The Bandera County Jail and Justice Center is making it harder to fight a San Antonio DWI, according to the Bandera County Courier.  This new San Antonio branch is striving to set itself apart from the many law enforcement officials who chose not to use blood specimen testing because of its time-sensitive, lengthy process.  Another full County Jail and Justice Center in the San Antonio area cuts back on time spent transporting the DWI suspect, thus cutting back on the time issue associated with the blood specimen.  In efforts to push blood samples for evidence they have made nurses available around the clock, paperwork and forms readily available for the officers, and Magistrates Evans and JP are ready and willing to sign the blood search warrant at any time.

With officers prowling for your blood as evidence in a DWI case, what do you do?

We can only attack the Blood Search Warrant if you stand up for your own Constitutional rights and refuse to give consent for the blood-drawn specimen.  You must get the police to get the blood search warrant in order to give yourself a chance in the the legal battle.  If they do obtain the warrant do not physically fight the blood drawing process — this is a whole new criminal offense called “Resisting a Search.”  You must remember there are a few ways around the warrant, and these you cannot fight: If there is an incident that causes a death or bodily injury causing hospitalization, if there is a passenger under the age of 15, the suspect has a prior conviction for intoxication, and 2 or more DWI, Boating While Intoxicated, Flying WI, or Amusement Ride WI.

If you find yourself in a DWI Blood Search Warrant situation it is important that you remember your rights, stay polite to the officers because they will use the way you behave against you, and contact the best San Antonio DWI attorney, Jamie Balagia.  Working in not only San Antonio but also the surrounding areas, the DWI Dude is dedicated to protecting your constitutional rights.  Call 210-DWI-DUDE (210.394.3833).

TBC

I had a prosecuting attorney turn down my request to conduct a “Trial Before The Court” (TBC) recently.  TBC is basically a trial without a jury.  In a “bench trial” the judge not only decides the law, but also the facts.   My reasons for doing so were primarily due to time.  My client was a college student and could have spent the better part of a week in a jury trial.  Usually, TBC’s will last no longer than a day, sometimes even half a day.   My client had final exams later in the week, so a jury trial was not an option.

In Texas, the state has to “wave” the jury requirement before a TBC can be conducted.  In my case, the state would not waive jury.  The prosecutor stated how the judge was “pro-defense” and they couldn’t  risk it.  To me, what they were essentially saying is they were scared that the judge, in his infinite wisdom, would not “follow the law.”  The judge in any trial is bound to make correct rulings on the law.  However, with a jury trial, we leave it within the province of the jury to accept what the “facts” are, then apply that evidence against what the judge directs the law to be.  With a TBC essentially the judge does both.

To decide if a TBC is in your interest, you must first weigh the jury pool and the potential people on the venire. If a judge has a reputation of being pro-prosecution (an ex prosecutor) then you may want a jury. It can also depend on what the charge is. If you are charged with a serious felony, then the circumstances can differ.  District court judges deal with serious criminal cases every day.  This produces both a familiarity and objectivity that may be lacking in a potential juror.  The judge (should) also be able to properly apply the heavy burden of proof on the state, while some juries simply disregard it.

In this circumstance, the main consideration was for the quickest resolution to the case.  Bench trials are not only quicker, but also less stressful for defendants.  Jury trials usually include a high amount of anxiety and stress on most defendants.   Not many want to be put on display in public, judged by others from the community, questioned by prosecutors, etc.  Thus, a TBC in some cases is more fitting for particular defendants.

I am of the opinion, however, that the state should not be able to bar a defendant from the chance to opt for a TBC.  All of the aforementioned characteristics of a jury trial are not present, and in many cases it is more appropriate.  If the state does not waive jury, I think the judge should be offended.  Because what the prosecutor is ultimately saying is that judge lacks the ability to be fair in applying the law to the facts. 

Furthermore, the accused has the presumption of the innocence and must always be given the benefit of the doubt (hence proof beyond “a reasonable doubt).  Everything must be considered viewed in the best light for the accused.  Therefore, I am of the opinion that if the attorney and the accused both decide it is in their interest to have a judge, and not a jury, decide their fate, I think that decision should always be honored. 

After all, the goal of every prosecutor and the oath taken is to ensure that “justice be done.”  If the prosecutors cannot trust a judge to seek justice above all else, then something is wrong.  However, in cases where the state will not waive jury, I have a suspicion that the prosecutor has forgotten the oath taken and only is thinking in terms on how to best secure a conviction.  This mentality is not what our country was founded on, and is against everything I personally believe in.  I don’t think the state should EVER have the power to block the accused from seeking remedy from a judge, and not the potential vagaries of a jury.  If the state disagrees with this assertion, it seems they should not be prosecuting the case at all.

Carl Ceder – DWI Trial Attorney

Beyond A Reasonable Doubt

“Beyond a Reasonable Doubt” and the “Presumption of Innocence” are terms that every criminal defense attorney is familiar with.  Seminars and legal books revolve completely around how a lawyer should convey the two terms to jury members.

Not too long ago I lost a hard fought trial after over 6 hours of jury deliberation.  Most lawyers wouldn’t announce this fact to the world, much less write a blog about how the jury considered the evidence and the law.  First off, any lawyer who HAS NOT lost a jury trial is either lying, or has not tried enough cases.  If either of these is true, they have not done proper service to their clients.  This was a .15 breath test case in Travis County, and the verdict ultimately centered on the result of the chemical specimen given.

As I wrote previously, the jury spent over 6 hours deliberating over the verdict.  After they came back with a “Guilty” verdict, I polled the jury to help improve my performance for future trials.  The foreman, who happened to be an engineer (who seemed to be very impressed with his knowledge and grasp of the trial, evidence, and the law), told me that right before casting their final ballots, they voted and the results came back 4-2.  Four voted “Guilty” and two voted “Not Guilty.”  After this, they then further considered the evidence and the two “Not Guilty” votes then changed to that dreaded one-word verdict criminal defense attorneys dread to hear.

When I asked how they deliberated, he told me they drew a long straight line on a dry erase board.  He said they then started at the beginning of the line and placed “Guilty” at the start position, and “Not Guilty” at the other end.  He said they then considered the evidence to decide whether there was enough evidence to try and get to the “Not Guilty” portion of the line on the opposite end.  And he said because there was a breath test…they simply couldn’t do it.

I was embarrassed.  As much as I tried to convey how to think about the legal concepts in a criminal trial, I obviously failed.  I take pride in my ability to successfully convey the two concepts and reverberate throughout the trial the importance of each…but I obviously came up short in this trial.  I write this missive because I will NEVER make the same mistake twice every again.  I told him that he thought about it absolutely correctly.  The “line” analogy is fantastic.  HOWEVER…he did it completely backwards.  You should start at “Not Guilty” considering the “Presumption of Innocence”, and then work your way through the evidence to see if you can properly apply the heavy burden of proof of “Beyond a Reasonable Doubt” across the line to test whether the government properly satisfied that burden.  He looked dumbfounded.  He looked like a small toddler who was first learning to spell out a first word.  He proceeded to explain to me again how they thought about the case, and I again told him it was a correct way to think about it…he just applied it incorrectly.  He still looked baffled.

Never again will I make this mistake.  In fact, in voir dire (possibly closing argument)…I will explain this story when the case calls for it and I will make certain this will never happen twice so long as I try a case.

The “Presumption of Innocence” – being considered innocent until proven guilty – is a legal right that the accused in criminal trials has IN EVERY CASE. The burden of proof is thus on the prosecution, which has to collect and present enough compelling evidence to convince the jury that the accused is guilty “Beyond a Reasonable Doubt.” Where the jury has ANY reasonable doubt, the accused is to be acquitted.  This legal concept is derived from the Latin legal principle that ei incumbit probatio qui dicit, non qui negat (the burden of proof rests on who asserts, not on who denies).

What this means is that the government has the burden of proof to prove their case.  Period.  In reality then, the defendant starts completely innocent.  Hence, the foreman should have started at “Not Guilty” at the beginning of his line analogy.  And he should have considered the evidence with the other jurors…and then decided whether using the “Beyond a Reasonable Doubt” analogy the government had proven their case.

In my experience the smarter the juror thinks himself to be, the more likely you need to explain fully how to properly apply the legal concepts the judge asks them to apply.  Sometimes these jurors it seems are very prideful, and often create their own strategies of how to apply something they deem so complex.

What concerned me more, however, was how two jurors shifted their “Not Guilty” votes into a “Guilty” vote.  “Beyond a Reasonable Doubt” is a very heavy burden for the government to meet to prove ANY criminal case.  Any hesitation…ANY reasonable doubt, and the jury must say “Not Guilty.”  It doesn’t necessarily mean that the jury believe the defendant “innocent”…just that they have a reasonable doubt regarding the guilt of the accused.

Thus, I am of the position that if a juror says “Not Guilty” once during deliberations and after hearing all of the evidence…it is impossible for them to then change their vote into a “Guilty” verdict.  This would basically mean that miraculously that reasonable doubt they once had has now somehow been removed.  To me, this is absolutely impossible.  If you have a reasonable doubt once, it is impossible for that doubt to somehow eliminate into oblivion and cease to exist no matter what.

Which brings me to my next point.  What I believe really happened was some of the jurors in this case simply got tired of deliberating and caved in due to pressure.  To me, this is the biggest travesty in our criminal justice system.  I do not have a problem with the person that changes their vote…what I do have a problem with, however, is a person who exerts pressure on another juror when deliberating.  I think this should be an infraction punishable by contempt.

My last trial I received a “Not Guilty” verdict after around 2 hours of jury deliberation.  When polling the jury, the foreman told me the vote was 8-4.  Eight voted “Not Guilty” and four voted “Guilty.”  After reviewing the evidence, the four then changed their votes to “Not Guilty.”  The foreman conveyed to me that this happened when they collectively considered the evidenced, and it was demonstrated and agreed upon that the government failed to meet the very high burden of proof imposed by the law.

I was beeming with pride after being told this.  It seems then that some juries DO know how to properly consider evidence.  As well, I did not let what happened once happen again.

Carl Ceder – Austin DWI Defense Attorney

A local Austin news station has been reporting on a case involving an underage drinker that was involved in a collision that injured an Austin police officer. The summary of the update on that story is the following:

The day after the blood alcohol content of Luis Zuniga was released by APD allegations have already arisen that the teenager was drinking at a local nightclub.  TABC will follow up on the question of whether or not Zuniga was drinking illegally at Club Escapade.  Zuniga has been charged with Aggravated Assault and Intoxicated Assault with Bodily Injury.

APD released a statement that 18-year old Luis Zuniga had a blood alcohol content of .14, almost twice the legal limit in Texas.  A computer search shows that Club Escapade was cited in December 2008 for serving alcohol to an already intoxicated person.  The Club received a written warning for serving alcohol to a minor.

What I find troubling about the story and the case goes beyond an underage, intoxicated driver.  I am also bothered that the Austin Police Department would “over charge” the arrested driver.  If the teenager was intoxicated and someone suffered serious bodily injury then he should be charged with Intoxication Assault only.  By doubling the charges against Zuniga based on the same fact pattern APD is stepping out of bounds from what the legislature set out when they wrote the Intoxication Assault law.

I call this the old “have your cake and eat it too” way of doing things.  It is a lot like District Attorneys that overcharge someone or charge a higher level of crime than was actually was committed.  Then the defendant is given the opportunity to plead guilty to the correct lower level charge in order to avoid a conviction on the higher charge.  Sometimes this is done in order to set a very high bond in order to bleed finances from the person in order to prevent them from having money to hire an attorney.

Regardless, the proper charge in this matter is Intoxication Assault and then the question for the jury is; can the State prove the case beyond a reasonable doubt?

I received this message on my DWI website contact page today and wanted to respond and to share it.

Sir, As I read your words from above I thought that you deserved a response since you took the time to write it.  Evidently you are upset with some circumstances that have occurred in your life that got triggered by my advertising.  I did not intend to make you feel uncomfortable but I also stand by my advertising position.  When I was a cop I understood that my credibility was always at issue when I made an arrest and I never had a problem with standing up and defending an arrest.  Citizens and jurors should know that police officers stand to make additional money when they make DWI arrests.  Some officers have doubled and others have tripled their salary with DWI overtime while working with the Austin and San Antonio Police Departments.

And I don’t “take” money from my clients I – I earn it and so does my excellent staff and associate attorneys.  We all work very hard to do the best job possible in a very difficult situation.  We have people that think just like you trying to get on DWI juries so they can convict a fellow citizen.  They aren’t concerned about justice or fairness but only try to punish while turning a blind eye to the American justice system.  If you don’t like the Constitution you should try to legislatively abolish it but don’t ridicule it with your “everybody the police arrest is guilty” attitude.

I also question whether or not you respect the decision of any jury that would return a verdict of Not Guilty.  Jurors that honor the “Presumption of Innocence” and find that the State did not meet the burden of “Guilty Beyond a Reasonable Doubt” must return a verdict of Not Guilty.  They are true Americans that are honoring their oath and they should be given respect and honor back.

You and I are both aware of the great number of citizens that have been freed from prison after spending many years there after a wrongful conviction.  I hope you are never wrongfully arrested but if it ever happens I hope you are fortunate enough to hire a firm like mine that will earn your money, do the best job possible under the circumstances, stand up for your Constitutional  Rights and do their very best to capture a Not Guilty verdict on your behalf.

I am posting this email on my website without disclosing your name, email address or phone number so that you don’t receive unwanted comments.  May God bless you and allow you to accept this email with the spirit of peace that I write it with.

Jamie Balagia - DWI Trial Attorney

Austin Police Officer Sgt. Kevin Leverenz receives his promotion and lost wages as ruled on by Arbitrator Chuck Miller of Austin.  It was ruled that Chief Art Acevedo wrongly withheld the promotion. Read the full story.

Once again the Austin Police Department has trampled the Texas and U.S. Constitutions by conducting their “no refusal” DWI program.  The program was run on Saturday night and on Fat Tuesday.  A total of 41 persons were arrested for DWI on those two nights.  I believe that this shows the tendency for the DWI officers to arrest persons that are not actually intoxicated.

When you consider all the “hoopla” that the department goes through in order to advertise and promote this program it is not too hard to imagine the officers pushing the envelope to make an arrest.  It is also disappointing to see how the press is quick to support the program and to report the number of persons that were arrested for driving while intoxicated.  None of those arrested have been proven to be intoxicated.  All of those arrested are presumed innocent until proven guilty.

I am reminded of the forensic laboratories that have been exposed for mishandling breath and blood samples.   Thousands of Texas DWI cases have been tossed due to this type of miscarriage of justice by our law enforcement officials.  And it is quite unsettling to see the hype that is given to this program.  I question why our news organizations don’t confront the police for circumventing the Texas statutes which provide for sanctions when drivers refuse to provide a breath sample.

‘no refusal’ Fat Tuesday results in 20 DWI arrests by APD

Austin Police officers arrested 20 Austin drivers for DWI after the Mardi Gras celebrations on Fat Tuesday evening. The DWI arrests resulted from another ‘no refusal’ program where officers drew blood from any of the suspected drunk drivers who initially refused to provide a breath test. Four of the drivers agreed to take the breath test while the remaining 16 had the forced blood draws.  This followed the 21 arrests for DWI on Saturday night when the “no refusal’ program was also conducted.

Jamie Balagia – DWI Trial Attorney

The following DWI story, if correct, describes one of the ingredients in the mix that is fueling the assault on drivers’ rights in Central Texas.  The horrible drunk driving accident detailed below is the result of an individual mixing prescription medication with a lethal dose of alcohol.  Lethal because it was twice the legal limit and it contributed, if not caused, a deadly collision that killed four people.  If the blood test result is accurate then there is no excuse for any citizen to drive after consuming the amount of alcohol to put them at the 0.16 BAC level.

Just as sad is the resulting damage to the surviving members injured in the vehicles that were struck by the drunk driver.  And then there are the family members that will miss the holidays, birthdays, family celebrations and all the other events that the dead can no longer attend.  And what about the family and friends of the driver who never expected that he would cause such pain and suffering through his actions.  And yet, Luke Anthony Looschen never intended the results of the accident he caused on that saddest of days.

I am concerned in cases like this because the law enforcement officials and MADD will wave it like a banner to support forcing DWI Roadblocks and DWI Checkpoints on the rest of us.  We have to realize that the DWI Checkpoint would have to be just prior to the location of the collision to have helped in this case.  They will also use this case to argue for increased DWI Task Force units to arrest non-intoxicated drivers for having the odor on an alcoholic beverage on their breath.  We can’t put up DWI Roadblocks at every intersection or the DWI Taskforce units on every street.

I am convinced that this is another example of an isolated but tragic incident that these types of enforcement efforts have no impact on.  I don’t have a solution for the problem that caused this horrific story but I fear for the majority of the citizens that don’t engage in this type of behavior.  And I am concerned for the people that will be wrongfully arrested because of the over the top reaction to this case.

Man pleads guilty to intoxication manslaughter

A Georgetown man pleaded guilty to four counts of intoxication manslaughter, admitting guilt in causing a collision that killed four people and injured two others.

Luke Anthony Looschen, 48, entered his plea before District Judge Burt Carnes in a Williamson County courtroom.  “Mr. Looschen has acknowledged his guilt from the get-go on this and he felt the proper thing to do was to plead guilty,” his attorney said.

Family members of the victims wept in the courtroom as Looschen entered his plea. After the wreck, the arresting officer said that he “could smell the strong odor of metabolized alcohol from Looschen.” Looschen admitted that he’d been drinking and had taken anti-depressants and pain killers.

Blood test results showed a blood alcohol content level was .16, or twice the legal limit of .08, according to the police report.

Jamie Balagia – DWI Trial Attorney

Father who left son in van indicted

A Williamson County grand jury Tuesday indicted on two felony counts the father of an 18-month-old boy who was forgotten in the family’s mini-van and died after nearly six hours in the August heat.

This newsflash brought back memories of a case I handled in Williamson County a few years back.  My client was in his bedroom when a lamp fell over and caught an egg crate mattress on fire in his twin daughters’ bedroom.  The home did not have properly working fire detectors and the girls were too young to escape the fire.  By the time my client became aware of the fire both girls had died.  The intensity of the fire was overwhelming that there was nothing he could do but watch as the fire consumed his darling daughters.

Williamson County has been known to take an extreme position on cases involving injury or death to children.  District Attorney John Bradley is consistent in this protective position but he does take the time to listen to well reasoned arguments for mitigation.  In our case we had to bring in family members, co-workers, friends and loved ones to show who our client was outside of this tragedy.

After many court appearances and some of the toughest plea negotiations I have been involved in a settlement was reached in the criminal case.  I was able to obtain a probationary sentence that kept my client from what at one point looked like a certain prison sentence.  We worked some conditions into the plea that may help prevent tragedies like this from being repeated.

The lesson to be learned from tragic cases like these is that the defense attorney hired in the case must be prepared to think outside the box.  The defense must be prepared to face the dire consequences of the accident, accept responsibility for the actions or inactions of the client and present the best evidence available to reveal a rounded picture of the real personality of the person represented.

Jamie Balagia -DWI Trial Attorney

The Austin Police Department arrest 18 for Driving While Intoxicated on Super Bowl Sunday.  This was a No Refusal day from 9:00 p.m. to 5:00 a.m.  If you refused to provide a blood sample APD got a blood warrant.  This is just another example of the Austin Police Department violating your civil rights.  Read the full story.