San Antonio Injury Attorney Blog

In a Texas criminal case, the State of Texas represented by the District Attorney's office, possesses the highest burden of proof under the law. A San Antonio criminal defense attorney will explain during jury selection all of the burdens of proof separately.

The first basic element is reasonable suspicion, which is the element needed for the police to stop and detain a person. The attorney will enlighten the jury by explaining how little it takes for a police officer to legally effectuate a stop. The next level of proof is "probable cause", which is more than reasonable suspicion. Probable cause is all that is necessary for a criminal defendant to be arrested, booked, set on bond, and stand for trial.

In its most basic form, probable cause essentially means that police are required to arrest someone if that person could be guilty of committing a criminal offense. The law encourages a police officer to err on the side of safety. When the arrested person does not contest the charges, then the court resolves the case usually through a plea agreement. However, when an arrested person disagrees with the charges, then the first time he is entitled to have a group of independent citizens review the case is when a jury is chosen. In Texas, the judge does not prescreen a case, so the only people who have reviewed the case are law enforcement and the district attorney.

It is important to note that when a jury walks into the courtroom, their level of respect for the judge, law enforcement, and the district attorney outweigh their respect for the defense counsel. Yet it is important to note that the role of the judge is to decide the law, and he does not know the facts of the case before the trial. The district attorney simply presents the facts received from law enforcement to the jury.

The next burden of proof to be explained during voir dire (a unique Texas name for jury selection) is preponderance of evidence, This is the common burden of proof in civil courts and it means that a jury must find that one side has presented evidence of greater weight than the other side. The unique analogy is that of the scales of justice - enough evidence is presented to tip the scale or there was more than 50% evidence favorable for one side.

The next level of proof is clear and convincing evidence. A San Antonio criminal defense lawyer will question how many jurors have children. A key question to ask jurors during voir dire how much evidence would be necessary would be necessary for the government to remove children from the home. Most jurors would reply that government would have to prove beyond doubt before taking children. Yet the standard of clear and convincing evidence needed to terminate parental rights and take a child away from the home is a lesser standard than the standard of beyond a reasonable doubt. A common question to ask when trying to describe beyond a reasonable doubt is whether someone is willing to bet their own children that a person is guilty beyond a reasonable doubt.

"Beyond a reasonable doubt" is quite simply the highest burden of proof in the courts today and it is dictated on the government by the Constitution. Each juror should voice their agreement that the burden of proof of beyond a reasonable doubt should be placed on the state and the jury plans to hold the government to that burden as required by the US Constitution.

Each crime contains specific elements on which the government bears the burden of proof. If the state cannot prove each and every element of the crime beyond a reasonable doubt, then each juror must be willing to return a verdict of Not Guilty. It is important in a Texas criminal defense case that the jury believes it is permissible to find someone not guilty when the law requires it, and that their jury service is no less valuable if they returned a Not Guilty verdict.

A 'Not Guilty' verdict does not mean that the jury disagreed with a law enforcement officer's decision to arrest. The jury can vote Not Guilty and the police officer would still have done a commendable job.

In our last blog entry, we discussed basic temperature issues with the Intoxilyzer 5000. The machine possesses a so-called electronic "eye" that searches for alcohol molecules in the breath sample. The data is sent to a microprocessor which then extrapolates the amount of alcohol content based on two hundred ten (210) liters of air. Remember that the basic formula is an alcohol concentration of 0.080 in 100 milliliters of blood which is supposed to correlate to 210 liters of breath - i.e. a BrAC formula of 0.080 g / 210L . Of course, the machine is nowhere near 210 liters and in fact the sampling chamber inside of the machine only fits 81 milliliters of air - less than the size of soda can.

The microprocessor contains a computer program, but the technical supervisor knows nothing about the actual program. CMI, the manufacturer of the Intoxilyzer 5000, hold the program as a trade secret. When CMI delivers the Intoxylizer to the technical supervisor, the computer program is already on the machine and technical supervisor cannot access the program. Nor is the program ever updated such as we typically expect for GPS or other programs that get internet updates. Once the technical supervisor takes possession of the machine, there is an assumption that the mathematical program used to calculate the breath alcohol concentration is accurate. A San Antonio DWI lawyer would point out to a jury that he cannot employ an independent computer expert to verify the accuracy of the program - that is a distinct advantage for the State and one that should make jurors wonder. If the manufacturer is the only entity that knows anything about the computer code and there can be inherent problems with computers, jurors will wonder.

The next key issue is a scientific principle known as retrograde extrapolation. According to Texas DUI law , the DA has to prove the driver was intoxicated at the time of driving. Yet the test on the breath machine reflects a breath alcohol concentration at the time of the breath test, not at the time of driving. Adding up all the time for the actual stop, conducting the field sobriety tests , the arrest, hauling away the driver's vehicle, transport time to the precinct, reading of Miranda warnings, and the fifteen (15) minute observation period, more often than not at least an hour has passed from the time of driving until administration of the breath test. The passage of time then begs the question as to what was the breath alcohol concentration at the time of driving.

The DA often uses the technical advisor to give testimony as to the breath alcohol concentration at the time of the stop, using principles of retrograde extrapolation. There are multiple factors that go into retrograde extrapolation including the amount of alcohol consumed, type of alcohol consumed, rate of consumption, when it was consumed, how much food if any was ingested, the type of food ingested, when it was ingested, the last time the driver slept, and the length of sleep. Other factors include height, weight, and other physical conditions that could impact retrograde extrapolation.

There are several Texas DUI cases which discuss retrograde extrapolation. In Mata v. State, the Court of Criminal Appeals ruled that unless specific factors are analyzed properly, any calculations as to the breath alcohol concentration at the time of driving are not reliable. In Stewart v. State, the 4th Circuit Court of Appeals in San Antonio ruled that a breath test taken more than eighty (80) minutes after a stop would make retrograde extrapolation calculation inadmissible. The Court of Appeals reasoned that it would be impossible after 80 minutes to determine if the defendant was absorbing alcohol (meaning the breath alcohol concentration would be on the rise) or eliminating alcohol (meaning the breath alcohol concentration would be falling).

A San Antonio DWI lawyer will ask the court prior to trial to prevent the DA from using or suggesting retrograde extrapolation. Generally, the police ask the driver a series of questions designed to get information to do a retrograde extrapolation calculation. If the driver answers questions regarding retrograde extrapolation, then a San Antonio criminal defense attorney will need to employ an expert to challenge the calculation.

In our last blog entry we discussed mistakes breath test operators make during the administration of a DWI breath test . In this blog entry we will discuss other temperature issues involved with the Intoxylizer which a San Antonio DWI lawyer can exploit to create reasonable doubt.

The basic premise of the Intoxylizer is that its results are based on the average temperature of a person - 98.5 degrees Fahrenheit. Yet many people's average temperature vary by a few degrees higher or lower than this number. So theoretically, if the driver's core base temperature is greater than 98.5 degrees Fahrenheit, then the Intoxilyzer will yield a test result that is greater than the true measure of the breath alcohol concentration (BrAC). More often than not, the operators do not take the driver's initial temperature and record it so they can make adjustments off the test results.

In fact, if the case is a Bexar County DWI matter and the breath result was taken in the San Antonio Magistrate's office, there would be a medical professional present at all times who can take the driver's temperature and it would not be difficult.

Another important factor is the tube where the driver blows into the chamber. Many jurors do not know that the tube itself is heated and temperature has to be calibrated. A heated tube can impact the breath sample temperature and consequently the BrAC. The reality is that the technical supervisor for the Intoxilyzer cannot say if the tube temperature was in proper order when the driver blew into the tube. The tube could theoretically be at a higher or lower temperature than recommended.

In addition, there are temperature issues a Comal County DWI defense lawyer can also point out with the chamber. Sometimes, a technical supervisor will argue that the test sample temperature is not significant due to the chamber temperature. This is faulty reasoning because it is a requirement that the test sample temperature be monitored prior to starting the breath test. There would be no requirement to monitor the temperature of the test sample if the heat of the chamber cancelled out the driver's core body temperature.

As noted above, temperature can be a major factor in the ability to challenge the Intoxilyzer results and obtain a favorable DWI defense.

In our last blog entry, we discussed the variance on breath test results for the Intoxilyzer 5000 and how a breath test result of .089 should raise the question of reasonable doubt.

The results on breath alcohol concentration can be affected if there is any alcohol in the mouth. The guidelines require a fifteen (15) minute time period of observation to make sure the mouth is cleared of alcohol. In addition, alcohol in the stomach can get into the mouth if the person belches. That is why if at any time a person belches during the fifteen (15) minute period before giving a breath sample, the person must wait another fifteen minutes before giving a sample.

A strong San Antonio DWI lawyer defense tactic is to query the breath test operator as to whether he keeps a log sheet reflecting the beginning of the observation period and whether that time matches with the time listed on the records. Yet more often than not in Bexar county and surrounding counties, there is no real procedure to reflect when the observation period commences.

Many New Braunfels DWI attorneys will ask the breath test operator if they have video of the breath test and whether they have videotape of the required 15 minute observation period. More often than not, the video is missing. Jurors often question why there is no video of the breath test and the observation period if the prosecutor is relying so heavily on video of the traffic stop . There is a question then as to whether the breath test operator complied with the mandatory 15 minute observation period.

Besides a 15 minute observation period, the breath test operator must verify the temperature of a test sample of fluid. The purpose behind a test of the temperature is to simulate a person's lung. When alcohol evaporates from the blood, it collects in the lungs and leaves the lungs when a person exhales.

The breath test supervisor mixes water and alcohol in a container and pumps evaporated water from the jar into the Intoxilyzer 5000. If the water and alcohol is properly mixed, the test sample will read .08 .The test sample fluid and the evaporated water should be at a certain temperature because a person's temperature can affect breath test results. A temperature higher than 98.5 degrees will create a higher result. The temperature of the test sample must be at 98.5. A technician uses an old-fashioned mercury thermometer to test the temperature of the test sample. In an age of digital thermometers, many jurors will question whether a mercury thermometer is enough of a precise instrument.

More often than not, neither the breath test operator nor the technical supervisor employ a log sheet to record the temperature of the test sample at the time the person is blowing into the Intoxylizer. Again, this omission can be exploited by a skilled Atascosa criminal defense lawyer .

In our last blog entry, we discussed how an Intoxilyzer 5000 has to detect a minute amount of alcohol in a breath sample without error. A Floresville criminal defense attorney must highlight the weaknesses in the machine's accuracy.

Specifically, the test results from the machine are + / - 0.010. A test sample can be off by 0.010 under the Texas Administrative Code . We discussed that the test sample should be 0.080 but in reality, the sample can range between 0.070 and 0.090 and still be considered reliable.

The strongest cases are where the breath sample is between 0.080 and 0.089. If the accuracy rating is + / - 0.10, then the breath sample can be off by 0.010 . Thus, a breath sample was 0.087, then theoretically, the true result could very well be 0.077. Theoretically , the State can argue that the accuracy variation of + / - 0.010 means a breath result of 0.088 could be 0.098. However, that type of variation is further evidence that this machine does not possess the precision it claims.

A jury would be hard pressed to convict beyond a reasonable doubt where the breath sample is below or equal to 0.089.

In addition, the test operator must observe the arrested driver for at least fifteen (15) minutes to make sure the driver does not inadvertently belch causing stomach gas to build in the mouth . Moreover, the test operator has to make sure the temperature is proper on the test sample jar before commencing the test.

You should immediately contact an Austin DWI lawyer especially if your breath test was less than or equal to 0.089.

In our last blog entry, we began our discussion of the scientific formulas behind a DWI breath test on the Intoxilyzer 5000 . The machine's objective is to measure the amount of alcohol in the driver's breath. It is critical for a New Braunfels criminal defense attorney to highlight the weaknesses.

The underlying weakness of the machine is that it supposed to calculate whether there are 0.080 grams of higher of alcohol per 210 liters of breath. Yet the machine does not examine or even hold 210 liters of air. An oil drum containing over 50 gallons holds 210 liters of air. A person's lung holds about 6 liters of air. In reality the Intoxylizer 5000 only holds eighty (80) or so MILLILITERS of air, the equivalent of a soda can.

A gram of alcohol is comparable to an Equal packet. In reality, the Intoxilyzer is attempting to measure eight (8) one-thousandth of that size. If the formula is 0.080g/210L and the Intoxilyzer can only hold eighty (80) milliliters, then that is the equivalent of .00003 grams of alcohol to be proportionate to 210 liters.

What does this mean ultimately ? It means the Intoxilyzer has to detect an incredibly minute amount of alcohol in a breath sample reliably.

To work properly, the driver must exhale 81 milliliter of air into the machine. An infrared light analyzes the molecules in the breath in conjunction with photoelectric cells and a light filter. The photoelectric cell examines the alcohol molecules and measures the amount of alcohol as if the full 210 liters of air were in the chamber. The machine spews out a Test Record.

The printout Test record lists the alcohol concentration with an empty air chamber which should be 0.000 under the heading of Alcohol Concentration. The driver then gives the first of two samples of air by blowing into the Intoxilyzer chamber. After testing the sample, the chamber is flushed with air from the room - there is no filter on the chamber when the air is flushed in. Before the 2nd sample is measured, a test sample is pushed through the chamber for measurement. The test sample is supposed to have 0.080 grams of alcohol in the water. The technical supervisor formulates the test sample. Another sample of air from the room is pushed through the chamber.

The 2nd sample is taken and the chamber is flushed out with room air again. With 2 samples, the jury is instructed to only account for the lower sample. In our next blog entry, we will discuss how a San Marcos DWI attorney can exploit accuracy issues with the Intoxylizer 5000.

In our recent blog entries, we discussed DWI defense techniques against Field Sobriety tests . Today, we will focus our discussion of Jourdanton DWI criminal defense by examining the Intoxylizer 5000 and a defense against a breath test over the legal limit.

A San Antonio DWI lawyer will have the TX Breath Alcohol Testing Program Operator Manual at his disposal as he prepares to defend against a breath test result from the Intoxilyzer 5000. Many ever-changing factors influence the machine (and the results it spews out), and these conditions will lay the foundation for challenging the accuracy of the breath test.

The Intoxilyzer 5000 simply has too many flaws to be used to prove results beyond a reasonable doubt. Much like a computer or vehicle, the machine is prone to malfunctions and inaccurate, unreliable results due to maintenance, operator error, lack of proper calibration, and simple glitches. Jurors can very well sympathize with the reliability issues associated with the machine especially if they have encountered problems with a computer or car.

The Intoxilyzer is based on a formula of 0.080g/210L. Essentially, eight (8) one hundredths of a gram has to be detected in two hundred ten (210) liters of air. TX Penal Code Section 49.01 outlines the same blood alcohol content of .08 - a blood alcohol content (BAC) over .08 means the person is intoxicated at the time of testing.

In order to convert the blood alcohol content (BAC) to an equivalent breath alcohol content (BrAC), the TX Legislature determined that 210 liters of air converted into 100 milliliters of blood. So , here are the equivalent formulas:

BAC - 0.080g/100ml of blood
BrAC - 0.080g/210L of air

When trying to prove the BAC through the equivalent breath sample, the prosecution calls upon the breath test operator and the technical supervisor. The breath test operator will discuss proper administration of the test to the driver and the Test Record, which is a piece of paper reflecting the quantities of alcohol per 210L of air. The supervisor will discuss the reliability of the Intoxilyzer 5000.

In our next section, we will discuss in further detail how a San Marcos DWI lawyer can attack the reliability of the breath test.

In our last blog entry, we discussed weaknesses a San Antonio DWI lawyer could utilize when defending against the Walk and Turn . Today, we will discuss the final Field Sobriety test - the one-leg stand (OLS).

During this test, the driver stands with his feet together and arms at his sides. The police officer relays the instructions which involve lifting one leg six (6) inches off the ground while counting out loud. Under NHTSA regulations , the officer must time the event for thirty (30) seconds, but the officer does not tell the driver the length of the test. The driver is intoxicated if he cannot perform the test for the thirty (30) seconds.

Interim signs of impairment during the test include swaying, using the arms to balance, hopping, and putting the foot down. A New Braunfels TX DWI lawyer can argue against a video that shows the client hopping or putting his foot on the ground. Perhaps the ground was uneven and a client who catches himself rather than falls is not really impaired. Wind is also a factor that can cause a person to lose balance and the video will often reflect the weather conditions.

A San Marcos DWI lawyer may also obtain medical records reflecting the driver suffered from back or knee problems or a neurological deficit - medical issues play an important role in performance on field sobriety tests. Many times, a criminal defense attorney may ask the officer to perform the field sobriety test, but this technique can backfire if the arresting officer performs the tests correctly. In cases where the officer performed the test correctly, a strong argument is that the officer may have performed the tests numerous times before, and the driver had to perform these tests for the first time.

In our last blog entry, we began our discussion on effective San Antonio and greater Bexar County DWI defense strategy of the Walk and Turn (WAT).

Normally, even the most sober of drivers will utilize their arms to maintain a semblance of balance when standing with one foot in front of the other , heel to toe, while turning to listen to an officer? It is not a normal starting position, and most officers will reply it is unusual and that some use of the arms is usually necessary to maintain balance.

On the video, based on NHTSA guidelines, an officer will only do 3-4 steps and they usually reply that they are only trained to show three to four steps. Immediately, you can perk up the jury's attention by pointing out that the officer did not perform the entire test as he had demanded of the driver on the date of arrest.

According to the NHSTA manual, there are a total of eight (8) clues as to proper performance on the WAT. In reality, however, the WAT in essence consists of eighteen (18) steps - 9 one way, the turn around, and 9 steps back. That is well over 25 tasks the driver must perform correctly to pass - it not simply 8 clues. If a driver performs a mistake in stepping only 2x, he has still performed over 90% of the tasks correctly, which is excellent on a test people normally do for the first time in their life when they are asked to perform them on a Jourdanton DWI stop.

The NHSTA Manual makes the bold prediction that failures on field sobriety tests equate to a Blood Alcohol Level of greater than .10. There is absolutely no scientific foundation for such a claim. Many prosecutors will try to sneak it in by asking the officer to comment based on his experience what the Blood Alcohol Level of a person failing the tests would approximate. Regardless of experience, an officer is simply not qualified to comment, and the lack of scientific basis underscores that inability to estimate.

Never submit to a Field Sobriety Test. If you have been charged with a Texas DWI, contact a San Marcos TX DWI attorney immediately to learn the best defense.

In our last blog entry , we completed analysis of the criminal defense of the Horizontal Gaze Nystagmus (HGN) test.

The next major test a New Braunfels DWI lawyer must overcome is the Walk and Turn (WAT), where the driver is instructed to walk heel-to-toe while counting in a loud voice with each step. In this test, the driver will walk nine (9) steps , turn around, and walk back nine (9) steps. All steps are heel-to-toe. In this test, the arresting officer wants to highlight the inability of the driver to maintain his balance and / or a failure to properly follow instructions.

According to the National Highway Traffic Safety Administration (NHTSA) Manual, there are eight (8) potential clues. If the driver fails on at least 2 of the clues, then the theory goes that the Blood Alcohol Level (BAC) is over the legal limit of .10. During the test, the driver may make mistakes such as stepping off the line. The Manual states the person has failed the test if he steps off the line more than 3x. Any evidence that the driver is about to fall and injure himself is also enough to demonstrate a failure on the WAT.

According to the NHTSA, the accuracy of the Walk and Turn approaches 70%, which is not exactly a strong indicator of reliability. The theory goes that a failure of all three tests (HGN, WAT, and One-Leg Stand) demonstrates enough reliability to show intoxication over the legal limit.

A San Antonio DWI attorney must carefully review the videotape of the Walk and Turn to aggressively defend against this test. The first point of attack is the starting position. In the WAT, the driver is supposed to place his right foot forward, placing the heel of his right foot against the toe of the other foot. He may not use his arms to balance and the arms must be at his sides. Simultaneously, the arresting officer will position himself to the side of the driver and begin instructing him on conducting the WAT. The driver will inevitably turn his head or body to listen to the officer while he stands in this position. Sober drivers would have a hard time maintaining this position without using their arms to keep from stumbling. Thus, from the outset, the WAT is designed to make a person look foolish.

During trial, the prosecution may ask the officer to come down from the stand to demonstrate a field sobriety test. Rarely does an officer assume the starting position demanded during the WAT. A strong DWI defense tactic is to question the officer on a normal standing position - feet shoulder width apart and arms dangling. More often than not, that is exactly how the officer will initially stand when he explains the tests.

In our next blog entry, we will focus on additional ways a Comal County DWI lawyer can attack the Walk and Turn Field Sobriety Test.

In our last blog entry, we discussed some ways to attack the validity of the Horizontal Gaze Nystagmus (HGN) test.

During a jury trial, the jury will review the video, but it is highly unlikely that they can pick up the subtle bounce or nystagmus of the eye from the video. They are essentially relying on the officer's testimony that he witnessed clues of intoxication related to nystagmus. A jury will be extremely doubtful of the officer's observations, if a Bexar County DWI attorney can demonstrate that the officer has written reports with mistakes, that his testimony differs from the video, and that he did not perform the HGN test according to NHSTA specifications.

An especially strong tactic is when the officer claims that the driver was swaying and unable to stand steadily. Well, the inevitable question when an officer testifies like this, is how on earth he could possibly estimate a 45 degree angle for onset of nystagmus if the driver is swaying? The officer will either claim he could detect the nystagmus before a 45 degree angle was reached on a person moving back and forth or that somehow the driver was able to stand still throughout the HGN field sobriety test. The officer will inevitably contradict himself and the jury will cast doubt on his credibility. Any swaying during the HGN will ultimately render the HGN test invalid. If the officer contends the driver was swaying but then remained still during the HGN test, the jury will question whether in fact the driver was intoxicated if he was able to stay still during the entire administration of the HGN test.

Another key weakness of the HGN test brought out by the DWI video is that very rarely does the driver give his permission for the officer to do the test. Nor does the officer ever ask the driver. The officer will ask innocently if he can check the driver's eyes without telling the driver that he is in fact administering a field sobriety test. Ultimately, a driver has the right to refuse any and all field sobriety tests, and jurors will interpret the officer's actions as being underhanded and unfair.

The NHSTS had indicated that nystagmus is not necessarily a product of intoxication and can in fact be attributed inner ear infections, brain tumors and brain damage. More likely than not, the officer will not take the time to see if the driver may have had any of these conditions. Nystagmus is attributable to many different factors, and it does not follow that intoxication must have been what caused the eye to bounce. A Wilson County DWI attorney can effectively cross-examine an officer on the HGN test and negate any inferences of intoxication.

In our last blog entry, we discussed the basics of the Bexar County HGN Sobriety Field Test . In this blog entry, we will now discuss some inherent weaknesses of the HGN test as a test of intoxication. A seasoned San Antonio criminal defense lawyer will be able to employ certain techniques to demonstrate to a jury the inherent weaknesses of the HGN test as a test of intoxication.

There are certain time periods in the NHSTA manual regarding the administration of the HGN test that must be followed. Specifically, there is a certain length of time that must be met in the "smooth pursuit" test as the officer moves the flashlight in front of the driver's eyes. When the officer directs the flashlight to the side, that light must be held at maximum deviation for a specified time. A well trained Bexar County or Wilson County DWI lawyer will scrutinize the DWI video and make sure the tests are done within the proper time parameters according the NHSTA standards.

We know that under the HGN test, there can be up to 6 clues of intoxication - three (3) clues in each eye. According to the NHSTA manual, when four (4) or more clues are present whether it's through lack of smooth pursuit, a distinct nystagmus, and onset of nystagmus before a 45 degree angle, the HGN is accurate a little over 75% of the time. This 75% rate means that inherently the HGN test has a 25% rate of error when it comes to predicting intoxication. A 25% rate of error is certainly not a low enough rate of error in any juror's mind to demonstrate legal intoxication beyond a reasonable doubt.

A strong San Antonio DWI lawyer will also attack the statement of the NHSTA that a driver's Blood Alcohol Concentration is above .10, when there are at least 4 clues present during the HGN test. There is absolutely no scientific basis for such an assumption and such a statement is likely to be suppressed at a hearing.

When the HGN test is not performed per NHSTA specifications, then it is an invalid test and it can be argued that it is not valid evidence. A strong Texas DWI attorney will argue to a jury that incorrect performance of the HGN test renders any assumptions about intoxication clues worthless.

Another weakness in HGN administration stems from the presence of the patrol vehicle's overhead lights. The flashing of the overhead lights can alter the gaze and the arresting officer must admit that the flashing overhead lights will render the test invalid. In fact, facing traffic at night from passing traffic can also hurt the effectiveness of the HGN test.

There are also issues with estimation of a forty-five (45) degree angle on the driver's eyes. Exactly how does the officer estimate that the driver's eyes have reached a forty-five degree angle? The officer will counter by stating he can determine the angle based on the shoulder of the person. However, inherently, that is a bad way to estimate the 45 degrees because the distance between the head and the shoulders varies from person to person.

There is also the difficult question of exactly how the officer detects the nystagmus or the eye bounce - it is incredibly subtle. How good is the officer's own eyes - does he wear glasses or contact lenses?

In the next blog entry, we will continue to discuss additional ways for a San Antonio DWI attorney to attack the Horizontal Gaze Nystagmus Standard Field Sobriety Test.

In our last blog entry on general issues regarding Texas DWI SFSTs , we touched on the three (3) major field sobriety tests. Today, we will discuss the first major SFST. In Bexar County and surrounding Wilson and Atascosa County, a seasoned San Antonio DWI lawyer must deal with challenging the first major DWI Field Sobriety Test (SFST): Horizontal Gaze Nystagmus (HGN). During this SFST, an arresting officer will employ a flashlight and position the flashlight in front of a driver's eyes.

The flashlight is moved back and forth to test whether a driver's eyes will involuntarily jerk or bounce when the eye rotates far to the left or right. Physiologists call the bounce a nystagmus and the jerk of the eyes will usually occur to the left or right, making it a horizontal nystagmus as opposed to a vertical nystagmus.

According to the National Highway Traffic Safety Administration (NHTSA) Manual, there are three clues of intoxication related to the HGN test for each eye for a total of six (6) possible clues. The three basic HGN clues are a lack of smooth pursuit by the eye, a distinct jerking or nystagmus, and a jerking of the eye before it reaches a forty-five (45) degree angle.

With respect to a lack of smooth pursuit, the officer must determine the answers to the following basic questions as he moves the flashlight back and forth across the driver's eyes. First, can the driver actually follow the light in a smooth manner without the eye bouncing? If there is a jerk of the eyes, then that is considered a clue of intoxication. A common thread in every DWI report is the police officer's observation that he observed a lack of smooth pursuit in the eyes while conducting the HGN test.

The 2nd clue is whether the police officer detected a distinct jerking of the eye. The officer will position the light as far to the right or left as possible and hold the light there for several moments to determine if there is a distinct jerking of the eye. The magic words for the 2nd clue that police officers often annotate on their reports is a "distinct and sustained nystagmus at maximum deviation".

The 3rd clue is whether the jerking of the eye commences before the eye moves 45 degrees. If there is a jerking of the eye before the 45 degree angle, then that can be noted as another clue of intoxication.

In many San Antonio DWI cases, there may be a mention of vertical nystagmus (VGN), which would entail an up and down jerking of the eyes as they look up as opposed to HGN , the left or right jerking. No reliable scientific data exists on vertical nystagmus, even though the NHSTA manual states onset of VGN is a reliable demonstration of high amounts of alcohol or drug intoxication. A Bexar County or Atascosa County DWI lawyer can move to suppress this type of junk science on VGN since it does not have scientific reliability.

There are basic Standard Field Sobriety Tests (SFSTs) prescribed by the National Highway Traffic Safety Administration (NHTSA): the Horizontal Gaze Nystagmus (HGN), the Walk and Turn (WAT), and the One-Leg Stand (OLS). A San Antonio DWI lawyer will have a strong grasp of how Texas law enforcement is supposed to administer the tests and the specific vulnerable areas in each test that are open for challenge.

There are some basic general concepts regarding SFSTs. The SFSTs are constructed in such a manner so that the participant WILL fail them. Within a short time after the driver has exited the vehicle, law enforcement has already decided that the driver is intoxicated and only seeks SFSTs to convince a jury on video. The SFSTs must be administered by qualified law enforcement. A San Antonio criminal defense lawyer will obtain proof of certification from the Texas Commission of Law Enforcement Officer Standards and Education (TCLEOSE) . Moreover, active certification only lasts 2 years before the officer requires recertification. Therefore, there is the very real possibility that an officer is not properly certified to administer the SFSTs.

In our last blog entry, we discussed how San Antonio law enforcement will use distracting questions that are not DWI standard tests in order to see if the driver can perform different tasks at once. This "unusual" questions technique continues while the officer gets ready to administer the SFSTs. The officer will ask the driver to move to a different position before each SFST to demonstrate on video if the driver sways and stumbles while moving to a different area of the roadway.

Texas law enforcement will not make notations on the report that an allegedly intoxicated driver moved steadily without stumbling to different sections of the roadway to perform SFSTs - it is up to a Texas DWI defense lawyer to point out to the jury and on officer questioning that the driver was exhibiting signs of non-intoxication in his movements.

Whether the driver is intoxicated or not, the SFSTs have characteristics that make failure inevitable. The Bexar County District Attorney and SAPD will point out all the negative points concerning the driver's participation on the SFSTs - a strong Bexar County DWI lawyer must educate a jury about all the clues of non-intoxication.

In our last blog entry on phases of the Texas DWI Stop , we discussed Phase 1 (Vehicle in Motion) and Phase 2 (Personal Contact). When we left off, we discussed how a police officer will try to divide the attention of driver by asking distracting questions to see if the driver can handle "divided attention" tasks.

Another tactic which is not used by the San Antonio Police that much is to ask unusual questions. These are not standard tests - for example, a police officer might ask the driver to recite the alphabet from "F" to "Q" instead of the normal ABCs. Another unusual question is counting backwards from 79 to 60. The bottom line is than any jury member, when given such questions, whether or not they are intoxicated , would tend to get confused.

The "unusual question" test is not a Standard Field Sobriety Test (SFST) and a San Antonio DWI defense lawyer will use trial motions to have the court exclude such test. If these tests are not excluded, the officer will still be forced to admit under the National Highway Traffic Safety Administration (NHTSA) Manual, an inability to perform or answer such unusual tests / questions does not constitute probable cause for intoxication.

The next aspect of Phase 2 is the driver's exit from the vehicle. How the driver exits will give the officer certain cues as to intoxication that are usually captured on video and become part of the police report. If a driver literally has to crawl out of his vehicle or leans noticeably against his car once he exits, then such behavior become intoxication clues. However, if the vehicle itself is a mini sports coup, then climbing out of a vehicle is not necessarily a sign of intoxication. Propping up one's back against a vehicle may also be considered a normal thing to do. There have been instances where the DWI video will actually show an assistant police officer using his arms against the vehicle to support himself while the driver is being questioned.

In our next blog entry, we will cover Standardized Field Sobriety Tests (SFSTs) in which officers test a driver's balance and coordination as well as their ability to comprehend and execute verbal and physical instructions. If you have been charged with a DWI, contact a San Antonio DWI Defense attorney without delay to protect your rights and preserve key evidence.

In the majority of DWI cases in San Antonio, the Bexar County District Attorney usually has a video demonstrating the alleged offender performing a series of field sobriety tests with a breathalyzer score over the legal limit of .08.

Given these elements, you may feel that a San Antonio DWI lawyer has very little chance of obtaining acquittal. This blog entry will cover some aspects of how a DWI defense attorney can reveal the shortcomings of both the Standard Field Sobriety Tests (SFSTs) and readings from the Intoxilyzer-5000 breathalyzer.

Officers in the San Antonio Police Department receive their training on how to conduct DWI arrests from the National Highway Traffic Safety Administration (NHTSA)manual. This manual lists several important standards that must be met in order for officer to properly detect intoxicated drivers and properly conduct the SFSTs.

Many times, a Bexar County DWI lawyer will know the NHTSA manual better than the arresting officer, and the attorney can exploit the officer's lack of knowledge concerning proper administration of SFSTs.

There are three (3) specific phases of the DWI stop. The first phase occurs when the vehicle is in motion. The NHSTA manual lists twenty-four (24) visual cues of impairment. Yet many of these cues can be due to simple explanations like talking on a cell phone or changing out a CD from the stereo. These innocent explanations can explain why a car could be seen drifting. It is important to note that one of the 24 cues for drunken impairment is not speeding. On cross-examination, the officer will admit that a stop for speeding does not justify a DWI stop.

The second phase of the DWI stop is personal contact with the driver, where the officer can employ senses of sight, hearing, and smell. Read any DWI arrest report, and you will see some common trends. Invariably, the officer always states that he saw the driver with blood shot eyes ; he heard the driver slur his speech and state he drank a specific number of drinks; and the officer smelled alcohol on the driver’s breath or an odor of marijuana coming from the vehicle.

The video often demonstrates the officer asking the driver to exit the vehicle, but not before the "pre-exit" interview. During this phase of the officer's investigation, the officer engages the driver in a concept known as "divided attention". That is, the officer will request the driver to do multiple things at once, such as showing both the license and registration. The objective of the "divided attention" test is to determine if the person has issues concentrating on two or more things simultaneously, which may be a sign of impairment. Another common "divided attention" tactic is to ask the alleged suspect distracting questions such as where they were driving as the person searches for the license and registration.

A San Antonio DWI attorney will effectively be able to argue to a jury that any person, whether or not they are intoxicated, will stop searching for a license / registration when a police officer interrupts them or the person may stop searching when the officer asks another question. These are natural tendencies and do not signify a person is intoxicated.

In the seminal case Berghuis versus Warden , the United States Supreme Court issued major changes affecting the invocation of Miranda rights. Specifically, the Supreme court led by Justice Kennedy ruled that a defendant must clearly invoke their right to remain silent ie. their Fifth Amendment right against self-incrimination. In the past, an accused could stay silent and this was enough to invoke the right to remain silent. No more...

Under the facts of Berghuis, the Court ruled that the defendant had to explicitly and unequivocally state to the arresting officers that he was invoking his right to remain silent. By NOT expressly invoking his right to remain silent, in effect the Supreme Court ruled that the accused was WAIVING his right to remain silent.

According to the facts, an accused Michigan man sat for three (3) hours in silence while officers interrogated him and then confessed to a murder. The question was whether the defendant's silence constituted an invocation of the right to remain silent, such that the confession was inadmissible. The Supreme Court ruled that under such circumstances, it would have been impossible for the officers to have determined whether the accused was invoking his Miranda rights. Since the Michigan man seemed to indicate his understanding of his right to remain silent and the officers did not coerce his confession, then in effect the accused waived his right to remain silent by making statements during the interrogation.

The question is ultimately whether sitting in silence for three hours under questioning by the police offers a clear message that the suspect did not wish to waive his rights. Under this Supreme Court decision, the answer is NO. The decision in this case has been criticized heavily. In order for criminal suspects to invoke their right to remain silent, they must speak, which runs counterintuitive to the "right to remain silent". Even more disturbing is the idea that suspects will have presumed their right to remain silent, even if they do expressly indicate their intention to waive the right to remain silent.

What does this mean for San Antonio and greater Bexar County Criminal Defense cases ? Essentially, you must clearly state to arresting officers of your wish to remain silent by saying something to the effect of "I am exercising my right to remain silent". It must be clearly stated from the BEGINNING - otherwise, a criminal defendant runs the risk of waiving his right to remain silent by making additional statements. This blog entry supplements our earlier blog entries, where we indicated suspects should SHUT UP under questioning.

See the following entries:

The WRONG Way to Handle a Police Stop in San Antonio Texas and Bexar County

What to Do on a Police Stop in San Antonio Texas and Bexar County

10 Rules for Dealing with Police in San Antonio Texas and Bexar County

Now, criminal defendants are encouraged to clearly state that they are exercising their right to remain silent and then SHUT UP. If you have any questions about the exercise of your constitutional Miranda rights, you should contact a San Antonio Criminal Defense Lawyer without delay !

In our last blog entry , we outlined the RIGHT way to handle a Texas police stop . Now, let us discuss the wrong way to handle a police stop with the aid of the following video:

Comments:

I cannot begin to tell you the number of things that these individuals did wrong on the video. Sadly, this is the norm for many of my clients, not the rule. Imagine being a student and having your federal college loans revoked because of a misdemeanor possession of marijuana charge ? Do you think the police magically obtain the evidence against you ? No, people empower the police by essentially waiving their constitutional rights.

People do not understand that if they can be charged with possession if an illegal item is found in their vehicle that does not belong to them .

Remember a basic common rule:

ILLEGAL ITEM + CONSENT = ARREST

In the video above, the teenagers committed several cardinal sins.

First, they acted nervously and the police seized on their fears.

Second, they would not shut up! They just kept talking and answering questions. Remember that being silent is a simple and direct way to assert your right to remain silent. This is a cardinal rule that is especially prevalent on San Antonio DWI Defense cases - the driver just keeps talking and talking , digging himself a deeper and deeper hole !

Third, the individuals consented to the search of their vehicle! Why would anyone in their right mind ever do such a thing ?

Fourth, the teenagers got tricked. They cowered under the police threat and gave in. Rather they should have recognized the police tactics for what they were - a hollow, empty means to intimidate them to forsake their constitutional rights !

If you have been charged with a Bexar County misdemeanor / felony, and you need a San Antonio criminal defense lawyer , then do not hesitate! In the meantime, make life easier for yourself and your criminal defense attorney by holding on to your right to remain silent and refuse consent on any searches.

UPDATE: Please read about this new Supreme Court Case on the right to remain SILENT and what you must do to protect it.

As I have handled more San Antonio criminal defense cases, I have come to the startling revelation that many of my clients would not find themselves in their current situation if they applied some basic rules when dealing with the police. If you are willing to remember some key points when dealing with the police, then you stand a far greater chance of either being released with a simple citation or being acquitted of all charges if you are actually arrested.

You can prevent a traffic stop from turning into a Bexar County misdemeanor or a misdemeanor from turning into a full blown San Antonio felony charge.

People have this naive idea that the police are willing to work with them, and if they simply explain the situation, the police will empathize and release them Wrong! The police are not your friends - think of them as the agents of the District Attorney's office. The job of the police is to build a case against you. Even the purely innocent must be wary of any statements made to the police. What if the police claim you stated something you didn't or they misinterpret your statements? Can you imagine a jury having to determine between a criminal defendant and a police officer as to who is telling the truth ? Who are they more likely to favor ? It is a no win situation and a lesson you should learn now as opposed to later.

Remember that the police may legally lie to you so never let them trick you into waiving your rights.

So in this blog entry, I will cover some basic rules on routine traffic stops that can become your worst nightmare if you do not follow some simple rules. With the aid of the following video, I will add some commentary to guide you through.

Review this first clip to see the RIGHT way to act with the police:

Comments:

Notice how one person takes control of the situation – ie. One person does all the talking.

By rolling up all the windows, the officers’ access to the car is limited.

When first dealing with an approaching officer, allways put your hands on the wheel in plain view

By asking why he was pulled over, the driver asserts his innocence.

In response to the question , “Do you know the speed limit ?" , the driver asserts his 5th amendment right against self incrimination and does not answer.

"Officer, how can I help ? " . This is a relatively easy way for the driver to be cool and courteous , a key rule to remember.

"Why officer?" Again, this question forces the officer in a corner. He must have probable cause to search the vehicle. It is interesting if he cannot articulate his reasons right then and there.

When asked to step out of the car, driver locks his doors. This makes it clear the officer does not have permission to search the vehicle.

“Are you detaining us officer or are we free to go ?” This is an excellent question.

Always ask if you can leave. The police must have some probable cause to detain you.

Make it verbally clear that you do NOT consent to any searches.

In these situations, the officer is NOT looking to help you.

What is the probable cause for detaining the occupants of a car ? There is none. It’s an idle threat.

Ask again if you can leave. Speeding does not constitute probable cause for a vehicle search.

What is the “next level” ? It is just police rhetoric designed to intimidate you into doing what they want.

The Supreme Court states that once you are cited, you are free to leave. If you stick around, it is on your own free will. Take the ticket and leave.

Did you notice the common thread in this situation ? The driver talked very little! Plus, he did not directly answer any questions. He simply asserted his right to remain silent and did not consent to any vehicular searches.

Knowing some of these basic rules can greatly assist you especially if you need a San Antonio DWI lawyer. Contact one today immediately if you have been arrested in Bexar County or surrounding counties such as Wilson County or Atascosa County.

UPDATE: Please read about this new Supreme Court Case on the right to remain SILENT and what you must do to protect it.

Invariably, during my practice, I have come across multiple cases in which I could have mounted a strong defense on behalf of an accused party if they had simply not waived their constitutional rights. The police are trained to place an accused in a false state of comfort so they begin talking. However, an accused has no idea that the police are secretly videotaping everything especially on a San Antonio DWI charge. In the alternative, they do not understand that even if the police are not recording their testimony, the police are taking note of everything that is being said.

Can you imagine a jury having to weigh an accused suspect versus a police officer as to who said what ? The deck is already stacked against the suspect, even if the person is perfectly innocent.

Here are the 10 Rules for dealing with the Police:

1) Always be calm and cool

2) You have the right to remain silent - SHUT UP and EXERCISE THAT RIGHT! If you feel uncomfortable, ask for a lawyer. LAWYER UP!

3) Do NOT CONSENT to searches! Even if you have nothing to hide, you never know what a relative, friend, or previous onwer might have left in the case (ex. a marijuana butt). Emptying your pockets on command is a form of consent. Verbally refuse ; never physically refuse.

4) Don’t get tricked! i.e. Police are allowed to lie to you to get you to waive your rights.

5) Am I free to go ? (Are you detaining me or am I free to go ?) DO NOT WAIT FOR THE OFFICER TO DISMISS YOU - simply askign this question helps you a great deal.

6) Don’t expose yourself! Do not be a public nuisance and attract attention.

7) Don’t run.

8) Never touch a cop (can get you tasered or charged with felony assault)

9) I’m going to remain silent – I’d like to see a lawyer.

10) Report misconduct – be a good witness.

11) You don’t voluntarily let the police into your home. Period. “I can’t let you in without a warrant!”.

To that end, I draw on the following videos to educate the public about 10 basic rules when dealing with the police.

If you have been the victim of Texas police misconduct, you stand a better chance of winning your case if you play by these rules. Also, if you follow these rules, a San Antonio criminal defense attorney can mount a strong defense on your behalf.

Watch and learn:

10 Rules for Dealing with Police – Part 1

10 Rules for Dealing with Police – Part 2

10 Rules for dealing with Police – Part 3

10 Rules for Dealing with Police – Part 4

UPDATE: Please read about this new Supreme Court Case on the right to remain SILENT and what you must do to protect it.

In our last blog entry, we discussed several aspects of San Antonio and greater Bexar County juvenile adjudication , the equivalent of an adult criminal trial. In a juvenile delinquency proceeding, a juvenile may only be convicted upon proof beyond a reasonable doubt.

A San Antonio juvenile defense lawyer will pay particular attention to the petition, which must state the specific time, place, and manner of the alleged criminal acts and the specific penal laws the juvenile is alleged to have violated. If a trial does not prove the specific acts of a petition, then an acquittal is in order.

Moreover, the simple testimony of an accomplice is not enough to convict a juvenile. There must be other evidence presented to connect the juvenile to the crime beyond the testimony of an accomplice. Nor will a juvenile's out of court statement be sufficient to prove an offense beyond a reasonable doubt. The same Texas Rules of Evidence that are applicable to San Antonio adult criminal defense are also applicable to the juvenile adjudication proceeding.

In the past few years, there has been an increasing problem with a "shadow" juvenile justice system in which municipal and justice courts have been prosecuting juvenile offenders in the adult criminal system. These courts are not bound by the dictates of the Texas Juvenile Justice Code. Most of the time, the municipal and justice courts deal with juveniles who have violated their school conduct policies. Special education juveniles are especially vulnerable in these types of non-juvenile court proceedings.

Even more disturbing is the fact that juveniles convicted in municipal and justice courts have criminal records. When the juvenile reaches adulthood, he cannot count on such records being automatically expunged or sealed. Unlike juvenile adjudications, juvenile convictions are public record unless there are affirmative steps taken to seal / expunge them. For juveniles convicted of Class C misdemeanors, juveniles may face jail if they do not pay their fines upon turning 17 under the Texas Code of Criminal Procedure.

In addition, there are serious ramifications to criminal convictions in municipal and justice courts. Today, convictions can prevent a juvenile from obtaining student loans or carrying a concealed handgun. In addition, convictions on Class C misdemeanors can be used to enhance subsequent arrests to felonies in alcohol offenses and family violence assaults.

Municipal and justice courts oversee four (4) types of offenses by juveniles: traffic offenses; fine only offenses; specific alcohol offenses; and truancy cases. These cases all demand the presence of a parent. When a juvenile has two (2) convictions in a municipal or justice court, the ensuing case must be transferred to juvenile court. The municipal / justice courts do have the discretion to transfer fineable only cases to juvenile court with the exception of traffic / tobacco cases.

A San Antonio juvenile criminal defense attorney will take great pains in working with special education juveniles to prepare documents reflecting disabilities from their school records. Such records are critical to raising competency to stand trial as well as responsibility for the alleged incident.

Criminal defense for San Antonio adults and juveniles requires an examination of specific mental states. The first major mental state is "Intentional" ie. Did the person have a conscious desire to engage in the conduct ? The second type of mental state is "Knowing" ie. Was the person aware that his conduct would reasonably cause the negative results ? The third type of mental state is "Reckless" ie. Did the person consciously disregard the risks they created by their conduct ? The final mental state is "Criminal Negligence" ie. Should the person have determined the risks involved with their conduct.

Different types of offenses require varying degrees of mental states to hold a person culpable criminally. A Bexar County / San Antonio criminal defense lawyer can be instrumental in educating you and your child on your options in juvenile court or the municipal / justice courts.

In our last blog entry on the differences between the Texas Juvenile and Adult Criminal Justice Systems , we touched base briefly on the fourth option available to the disposition of a juvenile case : Adjudication.

A San Antonio juvenile defense lawyer will always seek deferred prosecution for his clients but there are times the prosecutor and probation officer will not accept such a recommendation. In an adjudication, which is the equivalent of a criminal trial, it is absolutely essential that the juvenile appreciates the nature and potential consequences of an adjudication hearing. Under Section 54 of the Texas Family Code , a juvenile may not have been found to have engaged in delinquent conduct or conduct in need of supervision (CINS) without an adjudication hearing.

Adjudication will only be considered to have occurred after an evidentiary hearing. There are six (6) general ways the hearing will be conducted based on whether the juvenile is contesting the charges. If the client agrees, a San Antonio criminal defense lawyer will contest the charges and choose as to whether the trial should be conducted before a jury or as a bench trial before the judge. Where the juvenile decides not to contest the charges, there are four (4) possible ways to go depending on the local practice of the court: a stipulation of evidence, agreed statement of facts, judicial confession, or plea of true.

In uncontested adjudications, the juvenile may withdraw his plea if the plea was based on a plea agreement and the court entered disposition terms outside the plea agreement. See Section 54 of the Texas Juvenile Justice Code.

The court must give specific judicial admonishments (explanations of various rights and consequences) at both the beginning of every adjudication hearing and those dispositions involving a plea bargain agreement. The Texas Family Code requires the court to make specific judicial admonishments including an explanation of the allegations; the nature and consequences of the proceedings; the child's 5th amendment right against self-incrimination; the child's right to trial and cross-examination of witness; the child's right to an attorney; and the child's right to a jury trial.

The judge should especially admonish a juvenile of the admissibility of a juvenile adjudication in an adult criminal proceeding. A plea of "true" in a juvenile adjudication can be used in a subsequent criminal proceeding - the plea can be used to ultimately enhance an adult punishment.

The court shall also admonish a juvenile that it is not required to accept the plea bargain agreement between the juvenile and the prosecutor. If the court does not accept the agreement, the juvenile can withdraw the plea or stipulation of evidence.

Every juvenile has the right to a jury trial and that right is guaranteed by section 15 of the Texas Constitution . When your loved one is in trouble with the law, you absolutely need a Bexar County juvenile defense lawyer to protect your child's rights so that mistakes are not made that can have devastating consequences in an adult criminal proceeding.

In our last blog entry on the Texas Juvenile Justice System, we introduced the basic purposes behind Texas juvenile justice. The San Antonio and greater Bexar County Juvenile Justice System possesses several distinct differences from the Texas Adult Criminal Justice System. The first major difference is the actual language or terminology used with the Texas juvenile system.

The juvenile equivalent of an adult criminal trial is known as ”adjudication", but it is important to note that the Juvenile Justice Code clearly states that an adjudication is not a conviction. Whereas adult offenders must deal with vocabulary like "arrest, bail, bond, indictment, conviction, and sentence", Texas juveniles have an entirely different set of terms. San Antonio juveniles can be "detained, referred, released from detention, adjudicated, and either placed on probation or be completely separated from their home". The actual allegation against the juvenile is a civil petition, not a criminal indictment. Whereas adult records are subject to expunction, juvenile records are "sealed".

The next major difference between a juvenile offender and an adult offender in Bexar County is the wider array of procedural options available to a juvenile under the Texas Juvenile Justice Code. In a criminal allegation against a juvenile, the alleged crime is classified as either "delinquent conduct" or "conduct in need of supervision". Delinquent conduct is that conduct which violates a penal law and is punishable by jail. Conduct in need of supervision (CINS) generally includes less serious legal violations and certain types of non-criminal conduct, like violations of school conduct policy.

Law enforcement has several choices upon completion of a juvenile criminal investigation. They can either refer the case to a prosecutor or to juvenile services. After the referral, there are four (4) possible paths the juvenile may take leading to disposal. The first path is supervisory caution or deferred prosecutions which are known as informal adjustments under Sections 53 and 59 of the Texas Family Code. This is the most favorable option and it is the option San Antonio juvenile criminal defense lawyers try to obtain for their clients.

The second option is referral to criminal court under section 54 of the Texas Family Code. For example, if the child is over 14 years old and is suspected of a capital felony or a high level drug offense, the child may be transferred to criminal court. it is important to note that any juvenile over 15 may be tried as an adult if the case is transferred to adult criminal court.

The third option is reserved for juveniles with mental illness. Under Section 55 of the Texas family Code, commitment proceedings may be initiated for those juveniles with mental illness.

The fourth option is an adjudication hearing similar to a criminal trial, which is conducted under the auspices of section 54 of the Family Code.

The San Antonio juvenile justice system can be daunting, which is why a Texas juvenile criminal defense lawyer is needed to help you and your child navigate the system. The overarching theme of the system is actually rehabilitation, which is not something the adult criminal justice system is necessarily focused on.

The Texas Juvenile Justice Code has undergone many changes over the past few years as legislators try to balance getting kids to accept responsibility for their conduct and distinguishing between adult crimes and juvenile crimes. The overarching consideration in how to treat juveniles in the criminal justice system has always been what is in the "best interest of the child". Sometimes, what is in the best interest of the child can justify a harsh resolution as much as a lenient one.

Under the Texas Family Code, the juvenile courts have authority over any child provided the child is over the age of ten (10) and was under the age of seventeen (17) when the alleged crime took place. In fact, juvenile courts can adjudicate an act of juvenile delinquent conduct up to the child's eighteenth (18th) birthday provided the events took place before the child's seventeenth (17) birthday. Jurisdiction by the juvenile courts concludes upon the child's attainment of eighteen (18) years of age.

The Texas Juvenile Justice Code, is contained in section 51.01 of the Family Code. The Juvenile Justice Code lists several purposes including but not limited to the protection of the public and public safety. While the Code seeks to promote the concept of punishment and deterrence, it also tries to remove the "taint of criminality" from those juveniles acting unlawfully.

Moreover, the Juvenile Code seeks to give "treatment, training, and rehabilitation” for both the parent and offending child. This concept is probably the most refreshing aspect of the San Antonio and greater Bexar County juvenile justice system - the idea that we are trying to protect and develop the moral, mental, and physical development of children. That purpose is a far cry from the adult penal system with its emphasis on punishment as opposed to rehabilitation.

The San Antonio juvenile system can be also very draconian when needed, because one of the elements of the juvenile code is the removal of the child from the child's parents when necessary for the child's welfare. Finally, the Juvenile Justice Code creates a formal judicial procedure where juveniles are given a fair hearing that protects their constitutional rights.

If your child or a young adult has been charged with a crime, it is imperative that you seek a San Antonio juvenile criminal defense attorney to assist you. The implications of a juvenile criminal record can have lasting effects, and it is crucial you seek a Bexar County juvenile criminal defense lawyer without delay.