Does the New Arizona Immigration Law Violate the 4th Amendment?

April 30, 2010

That’s a tough call but my guess is that the Courts will address the issue sooner rather than later.

All of the political issues aside (this is a legal blawg — not a political blawg), one of the chief controversies over the bill is whether it would implicitly require an officer to racially profile potential illegal immigrants.

The author of the bill, Kris Kobach, a law professor from the University of Missouri- Kansas City, believes he has crafted the bill in such a way as to survive a constitutional challenge.  Mr. Kobach states the bill prohibits the use of race, color, or ethnicity from being factors in an officer’s determinations of reasonable suspicion.  This is not unlike Texas’ Code of Criminal Procedure 2.131 which simply reads, “A peace officer may not engage in racial profiling.”

As a specific example in a recent interview, Kobach said, “You might have a vehicle overloaded, no one in the vehicle has any identification whatsoever. The driver of the vehicle is acting evasively and trying not to answer the officer’s questions, perhaps one person in the vehicle concedes that he is unlawfully present [in the US],”

The U.S. Court of Appeals for the 5th Circuit (the Circuit governing Texas and Louisiana — and widely regarded as one of the more conservative appellate courts in the country) ruled to suppress an arrest on similar facts just this past October in United States v. Rangel-Portillo, 586 F.3d 376 (5th Cir. 2009).

In that case Cipriano Rangel-Portillo was charged with multiple counts of transporting illegal aliens.  The facts of the initial stop according to the Court were as follows:

A U.S. Border patrol officer passed a large retail store parking about 500 yards from the Texas – Mexico border.  Due to the close proximity to the Mexican border, the officer stated the area was known for drug smuggling.  He observed two vehicles exiting the parking lot onto the highway and decided to follow them because they looked suspicious.

The officer made several observations about the driver and the three passengers in the vehicle in question. The driver initially looked straight ahead, but when the patrol unit approached the vehicle, he noticed that the driver looked at him and made eye contact. In contrast to the driver, the three backseat passengers avoided eye contact, were “stone-faced,” and looked straight forward. According to the officer, “the passengers didn’t look at [him] enough and the driver looked at [him] too much.”

The passengers never conversed once for several miles and were sweating “pretty bad.” The windows were rolled up and the passengers appeared “very stiff.” The officers could see inside the windows of the vehicle and because they were higher than the suspects vehicle, they could see on the floorboards that there were no shopping bags from the store.

The officers detained the driver and passengers and discovered the three passengers were undocumented.  The Fifth Circuit concluded there was not enough reasonable suspicion to detain the vehicle and the arrest and detention of Mr. Rangel-Portillo was thrown out.

In a nutshell — the border patrol in attempting to establish reasonable suspicion was essentially multiplying zeros.  In other words — one, three, or five perfectly legal activities (albeit suspicious), are still perfectly legal activities and can’t be subject to detention.

Mr. Kobach’s hypothetical scenario, then, appears somewhat at odds with the 5th Circuit’s opinion.  Arizona’s promise to not utilize factors such as race and ethnicity, may be viewed as somewhat unrealistic or tone-deaf in light of how courts analyze situations such as Rangel-Portillo.  Then again, perhaps Mr. Kobach’s buffer language prohibiting racial profiling may be enough to save the statute.  The Court’s analysis will be interesting.

Currently several cities in Arizona as well as the U.S. Department of Justice are reviewing the law to see whether they wish to make legal challenges prior to it’s going into effect.  Stay tuned!

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy F. Rosenthal is an attorney licensed in the State of Texas. Nothing in this article is intended to be legal advice.  For legal advice you should always directly consult an attorney.

www.thecollincountylawyer.com


DWI Surcharges Clog Texas Courts

April 27, 2010

The Dallas Morning News reports a former State District Judge from Waco, David Hodges, told the Texas Driver Responsibility Program in Austin that the surcharges assessed after DWI convictions were clogging the Courts.  You can read the article here.

Mr Hodges is echoing the opinion of many criminal defense practitioners who believe the punishments for DWI related offenses have become so harsh that it makes more sense to fight DWI charges than to simply give in and plead guilty.  Although the article also focuses on where the money for the DWI surcharges are spent by the state, it is important to note the surcharges that accompany a DWI conviction.  They are:

(1) $1,000 per year for 3 years following a DWI conviction;

(2) $1,500 per year for 3 years following a 2nd DWI conviction; and

(3) $2,000 per year for 3 years following a DWI conviction where the blood/ alcohol concentration was 0.16 or greater.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article should be considered legal advice.  For specific legal advice about your own matters you should consult an attorney.

www.thecollincountylawyer.com


Police and Confirmation Bias

April 27, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Confirmation bias is a psychological phenomenon whereby people have a tendency to selectively prefer information which confirms their pre-existing beliefs and hypotheses.

Why is this important in criminal law?  Because every case involves investigation in one way or another.  Police officers can and do fall into the confirmation bias trap.

Textbook signs of confirmation bias include ignoring evidence that contradicts the initial impression of the officer and interpreting neutral facts or exculpatory facts as evidence of guilt among others.

Psychologists have conducted studies on confirmation bias.  In one study, test subjects were given fake police files which weakly incriminated a particular suspect.  Later evidence showed that perhaps a second suspect was the culprit and that the original information was false.  Not surprisingly, the subjects fell into several confirmation bias traps.  They rejected evidence inconsistent with the innocence of the original suspect, they viewed neutral or ambiguous evidence as evidence of the original suspect’s guilt, and finally the suspects ignored evidence pointing to the guilt of the second suspect in favor of evidence against the first suspect.

I see confirmation bias all the time from law enforcement during investigations.  You can tell when it’s going on in certain opinion-oriented cases such as DWI when you read an offense report which omits or wholly ignores evidence that contradicts the officer’s findings.  Often times police will take neutral facts (like where they describe a person as ‘nervous’ at a traffic stop) and attempt to spin that into evidence of guilt.  Obviously that is non-sense as many people are nervous when confronted by authority figures like a police officer in uniform — not just criminals.

Dealing with confirmation bias takes a skilled trial lawyer.  Jurors must be educated during jury selection about confirmation bias and be show the practical example of confirmation bias in action when the officer holds firm to his opinion despite all the contrary evidence.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For specific legal advice for your own matter you should contact an attorney.


Intoxication for PI is Higher than Intoxication for DWI

April 24, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

For the state to convict you of public intoxication, or PI for short, they must prove your level of intoxication is even higher than it would be for a DWI.

Here’s why:  Texas Penal Code 49.01(2) defines intoxicated (in relevant part) as, “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body…”

The above definition of 49.01(2) is the definition used for Driving While Intoxicated in 49.04.

Here’s the difference, though — PI is governed by 49.02 and that code specifically says, “a person commits an offense if the person appears in a pubic place while intoxicated to the degree that the person may endanger the person or another.”

In other words, not only does the person have to be intoxicated (defined by 49.01(2)), but they ALSO must be so to the degree they may “endanger the person or another.”

A simple way of putting it is that to be convicted of DWI, a person must have consumed alcohol to the extent they are dangerous behind the wheel of the car — to get a PI, they must be dangerous merely by being in public.  Obviously it makes sense that there is a stricter standard for operating a motor vehicle.

Public Intoxication cases are class c misdemeanors — meaning they’re lower offenses than DWI.  PI arrests are highly subjective and frankly often done for crowd control reasons or even in cases where the passenger in a car is highly intoxicated (and the driver is getting hooked-up for DWI).  Many officers know that their arrests may very well not end up in convictions, but they feel they are necessary anyway and are supported by the lower burdens of probable cause.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice, you should directly consult an attorney.


You Can Still Win a Breath Test Case with a Blood/ Alcohol Concentration over 0.08

April 22, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

You can be acquitted of DWI even if your breath and/or blood score is above a 0.08 and this is why:

Texas Penal Code 49.04 defines Driving While Intoxicated in the following manner, “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.” (Emphasis mine)

Texas Penal Code 49.02 (A) and (B) legally define intoxicated as, “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or  having an alcohol concentration of 0.08 or more.

As you can see, your blood alcohol concentration must be at 0.08 or more while you are operating a motor vehicle… not an hour or two hours after you operated a motor vehicle for the State to convict  you based on that definition.

This brings us to the concept of “retrograde extrapolation.”  While that sounds like a NASA term, retrograde extrapolation is the science behind trying to determine what someone’s blood alcohol concentration was several hours in the past.

Several things factor into retrograde extrapolation.  A person with the proper scientific background (usually the State’s breath test expert) can calculate what someone’s approximate blood alcohol concentration was at the time of driving based on factors such as height, weight, gender, type of alcoholic beverage consumed, and type or quantity of meal and time of the last drink.

It is not uncommon for the witness (typically the State’s breath test expert) to estimate that a person’s blood alcohol concentration was below 0.08 at the time of driving (or that the person’s BAC was actually higher while driving than it was at the time of testing) based on the retrograde extrapolation facts.  Jurors, then, may have a reasonable doubt as to whether the driver had a BAC of 0.08 or more while driving even though their breath test scores are above 0.08.

As a point of caution — retrograde extrapolation is based on scientific principals and Courts have limitations on what jurors will be allowed to considered as scientific testimony.  Only cases where the BAC score is reasonably close to 0.08 may cause the BAC to extrapolate low enough to make a difference.  For instance, it doesn’t help your case if the State’s expert witness says “instead of a 0.14, the subject was possibly at 0.13 at the time of driving.”

Police routinely question people (usually after the breath test) about what they had eaten, when they last ate, when they last drank, etc.  These questions are for the purposes of later retrograde extrapolation.  These questions are testimonial in nature and you have the right to refuse to answer them — which is typically the safer course.

Finally, a jury can simply have a reasonable doubt as to the validity of the breath test score — regardless of what it is.  If the jury has a reasonable doubt that the person on trial is intoxicated (on all the legal definitions of 49.02) — the verdict would be not guilty just the same.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For specific legal advice you should consult an attorney.