Austin Criminal Defender Blog - Commentary on criminal law and procedure events in Austin, Texas

Last week I wrote a post on the kind of evidence needed in a DWI by drug case. There's another related situation worth mentioning-when the driver consumes a substance (be it an over-the-counter medication or a controlled substance) that makes him more susceptible to the effects of alcohol. This is referred to as the "synergistic effect" of alcohol and a consumed substance or drug. In such a case, the prosecutor can argue that despite a breath test result below the legal limit, the driver was nevertheless intoxicated because a consumed substance made him more prone to the effects of alcohol.

Many clients find this a startling revelation-the idea that you can blow under the legal limit and yet still be convicted of DWI by alcohol. The reason of course, lies in the fact that along with a .08 breath test score, Texas law defines intoxication as the loss of normal use of physical or mental faculties. Alcohol and some other substance, the argument goes, has enhanced the effect of the alcohol resulting in intoxication. Texas courts consider a person found guilty of DWI by reason of the "synergistic effect" to be intoxicated exclusively as a result of alcohol. 

The "synergistic effect" theory differs, however, from a claim that alcohol combined with a drug or substance caused intoxication. This fine distinction used to matter before the Texas Court of Criminal Appeals changed its mind about what constitutes the "elements of the offense" of DWI. That's getting pretty technical and I mention it simply to make you aware of the "synergistic effect" theory of prosecution.

Can the prosecutor make the same type of argument about a bodily condition that has weakened you and increased the effects of the alcohol-say for example, fatigue? The "synergistic effect" theory does not apply to fatigue, or any other purely natural deterioration of the body. "Synergistic effect" applies to alcohol and its interaction solely with substances.

As is the case with DWI "by drugs", the prosecutor needs expert testimony to establish the synergistic effect of alcohol and a substance, though no Texas case explicitly says so. The logic of the Smithart decision (discussed in last week's post) readily applies.

So if alcohol and some other substance are involved in your case, watch out-just because you've got a breath test result under the legal limit doesn't get you off the hook if an argument can be made that something you took-an antihistamine, a prescribed muscle relaxant, etc. made you more susceptible to the effects of alcohol.

Representative Debbie Riddle's (of terror babies fame) bill creating the offense of criminal trespass for illegal aliens likely violates the Constitution and I predict will quickly be enjoined if passed by the 82nd legislature. You could almost hear the little wheels and gears turning. Criminal trespass based upon a violation of federal immigration law. That could work; or not.

A few problems, constitutional and otherwise. First the legalities. House Bill 17 criminalizes a non-citizen's presence in Texas if there is an initial unlawful entry as defined by federal immigration law, specifically 8 U.S.C. Section 1325 or 1326. Sounds reasonable, eh? Simply state enforcement of federal immigration law. Not quite. The gist of the newly created crime is the non-citizen's presence in Texas despite the fact that Congress takes a contrary position. Entry without inspection and entry after deportation are federal crimes but so far Congress has avoided making it a crime for mere presence absent other factors. Riddle's bill violates the preemption doctrine-a fundamental principle of the Constitution that Congress has the power through the Supremacy Clause to preempt state law.

Criminal trespass may sound appealing to Texans but immigration presents an issue national in scope often with multiple and competing objectives. Although a state may adopt regulations that have an indirect or incidental effect on non-citizens a state may not establish its own immigration policy or enforce state laws in a manner that interferes with federal immigration law.

Arizona attempted the same kind of mischief with its anti-immigration measures resulting in an immediate federal injunction. From the tenor of the appellate argument in the Arizona case, the creation of a state crime that supplants federal immigration law by criminalizing unlawful presence doesn't stand the proverbial snowball's chance.

HB 17's amendment to the Code of Criminal Procedure, authorizing a warrantless arrest for criminal trespass, too, looks shaky.  Under Riddle's bill, if you get stopped for a traffic offense the police officer gets to monkey around with the idea that, perhaps there's reasonable suspicion to believe that you're committing criminal trespass of the State of Texas. Physical appearance of the person stopped then plays a role in the process. Anyone who looks like they're from south of the border is fair game.

How long can you detain someone under the bill to figure out their immigration status? In the Arizona case, the state's attorney told a panel of the Ninth Circuit Court of Appeals that ICE would respond in 11 minutes. (presumably through ICE's Law Enforcement Support Center). That might be correct where illegal reentry is concerned (a violation of 8 U.S.C. Section 1326) but for those alleged to have entered without inspection (a violation of 8 U.S.C. Section 1325) no such records exist-illegal entry is the issue to be determined and the 11 minute figure goes out the window. The officer then gets the opportunity to hone his interrogation skills.

A relevant question to ask is whether a check to determine immigration status presupposes a trip to the police station to check fingerprints. Under the Secure Communities program, ICE currently checks the immigration status of persons arrested at some Texas county jails utilizing fingerprint checks. Can you haul folks to the police station without an arrest to determine their immigration status? For a class B misdemeanor, probably not under Hayes v. Florida, 470 U.S. 811 (1985).

No good can come from the bill's (nor other Arizona style legislation) passage. Aside from the constitutional difficulties posed by the creation of a state crime for an immigration violation, consider the ill will engendered by such legislation. Arizona already set the stage for such hard feelings. To what end? It's almost a certainty the federal courts will enjoin such legislation on preemption grounds. Why then alienate the fastest growing segment of the population in this state who are ultimately destined to comprise a good share of the voting public.  Prudence suggests pragmatic thinking and cooperation to fix a complicated immigration problem instead of thumb-in-the-eye treatment.

In a series of articles and television stories the Austin American Statesman and KVUE recently took aim at the manner in which Travis County judges grant occupational driver’s licenses to folks who've had their licenses yanked for either refusing a breath test or failing one. The press pointed out a number of seemingly startling observations. Namely, that the Texas legislature passed the administrative license revocation laws (ALR) to get drunk drivers off the road immediately and through a loophole (the occupational license law) lawyers were getting their clients back on the road with the help of Travis County judges. Not only that, but the lawyers were exploiting the system and using the suspension hearings to try and beat the DWI's.

Whoa hold on there boy. Aren’t you jumping to a few conclusions mighty rapido.
Remember now, at the time the State of Texas strips these licenses no one has been convicted of anything. A police officer has simply sworn that probable cause for a DWI exists. One of the articles made no bones about it-“Lawmakers at the time said they wanted to provide a measure of swift punishment to suspected drunken drivers, long before their cases go to court.” That’s fairly frightening. Punishment first. Trial later. It's enough to make any junior high civics student shudder.

The complaint was made that the administrative license revocation laws enabled defense lawyers to get discovery on their DWI cases by having the officers testify before trial. The reason for this is as old as the Fifth Amendment. It’s called due process. Before you can strip someone of a right or privilege, such as a driver's license or public employment, you have to afford them the opportunity to be heard. If that enables an accused to preview the DWI case or commit the officer to specific testimony-so be it. That’s the nature of the system. The same can be said of any pretrial hearing in any criminal case or parallel civil proceeding (such as a protective order hearing when assault charges are pending). All part of the system. Nothing nefarious. That’s how it works. The state giveth. The state taketh away but first you have to let me cross examine the witness. So what, anyway. The officer testifies twice.  Maybe some DWI case that deserves to get thrown out because the witness can’t keep his stories straight, gets thrown out. That wouldn’t be such a tragedy would it?

No mention in the articles of the fact that the hapless DWI’er gets punished twice-a suspension before trial and one after trial, if convicted. Or that these Travis County judges who supposedly hand out occupational licenses like candy regularly impose (as the law requires in many instances) an ignition interlock condition at the cost of hundreds of dollars per year to the defendant. No mention of what we lawyers who deal with these cases call a “blackout period”(no pun intended) or “hard suspension”(a mandatory suspension that can range for a period of 90 days to a year during which no occupational license can be obtained in certain DWI cases with prior convictions).

I guess what galls me about the front page blitz is the intimation that something shifty is going on. You mean elected judges using their discretion, which is what we pay them to do, are letting people drive so they can go to work or to probation meetings or to AA meetings. “The whole thing takes no more than 15 seconds”, the Statesman eagerly quoted County Court at Law Judge Nancy Hohengarten. I expected  to read that the judges were signing these orders over in the corner of the courtroom with the lights dimmed.

At a hearing the other day, a police officer testified that a caller-in reported that a man handed another man a gun in an apartment house parking lot and then drove off. Those actions warranted a stop of both men. Now, nobody was doing anything illegal. Nobody was threatening anyone or exhibiting the weapon in a dangerous manner. In fact, the two men appeared to be friends. The caller-in thought it looked dangerous.   So what justified the stop? "Reasonable suspicion"-the time honored test? I don’t think so.

Police officers often testify that if they stop a motorist for traffic and they smell alcohol, the driver gets to do field sobriety tests. It’s policy. So, you can have a drink, get stopped for traffic and suddenly you’re on the side of the road, with one leg in the air.  Is that legal? Perhaps not. But let me clue you in. The Fourth Amendment gets little respect. The Amendment tends to get in the way of “effective” law enforcement. This is no secret.  We lionize cops who have the cojones to skip procedure and get the job done. Everyone’s seen Dirty Harry or  Lt. John McClane. They're American heroes.

The stop of the man with a gun in the parking lot.   “Public safety” justified that. “Public safety?” Did I miss that in law school? I actually looked it up after the hearing. Not in the Fourth Amendment. The term, however, glided off the officer’s tongue.

The Constitution guarantees a collision over our various rights. No one interest is absolute. It’s certainly safer to strip all the handguns from a "high crime" area.  Public safety could justify that. You’d get a big argument from the Second Amendment folks, but I’d bet you’d have less opportunity for violence. Stopping everyone at a DWI roadblock at two in the morning in downtown Austin would make the streets safer. MADD would applaud.  A similar case can be made for profiling, stops of suspicious persons who make furtive movements and endless other hunches and intuitive judgments that suggest possible criminal behavior. We'd probably be safer.

Ultimately, in America, it’s a question of balance. It’s in our genes. We have made the balancing of competing interests our passion. Following a slippery concept like "public safety", has legal consequences-the sawed off shotgun seized in a search of the car in the parking lot winds up getting thrown out. Adherence to the Fourth Amendment preserves our freedom. I’ll have to admit, though, that at times, Inspector Callahan fits the emotional bill. "Pass the popcorn, will ya?”.  

 In  Alvarez v. Smith, ___ U.S. ___,130 S.Ct. 576, 175 L.Ed.2d 447 (2009) the US Supreme Court avoided resolution of the question of how long law enforcement can seize property absent a neutral determination of probable cause for the seizure.  The Court found the issue moot because the underlying property dispute had been resolved.  On a number of occasions I’ve dealt with issues concerning the return of seized property.  In this post I’ll attempt to provide a little insight and a little law about the return of property seized by the police when no forfeiture proceeding has been instituted.

After surveying Texas law on the issue, two things stand out.  1. courts are loathe to get involved in anything that might interfere with a pending criminal matter, be it an actual charge or simply an investigation and 2) statutory relief for the return of seized property exists in limited circumstances under Tex. Code Crim. Pro.  Article 18, when a search warrant results in a seizure and under Article’s 47.01a (when there is no pending criminal action regarding allegedly “stolen property”) and Article 47.02. (post-trial return of allegedly “stolen property”).

Proceedings under Tex. Code Crim. Proc. Art. 47 exclusively involve the return of “allegedly stolen” property but “only if the ownership of the property is contested or disputed”. Judges-district, county, JP or municipal judges, acting as “magistrates”, preside over these hearings. The code provisions do not discuss what constitutes an “allegation” of stolen property-is it merely the officer’s oral statement to the court, or a filing of some sort? This defect invites an attempt to quash the proceeding upon the ground that the state has failed to make a facial showing concerning the “stolen” nature of the property. In any event, remember that a proceeding under Art. 47 is a civil proceeding and your client can be called to testify concerning “ownership”. Obviously, anytime your client can be questioned under oath a potential for great harm exists. Think of Martha Stewart’s unraveling. Before I permit a client to testify concerning ownership of property alleged to be stolen, I’d want to be certain of his or her lack of culpability. Such a high burden of proof might require your client to abandon his effort altogether to recover the property.

At least one appellate court in Texas has recognized the existence of a statutory remedy for the return of property seized under a search warrant. In In re Cornyn, 27 SW3d 327 (1^stDist.-Houston 2000) the First Court of Appeals identified Articles 18.12 & 18.13 as providing a remedy for both pre-arrest and post-arrest property seizures. According to In re Cornyn, in a search warrant case you can attempt to recover the property in the court that issued the warrant. At least you have a forum, though it’s the court that issued the warrant.

Texas law lacks a statutory counterpart to Federal Rule of Criminal Procedure Rule 41(g) which provides a remedy in Federal cases for the return of seized property in both search warrant and warrantless arrest cases. Rule 41(g) authorizes a hearing concerning the legality of the property seizure in the district in which the property seizure occurred.

A few essential principles emerge from the cases interpreting Rule 41(g). Even though these cases have no direct application under state law they are instructive because they provide numerous factual examples of efforts to return property and the application of legal principles involved.

The general rule is that seized property, other than contraband, should be returned to its rightful owner once the criminal proceedings have been terminated; a request for return of seized property is essentially a civil equitable proceeding but the person seeking return of the property must be prepared to show they are lawfully entitled to possess it. The “owner” bears the burden of proving entitlement.

Aside from the previously mentioned statutory remedies, the common law remedy of replevin, an action under Section 1983 or a hearing on a motion to suppress evidence are the remaining available remedies for the return of seized property.

Attempts to recover property post-trial where no allegation exists that it is contraband, stolen or an instrumentality of a criminal offense, are less problematic. Items seized in connection with a criminal case are often released upon the conclusion of the case. The return of such property can usually be accomplished with a court order or a letter from the prosecutor.

To recap-there are limited statutory opportunities to get property returned-think search warrants and stolen property. Aside from that, maybe a motion to suppress or the filing of an original civil action. Watch out though, because your client will be expected to testify.