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Blog Posts in August, 2011

  • Administrative Suspensions are regulated by Chapter 524 of the Texas Transportation Code. If a person fails to request a hearing or fails to appear to a hearing withou just cause, then the DPS's ruling or determination is final. A very important reason why a person should request a hearing is that the request for a hearing will stay the suspension of the license until the date of the final ...
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  • Can I Go To Trial While I Am Handcuffed?

    || 31-Aug-2011

    Simply because someone is in jail awaiting his or her trial does not mean that they waive some fundamental rights to a fair trial. Yesterday, we addressed the issue of whether a defendant can be tried in jail clothing and discovered that to do so would violate a person's right to a fair trial. The same principle is true for a defendant being placed in handcuffs during trial As a general rule, ...
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  • Yesterday, we began addressing the step 5 of the sequential evaluation process. It is important to note that the burden in on the claimant through steps 1 through steps 4. At step 5, however, the burden shifts to the Social Security Administration to prove that the that there are jobs that exist in significant numbers in the national economy. The SSA must demonstrate or meet its burden by ...
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  • Pre-trial Media Coverage, Continued

    || 29-Aug-2011

    What is the process that occurs if a defendant raises serious doubts about whether he or she can receive an impartial jury because of inflammatory news coverage? Generally, the proper remedy is to change the venue to assure the accused a fair trial. An impartial jury has been defined by Texas courts of appeals as a jury which does not favor a party or an individual because of the emotions of the ...
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  • Most claims for Social Security Disability Benefits are resolved at step five of the sequential evaluation process. Again, disability, according to the Social Security Administration, is defined as the the inabllity to engage in any substantial gainful activity by reason of any medically determinable physical or mental impariemnt which can be expected to result in death or which has lasted or can ...
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  • Yesterday, we addressed the issue of the affirmative links and the court of appeal's use of them when reviewing a conviction. As we noted, the State must prove possession by the actual care, custody, and control over the drugs that they are charged with possessing. Generally, if the State only proves that the defendant was present in "the vicinity" of illegal drugs is not enough to ...
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  • In cases such as OJ Simpson or Casey Anthony, there has been substantial media coverage of these "cases of the century." In all of these "cases of the century" there was a lot of media coverage that, for better or worse, begins to form opinions in potential jurors. As experience shows, these opinions are not favorable to the suspect's perceived innocence or guilt. If there ...
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  • As we have previously stated, the law implies a consent to the taking of a breath or blood test if you have been arrested for driving while intoxicated or boating while intoxicated. However, a person does have a right to refuse to consent to giving a breath or blood test. The law prevents police from using any physical or psychological pressure to obtain a blood or breath specimen. The consent to ...
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  • Can The Media Attend My Trial?

    || 23-Aug-2011

    The Texas Code of Criminal Procedure specifically states that "[i]t is the duty of the trial court, the attorney representing the accused, the attorney representing the state and all peace officers to so conduct themselves as to insure a fair trial for both the state and the defendant, not impair the presumption of innocence, and at the same time afford the public the benefits of a free ...
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  • In order for a police officer to take a specimen, the Texas Transportation Code regulates the manner in which the police act. First, the officer must specify the specimen to be taken--either a breath specimen or blood specimen. Also, the police officer must inform the suspect verbally and in writing of certain information. First, the information must include that the refusal to submit to the ...
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  • Yesterday, we reviewed one of the elements of a the offense of a possession of a controlled substance. That element is possession, and this is one of the most litigated areas of drug possession law. In order to find someone guilty of the offense of possession of marijuana, the State must prove that the defendant exercised care, custody, or control over the marijuana. However, the court of appeals ...
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  • Unfortunately, yes. Everyone has the right to refuse to provide a breath or blood test when requested to do so by the police. However, in every state in America, there is an implied consent law. In addition, courts have uniformly upheld the constitutional validity of the implied consent law. What is the implied consent law? In Texas, according to the Texas Transportation Code, the implied consent ...
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  • The right to a fair trial is one of the most important requirements that must be upheld for a criminal defendant. This right goes hand-in-hand with the presumption of innocence. The presumption of innocence means that the State has to prove beyond a reasonable doubt that the person committed the offense for which he or she is charged. The reason for this is that, in reality, the presumption of ...
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  • At Step Four of the Five Step Sequential Evaluation Process requires the claimant to establish that he or she has a medically determinable physical or mental impairment of such severity that he or she is not able to do his or her previous work. There are two burdens: The burden on the claimant to produce evidence of the claimant's RFC; and The burden to produce evidence establishing that, ...
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  • As we noted yesterday, the Penal Code and Texas Health and Safety Code divide controlled substances into several different categories. It also divides the offenses into the drug offenses into whether a person possesses the drug or delivers the drug. In Texas, possession is defined as actual care, custody, control, or management of the drug. In order for a person to be found guilty of possession of ...
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  • As we detailed yesterday, all different drugs are separated into different groups called Schedules. The Schedules are broken down into I-V, with Schedule I being considered the most dangerous of the drugs and Schedule V is the least dangerous. The Texas Penal Code and the Texas Health and Safety Code uses this classification of five different Schedules to place the drugs into Penalty Groups. The ...
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  • As enumerated in the Sixth Amendment, a defendant has a right to a speedy and public trial. The Due Process Clause of the Fourteenth Amendment requires that certain processes are "due" to the defendant. The Supreme Court of Texas in Massey v. Texas, held that the "requirement of the Fourteenth Amendment is for a fair trial." This does not mean, however, that a defendant has a ...
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  • How Is Alcohol Distributed Throughout My Body?

    || 18-Aug-2011

    As we have noted, there are myriad of things that can affect alcohol absorption rate in a person's body. We can spend weeks detailing what can and cannot affect absorption rate. However, absorption rate is not the final product--rather, in order to affect driving, the alcohol must be distributed throughout the body (including the brain). Once alcohol is absorbed, the liver begins to metabolize ...
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  • After the Dictionary of Occupational Titles (DOT) provides the user a global statement of a particular job (as we described yesterday). The DOT continues with two statements: (1) specific tasks that the claimant will perform to accomplish the overall job description that we described yesterday; and (2) generally will contain several statements that begin with the word "May." In our ...
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  • There are some key, basic concepts relating the rate of blood alcohol concentration. Common sense mandates this principle: if a person consumes alcohol in a greater amount than what the liver can process, the a person's blood alcohol concentration will rise. The converse is true: if a person consumes less alcohol than the liver can process, then a person's BAC level will decrease. In DWI ...
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  • Yesterday, we were using the occupation of truck driver to illustrate how the Dictionary of Occupational Titles defines an occupation. There are a lot of important components to the definition. First, all jobs are codified under a certain numerical code. The next component is the essence of the next few blogs. The first component is called a "lead statement" that will summarize the ...
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  • In Apprendi v. New Jersey, the Supreme Court of the United States held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In Apprendi, the Supreme Court considered whether a New Jersey hate crimes statute was constitutional. The essence of the New Jersey statute allowed a jury to convict a ...
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  • Continuing our analysis of the Texas Controlled Substances Act, we will explore some of the administrative agencies that are charged with implementing this act. The Act, which is codified in Chapter 481 of the Texas Controlled Substances Act, charges the commissioner to establish and modify Schedule I, Schedule II, Schedule III, Schedule IV, and Schedule V. Texas Health and Safety Code section ...
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  • What Does It Mean To Have A Jury Trial?

    || 16-Aug-2011

    Inherent in our analysis of the right to a speedy trial, is the prinicple that a defendant has a constitutional right to to be heard, in other words, have a right to have a fair trial. The phrase fair trial means a defendant has a right to a jury trial. The right to a trial, rather a jury trial, means that a criminal defendant is entitled to a jury determination that he or she is guilty of EVERY ...
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  • How Does A Person's Blood Alcohol Concentration Increase Or Decrease?

    || 15-Aug-2011

    Over the next several blog entries, we will discuss how alcohol affects driving, how alcohol is distrubuted throughout a person's body, and how law enforcement analyzes a person's blood alcohol concentration. As we all know, alcohol is a depressant. Alcohol, once consumed, it is absorbed into the body and will be circulated to different organs through the blood stream. Alcohol is ...
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