely stay busy next year. Six executions are already scheduled through March 30.

Dallas Officer Defended by David Sloane back on the job

2009-04-01T09:17:00.000-07:00

Source: Dallas Morning News 10-31-2008

DALLAS-After 10 months of being at home collecting a paycheck from the city of Dallas, Officer Marcus Winn has returned to work.
Officer Winn was placed on administrative leave on Dec. 2, 2007, after he was accused of assaulting his ex-wife at her home in Arlington. Officer Winn was found not guilty last month of the charges. He returned to patrolling the streets of Dallas on Monday.
"I did not do it. I was at home laying down getting ready for work the next day," Officer Winn said. He said that the statements that the witnesses and his ex-wife gave did not match.
Officer Winn said he is relieved to be back at work. "This is a career that I love and there's nothing better than to help people that call for your assistance," Officer Winn said.Officer Winn has troubled history of finding himself on the other side of the law mostly in domestic-related clashes since his hiring by the Dallas Police Department in 2000. He acknowledged that he's had some bad luck during his career of "people trying to put allegations on me."
In 2003, he was accused of assaulting a fellow officer in the parking lot of the southeast patrol station, where he is still assigned. According to reports, Officer Winn said he approached Officer James Jablon over a comment that he had supposedly made about Officer Winn taking remedial classes. Another officer and Officer Jablon told investigators that Officer Winn bumped him chest to chest and struck him in the face with his index finger. Officer Winn denies that there was ever any physical contact. "He (Officer Jablon) didn't even show up in court," he said. "That's how that got dismissed." He received a written reprimand over that incident.
The following year, the off-duty officer was accused of breaking into a house and attacking his ex-girlfriend's new boyfriend. According to a police report, Officer Winn flagged down responding officers and told them that he had broken into the house and struck the new boyfriend. The ex-girlfriend told police that she had broken off the relationship but that he kept harassing her. He was accused of burglary of a habitation over the incident. A grand jury subsequently no billed him. He was suspended 20 days over the incident. Arlington police records show that Officer Winn and his ex-wife have had a tumultuous relationship going back to at least 2003, resulting in numerous incidents of police being called out to deal with conflicts between them. She has repeatedly accused him of abusing her, though he also has accused her of the same thing. At one point in 2006, the ex-wife's neighbors who were babysitting their child told police that that they were scared of him because of the aggressive way he was acting when he came to pick up the child. In 2007, the ex-wife told police that they had gotten into an argument over their son and that he hit her with his head on the left side of her face. She also said that at one point, he kicked her during the October incident. "I tried to get up and he did not let me. He grabbed my hands and hugged me and sat me back on the bed and told me he was sorry," she told police, the records show. "I was crying and my son was screaming."
She told police that he apologized but took away her cell phone to prevent her from calling 911. She called the police after he left. He later denied that he had been at her apartment.
She later called police and said she didn't want to pursue charges because he was the father of her child. Police filed the charges anyway. They filed charges relating to preventing her from calling 911, unlawful restraint and assault. A witness had also told police that she had heard the couple's son state that his "daddy" had "hit mommy." Officer Winn says that witness is actualy a cousin of an Arlington police detective. Police records also show the witness had changed her account of when she saw Officer Winn's ex-wife with her supposed injuries. Officer Winn alleges that his ex-wife used Halloween paint to make herself look injured and then took pictures of her supposed injuries. Police records state that she did not have fresh bruising when she called police to the home to report the assault, the day after it supposedly happened. He also says that his ex-wife was dating an Arlington police officer. The department's internal affairs division is looking into the incident. What, if any, discipline he will receive has not yet been decided. Officer Winn, a Texarkana native, graduated from Southern Arkansas University with a degree in business administration in 1999. He applied to the Texarkana Police Department in Arkansas but was rejected because he failed the written test, records show. He was working as a shoe salesman at a department store when the Dallas Police Department hired him in March 2000.

DWI CHEKPOINTS APPROVED - MAY APPLY TO DALLAS FT. WORTH

2009-04-01T09:13:00.000-07:00

AUSTIN -- Drivers in urban cities and counties could be stopped and checked for their sobriety at police checkpoints under a bill tentatively passed Monday by the Texas Senate.
The vote was 21-10 with six Republican and four Democratic senators voting no. A 1994 Texas Court of Criminal Appeals ruling outlawed sobriety checkpoints, but said the Legislature could make them legal.
The checkpoints would be publicized to deter people from drinking and driving, said bill sponsor Sen. John Carona, R-Dallas. He estimated that the drop in drunken driving would save 300 lives each year in Texas, which leads the nation in alcohol-related traffic fatalities.
Carona won support from lawmakers who previously opposed checkpoint bills by requiring that the stops be videotaped and audio recorded. The bill also prohibits police from asking for a driver’s license or insurance card.
Approval from a sheriff or mayor would be needed to set up a checkpoint, which would only be allowed in a county with at least 250,000 residents or a city with at least 500,000 residents.

Fort Worth Officer Fired in Drug Accusations

2009-01-17T13:11:00.000-08:00

FORT WORTH — A Fort Worth police officer has been fired on accusations that he illegally bought, and on one occasion ingested, prescription drugs while in uniform and driving his patrol car.
Jerry "J.D." Hall Jr., who had been with the department since 1992, was indefinitely suspended — tantamount to being fired — effective today, according to a letter signed by new Police Chief Jeff Halstead and filed with the Civil Service Commission on Monday.
Attorney Richard Carter with the Combined Law Enforcement Associations of Texas said Hall, 45, has appealed and "will be using his time to resolve his health issues while awaiting his appeal hearing."
"Officer Hall is confident that there will be a resolution during the year 2009," Carter said.
The internal affairs division began investigating Hall in August after an arrested woman being driven to jail told an officer that she had information about another officer named "Jerry" who was buying and using drugs, according to the letter.
The woman picked Hall out of a photo lineup as a person she had seen buy Xanax from one of his relatives and ingest it, the letter states.
The woman told investigators that she saw Hall buy drugs three times in July, twice while in uniform and driving his police car. During one of the on-duty purchases, which took place at an Arlington bingo hall, the woman said, she saw Hall ingest two Xanax pills.
She also told investigators that during the last purchase she witnessed in late July, an off-duty Hall bought what appeared to be "close to 100 pills that would not fit in the bottle."
A narcotics investigation was initiated, and investigators learned that Hall’s relative had been selling Xanax to him for about eight months beginning around December 2007, the letter states.

http://www.sloanelaw.com

Drug Enforcement Administration Refuses Hearing to Remove Marijuana From Schedule of Illegal Narcotics

2009-01-08T04:23:00.001-08:00

NOTE from David Sloane: Marijuana is currently a Schedule I Narcotic (along with LSD and Heroin) which by definition means there is no accepted medical use. As the various states are finding legitimate medical uses for Marijuana there is pressure to remove Marijuana from the list of scheduled narcotics. Here's the DEAs most recent argument against doing so:

U.S. Department of Justice
Drug Enforcement Administration
Office of the Deputy Administrator
Washington, D.C. 20537

December 19, 2008

Mr. Carl Olsen
130 E Aurora Avenue
Des Moines, Iowa 50313-3654

Dear Mr. Olsen:

On May 12,2008, you petitioned the Drug Enforcement Administration (DEA) to initiate rulemaking proceedings under the rescheduling provisions of the Controlled Substances Act (CSA). You requested that DEA remove marijuana from schedule I of the CSA based on your assertion that the federal definition for a schedule I controlled substance no longer applies to it. You contend that federal drug law gives states the authority to determine accepted medical use and that marijuana, therefore, has a "currently accepted medical use in treatment in the United States" because 12 states have passed laws relating to the use of marijuana for medical purposes. Based on these same assertions, on August 5, 2008, you filed a "Notice and Deadline to Cease and Desist Illegal Enforcement of Fraudulant [sic] Marijuana Regulation." The notice states that the DEA must "cease and desist enforcement of the illegal regulation of marijuana" within 30 days or you will file a federal civil injunction. The Deputy Administrator finds, for the reasons stated herein, that the grounds upon which you rely are not sufficient to justify the initiation of proceedings for the removal of marijuana from schedule I of the CSA. Accordingly, your petition is hereby denied. For the same reasons, the Deputy Administrator finds that the notice to cease and desist also lacks merit. Accordingly, to the extent you seek action based on this filing, this request also is hereby denied.

Legal Background

When the CSA was created, Congress specified the initial scheduling of controlled substances and the criteria by which controlled substances could be rescheduled. 21 U.S.C. 811-812 (2008). Congress placed marijuana into schedule I. See Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. 91-513, 202(c), schedule I (c)(10), 84 Stat. 1247. The Attorney General "may by rule" transfer a drug or other substance between schedules if he finds that such drug or other substance has a potential for abuse and makes with respect to such drug or other substance the findings prescribed by subsection (b) of Section 812 for the schedule in which such drug is to be placed. 21 U.S.C. 811(a)(I).

In order for a substance to be placed in schedule I, the Attorney General must find that:

(A) The drug or other substance has a high potential for abuse;
(B) The drug or other substance has no currently accepted medical use in treatment in the United States; and
(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision. 21 U.S.C. 812(b)(1)(A)-(C).

To be classified in one of the other schedules (II through V), a drug of abuse must have a "currently accepted medical use in treatment in the United States." [Footnote 1]Footnote 1: A controlled substance in schedule II must have either "a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions." 21 U.S.C. 812(b)(2)(B); see also Notice of Denial of Petition, 66 Fed. Reg. 20,038, 20,038 (Apr. 18,2001) ("Congress established only one schedule - schedule I - for drugs of abuse with 'no currently accepted medical use in treatment in the United States' and a 'lack of accepted safety for use ... under medical supervision.'").

The CSA provides that, in making any rescheduling determination, the Attorney General shall consider the following eight factors:
(1) The drug's actual or relative potential for abuse;
(2) Scientific evidence of its pharmacological effect, if known;
(3) The state of current scientific knowledge regarding the drug;
(4) Its history and current pattern of abuse;
(5) The scope, duration, and significance of abuse;
(6) What, if any, risk there is to the public health;
(7) The drug's psychic or physiological dependence liability; and
(8) Whether the substance is an immediate precursor of a substance already controlled under the CSA.21 U.S.C. 811(c).

The Attorney General has delegated this authority to the Administrator of DEA, who has redelegated it to the Deputy Administrator. See 28 C.F.R. 0.100(b) & 0.104, Appendix to Subpart R, sec. 12 (2008).The CSA further provides that, before initiating proceedings to reschedule a drug, the Administrator must gather the necessary data and request from the Secretary of Health and Human Services (HHS) a scientific and medical evaluation and recommendations as to whether the controlled substance should be rescheduled as the petitioner proposes. 21 U.S.C. 811(b); 21 C.F.R. 130S.43(d); Gettman v. DEA, 290 F.3d 430, 432 (D.C. Cir. 2002). In making such evaluation and recommendations, the Secretary must consider the factors listed in paragraphs (2), (3), (6), (7), and (8) above, and any scientific or medical considerations involved in paragraphs (1), (4), and (5) above. 21 U.S.C. 811(b). The Secretary has delegated this function to the Assistant Secretary for Health. [Footnote 2] If the Administrator determines that the evaluations and recommendations of the Assistant Secretary and "all other relevant data" constitute substantial evidence that the drug that is the subject of the petition should be subjected to lesser control or removed entirely from the schedules, he shall initiate proceedings to reschedule the drug or remove it from the schedules as the evidence dictates. 21 U.S.C. 811(b); 21 C.F.R. 1308.43(e).Footnote 2: As set forth in a memorandum of understanding entered into by HHS, the Food and Drug Administration (FDA), and the National Institute on Drug Abuse (NIDA), FDA acts as the lead agency within HHS in carrying out the Secretary's scheduling responsibilities under the CSA, with the concurrence of NIDA. Memorandum of Understanding with the Nat'l Inst. on Drug Abuse, 50 Fed. Reg. 9,518 (Mar. 8, 1985).

Basis for Denial of Your Petition and Notice

Your petition and notice rest on your contention that federal drug law gives states the authority to determine, for purposes of the CSA, whether a drug has a "currently accepted medical use in treatment in the United States," and that marijuana has such a currently accepted medical use because 12 states have passed laws relating to the use of marijuana for medical purposes. See Carl Olsen Petition for Marijuana Rescheduling (May 12, 200S) ("Pet."); Carl Olsen Memorandum of Law in Support of Petition for Marijuana Rescheduling (May 25, 200S) ("Mem."); Notice and Deadline to Cease and Desist Illegal Enforcement of Fraudulant [sic] Marijuana Regulation (Aug. 5, 200S) ("Notice"). [Footnote 3] For the following reasons, your contention is not in accordance with law. Footnote 3: You do not, in this petition or notice, dispute whether marijuana meets the first criterion for schedule I or schedule II, i.e., that the substance has a high potential for abuse. Nor do you purport to present new scientific or medical evidence - beyond that previously considered by DEA in its prior denial of another petition to reschedule marijuana, see Notice of Denial of Petition, 66 Fed. Reg. at 20,038 - regarding whether marijuana has a currently accepted medical use. See generally Pet.; Mem.; Notice. Finally, you do not raise any religious use arguments such as those you previously raised and recently had rejected in the United States Court of Appeals for the Eighth Circuit. See Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008) (rejecting Olsen's religious use claims under the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act and rejecting Olsen's free exercise and equal protection claims).

A. The CSA's Statutory Scheme

The CSA's statutory scheme disproves your contention that federal drug law gives states the authority to determine whether a drug has a "currently accepted medical use" within the meaning of the CSA. You rely on Section 903 of the CSA, see Pet. at 2; Mem. at 16; Notice at 1, which provides that: "No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any state law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together." 21 U.S.C. 903 (2008). As a threshold matter, 21 U.S.C. 903 merely reaffirms, for purposes of the CSA, what is inherent in the supremacy clause of the United States Constitution: that any state law that actually conflicts with federal law is preempted by federal law and therefore invalid under the supremacy clause. [Footnote 4] Section 903 also provides that, so long as the states do not enact a law relating to controlled substances that creates a positive conflict with the CSA, the states are free to enact laws regulating controlled substances which would otherwise be within their authority that will operate alongside the CSA. Thus, it would be antithetical to the text of section 903 to cite it for the proposition that state controlled substance laws that conflict with the CSA can override or frustrate the purposes of the CSA. As the Supreme Court stated in the context of marijuana possession and cultivation taking place in purported compliance with California law: "The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail." [Footnote 5] Footnote 4: See, e.g., California Fed. Sav. & Loan Assoc. v. Guerra, 479 U.S. 272, 280-281 (1987). Footnote 5: Gonzales v. Raich, 545 U.S. 1, 29 (2005). Furthermore, the CSA plainly does not assign to the states the authority to make findings relevant to CSA scheduling determinations. Rather, the CSA expressly delegates the task of making such findings - including whether a substance has any currently accepted medical use - to the Attorney General. 21 U.S.C. 811
(a). The CSA also expressly tasks the Secretary of HHS to provide a scientific and medical evaluation and scheduling recommendations to inform the Attorney General's findings. 21 U.S.C. 811
(b). [Footnote 6] That Congress explicitly provided scheduling authority to these two federal entities further precludes your argument that Section 903 reserves this authority to the states.Footnote 6: DEA regulations echo this statutory scheme. See 21 C.F.R. 1308.43.
In addition, the CSA explicitly provides that in making a scheduling determination, the Attorney General shall consider the following eight factors:
(1) The drug's actual or relative potential for abuse;
(2) Scientific evidence of its pharmacological effect, if known;
(3) The state of current scientific knowledge regarding the drug;
(4) Its history and current pattern of abuse;
(5) The scope, duration, and significance of abuse;
(6) What, if any, risk there is to the public health;
(7) The drug's psychic or physiological dependence liability; and
(8) Whether the substance is an immediate precursor of a substance already controlled under the CSA.21 U.S.C. 811(c).

These factors do not include state law. The CSA's statutory text evidences that Congress did not envision such a role for state law in establishing the schedules of controlled substances under the CSA. [Footnote 7]Footnote 7: DEA previously conducted lengthy proceedings to review a petition to reschedule marijuana from 1995 through 2001. After requesting and reviewing a scientific and medical evaluation from HHS, the Administrator denied the petition on the grounds that marijuana has no currently accepted medical use and because it is not safe for use even under medical supervision. Notice of Denial of Petition, 66 Fed. Reg. at 20,038, pet. for review dismissed, Gettman, 290 F.3d at 436.
As you note, the Coalition for Rescheduling Cannabis filed a petition with the DEA in October 2002 discussing scientific and medical findings relating to the medical use of marijuana. That petition remains pending.

B. Gonzales v. Oregon and Other Recent Supreme Court Cases. You further rely on Gonzales v. Oregon, 546 U.S. 243 (2006). See Pet. at 2-3; Mem. at 13; Notice at 4. This reliance also is misplaced. You argue that Oregon supports your petition by requiring federal authorities to defer to states' determinations on issues of medical practice. To the contrary, Oregon affirms the core federal authority of the Attorney General, in consultation with the Secretary of HHS, as to drug scheduling. In Oregon, the United States Supreme Court considered the Attorney General's Interpretive Rule prohibiting doctors from prescribing controlled substances for use in physician-assisted suicide under an Oregon state law that permitted the procedure. Id. at 248. The Court held that the Rule was not entitled to deference because it was not issued pursuant to an explicit delegation of rule making authority. Id. at 258-69. The Court did not find the Attorney General's interpretation persuasive and invalidated the Rule because the CSA "manifests no intent to regulate the practice of medicine generally." Id. at 270.In so holding, however, the Court repeatedly cited by contrast - as a valid and explicit delegation of authority - the Attorney General's power as to drug scheduling. [Footnote 8] The Court observed that, by the text of the CSA itself, Congress had delegated "control" authority to the Attorney General to add, remove, or reschedule substances. [Footenote 9] The Court further cited the CSA's detailed scheduling procedures, including the requirement to request a scientific and medical evaluation by the Secretary of HHS. Id. at 260. Oregon thus confirmed that, in contrast to the invalidated Rule, drug scheduling authority and the corresponding scheduling procedures are an appropriate exercise of the federal power granted in the CSA. Footnote 8: See Oregon, 546 U.S. at 262 ("It would be anomalous for Congress to have painstakingly described the Attorney General's limited authority to ... schedule a single drug, but to have given him, just by implication, authority to declare an entire class of activity outside 'the course of professional practice' and therefore a criminal violation of the CSA.").Footnote 9: The Court noted that the term "control" is a term of art in the CSA, meaning to "add a drug or other substance ... to a schedule ... whether by transfer from another schedule or otherwise." Oregon, 546 U.S. at 260 (quoting 21 U.S.C. 802(5)). The Court also approvingly cited the CSA's explicit allocation of medical judgments in the scheduling context - not, as you argue, to states - but rather, to the Secretary: "The CSA allocates decision making powers among statutory actors so that medical judgments, if they are to be decided at the federal level and for the limited objects of the statute, are placed in the hands of the Secretary." Id. at 265. Whereas the invalidated Rule involved an overly broad assertion of authority, the drug scheduling context exemplified the "CSA's consistent delegation of medical judgments to the Secretary and its otherwise careful allocation of powers." Id. at 272. Thus, far from giving authority to the states, Oregon instead confirms the Attorney General's explicit authority, in conjunction with the Secretary's recommendations on scientific and medical matters, as to drug scheduling. The two other recent Supreme Court cases you cite, see Mem. at 15-16; Notice at 3, likewise affirmed the primacy of federal law over state marijuana laws. In United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 (2001) ("OCBC"), the Court held that no medical necessity exception existed to the CSA's prohibition on manufacturing and distributing marijuana. Notwithstanding California state law authorizing possession and cultivation of marijuana for claimed medical purposes, Congress' clear determination that all schedule I controlled substances, including marijuana, have no currently accepted medical use forecloses any argument as to whether such drugs can be dispensed and prescribed for medical use. Id. at 493. The Court in OCBC was explicit in stating that "for purposes of the [CSA], marijuana has 'no currently accepted medical use' at all. 812." Id. at 491. Similarly, in Raich, 545 U.S. 1, the Court held that, even in a state that had legalized marijuana activity for claimed medical use, Congress' federal commerce clause power extended to prohibit purportedly intrastate cultivation and use of marijuana in compliance with the state law. "Limiting the activity to marijuana possession and cultivation 'in accordance with state law' cannot serve to place respondents' activities beyond congressional reach." Id. at 29.

C. Whether A Drug Has A "Currently Accepted Medical Use in Treatment in the United States"Your argument that there is no federal definition of"currently accepted medical use" also fails.

In order to determine whether a substance has a "currently accepted medical use," the Administrator applies a five-part test:
1) The drug's chemistry must be known and reproducible;
2) There must be adequate safety studies;
3) There must be adequate and well-controlled studies proving efficacy;
4) The drug must be accepted by qualified experts; and
5) The scientific evidence must be widely available.
Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131, 1135 (D.C. Cir. 1994) ("ACT II"). This test was approved by the United States Court of Appeals for the D.C. Circuit as a reasonable interpretation of the statutory language. See Id. at 1134-5, 1137 (approving the Administrator's Final Order applying these five criteria); see also Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936, 939 (D.C. Cir. 1991) ("ACT I"). Significantly, with respect to your petition, this test includes no reference to state law.

D. Other Arguments as to Currently Accepted Medical UseA substantial portion of the remainder of your memorandum in support of your current petition and your notice merely rehash arguments as to "currently accepted medical use" that you unsuccessfully asserted when you petitioned DEA to reschedule marijuana in 1992 and when you sought review of DEA's denial of that petition by the United States Court of Appeals for the District of Columbia Circuit. The United States Court of Appeals, in declining your petition for review in a per curiam order issued October 3, 1996, stated that the arguments you raised "occasion no need for an opinion." Olsen v. DEA, No. 94-1605, 1996 WL 590870 (D.C. Cir. Oct. 3, 1996). It is, therefore, unnecessary for DEA to revisit these same arguments yet again in 2008. Nevertheless, to ensure completeness of the record, we briefly address and dismiss these contentions. First, you discuss again at length litigation relating to the 1972 petition to reschedule marijuana filed by the National Organization for the Reform of Marijuana Laws (NORML), see Mem. at 7-9, and the United States Court of Appeals for the First Circuit's decision in Grinspoon v. DEA, 828 F.2d 881 (1st Cir. 1987). See Mem. at 9-12; Notice at 2. These cases are inapposite, however, as they were superseded by the subsequent ACT I and ACT II decisions approving the present five-factor test. See ACT II, 15 F.3d at 1133 (noting "[t]he petition to reschedule marijuana was first filed [by NORML] in 1972 and has been before this court on four prior occasions ...."); ACT I, 930 F.2d at 939-40 (explicitly distinguishing Grinspoon). [Footnote l0]Footnote 10: The Grinspoon court never considered the present five-part test, but rather invalidated only a 1986 version of the "currently accepted medical use" test that depended on FDA approval. 828 F.2d at 884. On administrative remand, the test evolved before being replaced with the present five-part test approved in ACT I and ACT II. See Schedules of Controlled Substances, 53 Fed. Reg. 5,156, 5,157 (Feb. 22,1988) (formulating alternative eight-factor test following Grinspoon remand); Marijuana Scheduling Petition; Denial of Petition, 54 Fed. Reg. 53,767, 53,783 (Dec. 29, 1989) (applying eight-factor test); Marijuana Scheduling Petition; Denial of Petition; Remand, 57 Fed. Reg. 10,499, 10,506 (Mar. 26, 1992) (discarding eight-factor test and applying present five-part test). As to possible duplication of criteria between the 1986 version of the test Grinspoon rejected and the present test, the ACT I court explicitly distinguished Grinspoon, stating that the First Circuit "never suggested the DEA Administrator was foreclosed from incorporating and relying on those standards employed by the FDA that are relevant to the pharmaceutical qualities of the drug." 930 F.2d at 939. Second, you reiterate arguments regarding the Convention on Psychotropic Substances, contending that it was modified in 1991 to allow for the medical use of the pharmaceutically pure primary psychoactive ingredient in marijuana, delta-9-THC, and that this ingredient has been rescheduled twice, from schedule I to schedule III. Mem. at 4. You further contend that plants are not typically scheduled in schedules more restrictive than the psychoactive substances that are obtained from them. Mem. at 5. Under the CSA, however, the regulation of chemicals and the plant material are distinct from each other: drugs or other substances are treated and classified differently, according to the enumerated statutory criteria. 21 U.S.C. 812(b); see also Final Order, In the Matter of Petition of Carl Eric Olsen (May 16, 1994) (rejecting petition to reschedule marijuana); Olsen, 1996 WL 590870, at *1 (denying Olsen's petition for review). Whether marijuana is a source of delta-9-THC is irrelevant to the status of marijuana under the CSA. None of your remaining arguments as to whether marijuana has a currently accepted medical use have merit. [Footnote 11] First, you reference a portion of the 1970 legislative history of the CSA relating to appointment of a commission that issued a report on marijuana in 1972, citing a portion of the 1972 report itself. See Mem. at 2-3. In the more than 36 years that have elapsed since these materials were published, however, numerous individuals and marijuana legalization advocates have pointed to the 1972 marijuana report to justify CSA violations involving marijuana, to challenge the constitutionality of the federal marijuana laws, or, as with your latest petition, to argue that marijuana should be deemed to have medical efficacy for purposes of the CSA. [Footnote 12] None of these efforts have ever succeeded for the simple reason that Congress took no action to alter the CSA in any respect as a result of the 1972 report. The fact that Congress has not rescheduled marijuana speaks for itself.Footnote 11: Your notice in particular exhibits a fundamental misunderstanding of the "currently accepted medical use" standard. You argue that the DEA should have rescheduled marijuana in 1996 as soon as one state (California) passed legislation relating to the medical use of marijuana, citing Raich, OCBC, and Grinspoon. Notice at 2-3. But none of these cases support your argument. First, as you acknowledge, see Notice at 3, Raich noted that Congress classified marijuana in schedule I, that is, "Congress expressly found that [marijuana] has no acceptable medical uses." 545 U.S. at 27. Second, you ignore that OCBC specifically rejected an exception for the medical use of marijuana on the basis that Congress, and not the Attorney General, had placed marijuana in schedule I. The Court held:It is clear from the text of the [CSA] that Congress has made a determination that marijuana has no medical benefits worthy of an exception .... The statute ... includes no exception at all for any medical use of marijuana. Unwilling to view this omission as an accident, and unable in any event to override a legislative determination manifest in a statute, we reject the [plaintiff's] argument.532 U.S. at 493. Third, you misstate the holding of Grinspoon. That court did not say, as you argue, that a controlled substance cannot be scheduled in schedule I if it has accepted medical use anywhere in the United States; rather, it said only that "Congress did not intend . to require a fmding of recognized medical use in every state." 828 F.2d at 886 (emphasis added).Footnote 12: See, e.g., United States v. Cannabis Cultivators Club, 5 F. Supp. 2d 1086, 1105 (N.D. Cal. 1998); NORML v. Bell, 488 F. Supp. 123, 128 (D.D.C. 1980); United States v. LaFroscia, 354 F. Supp. 1338, 1340 (S.D.N.Y. 1973).You also observe that the federal government has supplied marijuana to medical patients through a program of compassionate use. Mem. at 5-6 (citing Kuromiya v. United States, 78 F. Supp. 2d 367 (E.D. Pa. 1999)). The existence of this exception is not a ground for rescheduling. As the federal district court held in Kuromiya, the government's decision to continue the program at all was a "means of balancing" the interests of those who had relied on the drug with the government's desire to avoid distributing marijuana. 78 F. Supp. 2d at 370-71. You further claim that one participant's primary care doctor has retired, and that she is not able to find another doctor willing to prescribe marijuana because of the stigma associated with prescribing a schedule I substance. Mem. at 6. You have not provided any evidence to support this contention. Even if you had, one individual's potential hardship to participate in a compassionate use program is not adequate legal grounds for rescheduling. See 21 U.S.C. 811(c).Finally, you argue that the "DEA's own Administrative Law Judge [ALJ Young] has already determined that marijuana is safe for use under medical supervision." Olsen Petition at 4. As you acknowledge, however, see Pet. at 3, the DEA Administrator unambiguously rejected ALJ Young's determination in In re Marijuana Rescheduling, DEA Dkt. No. 86-22 (Sept. 6, 1998) (attached as Ex. 1 to Pet.). The D.C. Circuit later affirmed the DEA's final order (Mar. 26, 1992) in ACT II, 15 F.3d at 1135 (denying petition to review DEA's final order declining to reschedule marijuana). Nor is it accurate that the Administrator's rejection of ALJ Young's determination depended on the fact that no state had accepted the use of marijuana for medical purposes. In fact, ALJ Young's opinion had noted the efforts of a number of states to pass such legislation. See, e.g., In re Marijuana Rescheduling, DEA Dkt. No. 86-22, 21,22,28. In any case, for the reasons set forth in detail above, the existence of state legislation is not relevant to a scheduling determination.ConclusionAccordingly, there is no statutory basis for DEA to grant your petition to initiate proceedings to reschedule marijuana. Nor is there any basis to initiate any action based on your August 5th notice. The Petitioner's request is denied.

Sincerely,
Michele M. Leonhart
Deputy Administrator

A WARNING ABOUT CELL PHONES, BLACKBERRYS AND SOCIAL SITES

2008-12-31T08:06:00.001-08:00

Clients are cautioned not to write WRITE ANYTHING you wouldn't want anybody and everybody to read under all circumstances on mobile text communication devices or in electronic media such as e-mail or through social sites. Once something is written it takes on a life of its own.

Cell phone txt is particularly dangerous for both the sender and the receiver because these devices often fall into the wrong hands. Jealous spouses or boyfriends; nosy friends or parents; and more importantly, the police, prosecutors, and your legal opponent's attorneys can all get their hands on that data. At the scene of accidents or arrest the police are very quick to snoop through a telephone in your possession. While the legailty of such an invasion of privacy can usually be challenged, I've seen many instances where they left the subject alone initially, only to obtain a hard copy from the cell phone provider under subpoena later on. (YES! That data does reside in their servers and can be retrieved for varying periods.) Discussions of a significant social or legal consequence intended ONLY for the recipient should be made in person where no record is made and you KNOW the person you are speaking with. Often people make incriminating statements in these devices with dire consequences later on. The LAST thing the police need to find in your phone after you have been involved in a serious accident is txt messages to your friends sent moments before taking about how you are partying!

Another caution is that cellphones can be used to track your whereabouts whether you are using them or not. These tactics are OFTEN used by police, private investigators, repossession-agents and bounty-hunters. If you don't want your cell phone or PDA telling the world where you are you better pull the battery!

E-mail, Myspace, Facebook and a variety of other sites that have an e-mail or message features are also a hazard. These accounts are inavvertently left open all the time on shared computers or the computer you used may have keystroke-tracking which will provide the owner log-in information. These sites are also subject to subpoenas and/or search warrants where there are more serious inquiries afoot and indeed most have entire department devoted to this process. And don't think using some cutsie-tootsie code in your discussions will protect you eiter as these messages are ALWAYS construed in the worst possible way they can be by anyone who is interested.

In short, do not TYPE anything you would not want on a Mainstreet Billboard complete with your name and photograph.

Voice communications are somewhat safer. Civil wiretaps are virtually unheard of and while the Patriot Act has diluted the protections against eaves-dropping, actually spending hours listening and waiting for a call or setting up recording device on a particular line is so difficult and legally cumbersome the practice in everyday law enforcement is still somewhat extraordinary. However, it does happen! If law enforcement is listening in for one reason or another they consider you a BIG FISH! Eaves-dropping by anyone with access to your home is easily accomplished with basic and inexpensive equipment that can be purchased at your local Radio Shack and pinched into wiring or plugged into an unused phone jack. Currently, most private citizens lack the capability to effectively tap into a cellular call but law enforcement easily can through the service provider. But beware both cell phones and cordless phones can be monitored close by with commercially sold police scanners. In most states it is a felony to tap or listen into someone's telephone conversations absent a court order without at least one party to the conversation knowing the call is being monitored or recirded. (With all wireless signals it is a felony to eavesdrop under Federal Law but that doesn't seem to stop anyone.) Other states require both parties know the call is being recorded. (Which is why you will often get notice a call is being "monitored for quality assurance" from businesses conducting business in a variety of states.) But don't assume this is the law in your state just because you have heard these notices.

In short while these devices offer a great deal of convenience keep in mind they can also heap a great deal of misery if used inappropriately.

David Sloane
http://www.sloanelaw.com/

Man in Criminal Corpse Abuse Case Ordered to Apologize Via Billboard

2008-12-24T07:53:00.000-08:00

FORT WORTH — Almost four years after authorities found three decomposing bodies inside a repossessed van, the owner of a former cadaver transportation company is apologizing for his actions on a highway billboard.
Donald Richard Short, 44, was required to write the message and pay for the billboard at Texas 121 and Beach Street as part of his probation, prosecutor Hugo Martinez said.
Short was sentenced to two years’ probation in April 2006 after pleading no contest to three charges of corpse abuse for mishandling the bodies of Lonnie Leffall, Odis Hughes and Thomas Shadowens.
Williams Funeral Chapel had hired Short’s company, North Star Transportation, to take the bodies of the three men, who had died in 2000 of natural causes, to a crematorium and deliver their ashes to the appropriate locations. But after Short’s van was towed from his Hurst home, the remains were found March 2, 2005, zipped in dirty body bags, stacked atop each other and hidden under cardboard boxes.
"I should treat the deceased in my care with dignity and respect. I utterly failed them, their families and the community. I am remorseful and I apologize. — Donald Short," reads the billboard message.
Judge Deborah Nekhom Harris ordered Short to make the unusual public apology. She could not be reached for comment Tuesday. "She told him, 'You’re going to have to do this, so you might want to start saving money for it,’ " Martinez said.
Short was also ordered to write letters of apologies to the families, pay a $4,000 fine and restitution, perform community service and never work in the funeral industry again. Case records show Short’s probation was extended a year this past March, evidently to give Short more time to pay the restitution.
Todd Dalton, sales manager for Lamar Advertising, said the billboard’s message was posted on Thursday and will remain up for a month. He said the cost of renting a billboard at that location is $2,500 to $3,000.
Martinez said the judge had recently issued a 30-day deadline.
"The judge gave him a specific timeline of when she wanted the billboard paid for and up and running," Martinez said. "He kind of dragged his feet on that."
On Dec. 8, prosecutors filed a motion to revoke Short’s probation after he missed the judge’s deadline.
"His probation was in the process of being revoked, but he complied with the conditions," he said.
Though Short’s probation was not revoked, the judge did order him to spend an additional 10 days in jail as an added requirement of his probation. He is serving out that time on weekends at the Tarrant County Jail under the work-release program, Tarrant County records show.
Martinez said Short had submitted a few drafts of his apology for approval by the judge and Martinez.
"I got the feeling that he really was remorseful, especially in light of what he wrote," Martinez said. "I think it was a good idea on the part of the judge making this part of his probation."
Bobbie Tarpley, Leffall’s cousin, had not heard about the billboard Tuesday when reached by a reporter but planned to drive by and see it. Tarpley said she is still troubled that the "remains of a person would just be cast aside so casually."
But Tarpley said she believes that Short does feel bad about his actions and that his intentions were not malicious. She said she hopes the billboard will prevent others from making a similar poor choice.
"Maybe this won’t happen again by the judge making that," Tarpley said. "We’ll be a little more careful about the actions we do or don’t take."

Former Trooper Linked to Homicidal Crime Spree

2008-12-24T07:43:00.000-08:00

A former Utah state trooper who attempted suicide during a standoff appears to be behind a shooting rampage that left two drivers dead during Monday evening's rush hour in Garland and northeast Dallas, police said Tuesday.
Dallas police said they have preliminarily matched ballistic evidence recovered after Brian Smith, 37, fired a bullet into his head in Garland early Tuesday with evidence in the fatal freeway shooting of truck driver William Scott Miller, 42.
Dallas police said they moved quickly to establish the link, in part because of growing concerns from the public that a killer randomly targeting motorists might be on the loose.
"It is safe to be out and about doing your Christmas shopping," homicide commander Lt. Craig Miller said. "Go about your business as normal."
Mr. Smith, who was also wanted on arrest warrants for robbery and burglary in Southlake, was on life support Tuesday night at Parkland Memorial Hospital.
Garland police stopped short of a similar link in the slaying of Jorge Lopez, 20, of Rowlett, who was shot north of LBJ Freeway minutes before Mr. Miller.
"Do things point in his direction? Yes, they do, but we want to prove that forensically and we just don't feel we've got enough evidence to say forensically, for sure, that's him," said Officer Joe Harn, Garland police spokesman.
Mr. Smith resigned from the Utah Department of Public Safety in May for drinking in his patrol car and theft.
He moved to North Texas and was suspected in several crimes, including a robbery at a Kroger pharmacy at Walnut Street and Garland Avenue shortly before the shootings were reported Monday night.
Police were called to the store about 5:30 p.m. after a man who identified himself as Brian Smith, armed with a handgun, jumped the counter and stole painkillers, Officer Harn said.
At 5:41 p.m., Garland police were called to the intersection of Jupiter Road and Marquis Drive. Mr. Lopez was stopped at a red light when someone pulled alongside his car and fired several shots, killing him, police said.
The next three shootings were reported in quick succession along westbound LBJ between Jupiter Road and Forest Lane. Kenneth Black Jr., 62, was not injured when shots were fired at him, police said.
Miller was shot and killed minutes later, his United Van Lines 18-wheeler coming to rest in a middle lane of westbound LBJ, just west of Miller Road.
Next, Gary Roberts, 46, suffered minor injuries when shots were fired into the cab of his 18-wheeler along westbound LBJ, near Forest Lane.
One witness to the Garland shooting reported seeing a tan extended-cab Ford F-150 pickup at the time. However, one of the surviving Dallas victims said he saw a black sport utility vehicle following closely behind him before shots were fired at him.
Several hours later, about 9:15 p.m., Garland police spotted Mr. Smith stopped at State Highway 66, near Commerce Street, in a black Honda sport utility vehicle. Police knew that he was wanted in Southlake and that he was reportedly suicidal and armed.
SWAT officers called to the scene surrounded him and tried to contact him for nearly three hours, to no avail. Shortly after midnight, Mr. Smith drove the vehicle forward, a SWAT truck blocked him in and he struck it with his car.
As officers rushed toward him, he fired a single shot.
At the scene early Tuesday, Garland police said there was no indication that Mr. Smith was connected to the motorist shootings. But over the next several hours, the investigation began to point in his direction.
A $20,000 reward was posted for information in the case, and hundreds of tips poured in from across the country. Many tipsters referred to a recent episode of the TV series Criminal Minds, in which a man kills blond women driving luxury cars on Southern California freeways, according to the show's Web site.
The families of the victims, meanwhile, grappled with the senseless killings.
When Mr. Miller was shot, he was on his way to park his rig before flying home to Frankfort, Ky., to be with his wife and children.
"He was a good man – honest and hardworking," said Dennis Tolson, president of Vincent Fister Inc., an agent of United Van Lines. "Customers loved him. He had great personal skills."
Mr. Miller, who was in the National Guard and served in Desert Storm, worked in a tool-and-die shop and was a cabinet maker before becoming a trucker.
"He always had a smile on his face and was the first to lend a hand to family and friends in need," said Donna Hammons, Mr. Miller's sister.
Mr. Lopez's friends and family mourned a young man who had planned to propose to his girlfriend of three years on Christmas Day.
"The whole family is just in shock. ... We just can't believe it," said his brother Luis Lopez. "You know, he was so innocent, he never would try to do anything to nobody."
Mr. Lopez, 20, enjoyed fishtailing in his small Nissan. The car he died in was an ongoing project of his. For those who narrowly escaped serious injury or death, the shootings remained a frightening ordeal. Mr. Black was driving west on LBJ Freeway when he heard a "pop" that shattered the window on the passenger side of his truck.
The Euless man ducked to avoid any more bullets, raising his head only long enough to steer his vehicle.
"I was trying to keep my rig on the road," said Mr. Black. "I tried to outrun him but couldn't, so I slammed on the brakes."
"It was scary," said Mr. Black. "I was just trying to get away from him."

Tarrant County Family Law Attorney Sentenced to State Jail and Probation for Forging Judge's Signatures.

2008-12-18T06:08:00.000-08:00

FORT WORTH — Family court attorney Kimberly Ashley-Stevens was sentenced Tuesday night to 180 days in state jail after being convicted of two felony counts relating to forged documents she presented to a judge in a 2006 adoption case.
Ashley-Stevens was sentenced to 10 years’ probation on a third felony connected to the forged documents. State District Judge Elizabeth Berry ordered her to pay a $3,500 fine as a condition of probation.
Ashley-Stevens was taken into custody, but could be released on bail while she appeals her conviction, her attorney said.
On Monday, a Tarrant County jury convicted her of fabricating physical evidence, tampering with government records, and passing a document containing the forged signatures of her client and another attorney in the 2006 adoption case.
During the punishment hearing, the jury heard evidence that Ashley-Stevens also presented documents containing the forged signature of a judge in a 2005 annulment and the forged signature of another attorney in another 2006 adoption.
In seeking probation for Ashley-Stevens, 40, defense attorneys noted her years of free legal work for poor clients and said the loss of her law license was enough punishment.
"All the things she is accused of doing all helped her clients," they said. "That’s not the same thing as someone taking your check and stealing your bank account." Defense lawyers said Ashley-Stevens didn’t harm anyone because Kristy Ward’s overturned adoption was reinstated with the help of other attorneys.
Prosecutors Joe Shannon and David Lobingier said lawyers should be held to higher standards than other people. That doesn’t mean breaking rules to help their clients, Shannon said.
"Fortunately, Kristy Ward didn’t lose her baby," Shannon said. "But rules are important. You can’t just cut corners. It’s not just paperwork."
Shannon said family court judges who reviewed Ashley-Stevens’ cases after the first forged document was found discovered only three cases of wrongdoing.
Although a few people have inquired about cases connected to Ashley-Stevens, Shannon and some family law attorneys say it is unlikely that many, if any, cases will be overturned because of her involvement.

New Trial granted in 1985 Lake Worth Bombing Murders (Prosecutors withheld evidence favorable to the accused.)

2008-12-18T05:51:00.000-08:00

The Texas Court of Criminal Appeals on Wednesday granted Michael Roy Toney the right to a new trial, agreeing that Tarrant County prosecutors improperly withheld evidence during his capital murder trial in the 1985 bombing deaths of three people.
Toney will likely be transferred from Death Row to Tarrant County, where he will await a decision from prosecutors on whether to retry the 23-year-old case.
Toney’s attorneys say that he is not guilty and that no reliable evidence connects him to the bombing.
"We are very happy that relief was granted today," said Jared Tyler, an attorney with the Texas Innocence Network. "We believe it is a big step toward proving Michael’s innocence."
Chuck Mallin, chief of the appellate division of the district attorney’s office said prosecutors will meet with District Attorney Tim Curry and decide whether to retry the case "probably sometime in the near future."
"I am sure that it is our intention right now [to retry it], but we will discuss the decision," Mallin said.
The district attorney’s office acknowledged this year that at least 14 documents that could have been favorable to Toney’s defense were not given to his lawyers during his 1999 trial.
Prosecutors and Toney’s attorneys jointly requested a new trial.
The court ruling Wednesday affirmed an order signed in October by state District Judge Everett Young that Toney should receive a new trial. Young presided over Toney’s first trial.
Susan Blount, whose daughter Angela, 15, and husband, Joe Blount, died in the bombing, said she wanted Toney to be convicted again but was not looking forward to another trial.
She said she was disappointed that prosecutors "did not complete their jobs" the first time.
"I just want this over and done with," she said. "I’ve been dealing with this for over 23 years now. I tell people that I’ll probably be in my grave before I ever see this thing come to an end."
However, she added "Yes, we’ll be there for another trial," she said.
Mike Parrish, the lead prosecutor at Toney’s trial, whose responsibility it was to turn over the evidence to the defense, left the district attorney’s office this year. He told the Star-Telegram recently that he is "unable to comment on pending criminal cases."
Rebecca Bauer Kahan, another of Toney’s attorneys, said it is unclear when Toney could be transferred to the Tarrant County Jail; he is awaiting a mandate from the appeals court.
The crime On Thanksgiving Day 1985, Angela Blount, 15, found a briefcase outside the door to her family’s trailer in the Hilltop Mobile Home Park in Lake Worth. After she brought it inside and opened it, a bomb exploded, killing her; her father, Joe Blount, 44; and her cousin Michael Columbus, 18.
The investigation The case was unsolved for 12 years until a prisoner in the Parker County Jail told authorities that Toney had boasted about the bombing. The prisoner later recanted.
The trial No physical evidence connected Toney to the bombing. His ex-wife, Kim Toney, and former best friend Chris Meeks testified 14 years later that they saw him the night of the bombing carrying a briefcase in the direction of the Blounts’ trailer. Toney was convicted and sentenced to death in May 1999.
The new evidence Toney’s lawyers say the new evidence suggests that Meeks and Kim Toney were manipulated and intimidated into giving statements that fit investigators’ preconceived notions of how the crime occurred. Prosecutors say they remain convinced that Toney is guilty.

Texas Supreme Court Allows Judge to Bar Taping of Criminal Trial.

2008-12-17T05:20:00.000-08:00

The Texas Supreme Court refused on May 11 to review the constitutionality of a Dallas trial judge's decision to deny a television station permission to videotape a court case allegedly because the television station had previously broadcast stories critical of the judge.
The nine-member court denied the petition for review without comment. Justice Nathan Hecht, joined by Justice Priscilla Owen, dissented from the denial of review, noting that the trial court's "order may be a significant intrusion on KTVT's constitutional rights. . . . This court's summary denial of KTVT's petition, given the significance of the press's interest here, is to me inexplicable."
The case concerns trial judge Jim Pruitt's July 1999 refusal to allow Dallas-Fort Worth CBS affiliate KTVT-TV to film court proceedings through the courtroom's back door window. According to the television station, Pruitt's court coordinator explained to the station that its request had been denied because of prior negative stories that had been broadcast about Pruitt. Pruitt's bailiff later allegedly told another station that it could film through the window so long as they were not KTVT.
Pruitt then denied the station's motion for reconsideration from the bench. "I don't think KTVT is a reputable news organization, and as such, I'm not going to allow you to film," he said, according to court records quoted by the Associated Press.
The AP reported that Pruitt's reaction may have been prompted by an Emmy-award winning November 1998 story about lazy judges that accused Pruitt of spending part of a work day in a bar. Another judge mentioned in the 1998 broadcast has sued the television station for libel, according to the AP.
The station had argued to the court that its First Amendment right to cover a criminal trial had been violated by Pruitt's decision. The station's attorney, Roger Diseker, told the AP that Pruitt's action was a "clear violation of the First Amendment" and that it "does not bode well for the press when a judge can retaliate against the media for a negative story."

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Supreme Court Turns Down Appeals of 2 Ft.Worth Killers

2008-12-17T05:11:00.000-08:00

WASHINGTON (AP) ― A convicted rapist paroled from Ohio and then condemned for the robbery and strangulation of his 64-year-old stepmother in Texas lost an appeal Tuesday before the U.S. Supreme Court, moving him closer to execution.The high court refused to review the case of Reginald Perkins, 53, sent to death row for the slaying of Gertie Mae Perkins in Fort Worth 7 1/2 years ago. The woman's body was found in the trunk of her car in a parking garage.A Tarrant County jury took just 30 minutes in 2002 to decide Reginald Perkins should be put to death. Shortly after the jury's verdict was read in court, Perkins proclaimed his innocence in a written letter read by his lawyer.In November, a federal appeals court rejected claims he was mentally retarded and ineligible for the death penalty, that his legal help earlier had been ineffective, that the Texas sentencing statute was unconstitutional and that he was innocent of the murder. It's that appeal the Supreme Court refused to review Tuesday.Evidence at his trial showed he pawned his stepmother's wedding ring and wrote fraudulent checks from the account of the family trucking business in Fort Worth. When Gertie Perkins showed up missing, police summoned to her home found a carpet removed, a phone cord disconnected and sheets missing from a bed.He became a suspect after detectives learned of his previous convictions in Ohio for rape and attempted rape and that he had been a suspect in two killings in Cleveland in the 1980s. When arrested, he directed his father and police to the body.Perkins also acknowledged the slaying to a fellow inmate while awaiting trial and said his motive was robbery.At the punishment phase of his trial, jurors heard testimony that he pleaded guilty to rape and attempted rape of two 12-year-old girls in 1982 and that he had been implicated in the strangulation of two women. One of them was the mother of the girl he raped. The other was the sister of his ex-wife.In 1986, he had been paroled from Ohio after receiving a life prison term for the rape conviction. He was returned from parole eight years later but released again in February 2000. His stepmother's murder occurred 10 months later.Perkins does not have an execution date.In a second Texas death row case Tuesday, Elkie Taylor, convicted in another Fort Worth case, lost his bid for a rehearing before the justices.In March, the court refused to review Taylor's conviction and sentence for strangling a 65-year-old Fort Worth man with two wire coat hangers and then leading police on a four-hour chase in a stolen 18-wheeler.Like Perkins, Taylor also had been contending in appeals he shouldn't have been condemned because he is mentally retarded. He was sentenced to die for the 1993 robbery and murder of Otis Flake at Flake's Fort Worth home. Authorities said it was the second killing linked to Taylor over an 11-day period. The Milwaukee native had been on parole for about three months at the time of the slayings, freed after serving less than nine months of an eight-year sentence for burglary.In 2003, two days before he was set to be executed, he won a reprieve from the Texas Court of Criminal Appeals because state prison records showed he may be mentally retarded and ineligible for execution under Supreme Court guidelines.The Texas appeals court later lifted its reprieve. Lower federal courts also have denied his subsequent appeals.Taylor, who does not yet have an execution date, climbed in the cab of the stolen truck and led police on a chase from Fort Worth to Waco that ended when a state trooper shot out the truck's tires. In the chase, he tried to ram police cars and run over two troopers standing on the side of a road.Authorities contended Taylor and an accomplice took cash and items from Flake's house so they could be sold to buy crack cocaine. His accomplice, Darryl Birdow, was sentenced in 1994 to life in prison. Authorities said Taylor admitted involvement in a similar slaying of an 87-year-old Fort Worth man 11 days earlier but blamed the killing on a partner.

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Counterfeiter Detained in Custody Pending Trial by Federal Magistrate

2008-12-16T06:19:00.000-08:00

FORT WORTH – A brother and sister accused of making fake money appeared in federal court Wednesday on charges that they tried to pass the counterfeit currency at a Fort Worth store.
But Amy Catherine Taylor, 29, and her brother, Jack Arvil Taylor, 25, could also face federal weapons charges after six explosive devices and six rifles were found inside their southwest Fort Worth home Tuesday.
The siblings made their first appearance before U.S. Magistrate Charles Bleil. The judge released Ms. Taylor on bail but ordered her brother held pending a detention hearing Monday morning.
The two were arrested Tuesday when federal agents and Fort Worth officers descended on their home in the 3000 block of Meadowmoor Street.
According to a criminal complaint filed in U.S. district court, the pair tried to defraud a Wal-Mart store in southwest Fort Worth this summer. On July 3, the two entered the store in the 7400 block of McCart Street and presented $600 in counterfeit money to a cashier. They used fake $100 and $50 bills to purchase a money order, the complaint said.
The cashier looked at the money, suspected it was not authentic and called Fort Worth police. The Taylors fled the store before officers arrived.
Investigators reviewed the store's surveillance video, determined which car the two fled in and traced them to the Meadowmoor Street home. Secret Service agents confiscated counterfeiting equipment, including two computers and a printer, during Tuesday's raid of the home.
The raid also revealed six crudely made – but deadly – explosive devices. Officials also found six rifles including an AR-15 mounted on a tripod, an AK-47 and ammunition.
"It is very telling that a counterfeiting bust ends in finding explosives and assault type weapons in a seemingly quiet neighborhood," Fort Worth police Lt. Paul Henderson said in a press release. "Thankfully, the Taylor siblings were discovered before their intentions became known through the use of those deadly devices."

In the state court system (County Criminal and District Courts) bail in lieu of appearance in virtually assured except in the most serious offenses. where the accused is considered a flight risk or the release of an individual would pose a clear danger to society. Even then a bail bond would be set, but it would typically be too high for the individual to make. However, for those facing Federal charges in the United States District Court, it is very common for the United States Attorney's Office to requests that those that pose any conceivable risk to the public be detained. And they often come up with very creative ways for doing so. For example, a defendant recently charged with receiving child pornography via the Internet was ordered detained pending trial after a US Customs Agent testified at his detention hearing that those who posess Child Pornography have a sexual interest in children, and she had located several elementary schools within miles of the defendant's home. Furthermore, the threat to society need not be physical. Someone accused of embezzelment or fraud is just as likely to be held if the government can establish they pose an economic threat to others if allowed to remain free pending trial.

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Tarrant County Attorney Convicted of Forgery

2008-12-15T18:59:00.001-08:00

Fort Worth attorney Kimberly Ashley-Stevens was convicted today of three felony charges related to forged documents in an adoption case.
A Tarrant County jury deliberated about three hours before convicting Ashley-Stevens of fabricating physical evidence, tampering with a government document and passing forged documents in the case of a couple who were attempting to adopt an infant.
Ashley-Stevens, 40, showed no physical emotion when the verdict was returned. However afterward, she cried quietly outside the courtroom while waiting for her punishment hearing to begin.
Prosecutors are expected to start presenting evidence of other adoption and annulment cases in which Ashley-Stevens is accused of presenting forged documents.
Ashley-Stevens faces up to 10 years in prison on the charge of fabricating physical evidence, and up to two years in prison on the charge of tampering with government records and forgery in connection with those documents.
Ashley-Stevens is being tried in state District Judge Elizabeth Berry's Criminal District Court No. 3.

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Fort Worth closes DWI Loophole

2008-12-15T08:47:00.000-08:00

FORT WORTH - Fort Worth police have taken action to halt a loophole that allowed obvious drunk drivers of the hook.
While shocking, there have been reports of drivers in Fort Worth that got so drunk they actually passed out behind the wheel, yet were never charged with a DWI.
Police say policy has now been changed to close the loophole that was big enough to drive through; but prior to the change, there was report after report of people doing just that.
According to police reports, a man was found sitting in traffic on an Interstate 35 service road with a strong "odor of alcohol." The report also said the man couldn't "keep his balance" and "didn't know where he was."
Another driver was found stopped on Interstate 35 and appeared "intoxicated and asleep behind the wheel."
Motorists on Interstate 30 reported a man sitting in his truck that was half on the shoulder and half in the fast lane. Police said he had "a strong odor of alcohol," "slurred speech" and "swayed as he attempted to stand."
Then there is the case of the driver discovered slumped behind the wheel on Meadowbrook Drive, "unresponsive" and with a "strong odor of an alcoholic beverage." An officer reported the man "could barely walk and nearly fell down several times."
All the above incidents appear in Fort Worth police reports from this year. Some reports involve drivers apparently so drunk they passed out after stopping on the roadway.
But there is one more thing the drivers have in common, not one of them got charged with DWI.
"It doesn't matter if they're awake, asleep or passed out; it doesn't matter," said Richard Alpert, the assistant district attorney for Tarrant County
Alpert said he didn't realize that sleeping or unconscious drunk drivers weren't getting DWIs until News 8 brought it to his attention.
"It's a recipe for fatality," he said. "It's a recipe for death."
But as in all recipes, little things can make a big difference.
Fort Worth police said their general orders for a DWI arrest require some proof the suspect is actually operating the vehicle. Fort Worth police traffic supervisor Sgt. Rodney Bangs said the decision on arresting for DWI is not black and white.
"It hinges on the definition of operating," he said. "In the past it was construed to mean if the vehicle was running in gear and the person had a foot on the brake, therefore they were controlling the vehicle, keeping it from moving."
So, instead of a DWI arrest, some of the drunkest drivers in Fort Worth have simply been ticketed for public intoxication and hauled to jail to sleep it off.
Alpert said a DWI is a much more serious charge.
"It's the difference between a fine only offense and an offense that has a mandatory two-year, no-release probation with programs, fines and tools that can prevent them from driving while intoxicated," he said.
With a DWI charge, a judge can order treatment and require an interlock device on the car. With a public intoxication charge, the defendant pays a fine and it's over. The case also can't be used to increase penalties for future drunk driving arrests.
To close the loophole, the DA's office issued a memo stating that DWIs cover a driver "seated in a stationary, yet running vehicle positioned in a traffic lane."
However, there is still the question of what about those cars found running or drivers that manages to pull off into a parking lot or restaurant drive thru?
Alpert said those cases are more difficult, but can be prosecuted.
Sgt. Bangs said the change should lead to more DWI arrests.
"This enhances our ability to make DWI arrests," he said.
Officers will still have to make tough judgment calls in the field. If they choose to charge a DWI, they know it will take them off the streets for hours to process the case. For that reason, Alpert said he will not blame an officer who gives a ticket for public intoxication because he thinks a DWI won't stick.

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Boy George goes on Trial for False Imprisonment & Assault

2008-12-15T08:36:00.000-08:00

LONDON - A Norwegian escort told a court Monday that Boy George manacled him to a bedroom wall and beat him with a metal chain after accusing him of hacking into his computer.
The former Culture Club singer is on trial for the false imprisonment of 29-year-old Audun Carlsen.
The 47-year-old singer, who is standing trial under his real name, George O'Dowd, denies the charge. Carlsen told London's Snaresbrook Crown Court that he met the singer through a Web site and went to his London home for a naked photo shoot. After the encounter Boy George sent a series e-mails accusing Carlsen of hacking into his computer, but Carlsen nonetheless agreed to return for a second photo session several weeks later in April 2007.
Carlsen told the jury that when he arrived Boy George and another man held him down and beat him before the singer handcuffed him to a hook in the bedroom wall.
"George was slapping me and beating me and punching me and screaming things," Carlsen said. Carlsen said he was able to escape by unscrewing the hook and running for the door.
"I took a bit of time getting the door open and he had a metal chain that he was hitting me with," Carlsen said.
Carlsen said he ran into the street clad only in his underwear. The court was shown photographs of red welts on Carlsen's head and injuries to his arm which he said had been inflicted during the attack.
Boy George's androgynous image and powerful voice made him an `80s icon, and gave Culture Club hits including "Karma Chameleon" and "Do You Really Want to Hurt Me?"
But the singer struggled for years with drug problems.
In 2006 he was ordered to do community service with New York City's Department of Sanitation after pleading guilty to false reporting of an incident. He called police with a false report of a burglary at his lower Manhattan apartment, and the responding officers found cocaine inside.

In Texas, the charge "False Imprisonment" is called "Unlawful Restraint:"

§ 20.02. UNLAWFUL RESTRAINT.
(a) A person commits an offense if he intentionally or knowingly restrains another person.
(b) It is an affirmative defense to prosecution under this section that:
(1) the person restrained was a child younger than 14 years of age;
(2) the actor was a relative of the child; and
(3) the actor's sole intent was to assume lawful control of the child.
(c) An offense under this section is a Class A misdemeanor, except that the offense is:
(1) a state jail felony if the person restrained was a child younger than 17 years of age; or
(2) a felony of the third degree if:
(A) the actor recklessly exposes the victim to a substantial risk of serious bodily injury;
(B) the actor restrains an individual the actor knows is a public servant while the public servant is lawfully discharging an official duty or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; or
(C) the actor while in custody restrains any other person.
(d) It is no offense to detain or move another under this section when it is for the purpose of effecting a lawful arrest or detaining an individual lawfully arrested.
(e) It is an affirmative defense to prosecution under this section that:
(1) the person restrained was a child who is 14 years of age or older and younger than 17 years of age;
(2) the actor does not restrain the child by force, intimidation, or deception; and
(3) the actor is not more than three years older than the child.

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Florida Judge being Investigated for Inappropriate Conduct

2008-12-15T08:29:00.000-08:00

A Florida judge is being investigated amid complaints that he has behaved inappropriately in the courtroom. Judge Ralph Eriksson is accused of punishing people for exercising their legal rights. According to testimony, Ericksson denied defendants their legal rights and was vindictive. Daniel Bradshaw appeared before the judge in the past took the stand on Monday to tell a special panel how the judge treated him. Bradshaw said Eriksson blew up on the stand during his case two years ago and then sent him to jail for five months. "I mean, he just went boom. I asked, 'Can you repeat yourself?' All of a sudden he said, 'Haven't you heard a word I said yet? How do you wish to plea?' I said, 'Not guilty.' 'Well, I'm going to send you to jail anyway,'" Bradshaw said. The state's Judicial Qualifications Commission is listening to testimony and reviewing video to see how has treated defendants. Video from Bradshaw's April 2006 court appearance shows his attorney asking Eriksson to repeat himself and Ericksson shouting back. Bradshaw asked Ericksson about a motion to suppress evidence in his case and Eriksson responded by giving Bradshaw a $5,000 bond and sending him to jail. An expert witness for the state said this review is about Eriksson's actions. "I thought the conduct was shocking, inappropriate, non judicial, very unprofessional, vindictive, punitive, and we could go on and on. There is simply no basis for what the judge did," expert witness Jeffrey Weiner said. The judge's defense attorney, Chandler Muller, said the expert witness did not look at the actual video until about an hour before his deposition was taken. He also said the judge did not abuse his power. "The record's going to show that we have a fine judge that's served this community for many years in a very fair way and he has a lot of support," Muller said. Eriksson has been a county judge for 13 years. After hearing all the testimony, the Judicial Qualifications Commission will make a recommendation to the Florida Supreme Court. In the meantime, Eriksson has not been suspended from his position.

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Texas Court: 1st Amendment Protects Church's Exorcisms

2008-12-14T07:11:00.000-08:00

In a 6-3 decision Friday, the court ruled that the Pleasant Glade Assembly of God's efforts to cast out demons from the girl presents a dispute over religious conduct that would unconstitutionally entangle the court in church doctrine.
A 2002 trial of the case never touched on the religious aspects, and a Tarrant County jury found the Colleyville church and its members liable for abusing and falsely imprisoning the girl, then 17. The jury awarded her $300,000 for mental anguish, but the 2nd Court of Appeals in Fort Worth shaved $122,000 from the verdict for loss of future income.
The church then raised the question of whether the Fort Worth appeals court erred when it said Pleasant Glades' First Amendment rights regarding freedom of religion do not prevent the church from being held liable for mental distress triggered by a "hyper-spiritualistic environment."
A majority of the high court agreed with the church. Justice David Medina wrote that while the young woman's secular injury claims might "theoretically be tried without mentioning religion, the imposition of tort liability for engaging in religious activity to which the church members adhere would have an unconstitutional 'chilling effect' by compelling the church to abandon core principles of its religious beliefs."
But Chief Justice Wallace Jefferson, in a dissenting opinion, stated that the "sweeping immunity" is inconsistent with U.S. States Supreme Court precedent and extends far beyond the Constitution's protections for religious conduct, the Fort Worth Star-Telegram reported in its online edition Friday.
"The First Amendment guards religious liberty; it does not sanction intentional abuse in religion's name," Jefferson wrote.
The young woman testified in 2002 that she was cut and bruised and later experienced hallucinations after the church members' actions in 1996. She also said the incident led her to mutilate herself and attempt suicide. She eventually sought psychiatric help.
But the church's attorneys had told jurors that her psychological problems were caused by traumatic events she witnessed with her missionary parents in Africa. The church contended she had "freaked out" about following her father's life as a missionary and was acting out to gain attention.
After the 2002 verdict, Pleasant Glade merged with another congregation in Colleyville, a Fort Worth suburb.

Fort Worth Woman Fondled by Man Posing as Police Officer

2008-12-14T07:03:00.000-08:00

Investigators said a man posing as a police officer sexually assaulted a woman Tuesday night in Fort Worth, Texas The woman told police the man pulled her over near the Interstate 20 and Highway 183 split in the Hulen area and frisked her, alleging she was suspected of Driving While Intoxicated. Fort Worth police said the man "took it over the line and was fondling her breasts."
"He's absolutely an imposter, and we're very interested in getting this person apprehended," he said. Police said it's highly unusual for a police officer to pat down a citizen on a simple traffic stop if an arrest is not forseeable. The victim said the phony cop came at her more than once. The woman knew something wasn't right from the beginning. He was not wearing a traditional police officer's uniform and his badge didn't seem proper.
"Our suspect approached from the driver's side didn't ask her for a driver's license or insurance or anything like that that's normal," police said. "He ordered her out of the vehicle, told her that he thought she had been drinking and that he was going to search her car and that's what he did. He then patted her down, which included fondling her breasts." The victim couldn't give police a good description of the man's car but said it had a flashing blue light.
Police said if people in Tarrant County have doubt during a stop, they should stay in their car and dial 911 to confirm it is a legitimate traffic stop.

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Arrest Records Incomplete in Texas

2008-12-13T08:04:00.000-08:00

More than a third of criminal records are missing from the online Department of Public Safety database available to the public, a Fort Worth company found in a study.
Even government agencies, which have access to more detailed criminal records to screen teachers, doctors, volunteers and tradespeople, use a DPS system fraught with gaps, officials and experts said.
Problems exist because of human error and because of spotty reporting from law enforcement agencies, courts and district attorneys that provide information.
Even records of Death Row inmates are missing from the public database, according to the study by Imperative Information Group, a Fort Worth background investigation company. The company studied 562 felony and misdemeanor cases.
"We know that the data is not very reliable," said Mike Coffey, president of Imperative. "There’s a false sense of security that this criminal background check is going to be effective."
The public database lists reported convictions, and those are listed only after DPS has received complete records, from arrest to final disposition of the case.
Government agencies and others authorized by the Legislature, such as private schools and nursing homes, can view more detailed information, including arrests and open cases. But agencies often look only for convictions, Coffey said.
"I don’t believe that . . . agencies are chasing down arrests or nonconviction data to see if there is more [information] at the county," he said.
And even if they check the more detailed secure database, there may be gaps in it as well, such as when a conviction is not reported, a DPS official said.
Past problems
Tela Mange, a DPS spokeswoman, said such problems aren’t new. Some counties report as little as 17 percent of convictions to DPS.
"It’s been going on for a number of years," she said. "There’s nothing we can do to force them to fix that problem."
Statewide, local agencies reported 747,216 criminal charges to DPS, according to 2006 statistics, the most recent year available; 69 percent of those were listed as completed.
DPS has no way of knowing how many of the missing dispositions were convictions or might reflect dropped charges or acquittals.
Mike Vaughn, a criminal justice professor at Sam Houston State University, said similar problems, including typos and erroneous information, have been found in the Texas Crime Information Center. The center is a separate database that provides law enforcement agencies with information about stolen property, wanted and missing people, sex offenders and other information.
"Any time you have human beings entering data, you’re going to have mistakes," Vaughn said. "I think there needs to be more people assigned to the tasks if we’re going to rely on these systems. The government has obligation and a duty to make sure the systems are accurately reflecting the criminal histories of people within the database."
The Texas Medical Board, which is aware of limitations of the DPS database, uses several additional screening methods to check the criminal history of applicants for medical licenses.
It also uses FBI criminal history reports, queries of other states’ sex offender lists and various other databases to verify applicants’ professional character, Jaime Garanflo, director of licensure, said in an e-mail.
"Because of the multiple queries that we do, we are able to compare findings and identify discrepancies," Garanflo said. "Limitations such as these are always a concern, but we do the best we can. . ."
Reporting and tracking
At the time of an arrest, a tracking number is supposed to be assigned, and all information, along with fingerprints, is supposed to be reported to DPS within seven days. As the case moves through the criminal justice system, county officials are required to provide updates to DPS.
Prosecutors have 30 days to report action taken on the offense, and court clerks have 30 days to report the final disposition.
Tarrant County system
The Tarrant County district attorney’s office has 43 agencies that routinely submit cases for review and filing, Tarrant County prosecutor Miles Brissette said.
Each has the option of using more reliable electronic filing or the older paper forms to submit cases. The Sheriff’s Department, for example, electronically communicates arrest information, spokesman Terry Grisham said.
The district attorney’s office updates information to DPS every day at midnight. Upon completion of a felony case, information is sent by the district clerk’s office to DPS. For misdemeanors, the county clerk uploads the information to Austin.
"The days of fingerprint ink on a prisoner are really going away by the wayside," Brissette said.
In Tarrant County, 49,029 charges against adults were reported to DPS in 2006, and 80 percent of those were reported completed, according to the agency.
Imperative examined 62 Tarrant County cases in the public database, and found that 43.5 percent had records missing. The study was done in October.
Online: To check the DPS criminal history database, go to: records.txdps.state.tx.us. Each record search costs about $3, plus fees.

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District Judge Jailed for DWI

2008-12-13T07:57:00.000-08:00

A Tarrant County criminal district judge was jailed Saturday on suspicion of driving while intoxicated after an Alvarado police officer stopped her for speeding.
Judge Elizabeth Berry was driving a gray Volvo sport utility vehicle on Interstate 35W around 4 p.m. Saturday when she was stopped for traveling 92 mph in a 65-mph zone, Alvarado Police Chief John Allen said.
An officer spotted empty beer cans in Judge Berry's vehicle during the traffic stop, and she appeared to be intoxicated, Chief Allen said. Officers at the scene reported that Judge Berry refused to let them conduct a field sobriety test.
Judge Berry, 43, who presides over Criminal District Court 3, was taken to the Johnson County Law Enforcement Center in Cleburne, where she refused a breath alcohol test.
Officers obtained a warrant to take a sample of Judge Berry's blood hours after her arrest, but the results won't be available for a few days, Chief Allen said.
On Tuesday, a bailiff in Judge Berry's courtroom referred a call about the arrest to her attorney, Mark Daniel.
Mr. Daniel's office issued a written statement saying, "Judge Berry is a very highly respected judge. We are presently doing our own investigation. It is my belief that this matter will likely be determined to be unfounded."
Judge Berry, a Republican, was elected in 2003.

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Man on Trial for video of toddlers smoking Marijuana

2008-12-13T07:34:00.000-08:00

FORT WORTH — The amateur video is eye-catching.
Two men are seen laughing as they light what looks like a marijuana cigarette for two toddlers and hold it to their mouths. The little boys are shown coughing and stumbling.
And the two men ask the children whether they "have the munchies" and call them "potheads."
That video seized from a Watauga home by police last year could be one of the key pieces of evidence against Vanswan Polty, 20, who goes to trial Tuesday, accused of being one of the young men who badgered the 2- and 4-year-old boys to smoke the marijuana.
Jury selection is scheduled to begin Tuesday in Criminal District Court No. 2 in Fort Worth.
Prosecutors are trying Polty on a charge of engaging in organized criminal activity, a felony that carries a stiffer penalty than charges of injury to a child.
If convicted on injury charges, Polty would have faced a maximum of 10 years in prison on each count. If he is convicted of engaging in organized criminal activity, Polty will face a maximum sentence of life in prison.
He is accused of committing several burglaries in Tarrant County last year just before the video was made. The incident involving the toddlers will be used in the trial, authorities said.
Tarrant County Assistant District Attorney Darrell Davila declined to comment on the pending trial.
"I intend to defend him to the best of my ability," said Timmie White of Fort Worth, Polty’s attorney.
In July, Demetris McCoy, 18, the other young man seen in the video giving the marijuana to the toddlers, reached an agreement with prosecutors and pleaded guilty to two charges of injury to a child/causing bodily injury. He was sentenced to eight years in prison.
As part of the agreement, McCoy will testify against Polty. The toddlers are McCoy’s nephews.
White said he doesn’t know what McCoy will say in court.
"I will point out to the jury what a sweet deal he got," White said, referring to McCoy’s plea agreement.
McCoy also pleaded guilty to two charges of burglary of a habitation and received eight years on each of those charges. All the sentences will run at the same time.
The investigation
Polty and McCoy were arrested in February 2007 after police found the video while executing a search warrant in the 6000 block of Hickory Hill Road in Watauga, where McCoy’s grandmother lives. Police were investigating burglaries that McCoy and Polty were suspected of committing.
A 16-year-old who authorities say filmed the incident was taken into custody several days after McCoy and Polty were arrested. The teen faced a delinquent conduct charge in the incident, but information was not available on the case.
In the house
The children’s mother, Shatoria Russell, has said that she was asleep in another room in the home, which she shared with her children, McCoy and his grandmother.
Russell and McCoy’s grandmother were not charged.
The video
It shows two men coaxing the little boys to smoke marijuana. Tests showed that the children had traces of marijuana and cocaine in their systems.
The children
Child Protective Services removed the children from the home shortly after McCoy’s arrest. Russell did not participate in any of the services required for her to regain custody of her two sons and continued to test positive for drugs, according to a CPS official. Russell relinquished her parental rights in December, a CPS official has said.
The children are with a family that is attempting to adopt them, a CPS official said.

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North Richland Hills Woman Convicted in Elderly Death

2008-12-13T07:27:00.000-08:00

FORT WORTH — Lowesta Halliburton’s friends described her as a caring woman who would do anything for other people, including her children’s friends and her daughter’s Girl Scout leader.
But prosecutors said the North Richland Hills woman didn’t do much to help a bedridden 78-year-man who died last year of malnutrition, dehydration and pneumonia.
Halliburton, 44, was sentenced Friday to life in prison for causing the death of Richard Hoye, who died May 20, 2007, in the home he shared with Halliburton. She has been described as either his common-law wife or his adopted daughter.
She was convicted Oct. 30 of injury to the elderly in Hoye’s death. Her sentencing was delayed while court officials conducted a pre-sentencing investigation.
Visiting Judge Phillip Vick sentenced Halliburton after a 90-minute hearing in Criminal District Court No. 4. He considered the pre-sentencing report and evidence from the hearing.
One woman testified that Halliburton cared for her children for seven months while her mother was hospitalized. Other friends testified that Halliburton helped many people, including her daughter’s Girl Scout troop leader and her children’s friends.
Her defense attorney said Halliburton, who was neither a nurse nor a social worker, could not be expected to recognize Hoye’s deteriorating condition when Adult Protection Services employees left him in her care after four home visits in the four months before he died.
But prosecutors Rebecca McIntire and Jeff Hampton cited Halliburton’s 1986 burglary conviction and 1995 forgery and fraud convictions. She served probation on the 1986 case and two years in prison on the 1995 convictions.
McIntire introduced photos of Hoye lying in his own urine- and feces-soaked bed with insects crawling over him. A deputy medical examiner said Hoye was so malnourished that his body had eaten his muscle and was beginning to eat his internal organs for protein.
Halliburton must serve 30 years before being eligible for parole.

http://www.sloanelaw.com/
http://www.dwicriminaldefenselawyer.com/

Fort Worth Attorney on Trial

2008-12-13T07:25:00.000-08:00

FORT WORTH -- Nearly three years ago, Kristy Ward hired family law attorney Kimberly Ashley-Stevens to handle the adoption of her prospective son.
As instructed by Ashley-Stevens, Ward testified today, she obtained notarized statements from the baby's biological parents relinquishing their parental rights to the boy she wanted to adopt.
Ward said she was stunned earlier this year when she learned that her son's 2006 adoption was invalid because someone had forged her signature on a document that a family court judge relied on in terminating the biological parents' rights and granting the adoption.
"I was devastated," Ward testified. "I was scared. I wasn't sure what was going to occur."
Although Ward's adoption was later granted after volunteer attorneys redid the paperwork, Ward blames Ashley-Stevens for the actions she believed might have caused her to lose her son.
"I hired an attorney to help me, and she hurt me," Ward said.
Ward was the first witness in Ashley-Stevens' felony trial in Criminal District Court No. 3. The 40-year-old attorney is accused of fabricating physical evidence, tampering with a government record and passing a forged document to 324th District Judge Jerome Hennigan, who handled the Ward adoption.
If convicted, she could be sentenced to up to 10 years in prison on one of the charges and two years on the other two charges.
In opening statements this morning her defense attorney said Ashley-Stevens did not know that Ward's signature had been forged on the document she gave the judge. He said Ashley-Stevens relied on another attorney who presented her with the signed document.
"Somebody took a shortcut," he said. "As the employer, Kim is responsible, but she's not criminally responsible."
The trial adjourned for the afternoon after testimony from Ward and another attorney in the case. Testimony will resume at 8:45 am. Friday before state District Judge Elizabeth Berry.

www.sloanelaw.com

Sheriff: DA's DWI policy will overcrowd jail

2007-06-28T04:02:00.000-07:00

Sheriff: DA's DWI policy will overcrowd jail
By MELODY McDONALD
Star-Telegram staff writer
FORT WORTH -- For more than two decades, Tarrant County defendants convicted of driving while intoxicated have routinely managed to avoid a jail cell by working "labor detail."
Labor detail allows defendants to serve their jail sentence by picking up trash, mowing or painting once a week for the Tarrant County Sheriff's Department.
Now there is a debate brewing about whether the practice is legal.
The Tarrant County district attorney's office recently told judges and defense attorneys it would no longer agree to allow defendants convicted of alcohol-related offenses to work labor detail.
No one was more surprised than Sheriff Dee Anderson, who said the program keeps the population down at the jail, which is at capacity; saves taxpayer money; and benefits the community.
"It came out and blindsided us," Anderson said.
Anderson said that without labor detail, DWI defendants would be required to serve their sentence behind bars. Last week, for example, 1,182 defendants were in the labor detail program. Of that number, 721 had a DWI conviction, which is about average at any given time.
"It certainly would impact us negatively, if you add 700 people to our jail population," Anderson said. "Did we think this through?"
Prosecutor Richard Alpert, chief of the misdemeanor division of the district attorney's office, said that he understands Anderson's concerns but that after researching the issue, his office has no choice.
"We cannot continue to support a practice that our research has shown is not authorized by law," Alpert said. "We can't turn a blind eye and say we're not going to enforce it because people like it."
The issue
The Code of Criminal Procedure says that people convicted of DWI cannot be given community service instead of jail time. The district attorney's office concluded that labor detail constitutes community service. Defense attorneys and some judges say labor detail is a program in which a defendant reports to jail and then the sheriff puts him or her to work, often in the hot sun, instead of housing him. They maintain that is it not traditional community service.
What started the debate?
Recently, a defendant convicted of intoxication assault was sentenced to eight years' probation in a plea agreement. As a condition of his probation, he was also ordered to serve 30 days in jail. Ball, his defense attorney, asked prosecutor Robert Foran if he would oppose allowing his client to serve the jail time on labor detail. Foran said he opposed it, in part because he knew the law "didn't allow for it." Ball said that after Foran told him it was illegal, he spoke with Alpert, who researched the law and agreed.
Once the district attorney's office concluded it was illegal, what happened?
Alpert said his office consulted judges, lawyers and other experts to see if they were reading the statute correctly and whether there was "any authority to allow the judges to use labor detail in Tarrant County. Once we exhausted those options, this office came to the conclusion that the practice was not authorized by code. We immediately notified the judges and the defense bar and told them that we would not be able to be part of any future plea agreements that allowed jail service to be done by labor detail. We had no choice but to make it known immediately that we would oppose it if it was used in the future."
What do judges think about it?
Judge Billy Mills, County Criminal Court 3, showed what he thought Monday by sentencing a defendant to labor detail. "I think we disagree on what the law is," Mills said. "I think they are interpreting that statute correctly, but I think it is governed by other statutes and they don't think it is." Mills said he has been told the district attorney's office plans to appeal his sentence. He said he is not "anxious to be the guinea pig" but believes the issue should go to an appellate court. He said he will continue to give labor detail until an "appellate court tells me I'm wrong."
Judge Daryl Coffey, County Criminal Court 8, said this is not the first time this issue has arisen. When the law was changed in 1993, he said, everyone looked at it and decided it was legal. "All this is, is somebody's different interpretation than they had 12 or 13 years ago," he said. Coffey said he will not go against the district attorney on plea bargains but will continue to "do whatever I want" on open pleas and sentencings.
What do the defense attorneys plan to do?
Wes Ball said he and several lawyers are researching the law and plan to meet with the sheriff and judges to discuss the issue. "We are asking the courts not to act with haste," Ball said. "We've been doing something for 20 years, and in two days of research by the DA, and it's all changed? The DA's office has a right to have their policy, but they certainly can't dictate that it is illegal all on their own. That is a question for all sides to weigh in on."
Do any other big cities have labor detail?
Alpert said his investigation hasn't turned up any other large metropolitan cities that use labor detail for DWI offenders.
Will those already serving labor detail be affected?
Officials say they will not.

www.sloanelaw.com

No More Labor Detail in DWI Jail Sentences in Tarrant County

2007-06-07T09:24:00.000-07:00

"Labor Detail" is a program in Tarrant County whereby a person sentenced to a jail term can serve that sentence by appearing at least one day a week and performing public work under the supervision of the sheriff, and obtain credit for that time as though they had actually been in jail. This has often been done by those convicted of Driving While Intoxicated.

On Wednesday, June 6, 2007, Richard Alpert, Chief Misdemeanor Prosecutor of the Tarrant County District Attorney's Office stated that as of Monday, June 11, 2007 the Tarrant County DA's office will oppose any request that a jail sentence impose for a DWI offense be served in the sheriff's "Labor Detail" program. Apparently, a defense attorney got into a dispute with a felony prosecutor about whether jail time imposed as a condition of probation in a felony DWI case could be served in the "Labor Detail" program. That felony prosecutor researched the issue and found Article 42.036, Texas Code of Criminal Procedure, which is the only provision authorizing the "Labor Detail" program. Article 42.036 specifically excepts DWI offenses from the authorization for "Labor Detail" sentences. Accordingly, the DA's office is now going to take the position that a Judge can not legally allow a DWI defendant to serve his or her jail sentence in the "Labor Detail" program. Richard says that the DA's office might be amenable to setting up a test case and having an expedited appeal in an attempt to have the Court of Appeals find that there is some legal authority which would allow the application of the "Labor Detail" program to a DWI sentence.

This policy change will not affect those serving jail terms in Labor Detail on convictions of other offenses.

Dave

www.sloanelaw.com

Bar Arrests Spark Public Outcry

2007-03-21T05:26:00.000-07:00

DALLAS -- The recent sweep of public-intoxication arrests inside North Texas bars elicited a barrage of comments and questions of fairness from area residents.
The Texas Alcoholic Beverage Commission and Irving police recently conducted sweeps of 36 bars and arrested about 30 people on charges of public intoxication after subjecting some bar patrons to field sobriety tests. The patrons were selected for the sobriety tests after agents determined the individuals posed an alleged risk to themselves or the public.
TABC representatives said the arrests were meant to prevent drunken driving. Viewers of NBC 5 e-mailed the station and wanted to know if the arrests were legal. A local defense attorney said the cases contain merit.
"Anybody out there who is drinking needs to be aware that you have to drink responsibly, even if you're not driving," criminal defense attorney Barry Sorrels said. "If you're inside a bar, you could be arrested."
Texas law states that anyone who is drunk in public and poses a danger to themselves or others can be arrested regardless of whether they were inside a restaurant or bar, or on a city street.
Sorrels said the key to the law lies in the potential danger. He said it is not illegal to be intoxicated in public. The gray area comes in determining the degree of risk, Sorrels said.
"If (the) TABC is going to adopt this as a get-tough policy, they have to be fair on who they arrest," Sorrels said.
Three people caught in the recent sweep were arrested at a bar inside a hotel at which they were registered guests. All three said they had no intention of driving.
"It's no defense if you're staying at a hotel where you were publicly intoxicated at a bar," Sorrels said.

COMMENT BY DAVID SLOANE: Perhaps Mr. Sorrels should find another practice area of the law. Public Intoxication is the most widely abused criminal statute by police. For someone to be LAWFULLY arrested for public intoxication, they MUST be SO intoxicated they pose a risk to their safety or others. (A much higher level of intoxication than required for DWI!) A mere buzz won't do! Also, how can someone that is even extremely intoxicated pose a danger to themselves or others if they are in-tow by a sober person, or as in this case so readily dismissed by Mr. Sorrels, staying in a hotel where the bar is located and they will never be setting foot out on the street? Perhaps NBC5i should be seeking comments from attorneys who are a little better informed of the criminal statutes!

Bar Sweep Sparks Controversy

2007-03-21T05:23:00.000-07:00

Comedian Weighs In On Public Intoxication Arrests

FORT WORTH, Texas -- The Texas Alcoholic Beverage Commission sent a message to bar patrons last week.
TABC agents and Irving police swept through 36 Irving bars and arrested about 30 people on charges of public intoxication. Agency representatives say the move came as a proactive measure to curtail drunken driving.
North Texans interviewed by NBC 5, however, worried that the sweep went too far. At one location, for example, agents and police arrested patrons of a hotel bar. Some of the suspects said they were registered at the hotel and had no intention of driving. Arresting authorities said the patrons were a danger to themselves and others.
"Going to a bar is not an opportunity to go get drunk," TABC Capt. David Alexander said. "It's to have a good time but not to get drunk."
Dallas comedian Steve Harvey agreed with the Texas residents who said the arrests infringed on individual rights.
"If a guy's got a designated driver, go ahead and let him get toasted," Harvey told NBC 5.
Texas law states that inebriated individuals could be subjected to arrest anywhere for public intoxication. Harvey and other North Texans called the measure extreme.
"That seems to be an extreme case," one man said. "You are self-contained, in the hotel, you're not going in the streets, it seems a little ridiculous."
TABC officials said the sweep concerned saving lives, not individual rights. Harvey and others interviewed by NBC 5 said they believe drunken driving to be unacceptable, although Harvey wanted to confirm that the United States remains a free country.
"Freedom of drinking should always be allowed, and it is only American to let a guy get drunk where he wants to get drunk," Harvey said.

Officials Make Public Intoxication Arrests Inside Bars

2007-03-21T05:19:00.000-07:00

IRVING, Texas -- The Texas Alcoholic Beverage Commission has taken its fight against drunken driving to a new level. TABC agents, along with Irving police, targeted 36 bars and clubs Friday, arresting some allegedly intoxicated patrons before they departed the businesses.
The officers and agents also kept watch on bartenders who might have over-served patrons.
Agents arrested 30 people Friday night. Most of the suspects now face charges of public intoxication. The agents and Irving police officers traveled from bar to bar and worked undercover, according to an NBC 5 report.
The report also said that some agents shared tables with suspected drunken patrons. Some patrons were subjected to field sobriety tests inside bars.
Agents and officers said the operation represented an effort to reduce drunken driving.
Sgt. Chris Hamilton, of the TABC, said some inebriated bar patrons "end up killing themselves or someone else" after departing the businesses.

2007-03-17T18:47:00.000-07:00

< A Legally Inclined Weblog >

A Warning about "Crotch-Rockets"

2007-03-16T04:46:00.000-07:00

Bulletin to Clients with Advice Concerning Motorcycles:

In my criminal defense practice I have noted an alarming trend concerning the police and those clients with motorcycles. Effective immediately, my legal advice to all clients owning or riding motorcycles affectionately known as “crotch rockets” is to stop. This advice is particularly so for clients who are already in legal jeopardy with pending criminal litigation; or are already on probation. Based on what I have seen I believe the average beat cop views these vehicles and those who ride them with pure and utter contempt. This is not simply a case where someone is more likely to ‘get a ticket’ if they ‘happen to get stopped.’ Those days went out with James Dean when there was a kinder and gentler justice system unlike the one we have today. I have found the majority of police officers with nothing more pressing to do will seize every opportunity to immediately pursue; detain; search; and arrest the drivers of these vehicles if they can. Merely riding one down a public street is an open invitation for legal problems in general; and sometimes very serious ones for those that for legal reasons should be trying to blend into the fabric of society. Riding one of these vehicles makes some very profound and unfavorable statements about you to the average stationary beat-cop which equates to an open invitation for legal problems. For these reasons alone I am advising all clients to stay off and away from these vehicles. I personally have nothing against motorcycles of any kind. This is pure and simple legal advice with no comment or opinion of the social issues associated with it. For many and for legal reasons alone merely riding a “crotch rocket” will result in serious legal situations when they’re just trying to go about their business.

2007-01-31T12:19:00.001-08:00

Discovery Tools DWI Defense Attorneys Can Use

2007-01-31T04:43:00.000-08:00

Many Police Officers who aggressively enforce DWI or Drunk Driving Laws are aggressive in other aspects of their job. Aggressive officers generate more than their share of citizen complaints and ensuing internal investigations. This makes for fertile ground in discovery for a defense attorney IF they know where to look. This bulletin is designed to instruct a defense attorney where to look for buried skeletons concerning their arresting officer. It is imperative that you know how to ask for information, what to ask for, and where to look within a police organization.

HOW & WHERE TO ASK:

Your success will depend on how thorough and effective you are in seeking this information. "Give them ONLY what they ask for..." is what legal counsel for police agencies will tell record custodians in responding for requests for documents buried deeply within the bowels of a police organization. So the FIRST thing you need to know is to be careful how you craft your requests. For example: A requests for information reading as follows: "All citizen complaints, etc...wherein Officer Jones...received departmental discipline..." will yield ONLY the complaints where a citizen’s complaint was supported with enough evidence that the officer was disciplined. More often than not, officers are NOT disciplined in citizen complaints where it is the officer's word against the citizen's. So a requests crafted in this fashion will likely not reveal all the citizen complaints where the officer has lied his way out of it. Remember, cops aren't stupid! They're generally not going to screw up when they know independent witness or a video-camera is present. You have to use the magic-words in your request!

WHAT TO ASK FOR:
(The "personnel records" game.)

A request for an officer's "personnel file" will usually yield butt-kiss! (Unless you find mundane city personnel forms interesting reading.) Know that nearly all law enforcement agencies effectively hide their internal matters concerning officer's conduct in locations other than the officer's personnel file. You still need to ask for that because there will likely be valuable information concerning the officer's training, but don't stop there. In larger agencies that have an Internal Affairs Division, here is where you will usually find the Mother-Load of information! But don't limit it to that division. Craft your requests to include "all departmental internal investigations involving citizen, officer or supervisor complaints..." Also know that most internal affairs divisions keep a form of a rap-sheet, so to speak, on each officer. This will have a chronology of all matters investigated on this particular officer. Ask for that as well to be sure you got everything. Also, most internal affairs divisions maintain a master-log of all matters investigated including the personnel involved. This can be fertile ground for an attorney that does a lot of litigation with officers from one particular agency. Also, many police officers are rogues, traveling from agency to agency as their misdeeds catch up with them. Be especially wary of officers from small departments where their officers are paid hourly and there is a high turnover. A rookie starting out is one thing, but a seasoned and experienced officer? There a problem somewhere! In the "personnel file" you'll find their two-page city application that nobody looked at. This is worthless compared to their "Personal History Statement." These are basically a book the officer filled out in applying for their job where they were told to spill-their-guts about everything they've ever done wrong and they would likely be polygraphed on their responses. Also ask for performance appraisals/evaluations and reprimands/counseling/coaching reports.

ARREST SPECIFIC INFORMATION

Most agencies have a mother-load of information concerning your client's arrest that will not be reflected in the arrests report. The technology is there, the information is there, you just need to ask for it and ask for it quickly because so much of this data is periodically purged every 60-90 days.

Dispatch Information:

Computer Aided Dispatch Data: This is the screen the dispatcher was looking at and completed when she received that 911 call from a motorist, or a radio call from the officer stopping your client. That printout will contain the information the police learned, and when they learned it. It will also show the names of every officer that responded, when they arrived, and when they left. Here's a good example of how this can be helpful: I had a case in Keller, Texas, small town in northern Tarrant County. The dispatcher dispatched an intoxicated driver call. No license plate information and a very general description of the vehicle. By looking at the CAD Data, it was established there was no way my client's vehicle could have been the one the police were seeking, given the time and location of the call, direction or travel, etc. It also reflected another officer was stopping another vehicle of the same general description on the other side of town, which would have been more correctly the vehicle. In this case, the officer developed no reasonable suspicion of his own before stopping my client, the 911 caller was not identified, and this case will likely result in all evidence being suppressed. You won't find ANY of this information in the arrests report!

Jail Information:

In booking there is a medical screening of your client. I cannot begin to guess the number of times a jailer has check the "No" box where it ask if the prisoner is under the influence of alcohol or drugs. Want to bet he makes your witness lists for trial?

Field Training Officer Notes and Mobile Data Terminals:

If your arresting officer was a rookie with a partner, that partner was likely a training officer. Subpoena his notes and FTO daily critiques. There, he has likely made a record of everything that officer did incorrectly with your client. You won't find THAT in the arrests report either! Also, never, never, never fail to ask for the mobile data terminal transmissions. This is essentially e-mail from car-to-car, and car-to-station. These officers will yuck-it-up about your client before, during, and after the arrest. Ask for ALL MDT transmissions sent and received by your arresting officer (and any other officer that was at the scene) for the entire shift. Here you will often glean valuable information from discussion among the officers. Here's an example of a dialogue between two officers at the scene of a DWI arrest:

P-215 Dis [sic] he blow?
J-417 Yea...
P-215 Do I win?
J-417 Nope. .11
P-215 [Expletive omitted] ...I never thought he'd have blown that high, must be an Asian thing.
J-417 Didn’t [sic] mention eatin rice in the interview LOL

This case was reduced to an obstructing and the officer making the racial remarks was disciplined. Again, you won't find stuff like this in an arrests report!

I hope this blog has given defense attorneys some food for thought. If any of you need any help with any particular situation, don't hesitate to contact me at: http://www.sloanelaw.com

Jury Deadlocked for Three Days in this Case Defended by David Sloane

2007-01-24T14:51:00.000-08:00

Copied from: nbc5i.com

Teens Remember Friend Killed In Racing Crash
Hurst Teen Died In Street Racing Accident, Police Say

HURST, Texas -- Friends of a Hurst teenager killed in a street racing accident over the weekend think little will change following the death of their friend. The deadly crash that killed Corey Fournier happened in Fort Worth business parking lot on Saturday when Fournier's boyfriend, 18-year-old Earl O'Gorman, lost control of his vehicle and crashed into a parked trailer.
Witness John Potts doesn't think Fournier's death will stop the teens from continuing to race. "I think they will still be out here next Saturday night," Potts said.
The area off the 700 block of Railhead Avenue is known for street racing and car stunts.
O'Gorman reportedly tried to jump a hill in his sport utility vehicle at speeds of 60 to 70 mph, police said. After jumping the hill, Potts estimated that the SUV was 7-8 feet off of the ground.
He landed and lost control, hitting a trailer, police said.
Fournier's best friend, Rachel Barton, was stunned and said she felt like her friend was still around. "I can't believe it was her. I wish it was me ... I can't believe she's gone," said Barton.
O'Gorman was jailed on charges of criminally negligent homicide, and was released on $25,000 bond.
His attorney, David Sloane, told NBC 5 that a blood test administered to O'Gorman immediately after the accident showed that the teen had no alcohol or drugs in his system.

http://www.sloanelaw.com

More on Keller Police's DWI Tactics

2007-01-22T13:51:00.000-08:00

Even the cops know not to take so-called "Field Sobriety Tests!"

Fort Worth officer is found not guilty of DWI
By MELISSA VARGAS
STAR-TELEGRAM STAFF WRITER

FORT WORTH -- Chiding Keller police for acting unfairly, a Tarrant County judge Thursday found a Fort Worth police officer not guilty of driving while intoxicated in Keller last July.
Judge Daryl Coffey said he believes that Keller police treated Amy Rodriguez more harshly because she was an officer. He questioned whether she would have been arrested otherwise.
Keller Police Chief Mark Hafner said Thursday afternoon that he stands by the actions of the arresting officer and maintained that Rodriguez was arrested with probable cause.
The officer "did what he believed was prudent at the time, but people are innocent until proven guilty and we respect that," Hafner said. "The district attorney's office also accepted the case and believed the evidence would lead a reasonable person to believe the operator was under the influence."
Rodriguez, 31, was stopped for speeding shortly after 10:30 p.m. July 29 at Keller Parkway and Davis Boulevard. The officer said that Rodriguez's breath smelled of alcohol and that Rodriguez told him that she had had hardly anything to drink, court records show.
Rodriguez was interviewed, but police released her to members of the Fort Worth police's internal affairs department, Coffey said.
An arrest warrant was issued for Rodriguez a few days later, and she surrendered to authorities Aug. 22. She was released after posting $1,000 bail.
During a bench trial Thursday morning, the Keller officer who stopped Rodriguez testified that Rodriguez refused a Breathalyzer. The officer did not perform a field sobriety test and she "refused to cooperate," court records show.
Refusing to take the Breathalyzer, however, did not indicate that she was guilty and trying to avoid jail, Coffey said. Even if Rodriguez had consented to the Breathalyzer and the results had shown her to be under the legal limit, she could have been arrested anyway, Coffey said.

http://www.sloanelaw.com

Study Shows Inherent Unreliability of Accuracy of Intoxilzer 5000

2007-01-18T14:52:00.001-08:00

Stefan Rose, M.D. and Kenneth G. Furton, Ph.D. with Department of Chemistry and International Forensic Research Institute, Florida International University have published a groudbreaking article telling us what we already knew: That Intoxilyzers are inherently unreliable to yield accurate results of a person's true level of blood alcohol concentration simply by measuring their breath!
All Criminal Defense attorneys actively engaged in the defense of individuals charged with DWI/DUI need to know and understand the contents of this article inside and out! I believe it would be legal malpractice for an attorney to undertake and defend a breath-tests failure case without being armed with this knowledge! Furthermore, this article can serve as a VERY effective blueprint for cross-examining a state's breath-testing expert. The Introductory paragraph reads as follows::

"Breath testing instruments have been used extensively for the determination of ethanol in medicolegal investigations due to the simplicity in their operation, the relative portability of the instruments and the immediately available results. Unfortunately, breath alcohol instruments universally are prone to false positives(i.e. instrument reports ethanol is present when in fact it is responding to a different chemical) and falsely elevated breath values when ethanol is present
(due to a variety of factors). The Intoxilyzer 5000 breath alcohol instrument is no exception and numerous studies have documented some of the sources of the errors with this instrument. The major types of variables discussed in this chapter include physiological (biological) variables and analytical (instrumental) variables with overlap between the two. The uncertainty in evidential breath-analyzer readings for a random subjects in the post-absorptive state has been determined to be as much as ±27% with over 90% of this uncertainty due to biological variables of the subject and at least 23% of subjects having their actual blood-alcohol concentration overestimated..."

To view and download the entire article along with demonstrative tables in PDF format go to:

http://www.hudson-law.net/Variable_Affecting_Accuracy_Precision_of_Breath_Alcohol_Instruments_Including_Intoxilyzer_5000.pdf

Also, my hat is off to Tom Hudson, a Florida Attorney for making this information available to us on the web. If anyone in Key West/Sarasota, FL. needs a top-notched DUI/DWI Defense Attorney, this is the guy to go see!

Dave

http://www.sloanelaw.com

DWI - What to do

2007-01-16T10:23:00.000-08:00

What to Do if Stopped for DWI

Most people arrested for DWI in the Fort Worth area play right into the arresting officer’s hands when stopped. They do so by being cooperative and giving the officer all kinds of evidence to convict them and suspend their driver’s license that the officer would not have otherwise had. The most common and damaging mistakes include submitting to a variety of coordination tests and answering a variety of damming questions while believing if they’re cooperative with the officer the officer might let them go. Not so! By the time an officer asks a driver to step from their car for sobriety testing their belief is that the person is likely impaired and their intent is to take them to jail. If a driver is the least bit impaired they’re not going to “pass” these tests. These tests are designed for failure. The best thing to do is simply refuse to submit to all testing and refuse to answer any questions until an attorney is present. Remember, these police encounters are likely being videotaped with audio and video recordings (via a dash mounted camera in the patrol car and wireless microphone concealed on the officer.) So the best thing to do is say as little as possible, do as little as possible, and to be as polite as possible. Yes, they’re probably going to jail, but they were going to jail anyway! Better to beat the rap overall than to loose it badly by making a foolish attempt trying to beat the ride. By submitting to testing the driver gives the officer all kinds of things to talk about when he gets on the stand, which in turn, gives them the ability to make someone appear to be much more impaired than they actually were. By reading this, one should conclude the deck is clearly stacked against them if they have had ANYTHING containing alcohol to drink and are stopped for suspicion of DWI. People arrested for DWI , DUI and DUID in the Fort Worth area need to retain an experienced criminal trial attorney immediately. Pleadings to preserve their driving privilege need to be filed within 15 days of their arrest.

Field Sobriety Testing

“Failing” a field sobriety tests is much easier than one thinks! Indeed, most sober people cannot “pass” these tests. The results are very subjective and have little to do with whether someone can “complete” the tests. The officer is not looking for that. He or she is looking for “clues” of impairment rather than trying to see if the person can complete the test. There are basically three tests officers in the Dallas and Fort Worth area use:

Nystagmus Gaze Test:

This is where the officer asks a driver suspected of driving while impaired to hold their head still and follow the movement of an object (usually a pen) with their eyes as they move it both horizontally and vertically across the driver’s field of vision. What they’re looking for is a jerking movement in the eyes, which occurs in everyone after consuming any amount of alcohol, as well as other reasons. They look for jerking when the eye follows the object, or is angled at 45 degrees. This jerking will also occur if the tests are performed too long by fatiguing the muscles that control the eye. The jerking that occurs in the eyes when fatigued is no different than the jerking that occurs with other muscles in the body when tired or strained. So even if Nystagmus is not apparent when an officer first begins the tests, if he or she does it long enough, Nystagmus will occur. Additionally, anyone who has had anything to drink at all will usually demonstrate all clues in this test. Conducted long enough, those who haven’t been drinking at all will demonstrate the same clues. Rarely does an officer who has conducted a Nystagmus test say there weren’t “clues.” Anyone who agrees to take this test for an officer should plan on failing it.

One Leg Stand:

Few people sober or not, can perform these tests without practice without showing “clues” of intoxication. In these tests, an officer will ask the driver to lift one foot off the ground at least six inches, for 30 seconds. They’re to do this while looking down at their toe, and counting out loud, one-one thousand, two-one thousand, three-one thousand, and so on. By having the driver perform these two tasks at once, it splits their attention, making both much more difficult. Even if the driver is able to perform this tasks, they’ll likely fail the tests, because in this test the “clues” the officer is looking for are very subtle and includes swaying; using arms to balance, (or even slightly moving the hands or arms) loosing count, or putting the foot down and picking it back up during the tests (even though during instructions the officer implies that is okay.) Most people without practice cannot perform these tasks as perfectly as expected without having anything to drink, let alone with a few beers on board. The problem can be worse if the person is overweight, has inner ear problems or has problems with their feet or legs. This test is only supposed to be performed for 30 seconds. More and more officers are ignoring their training and requiring the tests be performed for longer periods till the driver eventually becomes fatigued and messes up. The driver has just failed that one! Rarely does anyone take this test without the officer noting at least two or three “clues.”

Walk and Turn:

Few people sober or not, can perform these tests without practice without showing “clues” of intoxication. In this test, the officer will ask a driver while looking down and his arms at his side to take nine heel-to-toe steps in a straight line, turn using a series of small steps, and take nine heel-to-toe steps back to the starting point. During instructions for this test the officer will ask the driver to stand with his heel to toe, and arms down at his side while facing the camera. The “clues” they arelooking for actually begin while they’re giving instructions, so the test actually begins long before the driver believes. The “clues” in this test include again swaying or moving or using the arms to balance. Other clues include beginning the tests before the officer says; not clearly touching heel to toe with each step; turning without using a series of small steps (which nearly everyone messes up); not counting out loud, etc. Again, without practice this is difficult for someone who hasn’t been drinking to do as perfectly as is required not to demonstrate “clues” of intoxication.

After reading this, one should reasonable conclude it’s just best not to play a game they cannot win. Any of these “clues” coupled with a smell of alcohol is about all that’s needed for a jury to convict someone of DWI. People arrested for DWI, DUI and DUID need to retain an experienced criminal trial attorney who is aware of and can effectively educate a jury and expose these ploys used by the police to make someone appear much more impaired than they actually are.

Breath and Blood Test:

Breath testing devices employed by the police are inherently inaccurate. Even their manufacturers will not guarantee their accuracy. They all operate on the flawed assumptions that all people metabolize at the same rate(and release through their breath) the alcohol they have consumed. If everyone had identical metabolisms; eaten the same thing; drank the same thing, and the tests were administered identically, perhaps this device could give an accurate measurement of someone’s blood alcohol. It cannot. Also, few safeguards are taken to insure the sample is not contaminated by residual alcohol found in the throat or esophagus of the accused at the time these test are administered. A subtle hiccup or burp that goes unnoticed by the accused can produce artificially high tests results. A breath alcohol reading above .08 in Texas is ALL that is required to convict a driver of drunk driving, no matter how sober they appear outwardly. Most drivers correctly refuse to submit to any breath testing due to the inaccuracy of these tests and the devastating stigma that would form in the minds of a jury with an artificially high result. Blood testing, produces a much more accurate result. But the results are typically higher than those obtained by a non-contaminated breath test. Anyone who believes they may have had more than few drinks or beers should refuse to participate in all chemical testing. A driver has the absolute right to refuse to submit too breath of blood testing. There can be circumstances where the police are allowed to take a blood sample without a driver’s consent. However, this consent should never be given by a driver who has been drinking.

WAYS TO AVOID DWI:

Clearly, the deck is stacked against a driver who has a few beers on board. The best time to plan for being stopped is in the beginning of the evening, and not when a driver sees those lights in their rear-view mirror.

Staying home to drink, designating a driver, or eagerly surrendering the keys to someone else if they’re offering to drive is by far the safest way to avoid a DWI.
If a driver is alone, and after an evening out doesn’t feel safe to drive, they should call someone to come get them, or without placing the keys in the ignition sleep a few hours before attempting to drive. If the police find them asleep in their car they may still arrest them for public intoxication, but that’s far better than a DWI . Again, they should not put the keys in the ignition! The law prohibits operating a motor vehicle while impaired. Starting the car, running the heater or air conditioning and playing the radio have been considered “operating” the vehicle by some courts.
Frequent partiers should just leave a gym bag in their car containing essential toiletries and a change of clothes. That way they’re prepared to stay wherever they are when their lifestyle has rendered them unsafe to drive. They should make a habit of just staying put. There are a few unlucky ones that get caught their first time, but the vast majority of people accused of DWI, DUI or DUID are those who routinely drive after consuming intoxicants.
If someone drinking knows they’re going to have to drive, they should develop an accounting method that is simple to keep up with how much they’ve had to drink. It is very easy for someone to loose count on the number of alcoholic beverages they have had over the evening. For most, a token system works best. They should decide on a token to collect with each drink, and stick it in their pocket. Some ways to gather token includes collecting a match book every time they go to the bar, or licking the stir stick clean from each drink they’ve had and sticking it in their pocket. Or for beer, doing the same thing with the tab easily broken off the beer can, etc. At the end of the evening they can count their tokens and determine exactly how many drinks they have had, and from that make a more informed decision whether they should be driving; and what to do if they are stopped. (NOTE: They should NOT keep paper bar tabs or receipts in their car or on their person as an accounting method, especially if they have been buying drinks for others. The police often zealously search for these documents in drunken driving arrests and give them to prosecutors to use as evidence!) For the average person it takes four beers, glasses of wine, or single-shot mixed drinks to bring them to the legal blood-alcohol limit. If their accounting yields they have 4 or more alcoholic beverages they would be wise not to drive. If they do and get stopped, they would be wise NOT to submit to ANY sobriety testing. They should politely refuse and request an attorney before answering any questions.
Most police officers will try to tell a driver they are not entitled to have an attorney before answering questions of deciding whether or not to submit to testing when stopped for suspected DWI. Every citizen needs to understand they have an absolute right not to answer police questions if they are being detained. Also many police officers will tell a driver they will be arrested if they do not perform sobriety tests. What they don’t tell them at this point is they are probably getting arrested regardless. Every driver has an absolute right to refuse to participate in ALL sobriety testing. At trial, the burden will be on the state to prove the person was impaired. It is not up to the person accused to prove they weren’t. The driver who has been drinking who takes these tests will likely loose the rap and endure high fines, driver’s license suspensions, and perhaps a jail term trying to beat the ride and minor inconvenience of being arrested and having to bond out of jail.
Also parents should also take a realistic approach when imposing rules on their teen drivers. Many teenagers have landed in jail or the morgue by driving when they shouldn’t have been, and/or faster than they should have been for fear of missing a curfew. Most parents don’t want their kids out drinking, but kids make mistakes. Parents should open a dialogue on the topic of drinking and driving, and structure the rules so that a youthful inebriated driver is not forced onto the highway just to avoid certain punishment over a curfew. They need to understand that a late night call with an honest disclosure from their teen that is reluctant to drive is highly preferred over that call from jail; or knock at the door by a police officer or medical examiner.

SEARCH WARRANTS:

The latest craze in Fort Worth is for the police to procure a search warrant to compel blood testing of someone arrested for DWI. In this case a judge orders an officer to search an accused for evidence of their guilt, in this case, alcohol in their blood. To obtain a search warrant they need “probable cause” or reasonable grounds to believe a person was driving while impaired. The police will have very limited facts to support this reasonable belief for a warrant and the warrant may be more successfully challenged if the driver refuses to submit to any sobriety testing at the outset.Of course collecting blood with a warrant requires the police to employ medically approved methods to accomplish this. They don’t seek search warrants in every case, but the frequency of use of search warrants in DWIs, DUIs and DUIDs is on the rise. Short of physically refusing, an arrested driver should verbally politely refuse all sobriety testing. Period! This includes granting permission to take a blood sample. They should NEVER just submit thinking the police are going to get a warrant anyway.The more time that passes between arrest and collecting their sample, assuming the police are able to get a warrant at all, the less credible the results will be in court. Also, even with a warrant, most hospital emergency rooms will attempt to get an arrested driver to sign a “Release” or “Authorization for Treatment” before drawing blood. Nothing in the law says a driver must waive their right to sue for malpractice should they become infected by that needle, or waive their right to outright refuse medical treatment just because they’re under arrest. Most hospitals will not touch a conscious potential “patient” if they or a relative have not given them written permission to do so. How they'll respond when they have an officer with a warrant and a patient saying they don't want to be touched will likely vary greatly. The hospital employee may refuse to perform the procedure of drawing blood, opting to follow their procedures rather than the court's order. But the search cannot be challenged later in court if the driver just agrees to allow it.

Other Things to Know

Many people aren’t behind the wheel, but are merely in close proximity to a recently driven vehicle when they are arrested for DWI. The police must find a way to place that driver behind the wheel. They ask. And the driver tells them.Things a driver says to the police during an initial encounter can be used in court, and usually are with a great deal of officer’s elaboration. By the time it makes the arrest report a simple statement like “I’m changing a flat” will be recalled as “I was driving this car upon this public roadway a few minutes ago and had a blowout…” Again, a driver who has been drinking should say as little as possible, do as little as possible, and be as polite as possible. The jury will be watching! People arrested for DWI, DUI and DUID in the Fort Worth area need to retain an experienced criminal trial attorney immediately. Pleadings to preserve their driving privilege need to be filed within 15 days of their arrest.

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