Only Results Matter

PoliceMustang-1-300x169However, this is not the case with a Grayson County, Texas DWI.   Grayson County District Attorney Joe Brown has a strict policy of no alternative charges for DWI, and I have never seen him give a public intoxication or an obstruction of highway/passageway on a local driving while intoxicated charge.   He would rather let a jury decide your fate than do this, which is why it is very important to hire a real DWI trial lawyer immediately if you have been arrested.    The only way your case is going to “go away” without a finding of guilt on a DWI is for it to be dismissed, which is rare and is normally in the circumstances of a bad stop or arrest (brought up by a good suppression motion), or because your chemical blood alcohol test came out very well for you.   Or, if you have prior military service and are admitted and complete Veterans court, you can obtain a pretrial diversion.  Pretrial diversion is similar to probation but contractual, and only upon completion of the contract terms will your case be dismissed.

So, if you have been arrested for driving while intoxicated in Grayson County, Texas, you need to hire a lawyer and get ready to fight.   It is still very important to hire a lawyer with 15-days of arrest so that they can get your administrative license revocation request to DPS.  This has to be done within 15 days of arrest, or within 20 days of receiving a notice of suspension in the mail. This request will keep your license valid until a contested ALR hearing in front of an administrative judge.   This hearing is limited to whether there was a valid reason to stop and arrest you for DWI, and if you failed a chemical test if you consented to it.   It is a hearing that should only be attended by your attorney, because it is civil in nature and you can be called as a witness.  You can invoke your 5th Amendment privilege against testifying at this hearing, but it can be held against you as to the answers to the questions posed.   These hearings have become harder to win since 2009, as the legislature has continuously eliminated many statutory rights of Respondents at these hearings.  But, they are still winnable if handled correctly, and are an important reason to hire a seasoned DWI lawyer immediately.

Cuffed-300x226 I haven’t written a DWI blog in a bit, so I think it is time to do an update.  Grayson County, Texas is a particularly strict jurisdiction when it comes to driving while intoxicated, but there are still ways to have a better case and a better result in your case.  Joe Brown, the elected Grayson County District Attorney, ran on a platform of strict DWI enforcement back in 2000 and got elected.  So, he pays particular importance to DWI cases.   But since I began practicing in 2005, I have seen some small shifts (and improvements) in the ways that driving while intoxicated is enforced in this and neighboring counties.

If you are arrested for a Texas DWI in many small counties, you can ask for a “reduced” or alternative charge and sometimes get one.   There is technically no lesser included offense to first time driving while intoxicated, and the lesser included offenses to DWI2nd or DWI3rd are just that you have a fewer number of prior convictions.  Class C (traffic ticket level) public intoxication is not a lesser included offense of driving while intoxicated, because public intoxication requires you be so intoxicated as to be a danger to yourself or others.   Obstructing a highway/passageway is another misdemeanor that we try to alternatively get as DWI defenders, because it is not a DWI conviction.   Thus, it does not normally carry the heavy $1000-2000 a year surcharge for three years on your driver’s license, nor require all the conditions of probations as driving while intoxicated.  In many small counties, you can successfully shoot for one of these two charges if your DWI is a close case and in other circumstances.

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We cannot shut our eyes to the fact that, had the petitioner attempted to violate Proclamation No. 4 and leave the military area in which he lived, he would have been arrested and tried and convicted for violation of Proclamation No. 4. The two conflicting orders, one which commanded him to stay and the other which commanded him to go, were nothing but a cleverly devised trap to accomplish the real purpose of the military authority, which was to lock him up in a concentration camp. The only course by which the petitioner could avoid arrest and prosecution was to go to that camp according to instructions to be given him when he reported at a Civil Control Center. We know that is the fact. Why should we set up a figmentary and artificial situation, instead of addressing ourselves to the actualities of the case?

These stark realities are met by the suggestion that it is lawful to compel an American citizen to submit to illegal imprisonment on the assumption that he might, after going to the Assembly Center, apply for his discharge by suing out a writ of habeas corpus, as was done in the Endo case, supra. The answer, of course, is that, where he was subject to two conflicting laws, he was not bound, in order to escape violation of one or the other, to surrender his liberty for any period. Nor will it do to say that the detention was a necessary part of the process of evacuation, and so we are here concerned only with the validity of the latter.

Again, it is a new doctrine of constitutional law that one indicted for disobedience to an unconstitutional statute may not defend on the ground of the invalidity of the statute, but must obey it though he knows it is no law, and, after he has suffered the disgrace of conviction and lost his liberty by sentence, then, and not before, seek, from within prison walls, to test the validity of the law.

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In the dilemma that he dare not remain in his home, or voluntarily leave the area, without incurring criminal penalties, and that the only way he could avoid punishment was to go to an Assembly Center and submit himself to military imprisonment, the petitioner did nothing.

June 12, 1942, an Information was filed in the District Court for Northern California charging a violation of the Act of March 21, 1942, in that petitioner had knowingly remained within the area covered by Exclusion Order No. 34. A demurrer to the information having been overruled, the petitioner was tried under a plea of not guilty, and convicted. Sentence was suspended, and he was placed on probation for five years. We know, however, in the light of the foregoing recitation, that he was at once taken into military custody and lodged in an Assembly Center. We further know that, on March 18, 1942, the President had promulgated Executive Order No. 9102, [n7] establishing the War Relocation Authority under which so-called Relocation Centers, a euphemism for concentration camps, were established pursuant to cooperation between the military authorities of the Western Defense Command and the Relocation Authority, and that the petitioner has been confined either in an Assembly Center within the zone in which he had lived or has been removed to a Relocation Center where, as the facts disclosed in Ex parte Endo (post, p. 283) demonstrate, he was illegally held in custody.

The Government has argued this case as if the only order outstanding at the time the petitioner was arrested and informed against was Exclusion Order No. 34, ordering him to leave the area in which he resided, which was the basis of the information against him. That argument has evidently been effective. The opinion refers to the Hirabayashi case, supra, to show that this court has sustained the validity of a curfew order in an emergency. The argument, then, is that exclusion from a given area of danger, while somewhat more sweeping than a curfew regulation, is of the same nature — a temporary expedient made necessary by a sudden emergency. This, I think, is a substitution of an hypothetical case for the case actually before the court. I might agree with the court’s disposition of the hypothetical case. [n8] The liberty of every American citizen freely to come and to go must frequently, in the face of sudden danger, be temporarily limited or suspended. The civil authorities must often resort to the expedient of excluding citizens temporarily from a locality. The drawing of fire lines in the case of a conflagration, the removal of persons from the area where a pestilence has broken out, are familiar examples. If the exclusion worked by Exclusion Order No. 34 were of that nature, the Hirabayashi case would be authority for sustaining it. [p232] But the facts above recited, and those set forth in Ex parte Endo, supra, show that the exclusion was but a part of an over-all plan for forceable detention. This case cannot, therefore, be decided on any such narrow ground as the possible validity of a Temporary Exclusion Order under which the residents of an area are given an opportunity to leave and go elsewhere in their native land outside the boundaries of a military area. To make the case turn on any such assumption is to shut our eyes to reality.

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On March 2, 1942, the petitioner, therefore, had notice that, by Executive Order, the President, to prevent espionage and sabotage, had authorized the Military to exclude him from certain areas and to prevent his entering or leaving certain areas without permission. He was on notice that his home city had been included, by Military Order, in Area No. 1, and he was on notice further that, at sometime in the future, the Military Commander would make an order for the exclusion of certain persons, not described or classified, from various zones including that, in which he lived.

March 21, 1942, Congress enacted [n3] that anyone who knowingly

shall enter, remain in, leave, or commit any act in any military area or military zone prescribed . . . by any military commander . . . contrary to the restrictions applicable to any such area or zone or contrary to the order of . . . any such military commander

subpoena-232x300All of this considered, as a practical matter an attorney should get a release from the client and obtain certified admissible paper records of all such witnesses in the ongoing fight.  Agencies can be very courteous in getting you these documents as they know it helps them stay out of Court and live testimony.  Sometimes there are even strategic reasons that the records are better than a live witness.  If a Court rules that a witness is unavailable for a state subpoena, the evidence can come in as government records, business records, and other possible hearsay exceptions.

However, Touhy and its progeny cut against the fundamental right of criminal defendants to compel the attendance of all witnesses necessary for their defense.   We as criminal practitioners should continue to litigate and attack the Touhy doctrine and get courts to narrowly define it according to its original holding.

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As noted by the United States District Court Southern District of Mississippi:

Touhy’s rationale was undermined by a decision rendered by the Supreme Court two years later, in which it considered a claim of governmental privilege and noted, “Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.” United States v. Reynolds, 345 U.S. 1, 9-10 (1953). Touhy’s holding was further weakened by a 1958 amendment to the Housekeeping Statute, which added the language, “This section does not authorize withholding information from the public or limiting the availability of records to the public.”  Blanks v. Lockheed Martin Corp., 2006 WL 1892512 (S. D. Miss. 2006).

A defendant generally has a Sixth Amendment right to compel and present a material witness’s live testimony.  As the Supreme Court stated in Washington v. Texas:

Department-of-Veterans-Affairs-logo-300x150     In Forgione v. HCA, Inc. 954 F.Supp.2d 1349 (N. D. Florida 2013), the Government made an unfounded argument that state employees and agents could also be Federal employees for purposes of 28 U.S.C. section 1442.  The Court for purposes of the question at bar stated:

Right to control is the classic factor in determining who is an employee when that question is in doubt. See, e.g., Langfitt v. Fed. Marine Terminals, Inc., 647 F.3d 1116, 1121 (11th Cir.2011) (“The essence of the common law’s test for whether an agent is an employee or an independent contractor is the control of details; that is, whether the principal has the right to control the manner and means by which the agent accomplishes the work.”); see also, e.g., N.L.R.B. v. Steinberg, 182 F.2d 850, 857 (5th Cir.1950)

The statute at play is the housekeeping statute at 5 U.S.C. section 301:

fbi You may be reading this because you received a Touhy letter from the Department of Veterans Affairs, Social Security or another federal agency that does not want to comply with your state-court subpoena.   They are citing the Supreme Court’s Decision in Touhy, where the Court stated that the Federal housekeeping statute prohibited an FBI agent from being compelled by subpoena and contempt into bringing in his testimony and agency documents to testify regarding a state inmate’s claims.  See Touhy v. Ragen, 340 U.S. 462.

There are several ways to both attack this request while and attempt to get your witness in Court.  First and foremost, you should write a letter to the head of the agency requesting the witness, and they can consent to his appearance.   Next, get a copy of the agency’s regulations to see if the witness meets the definition of “employee” under the regulations and the Housekeeping Statute.  If all else fails, you will most likely end up in a United States District Court to review how Touhy applies to your particular fact situation.   Remember that Touhy involved a full-time FBI agent and his records of investigation.   The further we get from that, the more likely the witness should be amenable to a state-court subpoena.