2012 July Archive
We had another super successful event at Mariscos Tampico Restaurant! We had over fifty-five people come out to attend the event where we not only handed out packets of valuable information on Deferred Action, but we also raffled prizes, including a Blu-Ray Player, Christopher Nolan’s first two Batman movies, and a $25 gift certificate to the movies!
The event was a lot of fun and a great success. Some of the members of the staff even stayed after the event for delicious seafood at Mariscos Tampico! What a fun place to enjoy karaoke, great seafood and learn about Deferred Action! Thank you again to Martin Farias and all the staff at Mariscos Tampico!
Jeff Peek and Diego Nuñez speaking at the Deferred Action Event
A long shot of Mariscos Tampico Restaurant, which has karaoke and excellent seafood!
Jeff Peek and Diego Nuñez taking questions from the audience at the Deferred Action Event
Jeff Peek talking on the Karaoke stage at Mariscos Tampico for the Deferred Action Event
Jessica Dobias, Claudia Tax-Rian, and Mayra Nuñez, Peek and Toland Staff attending the Deferred Action event
Today U.S. Department of Homeland Security Secretary Napolitano announced two key dates for young DREAMers seeking protection under Deferred Action. Secretary Napolitano announced that on August 1st, more information would be released about deferred action and the application process. Secretary Napolitano also announced that the Department of Homeland Security would begin accepting application for deferred action on August 15th. This means, young immigrants may qualify for deferred action legal status for as early as August of this year.
To recap, on June 15, 2012 President Obama and Secretary Napolitano announced a new discretionary prosecutorial process for enforcing immigration law, known as deferred action. Those who apply and qualify for deferred action will be allowed two years legal status in the U.S. to work and live without fear of deportation.
To be eligible for the deferred action, the immigrant must show he or she:
- Came to the U.S. under the age of sixteen;
- Has continuously resided in the U.S. for at least five years preceding June 15, 2012 and is currently present in the U.S. on June 15, 2012;
- Is currently in school, has graduated from high school, has obtained a general education development certificate or honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
- Has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses or otherwise pose a threat to national security or public safety; and
- Is not above the age of thirty.
To read more about deferred action, please refer to our article on it here.
Peek and Toland hosted another free Deferred Action event at Cristiana Verbo Church in Austin, Texas this past weekend. We had a great turn out and a lot of great questions regarding Deferred Action. Pastor Anibal Ramirez of La Palabra, 1440 A.M. was an invaluable help getting the word out about this free Deferred Action Event and organizing the event. Those who attended the event received a packet of information regarding Deferred Action and free Peek and Toland consultation cards (a $50 value). At the event Peek and Toland also handed out koozies, coasters, magnets and business cards.
Thank you again to Anibal Ramirez, La Palabra and Cristiana Verbo Church for helping with this event.
Our fourth free Deferred Action event was hosted at Crest View Baptist Church in Georgetown on Saturday, July 14th at 7:00pm was a huge success. We had so many people at the Deferred Action Event that we had to find more chairs! We handed out information packets and free consultation cards, as well as Peek and Toland koozies, magnets and coasters to everyone who came!
We would like to thank Crest View Baptist Church for hosting such a great event!
Austin DWI Attorney Report: The Shortfalls of the Breathalyzer Test and the Breathalyzer Equalizer’s Quick Fix
The Austin DWI Lawyers at Peek and Toland consult with clients everyday regarding DWI and DUI charges. Sometimes the DWI attorneys at Peek and Toland are asked questions about quick fixes and false positives on the field sobriety test. Recently, we saw an advertisement for a new product called Breathalyzer Equalizer that claims it can eliminate false positives on a breathalyzer test. According to the Breathalyzer Equalizer website, the all-natural powder based product, will freshen breath and eliminate alcohol residue that could trigger a false positive on the breathalyzer test. The Breathalyzer Equalizer website also indicates the product is meant only for sober drivers who want to protect themselves from false positives on a field sobriety test; however the logo advertising the Breathalyzer Equalizer features a martini glass. Additionally, the promotional video on Breathalyzer Equalizer’s website suggests that those who consume alcohol before driving can prevent a positive alcohol breathalyzer test by using their product.
Products like the Breathalyzer Equalizer are potentially dangerous in that they have collateral consequences. They provide drivers with a false sense of security and place potentially dangerous and intoxicated drivers on the roads. It is NOT illegal to drink and then drive, but it is illegal to drink to the point of losing one’s mental and/or physical faculties and then drive.
What is the Breathalyzer Equalizer really about then? While the Breathalyzer Equalizer has potentially dangerous collateral consequences, it is clever in that it addresses one of the many flaws in all breathalyzer devices. To understand how the Breathalyzer Equalizer addresses Breathalyzer inaccuracies, one must first understand how the device works. It is scientifically proven that breathalyzers are often inaccurate and commonly unreliable. Thus, the attorneys at Peek and Toland do not ever recommend providing a breath sample unless required by a court order. The Breathalyzer test has three major flaws, which we will discuss below; however the Breathalyzer Equalizer is a product marketed to only address one of those flaws.
First, Breathalyzers operate under the assumption that the sample taken contains alcohol from the lungs. To calculate the amount of alcohol in the blood, the Breathalyzer’s internal computer multiplies the amount in the breath sample. If the sample is not from the lungs but from the mouth, throat, or stomach, the amount of alcohol should not be multiplied, or the result will be falsely high. The failure of Breathalyzers to distinguish between alcohols provided from the lungs and alcohol which is already in the mouth or throat is a grave and common problem. Approximately one-third of individuals suffer from acid reflux disease, which is a common source of mouth alcohol that will result in a false positive on the Breathalyzer test. Thus, products like the Breathalyzer Equalizer are being marketed as quick fixes for one of the Breathalyzer test’s common design flaws.
However, false positive readings from a Breathalyzer are not only determined by alcohol in the mouth instead of alcohol in the lungs, the Breathalyzer test could result in a DWI or DUI charge for a suspect in two other ways. The first way a Breathalyzer test could result in a false positive reading is if the suspect has a unique partition ratio. The partition ratio is the ratio of blood versus alcohol in the breath. The computer inside a breathalyzer is pre-programmed to multiply the amount of alcohol in a DWI suspect’s breath sample by the average partition ratio of an adult, 2,100 units of blood to 1 unit of alcohol, to determine the suspect’s blood-alcohol concentration. However, not every suspect has the same partition ratio. Partition ratios vary from as low as 900-to-1 to as high as 3,500-to-1. Thus, if a suspect’s ratio is different than the average, the blood-alcohol concentration result will be inaccurate and could result in a false positive reading on the Breathalyzer test.
Finally, a common reason for inaccurate Breathalyzer results is a change in a suspect’s body temperature. For example, if a suspect is ill, the body temperature may be elevated. A change in a suspect’s body temperate by as little as 1 degree Celsius can result in an altered partition ratio of 2,100-1, thus resulting in a 7% higher test result.
Therefore, it is important to consult with an attorney when facing DWI or DUI charges. There are many inaccuracies in Breathalyzer tests and not every suspect is aware of them at the time he or she is pulled over and tested. At Peek and Toland, we provide our clients with not only professional and responsive representation; we are able to provide years of DWI and DUI experience to our clients. If you are seeking an attorney who is knowledgeable and educated on not only the law, but the potential flaws and faults of the Breathalyzer test, then please contact us. We are here to answer your questions and help with your Austin DWI or DUI case.
This photo conveys why Deferred Action should have happened sooner…
For all the kids and adults who were brought here by their parents or loved ones who just want a chance to work, live and grow in the country that raised them…
The United States Supreme Court issued a 5-3 opinion today partially overturning Arizona’s Immigration law S.B. 1070. The Supreme Court addressed four main issues surrounding S.B. 1070.
The first issue addressed whether it was constitutional for a state to enact a laws enforcing federal immigration law. The law in question stated that if a person failed to register and carry documents verifying his or her legal status, the person could be charged with a misdemeanor. The Supreme Court overturned S.B. 1070 section 3 finding that State governments were preempted from enacting and enforcing laws governing immigration. The Court reasoned the Courts had already addressed the issue of alien registration and requirements that forced aliens to carry identification cards in Hines v. Davidowitz, 312 U.S. 52. The Court also reasoned that Congress had already created and enacted laws addressing an alien’s failure to register, and thus, Arizona’s S.B. 1070 section 3 was preempted. Finally, the Court reasoned that if it allowed S.B. 1070 section 3 to remain in effect, the state of Arizona would power to enforce its own immigration policies in conflict with federal law.
The second issue the Supreme Court addressed was whether S.B. 1070 section 5(c) violated the Constitution. S.B. 1070 section 5(c) makes it a misdemeanor for an illegal alien to solicit work or performs work in the U.S. for an employer or as a contractor. The Supreme Court overturned S.B. 1070 section 5(c) stating that section 5(c) directly conflicts with the enforcement of federal law. Under federal law, employers may not knowingly hire, recruit, refer or continue to employ unauthorized workers and makes it a federal crime for illegal aliens to obtain employment through fraudulent means. However, federal law does not provide penalties on aliens who seek or engage in unauthorized employment. The Court reasoned that Congress would have created and enforced such penalties against illegal aliens if it felt it was necessary and thus, Arizona’s law was a conflict of technique in enforcement of the laws and therefore was unconstitutional.
Additionally, the Supreme Court addressed the issue of whether S.B. 1070 section 6 violated the Constitution. S.B. 1070 section 6 allowed police officers to make arrests of individuals without a warrant if the officer had probable cause to believe the person committed a crime that makes him or her removable from the U.S. The Court overturned the law finding that federal law provides that an alien may be arrested without a warrant and detained for removal only when the alien is in violation of immigration law and is likely to escape custody before a warrant is attained. However, S.B. 1070 section 6 provided state and local police a great deal more authority in allowing state and local officers to arrest aliens without a warrant, regardless of whether a federal warrant is present or the alien is likely to escape. The Court reasoned that Arizona’s law could be enforced without any input from the Federal Government, thus allowing Arizona to achieve its own immigration policies, in conflict with the U.S. Constitution.
The last issue the Supreme Court addressed determined whether S.B. 1070 section 6(b)’s requirement that an officer determine the immigration status of a stopped, arrested or detained person was constitutional. Arizona’s S.B. 1070 section 6(b) stated that if a state officer has a reasonable suspicion that a lawfully stopped, arrested or detained person is an alien or unlawfully present in the U.S., the officer must make a reasonable attempt to determine the immigration status of that person.
The Supreme Court was guided in making its decision on S.B. 1070 section 6(b) based on three limitations on the Arizona law. The first limit stated that anyone who provided a valid Arizona state license or similar identification would be presumed lawfully present in the state. The second limit prohibited officers from taking race, color or national origin into consideration when determining whether to proceed with a status verification, except as permitted by the U.S. Constitution. Finally, the third limit required that S.B. 1070 section 6(b) be implemented in accordance with the U.S. constitution, federal law, the privileges and immunities of U.S. citizens and the civil rights of all persons.
Ultimately, the Supreme Court upheld S.B. 1070 section 6(b) stating that mandatory status verification did not interfere with the federal immigration scheme. The Court reasoned that States may routinely share information regarding the immigration status of detainees and arrestees with the federal government. Additionally, the Supreme Court also held that any concerns that S.B. 1070 section 6(b) would unreasonably delay the release of individuals while the status verification process was conducted were unfounded. The Court reasoned that Arizona’s law did not require status verification to be completed during the stop, detention or arrest. Finally, the Court left open the discussion of whether S.B. 1070 section 6(b) could be challenged in the future and found that at this time the State courts had not provided enough definitive interpretation on how the law would be construed to determine if it would be in conflict with federal law.
Ultimately, there are concerns for both lawful citizens and legal immigrants with the Supreme Court’s holding on S.B. 1070. The Supreme Court found S.B. 1070 section 6(b) was constitutional based on its three limits. However, the second limit provides that officers cannot base their decision to detain a person for status verification on race, color or national origin. Yet, the law provides no other determination for making the decision to detain a person for status verification other than the officer’s own “reasonable suspicion that the individual being stopped, detained or arrested is an illegal alien”.
Based on past experience, those individual who come to the U.S. illegally usually are wise enough to switch their Mexican license plates over to U.S. plates before driving around the Arizona desert. So, what other facts provide an officer with “reasonable suspicion that an individual being stopped, detained or arrested is an illegal alien” other than the individual’s accent, language, color of his or her skin, and national origin?
Even though S.B. 1070(b)(6) states that an officer cannot perform a status verification based on race, color or national origin, the Supreme Court justices have conveniently ignored the fact that human beings in the form of state officers make the determination to conduct status verifications. Also, the Supreme Court justices have turned a blind eye to the fact that other than the glaringly obvious foreign license plate, officers will now have the power to detain individuals for status verification based on racial profiling. Ultimately, S.B. 1070(b)(6) provides a disproportionate application of a legal process to those who have legal justification to be here. Thus, at Peek and Toland we believe the U.S. Supreme Court should have found S.B. 1070(6)(b) unconstitutional because it provides the State of Arizona with immigration enforcement powers and provides state officers with the power to enforce immigration law in conflict with the spirit of the U.S. Constitution’s equal protections provisions and the right of the public to be protected from unreasonable searches.
We had a very successful Deferred Action event on Sunday, July 1st at Nueva Vida, First Evangelical Free Church in Austin, Texas. We had thirty-five attendants to the event and tons of questions! The photos from the event turned out great, so we have decided to share them all with our blog readers!
Diego, a Peek and Toland immigration attorney, presented to the attendants and answered questions in Spanish. Mayra, an immigration paralegal, handed out the deferred action information packets in English and Spanish, and helped with general questions. Steve Toland, a partner and attorney at Peek and Toland, was the master mind behind these photos. Steve also helped with setup, answering additional questions in Spanish and English, and organizing the event.
Thank you to everyone who came out to the event! We hope you found it informative and helpful!