Austin Justice

Remembering 9/11

Kiele Linroth Pace — Tue, 11 Sep 2012 15:52:34 GMT

‎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.

Kiele Linroth Pace — Tue, 14 Aug 2012 19:58:53 GMT

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

Kiele Linroth Pace — Wed, 09 May 2012 00:10:59 GMT

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 Codes, Ordinance 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).

Kiele Linroth Pace — Sat, 10 Mar 2012 14:19:22 GMT

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

Kiele Linroth Pace — Sat, 11 Feb 2012 19:30:30 GMT

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

Kiele Linroth Pace — Wed, 28 Dec 2011 13:44:09 GMT

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

Kiele Linroth Pace — Sun, 23 Oct 2011 00:42:09 GMT

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

Kiele Linroth Pace — Tue, 27 Sep 2011 13:25:48 GMT

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...

Kiele Linroth Pace — Mon, 26 Sep 2011 12:40:07 GMT

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)

Kiele Linroth Pace — Mon, 26 Sep 2011 12:25:38 GMT

Officer: Albert Aguinaga.

Agency: Austin Police Department.

Alleged Misconduct: Indecent exposure (Class B Misdemeanor).

Disciplinary Action: Administrative leave without pay.

Sources: This Statesman article; this official press release.

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.

Police Notebook: Officer Danny Johnson (APD).

Kiele Linroth Pace — Mon, 26 Sep 2011 11:58:23 GMT

Officer: Danny Johnson.

Agency: Austin Police Department.

Alleged Misconduct: Giving misleading statements to his superiors and being rude to a resident.

Disciplinary Action: 90-day suspension without pay.

Source: This Statesman article.

Other Information: According to a memo regarding the incident, Officer Johnson was dispatched in response to a woman's report that she had found a discarded hypodermic needle. Officer Johnson stated in a written report to his supervisors that the syringe was old and cracked and did not contain a needle. But the woman filed a complaint about Officer Johnson's behavior toward her, which triggered a review of his patrol car video. The video revealed that the syringe clearly did contain a needle, that Officer Johnson did not comply with police procedures for disposing of it, and that he was rude and condescending to the woman.

Police Notebook: David Mangan #6804 (APD).

Kiele Linroth Pace — Tue, 20 Sep 2011 14:44:53 GMT

Officer: David Mangan #6804.

Agency: Austin Police Department.

Alleged Misconduct: Misrepresenting facts in arrest warrants and offense reports.

Disciplinary Action: Termination.

Source: Brady notice provided to Attorney Paul Walcutt by the Travis County Attorney's office, which he reported to the Austin Criminal Defense Lawyers Association.

Other Information: Officer Mangan was also previously suspended for one day for crashing his cruiser (report available here).

Police Notebook: Blayne Williams (APD)

Kiele Linroth Pace — Sun, 18 Sep 2011 14:18:12 GMT

Officer: Blayne Williams.
Agency: Austin Police Department.
Alleged Misconduct: Off-duty assault of an elderly HEB employee.
Disciplinary Action: 90-day suspension.
Other Information: According to the Statesman, this is the harshest punishment an officer can receive, short of being fired. The facts of the case would have made it a Class C Assault (mere offensive contact) rather than Class A Assault (ordinarily requires bodily injury) except that the victim was elderly, which is an enhancement factor.

Source: Statesman article.

Long time no see.

Kiele Linroth Pace — Fri, 09 Sep 2011 13:07:04 GMT

You may have noticed that this blog has suffered from inattention during a long hiatus on the part of yours truly. My absence was caused first by a massive appellate brief, followed immediately by the happy news but typical and unfortunate side effects of expecting my second child. If things go according to plan (knock on wood), I'll be back on track within the next few weeks.

Meanwhile, I created a page for The Pace Law Firm, P.C., on Facebook and have started using it for small updates like no-refusal-weekend announcements, links to news articles of interest, and brief posts about political candidates in the Austin Criminal Justice System (go Charlie Baird!). I expect to continue posting brief updates there but use this forum for more in-depth writing, such as my first (and most popular) post regarding the Lying Cop.

Regards,

Kiele

DPS surcharge amnesty program.

Kiele Linroth Pace — Mon, 31 Jan 2011 15:18:00 GMT

Earlier this month, DPS began an amnesty program that allows certain folks who are behind on their surcharge payments to lower the payments and in some cases even waive a huge portion of the amount owed! So if you're behind on surcharge payments, go to this website to enter your information and see if you qualify for the program.

The amnesty period expires in April. Here's a link for more information about eligibility and other program requirements .

= = =

For those who are unfamiliar with surcharges, Texas law adds a huge administrative fine upon conviction for certain offenses, including DWI, Driving While License Suspended (DWLS), and No-Insurance tickets. The fine is assessed for each of the three years following the conviction and is above and beyond whatever fines, fees, jail time, etc., may be assessed in court for the actual offense.

For example, with a typical first-offense DWI conviction in Travis County, the defendant may spend one or two days in jail at the time of the arrest, then be put on probation for 18 months. As part of his sentence, he will be required to pay a fine, court costs, various other fees associated with being on probation, do community service, attend court-ordered counseling, meet with a probation officer one a month, and submit to random drug and alcohol testing. This is all after paying a lawyer a hefty fee to represent him, of course. The surcharge program means that, above and beyond all of that, DPS also assesses a fine of $1,000 (more under certain conditions) for each of the three years following the conviction, for a total of $3,000.

Needless to say, many people fall behind on their surcharge payments, which means their licenses get suspended. If they're caught driving after that, they may very well end up with a new conviction for DWLS, which triggers another round of surcharges. It can be a vicious cycle where people end up owing thousands of dollars to the State of Texas that they simply cannot afford to pay.

New criminal court judges take the bench.

Kiele Linroth Pace — Mon, 03 Jan 2011 16:23:00 GMT

The Travis County criminal courts have several new judges that just took the bench:

147th - Judge David Crain
299th - Judge Karen Sage
331st - Judge Cliff Brown
CC3 - Judge John Lipscombe
CC6 - Judge Brandy Mueller

The swearing-in ceremonies are this afternoon for District Court judges and tomorrow afternoon for County Court at Law judges. Here's more information from an email sent to Austin Criminal Defense Lawyers Association members by Attorney Dan Dworin:

Monday, January 3

Swearing-In Ceremony for New Criminal District Court Judges

Please join us for the Investiture Ceremony and Reception for New Criminal District Court Judges.

The Honorable Cliff Brown, 147th District Court
The Honorable Karen Sage, 299th District Court
The Honorable David Crain, 331st District Court

Time: 3:30 p.m.

Location: Heman Marion Sweatt Travis County Courthouse, 250th District Courtroom, 3rd Floor

= = =

Tuesday, January 4

Swearing-In Ceremony for New County Court at Law Judges

You are invited to attend the Investiture Ceremony and Reception for New County Court at Law Judges.

The Honorable John Lipscombe, County Court at Law #3
The Honorable Brandy Borich Mueller, County Court at Law #6

Time: 3:30 p.m.

Location: Heman Marion Sweatt Travis County Courthouse, 250th District Courtroom, 3rd Floor

No-Refusal New Year's

Kiele Linroth Pace — Thu, 30 Dec 2010 19:06:00 GMT

I've been too busy with the purchase and renovation of my new family home to blog much lately but thought I should at least pass on this information about APD's latest no-refusal event :

People suspected of drunken driving on New Year’s Eve will have their blood tested under a search warrant if they refuse to give a breath or blood specimen, Austin police announced today. The “no refusal” initiative will run from 9 p.m. Friday until 5 a.m. Saturday.

AquaPalooza and Boating While Intoxicated

Kiele Linroth Pace — Mon, 12 Jul 2010 02:21:00 GMT

7/13/10 Update. More AquaPalooza = more arrests...

Reading the arrest results for this weekend's so-called AquaPalooza , it occurred to me to mention a couple of things that some folks don't know...

First there IS such a thing as boating while intoxicated. I've had people laugh like I'm telling a joke on a couple of occasions that I've mentioned it in a casual setting. But no, I'm serious folks. Furthermore, drinking and boating is actually riskier than DWI from a criminal liability perspective because the police do NOT need a reason to stop a boat. That's right, whenyou're in a boat, the police can demand you stop, board the boat, and conduct an inspection justbecause they feel like it.

No-Refusal Fourth of July Weekend

Kiele Linroth Pace — Fri, 02 Jul 2010 20:13:00 GMT

APD has announced that this weekend will be no-refusal beginning at 9 p.m. tomorrow, Saturday July 3 and continuing to Sunday July 4 at 5 a.m. During this time, if you are pulled over and investigated for Driving While Intoxicated, if you refuse to take the breath test, the police will get a warrant to have your blood tested.

Take a cab, folks. It's a hell of a lot cheaper than fighting a DWI conviction, even if you ultimately win.

The Defenders

Kiele Linroth Pace — Sun, 27 Jun 2010 00:21:00 GMT

CBS has a new legal drama about criminal defense attorneys coming this fall that looks good. It probably won't last but I'm looking forward to catching a few episodes while it does.