What is a Lesser Included Offense, and Why is it Important?

Lesser included offense laws can play a significant role for the defense in a Texas criminal case. However, they can also be used by the prosecuting attorney to secure an advantage at trial. If you’ve been charged with a crime, the key to success with lesser included offenses is proper strategy, which requires an in-depth, meticulous understanding of how the law works. An experienced Collin County lawyer can tell you more about the application of these laws to your unique situation, but it’s helpful to review the basics and recognize the potential advantages.Lesser Included Offense Under Texas LawAccording to the Texas Code of Criminal Procedure, a lesser included offense is one that:Can be proved by the same facts, or less than all of the same facts, that would prove the crime actually charged by the prosecution;Is only different from the crime charged, in that it involves a less serious injury or risk of injury to the person, property, or public interest;Is different from the crime charged, in that it involves a less blameworthy mental state of mind; OR,Bears the characteristics of an attempt to commit the crime charged or an otherwise included crime.EXAMPLEA common scenario used to describe the concept of lesser included offenses is the crime of strangulation, which falls under Assaultive Offenses in the Texas Penal Code. Assault is knowingly causing or threatening to cause bodily injury to another person, and it’s a Class A Misdemeanor.Choking someone is a type of assault; however, there’s the added element that it involves stopping the airflow of another person. The assault crime of strangulation is elevated to a Third-Degree Felony.Based upon this example, assault would be a lesser included offense to strangulation. It can be proved by less than all of the same facts because, for assault, it’s not necessary to establish that the defendant stopped the airflow of another person.Implications of a Lesser Included Offense at TrialThe Texas statute on lesser included offenses can be part of an effective strategy in defending your rights in a criminal case. Ultimately, your goal is to get the option of a lesser included offense before the jury when they go to deliberate.Not a Separate Charge: When a lesser included offense is an option in your case, it will not come as a separate charge. Only a judge can order the jury to consider whether to convict you for a crime that’s not part of the official charges against you, and he or she would do so through jury instructions.How Jury Instructions Work in Texas: When the prosecutor has presented the evidence against you and you have presented all facts and arguments for your defense, the jury will deliberate about the case. However, they receive instructions from the judge before heading off to discuss your guilt or innocence, such as the essential elements of the crime.Prosecuting and defense attorneys submit their requests for jury instructions; if they’re approved by the judge, the jury is required to adhere to them when making a decision.Getting the Lesser Included Offense Before the Jury: A specific instruction on a lesser included offense is necessary to ensure the jury considers this as an option; otherwise, the jury will only consider the crime that’s described in the official charges.In general, a defendant has the right to a jury instruction on lesser included offenses if the evidence would allow the jury to reasonably find him or her guilty of the lesser offense – but NOT guilty of the greater offense.Texas courts have held that anything more than a “scintilla” of evidence may be sufficient to include a jury instruction on lesser included offenses. There may be grounds for appeal if a judge declines to include the instruction, because the refusal to allow the jury to consider a lesser offense harms the defendant’s case.

Source: What is a Lesser Included Offense, and Why is it Important? | Rosenthal & Wadas

Walks Into a Bar… Monkey Eats Everything

A guy walks into a bar with his pet monkey. He orders a drink, and while he’s drinking, the monkey jumps all over the place, eating everything behind the bar. Then the monkey jumps on to the pool table and swallows a billiard ball.The bartender screams at the guy, “Your monkey just ate the cue ball off my pool table — whole!””Sorry,” replied the guy. “He eats everything in sight, the little bastard. I’ll pay for everything.”The man finishes his drink, pays and leaves.Two weeks later, he’s in the bar with his pet monkey, again. He orders a drink, and the monkey starts running around the bar. The monkey finds a maraschino cherry on the bar. He grabs it, sticks it up his ass, pulls it out and eats it.The bartender is disgusted. “Did you see what your monkey did now?” he asks.”Yeah,” replies the guy. “He still eats everything in sight, but ever since he swallowed that cue ball, he measures stuff first.”

Source: Funny Jokes | Walks Into a Bar… Monkey Eats Everything Joke | Comedy Central

Mass. restaurants want OUI serving data eliminated

Boston, MA - 03/30/16 - The scene inside Carrie Nation Restaurant & Cocktail Club's Speakeasy in Beacon Hill. The local bar room, once a vital part of local politics, has become less important in recent times. - (), Section: Lifestyle, Reporter: Dugan Arnett, Topic: xxbarroompolitics, LOID: 8.2.2441797526

Massachusetts bars and restaurants are pushing to eliminate a state program that tracks where convicted drunk drivers had their last drinks before being arrested, saying it embarrasses businesses without giving them a chance to defend themselves.

Under state law, judges collect “place of last drink” reports from each person convicted of operating under the influence. The reports are used by alcohol regulators and local police to identify establishments that seem to routinely over-serve patrons.

“Local officials look at these reports and say, ‘this is a problem bar,’ ” Steve Clark, director of government affairs for the Massachusetts Restaurant Association, said. “But the bar never had a chance to say, ‘that guy was never here.’ ”

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Prompted by a story in The Boston Globe in December naming the establishments that have accumulated the most last-drink reports, the restaurant association has asked a state task force considering an overhaul of alcohol laws to recommend that the Legislature eliminate the program.Convened by Treasurer Deborah Goldberg, whose office oversees statewide alcohol enforcement, the task force is expected to unveil suggested policy changes in August.

The industry’s stance has alarmed state regulators, local licensing officials, and public health advocates, who argue the last-drink reports deter bars from serving intoxicated customers and help enforcement officers focus their limited resources on those that do.

“We have a very effective program that’s been cited as a national model for preventing impaired driving,” said Ted Mahony, the top investigator at the state Alcoholic Beverages Control Commission, or ABCC. “Why would you get rid of that?”

But restaurants say people convicted of drunken driving frequently misremember or lie in court about where they had their last drink. And even though the reports don’t lead directly to punishment, operators said, municipal licensing boards nonetheless see them as black marks and give bars named by drunk drivers harsher punishments for other, unrelated violations.

“When John Doe is convicted for OUI, he just names the first place that comes to mind,” Clark argued. “Essentially, you’re taking the word of a drunk over a business owner who might be innocent.”

However, the restaurant association declined to cite examples of bars that were unjustly punished as a result of the reports, saying its members feared officials would retaliate if they complained publicly. And while the last-drink program has been active since the early 2000s, Clark said his group resolved to kill it only after the Globe publicized the data.

“Usually they go unreported, but then you do a big story about all these reports, and I get calls from my members saying, ‘two of my three [reports], I wasn’t even open those days,’ ” Clark said. “It’s not fair for the state to create negative publicity if the restaurant has no defense.”

At the same time it’s pushing to eliminate the last-drink reports, Clark’s group is lobbying to have the state’s longstanding last call pushed back from 2 a.m to 4 a.m., following a recent vote by lawmakers to allow the state’s new casinos to serve that late.

The association also wants the state to allow restaurants and bars to accept out-of-state ID cards without assuming additional liability and to give local licensing boards the option to fine businesses for liquor law violations instead of suspending their licenses.

‘The bar never had a chance to say, ‘‘that guy was never here.’’ ’

Although Clark insisted the issues are separate, public health advocates worry that hampering officers’ ability to identify problematic bars while simultaneously making it easier for more people to drink later into the night would lead to a spike in drunken driving.

“I don’t think anybody wants businesses to be falsely accused,” said Amy Turncliff, a neuroscientist and co-chair of the policy and advocacy group MetroWest Substance Abuse Prevention Alliance. “But there has to be accountability, especially if you see repeat infractions.

Municipal licensing officials are also wary of eliminating the program. Wayne Brasco, chairman of the Waltham licensing board, said that while individual reports may be suspect, cumulative data from the last-drink program are “an important barometer” for municipal regulators.

“I don’t believe for a second that drunk drivers tell the truth,” Brasco said. “But if one guy gets 20 reports, you got a problem. When there’s that much smoke, there’s got to be a little fire.”

The National Liquor Law Enforcement Association, which represents state alcohol agencies, recently urged the Massachusetts task force to preserve the last-drink registry. The group said it “frequently uses Massachusetts as an example of the proactive ways in which [last-drink] reports can be used to improve serving practices.”

In 2012, the National Transportation Safety Board recommended that every state adopt a similar policy. Currently, a handful of states have laws mandating the reports, while elsewhere a patchwork of local governments and police departments collect such data.

“With this program, we can do targeted investigations instead of random investigations,” Mahony said. “And if the bar’s not observed serving intoxicated persons, they’re not written up. It’s quite fair.”

Mahony noted that Toby Keith’s I Love This Bar & Grill — the Foxborough bar that according to the Globe’s December analysis accumulated more recent last-drink reports than any other establishment in Massachusetts — has not been cited in a single arrest since its record was publicized.

“We’ve spent a lot of time there working with management, and it ended up with a good result,” Mahony said. “We expect they’ll still have zero reports at the end of the year.”

Barry Birks, vice president of the company that controls Toby Keith’s, said the publicity and ABCC intervention that followed the Globe story prompted an immediate improvement in the restaurant’s practices. He also credited a new program promoting Uber and other ride-hailing services at the Patriot Place complex, where Toby Keith’s is located.

“Once the article came out, it was made abundantly clear to the management that they needed to up their game,” Birks said. “It’s not enough to just get people out the door, it’s making sure they get home safe.”

He added that revenues at Toby Keith’s are actually up this year, suggesting that the embarrassment caused by last-drink reports doesn’t necessarily hurt business. Regardless, Birks said he still dislikes the system.

“Without any kind of proof, or any way to expunge a report,” Birks said, “it’s inherently unfair and inaccurate.”

Source: Mass. restaurants want OUI serving data eliminated – The Boston Globe

I was charged with dui a couple days ago for marijuana

I was charged with dui a couple days ago for marijuana I’ve been having my medical marijuana license for like 7 years have a wife and three kids I keep my weed in my pipe in the car because I don’t want it around my kids and I was involved in the accident they have no proof that I was under influence for marijuana which I wasn’t at the time they just assumed That i was because it was in the car so what should i do thanks for your time

It depends if you took a blood test or not. If you refused, they would have taken your license and you would only have 7 days to contest the revocation. Whether you took it or not, you should meet with a defense attorney as soon as possible.

Beyond Alcohol: How Other Drugs Affect Driver Performance

Most people are fairly familiar with the effects that drinking alcohol can have on their driving performance. Alcohol loosens inhibitions, so people are apt to take more risks even as their reaction times are slowed, and they can become more easily distracted and unable to concentrate on driving. Alcohol can also impact a driver’s sense of direction and their ability to judge situations on the road and make good decisions.drug-dui-los-angeles-defense-attorney

Other types of drugs have similar, although not identical effects. The National Highway Traffic Safety Administration’s most recent National Roadside Survey of Alcohol and Drug Use by Drivers found that the number of drivers with alcohol in their system had declined by nearly one-third since 2007. But there wasn’t much cause for celebration; the survey also found a large increase in the number of drivers using marijuana or other illegal drugs. Nearly one in four drivers tested positive for at least one drug that could affect their safety on the road, according to the NHTSA.

Here’s a look at how several other types of drugs can impact drivers’ performance.

Marijuana

Whether you call it pot, cannabis, Mary Jane or something else, marijuana can have a suprisingly profound impact on driving skills. This has become more of a concern since seven states and the District of Columbia of Columbia have now legalized the recreational use of pot, many other states have decriminalized possession of small amounts of it and other states are allowing its use for medical reasons.

One of the problems in determining the effects of marijuana is that it can be smoked or eaten in food, which can affect the way that the body reacts to it. The amount of THC (delta-9-tetrahydrocannabinol) in products also varies. In addition, there are no good tests to determine how much THC is actively influencing a driver, since the chemical remains in the bloodstream for durations that are hard to predict through simple tests. For instance, the half life of the drug and its metabolites depends sensitively on things like your weight, your genetics, your metabolism, etc.

In general terms, however, it’s clear that marijuana can have a detrimental effect on driving. A study at the University of Iowa, funded by the National Institute of Drug Abuse, looked at the impacts that inhaled marijuana had on driving. (Researchers used a driving simulator). As the levels of THC in their bloodstreams increased, the study participants showed increased weaving within a lane of traffic. (They did not, however, leave the lanes or speed while weaving as often as those participants who consumed alcohol did.) The researchers also found that those who consumed both alcohol and marijuana did worse than drivers who had consumed only one of the substances.

According to the AAA Foundation for Traffic Study, “Acute use [of marijuana] has been shown to moderately diminish virtually every driving‐related capacity, generally in a non‐linear dose‐response fashion: psychomotor functions, cognition, attention, vigilance, tracking, reaction time and coordination.” Marijuana use is “generally regarded to affect automated/routine driving more than that requiring conscious effort. Effects depend on dose, absorption, time since peak blood level, history of use, and skill/tasks.”

Cocaine

Like marijuana, cocaine can have physical effects on drivers that include heightened nervousness and greater alertness but poorer concentration. Unlike pot smokers, however, cocaine users are more likely to exhibit reckless driving behaviors and/or reduced driving ability, according to a 2008 article in the Traffic Injury Prevention Journal.
The National Highway Transportation Safety Administration (NHTSA) website notes that the observed signs of cocaine impairment in driving performance have included subjects speeding, losing control of their vehicle, causing collisions, turning in front of other vehicles, high-risk behavior, inattentive driving, and poor impulse control. It further states that as the effects of cocaine wear off, subjects may suffer from fatigue, depression, sleepiness, and inattention, which can all impact driving.

ADHD Medications

Not all drugs have a negative impact on driving. Medications for attention deficit hyperactivity disorder, such as Adderall, Ritalin and Concerta, can actually improve driving skills.

In 2007, the Journal of Safety Research published a scientific literature review that looked at the effect that medications for controlling ADHD could have on driving competence. The authors’ review demonstrated that there were “well-documented driving risks and impairments associated with ADHD” and that there were “positive effects of stimulant medications on driving performance.”

They concluded that “Clinicians should educate patients/caregivers about the increased risk of adverse outcomes among untreated individuals with ADHD and the role of medication in potentially improving driving performance.”

CHADD (the national resource on ADHD) agrees. It points out on its website that drivers with untreated ADHD (especially young drivers) are at greater risk for vehicle accidents and are more likely to receive traffic tickets for speeding, failure to obey traffic laws and reckless driving. “In a striking comparison, the untreated symptoms of ADHD in a teen driver can impair the driver’s ability so much that it resembles intoxicated driving.”

The website also states that “Research shows that teens who are treated for ADHD are better drivers than teens receiving no treatment. Teenagers who have never been treated with stimulant medication are involved in more vehicle crashes than those who had medication treatment for at least three years.”

Benzodiazepines (Benzos)

Benzodiazepines are a class of drugs used to treat disorders such as anxiety, panic attacks, depression and insomnia. Common “benzos” include Klonopin (clonazepam), Ativan (lorazepam), Valium (diazepam) and Xanax (alprazolam).

Benzos can be very helpful in treating people with anxiety and most people can use them safely. But according to established research, users can suffer a battery of side effects that include drowsiness and a hangover-like-state that affects driving ability.
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Many people worry about the effects that marijuana legalization will have on DUI. But the dangers of driving while under the influence of benzodiazepines may have been under reported. When the State of Alabama’s Department of Forensic Science conducted a review of traffic stops, they discovered that benzos were the second leading cause of impaired driving in the state. They found that Xanax was involved in 29 percent of DUI cases in the state, while marijuana was involved in only 23 percent of DUIs.

Tranquilizers

Drugs like Valium (diazepam), Halcyon (triazolam) and Librium (Chlordiazepoxide) are all examples of tranquilizers. They may have effects similar to alcohol on driving: they dull the senses and impair decision-making ability.

The National Highway Traffic and Safety Administration (NHTSA) has warned about the dangers of driving while on tranquilizers. For example, the NHTSA notes that “diazepam is a moderate tranquilizer, causing sleepiness, drowsiness, confusion, and some loss of anterograde memory.” (Anterograde memory is the linked to the ability to remember new information.)

The NHTSA further warns that “At high doses, excitement, disinhibition, severe sedation, and effects on respiration occur, particularly if respiration is impaired by other drugs or by disease. Diazepam can produce a state of intoxication similar to that of alcohol, including slurred speech, disorientation, and drunken behavior.”

Oklahoma’s Emergency Medical Services Authority says that the use of tranquilizers can lead to a lack of coordination, altered perceptions and slower reaction time. Drivers on tranquilizers don’t track the road as well as sober drivers, struggle to maintain lane positon and frequently neglect roadside instruction.

Source: Beyond Alcohol: How Other Drugs Affect Driver Performance — Los Angeles DUI Attorney Blog — April 23, 2017

Motorist with meth lab in car arrested during traffic stop for driving erratically

 (MLive file photo)

The Michigan State Police Jackson post provided the following log of activities for the weekend of July 21 to July 23 with troopers investigating 70 incidents and calls for service.

Possession with Intent to Deliver / Operating While Impaired: Jackson County, Blackman Township:  Troopers conducted a traffic stop on a vehicle driving erratically.  Upon contact the driver, a 25-year-old male from Eaton Rapids, was found operating while in possession of drugs, with intent to deliver, operating and maintaining a methamphetamine laboratory, and driving while under the influence of marijuana. The suspect was arrested and lodged at the Jackson County Jail.

Operating While Impaired: Jackson County, City of Jackson:  Troopers conducted a traffic stop on a vehicle for a defective exhaust.  Upon contact the driver, a 24-year-old male from Waldron, was found to be operating under the influence of alcohol.  The suspect was arrested and lodged at the Hillsdale County Jail.

http://www.mlive.com/news/jackson/index.ssf/2017/07/msp_motorist_with_meth_lab_in.html

Horizontal Gaze Nystagmus

New Illinois Supreme Court Case – The HGN Test Is Not All It’s Been Touted to Be:The Supreme Court of Illinois  in The People of the State of Illinois v. Joanne Mckown last week issued an opinion regarding the Horizontal Gaze Nystagmus (HGN) field sobriety test and made some remarkable findings. First, the Court held that the HGN test can not be used to show actual loss of the normal use of mental or physical faculties, but instead, can only be used to show that a “defendant may have consumed alcohol and may, as a result, be impaired.”  There is no more of this, “they failed the HGN so they are therefore intoxicated” arguments.Second, the Court held that just because a scientific test is regularly relied upon in law enforcement does not make it admissible in court.  The test is whether the particular test is relied upon in the scientific community, not the law enforcement community. Third, just because a test meets the standards for admissibility under Frye, that does not preclude the trial court from conducting a balancing test  and deem the evidence “inadmissible on grounds of undue prejudice.”Finally, the Court held that the test must strictly comply with the NHTSA standards for performing the test.  This means the cops aren’t going to be allowed to come in a testify, “I did it the way I was trained to do it.”  They are going to be held to the standard of the NHTSA.Here’s hoping the Texas Court of Criminal Appeals will at least read this opinion.  Even more importantly, here’s hoping that the trial courts in Texas will read the case and understand that they truly are gatekeepers for the admission of evidence.

Source: Horizontal Gaze Nystagmus : Houston DWI Law Blog

Walks Into a Bar… String Style 

A string walks into a bar with a few friends and orders a beer. The bartender says, “I’m sorry, but we don’t serve strings here.”The string goes back to his table. He ties himself in a loop and messes up the top of his hair. He walks back up to the bar and orders a beer.The bartender squints at him and says, “Hey, aren’t you a string?”The string says, “Nope, I’m a frayed knot.”

Source: Funny Jokes | Walks Into a Bar… String Style Joke | Comedy Central

Woman to serve four years in prison for fatal drunken driving crash

INDIANAPOLIS — A woman accused of driving drunk and killing a 66-year-old Noblesville man was sentenced to four years in prison Wednesday after agreeing to a plea deal.

Elizabeth Vargas-Hernandez, 35, was charged in February with operating a vehicle while intoxicated, operating a vehicle without ever having received a license and causing death when operating a motor vehicle while intoxicated following a fatal crash on I-465.

Indiana State Police say Vargas-Hernandez was driving on I-465 just before 2:30 a.m. on Feb. 13 when she rear-ended a vehicle driven by David Kriehn, 66, of Noblesville, near Michigan Road.

Kriehn was ejected from his 2002 Honda as it rolled into the ditch. He was transported to St. Vincent Hospital, where he died from his injuries.

PREVIOUS CALL 6: Woman accused of driving drunk and killing 66-year-old man did not have license

Vargas-Hernandez’s vehicle also inverted into the ditch. Amazingly, neither she nor three passengers in the vehicle with her at the time of the crash were injured.

On Wednesday, Vargas-Hernandez entered a plea of guilty to one count of causing death while operating a motor vehicle with a blood alcohol content of .15 or greater. A Marion County judge sentenced her to four years in the Indiana Department of Correction. She will also be unable to receive a driver’s license for 10 years.

Vargas-Hernandez could also potentially face deportation upon her release from prison, as police believe she is an undocumented Mexican national.

http://www.theindychannel.com/news/crime/woman-to-serve-four-years-in-prison-for-fatal-drunken-driving-crash