Sheriff: DA's DWI policy will overcrowd jail

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

"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

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

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

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.

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A Warning about "Crotch-Rockets"

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.