Wednesday, November 26, 2008

The Statutory Warning - Legal Coercion

The DIC-24 (or statutory warning) is the form containing legal warnings required to be given orally and in writing before a police officer can request a DWI/DUI suspect to provide a sample of their breath or blood. The necessary condition precedent to giving the warnings is that the person is under arrest for driving while intoxicated (DWI) or driving under the influence (DUI).

The statutory warning tells the person arrested that a refusal to provide a sample may be admissible in a subsequent prosecution. The form also notifies the accused of the different lengths of suspension, depending on whether the person refuses or takes the test. There is a separate paragraph that's specifically directed to persons younger than 21 years of age. The warning says:
If you are younger than 21 years of age and have any detectable amount of alcohol in your system, your license, permit, or privilege to operate a motor vehicle will be suspended or denied for not less than 60 days. However, if you submit to the taking of a specimen and an analysis of the specimen shows that you have an alcohol concentration of less than 0.08, you may be subject to criminal penalties less severe than those provided for under Chapter 49, Penal Code.
By its nature, this warning is coercive since it explicitly informs the person if they take a breath test and the result is less than 0.08, they may still be subject to less severe criminal penalties than if they completely refuse to take the test. However, under the implied consent law, consent to the taking of a breath or blood sample must be voluntary.

For consent to be voluntary a person's decision must not be the result of physical or psychological pressure brought to bear by police officials. A clear reading of the DIC-24, as it relates to suspects under 21 years old, is coercive because the warning provides for less severe penalties only if the accused person agrees to provide a sample. In other words, the warning results in a person providing a sample "involuntarily." Consequently, these breath and blood test results should be attacked by DWI defense lawyers by motions to suppress evidence based on this psychological coercion.

Friday, November 21, 2008

ABA Journal Survey on the Job Market

The ABA Journal is surveying lawyers about the job market and the current state of the economy.  They would appreciate your participation in their important survey if you are licensed to practice law.  Please visit this link and following instructions.  Thanks. 

Wednesday, November 19, 2008

Texas Statute of Limitations

Several cases have come into the office recently in which the statute of limitations (SOL) was a big question for the client. An expunction case, for instance, might not be ripe for filing until the SOL has expired.  Potential clients often ask why the prosecutors took so long to indict them and whether the delay can help their defense. 

In general, the limitations period is the time within which the government may file criminal charges against a person. The SOL for felonies is different than that for misdemeanors. Furthermore, there are circumstances when the limitations period is not running . . . like when the accused person is absent from the state . . . or after a person is indicted and the indictment is pending. In Texas, the statute of limitations is governed by Article 12.01 et seq. of the Texas Code of Criminal Procedure.  Following are some examples of limitations periods for common criminal charges in Texas.

There are no statutes of limitation for murder, manslaughter, and certain sexual crimes involving children.  The limitations period is ten (10) years  for certain theft cases involving real estate, theft by a public servant, forgery, injury to elderly or disabled persons, and sexual assaults not involving children.  

For misapplication of fiduciary property, securing the execution of government documents by fraud, and identity theft the SOL is seven (7) years.  For other theft charges, robbery, kidnapping, and burglary the limitations period is five (5) years. For all other felonies the SOL is three (3) years and for any misdemeanor the limitations period is two (2) years.  

Finally, the day on which the offense was committed and the day on which an indictment or information was presented is excluded from the computation of time.  

Monday, November 10, 2008

Reporting Child Abuse

A member of my church contacted me a few weeks ago about their duty to report child abuse in the context of child care situations and spiritual counseling. After some online research in the Texas Family Code, I was able to compile some guidelines for action.

First, a person commits an offense if the person has cause to believe a child's physical or mental health or welfare has been, or may be, adversely affected by abuse or neglect and knowingly fails to report it. This offense is a Class B misdemeanor offense, punishable by up to 180 days in county jail and a $2,000.00 fine. See sec. 261.109 Texas Family Code (TFC)

The next question is "who is a child" within the meaning of this reporting requirement? Section 101.003 TFC defines a child as: "a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes."

"Abuse" covers a comprehensive array of acts or omissions including mental or emotional injury, physical injury resulting in harm or the threat of harm to the child, failure to make reasonable efforts to prevent abuse by another person, and sexual conduct harmful to a child's mental, emotional, or physical welfare. See sec. 261.001 TFC.

Persons required to report child abuse are "professionals" and "persons who are traditionally responsible for a child's care" including parents, guardians, foster parents, school personnel, and personnel at public or private child-care facilities providing services for the child. A "professional" is an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties, has direct contact with children. The term includes teachers, nurses, doctors, day-care employees, employees of clinics or health care facilities providing reproductive services, juvenile probation officers, and juvenile detention or correctional officers.

If you're a professional or a person traditionally responsible for a child's care and have questions about your duty under law to report child abuse, contact a qualified Bryan|College Station criminal defense lawyer to discuss these important issues and get advice you need to avoid running afoul of legal duties to report child abuse.