Bait Bikes Theft in Austin: Entrapment or Impulsive Theft?

A rash of bike thefts in Austin, Travis County (and probably many major cities) has prompted Austin Police Department to focus on Bike Theft crimes downtown, by leaving high priced bicycles at street poles, fences, and sidewalks across the city -- unlocks and unguarded.

Many of these "bait bikes" are left on Campus at UT, and all are equipped with a tracking GPS linked to Austin Police computers.

While some might be locked with a cheap chain or other minor security measure, many are merely leaning against a bike rack, or wrapped to a light pole by an unlocked bike chain.

So what happens when someone decides to take one of the expensive, new bikes? Well, Austin Police tracks the movement and and swoop in for a Theft Arrest.  And, since the bike is expensive (typically around $650-800), and since they include the price of the GPS unit which is attached to the bike (and likewise stolen -- valued at nearly $400), the grand total of the Theft gets the person to a Class A Misdemeanor Bike Theft.

So the first thing people say, is: Entrapment!  Unfortunately, Entrapment is a very narrow defense, meaning it's only available in a few cases.  Theft in the above described situation would NOT be able to take advantage of Entrapment, because, put simply, the person was free to merely walk away.  There was no trap that forced the person to act illegally; instead, the legal course of action would have been to keep walking, which the person was free to do.

A potential defense, although not a good one, could also be Abandoned Property.  The problem is that an Abandoned Property Defense requires the person finding the property to do several things BEFORE taking the item, such as (among other things) trying to find the rightful owner.  While an Abandoned Property defense could work, more information and investigation would be needed to show that there was no Theft.

The best option, now that you know the dangers of Bait Bikes, is to avoid the bike at all costs.

Basics of a Texas DWI in Austin, Travis County

A typical DWI arrest consists of being pulled over while driving, usually for swerving or bad driving observed by an officer. Frequently, other suspicious drivers may call 911 or a DWI hot line to report other drivers on the road.

Once an officer has pulled over an individual for DWI, the officer with conduct several observations to further establish reasonable suspicion or probable cause, such as looking for blood shot eyes, slurred speech, unsteady gait or fumbling with documents, and the smell of alcohol. While pure alcohol has no smell, officers will frequently testify that the flavoring in alcohol (the other additives in the drink) has a distinct smell when consumed and on the breath.

After making preliminary observations, the officer will usually conduct field sobriety tests, or FSTs. The FSTs consist of several physical tests that are commonly thought to gauge a person's intoxication level. Some of the field sobriety tests used are the walk and turn test, finger tip to nose test, stand on one leg test, silent count to thirty test, and the Horizontal Gaze Nystagmus test.

Many times, either before or after the FSTs, an officer will ask the driver of a suspected DWI to breathe into a machine commonly called a breathalyzer or breath test device, used to calculate a person's intoxication by measuring the alcohol content at that moment in the breath.

If the result of a breath or blood test reads at or above a .08%, the driver is generally arrested for DWI, although the results need not be at a .08 or above to arrest. DWI Arrests can be made at breath or even blood test levels below a .08%, if the officer believes the person is too intoxicated to drive. Travis County has been known to prosecute DWI cases based on lower than .08% blood alcohol levels.

At a DWI arrest, an officer will hand the driver a notice of driver's license suspension, which is sent to the Texas DPS. A person arrested on a DWI charge has the right to appeal the driver's license suspension at the DPS with a formal administrative hearing. Typically the arresting officer will testify at the DPS hearing, setting forth the suspected probable cause for arrest and suspension of the driver's license. The key is to request the hearing within ten days of DWI arrest -- within 10 days! -- in order to conduct the DPS hearing, otherwise, the right to an administrative DWI DPS hearing is waived and lost.

DWI in Texas: Can you get a DWI from Prescription Drugs in Texas (No Alcohol DWIs - Drugged Driving)

In Texas, DWI laws are changing each year, often to make penalties and punishments more sever for DWI offenders, as well as creating more ways for law enforcement to make arrests.  I often receive calls about DWI arrests where no alcohol was involved -- but instead, the person was arrested for DWI based on a Prescription Medication.

Lunesta is one of the most common I see, although many other narcotics -- all legal with prescription -- have led to arrests and in many cases, convictions for DWI.

Texas Law specifically states, "

"Intoxicated" means: not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body."

Which means, DWI's are not limited to alcohol any longer, and include drugs -- even a legal, prescribed medication.

However, a non-alcohol DWI is far harder to prove than alcohol DWIs.  First, the prosecutors won't have much to go on if they don't test your blood, and I've seen many cases where blood is not tested.  Without blood results (which would show traces and potentially, depending on the test, the metabolites of the drug in your system) then the prosecutors must attempt to prove the case on circumstantial evidence.  They'll show that you were on a medication, or admitted to being on a prescription at the time of driving, and will point to driving errors or errors on the field sobriety tests to show impairment.

There is no legal limit, in terms of a numerical value, for medication DWI.  In other words, while it's prohibited to drive with more than .08% of alcohol in your system, leaving the prosecution to rely heavily on "impairment" in general.  Often they argue that any impairment is enough to prove DWI, but it's important to note that impairment must rise to the degree that it interferes with the ability to drive.  And that, is more difficult to prove to a jury than merely being over .08%, as in an Alcohol DWI.

What is the Difference in a Dismissal and Expunction in Texas?

Under Texas Law, there is a difference between a Dismissal of a Criminal Offense, and an Expunction of a Criminal Offense.  So which one is better for you?  The answer is obvious: Expunction.

A criminal case that is Dismissed means that the case is no longer pending, and there was no final finding of guilt by a Judge.  There are several ways a case can be dismissed, including Deferred Prosecution, Deferred Disposition, Dismissed for Insufficiency of the Evidence, or in the Interest of Justice.

Currently, as of this writing, if the case was Dismissed, and there are no other related cases that ended in a Conviction (such as a second charge, reduce charge arising from the same facts as the Dismissal), then the case SHOULD be eligible for Expunction.

Beware: Dismissals after Deferred Adjudication Probation are not considered a full Dismissal in terms of Expunction eligibility.

So why is Expunction so great? Why is Expunction better than letting the case remain a mere Dismissal? Because on an Expunction, the Judge Orders the state agencies that hold your record to destroy your paperwork and records.  Essentaillyu, the existence of the arrest, citation, and court proceedings are destroyed.

Expunction Law is always changing, so call us to see what we can do -- before the law changes again.