Plano DWI Lawyer Blog

A Collin County man was recently arrested by the Wylie Texas police and charged with possessing pepper spray.  He was charged under Texas Penal Code 46.01 with a Third Degree Felony. 

The problem is that the law specfically authorizes citizens to carry a small chemical dispensing device sold commercially for personal protection.  The story ends well in that a Collin County Grand Jury refused to indict the case and issued what's called a No Bill. 

Proving that the Fourth Amendment is not just a myth, the Second Court of Appeals in Fort Worth, Texas issued its opinion on Friday in the case of State of Texas v. Johnston.   

  Johnston was arrested on suspicion of Driving While Intoxicated.  While at the police station her blood was drawn over her objection by two police officers.  Her blood was not drawn at a hospital.  Her blood was not drawn by a nurse.  Her blood was not drawn by someone who had the slightest clue about her medical history or medical issues that may exist.  

Instead her blood was drawn by two policemen at the police station.  The trial court excluded the blood test results as a Fourth Amendment violation.  The Fourth Amendment requires, among other things, that searches be "reasonable."   The Court of Appeals in this case found that the search in this case was not reasonable.  A sensible decision and a victory for the Fourth Amendment.  

I will use this case where appropriate, to seek to exclude the blood test results of my clients in future cases.  Some factors to look for will include, the location of the draw.  Who is performing the draw?  Is that person qualified?   Is the draw conducted pursuant to a stardard operating procedure that is written down?  Does the person performing the draw know anything about my client's medical history or medical conditions. 

I'm not the first to blog about this issue, and it has been fairly well covered both by the by the Collin County Observer as well as by Hunter Biederman, but I wanted to share my perspective because I find the WFAA coverage so misleading. 

For those who are not familiar, WFAA recently broke a story strongly implying that a Collin County prosecutor fixed a case for some unspecified personal benefit; with the after the fact knowledge of her supervisor.  Specfically, the piece indicates that this particular prosecutor (who has since resigned from the Collin County District Attorney's Office); waived a jury, cancelled all the witnesses who could have provided eveidence of guilt,  and intentionally presented no evidence when the case was called for trial, thus ensuring a not guilty verdict. 

The misleading part?  The story would have you believe that this was an airtight case of guilt and the only explanation is that the prosecutor threw the case for some unknwon reason.  The story leads the viewer to conclude that the civilian witnesses were the source for this story and that they came forward because they were so outraged. 

 In fact, the source for the story appears to be a disgruntled former Collin County junior prosecutor who was recently let go by the office.  For weeks prior to the WFAA story, the local attorneys were aware of this particular prosecutor, and that he sent an email to a former law school professor in which he accuses his boss of fixing the very case reported on by WFAA. 

The second aspect of the story that is misleading is the claim that this case was so airtight.  Apparently the disgrunted former junior prosecutor believes so, and that's part of the problem.  He lacks the experience and judgment to know the difference.   WFAA reported the story from this premise based on the facts apparently supplied to them by the disgruntled former prosecutor.  Was it an airtight case?  Well, there are numerous honest reasons why a hardworking honest prosecutor might conduct a no evidence bench trial.  Perhaps the stop of the defendant's motor vehicle was "bad." Maybe the defendant looked great on video or the case was poorly investigated.  Maybe there was some problem in the way in which the breath sample was collected that would have prevented its admission into evidence. 

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