May 03

Should I Pay My Red Light Camera Ticket?

By Luke Williams Traffic Offenses

Red Light Camera Ticket Texas Anytime someone gets a ticket in the mail from a red light camera, the same questions run through their mind. Do I really have to pay this ticket? Is that even me driving? How do they know whether that is me? What happens if I don’t pay this ticket? Why do we even have those cameras anyway? There are a ton of rumors out there and plenty of people ready to tell you that you do or don’t have to pay that ticket, but what is the actual answer? Section 707 of the Texas Transportation Code governs red-light traffic cameras but there are certain ordinances that counties adopt that add onto or affect the Code.

What are the Penalties Associated with Red Light Camera Tickets in Texas?

Red-light camera tickets are considered civil violations and are not considered a conviction.* §707.018. The Code provides that the civil penalty may not exceed $75 and the late payment penalty may not exceed $25. §707.007. If you fail to pay your ticket an arrest warrant will not be issued and it will not be recorded on your driving record. §707.019. Additionally, according to the City of Fort Worth’s Red-Light Camera Safety Program, these violations are not reported to your insurance companies or driver’s license bureau.

Let’s recap. If you fail to pay your red light camera ticket:

No conviction
No arrest warrant
Not on driving record
Not reported to insurance
Not reported to driver’s license bureau

So far so good. Looks like nothing will happen if you don’t pay the ticket. But wait, there’s more.

Will Failure to Pay Your Red Light Camera Ticket Affect Your Credit Score?

Section 707.003(h) of the Code provides that information of failure to pay a red light ticket cannot be reported to a credit bureau. According to The Dallas Morning News, even the counties, such as Dallas, that had enacted their red-light camera contract before the Texas law went into place in 2007 can no longer report delinquent violations to credit bureaus. This apparently went into effect June 1st after TransUnion, Experian, and Equifax notified the city of Dallas that they would no longer honor the reports of unpaid tickets.

No credit bureau reporting

Could Failure to Pay Your Red Light Camera Ticket Affect Your Ability to Register Your Vehicle?

There had to be a catch with these red light camera tickets. This is where they can get you. If a driver fails to pay their red-light camera penalty after it is sent to collections, that information may be sent to the Texas Department of Motor Vehicles and a scofflaw hold, or a vehicle registration hold, will be placed on the vehicle’s registration until all unpaid penalties have been paid. §502.010; §707.017. This does not mean that every county decides to go through the trouble of placing scofflaw holds. As for Fort Worth, according to Fort Worth’s violation information website scofflaw holds will be placed if violation fees remain unpaid. To the contrary, www.trashyourticket.com lists Tarrant County as one of the counties that does not place a hold on your registration. (This information is based on either news articles or reports from people with outstanding tickets). Additionally, since Dallas can no longer report to credit bureaus the plan is to start using registration holds to maintain their red-light camera safety program.

The county assessor-collector is responsible for enforcing these holds, however according to his article “The Wright Stuff” in Taxing News, Tarrant county tax assessor-collector Ron Wright stated that he will “not block vehicle registrations because of unpaid red light camera fines” and even signed a letter to Governor Greg Abbott calling for a ban on the traffic cameras, along with other Texas officials. While this may be a personal decision on Wright’s part, legislature is in the process of making this opinion a law.

Senate Bill 87, sponsored by Texas Senators Bob Hall, Sylvia Garcia, and Donald Huffines, aims to prohibit county assessor-collectors from placing a hold on vehicle registration if the owner is “delinquent in the payment of a civil penalty”, referring to the civil penalty incurred from a red light traffic camera. The bill passed with 30 “yea” votes and one “nay” on March 29, 2017 and it was referred to the House of Representatives Transportation Committee on May 8, 2017. If the bill makes it all the way through, it would render red light camera tickets unenforceable.

No hold on your registration.

Bottom line: If you decide not to pay your red-light camera ticket, it will not affect your credit score, it will not be reported to your insurance company or the driver’s license bureau, you will not be convicted of anything, and a warrant for your arrest will not be issued, but it is remotely possible that it could affect your ability to renew your vehicle’s registration. However, you have the Tarrant County tax assessor-collector’s word that the registration holds will not be enforced. Thus, there isn’t that much that cities can do to you if you fail to pay your ticket. To register your vehicle, even if you have a scofflaw hold, you must register by mail or in person at a local tax collector-assessor office so that it can be overridden.

Ultimately, it’s your choice if you want to take that risk, but now you have all of the facts in order to make that decision.

*Note that all of the information in this article is referring to tickets you receive in the mail after running a red light with a camera, not a ticket received from an officer. It is vitally important to pay attention to traffic signals and stop at red lights for your safety and the safety of others.

Apr 25

Love7

What is “Threatening or Harassing” for a Protective Order Violation?

By Brandon Barnett Domestic Violence

Violation Protective Order Texas Wagner Family violence stories permeate the news, as domestic violence-related cases continue to fill both Texas criminal and family court dockets alike. The Texas Council On Family Violence reports that one in three Texans will experience domestic violence in their lifetimes. (Texas Council On Family Violence, accessed 23 April 2018.) In 2016, the National Domestic Violence Hotline received over 17,000 outcries for help. A societal scourge that is found across all racial, socio-economic, financial, educational and religious stratifications, domestic violence continues to wreck families and ruin the lives of victims. What protections exist in Texas for victims? What behaviors rise to the level to trigger a protective order issued by the courts? What happens when a protective order is violated? In Wagner v. State, the Texas Court of Criminal Appeals recently considered whether numerous texts and emails can rise to the level of harassing behavior and violate a protective order.

Read the case here: Wagner v State (Tex. Crim. App 2018)

Domestic Violence Leads to a Protective Order for Victim

One month after separating from her abusive husband, LW was granted an Order of Protection from a district court. Based on the testimony presented, the district court found that not only had family violence occurred, it was likely to occur again in the foreseeable future. In her affidavit to the court, LW described an array of abusive behaviors including yelling and screaming, breaking objects around the house, destroying a car with a hammer, locking LW out of her own house, among other “strange and violent behavior.”

The Protective Order restricted her ex-spouse, Paul-Henri Wagner, from a laundry-list of communications and activities ranging from direct communication by phone to physical presence within 500 feet of LW’s residence. Specifically, Paul-Henri was prohibited from communication made to LW in a “threatening or harassing manner.” One week after the protective order was issued, Paul-Henri and LW sent text messages and email to each other, regarding financial and logistical obligations to their children. Eventually, LW told Paul-Henri to communicate via email only, asking him to “respect her wishes” by not sending her text messages. Shortly thereafter, Paul-Henri began sending emails professing his longing for reconciliation. LW told him to stop. Paul-Henri started sending text messages again—a dozen in fact. Soon the communication became a mix of texts and emails professing his undying love for LW. After a few days of the messages, LW told Paul-Henri to stop sending texts. Paul-Henri barraged LW with emails begging for reconciliation. Paul-Henri even went so far as to drag church members to contact LW for reconciliation.

Based on his incessant communications with LW, Paul-Henri was charged with a Class A misdemeanor Violation of a Protective Order for violating Texas Penal Code Section 25.07(a)(2), which provides (in relevant part:

(a) A person commits an offense if, in violation of a condition of bond set in a family violence case related to the safety of the victim, the person knowingly or intentionally:
(2) communicates:
(A) directly with a protected individual or a member of the family or household in a threatening or harassing manner;

Ultimately, a jury convicted Paul-Henri for violating the protective order, finding that he communicated with LW “in a harassing manner.”

Wagner Appeals the Violation of Protective Order Conviction | Void for Vagueness Argument

On direct appeal, Paul-Henri challenged the constitutionality of the Texas Penal Code, stating that §25.07(a)(2)(A) is overbroad and vague. The court of appeals rejected Paul-Henri’s argument, stating:

(1) that the term “harass” can be defined using a standard dictionary,
(2) that harassment is not protected speech under the First Amendment, and
(3) that the statute is not vague because Paul-Henri either knew or should have known that his repeated communications with LW would eventually pester her.

Paul-Henri then appealed to the Texas Court of Criminal Appeals, which granted his petition for discretionary review to determine the constitutionality of §25.07(a)(2)(A).

When do Communications Become “Harassing” Under the Law? | The Court of Criminal Appeals Weighs In

So when do multiple emails and texts become “harassment” in violation of a protective order language or the Penal Code (or do we even know)? The CCA held that the Penal Code was not unconstitutionally vague on this point and explained that:

“a person communicates in a harassing manner if the…method by which he communicates…would persistently disturb, bother continually, or pester another person…[Such behavior] necessarily requires multiple events of harassing communication…[and would be] troubling [to] someone with frequent…requests or interruptions.”

Here, Paul-Henri repeatedly contacted LW, even after she demanded that he stop. The court reasoned that the average person, with average intelligence, would conclude that his behavior was bothersome, and that he should have stopped. However, Paul-Henri did not stop his efforts to contact his victim. Furthermore, added the CCA, “the First Amendment does not prohibit a court from imposing reasonable restrictions on an abuser’s speech for the protection of his victim.” For those who have protective orders restricting communication, yes, multiple texts and emails may rise to the level of “harassing” behavior in Texas. Those who have been served protective orders need to understand the restrictions placed upon them in their orders and abide accordingly.

Family and intimate partner violence follows escalating patterns of behavior that are predictable and preventable. Understanding the facts about domestic violence is the first step in supporting victims in their safety planning and in holding abusers accountable for their actions.

Apr 19

Love12

Not Up in Smoke Yet: Marijuana Laws in Texas 2018

By Ashley Gilmore Drug Crimes

Marijuana Texas CBD Oil Legal You have seen it on the news…yet another state has legalized marijuana. It seems as if weed is everywhere, surely Texas has jumped on the bandwagon and legalized it too! Our firm receives calls from people all the time who all say the same thing; they thought marijuana was legal now. Not in Texas.

Current Marijuana Laws in Texas

Despite having been legalized in other states, possessing even a small amount of marijuana is a crime in Texas. The Texas Health and Safety Code says it is illegal for a person to knowingly or intentionally possess a usable quantity of marijuana. How much marijuana a person has in their possession will affect the level of severity of the offense.

Up to 2 0z– Class B Misdemeanor, punishable by up to 180 days in jail and up to a $2,000 fine
2oz to 4oz– Class A misdemeanor, punishable by up to 1 year in jail and a $4,000 fine
4oz to 5lbs– State Jail Felony, punishable by 180 days to 2 years in jail and up to a $10,000 fine
5lbs to 50lbs– 3rd Degree Felony, punishable by 2 to 10 years in jail and up to a $10,000 fine
50lbs to 2000lbs– 2nd Degree Felony, punishable by 2 to 20 years in jail and up to a $10,000 fine
More than 2000lbs– 1st Degree Felony, punishable by 2 to 99 years in jail and up to a $50,000 fine

Proposed Texas Laws Relating to Marijuana

Texas failed to pass any new marijuana legislation in 2017, but proponents of legalized marijuana are hopeful for the 2019 legislative session. House Bill 2107 was proposed during the 2017 session, co-authored by 78 House members. The bill would have expanded the Compassionate Use Act to include Texans dealing with medical issues other than intractable epilepsy. While the bill narrowly missed being brought to a vote, it showed there was bipartisan support for such a bill, and legislators remain optimistic marijuana reform will happen in 2019.

Medical Marijuana in Texas

The Texas Compassionate Use Act was signed by Governor Greg Abbot in 2015. The Act allows for individuals with intractable epilepsy to have access to CBD oil, a low THC cannabis oil. The bill prohibits smoking marijuana. Critics of the law say it is unworkable, as it requires a doctor to “prescribe” marijuana rather than recommend it as they do in other states where medical marijuana is legal. Under current federal law, a doctor “prescribing” marijuana could be open to sanctions, while one recommending the use is not. Another issue is that the ratio of THC to CBD that is allowed under the law is not potent enough to help some patients. There is potential for changes to be made to the Act during this legislative session, with proponents of the Act looking to broaden the scope and make access easier for patients.

THC Oil in Texas (Wax, Dabs, Marijuana Concentrate)

Possessing THC (tetrahydrocannabinol) oil in Texas is considered a more serious crime than simply possessing marijuana. Over the last few years, vaping THC oil, which is a concentrated version of the mind-altering component of marijuana, has become popular. Under Texas law, THC oil or wax is considered a concentrate and possessing it is a felony criminal offense.

Less than 1 Gram– State Jail Felony
1 Gram to 4 Grams– Third Degree Felony
4 to 400 Grams– Second Degree Felony
400 grams or more – First Degree Felony

The law considers THC oil and wax to be in a different penalty group that marijuana, due to the higher level of THC, and consequences are much harsher. So while a typical small amount of marijuana could be punishable as a misdemeanor, even a very small amount of THC oil can be punishable as a felony. This is a common misconception that we often see in our THC oil cases. The user believes that a low amount is a misdemeanor, much like a low amount of marijuana. Not so. Every THC oil case is a felony.

Edible THC in Texas

The use of THC oil in edibles can be very serious. When weighing the amount of a controlled substance, the Texas Health and Safety Code includes all adulterants and dilutants in the total weight. Popular THC laced edibles like gummy candy and brownies will be weighed in their entirety, and can result in very serious felony charges.

CBD Oil in Texas

Cannabidiol oil (CBD Oil) is made from cannabis, but is non-psychoactive. CBD oil that is made from industrial hemp is currently legal in Texas. Recently, shops selling CBD oil products have been popping up all over the metroplex, with promises the product can relieve pain and anxiety. The Texas Department of State Health Services has begun to crack down on retailers selling food products made with CBD oil, claiming they have the power to regulate any food product that contains CBD oil.

But not all CBD oil is legal. If there is any trace of THC in the CBD oil, the user could face prosecution for misdemeanor Possession of a Controlled Substance (Not in a Penalty Group).

Synthetic Marijuana in Texas

K2, or Spice, is a synthetic form of marijuana that is created by spraying natural herbs with chemicals meant to mimic the effects of marijuana. Synthetic Marijuana is illegal in Texas, and carries the same punishment as marijuana.

Selective Prosecution for Marijuana Offenses in Texas

Several counties across the state, including Dallas, Bexar, and Harris, have implemented a marijuana cite and release program whereby folks are not being arrested for low-level possession charges. Other counties have diversion programs for first-time or low level offenders. You should check with a knowledgable attorney in your local area to learn more about the diversion programs available.

In Tarrant County, depending on the circumstances of the case, a marijuana offender may qualify for the Deferred Prosecution Program (DPP) or the First Offender Drug Program (FODP). Again, you should check with an attorney to determine whether you might be eligible to participate in either program.

Conclusion

Regardless of whether you disagree with what the law should be in regard to marijuana in Texas, it is currently illegal to use or possess. If you are arrested for possession of marijuana, you may qualify for a diversion program that will ultimately allow you to get your record fully expunged. Contact one of our attorneys today if you have pending marijuana charges in Tarrant County. We will be happy to discuss your options and defend your case.

Feb 23

Love6

Dallas Home Explosion Raises Injury Liability Questions

By Jesse Lotspeich Premises Liability

The Dangers of Natural Gas in the Home

Using natural gas in your home can be very beneficial: it is more efficient than electricity, coming at cheaper cost, while getting more work done. However, gas does have some dangers associated with it. Natural gas is highly flammable and sometimes undetectable to the everyday person. This can lead to fires or even explosions in the home, causing thousands of dollars of damage.

Home Explosion in Dallas, Texas in February 2018

Natural gas is believed to be the related to a recent explosion at a home in Dallas. Current reports indicate that one person was tragically killed and others severely injured. Neighbors have evacuated their homes, while the city and the gas company look into the problem. Initial reports indicate that the explosion occurred near a gas heater in the house.

According to NBC DFW, the explosion prompted the evacuation of over 700 students from nearby Stephen C. Foster Elementary School.

For more on this story, click here.

For information on the Railroad Commission of Texas’ Gas Services, click here.
Pipeline Investigations from the National Transportation Safety Board, click here.

What to do if you have damage from a natural gas explosion/fire:

If you have suffered injuries or the loss of a loved one caused by a fire or explosion, it is important to know your rights.

Following a fire or an explosion, an investigation should be done to determine the cause of the incident. Depending on the cause, there may be several liability issues to address. For instance, faulty or leaking gas lines may implicate the utility company. If defective appliances contributed to the explosion, the sellers and manufacturers may be liable. These are complicated liability issues that should be discussed with your attorney.

Should you have damage from a fire or explosion that is caused by natural gas, contact your attorney to work through investigation and discuss your course of action.

Feb 23

Love24

The Dangers of Distracted Driving in Texas

By Jesse Lotspeich Car Wreck

Since the invention of cellphones and the growing popularity of texting, car accidents resulting from distracted driving have increased year after year. According to the National Highway Traffic Safety Administration (NHTSA), distracted driving claimed 3,477 lives and injured 391,000 people nationwide in 2015. The Texas Department of Transportation (TxDOT) reports that 1 in 5 crashes in Texas are caused by distracted driving. This is a nationwide issue that is taking the lives of Americans every day. However, distracted driving is an issue that can be prevented.

What is Distracted Driving?

The NHTSA defines distracted driving as “any activity that diverts attention from driving.” There are three types of distractions, according to DMV.org; visual, manual, and cognitive. Visual distractions involve taking your eyes off the road, for example looking at something in the vehicle or an event taking place on the side of the road. Manual distractions include removing one or both hands from the steering wheel, such as adjusting the air conditioning controls or radio. Cognitive distractions take your mental focus and attention away from driving, for example, day dreaming or deep thinking. Common distractions include eating, drinking, smoking, talking on the phone, talking to a passenger, adjusting the radio or air conditioner, looking in the mirror, applying makeup or shaving, watching a video, responding to emails, and texting. Using a cellphone or texting while driving is incredibly dangerous because it combines visual, manual, and cognitive distractions. To send a text while driving, a driver takes his eyes off the road to look down at his phone screen, he takes at least one hand off the steering wheel to hold the phone, and stops paying attention mentally to think about what he is typing. Looking down at the phone just for 5 seconds while going 55 mph means that the vehicle traveled the distance of a football field without the driver paying any attention. In that distance, many things can happen, including an accident with devastating effects.

Distracted Driving Impact on Texas

Distracted driving is a growing problem in Texas. In 2016, TxDOT reported that distracted drivers in Texas caused:

109,658 crashes (a 3% increase from 2015),
3,000 injuries, and
455 deaths

In Tarrant County alone, distracted drivers were responsible for 8,210 crashes, 23 of which were fatal crashes in 2016.

Texas Laws Regarding Texting While Driving

Laws regulating cellphone use while driving differ between states and cities. As of September 1, 2017, the use of a “wireless communication device for electronic messaging” while operating a motor vehicle is prohibited in the state of Texas after the adoption of House Bill Number 62. The offense is considered a misdemeanor and punishable with a fine between $25-$99, however it may increase to between $100-$200 if there is a prior conviction for the same offense. This includes texting and emailing while driving. The Texas Transportation Code Title 7. Sections 545.424, 545.425, 545.4251, 545.4252 provides, in relevant part:

If the driver is under 18, they cannot use a wireless communication device.
A bus driver may not use a wireless communication device while operating the bus if a minor is present.
All drivers are prohibited from using handheld devices while driving in school zones.

Exceptions to these laws exist for cases of emergency, reporting illegal activity, using a hands-free device, using a global positioning system, playing music, or when the device is permanently affixed to the vehicle and is part of the operator’s duties.

Ways to Bring About Change in Distracted Driving

Distracted driving isn’t someone else’s problem. It’s our problem and it could impact you or your loved ones. There is no badge of honor for multitasking while driving. We all share the road and when we are distracted while we are driving, we endanger the lives of everyone around us. Here some things you can do to prevent distracted driving and make a difference on the road:

1. Eliminate Distractions

Before you start driving, enter your destination into the GPS, adjust the air conditioning, find the right radio station or queue up your songs, and send your last text or email. Secure loose objects that might roll around once you start driving so you aren’t temped to reach for them and so they don’t roll under your feet. Take care of grooming and eat at home. Get everything done before you start driving. If you absolutely need to respond to something, pull over to a safe spot on the side of the road.

2. Some Apps are Good

Recent iPhone software iOS 11 has a “Do Not Disturb While Driving” feature that can be manually or automatically enabled or be activated when connected to a car Bluetooth system. This feature can sense when you are driving and silences notifications such as text messages. It can even send an auto-reply to people who have messaged you, telling them that you are busy driving. Phone calls will only come in if connected to a Bluetooth hands-free system. The customizable feature can be found in the “Settings” app under “Do Not Disturb.” An app with similar functions is “LifeSaver,” which can be downloaded in the App Store or in Google Play.

3. Speak Up When You are Riding With a “Distracted Driver”

While we can only control our own actions, we can encourage those we ride with to avoid distracted driving as well. When you’re a passenger in a vehicle and the driver is distracted, speak up and remind them about the importance of focusing while driving. Offer to take care of the distraction for them. Politely tell them that you’re uncomfortable riding in their car while they’re distracted. Talk to your friends and family about the dangers of distracted driving and hold each other accountable.

4. Make a Pledge

Hold yourself accountable by making a pledge not to drive distracted. There are many websites with pledges, some where you can donate to different foundations or dedicate your pledge to someone, such as the “Just Drive” pledge with the National Safety Council.

Injured By a Distracted Driver? Free Case Evaluation

If you or a loved one have been injured by a distracted driver, contact our personal injury attorneys for a free case evaluation. We have offices in Fort Worth and Keller or we can send one of our attorneys to meet with you if you have a difficult time traveling. We do not charge any fees for injury cases unless we win a damages award for you. Contact us today at (817) 993-9249 or send us a message.

Feb 20

Love2

Additonal Notice for Suppression Hearing

No Additional Notice Required for Suppression Hearing on Trial Date

By Brandon Barnett Trial Advocacy

Texas Court of Criminal Appeals Determines That There Needs to be No Additional Notice Provided to the State When Holding a Suppression Hearing On the Day of a Trial

The Court of Criminal Appeals recently handed down a decision affirming a trial court judge’s decision to hold a suppression hearing on the day the trial was set, but before voir dire or any trial proceedings occurred. State v. Velasquez, 2018 Tex. Crim. App. LEXIS 52. After a prior motion for continuance by the State was granted, the defense submitted 16 pretrial motions, including a motion to suppress evidence. On the day of the trial, both sides announced ready, and the judge chose to hold the suppression hearing before jury selection. The State objected because they were not provided with proper notice of the hearing (and because their witnesses were not present to testify for the motions hearing before jury selection), but the objection was overruled and the judge ruled in favor of the defendant. The Fourth Court of Appeals reversed the trial judge’s decision, but that was overturned by the Court of Criminal Appeals, affirming the trial court ruling on the motion.

Texas Code of Criminal Procedure Article 28.01

The State based its appeal on Article 28.01 of the Texas Code of Criminal Procedure. This statute enables the judge to schedule pretrial hearings (Section 1), requires notice of these hearings to be provided to the defense (Section 2), and gives the required means of providing notice (Section 3). The State claimed that it was not provided adequate notice of the pretrial suppression hearing under this statute, and therefore, should have been given an opportunity to delay the hearing and trial.

Section 1

Article 28.01(1) allows for the court to set a pretrial hearing before it is set for a trial upon the merits. The Court of Criminal Appeals recognized that this creates two separate settings and that the court must provide adequate notice for any new and separate hearing. Included in this list of settings is a suppression hearing in Section 1(6). The court also acknowledges that many suppression hearings are done as a part of trial, and that parties should be capable of arguing for or against suppression at the time of the trial. In this case, the State was not prepared for the suppression hearing and refused to argue, forcing the court to rule in favor of the defendant.

Section 2

Article 28.01(2) requires the court to provide notice of at least 10 days to the defendant in order to allow the defendant enough time to respond and raise any additional preliminary matters. The State argues that it is entitled to notice, however, the Court points out that the statute only provides for notice given to the defendant. The Court decided that the State has no right to additional notice for a pretrial motion that will be handled on the day of the trial, so long as notice of the trial day setting was given to the State.

Section 3

Article 28.01(3) establishes the acceptable methods for providing notice to the defendant. Notice can be given through an announcement in open court in front of the defendant and his/her attorney, personal service to defendant, or by mail.

Court of Criminal Appeals’ Conclusion

Ultimately, the CCA held that it was appropriate for the trial court to hold a suppression hearing on the same day as trial, despite not giving additional notice to the State. The notice of the trial setting was sufficient to make the State aware of the possibility of a suppression hearing, and the State should have been ready for that hearing. The court sees a distinction between a pretrial setting and handling a matter just before the trial begins. Because suppression hearings are often held in conjunction with trials, this action was proper. Article 28.01 does not apply in this instance because there was no new, separate setting, and the party complaining about notice was the State. The Court understands that there could be improvements to the notice requirements, but as a member of the judicial branch, they are not empowered to make those changes.

Feb 01

Love5

Can a Bus Driver Give Consent to Search the Passenger Compartment?

By Brandon Barnett Search & Seizure

The Case of the Not Too “Wise” Bus Passenger

United States v. Wise, 877 F.3d 209 (5th Cir. TX 2017)

FACTS: In this case, police officers were conducting bus interdictions at a Greyhound bus stop. After a certain bus stopped, the driver got off the bus and the officers approached him requesting consent to search the passenger cabin of the bus. The bus driver consented to a search and two experienced narcotics officers in plain clothes boarded the bus. The officers did not block the exit or otherwise obstruct any of the passengers from departing the bus. One officer walked to the back of the bus while the other officer remained at the front.

The officer at the front of the bus noticed a man who was pretending to be asleep. The officer found this suspicious, because in his experience, criminals on buses often pretended to be asleep to avoid police contact. The officer walked past the “sleeping” man and turned around. The sleeping man (named Morris Wise) then turned to look back at officer, revealing that he was not asleep after all. The officer then approached Wise (now awake) and asked to see his bus ticket. Wise gave the officer a bus ticket, bearing the name “James Smith.” The officer had a hunch that James Smith was a fake name. The officer then asked Wise if he had any luggage with him on the bus. Wise said yes and motioned to the luggage rack directly above his head.

Wise then gave the officers consent to search the duffle bag in the overhead compartment. The officers did not find any contraband in the duffle bag. The officers also noticed a backpack near Wise and asked if the backpack belonged to him. Wise denied ownership of the backpack. The officers then asked the other passengers about the backpack and no one claimed it, so the officers removed the backpack at the bus driver’s request.

Outside the bus, a trained police canine alerted to the backpack. The officers then cut a small lock off the backpack, searched it, and found seven brick-type packages that appeared to contain cocaine.

The officers then went back onto the bus and asked Wise if he would mind getting off the bus to speak to the officers. Wise complied with the officers’ request and got off the bus. The officers asked Wise if he had any weapons, which he denied that he had any weapons, and then they asked him to empty his pockets.

From his pockets, Wise gave the officers his ID card with bearing the name “Morris Wise” and a lanyard with several keys attached to it. Not surprisingly, one of the key opened the lock that the officers had to cut off of the backpack (that Wise said was not his). The officer then arrested Wise, and the government charged him with several drug-related offenses.

Motion to Suppress the Search as the Fruits on an Illegal “Checkpoint Stop”

Wise filed a motion to suppress the evidence as a violation of his 4th amendment right against unreasonable searched and seizures. The district court held that the officers’ conduct in searching the bus constituted an unconstitutional checkpoint stop. In addition, the district court held that the bus driver did not voluntarily consent to the officers’ search of the luggage compartment where the backpack was located. As a result, the district court suppressed all evidence the officers seized after the stop.

The government appealed to the Fifth Circuit Court of Appeals.

First, the court held that the district court incorrectly characterized the officers’ bus interdiction as an unconstitutional checkpoint. The court noted that the Supreme Court’s cases involving checkpoints involve roadblocks or other types of conduct where the government initiates a stop to interact with motorists. In this case, the officers did not require the bus driver to stop at the station. Instead, the driver made the scheduled stop as required by his employer, Greyhound. In addition, the officers only approached the driver after he had disembarked from the bus, and the driver voluntarily agreed to speak with them. The court concluded that the interaction between the officers and the driver was better characterized as a “bus interdiction.”

Second, although Wise had a reasonable expectation of privacy in his luggage, the court held that as a passenger, Wise did not have a reasonable expectation of privacy in the luggage compartment of the commercial bus. As a result, the court concluded that Wise had no standing to challenge the officers’ search of that compartment, to which the bus driver consented.

Third, the court held that the officers did not seize Wise, within the meaning of the Fourth Amendment, when they approached him, asked to see his identification, and requested his consent to search his luggage. Instead, the court concluded that Wise’s interaction with the officers was a consensual encounter because a reasonable person in Wise’s position would have felt free to decline the officers’ requests or otherwise terminate the encounter.

Finally, the court held that Wise voluntarily answered the officer’s questions, voluntarily emptied his pockets, and voluntarily gave the officer his identification and keys.

Jan 28

Love4

Can Police Stop You for Driving on the Improved Shoulder of the Road?

By Brandon Barnett Drug Crimes

State v. Cortez (Tex. Crim. App. 2018)

Jose Cortez was stopped because a Texas State Trooper allegedly observed him driving on an “improved shoulder” in violation of Texas Transportation Code § 545.058. The officer testified that Cortez touched the white “fog” line of the road and crossed it twice. During the ensuing stop, the trooper searched Cortez’s vehicle and found drugs. Cortez moved to suppress the stop (and the search) arguing that the officer lacked probable cause to initiate the stop.

What is Driving on the Improved Shoulder?

The Texas Transportation Code also defines “improved shoulder” as a “paved shoulder” with the “shoulder” being the “portion of the highway that is:

adjacent to the roadway;
designed or ordinarily used for parking;
distinguished from the roadway by different design, construction, or marking; and
not intended for normal vehicular travel.”

The Texas Transportation Code §545.058 prohibits drivers from driving on the shoulder unless it is necessary and done safely, “but only:

to stop, stand, or park;
to accelerate before entering the main traveled lane of traffic;
to decelerate before making a right turn;
to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;
to allow another vehicle traveling faster to pass;
as permitted or required by an official traffic-control device; or
to avoid a collision.”

Court Suppressed the Traffic Stop Because Driving on the Shoulder Did Not Violate Any Laws

In this case, the trial court determined, after careful review of dashcam footage and officer testimony, that Cortez did not appear to touch the fog line, and that even if he did, that was not a violation of the law. The courts also reasoned that if Cortez did cross the line, he was doing so to let the officer pass and to exit the highway, both reasons justified by the statute. The court of appeals affirmed the trial court’s suppression of the stop. The Texas Court of Criminal Appeals agreed and affirmed the lower court’s ruling.

What Does This Mean for Texas Drivers?

First, it is not illegal to touch the white line of the shoulder under Texas Transportation Code § 545.058. If you are pulled over for this, the courts have determined this is not a violation of the law and does not provide a reasonable basis for an officer to pull you over and search your vehicle.

Second, if you do cross the white line, that is not necessarily a violation. If one of the acceptable reasons above is present, then it is permissible to cross the shoulder line and the police will not have a reasonable basis for stopping you and should not stop you or search your vehicle.

Overall, you should pay close attention when you are driving. But the courts have acknowledged that it is nearly impossible to drive in a perfectly straight line. The police do not automatically have a reasonable basis to stop you if you cross the white line, and they have NO basis for stopping you if you merely touch it. However, as we have always said, if you are stopped, be polite, be courteous, and do not consent to any searches.

NOTE: Presiding Judge Keller dissented in this case and would hold that driving on the white fog line does constitute driving on the improved shoulder in violation of the transportation code.

Jan 12

Love1

Passports Revoked for Sex Offenders Pursuant to New Law

By Luke Williams Sex Crimes

Megan’s Law and the Implications for Passports of Registered Sex Offenders

Sex Offender Passport Law In February of 2016, we wrote about President Obama signing Megan’s Law and the implications that the law would have on passports.

Effective January 11, 2018, in accordance with Megan’s Law, the U.S. State Department has started to revoke passports issued to registered sex offenders. The law was passed October 31, 2017 but is now in effect. This law prevents the Department of State from issuing passports to sex offenders without a unique identifier printed on the person’s passport and authorizes the State Department to immediately revoke all passports currently held by registered sex offenders that do not contain this identifier.

Required Endorsement for Sex Offender Passports

Passports re-issued to registered sex offenders will now bear an endorsement on the passport, which will read:

“The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).”

According to federal law, endorsements cannot be printed on passport cards, so qualifying individuals will not be issued passport cards.

This new procedure by the State Department does not prohibit registered sex offenders from leaving the country. But, it certainly leads to the presumption that this identifying marker on these passports could very likely lead to these individuals being denied entry into other countries.

In the coming weeks, the Department of State will be sending letters to those individuals covered under this law notifying them that their passports are now revoked.

There are a wide number of crimes that can lead to a person being on the sex offender registry. These crimes can include sexual assault of a child, indecency with a child, online solicitation of a minor and viewing or sharing child pornography (either inadvertently or on purpose).

For more information, visit the Department of State website.

Jan 02

Love5

Rules for Drones | Drone Registration and Penalties for Failure

By Brandon Barnett Criminal Defense

Drone Laws TX Drone Registration Drones or Quadcopters were a popular Christmas gift this year. While many new drone owners are probably preoccupied with learning to fly without getting the propellers stuck in trees or crashing them over their neighbor’s fence, they need to take a moment to learn about the federal registration rules for unmanned aircraft.

*Federal drone registration had been struck down by an appeals court in May of 2017, but the National Defense Authorization Act that was passed in December 2017 reinstated drone registration.

Do I Have to Register My Drone?

Maybe. Any unmanned aircraft system (“drone”) that weighs more than .55 pounds must be registered with the FAA. Depending on the size of the drone, it can be registered under:

Part 107, Small UAS Rule,
Section 336, the Special Rule for Model Aircraft, or
14 CFR Part 47, the Traditional Aircraft Registration

Registration Under The Special Rule for Model Aircraft

Most people register their drone under this provision. The Special Rule for Model Aircraft allows for registration of a drone between 0.55 lbs and 55 lbs for recreational use only. Under this registration:

A person is allowed to fly their drone within their line of sight,
A person is required to follow the community-based and nationwide guidelines,
A person is not allowed to fly their drone over an airport or to interfere with emergency response units, and
A person must notify an airport when they are flying within five miles of an airport.

In order to register under the Special Rule for Model Aircraft, you must:

Register as a “modeler” with the FAA,
Be at least 13 years’ old,
Be a legal United States citizen or legal permanent resident, and
Label your drone with the registration number in case it is lost or stolen.

This registration, which can be completed online costs $5 and lasts for 3 years.

Registration of Drones Between 0.55 lbs and 55 lbs Under the Smalls UAs Rule

The Small UAS Rule allows for registration of a drone between 0.55lbs and 55lbs for recreational and commercial use. Registration is REQUIRED by the FAA. Under the Small UAs Rule a person may:

Fly their drone at or below 400 feet (Class “G” airspace)
Fly during daylight or civil twilight
Fly at or below 100 miles per hour.

With a drone registered under Part 107, the pilot:

Must yield to manned aircraft
Cannot fly directly over people,
Cannot fly from a moving vehicle unless you are in a sparsely populated area.

In order to obtain your registration under the Small UAs Rule, you must:

Be at least 16 years old,
Have a valid credit card, email address, and physical/mailing address,
Pass an aeronautical knowledge test at an FAA-approved testing center,
Undergo a Transportation Safety Administration security screening, and
Denote the make and model of your aircraft when applying for registration.

The Small UAS Rule registration, which can be completed online costs $5 and lasts for 3 years.

Traditional Aircraft Registration for Drones Greater Than 55 Lbs

Traditional Aircraft Registration must be completed for any unmanned aircraft weighing over 55 pounds. The paperwork for drones greater than 55 pounds can be found on the FAA website and must be turned in via regular mail. Drones over 55 lbs will require an N-number that you have to submit to the FAA. The FAA website lays out the necessary information for an application.

This registration costs $5 and lasts for 3 years.

What is the Penalty for Flying a Drone Without Registering it?

Failure to register an unmanned aircraft can result in regulatory penalties up to $27,500 and criminal penalties up to $250,000 and/or imprisonment for up to 3 years. Penalties are determined on a case by case basis and will vary based on the judge.

The FAA provides on its website:

“There is no one-size-fits-all enforcement action for violations. All aspects of a violation will be considered, along with mitigating and aggravating circumstances surrounding the violation. In general, the FAA will attempt to educate operators who fail to comply with registration requirements. However, fines will remain an option when egregious circumstances are present.”

Do you have to register your drone if you only fly over your own property?

Even if flying over your own property, the FAA still requires registration of your drone. The penalties for failure to register an unmanned aircraft will apply even if the drone does not leave your property.

What Other Drone Rules Should I Be Aware of?

Every registration allows for different flight regulations, so pay close attention to what you register for and what that particular registration allows you to do. The FAA has developed an app called “B4UFLY” which gives you important information about your location and the flight restrictions in that area. This app is recommended by the FAA to help avoid violations of the registration limitations. For any additional questions/concerns, visit the FAA website.