Rick Oliver Law Firm

Traffic Safety Awareness: Legal Penalties for Violations

Wed, 15 May 2024 13:30:00 GMT

This National Traffic Safety Month, we aim to shed light on the potential legal implications of common traffic violations such as speeding, distracted driving, and more. Our goal is to help you stay informed and navigate the complexities of traffic law effectively. Here are some frequently asked questions about traffic violations and their penalties.

What are the penalties for speeding?

Speeding tickets can result in fines ranging from under $50 to several hundred dollars. The exact amount often depends on how much you were exceeding the speed limit and the jurisdiction in which the offense occurred. For excessive speeding or repeated offenses, the penalties can be more severe, potentially escalating to criminal charges, including misdemeanors or felonies, depending on state laws and the specifics of the violation.

What constitutes distracted driving and what are the penalties?

Distracted driving primarily includes behaviors such as texting while driving. Penalties for distracted driving vary widely across states, typically ranging from $20 to $250 for fines. However, some states impose even higher fines, especially for first-time offenses, reflecting the growing recognition of the risks associated with distracted driving.

How are red light violations penalized?

Fines for running red lights can vary significantly, generally ranging from $50 to $500. The exact penalty depends on local laws and the circumstances surrounding the violation.

What are the consequences of driving under the influence (DUI)?

Driving under the influence of alcohol or drugs is a serious offense with severe penalties. These can include heavy fines, license suspension, mandatory education programs, and even imprisonment.

What other consequences can traffic violations have?

Traffic violations can lead to increased car insurance premiums and points on your driver's license. Accumulating points can result in license suspension, mandatory driver retraining, or other administrative actions. These consequences can significantly impact your financial and legal standing.

How can Cockrell & Oliver Law Firm help if I'm facing charges for a traffic violation?

Our experienced legal team can assist you in navigating the legal system to potentially reduce fees or charges. This support is crucial in preventing long-term financial or legal repercussions.

If you have more questions or need assistance with a traffic-related legal issue, please do not hesitate to call us at. Our expert team is here to help you understand your rights and options.

What are the benefits of a Petition to Expunge criminal records versus an Order of Non-Disclosure of criminal records?

Sun, 28 Apr 2019 23:01:00 GMT

In the state of Texas there are two remedies available to a person who is trying to clean up a criminal record: (1) a petition to expunge; and (2) an order of non-disclosure. The eligibility requirements for each are different. Unfortunately, if you were convicted of the crime you were charged with that you are now seeking to remove from your permanent criminal record, you would not be eligible to pursue either of the remedies noted above. Beyond that, eligibility becomes a more complicated question and should be directed to an attorney qualified to handle such matters.

Generally, a petition to expunge records and an order of non-disclosure are both remedies available in Texas law that allow a citizen to clean up their record. The difference between them is really just a matter of comprehensiveness. And, the vehicle available to you will depend upon how the case was resolved.

If you plead guilty to the offense charged and were placed on deferred adjudication probation and successfully completed that probation you may be eligible to pursue an order of non-disclosure. I have always referred to the “order of non-disclosure” as the “Wet Blanket Statute.” Basically, a court that grants your petition for non-disclosure drapes a metaphorical blanket over your offense such that only certain entities can see the details of the offense. Mostly, government entities such as law enforcement will always be able to see behind an order of non-disclosure.

A petition to expunge records is a more comprehensive remedy. Thus, I have always referred to the expunction statute as the “Bad Dream Statute.” If you were never required to abide by any terms and conditions of probation and your case was dismissed you may be eligible to have your arrest records expunged. If you went to trial and were acquitted you would be eligible to have your arrest records expunged. If a charge was filed against you and “No Billed” by a grand jury you would be eligible to have your arrest records expunged.

As noted, a petition to expunge records is more comprehensive than an order of non-disclosure. Proper filing of a petition to expunge arrest records will ultimately cause any mention of your arrest and the resolution of the case to be obliterated from the public record. Thus, when anyone, including law enforcement or potential employers, checks your criminal history, there will be nothing there for them to see. And, as an added bonus, the statute also would allow you to deny (e.g. on job applications, school applications, housing applications, etc.) that you were ever arrested for the offense. In other words, once the records have been properly expunged, you can pretend as though it were some bad dream that never really happened.

The post What are the benefits of a Petition to Expunge criminal records versus an Order of Non-Disclosure of criminal records? appeared first on Rick Oliver Law Firm .

What can I do if I am arrested for domestic violence?

Sun, 28 Apr 2019 22:57:00 GMT

The first thing you could and should do is to disengage.

Your relationship may or may not be over. You may or may not be able to work it out. You may or may not be able to get through this difficult time to become a stronger family or couple. But, now is not the time for reconciliation. Now is not the time for contrition. Now is not the time to ask for forgiveness.

Right now is the time you need to call someone like me. Right now you need good and professional advice. Right now you need to have a better understanding of what it is you are facing.

“Probable Cause” is all an officer needs, in terms of evidence, to arrest and charge you with a crime. That’s not a lot of evidence. In many cases it amounts to nothing more than the bare accusation of a complainant.

So, the bad news is that it doesn’t take much for you to be arrested. The good news is that is often how I beat these cases—by finding out and understanding all of the details of the case—not just those that appear to amount to probable cause—that get overlooked or ignored by law enforcement.

Initially, the first thing you can and must do is to abide by the terms of any restraining order or order of protection issued by the court. Depending on your specific circumstances, some orders of protection can be modified (e.g. allowing you to go home during the pendency of a Magistrate’s Order for Emergency Protection, etc.). Either way, if you are accused or found to be in violation of any such order you are likely to be re-arrested, charged with a new offense, and denied bail while your case is pending. So, be careful and be sure you understand any document that is given to you by the court.

Beyond that the best thing you can do is to hire a lawyer and then help your lawyer understand the whole story. Few fights are entirely one-sided. Most fights begin with some kind of mistake or misunderstanding. And, few fights are the result of a single flashpoint. In other words, in most situations there is some kind of build-up to the ultimate fight. Additionally, the sequence of events exactly as they occurred at the time of the alleged assault is critical. If you were involved in an altercation and were not the first aggressor—even if the complainant is female—it is likely you did not commit an assault.

If you have evidence in your email or your phone or your social media that can be printed and saved and used to tell the whole story, keep it. And, you should continue to collect that kind of evidence while you are out on bond.

If your complainant calls—don’t answer. Let them leave a message. Save it. It could be evidence that proves you’re not guilty. Unless a phone call is recorded there is no way to prove what was said.

The post What can I do if I am arrested for domestic violence? appeared first on Rick Oliver Law Firm .

What are the penalties for reckless driving?

Sun, 28 Apr 2019 22:51:00 GMT

In Texas a conviction for reckless driving can result in a fine of $200 and confinement in county jail for up to 30 days.

Reckless driving is a rare hybrid offense in Texas. It’s not really a Class C misdemeanor. It’s not a Class B misdemeanor. Regardless of what you call it, though, the fact that your exposure can include up to 30 days in county jail should be noted; and it should get your attention.

This is not a “go to court and pay the fine” kind of offense.

It’s also important to understand how “reckless driving” is defined in the state of Texas. What the statute says is that a person commits the offense of reckless driving if that person drives in a manner that demonstrates willful or wanton disregard for the safety of persons or property.

The case law puts a finer point on it, further defining “willful and wanton disregard” to mean “a deliberate and conscious indifference to the safety of others.”

Clearly, the definition seems to contemplate conduct more egregious than simply driving more than twenty or twenty-five miles over the speed limit. Indeed, the definition culled from the case law seems to suggest these cases can all be evaluated based on the specific facts and circumstances that existed at the time you were stopped.

“Reckless driving” is a legal conclusion. Judges and juries are certainly not required to agree with a legal conclusion reached by a member of law enforcement.

So, if you find yourself accused of reckless driving you should call Rick Oliver Attorney at Law to discuss whether the situation really amounted to “a deliberate and conscious indifference to the safety of others.”

And, if we don’t think it did, we can force the state to attempt to prove it.

The post What are the penalties for reckless driving? appeared first on Rick Oliver Law Firm .

What Are People Required To Do In Hit And Run Accidents?

Sun, 28 Apr 2019 22:46:00 GMT

No one wants to be involved in a car accident. It’s a bad situation. Nevertheless, they happen. It’s why we’re all required by Texas law to be covered by a policy of insurance. So, in most cases, if you are involved in an accident—and the accident was your fault—the worst that can happen will be limited to whether your insurance company decides to cancel or increase your insurance rate. But, leaving the scene or running from it will turn a bad situation into a criminal one.

The duties imposed on those involved in car accidents differ depending on what happened as a result of the accident.

The first thing the law requires you to do is to check on the other driver.

If the other driver is clearly injured or seems like they might be injured the law insists that you “render aid.”

That doesn’t mean you have to pull them out of the car and immediately begin chest compressions. In fact, that’s a bad idea and probably the worst thing you could do.

The easiest and smartest thing to do is to simply call 911. If you don’t have a phone use common sense (e.g. flag down another driver and ask for help, find the nearest home or business and ask if they can call 911, etc.). If you don’t remain on-scene to render aid you may be charged with a crime.

In the parlance of criminal law this offense is referred to by its acronym, FSRA. It stands for Failure to Stop and Render Aid. The consequences in criminal court for someone convicted of this offense can be severe.

If you fail to render aid and the other driver involved in the accident dies from his or her injuries you can be charged with a second degree felony—two to twenty (2-20) years in prison. If the other driver suffers “serious bodily injury” you can be charged with a third degree felony—two to ten (2-10) years in prison. And, “serious bodily injury” doesn’t mean what you likely think it means. A broken clavicle that will heal within 6-8 weeks might be sufficiently “serious” to warrant law enforcement filing this kind of charge. Even injuries amounting to “bumps and bruises” can result in confinement for up to five years in prison if a driver involved in the accident fails to remain on scene to render aid.

If no one was injured as a result of the accident the law only requires you to provide the other driver with the information they will need to file an insurance claim.

You must provide your name and address (or just show them your Texas Driver’s License and give them the opportunity to write down the information), the registration number of the vehicle, and the name of your insurance provider.

The post What Are People Required To Do In Hit And Run Accidents? appeared first on Rick Oliver Law Firm .

Do I have to speak to Police in Texas?

Sun, 28 Apr 2019 22:41:00 GMT

No.

The first thing I would point out is that the tag line of this post is not specifically directed at suspects or defendants. In other words, no one has a general legal obligation to speak to police.

That doesn’t mean you should not call the police if you need them. It does not mean you shouldn’t speak to police if you called them. It does not mean you should refuse to provide them information upon request.

It means only this: you don’t have to .

Generally, police officers have authority to approach and speak with anyone. The case law defines that type of police-citizen encounter as a “consensual encounter.” As an initial matter, in my opinion, the very nomenclature used to categorize and describe these encounters is ridiculous and verging on science fiction.

Often, there is nothing “consensual” about a “consensual encounter.”

Most police officers wear badges and carry guns and drive around in souped-up prowl cars. Today, law enforcement agents more often resemble paramilitary troops than the ‘Protect and Serve’ law-dogs of yore. Whether that type of intimidating presence in today’s society is a necessary evil is beyond the scope of this post. Nevertheless, what cannot be rationally argued is the notion that most regular citizens would feel legally empowered to rebuff an officer’s attempted “consensual encounter” and proceed on their merry way.

In most cases, citizens stop and speak to the police because they believe they have to.

Unfortunately, in my experience a citizen’s attempt to exercise their right to simply walk away is often not respected by police. Indeed, the attempt is too-often interpreted as an indication of criminality. Ultimately, the lesson here is that ignoring them is a good way to get yourself arrested.

So, don’t make the false assumption that your attempt to exercise your right to mind your own business will be received by police with open arms. In most cases it probably won’t be. So, admittedly, the information I have provided here begs the question: why would a person who hasn’t done anything wrong refuse to speak with police?

Simple: sometimes you don’t know.

Police have a distinct advantage over you. They don’t have to tell you the truth. An officer could approach you with questions. The officer could insist you’re not suspected of any wrongdoing. The officer could be lying through his or her teeth. And, that conduct would be seen as perfectly acceptable police behavior.

It is for that reason I cannot imagine voluntarily answering any question asked by a member of law enforcement. I don’t have a lack of civic respect. I do not lack patriotism. Quite simply, I don’t know what they’re up to. I don’t know who or what they suspect and why it occurred to them to come and ask me.

If approached on the street by an officer with questions, my only response would be to ask whether I was free to leave. If the officer said yes, I would. If the officer said no, I would at least know more than I did (which is that they believe they have “reasonable suspicion” to detain you). And, to be clear, if an officer says you’re not free to leave, you really aren’t. Your constitutional right to walk away disappears the moment police believe they have reasonable suspicion to detain you.

So, don’t run from them. But, the fact that they believe they have “reasonable suspicion” to detain you does not make it so. Your job at this point is simply to not help them.

In other words, once detained, the safest course of action is to exercise another of your protected rights: your right to remain silent.

The post Do I have to speak to Police in Texas? appeared first on Rick Oliver Law Firm .

What is No Refusal Weekend in Texas?

Sun, 28 Apr 2019 22:38:00 GMT

In Texas, “No Refusal” weekends are a policy directive aimed at DWI enforcement.

Assume you hear on the news or radio that the coming weekend is a “No Refusal” weekend. Assume further that you happen to be out and about that weekend, with friends. And, at some point an officer stops and accuses you of driving while intoxicated. Eventually, that officer is going to read a document to you that concludes with his asking whether you will consent to the taking of a specimen of your breath or blood.

Constitutionally, you have a choice: consent or refuse.

But, practically, you don’t. If you do not agree to provide the requested specimen one will be forcibly taken from you. And, they cannot strap you down and force you to provide a breath specimen. So, if you deny consent during one of these fateful weekends, you can expect to be strapped to a chair and stuck with a needle.

That’s what “No Refusal” weekend means.

No laws have been changed that allow for “No Refusal” weekends. The police have always had the statutory authority to obtain a warrant for your blood if you refused their request. And, it doesn’t have to be a “No Refusal” weekend for them to go through the process of obtaining a warrant for your blood.

DWI practitioners differ as to whether it is better to consent to a breath test or refuse and force them to obtain a warrant. In my opinion, for the vast majority of citizens the safest course of action is to simply consent to the breath test.

In most cases the amount of time it will take for police to obtain a warrant and transport you to a facility where the blood can be drawn will not aid in your defense. It can. But, in most cases it won’t. Indeed, in many instances it actually enhances your defense if the specimen is provided soon after investigation and arrest.

Additionally, the methodology used to forensically test blood is considered the evidentiary “gold standard.” That doesn’t mean their results are always reliable. Indeed, in light of the multitude of lab scandals that have occurred in and around the state of Texas, it is hard to confer more confidence on forensic blood testing than a toddler left to his own devices with a child’s chemistry kit. Still, defending a blood test case is more expensive and time-consuming than defending a breath test case.

And, breath test machines are inherently unreliable pieces of junk, too.

Either way, a “No Refusal” weekend means exactly what it sounds like it does. So, the best thing you can to is to educate yourself and, most importantly, be careful.

The post What is No Refusal Weekend in Texas? appeared first on Rick Oliver Law Firm .

The Lifeguard

Sun, 28 Apr 2019 22:11:00 GMT

by Rick Oliver

“Back in the day I was a lifeguard, if you can believe that.”

After a hesitant pause, she said, “Not as easy as it looks, is it?”

He shrugged to himself. His eyes drifted up and as they did the phone slid down his chin a bit. He could have heard her if she were talking. But she wasn’t; she was waiting for him. He took a deep breath and gently probed the darkness. It was too complete to discern the shapes on the wall, but he wasn’t scared. It was his office, after all; had been for the last twenty years. He could smell his smell in it. Everything he touched was warm and familiar. He could move confidently in the darkness without offending a shin. This place symbolized his place in the world. Every stick and scrap was evidence of or a testament to the career he’d conjured virtually out of nothing. Still, he knew, pride isn’t enough to light what’s dark.

His was the same sort of crap you see adorning the walls of nearly every defense attorney’s office. Certificates of accomplishment, laurels earned and laurels bought, tokens of appreciation, historical hubris, and the scalps of fallen enemies. He knew what they were. He knew they were there. He’d spent what felt like a lifetime among these baubles. He knew he would recognize them immediately, if only the lights were on. He sighed and mumbled, “I can only see it when I close my eyes.”

Gently, she said, “What was that, John?”

He shook his head like he was warding off a fly, readjusted the phone and said, “Nothing.”

“Did you ever save anyone?”

John’s eyes were drawn to the black corner where the inky dark loomed heavy and substantial. His filing cabinets were a mausoleum of old voices and the stories that had brought them here. Of course he had saved some of them. Some he saved from themselves. Others he plucked from circumstance and the conclusion it suggested. For those victimized at the altar of leverage he had found the fulcrum and turned the tide. Too many had been spared the wrath of political guile masquerading as adversarial zeal. Of course, some of them were just as guilty as Hell. He saved some of them, too. But, he hadn’t been able to save them all. There were just too many.

“When you were a lifeguard, I mean.”

John chuckled quietly and said, “Once. But mostly, I worked on my tan. I remember by the end of that summer the sun had bleached the hair on my arms and legs white.” Instinctively, he reached for his forearm and could remember the soft blonde fuzz of that summer despite the coarse salt and pepper of this winter. “My Mother used to boast that the contrast of those tiny white hairs against golden skin made me seem almost angelic.”

“I’m sure it was just a trick of the light.”

His laugh was almost a foreign sound. He said, “No doubt.”

“Tell me about the one you saved.”

He took a deep breath and leaned his chair back, anticipating the soft nasally squeal of rusty spring. He pressed his head into the rough leather and felt the cold knot of tension that always seemed to play at the base of his skull.

“You ever notice how so much of life is metaphor?”

“I have to be honest,” she said. “More often I find it to be allegorical.”

John cleared his throat and said, “I suspect secular dogma is mostly to blame, for that.”

“How do you figure,” she asked.

“You want to talk about that or you want to talk about the pool?”

“Good point,” she said. “Let’s talk about John the Life-Saver.”

“That’s probably a bit ambitious, but I’ll tell you anyway. I was in my stand, rigidly observing that 10/20 principle they drilled into your head back then.”

“Ten seconds to scan your area; twenty seconds to get to and rescue anyone in it?”

“Very good,” John said. “She was across the pool from me.”

“Tell me about her, if you remember.”

“She was Hispanic. She was there with a few other women and a gaggle of kids who all bore at least the slightest resemblance to her. At the time she seemed old, to me. Looking back, I assume she was in her mid-thirties; a baby. Her hair was twisted with one of those thick green rubber bands they use to package broccoli at the grocery store. It didn’t matter, though. She had the kind of hair whose vibrant simplicity makes other women jealous.”

“The rubber band is kind of an obscure thing to remember. Why do you think you focused on that?”

“I was scanning my area when she eased into the pool. You could tell right away the water made her nervous. The kids all hollered and cajoled and the adults even clapped as she went in. The kind of thing that would piss you off, if they weren’t her family. Some of the kids splashed her and you could tell she didn’t like that; not because of what the water could do, but because of what it was. I don’t think any of those kids could understand her fear. I know I didn’t, then. Anyway, she put on a brave face and started bouncing up and down a little. But, she was careful not to let her head go under. She was white-knuckling the concrete with one hand and waving the other around in circles under the surface—a pitiful attempt to float. That was the start of it. She would bounce a few times and then float into deeper water, all the time testing her footing. Bounce and float, bounce and float. Check for ground. Deeper and deeper. By then no one was paying attention to her anymore.”

“Except for you,” she said.

In the dark, John shook his head. He looked up at the ceiling and slowly exhaled a shuddering breath. “Not me either,” he said.

“What happened?”

“On my next pass I got to the spot I’d last seen her but she was gone. It took me a second or two to realize she’d gone under. Got too deep and lost her grip on the firmament, I suppose. I hadn’t realized how short she was until she went under. All I could see were two little hands reaching heavenward, either side of that beautiful brown hair.”

“She didn’t panic when she went under?”

“Maybe that’s why I didn’t keep as good an eye on her as I maybe should have. I figured if she got into trouble she’d start thrashing about and get everybody’s attention. Surely, I thought, her family would go in after her and she’d be out of the pool before I could get out of my stand. But, that’s not how it happened. I guess not everybody drowns the same way.”

“Would it be easier if everyone did?”

“I think you’re asking a tougher question than you realize.”

After a pause she asked, “Did she make it?”

“I don’t remember blowing my whistle but I can still feel those three sharp blasts in my chest and in my bones, silencing the din like gunshots as I fell from the stand like a stone in to water. I hunched over my rescue tube and swam to her as fast as my arms would carry me. When I got there I jabbed an arm in the water and grabbed ahold of her just above the spot where that thick rubber band was binding her hair.”

“So,” she asked.

“I pulled her up and she coughed a gout of urine-laced pool water, but the important thing is she was coughing. Anyone with kids will tell you that’s a good sign.”

“So, you pulled her up by her hair and saved her?”

“I did.”

“Ouch.”

“My Father always told me to never confuse safety and comfort. I figure she learned that lesson the hard way, that day.”

When she didn’t respond John stood up with the phone. He stepped around the open desk drawer and walked to where he knew the sideboard was. He jiggled the stopper and set it next to the decanter. It rolled on its side and settled with a pleasant clink. He groped for a high ball and when he got it added three fingers of Scotch. It was reduced to a bony finger by the time he regained his seat.

“Can I ask you something, John?”

“Please, do.”

“What was it that reminded you of your lifeguarding days?”

John set the high ball atop his desk and leaned his chair back again. Slowly, he let his head roll forward and loll side to side, trying to work out a kink. He said, “Before you could get hired as a lifeguard you had to pass a couple tests; prove you were a strong enough swimmer for the job. The first was easy enough. It was a timed five hundred meter swim. I hadn’t yet learned how to swim with my head under water, but they gave us plenty of time to finish and I did it without too much trouble.”

“What was the other?”

John leaned forward and put his elbow on the desk. He exhaled a breath that came out in a dry fetid rush. He swallowed the last of his drink. He said, “There was a separate pool by the diving boards where the water was deepest; so deep you couldn’t make out the bottom. They took us over there and we saw something odd. Cinder blocks were spaced out along the edge of the pool; one for every applicant. They didn’t mention the blocks and we didn’t ask. We got in the water and they told us all they wanted us to do was tread water. We started and did that for what seemed like forever. It wasn’t a problem for any one of us and I think that made us all a bit cocky. I remember a joke or two coming at the expense of the strength of the application process.”

“You forgot about the blocks.”

“We did. After a while we thought surely they must be satisfied. They told us to swim to the side of the pool. We thought it was over and we’d passed their test. It wasn’t and we hadn’t. They told us to each grab a cinder block and wade back out to the center. Once we were out there a stop watch was produced. They told us to hold the cinder blocks above our heads and tread water until they told us to stop. If we dropped the block we were out.”

“You passed the test.”

John nodded and in his solace a single tear tracked his cheek and settled with a mournful tickle along the base of his jaw. “I was a young man, then. The cinder block weighed fifteen, maybe twenty pounds at the most. At the start, I held it up in one hand and with a smirk on my face. Obviously, I was showing my ass. But, pretty soon it felt as though I was holding a goddamn elephant above my head and I wasn’t smirking anymore. My arms and legs and lungs were burning like fire, but I was determined not to let that cinder block beat me. I wanted to impress the ones who were there who’d already passed the test. And I wanted to wipe the smug look of satisfaction off the face of the man holding that stupid stop watch, too. Pretty soon two of my fellow applicants dropped their blocks and kicked for the side where they clung to it, defeated. Still, I kept kicking and thrashing. In the beginning I was high and strong and able to keep my chin clear of the water. As time passed I could feel myself beginning to sink. It was such an odd sensation feeling your strength flag in such tiny but meaningful increments.”

“What do you mean?”

“I was drowning; that’s what I mean. I was just doing it slowly and against my will. I realized it when I felt the water on my cheeks. It tickled a little and forced me to blow air out my nose so I could breath. I had to kick hard every so often to get clear of the water so I could take a full breath. The water didn’t care. It was ready to accept me dead or alive; docile or thrashing. And then it was tickling my earlobes. I could barely force a kick hard enough to clear the water for air. Still, I kept kicking and sinking. When it started to sting my eyes I cried out of frustration. I set my jaw and stared blurry lasers at the man counting the time. I believe I would have gone right down to the bottom holding that block over my head, if it had come to that.”

“But it didn’t.”

“Fortunately, no.”

“What do you think gave you the strength to endure?”

“I knew I could drop the block.”

“What’s so different now, John?”

John lowered his head until it was touching the desktop. He whispered, “I can’t drop the block. Not anymore. No matter how heavy it gets or how far under I go. There’s no rest and no break. No stop watch and no end. I can only see one way to get out from under it, anymore.” He started to cry; silent and wracking sobs. Blindly, he reached inside the open desk drawer and gripped his pistol. Like everything else in his office it felt comfortable and familiar. It felt easy and light, and with it the promise of a dream. With his eyes closed, he could see it perfectly.

“John?”

He clamped his mouth shut to stifle a sob and didn’t trust himself to speak. He thought about ending the call. He wondered whether it had been a mistake to begin with.

“John? Are you still with me?”

John was able to manage a confirmatory squawk.

“Get up and turn on the lights, John.” The hardened edge to her palliative tone caught him off guard. He looked up and wondered through tears how she knew he was sitting in darkness.

“How did you know the lights were off?”

“Turn them on, John.”

Confused, but obedient, John pushed himself back from his desk and went to the wall switch. Light bathed his office and he winced. As his eyes adjusted the frames on the walls returned slowly to focus.

“John?”

“I’m here.”

“The block is your life and it’s heavy because it’s meaningful. You don’t have to drop it, John. You don’t have to drop the block and you don’t have to carry it alone. Are the lights on?”

“Yes.”

“Look around.”

Tetchily, John said, “It’s my office. I know what’s here.”

“I think you’ve forgotten, John. Look around. Look around and remember what all you’ve accomplished; who all you’ve helped. Take things down or pick them up and dust them off; examine the details. Re-experience them, John. Those things add weight to the block, too. And those are things you shouldn’t want to let go of. You’re lonely; not alone. When you lose contact with the faces and the places and the love, of course it’s just you holding a cinder block overhead in a big dirty pool of hungry water. Once you realize that, the block will start to feel lighter and lighter. You may even feel strong enough to show your ass, a little.”

He hung on every word, trying not to fall victim to what he so often accused others of: not listening. He wanted her help. That’s why he had called. He breathed deep and steadying breaths. He looked around his office. Somehow, it felt both familiar and new. He saw faces and could hear their voices. It wasn’t all laughter. There was pain, too. But it filled him up and for the first time he began to feel grounded and whole. Emotion welled up and he wondered how he could have ever considered escape. He moved from picture to picture; bauble to bauble. He had no idea how much time had passed; another welcome feeling. He realized she was still on the other end, waiting for him to come back.

For the first time in as long a time as he could remember, he smiled a smile of genuine appreciation. Not just for her voice, but for the voices she helped awaken. “Thank you, Hope.”

“I’m glad you called, John.”

John started to drop the phone but stopped. “Hope?”

“I’m still here, John.”

“That’s not your real name, is it?”

He smiled as she giggled from the other end. “Have a good night, John.”

The post The Lifeguard appeared first on Rick Oliver Law Firm .

We Are Unless

Wed, 27 Feb 2019 06:46:00 GMT

Originally posted at Harris County Criminal Lawyers Association Blog

The presumption of innocence is commonly understood to be a legal term of art. If that be the case, then, the question becomes whether art really does imitate life in this business.

In theory, the presumption of innocence is indeed a term of art in the sense that it has a specific meaning within the legal field and amongst its practitioners. The presumption is more than just a phrase connoting a specified meaning, though. It is the foundation upon which our niche in this profession has been built. It is the keystone principle that maintains the integrity of our system of justice. It is the fiber in the connective tissue that binds us all to whatever construct we perceive of as our social contract.

In reality, the presumption of innocence is the Alpha and the Omega. Without it there is no justice. Without it, no trust. Without it there is no reason to honor the terms of any social contract; real or imagined.

But, the juxtaposition of the presumption of innocence with other legal terms of art brings a sad reality into focus. The “State” is a good and telling example. The truth is there is no “State.” It has no address. No postal zip code. There are no pearly gates that separate the “State’s” lushly manicured grounds and towering white spires from the citizen and his shanty town. There is no lone figurehead reminiscent of Reagan or Stalin or Margaret Thatcher or Thor. It only exists insofar as society allows it to exist. The “State” is a legal term of art, just like the presumption of innocence.

Except, it is nothing like the presumption of innocence. The “State” is an illusory fable penned by our Founding Fathers and passed from one generation of white-hatted do-gooders to the next. It is drafter and signatory to the social contract to which each of us is bound. It is the aggrieved party and the enforcer whose job it is to redress perceived contractual transgressions. The “State” implies more than it says. The “State” has a long and ranging arm. The “State” wields a big and often wretched stick. The “State,” by and through its agents, has within it the power to chuckle at Oppenheimer’s quip: “Now I am become Death, the Destroyer of Worlds.” In short, the “State” has within its dominion the propensity for a self-righteous and trembling gravitas.

By way of contrast, there is the presumption of innocence. There can be little doubt the presumption of innocence has been turned on its head. It has been eulogized as a dead letter; its demise feted in the halls of the “State.” It has been heckled and jeered and burned in effigy. In truth, the presumption of innocence is at odds with its maker, and because of that, no longer exists.

Unicorns and Leprechauns

Our citizens accused are more likely to enjoy unicorns and leprechauns and purple rhinos than they are the presumption of innocence. It has been reduced to a sad and consensual hallucination; the artifice of sophistries. But, what is profoundly more disheartening than its demise is the reality that we—the defense bar—have helped to kill it.

Not affirmatively, of course. We haven’t exercised the audacity the “State” so often has when it, for example, hides exculpatory evidence. We haven’t plotted—with maniacal attention to detail—the murder of the presumption of innocence, intentionally or knowingly, or with malice aforethought. Not even death by a thousand pricks is to blame for its demise, at least insofar as those pricks are we.

Instead, we have sharpened the guillotine of the “State” with our neglect. Ironically, all we have neglected is but a single word. But, as Mark Twain once remarked, “The difference between a word and the right word is like the difference between lighting and a lighting bug.”

As codified, the presumption of innocence, that useless ramble, suggests that: “All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.” [i]

Close your eyes and say it aloud. Now, imagine yourself standing tall before the venire, sweating and preaching and rambling for the fifteen minutes the court has conferred upon you like a soiled gift. Look down at your imaginary outline to where the presumption of innocence necessarily precedes the burden of proof. Ask a pretend person to re-state the presumption of innocence in the shorthand we all so often hear.

“Innocent [ fill in the blank ] proven guilty.”

If your febrile imagination inserted the word “until” between the brackets, then you, like so many of us, have the blood of the presumption of innocence on your hands, too.

Resist the temptation to roll your eyes and consider the following: the word “until” is a conjunction that is used to refer to the time that took place or passed before an event or incident. It means “up to the time” or “till the time.” It is also used to show one’s aim of finishing a job or task even if there are things that make accomplishing it difficult.

The word “unless,” on the other hand, is a conjunction that is used to refer to a condition which makes the event or incident that precedes it impossible. It has the same connotation as the words “if” and “except. [ii] ”

If your instinctual response can be summarized by resort to the familiar refrain that a comparison of unless and until yields a difference without a distinction, you are, in my humble opinion, out of your goddamned mind. The words unless and until are not tautological. They do not mean the same thing. They should only be used together when the situation calls for both a context of time and a precondition [iii] . Using the word “until” suggests the result is an eventuality. Using the word “unless” suggests there is some condition precedent that must be satisfied before that result may occur.

Imagine you’re watching an old black and white docuseries memorializing the great Clarence Darrow and one of his magnificent rites of defense. Then, imagine further he is engaged in a heated exchange with a corrupt prosecutor regarding the rights of the accused. Imagine Darrow’s impassioned plea in support of a vigorous and competent defense:

“He is presumed to be innocent UNLESS proven guilty,” Darrow might shout.

“ Until , Mr. Darrow. Until he’s proven guilty.”

Now tell me you don’t feel the difference. In the example, the prosecutor says a lot without saying much. An economy of words does not necessarily imply an economy of meaning. And, it should not be difficult to divine which of these incarnations ought to be championed by those whose job it is to ensure that justice is done according to the law of the land, as it is written, and as it was intended.

Competitors of Fact

It is also important to highlight the obvious. This business we have chosen is an adversarial one. We are competitors, in fact and in theory. We work with the same facts in an attempt to deliver different products. Woe befall the lawyer who fails to appreciate the reality that an aspect of what we do includes the idea of a sales pitch. Even worse is the thought that some lawyer mistakenly assume his or her pitch is limited by what they believe the facts have or have not proven.

We incorporate the pitch in the way we dress and the way we dress our clients. We incorporate the pitch in the way we address the courts and the way we address its juries. We organize and pander to the rightful pageantry of the presumption of innocence, forgetting somehow that the devil is almost always in the details. The end result is that we are allowing the “State” to capitalize on our neglect. We are conceding the sale before either side utters so much as a single word.

WE are UNLESS and THEY are UNTIL.

The challenge of the defense is to convince the venire that the determination of guilt has yet to be made. In other words, we want them to understand and believe that the accused is presumed to be innocent unless the facts prove otherwise. The challenge of the “State” is to convince those same people that they wouldn’t be wasting their time if the guilt of the accused were not already assured. In other words, they want them to believe that all that is required of them is that they wait until the end of the “State’s” presentation before properly returning a verdict of guilt.

Our challenge is consonant with the spirit of the law. Theirs reflects the aim of those engaged in adversarial competition where the results are almost always zero sum. Whether the conflation is the result of intentional complicity or mutual negligence is irrelevant. The point is it is happening. It is diminishing the “State’s” burden of proof (another term of art), it is poisoning our juries, and it is dooming the prospects of our citizens accused. Make no mistake, with a single word we have allowed the “State” to stack the deck against us.

Presupposition

In marketing circles the terms is referred to as “presupposition.” Presupposition is often utilized by using words and language that indicate your assumption that your offer has already been accepted. It is a technique that is used both consciously and subconsciously [iv] . In the context of the legal field, it is, quite simply, tradecraft. And, what is truly disturbing is that we’re not just allowing this to happen. We are perpetuating its dissemination and wide-spread acceptance. We act like it’s no big deal.

The impact of word choice is not limited by the ability of the audience to consciously discern subtle differences, either. Researchers have long known that expectations influence cognitions and behaviors [v] . When we expect a particular outcome, we automatically set in motion a chain of cognitions and behaviors to produce that outcome—and misattribute its cause [vi] . Although expectancies can develop in many ways, they are often the product of suggestion.

Suggestions can come from other people or from the environment; they can be cultivated in the present or drawn from the past; and they can be deliberate or not deliberate [vii] . Suggestion can influence implicit learning and lead to the enhancement or impairment of memory [viii] . Further, suggestion can also influence evaluations of a product above and beyond its intrinsic features [ix] . Suggestions, particularly those that people do not realize they are communicating, can transmit expectations to others and thereby influence their thoughts and behaviors [x] .

Clearly, the “State” has not taken a chainsaw to our beloved presumption of innocence. Rather, it appears the instrument used were more likely a scalpel. Its aim was specific and its incision precise. The product is a facelift that has altered the fundamental character of the presumption of innocence. A single word has undermined its promise. Now, there is a presumption of guilt and that presumption is a self-fulfilling prophecy.

What the literature suggests is that when the inaccurate beliefs of different perceivers about a given idea are similar, their individual self-fulfilling effects can accumulate such that their combined self-fulfilling influences may be more powerful than any of their individual self-fulfilling influences. That is, the similar and inaccurate beliefs held by multiple perceivers may potentiate one another’s self-fulfilling effects, a process referred to as synergistic accumulation [xi] . So, if even one of your potential jurors internalizes the conflation to encourage a presumption of guilt, the die may have already been cast.

Fortunately, the literature also suggests that members of stereotyped groups may be shielded from confirming negative stereotypes if they are also exposed to positive beliefs. In this example the “stereotyped group” is the citizen accused. The negative stereotype is that a citizen wouldn’t be accused unless he was guilty. The positive belief is the assertion that there is a more redeeming and legally correct definition of the presumption of innocence. To paraphrase Miracle Max, what this ultimately means is that the presumption of innocence is only mostly dead. There’s a difference between mostly dead and all dead. Mostly dead is slightly alive. With all dead, well, with all dead there’s usually only one thing you can do [xii] .

Right the Ship

What we can do—what we must do—is right the ship. The presumption of innocence is the ballast that brings balance to the system. For some time now, the ship has been taking on water. As its designated stewards, it is time we all started bailing that water.

The remedy is simple: object. Object on the basis that the conflation of unless with until with respect to the presumption of innocence is a misstatement of the law. It is. Object on the basis that use of the word until is a comment on the weight of the evidence. It is. Object on the basis that use of the word until effectively reduces (if not eliminates) the “State’s” burden of proof. It does.

Currently, it appears we are unwittingly content to go down the ship. A simple natural language search for the phrase “innocent until proven guilty” returned only 99 Texas cases. A non-exhaustive review of those cases revealed almost nothing directly on-point. One of them was, and its analysis was telling. In Randolph v. State, the appellant complained that the trial judge violated his due process rights when it suggested to the venire that he was “innocent until proven guilty [xiii] .” The COA noted that “[t]he Texas Court of Criminal Appeals …has not drawn a distinction between “unless” and “until” when those terms are used in connection with the presumption of innocence [xiv] .

Then, the COA basically shrugged its collective shoulders and, in effect, said, “Look, we all do it all the time; what’s the big deal!?!” [xv] After all, trial counsel did not object to it when he had the chance [xvi] . And, the COA observed that “nothing in the record indicates that the venire meaningfully distinguished “unless” from “until” in the context in which the trial court used it during voir dire such that the use of “until” negatively affected [appellant’s] presumption of innocence.” [xvii] Nothing in the record, huh? With all due respect to the First Court of Appeals: no shit it’s not in the record.

The issue is not what is being put on the record while the venire is attentively seated. The issue is what the venire is bringing with them—subconsciously or otherwise—as they file in to the room. When we allow the law to be misquoted in the manner it currently is we effectively endorse a subliminal message that is broadcast to the entire world.

In an adversarial system such as ours, it is hard to fathom how we can expect to prevail over the “State” when we allow them to start the race at the finish line. That is the difference between unless and until.

We are unless…until we’re not.

Citations:

[i] Tex. Code Crim. Proc. art. 38.03; Tex. Pen. Code §2.01

[ii] M., Emelda (2011). Difference Between Until and Unless. Retrieved from http://www.differencebetween.net/language/grammar-language/difference-between-until-and-unless/

[iii] Unless vs. Until. Retrieved from http://www.diffen.com/difference/Unless_vs_Until

[iv] The Rule of Expectations—The Impact of Suggestion. Retrieved from http://westsidetoastmasters.com/resources/laws_persuasion/chap10.html.

[v] Michael, R.B., Garry, M., Kirsch, I. (2012). Suggestion, Cognition, and Behavior. Current Directions in Psychological Science , 21(3) 151-156.

[vi] Id . (citing Kirsch, I. (1997). Response expectancy theory and application: A decennial review. Applied & Preventive Psychology , 6, 69-79. Doi: 10.1016/S0962-1849(05)80012-5; Kirsch, I. (2004). Conditioning, expectancy, and the placebo effect: Comment on Stewart-Williams and Podd (2004). Psychological Bulletin , 130, 341-343. Doi: 10.1037/0033-2909.130.2.341)

[vii] Id . (citing Stewart-Williams, S., & Podd, J. (2004). The placebo effect: Dissolving the expectancy versus conditioning debate. Psychological Bulletin , 130, 324-340. Doi: 10.1037/0033-2909.130.2.341)

[viii] Id .

[ix] Id .

[x] Id .

[xi] Madon, S., Guyll, M., Spoth, R., Willard, J. (2004). Self-Fulfilling Prophecies: the Synergistic Accumulative Effect of Parents’ Beliefs on Children’s Drinking Behavior. Psychological Science , Vol. 15—No. 12, 837-845

[xii] The Princess Bride . Dir. Rob Reiner. Twentieth Century Fox Film Corporation, et al , 1987. Film.

[xiii] Randolph v. State, 2008 Tex. App. LEXIS 9192, No. 01-08-00266-CR, *1 (Tex. App.—Houston [1 ^st Dist.] 2008, unpub.)

[xiv] Id . at *8

[xv] Walters v. State, 247 S.W.3d 204, 210 (Tex. Crim. App. 2007); Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998); Hill v. State, 955 S.W.2d 96, 100 (Tex. Crim. App. 1997); Mays v. State, 726 S.W.2d 937, 951 (Tex. Crim. App. 1986); Wiseman v. State, 223 S.W.3d 45, 50 (Tex .App.—Houston [1 ^st Dist.] 2006, pet ref’d); Deck v. Missouri, 544 U.S. 622, 630, 125 S. Ct. 2007, 2013, 161 L. Ed. 2d 953 (2005); Wynn v. State, 219 S.W.3d 54, 59 (Tex. App.—Houston [1 ^st Dist.] 2006, no pet.)

[xvi] See Randolph, 2008 Tex. App. at *6.

[xvii] Id . at *8

The post We Are Unless appeared first on Rick Oliver Law Firm .

What If George Zimmerman Shot Trayvon Martin in Houston?

Mon, 25 Feb 2019 08:12:00 GMT

Public sentiment surrounding the shooting of Trayvon Martin and the subsequent trial of George Zimmerman seem to reflect the generational struggle in this Country towards racial respect and equality. But, from a strictly legal perspective, the issues being contested in the trial appear to be much more narrowly focused. Specifically, one question I have been asked often since this case was filed is this: can Zimmerman really claim self-defense when he shot and killed an unarmed man?

In Texas, the simple answer is: Yes

Though there are various iterations of self-defense that apply in wide array of situations, the one at issue in the Trayvon Martin case is Florida’s “stand your ground” statute. Basically, what the statute provides is this: IF you are attacked, are not otherwise breaking the law, and are where you have a right to be, THEN you have no duty to retreat or run away, and can meet force with force (including deadly force IF you reasonably believe the deadly force is necessary to prevent death or great bodily harm).

The best way to understand self-defense is to distill its basic principles. Most people are familiar with the phrase, “You never bring a knife to a fist fight.” This principle of gentlemanly conflict is encapsulated in the Florida and Texas Penal Codes. Where the statute authorizes a person to “meet force with force,” it is basically saying that you should not bring a knife to a fist fight. What this means in a vacuum is that if a person punches you, you can punch them back. If a person punches you, you cannot shoot them, generally.

Can you shoot the person that punched you (and kill them), ever? The answer can be found in the language of the statute. In Texas, the justification statutes that most closely resemble those at issue in the Zimmerman case can be found in Chapter 9 of the Texas Penal Code.

Despite its reputation, in Texas, generally, you still cannot bring a knife to a fist fight. Specifically, what §9.31 of the Texas Penal Code says is that you are justified in the use of force when and to the degree you reasonably believe the force is immediately necessary to protect yourself from the other person’s use or attempted use of force. Just as in Florida, you don’t have to run away, and can meet force with force.

The obvious idea behind a statute such as this is that we want to encourage a society where citizens can legally defend themselves if the need arises. But, it is certainly not a free-for-all. As with most things, the devil is in the details. The language “when and to the degree” can be interpreted to mean that you can punch the person who punched you, but you cannot kick him when he’s down. The law encourages self-defense; but not gloating over a felled opponent. The language “immediately necessary” simply means “right now.” You cannot leave the scene where the person originally assaulted you, and return later that day to avenge the assault.

Again, the law encourages self-defense; but not vigilante justice or surprise attack or calculated vengeance. The “other person’s use or attempted use of force” means you are not legally required to wait until the other person (the first aggressor) actually hits you. If they swing and miss, you can punch them. If you see the tell-tale signs of a haymaker wind-up, you can poke a jab out there to retard the puncher’s progress. Last, and most important, is the reasonableness of your belief that the use of force was in fact necessary in the first place.

To be justified in the use of deadly force you must first be justified in the use of force, as described above. The difference, of course, is that you are only supposed to bring a knife to a knife fight. In other words, generally, you are only justified in using deadly force to repel or protect yourself from another person’s use or attempted use of deadly force. But, not all fights are created equal.

Cue the devil and his details.

If you have a reasonable belief that an unarmed man (or woman) is going to use, or is using, deadly force, against you, it may be legally justifiable for you to use deadly force in self-defense. In my opinion, this is the lynchpin to the State and Defense cases in the Zimmerman trial. Zimmerman has no legal duty to prove that Trayvon Martin was actually using deadly force during the attack[1]. All Zimmerman must do is suggest that he had a reasonable belief that Trayvon Martin was using or attempting to use deadly force against him.

It’s not about what was actually happening. It’s about what Zimmerman thought was happening, and whether that was thought was reasonable—his reasonable belief. If the jury is convinced beyond a reasonable doubt that Zimmerman’s admitted use of deadly force was unreasonable, he will be found guilty of Second Degree Murder. If the jury thinks it possible that Zimmerman could have reasonably believed that Trayvon Martin was going to kill him or cause “great bodily harm,” then the law justifies the shot.

[1] Whether Zimmerman was actually “attacked” by Martin is obviously one of the other hotly contested issues at trial. But, since the purpose of this article is to discuss self-defense in the context of one armed subject and one unarmed subject, I have assumed, for purposes of the article, that Martin was the “first aggressor.” It is certainly not my intention to opine on whether Martin was in fact the first aggressor, and I offer no opinion on that issue one way or the other. I have done so only because any discussion of self-defense assumes as its predicate the actor was not the first aggressor. To discuss the legal issues relative to whether Martin was in fact the first aggressor is beyond the scope of this article.

The post What If George Zimmerman Shot Trayvon Martin in Houston? appeared first on Rick Oliver Law Firm .