No Refusal Periods – More Than 230 Arrested for DWIs in Austin over the Holidays

By Peek & Toland on March 27, 2017

It’s no secret that police in Texas are tough on drunk drivers. Enforcement is even more zealous during so-called no refusal periods at times of the year when drivers are more likely to be consuming alcohol.

Over the holiday Austin police held a 17-day no refusal period, reported TWC News.

The police department enforced no refusal from 9 p.m. until 5 a.m. over the Christmas and New Year period. The station reported of 230 people who were arrested for DWIs, 39 had previous convictions and three had children in the car when they were pulled over.

Dozens of drivers who were stopped had a blood/alcohol content of over .15, including one person whose level was .319. In Texas, a blood/alcohol content of .08 is considered to be legal intoxication.

During no refusal DWI periods, it's easier to get blood tests

No refusal periods see blood tests speeded up

During no refusal periods, police departments in Austin and elsewhere use an expedited process to obtain blood search warrants to test anyone who refuses a breathalyzer test.

No refusal tactics are frequently used during holiday weekends throughout the year when drunk driving typically spikes.

The name of the campaign is somewhat misleading. Rather than meaning defendants don’t have a right to refuse a test, it means a refusal will not prevent a law enforcement officer getting a warrant to test your blood.

How No Refusal Speeds Up a Blood Draw after a DWI Arrest

If a defendant refuses to provide a breath or blood test during a no-refusal period, the process for obtaining a blood test is speeded up.

Usually, if an officer suspects you are driving drunk, you will be asked to take a field sobriety test or submit to a breath or a blood test. You can either agree or refuse. If you agree, you are given the test.  If you decline the tests, a search warrant must be obtained for the police to take a sample of your blood.

During no refusal periods, police are given additional resources to carry out blood tests. Typically, localities grant additional funding to boost their resources. For example, a magistrate might be available around the clock to sign affidavits for search warrants. Medical staff may be available to carry out blood tests.

Texas has an implied consent rule that means you are agreeing to a breath or blood test if you get behind the wheel of a car.

If you refuse to take a test, evidence of the refusal can be used against you in court and your license will be suspended for at least 180 days.

If an officer forces you to take a blood test you have rights. There have been cases in which drivers have been strong armed to take a blood test without a warrant.

An experienced Texas DWI defense lawyer can advise you of your rights and help you when arresting officers have acted in an improper or unlawful fashion.

Please call our Austin criminal defense team today at (512) 474-4445.

Immigrant Harboring Measure to Come Before Courts in Texas

By Peek & Toland on March 24, 2017

An important case that threatens heavy sanctions for immigrant harboring in Texas has come under scrutiny in a federal court.

A report on NBC News noted how a national civil rights group for Latinos faced off with Texas officials when the 5th Circuit U.S. Court of Appeals in New Orleans heard oral arguments against controversial reform measures.

In 2015, the Texas legislature enacted HB 11. The legislation included an immigrant harboring provision. Individuals accused of harboring immigrants could be arrested and prosecuted for providing shelter or even renting a home to undocumented immigrants.

The courts prepare to look at immigrant harboring in Texas

Immigrant harboring is a key battleground in Texas

Texas Governor Greg Abbott signed an omnibus bill that contained sweeping enforcement measures against immigrants.

The Texas legislation does not directly target undocumented immigrants. However, it contains key provisions that can criminalize people who help immigrants.

The legislation singles out anyone who “encourages or induces a person to enter or remain” in the United States by shielding, harboring or concealing them.

As experienced Austin family immigration lawyers, we are concerned about the wide scope of this legislation. It has the ability to criminalize family members and creates a new classification of state felony offenses that did not exist previously.

Earlier this year, the 5th Circuit U.S. Court of Appeals heard oral arguments in this controversial case.

Immigrant Harboring Case Followed a Challenge by San Antonio Landlords

Last year, Mexican American Legal Defense Educational Fund (MALDEF) sued over the legislation. The civil rights group named Abbott along with members of the state Public Safety Commission and Public Safety Director Steve McCraw as respondents to the lawsuit.

MALDEF sued on behalf of two landlords who were in San Antonio and Farmers Branch. The landlords said it’s not their policy to ask tenants about their immigration status. They would not terminate their lease or evict the tenants even if they found they were undocumented immigrants.

Last April, a federal judge prevented Texas from enforcing the immigrant harboring provision as the MALDEF lawsuit proceeded. The state then appealed that ruling.

You can read more about this important case here on our website.

If you are concerned about a family immigration matter please contact us here. Our Austin immigration attorneys would welcome the opportunity to help you with your issue and to answer your questions. Call us at (512) 474-4445 for a consultation in English or Spanish.

Texas Standards on Intellectual Disability in Death Row Cases Are Questioned by Supreme Court

By Peek & Toland on March 23, 2017

For years Texas has had a different way of deciding how intellectual disability is defined than much of the rest of the country in death row cases.

That definition has come under critical scrutiny by the U.S. Supreme Court in a case concerning a death row inmate who is challenging his sentence.

At the end of last year, the U.S. Supreme Court considered the case of Bobby Moore. The inmate’s intellect is clearly an issue in the case but there is disagreement between the state and his defense team about whether his intellectual disability is significant enough to avoid capital punishment.

The New York Times reported on the deliberations of the high court. Scott A. Keller, the Texas solicitor general, said the key 2002 Supreme Court decision of Atkins v. Virginia bars the execution of people who are intellectually disabled but leaves it to the individual states to draw up their own standards about who qualifies.

Court questions Texas standard of intellectual disability

Texas standards of intellectual disability in death cases are questioned

Justice Anthony M. Kennedy said he feared such an interpretation allows states to screen out defendants and deny them relief.

Moore has languished on Texas’ death row since 1980. He was convicted of the fatal stabbing of a 72-year-old Houston supermarket clerk during a robbery.

His lawyers say there is no doubt that he suffers from an intellectual disability. At the age of 13, he was unable to understand the days of the week, the seasons, and the months of the year, they say.

They claim Texas’ standards of gauging intellectual disability are woefully outdated.

What Atkins v. Virginia Says About Intellectual Disability

In the 2002 case, the U.S. Supreme Court of Atkins v. Virginia set parameters on the execution of people with intellectual disabilities.

The justices stated.

“Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.”

The Supreme Court appeared skeptical of the way Texas decides who must be spared the death penalty on account of intellectual disability, with several justices indicating that the state’s standards were either too strict or too arbitrary.

Texas executes more people than any other state. In the past, the state has ignored some very powerful arguments from defendants and their legal representatives. Over the last 12 months, the Texas Court of Criminal Appeals has halted a series of executions.

If you are charged with murder or capital murder in Texas, it’s vital to obtain experienced legal representation. Call our criminal defense lawyers today at (512) 474-4445.

Study Finds Immigrant Workers Are Not Cheap Labor

By Peek & Toland on March 22, 2017

There is a commonly held perception that immigrant labor is cheap labor and immigrant workers are paid less than their American-born counterparts.

It’s a perception that’s not borne out by the statistics, according to an article in The Atlantic.

The article looked at one of the most talked about types of visas, the H-1B program that is used to bring skilled foreign workers to the United States.

The H-1B program was intended to help companies recruit workers with difficult-to-find skills.

immigrant workers are not cheap labor

Figures suggest immigrant workers are not cheap labor

It became an issue during the presidential election when critics claimed it allows employers to hire thousands of cheap IT workers to replace American workers.

Supporters say the H-1B program is necessary to meet a skills gap and bring in the best talent from around the world. It’s used to bring over thousands of workers from India.

The Atlantic article pointed out foreign students are more likely to have expertise in STEM fields than Americans and many of them have been studying for years at universities in the United States.

As we point out on our website, these temporary visas are in high demand and companies seeking workers more enter a visa lottery.

A recent study has questioned the perception that these workers represent cheap labor from overseas.

A study released in late 2016 by economists at the University of California, San Diego, and Dartmouth College found that the average foreign worker in science and technology jobs makes only slightly less than American-born workers from the outset, equating to about 94 cents on the dollar. After working in the United States for five years, the average foreign STEM worker makes more money than the average American – $1.04 for every dollar their American colleagues make.

There are a number of theories behind these statistics. Foreign workers may acquire more work experience in the United States and study more. Another explanation is that after obtaining a green card, immigrants can end up in better-paying jobs. There’s a big disparity compared to non-STEM fields. In these areas, it takes two decades for immigrant workers to achieve equal pay with their American counterparts.

Gordon Hanson, an economist at the University of California and the lead author of the report, said the study revealed no evidence that H-1B workers were undercutting their native counterparts.

If you are seeking a visa for a foreign worker,  our Texas immigration lawyers can help you. Contact us here for more information.

Texas School District Violated the Immigration and Nationality Act (INA) by Restricting Applications to Citizens

By Peek & Toland on March 21, 2017

Government agencies in Texas and Colorado were found to have violated the Immigration and Nationality Act by restricting job applications to U.S. citizens at a recent ruling.

In later 2016, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) reached settlements that resolved claims that the Aldine, Texas Independent School District and the Denver Sheriff’s Department, violated the Immigration and Nationality Act (INA).

Stipulating that applicants must have been citizens, these departments violated anti-discrimination rules. Green card holders are not citizens but they are entitled to work in the United States.

Texas school district violated the Immigration and Nationality Act

Aldine School District breached the INA because it required non-U.S. citizens to present specific documents when they were re-verifying their employment eligibility after their original documents expired.

U.S. citizens were not required to go through the same set of hurdles. The INA’s anti-discrimination provision says employers cannot make specific demands related to documents that are based on the origin of workers or citizenship.

Under the terms of the settlement agreement, Aldine School District was hit with a $140,000 penalty.

It was also asked to revise its procedures and policies on the training of its human resources staff and to bring in a three-year program to train students and their parents about the INA’s provision against discrimination.

Sheriff’s Department Breached The Immigration and Nationality Act

The Denver Sheriff’s Department was found to have discriminated against non-citizens and fined $10,000 for hiring only citizens, Fox News reported.

An investigation found that from the start of 2015 until March 23, 2016, the department discriminated on the basis of citizenship status by requiring people who applied for deputy jobs to be U.S. citizens, in violation of the INA.

The INA’s anti-discrimination provision prevents employers from limiting jobs to U.S. citizens. There may be limited exceptions related to orders of government contract work. However, the Denver Sheriff’s Department did not benefit from an exception under the INA.

As well as paying a $10,000 fine, the sheriff’s department will have to identify applicants to deputy positions who may have been disqualified due to the citizenship requirement after Jan. 2015 and consider them again.

The department was instructed to train its human resources staff on the anti-discrimination provisions of the INA by attending an Office of Special Counsel webinar. The department was told to provide the OSC with completed I-9 forms of all new hires and all recruiting advertisements every six months for the next three years.

It will have to look again and revise any policies and procedures to comply with the INA’s provisions.

At Peek & Toland, PLLC, we can help you attain citizenship. We are also conscious of when discrimination occurs against immigrants. If this occurs, you have rights.

Call our experienced citizenship immigration lawyers at (512) 474-4445.

Stop and Frisk Changes May Figure in Trump Criminal Justice Reforms

By Peek & Toland on March 20, 2017

New president Donald Trump made some tough promises about stop and frisk laws on the campaign trail.

Now conservatives want him to make good his promises, U.S. News reports.

A coalition from the right of the political spectrum is urging Trump and his attorney general nominee Sen. Jeff Sessions to make criminal justice reform a top priority during his first 100 days in office.

U.S. Justice Action Network said it shares Trump’s emphasis on public safety. It said dangerous criminals must be jailed and addicts and people with mental illnesses dealt with via “treatment-based” programs.

stop and frisk comes under fire

Opponents of stop and frisk say more people from minorities are stopped

Timothy Head, executive director of the Faith and Freedom Coalition, who signed the letter, said his organization wants to advance criminal justice reform under the Trump administration.

Many conservative politicians anticipate action on stop and frisk.

During his campaign, Trump vowed he would be tough on crime, endorsing the use of controversial stop-and-frisk techniques. However, he appeared to qualify his comments, saying he was only referring to Chicago.

Trump paired his enthusiasm for “stop and frisk” with criticism of the Black Lives Matter movement along with a view that crime is out of control in minority areas of the inner cities.

What Is Stop and Frisk?

Policies of “stop and frisk” have been used in New York City for some time. However, black and Hispanic people were proportionally more likely to be stopped in the street than whites.

In 2013, Shira Scheindlin, a U.S. District Court judge in New York, ruled the city’s “stop and frisk” policy was in violation of the Fourteenth Amendment’s promise of equal protection because minorities were subjected to stops and searches at a higher rate than whites reported the Washington Post.

Stop and frisk means a police officer can stop a pedestrian if he or she has a “reasonable suspicion” that they committed a crime or is about to commit a felony or a misdemeanor.

The New York the Public Advocate’s office recorded 532,911 stops in 2012, down from 685,724 in 2011. The vast majority of those stops were of black or Hispanic people.

The policy has been challenged by activists. New York Civil Liberties Union stated stop-and-frisk practices raise serious concerns about racial profiling, privacy rights, and illegal stops and privacy rights. It stated:

“The Department’s own reports on its stop-and-frisk activity confirm what many people in communities of color across the city have long known: The police are stopping hundreds of thousands of law abiding New Yorkers every year, and the vast majority are black and Latino.”

As Austin criminal defense and immigration lawyers, we remain concerned about the notion of stop and frisk being extended given the implications of racial profiling and civil liberties.

Read more about our criminal defense practice here or call us at (512) 474-4445.

Woman Sues Austin Police for “Excessive Force” in DWI Arrest

By Peek & Toland on March 17, 2017

Police stops that result in DWI arrests can sometimes be challenged. Recently, a 26-year-old woman brought a civil lawsuit against Austin police alleging “excessive force” in her arrest.

In late 2016, a jury in federal court ruled against Caroline Callaway, 26, in her lawsuit claiming Austin police and Travis County jail employees used excessive force to take a sample of her blood following a DWI arrest in 2013, reported The Statesman.

Callaway sought more than $1 million to offset medical bills she said she incurred from separate elbow surgeries she said were the result of injuries inflicted by an Austin police officer. She claimed the officer jerked her hands while she was cuffed.

Austin police accused of excessive force in DWI arrest

Austin police were accused of using excessive force

In the lawsuit, Callaway also sought damages for post-traumatic stress disorder and neck pain from a choke hold.

The jury cleared the officer who made the arrest, Det. Patrick Oborski, and Sgt. Adam Johnson, who assisted in drawing the woman’s blood wrongdoing. Travis County was a co-defendant in the case.

Excessive Force Lawsuit Followed 2013 DWI Arrest

In 2015, Callaway beat a DWI charge. Her attorney alleged there was a breakdown in the jail’s chain of custody and her blood sample may have been faulty.

The lawsuit stemmed from a DWI arrest back in February 2013. Oborski pulled over Callaway on Feb. 4, 2013. He said she ran two red lights on Lamar Boulevard. Callaway allegedly told the officer she had not drank alcohol but later contradicted herself when she said she drank two beers and a shot at a Super Bowl party. Marijuana was found in her car, The Statesman reported.

Callaway alleged she faced serious trauma after the arrest. She said a mask she was forced to wear for up to 10 seconds to prevent biting and spitting gave her a panic attack.

Although many DWI arrests in Texas are routine, we hear of cases in which police officers act aggressively and try to force drivers to take tests. You have a right to refuse a blood test in Texas, and a 2016 Supreme Court case pointed to the need to police officers to obtain a search warrant before administering a blood test.

When police use intimidating tactics in DWI arrests, you may feel hopeless and not know where to turn. It’s important to hire an experienced Austin DWI attorney as soon as possible. We have helped many people who are in thus position to get their lives back on track. Call us at (512) 474-4445.

Trump’s Immigration Executive Order -– Should You Travel?

By Peek & Toland on March 16, 2017

Donald Trump’s executive order on immigration issued in January caused widespread chaos at airports and confusion.

Also known as the “travel ban,” the order was meant to keep refugees from entering the United States for 120 days. It would have kept arrivals from seven predominantly Muslim nations out for three months. The countries were Iraq, Iran, Syria, Sudan, Libya, Yemen, and Somalia. The ban on Syrians was intended to be indefinite. The order was derailed in the courts and replaced by a second order in March which removed Iraq from a 90-day travel ban, did not apply to green card holders and did not make Syria the subject of a blanket ban. Syrian refugees would be banned for 120 days, reported NBC News. Visas approved before the order were not revoked.

A Seattle-based federal district judge, James Robart, blocked major parts of the first ban on 3 February, in a ruling that permitted thousands of people to enter the country. Three judges from the ninth circuit court of appeals in San Francisco upheld Robart’s ruling. The panel said the administration failed to present any evidence that citizens of any of the seven countries carried out a terrorist attack in the US.

The immigration executive order was the “extreme vetting” Trump promised during the election campaign.

Why Trump's immigration executive order caused airport chaos

Trump’s immigration executive order caused chaos at airports

It sparked chaos, demonstrations and legal challenges. A report on CNN said the President’s team failed to run the travel ban past Justice Department officials.

There was widespread misunderstanding and confusion. The ban:

  • Impacted green card holders from the seven countries as well as those with valid visas;
  • Meant some people who were flying when the order was signed were not able to enter the United States.
  • Affected some people with dual nationalities which included passports from a nation, not on the list, were detained at airports.

The government appeared to backtrack on the ban in relation to green card holders 24 hours after the original immigration executive order was signed but suggested they would be subject to intensive vetting.

Lawsuits began to fly, and a federal judge temporarily and partially blocked Trump’s order.

Later, a federal judge in New York allowed an emergency stay for citizens of the countries included in the ban and ruled they could not be removed from the United States. A federal court in Washington issued a stay preventing travelers being detained from being returned to their home country.

In Boston, federal judges ruled officials did not have the power to detain people on the basis of the immigration executive order.

On Feb. 7, three federal judges from the ninth circuit court of appeals took evidence from lawyers from the Justice Department and Washington State about whether the judicial block on the travel ban should be lifted. They declined to lift it.

Should You Leave the County After the Immigration Executive Order?

These are confusing and difficult times for immigrants and those on visas. If you are from the seven affected countries, you should be wary of travel out of the United States, until the executive orders are clarified.

In early February, CNN reported Trump administration was easing restrictions on legal permanent residents who were initially affected by the travel ban.

The administration was reported to be close to closing an agreement with Canada. It would allow Canadian legal permanent residents with US visas to enter the United States.

This is a fast-moving situation. If you are from one of the seven affected countries, you should be careful about traveling unless you are a U.S. citizen. If you are a permanent resident, you should carry your green card with you all time. Keep a photocopy in a safe place at home. Non-immigrants who are lawfully present in the United States should also carry their documentation and have a photocopy in a safe place.

The legal framework should become clearer in the next few weeks but the legal stand-off may drag on.

Our Austin immigration lawyers can help you with questions. Read our frequently asked questions here to find out more about the firm or call us at (512) 474-4445.

Massive FBI Child Porn Sting Raises Legal Questions

By Peek & Toland on March 15, 2017

Society is shocked by online child porn and these offenses carry heavy federal penalties. However, a recent hacking operation has raised ethical concerns.

An article in Extreme Tech in December shed light on the so-called “dark web.”

Earlier in 2016, federal agents took down Playpen, an infamous child porn site. They ran a 13-day sting operation as part of International Operation Pacifier.

FBI probed child porn in operation

The article described the operation as the largest “hacking campaign” ever carried out by law enforcement officers. The server hardware of the operation was seized in an earlier operation but that did not disclose who the perpetrators were. The feds, therefore, took administrative control over the site itself using the authority of a warrant issued by Judge Theresa Buchanan, a federal magistrate.

By gaining access to the site, federal investigators were able to deploy sophisticated network investigative techniques, known in the business as NITs.

They planted malware trough Playpen to exploit thousands of people who logged into the child porn site over a period of 13 days.

Extreme Tech said federal agents effectively ran the largest known child porn site on the dark web for a period of time. Playpen was run from government servers long enough to identify scores of users. The agents recovered about 8,000 unique IP addresses in 120 different countries.

In the wake of this massive operation, more than 1,000 American citizens were arrested and charged under a single warrant.

Although the FBI’s technical experts were congratulating themselves on the success of this operation, there are some disturbing implications.

The Extreme Tech article referenced Rule 41, which recently went into effect. It enables the feds to take on sweeping search powers over computers without the requirement that a judge specify exactly whose computer is to be searched. These are “sticky legal grounds” Extreme Tech pointed out.

Government Hacking in Child Porn Operation Under Fire

Senator Ron Wyden (D-Ore.) was an opponent of Rule 41 when it was passed in 2016.

He said the Senate had done nothing to prevent a massive expansion of government hacking and surveillance.

Wyden was referencing the amended Federal Rule of Criminal Procedure, which originated from an unelected advisory committee. The Supreme Court signed it in April and it became law on Dec. 1.

Rule 41 allows judges to sign warrants that allow authorities to hack into computers outside a judge’s jurisdiction. Federal judges can issue a warrant to search multiple computers without specifying whose computer is to be targeted.

We have written before about the powers of police search under the Fourth Amendment. However, investigators are in murky waters under Rule 41 in relation to the power to search computers.

If you have been arrested for child porn or in any other sting you may have rights. Call our Austin criminal defense lawyers today at (512) 474-4445.

Texas Child Protective Services is Accused of Failing to Help Undocumented Children

By Peek & Toland on March 14, 2017

Texas’ Child Protective Services has been under fire on multiple fronts in recent years. A recent report stated the department rejected requests for help concerning at-risk undocumented children.

A report in the Texas Observer stated CPS has not helped undocumented children who are victims of crime for well over eight months.

Last April, the agency abandoned its policy of giving certifications to special immigration visas. These protect victims of crimes who help law enforcement in an investigation. Attorneys and other advocates who file on behalf of child victims were given no explanation for the sudden policy change.

Glenaan O’Neil, a regional director of immigrant victims’ services at the Texas Civil Rights Project, filed a request for a young victim of domestic violence in May. The department told her it did not process such requests anymore.

Child Protective Services is under fire

Congress set up U nonimmigrant visas in 2000. They provide protection under the Victims of Trafficking and Violence Protection Act. The U visas allow immigrant victims of crime to remain in the United States for up to four years while family members can apply for a green card.

Child protection services no longer process U visas in Texas, reports stated.

The Observer report quoted Patrick Crimmins of Department of Family and Protective Services who said the decision in April 2016, to discontinue the certifications was part of a “routine review” of the agency’s protocol, which was in place since 2010.

“The legal department instructed CPS to discontinue the practice,” he said. It concluded certifications are more appropriate for criminal investigative agencies.

Children’s advocates argued the recent ban on issuing certifications leaves an already vulnerable group in a worse situation.

Law enforcement officials like former Austin police Chief Art Acevedo have argued the anti-immigration stance of Texas Governor Greg Abbott, who opposed former President Barack Obama’s reforms, have left undocumented immigrant at increasing risk of becoming victims of crimes.

The criticisms of CPS go further than those related to undocumented children.

Child Protective Services Accused Following Killings

For decades, CPS in Texas has been criticized over underfunding failed to protect foster children from killings.

At the end of last year, the Star-Telegram reported state GOP leaders backed a request to hire 800 more workers. They agreed to grant pay raises to others.

CPS ignored threats to children in multiple instances, leading to many tragedies, according to the article.

Since 2004, a series of deaths of foster children in Texas’ privatized system led to call for change. Judges also criticized child protection services. Legislators increased funding.

The record of CPS is alarming to us as Austin family immigration lawyers. Peek & Toland, PLLC help people with immigration issues and those charged with crimes. Contact us today at (512) 474-4445.