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Thread: I'm our test case

  1. #26
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    Rush, I couldn't agree more. And all future interviews will have my attny present. It seems to me they are no longer messing around. They mean business

  2. #27
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    Quote Originally Posted by mustangkiller View Post
    ...The law doesn't say no pit stops allowed. It doesn't even elude to it...
    You may be eluding a charge, but the law doesn't "allude" to it.


    I see you've already gotten some good advice.

    Be careful, and best wishes.
    Last edited by BB62; 05-04-2012 at 10:46 AM.

  3. #28
    Regular Member rushcreek2's Avatar
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    Ditto - And I suspect the presence of the "Don't MESS with TEXAS" mindset being a bit irritated by that pesky UTAH permit element also fluttering around in this picture.

    In pursuit of respect reciprocity , I will have little more to say on this matter on this open forum. You may be so disposed as well? PM is good.

    As a matter of fact I am going to get my "scrub brush" out right now.

  4. #29
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    Quote Originally Posted by BB62 View Post
    You may be eluding a charge, but the law doesn't "allude" to it.


    I see you've already gotten some good advice.

    Be careful, and best wishes.
    lol Good catch. Sorry

  5. #30
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    Charges filed, case accepted, warrant forthcoming.

  6. #31
    Campaign Veteran Glock9mmOldStyle's Avatar
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    It appears you have been singled out for "example" by someone in your PD's command structure. Be prepared for a spaghetti fest as they will attempt to fling things at the wall to see what might stick. Also posting here can be used against you. I know of one case in my area where a years worth of posts were printed off (out of context of course) in a attempt to discredit the OCer.

    Giving up civil rights for security is a certain way to lose both!

  7. #32
    Regular Member MKEgal's Avatar
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    Quote Originally Posted by mustangkiller
    Anyone have case law that shows the law only restricts our activities and doesn't grant permission? Or is that supposed to be common knowledge?
    It's common knowledge to everyone except cops & DA's.
    That's just the way our legal system is set up. What isn't prohibited is permitted.

  8. #33
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    Quote Originally Posted by rushcreek2 View Post
    A fair analogy to this law enforcement "short-cut across your lawn" might be if the State tried to apply the DUI standard applicable to a driver holding a Class A (CDL) driver license when actually operating a commercial vehicle - despite the fact that the driver was operating a pickup at the time.
    Actually (FWIW)... (at least in this state) they do hold CDL holders to the applicable DWI standards no matter what vehicle we are in... As well as charging points against our CDL (which non CDL holders are not subject to) regardless if the infraction happened in a commercial or a personal vehicle.

  9. #34
    Regular Member rushcreek2's Avatar
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    Quote Originally Posted by Gator5713 View Post
    Actually (FWIW)... (at least in this state) they do hold CDL holders to the applicable DWI standards no matter what vehicle we are in... As well as charging points against our CDL (which non CDL holders are not subject to) regardless if the infraction happened in a commercial or a personal vehicle.
    ____________________
    I "parked" my Texas Class A CDL when I moved to Colorado in 2006. Are you saying that the commercial driver .04 DUI blood alcohol level is applied to a person with a CDL even when not operating a commercial vehicle rather than .08 ?
    Last edited by rushcreek2; 07-16-2012 at 01:57 PM.
    "Extremism ALWAYS brings about its own destruction " ( Sir Edmund Burke)

    Jim Sherwood

  10. #35
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    The different standards and enhanced penalties apply to anyone holding a CDL. It doesn't matter what they're driving at the time.

  11. #36
    Regular Member rushcreek2's Avatar
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    This is just a wee- bit off the topic so not to belabor this tidbit - I held a Class A Texas CDL from 1980 -2006 , and clocked in 23 years operating 18 wheelers, and during that period of time the DUI limit while I was operating a commercial vehicle was .04. ANY BLOOD ALCOHOL LEVEL would result in the driver being placed out of service.

    A CDL driver who is not operating a commercial vehicle at the time -the CDL driving record applies regardless of the class of vehicle driven, but that is different than the legal DUI level.
    Last edited by rushcreek2; 06-23-2012 at 08:30 PM.

  12. #37
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    I'm sure a couple people are wondering so...... There was some sort of delay in getting the case filed with the court. The C.A's clerk is saying she'll have it filed at the end of the month. She made it sound like the delay is that she is over worked and she just hasn't gotten to it yet. She files them in the order she got them.

  13. #38
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    Good luck. I check in every few days just to see how this is going and I'm rooting for you. I wish I could help but I've honestly got nothing. Keep us posted, though. Hopefully this goes well for you.

  14. #39
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    Got the call yesterday morning. The case is filed and the warrant for my arrest should be active Monday. I do have a question though. Do I have to be processed at the jail and get bailed out or can an this move forward and only have me report to jail if I'm found guilty?

  15. #40
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    Quote Originally Posted by mustangkiller View Post
    Got the call yesterday morning. The case is filed and the warrant for my arrest should be active Monday. I do have a question though. Do I have to be processed at the jail and get bailed out or can an this move forward and only have me report to jail if I'm found guilty?
    This will be up to the magistrate. PC 46.035 is a Class A misdemeanor, so the punishment range is up to 1 year in jail and/or up to a $4,000 fine. They certainly can put you in jail pending bail or bail bond. If you've been fully cooperative, available, have strong ties to the community and aren't a flight risk.

    The Code of Criminal Procedures Chapter 17 covers bail, and 17.15 says:

    Art. 17.15. RULES FOR FIXING AMOUNT OF BAIL. The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:
    1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
    2. The power to require bail is not to be so used as to make it an instrument of oppression.
    3. The nature of the offense and the circumstances under which it was committed are to be considered.
    4. The ability to make bail is to be regarded, and proof may be taken upon this point.
    5. The future safety of a victim of the alleged offense and the community shall be considered.


    Edit to add: Also, there's this. If you can't make bail and they aren't ready to start the trial within 30 days, they must either reduce the bail amount or release you on personal bond (same as when you sign a traffic ticket promising to appear).

    Art. 17.151. RELEASE BECAUSE OF DELAY.
    Sec. 1. A defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he is being detained within:
    (2) 30 days from the commencement of his detention if he is accused of a misdemeanor punishable by a sentence of imprisonment in jail for more than 180 days;
    Last edited by KBCraig; 07-20-2012 at 10:54 PM.

  16. #41
    Regular Member hermannr's Avatar
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    The "common law" standard that "that which is not specifically prohibited is permitted" comes from English Common law. The best commentary on English Common Law was by this guy: http://en.wikipedia.org/wiki/William_Blackstone if you are interested.

    Oh yes, by the way...when you sue them this lengthy prelim will only help you get more out of their pockets with you civil rights suit. Very easy to prove that their actions were deliberate.
    Last edited by hermannr; 07-23-2012 at 11:37 AM.

  17. #42
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    I turned myself in today with bail money in hand. I was out 2 hours later. 1st court date is September 13 8am. Now they have me doing the pretrail bs. I gotta report for that before lunch tomorrow.

  18. #43
    Regular Member rushcreek2's Avatar
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    Well done Mustangkiller. We now need a Paypal account , and particulars of actual charge(s).

    I have swept my tracks pertaining to my comments and will post no further personal insights or observations on this subject other than through PM. Best to keep the "State " as much in the dark as possible in regards to their target's defensive direction of travel and strategy.


    There is a very strong probability that someone is monitoring this thread.
    I stand by my previous observations regarding the State's posture in this matter. Also they can use the criminal case to defend themselves against any potential civil action - for a time.

  19. #44
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    In regards to Law Enforcement/DA monitoring these threads, it has been my experience that whenever a lawyer resorts to petty methods of winning their cases (like "demonizing" their opponents), they tend to have anything substantive beyond what they can work with within the confines of the law.

    In fact, I have seen lawyers for debt collectors go after individuals with little more than heresay in a civil court and massive amounts of internet print off of their opponents in court. Click here and read the thread carefully on an example of this.

    Also, good luck with your case. I hope you win! :-)

  20. #45
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    Status update

    I am scheduled for arraignment at 08:30 tomorrow morning. I talked to the county atty a couple weeks ago and told her all the reasons it was a bad idea to try this case. She agreed with me and told me if I had a signed statement from a witness who knew I was going hunting that day, she would dismiss the charge. I returned in an hour with said document. She hasn't talked to me since. I called again today to see if she was keeping her word and the clerk told me she had the dismissal papers in her hand and the judge would be signing then in the morning. She also said that I didn't need to be present at the arraignment. I have decided to go anyway since paperwork gets lost, people change their minds and a myriad of other things that can go wrong. The last thing I need is a warrant for FTA of something does go wrong.

  21. #46
    Regular Member Fallschirmjäger's Avatar
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    Probably a bit too late to ask, but why let that stop me?

    Were you served under the misdemeanor or felony portion of 46.035?
    "An offense under Subsection (a), (b), (c), (d), or (e) is a Class A misdemeanor, unless the offense is committed under Subsection (b)(1) or (b)(3), in which event the offense is a felony of the third degree. " I guess they snuck it in under the statute of limitations?

  22. #47
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    They charged me with a class B misdemeanor

  23. #48
    Regular Member rushcreek2's Avatar
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    I am happy for you that this case against you is in the process of being dismissed.

    As I recall you were perfectly legal OPEN carrying a RIFLE at the same time - but that open carried handgun for some strange reason allegedly constituted a crime against the health, public safety, and morals of the People of Texas - rights ?

    So - I gather what "every citizen" needs to do in Texas in order to be able to exercise their Article 2, Section 23 RTKBA with a handgun is to have a scheduled appointment at the gun range, or the hunting lease every day. Gotta love Texas.
    Last edited by rushcreek2; 08-24-2012 at 03:38 PM.

  24. #49
    Regular Member MKEgal's Avatar
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    Quote Originally Posted by bob888
    it has been my experience that whenever a lawyer resorts to petty methods of winning their cases (like "demonizing" their opponents), they tend to have anything substantive beyond what they can work with within the confines of the law.
    If the law is against you, argue the facts.
    If the facts are against you, argue the law.
    If both are against you, attack your opponent.

    (And for the rare times when both the facts & the law are with you, rejoice.)

  25. #50
    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by mustangkiller View Post
    They charged me with a class B misdemeanor
    Just to be Absolutely sure, you might have your attorney check the statute of limitations for a misdemeanor against the date of the incident. It probably won't matter but, there's Always the chance that the SoL expired while they were deciding what to do.

    Article 12.02 Misdemeanors. Texas Code of Criminal Procedure
    Texas Code of Criminal Procedure Article 12.02 Misdemeanors

    An indictment or information for any misdemeanor may be presented within two years from the date of the commission of the offense, and not afterward.
    mmm... there doesn't deem to be a Class B Misdemeanor under § 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE
    Last edited by Fallschirmjäger; 08-24-2012 at 04:45 PM.

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