FOOT SOLDIER OF THE CONSTITUTION.

It becomes a game of definitions rather quickly. The Constitution codifies rights given to the individual. How those are expressed becomes is a game of cat and mouse with law enforcement.   Your constitutional right are expressed in written document sitting somewhere in Washington DC and or Austin, Texas.  They are just words on a piece of paper.  The prosecutors represent the State of Texas and since I started practicing in 1995, I have never seen a prosecutor come to me and say “Law Enforcement violated your client’s constitution rights, I am dismissing the case.  I have never seen a judge on his own initiative raise constitution rights of individuals.  The only person in the entire judicial system who stands up and gives words in the constitution meaning are the defense attorneys.  In effect, I and other defense attorneys are FOOT SOLDIER OF THE CONSTITUTION.

sign from conroe texas about no refusal weekends.
DWI arrest Montgomery county

Let’s Talk About One of the Most Important Rights Defense Attorneys Can Raise!

 

The 4th amendment states clearly that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. “ So in order for anything to be subject to a warrant, a process called search and seizure must be activated but the suspicion, that’s  why police automatically conduct a field sobriety test BEFORE administering any  blood demands.

 

This is how the 4th Amendment Applies Breath and Blood Test:

In Texas, your drivers license is has some relationships between rights and responsibilities, in-that when you agree to the license, you agree to giving samples of breath and blood to be tested which provide checks and balances to the requirement of operating without prohibited substances are being met. However, a person may still refuse under the Fourth Amendment. Refusing to take a test, is what is known as a  “statutory option to refuse”  special conditions about demanding a sample exist  but ONLY in special circumstances including but not limited to DWI related accidents also have conditions that modify the refusal. 

In the past, if you refused to blow or give blood, your drivers license was automatically suspended (remember it’s a privilege to drive not a right.) Enter “no refusal” weekends stage right.   No refusal weekends are a bit of a misleading term in that you can still initially refuse the request of an officer for submission to the test; however, on this weekend law enforcement will be sitting by the phone with a direct line to the Judge who’s only responsibility at the time will be to issue such warrants.  Once that warrant has been issued, they can physically force the blood draw.  However, these procedures are highly scrutinized and an experienced lawyer can potentially keep the test and the results from being admitted under the right circumstances because the police and the procedures used violated your Fourth Amendment Rights.

blood warrant Montgomery county layer

Regardless of breath blood or initial refusal provisional rights to a drivers license might exist,  so its generally a good idea to get a free consultation  from an  experienced  Montgomery county lawyer that knows  DWI laws that can help you know your options.

Interview with city council position 4 runoff candidate Raymond McDonald

Raymond McDonald, was nice enough to meet with us last week and answer some questions we have about his city council runoff bid candidacy.

 

Ray thanks for meeting with us, it’s been an intense election season, can you tell us more about the reasons you wanted to be on city council? Why would you put your self into this arena, It’s a lot of work?

Yes, it is a lot of work, and I have been ask this question quiet often since I stepped into the arena. I have known for some time that I would be running for city council, I just wasn’t sure when that might be. Two years ago I was sitting at the Lone Star Convention Forum with my friend and it was then that I knew I would be running. I met with a “coach” for the year preceding the election in order to prepare my schedule, my life, and my family for the run. Since moving to Conroe in 2000 we have seen our city grow and we have seen our family grow, as we adopted 8 children to go with our 3 older. I also planted a church in the Uptown District (North of Downtown) and found myself becoming very involved with the city, participating in the parades and such, as well as becoming keenly interested and aware of in and of the issues our growing city is facing. I think my love for this city, my desire to see my 11 children and 5 grandchildren all live and grow up here, fueled my desire to engage in a more prominent way. I also felt my previous background in construction, engineering as well as dealing with people and their issues, gave me a good base to work from.

What do you see as the biggest obstacles for the city in the next 10 years?

 How we will handle explosive growth while retaining the livability and historic feel of our city. We will also have to deal with our “sprawl” which has come with aggressive annexation, and its challenges in regard our Fire and Police.

We’re building and our little city and seeing unprecedented growth, do you have a plan regarding the aging infrastructure?

 As I attend our city meetings, the City Council Workshops, CIDC, etc., I do feel we are ardently engaging these issues. So awareness is the first step and I think the City is there, however funding becomes challenge. So we must continue to be attractive to new businesses and new families even while we seek to supplement our budget through grants and state funding.

Any big legislative changes planned for your term?

 None in particular, having said that, I am very concerned, as are others, with the spiraling cost of water here in our city. I also stand strong with Texas legislature which is dissuading even prohibiting, in certain counties, forced place annexation.

What are the city’s untapped resources you plan on growing?

I see our Downtown as an unfinished jewel.  I hope we can continue to develop it as a destination spot for our city.  I also feel our arts, visual and performing, are just waiting for their season to explode onto the national scene.

To learn more about Raymond McDonald visit his website at http://www.pickraymond.com

11 Ways lawyers can beat DWI charges

1. No Probable Cause for the Traffic Stop

The officer must to have probable cause that a crime has been committed to pull you over, a complete and through review of the body cam and car cam videos is the first place to start, if it can be proven that there was no reason to stop you, a good lawyer can normally get the case thrown out.

You can’t be pulled over for being on the road at “bar closing time” and expect that to be reason enough to pull someone over and have that stand up in court.

2. Faulty Breath Tests

The DUI breath tests have many flaws. These tests are subject to some of the following problems:

A. Improper use by the police
B. Physiological Conditions (gastroesophageal reflux disease aka GERD)
C. Instrument Malfunction
D. Failure to observe the defendant prior to the test.

Breath testing is the most common test, but its not always accurate, calling into question the accuracy of the reading is a common legal (and reasonable) defense. Breath testing is subject to many outside issues that can generate erroneous readings.

3. Mouth Alcohol

The phrase ” alveolar air” is something not talked about much until the subject of breath test. Breath test are designed to take air from deep within the lungs, officers have instructions to make someone blow hard into the collection tube,  and this poses problems for accuracy if you have:

A. Dental work trapped small amounts of alcohol-soaked food in your teeth,
B. You burped or regurgitated, or
C. You suffer from acid reflux, heartburn, or GERD.

If the breath test captures “mouth air” rather than simply “lung air.” As a result, mouth alcohol can trigger a false BAC reading on a  DUI breath test.

4. Medical Conditions

Medical issues such as  heartburn or acid reflux, can contaminate DUI breath test results. . This is because these conditions produce a flow of acid that travels from the stomach into the mouth. When this occurs during a DUI breath test or just prior, the alcohol that travels from your stomach to your mouth disguises the deep lung air that the breath testing instrument is intended to measure. As a result, GERD, acid reflux, and/or heartburn can cause a falsely high blood alcohol calculation on a Montgomery county DUI breath test.

5. Diet

Conditions such as diabetes or an Atkins-style diet that is low-carbohydrate, high-protein, or hypoglycemia can trick a DUI breath test and result in a false high BAC.

Atkins-style diets and medical conditions such as diabetes and hypoglycemia are capable of self-producing isopropyl alcohol. This is because bodies that are deprived of carbohydrates turn to stored fat for energy. This process produces ketones. Ketones, when eliminated from the body through breath and urine, convert into isopropyl alcohol. Breath testing equipment, isn’t sophisticated enough to tell the difference in ethyl alcohol and isopropyl alcohol causing false positives.

6. “Rising Blood Alcohol”

Rising blood alcohol means that your BAC was a higher level when you took the test than it was when you were actually driving.

Alcohol takes a certain amount of time, typically between 50 minutes and three hours, to absorb into your system. For example, if you had just recently finished drinking and were investigated for DUI shortly thereafter your alcohol may not have reached its peak absorption rate. When this is the case, your blood alcohol level is still rising, which can cause a false high DUI BAC result.

7. Montgomery County DUI Blood Testing Isn’t Always Accurate

There are multiple factors that could taint the results of your DUI blood test results:

A. Blood fermentation,
B. Blood contamination, and
C. Improper storage of your blood sample.

These are just a few of the reasons why a blood tests result might not be accurate. Depending on the circumstances surrounding the collection and storage of your DUI blood test, your Montgomery county  DUI defense lawyer may be able to have your BAC results excluded from evidence.

8. Field Sobriety Tests Are Not Accurate.

Texas field sobriety tests (“FSTs”) are not accurate indicators of impairment.

Even the most reliable  field sobriety tests aren’t accurate indicators of alcohol and/or drug impairment. The three tests that have actual data to support their trustworthiness are only between 60% – 70% accurate at detecting impairment and that is only if they are properly administered and accurately scored, which rarely happens.

Innocent explanations can also explain poor performance on FSTs. These include:

A. officer-induced intimidation,
B. poor lighting,
C. bad weather conditions,
D. uneven surface conditions,
E. poor footwear, and
F. un-athletic or uncoordinated driver

9. You Were Not Driving

The police must prove more than just that you were under the influence; they must also prove that you were driving.

For example, if you were involved in an accident and no one saw you driving the car, or if the police found you when you were in your parked car, it will be more difficult for the prosecution to prove that you drove. If the prosecutor can’t prove that you were driving, you can’t be convicted of a Texas DUI.

10. Radio Frequency Interference (RFI)

Radio frequency interference or”RFI” can cause a Texas DUI chemical blood or breath test to produce an false BAC reading. This is because almost all electronic devices, are susceptible to electromagnetic interference.

Poliece departments keep a cache of devices producing these power electromagnetic forces, all capable of producing interference,

The prosecution may counter this attack in a Conroe DUI trial by pointing out that the machine has an RFI detector. The problem with these detectors is that they are simply unreliable. As repeated tests have demonstrated, there is a segment of the frequency band to which the detector is essentially blind. If there is a source of interference from a device emitting electromagnetic waves in this frequency range, it will not be detected.

11. Police Misconduct

Even if you were driving under the influence police misconduct might be a reason to get your charges dismissed. If we can demonstrate gross misconduct, it may be possible to get your charges dismissed.

 Things to look for

A. DUI police reports must be accurate,
B. Courtroom testimony must be truthful.

If these issued are intentionally manipulated, intentionally ignored or evidence planted or fictitiously made up, the case might be dismissed depending on how it damages the prosecutors case.

ca

Read more at https://conroelawoffice.com/dwi/

And click below to read the latest from research regarding breathalyzers.

Researchers say a breathalyzer has flaws, casting doubt on countless convictions from gadgets

 

 

How does marijuana technically work to get you high?

“How does marijuana technically work to get you high?

This topic is more misunderstood than understood, how complicated can it be right? puff puff pass seems pretty simple.

To fully understand whats going on, we need to understand ” tetrahydrocannabinol” the main ingredient in Marijuana that makes you high. When you smoke a joint, the smoke goes into your lungs then to the  heart and  blood stream disseminated to the body, including the brain.

Once it’s in your brain, the THC activates special receptors called Cannabinoid receptors and gives you the feeling of being high. In short, marijuana changes the physical and chemical balance in your brain and this is what people refer to as a “high.”

 

The law of conservation states loosely that no matter if the state of the substance- solid, liquid or gas, it will weigh the same regardless of state.  Technically if you smoke a gram of marijuana, you are putting a gram of smoke in your lungs at potentially 20-40% THC that’s .2 to.4 active THC in your blood stream. It produces an powerful uneven balance that acts on the brain, and produces the high.

While marijuana is decriminalized in some states, it is not risk free.  Research has shown that specifically  the developing mind (a mind younger than 25) seems to lose its brilliance when consuming marijuana recreational.

Most of the research quoted about the benefits of marijuana are not directly related to THC but an associated chemical called CBD, marijuana users are well advised to inform them self of the risks involved, as much of the data involving the benefits of THC are anecdotal and not science and even court cases involving the benefits are generally quoting the benefits of CBD.

 

And Interview with full-length interview with Dr. Phyllis Bonafice, MD in neuropsychiatry. https://www.youtube.com/watch?v=W_i2mC5fAmI

 

Step parent adoption

Whats involved with a step parent adoption in Texas?

 

Montgomery county adoption atttorney
Montgomery county adoption lawyer
 
A step child adoption can be a unique circumstance, in many ways it’s a positive experience for a child as normally the young one has already had to overcome rejection or abandonment from one parent.
 
In our experience, there exist no better way to bring a new family together than a legal step parent adoption. The legalities are, that certain procedures must be followed, so the assistance of an experienced adoption attorney who has successfully completed a step parent adoption is a wise. 
 
 

What Is Step-parent Adoption?

 

The spouse of the parent petitions the court to obtain legal parental rights and responsibilities to the children through the adoption process. Most attorneys who handle these types of cases agree that its similar to a traditional adoption, with a few exceptions, namely that step parent adoptions are only permissible under certain circumstances.

Step parent adoptions, must meet one of the following criteria- absent parent, deceased parent, unknown parent, or indifferent parent not involved in the child’s life.  The child must be in the custody of the parent to whom the petitioning stepparent is now married. If these conditions are applicable, it is possible to petition for a stepparent adoption.

Stepchild Adoption Process in Texas

  • Petition Filing – As with any adoption process, stepparent adoption begins with filing a petition to adopt with the local family court. This is generally done through the guidance of capable adoption attorneys who can assist the parties through the entire process.

  • Termination of Parental Rights – Once an adoption request has been filed, the adoption attorney can move on to the next step that involves obtaining a termination of parental rights from the absent parent, if one is known and alive. It is a formal request asking that other parent to sign an agreement to terminate their parental rights so the stepparent adoption can be done. If the absent parent refuses, the case moves to the court. There a judge will determine if it is in the best interest of the children involved for the parental rights of the other parent to be terminated.

  • Social Study – If the above action is determined to be in the best interest of the children, the petition can progress to the next step. It involves a social study of the prospective family that includes: visiting the home; evaluation of employment and financial records; observations, and and an initial screening with the parents and children. All of this is used to help judge the situation and determine the fitness of a stepparent to adopt stepchildren.

  • Amicus Attorney – After the social study, an Amicus Attorney is appointed. The role of the Amicus Attorney is to serve as a non-biased lawyer appointed by the court who will repeat some of the previous evaluations, especially interviews and observations, to determine if the specific situation is best for the individual child or children and the family. Their opinion, along with the results of the social study, is then presented to the court with a recommendation of whether or not to allow the adoption to be finalized.

The court will carefully review so even in step parent   adoption petitions, a committed attorney  attorney can help a petitioning stepparent prepare a favorable petition and offer legal advice on how to negotiate the legal system.
 
The process can be time consuming and expensive, but the end result is a complete and legal family unit.

Lemon Laws

Lemon laws.

When can I use the Texas Lemon Law? The Texas DMV website says.
If you have purchased or leased a new motor vehicle and it develops a defect or condition that substantially impairs the motor vehicle’s use, market value or safety, you may be eligible for relief under the Texas Lemon Law. You are required to allow the manufacturer a reasonable opportunity to repair the defect(s) before you may file a complaint for lemon law relief. There is a $35 filing fee required with the submission of the Lemon Law complaint form. The number of reasonable attempts to repair the defect(s) may vary based upon the defect’s effect on the normal operation of the motor vehicle.

How many “reasonable attempts” to repair a defect is the manufacturer allowed?
One way to show the dealer has had a reasonable number of attempts to fix a defect is to pass one of the following tests. Mileage requirements in the tests do not apply to travel trailers.

The Four Times Test
You pass this test if you have taken your vehicle to the dealership for repair

Four (4) times for the same defect(s) within the first two years or 24,000 miles, whichever comes first; and
the problem continues to exist.
The Serious Safety Hazard Test
A serious safety hazard is a life-threatening malfunction that substantially impedes your ability to control or operate the vehicle normally, or that creates a substantial risk of fire or explosion. You pass this test if you have taken your vehicle to the dealership two or more times for the repair of a serious safety hazard

during first two years or 24,000 miles, whichever comes first, and
the problem continues to exist.
The 30 Day Test
If your new vehicle has been out of service for repair due to a defect(s) that substantially impairs the use or market value of the vehicle due to defects covered by the warranty for a total of 30 or more days during the first 24 months or 24,000 miles, and the problem still exists. If no comparable loaner vehicle was provided to you by the dealer during this time period, you pass the test.

It is advisable to contact the Lemon Law Section of the Texas Department of Motor Vehicles (TxDMV) for more specific information and assistance at (888) 368-4689.

What motor vehicles are eligible?
Cars, trucks, motorcycles, motor homes and all-terrain vehicles are covered, as well as demonstrator vehicles that develop problems covered by a manufacturer’s written warranty. Travel trailers must be titled and registered in Texas to be eligible.

Are used motor vehicles covered?
Your used vehicle may be covered under current state laws. Texas laws related to warranty performance may cover your vehicle if your used vehicle is still covered by the manufacturer’s original warranty (not an extended service contract), or if the problem started and was reported to the dealer while under the manufacturer’s original warranty and it continues to exist, repair assistance of the warranty-related problem may be available to you.

lemon laws Conroe Texas
Montgomery county attorney

Concealed carry reciprocity: H.B. 38

On December 6th, 2017, the US House of Representatives passed HB 38 – Concealed Carry Reciprocity Act of 2017.

2017 was the heaviest year for mass shootings in the great United States’s long history, coming in at 307 gun deaths for the year, So it’s great news that our legislature has taken steps to allow Concealed Carry permits from one state to be honored in another state.  Make sure you know the state you are traveling to has similar laws respecting Texas’s Concealed Carry reciprocity.

Its a bit of a mystifying problem. Honestly, we want states’ rights. but would it be a tad ridiculous to apply for a new drivers’ licence at every state you entered? Since the Constitution protects gun possession, this is a Federal issue. For those liberties of Concealed Carry, we are waving and chanting  “bon voyage” as this bill enters the Senate.

Our assessment of H.B. 38 is that is that it exists largely to ensure that every state will honor any Concealed Carry permit or right from any other state, creating a clean set of governance that is easy to comply with and enforce.  It standardizes whether states must accept the validity of carry permits from another state. Currently a confusing patchwork of laws exist that confuse gun owners and police, creating situations that turn law-abiding citizens into accidental criminals.

The bill’s net result will ensure that states are required to recognize the right to carry a firearm concealed by any person who possesses any Concealed Carry permit from any state or by any person who resides in a state where one can carry a concealed firearm legally without a permit.

Is 2018 the year of the sword?

2018  is upon us, and Texas is in for some interesting news: Swords!

That’s right, you can carry knives and swords longer than 5.5″.  The Texas legislature saw fit to extend this freedom to the people of Texas.

We’re still scratching our heads a little about how the bill made it to law. But, after all, it’s Texas, y’all.  The right to carry swords and the like is really fundamental to who we are.

When we think about the impact of this law, none of us are really getting the most out of it. I haven’t changed my life at all, and but I’m considering it. Think of the options we now have! Which saber goes well with black trousers? Does one bring a katana or gladiolus to brunch? As you can see, it really does pose socially awkward questions, but we will all learn together and extend the proper grace as I’m sure sword faux pas will abound.

What does that say about us to the other states? That we are a people who so value freedom that we give people the liberty to potentially behave…well, stupidly.

In camp one, the general population cant be trusted with anything, because people are stupid and we need to keep sharp objects out of their hands. In the other, we give people the power to mess things up. It goes back to the Constitution: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Some days, in Texas, those rights include a sword.

These rights are not carte blanche: You still cant take the sword into bars, school sporting events etc., but we’re still excited about this simply because we like empowered people.

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