probation and drug use

DEATH BY DRUG OVERDOSE

In 2014, 125 Americans died every day from drug overdoses.  This is according to an article published in the New York Times.  These deaths are being fueled by an “explosion in addiction to prescription painkillers and heroin[,]” and  the death toll is being compared to the HIV epidemic of the late 1980’s.

New Hampshire is being hit particularly hard by this epidemic.  326 people died from drug overdoses in that state in 2014.  These deaths are linked to both heroin and fentanyl.  Fentanyl is a painkiller 100 times more powerful than morphine.

Fentanyl plays a big role in death from overdoses in New Hampshire.  That’s because many of the drug dealers lace heroin with fentanyl.  This makes it more difficult for medical professionals to revive a person who has overdosed on fentanyl laced heroin.

PRESCRIPTION DRUG ABUSE

NPR  is also reporting that employers are struggling to deal with employees who abuse prescription drugs.  It seems that people get prescription painkillers from their health care providers for an injury they suffered–and then develop an addiction to opiods without realizing they are addicted.

ARRESTS FOR DRUG POSSESSION

The increase in drug use has also lead to more people being arrested and charged with drug possession. This raises an important question: How should the criminal justice system deal with a defendant who is dealing with substance abuse?

BEXAR COUNTY PROBATION
BEXAR COUNTY PROBATION LOCATED 207 NORTH COMAL, SAN ANTONIO, TEXAS 78207.

Bexar County probation has several programs for people with substance abuse issues. This includes Felony Drug Court, Substance Abuse Felony Treatment Facility (SAFPF), and intensive supervision (ISP).

The goal of these programs and conditions is to provide a defendant with treatment (rehab) so that person does not re-offend or relapse into drug use.

However, these programs have conditions that are substantially burdensome and onerous. Some of these conditions include submitting to random UA’s, inpatient treatment, and intensive supervision that may interfere with your work schedule, daycare availability, or both.

If a defendant violates one or more conditions imposed by the court, then the probation department files a motion to revoke probation (MTR) that could lead to more intense probation supervision or even prison time.

[Note–one of the most common probation violations I deal with are testing positive for cocaine, heroin, or meth.  Other common violations are failing to report and committing a new offense.]

ARE THESE CONDITIONS RIGHT FOR ME?

These conditions may or may not be right for each offender. It is important to talk to your attorney before you enter a plea of guilty (assuming you do not want to fight the charge), so that your attorney can help you work through the probation system with as little pain as possible.

One potential option to explore is whether rehabilitation is available privately through your employer or insurance provider–this option may (most likely) provide for more individualized attention from your medical provider and a rehab program tailored to your situation.

Your attorney should work to learn the facts of your individual situation so that he can argue to the judge that it impose only the least-restrictive probation conditions to help you receive treatment and successfully complete your probation.

WHAT SHOULD I DO IF I AM CHARGED WITH A DRUG OFFENSE?

Substance abuse is a deeply personal issue to deal with.  If you are arrested for a drug offense and are dealing with substance abuse, then contact my office today for a free in-person consultation.  Your consultation is protected by the attorney-client privilege and will remain confidential.

GENARO CORTEZ
ATTORNEY
PHONE: 210.733.7575

MOLINA-MARTINEZ v. UNITED STATES

MOLINA-MARTINEZ v. UNITED STATES

The Supreme Court heard oral arguments yesterday in Molina-Martinez v. United States, Cause # 14-8913. The case deals with plain-error review of a federal sentence.

WHY IS THIS CASE IMPORTANT?

The most common question clients ask me is: “How much time am I going to get?” The unsatisfying answer I give is: “It depends.” There are simply too many factors and variables that affect the final sentence the trial court will hand down. That’s why I always say it depends. But you can get an idea of how much time you may get by looking at the Pre-Sentence Report (PSR) prepared by the U.S. Probation Department.

GUIDELINES MANUAL
GUIDELINES MANUAL

The PSR contains two important variables that are used to calculate a sentencing range for each defendant: total offense level and criminal history category. Generally speaking, the more serious the crime committed, the higher the offense level. Likewise, the more criminal history a defendant has, the higher his criminal history score.

Once the probation department calculates these two variables (among other information contained in the PSR), it then looks to a sentencing table to determine a sentencing range for a defendant.  On the vertical access of the table is the offense level. On the horizontal axis of the table is the criminal history category. The sentencing range is then determined by looking at where these two points on the table meet. Click here to see the sentencing table.

This case deals with how appellate courts should review errors in the calculation of the criminal-history score in the PSR when defense counsel does not object. The legal term for this appellate review is called “plain-error review.” In short, lawyers and judges make mistakes—this case will provide guidance on how appellate courts should review these errors.

FACTS OF MOLINA-MARTINEZ CASE

Molina-Martinez was convicted of Illegal Re-Entry into the United States. Prior to this conviction, he had been previously convicted of five aggravated burglaries in Tennessee from 2009-2010. Based on these convictions, Molina-Martinez’s PSR improperly scored his criminal history at a category VI instead of a category V, which resulted in a higher projected guideline range. (Click here for a more detailed look at the legal issues being reviewed.)

Whatever the Court decides, this case will provide trial and appellate lawyers a framework for dealing with these types of issues in the future. I will publish a follow-up post once the Court hands down a ruling.

GENARO R. CORTEZ
ATTORNEY
PHONE: 210-733-7575

HURST v. FLORIDA

FLORIDA DEATH PENALTY STATUTE STRUCK DOWN

Today (January 12, 2016), the Supreme Court struck down Florida’s death penalty statute in Hurst v. Florida-Case # 14-7505 because it violates a defendant’s Sixth Amendment right to a trial by jury.

SUMMARY OF FACTS

On May 2, 1998, Cynthia Harrison’s body was found in a freezer of the Popeye’s Fried Chicken restaurant where she worked in Escambia County, Florida. She was bound, gagged, and stabbed over 60 times–likely with a box cutter.  (click here for the facts surrounding the murder.) Police arrested her co-worker, Timothy Lee Hurst, and charged him with first-degree murder.  A jury then found him guilty of murder.   Hurst was then sentenced to death by a trial judge under Florida’s hybrid-sentencing scheme.

Under  Florida’s death penalty statute, a jury only issues an advisory verdict or recommendation on whether a defendant should get life imprisonment or the death penalty. But the trial judge, rather than the jury, makes the final determination on whether a defendant should get life imprisonment or receive the death penalty.

[Note–Hurst’s original death penalty sentence was overturned by the Florida Supreme Court for reasons unrelated to this blog post.  At re-sentencing, Hurst again was sentenced to death by the trial judge rather than the jury.]

ISSUE:

Whether a defendant’s Sixth Amendment Right to a jury trial allows a trial judge, rather than a jury, to make the factual determinations to support a death sentence?

HOLDING:

Court said a jury, and not a judge, must decide whether a defendant gets the death penalty. It then struck down Florida’s death penalty sentencing scheme.

WHAT THIS RULING MEANS:

DEATH PENALTY STATES IN RED.
DEATH PENALTY STATES IN RED.

It means that Florida’s death penalty statute is unconstitutional. The Florida legislature must rework its death penalty statute to allow a jury—rather than a judge—to make ultimate determination on whether a defendant receives the death penalty.

What is unclear is whether other defendants who are already sentenced to death and awaiting execution in Florida will be eligible for relief. Click here for a New York Times article on this issue. Also, click here for a discussion from ScotusBlog on this case.

ODDS AND ENDS:

An issue that was raised but not decided in this case is whether a death penalty verdict must be unanimous. That is—whether all 12 jurors must agree—or if only 10 of the 12 jurors must agree. That’s an interesting question too.

GENARO R. CORTEZ
ATTORNEY
PHONE: 210-733-7575

Criminal Credit Scores

Police are using advanced surveillance technology and software to generate “threat scores” to determine a suspect’s potential for violence when responding to police calls.

According to Justin Jouvenal of the Washington Post (click here for article), the police department in Fresno, California is using software called Beware that is being promoted as a law enforcement tool to help discover critical information that can be used “to uncover terrorists and thwart mass shootings . . .”

These threat scores are similar to credit scores, which use a wide arrange of data to determine the risk of lending to consumers.  For instance, when police receive a call for suspected criminal activity, Beware runs the address to determine who lives at that residence or living unit. Then it runs the names of the residents against publicly available data to determine the threat score for the call. The threat score is color coded: green, yellow, and red. This information is then used by police to determine how to respond to the call.

One of the many questions being raised by this technology is how the threat score is calculated. However, this calculation is considered a trade secret by Intrado, which is the company that manufactures Beware. Another related questions is whether the threat score is calculated by using information that is incorrect, stale, or both.

In short, this story reflects the continued tension between law enforcement’s goal to keep us safe and the protection of our zone of privacy against government intrusion.

GENARO R. CORTEZ
ATTORNEY:
PHONE: 210-733-7575

DWI CHEMICAL TESTS (BLOOD DRAWS AND BREATH SAMPLES)

Lyle Denniston of ScotusBlog reported that the Supreme Court will review three DWI-related cases on how and when blood and breath tests can be taken from suspected drunk drivers in compliance with the Fourth Amendment. According to Denniston:

“[T]he Supreme Court agreed on Friday to decide whether a blood or breath test for drunk driving can be made without a search warrant and whether, if there is no warrant, an individual can be charged with a crime for refusing to take such a test.”

These cases come from states where refusing to submit to take a chemical test after a DWI arrest is a crime. The two cases on this issue are: Birchfield v. North Dakota and Bernard v. Minnesota.

The third case that is being reviewed—Beylund v. North Dakota—will review the administrative punishment imposed for refusing field tests.

It will be interesting to see how—or if—the Court addresses the Implied Consent Statute and whether that is constitutional.  For example under Implied Consent driver’s have an impossible choice on whether to submit to a breath or blood test–you lose your license for a year for refusing to submit to the test (or whatever time applies to your case) or submit to a blood or breath draw that can be used against you in a criminal prosecution.

I will blog more about these cases as they get closer to oral arguments.
But for those hard-core DWI fanatics out there—click here for a podcast discussion on these pending cases.

GENARO R. CORTEZ
ATTORNEY
PHONE:  210-733-7575

TEXAS OPEN CARRY LAW

TEXAS OPEN-CARRY LAW

On Friday, January 1, 2016, Texas Open-Carry Law went into effect. This means that individuals with concealed handgun licenses can now display those guns in open. [Note, the concealed handgun license (CHL) will now be called license to carry.] However, the guns must be carried on either a belt or shoulder holster.

I’ve received several calls, texts, and emails about this new law from clients and members of the community about what the new law means. Questions, like—should I call 911 if I see someone carrying a firearm? What places can you carry a firearm and what places are prohibited? Can police stop you just to ask for your permit to open carry? Below are links that answer these questions:

Round Rock Police Department

Austin American Statesman

What is unclear is the long-term consequences—both positive and negative—that may flow from this new law.  There is sure to be confusion on how this law will be enforced.  I expect to see tons of litigation in state-criminal courts on what constitutes reasonable suspicion or probable cause to stop someone who is openly carrying a firearm and complying with the state law.

For instance—what if a person is lawfully carrying a gun and a third-party calls 911 because he or she subjectively believes that lawful gun owner is acting dangerous? How do police respond?

These questions and more are yet to be determined.  If you get arrested for lawfully carrying a firearm–then call my office today to discuss your rights.

GENARO R. CORTEZ
ATTORNEY
PHONE: 210-733-7575

WRONGFUL CONVICTIONS

WRONGFUL CONVICTIONS

John MacCormack and Michelle Casady of the San Antonio Express News (EN) wrote (subscription required) a compelling story on how Rogelio Gutierrez was wrongfully convicted of a crime he didn’t commit.

Pre-trial diversion could help avoid the long term consequences for first-time offenders.
Wrongfully convicted man freed after serving 22 in prison.

Mr. Gutierrez’s ordeal began on 29 December 1992 when he was sixteen years old. On that date, a thirteen-year old girl was gang raped in a mobile home in Bexar County, Texas. The victim identified Gutierrez as one of the assailants at trial. Gutierrez was then convicted and sentenced to thirty (30) years in prison.

However, five days after Gutierrez was sentenced, the victim recanted and said Gutierrez did not sexually assault her. Further, the victim had documented psychiatric history that seriously casted doubt on her story. But this psychiatric evidence was not disclosed at trial. [Note—this would be considered exculpatory evidence that should have been turned over to defense counsel.] Despite this recantation, the sentence was upheld.

The case was then reopened by the Bexar County District Attorney’s Office-Conviction Integrity Unit. As a result, Gutierrez was released from prison after serving twenty-two years of his thirty year prison sentence.

WHAT DOES THIS STORY MEAN?

Unfortunately, it means that the system is not perfect and is capable of injustice. But it also shows why pre-trial discovery and investigation is so critical to every case. Although the story did not clarify why the victim’s psychiatric history was not disclosed—if it had been disclosed prior to trial—the results of the trial likely would have been different. (The victim’s psychiatric history indicated she would fabricate stories, seek revenge, and see injustice where no existed.)

WHAT TO DO IF YOU BELIEVE SOMEONE YOU LOVE WAS WRONGFULLY CONVICTED?

Contact the Bexar County District Attorney’s Conviction Integrity Unit and request a review of the case. Also, contact a defense attorney with experience with post-conviction writs and overturning wrongful convictions. The State Bar of Texas is also a great resource for the public and is a good place to start your attorney search.

GENARO R. CORTEZ
ATTORNEY
PHONE: 210-733-7575