Daly & Campbell Law Firm
Passion for People
In his song “Eastbound and Down,” Jerry Reed summed up the problem truck drivers face every day: “We’ve got a long way to go and
Override and underride accidents are serious, and often fatal, types of car-truck accidents that are caused by a lack of important safety equipment. Override accidents
A truck is not safe unless it is in proper working order. Failure to inspect, repair and maintain a commercial truck can lead to accidents,
No one wants to find themselves the victim of a car accident but unfortunately most of us have been there. Many times it is far worse than an inconvenience. The aftermath of a car accident can involve thousands of dollars in medical bills and vehicle repairs, physical pain and discomfort, and lost earnings from missing work. We are local Friendswood car accident lawyers who want to help get you back to healthy.
Get back to healthy.
Not just physically but also mentally and financially!
If you have been injured in a car accident, it can be a scary time. You might be wondering where to turn or what to do next. Is the insurance company making a fair offer? Do I have to take the insurance company’s offer? Do I need a lawyer? It should come as no surprise that we recommend contacting a local Friendswood car accident lawyer like Daly & Campbell.
Do I need a lawyer for a car accident?
Do you routinely deal with insurance companies regarding what compensation is proper for vehicle damaged and personal injury? No? Then you should call an accident attorney.
Do you believe that the insurance company is out for your best interest instead of making profits for their investors? Yes? Then you should call an accident attorney.
We suggest calling an attorney and asking them to give you their opinion. It’s that simple.
Why Choose Daly & Campbell?
We are local Friendswood car accident lawyers who give you the personal attention and compassion you need following a serious accident. We have the knowledge, experience and resources to maximize the value of your case and will fight hard to get you all the compensation and benefits you deserve.
We treat clients like family, and handles their cases accordingly. A law firm that does more than just win cases. Brendan Daly and Reese Campbell are trial lawyers who devote personal attention to every case he takes on, and often remains in constant contact with his clients throughout the course of their legal struggles.
Passion for People
Daly & Campbell is led by trial attorneys Brendan M. Daly and J. Reese Campbell, who learned how to win in court while fighting for victims of the most horrific crimes. They continue their commitment to justice by relentlessly fighting for their clients.
The Daly & Campbell Law Firm proudly represents injured people in the state of Texas and throughout the Gulf Coast. With years of experience fighting and winning a wide array of cases, Daly & Campbell is committed to successfully defending the rights of individuals as well as ensuring their way of life is not compromised when injured by another.
The attorneys at Daly & Campbell are entirely devoted to helping clients through life’s challenges. They are equally skilled in aggressive negotiation and litigation to fight for the client’s rights in court. From advising on business formation strategies to complex dissolution involving a complicated custody battle, extensive property valuation, or finding hidden assets, the firm’s attorneys stand ready to offer:
Aggressive representation — We share your urgency and press opposing parties for swift, fair resolutions
Personal attention — Our attorneys make a personal investment in your success
Skilled litigation — Our attorneys have the tools to win at trial and on appeal
Authoritative advice — If major media outlets ask our opinion, shouldn’t you?
Free consultation — So you can choose your attorney carefully
Very reasonable rates — You don’t have to pay more to get the best!
Personal Attention and Frequent Communication
As a client, Daly & Campbell ensure your case is always handled, your deadlines met, and your phone calls answered.
From Personal Injury to Personal Triumph
Imagine that you are driving to your job when all of a sudden you hear an 18-wheeler trying to screech to a stop behind you. You try to get out of his way, but you are too late. You have just been involved in a high-speed traffic collision. Thoughts immediately start racing through your head: your car, your job, paying for damages, paying for doctor’s bills, and the fact that this could potentially lead to a personal injury lawsuit. The Daly & Campbell Law Firm’s founders, Brendan Daly and Reese Campbell are personal injury lawyers who are here to get you the proper compensation for your injuries and your property. All you need to worry about is resting and healing.
All Your Accident Questions Answered
The expectation of inheritance can often times bring out the worst in us. It is not uncommon for families to engage in all out war over property they did little to earn. In 1924, a Texas appeals court said, “Law suits between brothers and sisters over parental devises or inheritances almost invariably lead to bitterness and discord, and as a matter of public policy should be discouraged whenever practicable.” Many things in society has changed since 1924, however many things haven’t. When fighting over inheritance, we have represented family members in awful contested probate situations. Siblings hide property from each other. Wills are also hidden or even falsified. Common law marriages are alleged for the first time. These things can get ugly. One Solution: Family Settlement Agreements Lawsuits can drag on for years and emotionally and financial taxing. Texas law recognizes that encouraging compromise is in the public interest including in inheritance disputes. “Family Settlement Agreements” aim to resolve the conflict between the heirs while attempting to stay true to the Descendant’s wishes. Three principles guide the concept of the family settlement agreement: The decedent’s right to make a testamentary disposition; the beneficiaries’ right to convey their rights; and balancing those competing rights by requiring an agreement to an alternative distribution plan.(In re Estate of Halbert, 172 S.W.3d 194, 199 (Tex. App.—Texarkana 2005, pet. denied) Drafting a Family Settlement Agreement Ultimately, a family settlement agreement is a contract between all parties that have an interest in the Descendant’s estate. Yes, that means everyone must agree to the settlement. Generally, the agreement must provide an alternate plan of the estate’s distribution, it must fully dispose of the estate and it must also resolve any of the Descendant’s outstanding debt. If you or a loved one is in an inheritance dispute, contact Daly & Campbell for a free consultation at 281-488-1500.
We enjoy nothing more than helping someone start a new business. When at the ground level of an endeavor, your first steps can matter the most. Selecting the proper business entity and structure generally concerns liability, taxation, governance and funding. If the business is not reliant on venture capital or selling stock, an LLC is an excellent option. LLC’s provide liability protection of personal assists. LLCs can elect to be taxed as a partnership or as an S Corp. LLCs do not have intensive governance requirements. How do you set up an LLC? Pick a name Pick a Registered Agent (which can be you) File a Certificate of Formation with the Texas Secretary of State (online) Pay the filing fee Create and execute an Operating Agreement Receive your Certificate of Filing from the Secretary of State Get an EIN from the IRS (online) Take your Certificate of Filing and EIN to the local bank so you can have a place to store all your profits Is it more complicated then that? Yes and no. Continue reading about LLC formation by reading the next article about picking a name. Read more about picking a name for your LLC. It might be slightly more complicated then the list indicates. If you would like help setting up your new business, call Daly & Campbell to set up a phone or office meeting to discuss your specific situation and needs.
Non-compete agreements are important to Texas business owners who understand the importance of protecting their business goodwill, trade secrets, and other confidential or proprietary information. It is also extremely important for business owners who invest their time and money in employees. Without an enforceable non-compete agreement, a business owner can spend loads of resources on an employee who in a short time takes that training and experience only to start the same business as a direct competitor. While non-competition agreements are enforceable in Texas, these agreements must follow the following guidelines: The agreement must be “ancillary to or part of an otherwise enforceable agreement” The agreement must have “reasonable” limitations with regard to its limitation as to time, geographical area and scope of activity. Ancillary To or Part of an Otherwise Enforceable Agreement The most common reason a non-compete agreement is determined to be unenforceable is that it is not part of an otherwise enforceable employment contract or the non-compete agreement itself is not supported by “consideration.” Often times we see business owners have at-will employees sign a non-compete, non-solicitation agreement but give nothing to the employee in return. This is what the law means when referring to “consideration”. Business owners wrongfully assume that the employees’ paycheck and continued employment is the consideration but it is not. Texas is an at-will employment state meaning that without an employment contract, the employer or employee can terminate the employment at any time without cause. In this context, at-will employment does not create an enforceable agreement beyond the employee getting paid for work completed. Reasonable Limitations Texas law provides that a covenant not to compete is reasonable if it is limited in duration, geographical area, and scope of business activities. There are no bright-line rules but instead, the reasonableness is reviewed on a case-by-case basis. Courts will likely uphold an agreement that lasts for 1-2 years after termination and is limited to restricting business activities similar to the employee’s former job duties. Is it still possible for the former employee to compete against the former employer? Yes. The geographical restriction is how far a former employee must be from the former employer before they are able to conduct business activities that would otherwise be prohibited by the non-compete agreement. The reasonable of this restriction is much more industry-specific. A good example is a barbershop. Would it be unreasonable to agree that a former employee cannot immediately open a barbershop across the street? Yes. Would it be unreasonable for them to open a barbershop in another city or in the same city? Maybe. The geographical restriction should only be an area sufficient to discourage a customer from traveling to the new barbershop. How far are you willing to drive to your barber? That is the question that the judge or jury will be contemplating when reviewing your non-compete agreement. Daly & Campbell have litigated non-compete agreements in counties across our area however the agreements have rarely been enforceable. If you are a business owner or former employee facing an issue with a non-compete agreement, contact us so that we can guide you to a successful outcome. If you are a new business or a person considering a new job opportunity, now is an even better time to contact us so that we can help you avoid future problems.
Work and employment related lawsuits are far more common than most people realize. Employers and employees need more awareness about what can get them in trouble. You should be familiar with some things in our list but maybe surprised by others. Discrimination Gender, Age, Race, National Origin, Religion – Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Age – Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634. Termination while nearing retirement – Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461. Race, color, national origin, religion and sex – Texas Labor Code, Chapter 21, Texas Labor Code §21.001 et seq. Genetic Makeup – Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff Disabilities – Americans with Disabilities Act of 1990, 42 U.S.C. §§12101-12213 New Parents – Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq. Membership or non-membership in a union – National Labor Relations Act, 29 U.S.C. 151-169. Gender Compensation Inequality – Equal Pay Act, 29 U.S.C. §§ 206(d) et seq. Military Service Interference With Work – Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. §§ 4301-4333 Citizenship or immigration status – Immigration and Nationality Act, 8 U.S.C. § 1324b Discriminating against an employee based on the employee’s status as a debtor or bankrupt individual under the Bankruptcy Code – Federal Bankruptcy Code, 11 U.S.C. § 525(b). Discriminating against someone for having to pay child support – Texas Family Code, Section 158.209 Retaliation Retaliation against an employee for filing a complaint or testifying as to violations of established occupational health and safety standards – Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678. Whistleblower Protection – Sarbanes-Oxley Act, 18 U.S.C. §1514A Workers’ compensation retaliation – Texas Labor Code, Chapter 451 (Workers’ Compensation Retaliation) Retaliation for Jury Service – Jury System Improvement Act of 1978, 28 U.S.C. § 1875 & Texas Civil Practices and Remedies Code, Section 122.001 (Juror Re-employment) Retaliating against an employee based on how an employee voted – Texas Election Code, Section 276.001-276.004 (Employee Voting) Not paying the national minimum wage – Fair Labor Standards Act, 29 U.S.C. 201 et seq. Asking or requiring applicants or employees to take a polygraph test – Employee Polygraph Protection Act of 1988, 29 U.S.C. §§ 2001-2009. Notice of “Mass layoff” – Worker Adjustment Retraining Notification Act, 29 U.S.C. §§ 2101-2109. Withholding Nonexempt Employees Wages – Texas Pay Day Law, Texas Labor Code §§ 61.001 et seq. Breach of Non-compete Agreement – Texas Law on Covenants Not to Compete, Texas Bus. & Comm. Code, §§ 15.50-15.52 Failure to train agricultural laborers regarding exposure to hazardous chemicals – Texas Agriculture Code, Section 125.013 (Agricultural Hazard Communication Act) Refusing to permit an Employee absence from work to serve as political delegate – Texas Election Code, Section 161.007 (Attendance at Political Convention) Defamation Assault & Battery Fraud Negligent hiring, training, supervision or reference False Imprisonment Wrongful Discharge Daly & Campbell have helped both employers and employees that have found themselves in these types of circumstances. If you need help or have any questions, never hesitate to call us.
Students have limited first amendment rights on campus. Under Texas law, schools can suspend student’s for up to three days for almost any reason. The Constitution requires that prior to a student being suspended, the student should be informed of the alleged misconduct and be given a chance to explain. Texas law doesn’t require schools to follow the constitutionally required procedure. The lack of required due process under Texas law is unconstitutional but a school district’s student code of conduct may provide for it. The only requirement under Texas law is that the school make some minimum efforts to contact the student’s parents or guardian, but these individuals are provided no involvement in the decision-making process. Therefore, it depends on each school district. The Details WHAT CONDUCT CAN RESULT IN OUT-OF-SCHOOL SUSPENSION (OSS)? Probably just about anything. The board of trustees of each Independent School District (ISD) must adopt and make available a Student Code of Conduct (SCOC). The SCOC must say what behavior could cause a student to face disciplinary action. Your ISDs code is probably available online and may be found with a simple search. In the case of Needville ISD, a student may face a three day out-of-school suspension for failure to “comply with directives given by school personnel (insubordination)”. Restricted behavior can interference with free speech. The U.S. Supreme Court stated in Tinker v. Des Moines (1969), that students do not shed their constitutional rights at the schoolhouse gate however a student’s First Amendment rights are not without limits while on school grounds. The Court held speech which “materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” Therefore, it cannot be said that a student cannot face consequences when exercising what they may feel is their right to free speech. The SCOC must say what disciplinary action may be taken based on the alleged misconduct. Some behavior will come with mandatory disciplinary actions and others will be listed as possible display actions. Look for the words “must” and “may”. Once the school has determined what action they wish to take, there are no procedures they must follow. The ISD’s SCOC should outline what behavior can result in OSS. OSS is always discretionary therefore the school can always choose not to take this type of disciplinary action. The SCOC should list the factors and guidelines for determining, if, how or how long the student is disciplined. Regardless of the factors listed in the SCOC, the school must consider the following factors: Self-Defense Whether or not the student acting in self-defense. 2. Intent or Lack of Intent Whether or not the student’s conduct was intentional or was it an accident or mistake. 3. Disciplinary History Whether or not the student has been in trouble before and, if so, what was the prior conduct and what disciplinary action was taken. 4. Disability Whether or not the student has a disability that would substantially impair the student’s ability to understand their conduct was wrong. Since there are no guaranteed procedural safeguards for a suspension, a student or parent may have no way of knowing if any of these factors were taken into consideration. WHO CAN BE PLACED IN OSS? Any student is subject to out-of-school suspension but be aware that there are greater restrictions when a school seeks to place students in out-of-school suspension who are below the third grade. WHO CAN PLACE A STUDENT IN OSS? The principal or other appropriate administrator may suspend a student who engages in conduct identified in the student code of conduct adopted under Texas Education Code Section 37.001 as conduct for which a student may be suspended. HOW LONG CAN THE STUDENT BE SUSPENDED? If the school elects this punishment, OSS cannot be longer than three (3) school days. WHAT IS THE PROCESS FOR SUSPENDING A STUDENT? Each ISD’s SCOC should be reviewed to determine if any procedures are provided for. Under Texas law there is not a formal procedure. First, a principal or other appropriate administrator must determine that a student has violated the student code of conduct. Second, the principal or other appropriate administrator msut decide to suspend the student which may be for up to three days. Then finally, the “campus behavior coordinator”, the school principle, or other designee shall promptly notify a student’s parent or guardian if a student is placed into in-school or out-of-school suspension. The notification must be by: (1) promptly contacting the parent or guardian by telephone or in person; and (2) making a good faith effort to provide written notice of the disciplinary action to the student, on the day the action is taken, for delivery to the student’s parent or guardian. ARE TEXAS THREE DAY OUT-OF-SCHOOL SUSPENSION PROCEDURES CONSTITUTIONAL? As lawyers most often say: It depends. Constitutional Due Process Requirements In Gross v. Lopez (1975), the U.S. Supreme Court held that when a state creates a public school system with mandatory attendance, the state cannot completely deprive the student of that property interest without due process of law. In Goss, the Supreme Court held that, at minimum, a student facing a 10–day suspension “must be given some kind of notice and afforded some kind of hearing.” The Court also recognized that not only is a property interest at stack with regard to the student’s education but that a suspension on the student’s permanent record had the potential of seriously harming their reputation and affecting their future employment and education. However, the Court felt that the only notice and hearing that would normally be required is for the disciplinarian to informally discuss the alleged misconduct with the student soon after the misconduct occurred. The disciplinary should first inform the student of the alleged misconduct, the basis for the allegations and provide the student the opportunity to explain his or her version of the facts. This is all the due process that the Court found was necessary. Texas is required to provide due process, but Texas law fails to require it. As required under the Texas Constitution, the State has created a public school system with mandatory attendance which gives rise to a student property interest in the education as explained in Gross v. Lopez. This then requires some level of due process prior to a student being suspended. The Texas Education Code Chapter 37 which provides that an Independent School District must adopt a Student Code of Conduct that provides for which conduct can face disciplinary action and what that disciplinary action may be. What chapter 37 does not require is that the school district provide any level of due process prior to an out-of-school suspension of three days or less. Therefore, under Chapter 37, a school district can suspend a student for three days or less without informing the student of the alleged misconduct and allow the student to explain as required in Gross v. Lopez. How does this apply to each specific Texas ISD? Though Texas law does not require a school district to include the constitutionally required due process, a school district’s Student Code of Conduct might include it. If you have any questions or would like to talk to one of the attorneys at Daly & Campbell, please contact us.. Understand that if you disagree with the law or how the law is applied to you or your child, there is always something that can be done.
Parents often feel lost when seeking help for a child that is struggling in school. All children have a right to an education Texas. The Individuals with Disabilities Education Act (IDEA) is meant to ensure that all students with disabilities receive the education that they deserve. The Referral Notice of Rights Full and Individual Evaluation The Admission, Review and Dismissal (ARD) Meeting The Individual Education Program (IEP) The Due Process Hearing Legal Action 1. The Referral Any child with a suspected disability may be referred for an evaluation for special education eligibility by either a parent, teacher or any other professional involved in the child’s education. The child should then be evaluated to determine what, if any, programs the child might be eligible for. 2. Notice of Rights Upon referral of a child, the school district is required to give written notice to the parents regarding the schools proposed changes to the child’s education or the schools refusal to make changes. It must also seek the parents consent when required. This notice should include: The identification (does your child have a disability or need special education to benefit from education); The evaluation (initial evaluation, re-evaluation, dismissal); The placement of your child; or How the child is provided a “free appropriate public education” (FAPE). 3. Full and Individual Evaluation After obtaining the parents consent, the school must do a full and individual initial evaluation to determine if the child has a disability and what, if any, are the child’s need for special education programs or services. 4. The Admission, Review and Dismissal (ARD) Meeting Once the evaluation is complete, the school will schedule a meeting of the Admission, Review and Dismissal (ARD) committee. The child’s parents are members of this committee and will be contact about attending the meeting. The committee, including the parents, will determine the needs of the child. If the parents disagree with the committees, the parents may ask to stop the meeting and seek further evaluation of the child. If the committee determine that the child does have special needs, the school will seek the parent’s consent to provide services. Once consent is given, the ARD committee will then develop your child’s individual education program (IEP) 5. The Individual Education Program (IEP) The Individual Education Program (IEP) is a written plan that is specifically planned for the child regarding how the child will be educated. 6. Due Process Hearing Parents who are not satisfied with the process may request an additional ARD meeting however the school may refuse the request. In that event, the parent may request a due process hearing with the Texas Education Agency. This hearing will be conducted in front of a Special Education Hearing Officer. The hearing officer will listen to evidence from both the school and the parents then make a Final Decision and Order. 7. Legal Action When parents have exhausted the above process and feel that their child is not receiving the education that they are entitled to under the Constitution, then legal action is often times the only option. If you are a parent of a child with special needs who is not receiving the education they are entitled to, contact Daly & Campbell for a free constitutional.
Calculating monthly child support payments in Texas usually comes down to doing some math. Below are the standard guidelines however your circumstances may be different especially if paying child support for children in multiply homes. How many children? The Texas Family Code provides for the following guidelines: 1 child = 20% of the non-custodial parent’s average monthly net resources 2 children = 25% of the non-custodial parent’s average monthly net resources 3 children = 30% of the non-custodial parent’s average monthly net resources 4 children = 35% of the non-custodial parent’s average monthly net resources 5 children = 40% of the non-custodial parent’s average monthly net resources 6 or more children = not less than 40% of the non-custodial parent’s average monthly net resources See Texas Family Code Section 154.125. Net Resources = Gross Income Minus Statutory Deductions As of 2013, the guidelines are specifically designed to apply to situations in which the obligor’s monthly net resources are not greater than $8,550.00 but are subject to adjustment in 2019. Gross Income (1) 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses); (2) interest, dividends, and royalty income; (3) self-employment income; (4) net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including noncash items such as depreciation); and (5) all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, United States Department of Veterans Affairs disability benefits other than non-service-connected disability pension benefits, as defined by 38 U.S.C. Section 101(17), unemployment benefits, disability and workers’ compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony. Statutory Deductions (1) social security taxes; (2) federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction; (3) state income tax; (4) union dues; (5) expenses for the cost of health insurance, dental insurance, or cash medical support for the obligor’s child ordered by the court under Texas Family Code Sections 154.182 and 154.1825; and (6) if the obligor does not pay social security taxes, nondiscretionary retirement plan contributions. Child Support Beyond the Standard Guildines The following circumstances may be considered when determining whether or not these standard guidelines are “unjust or inappropriate” but keep in mind that in no event may the obligor be required to pay more child support than the greater of the presumptive amount from above or the amount equal to 100 percent of the proven needs of the child. (1) the age and needs of the child; (2) the ability of the parents to contribute to the support of the child; (3) any financial resources available for the support of the child; (4) the amount of time of possession of and access to a child; (5) the amount of the obligee’s net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee; (6) child care expenses incurred by either party in order to maintain gainful employment; (7) whether either party has the managing conservatorship or actual physical custody of another child; (8) the amount of alimony or spousal maintenance actually and currently being paid or received by a party; (9) the expenses for a son or daughter for education beyond secondary school; (10) whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity; (11) the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties; (12) provision for health care insurance and payment of uninsured medical expenses; (13) special or extraordinary educational, health care, or other expenses of the parties or of the child; (14) the cost of travel in order to exercise possession of and access to a child; (15) positive or negative cash flow from any real and personal property and assets, including a business and investments; (16) debts or debt service assumed by either party; and (17) any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.
Every truck accident is different, but many accidents have similar causes. At the Daly & Campbell Law Firm, attorneys Brendan Daly and Reese Campbell understand that negligence is the most common cause of truck accidents. Our lawyers help people injured in truck accidents obtain full compensation for their injuries, pain and suffering, property damage, medical and rehabilitation costs, and other accident-related damages. How Truck Accidents Can Happen When it comes to truck accidents, negligence can take many forms, including: Driver fatigue Lack of safety equipment Failure to follow safety regulations Improper inspection, maintenance and repair Drunk or drug-impaired driving Speeding Tailgating Lack of training or licensing Overweight trucks Unbalanced loads Failure to secure the load Improper loading Failure to take required sleep and rest breaks Overly aggressive schedules Driving in bad weather conditions Inadequate surveillance (not watching the road) Failure to comply with Federal Motor Carrier Safety Administration regulations Whether you were injured in a jackknife accident, a rollover, an underride, rear-end, head-on or any other type of accident involving a large truck, it is important to discuss your legal rights with a lawyer experienced in truck accident claims. It costs you nothing to find out if we can help. We offer a free initial consultation to discuss your case and advise you of your legal options. If you choose us as your legal representative, you will pay nothing upfront and nothing out of pocket. Our fees come as a percentage of whatever compensation we win for you. Contact the Houston Truck Accident Injury Lawyers To arrange a free initial consultation with one of our lawyers, please contact Daly & Campbell Law Firm by e-mail or call. From our office in Houston, we represent clients in southeast Texas, throughout the state and nationwide.
According to the ASIRT (Association for Safe International Road Travel), nearly 2.35 million people are injured in car crashes each year. With such a high statistic, it’s no wonder taking any form of legal action can be intimidating, and even discouraging. However, at Daly Law Firm, we firmly believe in defending you to the best of our ability. We specialize in personal injury and car accident injuries and firmly defend you, not the insurance company. Regardless of your injury, there are some things you’ll want to cover to ensure the best outcome for you. Each state abides by what’s called “accident law”. The details of it can vary from state to state but first and foremost there is a time limit on how long you are able to file for a personal injury case. To know the best practices and bases to cover for your accident case, it’s necessary to know the accident law that Texas abides by. Let’s take a look at the law that is set in place. Time Frame Requirements In Texas, there is a two year maximum time frame that you must file by when dealing with personal injury from a car accident. Starting from the date of the accident, you will have two years to file for personal injury claims. It’s important to note that this does not include the time it takes to file your claim with the insurance company. However, it’s a good idea to file with your insurance as close to the accident as you can. Once it’s filed, there will need to be an inspection of the vehicles and an evaluation of injuries. Don’t underestimate how fast time can go by, take action as soon as possible. In the incident of getting into an accident with a city vehicle, you will need to look into the guidelines and rules to know how to approach the situation. To help set you up for the best success in your defense, let’s take a look at some crucial pieces to be aware of. Choose Your Words Carefully Car accidents are scary and can cause an array of emotions. In the midst of the all the charged emotions, it’s important to remain as calm as possible in the situation and be careful what you say at the scene. In the event that you are conscious and able to communicate well, do not admit to fault at the scene. Any statement you make can be used as evidence in the case filed. Try to limit your conversation with the other person involved and stick to the exchange of insurance information and police investigation cooperation. If the police officer asks you for an explanation of the scenario, be equally as careful in your word choice. File a Report to Your Insurance Though you have a two year window, be prompt in filing your accident. It is possible for insurances to refuse the option to protect you if you failed to report the accident early on. When you file with your insurance agency, dig a little deeper into your insurance plan. Ask them about the in’s and out’s of your policy and what you may be entitled to for benefits, rental cars in the event that your car is totaled, wage loss if the injury is serious, or any medical bills. Once the claim is processed, if you are not responsible for the accident, you won’t see a raise in your insurance rate.. As you continue to move forward with your insurance company, cooperate with them and the requests they may have. If you sought medical attention after the accident, they may want to speak with your doctors or need to have a specific company they have pre-approved check your vehicle. Though you’d like to assume them to be on your side from the get-go, insurance companies are careful with their stance as well and can remove the benefits you could receive if you do not cooperate with them. Above all, be honest and transparent with them. In the event that you hide details that come to light later, your insurance can, again, refuse to cover you or even drop you. Document Everything And we mean everything. If you do seek medical attention immediately after the accident, which we highly recommend, take special note of the instructions your doctor gives you. Failure to comply with these directions or choosing to not get an initial evaluation from your doctor can cause issues with your claim. If and when you have decided to file the claim against the other driver, ensure you are keeping record of all losses you experience in that time, due to the accident. This includes time off work as well as medical bills, lodging, food, etc., keep track of all viable documentation. Include a Lawyer Early Believe it or not, you can actually have a lawyer handle the claim of your accident. Knowing early on that you plan to file against the other driver involved can give you the benefit of reaching out to a lawyer to handle all the messy details. Victims often end up with two or three times of the amount they would normally when they choose to include a lawyer. As mentioned above, dealing with accidents is a stressful, and often emotional, situation. Allowing a lawyer to step in can help alleviate any further stress and give you the confidence to know you’re being fought for by someone who knows the law. Contact US At Daly & Campbell Law Firm, we offer consultation appointments to learn how we can best represent you in the scenario. We fight to protect you, not the insurance. Our passion is to accurately represent the victims of personal injury due to vehicular accidents. Let us help you move forward without the fear of protection, call Daly & Campbell Law Firm today and schedule an appointment with us.
In his song “Eastbound and Down,” Jerry Reed summed up the problem truck drivers face every day: “We’ve got a long way to go and a short time to get there.” The pressure to make deliveries on time can cause truck drivers to take risks that put themselves and other drivers at risk. The attorneys of the Daly & Campbell Law Firm, represent people who were harmed in accidents caused by truck driver negligence, including: Drunk driving Driving while under the influence of drugs Driver fatigue from violating hours of service regulations Aggressive driving Speeding, tailgating, failure to use signals Distracted driving, e-mailing, texting, watching movies while driving Driving in adverse weather conditions Failure to properly inspect the truck, trailer and load Overweight or unbalanced loads Lack of proper licensing or training Trucking Companies Bear Some of the Blame In some cases, truck drivers are pushed to take unnecessary risks by trucking companies. The drivers may need to choose between losing their jobs and taking chances on the road. Trucking companies put truckers and other drivers at risk when they: Fail to perform required drug tests Hire unqualified drivers Hire drivers who have criminal backgrounds that include drunk driving or reckless driving offenses Contact the Houston Truck Accident Injury Lawyers To arrange a free initial consultation with one of our lawyers, please contact Daly & Campbell Law Firm by e-mail or call. From our office in Houston, we represent clients in southeast Texas, throughout the state and nationwide.
Override and underride accidents are serious, and often fatal, types of car-truck accidents that are caused by a lack of important safety equipment. Override accidents happen when a truck runs over a car in front of it. Underride accidents occur when a car drives under an 18-wheeler, or other large truck. They account for up to half the fatalities that occur in truck accidents. Underride accidents can happen on the side, rear, or front of the truck. Underride guards and other safety equipment can help reduce injuries and fatalities to other drivers. The National Highway Traffic Safety Administration (NHTSA) mandates that all trailers with a gross vehicle weight of 10,000 pounds or greater made since January 1998 be equipped with a rear underride guard. NHTSA also requires that trucks and trailers meet standards for lighting and reflective markings. Failure to meet these standards can lead to underride accidents, particularly when a semi tractor trailer crosses a highway at night. Without these markings and lights, the trailer is invisible to oncoming traffic until it is too late. How We Can Help The attorneys of Daly Law Firm will find out whether the truck that injured you was equipped with all appropriate safety equipment, and whether all appropriate safety precautions were taken. We will look for: Lack of underride protection Lack of safety lighting Lack of reflective markings Improper loading Failure to comply with weight restrictions Failure to properly secure the load When necessary, we will retain an accident reconstructionist who will study how the accident occurred, and whether lack of proper safety equipment or failure to take safety measures caused or contributed to the accident. Contact Us To arrange a free initial consultation with one of our lawyers, please contact the Daly & Campbell Law Firm by e-mail or call 281-488-1500. From our office in Houston, we represent clients in southeast Texas, throughout the state and nationwide.
A truck is not safe unless it is in proper working order. Failure to inspect, repair and maintain a commercial truck can lead to accidents, injuries and deaths. The attorneys at the Daly & Campbell Law Firm represent clients who have been injured because a semi tractor trailer, or other large truck was not properly maintained. Holding Negligent Drivers Accountable The Federal Motor Carrier Safety Administration (FMCSR) requires vehicle owners to perform regular inspections, repairs and maintenance. They must also retain records of these activities for one year, or for six months after the selling, or otherwise disposing of the truck. If truck owners fail to comply with these regulations, we will hold them accountable. Like all businesses, the trucking industry is a numbers game. Trucking companies make more money when they spend less on truck maintenance and repair. It can be very tempting for truck owners to try to delay certain types of maintenance. For example, truck owners may try to squeeze more mileage out of brakes and tires. This type of penny pinching can be extremely costly to the victims of a truck accident. Compensation for Clients, Safer Roads for All Our law firm’s primary goal is to secure full compensation for our clients. We also seek to show owners of large commercial trucks that negligence is ultimately very costly. Large verdicts and settlements in truck accident claims can encourage trucking companies to comply with safety standards, and thereby make roads and highways safer for everyone. If you were injured in a truck accident, we will determine whether inadequate truck maintenance cause or contributed to the accident. If so, we will seek fair compensation for the full extent of your losses. Contact Us To arrange a free initial consultation with one of our lawyers, please contact the Daly & Campbell Law Firm by e-mail or call 281-488-1500. From our office in Houston, we represent clients in southeast Texas, throughout the state and nationwide.
Getting in an accident of any sort is scary, and the aftereffects can be even more detrimental. Depending on the severity of the crash, it’s possible you may not fully realize the long term issues that can ensue. For this reason, Daly Law Firm wants to help give some pointers on common injuries from accidents, and the long term effects they can have. Once you are aware of what price you may have to pay in the long run, we will be better able to defend your claim for legal purposes. If any of the injuries we delve into are a result of your accident, make sure to notify the long term effects and let your lawyer know. Back and Neck Pain Injuring your back in an accident is a very common occurrence and can cause both immediate and long term issues. Even a seemingly harmless whiplash (damage to the soft tissue in your neck) can ignite pain for years to come. Depending on the speed the collision occurs at, the results of whiplash can also affect the joints and discs of your vertebrae. If you have been in an accident, identifying whiplash may not be immediate. Sometimes the symptoms of whiplash can occur days after the collision, such as: Headaches Dizziness Neck stiffness Tingling or numbness in extremities Fatigue Muscle/ligament injury Burning or prickling feeling in the neck In other cases it’s possible for individuals to experience difficulty sleeping, concentrating, or have memory loss and increased nervousness. Though the issues from whiplash usually subside within a time frame of about three months, it is possible for them to continue past that point. There are some studies that show individuals who experienced whiplash in an accident, 15%-40% go on to develop chronic neck, and sometimes overall, pain. For this reason, it’s in your best interest to record your symptoms, the date they occur, and any medical remedy you were given. Emotional Damage Understanding the physical ailments present with a collision is necessary, but it’s also crucial to be aware of the emotional damage they can cause as well. The aspect of psychological damage that a collision can cause, such as PTSD (Post Traumatic Stress Disorder), is a very real issue that can affect a person’s ability to function. The results of emotional distress from a traumatic experience, such as an accident, can vary from a general nervousness and be as severe as frequent nightmares or flashbacks. These symptoms can intensify to a level where an individual may never want to drive again, or may not be able to hold a steady job due to the trauma. Did you know that aside from warfare, car accidents are the number one cause of PTSD? The effects and results of the severity of PTSD is correlated with the severity of the accident and can cause long lasting effects. In a study done of 111 accident victims, who sustained no head injuries, found there were a large number of them continued to suffer social and psychological problem with a staggering 25% of them reporting they had significant anxiety and fear when operating or riding in a motor vehicle. The results of emotional and psychological trauma are severities that may not initially seem like an issue, until you are a victim of them. Be sure to note your experiences and communicate them with your legal representative. Head Trauma Head injuries from car accidents are among the most serious injuries that can be detrimental to your health and well being, both immediately and long term. Experiencing a sudden blow of impact like a vehicle collision can cause an upset in typical brain function. Brain injuries can be penetrating or closed, closed being an incident where the brain knocks against the skull and penetrating being a scenario where a foreign object penetrates the skull. Depending on the severity of the accident, injuries can be anywhere from a concussion to a coma with further damaging effects. With the potential to have only minor indicators of symptoms associated with head trauma, it’s crucial to seek immediate medical attention following an accident if there is any indication of head or neck injury. In the cases of injury where death is not the result, the threat of amnesia or even a coma, can be equally detrimental and feed into long term issues. Those who are hospitalized for head trauma, among them 43% can experience issues for the following year after their injury occurred. Keep in mind that CT scans may not show evidence of injury, but that does not mean the individual does not experience the effects of it. Aside from falls, vehicle collisions are the leading cause of death due to traumatic brain injuries at a staggering 31.8%. To prevent the furthering of a serious injury, it’s important to seek medical attention immediately. Scars & Repairs An aspect not often considered is the results of the physical damage once it’s repaired. If there was a traumatic vehicle collision that resulted in extensive or serious physical damage, the repair scars can account for a lofty amount in damages. Large or prominent scarring, such as ones on the face, arms, or hands, are more costly for the individual for both self-consciousness reasons and the pain associated with flesh that is less flexible. In the event of the scarring being located on an area of the joint that is flexed often, it can cause limited mobility or even complete loss in severe cases. The more visible the scarring is to the general public, the higher the cost affiliated is. If you have significant scarring due an accident, it will be important to note how much your scar is worth by seeking a medical opinion. Ask them for an estimate on what it would take to remove the scar or repair it. Asking your primary caregiver for a recommendation to a plastic surgeon and their estimation of what the procedure would cost. Once you obtain all necessary information regarding your scar procedure, whether you choose to follow through with it or not, give all estimates to your lawyer to include in your demand letter and for the case as a whole. Daly Law Firm is here to defend you, not your insurance. In the event of a personal injury, whether automobile collision or otherwise, our goals to have you covered. Whatever the injury sustained may be, we offer over ten years of experience fighting for the client and their well-being. Our passion is our clients, and our priority is to provide you with personal, trustworthy support from your lawyer. To have a free case review, fill out the form on our website, or contact us with any additional questions you may have. Daly Law Firm is on your side. Contact Us To arrange a free initial consultation with one of our lawyers, please contact Daly & Campbell Law Firm by e-mail, or call 281-488-1500. From our office in Houston, we represent clients in southeast Texas, throughout the state and nationwide
Going through the mortgage application process is grueling. Lenders demand extensive documentation and long applications. Mortgage fraud cases generally involve a material misstatement, misrepresentation or omissions on a mortgage application. This normally relates to property or income that is presented to and relied upon by the lender in making a decision whether to provide the loan and to what amount. A critical fact in mortgage fraud cases is whether the fraudulent statement is “material“. Did the lender know about the falsehood? Did the lender conduct a diligent review before executing its decision.
Most DWI’s start with a traffic stop which is why the first thing to evaluate in your case is whether or not it was a lawful stop. Being stopped for a traffic violation is a temporary detention. Temporary detentions are meant to provide the police an opportunity to further investigate whether or not a crime has occurred or is occurring. During a traffic stop you are not free to leave so the law says you are being “seized” by the police. Therefore a traffic stop is evaluated against your protections under the 4th amendment from “unreasonable seizures.” Traffic stops can be unreasonable either because the initial reason for the stop was not reasonable or because the detention following the traffic stop was not reasonable. So what is reasonable and what is unreasonable with regard to a traffic stop? The basic rule is that the police must have “reasonable suspicion” based on “articulable facts” that a crime has occurred or is occurring in order to conduct a traffic stop. Traffic stops typically involve the police seeing someone commit a traffic offense such as speeding. It is difficult to fight against a police officer who says they saw someone speeding but it is not always as straightforward. Bad Stops Courts look at each case and set of facts separately. So we can look to past decisions to help guess at what is and what is not reasonable suspicion. The GOOD NEWS: Reasonable suspicion requires more than suspicion or “hunch.” The BAD NEWS: Reasonable suspicion may exist even where the conduct of the person detained is “as consistent with innocent activity as with criminal activity.” This means that you don’t have to be doing anything illegal to be detained. This is most often seen when a driver is stopped for weaving within a single lane. Weaving within a single lane is not a traffic offense but it is common behavior for an intoxicated driver. Since it is not a law violation, the police cannot justify stopping someone for weaving with their lane BUT if the police can explain why such driving behavior caused them to have reasonable suspicion that the driver was intoxicated, then it is a lawful reason to stop someone. Weaving? The San Antonio Court of Appeals provided an explanation for when weaving is and is not a legal basis for a stop. They held that weaving within a lane is not a lawful reason to stop a driver unless the weaving is erratic, unsafe, or tends to indicate intoxication or other criminal activity. An example of circumstances that tend to indicate intoxication is that the driver just pulled out of a bar, it’s late at night and they are weaving. In that case, the officer only testified that they observed weaving so they case was thrown out. State v. Arriaga, 5 S.W.3d 804 (Tex.App.—San Antonio 1999, pet. ref’d). Reasonable Traffic Stop Gone Bad What the Police CAN DO During a Traffic Stop Ask for your Driver’s license. Ask for your proof of financial responsibility. Ask for proof of your vehicle’s registration. Check to see if you have any open warrants for your arrested. Police can ask unrelated questions as long as it doesn’t prolong the stop. Police can detain you as long as it takes to do the above and write you a citation. What the Police CANNOT DO During a Traffic Stop Police cannot detain you any longer than is necessary to accomplish the above without providing additional reasonable suspicion for the prolonged detention. The Bad News The smell of alcohol provides an officer the additional reasonable suspicion to prolong the detention and begin a DWI investigation. Profiling & “Pretext Stops” The law does not care as to the real reason a police officer stopped you as long as the police officer has a legal basis for stopping you. That means that illegal profiling is almost impossible to prove as long as the profiling is coupled with reasonable suspicion of criminal activity.
The vast majority of DWI convictions result in probation. Probation is formally called “community supervision.” When probation is granted, a person is first sentence to jail/prison and a possible fine but that sentence is then suspended for a period of time. During that suspended time period, the person is required to follow a list of conditions which is then supervised by the Judge through a probation officer. If at any time during that suspend time period the State proves to the Judge that one of the conditions of probation was violated then the Judge can sentence the person to any punishment within the range of the original sentence. Conditions of Probation Many of the conditions of probation apply to every probation no matter what the crimes is but DWI cases included their own specific conditions. General Conditions Don’t commit a new law violation Avoid Injurious Conduct (no one really knows what that means) No consumption of alcohol or drugs not prescribed by a doctor Random drug and alcohol testing Report to a probation officer as directed but normally no less than once a month Pay a monthly supervision fee (normally $60) Pay all fines and court costs Pay small a donation (usually to Crime Stoppers) Perform a specific number of community service hours Remain in the county unless given permission to leave Specific DWI Conditions Attend a DWI education class Install an interlock device on your car and only drive cars that have an interlock device Jail time as required by the law or ordered by the Court
DWI Offenses & Punishments including mandatory Driver’s License Suspensions Driving While Intoxicated First Offense Class B Misdemeanor 1. Three days to 180 days in jail and a possible a fine up to $2,000; or 2. Probation for up to 2 years Impact on Driver’s License Loss of driver license up to a year Annual fee of $1,000 or $2,000 for three years to retain driver license First Offense With A Blood Alcohol Content Above 0.15 If there is a breath or blood test that results in a alcohol concentration of above 0.15 then a first offense DWI can be “enhanced” to a class A misdemeanor. Class A Misdemeanor 1. One month to a year in jail and a possible fine up to $4,000; or Impact on Driver’s License Loss of driver license from 90 days to up to 1 year Annual fee of $1,000, $1,500 or $2,000 for three years to retain driver license First Offense With An Open Container If it is alleged and proven that the first offense DWI involved an open container of an alcohol beverage being found in the vehicle, then minimum jail penalty increase to six days in jail. Probation is still available. Second Offense Class A Misdemeanor 1. A minimum of 30 days and up to a year in jail and a possible fine up to $4,000; or 2. Probation for up to 2 years Impact on Driver’s License Loss of driver license from 180 days to up to two years Annual fee of $1,000, $1,500 or $2,000 for three years to retain driver license. Third Offense or more Third Degree Felony 1. Two to 10 years in prison and a possible fine of up to $10,000; or 2. Probation for up to 10 years Impact on Driver’s License Loss of driver license up to two years Annual fee of $1,000, $1,500, or $2,000 for three years to retain driver license Driving While Intoxicated With A Child Passenger You can be charged with child endangerment for driving while intoxicated if you’re carrying passengers younger than 15 years old. DWI with a child passenger is punishable by: State Jail Felony 1. Up to two years in a state jail and a possible fine up to $10,000; or Impact on Driver’s License Loss of your driver license for 180 days Intoxication Assault An intoxication assault is where an accident occurred with serious bodily injury resulted as a proximate cause of the intoxication. Third Degree Felony 1. Two to 10 years in prison and a possible fine of up to $10,000; or 2. Probation for up to 10 years If a probated sentence is received, there is a 30-day minimum jail sentence. Intoxication Manslaughter Intoxication manslaughter is a DWI where a death occurred in an accident and where the intoxication was the proximate cause of the death. Second Degree Felony 1. Two to 20 years in prison and a possible fine of up to $10,000; or Where probation is granted, there are still a requirement of a 120 day jail sentence.
Most people have heard and believe that you should always refuse. If you refuse, your driver’s license is “automatically” suspended. Reese prefers to say it’s subject* to being suspended. After a refusal, the officer can (and probably will) obtain a search warrant to forcible take a blood sample. *Reese says you are subject to a suspension because it is not automatic. After a DWI arrest in which you have refused to take a blood or breath test, it is extremely important that you realize that you have the right to force DPS to prove that you refused to take a blood or breath test before they can suspend your license. You must request a hearing within 15 days of the arrest. The same is true if you agree to take a test and fail. It is important that you have an updated address on your driver’s license because this is were DPS will send the notice of failure. Once the notice of failure is received you only have 15 days to request a hearing. YOU CAN REQUEST IT ONLINE HERE. Once a hearing date is set, it is your (or your attorney’s) responsibility to ensure that the police officer is properly subpoenaed to attend the hearing. If the police officer doesn’t show up then you automatically win and your license is not suspended. If the officer does show up then this is a great opportunity for your attorney to cross exam the officer before he has a chance to work out his testimony with the prosecutors on your case. Driver’s License Suspensions for Refusing or Failing a Test Periods of Suspension for Adults An individual’s driver license will be suspended under the following circumstances. 1. The individual refused to provide a blood or breath specimen following an arrest for an offense prohibiting the operation of a motor vehicle or watercraft while intoxicated, while under the influence of alcohol, or while under the influence of a controlled substance. 180 Days – First Offense 2 Years – If previously suspended for failing or refusing a blood or breath test, or for a DWI, Intoxication Assault, or Intoxication Manslaughter conviction during the 10 years following the date of arrest. 2. The individual provided a blood or breath specimen with an alcohol concentration of 0.08 or greater, following an arrest for an offense involving the operation of a motor vehicle or watercraft while intoxicated. 90 Days – First Offense 1 Year – If previously suspended for failing or refusing a blood or breath test OR previously suspended for a DWI, Intoxication Assault, or Intoxication Manslaughter conviction during the 10 years preceding the date of arrest. Periods of Suspension for Minors (Under 21 Years of Age) A minor’s driver license will be suspended under the following circumstances. 1. The minor refused to provide a blood or breath specimen following an arrest for an offense prohibiting the operation of a motor vehicle or watercraft while intoxicated, while under the influence of alcohol, or while under the influence of a controlled substance. 180 Days – First Offense 2 Years – If previously suspended for failing or refusing a blood or breath test OR previously suspended for a DWI, Intoxication Assault, or Intoxication Manslaughter conviction during the 10 years preceding the date of arrest. 2. The minor provided a blood or breath specimen or a detectable amount of alcohol was found following an arrest for an offense involving the operation of a motor vehicle while intoxicated. 60 Days – First offense involving alcohol 120 Days – If previously convicted of an offense involving the operation of a motor vehicle while under the influence of alcohol. 180 Days – If previously convicted two or more times of an offense involving the operation of a motor vehicle while under the influence of alcohol. 3. The minor was not requested to provide a blood or breath specimen following the arrest for an offense involving the operation of a motor vehicle because the presence of alcohol was detected or measured by other means. 60 Days – First offense involving alcohol 120 Days – If previously convicted of an offense involving the operation of a motor vehicle while under the influence of alcohol. 180 Days – If previously convicted two or more times of an offense involving the operation of a motor vehicle while under the influence of alcohol. Periods of Disqualification for a Commercial Driver License (CDL) A CDL will be disqualified for one year under the following circumstances. 1. The individual refused to provide a blood or breath specimen to determine the concentration of alcohol or the presence of a controlled substance while operating a commercial motor vehicle in a public place; or 2. While operating a motor vehicle in a public place, the individual provided a blood or breath specimen that showed an alcohol concentration of: 1. 04 or more (commercial vehicle only) 2. 08 or more (any vehicle) 3. 10 or more (any vehicle) A CDL will be disqualified for three years from transporting hazardous material under the following circumstances. 1. The individual refused to provide a blood or breath specimen to determine the concentration of alcohol or the presence of a controlled substance while operating a commercial motor vehicle transporting a hazardous material required to be placarded (displayed). 2. While transporting hazardous material required to be placarded (displayed), the individual provided a blood or breath specimen that showed an alcohol concentration of: 1. 04 or more (commercial vehicle only) 2. 08 or more (any vehicle) 3. 10 or more (any vehicle)
Blood samples are analyzed for alcohol content using a Gas Chromatography. More specifically, it is a Head Space Gas Chromatograph with Flame Ionization Detector. The Good & The Bad The good thing about them is that they can be reliable if the test procedure is followed and the machine is probably maintained. The bad thing about them is that they can be reliable only if the test procedure is followed and the machine is probably maintained. Many people, including criminal defense attorneys, think that a blood test is better and more reliable. This isn’t true. Calling it a “blood test” isn’t even very accurate. The blood is heated up and then the air above the blood is tested for alcohol concentration. The same issues that arise with temperature, calibration and human error with the breath test machine apply to a blood test. Clinical Tests Comparing Blood & Breath Results It probably comes as no surprise to you that clinical tests involving the taken of a person’s breath sample and blood sample results in the conclusion of different blood alcohol contents. Jones, A. W., et al. “Measuring ethanol in blood and breath for legal purposes: variability between laboratories and between breath-test instruments.” Clinical Chemistry 38.5 (1992): 743-747.
How the breath test machine works The Intoxilyzer 5000 is the breathalyzer machined relied upon in Texas. The machine uses infrared to measure the alcohol in your breath to determine the alcohol contrition in your blood. To do this the machine fires infrared into a chamber that holds the air that someone blows into it. The details beyond that are protected from disclosure by the manufacture because it is considered “proprietary information”. To ensure the machine is working probably, it fires the infrared into a “reference sample” that is suppose to be maintained at 0.08. If the machine doesn’t read the control as being .08 then an error is given indicating the machine isn’t working probably. What if the controlled mixture and the machine are wrong? No one would ever know that it isn’t working during the test. Curious what the reference sample is? It’s a glass jar containing a mixture of water and vodka which is mixed and maintained by the “Technical Supervisor”. The Good & The Bad The good thing about them is that they can be reliable if the test procedure is followed and the machine is probably maintained. The bad thing about them is that they can be reliable only if the test procedure is followed and the machine is probably maintained. Common Issues: Residual Mouth Alcohol & Observation Period Prior to blowing into the machine the officer is required to observe the driver for 15 minutes prior to blowing into the machine. This is because residual alcohol in the month of the driver will cause a false positive in the machine. Many times, this observation period never happens. The officer’s “observation” consists of them doing something else while they are “around” the driver. Proper Operating Temperature The machine and the rooms ambient temperature must be proper. If not then water vapor and other problems can cause the machine to not function properly. Presence of a Radio Signal The presence of radio signals could have an impact on the machine working probably. Think there might be radio signals at the police department? Exposure to Acetone It has been show that acetone in the body can cause a false reading on a breath test. Acetone can be a byproduct of incompletely digestion in individuals in certain insulin levels. Acetone can also be present due to environmental exposures such as with painters. Improper “Reference Sample” & Machine Maintenance A person called the “Technical Supervisor” is responsible for making sure the machines are working probably. This is usually the same person that owes the machines and leases them to the police. Sound right? This person ensures that the “reference sample” described above is correct. Since no one but the company that makes the machine knows how they work, that is all the technical supervisor really does. What ensures this person checks the machines? Nothing as seen here.
Almost All DWI Follow A Simple Pattern: 1. Stop 2. Field Sobriety Test 3. Arrest 4. Blood/Breath Test Request 5. Blood/Breath Test 1. The Stop Bad Stop = Dismissal The first stop in evaluating a DWI is to determine whether or not you were lawfully stopped or detained by the police. If the stop isn’t legal, then the State can’t present any of the evidence against you. Traffic Violations Most DWIs start when you are stopped by the police for a traffic violation. As careful of a driving as you may be, the police begin stopped people at night for a lot more than just speeding. Many DWI stops start when people are pulled over for “no license plate light”. Do you check your license plate light every time your drive? Suspicion of Driving While Intoxicated Many DWIs start because the police claim to have a “reasonable suspicion” that you were driving while intoxicated. Reasonable suspicion requires more than suspicion or “hunch.” One example is that merely weaving inside your lane is almost always insufficient for the police to stop someone. “Community Caretaking” Sometimes a DWI can start when the police pull over to help someone. This can be to check on someone fixing a flat to checking on someone asleep in their car on the side of the road. The most important thing to review in these types of cases is the State’s ability to prove if you drove the car and if you were intoxicated at the time. If the only evidence they have is that you are present with the car, they cannot prove your drove. They will also have to prove that when you drove you were intoxicated but how can they prove when you drove? These cases can be very difficult for the State to prove. 2. The “Test” A police officer deciding that you are intoxicated is clearly a subjective, personal opinion. They have probably already made up their mind in the first few seconds of talking with you. So now they need to convince the jury, right? In comes the standard field sobriety tests. “Field sobriety tests” sound good but even the phrase is misleading and is designed to give it more credibility than it deserves. Field sobriety tests are not actual “tests” at all in the normal sense of the word. There is no opportunity to prepare for the tests, there is no explanation of expectations and if you pass or fail is left to the opinion of the officer. The Field Sobriety Test Even if you are sober, it may be in your interests to refuse to take a field test BUT refusing to play along is called a “total refusal”. You can read more about “total refusals” below. The standardized field sobriety tests include: The horizontal gaze nystagmus , which involves following an object (usually a pen) with your eyes as the officer moves back and forth in front of you. The officer will be watching for signs of nystagmus. Nystagmus is an involuntary jerking of the eyes that can be caused by a depressant such as alcohol. Unfortunately, there are many other causes of nystagmus but those reasons will be mostly ignored by the police officer. A one-leg stand test , where a driver will be asked to stand in place with both arms remaining at his or her sides, and one foot slightly elevated approximately six inches off the ground. The officer is evaluating your ability to balance.The walk and turn test , in which a driver will walk forward with his or her feet heel to toe. The driver must then turn around and walk back. This test includes a fair amount of specific instructions that will be strictly graded. Reese has probably reviewed thousands of DWI videos and believes he has never seen anyone perform this test perfectly.The State will play the in-car video of this performance for the jury while the police officer explains that it isn’t a pass/fail test but in his opinion, you failed. Doesn’t seem very fair but the good news is that an experienced defense attorney as at your side who gets to conduct a cross examination of the officer. Portable Breath Tests (PBTs) State Troopers tend to be the only police officers that have portable breath tests machines (PBTs). A PBT is a handheld device that when blow into, tests the alcohol concentration in the driver’s breath. While not admissible in court because they do work well, the officer is legally allowed to use it in deciding on whether to make an arrest. Yet another example of the unfair process that must be pointed out to the jury. “Total Refusal” A “total refusal” is the phrase used by the police and prosecutors when a driver decides to not play along. Generally, this has to do with a driver refusing to participate in the field sobriety tests. A “total refusal” will often times get you arrested no matter what. If you do play along, these tests are usually difficult for most people to take, even if they were not drinking. The law provides that the smell of alcohol alone is not enough to arrest someone of DWI. What would happen if, after being stopped by the police, a driver handed over their driver’s license and insurance but refused to do or say anything else? What if the only thing a driver said to the officer was, “I am not going to answer any of your questions until I can speak with an attorney”? In that case, is the smell of alcohol the only proof of the officer has? If so, the law says that isn’t enough but remember that a total refusal will usually get a driver arrested. 3. The Arrest Once the police have come to the opinion that you have lost the normal use of your physical or mental capacity, the driver is arrested. 4. The Additional Test “Request” After an arrest, the police officer will request that a driver take a blood or breath test. Which test to offer is up to the police officer. Most people have heard and believe that you should always refuse. If you refuse, your driver’s license is “automatically” suspended. Reese prefers to say it’s subject* to being suspended. After a refusal, the officer can (and probably will) obtain a search warrant to forcible take a blood sample.
Driving While Intoxicated 101 To prove you guilty of DWI, the State has to prove 4 “Elements”: 1. Operating 2. A Motor Vehicle 3. In A Public Place 4. While Intoxicated Elements? The word “element” is used to separate the different things that have to be proven beyond a reasonable doubt before someone can be found guilty of a crime. Since each element has to be proven beyond a reasonable doubt, if there is doubt as to any of the “elements” then the jury must find the person not guilty. Each of the above elements present unique opportunities for a Defendant to challenge the State’s evidence against them. 1. Operating Most people might think they law is “driving” but its “operating”. There is not a clear definition of what operating is but courts have been willing to see it as more than just driving. A court allowed a jury to find that the defendant was “operating” when the defendant was parked on the side of the road, asleep in driver’s seat, with the engine was running. You must wonder who the defense attorney was that couldn’t convince the jury that wasn’t operating. Choose your attorney wisely. 2. A Motor Vehicle Ever think about what the definition of a “motor vehicle” is? Most people probably haven’t. The Texas Penal Code says, “Motor vehicle” means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks. Normally this is straight forward but sometimes it is not. Is a golf cart a motor vehicle? Could the attorney you hire have an impact on how that question is decided? 3. In a Public Place The law provides that a public place is a place that is accessible to the public. With such a broad description, courts have often disagreed with its meaning. Sometimes they have found parking lots to be a public place and sometimes they don’t. This a good example of the impact of your attorney’s ability to make a strong argument for you can have on the outcome of your case. 4. While Intoxicated Chapter 49 of the Texas Penal Code says that “Intoxicated” means: (A) 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 (B) having an alcohol concentration of 0.08 or more. Subsection (A) could be divided into its own set of “elements.” 1. Loss of the normal use What is considered “normal use” is up to the jury to decide. What isn’t required is that they take you specifically into consideration because they have no idea what your normal use is. 2. of mental OR physical faculties To be found guilty the jury can find a loss to the normal use of either or both for them. The State will use the observations made about you in the offense report and/or the police video and claim that it is an indication of the loss of the normal use of your mental or physical faculties. If you talk slow, the State will probably say it’s because you are intoxicated. If you talk fast, the State will probably argue that it’s because your intoxicated. Your attorney will also have a turn to speak to the jury. 3. because of the instruction of alcohol or drugs. An individual can be charged with intoxication based on alcohol or the introduction of any substance into the body including prescription and over the counter medications. The State may also argue that intoxication is caused by the combination of alcohol and drugs which is referred to as a synergistic effect. Subsection (B) has to do with blood or breath test results. See below for more about these tests. One think to note about the legal standard is that it only applies to alcohol. There is no legal standard to determine whether or not a certain amount of drugs found during a blood test causes intoxication.
Begin at the beginning. Almost every drug arrest starts from one of these three things: 1. “Consensual” Encounter 2. Traffic Stop 3. Search Warrant Consensual Encounters A consensual encounter is what the law calls it when you agree to interact with the police. The police can walk up and start talking to you just as much as anyone else can interrupt your day. When you are leaving a concert or a game, ever have someone in the street try to hand you something? You can interact with them or ignore them. Same with the police. You are completely comfortable ignoring the police, right? I doubt it. If you simply walk away then you risk being arrested, right? Yes. Doesn’t seem very consensual. When do I have to talk to the police? Sadly, there is no easy answer to this question. If you don’t want to interact with the police, ASK IF YOU ARE FREE TO LEAVE. If they say no, then you are being detained. If they say yes, then feel free to walk away. Unless you ask, then its anyone’s guess. A perfect example happened to client of mine. He was walking to down the street to his mother’s house. In the offense report, the police officer simply stated, (the officer) made a consensual contact with (client) . That was it. After further investigation and reviewing the in-car video, it was discovered that the consensual contact occurred when the police pull up beside him and said: Officer: Do you have any tickets out right now? Officer: Got nothing on you or nothing like that? Officer: Sure? Officer: Sure? Officer: You’re not sure? Client: I said no, Sir. Officer: I said, are you sure? Officer: So you’re not sure if you have something or not? Client: I said no, Sir. I told you that. Officer: No, I get that, I’m saying do you have anything illegal on you. Client: I said no, Sir. Officer: And I said are you positive about that. Client: I said no, Sir. Officer: So you don’t know if you have something illegal or not? Officer: You mind if I check? Officer: Come on over here. Would you feel free to ignore the officer or would you feel as though you are being command to walk over to the officer and talk to him? What the law says… Courts say that there is no bright-line rule to determine when an encounter with the police turns from voluntary to involuntary. Instead, courts look at the totality of the circumstances surrounding the interaction to determine whether a reasonable person would have felt free to ignore the police officer’s request or terminate the encounter. Do you find that helpful? Judge’s review the facts in the case based on the time, place and content of the conversation. That means that it is almost impossible to say how a Judge will second guess your decision to agree to talk to the police or ignore them. The Texas Court of Criminal Appeals has said that a police officer’s asking questions and requesting consent to search do not alone render an encounter a detention but that ONLY when an officer conveys a message that compliance is required does a consensual encounter become a detention. Judges have decided differently as to whether or not an officer telling someone to come here is a command or a request. What to remember? If you don’t want to interact with the police, ASK IF YOU ARE FREE TO LEAVE. Detentions and Traffic Stops Most people who are detained by the police are being detained for a traffic violation however the principles apply to anytime the police stop you and you are not free to leave. If you are not free to leave then the law says you are being seized by the police. So the polices actions are evaluated against your protections under the 4th amendment from unreasonable seizures. So what is reasonable and what is unreasonable? The law library is full of courts providing explanations and examples. Courts view being temporarily detained differently then being arrested. For the police to justifying detaining someone, they must have reasonable suspicion based on articulable facts that a crime has occurred or is occurring. Being arrested requires probable cause . So what is reasonable suspicion? Much like the discussion above regarding consensual encounters, there isn’t a real definition of what is reasonable suspicion. Court look at each case and set of facts separately. So we can look to past decisions to help guess at what is and what is not reasonable suspicion. The Good News Reasonable suspicion requires more than suspicion or hunch. It also can’t be solely based on you being nervous or refusal to cooperate with the police. In fact, the Supreme Court has said that most citizens with nothing to hide are understandably nervous when interacting with the police. Other prior court decisions: High Crime Area ≠ Reasonable Suspicion Your location alone is insufficient. Furtive Movement ≠ Reasonable Suspicion Furtive is a fancy term the police love to use. Furtive means attempting to avoid notice or attention. What the police are saying that it looks like you are trying to hide something. Ignoring the Police ≠ Reasonable Suspicion Nothing wrong with refusing to talk to the police. REMEMBER TO ASK IF YOU ARE FREE TO LEAVE. The Bad News Start combing any of the above and it starts getting closer and closer to reasonable suspicion. In fact, reasonable suspicion may exist even where the conduct of the person detained is as consistent with innocent activity as with criminal activity. This means that you don’t have to be doing anything illegal to be detained. You don’t have to actually be speeding to be stopped for speeding if the police can explain that their belief that you were speeding was based on more than suspicion or hunch. Pretext Stops The law does not care as to the real reason a police officer stopped you as long as the police officer has a legal basis for stopping you. That means that profiling is legal as long as the profiling is coupled with reasonable suspicion of criminal activity. Real Life Example of an Illegal Traffic Stop A former client was facing high level felony drug possession charges after drugs where found in his car following a traffic stop. In the offense report the police officer wrote that the car was stopped because “the rear reflectors to be blacked out with an alternate to reduce visibility from factor standard which is a violation of law (defective equipment – blacked out head/tail lights)”. It was true that the car did have tinted tail lights, the car should not have been able to pass the state inspection because of the reduced visibility and that the traffic code says that any violation of state inspection is also a traffic offense. So the officer, DPS and even the District Attorney’s office believed that it was a violation of the law . This all changed and the client’s case was dismissed once Reese proved them wrong. Traffic Stop Gone Bad A perfectly legal traffic stop can easily turn into an illegal detention. Why? Because if the police stop you for speeding, they can’t start investigating you for drug possession without a reason. What the Police Can Do During a Traffic Stop Ask for your Driver’s license. Ask for your proof of financial responsibility. Ask for proof of your vehicle’s registration. Check to see if you have any open warrants for your arrested. Police can ask unrelated questions as long as it doesn’t prolong the stop. Police can detain you as long as it takes to do the above and write you a citation. What the Police CANNOT Do During a Traffic Stop Police cannot detain you any longer than is necessary to accomplish the above without providing additional reasonable suspicion for the prolonged detention. Search Warrants The 4th amendment states that it is The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The two most common mistakes the police make with a search warrant are: Insufficient Investigation Typos Insufficient Investigation The constitution requires that the warrant be based upon probable cause. There is a library full of court decisions on what is and what is not probable cause . Court’s say that “probable cause” for a search warrant exists if, under the totality of the circumstances presented to the magistrate, there is at least a fair probability or substantial chance that contraband or evidence of a crime will be found at the specified location”. The totality of the circumstances just as in the above decisions, are determined on a case by case basis. Typos The constitution requires the warrant particularly describe the place to be searched, and the persons or things to be seized. Many times the search becomes illegal simply because the wrong name or address is written in the warrant. Warrantless Searches The law says that any search of an individual without a warrant is unlawful BUT then the law lists a bunch of exceptions when the police can conduct a warrantless search. When can the police do search without a warrant? Warrantless Search of a Person The police can pat you down for weapons IF they can reasonable suspicion that you may be armed and are presently dangerous. Then while patting you down, if they feel something that based on their training and experience leads them to believe is illegal contraband (drugs), then they can go in into your pockets. The police can also search you after you have been arrested. Note that you can be arrested for anything other than speeding and open container in Texas. So the police can arrest you for a traffic violation for the sole purpose of getting to each you. Warrantless Search of a Car The same requirement for probable cause applies to searching your car as it does your home. HOWEVER, unlike your home, the police do not need a search warrant to search your vehicle. Normally this probable cause is based on the police saying that they saw something illegal in your car. Examples include officers saying that they saw what appeared to be drug related such as wrapping paper or unmarked prescription bottles. Seeing is also smelling. The most common probably cause for searching a car during a traffic stop is the smell of burnt marijuana. If the police say they smell weed, they can now search your car. No probably cause? No problem. The police can’t search your vehicle just because they arrested you in the same way they can search your person. BUT what they can do is a vehicle inventory after they have arrested you during a traffic stop. What is a vehicle inventory and how is it different than a search? Since the police are here to serve and protect, they need to do a vehicle inventory to ensure nothing valuable is stolen from you while they have your vehicle towed. Anything illegal found during the inventory can be used against you. Warrantless Search of a Home A search of your home cannot be done without a warrant so much like the vehicle inventory from above, its important that they police call it something else. Thankfully, courts are very protective of our homes. One of the rare exceptions of going into someone’s home without a warrant is when the police can explain exigent circumstances. Exigent circumstances are when the police can describe a situation when there is no time to get a search warrant. With the advancement of technology such as the ability to fax and email a search warrant to a Judge, these type of situations rarely exist. Now the police tend to be limited to an emergency such as when they believe that life is in danger. Consent The police can always conduct a search when you agree to let them.
The law says that any search of an individual without a warrant is unlawful BUT then the law lists a bunch of exceptions when the police can conduct a warrantless search. When can the police do a search without a warrant? Warrantless Search of a Person The police can pat you down for weapons IF they can reasonable suspicion that you may be armed and are presently dangerous. Then while patting you down, if they feel something that based on their training and experience leads them to believe is illegal contraband (drugs), then they can go in into your pockets. The police can also search you after you have been arrested. Note that you can be arrested for anything other than speeding and open container in Texas. So the police can arrest you for a traffic violation for the sole purpose of getting to each you. Warrantless Search of a Car The same requirement for probable cause applies to searching your car as it does your home. HOWEVER, unlike your home, the police do not need a search warrant to search your vehicle. Normally this probable cause is based on the police saying that they saw something illegal in your car. Examples include officers saying that they saw what appeared to be drug related such as wrapping paper or unmarked prescription bottles. Seeing is also smelling. The most common “probably cause” for searching a car during a traffic stop is the smell of burnt marijuana. If the police say they smell weed, they can now search your car. No probably cause? No problem. The police can’t search your vehicle just because they arrested you in the same way they can search your person. BUT what they can do is a “vehicle inventory” after they have arrested you during a traffic stop. What is a “vehicle inventory” and how is it different than a search? Since the police are here to serve and protect, they need to do a “vehicle inventory” to ensure nothing valuable is stolen from you while they have your vehicle towed. Anything illegal found during the inventory can be used against you. Consent The police can always conduct a search when you agree to let them.
Traffic stop lead to a drug arrest? BAD STOP = DISMISSED If the police found evidence after making an illegal traffic stop, the evidence might not be admissible againt you. Traffic Stops Most people who are “detained” by the police are being detained for a traffic violation however the principles apply to anytime the police stop you and you are not free to leave. If you are not free to leave then the law says you are being “seized” by the police. So the polices actions are evaluated against your protections under the 4th amendment from “unreasonable seizures.” So what is reasonable and what is unreasonable? The law library is full of courts providing explanations and examples. Courts view being “temporarily detained” differently then being arrested. For the police to justifying detaining someone, they must have “reasonable suspicion” based on “articulable facts” that a crime has occurred or is occurring. Being arrested requires “probable cause”. So what is reasonable suspicion? Much like the discussion above regarding consensual encounters, there isn’t a real definition of what is reasonable suspicion. Court look at each case and set of facts separately. So we can look to past decisions to help guess at what is and what is not reasonable suspicion. Reasonable suspicion requires more than suspicion or “hunch.” HOWEVER, reasonable suspicion may exist even where the conduct of the person detained is “as consistent with innocent activity as with criminal activity.” This means that you don’t have to be doing anything illegal to be detained. You don’t have to actually be speeding to be stopped for speeding if the police can explain that their belief that you were speeding was based on more than suspicion or hunch. Real Life Example of an Illegal Traffic Stop A former client was facing high level felony drug possession charges after drugs where found in his car following a traffic stop. In the offense report the police officer wrote that the car was stopped because “the rear reflectors to be blacked out with an alternate to reduce visibility from factor standard which is a violation of law (defective equipment – blacked out head/tail lights)”. It was true that the car did have tinted tail lights, the car should not have been able to pass the state inspection because of the reduced visibility and that the traffic code says that any violation of state inspection is also a traffic offense. So the officer, DPS and even the District Attorney’s office believed that it was a “violation of the law”. This all changed and the client’s case was dismissed once Reese proved them wrong. Traffic Stop Gone Bad A perfectly legal traffic stop can easily turn into an illegal detention. Why? Because if the police stop you for speeding, they can’t start investigating you for drug possession without a reason. What the Police Can Do During a Traffic Stop Ask for your Driver’s license. Ask for your proof of financial responsibility. Ask for proof of your vehicle’s registration. Check to see if you have any open warrants for your arrested. Police can ask unrelated questions as long as it doesn’t prolong the stop. Police can detain you as long as it takes to do the above and write you a citation. What the Police CANNOT Do During a Traffic Stop Police cannot detain you any longer than is necessary to accomplish the above without providing additional reasonable suspicion for the prolonged detention.
Lawful Possession People get arrested for having a substance that was prescribed to them by a doctor. Reese calls this the grandma defense. Its seems as though the police believe you must always keep your medication in a prescription bottle however there is no such requirement. Just like grandma has her Monday through Sunday pill box, you don’t have to carry your prescription around with you. But if you don’t look like grandma, then there is a good chance you are going to get arrested. Substance Not Illegal People get arrested for substances that aren’t even illegal. Yes, Reese once had to prove to a prosecutor that his client did not violate any laws by possessing suboxone. This was after his client had been arrested by the police, went in front of a Judge and had the charges filed by the District Attorney. Also, lab reports come back as negative even when people thought they did have an illegal substance… Violation of Rights Illegal stops, detentions, and searches lead to inadmissible evidence. Evidence Obtained Illegally Similar but not the same as a violation of rights. Texas law provides that any evidence obtained in violation of any law (not just in violation of rights) is not admissible against you. Doesn’t come up often but someone couldn’t break into your home and then later testify against you regarding cocaine they saw on your kitchen table.
The majority of all drug possession charges occur after a traffic stop. What we have learned in our years as prosecutors and defense attorneys is that police officers continue to arrest drivers anytime drugs are found anywhere inside the vehicle. Its simple to the police. If you are driving then this must be your car and it must be your drugs. THAT IS NOT THE LAW. Some examples of when courts found that the State couldn’t prove possession beyond a reasonable doubt. The evidence has been found insufficient to support a finding of knowing possession by a defendant who was the driver when the contraband was found in the following locations: – In the glove compartment [see Presswood v. State, 548 S.W.2d 398, 399-400 (Crim. App. 1977)]. – In an envelope on the dashboard of the car [see Baltazar v. State, 638 S.W.2d 130, 131-132 (Tex. App.-Corpus Christi 1982, no pet.). – In an unzipped gym bag on the passenger seat [see Humason v. State, 728 S.W.2d 363, 366 (Crim. App. 1987)]. – In the ashtray [see Thomas v. State, 762 S.W.2d 721, 723-724 (Tex. App.-Houston [1st Dist.] 1988, no pet.)]. – In the trunk [see Doyle v. State, 779 S.W.2d 492, 496 (Tex. App.-Houston [1st Dist.] 1989, — -); Baty v. State, 734 S.W.2d 62, 63-65 (Tex. App.-Dallas 1987, pet. ref.)]. – Underneath an armrest in the front seat between the driver and the passenger [see Allen v. State, 786 S.W.2d 738, 739-740 (Tex. App.-Fort Worth 1989, pet. granted)-original opinion]. Other examples of factual situations in which the evidence has been found insufficient to support a finding of knowing possession are: – The defendant was a passenger in a car carrying 660 pounds of marihuana, but there was no additional evidence that the defendant knew of its presence [see Reyes v. State, 575 S.W.2d 38, 39-40 (Crim. App. 1979)]. – The defendant entered the vehicle just before the arrest and the contraband was found under some papers near where the defendant was seated [see McBride v. State, 780 S.W.2d 823, 824 (Tex. App.-San Antonio 1989, — -)]. – The defendant was a passenger in the back seat and contraband was found on the dashboard [see Harvey v. State, 487 S.W.2d 75, 77-78 (Crim. App. 1972)].
What does it mean to be “in possession”? Possession = Guilty? No. In order to be found guilty of a drug crime, the State must prove to a Judge or Jury that you knowingly possessed an illegal substance. Knowingly is also defined under the law. “A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.” Possession is simple defined as “actual care, custody, control or management.” Its hard to know exactly what actual care, custody, control or management is. These words are not further defined so its up to the Judge or Jury to decide what that means. However, the courts have given us further guidance as to what is not possession. How do they know that you know? They law states that “mere presence” only is not enough to convict you. The most common example is a drug arrest during a traffic stop. Drugs are found some where and your in the car. If possession is control then generally the police believe that if you are in control of the car then you are in control of everything in it. What about knowingly? Can the State really prove beyond a reasonable doubt that you KNOW about EVERYTHING that is in a car your driving? People come in and out of our cars all the time, who knows what was left underneath your backseat months ago, right? “Affirmative Links” The law says that the State has to “link” you to the illegal substance in order to show that you knew about it. These links were described by Court of Appeals in Houston in a case Reese tried in 2010. The court said, “Texas courts have established several factors that may help to establish a link between the accused and the contraband, including whether (1) the defendant was present when the narcotics were found; (2) the contraband was in plain view; (3) the defendant was in proximity to the narcotics and had access to them; (4) the defendant was under the influence of narcotics when arrested; (5) the defendant possessed other contraband; (6) the defendant made incriminating statements when arrested; (7) the defendant attempted to flee; (8) the defendant made furtive gestures; (9) the odor of the narcotic was present; (10) the defendant owned or had the right to possess the place where the narcotics were found; (11) the narcotics were found in an enclosed place; (12) the amount of narcotics found was significant; (13) the defendant possessed a weapon; and (14) the defendant possessed a large amount of cash.” Bullard v. State, 01-08-00861-CR
Some accidents are not caused by you or the other driver, but by the roadway itself. Dangerous roads and highways can trigger an accident that can cause serious injuries or fatalities to people in multiple vehicles. The attorneys of Daly Law Firm know where to look for evidence of negligence that may have caused an accident that injured you. We represent clients injured due to many different types of dangerous road and highway conditions, including but not limited to: Turns that were designed too tight Inadequate signs or lack of necessary signs Bad pavement, including pot holes Missing, confusing or inadequate pavement markings Inadequate lighting Inadequate drainage Poorly marked construction zones Inadequate, missing or improperly placed roadway hardware, like guard rails or light posts Bad sight lines Defective design Defective construction The I-10 corridor is heavily traveled by 18-wheelers and other vehicles. It seems to be constantly under construction. We represent clients who were injured by dangerous conditions due to the wear and tear on the road, and by negligence related to highway construction and repair. For example, every construction project must have an approved maintenance of traffic (MOT) plan — a plan for how and where to divert traffic during construction. If the plan is inadequate or improperly executed, it can cause accidents. The personal injury lawyers at Daly Law Firm have the experience and awareness of these facets and the role they play in a potential settlement.
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