Click It or Ticket Campaign in Austin

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This week marks the beginning of the 12th annual “Click It or Ticket” campaign in Austin and around the State of Texas. The campaign will run through Memorial Day weekend. During this period, law enforcement says that officers will be on the lookout for anyone not wearing a seat belt. They report that particular attention will be paid to teenage drivers and those in pickup trucks with passengers. Last year, over 21,000 seat belt tickets were issued, but with an increase of 11% in traffic deaths in 2012, enforcement is likely to be particularly aggressive.

Laws requiring everyone in a vehicle to buckle up (with booster seats or child safety seats for children under 4’9” tall) have been on the books for years, and the campaign dates back to 2002. At that time, it was estimated that only about 75% of Texans used seat belts; today, that number has increased to 94%. A violation could cost you $200 plus court fees.

There are a number of myths that have grown up around the use of seatbelts. They include the following:

  • Myth no. 1: Seat belts are not necessary for local trips at relatively low speeds. In fact, most fatal accidents occur within 25 miles of home, with driving speeds of under 40 miles per hour.
  • Myth no. 2: Wearing a seat belt will trap you in the car if there is a fire or if you are under water. Only about a half a percent of all accidents involve fire or water. You’re much more likely to be saved if you wear a seat belt.
  • Myth no. 3: There is no need for a seat belt if your car is equipped with air bags. This is simply wrong. Indeed, air bags are less effective, and can even cause injury, if deployed when an occupant is not wearing a seat belt.

These myths, we think, are really just excuses – and lame ones at that – to justify buckling up. So remember, whatever your view on the seat belt issue, that the Austin PD is on the lookout. If you don’t click it, it could cost you!

The Law Office of Matthew Shrum, P.L.L.C.
505 West 15th Street
Austin, TX 78701
(512) 447-2323

Two DPS Employees Charged with DWI

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Bad news seems to come in twos and threes, and last week was no exception. Two employees of the Texas Department of Public Safety were charged with driving under the influence in separate, unrelated incidents.

In the first case, the DPS coordinator for the Capital area, Richard Lee Hooks, was observed, according to police, driving without his headlights on just before 1:00 a.m. on Thursday. He was followed for a time, during which, police say, he failed to stay within his traffic lane. The arrest warrant says that Hooks’ speech was mumbled, he smelled of alcohol, and lost his balance during the administration of a field sobriety test. A blood sample was apparently taken, the results of which were not reported. Hooks allegedly told the officers he had consumed two drinks (vodka tonics) at a club at some point prior to being stopped. Hooks also serves as chief of staff of the Texas Division of Emergency Management.

The second arrest involved a DPS SWAT sergeant, who police say was observed violating “various traffic laws.” After being stopped, they claim that the sergeant’s eyes were watery and bloodshot, his pupils were dilated and he emitted a strong alcohol odor. The officers say that the suspect told them he had been at a bar where he consumed “two beers.” They add that he said he was on his way to a friend’s house, but was unable to tell police where the friend lived.

After being arrested for DWI, both of the DPS employees were suspended with pay.

Of course, neither of these individuals has been convicted of anything, and the evidence against them has not been analyzed. Having said that, we do find it interesting that so many of those stopped for drunk driving tell the police that they’ve had two beers (or other drinks).

The “two beers” defense to a drunk driving charge is so common that it’s seen as a joke by some police officers. It’s as if once the phrase is uttered, the driver expects the officer to say “ok, have a nice night.” Not likely. The affidavit will state with certainty that the suspect admitted drinking alcoholic beverages.

The Law Office of Matthew Shrum, P.L.L.C.
505 West 15th Street
Austin, TX 78701
(512) 447-2323

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Campus Crime in Austin

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News stories appear regularly about arrests and alleged criminal activity on college campuses. We were curious about what kinds of crimes were taking place, so we took a look at the statistics from the University of Texas at Austin. Our job was made a bit easier by the fact that UT Austin has its own police department, and arrests and calls are recorded in a central time log that is available for viewing by anyone.

Before seeing the actual figures, we expected that the bulk of the calls received by the UT Austin PD would be for alcohol and drug related offenses, criminal mischief, and the like. And to a certain extent our expectations in that regard were met. We were, however, surprise by both the number of alleged offenses occurring on campus, as well as the nature of many of them. Here is a breakdown of the calls received by the campus PD during the month of April 2013:

  • Assault – 3
  • DWI – 8
  • Drug/Paraphernalia Possession – 12
  • Alcohol Consumption by Minor – 9
  • Criminal Mischief/Trespass/Graffiti – 22
  • Harassment – 8
  • Hit and Run – 6
  • Public Intoxication – 13
  • Theft – 38
  • Theft of Service – 3
  • Burglary – 11
  • Credit Card Fraud/Abuse – 9

There were also a sprinkling of calls alleging terroristic threats, traffic offenses, open container violations, and others

The good news is that there were very few allegations of violent crimes. But what struck us when we put all the items side by side was that of the almost 150 calls received by the campus PD in April, over one-third of them were for theft or theft-related crimes. These included burglary, credit card abuse, misdemeanor and felony theft, and theft of service.

We are not in a position to determine why there were so many theft allegations, but we can’t help but notice one additional aspect of the figures. Of the non-theft crimes on the time log, about half were for offenses involving drugs or alcohol. These included public intoxication, DWI, open containers, and possession of drugs and drug paraphernalia. We don’t believe any firm conclusions can be drawn, but the figures do suggest a possible connection between the use and abuse of alcohol and drugs, on the one hand, and the commission of theft and related offenses, on the other.

The Law Office of Matthew Shrum, P.L.L.C.
505 West 15th Street
Austin, TX 78701
(512) 447-2323

Court Rejects (Routine) Warrantless Blood Tests for DWI Suspects

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In a decision that will affect procedures followed in many states in the country, including Texas, the United States Supreme Court ruled last week that routine warrantless blood tests performed on DWI suspects are unconstitutional

The ruling arose out of case in Missouri. A car was stopped by police, who said the driver was speeding, weaving and swerving in the vehicle. They claim that the driver, who had two prior convictions for drunk driving, failed several field sobriety tests, refused to submit to a breath test, had slurred speech, and was unsteady on his feet. Although the officer likely had sufficient evidence to obtain a warrant to take the suspect’s blood, he chose not to do so. Instead, he drove the suspect to the hospital, and while the man was handcuffed, had his blood drawn by a technician. According to the results of the blood test, the defendant’s BAC was 0.154. This is well over the legal limit in Missouri which, like Texas, is 0.08.

The Missouri court had said that a warrant was needed unless a delay could lead to the destruction of evidence or the loss of life. The U.S. high court, however, did not provide extensive guidance on which circumstances would justify a warrantless blood test.

On the heels of the Supreme Court decision, APD Chief Art Acevedo has instructed officers that blood draws in DWI cases should not be obtained without a warrant first having been issued. Austin has over the past two years initiated a practice known as “no refusal” during weekends and some major events. That practice involves the police obtaining warrants for blood tests if a suspect refuses a request that he or she provide one. Chief Acevedo says that the new directive will not affect the “no refusal” program.

We expect that more will be heard from the Supreme Court laying out when there are exigent circumstances that would justify warrantless blood draws in DWI cases. Until then, don’t assume that the recent ruling will provide much of a benefit if you are arrested for DWI from this point forward. We believe that, consistent with the Chief’s mandate, it will merely add to the number of requests for warrants.

The Law Office of Matthew Shrum, P.L.L.C.
505 West 15th Street
Austin, TX 78701
(512) 447-2323

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Travis County D.A. Charged with DWI

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It wasn’t a good beginning to the weekend for Travis County District Attorney Rosemary Lehmberg. According to reports, she was stopped by police late Friday night after a citizen called 911 to advise that a Lexus automobile was driving in the bike lane of FM 620 in northern Travis County. The caller, who was another motorist, said that the Lexus had been traveling in the bike lane for at least a mile, and that the driver was weaving in and out of traffic.

The phone call came in at approximately 10:45 p.m., and shortly thereafter the Lexus was pulled over by police. The arrest affidavit details what happened next. The Deputy states that Lehmberg appeared “moderately intoxicated” and disoriented with slurred speech, smelling of alcohol. She also appeared to be cocky yet cooperative, polite, swaying, and staggering, among other adjectives used in the affidavit.

The facts are a bit hazy on the administration of standard field sobriety tests (SFST’s), but they apparently began with the HGN, a test that involves eye movement. The Deputy claims in the affidavit that Lehmberg would not keep her head still during the test, and at one point refused further testing. A walk and turn test was also administered, and the affidavit reports that Lehmberg lost her balance and failed to follow instructions. She allegedly refused to submit to the final SFST, the one leg stand. There were several other interesting “facts” in the case. One is that Lehmberg told police she had taken prescription medication for high blood pressure, and there were also reports that she admitted to drinking earlier in the evening. There was no indication whether a breath test to determine a blood alcohol content was also administered.

But perhaps the most interesting aspect of the entire case is that when she was stopped, Lehmberg had an open bottle of vodka in the passenger area of her car.

Lehmberg has stated that while she does not intend to resign over the incident, she apologized for her behavior and agreed to accept any punishment handed down as a result. The apology came in the form of a letter on her Facebook page.

The Law Office of Matthew Shrum, P.L.L.C.
505 West 15th Street
Austin, TX 78701
(512) 447-2323

Posted in DWI

More Problems for the Longhorns

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We reported last month in our blog (Aggravated Assault Charge for UT Receiver) about the problems among the members of the University of Texas football team. Recent issues included (a) the arrest of a freshman backup quarterback who was charged with public intoxication; and (b) an aggravated assault charge filed against wide receiver Cayleb Jones, allegedly the result of a fight outside an Austin bar. Additional concerns centered on the admission earlier this year of an affair between one of the coaches and a student, and the suspension of two students after allegations of sexual assault.

This past weekend saw yet another blow to both the football program and the university, with the arrest of Longhorns receiver Kendall Sanders for drunk driving. Details of the incident are still sketchy, although it has been reported that Sanders was arrested by Texas A&M University police for DWI after being pulled over for an unspecified traffic violation. He was taken to the Brazos County Detention Center at about 5:00 a.m. Saturday morning, and released on bond a few hours later. Interestingly, Sanders, who will begin his sophomore year this fall, was a favorite to assume a starting position with the football team after the indefinite suspension of Cayleb Jones earlier this year.

We obviously cannot predict the outcome of Sanders’ case, but we can’t avoid noticing how his arrest and the other charges against Longhorns’ players are accumulating. And in a number of cases, the presence of alcohol looms large. In that regard, we note that Sanders is only 18 years old, more than two years shy of the legal drinking age.

When the number of criminal charges against students at specific university increases, you might expect the administration to take notice. When the individuals are members of a specific sports team, more scrutiny would be expected. In this case, while it may be mere coincidence, we’ve now seen charges of illegal behavior, in unrelated circumstances, against two UT students who play the same position on the football team. When all the charges are considered, we think that it might be time for the administration to take a hard look at the situation.

The Law Office of Matthew Shrum, P.L.L.C.
505 West 15th Street
Austin, TX 78701
(512) 447-2323

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THC Extraction Blamed for Apartment Explosion

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An explosion last week at a South Austin apartment complex is being blamed on an accident related to the extraction of tetrahydrocannabinol (THC) using butane gas, according to police. The blast, which caused an estimated $85,000 in damage, resulted in serious injuries to two occupants of the apartment.

According to one account of the incident, word spread that the explosion might be drug related, leading some observers to assume that the apartment was being used as a meth lab. Meth labs are used to synthesize methamphetamine, and the process employs chemicals, such as anhydrous ammonia, that are both poisonous, flammable and explosive. But police say the South Austin explosion had nothing to do with meth; they say it happened as the result of a failed attempt to extract THC from marijuana. THC is the main psychoactive substance in pot.

The process of THC extraction appears to be both very simple and very dangerous. It involves soaking marijuana leaves with butane. When the butane evaporates, what is left is a concentrated oil with a THC content averaging about 15%, and as high as 40%. The oil is commonly referred to as butane honey oil. It can be used in various ways, including lacing marijuana prior to the drug being smoked. But butane gas is itself dangerous to deal with. It is highly flammable and explosive, and can cause euphoria and drowsiness, among other effects.

While law enforcement officials say they do not recall any previous THC-extraction explosions taking place in Texas, similar incidents have been reported in other areas. Earlier this year, attempted TCH extraction was the alleged culprit in an explosion at a motel in Ocean Beach, California. It caused the collapse of six rooms, and was apparently ignited by the lighting of a cigarette in the room containing numerous canisters of butane.

In the South Austin case, officials say they are working with the district attorney’s office to figure out what to charge the pair with. Whatever safety violations may be included, we expect that the offenses alleged will include possession of a controlled substance, manufacture of an illegal drug, and possibly possession with intent to deliver. The classification of and the penalties associated with such charges will depend upon the amount of the substances involved.

The Law Office of Matthew Shrum, P.L.L.C.
505 West 15th Street
Austin, TX 78701
(512) 447-2323

Nestande to Serve Six Months

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In our blog of January 24, 2013 (Hearing Held in Hit-and-Run Death Case), we provided an update on the case of former legislative aide Gabrielle Nestande, accused of manslaughter, intoxication manslaughter and leaving the scene (failing to stop and render aid) in connection with the death of Courtney Griffin. Subsequent to our report, the jury returned a verdict of guilty on a charge of criminally negligent homicide, but acquitted Nestande on the more serious manslaughter charges, as well as leaving the scene of an accident involving death. Following the verdict, the jury also recommended that the judge impose a sentence of probation. This week the judge ruled that Nestande would have to spend 180 days in jail, as well as imposing 10 years of probation and a $10,000 fine.

If you recall the testimony, there was a fair amount of evidence that Nestande had been drinking prior to the crash, and she admitted to consuming alcohol, although she claiming she was not impaired at the time she was driving. Because Nestande did not communicate with the police until the day following the accident, there was no blood alcohol evidence to present to the jury. The prosecution’s theory was apparently that Nestande left the scene so that she could not be tested for alcohol. The jury rejected that position, and acquitted Nestande of failing to stop and render aid (a felony), believing instead Nestande’s testimony that she had no idea at the time that she had hit Griffin.

They also refused to accept that Nestande was legally intoxicated at the time, which could have led to a conviction for intoxication manslaughter, ordinarily a second degree felony. Finally, the jury did not convict on simple manslaughter, which would have required a finding that Nestande was reckless; rather, they opted to convict her of criminally negligent homicide, a lesser included offense. This is a huge distinction, since negligent homicide is a state jail felony, carrying significantly less time than manslaughter.

Whatever your personal views may be regarding her conduct, it appears that from a legal point of view Nestande did quite well in her case, avoiding convictions that could have placed her behind bars for many years.

The Law Office of Matthew Shrum, P.L.L.C.
505 West 15th Street
Austin, TX 78701
(512) 447-2323

Aggravated Assault Charge for UT Receiver

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Cayleb Jones, a wide receiver at the University of Texas, has been arrested for aggravated assault, and has been suspended from the football team pending a resolution of the charges.

The allegations are that Jones punched a member of the UT tennis team, Joseph Swaysland, in the face, fracturing the man’s jaw. According to the reports we read, the alleged assault has its roots in a failed relationship between Jones and a woman on the school’s volleyball team. That relationship supposedly ended on bad terms a while ago. A week or so prior to the incident, the woman told police, Jones threatened to fight Swaysland if he talked to the woman again. The woman also said that Jones was jealous and had “anger issues.”

The situation came to a head late last month when all three were at a bar just before 2 a.m. That’s when, according to the arrest affidavit, the assault took place.

Anger issues or not, this is no playground joke. Aggravated assault consists of an assault which causes serious bodily injury. It is a second degree felony, with a possible sentence of up to 20 years in prison.

How sad that the incident involves three University of Texas students, who in turn play for three UT sports teams. This is also the latest in a series of off the field setbacks for the football program: Case McCoy (backup quarterback) and another player were suspended and sent home the day before the Valero Alamo Bowl amid rumors of a sexual assault investigation; in February the team’s offensive coordinator admitted to having had a consensual affair with a student a few years ago; and a freshman backup quarterback was arrested last month and charged with public intoxication and possession of a fake i.d.

A tragedy in the case against Jones is that, while Swaysland’s injuries will likely heal in the near future, the promising athletic career and the entire future of a young man is at stake due, apparently, to jealousy and anger – and perhaps (just a guess here) fueled by alcohol.

The Law Office of Matthew Shrum, P.L.L.C.
505 West 15th Street
Austin, TX 78701
(512) 447-2323

Fayette County, TX – Drug Bust Capital?

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Fayette County is not a bustling metropolitan center. It’s a rural spot about an hour or so southeast of Austin, with a population of only 25,000 residents. There are less than 25 people per square mile living there.

Nevertheless, Fayette County seems to be a hotbed of illegal drug activity, if the arrest reports are any indication. Last week investigators confiscated 18 kilos (that’s about 40 pounds) of heroin hidden inside batteries on a truck traveling through the county from southern Texas. The heroin is reportedly worth over $4 million.

Drug busts are not new to Fayette County, and here are just a handful of the reports on alleged drugs and drug operations leading to arrests over the past few years:

  • Officials say last week’s recent heroin seizure is the sixth major drug bust this year – and the year is still young.
  • In 2010 there was a $3 million bust, involving thousands of marijuana plants being grown in, packaged in and shipped from a property on State Highway 95.
  • In 2011, a truck was stopped on Interstate 10 for a traffic violation, and police discovered 55 pounds of crystal meth, worth about $1.5 million, under a floorboard.
  • On the same day the crystal meth was seized, a house search led to the discovery of bags of marijuana packaged for distribution.
  • Also in 2011, another house search revealed a methamphetamine lab.
  • Late last year, a traffic stop led to the seizure of $800,000 worth of marijuana (more than 1,500 pounds).
  • A month earlier, in November 2012, hundreds of pounds of marijuana were discovered in a truck traveling from Houston.

What is surprising is not that illegal drugs are big business, or that they are present just about everywhere. What’s surprising is the size and frequency of the drug busts in a relatively small rural area in Texas. What we’ve outlined above are only a small number of the arrests made in the County for drug crimes. In addition, the crimes, if the above instances are any indication, cover all sorts of drugs, including marijuana and narcotics. They also include, in addition to possession, cultivating, manufacturing, and transporting these substances.

Whatever the reason, the drug busts appear to sit well with the county, and officials credit the arrests for bringing in additional revenue, and supplying law enforcement with seized vehicles, cash and even land.

The Law Office of Matthew Shrum, P.L.L.C.
505 West 15th Street
Austin, TX 78701
(512) 447-2323