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Gamble vs. United States (2019)

The Supreme Court handed down its decision in Gamble vs. United States (No. 17–646) on July 17 in which the Court declined to put an end to state and federal prosecutors punishing individuals twice for the same crime.

In its 7-2 decision, the Court declined to overturn the dual-sovereignty doctrine. While the Fifth Amendment guarantees that individuals may not “be subject for the same offense to be twice put in jeopardy of life or limb,” the state and federal government are considered separate sovereigns so each is permitted to prosecute individuals for the acts.

Quick Navigation
Gamble vs. United States (2019)
A Refresher on Double Jeopardy
Dual-Sovereignty in a Nutshell
The Crux of Gamble
What is a Sovereignty for purposes of Double Jeopardy?
The Petite-Policy and Double Jeopardy
Current Limitations on Dual Sovereignty
 

A Refresher on Double Jeopardy

The Double Jeopardy Clause provides no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. Generally, a person cannot be tried twice for the same crime. Take the O.J. Simpson case. O.J. Simpson, an NFL star and winner of the 1968 Heisman Trophy, was accused of killing his ex-wife and her partner. The trial gained national attention, but on October 3, 1995, a criminal jury found Simpson not guilty on both counts. In 2007, Simpson published a book, If I Did It, in which O.J. tells a purportedly hypothetical story of how he killed Nicole Brown and Ronald Goldman. This “confession” or any other new information that investigators gathered after the trial cannot be used by California for a new trial because such actions are precisely what is barred by the Double Jeopardy Clause.

Dual-Sovereignty in a Nutshell

There has traditionally been an exception to the Double Jeopardy Clause, specifically the Dual Sovereigns Exception. In Gamble, the state of Alabama prosecuted Terance Gamble for being a felon in possession of a firearm and sentenced him to one year confinement. While the state prosecution was pending, the federal government charged Gamble for the same offense, but under federal law. This federal prosecution was premised on the same facts that gave rise to his state conviction, but charged under federal law. Gamble was sentenced to 46 months on the federal case.

The Crux of Gamble

The petitioner in this case – Terance Gamble – pled guilty to violating Alabama’s felon-in-possession-of-a-firearm statute and was sentenced to one year in prison. Federal prosecutors then indicted Gamble under 18 U.S.C. § 922(g)(1) – the federal equivalent.

Gamble filed a motion to dismiss arguing he was being prosecuted in violation of the Double Jeopardy Clause of the Fifth Amendment.

The majority opinion, written by Justice Alito, can be summarized with the following excerpt, “a crime against two sovereigns constitutes two offenses because each sovereign has an interest to vindicate.”

Justices Ginsburg and Gorsuch, an odd pairing on the surface, both wrote dissents. For now, dual sovereignty still reigns over double jeopardy.

What is a Sovereignty for purposes of Double Jeopardy?

How is the term “sovereignty” applied? According to the Supreme Court, “this determination [whether two entities are separate sovereigns] turns on whether the two entities draw their authority to punish the offender from distinct sources of power.” In Heath, the Supreme Court reiterated that States draw their power from a different source than the U.S. Government. The Court also found in that case that States are separate sovereigns from each other. Thus, in the Heath case, the successive prosecution in an Alabama state court for capital murder during a kidnapping, subsequent to Heath’s conviction for the same murder in Georgia, did not offend the Fifth Amendment and was held to be Constitutional.

The Petite-Policy and Double Jeopardy

Are there practical limitations upon successive federal and state prosecutions? The answer is yes, but with a major exception. The Department of Justice’s Petite-Policy (pronounced like ‘pet it’ not ‘puh-teet’) generally bars the successive federal prosecution of a crime where a state conviction has already taken place. However, this is an internal DOJ rule and is not binding upon any Court. In U.S. v. Patterson, the Fifth Circuit clearly stated such.

“It has been clearly established that since the Petite policy is an internal rule, criminal defendants may not invoke it [the Petite Policy] to bar prosecution by the federal government. Moreover, there is a good reason for this view. To enforce the Petite policy against the government may encourage the government to abandon the policy, which could hardly be in the interests of justice. Since we adhere to the established rule that the Petite policy may not be enforced against the government by defendants, we must reject the defendants’ claim that they should not have been prosecuted because the government failed to adhere to the Petite policy.”

It is also important to recognize that the Petite-Policy is not a blanket ban upon federal prosecutions of offenses already resulting in state convictions, rather, the policy limits such federal prosecutions “ only where there are compelling reasons, and the prosecuting attorney obtains prior approval from an assistant United States attorney general.” See, Rinaldi v. United States, 434 U.S. 22, 28,(1977) (per curiam).

So, is there any case where a Court may bar the federal prosecution of a case where there has already been a state prosecution? Yes, but only in limited circumstances. The “Sham Test” has been applied by federal courts as an exception to the Dual Sovereignty Doctrine. The Fifth Circuit recognizes the possibility for this exception in a case called U.S. v. Moore, stating, “the Supreme Court suggested in dicta that there may be an exception to the dual sovereignty doctrine when one sovereign is “merely a tool” of the other in bringing a second prosecution that is a “sham and a cover” for a prosecution that would otherwise be barred under the Double Jeopardy Clause.” This rule exception is from a Supreme Court case titled Bartkus v. Illinois.

Put simply, the “Sham Test” is a test to determine if there exists a “high level of control: one sovereign must (1) have the ability to control the prosecution of the other and (2) it must exert this control to “essentially manipulate[ ] another sovereign into prosecuting.”

Ultimately, federal prosecutions for cases that are already prosecuted as state offenses are not highly common but are permissible and encouraged by the DOJ if “compelling reasons” exist. Obviously, the DOJ determines what qualifies as a compelling one. Persons who face potential prosecutions on both the state and federal levels need to understand that the systems work very differently and oftentimes encompass different sentencing implications. They also involve variations regarding evidentiary precepts. Also significant is the fact that many federal prosecutions proceed under conspiracy statutes, which trigger massive hearsay loopholes.

Defense attorneys representing persons facing potential dual prosecutions need to understand the differences between state criminal procedure and federal procedure. They need to quickly take steps to dissuade federal prosecutors from proceeding with a successive prosecution as well as determine whether the federal prosecution is simply a ruse to allow state prosecutors a second bite at the apple. Being able to quickly establish a dialogue with federal prosecutors and demonstrate that a federal prosecution is not an effective use of resources could mean the difference between facing, and not facing, a federal charge. In most instances, but not necessarily all instances, the state system would be preferable.

Limitations on Dual Sovereignty

There are, in essence, only two limits on pursuing these prosecutions. The first limitation is imposed by the states. Currently, there are at least 20 states that reject the dual sovereignty exception as a matter of state law and another 17 that put serious limitations on it. The second is the Department of Justice’s Petit policy which precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably un-vindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact.

The post Dual Sovereignty Reigns Over Double Jeopardy | Gamble vs. United States (2019) appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

Varghese Summersett
Varghese Summersett

Updated: June 20, 2019

There are a number of criminal justice bills that have passed through both the House and the Senate. Some of these have already been signed by the Governor and are already in effect. Most of them have been signed into law and will go into effect on September 1, 2019. A few have yet to be signed by the Governor. 

Here's a look at the changes (and probable changes) to criminal laws in Texas that you need to be aware of: 

2019 Legislative Update - Criminal Edition

Quick Navigation
2019 Legislative Update - Criminal Edition
House Bill 2048 - Mandatory Special Fines for DWIs
House Bill 3703 - Medical Marijuana
House Bill 446 - Brass Knuckles, Clubs, and ASP Batons Legalized
House Bill 1325 - Legalization of CBD
House Bill 2789 - Dick Pics By Request Only
House Bill 37 - Mail Theft
House Bill 902 - Assault on a Pregnant Woman
House Bill 3582 - The (Mostly) Illusory Deferred DWI Bill
House Bill 51 - Creation of Standard Criminal Forms
House Bill 2894 - Healthcare Fraud
House Bill 2625 - Fraudulent Credit and Debit Cards
House Bill 1279 - Changing Parole Eligibility Jury Instruction
House Bill 8 - Removing Statute of Limitation for Certain Sexual Assaults
House Bill 1899 - Denial of Professional Licenses After Deferred or Conviction
House Bill 2945 - Service Station Owners: Beware of Skimmers
House Bill 427 - New Punishments for Switching Price Tags
Senate Bill 550 - Allowing Nondisclosure after Judicial Clemency
Senate Bill 194 - Indecent Assault
Senate Bill 719 - Lauren's Law
Senate Bill 535 - Carrying a Gun to Church
House Bill 3490 - Expanding Harassment Statute
Senate Bill 346 - Consolidating Court Costs
Senate Bill 1802 - Enhanced Punishment for Human Trafficking
House Bill 374 - New Probation Policies
Senate Bill 306 - Public Intoxication Release Options
Senate Bill 1700 - Release Inmates Before Dark
House Bill 929 - Magistrate Military Warning

Consider this your preview to the 2019 Legislative Update as it pertains to criminal laws in Texas.

House Bill 2048 - Mandatory Special Fines for DWIs

Signed by the Governor, Effective Sept. 1, 2019

higher DWI fines

HB 2048 eliminates the so-called Driver Responsibility Program. It eliminates surcharges These surcharges have been added on to Texas residents for offenses ranging from driving without a valid license to driving while intoxciated.

(As it pertains to DWI, a first time DWI resulted in $3,000 in surcharges due to DPS, a subsequent DWI a surcharge of $4,500, a DWI with a BAC greater than .15 resulted in a $6,000 surcharge). Before you begin the applause for this effort, however, the same bill increases the fines for individuals convicted of DWIs.

In addition to the $2,000 - $10,000 fines already applicable to DWIs, individuals convicted of DWIs are required to pay:

  • $3,000 as an additional fine for the first DWI in a 36-month period;
  • $4,500 for a subsequent DWI in a 36-month period; and
  • $6,000 fine for a DWI BAC >/= 0.15.

Notice these fines are mandatory and that the fines do not provide for a range. In other words, it is a $3,000 fine, not a fine of "up to $3,000."

In order for the fines to be waived, the court must find that the client was indigent.

HB 2048 eliminates surcharges going forward and wipes the slate for any outstanding surcharge. That means any surcharge you presently owe - because of a DWI or otherwise - will be zeroed out on September 1, 2019. Going forward, you will no longer have to pay any surcharges. Additionally, if your license was suspended as a result of not paying surcharges, your license will be reinstated. If you have a pending DWI (that occurred/occurs before September 1, 2019) you will not have to pay a surcharge.

If you get arrested for and are convicted of a DWI on or after September 1, 2019, you will not have to pay a surcharge, but if you are convicted you will be subject to new and equivalent fines as discussed above.


Link: HB 2048

House Bill 3703 - Medical Marijuana

Awaiting Governor's Signature

medical marijuana in Texas

HB 3703 has made it to the Governor's desk. It would allow Board Certified doctors to prescribe low-THC marijuana for:

1. Terminal cancer.
2. Epilepsy (not just intractable)
3. Seizures
4. Multiple Sclerosis
5. Spasticity (a condition in which certain muscles are continuously contracted)
6. ALS (amyotrophic lateral sclerosis, is a progressive neurodegenerative disease that affects nerve cells in the brain and the spinal cord)
7. Autism
8. An incurable neurodegenerative disease

Redefines Low-THC cannabis as any part of the marijuana plant (or derivative or oil of the marijuana plant) that contains not more than .5 percent by weight of THC. 

Link: HB 3703

House Bill 446 - Brass Knuckles, Clubs, and ASP Batons Legalized

Signed by the Governor
legal brass knuckles are coming to texas

HB 446 amends Penal Code 46.02(a) and takes clubs off the list of prohibited weapons.

The definition of "club" remains "an instrument that is specially designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument....

H.B. 446 also amends Penal Code 46.05 to remove knuckles from the list of items that are illegal to possess, manufacture, transport, repair, or sell.

This means things like nunchucks, tomahawks, and ASP batons will be legal effective September 1, 2019.

Link: HB 446

House Bill 1325 - Legalization of CBD

Signed - Effective Immediately
legal cbd in texas

HB 1325 has passed both the House and the Senate and is awaiting the Governor's signature. The bill would legalize hemp production, remove hemp from the controlled substances act, and legalize CBD products that contain .3 percent or less THC. This would also restrict prosecutors like the Tarrant County District Attorney from prosecution of CBD (with less than .3 percent THC) cases either as felonies or misdemeanors.

Link HB 1325

House Bill 2789 - Dick Pics By Request Only

Signed - Effective September 1, 2019
dick pics against the law

Get those First Amendment challenges ready. H.B. 2789 has passed both the House and the Senate and is awaiting the Governor's signature. HB 2789 creates a new offense by added Section 21.19 to the Penal Code. This makes it illegal to send a picture or video of a sexual act, an intimate part, or a covered, but erect, penis - that is not at the request or with the express consent of the recipient. The "dick pic" bill creates a Class C offense that is punishable by up to a $500 fine.

Link: HB 2789

House Bill 37 - Mail Theft

Signed - Effective September 1, 2019

MAIL THEFT

Porch pirates beware!

HB 37 Creates a state offense for mail theft with enhancements for stealing mail from elderly or disabled individuals. Generally, stealing mail from fewer than 10 addresses will be a Class A misdemeanor; 10-29 addresses is a state jail felony; and anything over that is a third degree felony. The offenses are enhanced one level if it is shown that identifying information was taken for the purpose of committing fraud.

Link: HB 37

House Bill 902 - Assault on a Pregnant Woman

Signed - Effective September 1, 2019

ASSAULT ON PREGNANT WOMAN

HB 902 makes assaulting a woman that the accused knows is pregnant a third degree felony instead of a Class A misdemeanor.

Link HB 902 

House Bill 3582 - The (Mostly) Illusory Deferred DWI Bill

Signed - Effective September 1, 2019

the illusory DWI bill

House Bill 3582 is a bill supported by MADD for a reason - it creates the illusion of a new and more desirable outcome for first-time DWIs. The reality is there is very little practical effect to this bill other than a shortened period before the person can apply for a nondisclosure - assuming there was not an accident involving another person. A judge must require an interlock device on any DWI that is deferred, even though the blood alcohol concentration is less than .15, unless after substance and alcohol evaluation the judge rules that the use of interlock is not necessary for the safety of the community. (Probation for a first-time DWI with a BAC less than .15 currently does not require interlock as a condition.) Deferred for a DWI is considered a conviction for enhancement purposes for any future DWI allegation. The nondisclosure waiting period is two years, instead of the standard 3-to-5 years for a probated DWI. A nondisclosed DWI can still be used for enhancement purposes.

Link: HB 3582

madd supports deferred DWI

House Bill 51 - Creation of Standard Criminal Forms

Awaiting Signature of the Governor

standard criminal forms

HB 51 calls for the creation of standard forms by the Office of Court Administration by September 1, 2020 for:

  1. A plea of guilty in a felony case.
  2. A plea of no contest in a felony case.
  3. A plea of guilty in a misdemeanor case.
  4. A plea of no contest in a misdemeanor case.
  5. Trial court admonishments.
  6. Client's Acknowledgement of trial court admonishments.
  7. Waiver of discovery under 39.14
  8. Evidence disclosure receipt
  9. Plea agreements
  10. Expunction and nondisclosure waivers

The Texas Supreme Court will set a date by which these forms must be adopted by all courts.

Link: HB 51

House Bill 2894 - Healthcare Fraud

Signed - Effective September 1, 2019

healthcare fraud

HB 2894 significantly expands the Medicaid Fraud statue and creates Healthcare Fraud as a state criminal cause of action.

Link: HB 2894

House Bill 2625 - Fraudulent Credit and Debit Cards

Signed - Effective September 1, 2019

fraudulent cards criminal offense

HB 2625 creates an offense under Penal Code 32.315 for obtaining, possessing, transferring or using a counterfeit credit or debit card with the intent to harm or defraud another person. Possessing less than five items would be a state jail felony, five to nine items would be a third degree felony, 10 to 49 items would be a second degree felony, and 50 or more items would be a first degree felony.

Link: HB 2625

House Bill 1279 - Changing Parole Eligibility Jury Instruction

Signed - Effective September 1, 2019

parole eligibility

HB 1279 changes the language to be used in a jury instruction in the punishment phase of a criminal jury trial removing the language relating to good conduct time.

Link: HB 1279

House Bill 8 - Removing Statute of Limitation for Certain Sexual Assaults

Signed - Effective September 1, 2019

no SOL in sexual assault cases

HB 8 removes the statute of limitation for sexual assault cases where biological evidence was collected but has yet to be tested for DNA. The bill also creates a "Telehealth" center for Sexual Assault Nurse Exams so get ready for SANE exams that are done remotely, especially if you are in a smaller jurisdiction.

Link: HB 8

House Bill 1899 - Denial of Professional Licenses After Deferred or Conviction

Signed - Effective September 1, 2019

denial of professional licenses

If a healthcare professional is found guilty or placed on deferred for an offense requiring registration as a sex offender or if the professional is found guilty of a sexual offense against a patient, the court must inform the Texas Medical Board and DPS.

It also creates an automatic revocation or denial of professional licenses for a variety of medical professionals including dentists, dental hygienists, nurses, occupational therapists, optometrists, physical therapists, pharmacists, doctors, psychologists, social workers, and speech pathologists. It also requires licenses be denied for anyone placed on deferred adjudication or convicted of a felony offense involving the use or threat of force (think about collateral consequence warnings for individuals contemplating pleas for aggravated assault, for instance). Licenses must be denied to individuals required to register as sex offenders or who have been convicted or placed on deferred adjudication for a sexual offense against a patient. 

Link: HB 1899

House Bill 2945 - Service Station Owners: Beware of Skimmers

Signed - Effective September 1, 2019

service stations beware of skimmers

House Bill 2945 creates an offenses for disposing of card skimmers, which is aimed at owners of unattended point-of-sale terminals or kiosks. Negligently disposing of a card skimmer is a Class B misdemeanor but disposing of a card skimmer knowing a criminal investigation is under way commits a third degree felony.

Link: HB 2945

House Bill 427 - New Punishments for Switching Price Tags

Signed - Effective September 1, 2019

switching price tags

HB 427 changes the punishment range for switching price tags. The offense, formally known as "fraudulent destruction, removal, or concealment of a writing" will now be tied to the difference in the value of the new tag and the original price of the item and will follow the standard theft ladder valuations: under $100 is a Class C misdemeanor, $100-750 is a Class B, $750-2,500 is a Class A, $2,500 - $30,000 is a state jail felony, $30,000 - $150,000 is a third degree felony, $150,000 - 300,000 is a second degree felony and anything over that is a first degree felony.

Link: HB 427

Senate Bill 550 - Allowing Nondisclosure after Judicial Clemency

Signed - Effective September 1, 2019

nondisclosure after clemency

SB 550 allows offenses that have been set aside through Judicial Clemency under 42A.701 to non disclosed after a waiting period.

Link: SB 550

Senate Bill 194 - Indecent Assault

Awaiting Signature of the Governor

indecent assault texas

SB 194 creates the offense of Indecent Assault. A person commits Indecent Assault if without the other person's consent and with the intent to arouse or gratify the sexual desire of any person, they touch the breast, butt, or genitals of another person; touch another person with their butt, breast, or genitals. This offense also covers contacting another person with seminal fluid, vaginal fluid, saliva, urine, or feces. Indecent Assault is a Class A misdemeanor.

Link: SB 194

Senate Bill 719 - Lauren's Law

Awaiting Governor's Signature

capital murder 10-15 year old

SB 719, also known as Lauren's Law, amends the capital murder statute to include in the definition of capital murder the murder of a child ages 10-15. Prosecutors may not seek the death penalty for this offense, so anyone convicted only under this subsection shall receive life without parole.

Link: SB 719

Senate Bill 535 - Carrying a Gun to Church

Signed - Effective September 1, 2019

bringing a gun to church

SB 535 allows individuals with a license to carry to bring their handgun to church or other place of worship if the church has not posted a 30.06 (concealed) / 30.07(open carry) notice.

Link: SB 535

House Bill 3490 - Expanding Harassment Statute

Awaiting Governor's Signature

expanded harassment statute

HB 3490 expands the definition of harassment to include posting repeated messages on the internet, including on social media platforms.

Link: HB 3490

Senate Bill 346 - Consolidating Court Costs

Awaiting Governor's Signature

consolidating court costs

SB 346 increases the court costs for felonies from $133 to $185. For Class A and B misdemeanors, the court costs increase from $83 to $147. These changes reflect consolidation of some costs and repeal of others such as a repeal of the fees for the services of county and district clerks.

Link: SB 346

Senate Bill 1802 - Enhanced Punishment for Human Trafficking

Signed - Effective September 1, 2019

enhanced punishment range

SB 1802 increases the level of punishment for human trafficking offenses by one level.

Link: SB 1802

House Bill 374 - New Probation Policies

Signed - Effective September 1, 2019

new probation policies

HB 374 requires probation departments to adopt policies so that meetings with probationers are set after taking into consideration the probationer's work schedule, treatment, and community service. Probation departments mays allow reporting by videoconference. 

Link: HB 374

Senate Bill 306 - Public Intoxication Release Options

Effective Immediately

public intox release options

SB 306 broadens the ability of officers to release individuals who are publicly intoxicated to not only an adult who agrees to take responsibility, or a substance abuse program, but now also a facility that can admit the person to sober up under supervision.

Link: SB 306

Senate Bill 1700 - Release Inmates Before Dark

Signed - Effective September 1, 2019

inmate release before dark

SB 1700 amends the Code of Criminal Procedure to require discharge of inmates by 5 p.m. instead of 7 p.m. under most circumstances. An inmate can agree to be released after 5 pm.

Link: SB1700

Many legislative efforts died on the vine this session. It'll be two years before the legislature meets again and has another go at decriminalization of marijuana and approving medical marijuana for PTSD patients. Other notable legislative defeats include:

Dead - House Bill 2754 would have limited the instances when a police officer could arrest for a fine only or ticketable offense. A campaign of misinformation by CLEAT led to the demise of this bill despite two years of bipartisan effort.

Dead - House Bill 1139 - which would have added standards in evaluating whether a person on death row is intellectually disabled or not in light of the 2002 United States Supreme Court decision prohibiting the execution of individuals with intellectual disabilities. Without legislation to address this issue, individuals on death row must have their cases work through the court system again if they raise an issue of intellectual disability - delaying executions and increasing costs. 

The post New Criminal Laws | 2019 Legislative Update appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

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FORT WORTH – Benson Varghese, managing partner of the law firm Varghese Summersett, has been named the 2019 Outstanding Young Lawyer by the Tarrant County Young Lawyer’s Association (TCYLA).

Varghese received the award on Tuesday, May 7 during the annual Law Day Awards Dinner at the Fort Worth Club. The event, which is hosted by TCYLA and the Tarrant County Bar Association, recognizes outstanding members of the bar and judiciary.

The Outstanding Young Lawyer Award is presented to a Tarrant County attorney who has demonstrated professional proficiency and service to the profession and service to the community.

“I am incredibly humbled to stand before you and to receive this award - not just for myself but also as a member of the criminal bar," Varghese told the audience. "It's rare for a member of the criminal bar to be selected as an Outstanding Young Lawyer. I can't remember the last time it happened. Thank you for the recognition.

“If there is one thing I can tell young lawyers it is to learn from established attorneys. I had the good fortune of working with a group of attorneys right out of law school, and I learned so much from the best of the best in Tarrant County in my practice area…Don’t be afraid to take the best from your mentors – many of whom are in this room tonight.”

Varghese was one of five local attorneys who were recognized Tuesday night for their service to the legal community and community at large. Other award recipients included:

  •  Gary L. Nickelson, Blackstone Award

 

  •  Judge Wayne Salvant, Silver Gavel Award

 

  •  Bobbie G. Edmonds, Professionalism Award

 

  •  Wade A Barrow, Outstanding Mentor Award

 

At age 37, Varghese is the founder of the largest and fastest-growing criminal defense firm in Tarrant County. A former Tarrant County prosecutor, Varghese started the firm five years ago in a small 10 x 15 office. Today, Varghese Summersett occupies 8,500 square feet of space in downtown Fort Worth and employs attorneys of the highest caliber.

Varghese serves as an officer on the Board of the Tarrant County Criminal Defense Lawyers Association and is an avid supporter of a number of philanthropic and non-profit organizations, including Tarrant County Volunteer Services (TVAS), Habitat for Humanity, WORTH, Rotary Club of Fort Worth and the Fort Worth Museum of Science and History, among others. Last year, Varghese Summersett was honored with the 2018 Law Firm Pro Bono Award by TVAS for the firm’s work assisting indigent attorneys who can’t afford an attorney. And last month, the firm again awarded scholarships to students with autism and Down syndrome, an annual cause established in honor of two of the firm’s senior attorneys who have children with special needs.

On Tuesday night, Varghese was introduced at the reception by his law partner and wife, Anna Summersett, who touted his philosophy to “do what is right, every time, and do it without fear or hesitation.”

“Using that simple model, Benson quickly grew a one-person shop in a tiny rented office to the largest criminal defense firm in Dallas/Fort Worth,” Summersett told the audience. “He has since been named things like, ‘Entrepreneur of Excellence, Minority Leader in Business, Top Attorney, and Super Lawyer Rising Star.’ He pushed his firm to become the sixth fastest growing company in Fort Worth and the 782nd fastest growing company in the country.

“He does it better because he does it differently. He inspires me, our 2 month-old son, and even his adversaries across the aisle to do it better, too.”  

Varghese Summersett

Does Accident + Felony DWI = Deadly Weapon

In Couthren v. State, the Texas Court of Criminal Appeals held a person accused of felony driving while intoxicated may only be charged with using a  motor vehicle as a deadly weapon if the manner in which the defendant was driving could cause death or serious bodily injury. In this case, even though it involved an auto-pedestrian accident, the Court concluded that there was no evidence that the accident was caused by the defendant’s reckless or dangerous driving.

In Texas, a person arrested for DWI who has two or more prior convictions for DWI will be charged with DWI – Felony Repetition, a third degree felony.

Deadly Weapon Enhancements in DWIs

Deadly Weapon Enhancement

In any felony where it is show that the defendant used or exhibited a deadly weapon, the trial court shall enter a deadly weapon finding in the judgment. A motor vehicle is not a deadly weapon, per se, but can be if it is used in a manner that is capable of causing death or serious bodily injury.

DWI Accident – The Background

Donald Ray Couthren II was convicted of driving while intoxicated – felony repetition after he got behind the wheel in the early morning hours of June 16, 2012, after drinking two “Four Loko” beverages. Couthren was driving on a frontage road, just outside of Bryan, Texas, when a pedestrian walking home from a nearby bar stepped out in front of his vehicle. The vehicle struck the pedestrian and his head went through the windshield. He suffered six broken ribs, a broken leg and possibly a concussion. Couthren put the unconscious pedestrian in his vehicle and drove to a nearby house where he was subsequently arrested.

Four Loko

Reckless or Dangerous – Basis for Deadly Weapon Finding

A finding that the vehicle was used in a manner that is capable of causing death or serious bodily injury is dependent on whether the defendant’s driving was reckless or dangerous. Reckless or dangerous driving has been demonstrated by speeding, disregarding traffic signs, failing to maintain control of vehicle, fishtailing, causing property damage with the vehicle, driving on the wrong side of the road, almost colliding with another vehicle, and failing to yield to traffic. This is a fact-sensitive inquiry based upon specific testimony and the record of evidence. Furthermore, the fact of a collision and intoxication alone will not support finding of a motor vehicle as a deadly weapon.

Because this analysis is fact-sensitive, the court looked at two cases where the use of a motor vehicle in a DWI case satisfied the deadly weapon component to determine if the threshold was met in this case.

In Sierra v. State, there was no witness testimony regarding the accident, however the police conducted a thorough on-scene investigation and could determine the speed at which the vehicle was going. The Court concluded that, under these facts, a jury could have reasonably found that the defendant was speeding and failed to maintain control of his vehicle.

In Moore v. State, the defendant rear-ended a vehicle causing it slam into another vehicle in a major intersection. In this case there was evidence both that the vehicle was going fast enough to cause this double collision, as well as evidence that the defendant either failed to apply the brakes, or applied them too late to avoid impact. Here, too, the Court  found that the defendant was using his vehicle in a manner capable of causing serious injury or death.

Finally, the court, in a footnote, cites Tyra v. State, where the evidence showed that the defendant was too drunk to control the vehicle and the inability to control the vehicle demonstrated recklessness. In all three cases, there existed enough evidence to demonstrate the defendant’s intoxication caused the defendant to not be in control thereby making the vehicle a deadly weapon.

The set of facts in Couthren v. State do not present enough evidence to issue a finding that the motor vehicle was a deadly weapon. On June 16, 2012, around 2:00 a.m. the defendant was driving his vehicle on a frontage road. The defendant admitted to consuming alcohol earlier that afternoon. The victim was walking home on the right side of the road. He was leaving a bar and decided to walk because he had two DWI charges and did not want a third. As the defendant was driving, the victim stepped in front of the vehicle and hit his head on the windshield. The defendant got out of the car to inspect the body, and noticed the victim was bloody and unconscious. There were no other witnesses present or any passing vehicles. The defendant decided to take the victim to the hospital, but in lieu of immediately driving to the hospital, the defendant drove to his house to exchange cars with his girlfriend where he became involved in an altercation. It was at this point the police were called and the defendant was arrested.

The Court of Appeals noted that they were unable to ascertain the manner in which the defendant was driving moments before the victim was hit. The only evidence present in the case was that the defendant admitted to drinking alcohol and further testified that he was driving roughly 30 miles per hour when he struck the victim. The officers testified that he appeared intoxicated, and was slurring his speech and swaying. They noted that the defendant did not drive to the hospital immediately, and that his vehicle’s windshield has a spiderweb of broken glass on the passenger’s side. Finally, they testified that it appeared that the victim was hit pretty hard. The court found this evidence did not meet the threshold of being reckless or dangerous. The only direct evidence was the defendant’s testimony that he was driving 30 miles per hour. The officers did not testify about the speed limit on the road, and did not conduct an investigation of brake marks or skid marks to determine the manner in which the defendant was driving. While the officers did say the victim looked to have been hit hard, it does not demonstrate the inference of speeding like in the Moore case. Thus, the court was unable to determine the motor vehicle was a deadly weapon in this case.

As an ancillary matter, the State also alleged that the defendant’s decision not to take the victim immediately to the hospital and to drive with the windshield broken was evidence of the reckless or dangerous standard. The court quickly dispels this notion by arguing a decision to drive may be reckless but that does not make automatically the vehicle a deadly weapon. Furthermore they noted that while the passenger side of the windshield was cracked, the officers noted the driver’s side appeared to be clear enough for a person to have enough visibility to drive. The court ultimately dispensed with their second argument and found the defendant did not use a deadly weapon in his DWI charge.

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DWI Second Offense | DWI Misdemeanor Repetition in Texas

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DWI Second Offense | DWI Misdemeanor Repetition in Texas
Jail as a Condition of Probation on a DWI Second in Texas
Other Conditions of Probation of DWI Second in Texas
Bond Conditions of DWI Second in Texas
Fines for DWI Second in Texas
License Surcharges for DWI Second Convictions in Texas
DWI Second Investigation and Prosecution
DWI Second License Suspensions

DWI Second

While a second DWI  is a misdemeanor offense, a conviction for this offense carries with it significant direct and collateral consequences. 

One troubling aspect of a DWI-Second, also called  DWI Misdemeanor Repetition, is that if you are convicted of a second DWI, you are going to serve jail time no matter what - even if you are granted probation. Under Texas law, jail time is a condition of probation for a DWI-Second.

Another, even more troubling aspect, is that once you have a second DWI, any time you are suspected of a DWI in the future, you are going to be facing a felony charge.

A DWI Second in Texas is a hybrid Class A misdemeanor punishable by 30 days to a year in jail. Even though it has a unique minimum time in jail requirement, it is considered a Class A misdemeanor.

Jail as a Condition of Probation on a DWI Second in Texas

As mentioned, even a sentence of probation requires time in jail for a second DWI. If the prior DWI was within the last five years, your minimum time in jail on a probated sentence is five days. If the prior DWI was longer than five years ago, the minimum time in jail on a probated sentence is 72 hours. The most jail time a person can do as a condition of probation for a second DWI is 30 days.  The judge can impose up to two years of probation.

Other Conditions of Probation of DWI Second in Texas

You will have to complete the following conditions, and possibly more, for a DWI Second charge in Texas:

  • DWI Repeat Offender Program (DWI ROP)
  • Substance Abuse Evaluation/ Treatment Alternatives to Incarceration Program (TAIP)
  • Interlock as a Condition of Probation
  • Community Service
  • Victim Impact Panel

Bond Conditions of DWI Second in Texas

If you are charged with a DWI Second in Texas, you should expect the court will require you to have interlock installed on any vehicle you operate while you are out on bond. You should also expect the judge to add a condition that says you shall not consume alcohol while you are bond.

Fines for DWI Second in Texas

A fine of up to $4,000 will be imposed for a DWI Second charge in Texas. This is true for jail sentences and probated sentences.

License Surcharges for DWI Second Convictions in Texas

If you are convicted of a DWI Second in Texas, you should expect a $2,000 per year surcharge on your Driver License for three years, for a total of $6,000.

DWI Second Investigation and Prosecution

While the punishment range for a DWI Second is very different from a first-time DWI, the burden of proof and elements other than the prior are the same as that of a DWI first. For more information on DWI investigations and prosecutions in Texas, don’t miss this article: DWIs in Texas.

DWI Second License Suspensions

The criminal court judge may suspend your driver license for up to two years if you receive a jail sentence on a DWI Second charge in Texas. Administratively, your license will be suspended for one year if your driving record shows more than one DWI-related contact during the last 10 years.

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In the past  months, hundreds of inmates have been released early from federal prison. Some of the released prisoners were elderly or ill, but most were just non-violent offenders who have exhibited good behavior behind bars.

They are the early beneficiaries of the First Step Act, a new law aimed at ending mass incarceration, reducing recidivism, and improving prison conditions. The law marks a significant turning point in federal criminal justice reform. Here’s an overview of the First Step Act, who is impacted by this federal prison system reform, and what to expect going forward.

What is the First Step Act?

The First Step Act is an acronym for the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act. It is expected to change the lives of an estimated 30 percent of the federal prison population over the next decade by slashing sentences, curbing mandatory minimums, improving prison conditions and reducing recidivism rates. The Act was approved by both the House of Representatives and the Senate and was signed by the President late last year. It was one of the few recent bipartisan bills passed in Congress – a notable feat in a political era marred with polarization and gridlock.

Who Does First Step Act Impact?

The First Step Act does not affect the vast majority of prisoners in the U.S. It only applies to inmates in federal prison. It doesn’t apply to prisoners convicted of state crimes and housed in state prisons. Of the 2.1 million people incarcerated in U.S. prisons, only 180,000 are federal inmates.

Because it only affects the federal prison population, the Act itself has a relatively limited view in the larger criminal justice scheme. It doesn’t have sweeping effects across the criminal justice system, but attempts to move the needle towards less draconian sentencing structures.

donald trump first step act

What Does the First Step Act Do?

The First Step Act focuses on rehabilitation, rather than punishment, and reforms some of the nation’s harshest sentencing policies. It also gives more protections to women inmates and prepares inmates for life after prison. Here are some of the major provisions of the First Step Act:

  • Rewards Good Behavior.A major hallmark of The First Step Act is to initiate time credits for good behavior and participation in vocational and rehabilitative programs. In essence, prisoners will be able to participate in programs offered by the prison in order to reduce their incarceration time. In an effort to bolster these programs, the Act accounts for increased funding for vocational and rehabilitative programs — $50 million per year over the next five years — which will create greater access to education for incarcerated people seeking to prepare for success following their release.
  • Allows Sentences to Be Served Outside of Prison.The statute allows for certain prisoners to serve the last portion (not to exceed to 12 months) of their sentence at home. In some instances, inmates facing a terminal illness may also qualify for release to a palliative care facility as an alternative to prison.
  • Shortens Minimum Sentences for Non-Violent Drug Offense.Perhaps the largest change promulgated by the First Step Act is the change in sentencing structures. The Act eradicates an automatic life sentence for a person convicted of their third felony drug offense. Now, in lieu of a mandatory life sentence, a person with a third “felony drug offense” or “serious violent felony” will have a minimum 25-year sentence. In conjunction with this change, the First Step Act also changes the minimum sentence of a second felony drug conviction. As opposed to the previous regime where a person who was convicted on their second felony drug offense would receive a minimum 20-year sentence, the First Step Act reduces that number to 15 years. This reduction also applies to those with a “felony drug offense” or “serious violent felony.”
  • Eliminates stacked sentences for a first-time firearm violation.The First Step Act reduces the prosecutor’s ability to stack charges for anyone being charged under U.S.C. § 924(c) with their first criminal proceeding for a firearm violation. Historically, a prosecutor could stack charges for any crime where a firearm was involved and the defendant would be subject to more jail time. Now the defendant cannot receive a stacked charge unless they have previously been charged under § 924(c).
  • Eases Mandatory Minimum Sentences.The First Step Act has also broadened the scope of defendants who may be eligible to receive a sentence below the statutory minimum. This is known as a “safety valve” where the judge has discretion to give a sentence below the statutory minimum to an individual who qualifies.
  • Reduces the Sentencing Disparity Between Crack and Powder Cocaine.While the sentencing changes mentioned above apply going forward, the First Step Act made a substantive change to the Fair Sentencing Act of 2010, which will have retroactive effects. The Fair Sentencing act of 2010 reduced the mandatory sentencing requirement for people in possession of crack cocaine. However, the law, at the time of its enactment, did not apply retroactively. The First Step Act allows the First Sentencing Act to be applied retroactively. This means many people who are currently in prison for possession of crack cocaine, may use this portion of the Act to reduce their sentence or petition for their release.
  • Bans Shackling of Pregnant Females.While women incarcerated in the federal system makeup only 7 percent of the total population, the First Step Act also aims to keep their needs in mind. Prior to the First Step Act, pregnant female inmates were required to be shackled before, during, and after giving birth. Now, with a few exceptions, pregnant female inmates will not be restrained from the date their pregnancy is confirmed until postpartum recovery has concluded. The First Step Act also mandates that feminine hygiene products be provided to inmates.
  • Keeps Inmates Close to HomeThe First Step Act requires the Bureau of Prisons to house federal prisoners within 500 miles of their family – as long as a facility is available to meet their level of security or medical needs. This ensures that the family members of federal prisoners will have greater access to visit the members of their family that are incarcerated and removes any geographic obstacles that may be in existence.

donald trump second chance act

What’s the Second Step Act?

In April 2019, President Trump announced plans for a Second Step Ac, which will focus on helping prison inmates find employment. This chapter of legislation aims to lower unemployment among former inmates to single digits within five years. And while these are all steps in the right direction, there is still much work to be done in regard to federal prison reform.

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When do the police need a warrant to search blood in intoxication cases?

The Court of Criminal Appeals handed down State v. Martinez, answering whether the State’s testing of blood previously drawn by hospital personnel for medical purposes constitutes a search under the Fourth Amendment. 

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When do the police need a warrant to search blood in intoxication cases?
No expectation of privacy in the results of a blood test performed by hospital personnel.
?An individual has a reasonable expectation of privacy in the exercise of control over and testing of a blood sample.

In facts similar to those in State v. Martinez, in 1991 the Court of Criminal Appeals handed down the plurality opinion in State v. Comeaux that the Fourth Amendment was violated when the State obtained a vial containing blood samples and tested the sample for blood-alcohol content without a warrant.

hospital blood draw DWI

In both Martinez and Comeaux, the defendants were taken to a hospital for treatment following a traffic accident and blood was drawn by hospital personnel for medical purposes but was not tested for blood-alcohol content by the hospital. However, because it was a plurality opinion, Comeaux did not establish binding precedent and left open the question of whether blood-alcohol testing by the State constituted a search.

No expectation of privacy in the results of a blood test performed by hospital personnel.

The State in Martinez argued that State v. Hardy and State v. Huse held an individual does not have an expectation of privacy in vials of blood protected by the Fourth Amendment. In both Hardy and Huse, the State obtained grand jury subpoenas for the results of blood-alcohol tests conducted by hospital personnel. In Hardy, the Court of Criminal Appeals addressed whether the police need a warrant to obtain the results of a blood test when the blood is drawn and tested by hospital personnel for medical diagnosis. In answering the question, the Court discussed that an individual has potentially three separate privacy interests in his or her blood: the interest against the physical intrusion into the body to draw blood, the interest in exercising control over and the testing of the blood, and the interest in the results of the test.

At issue in Hardy was the interest in the results of the blood test. Reasoning that any interest society has in protecting the privacy of medical records was not sufficiently strong to require the Fourth Amendment protection of blood-alcohol testing results, the Court held that a warrant is not required to obtain the results of blood-alcohol testing performed by a hospital for medical diagnosis purposes.

Following the decision in Hardy, U.S. Congress passed the Health Insurance Portability and Accountability Act (HIPAA) designed to protect an individual’s privacy interest in medical information. In State v. Huse, the Court of Criminal Appeals took up the question of whether Hardy was still valid after the passing of HIPAA. Recognizing that HIPAA supports the claim that society recognizes a legitimate expectation of privacy in medical records in general, the Court determined that the expectation of privacy in medical records in general was not at issue because of HIPAA’s exception for information obtained pursuant to a grand jury subpoena.

Both Hardy and Huse explicitly established that an individual has no privacy interest in the results of a blood-alcohol content test but declined to determine whether a privacy interest in the exercise of control over and testing of a blood sample existed. In fact, Hardy only muddied the waters. Citing a United States Supreme Court case, Skinner v. Railway Labor Executives’ Association, the Court in Hardy noted that a blood draw instigated by the State for the purposes of testing for blood-alcohol content constitutes two discrete searches: the physical intrusion into the body and the subsequent analysis of the blood. However, while explicitly recognizing that blood analysis by the State itself is an invasion of a reasonable expectation of privacy, the Court refused to affirm the holding in Comeaux stating there “may” be a separate privacy interest in exercising control over and the testing of a drawn blood sample. Thus, the question at issue in Martinez was left largely unanswered by Hardy and Huse: to what extent does an individual have an expectation of privacy in the exercise of control over and testing over blood already drawn?

An individual has a reasonable expectation of privacy in control over and testing of a blood sample.

Under the Fourth Amendment, a search is unreasonable if it invades a reasonable expectation of privacy. A reasonable expectation of privacy includes both an individual’s subjective expectation of privacy and society’s recognition of the expectation of privacy as reasonable or legitimate. An individual’s subjective expectation of privacy is dependent on the facts of the case. However, citing Comeaux, the Court provided some guidance by noting that a person does not assume that a blood sample given for the purpose of private testing will be given to the State or for a purpose other than that intended.

 The Court went further to hold that an individual has an interest in the “private facts” in blood because blood contains information about an individual beyond the person’s intoxication and that the chemical analysis of the blood is an invasion of the individual’s privacy interest. Blood-alcohol testing was compared to a search of a cell phone, which requires a warrant due to the privacy concerns implicated by the information stored on the phone. This holding is consistent with the statement in Huse that HIPAA represents society’s expectation that private medical information should be kept free from discovery and disclosure. It is also consistent with the Supreme Court’s statement in Skinner that the chemical analysis of a blood sample following a blood draw constitutes a separate and distinct invasion of privacy. Given the private facts found in blood, the Court explicitly held that an individual has “an expectation of privacy in blood that is drawn for medical purposes.” 

The bottom line is that the law is now much clearer about what privacy interests in an individual’s blood are subject to the Fourth Amendment. The Fourth Amendment is not implicated if the State seeks to obtain the results of a blood test performed by hospital personnel for medical diagnosis purposes. On the other hand, a warrant is required to satisfy the Fourth Amendment if the State seeks to draw and test an individual’s blood. Now, after Martinez, if the State desires to test the blood-alcohol content of blood previously drawn by hospital personnel for medical diagnosis, the Fourth Amendment requires a warrant.

Act

Warrant

Case

Obtain and Draw Blood without Consent

Required

?Villareal???

Obtain Results of Blood Tested for Medical Purposes

Not Required

Huse and Hardy

Test Blood Drawn for Medical Purposes

Required

Martinez

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The Texas Court of Criminal Appeals recently went to great lengths to explain how it came to decision with a different result than the United States Supreme Court in Carpenter v. U.S.

In Sims v. State, the Court of Criminal Appeals determined a search warrant was not required when using real-time cell site location information (CSLI) for three hours to find a suspect. The Court reached this decision despite Carpenter v. U.S. where the Supreme Court found that retrieval of 127 days of historical CSLI was a violation the Fourth Amendment.

What is CSLI?

CSLI, or cell-site location information, is the data held by third parties (typically cellular companies like AT&T or Verizon) for business purposes in order to provide better service to their customers. When a person uses their cell phone to make a call, send a text, or access an application that requires the use of data, the phone connects with the cell tower, and the activity is stored. The data is retrieved and stored in cell towers. This data has the ability to provide time-stamped locations of the phone.

Because cell phones have become an integral part of everyday life, this dependency assures the location of a phone can be connected to the location of a person. The recent growth in the number of cell towers has allowed CSLI location readings to become more accurate, pinpointing a phone’s location within 50 meters.

CSLI and the Fourth Amendment

The Fourth Amendment provides that a person is free from unreasonable searches and seizures, and that you, your home, your papers, and your things are secure and protected from warrantless search.

In order to obtain a warrant, authorities must establish probable cause. The necessity of a warrant provides a safeguard from governmental intrusion on a person’s individual privacy. The question then becomes whether tracking CSLI infringes upon a person’s right to a reasonable expectation of privacy. Though providing the same information, the Supreme Court has made a distinction as to whether CSLI is real-time or historical. Real-time CSLI is used to track current situations that are unfolding, whereas historical CSLI retroactively looks to see the phone’s location at certain points in time. The bright-line parameters have yet to be fully established and the inquiry is fact sensitive.

Carpenter v. U.S. (2018)

While a more robust and detailed account of Carpenter v. U.S. can be found here, this article will discuss the parts pertinent to the discussion regarding Sims v. State.

The Court in Carpenter held the police cannot request 127 days of CSLI without a warrant, and that doing was a violation of a person’s Fourth Amendment right to privacy from unreasonable search and seizures. The Court declined to follow the Third-Party Doctrine, that a person relinquishes their right to privacy when information and documents are shared with a third party. While data stored in cell towers is held by a third party, it is not freely given in the same way as financial or bank records. Rather, the recording of physical locations are an automatic function of a cell phone any time it is turned on. The Court also noted that the number of days the police pulled CSLI, providing a complete record of the location of the phone during that time period, contravenes the reasonable expectation to privacy that is guaranteed by the Fourth Amendment. Finally, the Court highlighted the narrow nature of their holding, and that it extended only to historical CSLI, and not real-time CSLI. Furthermore, the Court noted in exigent circumstances (e.g. pursuit of a fleeing suspect, or to protect individuals who are threatened with imminent harm), an officer would be able to obtain real-time CSLI information without a warrant.

Sims v. State  (2019)

In Sims, the defendant was charged with the murder of his grandmother. She was killed by a single gunshot wound to the back of her head. The police found that the victim’s car, purse, and two guns were missing, and were assumed to have been taken by the suspects. The officers discovered the suspects used a credit card from the purse at a Walmart in Oklahoma, roughly 80 miles north of where the victim was found. The officers thought there would be probable cause to attain a warrant for CSLI, however when they returned to the office, another officer had already attained CSLI without a warrant. The officers used the CSLI data to locate and apprehend the suspects. The defendant filed a motion to suppress the CSLI data alleging that accessing the CSLI records without a warrant was a violation of the Fourth Amendment.

In determining whether obtaining real-time CSLI records violated the Fourth Amendment, the Court looked to Carpenter and determined that what mattered was not the content of the CSLI records, but rather was whether the government seized “enough” information from the records that it violated a legitimate expectation to privacy. The Court noted that there is not a bright-line rule for determining how long police must track a cell phone in real time before it violates a recognized expectation of privacy, but merely determined that threshold was not met in this instance. The Court did not distinguish between historical and real-time data, nor did it claim that this case fell under the exigent circumstances exception mentioned in Carpenter. They simply determined that three hours of real-time CSLI tracking did not invade the legitimate expectation of privacy afforded by the Fourth Amendment.

Making Sense of Conflicting Cases

Because of Carpenter’s limited scope, it may be possible to harmonize Sims with Carpenter. First, Carpenter does not address the issue of real-time CSLI. Second, the amount of data extended 127 days whereas in Sims the data was limited to three hours. While we do not know where the proverbial line in the sand is for how much data is too much, we now have two ends of the spectrum, giving us a general baseline to determine when obtaining CSLI without a warrant violates the Fourth Amendment.

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Timbs v. Indiana: SCOTUS Boot on the Throat of Policing for Profit?

The Supreme Court, in Timbs v. Indiana, recently handed down a unanimous decision that may be the death knell for "policing by profit," limiting both police and prosecutors across the country. The Court held that the Eighth Amendment protection against excessive fines, including forfeiture of property, applies to states. This holding will limit asset forfeiture in cases where the forfeiture is based on an instrumentality theory and the asset is “grossly disproportional to the gravity of the offense.”

In the underlying case, Tyson Timbs pled guilty in Indiana state court for dealing a controlled substance and conspiracy to commit theft. He was sentenced to one year of home detention, five years of probation, and was required to pay fees of $1,203. The maximum fine that could be imposed was $10,000.

When he was arrested, the police seized his Land Rover SUV, which was valued at $42,000. He paid for the vehicle with money he received from an insurance policy when his father died. The State hired a private law firm to engage in a civil suit for forfeiture of the vehicle. Timbs’ principle argument was that the value of the asset seized was grossly disproportional to the gravity of the offense, and thus violates the Eighth Amendment of the Constitution. The ultimate question for the court was whether the Eighth Amendment Excessive Fines Clause was incorporated under the Fourteenth Amendment to apply to state action as well as federal action. 

The Excessive Fines Clause and the Incorporation Doctrine

The Incorporation Doctrine articulates a principal that the fundamental rights enumerated in the Bill of Rights are incorporated to provide protection from state action as well as federal action. The Bill of Rights, in its inception, was promulgated as a safety valve from the federal government. After the Civil War, Congress ratified the Fourteenth Amendment containing language akin to the Substantive Due Process Clause in the Fifth Amendment, which protects individuals from the federal government. The Fourteenth Amendment’s subtle, yet significant, difference was that it ensured due process against state action.

Over the ensuing years, and through numerous precedential cases, the Supreme Court began to articulate a test for whether a provision of the Bill of Rights was incorporated. Ultimately the test became whether the clause was so fundamental to our scheme of ordered liberty that it ought to have protection from state action.

In determining the fundamental nature of the right in question, the Supreme Court often looks to the history and tradition of the right in question.

Until the Supreme Court case in Timbs, the clause regarding excessive fines had not previously been incorporated to provide protection against the states. This new ruling now advances that protection against excessive fines from the government is so fundamental to ordered liberty that it protects individuals from both federal and state action.

Limits on Asset Forfeiture

instrumentalities vs proceeds in asset forfeitures

This section will serve as a primer for understanding the basics of asset forfeiture. For more information on the subject, click here. Asset forfeiture is the act of the government seizing assets thought to be connected with a crime. Proceeds are the ill-gotten gains of a crime. Instrumentalities, on the other hand, includes anything used to perpetuate the crime.

 If an asset was purchased from the proceeds of a crime, or if it was used as an instrumentality in perpetuating the crime, it has the capacity to be seized by the government.

In cases where the assets are purchased from the proceeds of the crime, while an excessive fines analysis occurs, the assets are directly correlated to the gravity of the offense because the proceeds stem from the offense itself. Therefore, it is seldom, if ever, that assets from proceeds are considered excessive pursuant to the Eighth Amendment.

Assets seized as an instrumentality of the offense, however, are judged on a much different basis. This proportionality analysis occurs by taking the pecuniary value of the asset seized and comparing it to the maximum fine that could statutorily be imposed for committing the offense. Thus, if the value of the asset or property is within the monetary value of the maximum fine that could be imposed, the courts will presume that the fine is not excessive. Even when the value of the property is above the value of the maximum fine, as long as the numbers are relatively close, the courts will not declare the forfeiture excessive, and thus unconstitutional.

The Court's Rationale in Timbs

The Court looked at the history and tradition of the Excessive Fines Clause. The Court was able to trace the lineage of the clause to the year 1215, having its roots in the Magna Carta. They determined that this fundamental document asserted that economic sanctions must be proportioned to the wrong doing. They further noted that this language was present in the Virginia Declaration of Rights, which was later co-opted into the Eighth Amendment. Furthermore, by 1868, 35 of the 37 States in existence expressly prohibited excessive fines, and that currently, all 50 states do. The Court discerns the understanding historically of the Excessive Fines Clause because it is indicative as to whether the clause is fundamental in the sense that it is deserving of protection from both federal and state action.

Image of Magna Carta

Photo of one of only four surviving examples of the 1217 version of the “Magna Carta” or Great Charter.

The Court ultimately held that there was overwhelming evidence to find the Excessive Fines Clause to be fundamental to our scheme of ordered liberty. Because of this holding, the seizure of Tyson Timbs’ land rover, being grossly disproportional to the gravity of the offense, was unconstitutional.

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