Posted By Bristol Myers on December 27, 2009

The law firm will be open during limited hours over the holiday season.  Please call ahead to confirm someone will be in the office to receive you if you have business you would like to attend to in person, as we may be opening late or closing early during the weeks of Christmas and New Year’s.

If you have a legal emergency, please call and leave a voice mail in my mailbox.  My response will be sure, if not immediate.  I hope you have had a Merry Christmas, and I wish you all the best in 2010.

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Bristol Myers is a criminal defense lawyer in Austin, Texas.  He is Board Certfied as a specialist in Criminal Law by the Texas Board of Legal Specialization.

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Posted By Bristol Myers on October 8, 2009

I was the only lawyer from Travis County who passed the test last year.

About a year ago, I took the exam to become Board Certified as a Criminal Law Specialist by the Texas Board of Legal Specialization.  Only half of the criminal lawyers who took the test were able to pass it.

As of last year, out of all the 80,000 or so attorneys (that’s ALL lawyers, not just criminal) in the State of Texas, only 841 were Board Certified in Criminal Law.  That’s about one percent, and a large number of that one percent are prosecutors now or have spent some portion of their careers prosecuting, sending people to jail and prison.

That’s no surprise.  Prosecutors get to spend plenty of time in the courtroom.  But it’s difficult to garner the trial and appellate experience required to even take the exam if you’ve spent your entire career on the side of defending the accused, as I have…unless you’re as tenacious as I am in the defense of my clients.

Non-board-certified lawyers, when asked, will tell you there’s no difference beyond “taking a test” and “doing some extra continuing education.”  Really?  If it’s so easy, why haven’t they gotten certified?  Perhaps they lack the experience to sit for the exam or the knowledge to pass it.  But even worse, maybe those lawyers don’t care enough–about themselves, their careers, the criminal law, or their clients–to take the time to do what it takes to get certified.

For me, board certification reflects a deep and ongoing commitment to the study and practice of criminal law.  If prosecutors are doing what it takes to get certified, why would you even think about coming to court with a defense lawyer who wasn’t?

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Posted By Bristol Myers on August 30, 2009

My advice?  If you are facing criminal charges…or if you might be involved in litigation of any sort…get off Facebook, MySpace, Twitter, and any other social media you are currently using.

This article from Texas Lawyer writer Miriam Rozen reinforces the point that the life you’re exposing to all your “friends” can and will be used against you in a court of law.  Sadly, the article points out that some lawyers (who should know better) can’t seem to avoid getting caught up in the mix.

One of the first things I do in cases where there is a person claiming to be a “victim” of a crime is a little light cyberstalking.  It is amazing what you can find out about a person online, but nothing is better than having a victim or hostile witness in a criminal trial confess the entirety of their sordid life on a social media site.

Case in point:  A couple of years ago, when MySpace was the hottest thing, a client came to me charged with Aggravated Assault with a Deadly Weapon.  A bar fight broke out involving several female acquaintances of the members of a local collegiate athletic team.  During the melee, one of the ladies sustained a deep cut which she attributed to my client smashing a beer bottle on the table and using the jagged remains to slash her.  Using information we gleaned from her MySpace page, we were able to show that the “victim” (who listed her employment as “Grade A Bitch” and who repeatedly referred to herself as a “thug”) in fact had a considerable axe to grind against my client.  This, in combination with certain physical evidence, supported our position that the “victim” cut herself on broken glass while fighting on the floor.

The difference?  As originally charged, my client faced 2-20 years in prison for aggravated assault.  Thanks to MySpace, she paid a small fine on a ticket for Disorderly Conduct-Fighting in Public.

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Bristol Myers is a Criminal Lawyer in Austin, Texas, and is Board Ceritifed in Criminal Law by the Texas Board of Legal Specialization.

Category: Criminal Law | No Comments »
Tags: Criminal Law, Criminal Trial, Evidence

Posted By Bristol Myers on August 18, 2009

This is a heart-breaking story from the Austin American-Statesman. A father is being prosecuted for child endangerment after his infant son died from hyperthermia in his car.

 The remainder of this father’s life will be lived as an apology to his son.  What is gained by prosecuting him?  Will branding this man a criminal make you a more conscientious parent?  The Williamson County District Attorney seems to think so.  He’s apparently dissatisfied with the fact that the Austin Police Department took time to investigate the case before referring it for prosecution.  He thinks getting Mr. Hu charged immediately would “send a message” about child safety.

Do we really need parenting tips from the Wilco DA?  And is it fair that his grand message comes at the price of imperiling this poor father’s freedom?

At some point every one of us has been just as culpable as Mr. Hu.  Parenting is no easy task, and the risk of harm is everywhere.  A baby gate left unlatched at the top of the stairs while hauling down a load of laundry, an electric socket without an outlet cap, visiting the un-baby-proofed home of a friend or relative…all it takes is a split second for the worst to happen.

Our law says the job of Texas prosecutors is to seek justice, not convictions.  Justice in this case should be tempered with mercy, and this father should be left to grieve in peace.

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Bristol Myers is an Austin Criminal Defense Lawyer.  He is Board Certified as a Criminal Law Specialist by the Texas Board of Legal Specialization.

Category: Criminal Law | 1 Comment »
Tags: Child abuse, Criminal Law

Posted By Bristol Myers on August 16, 2009

A good friend reminded me that dove hunting season is just about two weeks away.  In that spirit, take a look at this brief article from our friends at the Wall Street Journal Law Blog.

http://blogs.wsj.com/law/2009/08/13/for-exxonmobil-the-bird-is-now-a-criminal-word/

It is yet another example of over-criminalization of our laws and over-federalization of our criminal jurisprudence. Granted, Exxon has a bad environmental track record and makes an easy target in light of the Valdez spill.  But more shocking is the side note that a power company was shaken down by the feds for birds killed on its power lines.  How in the world is an electric company supposed to keep birds from sitting on its power lines?!

If I were the defense lawyer for PacifiCorp, I’d have considered cutting power to all govermental customers during the plea negotiations.  Maybe toss in a few rolling blackouts to rile up the electorate while we’re at it.  But I disgress…

To be fair, the MTBA (the law at issue) should require some culpable mental state.  In these cases, there is no evidence that either company did anything wrong.  Nor is there evidence that either company intended any harm to the birds.  Strangely, the law doesn’t require any real wrongdoing.  You are strictly liable for the death of a migratory bird.

Strict liability has no place in criminal law.  As this law is written, even the most zealous animal lover could be prosecuted for a federal crime should the family pet happen to drag home a migratory bird.

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Bristol Myers is an Austin criminal defense lawyer and is Board Certified as a specialist in criminal law by the Texas Board of Legal Specialization.  He loves migratory birds, especially grilled with jalapeno and bacon.  He hates overreaching by federal prosecutors.

Category: Uncategorized | 1 Comment »
Tags: federal criminal law

Posted By Bristol Myers on August 12, 2009

“Every case is different.”  Usually criminal defense lawyers tell that to folks to downplay previous successes.  Sometimes, as in today’s case, it’s a reminder to stay aggressive.

It was just about the worst kind of DWI: the client wrecked into a pole and blew over twice the legal limit.  The airbags had deployed, so I figured I might be able to argue the high breath score was from particulate matter inhaled by my client during the collision.

“I heard you got a 20-minute Not Guilty verdict from a jury on a DWI with a .17 blood test,” the client said.  “Yes,” I replied, “but every case is different.”

Indeed, the cases are different.  Before, I had a client who looked perfect on the video, and now I had a client who (according to the police) failed the field sobriety tests miserably.  And there was no car accident in the other case.  What to do?

I filed a motion to suppress the breath test and the field sobriety tests and set it for a hearing. At best, I figured that the hearing would be  a good warm-up for trial: a chance to see how the cops acted on the witness stand.  Then the unexpected occurred.

The first officer on the scene testified that he didn’t notice any signs of intoxication in my client.  He said my client just seemed shaken up from the accident.  The second officer (the one who said my client failed his field tests so badly), well, he fell apart under my cross-examination.  Did my client appear obviously intoxicated at first glance?  No.  Did the officer see any signs of intoxication before administering the field tests?  No.  Had he talked to EMS about my client’s possible injuries? No.  Did it ever occur to him that my client might be injured and not drunk?  No.  And so it went…until the judge granted my motion to suppress: no field tests, no breath tests.  The proseuction now has no evidence to use at trial, and the case will have to be dismissed.

The lesson?  Every case is different.  This “bad DWI” was different from most other collision/high breath test cases I’ve handled.  The difference came from the witness stand, and it would have never been discovered had my client pled out and denied me permission to be aggressive.

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Bristol Myers is an Austin Criminal Lawyer and is Board Certified as a specialist in Criminal Law by the Texas Board of Legal Specialization.

Category: Uncategorized | 2 Comments »
Tags: Criminal Law, DWI, Pre-trial motions

Posted By Bristol Myers on August 10, 2009

I’m opening my blog with a solution to a fairly common problem.  The call to my office starts something like this:  “I’m on probation, and I picked up (another) DWI.  Should I tell my probation officer?  Am I going to jail?  What do I do next?”

First, check your conditions of probation.  Most Texas counties require that you report your arrest to your probation officer within 48-72 hours.  Consuming alcohol and getting arrested are two violations.  Don’t add a third by not picking up the phone.  If your conditions require it, call your P.O., report your arrest, but DO NOT admit drinking or otherwise discuss the details of your case with your P.O.

Second, understand that a motion to revoke your probation and a warrant for your arrest are inevtiable, at least initially.  Most adult probation departments in Texas automatically move to revoke for a new arrest.  However, unless you are on felony probation, you are likely entitled to a bond on the motion to revoke.  Your lawyer can help you navigate the bonding process.

Finally, clean up any outstanding “technical” violations.  If you are behind on supervision fees, fines or court costs, pay them up.  If you lack community service hours, get caught up.  Finish any classes or counseling that you can.

These simple steps will have you and your lawyer well-positioned to argue for reinstatement on probation (or at least some intermediate sanction short of revocation), particularly if the new DWI case is weak.

Category: DWI | No Comments »
Tags: DUI, DWI, Probation