June 2017

In today’s world Internet access has become virtually unlimited. And, with new technology come new problems. These problems have led the Supreme Court to address the challenge modern day Internet access has created for the First Amendment in the landmark case, Packingham v. North Carolina. In Packingham, the Court was asked to determine whether a North Carolina law, which makes it a felony for a registered sex offender to access a social media-networking site, violates the First Amendment’s free speech clause.

North Carolina Imposed a Social Media Ban for all Registered Sex Offenders

In 2002, Lester Packingham, a 21-year-old student, pled guilty for taking indecent liberties with a child after having sex with a 13-year-old girl. As such, Packingham was required to register as a sex offender. However, in 2010 Packingham posted to his personal Facebook account thanking God after he received a dismissal for a traffic ticket. This post was observed by a police officer and Packingham was ultimately convicted for violating the social media ban for sex offenders. After making it all the way to the United States Supreme Court, Packingham’s conviction has now been overturned.

Supreme Court holds that Banning Sex Offenders from Social Media Violates the First Amendment

In overturning Packingham’s case, the Court ruled the North Carolina law to be an impermissible restriction of lawful speech. The Court has consistently held that “[a] fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” As such, the Court ruled that one of the most fundamental places to exchange views is cyberspace—particularly social media platforms. Social media has evolved and formed a stage for many topics protected by the First Amendment, including human thought. It has evolved so much so that “seven in ten American adults” now use at least one form of social media. Thus, the Court reasoned that while it may have once been difficult to determine which “places” are important for the exchange of ideas, it is now clear.

The Internet allows people access to vast amounts of information, which people need to thrive in modern society. North Carolina prohibited access to this information in an effort to protect children, but they ended up preventing Packingham from gaining access to large amounts of information — information unlikely to further sex crimes. As a result, the Court agreed that sex crimes involving children are repugnant, but it explained that even a valid government interest cannot escape all constitutional protections. The Court further noted that “[e]ven convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives.” Thus, the Court determined that North Carolina did not meet its burden to show why the overly broad law was necessary to serve its purpose of protecting children and subsequently declared the law unconstitutional.

For further analysis, see: Amy Howe, Opinion analysis: Court invalidates ban on social media for sex offenders, SCOTUSblog (Jun. 19, 2017, 1:52 PM), http://www.scotusblog.com/2017/06/opinion-analysis-court-invalidates-ban-social-media-sex-offenders/ 

Expanding Eligibility for Orders of Nondisclosure for First-Time DWI and Other Offenses

Let's face it, a criminal record is not a good thing when it comes to employment opportunities and other things that require a background search. Even when the criminal offense is non-violent and unintentional, like DWI, it can negatively impact a person's future. Our Texas lawmakers recognized this stigma and did something about it. This past legislative session (2017), Texas lawmakers from both sides of the aisle proposed legislation to help expand the opportunity to seal criminal convictions with an order of non-disclosure.

What is an Order of Non-Disclosure?

Having your record “sealed” is common verbiage used by laypersons. Under Texas law, this is referred to as non-disclosure. Orders of non-disclosure “seal” a criminal record from the eyes of the general public and allow a person to deny such record in most situations. However, the offense will remain visible to law enforcement, state and federal authorities, and employers in government fields.

Non-Disclosures Prior to House Bill 3016

Before the legislature acted in 2017, the Texas Government Code required a court to issue an order of nondisclosure of criminal records for a person receiving discharge and dismissal of certain nonviolent misdemeanors for which the person was placed on deferred adjudication community supervision (probation). The code also allowed for some "second-chance" considerations under limited circumstances. However, the Texas Government Code did not previously allow for nondisclosure of DWI offenses under any scenario.

What is HB 3016?

Governor Greg Abbott signed HB 3016 on June 15th, 2017. HB 3016 will be effective, retroactively, beginning September 1, 2017. This law amends and expands the Texas Government Code to allow a person convicted of nonviolent misdemeanors, including DWI’s, to petition the court for orders of nondisclosure under certain circumstances and alters some waiting periods.

HB 3016 also allows a person to petition for an order of nondisclosure of criminal history if that person was ineligible to receive an automatic order based solely on a judge's affirmative finding that issuing such an order was not “in the best interest of justice.” If the offense was a misdemeanor punishable by a fine only an individual may petition for an order of nondisclosure immediately upon the date of completion of their sentence. However, if the misdemeanor was not punishable by fine only, they must wait until the second anniversary of the date of completing the sentence to petition.

See the full text of HB 3016 - Enrolled version.

Orders of Non-Disclosure for DWI Offenses

HB 3016 now allows a person convicted of a first-time Driving While Intoxicated offense with a blood-alcohol concentration (BAC) less than 0.15 to petition for an order of non-disclosure of criminal history related to that offense. However, there are certain criteria that must be met to be eligible to petition for a non-disclosure of a Texas DWI.

A person may petition to have a DWI sealed only if he/she:

• has never been convicted of or placed on deferred adjudication community supervision (probation) for another offense—this does not include a traffic offense (punishable by fine only);
• has successfully completed any imposed community supervision and any term of confinement;
• has paid all fines, costs, and restitution imposed; and
• the waiting period has elapsed:
  • 2 years if the person successfully completed a period of at least six months of driving restricted to a motor vehicle equipped with an ignition interlock device as a part of the sentence; or
  • 5 years if there was no interlock requirement as part of the sentence.

Additionally, the court will not issue an order of nondisclosure if an attorney representing the state presents evidence sufficient to the court that demonstrates that the underlying offense, for which the order was sought, resulted in a motor vehicle accident involving another person (this includes a passenger of the defendant).

When may you Petition the Court for an Order of Non-Disclosure for a DWI?

The law requires individuals to wait until the second anniversary of the date of completion of their sentence, if the person:

• complied with all conditions of the sentence for a period not less than six months; and
• was restricted to operation of a motor vehicle equipped with an interlock device for at least 6 months.

If the court did not impose the above conditions, they are required to wait until the fifth anniversary of the date of completion of their sentence.

NOTE: Having a first-time DWI sealed by an Order of Non-Disclosure will NOT prevent another DWI from being charged as a DWI (Misdemeanor Repetition).

What are the Disqualifying Factors for DWI Sealing?

A person may NOT have their DWI record sealed if:

• The DWI was a 2nd or 3rd offense;
• The DWI involved a finding that the Blood-Alcohol Content was greater than 0.15;
• The DWI involved an accident involving another person;
• The DWI was within the last 2 years (5 years if there was not interlock requirement)*

*If the waiting period has not expired, but all other conditions are met, the applicant must simply wait until the waiting period is complete.

Which Offenses are Specifically Excluded from Consideration for an Order of Nondisclosure?

Certain misdemeanors are not eligible for consideration for an order of nondisclosure, mostly intoxication related offenses, which include any misdemeanors under the:

• Alcoholic Beverage Code §106.041 (possession and/or consumption of or selling alcohol to minors); or,
• Penal Code § 49.04(d) (driving while intoxicated .15 or higher);
• 49.05 (flying while intoxicated);
• 49.06 (boating while intoxicated); or,
• 49.065 (operating an amusement park ride while intoxicated).

Additionally, any conviction under Chapter 71 of the penal code (engaging in organized criminal activity) may not be non-disclosed.

Furthermore, a person will not be granted an order of nondisclosure and is not eligible to petition the court if the person has previously been convicted or placed on deferred adjudication probation for:

• an offense requiring sex offender registration;
• murder;
• capital murder;
• aggravated kidnapping;
• trafficking/continuous trafficking of persons;
• abandoning or endangering a child;
• violation/repeated violation of certain court orders or conditions of bond in a family violence, sexual assault or abuse, stalking, or trafficking case;
• stalking; or
• any other offense involving family violence.

Results of HB 3016 and the New Non-Disclosure Law

HB 3016 makes it easier for persons with certain low-level nonviolent offenses, particularly DWI’s, to obtain employment and become productive members of society. However, subsequent offenders will remain accountable because law enforcement may still use the “sealed” conviction against subsequent offenses and certain entities will still be able to view the offense.

Contact our Criminal Defense Team Today to See if You Qualify to Have Your Record Sealed Under this Law

Contact Barnett Howard & Williams today and let our team help you determine whether you may be eligible for a non-disclosure under this law when it takes effect in September 2017. We are happy to provide a free consultation to walk you through the steps for sealing your record.  Call our attorney today at (817) 993-9249.

Does Failure to Control Speed and Keep a Proper Distance from other Vehicles Prove a Gross Deviation from the Standard of Care that an Ordinary Driver Would Exercise Under the Circumstances?

The Court of Criminal Appeals recently handed down an opinion in Queeman v State regarding criminally negligent homicide. The issue facing the court was whether a death, which was caused by Appellant’s failure to control the speed of his vehicle and failure to maintain a proper distance from another vehicle, proves a gross deviation from the standard of care amounting to criminally negligent homicide.

Trial Court Found Appellant Guilty of Criminally Negligent Homicide.

Appellant was traveling down a two-lane highway when he drove into the back of an SUV that was waiting to make a left turn onto an intersecting road. The impact caused the SUV to be pushed into oncoming traffic where it was subsequently hit, killing one of the passengers. The accident investigator could not determine Appellant’s actual speed, and there was no other evidence to suggest a reason for his inattentiveness. However, Appellant was charged and convicted of criminally negligent homicide and sentenced to eighteen months in a state jail facility.

The Court of Appeals Reversed the Conviction, Holding that the Evidence was Legally Insufficient to Support the Conviction.

On appeal, Appellant challenged the sufficiency of the evidence from which his conviction was based upon. The accident investigator admitted that he had no way of knowing Appellants actual speed, nor did he know the amount of time or reason the Appellant was inattentive. The court of appeals determined that the evidence at hand provided no reasonable basis for the jury to prove that Appellant was traveling at excessively high speeds or was distracted for a certain reason—such as texting. As such, an inference would only amount to mere speculation. Therefore, the Court of Appeals reversed the trial courts decision.

The Court of Criminal Appeals Affirmed the Court of Appeals’ Decision—Holding the Evidence did not demonstrate that Appellant’s conduct rose to the Level of “Criminal Negligence.”

To demonstrate that Appellant was criminally negligent, the State must prove:

• The defendant’s conduct caused the death of the individual;
• The defendant should have been aware that there was a substantial and unjustifiable risk of death from his conduct; and,
• The defendant’s failure to perceive such risk constituted a gross deviation from the standard of care and ordinary person would have exercised under similar circumstances.

However, the Court notes that the amount of carelessness for criminally negligent homicide is much higher than for civil negligence. Here, the Court agreed that Appellant’s conduct was negligent, however it held that the conduct did not rise to gross negligence. While the evidence was sufficient to prove that the defendant was speeding, it was not sufficient to prove that he was excessively speeding, and the State presented no evidence concerning the reason or length of time for which Appellant was inattentive. Absent any other evidence to show a failure to perceive a substantial and unjustifiable risk caused by the defendant’s conduct, no reasonable jury could have found that Appellant’s conduct constituted a gross deviation from the standard of care of an ordinary person under the circumstances. Therefore, the Court of Criminal Appeals affirmed Appellant’s acquittal.

David’s Law | New Cyberbullying Law in Texas

On June 9, 2016, the Governor signed SB 179 into effect—otherwise known as David’s law. David’s law, named after David Molak, a 16 year-old boy who committed suicide after relentless cyberbullying, was created in an effort to punish such reprehensible actions. In 2011, lawmakers added the term “cyberbullying” to the Texas Education Code under the bullying section. However, this provision did not create any legal punishment for cyberbullying. It only required school districts to develop their own policies to prevent and intervene in such cases. David’s law changes this by amending the Education Code regarding bullying to include cyberbullying as a criminal offense.

Full Text of new Cyberbullying Law

What is Bullying?

Bullying is a significant act(s) by one or more students directed at exploiting another student and involves any verbal or written statement, electronic communication, or physical act that results in:

• physical harm to a student;
• damaging a student's property; or,
• causing a student reasonable fear of harm.

Bullying also occurs when there is ongoing, severe, and persistent statements or physical acts that create an intimidating, threatening or abusive educational environment for a student. Furthermore, cyberbullying includes such conduct that substantially interferes with a student's education, substantially disrupts school, or infringes the rights of the victim at school.

What is Cyberbullying?

Cyberbullying occurs when a person uses any electronic communication device to engage in any type of bullying described above. Relevant communications include, for example, statements made through social media outlets or text messages.

Where does Bullying/Cyberbullying have to Occur?

David’s law applies to bullying that takes place on school property, during any school-sponsored or school-related activity, or in a vehicle operated by the school district (i.e. a bus). Additionally, David’s law includes cyberbullying that occurs off campus and outside of a school-sponsored or related activity if:

• it interferes with a student’s educational opportunities; or,
• substantially disrupts the orderly operation of a classroom, school, or school-sponsored or school-related activity.

What are the School’s Responsibilities?

Schools must install a way for students to report bullying/cyberbullying anonymously. Additionally, upon receiving a report, school officials must report the incident to the alleged victim's parents within three business days and to the alleged bully’s parents within a reasonable time.

Furthermore, under David’s law a school may, but has no legal obligation to, report conduct constituting assault or harassment to the police. A report may include both the name and the address of each student believed to be involved.
Punishment

Cyberbullying will be classified as a Class B misdemeanor beginning September 1, 2017. However, the offense becomes a Class A misdemeanor, if the offender has been previously convicted of cyberbullying or if the bullying was done to a victim under 18 years-old with the intent that the minor commit suicide or self inflict serious injury to themselves. Additionally, a student charged with cyberbullying can face administrative sanctions such as expulsion or alternative schooling.

A Class B misdemeanor is punishable by a fine not to exceed $2,000 and confinement in jail for a term not to exceed 180 days. A Class A misdemeanor is punishable by a fine not to exceed $4,000 and confinement in jail for a term not to exceed one year.

• drivers with learner's permits are prohibited from using handheld cell phones in the first six months of driving;
• Drivers under the age of 18 are prohibited from using wireless communications devices;
• school bus operators are prohibited from using cell phones while driving if children are present; and
• in school zones, all drivers are prohibited from texting and using handheld devices while driving.

However, after many failed efforts, Texas has finally passed a law banning the use of handheld devices in certain situations, namely texting. On June 6, 2017, Governor Greg Abbott signed HB 62, which makes using a portable wireless communication device (i.e. a cell phone) to read, write, or send an electronic message (i.e. a text) while operating a motor vehicle a misdemeanor offense.

Notice is Required to be Posted by DPS of the New Ban

The Texas Department of Transportation will be required to post signs on interstate and U.S. highways entering the state indicating that texting while driving is prohibited and carries a fine. Additionally, the new law requires that the driver’s license test cover knowledge about the effects of texting while driving or other actions that constitute distracted driving.

What is the Punishment for Texting While Driving in Texas?

Under the new law, the sole offense of “texting while driving” is not an arrestable offense. A driver’s first offense will be punishable by a fine between $25 and $99, and any subsequent offenses will carry a fine between $100 and $200. Additionally, the Department of Motor Vehicles is not authorized to assign points to a driver’s license for a “texting while driving offense.”

However, if at trial for the offense it is shown that the defendant caused the death or serious bodily injury of another person, the offense will become a Class A misdemeanor punishable by a fine not to exceed $4,000 and confinement in jail for a term not to exceed one year. Additionally, if the conduct constituting the offense is also a violation of another law, the defendant may be prosecuted under either law, or both.

Possible Defenses to a Texting While Driving Charge:

A driver may have a defense to prosecution if the driver was:

• not moving;
• using a hands-free device, including voice-operated technology;
• reporting illegal activity or summoning emergency help;
• reading an electronic message that the person reasonably believed concerned an emergency;
• relaying information to a dispatcher or digital network through a device affixed to the vehicle as part of the driver’s job;
• activating functions to play music; or
• using a GPS function.

Additionally, the law does not apply to drivers of authorized emergency or law enforcement vehicles acting in an official capacity or to drivers licensed by the Federal Communications Commission operating a radio frequency device other than a portable wireless communication device.
Furthermore, the law prohibits the search and seizure of a driver’s cell phone unless authorized by another law.

Concerns Regarding HB 62 (Texting While Driving Law)

Supporters of the law believe it will increase safety and reduce distracted driving incidents, while opponents see it as an overreach of the government into citizen’s lives. Some fear the law will allow law enforcement to gain more power to stop citizens by mistaking a person’s legal actions for texting. However, despite these reservations, this law takes effect on September 1, 2017, preempting local ordinances, and applies only to offenses committed on or after that date.

Links to the full text of the bill:

http://www.legis.state.tx.us/tlodocs/85R/billtext/pdf/HB00062F.pdf#navpanes=0
http://www.legis.state.tx.us/billlookup/History.aspx?LegSess=85R&Bill=HB62