Recent Case Win–.202 BAC DWI-Not Guilty

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

Client was clocked going down the highway at 105 MPH.  Following field sobriety tests, my client was arrested for DWI. A blood sample was obtained and the results alleged that my client’s blood alcohol content (BAC) was .202. There were serious questions regarding the validity and reliability of the blood test.  In a trial before the court, my client was found Not Guilty.

As you can imagine, my client was relieved and very pleased with the result.


 

Should Pilots Take the Breath Test if Pulled Over for Suspicion of DWI?

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

“Should I take the tests?” is the number one question I get asked in my practice regarding DWI arrests. For people in most professions, my usual answer corresponds with what I believe 99% of criminal defense attorneys think, which is “less is always best”. Simply put, the less evidence there is against you, specifically no field sobriety tests, no breath test, the better the case will be for you at trial. Yes, if you politely refuse the tests you will be arrested, but the end result may be an acquittal at trial due to lack of evidence.

For pilots however, my advice is totally different. For a pilot, especially a commercial pilot who earns a living flying, keeping peace with the FAA is the primary concern. In short, if a pilot refuses a breath or blood test, their license is in serious jeopardy.

Two things will red flag a pilot on a DWI stop and if either of these two events occur the FAA will assume the pilot has a substance abuse problem—even on a first offense. The first is if pilot refuses a breath or blood test and the second is if the pilot has a blood alcohol content (BAC) of over .15 (.08 is the legal limit in most states). The refusal or high BAC send strong signals to the FAA and you just can’t un-ring the bell if it happens.

So, what happens next? With a pending DWI case regardless of the BAC, the next medical examination for the pilot could be a huge shock. The AME will have no choice but to defer the FAA medical application. And that will end the flying until a time when the pilot can get his medical back. The trap door on the medical application is at line 18.v of FAA Form 8500-8, which asks the pilot to report “arrests, convictions and administrative actions”. When a pilot checks that box “yes” following a DWI arrest, the local AME will be required to transfer this application to the FAA’s aerospace medical certification division for further review.

If the medical application is deferred, it’s a long road back for the pilot. At that point, the pilot must receive a substance-abuse evaluation from a recognized counselor (DOT substance abuse professional) in order to be further considered for a medical certificate. This can be a very expensive and lengthy process. An AME cannot perform this evaluation without additional certification by the DOT (not the FAA). This makes the renewal process longer and more arduous.

As you can see, the choices people make can have a huge impact on their careers, especially if you have a professional license on the line, like a pilot. If you want to drink, take an Ubur. It’s just not worth it.

What You Need to Know About Vehicle Searches and Your Expectation of Privacy in Your Vehicle

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

Usually a warrant is required to search to search a person’s residence. An automobile, however, is an entirely different animal than a house, for example. There is an exception to the warrant requirement for automobiles. The rationale is that cars are mobile, and they could depart the scene before an officer has time to get a warrant from a judge to search the vehicle. Another thought behind the exception is that since cars are regulated by state laws and are on public streets, drivers should have a reduced expectation of privacy in comparison to their residence.

The automobile exception to the warrant requirement has two parts:

  1. If the police have probable cause that the car contains something illegal like a prohibited weapon or drugs, then they may search the car. One circumstance I hear most often is an officer after approaching a vehicle smells marijuana from the inside of the car and that triggers the probable cause for the search.

Under this part of the exception, the officer can only search the part of the car where what he is looking for may be found.

For example, if a police officer pulls a driver over for speeding and smells marijuana, he may search the entire car for the drug, including any containers like the center counsel, glove box, or purses. But if he has probable cause to believe that you have an illegal knife in the car, he could only search where the knife could be hidden and not, say, in a pack of cigarettes.

  1. If an officer makes a lawful arrest of the driver of the car, he may make a warrantless search of the passenger compartment of the car. This is called a search incident to arrest.

Keep in mind an officer may always search your car without a warrant if you consent to the search. Sometimes police will pose the question with the implication that you do not have the legal right to refuse. However, you can always refuse to consent. Another approach is the officer may tell you that if you cooperate with him and consent, things will be easier on you, but in reality nothing could be further from the truth.

Also, if you are being arrested following a traffic stop, your car could be towed and searched pursuant to an inventory search. The police department has to have a policy regarding how to conduct an inventory search. The rationale behind an inventory search is to protect the police from claims property was stolen or lost down the road. The inventory search is not supposed to be a rouse to allow police to rummage through a car, however, police can go through your car to create an inventory.

Can Police Use a Traffic Stop as an Excuse to Search My Car?

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

If the police see you speeding, swerving, or committing any other traffic offense, the officer has reasonable suspicion to pull you over, write you a ticket and send you on you way. The officer can also, check your driver’s license, check to see if you have auto insurance, and run your license to see if you have any outstanding warrants.

An investigative detention (like a traffic stop) must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. It’s the state’s burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure. See Florida v. Royer, U.S. 491 (1983).

Where this gets interesting is if the officer for example, sees your vehicle swerving at night and pulls you over. The officer gets to the car window and starts talking to you and he smells alcohol, sees you have bloodshot eyes, which he considers clues of intoxication. Now at this point the officer may have developed additional reasonable suspicion to get you out of the vehicle to perform field sobriety tests in addition to the stop for swerving. Another scenario might be if you are pulled over for speeding. As the officer approaches the vehicle, he sees a bag of marijuana on the seat next to you and now the officer has probable cause to arrest you for possession of marijuana and can search your vehicle.

Reasonable suspicion exists when, based on the totality of the circumstances, the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity.  This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether there exists an objective basis for the stop.  The facts relied upon to support a conclusion of reasonable suspicion must amount to something more than a general suspicion or hunch.

Since there is no bright line rule on the when the officer develops reasonable suspicion, it’s an area where a defense to a criminal case can be mounted especially if the officer can not back up his reasonable suspicion with articulable facts or inferences to support his continued detention of you on the roadside. You should consult a Dallas or Collin county criminal lawyer to discuss your case if you are facing charges.

You Can Be Charged With Assault Even If You Are The Victim

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

An assault case can be a very tricky situation. Even if you are the victim in an assault, you can be charged as the aggressor. Here’s why:

A fight of any sort is a very difficult situation for any police officer to come into because it is so dangerous. A responding officer has to be concerned about the participants being injured, making sure the fight is contained before any innocent bystanders are injured, and of course the officer him or herself does not want to be injured. Depending on the situation, there can also be a concern of concealed weapons being brandished or worse, used.

Fights can also happen very fast. This being the case, if you have five witnesses, you could have five different stories of who witnessed what events. Witnesses may also see the fight after it had already escalated and guess at who really started it. The same is true for 911 callers that may hear or see a fight after it had already started and not know who the real aggressor is. Also, different stories can be told from the participants themselves making it very difficult for police to ascertain who is the victim and who is the aggressor.

Arrests have to be made and usually the police don’t have a lot of time to make a call in an assault case—they have to rush to judgment and get the situation under control. As citizens this is exactly what we want the police to do—make arrests quickly and keep us safe. But sometimes the police in haste may get things wrong.

As you can see, an assault charge can be relatively simple, or it can be very fact intensive. An assault charge is also very serious whether it is simple or complex and if it is an assault family violence charge, the impact of a conviction comes with far reaching consequences. And if you happen to think you are a victim, and the prosecutor thinks you are the aggressor, well then you are in for a long ordeal.

If you happen to find yourself in such a situation, I highly recommend consulting with an attorney on how to navigate the justice system and mount a proper defense and if needed get a competent investigator and/or therapist on the case to turn up facts that may not be readily available. A prosecutor is mostly likely not going to listen to you own your own without representation—especially if he or she believe that you were the aggressor.

One thing to consider is if you are the victim and you were injured in the altercation-no matter how minor—make sure you get photographs of your injuries. Sometimes, the photographs themselves can speak volumes and give your counsel just the right amount of leverage to get the case dismissed or reduced.

How Social Media Can Hurt You in a Criminal Case

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

If you have a pending criminal case, or if you believe you may be under criminal investigation in Texas, you have to appreciate just how powerful social media sites like Facebook and Twitter can be on the outcome of your case (or investigation) before it even gets started.

Social media first became popular to young people years ago and now just about everyone is connecting online in some way. You can usually find out some basic information about a person you have just met by searching their name on Facebook. Prosecutors and investigators understand this and will do the same thing. What does you Facebook wall or Twitter page say about what type of person you are?

To help keep yourself away from potential social media legal issues, you must first understand how social media posts can impact you in criminal cases.

It’s possible the words you write and pictures or videos you post can prove damaging in criminal cases. Although it may seem harmless at first, these communications become important when posts demonstrate you did or said something at the time it was posted. The quote will be there good or bad with no context. For example, if you post on Facebook how angry you are at a person and the next day you are in a fight with them and get arrested for assault, the State may use your quote to show your state of mind to try to prove you were the aggressor. Here are some other examples I commonly see in my practice

  • Descriptions and announcements of behavior
           Threats, anger, depression, “wanting to get hammered”, bragging about crimes, etc.
  •  Descriptions or photos of drug use, paraphernalia, or other instruments of criminal activity
          Drugs, illegally obtained firearms, and other illegal weapons
  • Statements or images that place you at a given location
         Checking in at bars (or multiple bars) at a specific times, or pictures of drinking—usually not good evidence in DWIs cases-especially if you are bond for a DWI      charge.
  •  Images or descriptions that implicate you in more serious crimes or illegal activity
         Pictures of you with large amounts of drugs, stolen property, or firearms.

Although you may believe these thoughts or pictures are protected from public view based on what you have selected in your account’s privacy settings; however, the settings guarantee nothing. Facebook and other platforms actively participate with law enforcement to reveal “protected” information. Never assume information you put online isn’t accessible to those who might be investigating you for evidence of criminal activity.

Gov Abbott Signs New Ignition Interlock Bill Into Law–Tougher Laws for People Facing DWIs

214-402-4364-Writ Bond Hotline
bo@kalabuslaw.com
www.rosenthalwadas.com
www.kalabuslaw.com
Office: 972-562-7549

By Bo Kalabus

As of September 1, 2015, Texas will require ignition interlock devices installed on vehicles driven by individuals with occupational drivers licenses as a result of a DWI license suspension. See story here:

http://www.kvue.com/…/gov-abbott-signs-ignition-i…/29187913/

Recent Case Win—Dismissal on Carrying a Gun into DFW Airport Charge by Bo Kalabus

214-402-4364-Writ Bond Hotline
bo@kalabuslaw.com
www.rosenthalwadas.com
www.kalabuslaw.com
Office: 972-562-7549

The client was charged with felony possession of a firearm in places weapons are prohibited after he tried to get through security at DWF Airport with a handgun in his carry-on baggage. The client had just returned from a hunting trip the day before and had forgotten the handgun was in his bag in his haste to get out the door and catch his flight for a work conference. After negotiations with the prosecutors, the State of Texas agreed to dismiss the charges in the interest of justice since it would have been an uphill battle to prove my client intended to carry the handgun into the airport as opposed to an oversight. This dismissal was a huge relief for my client and he was pleased with the result, as he will be able to clear the charge from his record.

Recent Case Win–DWI-Not Guilty, Police Officer Caught Lying

By Bo Kalabus
bo@kalabuslaw.com
www.kalabuslaw.com
www.rosenthalwadas.com

972-562-7549
214-402-4364 (24 hour jail release)

My client was parked in a running vehicle in a storage facility at night. An officer on patrol saw my client’s parked car in what he called a “suspicious place” and pulled in to investigate. In the process, the officer blocked my client in and lit him up with a searchlight, detaining him without a word being said. The officer also believed that he had seen my client urinating from the roadway, which following review of his in-car video would have been next to impossible to see considering the dark conditions. My client admitted to driving the vehicle to the storage area and drinking alcohol. He was ultimately arrested for DWI.

During the course of my investigation, I learned the officer that had arrested my client had been fired by the police agency he worked for. At the hearing on my client’s driver’s license suspension, I questioned the officer regarding his termination and he responded under oath he was not given a reason for his termination—“just during my probation period”. I found this hard to believe and obtained the officer’s personnel file from the police agency. I learned that the officer was terminated for using excessive force and reckless driving. Prior to his termination, the officer had made statements in his defense to both charges, to which his superiors found to not be credible after review of the officer’s in-car video recordings. This officer had also lied under oath to me during the driver’s license hearing, since he knew specifically for what he was terminated.

I urged a Motion to Suppress the vehicle stop, because I believed the officer lacked reasonable suspicion to detain my client as the storage facility did not appear to be a suspicious place and the in-car video showed that the officer could not have seen my client urinating from the roadway. During the suppression hearing, I addressed the issue that the officer lied under oath during my client’s driver’s license hearing and impeached him with his prior statements. Following this, I was able to discuss the officer’s personnel file and caught him in several more misrepresentations during the hearing.

After I finished my cross examination of the officer, I argued that the officer failed to articulate a reason the storage area was a suspicious place, and based on the video evidence and the officer’s lack of credibility, his testimony that my client was urinating outside of his vehicle lacked merit. Following arguments, the judge granted the Motion. With the reason for the stop now moot, we proceeded to a bench trial before the judge and my client was found not guilty.

First “McNeely” case argued before the 5th Court of Appeals in Dallas

214-402-4364-Writ Bond Hotline; Office: 972-562-7549

bo@kalabuslaw.comwww.rosenthalwadas.comwww.kalabuslaw.com

I participated in oral arguments today before the 5th Court of Appeals in Dallas on a case regarding the constitutionality of a mandatory blood draw taken without consent or a warrant under Chapter 724 of the Texas Transportation Code following an arrest for DWI with an accident. Recently, the Supreme Court has held in Missouri v. McNeely there must be exigent circumstances, a recognized exception to the 4th amendment warrant requirement, to force a blood draw without first getting consent or a warrant.

My argument today centered on the lack of exigent circumstances that existed in the facts on the night in question, the ease with which the arresting officer could have obtained a search warrant, and the implied consent statute (724) does not take into account the totality of the circumstances. In short, the way my client’s blood was taken violated his 4th amendment rights.

Our case today could be the first one to come down from the 5th Court of Appeals on this issue when the case is decided in the next few months. I am very excited to be counsel on this case where we are on the leading edge of the law that will help shape how blood is taken in future Texas DWI cases.

Stay tuned for how it turns out.