Oct 3, 2013

Warrantless Search and Seizures: Florida vs. Jardines

In Florida v. Jardines, the Supreme Court ruled that a “sniff test” by a drug detection dog at the front door of a home constituted an unreasonable “search” within the meaning of the Fourth Amendment. In that case, the Miami-Dade police received a “crime stoppers” tip that Mr. Jardines’ home was being used as a marijuana grow house. The police set up surveillance outside of his home and brought a drug detection dog to the porch of his residence. Only after the handler of the dog notified the detective that the dog had a positive alert for the odor of marijuana did the detective obtain a search warrant.

Consequently, the police searched his home, discovered the marijuana plants and arrested Mr. Jardines. After being charged and convicted of marijiuana trafficking, Jardines argued that the sniff test constituted an illegal search without probable cause and thus the evidence should be deemed inadmissible. The trial court granted Jardine’s motion to suppress the evidence, but the Florida Third District Court of Appeal reversed. On appeal, the Florida Supreme Court upheld the trial court’s decision, stating that the search was unlawful under the Fourth Amendment. The state appealed the case and the United States Supreme Court granted certiorari to review the case.

 The Supreme Court affirmed the Florida Supreme Court’s decision by a 5-4 margin along ideological lines. Justice Scalia wrote the majority opinion for the court, joined by Kagan, Thomas, Ginsburg and Sotomayor. Justice Scalia’s majority opinion was focused on a citizen’s property rights rather than the right to privacy. The Court argued that at the heart of the Fourth Amendment stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”
The Court conceded that police officers have the right to engage a homeowner in a “knock and talk” for the purpose of gathering evidence without a warrant as homeowners have reasonable expectations that the public will approach their door. However, Scalia pointed out that homeowners do not license visitors to “explor[e] the front pant with a metal detector” or the police to “peer into the house through binoculars with impunity.”

The Court determined that bringing a drug detection dog onto a person’s property to obtain evidence without a warrant was an unreasonable search within the meaning of the Fourth Amendment. Although the majority opinion did not address whether Jardines’ privacy was implicated by the search, Justice Kagan wrote a concurring opinion, joined by Ginsburg and Sotomayor, arguing that both his privacy and property rights were implicated. The concurring opinion analogized drug detection dogs to the high-powered binoculars referenced in the majority opinion and argued that where a device is not “in general public use,” and is used to obtain evidence in one’s home, it violates a persons “minimal expectation of privacy.

The Fourth Amendment to the U.S. Constitution defines the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. If you have been subjected to an unreasonable search by law enforcement, contact Parnham & McWilliams today at (713) 224-3967 or visit www.parnhamandmcwilliams.com. for a free consultation. We are dedicated to protecting your Constitutional Rights.

Oct 1, 2013

Driving While Intoxicated (DWI) Part 6: DWI Related Accidents

According to crash report data compiled by the Texas Department of Transportation (TxDOT) Texas leads the nation in DWI fatalities, and although drunk driving accidents account for only about 4% of traffic accidents statewide, TxDOT reports that DWI accidents were responsible for 1,099 deaths making them the leading cause of death on Texas roadways.
According to the same statistics Harris County led the state in DWI Accidents, totaling more than 2,809 reported alcohol-related crashes in 2012. Houston alone had a total of 1,662 reported drunk driving accidents and 94 fatalities in 2012.

In Texas, anyone who causes an auto accident while driving while intoxicated (DWI) is facing very serious criminal charges. Convictions will mean felony charges and may result in 10 to 20 years in state prison if the accident resulted in serious injury or death to another passenger or driver.
The two specific charges involved with vehicle accidents (including watercraft, aircraft and amusement rides) that involve impaired drivers are Intoxication Assault and Intoxication Manslaughter.

Intoxication Assault 
Texas Penal Code 49.07 states that a person commits an offense if the person, by accident or mistake, while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another. Serious Bodily Injury refers to any injury that creates a substantial risk of death, causes serious permanent disfigurement or causes "protracted loss or impairment of the function of any bodily member or organ."
Intoxication Assault is a third degree felony and punishable by 2 to 10 years in prison, fines of up to $10,000 and up to 600 hours of community service.
Texas law also requires any repeat intoxicated assault offenders to install an ignition interlock device on their primary vehicle: you are required to blow into this device before you can start your car, and if it detects alcohol the vehicle will not start. You will not be allowed to drive any vehicle that is not equipped with this device.
If you are charged with Intoxication Assault, the prosecution must only show beyond a reasonable doubt that you were intoxicated and caused serious bodily injury to another person; they do not need to provide any proof that you intended to hurt another person. Even though the other parties injuries could have been the result of an accident or mistake, you can still be charged with this serious offense.

Intoxication Manslaughter is a second degree felony, punishable by 2 to 20 years in state prison, fines of up to $10,000 and up to 800 hours of community service.
Intoxication Manslaughter differs from regular Manslaughter or Vehicular Manslaughter charges, which require some evidence of a reckless act or reckless driving: by the mere act of operating a motor vehicle in a public place while intoxicated the law automatically presumes that you are acting in a reckless manner.
However, the State must prove beyond a reasonable doubt that the defendant's intoxication was the cause of the other person’s death.

Intoxicated Assault and Intoxicated Manslaughter are extremely serious charges. If you have been in an accident and have been charged with impaired driving, you need an experienced criminal defense lawyer. Contact Parnham & McWilliams today at (713) 224-3967 or visit www.parnhamandmcwilliams.com for more information.

Driving While Intoxicated (DWI) Part 5: No Refusal Weekends

Section 724.011 of the Texas State Transportation Code states that anyone who is arrested for Texas DWI:
"is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance."

This is known as "Implied Consent", and as mentioned earlier it essentially means that by the mere act of accepting a Texas State driver's license you have automatically consented to take a blood alcohol level test if the police deem it necessary.
Based on the implied consent clause, Texas (and many other states) have begun implementing what are known as "No Refusal" weekends. This program is a law enforcement strategy that allows jurisdictions to obtain search warrants for blood samples from any drivers who are suspected to be impaired but refuse roadside breath or blood tests. During these events, usually scheduled around holidays such as Labor Day or New Year's Eve the police, prosecutors and judges streamline the warrant acquisition process in order to obtain blood draw warrants.

During these "No Refusal" events the District Attorney’s Office usually stations staff members at centralized locations in order to immediately consult with the arresting officer. They collect the probable cause information used in the arrest and rubberstamp a warrant which is immediately faxed to a waiting judge. If there is any probable cause that warrant will be signed and returned, the suspect is taken to an on-site blood draw room and a nurse or phlebotomist will draw the suspect’s blood. If the suspect is uncooperative or combatant, officers will restrain the suspect while the blood draw is occurring.

This rubber-stamp process is prone to several types of  legal errors; there may be an omission or a mistake on the warrant, the warrant may not meet requirements for accuracy. There may also be issues with the probable cause as determined by the arresting officer. If you are facing Texas DWI charges, you need to hire a skilled criminal defense attorney to help you navigate the legal system without jeopardizing your rights.
Contact Parnham & McWilliams today at (713) 224-3967 or visit www.parnhamandmcwilliams.com for more information.
Depending on the circumstances, we may be able to save your license.