What is a qualifying conviction?
A conviction of a “misdemeanor crime of domestic violence” is a qualifying conviction under the Lautenberg Amendment. The Amendment itself does not provide any additional guidance on determining what qualifies as a crime of domestic violence. However, each of the armed services has published regulations to define what is considered domestic violence with little variance among them. For example, the Marine Corps in MARADMIN 186/03 further defines what qualifies as a crime of domestic violence as follows:

Crime of domestic violence means an offense that has as its factual basis the following elements: (1) the use or attempted use of physical force, or threatened use of a deadly weapon; (2) committed by a current or former spouse, parent or guardian of the victim, by a person with whom the victim shared a child in common, by a person who has cohabitated with the victim as a spouse, a parent or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim(s).

What effect does this have on your military career?
If you are in the armed services, the glaring side effect of being on the receiving end of a qualifying conviction is your inevitable separation from the military.  In other words, if you are convicted at a special or general court-martial for a domestic violence offense, you will be processed for separation.  Administrative forums such as non-judicial punishment (NJP) do NOT trigger Lautenberg.  But if you are going to a court-martial, be sure to ask your attorney about the Lautenberg Amendment and how it can affect you.  It is normally not part of any pre-trial agreement, so ask your attorney about it before entering into an agreement to plead guilty.

What if you are convicted of simple assault and not domestic violence?
Many states have specific provisions in their penal code for domestic violence offenses. Many accused in civilian courts will plea bargain to plead guilty to a simple assault offense instead of a domestic violence offense. This is done normally to avoid requirements to attend mandatory counseling or classes that often go along with domestic violence convictions. Pleading guilty to a simple assault can still qualify for a conviction of a “misdemeanor crime of domestic violence” for purposes of the Lautenberg Amendment. Many attorneys are not aware of this and do not appreciate the impact such a conviction will have on a servicemember. Military policy is to look at the factual basis of the offense. If that factual basis meets the definition, it will be a qualifying conviction regardless of what the civilian court calls the offense.

What about deferred adjudication?
Deferred adjudication is available in some civilian jurisdictions. It often involves probation, treatment programs, and/or some type of community supervision. If all the conditions of probation are met for the allotted time handed down by the court, then the charge will be dismissed and no record of a conviction will result. In that case, the Lautenberg Amendment will not apply as the charge did not result in a conviction. However, if the accused does not satisfy the court’s requirements during the probationary period, then the charge will not be dismissed and it will ripen into a conviction, at which point the Lautenberg Amendment will apply.

What will happen if you have a qualifying conviction?
If you have a qualifying conviction, you are not allowed to possess a firearm or ammunition. If your command suspects that you may have a qualifying conviction, they are obligated to immediately secure your access to any government issued firearms or ammunition (unless you are deployed) and privately owned firearms or ammunition kept in government housing or the base armory. You will be referred to the command’s staff judge advocate (SJA) to determine if you have a qualifying conviction. If you do, you will be unable to complete annual training requirements that will require the use of firearms or ammunition (e.g., marksmanship training). Your command may also consider you non-deployable. Major military weapons, or crew-served weapons, are not considered to be firearms for the purposes of the Lautenberg Amendment and you may still work on and around those items.

If you are in the armed services, a qualifying conviction under the Lautenberg Amendment can end your career and result the loss of almost all of you benefits. So, before sign what you think is a “good deal” make sure you are asking the right questions. Ask about the Lautenberg Amendment and how your conviction can affect your military career.

But today, in San Antonio, a man is on trial for doing exactly that.

Now keep in mind that news agencies are notorious for getting facts and details of cases completely wrong. They’re even worse when they try and explain the law. But, if we take the story at face value, here’s what appears to have happened.

Ray Lemes, 51 years old, jumped up naked from his bed in response to his wife screaming that there was someone in the house. He grabbed a pistol that they kept in the bedroom and dashed to the front of the home. He stepped through the open front door of his home and saw someone over by his truck. Then, a person comes out from behind a brush pile on the street and heads straight towards Lemes. He’s naked. His wife and dog are behind him in his home. He shoots.

Is it a tragedy? Of course. The burglar was 19 years old. It’s always horrible when a young man makes a poor decision and puts himself in someone else’s home in the middle of the night.

If the facts were as they appear, I’d have taken the same action.

Now, these cops have been fired and are being prosecuted for Official Oppression.

As a class A misdemeanor, it carries a punishment of up to one year in jail and up to a $4000.00 fine. The charge of Assault, which would carry the same punishment, would not enhance any consequences against the officer. By charging Official Oppression, the District Attorney’s office guarantees that the case will be tried in a District Court instead of a Criminal County Court.

But here’s the amazing part: Section 39.04 enhances the crime to a State Jail Felony if there are sexual advances made on a person in custody, with higher punishments if the victim is a juvenile. BUT no enhanced punishments if the victim is just plain BEATEN. This is a major flaw in the law. A person is custody is stomped on, kicked and punched more than twenty times, and yet, the best Texas can do is a class A misdemeanor. Compare that to other class A misdemeanors: driving drunk a second time, slapping your spouse or having more than 2 oz of marijuana.

Let’s talk about the tape for a minute. I was a prosecutor for nearly 10 years, so understand that’s my background where this thinking comes from. That tape is evidence of a crime. It’s part of a criminal investigation and prosecution of four repugnant Houstonians that deserve nothing less than the maximum punishment under the law. The District Attorney’s office is right to keep it to themselves as they should all evidence. It is grossly improper for the DA’s office to attempt in any manner to smear the potential jury pool with any information of the crime prior to trial. The DA’s office must keep its opinion to itself to maintain the proposition that all are presumed innocent. If the DA’s office distributed this tape, they’d be attempting to influence a juror before trial, and that’s the worst kind of ethics violation. The Harris County District Attorney’s office doesn’t behave that way. And let’s get one thing perfectly clear: after watching this video tape, there is no person in the world who would be fair and impartial prior to the selection of a jury after seeing it. I’m ready now to give them the full year and $4k and be done with the case.

But as a defense attorney, if I were defending one of these guys, I’d be screaming that the whole jury pool is now tainted and there would be no way for any of those guys to get a fair trial after the release of the video. No one could honestly say that they had seen the video and be able to approach the trial fairly and impartially as a jury member should.

What you’ll see in the video is disturbing. Four Houston Police officers, obviously enraged by having to chase this teenager beat him once they caught him. Not only did they strike him with their fists, but they kicked him repeatedly after he’s completely submissive on the ground and detained. After the car is used to knock him down, he goes submissive and lays his hands behind his head. That’s when one officer stomps on his head, others start kicking, and one officer punches the man up to five times.

See what you think of the video.

You know what this kind of event does? It destroys communities. It validates all the terrible things people say about police officers. It makes everyone out there trust law enforcement a little less. I hate everything about what they did. I feel sorry for the DAs that do a good job and are now associated with a city who’s law enforcement acted from the lowest form of humanity. Maybe they won’t get jail time. Maybe they’ll get 1,200 hours of community service that must be spent cleaning sewer lines by hand.

What do you think? I look forward to hearing from you.

As the Superbowl approaches, I’m reminded of questions I’ve heard at every major sporting event, at every evening dinner party, at any place where people are congregating and drinking: You’re a lawyer? How do you beat a DWI? Should I blow?

The most obvious and correct answer is, “Don’t Drink and Drive.”

The next answer many attorneys online will say is don’t do any of the tests. There has been several discussions regarding whether or not the answering of the officers questions constitutes exercising your fifth and sixth amendment rights. A citizen has the right to remain silent and the right to an attorney after all. The thing is, they made this rule…

The use of a driver’s license in Texas is a privilege that comes with a cost. You have already consented to answer the questions of an officer detaining you for an investigation. The law provides that all drivers have given an implied consent to the taking of a sample of your breath or blood at the request of an officer merely as a part of the agreement surrounding your driver’s license.  If you refuse to provide that sample, there are consequences.  The Texas Department of Public Safety lists license revocation processes including:

Suspension Lengths:
 The offender’s license is suspended for failing the BAC test for:

• 90 days, if a first offender;
• One year, if previously suspended for failing or refusing the test or previously suspended for DWI, intoxication assault or intoxication manslaughter conviction.

The offender’s license is suspended for refusing the BAC test for:

• 180 days, if a first offender;
• Two years, if previously suspended for failing or refusing the test or previously suspended for DWI, or intoxication assault or intoxication manslaughter conviction.

If you do refuse to provide a sample, your license will be suspended for a period of time. If you refuse to perform the field sobriety tests, that refusal can be characterized as a consciousness of guilt at your trial. The prosecutor gets to tell the jury, “He knew he was drunk, that’s why he wouldn’t take the tests.”

Keep in mind that in most counties and jurisdictions the car behind you is recording your behavior. No matter what you think of your personal intoxication level at the time, be on your best behavior. The more rude or boisterous you are with the officer, the more the jury is going to presume that your attitude is due to how much you had to drink. Nothing destroys credibility faster than cursing the officer. (With the possible exception of flirting with the officer, juries can’t stand that. The better looking you  think  you are, the more the officer, and more importantly the jury, will despise you for your behavior and blame your poor social skills on whatever they believe you’ve imbibed.)

So, know your rights. Know that you don’t have to submit to the tests, but that there are consequences for that refusal. Remember you are on video. Imagine that your grandmother is going to watch your behavior that night. (In the last ten years, I can’t recall a jury without at least two people over the age of 60 on it.) Be polite, be courteous. ESPECIALLY if you’re going to refuse tests. Regardless of what you think the officer thinks of you, what matters is your impression on the jury. If it comes to that.

Learn more about the State of Texas license suspension process.

Because from day one of training, we who serve are taught to do what we’re told. “Good” Soldiers, Sailors, Airmen, and Marines should always answer questions put to them, right? Wrong.

If you are suspected of committing an offense under the Uniform Code of Military Justice (UCMJ), you must exercise your right to remain silent. It will never help you to make statement. Yes, your superiors and interrogators will imply that you are guilty. Yes, you will hear things like “if you didn’t do it, just tell us the truth about what happened.” It goes against everything you are taught about obeying orders and doing what you are told. You must fight that instinct. Under Article 31(b) of the UCMJ, you have an absolute right to remain silent.
But if you know you didn’t do anything, why not say so? Because you do not know the law. Moreover, your superiors and interrogators do not necessarily know the law. For example, one of the most commonly charged offenses in the military justice system is sexual assault under Article 120 of the UCMJ. This one offense occupies 17 pages of the Manual for Courts-Martial (MCM) … 17 pages of legal definitions and different versions of sexual assault. As a trained lawyer who has defended many Marines charged with sexual assault, even I open up the MCM to Article 120 and review the specific elements and definitions. Every time. The law has more gray area than you can navigate with a well thought-out explanation of what happened. If you say nothing, nothing can be used against you. More importantly, your silence cannot be used against you.
Even a simple response like “it never happened” can get you into trouble. Under Article 107 of the UCMJ, you can be charged with making a false official statement for simply denying that anything happened.
So, if you find yourself suspected of committing an offense, the right answer every time, in a respectful tone, is “I respectfully desire to remain silent”. And then, give me a call.

Yes, you have the right to remain silent (and should remain silent) and the right to refuse to give a sample of your breath (and should so refuse), but if you are pulled over on a “no refusal weekend”, you will not have the right to refuse to give blood, if the police officer, with a prosecutor’s help, is able to get a judge to order a blood sample be taken from you.

No refusal weekends are law enforcement projects around Texas and nationwide. A prosecutor’s office in a jurisdiction coordinates a plan with local judges to be on call for a period of time to grant search warrants on a very quick timeline. If the judge signs them, these search warrants require drivers who have been stopped due to suspected impaired driving to provide a blood sample, with or without their consent.

In general, a judge can sign a search warrant when presented with an affidavit that establishes probable cause that a crime has occurred. Though the mechanism used for “no refusal” blood draw warrants are fairly standard, in the case of these warrants, there is a judge on call any time, day or night, during a “no refusal” weekend. That permits a blood draw to be executed in a short time, in the hopes of obtaining evidence of alcohol use
before it is metabolized by the suspect, aka you, the citizen who is subject to this procedure.

Once an officer believes that there is enough evidence to arrest a person for Driving While Intoxicated, that officer can quickly draft a written affidavit (often with the assistance of the on call prosecutor) and present it to a judge for consideration. If the judge agrees that there is probable cause to believe that the driver may be driving impaired, the judge can issue an warrant to permit the officer to have blood drawn from the driver without his or her permission.

Sounds brutal, even Un-American? Many police, prosecutors, and even judges think that no refusal weekends are a great idea. It’s a national movement, and it is here in north Texas.

What rights do you have? Of course, you can choose not to drink and drive. That is the safest route.

However, if you are pulled over by police, and you have been drinking, remember your right to an attorney. Know the law. Know an attorney that understands the rules. Exercise your right to an attorney. Hire someone with experience whom you believe will fight for you, your rights, and your freedom.

Prosecutors think having the system in place is a great idea. And, it’s become a national movement.

Next week: Refusing sobriety tests. The choice and its consequences.

Patrick McLain has served as an attorney for over twenty years, as a general court-martial military judge, head of prosecution divisions, head of criminal defense offices, and assistant U.S. attorney (federal prosecutor). Philip Ray has served for over ten years, almost exclusively as an assistant district attorney (Texas state prosecutor), and Jeff King has served over eight years as a U.S. Marine Corps judge advocate (military attorney). Each of us has had a very successful career in the courtroom, and we are now pursuing our passion in fighting for those who are now fighting the government for their rights, their freedom, and their good name.

Like any military campaign, or criminal trial, this battle is best fought as a team, with a well-reasoned plan and esprit de corps. We welcome contributions from our fellow warriors, as well as those members of the public who want to engage in the debate of ideas on our Republic’s Constitution, laws, and regulations. Tough minded comments are welcome, but we have time or truck for narcissism or blather. So please respect all those in the discourse, and if you do, we are honored by your participation in the colloquy.