austindefender

I finally got a case dismissed the other day that involved an unfortunate victim of a Nigerian check scam.

When I initially told the judge what was going on, he said something to the effect of, “People still fall for that?”

I’m sure he was thinking of the “Hi, I’m a rich Nigerian who needs to transfer a billion dollars to your account” version, but the scam artists have gotten a lot more sophisticated since then.

For a full explanation of what they’re doing, click here.

The short version is, they rely on American banking regulations that require banks to “clear,” or make available, funds from deposited checks within a certain number of days.

The scammer sends the victim a (counterfeit) check for something the victim is selling on the internet.  The victim deposits it.  When the check “clears” the victim thinks that means the check is good.  The check, however, is for more than the sales price. You send the difference, along with the item, to the scammer… only to find out, sometimes weeks later, that the check was bogus.

The really sad thing is, sometimes the way you find out is when you get arrested for having passed a counterfiet check.

From last night’s debate…

There was a discussion on a list serve for Austin bar that got me curious about the exact language of the Texas Health and Safety Code, Section 483.041, “Possession of a Dangerous Drug.”

The argument was over whether carrying a prescription drug, without the prescription, (or at least without the original bottle), was a crime under Texas law.

My position is that it’s not, although I know that some prosecutors, and some police officers, don’t agree with me.

Here’s the actual language, from 483.041:

A person commits an offense if the person possesses a dangerous drug unless the person obtains the drug from a pharmacist acting in the manner described by Section 483.042(a)(1)…

483.042(a)(1), meanwhile, requires the pharmacist to dispense drugs only according to a prescription, with “a label attached to the immediate container.”

What’s important to note about 483.042(a)(1) is that it’s a requirement pertaining to how the pharmacist dispenses the medicine to the patient.  Nothing in the language of the statutes says or implies that the patient has to keep the medicine in the original container, or keep the label or the prescription with him.

I was talking to a friend about this statute, when he told me he’s always nervous when he picks up his wife’s medicine at the pharmacy.  I told him it’s better to get arrested, than to tell your sick wife you’re not going to pick up her medicine.

Thinking about it, though, I realized that’s not quite what it says either.  It does not say that it’s illegal to have prescription drugs unless they’re prescribed to you.

It says it’s illegal to have prescription drugs unless you got the drugs from a pharmacist.

What that means is that it’s not my friend who was committing the (theoretical) crime by picking up his wife’s prescription medicine.  It was his wife who committed the crime, by failing to drive to the pharmacy.

So this morning I was driving into work and I caught part of a morning show on KLBJ with “Sergeant Sam” and a couple of other guys, whose names I never remember.  They were talking about a case out of Graham, Texas, in which Crystal Watson and Jack Smith were sentenced to 7 years in prison, after their dogs killed a child.

Sergeant Sam and his call-in guests were unsurprisingly pleased (it is AM talk radio), to see the couple go to prison.  “Everybody knows pit bulls are dangerous,” they said (paraphrasing), “So if your dog kills a person, you deserve to go to prison.”

Given that dogs kill around 15 people a year in the US (depending on the source), and cars kill over 40,000 (41,059 in 2007) I wondered if they’d apply the same logic to drivers, since “everybody knows” cars are dangerous.

The truth is there’s no automatic liability for a dog attack.

Chapter 822.005 of the Texas Health and Safety Code does make it a second degree felony if a dog attack results in death.  But it also requires that the owner acted with criminal negligence, or that the dog that the dog had previously been found to be dangerous by a JP court.  What it comes down to is that you have to know that your dog is dangerous, and then do nothing about it.

Deferred adjudication has got a bad reputation in Texas – perhaps for good reason.  People plea bargain for deferred adjudication because they believe it won’t go on their record.

Unfortunately, nothing could be further from the truth.  The criminal justice system makes a record every time a person gets arrested, and will go making records of everything that happens in each and every case until it is finally disposed of.  This is true regardless of the outcome – whether it’s a conviction, an acquittal, a deferred adjudication, or a dismissal.

What is true about deferred adjudication is that it is not a conviction under Texas law.  When a judge puts a defendant on deferred adjudication he “defers,” or puts off, judgment in the case, “without entering an adjudication of guilt.”  If a probationer completes deferred adjudication successfully, the judge is required to “dismiss the proceedings” and to “discharge him.”  Texas law goes on to say that a dismissal of a deferred adjudication “may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense.”  Texas Code of Criminal Procedure, Chapter 42.12 sec 5

Sounds great, right?  Well, not so much.

Unfortunately, none of that language applies to private employers, or to landlords, or even to the Federal government.  DPS reports deferred adjudications on its state-wide database, which means they often turn up when private companies do background checks as well.  What that all means is that if your employer doesn’t know what “deferred adjudication” means, and you told him you’d never been convicted, he may wind up thinking not only that you’re a criminal, but that you’re a liar, as well.  And trying to explain the legal distinction between deferred adjudication and regular probation isn’t likely to do you any good.

Fortunately, the Texas legislature, in a rare example of compassion and good sense, created a few years ago a way for at least some people to get relief: they can petition the court for an Order of Nondisclosure.

An Order for Nondisclosure isn’t a perfect remedy, but it does go a long way towards accomplishing what deferred adjudication was supposed to do in the first place – to give someone a second chance.

Assault Family Violence is a crime that’s gotten a lot of attention from the media.  And, unfortunately, the law enforcement and legislative response hasn’t always been what it should be.  Often, the incident that sparks an arrest is not what most people would consider  an “assault”, but is an argument that leads to pushing or shoving.  The police, however, are under a mandate to make an arrest, and once they’ve figured out who they think is most responsible (or complaining the least), he (or she) may find himself (or herself) handcuffed in the back of a police car.  The arrest then sets in motion a machine that can be difficult to escape from.

It’s important to minimize the damage an arrest for family violence can cause, but unfortunately, people don’t always realize the consequences of an assault family violence case.

An arrest for family violence can lead to an automatic protective order, which may prohibit you from going back to your home.  The state doesn’t need the permission of a victim to enter a protective order.  The order may be entered at the request of a police officer, a prosecutor, or on a judge’s own motion, without a request from anyone.

A protective order can only be modified or revoked by a judge.  The victim cannot give you permission to be around him, or her, or to go back to your home.

It’s illegal to have a gun, if there’s a protective order against you.  It’s also illegal to have a gun, if you’ve ever been convicted of assault family violence.  This is particularly important if you’re in the armed forces, or are a police officer, or are thinking about a career in the military or law enforcement.

A second family violence case, even for pushing or shoving, is prosecuted as a third degree felony, and can lead to prison time.

A conviction for family violence can have a profound effect on a divorce or child custody case.

You will never be eligible for an order of Non-Disclosure, in the event the court grants a deferred adjudication probation, even if you complete the probation successfully, and the case is ultimately dismissed.

If you’re accused of family violence, whether you’re a man or a woman (and women are increasingly finding themselves in handcuffs, in the back of a police car), it’s imperative you obtain a resolution to the case, whether it’s a reduction, an acquittal, a dismissal, or a deferred prosecution, that will minimize the long-term consequences of the accusation.

It’s a common question, but not one that’s necessarily easy to answer.

The problem is there’s no one central database – no one record where things either go, or don’t go. Instead, there are any number of government agencies that make records relating to criminal cases. They include police departments, county and district clerks, booking facilities, and state and local prosecutors, among others. Some of these agencies release information to the public (county clerks, for example, and county jails), others (police, prosecutors) do not.

In addition to local agencies, some states maintain statewide databases. In Texas, DPS maintains both a public version, and one that’s limited to law enforcement. The difference is the public version includes only cases where there was a conviction, or a deferred adjudication. The law enforcement version includes every arrest, regardless of the disposition. In both cases, the results are only as good as the information forwarded to DPS by local agencies. DPS charges $3 per name, to search its public database.

The FBI also keeps a record, but it is restricted to law enforcement. (And for good reasons – NCIC records are frequently incomplete, and always hard to interpret.) When Hollywood detectives check someone’s record, this is usually the record they’re talking about.

But when people ask, “Will it go on my record?” they’re usually not so much concerned with NCIC, as they are with landlords and employers, who don’t have access to police records anyway.

So when a landlord or an employer does a criminal background check, who are they getting their information from?

They’re getting it from private companies, who collect information from public sources, and then resell the information to anyone who is willing to pay. The cheapest, and best one I know of, is criminalsearches.com. They’re cheapest, because they’re free, and they seem to be reasonably accurate, though not complete (they lack dispositions information.)

Bottom line: if you’re arrested, or have anything to do with the criminal justice system, a record will be created somewhere. That record is not likely to hurt you, though, in terms of jobs and employment, unless it leads to a conviction or a deferred adjudication.

If you really want a clean record, you’ll have to look into getting an expunction, or an order of nondisclosure from a district judge.