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1504 West Ave
Austin, TX 78701

512-917-4378

hris Perri Law is a criminal defense law firm located in Austin, Texas.

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Chris' Blog

The blog of Chris Perri Law, written by Chris Perri and Shannon Perri. Read the latest in exciting cases where justice is served.

Chris Perri Convinces Prosecutor to Dismiss Assault – Family Violence Charge

Chris Perri

A few weeks ago, the Travis County Attorney dismissed an Assault – Family Violence case that had been filed against one of Chris Perri Law’s clients.  The case had been set for jury trial, but Chris convinced the reasonable prosecutor to dismiss the charge. 

The incident began when the client’s girlfriend accused him of cheating, and a struggle ensued over the client’s laptop computer.  The girlfriend’s brother happened to enter the apartment, and the client was soon double-teamed by the angry sibling duo.  Significantly, Chris’ client called 911 as soon as he was able to escape their violent assault, but the girlfriend immediately called 911, too, in order to concoct a story that incriminated the client.  When Chris saw the client in jail, he was banged up with welts on his face and arms, as well as bruises and cuts.  Chris also talked to the girlfriend, who stated that she would say anything to make the client stay in jail because she was angry that he had called the cops on her.

Chris emphasized that the 911 tape showed that his client had called the police first because he was in fear for his life.  Chris Perri Law also learned that the girlfriend returned to my client’s apartment months later and threatened to lie in court if my client did not reconcile with her.  This incident was documented in a separate police report, and Chris Perri Law requested that exculpatory evidence pursuant to the prosecutor’s obligations under Brady v. Maryland.  Most importantly, Chris Perri Law set the case for a jury trial to show that he and his client were ready to fight the case in court, if necessary.  The reasonable prosecutor then did the right thing by dismissing the case.

 

Chris Perri Argues to the 5th Circuit why Colton Pitonyak Deserves a New Trial

Chris Perri

Last Tuesday, August 27th 2013, Chris Perri argued to a three-judge panel of the 5th U.S. Circuit Court of Appeals on why his client Colton Pitonyak deserves a new trial. This notorious case has received expansive media attention, and for good reason.

For the past four years, Chris Perri fought for the case to be reexamined due to an alleged Brady violation. For further background on the case, please view one of our older, informative blog posts here.

Intrigue and mystery have laced this case from the inception. Many have speculated who actually murdered and mutilated Jennifer Cave’s body. Though Colton Pitonyak was convicted of her murder, evidence withheld by the prosecution team points to Laura Hall as the actual killer.

Capturing the attention of the 5th Circuit, Chris stated that while in the Travis County Jail, Laura Hall confessed to two other inmates that she committed the murder. These inmates then told a counselor, who recorded the information in Hall’s electronic jail file. Chris argued that had this information been made available to the defense, Pitonyak’s trial strategy would have been entirely different and most likely led to a not guilty verdict.

The learned judges grilled Chris about whether any prior Supreme Court case had established a duty on the part of a mental-health counselor to disclose such exculpatory evidence to the prosecution team (and, thus, ultimately the defense attorneys).  While conceding that there was no such case, Chris persuasively argued that based on the Supreme Court’s Kyles v. Whitley case, the actual prosecutors had a duty to search Hall’s jail file due to the reasonable foreseeability of exculpatory evidence within that file.  After all, the prosecutors knew that Hall was talking to other inmates, including a cell mate who ended up being the prosecution’s star witness at Hall’s trial on Tampering with Evidence.  By turning a blind eye to the contents of Hall’s jail file, the prosecutors committed a Brady violation. 

Furthermore, even if the prosecutors had been blocked from accessing medical information within Hall’s jail file, they had a duty to obtain a court order or subpoena because the right to a fair trial trumps medical privacy laws. The State’s attorney countered that a subpoena for this information had been quashed, but Chris pointed out that this argument was disingenuous because it was Pitonyak who filed the subpoena while investigating the Brady claim in 2009.  The State, with the prosecutors’ blessing, actually quashed the subpoena in order to hinder Pitonyak’s ability to develop the claim.

The 5th Circuit should issue a ruling in the next month or two, though they have no official deadline.

See below to read a few noteworthy news articles and videos with Chris Perri featured:

Articles: 

Austin Chronicle article

Statesman article

The Daily Texan article

Videos: 

KXAN video 

My Fox Austin video

Keye TV video (1)

Keye TV video (2) 



 

 

 

 

 

 

Chris Perri Defends The Travis County Personal Bond System

Chris Perri

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Investigative reporter Tony Plohetski has recently put the Travis County personal bond system under harsh spotlight with claims that the system is too lenient and endangering Austin’s community. Plohetski’s articles have resulted in an uproar from criminal defense attorneys who believe that Plohetski is not seeing the full picture and misrepresenting the Travis County system.

To fully understand the debate, allow me to provide some basic background information on bonds. Firstly, when individuals are arrested and put in jail, a bond amount is set for their release. If these individuals don’t adhere to the agreements of the bond or fail to show up for their court dates, then the courts will sue them for the full bond amount as well as put them back in jail, taking away bond privileges. Rarely do people get second chances at bond.

There are two major types of bonds: personal and cash. Personal bonds mean that once arrested, you can be released for no cost but a hefty promise.  Of course, you would still have a bond amount set. Let’s say the bond is set at $20,000. You can get out for no cost while your court case is proceeding, but if you fail to show up to court or adhere to the agreed upon conditions, than you will be responsible for paying $20,000.

Cash bonds differ in that you have to actually put up the full bond amount with the understanding that you will get it back as long as you stick to the rules, etc. You can either do this with your own cash, or hire a bondsman who will put the money up but charge you a nonrefundable 10-20% fee (also known as a “surety bond”).  This fee only benefits bondsmen and in no way goes back to the court system. It means that the arrested individuals already have to pay big bucks when they haven’t yet been proven guilty. Remember, we are supposed to live in a country built on the decree: innocent until proven guilty.

The Travis County bond system is known for granting more personal bonds than any other county in Texas. Reporter Plohetski believes that this endangers Austin by allowing more defendants to be out of jail, thus making them more likely to commit crimes or fail to make court appearances. Plohetski feels our current system is too lenient, and he advocates for more involvement by the District Attorney’s office in the personal bond decision process. He feels that individuals either need to wait it out in jail or cough up cash for a surety bond.

However, Chris Perri disagrees, along with most other fellow criminal defense attorneys (click here for opinion of attorney Bradley Hargis), and feels that the Travis County bond system is one of the most progressive programs in the state. Chris believes that when counties fail to offer personal bonds, they create a class system divide. Those who cannot afford to hire bondsmen have to wait in jail, despite not yet being proven guilty. Many individuals spend months in jail. It creates an incentive structure for those stuck in jail to plea out their case just to get out of jail, leading to potentially unjust legal outcomes.

It also hurts both the criminal defense attorneys as well as the county. If defendants are forced to spend their financial resources on bondsmen, then they are less likely to be able to afford a criminal defense attorney and more likely to apply for a county-funded court-appointed lawyer. Also, keeping people behind bars costs tax dollars.

Many criminal defense attorneys are concerned about Plohetski’s misleading claims. In response to the article, judges have made it more difficult for defendants to obtain personal bonds.  And in response to Plohetski calling for more District Attorney involvement, the DA is trying to become more involved. Yet, this is redundant in that the county already pays for a program called Pretrial Services, which assesses whether a personal bond should be granted by investigating an individual’s criminal history and ties to the community, as well as the safety of any victims if the defendant is released.  DA involvement would merely duplicate Pretrial Services’ role, leading to a slower, less efficient process.

Further, Plohetski claims that it is inappropriate for defense attorneys to talk to judges ex parte (without the opposing side present). Chris Perri disagrees, and states that in Travis County, prosecutors talk to judges without the defense attorney present in order to raise bond amounts or add burdensome conditions (such as an electronic monitor).   Also, every judge requires extensive information on each case and reviews the recommendations of Pretrial Services. However, judges can overrule Pretrial Services' recommendations if they see fit.

Chris also says, in his experience, the type of bond doesn't matter as to whether or not a defendant will show up for court. It is uncommon for people to commit crimes while on bond, as people understand the severity of the ramifications. Yet, there will always be people who don’t adhere to the rules, regardless of their type of bond.

The progressive Travis County bond system isn’t broken—it just needs to be better understood.

Do you really have the right to remain silent?

Chris Perri

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In the wake of the recent Supreme Court ruling in Salinas vs. Texas, Chris Perri Law fears that the high court has whittled away the right to remain silent.

In Salinas, the Court ruled that the prosecution can use your pre-arrest silence against you at trial, thus watering down the essence of the Fifth Amendment’s protections against self-incrimination. In Salinas’ case, prior to being arrested, he voluntarily provided the police with information regarding a murder. However, when authorities asked if Salinas’ gun would match the murder weapon, Salinas refused to answer, under the assumption that he was exercising his Fifth Amendment right not to incriminate himself. However, at his trial, the prosecution used his choice to remain silent as damning evidence of his guilt.

The Supreme Court reviewed this ruling, and although it was a close call, the Court ruled that the conviction should be upheld, stating that if individuals want to invoke the Fifth Amendment’s protection, they “must claim it”.  Although the Fifth Amendment clearly states that no one can be forced to be a witness against him or herself in a criminal matter, the Court’s ruling means that the prosecution is free to use the defendant’s pre-arrest silence as evidence of guilt.

Chris Perri Law fears that in light of the Supreme Court’s recent ruling, the Fifth Amendment’s protection against self-incrimination has been vastly diluted.  Basically, to claim the rights of this fundamental law, individuals must explicitly inform the authorities that they are invoking their Fifth Amendment right to silence upon being questioned by law enforcement. Chris Perri worries that this requirement especially hurts less educated individuals, who may not be aware of this new ruling. “It creates a further class divide in our system,” Chris Perri says.

In order to maintain your Fifth Amendment right against self-incrimination, Chris Perri Law advises you to explicitly state that you’re invoking your Fifth Amendment right when the situation calls for it.  Otherwise, your silence could come back to bite you.

Chris Perri Law convinces State of Texas to dismiss case against man facing felony drug charge

Chris Perri

Chris Perri Law proves to be successful in the face of injustice yet again. Police searched Chris’ client’s home in North Texas and arrested the client for a state-jail -felony amount of marijuana (between four ounces and five pounds). The client faced up to two years in prison as well as the stigma of a felony conviction.  Within six weeks of hiring Chris Perri Law, Chris was able to convince the prosecutor to dismiss the entire case. The client will now be able to get the arrest expunged from his record next year.

Utilizing his exceptional skill in navigating case law, Chris pointed out to the prosecutor that the information the police used to obtain the search warrant was gathered illegally. Thieves burglarized the client’s home and stole the client’s marijuana. The police caught the burglars and asked them how they acquired so much marijuana. The burglars then became informants and pointed the finger on Chris’ client, a victim of burglary.

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However, case law states that information obtained through illegal activity cannot be used to obtain a warrant. Just like police must gather information through legal channels, so must anyone else if it will be upheld in court.

As a public citizen, I feel thankful that the courts dismissed the case because it shows our system values justice and sets a standard that illegally gathering information to hurt someone else is unacceptable.  It is shocking to think that without the help of Chris Perri Law, this man who was involved in no violent activity or crime of moral turpitude, could have been a convicted felon, never allowed to vote again.

Lowering the Legal Alcohol Limit for Drivers Would Backfire

Chris Perri

Recently, The National Transportation Safety Board released an official recommendation for all states to lower the legal alcohol driving limit to a .05 blood alcohol concentration (BAC). Currently, the blood alcohol legal level is .08. See the chart below to see how these limits actually translate to individuals’ alcohol consumption.

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At Chris Perri Law, we believe that lowering the legal limit would be a mistake and lead to injustice. “I think it dilutes the standard for intoxication,” Chris Perri says. “There is about a .02 margin of error on these breath tests. People that aren’t drunk and even had only one beer could register over the legal limit.” According to Chris, this would cause even more people to refuse to cooperate with police officers, as it puts those who have just had one drink at risk of severe legal consequences. In fact, Chris believes that raising the legal limit would actually lead to safer roads, as then the crime would be more stigmatized by our community. At present, Chris feels it is too easy for anyone to get a DWI, and if the limit was lower, it would seen as even less of a big deal to have been convicted of a DWI. To Chris, it is just not okay for someone who registered at a .08 BAC to be facing the same charge as some registered at, say, a .14.  Currently those arrested with a very high BAC actually benefit from the fact that they are lumped together with those just barely over the limit—the community sees all these crimes as one.

Another concern is that the police are under pressure to arrest anyone who has possibly had one drink for their own liability reasons. If they let someone go and that person has an accident, the city could be sued. However, this leads to innocent, law-abiding citizens spending nights in jail, carrying criminal records, and causing additional tax money to be spent on the criminal justice system. Further, if the BAC limit was say, .12, then when someone is arrested at this BAC, there would be no question that the person was drunk and needs a steep punishment. Currently, having a DWI is not a major stigma because the population understands that even those who aren’t drunk can end up with an arrest.

The National Transportation Safety Board states that more than 100 countries around the world have adopted a .05 BAC legal limit, and that this had led to fewer alcohol-related accidents. However, what is unfair about this comparison is that in these other countries, readily-accessible alternative transportation options exist. Chris Perri believes that in cities in like San Francisco, Chicago, and New York City there is absolutely no reason to ever drive after drinking alcohol. Yet, in Austin, we lack a viable public transportation system. A much better way to spend our tax dollars would be on developing better transportation options – not prosecuting individuals with a .05 BAC.

A forgotten element in this debate is how lowering the legal BAC would adversely affect the indigent population. Those with a lower socio-economic status are less likely to have funds for a taxi service. Also, if arrested this population often does not have ability to pay for a private attorney, so they must rely on a court-appointed attorney, which can be a bit of a crapshoot. Let’s not forget, court-appointed services are also paid with our taxes. Furthermore, giving more people criminal records, especially those already facing hardship, does not help anyone, but instead harms our entire community. Having a criminal record makes getting a job harder and also increases one’s likelihood of repeating the crime, as one’s sense of identity begins to shift due to the community’s label of that person as a “criminal.”

At Chris Perri Law, we believe strongly in finding ways to reduce accidents related to drunk-driving. However, Chris feels that by making a DWI more stigmatized and also offering improved public transportation options are much better ways to focus our efforts than punishing those for driving after just one drink.

We’d love to hear what you think, too. Let us know in the comment section.

Chris Perri fights to expand expunction rights

Chris Perri

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request

Expunction rights have been a hotly debated area in the legal community for quite some time. The State Legislature amended the expunction statute in 2011, and there has been no case law yet to help decipher its full interpretation since. However, Chris Perri, widely known as an expunction expert, has filed an appellate brief with the Third Court of Appeals (in DPS vs GBE) to advocate for his client and clarify once and for all the interpretation of current expunction law.

First, let’s back up and explain what expunctions are and why they are so significant to clients as well as our society. Expunctions are the formal process of literally erasing all criminal records arising out of a particular arrest. One of the fundamental tenets of our law is that everyone is deemed innocent until proven guilty. Thus, just because someone is arrested of a crime does not necessarily mean they will be found guilty. Let’s say someone is arrested but their case ends up getting dismissed; without a formal expunction, the arrest will stay on their record, following the client for the rest of his or her life. Employers, schools, licensing boards, etc. will still see the arrest and will most likely approach the individual as if they are guilty of that crime. That’s why expunctions exist, and it’s so vital to get one if your case outcome allows it. (Many attorneys, such as Chris Perri strive to obtain expungible dispositions for their clients, which mean that their clients would have the ability to obtain an expunction at a later date.) Essentially, expunction rights make it so that individuals don’t get judged by their arrest, but by their case’s outcome, as it should be. It’s about protecting our basic rights – innocent until proven guilty.

However, expunction law can get murky, as with the issues arising in the case Chris is handling on appeal. Chris’ case involves a common issue that arises over and over; thus attorneys throughout the state are watching closely to see what the Third Court of Appeals holds.

In Chris’ case, his client was arrested for a DWI, and it was his first time in the criminal justice system. His client’s primary goal was to obtain a legal outcome that would allow him not to have the words ‘DWI’ on his permanent record. Because the state’s case against him was relatively weak, they were open to a compromise. In the client’s case, he didn’t want to pursue the risk of trial, and was willing to plead guilty to a lesser charge – “reckless driving” – and take time already served in jail as his sentence.  Another common outcome in Travis County is for defendants to accept deferred adjudication on a reduced charge of “obstruction of a highway,” whereby the defendant agrees to extensive probation terms, such as drug and alcohol education and community service. This a common outcome for first-time DWI offenders, especially when the state feels they may not be able to win a guilty verdict at trial, yet aren’t comfortable dismissing the case altogether.  

What Chris is arguing is that since his client did not plead guilty to a DWI, the client should be able to expunge the DWI arrest, since having an arrest on one’s record virtually implies guilt and will force the client to battle the stigma of this crime for the rest of his life, even if there was not enough evidence for him to be convicted. Yet, the state is arguing against Chris that the arrest itself wasn’t necessarily a “wrongful arrest”, so it should stay on his record, defeating the purpose of the compromise for the lesser sentence.  Chris won this issue at the trial court level, where the judge remarked that DPS’ interpretation of the statute could “chill” plea bargaining across the state, as criminal defendants charged with DWI might not be willing to enter into a plea deal if they cannot later expunge the dismissed DWI charge. Since approximately 95% of all criminal cases result in a plea-bargain deal, chilling such plea bargaining would potentially clog up an already crowded system and lengthen the process further.

If the Third Court of Appeals sides with the State, there will be a massive shift in how attorneys advise clients to proceed. It will mostly likely generate an incentive not to plea bargain, but for all clients to go to trial on their case, as often the incentive to plead to a reduced charge is to maintain as best a criminal record as possible. If clients know they will still have the arrest for the original, higher charge on their record, more people may find it worth it to take the risk of trial.  

The Third Court of Appeals’ findings on Chris’ appeal will have a dramatic effect on how criminal law is practiced by many criminal defense attorneys. Most likely, the Court will issue an opinion in the next six to eight months. Stay tuned to our blog for any updates on expunction rights.

Chris Perri convinces Appeal Courts to consider New Trial for Pitonyak

Chris Perri

The News of the 5th Circuit Court of Appeals’ Grant of Certificate of Appealability

About a week ago, I heard an exuberant scream coming from our home office late in the evening. As the wife of a passionate, half-Italian criminal defense attorney, I’ve heard this sound before. However, when I entered the room to inquire further, I quickly surmised from his face that the news he received was far greater and more meaningful than I first assumed.

The 5th Circuit Court of Appeals had granted Colton Pitonyak and his attorneys the opportunity to appeal the issue of a Brady Violation. Chris read to me the words from the Court that stated “the impact of the Brady Violation is perplexing and the claim deserves further review.”

After years of Chris working vigorously to get the Courts to recognize the need to explore the details of the Pitonyak case further, I knew how much this meant to him. To Chris, his legal assignments are not just a way to pay the bills, but a way to be a part of how we as humans decide to navigate the muddy trenches between right and wrong. And when Chris smells the possibility of infringement on freedom and justice, especially when it leads to someone spending a 55-year prison sentence behind bars for murder, potentially wrongfully so, like with Colton Pitonyak, he will not stop fighting for what he believes in.

What Does This Mean?

Brady Violation

After getting past the emotional impact this had for Chris and Joe Turner, the other attorney involved in the Pitonyak writ, I wanted to further understand what the 5th Circuit Court of Appeals’ grant really means. As a social worker by training, I take a lot of interest in the human stories told throughout the criminal justice system, as this system is partly a reflection of our society’s values.

I learned that firstly, one must understand that a Brady Violation occurs when the prosecution’s failure to disclose evidence to the defense deprives the defendant of a fair trial.

Overturn of Prior Federal Denial

I also learned that prior to applying for the right to be heard at the 5th Circuit Federal level, Chris first had to exhaust all claims at the state court level. The state courts denied Chris’ request and stated that “the admission [of Hall’s 2005 confession] would have no reasonable impact on the trial”. Chris then filed his writ in the federal district court, but they denied him as well. That didn’t stop Chris from persevering forward to the 5th Circuit Federal level, where Chris argued that the “federal court was woefully misguided” about the law. The federal district court had denied Pitonyak the right to appeal the case to the 5th Circuit, so Chris first had to get the 5th Circuit’s permission to hear the appeal. After hearing Chris’ motion, the 5th Circuit agreed that reasonable jurists could debate whether Pitonyak had demonstrated a Brady violation, which means that Chris overturned the federal court’s initial denial of his right to appeal the case.

Possibility of New Trial

What this all comes down to is that Chris’ request convinced judges at the 5th Circuit Court level to allow Chris to argue on Pitonyak’s behalf for a new trial that would include the previously withheld evidence of Laura Hall’s confession. The Evidence Withheld from Pitonyak Background Mystery and sensation surround this case, which has amounted to several TV documentaries and national interviews trying to tease apart an understanding of what really happened.

What we do know for sure is that in August of 2005, Jennifer Cave was found shot to death and chopped up into pieces, and left in the bathroom and in trash bags of Pitonyak’s apartment. After the incident, Pitonyak and Laura Hall fled to Mexico, where they were arrested by Los Federales and returned to U.S. Custody.

Although Pitonyak received a conviction for murder and Hall received only a ten year sentence and conviction for tampering with evidence and hindering apprehension, there has always been a major question of who really murdered Jennifer Cave. Pitonyak reports that on this night he was under the influence of xanax and alcohol to such an extent that he formed no memory of what happened. In Texas, voluntary intoxication is not a defense to a crime, but it can leave a lot unknown. The prosecution struggled to come up with a motive for why Pitonyak would want Cave dead, but what is known is that Pitonyak had a romantic relationship with both Cave and Hall.

The New Evidence In 2009, when Joe and Chris began working on Pitonyak’s appeal, they came across a record from Hall’s jail stay that indicated two other inmates informed a counselor that Hall was “acting crazy” and had confessed to killing Cave. Since then, these two women have provided sworn statements that this was in fact true. Others have come forward as well to say that Hall confessed to being the killer.

What Chris and Joe are trying to argue is that if this information had not been withheld from the defense team, then it could have been used at trial, giving the jury a lot more to chew on when deciding Pitonyak’s innocence or guilt.

Why This Matters

Whenever I hear this story, my heart goes out to the deceased victim and her family. I cannot imagine what this process has been like for the victim’s family, and how for them more than anyone, getting to the bottom of this matters most for closure and their grief process. The fact that Jennifer Cave died so gruesomely and prematurely will never be okay.

This also has an impact on all of us. We live in a country that says we each have the right to a fair trial and to be seen as innocent until proven guilty, beyond a reasonable doubt. If evidence this substantial was withheld from the criminal defense team, then there is an issue of personal liberty at hand. Pitonyak was not allowed the fair fight we have all been guaranteed.

Hearing this story and this new evidence doesn’t answer all the questions for me about the truth of Jennifer Cave’s devastating death. It doesn’t mean Pitonyak is innocent. Yet, it does mean we should all want to know more and take a closer look. Not just to find the truth in this case, but also to uphold the highest standard of fairness in our criminal justice system.

My hope, and I believe the goal of the system, is that if both sides – prosecution and defense – fight fairly but zealously, then the truth will ultimately be unveiled. That didn’t happen in this case, so we are left in the dark about why a young man is serving a 55-year sentence for a crime we can’t honestly say he committed.

I’m thankful that there are attorneys like Chris and Joe Turner willing to turn over every stone to make sure their clients’ rights are protected and the prosecution is held accountable. In the end, we all want justice to be served, but not at the price of the truth.

What’s Next

Chris and Joe have now been given permission to file a comprehensive brief to be turned in next month. If the 5th Circuit finds that the Brady evidence undermines confidence in the jury’s verdict, then a new trial in Austin will be ordered for Pitonyak.

New Statute May Expand Expunction Rights

Chris Perri

On Tuesday, I gave a presentation to the Austin Criminal Defense Lawyer's Association on expunction law. One of my appeals has been used as authority for denying expunctions to defendants in the multiple-offense context, and I showed my fellow defense lawyers why this case shouldn't be used in this way. I also spoke about the new expunction statute, which adopts a charge-based approach to expunctions. I've been advocating for this charge-based approach for several years, and it's nice to see the Legislature listen. The expunction statute is very complex, but a simple example can show readers what I'm talking about. Take a defendant charged with a DWI. It's considered a great outcome to have the DWI dismissed in exchange for a client taking deferred adjudication on a reduced charge of Obstruction of a Highway. (Note: a deferred adjudication involves a term of probation ordered by the court). For many years, defense attorneys expunged the DWI arrest from such a client's record. However, some prosecutors and judges have interpreted the appellate case I worked on (Travis County District Attorney v. M.M.) as holding that the DWI was not eligible for expunction if the client took probation on a different charge arising out of the same arrest.

The argument between defense lawyers and prosecutors hinges on the interpretation of the term "arrest" in the expunction statute. Does arrest mean the charge that the defendant seeks to expunge (the charge-based approach), or does it mean all charges arising from a single arrest incident (the arrest-based approach)? I've advocated for the charge-based approach whereby courts view each charge as a separate arrest and determine the expungibility of that individual charge without reference to other charges arising from the arrest incident. The most recent Legislature made amendments that clarified its adoption of the charge-based approach. That means that clients can expunge their DWI arrests from their records even if they took a conviction or deferred adjudication on a reduced charge.

My talk on Tuesday provided other defense attorneys with litigation tools to help expunge their clients' arrests in situations where multiple charges arise out of a single arrest incident. I've attached my PowerPoint Expunction Law in the Wake of MM, in case anyone's interested in taking a look.

Due to the complexity of the expunction statute, it's important to hire an experienced, knowledgeable attorney when you're seeking to expunge your records. I'll make sure that you're expunging every possible charge, and I'll fight for your rights if we encounter any opposition from the prosecution.

Not Guilty in Austin Municipal Court!

Chris Perri

“Not guilty.” Those are the two sweetest words that a criminal defense attorney can ever hear. Today, the jury returned this coveted verdict in a speeding trial at the Austin Municipal Court. Sure, it was just a speeding ticket. But for my client, who holds a commercial driver’s license (CDL), it was a very important case. Most people can easily get their tickets dismissed by taking a defensive driving course. However, under the law, anyone holding a CDL does not have this option. Instead, they must either fight the ticket or take a conviction. One of the most common misperceptions is that simply driving over the speed limit is against the law. In actuality, the law states that “an operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing.” See Tex. Trans. Code §545.351. I discussed this law with the jury panel during the voir dire process, and they were very surprised that there’s more to speeding than simply driving above the speed limit. As I pointed out to them, discovering the actual wording of the speeding law is analogous to finding out that there’s no such thing as Santa Claus.

There’s one wrinkle here: when the State proves that a vehicle was travelling over the speed limit, that’s “prima facie” evidence that the driver’s speed was not reasonable and prudent. I explained to the jury that this only means that if the State proves the speed was over the limit and I present no further evidence regarding the reasonableness of the speed, then I lose. But once I bring forth any evidence that the driver’s speed was reasonable, the State has the burden of proving the speed was unreasonable. Plus, this burden is a heavy one: “beyond a reasonable doubt.”

At the trial, we presented evidence that on the morning of the alleged speeding incident, my client was stuck behind a boat trailer on Highway 183. The boat was being hauled by an undersized pickup truck, and my client testified that he felt that the trailer was creating a hazard on the road. A car in front of my client passed the trailer, and my client followed suit. In order to do so, he had to increase his speed to about 78 mph on a highway that had a speed limit of 65 mph. Other vehicles behind my client also passed the trailer. I successfully argued to the jury that it could consider the other drivers’ behavior as evidence of the reasonableness of my client’s decision.

The State attempted to counter our evidence through the testimony of the police officer, who stated that my client was speeding before and after he encountered this boat trailer. The officer further testified that there was a curve on the road that made it unsafe to travel above 65 mph. The jury was unconvinced. After all, this was a dry day, and my client was a “professional driver.” He testified that he made a “judgment call,” and who was the jury to disagree with his professional judgment?

After about 20 minutes of deliberating, the jury returned its two-word verdict. My client exited the court triumphantly with his clean driving record intact.

No jail time, no convictions in marijuana transportation case

Chris Perri

Despite being caught transporting approximately 35 pounds of marijuana across the country, my clients won’t have to spend any time in prison after I worked out an excellent plea deal with the reasonable district attorney in Carson County, Texas. My clients were pulled over along I-40 in the Texas Panhandle, and we were prepared to contest the legitimacy of the stop unless we achieved a reasonable plea bargain. The driver was adamant that his passenger's case be dismissed due to the passenger’s lack of knowledge of the illegal contents of the trunk. Eventually, the prosecutor agreed, so the passenger’s case was dismissed, and he’ll be eligible to expunge all records of the arrest in about 2.5 years. Meanwhile, the driver won’t even have a felony conviction on his record because I worked out a deferred adjudication, meaning that as long as the defendant abides by the terms of his probation, a conviction won’t be entered in the case. The catch was that he had to pay over $6500 in various fines and court costs. Still, that’s a lot better than facing the penalty range of a third-degree felony (2-10 years in the state prison, which isn’t fun for first-timers).

Also, the outcome represents an implicit understanding that marijuana isn’t a terrible drug like methamphetamine, cocaine, or heroin. In fact, most of the people who were supposed to receive my clients’ marijuana were cancer patients who use it as medicine to help cope with the side effects of chemotherapy. Even though the expensive fines may seem quite harsh, that money will go to good use in the Texas Panhandle, as it can be used towards public goods, such as education and environmental initiatives. In the end, that’s a true win-win!

Marijuana charge dismissed

Chris Perri

The progressive Travis County Attorney’s Office dismissed my client’s possession of marijuana (POM) charge today in exchange for him pleading guilty to a lesser charge of possession of drug paraphernalia, which is a class C misdemeanor (same category as traffic offenses). All my client had to do was pay $172 in fines and court costs. In POM cases like this one, which was a class B misdemeanor because it involved less than two ounces of marijuana, the Travis County Attorney usually gives first-time offenders a break. The prosecutors recognize that a POM conviction results in the burdensome automatic suspension of an offender’s driver’s license for six months, which can often lead to someone becoming a repeat offender if they drive with the suspended license. Our prosecutors want to put these defendants in the best possible position to overcome their criminal charge, so they’ll usually dismiss the charge in exchange for the defendant completing a 15-hour drug education class and community service.

Now that police officers are permitted to issue “sign and release” citations whereby POM defendants aren’t booked into jail when they possess less than two ounces, marijuana possession could almost be said to be “decriminalized” for first-time offenders in Travis County, as they’re likely to have the charge reduced to the same grade as a traffic offense, which carries no possibility of jail time.

On the other hand, if you go up the road to Williamson County, the situation is much different. Even if you get caught with just a joint, you’re likely to be sentenced to 18 months probation, and if you violate any conditions of that probation, it’s not uncommon for one of the no-nonsense judges to slap you with a 90-day jail sentence.

Court says driving near Sixth Street at night is suspicious

Chris Perri

As most people probably know, if you’re driving home from the Sixth Street area late at night, you’re under suspicion from Austin’s DWI task force, which camps out at the heavily trafficked roads that lead away from the bar district. And now, based on a recent Court of Criminal Appeals ruling in Foster v. State, you can get pulled over even if you haven’t committed a traffic offense.

As a criminal defense attorney, one of my first questions of a client charged with DWI is: “Why did the cop pull you over?” Until recently, the answer almost always involved some type traffic offense, such as speeding, running a red light, expired inspection or registration, taillight out, etc. However, check out the facts of Foster:

A police officer was stopped at a red light in the right lane of West Sixth Street. Foster’s truck drove up very close to the back of the officer’s vehicle, and then the truck made a “revving” sound. The officer also described the truck as lurching forward, possibly to try to turn into the lane to the left of the officer. The officer then initiated a traffic stop of Foster’s truck despite the fact that Foster hadn’t violated any traffic laws. Foster then failed sobriety tests and was arrested for DWI.

The Court of Criminal Appeals found that the stop was validly supported by reasonable suspicion, which is the constitutional standard for such investigatory detentions. (Note: police officers need “probable cause” to arrest a person, but only “reasonable suspicion” to temporarily detain someone in order to investigate criminal activity). According to the court, the officer validly took into account the time of day and location in determining whether there was reasonable suspicion to detain Foster.

Here, the officer testified that based on his training and experience, people leaving the Sixth Street bar district late at night are likely to be intoxicated. When this circumstance is combined with Foster’s “erratic driving,” the Court found that was enough to pull him over. On the other hand, if Foster’s driving behavior had occurred on a residential street during the light of day, an officer would probably not have been able to validly pull him over because such driving behavior, in isolation, doesn’t amount to reasonable suspicion of a crime.

Of course, Foster’s an idiot for driving so aggressively in an area known to be patrolled by cops late at night. But until now, most attorneys would’ve agreed that he couldn’t be pulled over unless he committed a traffic offense. Now, that’s changed. And if you drive near Sixth Street at night, you’re already under suspicion; if you do anything that’s conceivably “erratic,” you’ll likely be the subject of a DWI investigation.

The best advice is to take a taxi or designate a sober driver in order to avoid an accident or police contact.

Appeals court upholds suppression of evidence

Chris Perri

Last year, I successfully moved for the trial court to suppress the State's expert testimony regarding my client's blood-alcohol concentration (BAC) at the time of an alleged incident of Boating While Intoxicated. I wrote about this in my blog at the time. The State was unhappy with the judge's ruling, so it appealed. Today, a three-judge panel of the Third Court of Appeals upheld the trial court's ruling that the State could not introduce expert testimony on my client's BAC. The opinion can be read here. This is a great victory for my client, and I anticipate that the State will dismiss the pending charges due to the fact that it would not be allowed to present evidence of my client's alleged intoxication if the case proceeded to trial.

Advice: Exercise your rights when you're pulled over

Chris Perri

As a criminal defense attorney, the most common question that people ask me is: “What do I do when a cop pulls me over for a DWI?” My first response: “Hopefully, you haven’t been drinking.”

But the reality is that drinking alcohol and driving a vehicle is not illegal under the laws of Texas. Instead, it’s illegal to drive while intoxicated, which means having lost the normal use of your physical or mental faculties, or having a blood-alcohol concentration (BAC) of .08 or more.

There’s not a single right answer to the question of how you can “get off” of a DWI. However, how you conduct yourself during a police officer’s investigation will greatly influence the ultimate outcome of your case.

There are three general categories of people who are investigated for DWI: (1) the totally sober, (2) the people who have had a couple of beers (or about a drink per hour) during their night out, and (3) the people who are definitely intoxicated.

Let’s consider each case.

The Sober Driver

If you haven’t had a drop of alcohol all night, you should cooperate fully with the police officer who stops you. Be honest when the officer asks you questions. If the officer asks you to step out of the car and begins to instruct you to perform sobriety tests, go ahead. At the end of this examination, the officer will give you the opportunity to take a breath or blood test. Go ahead and take the breath test. It should be .000 if you haven’t been drinking. If, for some reason, the breathalyzer shows the presence of alcohol, ask for a blood test, as they’re more accurate.

But in my experience, officers know when someone’s completely sober, so a DWI investigation likely won’t even begin in this situation. Instead, you’ll probably be cited for whatever traffic violation led to you being pulled over, and then you’ll be on your way.

The Driver Under the Influence

Unless you’re under 21 years old, it’s not illegal to drive while under the influence of alcohol, as long as your BAC hasn’t gotten up to .08. But if you’ve had a few drinks, it’s very hard to know whether you’ve reached that point. The following chart can be a useful guide:

However, in my experience, clients have difficulty determining their exact BAC, as it's hard to keep an accurate count of the number of drinks consumed and total time spent drinking. For this reason, it’s very important that you refuse to take a breath or blood test. If either of these tests shows that your BAC is at .08 or higher, the likelihood of the prosecutors dismissing your DWI charge becomes almost zero. Instead, if you want to fight the case, you’re going to have to go to a jury trial, where a jury will hear scientific evidence about the validity of the machine that recorded your BAC level. While I’m confident that I can cast doubt on a test that’s between .08 and .10, it’s a difficult hill to climb; plus, you’ll end up spending a lot of time and money that you might have saved if you had just refused to blow.

Regarding field sobriety tests, most people don’t realize that these are entirely optional. A police officer cannot force you to do these tests. Of course, the officer will say that you gave your consent to do the tests when you signed up for your driver’s license, but that doesn’t really mean anything.

I suggest that you refuse the field sobriety test if you have any doubt about your sobriety. There are three commonly used tests, all of which are recorded on videotape: (1) the horizontal gaze nystagmus, (2) the walk-and-turn, and (3) the one-leg stand.

The first test is highly subjective, as it’s the one where an officer asks you to follow a stimulus (a penlight or finger), and the officer records whether your eye makes an involuntary jerking called a “nystagmus.” Everyone has a nystagmus, but a drunk person apparently has a more distinctive nystagmus than a sober person. Almost every officer will record that you exhibited a distinct nystagmus, which indicates intoxication. Since the video camera doesn’t zoom in on your eyes, there’s no way to contest whether you really exhibited this distinct nystagmus.

The second test is the walk and turn, which is really a divided attention test. The officer gives you a confusing series of tasks to perform, and it’s very easy to exhibit “clues” of intoxication. For example, you may feel like you’re ready to perform the test, but if you start before the officer tells you to begin, then that’s a “clue.”

The final test asks you to stand on one leg, with your hands at your side, for 30 seconds while counting aloud. It’s difficult for many sober people to do this without wobbling around before they regain their balance. If you raise your arms for balance, that’s another “clue” of intoxication.

The problem with refusing these tests is that you’ll be arrested for DWI, as officers don’t like it when people don’t cooperate with them. The videotape of the field sobriety tests is usually the only evidence of a defendant’s intoxication, so the officers try to make it as difficult as possible to refuse. They’ll even tell you that you have a chance to go home instead of jail if you just cooperate. That’s a lie. Once an officer asks you to perform field sobriety tests, s/he’s already determined that you’re getting arrested for DWI. You’re better off cutting your losses and spending a night in jail without giving the prosecution further evidence.

Of course, you’ll be asked why you’re refusing the tests. DO NOT say: “Because I’m drunk.” Really, that’s happened before, and the prosecutor will take the case to a jury to get a conviction, pointing to this statement as evidence of your guilt. Instead, say: “On the advice of my attorney, I’m refusing all tests.” If the officer continues to inquire, give the officer your attorney’s business card, and say that the officer can call the lawyer if the officer wants to find out the reason you’re refusing. (The back of my business card explains that I've advised my client to refuse tests, so if you have one of these, there's even less of a need to justify your decision to the officer).

It’s true – my advice is to exercise your constitutional right to decline to provide evidence that could be used in a prosecution against you.

The Drunk Driver

If you’ve had more than a beer per hour during your drinking span, you’re intoxicated. That means you’re probably slurring your words when you talk, and you smell like alcohol. In this case, you want to minimize any evidence that the investigating officer can acquire. When you’re asked questions, respond with a simple “yes” or “no.” If the questions require more of a response, limit your answers as much as possible. The conversation is being audiorecorded, and you want to minimize evidence of your slurred speech.

Of course, you’ll be asked why you’re refusing all tests. Just say: “My attorney said so.” Give the officer my card, and shut up.

Also, remember that you’re being recorded while you’re on the way to jail. Find a spot on the floorboard and stare at it. Don’t fall asleep. Try not to vomit. Don’t talk to the arresting officer anymore. You might think you sound smart when you’re drunk, but believe me, you’ll regret what you say when you look back at the video.

What about my license?

Once you’re arrested for a DWI, the Department of Public Safety (DPS) will suspend your license. If you failed a breath or blood test, then the suspension is for 90 days. If you refused the test, your suspension is 180 days. However, in Travis County it’s easy to get an occupational driver’s license, which allows you to continue driving to work or school (as well as other essential functions). This suspension is completely separate from your criminal case. In my opinion, saving 90 days of a suspension by consenting to the breath/blood test is a bad idea because failing one of these test makes a criminal conviction much more likely. Remember, a criminal conviction for DWI results in having to pay $1,000 per year for three years just to keep your driver’s license, so you want to do whatever is necessary to avoid this result.

Expunging your DWI arrest just became easier

Chris Perri

Just because your criminal charge has been dismissed doesn’t mean that your arrest record goes away. If you don’t obtain a valid order of expunction, government records and online databases will continue to reflect your arrest...

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Another theft charge dismissed

Chris Perri

Today, the prosecutors dismissed my client’s pending charge of class B misdemeanor theft (the value of the stolen goods was between $50 and $500).  To obtain this dismissal, I worked out a deal where my client entered into a deferred disposition agreement on a class C misdemeanor theft charge (the value of stolen goods were less than $50).  If my client completes 20 hours of community service and stays out of trouble, that charge will be dismissed in six months.  She would then be eligible to expunge all records of her theft arrest two years from the date of the offense.  After expunction, she will be able to deny that any theft arrest ever occurred.

City of Austin vs. Chris Perri

Chris Perri

A few weeks ago, I drove to Town Lake for one of my longer runs.  Despite being around 11 am on a weekday, all of the parking spaces were full.  I saw that some cars had driven onto a dirt area to park their cars, and I followed suit.  After returning from my run, I found a $50 parking ticket on my windshield for parking in a “Tow Away Zone,” despite there being no sign that indicated it was such a zone.  Needless to say, I was upset. Because I’d parked in this area on previous occasions, along with seeing other people regularly park there, I decided to contest the ticket.  According to the City of Austin procedure, violators are entitled to a hearing if they come to the Municipal Court within 30 days of receiving a ticket.  Also, being a criminal defense attorney, I figured it was my duty to fight the seemingly unfair ticket, rather than just pay it off.  At the very least, I could receive valuable information on whether I had illegally parked at Town Lake.

Today, I prepared my evidence and got in line.  After about a 15 minute wait, a “hearing officer” was ready to judge my case.  The hearing is very informal, as it takes place in a small office with an audio recorder.  After being sworn in, the officer asked me a few basic questions about the circumstances of me receiving the ticket.  Then, she allowed me to present my side of the story.  Using my three photographs as exhibits, I presented my case.

The first picture shows that there is a “No Parking” sign, but the arrows point to the left and right.  To a reasonable person, this sign indicates that there is to be no parking in the roadway.  To demonstrate that there was a roadway (and that I was not on this roadway), I showed this picture:

Finally, I pointed out that cars often park in this dirt area, as demonstrated by the minivan, along with the tire marks in the following photograph:

The hearing officer informed me that I was incorrect.  She pointed out that there was a curb that I had to drive over in order to park in the dirt.  I responded that it was a very low curb and functioned similar to a ramp, but she asked me whether it was indeed a curb.  On this point, I agreed.  She also questioned me whether there were any signs that indicated this was a legal parking area.  I answered that there were none.  Plus, the hearing officer pointed out that there are “2-hour parking” signs next to the legal spots.  For these reasons, I was parking in an illegal area.  She then proceeded to educate me regarding why the area consisted entirely of dirt: people like me park there, ruining the lush grass that had formerly been enjoyed by Austinites!

At this point, I was ready to leave, tail between my legs.  This criminal defense attorney had been whipped, and I knew it.  But, she stated that she was dismissing my ticket because I was correct when I initially pointed out that I was not in a “Tow Away Zone.”  Instead, the ticket-writer should have indicated that I had parked in a “Right of Way” area.   Due to the fact that my ticket had been improperly marked, I was relieved of any obligation to pay.  Ah, a technicality – a defense attorney’s best friend.

That’s right, City of Austin, don’t mess with the baddest lawyer in town!

Theft charge dismissed

Chris Perri

One of my young clients was caught stealing from a local department store.  Despite the evidence against her, she was approved for a pretrial diversion program, and the charges were dismissed today.  As long as she succeeds in performing the conditions of the program (community service and avoiding further trouble with the law), she will be able to expunge the arrest two years from the date of the offense. For young clients, expunctions are extremely important, as they allow clients to deny that their arrest occurred when prospective employers or educational institutions question them about their criminal histories.

An expunction victory

Chris Perri

After two years of considering the case, the Third Court of Appeals in Austin decided in my client’s favor on an important expunction issue.  Prosecutors had been trying to prevent defendants from expunging their DWI arrests when they took probation on lesser charges (Reckless Driving or Obstruction of a Highway).  This was due to a strained reading of the expunction statute that I discuss more thoroughly in my blog.  The Third Court of Appeals accepted my argument that an expunction analysis should proceed by looking at each charge in isolation; as a result, a dismissed DWI is eligible for expunction regardless of what happens on another charge that stems from the same arrest.  This is a great victory for any defendant who uses plea bargaining to get rid of an unfair DWI charge. Remember, if you don’t get your charge expunged, potential employers can still see the arrest!