Presented by: Bronson Tucker General Counsel TJCTC

Transcription

1 Presented by: Bronson Tucker General Counsel TJCTC

2 This presentation will cover topics such as: Magistrate Warnings of persons in custody, Bond Conditions, Reasonable Suspicion/ Probable Cause, SFST/DRE

3 Warning Defendants of Their Rights and Setting Bail

4 The Texas Code of Criminal Procedure Article 2.09 defines a Magistrate as;

5 Each of the following officers is a Magistrate within the meaning of this Code: The Justices of the Supreme Court, The Judges of the Court of Criminal Appeals, The Justices of the Courts of Appeals, The Judges of the District Court, The Magistrates appointed by the Judges of the District Courts of Bexar County, Dallas County or Tarrant County that give to criminal cases, the criminal law hearing officers for Harris County appointed under Subchapter L, Chapter 54, Government Code, the Magistrates appointed by the Judges of the Dallas or Tarrant County, The Masters appointed by the Judges of the District Courts and the County Courts at law that give preference to the criminal cases in Jefferson County, the Magistrates appointed by the Judges of the District Courts and the statutory County Courts of Williamson County, the Magistrates appointed by the Judges of the District Courts and Statutory County Courts that give preference to Criminal Cases in Travis County, the County Judges, the Judges of the County Courts at law, Judges of the County Criminal Courts, the Judges of Statutory Probate Courts, the Associate Judges appointed by the Judges of the Statutory Probate Courts under Subchapter 54, Government Code, THE JUSTICES OF THE PEACE, the Mayors and recorders and the Judges of the Municipal Courts of Incorporated cities or Towns.

6 The Texas Code of Criminal Procedure Article 2.10 defines Duty of Magistrates as; It is the duty of every Magistrate to preserve the peace within his jurisdiction by the use of all lawful means; to issue all process intended to aid in preventing and suppressing crime; to cause the arrest of offenders by the use of lawful means in order that they may be brought to punishment.

7 Section 19 of Article 5 of the Texas Constitution provides that: Justice of the Peace Courts have original jurisdiction in criminal matters of misdemeanor cases punishable by fine only and such other jurisdiction as may be provided by law.

8 In other words; The Justice of the peace is the Legal Jurisdiction closest to the average citizen.

9 When an officer makes an arrest, or person having custody of the arrested person, how long does the person in custody have before he has to be brought before a Magistrate? A) When ever they want to or have time B) No later than 24 Hours C) Without unnecessary delay, but no later than 48 Hours after the person is arrested

10 C) Without unnecessary delay, but no later than 48 Hours after the person is arrested

11 Can the Magistrate conduct the magistrate warning by closed circuit television? YES

12 Can the Magistrate conduct the Magistrate warning by phone because you just don t have time to go the jail to conduct the warning in person or by closed circuit television? NO

13 Under Article (a); The arrested person may be taken before the magistrate in person or the image of the arrested person may be broadcast by closed circuit television to the magistrate.

14 The requirements of providing an accused with these warnings was mandated by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966). Miranda has since been incorporated in the statutes of every state; in Texas it is found in the Code of Criminal Procedure. (Art , V.A.C.C.P.)

15 Art (a) (continued) If necessary to provide more expeditiously to the person arrested the warnings described by this article, before a magistrate in a county bordering the county in which the arrest was made.

16 When warning the arrested person of their rights, what shall be informed? 1) The magistrate shall inform in clear language the person arrested, either in person or by closed circuit television, of the accusations against him and of any affidavit filed therewith,

17 2. of his right to retain counsel, 3. of his right to remain silent, 4. of his right to have an attorney present during any interview with peace officers or attorney s representing the state, 5. of his right to terminate the interview at any time, 6. and of his right to have an examining trial.

18 7. The Magistrate shall also inform the person arrested of the person s right to request the appointment of counsel if the person cannot afford counsel. 8. The Magistrate shall inform the person arrested the procedures for requesting appointment of counsel.

19 9. if the person does not speak and understand the English language or is deaf, the Magistrate shall inform the person in a manner consistent with Articles and 38.31, as appropriate. (Article deals with Appointment of interpreter when the English language is not understood) (Article deals with Interpreters for deaf person)

20 10. The Magistrate shall ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided at the same time.

21 11. If the person arrested is indigent and requests appointment of counsel and if the magistrate is authorized under Article to appoint counsel for indigent defendants in the county, the magistrate shall appoint counsel in accordance with Article

22 (and) If the Magistrate is not authorized to appoint counsel, the Magistrate shall without unnecessary delay, but not later than 24 hours after the person arrested request appointment of counsel, transmit, or cause to be transmitted to the court or to the courts designee authorized under Article to appoint counsel in the county, the forms requesting the appointment of counsel.

23 The Magistrate shall also inform the person arrested that he is not required to make a statement and that any statement made by him may be used against him. The Magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall, after determining whether the person is currently on bail for a separate criminal offense, admit the person arrested to bail if allowed by law.

24 The recording shall be preserved until the earlier of the following dates: (1) the date on which the pretrial hearings ends; or (2) the 91 st day after the date on which the recording is made if the person is charged with a misdemeanor or the 120 th day after the date on which the recording is made if the person is charged with a felony. The counsel for the defendant may obtain a copy of the recording on payment of a reasonable amount to cover the cost of reproduction.

25 Bail on warrantless arrests 24 hours/$5000 misdemeanor 48 hours/$10000 felony Only if no determination of probable cause

26 Bail is the security given by a defendant that the defendant will appear before the court and answer the accusation brought against the defendant. {Art }

27 The purpose of bail is to obtain the release of the defendant from custody and to secure the defendant s presence in court at the time of trial. {Ex parte Milburn, 8S.E. 3d 422, 424 (Tex. App. Amarillo 1999, no pet).}

28 There are no fixed rules for setting the amount of bail. In exercising discretion concerning the amount of bail, the court, judge, magistrate or officer taking the bail must be governed by the Constitution and by the following rules:

29 1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with. 2. The power to require bail is not to be so used as to make it an instrument of oppression. 3. The nature of the offense and the circumstances under which it was committed are to be considered in determining the bail.

30 4. Ability to make bail is to be regarded, and proof may be taken upon this point. 5. The future safety of a victim of the alleged offense and the community shall be considered. 6. Additionally, the Constitution prohibits excessive bail. [Tex. Constitution. Art 1, 13).

31 The proper amount of bail rest largely in the discretion of the trail judge. In exercising this discretion, the judge may be guided by such considerations as: 1. The defendant s criminal record; 2. The nature of the offense and the circumstances under which it was committed; 3. The ability or inability of the defendant to make bail.

32 If you are responsible in setting the bail amount for arrested persons in your county, visit with your County or District Attorney and County or District Court Judges to determine a guideline for bail.

33 Reason for the initial stop Reason to believe a crime has been committed SFST/DRE information

34 Transportation Code, Chapter 724 Discretionary for police officer UNLESS 1)Chapter 49 Penal Code arrest; 2) collision caused by driver; 3) death or serious bodily injury of non-driver; AND 4)person refuses to voluntarily give specimen

35 Refusal is admissible in prosecution Person incapable of refusal has not withdrawn their implied consent

36 Evidentiary search warrants Art , CCP JPs only in counties (i) In a county that does not have a judge of a municipal court of record who is an attorney licensed by the state, a county court judge who is an attorney licensed by the state, or a statutory county court judge, any magistrate may issue a search warrant under Subdivision (10) or Subdivision (12) of Article of this code.

37 OR, any attorney magistrate may issue a warrant for blood to determine if someone was driving while intoxicated.

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39 New Laws HB 423 (modifying Sec ). Changed Coroner s Report to Report of ME or Justice of the Peace Shall submit a report before the 11 th day of each calendar month Detailing the deaths of any person who died in the jurisdiction in the preceding calendar quarter

40 Report must contain: Name of deceased Whether they were operator, passenger or nonoccupant Date of accident County in which it occurred Name of any facility that conducted tox testing on deceased

41 Must also contain: Results of tox testing Send report to crash records bureau or any other office that DPS designates

42 If tox results are not available on date of report, you shall: Submit a report stating toxicological test results unavailable ; and Submit a supplement as soon as practicable after the results become available DPS must provide forms

43 SB 766 Moved the reporting requirement to TxDOT, but they use DPS employees Department tabulates the reports sent in and at least annualy publish stats No later than December 15 of even numbered years submit to gov and leg abstract of previous 2 years, ending Aug 31 and make conclusions, recs and findings

44 New laws DO NOT indicate when you must order toxicology testing Public safety vs limited budgets DPS accredited laboratories

45 Famous actor found dead in his apartment. He is 28 years old, and in apparent good physical health. Bottles of prescription pills found in general vicinity as is a rolled up $20 bill.

46 One car accident. Driver is 33 years old. Driving 1998 Ford pickup. Accident occurred at 2:15 AM. Multiple empty Bud Light cans in bed of pickup. Truck left road and struck a tree, DPS estimated speed at 65 mph. Conditions dry and clear.

47 What if the accident occurred at noon? What if the driver was 87 years old? What if the driver killed a pedestrian?

48 Professional wrestler found dead via hanging by his weight machine. In other rooms, his wife is dead with bruising on her back and her neck. Also, his 7 year old son is dead in his bed.

49 Who is your boss? Who can your decision be appealed to? What is your ultimate role?

50 BENEFITS Puts magistrate and trial court on the same page Ensures a consistent voice Increases chances of defendant success Decreases/eliminates bond hearings for trial court Answers question of Who is responsible?