I thought this was a creative use of DNA:


LUFKIN - Two young men face felony charges after one of them allegedly spat in a drink he was serving to an East Texas police officer.

Brian Strban, 19, and Nathaniel Allen Baker, 22, were workers at a Lufkin Sonic Drive-In where the incident allegedly happened Sept. 3, according to a police affidavit.

Both were arrested last week and charged with second-degree felony tampering with a consumer product. If convicted, both could be sentenced to 20 years in prison and fined up to $10,000, The Lufkin Daily News reported in its online editions today.

In a statement, a spokeswoman for the Oklahoma City-based Sonic hamburger chain said both workers were fired.

According to the affidavit, the officer ordered a soft drink, but when he received the beverage he noticed several workers inside the kitchen laughing. The police officer, who was not identified, opened the drink and noticed what appeared to be phlegm floating on the surface.

The affidavit says lab tests confirmed his suspicions. It alleged that Strban planned the prank after recognizing the officer as one who had interrupted him and his girlfriend having a romantic interlude at a local parking spot. According to the affidavit, Strban has acknowledged encouraging Baker to spit in the drink.

Police say both suspects have given DNA samples, but no test results have been disclosed.

Seems this post dovetails with the best place to have lunch thread.

Mike, at least we do not have to wear uniforms.

(First time caller, long time listener. What? Yes, I'll turn down my radio.)

Has anyone ever filed one of these cases before? I took a quick poll of the prosecutors around our office, and the consensus seems to be that Sec. 32.42(b)(4) Penal Code would be a better fit (selling an adulterated commodity). Of course, that's only a Class A misdemeanor. Perhaps 32.42 wouldn't work because the coke was a freebie and was not "sold" to the officer (not that that ever happens around here, mind you). I'm aware of at least one officer who claims that he will only eat at Subway because he can actually see his food being prepared.

Welcome, Potter County. Glad to have North Texas calling in.

Ordinarily, my position as a prosecutor is that I would prefer for the legislature to give me more resources to enforce existing criminal statutes, rather than to enact new laws. This Lufkin story, however, makes me wonder whether we need a statute that specifically addresses this type of disgusting and offensive conduct directed at police officers. Isn't it odd that Sec. 22.11 of the Penal Code (the "chunking" statute) makes it a 3rd degree felony when a TDCJ guard drinks from a cup that an inmate has spit in, but prosecutors have to flip through the penal code and scratch our heads when the same thing happens to a cop at a fast-food joint?

Retaliation in a second paragraph?

Perhaps a little more on Retaliation is in order.

� 1.07. "Harm" means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.

� 1.07. "Unlawful" means criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege.

� 36.06. OBSTRUCTION OR RETALIATION. (a) A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act:
(1) in retaliation for or on account of the service or
status of another as a:
(A) public servant, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime; or
(2) to prevent or delay the service of another as a:
(A) public servant, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime.

Note the broad defition of "harm" and "unlawful".

What many prosecutors I have known overlook is that MERELY TORTIOUS conduct can be sufficient to give rise to a retaliation charge, if the harm or threatened harm is directed against a police officer (or a prosecutor?). The conduct of defendant need not be illegal in and of itself.

If you think the police officer could successfully sue the spitter, then you've got retaliation.

Do you know where your Horn Book on Torts is?

Hello to my Tech Law classmate John Coyle!