Client was arrest for Felony DWI (3rd DWI in 6 years) after being stopped for swerving all over the road. A search of his car found two cold beers inside it.

The officer had a hard time remembering details from the arrest and had not provided all the details in his offense report.

Client performed well on the station video. Jury found reasonable doubt and acquitted Client.

Arizona v. Gant

An important decision was handed down that is going to have a major impact on drug cases involving vehicle searches.

Up until Gant an officer could search a subjects vehicle as a search incident to arrest. If they were arresting a subject for DWI, they could then search the car and add illegal substances to the list of charges being filed if drugs were found in the car.

Now a search of the car is limited to situations where the subject would still be within reaching distance to the car in order to protect the officer from the subject grabbing a weapon out of the car.

If, for example, the subject is handcuffed and in the back of the patrol car, a search incident to arrest is no longer legal.

However, an exception is that, an inventory of the vehicle is still justified IF the arresting agency has an inventory requirement as a policy. However, in a case I just resolved, just calling something an Inventory doesn’t make it so. In the case I dealt with, the officer was arresting for DWI and while my client was in the back seat, the officer found pot in the console. The search then stopped, but then he labeled it an “inventory” to get around the new Gant decision.

This was a sham though because there was absolutely no other items inventoried and the officer didn’t even have any list or recollection of any of the other items in the car including an expense set of golf clubs and a mandolin in the back seat. Houston Police Department (HPD) policy does require an inventory of all vehicles they impound but rarely do I see this procedure followed.

The officer here claimed he did an inventory, but it was really just an illegal search of the car drugs which should be suppressed as fruit of the poisonous tree.

If you are set for jury duty and you are planning on coming down, please don’t if you think your job is to convict a defendant in a criminal case.

I was serving on jury duty last week and as we approached noon, the crowd was dispersing and just a few of us were left in the assembly room. A man behind me got on his cell phone and had a conversation for all to hear. I picked up that he was talking with his wife and towards the end of the chat he made a comment to the effect of, “well if it’s a criminal case, just don’t waste my time, He’s guilty!” laughing to the person on the other end.

I had a 3 day trial last week that ended up in a guilty verdict. While eavesdropping on the jury deliberations through the door I overheard one of the lady jurors (actually it was a 6 lady jury) state,

“we can’t just let this guy go, to me, they didn’t prove he was guilty but my vote is still guilty.”

This isn’t first time I’ve heard this and I know it won’t be the last.

Thomas Jefferson said,

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its Constitution.”

I have tremendous respect for our jury system. This was a DWI trial and really you can’t get a jury of your peers like you can on a DWI case. Nothing causes me more anger than hearing a juror completely disregard their duty and disgrace the jury system by defying the admonishments given them. I lose a little more faith in the jury system each time the above mentioned incident happens.

Here’s my message to future jurors. This applies to YOU. YOU take an oath to be fair. YOU take an oath to follow the law. The law requires YOU to acquit a defendant if the state does not prove their case Beyond a Reasonable Doubt. YOU cannot speculate about what you think happened. You cannot consider anything that wasn’t presented by the evidence at trial. When the judge gives YOU instructions that YOU may not conduct your own investigation and YOU cannot consider or discuss anything other than the evidence to come to a decision…HE MEANS IT!

I see many many fair and impartial jurors show up for jury duty. Many that understand and appreciate the importance of their role and the effect it has on individuals lives. If you are not one of those jurors…STAY HOME! If the state does not prove their case…you are required to find a defendant NOT GUILTY! Period!

Last August I was a presented a lecture on Cross of the Chain of Custody Witness. Frisco DWI Lawyer, Hunter Biederman was live blogging during the lecture and summarized the presentation very well. Read more about the lecture in his post Blood Test Seminar – Live Blogging – Cross of the Chain of Custody Witness.

Men’s Health magazine recently released their list of America’s Drunkest Cities. Rounding out the top 5 is Austin, Texas. The magazine used 5 different criteria to determine the order of the list, which includes:

• Most liver disease
• Most binge drinking
• Most deaths in DUI-related crashes
• Most DUI/DWI arrests
• Least stringent DUI/DWI laws

Fresno, CA scored 1st place and title of the Drunkest City in America. Two other Texas cities scored top 10 positions, with San Antonio coming in 7th and Lubbock, TX coming in 8th place. Read the full article and list at MensHealth.com

If you are one of the many charged with DWI in Austin or a DWI in San Antonio, contact a lawyer highly experienced in DWI cases, such as Tyler Flood, right away.

Everybody heard about this when it happened a few months ago and now the Chronicle reported on it again today. Judge Carolyn Marks Johnson was reprimanded by the State for her illegal, unprofessional and just plain unconstitutional behavior of having a defendant submit to a drug test just moments AFTER she was found Not Guilty by a jury in trial. After a not guilty, unless there are some other criminal charges pending, the judge does not have any authority to order the acquitted person to do anything. No more so than anybody else standing around. Harris County has decided that she will not be allowed to sit as a judge for anybody any more in the County.

Despite Harris County’s ban on Carolyn Marks Johnson, despite her appalling behavior an despite the fact that the State of Texas punished her by reprimanding her, Montgomery County still uses her as a visiting judge. I just had a trial setting in front of her when Judge Johnson was serving as a visiting judge for County Court #4 in Montgomery County. Did Montgomery County not get the memo? Why would any County in Texas feel it is okay to employ a judge who was banned in another County for misconduct and a complete lack of respect for the Constitution? Montgomery County should be embarrassed.

Harris County District Clerk Loren Jackson will make an appearance on my show “Law and Disorder next week..the show will air on Sunday at 5 pm and we will discuss the overhaul of the district clerk’s office that is currently taking place and the huge imaging goals he still has to achieve. The Show will air Sunday Feb 7th, 2010 at 5-6 p.m.

Any email questions will be answered live on the air. Please submit your questions for the show on my site tylerflood.com by using the form in the bottom left column.

Third show for Law and Disorder was a great success…my guests were Rodney Thompkins, owner of AMEX bail bonds and John Will, Program Director of PDAP, Palmer Drug Abuse Program.

We got a new engineer and a new taping format and it proved to be perfect. This show we discussed everything from Wizzinators to DIVERT.

Bond conditions were also discussed and what to do if you are arrested and how to get out of jail.

Had a great time speaking at the Houston Bar Association’s Litigation Section on Thursday at Maggiano’s. There was a large crowd and they even had to bring in more tables. I fielded lots of questions about common questions about DWI and even shed some light on a few urban legends. One attendee said he had always heard to request the officers to carry you to their car so the video won’t show you walking. That was a new one to me. Another was whether or not it would work if as soon as you were pulled over, take out the keys and start chugging a bottle of liquor. I actually heard that one before. Overall, I feel like I was able to provide some valuable knowledge for civil lawyers to be able to help any of their friends, family or clients if they are ever faced with a DWI arrest.