Posted on December 12,2021 in Uncategorized

A recent media report out of El Paso (TX) indicates that Mexican drug cartels are spiking meth, heroin, and even marijuana with the opioid fentanyl to more quickly addict users to a dangerous high and subject an unsuspecting user to serious health risks or death. The story highlights how synthetic fentanyl is easy to produce in large quantities and highly addictive, even if also very dangerous. National Center for Health Statistics data shows that about three-quarters of the over 93,000 U.S. drug overdose deaths in 2020 involved opioids like fentanyl.

The Drug Can Make the Difference

Of course, meth, heroin, and fentanyl are all illegal drugs under federal and Texas law, even if all forms of marijuana's active ingredient THC are not. So, what's really the difference? The possibility of ingesting a different illegal drug than the one that the defendant intended to use can lead to more serious charges. Federal and Texas drug laws list drugs on different schedules and penalty groups. Possessing or distributing one drug instead of or in addition to another can increase the drug-crime charge and its potential minimum and maximum penalties. And the difference can be especially large when the spiked drug that the user purportedly didn't intend to ingest is fentanyl. While federal law only makes fentanyl a Schedule II drug, not a top Schedule I drug, Texas Health & Safety Code §481.102 places fentanyl in its top Penalty Group 1.

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 Posted on December 12,2021 in Uncategorized

Here's one to watch out for. A recent Courthouse News Service story details a frightening incident in which opioid-tainted advocacy flyers placed on squad cars outside an East Houston sheriff's location hospitalized an officer who touched them. Trace amounts of deadly opioids like fentanyl can enter the bloodstream not just by eating, smoking, or vaping but also by simple touch. That's why Harris County Sheriff's officers carry gloves, respiratory protection, and the fast-acting naloxone anti-opioid agent. But you don't always know where you're going to find the trace opioid. Harris County Sheriff's officers are investigating the opioid-laced flyers promoting the message of an obscure non-profit advocacy organization.

Federal and Texas Drug Schedules

Texas drug laws heavily regulate opioids like the deadly fentanyl, and for a good reason. National Center for Health Statistics data attributes to opioids about three-quarters of last year's 93,000 U.S. drug-overdose deaths. A declassified Drug Enforcement Administration intelligence report attributes to China and Mexico the bulk of unlawfully imported synthetic opioids that flood U.S. illegal-drug markets. Federal and state legislatures recognize the enormous harm opioid abuse wrecks on U.S. families, communities, and the economy. Both federal Controlled Substances Act drug schedules and Texas drug penalty groups include opioids as controlled substances, meaning illegal drugs. Those schedules and penalty groups classify drugs depending on their addictive nature, their danger to users, and their benefit as medicine. Based on those factors, federal law only makes fentanyl a Schedule II drug, but Texas Health & Safety Code §481.102 puts fentanyl right at the top in Penalty Group 1. Fentanyl is certainly an extraordinarily dangerous drug, even if it and other opioids have medicinal uses as prescription painkillers.

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 Posted on December 12,2021 in Uncategorized

A recent report highlights the due perils of selling drugs to minors. The report recounts the nineteen-year prison sentence the court imposed on the twenty-four-year-old defendant for selling cocaine, meth, LSD, and other drugs to North Texas teens. Area high schools complained that the defendant and his accomplices used Instagram, other social media, and a ring of underage distributors to commit their serious Texas drug crimes.

Texas Law on Selling Drugs to Minors

Texas law certainly condemns unlawful drug sales to minors. Juveniles can commit drug crimes, for instance, by selling drugs to one another. But youths are also common targets of drug rings. And Texas law uses drug crime enhancements to punish those offenders more severely than offenders who sell to adults. Health & Safety Code §148.122 is the Texas statute enhancing to a second-degree felony the crime of delivering drugs to minors. The adult defendant must deliver the drugs to a person under age eighteen or enrolled in a public or private elementary or secondary school. The drug must also be in one of Texas's Penalty Groups 1, 1-A, 1-B, 2, or 3, not Penalty Group 4 composed of the least dangerous and addictive illegal drugs. The Texas statute recognizes the strong policy against corrupting youth and that drug abuse is one of those nefarious corruptions.

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 Posted on December 12,2021 in Uncategorized

A recent media report of a Porter, TX DWI arrest provides an extreme example of a case involving the use of a portable breath test device at the scene of the DWI arrest. The point here is to consider the reliability of portable breath test devices. Two circumstances, though, make that question of reliability or unreliability even more important for the defendant driver in this particular case. The media report indicates that the driver nearly struck the officer's squad car as the officer monitored traffic near the arrest scene before swerving into oncoming traffic. The media report further indicates that this incident was the defendant's eighth DWI arrest. The Conroe woman faces a charge of DWI third or more, which is a third-degree felony bringing a sentence of two-to-ten years and a fine up to $10,000.

Portable Breath Test Devices

An eighth DWI is much more likely to bring a maximum rather than a minimum penalty. That likelihood of a much stiffer sentence makes the above defendant's aggressive DWI defense all the more critical. An aggressive DWI defense often entails challenging the reliability of the blood or breath test. Portable breath test devices are in use among Texas police forces and the forces in other states. Indeed, anyone can buy a portable breath test device for as little as $26.99 on Amazon. So-called professional-grade devices cost about $100 more than that. Many Texas police departments use an Intoxilyzer 9000 model that costs far more, thousands of dollars.

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 Posted on December 12,2021 in Uncategorized

A recent media report brings to light the horribly unfortunate circumstance of a man dying after becoming unresponsive in the booking process at the Harris County Sheriff's downtown processing center after the man's DWI arrest. Nothing currently indicates any police wrongdoing. The report indicates that the Sheriff Office's Homicide and Internal Affairs Divisions will conduct a review of all evidence relating to the incident. According to the media report, that evidence includes that officers tasered the combative man after his north Houston-area vehicle crash. Emergency medical personnel then checked and cleared the man for transport downtown for booking. But booking on a DWI is not supposed to involve a risk of death.

The DWI Booking Process

Booking on a DWI or other crime is supposed to be a routine administrative part of criminal procedures. Arresting officers transport the DWI defendant to the station or jail for booking. Once at the station or jail, officers confirm the defendant's identifying information, take fingerprints, and take a mugshot, returning the defendant to the holding cell while they complete the booking process. Officers also open the DWI case file to enter witness statements, incident reports, and any physical or documentary evidence. They also work with prosecutors to prepare the DWI charges and perform the background checks to confirm that the defendant is safe to release on the magistrate's bail determination. Booking can take a while. The defendant faces the stress of the DWI arrest and lodging in the holding cell. But otherwise, the defendant generally faces no special stress, especially if the defendant wisely refuses any interrogation in favor of relying on Miranda rights.

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 Posted on December 12,2021 in Uncategorized

A recent wrong-way interstate chase starting in Houston and ending about forty miles north in Conroe shows the great hazards of attempting to evade police in the course of a DWI stop and arrest. It doesn't pay to drink and drive. It really doesn't pay to drink, drive, and try to evade arrest.

The Wrong-Way Interstate Incident

The police chase began when the defendant left a restaurant after 2 a.m., ending up heading northbound on southbound Interstate 45. Cars, trucks, and 18-wheelers swerved to avoid the defendant's onrushing, wrong-way vehicle as the defendant continued to motor determinedly toward distant Conroe. The media report indicates that the defendant driver was so confused that he claims not to have realized that police were chasing, trying to stop him as his vehicle hurtled the wrong way for forty miles northward on the southbound interstate. Fortunately, police soon managed to close the southbound interstate to avoid the northbound defendant driver causing a head-on, high-speed collision. Police only managed to stop the defendant's vehicle using spike strips. When stopped, the driver reportedly thought he was on another road in another city a long way away.

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 Posted on December 12,2021 in Uncategorized

A recent report indicates that the Austin Police Department is just beginning a new year-long no refusal program to increase DWI crime enforcement. The program aims to turn back the sharp increase in DWI crimes and accidents spurred by the pandemic's isolation. The program may be effective in reducing drunk driving in and around Austin. The question remains, though, whether Austin police and the local court, jail, and crime labs can manage the extra work the enforcement initiative will very likely entail. Stay tuned to Austin for the results of this latest DWI trend. In the meantime, consider what a no refusal program really is.

The Probable Cause Requirement

To understand what a no refusal program is, one must first know the role that the Constitution and its probable cause requirement play in DWI enforcement. Texas's Transportation Code once considered a driver's license to be the driver's implied consent to a blood test when stopped on suspicion of a DWI. Under that statute, police would simply stop drivers suspected of a DWI and obtain a blood test. But following the Supreme Court's decision in Missouri v McNeely, Texas courts have held Texas's implied consent law to be unconstitutional. To require a blood test, police must show probable cause that the driver has committed a DWI. And if the driver refuses, the police must go get a magistrate's warrant, issued only on that showing of probable cause. Police can still get the blood test. It just takes a lot more work obtaining the warrant.

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 Posted on December 12,2021 in Uncategorized

A recent media report disclosed that Austin police are beginning a new year-long no refusal program to increase DWI crime enforcement. Another media report quoted the widow of a man who died in a drunk-driving crash, with the widow lauding Austin's new year-round no refusal program. Like the officials who pursued, approved, and funded Austin's program, the widow hopes that the program will prevent more deaths like the one of her husband. It may well do so, but it's also likely to produce an onslaught of new DWI arrests and charges.

A Vastly Expanded No Refusal Program

It's helpful to know that refusal programs aren't new and aren't restricted to Austin. No refusal programs still permit the driver arrested for a DWI to refuse a blood test. But the no refusal program means that the officer is going to go get a blood-draw warrant for every driver's refusal. Austin and other Texas locales have long-held no refusal DWI enforcement initiatives on a few significant holiday weekends each year. Those programs are nothing new. What's new is that Austin has announced its program for every Thursday, Friday, Saturday, and Sunday year-round into September 2022. That's a lot more no refusal days than a few big holidays each year. Indeed, for the year that Austin police plan the program, they'll have more no refusal days than not.

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 Posted on December 12,2021 in Uncategorized

More of us are on the road during the holidays, off to see family and friends. Unfortunately, having more people on the roads means more accidents. More than 40,000 people across the U.S. die in traffic accidents each year, with many of those happening over holidays. And according to a new report from trip Advisor, Texas had more holiday traffic fatalities than any other state from 2015 to 2019. While Texas had the highest number of holiday traffic fatalities, it was fifth on the list of states with the highest number of accidents per capita.

Cracking Down on Texas Highways

When Texas crash and fatality statistics go up, it's a good reminder to all of us to be careful on the roads. But these statistics will also increase law enforcement presence on our highways and interstates and lead to more drunk traps and no refusal weekends. While some increased enforcement may make us safer on the roads, it can also lead to innocent people facing arrest.

No Refusal Weekends

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 Posted on November 11,2021 in Uncategorized

A recent Dallas News media report highlights the current state of new Delta 8 THC products. Delta 8 is a less potent and still legal cannabis product that can produce some of the effects of illegal Delta-9 marijuana products. Delta 8 has so far largely managed to skirt drug laws, thereby flooding the legal THC gummies, oil, and vaping markets. That's one point of the Dallas News story: Delta 8 sales are so hot that new Delta 8 stores and products are swamping Texas. The recent 2018 Farm Bill legalized the new Delta 8 THC at the federal level as a hemp product, meaning not much time has passed since Delta 8 started flooding the market. Regulation of Delta 8 at the state level may yet occur. This story is not over.

Delta 8 Regulation

Indeed, the media report suggests that Delta 8 regulation in Texas may soon be coming. State lawmakers introduced a bill to ban Delta-8 products across Texas. The FDA has not approved Delta 8 as safe. The cannabis-advocate organization NORML maintains that unregulated Delta 8 products may contain such dangerous synthetic substances and byproducts that the government should ban the products. But reports indicate that Texas lawmakers struck the Delta-8 ban from the bill. Delta 8 is still legal in Texas and at the federal level, even though fifteen other states have restricted Delta-8 sales or use. The more cannabis-friendly states like Colorado, New York, and Washington are among the ones restricting Delta 8, which says something about the competitive nature of the cannabis-product markets and the political influence of cannabis producers. Regulation isn't solely about safety. It's also sometimes about profit.

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