Austin Justice

Remembering 9/11

‎9/11 was a double tragedy. Beyond the obvious tragedy of lost lives, it was the beginning of a steady erosion of our system of constitutional rights. Benjamin Franklin said that he who gives up freedom for safety deserves neither. 

Growing up, I could never have imagined that the people of our nation would one day tolerate being groped as a "security" measure to ride an airplane. Nor would I have believed that our police would one day be allowed to forcibly draw blood from any person who asserts his constitutional right to refuse to provide evidence against himself. That still sounds like something out of a novel set in Eastern Europe to me but it's happening routinely in DWI investigations right here in Austin, Texas.

If the terrorists really hate us "for our freedom" and our way of life then they've won a significant victory.

APD's new "No Refusal" policy.

I just heard through the Austin Criminal Defense Lawyers Association grapevine that APD has now gone to a practice of "No Refusals" all the time for DWI investigation. Apparently, this change in policy was NOT accompanied by an announcement in the media so if you're in Austin, you might want to pass this along to your friends.

Contempt of Cop

The Statesman is reporting today that three UT football players were arrested on Sixth Street for "failure to obey a lawful order." If you're thinking that sounds like a military crime or something out of an Orwellian dystopia, think again. 

Although there is no such crime in the Texas Penal Code, there actually is a City of Austin Ordinance that states that a person commits a criminal offense if he "knowingly fails or refuses to comply with an order or direction of a peace officer that is given by a visible or audible signal" (see Austin City CodesOrdinance 9-4-51).

In my mind, this amounts to Contempt of Cop rather than a legitimate offense because it essentially authorizes Austin police officers to arrest anyone that questions their authority. I'm reminded of APD's abuse of the Public Intoxication law.

Police Notebook: Roddy Adcock (RRPD).

Officer:  Roddy Adcock.
Agency:  Round Rock Police Department.
Alleged Misconduct:  Threatened to kill his wife and destroyed some of her belongings. She obtained a protective order against him and he was arrested and charged with criminal mischief.
Disciplinary Action:  Relieved of his duty with pay while an investigation is pending; may face additional charges.
Source:  This Statesman article..

Statewide warrant roundup begins Feb. 25

If you have any outstanding warrants in Texas, now's the time to take care of them. A statewide warrant roundup begins Feb. 25

FYI, Austin Municipal Court has a no-arrest policy for those who go in to take care of business. For higher level offenses, which are prosecuted in the county and district courts, an attorney can usually arrange a walk-through to clear the warrant. 

To check for warrants in Travis County,  check w/ APD and check with the Travis County Sheriff.

Travis County stands to lose millions for not reporting criminal history data

Travis County’s poor performance in criminal history data reporting requirements was in the news a couple of months ago. Now, it stands to lose about 3 million dollars annually in grant money from the state if it doesn't come into compliance.
 
Prosecutors are concerned about the issue because they fear that missing criminal history data could cause them to be too lenient on repeat offenders. But arrests usually ARE reported and prosecutors invariably assume that an arrest means that a person is guilty. As a result, missing criminal history data—which includes favorable case dispositions such as dismissals and acquittals, as well as convictions—is more likely to cause prosecutors to treat a person too harshly rather than too leniently.

Even when you can prove that a case was ultimately thrown out, it is often difficult if not impossible to get a prosecutor to back down from whatever position she takes based on her initial impression of a defendant’s criminal history. That fact combined with prosecutors’ tendency to presume guilt means that defendants are generally better served by case dispositions being reported right along with arrests.

It is worth noting, however, that even when a dismissal is reported on a person’s criminal history, it does not get him back to a clean slate. In other words, a criminal history that shows an arrest that resulted in a dismissal is not equivalent to a clean criminal history to a prosecutor, who is likely to assume that the dismissal resulted from a technical defect, an uncooperative victim, or the machinations of a good defense attorney. Thus, the dismissed case may still lead to a harsher punishment recommendation or even just a less flexible position during plea negotiations, which can also lead to a less favorable result. That is one of the reasons that it’s so important to pursue an expunction for eligible charges.

Criminal Penguins

 

Some penguins turn to a life of crime to build the perfect nest.

10/30/11 Update. The above link appears to be broken but this one should work: http://www.youtube.com/watch?v=PjQYOOgIom0.

Travis County lags behind in criminal history updates

A Statesman article from last month reported that Travis County doesn't do a good job of providing updated information about criminal cases to DPS for inclusion in the State's criminal history database. This can work both ways for people who have been charged with a crime.

On the one hand, a person who is looking for employment and was recently arrested may not have that new arrest showing up on his criminal history as quickly as it should, which can work to his advantage if he finds a job before it does. On the other hand, when a prospective employee's case has been dismissed or otherwise favorably disposed of, that update also won't reach his criminal history as quickly as it should, so a background check may show the case as pending long after it's been dismissed. The good news is that the attorney who handled the case should be able to provide documents showing the favorable disposition. Still, it's far less awkward for the prospective employee if the criminal history accurately reflects that the case was dismissed.

On a related note, a lot of people assume that when a case is dismissed, it's automatically removed from a person's criminal history but that's not true! Once updated properly, the criminal history will merely show that the case was dismissed. To have it removed from his criminal record, the person must generally wait until the statute of limitations expires (that's two years for a misdemeanor and three or more years for a felony, depending on the charge) then hire an attorney to file a petition for expunction. See this FAQ for more information about expunctions.

Catching up...

This is to let you know that I'm playing catch-up and browsing through my virtual newspaper clippings from the last few months, so you may see some older news items among my blog entries, like my last post. I'm discarding the stale stuff but some of it remains interesting or pertinent to my practice despite its age, e.g., entries for the Police Notebook.

Police Notebook: Albert Aguinaga (APD)

Officer: Albert Aguinaga.
Agency:  Austin Police Department.
Alleged Misconduct:  Indecent exposure (Class B Misdemeanor).
Disciplinary Action:  Administrative leave without pay.
Other Information:  Officer Aguinaga was indicted for indecent exposure by a Travis County Grand Jury, which declined to indict him for public lewdness and sexual assault based on a July 15, 2010 off-duty incident in which he is alleged to have exposed himself during a lap dance at a South Austin club. The punishment range for a Class B Misdemeanor is a maximum of 180 days in the Travis County Jail and/or a $2,000 fine.