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Why Even Innocent People Should Think Twice About Agreeing to Police Interrogation
Posted by: Nicole DeBorde
August 23, 2010
Topic: Rights

In the United States, as many as 80 percent of suspects waive their rights to silence and counsel, allowing police to conduct full-scale interrogations. Researchers estimate that innocent Americans confess to crimes in potentially hundreds of cases each year. If you have been falsely accused of a crime but are in fact not guilty, think twice about agreeing to speak with an officer and attempting to maintain your innocence. Instead, remember your Constitutional rights and ask for a lawyer both early and often to properly preserve your rights and protect yourself from abusive, but perfectly legal, police interrogation techniques.

But, why would you need a lawyer if you didn't commit a crime? If you are innocent, what harm could come from agreeing to speak with police? Right? Wrong. Police interrogate you because they want you to confess. A confession is powerful evidence in a trial and can support a finding of guilt even in the absence of corroborating evidence. In fact, police may question an innocent person more fiercely than a guilty person because they lack other incriminating evidence against the innocent. If they actually had a strong case against you, then they wouldn't need your confession.

Confessions are so powerful that a jury might not care how the confession was obtained or might not realize that the State's or government's case is not very strong without that confession. Juries are less concerned with the tactics used to get someone to confess than they are with the fact that the person "admitted" guilt.

If the police lack incriminating evidence to link someone to a crime, it is perfectly legal for them to "make up" evidence for purposes of their interrogation. That's right: The police can legally lie to you and trick you into confessing. Their theory is based on the their mistaken concept that an innocent person would never confess to a crime they did not commit.

But, in fact, innocent people do confess, and do so for many reasons. The police are much better trained at getting people to confess than innocent people are trained to defend their innocence. Being accused of a crime and questioned by someone who thinks you are guilty is a very stressful situation. After prolonged questioning, many people just want the uncomfortable situation to end. Often, they begin to think that confessing is their only way out.

Before you agree to talk with a police and waive your right to silence, think about what police are taught to do during an interrogation. Police can use the following tactics to beat down even the most confident people:

• Cops are trained to try to get around assertions of the right to counsel by continuing to talk to the innocent person, sometimes for hours and hours or even on different days;
• Cops are trained to keep inquiring when an innocent person says he doesn't want to talk to them;
• Cops are trained not to accept statements such as "I didn't do it" in order to keep inquiring until the person inculpates himself;
• Cops are legally allowed to lie about the evidence. For example, cops are legally permitted to claim that DNA links a person to the crime when DNA does not exist;
• Cops are legally allowed to trick an innocent person, such as by claiming that an individual near and dear to them is in another interrogation room that very minute saying that the person is guilty;
• They are legally allowed to ask the innocent person to imagine how the crime might have been committed and then later, at trial, say that the innocent person must have committed the crime because they described how it could have happened;
• They may even go so far as to threaten to take other legal action - such as threatening to take away an innocent person's children - if the person refuses to confess to guilt.

Do not be tricked into giving up your Constitutional rights. If you are arrested, you have the right to remain silent and the right to speak with an attorney. If a person in custody unequivocally invokes these rights, interrogation by the police must immediately cease. If you do decide to talk with police, remember it is good judgment to have an experienced attorney by your side!

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Changes to Texas DWI Laws May Be Ahead
Posted by: Nicole DeBorde
August 23, 2010
Topic: DWI Issues

Over the past 20 years, Texas has taken many steps to crack down on drunk driving. But according to some, several of these measures have caused more harm than good. Among those dishing out criticism are police officers and criminal prosecutors. According to one congressman, "Some of the changes we made in years past have had untended consequences that we're just now finding out about." In response to sharp criticism, Texas lawmakers are considering a revision of Texas's drunk driving laws, with a focus more on treatment of alcohol abuse, and less on fines, surcharges, and license revocation.

One proposed change is the repeal of a surcharge that can cost drunk drivers $3000 for their first conviction, and $4500 for their second conviction. These civil penalties are in addition to the fines and costs that normally accompany criminal charges. These additional surcharges were intended to help pay for trauma care in Texas. However, many people cannot afford to pay. Those who cannot pay cannot reinstate their driver's license. This leads many people to drive without licenses and insurance, causing them to break additional laws.

This problem is amplified by the State's automatic license revocation program. Some believe that this program has little practical effect and that its alteration, or even elimination, would not have much of an impact on the system. As such, this provision is being reviewed as well.

Texas lawmakers are considering adding new programs in addition to revisiting the old ones. Several Texas senators agreed that one option should be mandatory treatment programs for first-time DWI offenders. The programs are intended to help the offenders stop drinking and thus attack the problem at its roots.

Another program that is being considered is the increased use of roadblocks at "sobriety checkpoints." Texas politicians have been hesitant to allow such checkpoints, although they are currently in place in 39 other states. Also under consideration is expanded use of the Texas "no-refusal program." That program allows police to get an expedited search warrant and then draw blood from suspected drunk drivers.

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The not so Perfect Breath Test: To Blow or Not to Blow
Posted by: Nicole DeBorde
June 24, 2010
Topic: DWI Issues

People arrested for DWI are quick to question their breath test readings. As it turns out, they may beon to something . . .

Texas law sets the limit for driving while intoxicated at .08% Blood Alcohol Content (BAC). Breath tests (sometimes called "breathalyzer" tests or more correctly "intoxilyzer" tests since that's the latest machine in use) are the most common method used by police to determine whether a driver has breached this limit. In many cases, breathalyzer results are the strongest evidence the State has against an individual charged with DWI. Thus, Prosecutors would like juries to believe that the results of breath tests are always accurate. This is not a difficult task because the scientific nature of these tests can lead juries to believe that they are not susceptible to human error. As a result, juries might place a disproportionate emphasis on whatever number the machine spits out. Considering the power of breath evidence, one would hope that the results are reliable. Unfortunately, those numbers are not always correct.

In fact, many things can throw off a breath test reading. The internet is rife with articles and websites describing the inaccuracies of breath testing. Some relate to problems with the basic science involved. Others relate to how the machines are stored and how the tests are administered by police. One common thread runs through many of these issues: the necessity of human intervention at key stages in the process.

One of the key stages where human imperfection can have extreme consequences is in the calibration of the breath testing machines themselves. Just ask the citizens of Washington D.C. Last week authorities there discovered that about 400 people were convicted of DWI based on inaccurate breathalyzer results. About half of those convicted spent time in jail. On average, those confined spent five long days in the slammer.

The source of the problem was human error in the form of an inaccurate baseline, which tainted every single breathalyzer used by D.C. police. The badly calibrated equipment resulted in BAC readings that were at least 20% higher than they actually were. For example, a real BAC of .07%, which is below the legal limit in Texas, would have resulted in a reading of 0.84% and likely an arrest and conviction.

As with any major life decision, there are many factors to consider before deciding to submit to breath testing. Before you commit to blow or not, take into consideration the potential inaccuracies of the system. Attorneys who practice criminal law know that the results of these tests are far from perfect. A seasoned defense attorney can attack the State's case by pointing out the human and other imperfections associated with breath tests. If you have been accused of DWI, and you believe that the breath test readings were inaccurate, please don't hesitate to give us a call.

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The Erosion of Rights
Posted by: Nicole DeBorde
June 02, 2010
Topic: Rights

In a recent decision, the Supreme Court delivered a blow to one of our constitutional rights. Berghuis v. Thompkins (08-1470). According to the 5-4 decision, a suspect must unambiguously invoke his 5th amendment right to remain silent. In other words, a person must explicitly invoke the right to remain silent by not saying anything at all or, counter-intuitively, speaking only to say that he wishes to invoke the right. Any other statement, no matter how short or trivial, can be interpreted as a waiver of the right to remain silent. In the Thompkins case, a shooting suspect remained silent after being given his Miranda warning. At the end of a three-hour interrogation, in which he remained silent, he simply said "yes" in response to the question of whether he prayed for forgiveness for the shooting. The federal circuit court suppressed his confession and overturned his conviction. The Supreme Court, however, reversed the circuit court on the grounds that the suspect waived his right to remain silent when he knowingly and voluntarily made a statement to police. Shockingly, saying a single word in response to three hours of police questioning is enough for the Supreme Court to declare that a person's 5th amendment right to remain silent has been waived. Thompkins underscores the fact that now more than ever it is important to have a zealous advocate fighting for your rights. As judicial decisions are eroding our constitutional rights, it is imperative to have a tough, experienced lawyer on your side.

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Science Fiction or Fact?
Posted by: Nicole DeBorde
April 08, 2010
Topic: Expunctions

Never judge a book by its cover and certainly never take anything at face value are not only mottos to live by but they are how we practice law at The Deborde Law firm. With the advent of crime shows such as CSI and Law and Order, the public has the mistaken impression that every crime can be explained away through science and experts. In fact, one gentleman was convicted based upon an expert's opinion of his blue jean print. Sadly, he spent years in jail before DNA analysis proved his innocence. According to the Innocence Project, of the 252 DNA exonerations since 1989, half of the convictions were based upon un-validated or improper forensic evidence. That number is unacceptable and shameful. Here, we don't take things at face value and in fact, we will challenge everything that we possibly can in order to obtain the best result for our clients. For example, in sexual assault cases, we tirelessly research all experts and their opinions. Just because someone says they are an expert doesn't make it so. Many times, a good bit of background work can have the desired effect upon the outcome.

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