Wednesday, June 10, 2009

Fake driver's license in Texas - watch out!

I recently had a client charged for having a fake driver's license which she used to get into a club (which allowed her to buy drinks.) The State, as they do from time to time (to time to time) overcharged her. What do I mean by that? They charged her with a crime higher than they were allowed to charge her by law.

Texas law provides a pari materia rule which says, essentially, that if there is a general charge that can fit an act, and there is a specific charge that also fits, the charge must be the specific one. Sometimes it is a higher charge & sometimes it means a lower charge - but that is the rule. That makes sense, right? Why would the legislature make the specific law if they didn't want it followed - right? (Don't get me started on that. . . )

Unfortunately for this girl, a night on the town ended up much worse than it should have. The girl put money on the bar while she awaited her (illegal - yes) drink. It was quite crowded. A woman down from her reached over & took the money. Apparently the woman was a regular, and she denied the theft. An argument ensued and the bouncers, who knew the thief, decided to recheck client's identification. This act led to the discovery of a flea market i.d. & the calling of the local blue team.

Now, because the girl was under 21 & had not been convicted of this (or any) offense before, she should have been charged with a Class C misdemeanor. (This is the LOWEST level offense in Texas - it like a traffic ticket, for Pete's or Sally's or whoever's sake!) Instead, the officers & whomever was working intake at the district attorney's office did NOT know the law, and she was charged with tampering with a government document - a FELONY.

(You would think that officers working the night shift might run up on this activity on more than a few occasions but in their defense - the prosecutor is supposed to be there [as I understand it - having never been a prosecutor] - to tell the officer what is a good arrest, etc., including what the offense is.)

So, down to the jail she goes. What effect did the lack of knowledge of the law have on this girl? A much, much, much higher bond, & of course there are the attorney fees which are generally higher depending on the case &, for me, the court in which the case fell. [I tend to charge a higher fee to represent clients who are in courts where I know I'll be treated like - uh - crap because I'm not Wal-Mart & I can.]

(I won't disclose the fee but she is LUCKY she found ME.)

I did some research, copied the law & went to take it to the prosecutor in court. He had no idea what the law was and had ALREADY SENT IT TO GRAND JURY to be presented as a felony. WHOA. In fact, he told me that it was going to be presented THAT very day.

SO, I run (literally) down to grand jury where they tell me the case is NOT at the minute unless the ADA "in there with the grand jury" has it - nope, can't interrupt but I can run to another floor (which anyone who knows the Harris County Criminal Courthouse knows means running to wait forever for an elevator to come) & trot to the office of the ADAs who present to the grand jury to see who has it. (Guess they didn't like that I interrupted what appeared to be a chit chat session. They couldn't make a call which would have taken 1/10 of the time it took me to get an elevator . . .)

(As an aside - prosecutors from the court can take their cases to the GJ themselves or turn them over to the GJ prosecutors whose primary job is preparing & presenting to the GJ, or obtaining info the GJ requests. I don't know the exact rules - I've never been a prosecutor.)

Anyway, there were no ADAs around but the nice ladies checked the case number, found who was responsible in their office for the case (thank goodness it was NOT the person up in GJ! but the person was "out") The ladies made me copies of the relevant law I brought (including code & case site - I didn't bring copies because I, stupidly, expected a quick dismissal - no big deal) for the ADA who would present. I do not know who presented, but the case was no-billed. (Seems only fair as this girl had spent several days in jail trying to raise bail when she could have posted it herself if she had been properly charged. So - she is out the money she paid for the bond & she sat in jail WAY TOO LONG - you know, that jail in which people DIE.)

(Another interesting aside was when I spoke with the chief prosecutor in the court after speaking at the #3 & was trying to explain the doctrine before I ran to GJ - I was treated like I was stupid. Seriously. She said she knew what the rule was, but it was obvious she didn't know the application to this type of case. I probably pointed it out a little forcefully or something but hell, you would think that as the chief of a felony court, one would have come across this kind of behavior in this huge city at least a dozen times! And, no - "oh that is terrible. Let me help you ensure a further wrong doesn't happen. Let me call the GJ." Nope, just a glare.)

There are a number of points in this tale that I brought up, but one final, major point is - this is why I can do what I do. Because I do care & this girl did not need to be punished as a felon for what she did - I'll bet there are lots of your kids who have either done it, or will do it when they get to the right age. (In fact, I'll bet there are more than a few of you who know where that booth is at the flea market from your own experience!)

I have another good no-bill story that I'll tell next. It has been a great couple of weeks for me in no-bills & dismissals. No-bills are not very common. I wonder if the GJ prosecutor knew the law before I brought it down to his / her office? . . . . .


  1. It's good to hear that your client wasn't mistaken for a ham sandwich :).

    Sadly, overcharging seems fairly common, at least where I am in NY. Prosecutors and police tend to ask for the most serious charges they think they can get, and let the judge figure it out.

    Good to see you're back to active blogging!

  2. Thanks for the post & comments, Feisty. The biggest problem I have here is not that the charged with the highest possible, but that they FAR overcharged this girl & they do not know the law they are all supposedly upholding. Sadly it is the blind leading the blind.

    If this girl had gotten an ?unknowledgeable? lawyer who did not care, this girl might be sitting with a felony!

  3. Maybe I'm misreading the statute, but it defines goverment record as;

    (2) "Governmental record" means:

    (A) anything belonging to, received by, or kept by government for information, including a court record;

    (B) anything required by law to be kept by others for information of government;

    (C) a license, certificate, permit, seal, title, letter of patent, or similar document issued by government, by another state, or by the United States

    Then it says;
    (4) possesses, sells, or offers to sell a governmental record or a blank governmental record form with intent that it be used unlawfully;

    (5) makes, presents, or uses a governmental record with knowledge of its falsity; or

    (6) possesses, sells, or offers to sell a governmental record or a blank governmental record form with knowledge that it was obtained unlawfully.

    So one could make the argument she possessed a fake driver's license (issued by government) and I would imagine she obtained it unlawfully for the purpose of obtaining alcohol illegally. Granted, this is not the crime of the century but she should have known better.

  4. @ Jason - you are right about what a government document is. Did you bother to read the balance of my blogspot? The law is, when there is a specific statute, and in this case there is, then one must be prosecuted under the specific statute rather than the general one. The difference you ask? If charged with a felony, it costs tons more to get out of jail AND one can go to prison. If charged properly, it costs almost nothing to get out of jail IF one is arrested (because one could receive a ticket only) AND it is punishable by a fine only. Get it? So, she got punished FAR, FAR worse than the law allows because the police & the prosecutor who accepted the charge don't know the law. Luckily, I do. ; D

  5. I haven't been in a courtroom as often as you have. However in your client's case it appears she could have either been charged with the felony or the class C misdemanor (attempt to purchase alcohol by a minor). Unlike our legislators and courts I like to keep things simple. Sounds like you had two specific charges here.

    Respectfully when someone says "I know the law" I have to sigh. Nobody 'knows the law' they read the same words and interpret it differently. If you know the law then no attorney out there would ever disagree with you. Yet I bet there is someone else with a law degree would disagree with you. ;-)

    I will agree there are prosecutors who don't know what they are doing when they answer that phone at intake. You should hear some of the arguments I've had with them.

  6. Over charging is so very common- But it sure makes us attorney's look good on reduction.
    I'm headed to Houston tomorrow for a buddy.
    We are looking guilty as hell.
    Me first
    Its been a great 20 years but sometimes ya gotta take it for a client.


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